United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN United States District Court Judge.
William Nally, by counsel, brought this Eighth Amendment
action for deliberate indifference to a serious medical need
pursuant to 42 U.S.C. § 1983 against defendant
Parthasarathi Ghosh, M.D., among others. Dr. Ghosh filed the
present motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). For the reasons stated below, the Court
grants defendant's motion to dismiss with prejudice.
was, and remains, incarcerated by the Illinois Department of
Corrections (“IDOC”) at the Stateville
Correctional Center (“Stateville”) medically
serviced by Wexford Health Sources, Inc.
(“Wexford”). In December 2010, Nally began
experiencing severe abdominal pain due to complications with
his medications. Nally reported his symptoms to medical
technicians within Stateville immediately and was seen by Dr.
Ronald Shaefer who ordered lab tests, prescribed an
antihistamine and antacid, Zantac and Tums respectively, and
scheduled a follow-up appointment. During the follow-up
appointment in January 2011, Nally reported continued
suffering from severe abdominal pain and Dr. Shaefer ordered
an X-ray and prescribed Omeprazole, a heartburn medication.
The X-ray came back negative, but the new medication did not
alleviate Nally's symptoms.
April 5, 2011, Nally learned that Dr. Ghosh failed to record
Nally's numerous complaints that he made to Dr. Shaefer
regarding his severe abdominal pain. Nally further alleges
Dr. Ghosh never provided any diagnosis, treatment, or pain
relief to Nally for his symptoms. At the time that Nally was
suffering from severe abdominal pain and visiting with Dr.
Shaefer, Dr. Ghosh served as the Medical Director of
Stateville during the period when Nally's symptoms
occurred, holding the position from June 2003 until March 31,
2011, when he retired from the practice of medicine.
motion to dismiss, Dr. Ghosh argues that Nally's claims
against him are untimely based on his retirement date. In
response to Dr. Ghosh's motion to dismiss, Nally
maintains he lacked sufficient knowledge as to Dr.
Ghosh's retirement and did not allege so in the amended
complaint. Nally thus argues that any assertion regarding the
accrual period being based on Dr. Ghosh's retirement
falls outside the scope of facts upon which this Court may
rely at this procedural posture.
motion to dismiss pursuant to Rule 12(b)(6) for failure to
state a claim tests the sufficiency of the complaint, not its
merits. See Camasta v. Jos. A. Bank Clothiers, Inc.,
761 F.3d 732, 736 (7th Cir. 2014). When considering dismissal
of a complaint, the Court accepts all well-pleaded factual
allegations as true and draws all reasonable inferences in
favor of the plaintiff. Erickson v. Pardus, 551 U.S.
89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam);
Trujillo v. Rockledge Furniture LLC, 926 F.3d 395,
397 (7th Cir. 2019). To survive a motion to dismiss,
plaintiff must “state a claim for relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). A complaint is facially plausible when plaintiff
alleges “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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
limitations defense is not usually resolved on a Rule
(12)(b)(6) motion because a plaintiff is not required to
anticipate affirmative defenses, such as the statute of
limitations. Amin Ijbara Equity Corp. v. Village of Oak
Lawn, 860 F.3d 489, 492 (7th Cir. 2017); see
Fed. R. Civ. P. 8(c)(1) (explicitly categorizing statute of
limitations as an affirmative defense). Nonetheless,
dismissal under Rule 12(b)(6) is proper if “a complaint
contains everything necessary to establish that the claim is
untimely.” Collins v. Village of Palatine, IL,
875 F.3d 839, 842 (7th Cir. 2017).
Court first turns to Nally's argument that consideration
of matters outside of the amended complaint, namely Dr.
Ghosh's retirement date, would result in reversible
error. As a general rule, however, courts may take judicial
notice of public records, including public court documents,
when ruling on a motion to dismiss. Orgone Capital III,
LLC v. Daubenspeck, 912 F.3d 1039, 1044 (7th Cir. 2019);
Fed.R.Evid. 201(d). Public documents clearly indicate that
Dr. Ghosh retired from Wexford on March 31, 2011. See
Nally v. Ghosh, No. 13-cv-7268, 2019 WL 588714, at *1
(N.D. Ill. Feb. 13, 2019) (Coleman, J.) (“Dr. Ghosh was
the Medical Director at Stateville from June 2003 to March
31, 2011, when he retired from the practice of
medicine.”); Diggs v. Ghosh, No. 14-cv-3563,
2016 WL 9045474, at *4 (N.D. Ill., Jan. 14, 2016) (Darrah,
J.) (“Defendant Parthasarathi Ghosh served as the
Medical Director at Stateville from 2003 until March 31,
established Dr. Ghosh's retirement date through judicial
notice, the Court turns to Dr. Ghosh's argument that
Nally's claims are barred by the statute of limitations.
Prior to applying the statute of limitations, the Court must
determine when the injury in question accrued. See Cesal
v. Moats, 851 F.3d 714, 721-722 (7th Cir. 2017). The
limitations period and tolling rules for claims brought under
§ 1983 are supplied by state law, and in Illinois, the
limitations period for these claims is two years. See
Lewis v. City of Chicago, 914 F.3d 472, 478 (7th Cir.
2019). That said, the accrual date for a § 1983 claim is
a question of federal law and generally begins when the
plaintiff can file suit and obtain relief. Wallace v.
Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973
(2007); see also Amin Ijbara Equity, 860 F.3d at 493
(“Accrual ‘occurs when a plaintiff knows the fact
and the cause of an injury.'”) (citation omitted).
relates to Dr. Ghosh, Nally's injury accrued on March 31,
2011, the day Dr. Ghosh retired. As the Seventh Circuit
instructs, “if a defendant leaves the institution
altogether, his involvement in the alleged wrong is over,
” therefore, the “date of the defendant's
departure thus marks the last possible time when the claim
might have accrued.” Wilson v. Wexford Health
Sources, Inc., 932 F.3d 513, 518 (7th Cir. 2019);
see also Heard v. Elyea, 525 Fed.Appx. 510, 511 (7th
Cir. 2013) (citation omitted) (“when a person resigns
or retires from his public employment, the claim accrues on
that date.”). Illinois' two-year statute of
limitations gave Nally until April 1, 2013 to file his
lawsuit against Dr. Ghosh. Because Nally did not file his
complaint until February 27, 2017, Nally's suit is
time-barred unless he can establish that his claim against
Dr. Ghosh was tolled while he pursued the prison grievance
process required by the PLRA, 42 U.S.C. § 1997e(a).
See Wilson, 932 F.3d at 518; Cesal, 851
F.3d at 721.
in mind that Nally's claim against Dr. Ghosh accrued on
April 1, 2011, Nally alleges in his amended complaint that he
filed a grievance concerning his severe upper abdominal pain
on March 28, 2013. This means that the two-year limitations
period ran for all but three days during this period. Nally
also alleges that he had exhausted all of his administrative
remedies as to the claims asserted in the amended complaint
prior to filing the present lawsuit. Accordingly, for
Nally's claim against Dr. Ghosh to be timely, the Court
would have to make the unreasonable inference that
Nally's administrative remedies as to Dr. Ghosh were
tolled up until three days or less prior to filing this