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Cole v. Lemke

United States District Court, N.D. Illinois, Eastern Division

April 24, 2018

RICHARD COLE, Plaintiff,
v.
MICHAEL LEMKE, et al., Defendant.

          MEMORANDUM OPINION AND ORDER

          Hon. Virginia M. Kendall United States District Judge.

         On August 3, 2016, Plaintiff Richard Cole, an inmate at Stateville Correctional Center, filed a pro se action under 42 U.S.C. § 1983 against Warden Michael Lemke, Wexford Health Sources, Inc., Dr. Obasi, Medical Technician Shanel Barnett, Dr. Ann H. Davis and Nurse Jane Doe (collectively, Defendants) alleging that Defendants violated his Eight Amendment right to be free from cruel and unusual punishment. (Dkt. No. 1). On December 2, 2016, Plaintiff's appointed counsel filed a First Amended Complaint naming the same Defendants. (Dkt. No. 19). On December 20, 2017, Plaintiff's appointed counsel filed a Second Amended Complaint adding Bernadette Ononiwu as a named defendant for the first time, in substitution for Defendant Nurse Jane Doe. (Dkt. No. 83). On February 20, 2018, Defendant Ononiwu moved to dismiss Plaintiff's complaint with prejudice as to her on statute of limitations grounds. (Dkt. No. 94). For the following reasons, the Court grants Defendant Ononiwu's Motion to Dismiss [94] with prejudice.

         BACKGROUND

         Plaintiff attached as exhibits to his Response to the Defendant Ononiwu's Motion to Dismiss a copy of his original pro se Complaint and attached exhibits (see Dkt. No. 99 at Ex. B), a copy of his First Amended Complaint (see Id. at Ex. C), a copy of his operative Second Amended Complaint (see id. at Ex. A), a copy of the Certificate of Service of Plaintiffs' Interrogatories and Requests for Production to Defendants dated July 10, 2017 (see Id. at Ex. D), and a copy of Defendants' Objections and Responses thereto dated October 30, 2017 (see Id. at Ex. A). The exhibits attached to Plaintiff's original pro se Complaint include six pages of medical records from June 11, 2013 and communications from the Illinois Department of Corrections (IDOC) Administrative Review Board (ARB) regarding a grievance Plaintiff filed related to the events described in his original Complaint. See Id. at Ex. B. Both parties cite to some or all of these exhibits in their filings.

         Generally, matters outside the pleadings may not be considered on a motion to dismiss. See Fed. R. Civ. P. 12(b). However, the Court can examine documents attached to a party's filing on the motion to dismiss if they are referred to in the plaintiff's complaint and are central to her claim. Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993); Fed.R.Civ.P. 10(c). The medical records and the communications regarding Plaintiff's grievance are referred to in the Second Amended Complaint and are central to Plaintiff's claim. (See Dkt. No. 83 at ¶¶ 11, 22-33); see also Anderson v. Randle, 451 Fed.Appx. 570, 571 (7th Cir. 2011) (medical records attached to the pleading incorporated into pleading as evidence of their existence but not necessarily their veracity); Clark v. Law Office of Terrence Kennedy, Jr., 709 Fed.Appx. 826, 827 (7th Cir. 2017) (considering previously filed administrative charges attached to Plaintiff's complaint at motion to dismiss stage).

         The Court may also consider facts within its judicial-notice power. See Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012). A court may take judicial notice of facts “(1) not subject to reasonable dispute and (2) either generally known within the territorial jurisdiction or capable of accurate and ready determination through sources whose accuracy cannot be questioned.” Id. at 773-74. Plaintiff does not dispute the accuracy of the records attached to his filing. In fact, most are public court documents. See Id. at 774 (taking judicial notice of “facts readily ascertainable from the public court record and not subject to reasonable dispute”). The Court therefore considers all documents attached to Plaintiff's Response to Defendant Ononiwu's Motion to Dismiss in determining whether to dismiss Plaintiff's claim against Ononiwu as time-barred.

