Name of Assigned Judge or Magistrate Judge Sharon J. Coleman
Sitting Judge if Other than Assigned Judge
Defendants, James Laska, Brian Storrie, Matthew Graf, Mark Higgs, J. Cloherty, Thomas Motzny, Steven Masters and Dan Miecszcak move to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6) on the basis that the statute of limitations bars the addition of the named defendants.  For the reasons that follow the motion is denied.
O[ For further details see text below.] Docketing to mail notices.
On March 24, 2008, plaintiff, Ruben Zarate, alleges that he received a call on his cell phone from an acquaintance telling him to go to 2604 N. Laramie Street in Chicago, Illinois, to pick up an agreed upon amount of money. When plaintiff arrived at that location he heard whispering on the other side of the door before he entered. Plaintiff alleges that he was not aware that he was the target of a sting operation by the Chicago Police Department. Plaintiff specifically alleges that when he opened the door police opened fire and he was shot in the back with a bullet fired by defendant Officer Laska. Plaintiff further alleges that he fell to the ground after he was shot and approximately three police officers rushed him pushing their knees and elbows into his back and neck. Plaintiff was transported to Advocate Illinois Masonic Hospital for medical treatment for his injuries, including multiple fractures of the lumbar spine and injury to his cervical spine, internal injuries to his stomach, small bowel, duodenum, liver and surrounding soft tissue. Plaintiff underwent surgery to remove the bullet and repair his internal injuries. Plaintiff is has been incarcerated since March 24, 2008.
In order to survive dismissal pursuant to Rule 12(b)(6) a plaintiff "must plead some facts that suggest a right to relief that is beyond the 'speculative level.'" Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011); (quoting In re marchFIRST Inc., 589 F.3d 901, 905 (7th Cir. 2009)). When deciding to dismiss a complaint, the Court accepts all well-pleaded allegations as true (Twombly, 550 U.S. 544, 59 (2007)), and draws all reasonable inferences in favor of the pleader. Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007).
On February 8, 2011, after this Court appointed counsel, plaintiff filed his Second Amended Complaint naming additional defendants: Brian Storrie, Matthew Graf, Mark Higgs, J. Cloherty, Thomas Motzny, Steven Masters, and Dan Miecszcak. Defendants assert that plaintiff's Second Amended Complaint fails to state a claim for relief because any claim against the newly added defendants is barred by the statute of limitations. Plaintiff concedes that the statute of limitations technically has expired as to the added defendants on March 24, 2010. However, plaintiff argues that this Court should allow the complaint to proceed by equitably tolling the statute of limitations. Plaintiff voluntarily dismissed defendants Cloherty, Motzny, Masters, Kosmyna, and Miecszcak. (Dkt. 100.) This Court therefore considers defendants' motion to dismiss only as it relates to defendants Storrie, Graf, and Higgs.
Since plaintiff concedes that the statute of limitations has expired and does not argue that the added defendants relate back to the original complaint, this Court will address whether to toll the statute of limitations. The doctrine of equitable tolling is applicable where the plaintiff knows he has been injured but is unable to obtain evidence necessary to determine who may be liable for his injury. Billman v. Indiana Dep't of Corrections, 56 F.3d 785, 789 (7th Cir. 1995). The plaintiff is permitted to sue after the statute of limitations has expired "if through no fault or lack of diligence on his part he was unable to sue before, even though the defendant took no active steps to prevent him from suing." Singletary v. Continental Illinois Nat'l Bank and Trust Co. of Chicago, 9 F.3d 1236, 1241 (7 th Cir. 1993).
In Donald v. Cook County Sheriff's Dep't, 95 F. 3d 548 (7th Cir. 1996), a pro se prisoner sought to sue various members of the Cook County Sheriff's Department in a complaint filed three weeks prior to the expiration of the statute of limitations. The district court dismissed the complaint for failing to state a claim because Donald had not named any individual sheriffs allegedly responsible for the violation of his civil rights. Id. at 553. In that case, the Seventh Circuit suggested that equitable tolling might be applicable and directed the district court to consider the application of the doctrine on remand. Id. at 562. The court considered that Donald was unrepresented and incarcerated and therefore was unable to identify the officers directly involved in the incidents leading up to his heart attack ...