UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 

NICHOLAS WINCHESTER,

Plaintiff,

v.

TERRY MARKETTI, et al., 

Defendants.

No. 11 CV 9224

Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiff Nicholas Winchester brings this suit under 42 U.S.C. § 1983 for alleged

constitutional deprivations and other injuries he suffered while incarcerated at Grundy County

Jail for nine months in 2010. Defendants move to dismiss several claims contained in the

complaint. For the following reasons, Defendants’ motion is granted in part and denied in part. 

I. BACKGROUND

A. The Parties

Plaintiff Nicholas Winchester is a 30-year-old male. He is a resident of Morris, Illinois.

Defendant County of Grundy is a county of the State of Illinois. It oversees the Grundy County

Sheriff’s Department, which runs the Grundy County Jail. Defendant Terry Marketti is the

Grundy County Sheriff and head of the Grundy County Jail. In this position, he promulgates

rules, regulations and policies concerning the medical care of inmates. Defendant Duane

McComas was the Superintendent of the Grundy County Jail during the relevant time period. 

Defendants Van Cleave, Walker, and Unknown Employees of Grundy County Jail were

employed as correctional officers at the Grundy County Jail during the relevant time period. 

These Defendants are hereinafter referred to collectively as the “Grundy County Defendants.”

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Defendant Correctional HealthCare Companies, Inc. (“CHC”) is a private correctional

healthcare company. Defendant Health Professionals, LTD. (“HPL”), a CHC subsidary, is a

private correctional healthcare company that was under contract to provide medical care at the

Grundy County Jail during the relevant time period. Defendant Dr. Stephen Cullinan is a 1

medical doctor who was employed by HPL during the time period in question. Defendant

Marjorie Clauson, RN, is a registered nurse who was employed by HPL during the time period in

question. Both Defendants Cullinan and Clauson provided evaluation, care and treatment for

inmates at the Grundy County Jail. These Defendants are hereinafter referred to collectively as

the “Medical Care Provider Defendants.”

B. Alleged Facts

The pertinent facts taken from the complaint are as follows. On March 4, 2010, police

officers from the City of Morris, Illinois beat Plaintiff severely during the course of an arrest. 

Plaintiff was taken to the hospital where he was treated for a brain hemorrhage and other injuries.

He was released from the hospital on March 12, 2010 and was immediately taken into custody by

police officers and brought to the Grundy County Jail. 

On the evening of March 15, 2010, Plaintiff was brought before a judge for his probable

cause hearing. The judge ordered Plaintiff detained pending trial. 

Defendants claim that HPL and CHC were distinct legal entities during the time period 1

in question and that CHC was not under contract to provide medical care at Grundy County Jail. 

To prove this assertion, Defendants attached a copy of the contract that existed between HPL and

Grundy County during the period in question, and an affidavit of Defendant Cullinan attesting to

the fact that HPL and CHC were distinct legal entities. Even if I can consider these documents

under Wright v. Associated Ins. Cos. Inc., 29 F.3d 1244 (7th Cir. 2008), I am not satisfied with

their probative force. I reserve judgment on this issue for a later stage. 

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Plaintiff was held as a pretrial detainee at the Grundy County Jail for nine months. 

During this period Plaintiff began suffering from seizures. He also suffered from anxiety attacks

and back pain. The complaint does not give a specific date when the seizures began, nor does it

state how many seizures Plaintiff suffered from. Plaintiff told Defendants of his need for antiseizure, anti-anxiety, and pain medication. Defendants also observed his physical symptoms. 

Despite being on notice of Plaintiff’s serious medical need, Defendants failed to provide

needed medical attention. The complaint states that Defendants “took no steps” to provide

Plaintiff with his medications (Compl. ¶ 33) and that he sometimes “went a week or more

without any medications.” (Compl. ¶ 34). Rather than give Plaintiff the medication he needed,

Defendant Clauson provided him with Benadryl, for which he had no need. Defendant Clauson

told Plaintiff that he would not be given his other medications unless he took the Benadryl. 

As a result of the deficient medical care Plaintiff suffered repeated seizures, anxiety

attacks and persistent back pain, which resulted in physical and emotional injuries.

On December 28, 2011, Plaintiff filed a seven-count complaint against Defendants. 

Counts one through four–denial of medical care, unreasonable detention, conspiracy, and failure

to intervene–are brought pursuant to 42 U.S.C. § 1983. Counts five through seven–intentional

infliction of emotional distress, respondeat superior, and a claim for indemnification–are state

law claims. Defendants move to dismiss all claims, with the apparent exception of the state law

claims against Defendant Clauson. 

