Swan v. Fair et al

Filing 16

OPINION entered by Judge Sue E. Myerscough on 01/03/2017. SEE WRITTEN OPINION. Officer Bare's Motion to Dismiss (d/e 12 ) is GRANTED. Plaintiff's Complaint is DISMISSED with prejudice against both Defendants. THIS CASE IS CLOSED. (DM, ilcd)

E-FILED

Thursday, 05 January, 2017 12:46:41 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CHARLES W. SWAN,
Plaintiff,
v.
ROBERT K. FAIR and CHRIS
S. BARE,
Defendants.

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No. 16-cv-3252

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This matter is before the Court on the Motion to Dismiss (d/e
12) filed by Defendant Chris S. Bare. Because Plaintiff’s claims are
barred by the statute of limitations, this case is dismissed with
prejudice.
I. BACKGROUND
On September 14, 2016, Plaintiff Charles W. Swan filed a pro
se Civil Rights Complaint against Defendants Robert K. Fair, the
Sheriff of Cass County, Illinois, and Chris S. Bare, a City of
Beardstown police officer.

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Plaintiff alleges that, on July 2, 2011, he was arrested and
transported to the Beardstown Police Department. While in Officer
Bare’s custody, Plaintiff was injured and taken to the Rushville
hospital for emergency treatment. Plaintiff does not explain how he
was injured, but he alleges that Officer Bare caused Plaintiff great
bodily harm and lied about it. Compl. at 2, ¶ C. Plaintiff also
asserts that Officer Bare engaged in official misconduct, excessive
force, fraud, and evidence tampering. Id.
On July 18, 2011, while still in custody, Cass County Sheriff
Fair transferred Plaintiff to the Cass County Health Clinic. Plaintiff
alleges that the attending physician ordered a referral for neurology
and an orthopedic surgeon to evaluate and treat Plaintiff for the
injury that occurred on July 2, 2011. Sheriff Fair did not schedule
the appointments despite Plaintiff’s repeated requests for medical
treatment.
Plaintiff further alleges that both Defendants failed to provide
Plaintiff with necessary medical care and conspired to violate one or
more of Plaintiff’s civil rights. Plaintiff claims that both Defendants
failed in their responsibility under state law for “duty of care.”
Compl. at 6, ¶ 5 (citing 745 ILCS 10/1-101.1 (providing that any
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defense or immunity available to any private person is also available
to local public entities and public employees)). Plaintiff seeks $1
million in compensatory damages, as well as punitive damages.
A court may take judicial notice of documents in the public
record when ruling on a motion to dismiss under Rule 12(b)(6).
Olson v. Champaign Cnty., Ill., 784 F.3d 1093, 1096 n.1 (7th Cir.
2015). A search of the Cass County Circuit Clerk’s records
available online (www. judici.com) shows that Plaintiff pleaded
guilty on September 1, 2011 to aggravated driving under the
influence and aggravated battery in Cass County Case Nos. 2011CF-51 and 2011-CF-52. That same day, Plaintiff was sentenced to
a total of three years in the Illinois Department of Corrections and
two years of mandatory supervised release, with credit for time
served of 62 days.
On September 20, 2016, United States Magistrate Judge Tom
Schanzle-Haskins granted Plaintiff’s Application to Proceed in
District Court Without Prepaying Fees or Costs and directed the
Clerk to send notice of lawsuit waiver of service forms to the
Defendants. See 28 U.S.C. § 1915. Both Defendants have executed
waivers of service. See d/e 7, 9.
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On November 29, 2016, Officer Bare filed a Motion to Dismiss,
asserting that Plaintiff’s claims are barred by the statute of
limitations. Plaintiff has not filed a response, despite the Court
giving Plaintiff notice on December 1, 2016 that failure to respond
may result in the motion being granted and the case terminated
(d/e 14). See also December 6, 2016 Text Order (advising Plaintiff
that a response to the motion was due on or before December 16,
2016). Plaintiff filed various exhibits on November 14, 2016 (d/e
11) and December 1, 2016 (d/e 15), which consist of medical
records, documents Plaintiff filed in a case against Sheriff Fair in
the Cass County circuit court in 2012, and what appear to be
handwritten interview notes.
II. JURISDICTION
This Court has subject matter jurisdiction because Plaintiff
brings a claim based on 42 U.S.C. § 1983, a federal law. See 28
U.S.C. ' 1331 (AThe district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of
the United States@). The Court has supplemental jurisdiction over
Plaintiff’s state law claim pursuant to 28 U.S.C. § 1367. Venue is
proper because a substantial part of the events or omissions giving
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rise to Plaintiff=s claims occurred in this district. 28 U.S.C.
' 1391(b)(2).
III. LEGAL STANDARD
When considering a motion to dismiss under Rule 12(b)(6), the
Court construes the complaint in the light most favorable to the
plaintiff, accepting all well-pleaded allegations as true and
construing all reasonable inferences in the plaintiff’s favor. Tamayo
v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). However, the
complaint must set forth facts that plausibly demonstrate a claim
for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007).
Plausibility means the plaintiff has alleged facts that allow the court
to reasonably infer that the defendant is liable for the misconduct
alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Merely
reciting the elements of a cause of action or supporting claims with
conclusory statements is insufficient to state a cause of action. Id.
Generally, the running of the statute of limitations is an
affirmative defense. Chi. Bldg. Design, P.C. v. Mongolian House,
Inc., 770 F.3d 610, 613 (7th Cir. 2014). “[C]omplaints do not have
to anticipate affirmative defenses to survive a motion to dismiss.”
United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005);
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Hollander v. Brown, 457 F.3d 688, 691 n.1 (2006) (“a federal
complaint does not fail to state a claim simply because it omits
facts that would defeat a statute of limitations defense”). Dismissal
under Rule 12(b)(6) is appropriate, however, when the complaint
contains sufficient facts to establish that the action is barred by the
applicable statute of limitations. Andonissamy v. Hewlett-Packard
Co., 547 F.3d 841, 847 (7th Cir. 2008).
IV. ANALYSIS
Officer Bare moves to dismiss Plaintiff’s claims because they
are barred by the statute of limitations. The Court agrees.
Section 1983 has a two-year statute of limitations in Illinois.
Woods v. Ill. Dep’t of Children & Family Servs., 710 F.3d 762, 768
(7th Cir. 2013). Plaintiff alleges that the physical injury occurred
on July 2, 2011. Therefore, Plaintiff’s § 1983 excessive force claim
filed in September 2016 is barred by the statute of limitations. See
Terry v. Chi. Police Dep’t, --- F. Supp. 3d ---, 2016 WL 4091619, at
*3 (N.D. Ill. Aug. 2, 2016) (§ 1983 excessive force claim accrued
when the plaintiff was injured).
Plaintiff alleges that he was denied necessary medical
treatment while in the custody of Officer Bare and Sheriff Fair and
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that Defendants conspired to violate Plaintiff’s civil rights. The Cass
County Circuit Court’s records show that Plaintiff was no longer in
the custody of Defendants by approximately September 1, 2011,
when Plaintiff pleaded guilty and was sentenced to three years’
imprisonment in the Illinois Department of Corrections. Therefore,
even if the Court treated Plaintiff’s claims as alleging some sort of
continuing violation, Plaintiff’s claims accrued upon Plaintiff’s
release from Defendants’ custody in approximately September
2011. See, e.g., Heard v. Sheahan, 253 F.3d 316, 318 (7th Cir.
2001) (finding that a deliberate indifference claim accrues upon
receipt of the requested treatment or the prisoner’s departure from
the place where he has been continuously refused treatment);
Jervis v. Mitcheff, 258 F. App’x 3, 5-6 (7th Cir. 2007) (“Deliberate
indifference to a serious medical need is a continuing violation that
accrues when the defendant has notice of the untreated condition
and ends only when treatment is provided or the inmate is
released”). Plaintiff did not file suit until September 14, 2016.
Consequently, Plaintiff’s § 1983 claims are clearly barred by the
statute of limitations.

