Thompson v. Cook County

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EUGENE THOMPSON,

Plaintiff, No. 22 C 1938

v. Judge Thomas M. Durkin

COOK COUNTY ET AL.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Eugene Thompson has sued Cook County, Cook County Sheriff

Thomas Dart, Cook County Sheriff’s Office (“CCSO”) Electronic Monitoring Program

Director Noel Acosta, and twelve CCSO officers (collectively “Movant Defendants”)

for allegedly applying an ankle monitor so tight that it caused significant damage to

his right leg resulting in amputation. Cook County, Dart, Acosta, and certain officers

move to dismiss. See R. 42. For the following reasons, that motion is granted in part

and denied in part.

Legal Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must

provide “a short and plain statement of the claim showing that the pleader is entitled

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, “labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,

the Court accepts all well-pleaded facts as true and draws all reasonable inferences

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

Background

The following facts are taken from the allegations in Thompson’s Second

Amended Complaint (“SAC”). See R. 35. In April 2019, Thompson was arrested and

placed on pretrial detention with electronic monitoring via an ankle band and

monitor. Id. ¶ 22. Thompson had a history of diabetes and leg swelling, and was

diagnosed with peripheral arterial disease (“PAD”), which affects circulation in his

lower extremities, in early 2020. Id. ¶ 28. Following a denied request to remove his

electronic monitoring restrictions to address his health issues, Thompson was AWOL

from the electronic monitoring program from February through October 2020. Id. ¶

29. On May 8, 2020, Thompson underwent arterial bypass surgery on his right leg to

address circulation issues in that leg, which was successful and resolved his

complaints. Id. ¶¶ 30, 31. At that time, there was no indication that his right leg

would require amputation. Id.

Thompson was reenrolled in the electronic monitoring program and

“Defendants”1 replaced the ankle band on his right leg around October 6 or 8, 2020.

Id. ¶ 33. On October 12, 2020, Thompson complained to Defendants that the band

was too tight on his right leg. Id. ¶ 34. He also told them that he had femoral artery

bypasses on both legs and that his legs were swollen and would likely remain that

way for some time. Id. That day, Defendants came to his host site and adjusted the

ankle band. Id. ¶ 35. Following the adjustment, the band remained tightly pressed

against his skin such that he was unable to get his fingers between the band and his

ankle. Id. Thompson communicated this complaint to Defendants, which they ignored

and advised that bands are “required to be tight to prevent tampering.” Id. The band

remained tightly on Thompson’s right leg until early March 2021. Id.

On March 4, 2021, Thompson went to the hospital with complaints of pain in

his right leg, and an exam revealed a femoral popliteal bypass graft occlusion and

ischemia, for which surgery was recommended. Id. ¶ 36. The next day, Defendants

removed the ankle band from Thompson’s right leg after both he and medical staff

advised that it needed to be removed for the procedure. Id. ¶¶ 37, 38. Thompson

underwent surgery on March 9, 2021 and a wound washout four days later, after

which his leg was revascularized, he had full motor strength, and there were no signs

of progression to limb threat. Id. ¶ 39. Thompson was discharged on March 15, 2021,

1 Thompson defines “Defendants” as including all named Defendants. R. 35 at 1–2.

and sometime in the next week, with knowledge of his surgery, Defendants tightly

reapplied the ankle band to his right leg. Id. ¶¶ 39, 40.

On April 9, 2021, Thompson again presented to the hospital with right leg pain.

Id. ¶ 41. An examination revealed his wound from the bypass surgery was not healing

properly, and a skin graft was performed. Id. Although they knew about his skin

graft, Defendants left the ankle band on Thompson’s right leg until they moved it to

his right wrist on April 23, 2021. Id. ¶¶ 41, 42. One week later, Thompson went to

the hospital with swelling in his right leg, at which time it was determined his right

leg was severely infected, ischemic, and needed to be amputated. Id. ¶ 47. His right

leg was amputated above the knee that day. Id. ¶ 48.

Thompson alleges Defendants knew ankle bands are contraindicated for people

with severe PAD, circulation issues, and histories of swelling and diabetes. Id. ¶ 43.

He further asserts Defendants never consulted his medical providers on whether

application of an ankle band was advisable given his medical conditions. Id. ¶ 46.

Thompson claims that Defendants’ tight application of the ankle band without regard

for his health conditions caused his right leg amputation. Id. ¶ 49.