II. ANALYSIS

A Motion to Dismiss under Rule 12(b)(6) requires that I analyze the legal sufficiency of

the complaint, and not the factual merits of the case. Autry v. Northwest Premium Servs., Inc.,

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144 F.3d 1037, 1039 (7th Cir.1998). I must take all facts alleged in Plaintiff’s complaint as true

and draw all reasonable inferences from those facts in favor of Plaintiff. Caldwell v. City of

Elwood, 959 F.2d 670, 671 (7th Cir.1992). Plaintiff, for its part, must do more than solely recite

the elements for a violation; it must plead with sufficient particularity so that its right to relief is

more than a mere conjecture. Bell Atl., Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff

must plead its facts so that, when accepted as true, they show the plausibility of its claim for

relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff must do more than plead facts that

are “consistent with Defendant’s liability” because that only shows the possibility, not the

plausibility, of their entitlement to relief. Id. (internal quotations omitted).

In applying Twombly and Iqbal, the Seventh Circuit has required the plaintiff to

“provid[e] some specific facts” to support the legal claims set out in the complaint. Brooks v.

Ross, 578 F.3d 574, 581 (7th Cir. 2009). “[T]he plaintiff must give enough details about the

subject matter of the case to present a story that holds together.” Swanson v. Citibank, N.A., 614

F.3d 400, 404 (7th Cir. 2010). The more complex the claim, the greater the level of factual

specificity required for the story to hold together. Id. at 405.

A. Minneci v. Pollard

Defendants first argue that the claims against the Medical Care Provider Defendants

should be dismissed in light of the Supreme Court’s recent decision in Minneci v. Pollard, 132

S.Ct. 617 (2012). In Minecci, the Supreme Court declined to extend Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971), to find an implied cause of action under the Eighth

Amendment against employees of a private company that operated a federal prison facility. The

Court refused to recognize the new Bivens claim “primarily because [the plaintiff/respondent]’s

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Eighth Amendment claim focuses upon a kind of conduct that typically falls within the scope of

traditional state tort law. And in the case of a privately employed defendant, state tort law

provides alternative, existing process capable of protecting the constitutional interests at stake.”

Id. at 623 (internal quotations omitted). 

Defendants argue that I should “extend” Minecci to block § 1983 actions against private

employees working in state prisons because, as with their federal counterparts, they are subject to

state tort law which provides an adequate remedial framework for injuries they may cause. This

argument fails. Minecci deals solely with the question of when the judicial branch should

recognize an implied cause of action under Bivens. It has absolutely no bearing on § 1983 cases,

where Congress has already created a cause of action. 

The Supreme Court has long recognized that private physicians and nurses who contract

with the state to provide medical care to prisoners act “under color of law” for purposes of §

1983. West v. Atkins, 487 U.S. 42 (1988). Defendants’ attempt to distinguish this case from

West based on different contractual terms regarding liability and indemnification is unavailing:

“[i]t is the physician’s function within the state system, not the precise terms of his employment,

that determines whether his actions can fairly be attributed to the State.” Id. at 55-56. And if the

Supreme Court somehow intended a case about whether to recognize a new Bivens action to

overturn a long line of established law on who may be a § 1983 defendant, as Defendants argue,

it would need to say so explicitly (and provide considerable explanation). 

B. Monell Claims

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Defendants next argue that Plaintiff has not pled sufficient facts to get its Monell claims

over the Iqbal plausibility bar. A municipality or other local government may be liable under §

1983 when “action pursuant to official municipal policy” causes the constitutional deprivation. 

Monell v. New York Dept. of Social Servs., 436 U.S. 658, 692 (1978). “Official municipal policy

includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and

practices so persistent and widespread as to practically have the force of law.” Connick v.

Thompson, 131 S.Ct. 1350, 1359 (2011). 

By my reading of the Complaint, Plaintiff seeks to establish Monell liability for

Defendants CHC, HPL, and Grundy County based exclusively on a failure to train/discipline

theory (Compl. ¶¶ 50, 52). “In limited circumstances, a local government’s decision not to train

certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of

an official government policy for purposes of § 1983.” Connick, 131 S.Ct. at 1359. However,

“[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim

turns on a failure to train.” Id. To satisfy the statute, a municipality’s failure to train its

employees in a relevant respect must amount to “deliberate indifference to the rights of persons

with who the [untrained employees] come into contact.” City of Canton v. Harris, 489 U.S. 378,

388 (1989). “Deliberate indifference is a stringent standard of fault, requiring proof that a

municipal actor disregarded a known or obvious consequence of his action.” Connick, 131 S.Ct.

at 1360 (internal citation omitted). 

