United States District Court, C.D. Illinois, Springfield Division
CHARLES W. SWAN, Plaintiff,
ROBERT K. FAIR and CHRIS S. BARE, Defendants.
MYERSCOUGH UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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. judici.com) 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.
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.
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.
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.
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 ...