United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall United States District Judge.
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  with
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
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
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.
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).
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.).
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.
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).
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.)
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).
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 ...