United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge
matter is before the Court on the Report and Recommendation
(“Report”) of United States Magistrate Judge
Reona J. Daly (Doc. 72), recommending that Defendant Amy
Ulrey's Motion to Dismiss for failure to state a claim
(Doc. 61) be granted. Plaintiff James Owens filed a timely
objection to the Report (Doc. 73) and a Supplement (Doc. 74).
For the following reasons, Judge Daly's Report is
27, 2017, Plaintiff James Owens filed a Complaint pursuant to
42 U.S.C §1983 alleging that his constitutional rights
were violated by a Jane Doe Nurse and others beginning on
October 24, 2015 (Doc. 1). Specifically, Owens alleges he
sought help from the Jane Doe Nurse on October 30, 2015 for a
painful condition in his hip and leg but that she refused to
provide adequate medical care (Doc. 1, p. 4).
this Court's review of the Complaint pursuant to 28
U.S.C. § 1915A, Plaintiff was permitted to proceed on an
Eighth Amendment claim that Jane Doe Nurse was deliberately
indifferent to his medical needs from October 24, 2015 to
February 22, 2016 (Doc. 5). The Screening Order also
Plaintiff will also be allowed to proceed with Count 1
against the unknown defendant who is referred to as
“Nurse Jane Doe.” However, this defendant must be
identified with particularity before service of the Complaint
can be made on her. Where a prisoner's Complaint states
specific allegations describing conduct of individual prison
staff members sufficient to raise a constitutional claim, but
the names of those defendants are not known, the prisoner
should have the opportunity to engage in limited discovery to
ascertain the identity of those defendants.
Rodriguez, 577 F.3d at 832. In this case, Warden
Lamb is already named as a defendant in his or her official
capacity only, and shall be responsible for responding to
discovery aimed at identifying this unknown defendant.
Guidelines for discovery will be set by the United States
Magistrate Judge. Once the name of Defendant Nurse Jane Doe
is discovered, Plaintiff shall file a motion to substitute
this newly identified defendant in place of the generic
designations for her in the case caption and throughout the
(Doc. 5, pp. 11-12).
October 16, 2017, Judge Daly set a deadline of September 20,
2018 for identifying the John/Jane Doe parties through an
Amended Complaint (Doc. 21). Owens did not file an Amended
Complaint by the deadline. Therefore, on September 25, 2018,
Judge Daly issued an Order to show cause why the Jane Doe
Nurse should not be dismissed for failure to prosecute (Do.
47). Owens was then granted additional time to file an
Amended Complaint (Doc. 50),  and he did so on November 8,
2018, naming Amy Ulrey as the Jane Doe Nurse (Doc. 53). The
Amended Complaint is identical to the original Complaint
except that “Jane Doe” is crossed out and
Ulrey's name is written in.
Defendant Ulrey filed a Motion to Dismiss, arguing that
Owens' claim is barred by the statue of limitations (Doc.
62). In response, Owens argues that Ulrey was aware of the
claim against her and that he had requested information
regarding her identity from Warden Lamb on August 24, 2017
but had received no response (Doc. 65). He further argues
that Defendants engaged in fraudulent concealment in
preventing him from discovering Ulrey's name.
December 11, 2018, Judge Daly issued a Report setting forth
the applicable law and her conclusions. She found that
Owens' claim accrued on February 22, 2016, that he was
required to file an Amended Complaint naming Ulrey by
February 22, 2018, and that therefore, his November 8, 2018
Amended Complaint was filed too late. Judge Daly also
concluded that Owens could not benefit from the relation back
provision of Federal Rule of Civil Procedure 15(c) or the
doctrine of fraudulent concealment. Thus, Judge Daly
recommended that Owens' claim against Ulrey be dismissed
Owens filed an objection, the undersigned will undertake a
de novo review of the Report. 28 U.S.C. §
636(b)(1)(B), (C); Fed.R.Civ.P. 72(b); SDIL-LR 73.1(b);
see also Govas v. Chalmers, 965 F.2d 298, 301 (7th
Cir. 1992). De novo review requires the Court to
“give fresh consideration to those issues to which
specific objections have been made” and to make a
decision “based on an independent review of the
evidence and arguments without giving any presumptive weight
to the magistrate judge's conclusion.” Mendez
v. Republic Bank, 725 F.3d 651, 661 (7th Cir. 2013).
survive a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a Complaint must “state a claim to
relief that is plausible on its face.” Lodholtz v.
York Risk Servs. Group, Inc., 778 F.3d 635, 639 (7th
Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “[W]hen ruling on
a defendant's motion to dismiss, a judge must accept as
true all of the factual allegations contained in the
complaint.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). The Court must also draw all reasonable inferences
and facts in favor of the plaintiff. See Vesely v.
Armslist LLC, 762 F.3d 661, 664 (7th Cir. 2014).
statute of limitations defense is an affirmative defense that
would not typically be asserted in a motion to dismiss.
Fed.R.Civ.P. 8(c). However, “the statute of limitations
may be raised in a motion to dismiss if ‘the
allegations of the complaint itself set forth everything
necessary to satisfy the affirmative defense.'”
Brooks v. Ross, 578 ...