Bilik v. Hardy et al

Filing 89

ORDER signed by the Honorable Andrea R. Wood on 3/31/2017: Defendants Marcus Hardy, Nancy Pounovich, Sandra Griffin, Shaun Bass, and Landria Denniss motion to dismiss 69 is granted. This case is dismissed with prejudice. The Clerk is directed to enter Judgment in favor of Defendants and against Plaintiff. All other pending motions and hearing dates are stricken. Civil case terminated. See the accompanying Statement for details. Mailed notice (ef, )

Case: 1:13-cv-01432 Document #: 89 Filed: 03/31/17 Page 1 of 3 PageID #:561

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD BILIK,
Plaintiff,
v.
MARCUS HARDY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 13-cv-01432
Judge Andrea R. Wood

ORDER
Defendants Marcus Hardy, Nancy Pounovich, Sandra Griffin, Shaun Bass, and Landria
Dennis’s motion to dismiss [69] is granted. This case is dismissed with prejudice. The Clerk is
directed to enter Judgment in favor of Defendants and against Plaintiff. All other pending
motions and hearing dates are stricken. Civil case terminated. See the accompanying Statement
for details.
STATEMENT
Plaintiff Richard Bilik, a prisoner currently confined at Pinckneyville Correctional
Center, filed this lawsuit against Defendants Marcus Hardy, Nancy Pounovich, Sandra Griffin,
Shaun Bass, and Landria Dennis alleging that he was subjected to unconstitutional conditions of
confinement while an inmate at the Northern Reception and Classification Center (“NRC”).1 As
alleged in the Third Amended Complaint, Bilik was assigned to the NRC from February 2010 to
August 2010. (Third Am. Compl. ¶ 5, Dkt. No. 66.) While Bilik was at the NRC, he was served
meals that were cold, “infected with mice and bugs,” and insufficient in size. (Id. ¶¶ 10, 11.) His
cell, which he was confined to virtually around the clock, was infested with bugs. (Id. ¶ 12.)
Bilik was also denied access to cleaning supplies for his cell, which was filthy. (Id. ¶ 13.) Bilik
contends that all Defendants had knowledge of the inhumane conditions of his confinement at
the NRC and took no action to remedy those unconstitutional conditions. (Id. ¶ 14.)
Under Federal Rule of Civil Procedure 8(a)(2) a complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
To survive a Rule 12(b)(6) motion to dismiss, the short and plain statement must meet two
threshold requirements. First, the complaint’s factual allegations must be sufficient to give the

1
Bilik filed his original Complaint, his Amended Complaint, and his Second Amended Complaint pro se.
On September 16, 2015, the Court assigned counsel to represent Bilik. This assigned counsel was
prepared and filed the Third Amended Complaint, which is the operative complaint and the subject of
Defendants’ motion. Defendants filed their motion to dismiss on April 5, 2016. Before Bilik’s response
was due, the Court granted appointed counsel’s motion to withdraw from representation of Bilik and
declined to assign new counsel. Consequently, Bilik filed his response to the motion to dismiss pro se.

Case: 1:13-cv-01432 Document #: 89 Filed: 03/31/17 Page 2 of 3 PageID #:562

defendant fair notice of the claim and grounds upon which it rests. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). Second, the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). While the complaint need not contain
detailed factual allegations, there “must be enough to raise a right to relief above the speculative
level.” 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.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). Rather, “[a] claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
In their motion to dismiss, Defendants argue that Bilik’s complaint is barred by the
statute of limitations because it was filed nearly two-and-a-half years after Bilik left the NRC. In
his response, Bilik does not dispute that he filed his complaint outside of the limitations period
but instead argues that the limitations period is subject to equitable tolling due to the exceptional
circumstances associated with his case.2
Failure to file within the limitations period is an affirmative defense. Fed. R. Civ. P. 8(c).
Generally, complaints do not have to anticipate affirmative defenses to survive a motion to
dismiss. See United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). However, there is an
exception when “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.” Id. That is the case here.
Both Bilik and Defendants agree that Bilik’s claims accrued in August of 2010, when he
left the NRC. As such, the two-year limitations period expired in August 2012. See Turley v.
Rednour, 729 F.3d 645, 651 (7th Cir. 2013) (“Section 1983 suits in Illinois have a two-year
statute of limitations.”). Bilik filed his complaint on February 22, 2013, almost six months after
the limitations period had expired. Thus, Bilik had two years to file any claims against
Defendants after the left the NRC, and he was still late by almost six additional months.
“Equitable tolling permits a plaintiff to avoid the bar of the statute of limitations if
despite the exercise of all due diligence he is unable to obtain vital information bearing on the
existence of his claim.” Shropshear v. Corp. Counsel of City of Chicago, 275 F.3d 593, 595 (7th
Cir. 2001). “A petitioner is entitled to equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Socha v. Boughton, 763 F.3d 674, 683 (7th Cir. 2014) (internal
quotation marks omitted). Due to this high standard, “[e]quitable tolling is rarely granted.” See
Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir.2008). Construing Bilik’s response liberally, he
argues that equitable tolling should apply to extend the time for him to file this case due to: (1)
his ignorance of the law, (2) his inability to adequately access the prison’s law library, and (3)

