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QUALLS v. NIU

United States District Court, N.D. Illinois


February 4, 2004.

QUALLS
v.
NIU

The opinion of the court was delivered by: PHILIP REINHARD, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Carl E. Quails, pro se, sues the Board of Trustees of Northern Illinois University, and numerous other individual defendants, including George Shur, in a fifth amended complaint, alleging violations of 42 U.S.C. § 1983 and 2000d, as well as some state law claims. Jurisdiction is proper under 28 U.S.C. § 1331, 1343(a)(3), and 1367. The federal claims against Shur are brought under § 1983. Shur moves to dismiss the claims against him pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim asserting that the statute of limitations bars any action against him.

Shur was the university's general counsel until his retirement in December 2002. (Compl. ¶ 14) He is alleged to have violated plaintiff's fourteenth amendment substantive due process rights (Count II), retaliated against plaintiff for exercising his first amendment rights (Count III), intentionally inflicted emotional distress on and been grossly negligent to plaintiff (Count V). Shur argues the allegations of the complaint demonstrate that any unlawful action allegedly taken by Shur falls outside the two year statute of limitations for § 1983 actions.

  The complaint does not allege dates on which Shur was supposed to have acted in violation of plaintiff's rights. Shur argues that the complaint sets out facts in chronological order and that it can therefore be inferred that Shur's actions occurred before July 2000 because the allegations concerning him fall between allegations of events occurring in February 1999 and allegations of events occurring in early July 2000. Since Shur was not added as a defendant until February 2003, he maintains the action is untimely.

  A 12(b)(6) motion is only granted when no set of facts could be proven to support the claim. See Phelan v. City of Chicago, 347 F.3d 679, 681 (7th Cir. 2003). Shur's only basis for his motion to dismiss is the expiration of the statute of limitations. While he posits that the court can infer from the complaint that the actionable conduct is alleged to have happened outside the limitations period, plaintiff has not alleged dates which establish this fact. Plaintiff has not, therefore, pled himself out of court on this matter. See McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000). It is possible that facts could be proven showing Shur's conduct occurred within the limitations period. Whether plaintiff is actually able to do so must await another day.

  For the foregoing reasons, Shur's motion to dismiss is denied. Page 1

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