Plummer v. Godinez et al

Filing 138

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 5/20/2016:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EDWARD PLUMMER,
Plaintiff,

Case No. 13 C 8253

v.

Judge Harry D. Leinenweber

GEORGE WELBORN, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Edward Plummer (“Plummer”), a former inmate of
both the Menard and Dixon Correctional Facilities, sued numerous
Defendants who are or were agents of those facilities, bringing
claims
medical

for

violation

malpractice

of

his

under

constitutional

Illinois

law.

rights

and

Defendants

for

George

Welborn, Tom Page, Keith Nelson, Tom Roth, Jerry Sternes, and
Nedra

Chandler,

facilities
claims

all

(“the

against

former

Wardens”),

them.

Wardens

of

the

dismiss

have

moved

to

Defendant

Peter

Swire

correctional
Plummer’s

(“Swire”),

the

Administrator of the estate of the now-deceased Doctor John Dorn
(“Dorn”), has also moved to dismiss the claims against Dorn’s
estate

(Dorn

was

Facility in 2006).

a

staff

psychiatrist

at

Dixon

Correctional

For the reasons stated herein, the Court

grants the Wardens’ Motion to Dismiss [ECF No. 122], and grants

in

part

and

denies

in

part

Swire’s

Motion

to

Dismiss

[ECF

No. 102].
I.

BACKGROUND

This is Plummer’s Second Amended Complaint, after the Court
twice

dismissed

Defendants

(ECF

certain

of

Nos.

and

49

his

claims

89).

as

After

to
being

various

other

convicted

of

murder in state court, Plummer served parts of his sentence at
both the Menard Correctional Center and the Dixon Correctional
Center in Illinois.

He claims that during his time at these

facilities, he was force-medicated by the staff and suffered
emotional and physical harm as a result.

Plummer was diagnosed

with schizophrenia, although it is unclear when the condition
first developed.

He claims he developed psychiatric disorders

as a result of the medications administrated to him at Menard
and Dixon.

He further claims that, from roughly 1995 to his

release from Dixon in 2007, medical staff forced him to take
drugs as a form of punishment, and that staff repeatedly changed
or increased his drug regimen without any medical basis.

Staff

also placed him in solitary confinement, he claims, subjecting
him to long-term sensory deprivation.
The only named individual in the Complaint who directly
administered drugs is Doctor John Dorn.

Throughout 2006, Dorn

changed Plummer’s drug regimen six times, at least once without
any medical basis.

Doctor Dorn is recently deceased; Plummer
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now names the Administrator of his estate in the suit, Peter
Swire.

Plummer has also sued the former Wardens of Menard and

Dixon who were responsible for the facilities during the time
periods he was an inmate.

He filed this suit under Section

1983, arguing that his forced medication violated his rights to
due process under the Fourteenth Amendment and his right to be
free of cruel and unusual punishment under the Eight Amendment.
He also includes a state claim for medical malpractice against
Dorn’s estate under Illinois law.
II.

WARDENS’ MOTION TO DISMISS

The only claims against the Wardens are for constitutional
violations pursuant to Section 1983.

The Wardens argue that the

applicable statute of limitations has run, and so the claims
against them in their individual capacities must be dismissed.
The Court agrees.

A statute of limitations affords the Wardens

an affirmative defense, and the Court usually does not entertain
an

affirmative

Rule 12(b)(6).
a

plaintiff’s

barred,

defense

on

a

motion

to

dismiss

under

However, when the facts are clear on the face of
complaint

dismissal

under

that

the

applicable

Rule

12(b)(6)

is

claims

are

appropriate.

time
See,

Indep. Trust Corp. v. Stewart Info. Servs., 665 F.3d 930, 935
(7th Cir. 2012) (citing Brooks v. Ross, 578 F.3d 574, 579 (7th
Cir. 2009)).

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The Court looks to the forum state’s statute of limitations
governing

personal

injury

claims

in

order

to

determine

relevant time limit for bringing a Section 1983 action.

the

Ashafa

v. City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998).

Illinois

law dictates the statute of limitations is two years.

See, id.

(citing 735 ILCS § 5/13-202).
on November 17, 2013.