2
Bilik also argues that the doctrine of laches applies to his situation. This argument is misplaced since
this defense “bars a plaintiff from maintaining a suit if he unreasonably delays in filing a suit and as a
result harms the defendant.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121 (2002) (emphasis
added). The argument is inapposite directed to Defendants here.
2

Case: 1:13-cv-01432 Document #: 89 Filed: 03/31/17 Page 3 of 3 PageID #:563

his transfer from Stateville to Lawrenceville. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A
document filed pro se is to be liberally construed) (internal quotation marks omitted).
First, Bilik argues that his ignorance of the law prevented him from timely filing a claim.
However, the Seventh Circuit has held that “lack of legal expertise is not a basis for invoking
equitable tolling.” Tucker, 538 F.3d at 735; see also Socha, 763 F.3d at 685 (“Nor is lack of legal
knowledge, another feature shared by the overwhelming majority of prisoners, by itself enough
to justify equitable tolling.”); Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006) (“Mistakes
of law or ignorance of proper legal procedures are not extraordinary circumstances warranting
invocation of the doctrine of equitable tolling.”). Additionally, Bilik is an experienced federal
court litigator. Indeed, he is a plaintiff in no less than eight other federal cases.3
Second, Bilik asserts that he was unable to research and compose his complaint due to
inadequate access to the law library. Limited access to a prison law library is not an
extraordinary circumstance. See Jones v. Hulick, 449 F.3d 784, 789 (7th Cir. 2006) (affirming
denial of equitable tolling claim where plaintiff alleged that he did not have access to the law
library for 60 days and, more generally, “the state of Illinois limits access to the law library for
all prisoners”); Tucker, 538 F.3d at 735 (“[W]e have held that a prisoner’s limited access to the
prison law library is not grounds for equitable tolling.”). Additionally, the veracity of this claim
is belied by the fact that Bilik managed to file four other cases in 2012 while incarcerated. All
four of those cases were filed before the August 2012 statute of limitations deadline for this case.
Not only was Bilik able to compose and file four complaints in 2012. Lack of law library access
did not prevent Bilik from filing a complaint involving similar facts before August 2012, and it
strains credibility to find that it prevented him from timely filing his complaint in this case.
Third, Bilik argues that he was not able to file this matter in a timely fashion because he
was transferred from Stateville Correctional Center to Lawrence Correctional Center around
October or November of 2012. Notably, Bilik’s complaint was already late by the time of this
transfer, so it is unclear how the transfer could have affected his ability to file a timely claim.
Further, even assuming that the transfer caused some disruption, it would not explain a sixmonth filing delay. See also Denton v. United States, 440 F. App’x 498, 503 (7th Cir. 2011)
(“[B]eing transferred between facilities is not an extraordinary circumstance.”).
For the foregoing reasons, the Defendants’ motion to dismiss is granted. Bilik’s
complaint is dismissed with prejudice.

Dated: March 31, 2017

__________________________
Andrea R. Wood
United States District Judge

3
The Court takes judicial notice of information available to the public about cases in which Bilik is the
plaintiff. See Fletcher v. Menard Corr. Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010) (“We can take judicial
notice of prior proceedings in a case involving the same litigant.”).
3