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Gaines v. Burns

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

September 9, 2019

LEE A. GAINES, Plaintiff,
SHERYL BURNS RN, et al. Defendants.



         Plaintiff Lee Gaines brings this action against Defendants Sheryl Burns, Deborah Collymore, Andrew Q. De Funniak, Fayez M. Mekhael, Monina Mercado Jude, Terry Merriweather, Andrey Shindrayev, Peggy A. Westbrook, and Sunita B. Williamson for deliberate indifference to his medical needs under 42 U.S.C. § 1983 (Count I) and for medical negligence under Illinois law (Count II). Currently before the Court is Defendants' motion to dismiss [31] the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), solely as to the statute of limitations issue. For the reasons explained below, the Court denies the motion [31]. Plaintiff is given until October 7, 2019 to file a response brief on Defendants' remaining arguments for dismissal. Defendants are given until October 28, 2019 to file a reply. The Court will issue a ruling by mail.

         I. Background

         At all relevant times, Plaintiff was a detainee at the Cook County Jail. [15, at ¶ 5.] Defendants are all believed to be medical professionals who provide medical services to prisoners at Cook County Jail. [Id. at ¶¶ 6-14.] On or about September 8, 2016, Plaintiff noticed a tiny black mark on his left forearm. [Id. at ¶ 16.] This mark developed into a painful lump that ultimately was diagnosed as Methicillin-Resistant Staphylococcus Aureus (“MRSA”). [Id. at ¶ 16.]

         On July 26, 2018, Plaintiff filed his initial pro se complaint, naming as Defendants Cook County Department of Corrections (“DOC”), Cermak Health Services of Cook County, and Thomas Dart, Sherriff of Cook County. [See 1.] On the same day, Plaintiff also filed an application to proceed in forma pauperis [4] and a motion for attorney representation [5]. Plaintiff's original IFP application was defective, but he later supplied the information required for the Court to determine that he is in fact indigent. On October 31, 2018, this Court dismissed Sherriff Dart because he was not alleged to have been involved in the medical care of Plaintiff. [See 8.] The Court also dismissed the DOC and Cermak because they are not suable entities for the purpose of a Section 1983 claim. [Id.] However, the Court granted Plaintiff's motion for attorney representation and gave Plaintiff the opportunity to amend his complaint to name the proper defendants. [Id.] The Court ordered Plaintiff's counsel to file a status report by December 7, 2018 on his efforts to determine the appropriate defendants. [Id.] Counsel made his first appearance on November 1, 2018. [See 9.] He filed a status report as directed by the Court on December 7, 2019. [See 10.]

         On November 16, 2018, Plaintiff submitted a medical record request to a Cook County official in order to determine who the appropriate defendants were. [34-2.] As of December 7, 2019, Cook County had not yet sent counsel Plaintiff's medical records. [10, at ¶ 8.] The Court ordered a further status hearing on January 17, 2019. [See 11.] On January 14, 2019, Plaintiff's counsel reported to the Court that Plaintiff had received his medical records from Cook County and that Plaintiff expected to file an amended complaint on or before January 21, 2019. [13 at ¶ 5.]

         On January 17, 2019, Plaintiff filed his amended complaint, naming current Defendants. [See15.] On February 27, 2019, Defendants moved to dismiss the complaint, arguing that (1) both counts are time-barred by the applicable statute of limitations; (2) Count II should be dismissed for failure to comply with 735 ILCS 5/2-622(a)(1); and (3) Count I should be dismissed for failure sufficiently to allege a Fourteenth Amendment medical care claim. [See 31.] This Court ordered that the second and third issues be held in abeyance until the statute of limitations issue was resolved. [See 33.] Pending before the Court is Defendants' motion to dismiss Plaintiff's claims on statute of limitations grounds.

         II. Legal Standard

         To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or a ‘formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Dismissal for failure to state a claim under Rule 12(b)(6) is proper “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all of Plaintiff's well-pleaded factual allegations and draws all reasonable inferences in Plaintiff's favor. Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007). Evaluating whether a claim is sufficiently plausible to survive a motion to dismiss is “‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” McCauley v. City of Chi., 671 F.3d 611, 616 (7th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).

         III. Analysis

         Defendants move for dismissal of Plaintiff's claims against them because-according to Defendants-Plaintiff failed properly to name and bring his claims against them within the relevant statutes of limitations. Dismissal based on a statute of limitations is an affirmative defense. See Fed.R.Civ.P. 8(c)(1). Nevertheless, “dismissal is appropriate when the plaintiff pleads himself out of court by alleging 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); see also United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005) (explaining that dismissal is appropriate “where, as here, the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations”). “A two year statute of limitations applies to section 1983 claims in Illinois.” Licari v. City of Chicago, 298 F.3d 664, 667-68 (7th Cir. 2002) (citing Wilson v. Giesen, 956 F.2d 738, 741 (7th Cir. 1992)). A claim against a public employee arising out of patient care (Count II) in Illinois also is subject to a two-year statute of limitations. 745 ILCS 10/8-101(b).

         The alleged misconduct occurred in September of 2016. Although Plaintiff filed his initial complaint on July 26, 2018 [see 1], Plaintiff did not file his amended complaint naming Defendants until January 18, 2019 [see 15], more than two years after the alleged misconduct. Because both counts are subject to a two-year statute of limitations, Defendants argue that Plaintiffs' claims are time-barred. Plaintiff responds that his claims are not time-barred because: (1) this court tolled the statute of limitations; (2) the amended complaint relates back to Plaintiff's initial complaint under Fed.R.Civ.P. 15; (3) the amended complaint relates back to the initial complaint under Illinois law; and (4) the doctrine of equitable tolling should be applied. [See 34.] With respect to the first argument, although the Court previously instructed Plaintiff to “identify an appropriate defendant” in “light of any applicable tolling principles, ” the Court did not conclude one way or the other whether any such equitable tolling principles applied in this case. The Court therefore rejects Plaintiff's first argument and turns to Plaintiff's remaining arguments.

         A. Relation Back

         Plaintiff argues that his claims are timely under the relation back doctrine of Rule 15. Rule 15(c)(1) provides that “an amendment to a pleading relates back to the date of the original pleading when * * * the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should ...

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