Plummer filed his first Complaint

All relevant conduct by the Wardens took

place prior to 2008, so at first glance, it would appear that
all Section 1983 claims are time barred.
give

Plummer

every

benefit

of

the

However, in order to

doubt,

the

Court

assumes

(without deciding) that Plummer had a “legal disability” that
would equitably toll the statute of limitations past 2008. See,
Basham v. Hunt, 773 N.E.2d 1213, 1221 (discussing application of
equitable tolling for legal disability under Illinois law).

The

assumption is reasonable given that Plummer suffers from mental
illness and was initially homeless upon his release from prison.
In considering equitable tolling, the Court emphasizes that
it is viewing the facts in the most favorable light to Plummer,
choosing

the

latest

could have accrued.

possible

date

on

which

Plummer’s

claims

The issue turns on when Plummer’s legal

disability was “removed” within the meaning of Illinois law.
See,

735

ILCS

§ 5/13-211.

Illinois

law

defines

a

legal

disability as being “entirely without understanding or capacity
to make or communicate decisions regarding [one’s] person and
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totally unable to manage [one’s] estate or financial affairs.”
Basham,

773

N.E.2d

medical

records

at

from

1221.
the

Plummer

state,

received them on May 3, 2012.

requested

and

he

his

indicates

partial
that

he

That was the day he discovered

his injuries, by learning about the alleged abuse he endured
while incarcerated. Plummer also stated in his initial Complaint
that he began “preparing for the instant cause of action” some
time

prior

to

documentation

September

from

the

15,

2012,

prison

by

system

requesting
about

certain

policies

practices through the Illinois Freedom of Information Act.

and
(ECF

No. 1, Pl. Compl. ¶ 53).
Plummer’s capacity to petition for his medical records and
to file an Illinois FOIA request suggest that he was no longer
suffering from a legal disability within the meaning of Illinois
law by September 15, 2012.

Cf. Quinn v. Harris, 230 Fed. Appx.

595, 597 (7th Cir. 2007) (affirming district court’s refusal to
apply

equitable

advocated
Besides,

for
it

limitations

tolling

for

herself
would

beyond

and

be
the

legal

sought

illogical
point

prepping for litigation.

disability

at

legal

to
which

toll
the

where

plaintiff

representation).
the

statute

plaintiff

of

begins

The principle behind equitable tolling

is to grant relief to a plaintiff who, because of disability or
some

other

extraordinary

expected to sue in time.”

circumstance,

“cannot

reasonably

be

Miller v. Runyon, 77 F.3d 189, 191
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(7th Cir. 1996).

By September 15, 2012, Plummer, by his own

admission, knew of his injury, potential causes of action, and
some likely defendants (even if he did not know those defendants
by name – more on that later).

Thus the latest possible date at

which the statute of limitations could have been triggered is
September 15, 2012.
Plummer filed his initial Complaint on November 17, 2013.
So far, so good:

that’s roughly one year after the 2-year time

limit would have commenced.

But Plummer did not identify the

individual Wardens by name in 2013.
“unknown wardens” in the Complaint.
name

until

his

Second

Amended

Instead, he named several
He did not identify them by

Complaint,

which

he

filed

on

September 28, 2015 – more than a year after the two-year statute
of

limitations

had

run.

The

Seventh

Circuit

has

held

definitively that the designation of “John Doe” defendants in a
complaint

will

not

toll

the

statute

of

limitations

plaintiff can substitute a named defendant.

until

a

Sassi v. Breier,

584 F.2d 234, 235 (7th Cir. 1978).
There is an exception to the rule in Sassi for instances in
which defendants fraudulently conceal their identities from the
plaintiff.
must

“set

In such a case, under Illinois law, the plaintiff
forth

affirmative

acts

or

words

by

the

defendants

which prevent[ed] him from discovering their identity.

Mere

silence of the defendant and the mere failure on the part of the
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plaintiff

to

learn

of

a

fraudulent concealment.”
1257

(7th

Cir.

omitted).

1993)

cause

of

action

do

not

to

Worthington v. Wilson, 8 F.3d 1253,
(internal

citations

and

quotations

Plummer offers only the following explanation for his

failure to name the Wardens in a timely fashion:
Attorney

amount

General’s

September 10,
pages 4-5).

2015,

office
to

from

produce

October

those

“[I]t took the

9,

names”

That explanation is deficient.

