The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge
MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT WILKERSON, Magistrate Judge:
Now pending before the Court is a Motion for Summary Judgment filed by Defendants Brad Bramlet, Sean Starkweather, and Jeremy Anderson (Doc. 97). For the reasons set forth below, the motion is GRANTED in part and DENIED in part. Defendant Anderson is DISMISSED from the action. Judgment will be entered in his favor at the close of the case.
In his amended complaint (Doc. 75), Plaintiff Donte Henderson, a former inmate at the Menard Correctional Center, alleged that Defendants Bramlet, Starkweather, and Anderson violated his constitutional rights in events surrounding Bramlet's alleged use of excessive force on June 19, 2007, in violation of 42 U.S.C. § 1983. According to Plaintiff Henderson, on that day officers were supervising the release of inmates from their cells for showers. The officers "running showers" skipped Plaintiff's cell. When Plaintiff asked Correctional Officer Biggs (not a defendant) why officers skipped his cell, she told him to ask his cellmate. Later, Defendant Bramlet walked by Plaintiff's cell. Plaintiff asked him if he could speak to a lieutenant about the denial of his shower. Bramlet ignored him, which prompted Plaintiff to yell obscenities at Bramlet. A short time later, Bramlet and Starkweather arrived at Plaintiff's cell. Bramlet asked Plaintiff if he still wanted to shower. Plaintiff said yes, and Bramlet and Starkweather handcuffed him and escorted him to the shower room on the gallery. Plaintiff alleged that en route he apologized to Bramlet for yelling obscenities at him. Bramlet placed Plaintiff Henderson in the shower and removed his handcuffs. Then, according to Henderson, Bramlet spit in his face. Henderson turned to Defendant Starkweather and asked him if he was going to do anything about Bramlet's action. Starkweather told Henderson to "just take [his] shower." Bramlet and Starkweather left the area while Henderson showered. Approximately fifteen minutes later, Bramlet returned to the shower cell alone. Bramlet entered the shower cell, and without provocation, began beating Plaintiff. Plaintiff was able to exit the shower cell, but Bramlet followed, continuing to punch him. Additional officers began to arrive on the gallery, some of whom joined Bramlet in punching Henderson. Henderson alleged the officer continued to beat him, even after he was fully restrained. After the incident, several officers, including Defendant Anderson, transported Plaintiff to the health care unit. Plaintiff alleged that during transport the officers, including Anderson, intentionally rammed Plaintiff into walls and dropped him on the asphalt. Plaintiff's amended complaint raised three claims: 1) Defendants Bramlet and Anderson used excessive force in violation of 42 U.S.C. § 1983; 2) Defendants Bramlet and Anderson committed battery under Illinois law; and 3) Defendant Starkweather failed to protect Henderson from the beating by Defendant Bramlet.
Now before the Court is Defendants' motion for summary judgment. Defendants argue that 1) the claims against Defendant Anderson are barred by the statute of limitations; 2) the state law claims for battery are barred in federal court by sovereign immunity; 3) Plaintiff has not met his burden of establishing that Defendant Starkweather failed to intervene in violation of the constitution; and 4) Starkweather is entitled to qualified immunity.
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper only if the moving party can demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The burden is upon the moving party to establish that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A fact is material if it is outcome determinative under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ballance v. City of Springfield, Illinois Police Dep't, 424 F.3d 614, 616 (7th Cir. 2005); Hottenroth v. Village of Slinger, 388 F.3d 1015, 1027 (7th Cir. 2004). Even if the facts are not in dispute, summary judgment is inappropriate when the information before the court reveals that "alternate inferences can be drawn from the available evidence." Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir. 2004). See also Anderer v. Jones, 385 F.3d 1043, 1064 (7th Cir. 2004).
PLAINTIFF'S CLAIMS AGAINST DEFENDANT ANDERSON ARE BARRED BY THE STATUTE OF LIMITATIONS.
