Edward Johnson v. Cook County , 526 F. App'x 692 ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 1, 2013
Decided May 15, 2013
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12-2431
EDWARD JOHNSON, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern District
of Illinois, Eastern Division.
v.
No. 1:11-cv-03203
COOK COUNTY and
ALPHONSO HILL, Robert W. Gettleman,
Defendants-Appellees. Judge.
ORDER
Edward Johnson was sexually assaulted by Alphonso Hill, a Cook County, Illinois
employee, while detained as an inmate at the Cook County Jail. He brought suit against Hill,
individually, and Cook County, Illinois, alleging Fourth Amendment, Due Process, and Monell
No. 12-2431 Page 2
custom or policy claims, see Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978),
pursuant to 42 U.S.C. § 1983, as well as various Illinois state-law claims. Cook County filed
a Rule 12(b)(6) motion to dismiss Johnson’s amended complaint, which the district court
granted. Johnson sought leave to file his second and third amended complaints, but the
district court denied his requests and entered judgment in favor of Cook County pursuant to
Federal Rule of Civil Procedure 54(b). Johnson contends that the district court erred in
dismissing his amended complaint, and, in the alternative, that he should have been granted
leave to amend. Hill is not a party to this appeal. Finding no errors, we affirm the dismissal
of Johnson’s suit against Cook County.
The facts provided are taken from Johnson’s second and third amended complaints,
unless otherwise specified, and are considered true for purposes of this appeal. See Palka v.
Shelton, 623 F.3d 447, 451-52 (7th Cir. 2010). Johnson was a detainee at the Cook County Jail.
Hill was a medical technician employed by Cermak Health Services and Cook County at the
Cook County Jail. On May 13, 2010, Hill summoned Johnson to the Cermak Health Services
dispensary in Division II of the jail for a routine monitoring of Johnson’s blood sugar level.
While Johnson and Hill were alone together, Hill ordered Johnson to submit to a
prostate exam. Hill conducted the examination and then sexually assaulted Johnson. Johnson
reported the assault, and Hill was indicted on various criminal counts related to the assault.
Johnson filed suit in federal court against Hill, individually, and Cook County, Illinois, on
May 13, 2011. He filed an amended complaint a month later on June 13. The amended
complaint included seven counts, with Counts III through VII against Cook County. Count
III was a Monell claim, in which Johnson alleged a failure to properly supervise detainees.
Counts IV through VII were pursuant to a theory of respondeat superior under Illinois law and
included intentional infliction of emotion distress (Count IV); assault and battery (Count V);
indemnification pursuant to 745 Ill. Comp. Stat. 10/2-302 (Count VI), and a general, catch-all
respondeat superior claim (Count VII). Attached to the amended complaint was a 2008 letter
from the Department of Justice to then-Cook County Board President Todd H. Stroger and
Cook County Sheriff Thomas Dart, as well as the Agreed Order in United States v. Cook County,
et al., in Case No. 10 C 2946, which the parties entered into on May 26, 2010. The 2008 letter
was ninety-seven pages long and discussed certain conditions at the Cook County Jail that
seemingly violated the constitutional rights of inmates. The Agreed Order was a means by
which the parties were to rectify documented constitutional rights violations of the Cook
County Jail inmates.
No. 12-2431 Page 3
Cook County filed a Rule 12(b)(6) motion to dismiss the amended complaint, which the
district court granted on November 29, 2011, dismissing all claims against Cook County. The
court held that the Monell claim was insufficiently pleaded because Johnson failed to allege the
required causation element—that Cook County’s conduct was the “moving force” behind the
injury complained of, see Bd. of the Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997).
The court held alternatively that the Monell claim failed because it “allege[d] only a single
instance of wrongdoing, but [did] not fall within the ‘narrow range of circumstances’ where
the Supreme Court has allowed a ‘single-incident’ theory of Monell [to] be sufficient.” The
court held that Counts IV through VII were insufficiently pleaded because Illinois
law precludes an employer from being held liable under a theory of respondeat superior when
an employee commits an act of sexual assault.