Thompson brings claims under 42 U.S.C. § 1983 for excessive force (Count I);

Monell liability (Count II); failure to intervene (Count III), and conspiracy to deprive

constitutional rights (Count IV). He also brings state law claims for indemnity (Count

V), negligence (Count VI), and respondeat superior (Count VII). Defendants Cook

County, Sheriff Dart, Director Acosta, and Officers Colyer, Hicks, Rivera, Perkins,

Shedor, and James Dunn move to dismiss.2

Analysis

I. Group Pleading

Movant Defendants first argue that by referring to “Defendants” throughout

his SAC, Thompson fails to give them fair notice under Federal Rule of Civil

Procedure 8(a). Allegations “directed at multiple defendants can be adequate to plead

personal involvement” where they “put the defendants on notice of what exactly they

might have done to violate [Thompson’s] rights.” Rivera v. Lake Cnty., 974 F. Supp.

2d 1179, 1194 (N.D. Ill. 2013) (citing Brooks v. Ross, 578 F.3d 574, 582 (7th Cir.

2009)).

Here, Thompson pleads sufficient facts to put Defendants on notice of the

claims against them. Thompson does not merely name the Defendants in the caption

and omit them from the body of his SAC. Cf. Collins v. Kibort, 143 F.3d 331, 334 (7th

Cir. 1998); Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974). Nor does he allege

that individuals other than Defendants may have participated in the alleged

misconduct. Cf. Atkins v. Hasan, No. 15 CV 203, 2015 WL 3852724 (N.D. Ill. June 22,

2015). Rather, as shown by the background section above, Thompson presents more

2 The motion to dismiss is not brought on behalf of Officer Defendants Winston,

Jackson, Walker, Velasquez, J. Dunn, and Williams. R. 42 at 1; R 44 at 1.

Additionally, named Defendants include Officer James Dunn and Officer J. Dunn. R.

35 at ¶¶ 9, 17. Because there are two different Star numbers indicated in the SAC,

the Court understands that Thompson is referring to two separate Officer

Defendants, and only Officer James Dunn moves to dismiss.

than enough factual details “to present a story that holds together.” Reed v. Palmer,

906 F.3d 540, 548 (7th Cir. 2018).

True, “Defendants,” as defined by Thompson, includes not just the Officer

Defendants but also Cook County, Sheriff Dart, and Director Acosta. However, taking

the allegations together as a whole and drawing all reasonable inferences, the Court

construes the SAC to assert: (1) excessive force, failure to intervene, and conspiracy

claims under 42 U.S.C. § 1983 against the Officer Defendants; (2) a Monell claim

against Dart and Acosta in their official capacities; (3) state law indemnity and

respondeat superior claims against Dart in his official capacity; and (4) state law

indemnity, respondeat superior, and negligence claims against Cook County.

Likewise, “reading the allegations sensibly and as a whole,” it is clear that Thompson

is referring to the Officer Defendants when alleging the specific conduct in connection

with the application, adjustment, and removal of the ankle band. Engel v. Buchan,

710 F.3d 698, 710 (7th Cir. 2013).

Certainly, “group pleading is not an ideal practice, especially where it would

seem possible to name a particular defendant, or at least a subset of defendants, as

committing or participating in certain conduct.” Hyung Seok Koh v. Graf, No. 11-CV-

02605, 2013 WL 5348326, at *5 (N.D. Ill. Sept. 24, 2013). But Thompson’s SAC “is

coherent, and the basis of his claims is easily understood.” Kuri v. City of Chi., No. 13

C 1653, 2014 WL 114283, at *7 (N.D. Ill. Jan. 10, 2014) (denying motion to dismiss

malicious prosecution claim that attributed all alleged misconduct to eight defendant

officers collectively). Therefore, Thompson’s use of group pleading does not warrant

dismissal.

II. Claims Against Officer Defendants

Movant Defendants further argue that Thompson fails to adequately plead his

excessive force, failure to intervene, and conspiracy claims.

A. Excessive Force

The Fourteenth Amendment protects pretrial detainees from the use of

excessive force. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). A plaintiff must

allege that the force used was objectively unreasonable, which “turns on the facts and

circumstances of each particular case” when viewed “from the perspective of a

reasonable officer.” Id. (citation omitted). The Court may consider several factors,

including the relationship between the need to use force and the amount of force used,

the extent of the plaintiff’s injury, any effort by the officer to limit his or her use of

force, the severity of the security concern, and the threat perceived by the officer. Id.