Plaintiff filed his original complaint in the action on January 7, 2008 (Doc. 1). The original complaint named as Defendants "Officer Bennet (Bramlet), Officer Anthony (White), Officer Starkweather, Officer John Doe (The 1 Assisting), Officer Biggs." After a waiver of service was returned unexecuted as to Defendant White, Plaintiff filed with the Court a "Letter to Judge and Clerk" (Doc. 20), in which he informed the Court that he did not mean to sue Anthony White, but Officer Anthony, who is white. The Court ordered the United States Marshals Service ("USMS") to serve summons upon Officer Anthony. The summons was returned unexecuted on February 12, 2010. On June 21, 2010, the Plaintiff informed the Court that the intended defendant was not Officer Anthony, but Officer Anderson (Doc. 63). On June 23, 2010, the Court ordered the USMS to serve summons upon Officer Anderson (Doc. 64). In the same order, the Court appointed counsel to represent Plaintiff. Summons was returned executed as to Officer Anderson on October 5, 2010 (Doc. 74). On October 28, 2010, with assistance of counsel, Plaintiff filed an amended complaint naming Brad Bramlet, Jeremy Anderson, and Sean Starkweather as defendants (Doc. 75). Anderson filed an answer to the complaint on December 22, 2010 (Doc. 84). In the answer, Anderson raised the affirmative defense that the applicable statute of limitations barred Plaintiff's claims against him. In the pending motion for summary judgment now before the Court, Defendant Anderson argues that judgment should be entered in his favor because the statute of limitations bars Plaintiff's claims (Doc. 97).
In section 1983 actions, a federal court applies the statute of limitations for personal injury actions in the state "where the incident forming the basis of the claim occurred." King v. One Unknown Federal Correctional Officer, 201 F.3d 910, 913 (7th Cir. 2000) (citing Wilson v. Garcia, 471 U.S. 261, 275 (1985)). In Illinois, that period is two years. See 735 ILCS 5/13-202.
The events described in Plaintiff's complaint occurred on June 19, 2007. Under the Illinois statute, Plaintiff should have filed his claims against Defendant Anderson by June 19, 2009. Plaintiff first identified Officer Anderson to the Court on June 21, 2010. Plaintiff filed the amended complaint naming Anderson as a defendant on October 28, 2010. Both of these dates fall outside of the two-year period. Thus, Plaintiff's claims against Defendant Anderson are barred by the statute of limitations unless the statute was somehow tolled under Illinois law, or the complaint "relates back" to the date of the original complaint under Fed. R. Civ. P. 15(c). Tolling of the Statute of Limitations
In section 1983 actions, a federal court also applies the state rules and provisions on tolling. See Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001). Illinois law provides that the statute of limitations is tolled during the time a prisoner exhausts his administrative remedies, which is required by the Prisoner Litigation Reform Act. 42 U.S.C. §1997e(a). Johnson, 272 F.3d at 521. Plaintiff filed a grievance about the incident--in which he names Officer Anderson--directly with the Administrative Review Board ("ARB") on June 19, 2007 (Doc. 97-2, p. 1, Exh. A). The ARB recommended that the grievance be denied. Department Director Roger E. Walker concurred on November 2, 2007 (Doc. 1, p. 7). Applying the state's tolling provision, Plaintiff should have filed his claims against Defendant Anderson by November 2, 2009, two years after Plaintiff exhausted his available administrative remedies. Because Plaintiff did not identify Officer Anderson to the Court until June 2010, and did not name him as a defendant in a properly-filed amended complaint until September 2010, the tolling provision cannot save the claims.
Plaintiff argues that equitable tolling should apply to save the claims against Defendant Anderson because "despite the exercise of due diligence and through no fault of his own, Henderson was unable to ascertain Anderson's name prior to the expiration of the statute of limitations." See, e.g., Shropshear v. Corp. Counsel of City of Chicago, 275 F.3d 593, 595 (7th Cir. 2001). The Court disagrees. Plaintiff's June 19, 2007, grievance names Defendant Anderson, which indicates that Plaintiff knew the identity of Defendant Anderson well ...