United States District Court, N.D. Illinois, Eastern Division
S. SHAH, U.S. DISTRICT JUDGE
motion to supplement his response to defendants' motion
to dismiss, , is granted. Defendants' motion to
dismiss, , is granted in part, denied in part.
Plaintiff's § 1983 claims are not dismissed, but his
state-law claims are dismissed with prejudice. Defendants
must answer the complaint by August 12, 2019. A status
hearing is set for September 6, 2019 at 9:30 a.m.
Sroga alleges that he was unlawfully harassed by Chicago
police officers on July 23, 2015.  ¶
On July 13, 2017, he filed a § 1983 lawsuit seeking
damages flowing from that encounter. Kevin Sroga v. Sgt.
P.O. Carl Wasielewski, et al., No. 17 CV 5190,
Dkt. No. 1 (N.D. Ill.). The lawsuit named as defendants
officers Wasielewski, Cruz, Hall, Drizner, Waldbusser, and
Zepeda (plus unknown John and Jane Doe officers and the City
of Chicago), and brought claims for violations of the Fourth,
Fifth, and Fourteenth Amendments, false arrest, malicious
prosecution, and negligent and intentional infliction of
emotional distress, among others. Id. On September
12, 2017, the judge entered a minute order that reads,
“[p]laintiff's oral motion to dismiss this case for
want of prosecution is granted.” Id. at No.
September 12, 2018, Sroga submitted a complaint that closely
resembles the one he filed in 2017. . Even though that
complaint seeks damages flowing from the same set of events,
lists the same defendants, and brings the same claims as his
previous lawsuit, , Sroga's civil cover sheet
indicates that this case is an original proceeding and does
not mention any related cases. . (Sroga confirms that the
complaint in this case is a “refiling” of his
earlier complaint.  ¶ 19.) These are the types of
technical defects that should not be used to dismiss a
pro se litigant's pleadings, Kelley v.
Zoeller, 800 F.3d 318, 325 (7th Cir. 2015), but they do
help explain why the defendants' motion to dismiss
initially focused on the statute of limitations rather than
res judicata. See ;  at 2.
essential elements of res judicata are (1) a final judgment
on the merits in an earlier action, (2) an identity of the
cause of action in both the earlier and later suit, and (3)
an identity of parties or privies in the two suits.”
Smith v. City of Chicago, 820 F.2d 916, 917 (7th
Cir. 1987). There is no dispute that the latter two elements
are met; the complaints are almost identical and Sroga has
not argued differently.
to Federal Rule of Civil Procedure 41(a)(2), when a court
dismisses a case at the plaintiff's request, the
dismissal is without prejudice unless the order says
otherwise. Fed.R.Civ.P. 41(a)(2). Dismissals under Rule
41(b)-which operate as an adjudication on the merits-are made
pursuant to a defendant's motion. Id. As best
the docket in his earlier case reflects, it was Sroga (not
defendants) who requested that his case be dismissed.
Kevin Sroga v. Sgt. P.O. Carl Wasielewski, et al.,
No. 17 CV 5190, Dkt. No. 10 (N.D. Ill. Sept. 12, 2017). The
docket entry does not say that the dismissal was with
prejudice, so I must assume that it was without. Fed.R.Civ.P.
cases cited by defendants are not to the contrary, because
they do not address federal-court dismissals initiated by
plaintiffs. See, e.g., Hill v. United States, 762
F.3d 589, 591 (7th Cir. 2014) (dismissal for failure to
prosecute was explicitly without prejudice, and any argument
that it should have been with prejudice was waived because
defendants had failed to raise it with the prior judge);
Pearson v. Chi. Hous. Auth., No. 14 CV 9993, 2014
U.S. Dist. LEXIS 176721, at *1 (N.D. Ill.Dec. 19, 2014);
Nehan v. Local Union No. 1-Bakery, No. 12-CV-05274,
2014 WL 2766774, at *1 (N.D. Ill. June 18, 2014). Dismissals
without prejudice do not bar future suits. Robinson v.
