Solivan v. Dart

897 F. Supp. 2d 694, 83 Fed. R. Serv. 3d 1117, 2012 WL 4060587, 2012 U.S. Dist. LEXIS 131806
CourtDistrict Court, N.D. Illinois
DecidedSeptember 14, 2012
DocketNo. 10 C 1703
StatusPublished
Cited by5 cases

This text of 897 F. Supp. 2d 694 (Solivan v. Dart) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Solivan v. Dart, 897 F. Supp. 2d 694, 83 Fed. R. Serv. 3d 1117, 2012 WL 4060587, 2012 U.S. Dist. LEXIS 131806 (N.D. Ill. 2012).

Opinion

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

Plaintiff Nicholas Solivan (“Solivan”) filed suit against Thomas Dart, (“Dart”), Commander Michael Dembosz (“Dembosz”), Sergeant H. Thompson (“Thompson”), Officer Richard Revolorio (“Revolorio”), and the County of Cook, Illinois (“Cook County”) (collectively “Defendants”), for violations of 42 U.S.C. § 1983. Solivan alleges that he was a pre-trial detainee in the Cook County Department of Corrections whom the Defendants’ failed to protect in violation of his constitutional rights. Defendants filed a Motion to Dismiss contending that Solivan failed to allege the requisite knowledge and culpability to state a claim of deliberate indifference. Additionally, Defendants contend that the claims against newly-added Dembosz, Thompson, Revolorio and Cook County are time-barred by the applicable Illinois statute of limitations for § 1983 claims. For the following reasons, the Court denies the Motion to Dismiss with respect to Revolorio in Count I; grants the Motion with respect to Dart, Dembosz, Thompson and Cook County in Count I; and grants the Motion with respect to Count II. The Court also permits Solivan leave the file an Amended Complaint within 14 days to allege an indemnification charge against the County relating to Count I against Revolorio.

I. STATEMENT OF FACTS

The following facts are taken from Solivan’s Second Amended Complaint and are assumed to be true for purposes of this Motion to Dismiss.1 See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir.1995).

[698]*698On March 3, 2009, Solivan was a pretrial detainee housed in Division One of the Cook County Department of Corrections (“CCDOC”) in Chicago, Illinois. (Doc. 68, ¶¶ 2, 14). Division One is considered maximum security and houses some of the most dangerous criminals in CCDOC. (¶ 16). Solivan was the only person of Hispanic origin housed in Tier C, Deck 2, while the significant majority of the other inmates were African-American. (¶ 17). At the time, Division One employed a “half and half policy” so that only one half of the inmates on an individual tier were permitted to be out of their cells and in the dayroom at a given time. (If 18). On the date in question, Solivan’s cell was in the half of cells that were open between 3:30 and 6:30 p.m. (f 19). On that day, Solivan’s cellmate exited their cell, while Solivan stayed and believed that he had locked the door. (¶20). Meanwhile, the inmates from the opened cells were allowed to walk the hallways, the designated common area and the day room. (¶21).

At approximately 3:30 p.m., seven unnamed African American inmates entered Solivan’s cell and began striking him on his head and body causing severe injuries to his right eye, bleeding from his ear, numerous contusions to his face, and fractures of his lower back that left him in a wheelchair for the following 10 months. (¶ 23, 44). Solivan screamed for the duration of the five-minute attack as well as for the next two and a half hours. (¶¶ 24-25). The first time that a correctional officer attended to Solivan in his cell was at approximately 6:15 p.m. (¶ 25).

Deputy Revolorio was the Tier officer assigned to Solivan’s tier during the time of the incident, and was solely responsible for 38 detainees. (¶¶ 7, 29). Revolorio was stationed in the control room, commonly referred to as the “bubble,” where he could not see into the cells nor into the common areas where inmates might be walking outside of their cells. (¶¶22, 26). From the bubble, Revolorio could not hear if any noise was coming from the cells because the television in the day room was very loud where the inmates were also working out. (¶ 27). The only area from which an officer could personally observe the common areas and cells was the catwalk, and Revolorio was aware that the inmates knew when there was no officer on the catwalk. (¶ 28). Revolorio remained in the bubble from 3:30 p.m. to 6:18 p.m., which violated several Cook County Jail Standards (“Jail Standards”), including requiring personal observation by an officer [699]*699every 30 minutes and population headcounts every hour.2 (¶ 30-33).

Solivan describes several additional prison conditions that he believes resulted in his alleged attack. Solivan contends that there were no light bulbs in his cell, no intercoms or emergency call buttons in the cells, and no overhead cameras on the Tier. (¶¶ 34-36). Most important for the incident, Solivan explains that cell doors could be manipulated by inmates by inserting toothpaste caps or bottle caps to obstruct the locking mechanism, though they would register as locked on the central panel in the bubble, as seen by Revolorio. (¶ 37). Solivan alleges that Revolorio knew of this problem with the cell doors long before the date of the incident, as the problem was discussed almost every day at roll call, as well as due to the bimonthly fights that erupted in Tier C Section 2. (¶ 38-39). Solivan alleges that Revolorio remained in the bubble from 3:30 p.m. to 6:18 p.m. though he knew there would be no direct supervision of the inmates, knew that the inmates knew this, and knew that if any inmate were attacked in his cell he would be unable to see or hear what happened. (¶ 41).

Solivan initially filed suit pro se on March 30, 2010, against Dart and several John Doe officers, whom he described as being on duty at the time of the incident on March 3, 2009. (Doc. 5). Solivan then hired counsel, who filed his appearance on November 29, 2010. (Doc. 38). In Solivan’s First Amended Complaint, Solivan named as Defendants Cook County and Dart in his official capacity. Solivan also substituted the John Doe officers with Commander Dembosz, Thompson and Revolorio in their individual capacities.

II. STANDARD OF REVIEW

When considering a motion to dismiss under Rule 12(b)(6), the Court accepts as true all facts alleged in the complaint and construes all reasonable inferences in favor of the plaintiff. See Murphy, 51 F.3d at 717. To state a claim upon which relief can be granted, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Detailed factual allegations” are not required, but the plaintiff must allege facts that, when “accepted as true ... ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In analyzing whether a complaint has met this standard, the “reviewing court [must] draw on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. Id. A claim has facial plausibility when the pleaded factual content allows the Court to draw a reasonable inference that the de[700]

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Bluebook (online)
897 F. Supp. 2d 694, 83 Fed. R. Serv. 3d 1117, 2012 WL 4060587, 2012 U.S. Dist. LEXIS 131806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solivan-v-dart-ilnd-2012.