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May 20, 1999


The opinion of the court was delivered by: Lindberg, District Judge.


Defendants Keith Cooper, Paul Lee, Christopher Marry, Jeffrey Patch, William Schriever, Nicholas Lamb and Christopher Campos ("state defendants"), and defendants Chuck James and Air Design Systems, Inc. (ADS), have each moved to dismiss Plaintiff Eutes White's second amended complaint. For the reasons set forth below, the court denies both motions.


Plaintiff, who remains in the custody of the Illinois Department of Corrections, brings this action against defendants pursuant to the United States Constitution and 42 U.S.C. § 1983, alleging that defendants' acts and omissions subjected him to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff also claims in his second amended complaint that ADS negligently caused plaintiff to be injured.

On March 19, 1996, while plaintiff was an inmate at the Joliet Correctional Center, a fire started in plaintiff's cell when plaintiff fell asleep while smoking a cigarette. The west cellhouse, where plaintiff was located at the time of the fire, was undergoing extensive renovation. The smoke evacuation system serving plaintiff's location was not operational and both of the smoke evacuation fans within the area had been removed. Nor were the fire alarm and smoke alarm systems functioning in the west cellhouse. Plaintiff alleges that although named defendant correctional officers Lamb, Lee, Patch and Campos knew of the fire while it was occurring, they failed to take any action to assist plaintiff for an unreasonably long period of time.

As a result of the fire, plaintiff sustained severe burns over a large part of his body and suffered from severe smoke inhalation. After his hospitalization for his injuries, plaintiff was transferred to the Menard prison for treatment of his mental illness. The Department of Corrections was aware that plaintiff was seriously mentally ill and posed a danger to himself. He had a long history of mental illness and was taking prescription psychotropic medication at the time the fire occurred. On October 4, 1996, the Menard Psychiatric Center reported plaintiff was on suicide watch, "was eating feces and urine" and was "sticking his head in the toilet and trying to flush it." Plaintiff's Exhibit C.

On July 5, 1996, plaintiff filed his original complaint, naming Warden Cooper and Lt. Douglas Read as defendants, along with an application to proceed in forma pauperis (IFP) in the district court of the Southern District of Illinois. On August 15, 1996, Judge Beatty, the assigned judge, transferred the case to the Northern District of Illinois.*fn1 Plaintiff filed his first motion for appointment of counsel on August 26, 1996. Plaintiff also filed a motion for documents from the Department of Corrections on September 17, 1996, and a request for a court order for medical records on October 31, 1996. In the motion for documents, plaintiff requested "all documents, medical reports, summarys, [sic] witnesses, statements, etc. based on the incident that took place on 3-19-96" (emphasis in original). He additionally stated that on that date, he was in his cell 30 or 45 minutes before any officials arrived and that when prison officials did arrive, they stood outside his cell for five minutes watching him scream to be let out of the cell.

The court granted the IFP application on February 10, 1997, but denied the two pending motions for appointment of counsel. On July 14, 1997, plaintiff filed a motion for leave to file an amended/supplemental complaint instanter and a response to defendants' pending motion to dismiss. He stated that he was asserting a claim of deliberate indifference to his health and safety needs in violation of the Eighth and Fourteenth Amendments and that he was not seeking to hold Warden Cooper liable under a theory of respondeat superior. He also alleged that Lt. Read had provided false reports and statements that resulted in a loss of plaintiff's good time credit.*fn2 In September 1997, the court granted this motion but denied the motions for documents as premature, indicating that plaintiff could renew these motions after the defendants answered or otherwise pled to the complaint. Plaintiff renewed his motion for appointment of counsel in April 1998 and twice in May 1998, and filed a motion for discovery on May 27, 1998. The court appointed counsel on October 7, 1998, denying plaintiff's discovery motions and indicating that his counsel could refile such motions as necessary. On December 2, 1998, the state defendants answered in part the written discovery requests that plaintiff's appointed counsel had served upon them.


When considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court does not test the merits of a plaintiff's complaint, but decides whether a plaintiff has properly stated a claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). At this stage, the court must view the complaint in the light most favorable to the plaintiff, accepting all well pleaded factual allegations as true. Wright & Miller, Federal Practice and Procedure: Civil 2d § 1363 at 460-461 (1990). When ruling on a 12(b)(6) motion, the court must draw all reasonable inferences in favor of the plaintiff. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996). No claim will be dismissed unless, "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). Nevertheless, the complaint must state direct or inferential allegations pertaining to each necessary element of the plaintiff's chosen legal theory. See Glatt v. Chicago Park Dist., 847 F. Supp. 101, 103 (N.D.Ill. 1994).


In support of their motions to dismiss, both state defendants and ADS argue that plaintiff's second amended complaint is barred by the statute of limitations. If it is apparent from plaintiff's complaint that his suit is barred by the statute of limitations, the court may dismiss plaintiff's action pursuant to rule 12(b)(6). Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir.). The text of § 1983 does not provide a federal statute of limitations. 42 U.S.C. § 1983 (1994). The Supreme Court has held that § 1983 civil rights actions are best characterized as personal injury suits and that courts should apply the personal injury statute of limitations of the state where the alleged violation occurred to all § 1983 claims. See Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Farrell v. McDonough, 966 F.2d 279, 280 (7th Cir. 1992). Thus, § 1983 claims arising in Illinois are governed by 735 ILCS 5/13-202, which provides for a personal injury limitations period of two years. See Farrell v. McDonough, 966 F.2d at 280; Kalimara v. Illinois Department of Corrections, 879 F.2d 276, 277 (7th Cir. 1989).

Plaintiffs claims arise out of his injuries that resulted from the fire in his cell on March 19, 1996, and therefore accrued on this date. See Hill v. Godinez, 955 F. Supp. at 950; Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992). The two-year statute of limitations therefore expired on March 19, 1998. Because plaintiff filed his second amended complaint more than two years after the date of accrual, the ...

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