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Earl E. Sydner, Jr v. Deputy Michael Marks

June 28, 2011

EARL E. SYDNER, JR., PLAINTIFF,
v.
DEPUTY MICHAEL MARKS, DEPUTY MARTIN VAUGHN, SERGEANT JEROME VANN, DEPUTY GREG ROWLAND, SERGEANT GEORGE SCHAEFER, DEPUTY CHARLIE GLIDEWELL AND DEPUTY ROBERT TELLOR, DEFENDANTS.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER

REAGAN, District Judge:

Plaintiff Earl E. Sydner, currently an inmate in the Dixon Correctional Center in Dixon, Illinois, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Sydner filed his original complaint on October 20, 2008, alleging excessive force, failure to prevent harm and due process violations by known and unknown police officers at the Jackson County Jail. The Court will briefly summarize Sydner' factual allegations, which are fully set out in the Court's threshold order (Doc. 10) and in United States Magistrate Judge Williams' Report and Recommendation (R&R) (Doc. 57).

Sydner alleges that on August 3, 2007, while a pretrial detainee at the Jackson County Jail, he was being moved from the courthouse, dropped his discovery on the sidewalk and stopped to pick it up. Things went very badly for Sydner from that moment as he alleges that he was choked, shoved, attacked, put in a holding cell with no running water and a non-functioning toilet filled with excrement, and denied medical attention. Sydner claims that after he filed a grievance regarding these actions, he was retaliated against by being placed in segregation. Sydner seeks injunctive relief as well as compensatory and punitive damages.

Sydner's due process claims and claim of excessive force survived review under 28 U.S.C. § 1915A, and the matter was referred to the Magistrate Judge for further proceedings. On October 20, 2010, more than a year after Sydner's claims were referred to the Magistrate Judge and four months after the close of discovery and the dispositive motion deadline, the Court informed Sydner that John Does #1-6, as well as Sergeant George and Deputy Charlie had not been served (Doc. 45). The Court warned Sydner that failure to effectuate service within twenty days of the Order, would result in the defendants being dismissed. That same day, Sydner sought leave to amend his complaint in order to properly allege his claims (Doc. 46). Leave was granted on November 2, 2008, and the First Amended Complaint (FAC) was filed November 3 (Docs. 48, 49).

Plaintiff's FAC identified John Doe #2 as Deputy Greg Rowald; George Doe #3 as Deputy George Schaefer; Charlie Doe #4 as Deputy Charlie Glidewell; John Doe #5 as Robert Tellor and John Doe #6 as Deputy Martin Vaughn. Plaintiff also alleged that the Defendant referred to as Deputy Vaughn in his original Complaint was actually Sergeant Jerome Vann.

On January 7, 2011, Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that Plaintiff's FAC against the newly-identified Defendants is barred by the statute of limitations (Doc. 54). Plaintiff responded that claims against these Defendants are not barred because they relate back to the allegations in the original complaint. The motion was referred to Judge Williams, who submitted an R&R recommending that Defendants' motion to dismiss be granted in part and denied in part. Specifically, Judge Williams recommended (1) granting the motion as to all John Doe Defendants, including those identified in the FAC as Deputy Greg Rowald and Deputy Robert Tellor; (2) granting the motion as to Deputy Charlie Glidewell; and (3) denying the motion as to Sergeant Jerome Vann and Sergeant George Schaefer. On May 31, 2011, Defendants Vann and Schaefer filed a partial objection to the R&R (Doc. 58), to which Sydner responded on June 14, 2011 (Doc. 59). Sydner filed no objection to the R&R.

Accordingly, the Court will undertake de novo review of the portions of the Report to which specific objection was made. 28 U.S.C. § 636(b)(1)(B); FED.R.CIV.P.72(b);

Southern District of Illinois Local Rule 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may accept, reject or modify the recommended decision, or recommit the matter to the Magistrate Judge with instructions. FED.R.CIV.P. 72(b); Local Rule 73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999).

Rule (12)(b)(6) covers dismissal for failure to state a claim upon which relief can be granted. Dismissal is warranted under Rule 12(b)(6) if the complaint fails to set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); EEOC v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). In assessing a complaint or count under Rule 12(b)(6), the District Court accepts as true all well-pled factual allegations and draws all reasonable inferences in plaintiff's favor. Tricontinental Industries, Inc., Ltd. v. PriceWaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.), cert. denied, 128 S. Ct. 357 (2007); Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006); Corcoran v. Chicago Park District, 875 F.2d 609, 611 (7th Cir. 1989).

Because a complaint need not anticipate or overcome affirmative defenses such as the statute of limitations, the Court of Appeals for the Seventh Circuit has deemed it "irregular" to dismiss a claim as untimely under Rule 12(b)(6).Covington v. Mitsubishi Motor Mfg. of America, Inc., 154 Fed.Appx. 523, 524 (7th Cir. 2005) (citations omitted). Dismissal under Rule 12(b)(6) on this basis "is appropriate only where the plaintiff pleads himself out of court by 'admit[ting] all the ingredients of an impenetrable defense." Id. at 524-25 (citing Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir.2004); United States v. Lewis, 411 F.3d 838, 842 (7th Cir.2005) (explaining that dismissal is proper where complaint "plainly reveals that an action is untimely under the governing statute of limitations")). "In such cases, the validity of the defense must be 'apparent from the complaint itself' and 'unmistakable.'" Id. (citing Walker v. Thompson, 288 F.3d 1005, 1010 (7th Cir. 2002)). Here, the validity of the defense is apparent from the complaint itself because - unless the Court finds that the FAC relates back to the original complaint - the FAC was filed outside the statute of limitations and all newly-identified Defendants must be dismissed.

Defendants Vann and Schaefer argue that they were not properly identified until after the expiration of the statute of limitations.*fn1 Claims brought pursuant to § 1983 are subject to the statute of limitations for personal injury actions in the state in which the alleged injury occurred. Wilson v. Garcia, 471 U.S. 261, 276-80 (1985); Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006). Illinois personal injury actions are governed by a two-year statute of limitations. Id. (citing 735 ILCS 5/13-202). The events that form the basis of Sydner's FAC occurred on August 3 - 17, 2007; therefore, the statute of limitations for his claims ran on August 17, 2009. As a result, Sydner's claims against Vann and Schaefer are barred unless they relate back to the original complaint under Federal Rule of Civil Procedure 15(c).

Rule 15(c) provides that "[a]n amendment to a pleading relates back to the date of the ...


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