Harris v. O'GRADY, 90 C 2719.

• Decision Date: 23 October 1992
• Docket Number: No. 90 C 2719.,90 C 2719.
• Citation: 803 F. Supp. 1361
• Parties: Anthony HARRIS, Plaintiff, v. James O'GRADY, Dr. John Raba, Lieutenant Doris Warren, Sergeant Nadine Jones, John Doe, Richard Roe, Jane Doe, Thomas P. Roth, Dr. Brewer, Dr. James W. Bizzell, Howard Peters, and Ronald Haws, Defendants.
• Court: U.S. District Court — Northern District of Illinois

803 F. Supp. 1361

Anthony HARRIS, Plaintiff, v. James O'GRADY, Dr. John Raba, Lieutenant Doris Warren, Sergeant Nadine Jones, John Doe, Richard Roe, Jane Doe, Thomas P. Roth, Dr. Brewer, Dr. James W. Bizzell, Howard Peters, and Ronald Haws, Defendants.

No. 90 C 2719.

United States District Court, N.D. Illinois, E.D.

October 23, 1992.

COPYRIGHT MATERIAL OMITTED

Anthony Harris, pro se.

Laurence Calnan Acker, Robert Earl Harrington, Jr., Harrington, Thompson, Acker & Harrington, Ltd., Chicago, Ill., for plaintiff.

Cynthia J. Wood, Ill. Atty. Gen. Office, Robert Samuel Spadoni, J. Paige Clousson & Associates, Chicago, Ill., for defendants Thomas Roth and Kenneth L. McGinnis.

Cynthia J. Wood, Ill. Atty. Gen. Office, Terry L. McDonald, Michael David Jacobs, Cook County State's Attys. Office, Chicago, Ill., for defendants James O'Grady, Dr. John Raba, Lt. Doris Warren and Sgt. Nadine Jones.

Cynthia J. Wood, Ill. Atty. Gen. Office, Chicago, Ill., for defendants John Doe, Richard Roe, Jane Doe, Dr. Brewer, Dr. James W. Bizzell, Howard Peters and Ronald Haws.

ORDER

NORGLE, District Judge.

Before the court are the motions to dismiss of defendants James O'Grady ("O'Grady"), Dr. John Raba ("Dr. Raba"), Lt. Doris Warren ("Warren"), and Sgt. Nadine Jones ("Jones"). For the reasons that follow, the court grants O'Grady's motion, grants Dr. Raba's motion, and denies Warren's and Jones's motions.

FACTS

This is a civil action pursuant to 42 U.S.C. § 1983 for the violation of the rights under the Eighth and Fourteenth Amendments of the United States Constitution to proper medical care while a pretrial detainee¹ and while incarcerated, and to proper housing for blind inmates. The complaint establishes that plaintiff Anthony Harris ("Harris") was detained at the Cook County Jail on May 16, 1989. He subsequently became an inmate in the custody of the Illinois Department of Corrections ("IDOC") on January 5, 1990 and was transferred to various correctional centers in Illinois, including Joliet Correctional Center, Stateville Correctional Center, and Dixon Correctional Center. Harris is currently incarcerated at Centralia Correctional Center where he has resided since September 25, 1991.

According to the complaint, Harris is legally blind in his left eye due to a birth defect and is blind in his right eye after a failed attempt at corrective surgery in 1985. Prior to his incarceration, Harris had received continuous medical treatment which included maintenance of a prosthetic right eye and measures to preserve the limited vision remaining in the left eye.

Dr. Raba is the former Medical Director of Cook County Cermak Medical Services Hospital ("Cermak Hospital"). He is allegedly responsible for health services and health facilities at the Cook County Jail. Defendants Warren and Jones are correctional officers at the Cook County jail allegedly responsible for the security, health, and safety of jail detainees. O'Grady is the former Sheriff of Cook County and as such is allegedly responsible for rules and regulations and training programs at Cook County Jail.

While detained at Cook County Jail, Harris allegedly made numerous requests to medical social services personnel and security personnel, as well as to the present defendants Warren and Jones, for medical treatment for his blindness and frequent eye infections. He further requested special handicapped housing in order to prevent dangerous situations that could arise and cause serious injuries. The complaint alleges that Cook County Jail and Cermak Hospital both have procedures for identifying blind detainees and the ability to house blind detainees at an appropriate medical facility. The complaint further alleges that personnel from these entities deliberately failed to evaluate Harris for placement in a special facility despite Harris's "obvious blindness and numerous requests" and despite that Harris was otherwise qualified for such placement. Further, Harris alleges Warren and Jones ignored Cook County Jail and Cermak Hospital guidelines and policies regarding the treatment of the visually handicapped.

