United States District Court, N.D. Illinois
May 6, 2004.
CATHERINE FAHY, individually and as special administrator for the Estate of DALE FAHY, deceased, Plaintiff,
JAMES PAGE, warden at Stateville Correctional Facility, BARBARA MILLER and JOSEPH SMITH, medical directors at Stateville Correctional Facility, STEVEN EISENBERG, director of psychology and or psychiatry at Stateville Correctional Facility, AMAR CHAWLA, doctor at Stateville Correctional Facility and JOHN DOE, correctional officer at Stateville Correctional Facility, Defendants
The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Catherine Fahy has sued defendants under 42 U.S.C §
("section") 1983, alleging that defendants deprived Dale Fahy of his
constitutional rights while he was in their custody. Defendants Page and
Eisenberg have filed a motion to dismiss. For the reasons set forth
below, the motion is denied. Facts
Dale Fahy ("Dale"), now deceased, was a resident of Will County,
Illinois. (Compl. ¶ 3.) He was arrested by Downer's Grove police on or
about July 15, 1999. (Id. ¶¶ 4, 6.) At the time he was taken into
custody, Dale told the police and others that he intended to commit
suicide. (Id. ¶ 5.) He was placed under a suicide watch by the Downer's
Grove Police Department. (Id. ¶ 6.) On or about July 16, 1999, Dale was
transferred from the Downer's Grove Police Department to the Will County
Sheriff's Department. (Id. ¶ 7.) While in sheriff's department custody,
Dale was under a suicide watch. (Id. ¶ 8.) On or about July 22, 1999,
Dale was transferred to the State of Illinois' Department of Corrections
("IDOC"). (Id. ¶ 9.)
IDOC placed Dale at the Danville Correctional Facility ("Danville") in
Danville, Illinois. (Id. ¶ 12.) While at Danville, Dale was placed on
psychiatric medications. (Id. ¶ 13.) He was transferred from Danville to
the IDOC facility in Joliet, known as "Stateville." (Id. ¶¶ 10, 12.) While
at Stateville, Dale was under a suicide watch for approximately forty
hours. (Id. ¶ 11.) On September 28, 1999.while at Stateville, Dale took
his own life by hanging himself in his jail cell. (Id. ¶ 19.)
Plaintiff alleges that while in the custody of the Downer's Grove
Police Department, Will County Sheriff's Department and IDOC (at both
Danville and Stateville), Dale exhibited signs, symptoms and behavior
indicative of a person reasonably likely to commit suicide. (Id. ¶ 14.)
He was identified or otherwise known by employees or agents of each
police agency or institution to be a suicide risk, (Id. ¶ 15.) IDOC has
established protocols and procedures to be followed with inmates like
Dale who exhibit suicidal tendencies. (Id. ¶ 16.) According to plaintiff, defendants disregarded Dale's safety and
well-being by failing to properly and adequately examine and evaluate
him. (Id. ¶ 17.) They failed to properly and adequately supervise
subordinates who failed to properly and adequately examine or evaluate
Dale. (Id.) Defendants refused or deliberately failed to adequately
advise other IDOC staff of the risk of suicide in Dale's case, and they
failed to refer him to appropriate professionals for treatment. (Id.)
Defendants also failed to provide protection, and failed to take other
necessary and reasonable steps, to keep Dale from committing suicide.
(Id.) In doing all of the above, Dale was denied his rights under the
Eighth and Fourteenth amendments.
Before addressing defendants' arguments in support of their motion to
dismiss, a brief history of the case with respect to these two defendants
is warranted. Plaintiff filed her complaint on September 28, 2001.
Defendant Page was served on April 18, 2002. The case was up for a status
hearing on May 21, 2003, and plaintiff failed to appear. We rescheduled
the status hearing for June 4, 2003, and warned that if plaintiff failed
to appear then, the case would be dismissed for want of prosecution.
Plaintiff failed to appear on June 4 and we dismissed the case. On June
16, 2003, plaintiff moved to vacate the dismissal order. We granted
plaintiff's motion and the case was reinstated on July 29, 2003.
Plaintiff's attorneys withdrew from the case in October 2003. At a
status hearing on November 12, 2003, attended by plaintiff's new counsel,
we set a discovery schedule and gave plaintiff additional time to serve
any unserved defendants, including Eisenberg. Eisenberg was served on
December 22, 2003. Although presented in a somewhat complex manner, Page and Eisenberg' s
motion to dismiss seems to be grounded in two theories: that our June 4,
2003 dismissal of this case under Rule 41 was a dismissal with prejudice,
and we could not reinstate the case because the statute of limitations
had run; and that the case with respect to Eisenberg should be dismissed
because he was served well beyond the time allowed under Rule 4(m) and
beyond the statute of limitations. We address each argument in turn.
Reinstatement of Plaintiff's Case
Because defendants are essentially objecting to our July 29, 2003
reinstatement of plaintiff's case we construe their motion as a motion to
reconsider. See Peterson v. Lindner, 765 F.2d 698, 704 (7th Cir. 1985)
("Of course, if the order was interlocutory, [the district judge] had the
power to reconsider it at any time before final judgment."). Motions to
reconsider do not have express filing requirements or time constraints.
See Holmes v. City of Aurora, 1995 WL 21606, at *2-3 (N.D. Ill. Jan. 17,
A motion to reconsider is appropriate where: the court has
misunderstood a party; the court has made a decision outside the
adversarial issues presented to the court by the parties; the court has
made aft error of apprehension (not of reasoning); a significant change
in the law has occurred; or significant new facts have been discovered.
Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191
(7th Cir. 1990). Motions to reconsider are not the time to rehash old
arguments or tender new legal theories. Rothwell Cotton Co. v. Rosenthal
& Co., 827 F.2d 246, 251 (7th Cir. 1987) (internal citation omitted);
Holmes, 1995 WL 21606, at . Defendants do not now seem to advance any of the arguments listed above
that warrant a fresh examination of the issue. They suggest that this
Court made an error of reasoning, saying that our June 4, 2003 dismissal
of this case was "a permanent one and effectively with prejudice." (Mot.
to Dismiss at 3.) According to defendants, the statute of limitations on
this case ran out on September 28, 2001, the day the case was filed. They
go on to say that "plaintiff's right to sue anyone permanently ended on
June 4, 2003, the day [this Court] dismissed this case for want of
prosecution." (Id, at 6.) Thus, say defendants, we had no jurisdiction to
vacate the dismissal order because the lawsuit had essentially expired.
(Id. at 3.)
As noted above, a motion to reconsider is not the proper vehicle to
address an error of reasoning. See Bank of Waunakee, 906 F.2d at 1191.
Even if we do reconsider our decision to reinstate the case, however,
defendants are incorrect in assuming that the reinstatement acted as a
new filing and therefore implicates statute of limitations concerns.
Following our dismissal of the case, plaintiff moved to vacate the
dismissal order. Under Rule 60(b), we can grant relief from judgment
under certain circumstances, and we exercised our discretion under this
Rule to grant plaintiff's motion and reinstate the case. See 3 Penny
Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 340-41 (7th Cir.
1987) (discussing dismissal under Rule 41(b), reinstatement of case under
Rule 60(b) and court's discretion under both rules). In granting
plaintiff's motion, we effectively revived the original case, thus
avoiding any statute of limitations problem associated with filing a new
claim.*fn1 Feldman v. American Mem'l Life Ins. Co., 1998 WL102663, at *3
(N.D. Ill. Mar. 3, 1998) (citing Peterson v. BMI Refractories, 132 F.3d 1405, 1414 (11th Cir.
1998); Ford v. Sharp, 758 F.2d 1018, 1024 (5th Cir. 1985)). Plaintiff may
continue her case against defendants.
Service of Defendant Eisenberg
Defendants base their motion to dismiss Eisenberg on the facts that:
Eisenberg was served in late December 2003, "well over the expiration
period of the statute of limitations"; and plaintiff did not exhibit
"good cause" as required by Rule 4(m) to warrant an enlargement of time
to effect service so late in the case. (Mot. to Dismiss at 2, 4, 5.) As
discussed supra, defendants appear to be asking us to reconsider
our November 2003 decision to allow plaintiff additional time to serve
Eisenberg. Again, defendants do not seem to base their motion on any of
the reasons set forth in the Bank of Waunakee case.
Even if we do revisit the issue, defendants' arguments are unavailing.
On their first point, to the extent defendants argue that a defendant
must be served before the statute of limitations runs, they are
mistaken. (Mot. to Dismiss at 3, 6; Reply at 6.) Because it is the filing
of the complaint that begins an action, it is the filing of the complaint
that must satisfy the statute of limitations. Fed.R.Civ.P. 3. Rule 4(m)
requires that, generally, service of summons and complaint be made on a
defendant "within 120 days after the filing of the complaint."
Fed.R.Civ.P. 4(m). Thus, it is entirely possible, and permissible, that a
defendant may not learn about a suit until after the limitations period
has expired. See Wiltiams-Guice v. Board of Educ., 45 F.3d 161, 162 (7th
Cir. 1995). Service of process on Eisenberg after the expiration of the
limitations period does not alone warrant his dismissal from the case. Defendants' second argument fares no better. Rule 4(m)'s 120-day time
period for service is not an absolute. Under certain circumstances, a
court may allow service to be made beyond that time frame. See
Fed.R.Civ.P. 4(m) (stating that if service is not made within 120 days
after the filing of the complaint, the court may direct that service be
effected within a specified time).
The thrust of defendants' argument is that plaintiff did not show "good
cause" to warrant an extension of time to serve Eisenberg. (Mot. to
Dismiss at 3-4, 6; Reply at 3-4.) Plaintiff did not have to show good
cause. Rule 4(m) requires a court to extend time for service in the event
good cause is shown, but a court may, in its discretion, extend time for
service even absent a showing of good cause. See Fed. R. Civ. P. 4(m)
(specifically providing that "if the plaintiff shows good cause for the
failure [to serve defendant within 120 days], the court shall extend the
time for service for an appropriate period") (emphasis added);
Fed.R.Civ.P. 4, Advisory Committee Notes, 1993 Amendments, Subdivision
(m) (new subdivision (m) "explicitly provides that the court shall allow
additional time if there is good cause" and "authorizes the court to
relieve a plaintiff of the consequences of an application of this
subdivision even if there is not good cause shown"). See also Davis v.
National R.R. Passenger Corp., 1997 WL 527287, at *2 n.2 (N.D.Ill. Aug.
19 1997)(citing Panarasv. Liquid Carbonic Indus. Corp., 94 F.3d 338, 341
(7th Cir. 1996) for proposition that under Rule 4(m), courts have
discretion to enlarge the 120-day period even if no good cause is
shown). This specific matter, and the parties, were before us in November
2003. We were satisfied at that time that a limited extension of time in
which to serve Eisenberg (and other unserved defendants) was warranted
and we granted it Plaintiff served Eisenberg within that time period. We
will not dismiss him from the case. Conclusion
For the reasons stated above, defendants' motion to dismiss is denied.