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QUALLS v. NIU
February 4, 2004.
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.
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