         In his original Complaint, Plaintiff alleged that beginning May 6, 2013, Warden Lemke was indifferent to Plaintiff's health concerns by refusing to provide adequate winter coats to inmates of Stateville Correctional Center where he was imprisoned and that, as a result, Plaintiff caught a cold on or about June 4, 2013 that eventually developed into pneumonia. (Dkt. No. 83, Ex. B. at 4-5). The original Complaint alleged further that at or about 1:40 a.m. on June 11, 2013, Plaintiff began having trouble breathing and experienced severe pain in his lung, chest and ribs and was rushed to the Stateville healthcare unit where several nurses tried but could not determine what was wrong with him. (Id. at 5-6).

         The original Complaint alleged that one nurse, who he identified as Nurse Jane Doe, administered medication and oxygen to Plaintiff as directed by Dr. Obasi, attempted to administer an EKG exam and, despite not being able to get the machine to work, eventually reported Plaintiff's EKG as normal. (Id. at 5). Plaintiff also alleged that he asked Nurse Jane Doe to tell to Dr. Obasi that he continued to have trouble breathing and experience severe pain but she failed to do so. (Id.) Plaintiff alleged that Nurse Jane Doe sent him back to his cell with a medical pass and that he was diagnosed with pneumonia later that day. (Id.). Plaintiff alleged that Nurse Jane Doe was deliberately indifferent to his serious medical needs. (Id.).

         Plaintiff attached six pages of medical records to his original Complaint. (Id. at 16-21). The medical records include various entries with corresponding signatures, presumably made by medical health professionals. (Id.). Plaintiff also attached communications from the IDOC ARB responding to a grievance he filed related to the events described in his original Complaint. (Id. at 14-15). These documents show that the ARB reviewed Plaintiff's grievance, determined the issue raised was properly addressed and denied the grievance. (Id.) The IDOC Director signed off on the denial on August 8, 2014. (Id.).

         The Court appointed counsel to represent Plaintiff on September 8, 2016 and Plaintiff's appointed counsel filed appearances in this case on September 12, 2016. (Dkt. Nos. 5, 7-8). On December 2, 2016, Plaintiff's appointed counsel filed a First Amended Complaint naming the same Defendants. (Dkt. No. 19; Dkt. No. 83, Ex. C). The First Amended Complaint added the sentence “Nurse Jane Doe's illegible signature appears on Cole's medical record for Jane Doe's treatment of Cole on June 11, 2013” but otherwise contained no new allegations regarding the identity of Nurse Jane Doe. (Id. at ¶ 7).

         On July 10, 2017, eleven months after joining the case and seven months after filing the First Amended Complaint, Plaintiff's counsel issued Interrogatories and Requests for Production to the named Defendants. (See Dkt. No. 83, Ex. D). Interrogatory No. 11 of 16 directed Defendants to “Identify the full name, residence address and employer of Nurse Jane Doe, who was tasked with providing care and/or treatment to Plaintiff on June 11, 2013, as referred to in the Complaint, Paragraphs 23-35.” (Id. at 6). Defendants' Responses and Objections, issued October 30, 2017, identified Bernadette Ononiwu as Nurse Jane Doe in response to Interrogatory No. 11. (Id.)

         Defendant filed a Motion for Leave to File Second Amended Complaint on December 7, 2017, which the Court granted. (Dkt. Nos. 73, 81). On December 20, 2017, Plaintiff's counsel filed a Second Amended Complaint substituting Defendant Bernadette Ononiwu for Defendant Nurse Jane Doe. (Dkt. No. 83).

         DISCUSSION

         Defendant Ononiwu argues in her Motion to Dismiss that Plaintiff's claim against her should be dismissed as time-barred because he failed to file the claim within the applicable statute of limitations and the claim does not relate back to his timely-filed original ...


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