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Swan v. Fair

United States District Court, C.D. Illinois, Springfield Division

January 3, 2017

CHARLES W. SWAN, Plaintiff,
ROBERT K. FAIR and CHRIS S. BARE, Defendants.



         This matter is before the Court on the Motion to Dismiss (d/e 12) filed by Defendant Chris S. Bare. Because Plaintiff's claims are barred by the statute of limitations, this case is dismissed with prejudice.

         I. BACKGROUND

         On September 14, 2016, Plaintiff Charles W. Swan filed a pro se Civil Rights Complaint against Defendants Robert K. Fair, the Sheriff of Cass County, Illinois, and Chris S. Bare, a City of Beardstown police officer.

         Plaintiff alleges that, on July 2, 2011, he was arrested and transported to the Beardstown Police Department. While in Officer Bare's custody, Plaintiff was injured and taken to the Rushville hospital for emergency treatment. Plaintiff does not explain how he was injured, but he alleges that Officer Bare caused Plaintiff great bodily harm and lied about it. Compl. at 2, ¶ C. Plaintiff also asserts that Officer Bare engaged in official misconduct, excessive force, fraud, and evidence tampering. Id.

         On July 18, 2011, while still in custody, Cass County Sheriff Fair transferred Plaintiff to the Cass County Health Clinic. Plaintiff alleges that the attending physician ordered a referral for neurology and an orthopedic surgeon to evaluate and treat Plaintiff for the injury that occurred on July 2, 2011. Sheriff Fair did not schedule the appointments despite Plaintiff's repeated requests for medical treatment.

         Plaintiff further alleges that both Defendants failed to provide Plaintiff with necessary medical care and conspired to violate one or more of Plaintiff's civil rights. Plaintiff claims that both Defendants failed in their responsibility under state law for “duty of care.” Compl. at 6, ¶ 5 (citing 745 ILCS 10/1-101.1 (providing that any defense or immunity available to any private person is also available to local public entities and public employees)). Plaintiff seeks $1 million in compensatory damages, as well as punitive damages.

         A court may take judicial notice of documents in the public record when ruling on a motion to dismiss under Rule 12(b)(6). Olson v. Champaign Cnty., Ill., 784 F.3d 1093, 1096 n.1 (7th Cir. 2015). A search of the Cass County Circuit Clerk's records available online (www. shows that Plaintiff pleaded guilty on September 1, 2011 to aggravated driving under the influence and aggravated battery in Cass County Case Nos. 2011-CF-51 and 2011-CF-52. That same day, Plaintiff was sentenced to a total of three years in the Illinois Department of Corrections and two years of mandatory supervised release, with credit for time served of 62 days.

         On September 20, 2016, United States Magistrate Judge Tom Schanzle-Haskins granted Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs and directed the Clerk to send notice of lawsuit waiver of service forms to the Defendants. See 28 U.S.C. § 1915. Both Defendants have executed waivers of service. See d/e 7, 9.

         On November 29, 2016, Officer Bare filed a Motion to Dismiss, asserting that Plaintiff's claims are barred by the statute of limitations. Plaintiff has not filed a response, despite the Court giving Plaintiff notice on December 1, 2016 that failure to respond may result in the motion being granted and the case terminated (d/e 14). See also December 6, 2016 Text Order (advising Plaintiff that a response to the motion was due on or before December 16, 2016). Plaintiff filed various exhibits on November 14, 2016 (d/e 11) and December 1, 2016 (d/e 15), which consist of medical records, documents Plaintiff filed in a case against Sheriff Fair in the Cass County circuit court in 2012, and what appear to be handwritten interview notes.


         This Court has subject matter jurisdiction because Plaintiff brings a claim based on 42 U.S.C. § 1983, a federal law. See 28 U.S.C. § 1331 (''The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States''). The Court has supplemental jurisdiction over Plaintiff's state law claim pursuant to 28 U.S.C. § 1367. Venue is proper because a substantial part of the events or omissions giving rise to Plaintiff's claims occurred in this district. 28 U.S.C. § 1391(b)(2).


         When considering a motion to dismiss under Rule 12(b)(6), the Court construes the complaint in the light most favorable to the plaintiff, accepting all well-pleaded allegations as true and construing all reasonable inferences in the plaintiff's favor. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). However, the complaint must set forth facts that plausibly demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). Plausibility means the plaintiff has alleged facts that allow the court to reasonably infer that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 ...

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