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Randy Johnson v. Dr. Evaristo Aguinaldo; Dr. Parthasarathi Ghosh; and


April 15, 2011


The opinion of the court was delivered by: Magistrate Judge Maria Valdez


In this action arising under 42 U.S.C. § 1983, Plaintiff Randy Johnson alleges that while he was in the custody of the Illinois Department of Corrections, Defendants were deliberately indifferent to his serious medical needs, in violation of his rights under the Eighth and Fourteenth Amendments to the Constitution. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is now before the Court on Defendant Mary Diane Schwarz's Motion to Dismiss Plaintiff's Third Amended Complaint [Doc. No. 92]. For the reasons that follow, the motion is denied.


The following relevant facts from the complaint are taken as true for the purposes of this motion. Plaintiff is a stage III colon cancer patient who has undergone surgery and chemotherapy and has taken prescribed morphine for pain since 2007. In September 2008, Plaintiff was arrested in Cook County, Illinois, and while in the custody of the Cook County Jail, he continued to receive chemotherapy treatments and was prescribed two forms of morphine. On November 14, 2008, Plaintiff was transferred to the Stateville Northern Reception and Classification Center, where he was examined by defendant Dr. Evaristo Aguinaldo. The following day, Sarah Mays, a licensed practical nurse, noted that Plaintiff did not look well and asked defendant Schwarz, a licensed physician assistant, to examine him. Schwarz examined Plaintiff, who complained to her that he was in pain and suffering from nausea and vomiting. Plaintiff also showed Schwarz records of morphine prescriptions that had been written for him while he was in the Cook County Jail. Schwarz observed that Plaintiff looked uncomfortable, and the prescriptions confirmed to Schwarz that Plaintiff's nausea and vomiting were secondary to opiate withdrawal. Schwarz did not prescribe morphine to Plaintiff for his pain or withdrawal symptoms but instead prescribed two other pain medications. Plaintiff does not remember ever receiving those medications, and Schwarz never followed up to determine whether he had received the prescriptions or whether his pain was controlled. Plaintiff ultimately received a morphine pill prescribed by another physician on November 19, 2008. The next day, Plaintiff was transferred to the infirmary at the Stateville Correctional Center, where he began a continuous morphine regimen that alleviated his pain. Plaintiff filed two grievances relating to the conduct alleged in the complaint, one on January 29, 2009, and another on February 5, 2009. On July 1, 2009, Plaintiff's final administrative appeal relating to his grievances was denied.

On December 7, 2010, Plaintiff filed a motion for leave to file his third amended complaint, which included the allegations described above and added Schwarz as a defendant. The motion stated that Plaintiff did not have information sufficient to allege claims against Schwarz until after her deposition was taken on November 18, 2010. In their response to the motion, Defendants did not argue that the amendment was unduly delayed, prejudicial, or futile. Instead, they merely requested extensions of the trial and discovery schedules in light of the amendment. Plaintiff's motion was granted on January 5, 2011, and his Third Amended Complaint was filed on January 6, 2011. Schwarz then moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6), arguing that Plaintiff's claims against Schwarz should be dismissed as time-barred.*fn1


The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of a complaint, not to decide the merits of a case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In determining whether to grant a motion to dismiss, the Court accepts all well-pleaded allegations in the complaint as true and draws all reasonable inferences in the light most favorable to the plaintiff. Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir. 2007). The complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' " Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, "a plaintiff's obligation to provide the grounds for entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id. The Seventh Circuit has read the Twombly decision as imposing "two easy-to-clear hurdles. First, 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. Second, 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 itself out of court." E.E.O.C. v. Concerta Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (internal citations and quotations omitted).

Schwarz's motion argues that the third amended complaint adding her as a defendant must be dismissed because it was filed after the expiration of the statute of limitations. The statute of limitations for actions brought under § 1983 is the same as that for personal injury claims in the state where the injury occurred.

Anton v. Lehpamer, 787 F.2d 1141, 1146 (7th Cir. 1986). In this case, Illinois' two-year statute of limitations for personal injury claims applies. See id. The date Plaintiff's claim accrued, however, is determined by federal law. Wilson v. Geisen, 956 F.2d 738, 740 (7th Cir. 1992). "Generally, a claim accrues when the plaintiff knows or has reason to know of the injury giving rise to the cause of action. . . . Civil rights claims, therefore, accrue when the plaintiff knows or should know that his or her constitutional rights have been violated." Id.

In cases where a plaintiff alleges Eighth Amendment violations stemming from a denial of medical care, the refusal to treat is said to "continue[ ] for as long as the defendants had the power to do something about his condition," and thus the claim does not accrue until the last day treatment was denied. Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001). According to Schwarz, the statute of limitations expired on Plaintiff's claims "no later than November 20, 2010," two years after the date Plaintiff received morphine treatment at Stateville. Schwarz therefore argues that because the claims against her were first brought on January 6, 2011,*fn2 they should be dismissed as time-barred.

Plaintiff responds that the statute of limitations on his claims was tolled while he pursued administrative remedies, and thus his amended complaint is timely. The tolling of the statute of limitations is governed by state law. Heard, 253 F.3d at 317. Pursuant to the Illinois tolling statute: "When the commencement of an action is stayed by injunction, order of a court, or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action." 735 Ill. Comp. Stat. § 5/13-216. The Seventh Circuit has held that this tolling provision applies "while a prisoner completes the administrative grievance process" required by the Prison Litigation Reform Act, 42 U.S.C. § 1997(e). Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001); see 42 U.S.C. § 1997e(a) (""No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.").

In this case, the limitations period was tolled from January 29, 2009 (when Plaintiff filed the first of his two grievances) to July 1, 2009 (when his appeal was denied), a total of 153 days. Accordingly, the statute of limitations on Plaintiff's claims against Schwarz will not run until April 22, 2011, and the Third Amended Complaint is not time-barred.


For the foregoing reasons, Defendant Mary Diane Schwarz's Motion to Dismiss Plaintiff's Third Amended Complaint [Doc. No. 92] is denied.


HON. MARIA VALDEZ United States Magistrate Judge

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