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Cleveland v. County of Cook

September 25, 2009

BERNIE B. CLEVELAND, PLAINTIFF,
v.
COUNTY OF COOK, SHERIFF TOM DART, DEPUTY CHRISTIAN HAWKONSEN, DEPUTY MAURY GANTMAN, DEPUTY JOHN O'MALLEY, DEPUTY JAMIEE KAPOLNEK, DEPUTY CHARMAINE CHARMELO, DEPUTY DUILIO LOCELSO, AND SERGEANT STEVE HODGES, HONORABLE DAVID H. COAR DEFENDANTS.



The opinion of the court was delivered by: David H. Coar United States District Judge

MEMORANDUM OPINION AND ORDER

Bernie Cleveland filed a complaint under 42 U.S.C. § 1983, alleging that he was beaten by several deputies of the Cook County Sheriff while he awaited his court appearance in a holding cell at the Second Municipal Courthouse in Skokie, Illinois. Defendants Kapolnek, Charmelo, Locelso, and Hodges (the "New Defendants") have moved to dismiss the pendant state-law claims in his amended complaint as time-barred (as to them). Defendants Dart and Cook County have moved to dismiss all claims against them as time-barred. For the following reasons, the motion is GRANTED in part and DENIED in part.

FACTUAL BACKGROUND

The relevant allegations in Cleveland's amended complaint, which the court must accept as true for present purposes, are as follows:

On May 17, 2007, Cleveland was transported from Cook County Jail to the Second Municipal Courthouse in Skokie, Illinois, for an appearance in his pending criminal case. (First Am. Compl. ¶15.) He waited in a holding cell, where he requested lunch, to which he was entitled. (Id. ¶¶16-17.) Deputy Gantman repeatedly refused his lunch requests and became belligerent and verbally abusive toward Cleveland. (Id. ¶¶17-18.) The situation quickly escalated as more officers joined in threatening Cleveland if he did not "shut his mouth." (Id. ¶18.) He did not, so they beat him. (Id. ¶¶18-27.) Deputies Gantman, Hawkonsen, Kapolnek, and Locelso pinned Cleveland to the ground and cuffed his hands behind his back. (Id. ¶¶24-25.) They kicked and punched his body while Deputy Charmelo punched him in the face. (Id. ¶¶25-26.) Gantman and Hawkonsen pulled him back up from the floor by his shirt collar, choking him. (Id. ¶27.) At some point, Sergeant Hodges arrived at the scene and Cleveland complained to him that he was physically abused. (Id. ¶28.) Hodges ordered Hawkonsen, Gantman, and O'Malley to transport Cleveland to the holding area in the courthouse basement, where they continued to beat him and refuse his requests for medical assistance. (Id. ¶¶29-32.) Eventually, paramedics from the Skokie Fire Department arrived and took him to a nearby hospital for treatment. (Id. ¶32.)

The next day, May 18, 2007, Cleveland filed a grievance with the Cook County Department of Corrections ("CCDOC"), complaining of abuse and excessive force at the hands of the deputies. (Id. ¶35.) The grievance committee did not respond within the thirty-day response period, nor did the committee inform Cleveland that it would need any additional time to respond. (Id. ¶36.) On August 24, 2007, Cleveland was remanded to the Illinois Department of Corrections; he continued to request a response from the grievance committee while he was incarcerated. (Id. ¶¶37-41.) Cleveland has attached a copy of his October 29, 2007 letter to the committee to his amended complaint. (Id. Ex. A.) He has never received a response to his grievance. (Id. ¶¶38, 40.)

PROCEDURAL BACKGROUND

On February 26, 2008, Cleveland, pro se, filed a complaint against the County of Cook; its Sheriff Tom Dart; Cook County Jail Superintendant Snoop; Counselor Jones; Correctional Officers Hawkonsen, Gantman, and O'Malley; and three Jane and John Doe defendants, alleging excessive force and conspiracy in violation of 42 U.S.C. §§ 1983, 1985(3). (R. 1, Compl.) The court screened Cleveland's complaint. See 28 U.S.C. 1915(e)(2)(B). It dismissed the County, Sheriff Dart, Superintendant Snoop, and Counselor Jones as defendants; directed the clerk to issue summonses for service of Officers Hawkonsen, Gantman, and O'Malley; and appointed counsel to represent Cleveland. (R. 7, Minute Order of April 25, 2008.)

On September 15, 2008, Cleveland filed his First Amended Complaint, naming the New Defendants-Kapolnek, Locelso, Charmelo, and Hodges-along with Hawkonsen, Gantman, the Sheriff, and the County. He asserts a § 1983 cause of action for excessive force (Count I) and state-law causes of action for assault (Count II), battery (Count III), intentional infliction of emotional distress (Count IV), willful and wanton misconduct (Count V), and conspiracy (Count VI), against the individual officer defendants. He also asserts state-law causes of action for negligence (Count VII) and respondeat superior liability (Count VIII) against Sheriff Dart, and a state-law cause of action for indemnification against the Sheriff and the County (Count IX).*fn1

Defendants do not argue that Cleveland's § 1983 action, or his state-law claims against Hawkonsen and Gantman, are time-barred. They do, however, argue that the rest of his state-law claims are barred by Illinois' statute of limitations. This opinion addresses the timeliness of those claims.

LEGAL STANDARD

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal, not factual, sufficiency of a complaint. See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-76 (7th Cir. 2001). The court accepts as true all well-pleaded allegations in the plaintiff's complaint, drawing all possible inferences in the plaintiff's favor. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Dismissal is appropriate only if, after accepting as true all facts in the complaint, the plaintiff cannot plausibly succeed. Id. at 1086. Although "complaints do not have to anticipate affirmative defenses to survive a motion to dismiss [an] exception occurs where . . . the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations." United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (internal citation omitted).

ANALYSIS

State-Law Claims against the New Defendants ...


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