2014,
(Pl.

until

Resp.

at

And a request to

the Illinois Attorney General for names on October 9, 2014 was
already too late, coming more than 2 years after September 15,
2012.
The case for leniency on this issue might be stronger if
Plummer were proceeding pro se.
F.2d 83, 87-88 (7th Cir. 1980).

See, Maclin v. Paulson, 627
But he has been represented by

the same counsel since the day he filed his initial Complaint,
and counsel has not offered the Court any explanation for his
lack of diligence in ascertaining the Wardens’ identities.

Lack

of diligence, besides, will not excuse untimely filing.

See,

Worthington,

8

F.3d

at

1257.

Moreover,

this

case

does

not

involve unknown defendants whose identification depends in large
part on a plaintiff’s hazy memory; determining the identity of
past

high-level

officials

of

two

state-run

correctional

facilities should be a fairly straightforward matter.
the

Wardens

were

not

named

until
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more

than

two

Because

years

after

September 15, 2012, the Court holds that the two-year statute of
limitations

has

run

on

the

Section

1983

claims

against

the

Wardens in their individual capacities.
Plummer argues that the claims against the Wardens in their
official capacities should survive, because the state has been a
party to this action from the beginning and so was put on notice
back in 2013.
claim

against

Plummer is correct that “an official capacity
an

individual

defendant

against the government entity itself.”
128 F.3d 481, 494 (7th Cir. 1997).
entity

in

this

case

–

the

constitutes

a

claim

Gossmeyer v. McDonald,

And the relevant government

authority

in

charge

of

the

correctional facilities – is indeed the State of Illinois, which
Plummer has named persistently as a defendant throughout these
proceedings.

But as the Court explained in a prior opinion on

this exact subject (see, ECF No. 89), the Eleventh Amendment
bars claims for damages against the States.
F.3d

at

495.

And

as

to

Plummer’s

injunctive relief against Illinois:

See, Gossmeyer, 128

repeated

requests

for

the Court advises Plummer,

for the second time (see, ECF No. 89) that there is nothing here
to enjoin.

Plummer is no longer incarcerated, and there are no

allegations that state officials continue to harass or abuse
him.

The Court dismisses the claims against the Wardens in

their official capacity as well.

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III.

SWIRE’S MOTION TO DISMISS

The Court now considers the claims against Dorn.

As an

initial matter, Swire argues that Plummer’s claims should be
dismissed

because,

after

Dorn’s

death

on

February

15,

2015,

Plummer did not substitute Swire as the proper party within the
time period set out in Federal Rule of Civil Procedure 25(a).
Rule

25(a)

deceased

requires

party

be

that

made

the

within

motion
90

for

days

substitution

after

of

notification

a
of

death; Plummer filed a Motion for Substitution approximately 124
days after Dorn’s death was first suggested to the Court.
Swire’s argument is unconvincing.

The Advisory Committee

Notes to Rule 25 indicate that the Court may permit untimely
motions for substitutions when the tardiness is the result of
excusable neglect.
F.3d

1293,

1297

See, Continental Bank, N.A. v. Meyer, 10

(7th

Cir.

1993).

Plummer

argues

that

the

suggestion of death filed in this suit (see, ECF No. 55) was
deficient in that it did not name a proper party to substitute.
The

Court

believes

Plummer’s

counsel

diligently

attempted

to

ascertain who to name in Dorn’s place, given that he filed a
Motion to Strike the suggestion of death due to the perceived
deficiency.

That’s

enough

to

find

that

the

failure

to

substitute Swire within 90 days was excusable; Rule 25(a) was
not meant “to act as a bar to otherwise meritorious actions, and
extensions of the period may be liberally granted.”
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Continental

Bank, N.A., 10 F.3d at 1297 (internal citation and quotation
omitted).
Swire also argues that Dorn was never served pursuant to
Federal Rule of Civil Procedure 4(m), that Dorn’s estate was
served past Rule 4(m)’s 90-day window, and

as such, that the

Complaint

Rule

should

be

dismissed

pursuant

insufficient service of process.

to

12(b)(5)

for

But Rule 4(m) also dictates

that the Court must extend the time allowed if there was good
cause for untimely service.
that

Plummer

diligently

As to Dorn, the record indicates

attempted

to

serve

him

but

difficulty tracking him down, perhaps due to an alias.

had

Roughly

two months after an alias summons issued on December 16, 2014,
Dorn

passed

away.