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To demonstrate deliberate indifference in the failure to train context, a plaintiff typically

must prove a pattern of similar constitutional violations by untrained employees. Id. at 1360.2

This pattern, or recurring string of related unconstitutional conduct, is necessary because it

establishes that policymakers knew or should have known that their employees’ training was

deficient. When decisionmakers adhere to training programs that they know to be inadequate,

they consciously disregard the consequences of their actions and can be fairly said to be a moving

cause of the constitutional violations proximately carried out by their employees. Id. Anything

short of this conscious disregard, however, strays into respondeat superior territory, which is not

recognized under § 1983. 

The precise pleading requirements for failure to train claims in the post-Iqbal world are

not entirely clear. On the one hand, failure to train claims are clearly not subject to a heightened

pleading standard over and above Rule 8. Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit, 507 U.S. 163 (1993). On the other hand, given its “nebulous” nature,

Oklahoma City v. Tuttle, 471 U.S. 808, 822 (1985), it would seem that a relatively high level of

factual specificity is required at the pleading stage to make a failure to train claim facially

plausible. See Swanson 614 F.3d at 405. (“A more complex case . . . will require more detail,

both to give the opposing party notice of what the case is all about and to show how, in the

plaintiff’s mind at least, the dots should be connected.”).

The instant Complaint is sorely lacking in factual specificity. No details are given as to

when Plaintiff began suffering seizures, how many seizures he suffered, how long the seizures

In rare cases, a violation of federal rights may be so obviously foreseeable that a single 2

occurrence, coupled with the appertaining showing of failure to train, suffices to establish

deliberate indifference. Canton, 489 U.S. at 390, n. 10. This is not one of those cases. 

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lasted, when he notified Defendants of his condition, or whether any Defendants actually

observed him having a seizure. Nevertheless, as discussed in greater detail below, I am allowing

most of the individual claims through. What is fatal to the Monell claims, however, is that

Plaintiff makes no attempt to plead a pattern of similar constitutional violations with any degree

of factual specificity. We are told only that “[i]t is common to observe detainees in Grundy

County Jail with clear symptoms of serious medical illness, injury, or conditions who frequently

ask for medical care or to see a doctor, whose requests are routinely delayed or completely

ignored.” (Compl. ¶ 48). We are then given a list of “specifics”, which is really nothing more

than the general allegation contained in the previous paragraph restated four different ways. 

(Compl. ¶ 49). 

I cannot say precisely where the facial plausibility line should be drawn for post-Iqbal

failure to train claims. But I can say with a fairly high degree of certainty–particularly in light of

the Supreme Court’s recent ruling in Connick, emphasizing the “tenuous” nature of failure to

train liability and the need to demonstrate a pattern of recurring constitutional violations–that this

complaint falls short of that line. 131 S.Ct. 1350. The claims against Grundy County, CHC and 3

HPL are dismissed without prejudice. Plaintiff may replead against these Defendants in a more

fact-specific manner. Of particular importance, Plaintiff must give more details concerning other

similar constitutional violations that have occurred at the Grundy County Jail such that

To be clear, Connick is not about pleading standards. However, the opinion makes clear 3

that the Supreme Court considers a failure to train claim to be among the most difficult theories

for a § 1983 Plaintiff to prevail under because of its factual complexity. If Iqbal plausibility

operates as a sliding scale based on the inherent complexity of a claim, as the Seventh Circuit has

suggested it does, see Swanson 614 F.3d at 405; Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir.

2009) (“[t]he height of the pleading requirement is relative to circumstances), then failure to train

claims demand a relatively high level of factual specificity at the pleading stage. 

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Defendants’ deliberate indifference to the consequences of a failed training program can be

plausibly inferred. 

C. Conspiracy

Defendants argue that Count III, § 1983 conspiracy, should be dismissed against all

Defendants for failure to state a claim under Iqbal’s plausibility standard. In Cooney v. Rossiter,

583 F.3d 967 (7th Cir. 2009), Judge Posner explained that even before Iqbal, conspiracy

allegations were held to a higher pleading standard and that “mere suspicion that persons adverse

to the plaintiff had joined a conspiracy against him or her was not enough.” Id. at 971. PostIqbal, Judge Posner explained, “the height of the pleading requirement is relative to

circumstances.” Where a “vast, encompassing conspiracy” is alleged, “the plaintiff must meet a

high standard of plausibility.” Id. at 971.

