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.
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