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Plaintiff also brings a state-law civil action for damages against
Defendants. The statute of limitations for a civil action for damages
against a local entity or one of its employees is one year. See 745
ILCS 10/8-101(a) (generally providing that a civil action against a
local entity or any of its employees must be commenced within one
year from the date the injury was received or the cause of action
accrued subject to exceptions for causes of action arising out of
patient care); Harrell v. Sheahan, 937 F. Supp. 754, 757-58 (N.D.
Ill. 1996) (finding the plaintiff’s state law false imprisonment claim
against the Sheriff of Cook County was barred by the one-year
statute of limitation contained in 745 ILCS 10/8-101). Therefore,
the state law cause of action is also time-barred.
Sheriff Fair has not filed a motion to dismiss. However, when
a plaintiff is permitted to proceed in forma pauperis, the Court
must dismiss the cause of action if, at any time, the Court
determines that the action is frivolous. See 28 U.S.C.
§ 1915(e)(2)(B)(i); Walker v. Thompson, 288 F. 3d 1005, 1009-10
(7th Cir. 2002) (noting that the suit can be regarded as frivolous
when the existence of a valid affirmative defense is apparent from
the face of the complaint, giving as an example a personal-injury
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suit filed 100 years after the date of the injury stated in the
complaint). Because Plaintiff’s claims are clearly barred by the
statute of limitations, the Court dismisses the case.
V. CONCLUSION
For the reasons stated, Officer Bare’s Motion to Dismiss (d/e
12) is GRANTED. Plaintiff’s Complaint is DISMISSED with
prejudice against both Defendants. THIS CASE IS CLOSED.
ENTER: January 3, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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