JANE DOES I-IV and JOHN DOES I and II, Plaintiffs, v. KANE COUNTY, SHAWN LOOMIS, and APEX3 SECURITY LLC, Defendants. Consolidated with VICTORIA WEILAND and DEANNA CHRONES, Plaintiffs, v. KANE COUNTY, SHAWN LOOMIS, APEX3 SECURITY, LLC, and NORTHWESTERN MEDICINE DELNOR HOSPITAL, Defendants.
Case No. 17 C 3944; Case No. 17 C 6111
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
April 11, 2018
AMY J. ST. EVE, District Court Judge
AMY J. ST. EVE, District Court Judge:
The present consolidated lawsuits are based on a tragic incident that took place at Defendant Northwestern Medicine Delnor Hospital (hereinafter “Delnor Community Hospital”) in Geneva, Illinois, where a Kane County Correctional Officer lost control of pretrial detainee Tywon Salters, who then took nurses hostage at gunpoint and physically assaulted two of the nurses. After a three-hour hostage standoff, Kane County S.W.A.T team members shot and killed Salters. Four nurses, two of their husbands (“Doe Plaintiffs”), and two hospital patients,
In particular, in their Second Amended Complaint, the Jane Doe Plaintiffs bring the following claims: (1) substantive due process against Defendant Loomis (Counts I, VII, XI, XIV); and (2) common law negligence against Apex3 Security (Counts III, IX, XII, XV). The John Doe Defendants bring loss of consortium claims based on their wives’ substantive due process claims (Counts II and VIII) and common law negligence claims (Counts IV and X). The Doe Plaintiffs also bring indemnification claims against Kane County in the remaining counts pursuant to
Before the Court are Defendants’ motions to dismiss brought pursuant to
LEGAL STANDARD
“A motion to dismiss pursuant to
BACKGROUND
The Doe Plaintiffs’ Second Amended Complaint and the Patient Plaintiffs’ First Amended Complaint allege that Tywon Salters served a sentence in the Illinois Department of Corrections for Class 2 felonies and was released on parole in October 21, 2016. (R. 24, Second Am. Compl. ¶¶ 15-16; R. 57, First Am. Compl. ¶¶ 11-12.) Less than five months later, on March
On May 7, 2017, while in custody, Salters ingested hydrogen peroxide, after which Kane County Correctional Officers transported him to Delnor Community Hospital, and once released, Kane County officials placed him on suicide watch at the Kane County Jail. (Second Am. Compl. ¶¶ 21-23; First Am. Compl. ¶¶ 15-16.) The next day, Salters ingested a jail-issued sandal and liquid cleaner, and, once again, Kane County Correctional Officers transported him to Delnor Community Hospital for medical treatment. (Second Am. Compl. ¶¶ 24-25, First Am. Compl. ¶¶ 17-18.) On May 9, 2017, the hospital transferred Salters to the medical-surgical unit on the third floor of the hospital where he stayed until the incident that took place on May 13, 2017. (Second Am. Compl. ¶¶ 26-27; First Am. Compl. ¶¶ 19-20.) Plaintiffs assert that during that time period, Kane County Correctional Officers were aware that Salters was combative, uncooperative, and manipulative. (Second Am. Compl. ¶ 32; First Am. Compl. ¶¶ 22-23.) Further, Plaintiffs state that Kane Cоunty Correctional Officers, including Defendant Loomis, were aware that Salters was a flight risk and posed a serious danger to the hospital staff, nurses, and patients. (Second Am. Compl. ¶ 33; First Am. Compl. ¶ 24.)
Plaintiffs allege that pursuant to the polices of the Kane County Sheriff’s Office, Kane County Correctional Officers were required to protect hospital staff, nurses, and patients from
On May 8, 2017, while in the emergency room of Delnor Community Hospital, Salters asked to use the bathroom, at which time the Kane County Correctional Officer guarding him released Salters from his shackles, vacated the room, and left Salters alone with a nurse while he used the toilet. (Second Am. Compl. ¶ 46; First Am. Compl. ¶ 41.) The hospital notified the Kane County Sheriff’s Office and Apex3 Security of this incident. (Second Am. Compl. ¶ 46; First Am. Compl. ¶¶ 41-42.) On both May 11 and May 12, 2017, Correctional Officers unshackled Salters and allowed him to walk unrestricted through the hallways on the third floor of the hospital. (Second Am. Compl. ¶¶ 51, 52; First Am. Compl. ¶¶ 47, 48.) Correctional Officers also allowed Salters’ unrestricted use of the telephone in his hospital room. (Second Am. Compl. ¶ 49; First Am. Compl. ¶ 45.)
