Opinion

243446

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHARLES NELSON, )

)

Plaintiff, )

) No. 24 C 3446

v. )

) Judge Sara L. Ellis

JEFFREY WYGODNY, et al., )

)

Defendants. )

ORDER

The Court grants in part and denies in part Dart’s motion to dismiss [39]. The Court

dismisses the indemnification claim against Dart without prejudice, but declines to dismiss to

respondeat superior claim. Dart’s answer to the amended complaint is due by January 22, 2025.

See Statement for further details.

STATEMENT

Plaintiff Charles Nelson filed this suit pro se on April 29, 2024 and filed an amended

complaint on April 3, 2025 after retaining counsel. Nelson alleges that, while he was in custody

at Cook County Jail, an unnamed correctional officer (“C/O John Doe”) deliberately and

maliciously denied him medical care for stab wound injuries. He further alleges that, once he

eventually did receive medical care, a team of anesthesiologists incorrectly administered his

anesthesia. In addition to asserting federal and state law claims against these individual

defendants, he brings indemnification and respondeat superior claims against Sheriff Thomas

Dart and Cook County. Dart now moves to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6).

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not

its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.

1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-

pleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in

the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive

a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a

claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);

see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “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.” Iqbal, 556 U.S. at 678. Under Rule

12(e), “[a] party may move for a more definite statement of a pleading to which a responsive

pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare

a response.”

Initially, Dart makes various arguments as to why the Court should dismiss Counts I–V

against him. But as the complaint makes clear, Nelson is not asserting any of these counts

against Dart. Doc. 22 at 5–6 (stating that Counts I and II are “against Defendant C/O John

Doe”); id. at 6 (stating that Counts III, IV, and V are “against Defendants Jeffrey Wygodny, MD,

Nicholas Dinko, MD, and Megan Sheehan CRNA”). Given that Nelson does not assert these

claims against Dart, the Court need not address Dart’s arguments on these issues. See Horton v.

Guzman, No. 16 C 741, 2017 WL 1233028, at *5 n.5 (N.D. Ill. Apr. 4, 2017) (disregarding

county’s arguments as to claims not asserted against county).

Turning to Nelson’s respondeat superior claim, Dart argues that the Court should dismiss

this claim because it is “not asserted against Dart.” Doc. 39 (“As this claim is not asserted

against Dart, no response from him is required, and this count should also be dismissed as to

him.”). The Court does not agree. Taking the allegations together as a whole, the Court

construes the amended complaint to be asserting a respondeat superior claim against Dart.

Specifically, the amended complaint alleges that Dart employed C/O John Doe in his role as a

correctional officer at Cook County Jail and expressly states that Dart “is liable” under Count

VII. Doc. 22 ¶¶ 3–4, 64. Additionally, Nelson clarified during a hearing on July 1, 2025 that his

intention “was to include Sherrif Dart for respondeat superior/indemnification purposes.” Doc.

43 at 2:25–3:9. Given this, the Court will not dismiss on these grounds.

In his reply brief, Dart argues for the first time that (1) the Illinois Tort Immunity Act

provides that Nelson cannot state a respondeat superior claim against him and (2) he cannot be

held liable for “the actions of medical professionals employed by Cermak Health Services.”

Doc. 49 at 3–4. However, because Dart waited to raise these arguments for the first time on

reply, he has waived them. See United States v. Williams, 85 F.4th 844, 849 (7th Cir. 2023)

(“Just as undeveloped arguments are waived, so are arguments raised for the first time in reply

briefs.”); White v. United States, 8 F.4th 547, 552–53 (7th Cir. 2021) (holding that arguments

raised for the first time in a reply brief are waived as they leave no chance for the other party to

respond).

Even if this Court were to consider Dart’s waived arguments, however, neither would

change the outcome of the motion. First, Dart cites to three provisions of the Illinois Tort

Immunity Act (“TIA”), arguing that they protect Dart from liability “for the conduct of

correctional officers or retained as a nominal party where no wrongdoing by him is alleged.”

Doc. 49 at 3 (citing 745 Ill. Comp. Stat. 10/2-202 (“Section 2-202”); 745 Ill. Comp. Stat. 10/2-

109 (“Section 2-109”); 745 Ill. Comp. Stat. 10/2-204 (“Section 2-204”)). None of the cited

statutory provisions support this, however. Starting with Section 2-204, the law is clear that this

provision “does not abrogate respondeat superior liability” and instead simply “grants immunity

to public employees sued in their personal capacity.” Jackson v. Dart, No. 16 C 7568, 2017 WL

5293885, at *3 (N.D. Ill. Nov. 13, 2017). And Section 2-109 states that “[a] public employee is

not liable for his act or omission in the execution or enforcement of any law unless such act or

omission constitutes willful and wanton conduct.” 745 Ill. Comp. Stat. 10/2-202. However,

because Nelson is not suing Dart in his personal capacity, the TIA treats Dart as a “local public

entity,” rather than a “public employee.” Bergman v. Cook Cnty., No. 19-CV-6671, 2020 WL

5097075, at *3 (N.D. Ill. Aug. 28, 2020) (collecting cases). Thus, neither of these sections

immunize Dart from liability in this case. The other cited provision fares no better. Section 2-

202 states that “[a] local public entity is not liable for an injury resulting from an act or omission

of its employee where the employee is not liable.” 745 Ill. Comp. Stat. 10/2-109. This simply

means that Dart is not liable for C/O John Doe’s denial of medical treatment to Nelson if C/O

John Doe himself is not liable. The amended complaint sufficiently alleges that C/O John Doe is

liable in this case, and Dart does not argue otherwise.

As for Dart’s second waived argument, the Court agrees that Dart is not the proper

respondeat superior defendant with regards to any employee of Cermak Health Services.

However, that does not mean that there is “no basis for keeping Dart in this case.” Doc. 49 at 4.

C/O John Doe is a correctional officer employed by Dart, and Dart is a proper respondeat

superior defendant with regard to him. See Brown v. Doody, No. 1:08-CV-5711, 2010 WL

11712575, at *6 (N.D. Ill. July 23, 2010) (holding that Dart “is a proper party” because, under

Illinois law, he “can be held liable via respondeat superior, for torts (including intentional torts)

of correctional officers that are committed in the course of employment and in furtherance of the

business of the employer”) (collecting cases).

Finally, with regard to Nelson’s indemnification claim, Dart argues that the Court should

dismiss this claim against him because it “is directed solely at Cook County, and not Sheriff

Dart.” Doc. 39 at 6. Specifically, Nelson alleges under Count VI that Cook County—not Dart—

must indemnify its employees. Doc. 22 ¶¶ 61–62. At the same time, however, Nelson has

previously represented that he seeks to hold Dart liable for indemnification. See Doc. 43 at

2:25–3:9 (representing that Dart is named for “respondeat superior/indemnification purposes”).

Nelson does not respond to this argument, and the Court therefore grants the motion to dismiss

the indemnification claim against Dart.

The Court therefore grants Dart’s motion to dismiss in part and dismisses the

indemnification claim against him without prejudice. The Court denies the remainder of Dart’s

motion to dismiss.

Dated: January 7, 2026 /s/__Sara L. Ellis______________