Sherrod, 631 F.3d 839, 843 (7th Cir. 2011)
(“Because the dismissal of the present suit was without
prejudice, res judicata (claim preclusion) will not bar a
future suit based on identical grounds.”).
§ 1983 claims are also not time barred. A complaint can
be dismissed as untimely if the plaintiff alleges facts
“sufficient to establish the complaint's
tardiness.” Cancer Found., Inc. v. Cerberus Capital
Mgmt., LP, 559 F.3d 671, 674-75 (7th Cir. 2009).
Sroga's § 1983 claims are each governed by
Illinois's two-year statute of limitations for personal
injury torts. Wallace v. Kato, 549 U.S. 384, 387
(2007); Behavioral Inst. of Indiana, LLC v. Hobart City
of Common Council, 406 F.3d 926, 929 (7th Cir. 2005);
735 Ill. Comp. Stat. 5/13-202. When those claims accrued is a
question of federal law. Wallace, 549 U.S. at 388.
Under federal law, a § 1983 claim accrues “when
the plaintiff knows or should know that his or her
constitutional rights have been violated.”
Behavioral Inst. of Indiana, 406 F.3d at 929.
claims derive from events that all took place in his presence
on July 23, 2015. See  ¶¶ 14-38.
“The ‘discovery rule,' which is read into
state statutes of limitations in federal question cases,
postpones the beginning of the limitations period of a
federal claim from the date the party is injured to the date
when the party discovers or should have discovered the
injury, exercising reasonable diligence.” Cathedral
of Joy Baptist Church v. Vill. of Hazel Crest, 22 F.3d
713, 717 (7th Cir. 1994). Sroga has not alleged facts tending
to show that he could not have known of the injury inflicted
by the officers with the exercise of due diligence, and the
burden to do so was his. See id. He had until July
23, 2017, to file a complaint.
that deadline, see Kevin Sroga v. Sgt. P.O. Carl
Wasielewski, et al., No. 17 CV 5190, Dkt. No. 1 (N.D.
Ill.), but then voluntarily dismissed that complaint and
waited one full year before refiling it. See ;
 ¶ 15. Illinois's tolling and savings rules
apply, Beck v. Caterpillar Inc., 50 F.3d 405, 406
(7th Cir. 1995), and those rules hold that actions dismissed
voluntarily by the plaintiff (as well as actions dismissed
for want of prosecution) may be refiled within one year of
their dismissal date. Dvorak v. Granite Creek GP Flexcap
I, LLC, 908 F.3d 248, 249 (7th Cir. 2018) (citing 735
Ill. Comp. Stat. 5/13-217); Jenkins v. Vill. of Maywood,
506 F.3d 622, 624 (7th Cir. 2007) (one-year tolling rule
applies to § 1983 claims).
complaint was refiled exactly one year later, which is
“within one year” for purposes of §
5/13-217. Henderson v. Bolanda, 253 F.3d 928, 931
n.2 (7th Cir. 2001) (applying Fed.R.Civ.P. 6(a) in order to
determine whether a § 1983 claim was filed within
Illinois's two-year personal injury statute of
limitations); Fed.R.Civ.P. 6(a)(1) (the day of the event that
triggers the period is excluded and the last day of the
period is included).
state-based claims, however, are time-barred. Illinois has a
one-year statute of limitations for any civil action
commenced against either a local entity (such as the City of
Chicago) or a local entity's employees (such as the
defendant officers). 745 Ill. Comp. Stat. 10/8-101(a);
Saragusa v. City of Chicago, 63 Ill.2d 288, 293
takes issue with various rulings in other cases he has
brought, but by his own admission,  ¶ 17, none of
those rulings are pertinent. See  ¶¶
6, 8, 10. He says the discovery rule explains why he missed
the deadline but offers no argument for why the discovery
rule should apply.  ¶ 2. He mentions advice of
counsel, but only in relation to Illinois's savings
statute-not Illinois's one-year statute of limitations
for claims against local entities and their employees.