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SMITH v. STERNES

United States District Court, N.D. Illinois


June 22, 2004.

SMITH
v.
STERNES.

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

MEMORANDUM OPINION AND ORDER

Rose Smith ("plaintiff") brought suit against defendants, including John Mekeel ("defendant"), pursuant to 42 U.S.C. § 1983. This court has jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff claims that the defendant sexually assaulted her while he was assigned to guard her at Dixon Correctional Center. Defendant moves to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, claiming that the statute of limitations had expired when he was named as a defendant in the amended complaint. Plaintiff contends the statute of limitations had tolled, preserving her ability to name Mekeel as a defendant, requiring this court to deny his motion to dismiss pursuant to Rule 12(b)(6). The applicable statute of limitations for § 1983 claims is the period for personal injury torts. Kalimara v. Illinois Dep't of Corrections, 879 F.2d 276, 277 (7th Cir. 1989). That period is two years in Illinois. Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998).

Under Rule 12(b)(6), a motion to dismiss should not be granted unless it appears beyond doubt that the plaintiff cannot prove any facts that would support her claim for relief. Kennedy v. Nat'l Juvenile Detention Ass'n., 187 F.3d 690, 694 (7th Cir. 1999). The correct inquiry is "whether it is possible to imagine proof of the critical facts consistent with the allegations of the complaint." United States Gypsum Co. v. Indiana Gas Co., Inc. et al., 350 F.3d 623, 628 (7th Cir. 2003). All statements of fact in the complaint are taken as true and all reasonable inferences must be drawn in favor of the non-movant. Dixon v. Page, 291 F.3d 485, 486 (7th Cir. 2002). The statute of limitations, an affirmative defense, cannot be resolved via a Rule 12(b)(6) motion where the allegations themselves do not demonstrate the claim is time-barred. United States Gypsum Co., 350 F.3d at 626; see also Scholl v. Rogers Ready Mix, 2004 U.S. Dist. LEXIS 6146 (N.D.Ill. Apr. 12, 2004) (Reinhard, J.).

  Here, while on the face of plaintiff's amended complaint it appears her claim against Mekeel is time-barred, she relies on two theories to preclude application of the statute of limitations. She first contends the statute of limitations should be tolled while she pursued the administrative grievance procedure. Second, she asserts that the statute of limitations should be equitably tolled because she was unable to identify Mekeel despite her due diligence to do so.

  Both theories depend on factual matters outside the amended complaint. Thus, while the court considers the theories, it cannot consider the facts. Accordingly, the court cannot dispose of the statute of limitations defense pursuant to Rule 12(b)(6). Therefore, defendant's motion to dismiss is denied without prejudice to the statute of limitations defense being raised via a summary judgment motion if otherwise proper.

20040622

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