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Burgess v. City of Alton

June 6, 2007

BESSIE MAE BURGESS AND HOSIE BURGESS, INDIVIDUALLY, AND ON BEHALF OF THEIR SON, HOSIE BURGESS, JR., PLAINTIFFS,
v.
THE CITY OF ALTON, DONALD E. SANDRIDGE, CHRIS SULLIVAN, ROGER WEST, JASON SIMMONS, GARY CRANMER, AND TIMOTHY BOTTERBUSH, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.



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

MEMORANDUM and ORDER

I. Introduction and Background

Now before the Court are Defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Docs. 30 & 33). Defendants aruge, inter alia, that Plaintiffs' claims are barred by the applicable statute of limitations. Plaintiffs oppose the motions (Doc. 42). Based on the pleadings and the applicable case law, the Court GRANTS the motions.

On August 29, 2006, Plaintiff, Bessie Mae Burgess, pro se, filed a complaint against the Alton Police Department and the Madison County States Attorney Office (Doc. 1). Specifically, Burgess alleges that she and her son were harassed by the Alton Police Department and the Madison County States Attorney Office.*fn1 On October 12, 2006, Plaintiffs, Bessie Mae Burgess and Hosie Burgess, individually, and on behalf of their son, Hosie Burgess, Jr., filed, through their attorney Bruce Carr, a First Amended Complaint against the City of Alton, Donald E. Sandridge, Chris Sullivan, Roger West, Jason Simmons, Gary Cranmer and Timothy Botterbush, in their individual and official capacities (Doc. 10). The First Amended Complaint alleges violations of Plaintiffs' constitutional rights pursuant to 42 U.S.C. § 1983 for: Count I - refusal to file against West, Simmons, Cranmer and Botterbush; Count II - harassment against West, Simmons, Cranmer, and Botterbush; Count III - false arrest against West, Simmons, Cranmer, and Botterbush; Count IV - abridgment of speech against West, Simmons, Cranmer, and Botterbush; Count V - retaliation against West, Simmons, Cranmer and Botterbush; Count VI - conspiracy to retaliate against all Defendants; Count VII - illegal conspiracy against all Defendants; Count VIII - negligent hiring, supervision and retention against the City of Alton, Mayor Sandridge and Chief Sullivan; Count IX -constitutional deprivations against individual Defendants and the City of Alton; and Count X state law deprivations against the City of Alton under the theory of respondeat superior. According to the First Amended Complaint, Hosie Burgess, Jr. was beaten on or about May 16, 2004, by Mary Joyce Lucas and that between May 16, 2004 and August 26, 2004, Defendants refused to investigate, charge or arrest Mary Joyce Lucas. Plaintiffs further allege that Bessie Mae and Hosie Burgess, Sr. complained to the Alton Mayor, the Alton Police Chief and the Alton Police Department about what happened to their son and that they were arrested in retaliation for complaining. The Court turns to address the merits of the motions.

II. Motion to Dismiss

When ruling on a motion to dismiss for failure to state a claim, the district court assumes as true all facts well-pled plus the reasonable inferences therefrom and construes them in the light most favorable to the plaintiff. Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (citing Wiemerslage Through Wiemerslage v. Maine Township High School Dist. 207, 29 F.3d 1149, 1151 (7th Cir. 1994)). The question is whether, under those assumptions, the plaintiff would have a right to legal relief. Id. This standard also has been articulated:

[U]nder "simplified notice pleading," . the allegations of the complaint should be liberally construed, and the "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Lewis v. Local Union No. 100 of Laborers' Int'l Union, 750 F.2d 1368, 1373 (7th Cir. 1984) (quoting Conley v. Gibson, 355 U.S. 41, 46-47 (1957)). Accord Fries at 457; Vickery v. Jones, 100 F.3d 1334, 1341 (7th Cir. 1996).

The Seventh Circuit has reiterated the liberal standard governing notice pleading:

It is sufficient if the complaint adequately notifies the defendants of the nature of the cause of action.. As the Supreme Court has recently reminded us, the Federal Rules of Civil Procedure do not permit us to demand a greater level of specificity except in those instances in which the Rules specifically provide for more detailed elaboration. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993).

Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1057 (7th Cir. 1998); See also Kaplan v. Shure Brothers, Inc., 153 F.3d 413, 419 (7th Cir. 1998). In fact, the Seventh Circuit has instructed that a plaintiff's claims must survive a 12(b)(6) dismissal motion if relief could be granted under any set of facts that could be proved consistent with the allegations. Hi-Lite Products Co. v. American Home Products Corp., 11 F.3d 1402, 1409 (7th Cir. 1993).

Because the statute of limitations is an affirmative defense, dismissal under Rule 12(b)(6) on these grounds is only appropriate if the allegations in the complaint show that a cause of action is time-barred. Clark v. City of Braidwood, 318 F.3d 764, 767 (7th Cir. 2003). Therefore, the question before the Court is whether Plaintiffs' First Amended Complaint contains allegations showing that their claims are barred by the applicable statute of limitations. Based on the following, the Court finds that Plaintiffs' claims are time-barred.

III. Analysis

Section 1983 provides that "every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law...." 42 U.S.C. § 1983; seeThurman v. Vil. of Homewood, 46 F.3d 682');">446 F.3d 682, 686-87 (7th Cir. 2006). Furthermore, "the statute of limitations applicable to claims under 42 U.S.C. § 1983 in Illinois is the same two-year provision which governs personal injury actions in the state, 735 I. Comp. Stat.. 5/13-202." Evans v. City of Chicago, 434 F.3d 916, 934 (7th Cir. 2006). Federal law determines when a § 1983 action accrues, which is generally "when a plaintiff knows or has reason to know of the injury that is the basis for the action." See Sellers v. Perry, 80 F.3d 243, 245 (7th Cir. 1996). Finally, the "court notes that nothing in either federal law or Illinois law tolls or delays the running of an applicable statute of limitations on a § 1983 claim until criminal ...


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