Movant Defendants argue that Thompson does not adequately allege that the

Officer Defendants’ conduct was objectively unreasonable, particularly given

Thompson’s previous AWOL status and the adjustment of the band after he initially

complained. Critically, however, Thompson alleges that he told the Officer

Defendants the ankle band was still too tight after they adjusted it. He also alleges

that they knew about his circulation issues, swelling, procedures, and complaints of

pain in his right leg, and about the potential risks of applying the band on that

compromised leg. He finally alleges that the Officer Defendants placed, reapplied,

and allowed the band to remain on his right leg in an extremely tight fashion, refusing

to loosen it or consider alternative placement until a few weeks before the

amputation. Taken together, those allegations permit the reasonable inference that

the Officer Defendants’ conduct was objectively unreasonable. In a related context,

courts have denied motions to dismiss excessive force claims where a plaintiff alleges

that officers were told that handcuffs were too tight and painful as applied. See, e.g.,

Brown v. City of Chi., 594 F. Supp. 3d 1021, 1033–34 (N.D. Ill. 2022) (denying motion

to dismiss excessive force claim notwithstanding the plaintiff’s “threadbare”

allegations that his handcuffs were too tight and caused him pain which he

communicated to the officer defendants); see also Verser v. Hubbard, No. 10 C 7513,

2011 WL 2173754, at *2 (N.D. Ill. June 1, 2011). The same result is appropriate here.

Movant Defendants further argue that Thompson fails to sufficiently allege

each Officer Defendant’s personal involvement by referring to the collective

“Defendants.” Individual liability under § 1983 requires a defendant’s personal

involvement in the deprivation of a constitutional right. Kuhn v. Goodlow, 678 F.3d

552, 555–56 (7th Cir. 2012). But Thompson is not required to identify which officer

performed each specific action before he has the opportunity to conduct discovery. See

Carter v. Judkins, No. 19 C 7493, 2021 WL 1315628, at *2 (N.D. Ill. Apr. 8, 2021)

(denying motion to dismiss excessive force claim against officers who plaintiff did not

specifically identify as being involved in his alleged assault). Of course, to hold the

Officer Defendants liable, Thompson will eventually have to show how each was

personally responsible for his injuries. See Grieveson v. Anderson, 538 F.3d 763, 777

(7th Cir. 2008). But he has done enough at this stage to avoid dismissal of the

excessive force claim against the Officer Defendants.

B. Failure to Intervene

To state a claim for failure to intervene, a plaintiff must plead that an officer

“(1) had reason to know that a fellow officer was using excessive force or committing

a constitutional violation, and (2) had a realistic opportunity to intervene to prevent

the act from occurring.” Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009).

Drawing all reasonable inferences in Thompson’s favor, he plausibly alleges

that the Officer Defendants had reason to know their fellow officers were using

excessive force because they knew that Thompson had circulation issues, swelling,

and surgeries on his right leg, were aware of the potential risks of placing an ankle

band on that leg, and observed their fellow officers apply and reapply the band in a

tight fashion on that leg. It is also plausible that they could have “at least cautioned

[those who used excessive force] to stop” because they were allegedly present for the

application, adjustment, and removal of the band in connection with Thompson’s

procedures. Abdullahi v. City of Madison, 423 F.3d 763, 774 (7th Cir. 2005) (citation

omitted); see also Hyung, 2013 WL 5348326, at *12.

That Thompson does not differentiate between Officer Defendants who applied

the band and those failed to intervene is not fatal at this stage. An “officer may be

held to account both for his own use of excessive force on the plaintiff, as well as his

failure to take reasonable steps to stop the use of excessive force by his fellow officers.”

Sanchez v. City of Chi., 700 F.3d 919, 925–26 (7th Cir. 2012) (citation omitted). Thus,

it is “not implausible to plead claims of excessive force and failure to intervene against

the same officers.” Campbell v. City of Chicago, No. 17 C 4467, 2018 WL 4352614, at

*5 (N.D. Ill. Sept. 12, 2018). As to the failure to intervene claim, the motion to dismiss

is denied.

C. Conspiracy

To state a claim for conspiracy, a plaintiff need only identify the parties to the

alleged conspiracy, their purpose, and the approximate dates of the conspiracy. Miller

v. Fisher, 219 F. App’x 529, 533 (7th Cir. 2007). Thompson identifies the parties to

the conspiracy; the Officer Defendants; their general purpose, using excessive force

on Thompson and protecting each other from liability; and the approximate dates of

the conspiracy, from the initial application of the band to his right ankle in October

2020 through the relocation of the band to his right wrist and the amputation of his

leg in April 2021.

Movant Defendants argue that the use of “Defendants” dooms his conspiracy

claim as well. But Thompson specifically alleges the actions of the Officer Defendants

from the initial application of the band to his right ankle through the relocation of

the band to his right wrist. These “allegations give sufficient notice of the contours of

the conspiracy claim, and no greater specificity is required to survive a motion to

dismiss.” Sanchez v. Village of Wheeling, 447 F. Supp. 3d 693, 705 (N.D. Ill. 2020); see

also Senalan v. Curran, 78 F. Supp. 3d 905, 914 (N.D. Ill. 2015) (denying motion to

dismiss § 1983 claim against officer defendants for conspiracy to use excessive force).

