IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DISTRICT

KENNETH ANNAN

 Plaintiff,

 v.

ROMEOVILLE POLICE OFFICER ROBERT 

ZABOROWSKI, ROMEOVILLE POLICE 

OFFICER JOHN ALLEN, ROMEOVILLE 

POLICE OFFICER CHRISTOPHER 

SWIATEK,

 Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

No. 12 C 3577

Judge Virginia M. Kendall

MEMORANDUM OPINION ORDER

Plaintiff Kenneth Annan filed a Third Amended Complaint (the “Complaint”) pursuant to 

42 U.S.C. § 1983 against Defendants Robert Zaborowski, John Allen, and Christopher Swiatek 

(collectively, the “Officers”) alleging that the Officers used excessive force in arresting him and 

were deliberately indifferent to his medical needs in violation of the Fourth Amendment of the 

Constitution. The Officers moved to dismiss Count II of Annan’s Complaint, the deliberate 

indifference to medical needs claim, pursuant to Federal Rule of Civil Procedure 12(b)(6) for 

failure to state a claim. For the reasons set forth below, the Officers’ motion is granted and Count 

II is dismissed with prejudice.1

 1 Annan subsequently filed a notice of voluntary dismissal with respect to Defendants Allen and Swiatek. 

See Doc. 66.
2

BACKGROUND

The following facts are taken from the Complaint and are assumed to be true for purposes 

of this Motion to Dismiss. See Voelker v. Porsche Cars North America, Inc., 353 F.3d 516, 520 

(7th Cir. 2003); Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). This lawsuit arises from an 

incident that occurred on May 8, 2010 when the Officers attempted to arrest Annan pursuant to a 

sworn criminal complaint for Theft of Services arising out of a dispute over payment for 

automobile “detailing” work. See Complaint at Doc. 58, ¶¶ 6-16. On May 9, 2012, Annan filed 

a complaint against the Village of Romeoville and the Officers alleging claims for False Arrest, 

False Detention, Excessive Force and Deliberate Indifference to Medical Needs claims. Doc. 1. 

The Complaint also set forth a claim for malicious prosecution against a separate private 

individual. He subsequently amended this complaint on October 9, 2012 to remove the 

malicious prosecution claim but still asserted the constitutional claims against the Village of

Romeoville and the Officers. Doc. 29. This Court dismissed those claims on February 25, 2013. 

See Doc. 46, the Court’s February 25, 2013 Memorandum Opinion and Order on the Motion to 

Dismiss the First Amended Complaint (the “Order”). The Court gave Annan leave to amend his 

excessive force and deliberate indifference to medical needs claims to attempt to add sufficient

factual detail to support those claims. Id. 

Annan filed his Third Amended Complaint, the operative complaint, on April 15, 2013. 

Doc. 58. The majority of the facts alleged in the Third Amended Complaint were previously 

described by this Court in its previous opinion and are incorporated herein by reference. See 

Order at Doc. 46 However, Annan also now alleges that he informed the Officers that he had 

recently suffered from and had been treated for a urinary tract infection so that the Officers 

would use caution in effecting his arrest. Doc. 58 at ¶ 15. Despite receiving this information, the 
3

Officers frisked Annan’s genital area roughly. Id. Annan did not attempt to resist the arrest in 

any way. Id. at ¶ 18. Not only did the Officers frisk Annan’s genital area when they executed 

the arrest but they frisked his genital area again when they booked him. Id. Annan sought 

medical treatment at Bolingbrook Hospital a day or two after the arrest. Id. In taking these 

actions, according to Annan, the Officers were deliberately indifferent to his medical needs. Id. 

at ¶¶ 20-26. The Officers have now moved to dismiss this claim. 

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 construe all reasonable inferences in favor of the plaintiff. See 

Murphy, 51 F.3d at 717. To state a claim upon which relief may 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, 120 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

555 (2007)). In analyzing whether a complaint meets 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 then determines if they 

plausibly give rise to an entitlement to relief. Id. 