Johnson sought leave to file a second amended complaint. In an attempt to rectify the
deficiencies of the Monell claim in his amended complaint, Johnson incorporated the Agreed
Order into the complaint, claiming that “Cook County policymakers were aware of the
widespread practice at Cook County Jail of failing to provide constitutionally adequate
supervision to detainees but failed to take timely remedial action.” With respect to the
respondeat superior state-law claims, Johnson additionally alleged that Hill had “apparent
authority to act as a medical technician and perform a prostate exam” and “actual authority
to attack inmates and encouragement from Defendant Cook County[.]”
Johnson’s request was denied in an order dated April 3, 2012. The district court again
concluded that Johnson’s Monell claim failed because he could not demonstrate that Cook
County’s failure to supervise was the “moving force” behind the sexual assault, even if it could
be considered a “partial cause.” The court also concluded that Johnson’s respondeat superior
claims failed because, despite Hill’s “novel legal interpretations” of actual and apparent
authority, Illinois caselaw was clear that sexual assault is never within the scope of one’s
employment, so respondeat superior is inapplicable.
Johnson sought leave to file a third amended complaint, which did not include any state-
law claims; the district court denied that request on May 17, 2012. This appeal followed.
We review de novo the dismissal of a complaint pursuant to a Rule 12(b)(6) motion,
construing all allegations in the light most favorable to Johnson, accepting all well-pleaded
facts as true, and drawing all reasonable inferences in favor of Johnson. See Mann v. Vogel, 707
No. 12-2431 Page 4
F.3d 872, 877 (7th Cir. 2013). In doing so, we consider “the complaint itself, documents
attached to the complaint, documents that are critical to the complaint and referred to in it, and
information that is subject to proper judicial notice.” Geinosky v. City of Chi., 675 F.3d 743, 745
n.1 (7th Cir. 2012).
We first look to see whether Johnson adequately pleaded a Section 1983 cause of action
under Monell. See Monell, 436 U.S. at 690. A municipality, such as Cook County, may be liable
for a Section 1983 violation: “(1) through an express policy that, when enforced, causes a
constitutional deprivation; (2) through a ‘wide-spread practice’ that although not authorized
by written law and express policy, is so permanent and well-settled as to constitute a ‘custom
or usage’ with the force of law; or (3) through an allegation that the constitutional injury was
caused by a person with ‘final decision policymaking authority.’” Calhoun v. Ramsey, 408 F.3d
375, 379 (7th Cir. 2005) (citing McTigue v. City of Chi., 60 F.3d 381, 382 (7th Cir. 1995)).
Johnson alleges that Cook County committed three violations under the “widespread
policy or practice” prong by:
(1) Fostering an atmosphere and creating a serious risk of sexual assault to
detainees at the Cook County Jail through a widespread practice of allowing
medical personnel to be alone with persons in custody;
(2) Knowingly failing to ensure that the jail was adequately staffed to provide
the supervision over those in custody to prevent the risk to those in custody,
in violation of accepted practices, court orders, and administrative
procedures, despite knowing that such understaffing greatly increases the
chances that detainees will be subject to brutality and sexual violence; and
(3) Encouraging the suppression of complaints of misconduct to cover up
inadequacies in the supervision and treatment of detainees, thus
maintaining an atmosphere and climate where inmates are subjected to an
unreasonable risk of violence and sexual violence.
The district court concluded that Johnson failed to allege the causation element of a
Monell claim, and we agree. Even taking into consideration the Agreed Order from Case
No. 10 C 2946, Johnson must demonstrate that the “deliberate action attributable to the
No. 12-2431 Page 5
municipality itself is the ‘moving force’” behind the deprivation of his constitutional rights.
Bryan Cnty., 520 U.S. at 399 (citing Monell, 436 U.S. at 694). Johnson claims that the Agreed
Order essentially proves that “supervision at the jail was a casual factor in the death and
abuse of dozens of residents,” but even if that were to some extent true, we simply do not see
how the allegations can be considered the “moving force” behind the sexual assault that
occurred here.
Looking to the first allegation, federal common law does not historically recognize a
privilege between patients and physicians, but many states do. Compare Nw. Mem’l Hosp. v.
Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004) (noting that there is no federal common law
physician-patient privilege), with People v. Manos, 782 N.E.2d 237, 240-43, 245 (Ill. 2002) (“The
primary purpose of the physician-patient privilege is to encourage free disclosure between a
doctor and a patient and to protect the patient from embarrassment and invasion of privacy
that disclosure would entail.”). Patients can expect to be alone with medical personnel at
some point in time during examinations, though we express no opinion here as to the
proper overall medical procedures in a jail. Nevertheless, the fact that two individuals might
be alone, as Johnson alleges happened here, does not provide the moving force, or catalyst, for
a sexual assault to occur—two people can be alone in many situations and contexts without
a sexual assault occurring. If we agreed with Johnson’s contention, any time a municipality
allowed a prisoner to be alone with anyone, that would create an automatic ground for a
constitutional violation claim if inappropriate conduct occurred. We decline to establish such
a benchmark. Hill and Johnson being alone in a room together might have been a contributing
factor to the sexual assault, but it is not enough to show that a widespread practice or policy
was a factor in the constitutional violation; it must have been the moving force. Estate of Sims v.
Cnty. of Bureau, 506 F.3d 509, 514 (7th Cir. 2007); see LaMarca v. Turner, 995 F.2d 1526, 1538 (10th
Cir. 1993) (stating that “our inquiry [is] whether an official’s acts or omissions were the
cause—not merely a contributing factor”). Accordingly, we do not believe that Cook County’s
alleged practice of allowing medical personnel—medical technicians or licensed
physicians—to be alone with inmates for medical procedures was the moving force behind
turning a routine medical procedure into a constitutional violation.
The second allegation, which is similar to the first, albeit phrased differently, fails for the
same reason. Johnson says “[i]t is patently obvious that understaffing the jail would lead to
increased abuse,” and it is true that the Agreed Order discussed a lack of supervision as being
a cause of prisoner abuse at the jail, but the abuse discussed in the order relates to the use of
No. 12-2431 Page 6
force by security personnel, inmate on inmate attacks, a lack of adequate health services and
medical care, and inadequate sanitation and environmental conditions. The sexual assault that
occurred here is outside the realm of the types of abuse discussed. Johnson contends that
“[p]eople who had no training or expertise were performing complex procedures and technical
assessments,” but the lack of oversight would be the direct cause, or moving force, of
inadequate medical care—not a sexual assault. Again, we do not believe that the lack of
supervision in this particular case can be considered the moving force behind the sexual
assault. See Parrish v. Ball, 594 F.3d 993, 1000 (8th Cir. 2010) (concluding that the county
employee’s intentional sexual assault of the plaintiff at the jail “was too remote a consequence
of such a failure [to train] to meet the rigorous causation standard [under Monell] necessary
to hold the county liable.”).
Nor can Johnson establish a constitutional violation under the third allegation. Even if
Cook County had a history of suppressing complaints—which it vigorously contests—that
cannot be the moving force behind the sexual assault that occurred here. The link between the
cause alleged and the harm that occurred is much too attenuated. See Wolf-Lillie v. Sonquist,
699 F.2d 864, 869 (7th Cir. 1983) (stating that there must be “a causal connection, or affirmative
link” between the conduct complained of and the party sued).
We are not convinced that any set of facts could support Johnson’s allegation that Hill
sexually assaulted Johnson as a direct result of a “widespread custom or policy.” Nor could
inadequate investigations of his complaints after the sexual assault have caused the
constitutional violation alleged. See Vukadinovich v. McCarthy, 901 F.2d 1439, 1444 (7th Cir.
1990) (“It must be proven that the deficiency in the investigation actually caused the [state
actor’s] conduct.”).
Alternatively, Johnson contends that Cook County is liable under the single-incident theory
because the sexual assault was a “highly predictable consequence” of a governmental policy.