The motion to dismiss the conspiracy claim is therefore denied.

III. Monell Claim

Movant Defendants also urge this Court to dismiss Thompson’s Monell claim.

To state a claim under Monell, Thompson must plausibly allege that a municipal

action is the “moving force” behind the violation of his constitutional rights and

demonstrates municipal fault. See Milchtein v. Milwaukee Cnty., 42 F.4th 814, 826

(7th Cir. 2022) (citing Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397 (1997)). A

municipal action may take the form of an express policy, widespread practice

tantamount to a custom, or a decision by a final policymaker. Id. Importantly, Monell

claims are not subject to a heightened pleading standard. White v. City of Chi., 829

F.3d 837, 843–44 (7th Cir. 2016). Thompson relies on the first two types of municipal

action, which the Court addresses in turn:

A. Express Policy

Thompson first asserts that his injury is attributable to the CCSO’s express

policy of applying ankle monitor bands in an extremely tight fashion. To start, he

adequately alleges the existence of an express policy. Specifically, he alleges that

when he complained to an officer that the band was tightly pressed against his skin

such that he was unable to place his fingers between the band and his ankle, the

officer refused to loosen it further and explained that bands “are required to be tight

to prevent tampering.” R. 35 at ¶ 35. The reasonable inference from that reference to

a “requirement” is that the officers were acting pursuant to a CCSO directive that

ankle bands must be applied in such an extremely tight fashion.

He also adequately alleges that the application of that policy was the “moving

force” behind the amputation of that leg, and that the CCSO is at fault. Critically, he

alleges that notwithstanding his circulation issues, there was no indication of any

need for amputation after his successful May 2020 surgery and then again after his

successful March 2021 surgery until the tight application of the ankle band to his

right leg pursuant to that policy. Such factual allegations go beyond mere conclusory

assertions regarding but-for and proximate causation. In addition, taking well-

pleaded allegations as true and drawing all reasonable inferences in his favor,

Thompson adequately alleges that the CCSO knew about the risk created by the

policy and failed to take appropriate steps to protect him. See Treadwell v. Salgado,

No. 19 C 3179, 2021 WL 3129290, at *7 (N.D. Ill. July 23, 2021) (denying dismissal

of Monell claim for failure to allege causation and deliberate indifference) (citing

Thomas v. Cook Cnty. Sheriff’s Dept., 604 F.3d 293, 303 (7th Cir. 2010)).

Moreover, the specificity of Thompson’s express policy theory alleviates any

risk of a fishing expedition. It does not rely on mere boilerplate. Cf. Kowalski v. Cnty.

of DuPage, No. 13 CV 526, 2013 WL 4027049, at *2 (N.D. Ill. Aug. 7, 2013). Nor does

it “encompass virtually all the activities of a police department and every contact it

has with the public.” Cf. Armour v. Country Club Hills, No. 11 C 5029, 2014 WL

63850, at *7 (N.D. Ill. Jan. 8, 2014). Rather, the allegations are narrowly tailored to

the use of electronic monitoring ankle bands on pretrial detainees. It would be

unreasonable to expect Thompson to provide more detail than he has without the

benefit of discovery. See Brown v. Dart, No. 14–cv–07945, 2015 WL 4035568, at *3

(N.D. Ill. June 30, 2015) (denying motion to dismiss Monell claim where allegations

were “sufficient to place the Cook County Sheriff’s Office on notice of the nature of

the claims against it and for the Court to find that [plaintiff] has ‘give[n] enough

detail about the subject-matter of the case to present a story that holds together’”)

(quoting McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir. 2011)). Accordingly,

Thompson’s allegation of an express policy of applying ankle bands in an extremely

tight fashion is sufficient to state a claim.

B. Widespread Practice

Thompson further contends that his injury is traceable to several widespread

practices, namely applying ankle bands too tightly, not investigating pretrial

detainees’ medical histories to determine whether ankle bands are contraindicated,3

applying ankle bands without regard for pretrial detainees’ relevant medical

histories, and maintaining a “code of silence” by which officers fail to report

misconduct such as placing ankle bands on too tightly. But Thompson does not allege

sufficient facts to show that the practices are so widespread “as to constitute a

governmental custom,” rather than an isolated event. Gill v. City of Milwaukee, 850

F.3d 335, 344 (7th Cir. 2017). Although Thompson does not need to provide examples

of “every other or even one other individual” who suffered due to this practice, White,

3 Thompson classifies the failure to investigate medical histories as an express policy.

However, because Thompson essentially points to a gap in a policy, rather than an

affirmative directive, this Court reviews this allegation as a widespread practice. See

Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005) (“[I]t is more confusing than

useful to distinguish between claims about express policies that fail to address certain

issues, and claims about widespread practices that are not tethered to a particular

written policy[.]”).

