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Green v. Pfister

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

July 15, 2019

Ras Green (B-32334), Plaintiff,
Randy Pfister, et al., Defendants.



         Defendant's motion to dismiss [22] is granted. Plaintiff's complaint is dismissed as untimely. The dismissal is with prejudice, and final judgment shall enter for Defendant.


         Plaintiff Ras Green, a Stateville Correctional Center inmate proceeding pro se, initiated this 42 U.S.C. § 1983 suit against former Stateville Warden Randy Pfister, two Stateville correctional officers, and Dr. Obaisi (Stateville's former medical director, now deceased). Green seeks damages for injuries sustained when a groundhog bit and scratched him on August 3, 2016. On initial review, the court dismissed Dr. Obaisi and the two correctional officers, but allowed the complaint to proceed against Warden Pfister, who allegedly ignored Stateville's groundhog, skunk, and raccoon infestation problem leading up to the August 3, 2016 incident. Because Green filed his complaint on September 6, 2018, more than two years after the incident, Pfister moves to dismiss this suit as untimely. For the reasons stated herein, the motion is granted.

         Green's Claim is Untimely

          “A statute of limitations provides an affirmative defense, and a plaintiff is not required to plead facts in the complaint to anticipate and defeat affirmative defenses. But when a plaintiff's complaint nonetheless sets out all of the elements of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate.” Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012); see also Jones v. Bock, 549 U.S. 199, 215 (2007) (“If [a complaint's] allegations . . . show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim.”). When considering a motion to dismiss, courts “accept the well-pleaded facts in the complaint as true, ” Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013), “draw all reasonable inferences from those facts in favor of the plaintiff, ” Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015), and construe complaints filed by pro se litigants liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). When addressing a motion to dismiss, the Court must determine if the complaint's “allegations [are] enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         Green's complaint, presumed true at this stage, alleges the following. Groundhogs, skunks, and raccoons “roam[ ] freely throughout Stateville.” (Complaint [1], at 4.) On August 3, 2016, as Green and other inmates were being escorted to the dining hall, several groundhogs were near the pathway. Another inmate picked up one of the groundhogs and carried it with him, “pointing it at other inmates.” As he did so, the groundhog “broke free from the inmate's hands and latched on to the plaintiff['s] arm, [ ] biting and scratching his arm and hand.” (Id. at 5.) Neither of the two officers escorting inmates that day prevented the inmate from carrying the groundhog, and neither officer sent Green for immediate medical attention for his bite and scratches. (Id. at 5-6.) Later, Green's unit officer sent him to the healthcare unit where he received a tetanus shot and antibiotics, but no tests for rabies or hepatitis. (Id. at 6-7.) Green filed his complaint and initiated this suit on September 6, 2018.

         Section 42 U.S.C. § 1983 itself does not have a statute of limitations, but instead adopts the limitations period of the state where the claim arose. Green's § 1983 claim is thus “subject to the two-year statute of limitations that Illinois provides for personal injury actions, 735 ILCS 5/13- 202.” Bryant v. City of Chicago, 746 F.3d 239, 241 (7th Cir. 2014). Although state law sets the length of the limitations period for a § 1983 claim, federal law governs when the claim accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007). “[T]he standard rule [is] that [accrual occurs] when the plaintiff has ‘a complete and present cause of action,' that is, when ‘the plaintiff can file suit and obtain relief.'” Id. (third alteration in original) (citations omitted). This occurs “when the plaintiff knows or should know that his or her constitutional rights have been violated.” Behavioral Inst. of Ind., LLC v. Hobart City of Common Council, 406 F.3d 926, 929 (7th Cir. 2005); Tate v. Sheahan, No. 17 C 997, 2019 WL 2248543, at *1 (N.D. Ill. May 24, 2019).