Here, Plaintiff alleges a conspiracy between the Grundy County Defendants and the

Medical Care Provider Defendants to “deprive Plaintiff of his constitutional rights and to protect

one another from liability.” However, the complaint does not contain a single fact to support the

conspiracy claim–not even of the loose “on information and belief” type. Instead the conspiracy

claim is tacked on at the end almost as an afterthought. This vague and conclusory pleading

would probably not have survived pre-Iqbal; it certainly fails now. Id. 

The conspiracy claims is dismissed without prejudice as to all Defendants.

D. Remaining Claims

1. Denial of Medical Care

Defendants claim that Plaintiff has failed to state a plausible claim for denial of medical

care. For Plaintiff’s claim to survive, he must allege that he (1) “suffered an objectively serious

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harm that presented a substantial risk to his safety, and (2) the defendants were deliberately

indifferent to that risk.” Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010). Plaintiff has

4

adequately pled both.

Unmedicated epilepsy is an objectively serious medical condition that poses a substantial

risk to the epileptic’s safety. Hudson v. McHugh, 148 F.3d 859, 863 (7th Cir. 1998). As to

deliberate indifference, the complaint alleges that Defendants (1) knew that Plaintiff was

suffering from seizure because he told them as much and they had occasion to observe his

physical symptoms; (2) knew he was not being treated properly because he told them he was not

regularly receiving anti-seizure medication and the seizures continued; and (3) did nothing about

it. 

The facts contained in the complaint support a plausible inference of denial of medical

care as to 1) Grundy County Defendants Van Cleave, Walker and Unknown Employees; and 2)

Dr. Cullinan and Nurse Clauson. These are the defendants who had daily interaction with

Plaintiff, or were directly responsible for his medical care. The complaint specifically alleges

that Plaintiff repeatedly told Defendants Van Cleave and Walker that he needed to see a doctor

The deliberate indifference standard applies to the denial of medical care claim brought 4

under the Eighth and Fourteenth Amendments. Rosario v. Brown, 2012 WL 661679, at *4 (7th

Cir. Mar. 1, 2012). Insofar as Plaintiff has a claim under the Fourth Amendment, the question is

whether Defendants’ response to Plaintiff’s medical needs was objectively unreasonable. Ortiz v.

City of Chicago, 656 F.3d 523, 530 (7th Cir. 2011). I agree with Plaintiff that it is premature to

determine whether Count I arises under the Fourth, Eighth or Fourteenth Amendment. It appears

that most of the alleged injuries occurred after Plaintiff’s probable cause hearing and before his

conviction, which would mean the Fourteenth Amendment applies. Id. However, it is possible

that a claim for denial of medical care arose under the Fourth Amendment during the few days

before the probable cause hearing, or possibly under the Eight Amendment if, after conviction,

Plaintiff remained in the Grundy County Jail for any period of time. Id. None of these

possibilities are well pled in the complaint but, given the negligible added discovery burden, I

prefer to allow Plaintiff to proceed under all theories at this point. 

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but his requests were ignored. (Compl. ¶ 35). It also states that Defendant Clauson routinely

provided Plaintiff with blatantly inappropriate treatment and ignored his requests for anti-seizure

medication. (Compl. ¶¶ 36-37). Although no specific facts are alleged as to Defendant

Cullinan’s knowledge of Plaintiff’s condition, as the person in charge of Plaintiff’s medical

care–including his prescription regime–we may plausibly infer his knowledge at this stage. 

The complaint does not, however, contain adequate facts to sustain the denial of medical

care claim as to Defendants Marketti and McComas. Aside from the bare assertion that “Plaintiff

told the Grundy County Defendants and the Medical Care Provider Defendants that he needed his

medications” (Compl. ¶ 31), there are no well-pled facts to show that Defendants Marketti and

McComas had actual knowledge of Plaintiff’s condition. Given the relative complexity of denial

of medical care claims, Plaintiff needs to put forth some specific facts pointing to these

Defendants’ knowledge of his condition in order to nudge his claim “across the line from

conceivable to plausible.” Twombly, 550 U.S. at 547. Count I is dismissed without prejudice as

to Defendants Marketti and McComas. 