829 F.3d at 844, he must “plausibly allege that such examples exist.” Gill, 850 F.3d

at 344. Thompson’s vague references to “prior instances of similar misconduct”

without any specific facts as to those instances do not allow for the reasonable

inference of a custom. See id. (holding that the specific actions of government

employees in the plaintiff’s case alone, without more, did not create the reasonable

inference that a widespread practice existed); see also Milchtein, 42 F.4th at 826

(“[I]dentifying just a few instances of official action is usually insufficient to show the

existence of an entrenched practice with the force of policy.”); Hamilton v. Oswego

Community Unit School District 308, No. 20 C 0292, 2021 WL 767619, at *10–11

(N.D. Ill. Feb. 26, 2021).4

C. Cook County

As discussed, the Court understands that Thompson is pursuing a Monell

claim against the CCSO rather than Cook County itself. However, under Illinois law,

Cook County must indemnify the CCSO for any official capacity claims. Carver v.

Sheriff of LaSalle Cnty., Ill., 324 F.3d 947, 948 (7th Cir. 2003) (“[A] county in Illinois

is a necessary party in any suit seeking damages from an independently elected

county officer (sheriff, assessor, clerk of court, and so on) in an official capacity.”); see

also Wilson v. Cook Cnty., No. 19 C 7824, 2020 WL 5642945, at *3 n.3 (N.D. Ill. Sept.

4 The SAC references a “failure to adequately punish and discipline” and a “failure to

train” in connection with these practices. R. 35, ¶58. The Court understands

Thompson as alleging these theories as the causal link between the practices and his

injury, not as independent practices. Since the Court finds that Thompson has not

adequately pled the existence of a widespread practice, the Court does not reach the

issue of whether he adequately pled causation.

22, 2020) (noting that Cook County “must remain a party for indemnification

purposes to the extent that any claims proceed against . . . Dart”). Thompson

sufficiently pleads a Monell claim against the CCSO, so Cook County remains in this

suit as a necessary party for potential indemnification purposes.

IV. State Law Claims

Movant Defendants urge this Court to dismiss Thompson’s respondeat superior

and negligence claims against Cook County because it is not vicariously liable for the

acts of Sheriff Dart and his employees. In Illinois, the Sheriff is “not an employee of

the county in which [he] serves.” Askew v. Sheriff of Cook Cnty., 568 F.3d 632, 636

(7th Cir. 2010). As a result, Cook County cannot be held vicariously liable for the

actions taken by Sheriff Dart or his employees. See Riley v. Cnty. of Cook, 682 F. Supp.

2d 856, 860 (N.D. Ill. 2010). Accordingly, the motion is granted as to Thompson’s

negligence and respondeat superior claims against Cook County.5 However, because

certain federal claims survive the motion to dismiss, the Court will retain

supplemental jurisdiction over the remaining state law claims. See Williams v. City

of Chi., 315 F. Supp. 3d 1060, 1084 (N.D. Ill. 2018).

Conclusion

For the foregoing reasons, the motion to dismiss is granted in part and denied

in part. The motion is denied as to Counts I, III, IV, and V. The motion is granted as

to the widespread practice claim in Count II, but otherwise denied. The motion is also

5 Because the Court dismisses the state law respondeat superior and negligence

claims against Cook County on that basis, the Court declines to address the parties’

arguments regarding the Illinois Local Governmental and Governmental Employees

Tort Immunity, 745 ILCS 10/1-101, et seq.

granted as to Count VI and as to Count VII with respect to Cook County only. The

dismissal in part of Count II is without prejudice. If Thompson believes he can cure

the deficiencies identified here as to that claim, he may move for leave to file an

amended complaint within 30 days of the date of this opinion. Any such motion should

attach a redlined comparison between the complaint and the amended complaint, and

should be supported by a brief of no more than five pages describing how the proposed

amended complaint cures the deficiencies in the current complaint. Should Thompson

choose to file such a motion, Defendants should not respond unless ordered to do so

by the Court.

ENTERED:

Arnite MY Suchor.

Honorable Thomas M. Durkin

United States District Judge

Dated: April 7, 2023

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