         Green's allegations demonstrate that he was aware of his claim against Pfister at the time of the groundhog incident on August 3, 2016. According to the complaint, outdoor rodents had been at “Stateville for so many years” before the biting incident that signs should have been posted, warning inmates against picking them up, and prison healthcare personnel should have known better how to treat a person bitten by one “these wild animals.” (Id.) Green's claim thus accrued on August 3, 2016, and he could have asserted his claim-that “Defendant [Pfister] turn[ed] a blind eye to these conditions that caused the plaintiff to be bitten by a wild animal”-at that time. (Id. at 7.)[1]

         Continuing Violation Doctrine Does Not Apply Here

         Green's only response to timeliness issue is a contention that Pfister's refusal to address the outdoor rodent infestation adequately was a continuing violation, meaning that Green's claim continued for as long as Pfister deliberately avoided the problem. (Response [29].) “For continuing Eighth Amendment violations, the two-year period starts to run (that is, the cause of action accrues) from the date of the last incidence of that violation, not the first.” Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013) (claim of excessive lockdowns asserted a continuing violation and “[t]he statute of limitations began running from the last date of lockdown”); see also Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir. 2001) (failure to treat an inmate's hernia was a continuing violation, and plaintiff's claim accrued when he left the prison and thus was no longer subject to the constitutionally inadequate medical care). As the Seventh Circuit recently explained:

The continuing violation doctrine . . . is aimed at ensuring that illegal conduct is punished by preventing a defendant from invoking the earliest manifestation of its wrongdoing as a means of running out the limitations clock on a course of misconduct that persisted over time; the doctrine serves that end by treating the defendant's misconduct as a continuing wrong and deeming an action timely so long as the last act evidencing a defendant's violation falls within the limitations period.

United States v. Spectrum Brands, Inc., 924 F.3d 337, 350 (7th Cir. 2019). Phrased differently, courts consider a violation continuing where “it would be unreasonable to require or even permit [a prisoner] to sue separately over every incident of the defendant's unlawful conduct.” Heard, 253 F.3d at 319 (“every day that the defendants ignored the plaintiff's request for treatment increased his pain, ” and every day created a new claim).

         In order for Pfister's alleged inaction to the outdoor rodent problem to be a continuing violation, Green must be able to show that he had a new constitutional claim “every day that [Pfister] ignored” the problem. Heard, 253 F.3d at 319; see also Turley, 729 F.3d at 651. Although Green attempts to characterize the outdoor pest problem as a continuing violation, the harm he identifies relates directly to the August 3, 2016 groundhog-bite incident; as Green puts it: “Defendant [Pfister] turn[ed] a blind eye to these conditions that caused the plaintiff to be bitten by a wild animal.” ([1], at 7.) Apart from the injuries Green sustained on August 3, 2016, neither his complaint, nor his response to the motion to dismiss, identifies any harm or significant risk of harm. An Eighth Amendment claim requires allegations of: (1) an objectively serious condition that results “‘in the denial of ‘the minimal civilized measure of life's necessities, '” (2) a defendant's deliberate indifference to the condition, and (3) “some cognizable harm.” Gray v. Hardy, 826 F.3d 1000, 1005-06 (7th Cir. 2016) (quoted case omitted). Prolonged exposure to a pest infestation can give rise to a constitutional claim. Thomas v. Illinois, 697 F.3d 612, 614 (7th Cir. 2012). But this is because the prolonged exposure itself, even in the absence of a physical injury, is harmful. See Bentz v. Hardy, 638 Fed.Appx. 535, 538 (7th Cir. 2016) (“depending upon the extent, duration, and kind of infestation an inmate was made to endure, a trier of fact still may reasonably find that an Eighth Amendment violation occurred even without a showing of physical harm”) (citing Thomas, 697 F.3d 612, 614). In short, there must be some showing of “harm, be it physical injury, psychological harm, or ‘hazard, or probabilistic harm.'” Boclair v. Godinez, No. 13 C 08630, 2017 WL 1427069, at *6 (N.D. Ill. Apr. 21, 2017) (quoting Thomas, 697 F.3d at 614-15); see also Murithi v. Hardy, No. 13 C 00599, 2016 WL 890695, at *8 (N.D. Ill. Mar. 9, 2016). Infestations of rodents and cockroaches in prison kitchens or cells can constitute such harm. S ...

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