5

2. Intentional Infliction of Emotional Distress

I apply the same basic reasoning as above to sustain the IIED claims against Defendants

Van Cleave, Walker, Unknown Grundy County Employees, Dr. Cullinan and Nurse Clauson, and

It seems unlikely that Plaintiff directly told Defendants Marketti and McComas about his 5

medical problems. If in fact he did, it should not be difficult to provide some factual detail about

the circumstances. If he did not, Plaintiff should allege facts to show another plausible avenue

through which Marketti and McComas would have gained this knowledge (i.e. they were

routinely on the line observing inmates in their cells, they consistently received inmate health

reports from the Medical Care Provider Defendants, the inmate population is so low that it is

implausible they could not have known, etc). It does not take much, but there has got to be

something concrete to go on before forcing Defendants into discovery. See Cooney, 583 F.3d at

971.

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dismiss without prejudice as to Defendants Marketti and McComas. I agree with Plaintiff that

the facts here fit into the “different case” scenario envisioned by the Seventh Circuit in Sanglap

v. LaSalle Bank, FSB, 345 F.3d 515, 519 (7th Cir. 2003), but I am not satisfied with the

allegations surrounding Defendant Marketti and McComas’ predicate knowledge of Plaintiff’s

condition.

3. Failure to Intervene

Defendants argue that I should dismiss the failure to intervene claim because, as to

Defendants Cullinan and Clauson, it is duplicative of the failure to provide medical care claim,

and, as to the Grundy Defendants, there is no case law holding that prison guards have a duty to

intervene against the actions of medical personnel. I am unpersuaded by both arguments. While

it is true that failure to provide medical care and failure to intervene are essentially claims of

failure to perform a duty required by law, they stem from different duties. Failure to provide

medical care stems from the defendant’s own personal responsibility to provide care directly to

persons. Failure to intervene stems from the defendant’s duty to protect persons against the

conduct of other. The two may overlap, but they are not commensurate.

For example, Defendant Clauson could, hypothetically, be held liable under a failure to

intervene theory but not under a failure to provide adequate medical care theory if she had reason

to know that, as a result of his deliberate indifference, Dr. Cullinan had failed to prescribe

Plaintiff anti-seizure medication and did nothing to remedy the situation. Nurse Clauson could

not prescribe the medication herself so it would be difficult to reach her under a failure to provide

medical care claim. However, if she had reason to know that the anti-seizure medication was

necessary to prevent harm to Plaintiff, and she had the opportunity to prevent the harm–either by

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confronting Dr. Cullinan or reporting him to a superior–she could be held liable under a failure to

intervene claim. 

As to whether the Grundy Defendants had a duty to intervene against Defendants

Cullinan and Clauson, Defendants point to no persuasive authority to support their argument that

law enforcement should be categorically excused from the duty to intervene against the provision

of constitutionally inadequate medical care by doctors and nurses. Failure to intervene liability is

not limited to the context of excessive force cases or to employees within the same governmental

entity. Windle v. City of Marion, 321 F.3d 658, 663 (7th Cir. 2003). On the other hand, it is “not

so broad as to place a responsibility on every government employee to intervene in the acts of all

other government employees.” Id. Rather, there must be some particular connection or

relationship between the government employees or entities such that the duty to intervene arises.

Here, where the Grundy County Defendants and the Medical Care Provider Defendants

both worked onsite at the jail and shared the same general responsibility of providing for the

inmates’ safety, an adequate relationship exists and the duty arises. Of course, it may be

relatively difficult for Plaintiff to show that the Grundy County Defendants breached their duty.

In the context of failure to provide medical care, the third party harm may be more difficult to

detect than in an excessive force case, or they may have acted reasonably in deferring to the

medical judgment of Dr. Cullinan and Nurse Clauson. But these are fact issues to be settled at a

later stage. The claim itself is appropriately brought. 

As to whether Plaintiff has satisfied Rule 8, I incorporate the same reasoning as above to

allow the failure to intervene claim to go forward against Defendants Van Cleave, Walker,

Unknown Grundy County Employees, Dr. Cullinan and Nurse Clauson, and dismiss without

prejudice as to Defendants Marketti and McComas.

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4. Unreasonable Detention

Counts II stands against the individual defendants and is dismissed against Grundy

County for the same inadequate Monell pleading reasons described above. 

5. Counts VI and VII

Counts VI and VII stand insofar as is consistent with the rest of this ruling. 

III. CONCLUSION

For the foregoing reasons, the motions to dismiss are GRANTED as to Count I against

Grundy County, CHC, HPL, Marketti and McComas; Count II against Grundy County; Count III

in its entirety; Count IV against Grundy County, CHC, HPL, Marketti and McComas; and Count

V against Marketti and McComas. All other motions to dismiss or for judgment on the pleadings

are DENIED. 

ENTER:

James B. Zagel

United States District Judge

DATE: June 8, 2012

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