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Aleman v. Dart

February 9, 2010

ALVARO ALEMAN, PLAINTIFF,
v.
THOMAS DART, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Alvaro Aleman filed this action pursuant to 42 U.S.C. § 1983 against Cook County, Thomas Dart, in his official capacity as Sheriff of Cook County, and various employees of the Cook County Department of Corrections. Plaintiff alleges that Defendants failed to protect him from an assault by other inmates, and failed to provide adequate medical care following the assault, in violation of the Eighth and Fourteenth Amendments. Before the Court is a motion to dismiss [43] the claims against Defendants Cook County, Jessie Anderson, George Turner, Julian Salazar, Elvis Slaughter, Antoinette Hines, and Mae Williams, as well as the individual capacity claims against Defendants David Fagus and Avery Hart, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the motion is granted in part and denied in part.

I. Background*fn1

Aleman currently is an inmate at the Shawnee Correctional Center in Vienna, Illinois.

Between December 6, 2006 and August 8, 2008, Aleman was an inmate in the Cook County Department of Corrections (the "CCDOC"). According to Aleman, he was assaulted by two other inmates on December 31, 2006. At the time of the assault, the guard on duty -- Defendant Antoinette Hines -- was not at her post. Once Aleman got Hines's attention following the beating, two guards took Aleman to the infirmary, where he was treated by Defendant Mae Williams, a member of medical staff at the CCDOC. Williams cleaned Aleman's mouth with alcohol and inserted cotton balls to stop the bleeding. Aleman, who speaks and understands only Spanish, was unable to describe his pain to Williams or to answer her questions. Williams did not ask a Spanish speaking guard to translate. Aleman contracted an infection in his mouth as a result of his injuries, which made it difficult for him to speak or eat. On January 4, 2007, Aleman was taken to Cermak Hospital for treatment of the infection. Aleman remained at Cermak on intravenous medications for eight days, during which time he was on a liquid diet because his pain prevented him from eating solid foods. A Cermak dentist removed two of Aleman' s teeth as a result of the infections in Aleman' s teeth and gums.

At the time of the assault, Aleman was housed in Division 6, 2R at the CCDOC. Defendants Anderson, Turner, Salazar, and Slaughter are Superintendents of Division 6, 2R. Defendant Fagus is the Chief Operating Officer of Cermak Health Services. Defendant Hart is the Medical Director of the CCDOC.

On November 4, 2008, Aleman filed a pro se complaint and a motion for appointment of counsel, which this Court granted. Plaintiff filed a first amended complaint on December 30, 2008, with the assistance of appointed counsel. The first amended complaint named John Doe II, in his official capacity as Superintendent of Division 6, 2R, Cook County Department of Corrections; Jane Doe I, Division 6, 2R day room Correctional Officer, Cook County Department of Corrections; and Jane Doe II, a member of medical staff, Cook County Department of Corrections, among the Defendants. On August 14, 2009, Plaintiff filed a second amended complaint, in which he substituted Anderson, Turner, Salazar, and Slaughter for the "John Doe II" defendant, Hines for the "Jane Doe I" defendant, and Williams for the "Jane Doe II" defendant. The second amended complaint also named Cook County as a defendant for the first time.

Defendants move to dismiss Plaintiff's claims against Cook County, Anderson, Turner, Salazar, Slaughter, Hines, and Williams as time barred. Defendants also seek dismissal the individual capacity claims asserted against Fagus and Hart.

II. Legal Standard on a Rule 12(b)(6) Motion

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true, * * * 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint."Twombly, 550 U.S. at 563. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

III. Analysis

A. Statute of Limitations

The statute of limitations is an affirmative defense. Because complaints are not required to anticipate affirmative defenses, dismissal under Rule 12(b)(6) on statute of limitations grounds is considered "irregular." United States v. Northern Trust Co., 372 F.3d 886, 888 (7th Cir. 2004). However, dismissal is appropriate where a plaintiff pleads himself out of court by establishing that a defendant is entitled to a statute of limitations defense. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (motion to dismiss appropriate where "complaint plainly reveals that an action is untimely under the governing statute of limitations"); U.S. Gypsum Co. v. Ind. Gas Co., Inc., 350 F.3d 623, 626 (7th Cir. 2003) ("a litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense"). When the face of the complaint affirmatively indicates that the time limit for bringing the claim has passed, the plaintiff may not escape the statute of limitations by saying nothing. See Kathaur SDN BHD v. Sternberg, 149 F.3d 659, 670 n.14 (7th Cir. 1998).

Defendants Cook County, Anderson, Turner, Salazar, Slaughter, Hines, and Williams, seek dismissal because they were not named as Defendants until after the statute of limitations on Plaintiff's Section 1983 claim had expired. Actions to enforce constitutional rights under Section 1983 must be brought within the two-year time period prescribed by Illinois'personal injury statute of limitations. See Owens v. Okure, 488 U.S. 235, 240-41, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (quoting and clarifying Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)); 735 ILCS 5/13-202. Amended suits, which add new parties after the two-year period, are untimely and will be dismissed unless ...


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