On the morning of May 13, 2017, nurses observed Kane County Correctional Officers sitting in Salters’ hospital room using their electronic devices while Salters was unshackled. (Second Am. Compl. ¶¶ 53-54; First Am. Compl. ¶¶ 49-50.) Sometime thereafter, Correctional Officer Defendant Loomis began guarding Salters and removed Salters’ leg shackle more than once so that Salters could use the toilet. (Second Am. Compl. ¶¶ 57, 59; First Am. Compl. ¶¶ 51-52.) After unshackling Salters, Defendant Loomis did not restrain or shackle Salters after he used the bathroom. (Second Am. Compl. ¶¶ 58, 60; First Am. Compl. ¶ 53.) Instead, Defendant Loomis allowed Salters to remain unshackled and without any restraints in his hospital room for at least thirty minutes. (Second Am. Compl. ¶ 62; First Am. Compl. ¶ 53). Jane Doe III then
In the meantime, Salters went to an office where he took Jane Doe I hostage, forced her to remove her clothes, threatened her, and physically and verbally abused her while holding her at gunpoint. (Second Am. Compl. ¶ 67; First Am. Compl. ¶ 58.) Jane Doe II then entered the office, at which time Salters took her hostage at gunpoint forcing her to go to a “decontamination room” on the first flоor of the hospital. (Second Am. Compl. ¶¶ 68, 69.) While forcing Jane Doe II at gunpoint, Jane Doe IV came upon Salters and Jane Doe II. (Id. ¶ 70.) Thereafter, Salters held Jane Doe II hostage in the decontamination room for over three hours at gunpoint, during which he repeatedly beat her, forced her to remove her clothes, violently raped her, threatened her life, and verbally abused her. (Id. ¶ 71.) For part of this time period, Jane Doe III was in close proximity to the hostage situation. (Id.) In the interim, a standoff ensued between Salters and Kane County S.W.A.T. team members while Salters was holding Jane Doe II hostage. (Id. ¶ 72.) At approximately 4:00 p.m. on May 13, 2017, the S.W.A.T. team members
After Defendant Loomis lost control of Salters, Patient Plaintiff Weiland was able to hear screams from staff members whom Salters was holding hostage and then she called 911. (First Am. Compl. ¶¶ 59, 61.) Plaintiff Weiland remained in her windowless room on the third floor of the hospital for over an hour without knowing any information about her safety. (Id. ¶¶ 60-61.) Plaintiff Chrones was in a nearby hospital room on the third floor, could hear hostage negotiations, and had a direct line of sight to the S.W.A.T. team members – although hospital staff eventually moved her to another room during the standoff. (Id. ¶¶ 61-63.) The Patient Plaintiffs assert that they have suffered post-traumatic stress disorder as a result of these events. (Id. ¶ 66.) Plaintiff Weiland specifically alleges that she has been afraid to return to any medical facilities since the hostage standoff and Plaintiff Chrones alleges that she has suffered health problems based on her anxiety resulting from the incident. (Id. ¶¶ 67, 68.) Similarly, the Jane Doe Plaintiffs allege that they suffered emotional, as well as physical injuries, as a result of the hostage situation. (Id. ¶¶ 79, 87, Second Am. Compl. ¶¶ 83, 93, 111, 121, 139, 147, 160, 168.)
