The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Plaintiff Jesse Phillips ("Phillips") brings this suit against a variety of defendants alleging negligence as well as a violation of his constitutional rights under 42 U.S.C. § 1983 ("Section 1983"). Defendants Thomas J. Dart ("Dart"), Sheriff of Cook County, and Michael F. Sheahan ("Sheahan"), former Sheriff of Cook County, have moved to dismiss the first amended complaint under Federal Rule of Civil Procedure 12(b)(6), alleging that Phillips' claims are untimely. Defendants Lee Ryker and Roger Walker also moved to dismiss the first amended complaint under Rule 12(b)(6). For the reasons stated below, Dart and Sheahan's motion is granted; Ryker and Walker's motion is granted in part and denied in part.
From late 1993 to late 1994, Phillips was jailed at the Cook County Department of Corrections pending criminal charges. During this time, Phillips developed a cholesteatoma, a destructive and expanding sac in his right middle ear. In November 1993, the sherriff sent Phillips to the then Cook County Hospital where staff doctors performed a radical tympanomastoidectomy on Phillips' ear. Upon completing the procedure, the doctors stuffed Phillips' ear canal with gauze packing. According to Phillips, after the procedure he was in need of -- but never received -- further medical treatment. Phillips was subsequently released from custody in December 1994.
In April 2006, Phillips was incarcerated at Lawrence Correctional Center on a new criminal case. In May 2006, Phillips began having pain in his right ear, coupled with fluid draining from the ear. Medical providers from the Illinois Department of Corrections examined him and noted that there appeared to be packing material in his ear causing him discomfort. The doctors who operated on Phillips in November 1993 left this packing material in his ear. Medical personnel at Lawrence Correctional Center referred him to an outside medical provider in May 2006. In July 2006, medical personnel at Lawrence Correctional Center approved a further tympanoplasy/mastoidectomy surgical procedure based on the recommendation of the outside medical provider. Defendants failed to carry out the recommendations and no further surgery has, to date, been performed. Phillips alleges that his medical conditions will be aggravated as a result of defendants' failure to comply with the recommendations made by the outside medical personnel.
To survive a Rule 12(b)(6) motion, "the complaint need only contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Equal Employment Opportunity Comm'n v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2)). This means "the complaint must describe the claim in sufficient detail to give the defendant 'fair notice of what the . . . claim is and the grounds upon which it rests.' . . . [and] its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'; if they do not, the plaintiff pleads [himself] out of court." Id. at 776 (quoting Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1964, 1973 n.14 (2007)).
I. Defendants Dart and Sheahan's Motion to Dismiss
Defendants Thomas Dart, Sheriff of Cook County, and Michael Sheahan, former Sheriff of Cook County, move to dismiss Phillips' claim under Section 1983 as barred by the statute of limitations. Plaintiff and defendants agree that the limitation period for Section 1983, which borrows from the forum state's personal injury statute, is two years. Dixon v. Chrans, 986 F.2d 201, 203 (7th Cir. 1993).
Defendants Dart and Sheahan argue that the "challenged conduct" which forms the basis of the Section 1983 claim against them occurred sometime between November 1993 and December 1994, when Phillips was incarcerated at the Cook County Department of Corrections. Because Phillips does not identify his legal claims in his amended complaint, the court has done its best to ascertain any possible basis of his Section 1983 claim against Dart and Sheahan. These bases are: (1) the Cook County Hospital medical personnel's alleged negligence in leaving packing in his ear; and (2) Dart and Sheahan's alleged failure to provide the recommended follow-up care. The court agrees with defendants when they argue that Phillips "seems to equate an alleged negligent act by a treating physician, with deliberate indifference" by defendants. Phillips does not provide any authority (or even attempt to provide any explanation) for the notion that the sheriff is responsible under Section 1983 for the alleged negligence of the treating physicians at Cook County Hospital. Estelle v. Gamble, 429 U.S. 97, 106-07 (1976) (medical malpractice is not actionable under Section 1983). Plaintiff provides no support for the notion that Dart and/or Sheahan were somehow personally responsible for the alleged negligence of the treating physicians, and respondeat superior principles are inapplicable in the Section 1983 context. Monell v. Dep't of Social Services of New York, 436 U.S. 658, 691 (1978). In light of this, the court does not read plaintiff's first amended complaint as stating a Section 1983 claim against Dart and Sheahan for the negligent actions of the Cook County Hospital doctors. The failure to provide follow-up care after Phillips received his surgery, however, does at least arguably state a claim under Section 1983.
With this in mind, the court turns to defendants' argument that Phillips' Section 1983 claim against them is untimely. Phillips had two years from sometime in 1993 to 1994 to file his complaint based on the failure to provide necessary post-surgical care. The court does not agree with Phillips that the "discovery rule" -- where the relevant statute of limitations is postponed until the plaintiff first discovers his injury -- should be applied in this case. According to the amended complaint, Phillips was treated by Cook County Department of Corrections medical personnel on "almost a daily basis from November 9, 1993 to his discharge from the jail in December 1994." He claims that the recommendations from medical personnel at both Cook County Hospital and the Cook County Department of Corrections for specialized treatment and care were "ignored and/or refused." While he did not discover that packing was left in his ear until 2006, he was on notice in 1993-94 that there were recommendations related to his care that were not being followed. In fact, Phillips alleges that he filed a grievance with respect to his failure to receive recommended care. In light of this, the court concludes that his claim accrued sometime in 1993 or 1994, while he was in the custody of Cook County officials. Because he waited approximately thirteen years to file his complaint, his Section 1983 claim against Dart and Sheahan is untimely and must be dismissed.
As an initial matter, plaintiff provides no authority for the notion that the Cook County Sheriff himself could be held responsible for the alleged negligence of the treating physicians at Cook County Hospital. In light of this failure, the court does not read plaintiff's complaint as stating a negligence claim against Dart and Sheahan. And, even if ...