See Connick v. Thompson, ___ U.S. ___, 131 S. Ct. 1350, 1360-61 (2011) (explaining that, “‘in a
narrow range of circumstances,’ a pattern of indifference might not be necessary to show
deliberate indifference.’” (quoting Bryan Cnty., 520 U.S. at 409)). However, we do not think the
risk of sexual assault from any policy alleged here is the same as a city arming its police force
with firearms and deploying the armed officers into the public to capture fleeing felons
without training the officers in the constitutional limitation on the use of deadly force. Cf. City
No. 12-2431 Page 7
of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989). Nothing about the risk of sexual assault here
was “patently obvious” or “predictable.” See Connick, 131 S. Ct. at 1361.
In short, the district court properly dismissed Johnson’s Section 1983 Monell claims
against Cook County.
We move to the sufficiency of Johnson’s Illinois state-law claims premised under the
respondeat superior theory of liability. Under respondeat superior, an employer may be held
liable for the “negligent, willful, malicious or even criminal acts of its employees, when those
acts are committed within the scope of [the employee’s] employment.” Adames v. Sheahan, 909
N.E.2d 742, 755 (Ill. 2009). Illinois law requires three factors to be satisfied for the doctrine to
apply: (1) the conduct is of the kind the employee is employed to perform; (2) the conduct
occurs substantially within the authorized time and space limits; and (3) the conduct is
actuated, at least in part, by a purpose to serve the employer. Id.; see Doe v. City of Chi., 360
F.3d 667, 670 (7th Cir. 2004).
Johnson contends all three factors are satisfied, but Illinois courts have explicitly declared,
“[S]exual assault by its very nature precludes a conclusion that it occurred within the
employee’s scope of employment under the doctrine of respondeat superior.” Doe v. Lawrence
Hall Youth Servs., 966 N.E.2d 52, 62 (Ill. App. Ct. 1st Dist. 2012) (citing Stern v. Ritz Carlton Chi.,
702 N.E.2d 194, 198 (Ill. App. Ct. 1st Dist. 1998); Deloney v. Bd. of Educ., 666 N.E.2d 792, 798 n.5
(Ill. App. Ct. 1st Dist. 1996)). We are mindful of Johnson’s distinction between the facts of this
case and the other cases in Illinois that have dealt with sexual assault and respondeat superior,
as well as his reliance on Mary M. v. City of Los Angeles, 814 P.2d 1341, 1347-52 (Cal. 1991)
(holding that the city could be liable under respondeat superior for a police officer who
committed a sexual assault while on duty in California), and West v. Waymire, 114 F.3d 646, 649
(7th Cir. 1997) (interpreting Indiana law as allowing for respondeat superior to be employed
in a case involving a police officer’s sexual assault of a child). But as we stated in Holtz v. J.J.B
Hilliard W.L. Lyons, Inc., 185 F.3d 732, 750 (7th Cir. 1999), “As a federal court, we are reluctant
to expand the law of a state in a manner that, while perhaps logical, is not clearly in line with
the state’s existing thinking on the subject.” (emphasis added). Johnson’s counsel conceded
at oral argument that we would be the first court interpreting Illinois law to extend the
doctrine of respondeat superior to a sexual assault claim. We decline to do so.
No. 12-2431 Page 8
We briefly note that Johnson’s arguments regarding Hill’s “actual” and “apparent”
authority under Illinois law are completely inapplicable to this case, as the cases he cites in
support address whether an independent contractor can be considered an employee of an
employer for purposes of tort liability. See Petrovich v. Share Health Plan of Ill., Inc., 719 N.E.2d
756, 765-66 (Ill. 1999) (discussing whether a health maintenance organization (HMO) could be
held liable for a physician’s negligence even though the physician was an independent
contractor). There is no debate here as to whether Hill was employed by Cook County. No
further discussion on the issue is necessary.
In accordance with established Illinois precedent, we hold that the district court properly
dismissed Johnson’s Illinois state-law claims against Cook County.
Finally, with respect to Johnson’s claim that the district court should have permitted him
to amend his complaint, we believe the district court did not abuse its discretion. As our
discussion above demonstrates, Johnson is unable to cure the deficiencies in his complaints,
so any additional attempt would be “futile.” See Barry Aviation, Inc. v. Land O’Lakes Mun.
Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004) (explaining that a district court does not abuse
its discretion when it denies leave to amend if “it is certain from the face of the complaint that
any amendment would be futile”).
AFFIRMED.