Plaintiffs further contend that during the relevant time period, Defendant Apex3 Security was a private Illinois security company responsible for the safety, security, and well-being of Delnor Community Hospital’s staff and patients. (Second Am. Compl. ¶ 34; First Am. Compl. ¶¶ 25-26.) Specifically, Delnor Community Hospital hired Apex3 Security to provide security for those on the hospital’s premises. (First Am. Compl. ¶¶ 26, 27.) According to Plaintiffs, Apex3 Security voluntarily provided security measures for those who were lawfully on the premises and was also tasked with monitoring inmates admitted to the hospital. (Second Am. Compl. ¶¶ 35-36; First Am. Compl. ¶¶ 28-29.) As part of the contract with Delnor Community
ANALYSIS
I. Substantive Due Process Claims
A. State-Created Danger Exception
Both the Jane Doe and Patient Plaintiffs bring claims based on their substantive due process right to bodily integrity against Kane County Correctional Officer Loomis under the state-created danger exception to DeShaney v. Winnebago Cnty. Dep’t of Social Serv., 489 U.S. 189 (1989). See Ingraham v. Wright, 430 U.S. 651, 673 (1977) (among the liberties protected by the due process clause is “a right to be free from and to obtain judicial relief, for unjustified intrusions on personal security”). In DeShaney, 489 U.S. at 197, the Supreme Court explained that as a general matter, “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”; see also Paine v. Cason, 678 F.3d 500, 508 (7th Cir. 2012) (“the Constitution is a charter of negative liberties rather than a source of rights to protectiоn or treatment”). Put differently, “there is no federal constitutional right to be protected by the government against private violence in which the government is not complicit.” Sandage v. Bd. of Comm’rs of Vanderburgh Cnty., 548 F.3d 595, 596 (7th Cir. 2008). “Under the state-created danger doctrine, however, a substantive due process claim can proceed where the state ‘affirmatively places a particular individual in a position of danger the individual would not otherwise have faced.’” Wilson-Trattner v. Campbell, 863 F.3d 589, 593 (7th Cir. 2017) (quoting Doe v. Vill. of Arlington Heights, 782 F.3d 911, 916 (7th Cir. 2015)); see also Paine, 678 F.3d at 510 (“state actors who, without justification, increase a person’s risk of harm violate
1. Affirmative Acts Creating or Increasing Danger
First, Defendants generally argue that state actors do not create or increase the danger of private violence when an inmate escapes their custody.2 Although “the Constitution does not create a right to be protected from criminal predators[,]” Paine, 678 F.3d at 507, the Court must examine the detailed allegations and all reasonable inferences in Plaintiffs’ favor to determine whether they have plausibly alleged that Defendant Loomis affirmatively placed them in a position of danger that they would not have otherwise faced. See Wilson-Trattner, 863 F.3d at 593; see also Paine, 678 F.3d at 510 (“Several decisions in this and other circuits hold that people propelled into danger by public employees have a good claim under the Constitution.”). In doing so, the Court turns to Plaintiffs’ allegations concerning Defendant Loomis’ affirmative conduct when he lost control of Salters.
Examining Plaintiffs’ allegations and all reasonable inferences in their favor, they have alleged more than indifference or inaction on the part of Defendant Loomis. Specifically – in the context of Defendant Loomis’ awareness that Salters was combative, manipulative, a flight risk, and that he posed a serious danger to the hospital staff and patients – while guarding Salters, Defendant Loomis unshackled him on more than one occasion and allowed Salters to use the bathroom unshackled and unsupervised. After leaving Salters unrestrained for approximately thirty minutes, Salters grabbed Defendant Loomis’ gun. At that point, Defendant Loomis lost control of Salters. Plaintiffs allege that thereafter Defendant Loomis ran from the situation and purposely hid in another hospital room. Based on these allegations, Defendant Loomis’ affirmative conduct of unshackling Salters for a substantial period of time provided Salters with the opportunity to grab his 9mm handgun and escape. Thus, unlike the facts in Buchanan-Moore, Salters was in custody when he escaped, whereas the perpetrator of the crimes in Buchanan-Moore had been released from custody and was on the Milwaukee streets when he committed the violent crimes at issue. See Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 825-26 (7th Cir. 2009). Also, that Defendant Loomis was indifferent to Jane Doe III’s
2. Proximate Cause
Next, Defendants contend that Plaintiffs have failed to adequately allege proximate cause. To plausibly allege proximate cause, Plaintiffs must set forth sufficiently detailed facts raising the inference that they were foreseeable victims of Defendant Loomis’ actions in a tort sense. See Buchanan-Moore, 570 F.3d at 828. Foreseeability depends on factors such as whether the danger is “familiar and specific” and if “the immediate threat of harm has a limited range and duration.” Reed v. Gardner, 986 F.2d 1122, 1127 (7th Cir. 1993). In addition, “[s]ome dangers are so evident, while their victims are so random, that state actors can be held accountable by any injured party.” Id. In short, proximate cause is a fact-specific inquiry, involving “consideration of time, geography, range of potential victims, and the nature of harm that occurred.” Buchanan-Moore, 570 F.3d at 829.
3. Shocks the Conscience
Further, Defendants assert that Plaintiffs have not adequately alleged that Defendant Loomis’ conduct “shocks the conscience.” The Supreme Court has held that state action shocks
Viewing the allegations as true and all reasonable inferences in Plaintiffs’ favor, Defendant Loomis had the opportunity for reasoned deliberation in deciding to unshackle Salters allowing him to move freely around the hospital room for a substantial period of time, despite the fact that Defendant Loomis knew Salters was a violent, convicted felon. Defendant Loomis’ conduct of losing control of Salters and then running and hiding after Salters grabbed his gun evinced deliberate indifference because Defendant Loomis consciously disregarded “known or obvious dangers.” Accordingly, Plaintiffs have sufficiently alleged that Defendant Loomis’ conduct “shocks the сonscience.” See Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief” is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”). Thus, the Jane Doe and Patient Plaintiffs have adequately alleged their substantive due process claims under the federal pleading standards.