DISCUSSION

I. The Deliberate Indifference to the Medical Needs Claim (Count II)

Annan’s Complaint fails to cure the deficiencies this Court previously identified with 

respect to his deliberate indifference to a serious medical need claim because the Complaint fails 

to identify the existence of a serious medical need. To adequately state this claim, Annan must 
4

allege the existence of a serious medical need and that the Defendants’ response to the need was 

objectively unreasonable. See Ortiz v. City of Chicago, 656 F.3d 523, 530-31 (7th Cir. 2011); 

Sides v. City of Champaign, 496 F.3d 820, 823 (7th Cir. 2007). The definition of a serious 

medical need is a condition that a physician has diagnosed as requiring treatment or a condition 

that is so obvious that a layperson would easily recognize the necessity for a doctor’s attention. 

See Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).2 

Nowhere in Annan’s complaint does he allege that he required medical treatment when 

the Officers arrested him. Nor does he describe any physical injuries he suffered as a result of 

Officer Zaborowski’s alleged conduct in frisking him. While he claims that he went to 

Bolingbrook Hospital for treatment “[a] day or two following [his] release from the [police] 

station” (Doc. 58 at ¶ 18), he does not allege that the Defendants were aware he was injured or 

required treatment because there is no allegation that he informed them that he needed treatment 

for an injury. See Sides, 496 F.3d at 823, 828 (holding that for a medical need claim to be

actionable, the defendants must have received notice of the plaintiff’s medical need). 

Accordingly, Annan has failed to allege the existence of a medical need or that the Defendants 

were objectively unreasonable in failing to care for his medical needs.

Instead, Annan merely recasts his adequately stated claim for excessive force as an 

additional claim for deliberate indifference to a medical need. Namely, he alleges that Defendant 

Zaborowski “manhandled” his groin where he had sensitivity due to a recent urinary tract 

infection. This “manhandling,” according to Annan, constitutes not only excessive force but also

deliberate indifference to his medical needs because he had a medical need not to have his groin

 2 The Court previously held that Annan’s claim would be analyzed under the Fourth Amendment’s 

objectively unreasonable standard because the alleged constitutional violations occurred before any 

probable cause hearing had been held. See Order at 9 (citing Lopez v. City of Chicago, 464 F.3d 711, 719 

(7th Cir. 2006)).
5

manhandled. However, a need to be free from manhandling is not a serious medical need. If it 

were, any claim for excessive force would also constitute an actionable deliberate indifference to 

medical need claim. This is not the case. See, e.g., Leander v. City of Rockford, No. 98 C 

50259, 2002 WL 31556526, at *1 (N.D. Ill. Nov. 18, 2002) (denying plaintiff’s attempt to recast 

excessive force claim as a medical need claim because “it is unnecessarily confusing to call what 

is really an excessive force claim something else.”). Since Annan has failed to allege an injury 

that required medical attention at the time of his arrest or that the Defendants were aware of any 

such injury, he has failed to state a claim for deliberate indifference to his medical needs.

II. Further Leave to Amend Is Futile

Federal Rule of Civil Procedure 15(a)(2) directs a district court to grant leave to amend a 

complaint “when justice so requires.” See also Indep. Trust Corp. v. Stewart Info. Servs. Corp., 

665 F.3d 930, 943 (7th Cir. 2012). In interpreting this, the Supreme Court and the Seventh 

Circuit have held that district courts should only refuse to grant leave where there is undue delay, 

bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants 

or where amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962); Hukic v. 

Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009). Where a court has previously given a 

party multiple opportunities to amend a complaint to fix deficiencies and the plaintiff fails to do 

so, further leave to amend may be denied based on futility. See, e.g., Butler v. East Lake Mgmt. 

Group, No. 10 C 6652, 2013 WL 2112032, at *4 (N.D. Ill. May 15, 2013) (dismissing complaint 

with prejudice because the Court gave plaintiff multiple opportunities to amend to correct 

deficiencies); Shailja Gandhi Revocable Trust (November 6, 2002) v. Sitara Capital 

Management, LLC, No. 09 C 3141, 2012 WL 3580680, at *10-11 (N.D. Ill. Aug. 14, 2012) 

(same); Eckardt v. Kouri, No. 11 C 1011, 2011 WL 4946505, at *3 (C.D. Ill. Oct. 18, 2011) 
6

(same). Annan has now had four attempts to state a medical needs claim. It is apparent that he 

cannot because his medical needs claim is nothing more than a recast of his excessive force 

claim. Accordingly, this claim is dismissed as futile.

CONCLUSION

For the reasons set forth above, the Officers’ motion is granted and Count II of Annan’s 

Complaint is dismissed with prejudice.

________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: July 16, 2013