The complaint alleges that, as a result of the defendants' deliberate indifference to Harris's serious medical condition, to established guidelines and policies, and to his numerous requests, Harris was placed in the general jail population unaided by any corrective lens or treatment. Furthermore, Harris claims he was not examined by a physician for his eye condition for the eight months he was incarcerated at Cook County Jail, was never provided corrective glasses or lens or other treatment, and was not provided appropriate services or housing for his blindness for his safety. Consequently, Harris was unable to protect himself from dangerous situations, was physically beaten by security personnel and other inmates, and his prosthesis became infected.

Dr. Raba moves to dismiss the amended complaint for failure to effect service within 120 days pursuant to Fed.R.Civ.P. 4(j) and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Warren and Jones also move to dismiss the amended complaint pursuant to Fed.R.Civ.P. 4(j) and Fed.R.Civ.P. 12(b)(6). O'Grady moves to dismiss the amended complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).

DISCUSSION

Rule 4(j) of the Federal Rules of Civil Procedure provides that the court may dismiss an action without prejudice if the plaintiff fails to perfect service within 120 days after filing the complaint. After receiving leave from the court, Harris filed an amended complaint on December 27, 1991 naming Dr. Raba, Warren, and Jones as defendants. Harris should have served these defendants on or before April 25, 1992.

Dr. Raba's motion alleges, and the record establishes, that Harris failed to serve Dr. Raba within the required 120 days. Further, the court dismissed Dr. Raba on May 18, 1992 upon oral motion for failure to effectuate service of process. Nonetheless, Harris subsequently served Dr. Raba on June 1, 1992, nearly 157 days after Harris filed the amended complaint. Harris should have moved to vacate the May 18th order dismissing Dr. Raba if he desired to effectuate service on Dr. Raba after this court dismissed him. Accordingly, the June 1st service was ineffective and the court again grants Dr. Raba's motion to dismiss without prejudice pursuant to Fed.R.Civ.P. 4(j).

As for defendants Warren and Jones, on May 18, 1992 the court granted Harris twenty-eight additional days to serve Warren and Jones, although the motion came twenty-three days after the 120 day limit expired. Harris perfected service on Warren on June 2, 1992 and Jones on June 11, 1992, both within this twenty-eight day extension. The court accordingly denies Warren's and Jones's motion to dismiss pursuant to Fed.R.Civ.P. 4(j).

The court now turns to the merits of the complaint. On a motion to dismiss, the court accepts all well-pleaded factual allegations as true, Johnson v. Martin, 943 F.2d 15, 16 (7th Cir.1991), as well as all reasonable inferences drawn from those allegations, Nelson v. Monroe Regional Medical Center, 925 F.2d 1555, 1558 (7th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 285, 116 L.Ed.2d 236 (1991). The court must construe the pleadings liberally, and mere vagueness or lack of detail alone does not constitute sufficient grounds to dismiss a complaint. Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985). Accordingly, a dismissal is proper only if the non-moving party can prove no set of facts upon which to grant legal relief. Ross v. Creighton Univ., 957 F.2d 410, 413 (7th Cir.1992).

Initially, the court construes Harris's claim in Count I as a claim against the defendants in their individual capacities only, because Count I requests compensatory and punitive damages, does not request injunctive relief, and does not allege or allude to an official policy or custom on the part of these defendants. See Hill v. Shelander, 924 F.2d 1370, 1372-74 (7th Cir. 1991) (sensible approach to reading complaint required; injunctive relief recoverable only in official capacity suits and punitive damages recoverable only in individual capacity suits).²

Next, because the Eighth Amendment does not apply to pretrial detainees, Whitley v. Albers, 475 U.S. 312, 318, 106 S.Ct. 1078, 1083, 89 L.Ed.2d 251 (1986), Harris's rights while in custody in the Cook County Jail are analyzed under the Due Process Clause. Hinkfuss v. Shawano County, 772 F.Supp. 1104, 1109 n. 6 (E.D.Wis.1991).³ The due process rights of a pretrial detainee are at least as great as the Eighth Amendment protection available to a convicted prisoner. City of Revere v. Massachusetts General Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983). Accordingly, the "deliberate indifference" standard will apply. See id. at 244, 103 S.Ct. at 2983 (deliberate indifference by officials to serious medical need or injury of detainee constitutes punishment without due process); Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 n. 31 (3d Cir.1987) ("deliberate indifference" governs provision of medical care under both Eighth and Fourteenth Amendments), cert. denied, 486 U.S. 1006, 108 S.Ct. 1731, 100 L.Ed.2d 195 (1988).

To state a claim under 42 U.S.C. § 1983 for violation of constitutional rights by failing to provide proper medical treatment, Harris "must alleged acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Harris's claim must rise to the level of a constitutional deprivation of rights. Holmes v. Sheahan, 930 F.2d 1196, 1199 (7th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 423, 116 L.Ed.2d 443 (1991). Mere negligence or even gross negligence will not suffice. Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir.1991).

For liability to attach to prison supervisors under §...