B. Qualified Immunity
Defendants also argue that Correctional Officer Loomis is shielded by the affirmative defense of qualified immunity. “[O]fficers are entitled to qualified immunity under
As discussed directly above, Plaintiffs have adequately alleged that Defendant Loomis violated their constitutional rights, therefore, the Court turns to whether the unlawfulness of Defendant Loomis’ conduct was clearly established on May 13, 2017. When assessing the cleаrly established prong of qualified immunity “the inquiry is aimed at determining whether a reasonable person in the officer’s position would have understood his actions to be against the law at the time he acted.” Canen v. Chapman, 847 F.3d 407, 412 (7th Cir. 2017). To carry their burden, Plaintiffs must “show either a reasonably analogous case that has both articulated the right at issue and applied it to a factual circumstance similar to the one at hand or that the violation was so obvious that a reasonable person necessarily would have recognized it as a violation of the law.” Id. (quoting Chan v. Wodnicki, 123 F.3d 1005, 1008 (7th Cir. 1997)).
In general, “[i]t is clearly established that state actors who, without justification, increase a person’s risk of harm violate the Constitution.” Paine, 678 F.3d at 510; see also Regalado v. City of Chicago, 40 F. Supp. 2d 1009, 1016 (N.D. Ill. 1999) (“state-created-danger claims were recognized by our Court of Appeals for more than a decade before the 1991 incident” at issue). That being said, Defendants argue that “no controlling case would have told Loomis that he could not unshackle Salters so that Salters could use the bathroom.” (R. 38, Opening Brief, at
The Court thus turns to whether the law at the time of Defendant Loomis’ conduct was sufficiently clear such that a reasonable officer would understand that his actions were unlawful. See Wesby, 138 S. Ct. at 589. “In this circuit, a recognition of a claim based on a state-created danger precedes DeShaney, which was decided in 1989.” Monfils v. Taylor, 165 F.3d 511, 518 (7th Cir. 1998) (citing White v. Rochford, 592 F.2d 381, 382 (7th Cir. 1979)). Indeed, since 1979, the Seventh Circuit has concluded that the state-created exception applies when law enforcement officers encounter potential dangers and then turn them into actual ones – leaving the plaintiffs in a worse position than before the police acted. See White, 592 F.2d at 382 (police arrested driver for drag racing on Chicago Skyway leaving children passengers stranded alone in
Plaintiffs’ allegations and all reasonable inferences indicate that Defendant Loomis was aware of Salters’ violent propensities and the increased dangers to those nearby if Defendant Loomis lost control of Salters. Had Defendant Loomis not lost control of Salters, Jane Does I and II would not have been held hostage at gunpoint and brutalized and the other Plaintiffs would not have been terrorized by Salters wreaking havoc at the hospital causing a hostage situation and resultant police standoff. Based on White, Reed, Monfils, and Paine, the lаw at the time of Defendant Loomis’ alleged misconduct was sufficiently clear that a reasonable officer would understand that his actions were unlawful. The Court therefore denies Defendants’ motions to dismiss in this respect.
C. Loss of Consortium
In Counts II and VIII of the Second Amended Complaint, John Doe I and John Doe II bring constitutional loss of consortium claims based on the substantive due process violations alleged by Jane Doe I and Jane Doe II. Loss of consortium claims, however, are not recognized as constitutional deprivations under
II. Common Law Negligence Claims
Plaintiffs also bring common law negligence claims (and loss of consortium tort claims) against Defendants Apex3 Security and Delnor Community Hospital. To prove a negligence claim under Illinois law, “a plaintiff must establish the existence of a duty, the defendant’s breach of that duty, and that the breach proximately caused the plaintiff’s resulting injuries.” Roh v. Starbucks Corp., 881 F.3d 969, 973 (7th Cir. 2018); Smith v. United States, 860 F.3d 995, 998 (7th Cir. 2017). Here, the parties’ arguments focus on whether Apex3 Security owed Plaintiffs a duty to protect them from Salters’ criminal acts. “Whethеr a duty exists is a question of law to be determined by the court.” Dunn v. Menard, Inc., 880 F.3d 899, 906 (7th Cir. 2018). “It has long been established that under common law, ‘the universally accepted rule ... is that a private person has no duty to act affirmatively to protect another from criminal attack by a third person absent a ‘special relationship’ between the parties.’” Vesely v. Armslist LLC, 762 F.3d 661, 665 (7th Cir. 2014) (citation omitted). “Illinois recognizes four special relationships: (1) common-carrier passenger; (2) innkeeper and guest; (3) custodian and ward; and (4) business
The parties do not dispute that there was a “special relationship” between Salters as a pretrial detainee and the Kane County Sheriff’s Office as custodian pursuant to the Illinois County Jail Act. See
Any place to which the prisoners are so removed shall, during their imprisonment there, be deemed, as to such prisoners, a prison of the county in which they were originally confined; but, they shall be under the care, government and direction of the Warden of the jail of the county in which they are confined.
Relying on the County Jail Act, however, Defendant Apex3 Security argues that Salters was in the exclusive and sole custody of the Kane County Sheriff’s Office, and thus it had no duty to protect individuals on the hospital’s premises from Salters’ criminal conduct. Apex3 Security specifically asserts that “[p]rivate security contractors hired by hospitals have no duty to prevent inmates or pre-trial detainees from committing violent criminаl acts against others, in part, because those inmate patients are under the exclusive custody of their prospective county sheriff.” (R. 30, Opening Brief, at 4; R. 40, Opening Brief, at 5.) In support of this argument, Apex3 Security relies on an Illinois Appellate Court case decided in 1975. See St. Mary of Nazareth Hosp. v. City of Chicago, 29 Ill. App. 3d 511, 516 (1st Dist. 1975). In St. Mary of Nazareth, the Illinois Appellate Court relied on the County Jail Act, including Ill.Rev.Stat. Ch. 75, ¶ 117, when it concluded that the “Sheriff of Cook County was responsible for the custody” of a pretrial detainee and the detainee was in “the technical custody of him” in relation to a
Based on St. Mary of Nazareth, Apex3 Security argues that it “had no authority to control or direct either the Kane County Sheriff’s deputy or Salters.” (Opening Brief, at 5.) The Illinois Appellate Court in St. Mary of Nazareth, however, did not hold as such. In fact, the Court could not find any legal authority supporting Apex3 Security’s theory that only the County can be liable under the circumstances pursuant to the Illinois County Jail Act or otherwise. Apex3 Security’s argument that “[j]ust beсause an inmate like Salters is admitted to a hospital for emergency medical treatment, as required by federal and state law, does not mean that the hospital and its security staff voluntarily accepted or undertook any duty” is also untethered from any legal authority. The Court also notes that Apex3 Security is attempting to add facts to Plaintiffs’ allegations by stating it had no authority or control in relation to Salters despite Plaintiffs’ allegations to the contrary. See Smith v. Burge, 222 F.Supp.3d 669, 691 (N.D. Ill. 2016) (“defendant cannot, in presenting its 12(b)(6) challenge, attempt to refute the complaint or to present a different set of allegations”) (citation omitted).
Construing their well-pleaded allegations as true and all reasonable inferences in their favor, Plaintiffs allege that during the relevant time period, Defendant Delnor Community Hospital and Apex3 Security entered into a voluntary contract in which Apex3 Security would provide security and safety measures for those on the hospital’s premises, including staff, nurses,
Next, although the Patient Plaintiffs allege a negligence claim against Defendant Delnor Community Hospital in Count III of their First Amended Complaint, in their legal memoranda, they do not provide any explanation how or why the hospital had a legal duty to protect them in order to maintain their negligence claim against the hospital. To clarify, the Patient Plaintiffs joined the Doe Plaintiffs’ response brief to Apex3 Security’s motions to dismiss and the Doe Plaintiffs’ brief did not address whether Delnor Community Hospital had a legal duty to protect
For these reasons, the Court grants in part and denies in part Defendant Kane County’s Rule 12(b)(6) motion to dismiss Plaintiffs’ Second Amended Complaint in case number 17 C 3944. [dkt. 34]. The Court denies Defendant Kane County’s motion to dismiss Plaintiffs’ First Amended Complaint in case number 17 C 6331. [dkt. 25]. Also, the Court denies Defendants Loomis’ and Apex3Seсurity’s motions to dismiss in both cases. [17 C 6331, dkt. 29, 31; 17 C 3944, dkt. 37, 39]. Last, the Court grants Defendant Delnor Community Hospital’s motion to dismiss Count III of the First Amended Complaint in 17 C 6111. [dkt. 27].
Dated: April 11, 2018
ENTERED
__________________________
AMY J. ST. EVE
United States District Judge