Then

Plummer

had

to

determine

who

substitute (and serve) in Dorn’s place under Rule 25(a).

to
The

Court has already considered and excused the delay related to
that issue.

Even if the Court were inclined to dismiss for non-

compliance with Rule 4(m), the rule indicates that the dismissal
should

be

without

prejudice

in

another shot at proper service.

order

to

give

the

plaintiff

Plummer already served Swire –

his executed summons was returned on December 31, 2015.
Court

thus

declines

to

dismiss

Plummer’s

claims

The

pursuant

to

Rule 12(b)(5).
Turning

to

the

merits,

Plummer

first

claims

that

Dorn

violated his right to be free from cruel and unusual punishment
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under

the

Eighth

Amendment.

States

have

a

duty

to

provide

medical care to prison inmates, and “deliberate indifference to
the

serious

medical

Amendment.

needs

of

prisoners”

violates

the

See, Duckworth v. Ahmad, 532 F.3d 675, 678-79 (7th

Cir. 2008) (internal quotation and citation omitted).
a

Eighth

legally

sufficient

objectively

serious

claim,

medical

“a

plaintiff

condition

To state

show

which

to

must

(2)

(1)
a

an

state

official was deliberately, that is subjectively, indifferent.”
Id. at 679 (citation omitted).

Deliberate indifference is more

than negligence but “something less than purposeful.”
medical

professional,

specifically,

exhibits

Id.

A

deliberate

indifference if he is aware of and ignores an excessive risk to
an inmate’s health.
Plummer’s

See, id.

allegations

indifference standard.

easily

meet

the

deliberate

He suffers from at least one serious

medical condition (schizophrenia), and he maintains that Dorn
not only forcibly medicated him, but did so without any medical
basis.

He also claims generally (although not specifically as

to Dorn) that changes in medication were punitive, not medical.
The

forced

disability.

medication

exacerbated

Plummer’s

psychiatric

He bolsters these claims with references to how and

when his treatment regimen changed while incarcerated.
that

the

Court

must

accept

the

allegations

- 11 -

as

true

Given
at

this

stage, Plummer has provided more than enough to state a legally
sufficient claim that Dorn violated his Eighth Amendment rights.
Plummer

also

contends,

briefly,

that

Dorn

violated

right to due process under the Fourteenth Amendment.

his

The Court

assumes that Plummer implicates the Fourteenth Amendment to the
extent that it extends the Eighth Amendment’s protections to
pretrial detainees; the Eighth Amendment, by contrast, applies
only to convicted prisoners.

See, Williams v. Rodriguez, 509

F.3d 392, 401 (7th Cir. 2007).
Plummer’s

Complaint

specific

But there are no allegations in
to

pretrial

detention.

Dorn’s

alleged conduct took place well after Plummer’s conviction and
imprisonment.

If Plummer invoked the Fourteenth Amendment for

different reasons, unrelated to the Eighth Amendment and his
allegations of deliberate indifference, the purpose is lost on
the Court.

The claim is either inapplicable or fails for lack

of specificity.
The

final

malpractice
frivolous

The Court dismisses it accordingly.
claim

under

against

Illinois

medical

Dorn’s

law.

malpractice

In

estate
an

lawsuits,

is

for

effort
Illinois

medical

to

reduce
requires

plaintiff’s counsel to file an affidavit stating that he has
consulted with a qualified, licensed physician and that there is
a reasonable and meritorious cause for filing the suit.

See,

735 ILCS § 5/2-622; see also, Sherrod v. Lingle, 223 F.3d 605,
613 (7th Cir. 2000).

The physician’s written report on the case
- 12 -

also must be included with the attorney affidavit.

Swire argues

that the claim should be dismissed because Plummer failed to
attach a certificate of merit with the Complaint.
The Court dismissed the same medical malpractice claims as
to other Defendants over a year ago due to Plummer’s failure to
attach

the

indicated

certificate

that

the

of

merit.

dismissal

At

was

that

without

time,

the

prejudice

Court

and

that

Plummer may have the right to refile if he could obtain the
required

certificate

(ECF

No.

65,

Trans.

at

pgs.

2-5,

8).

Plummer filed his most recent Amended Complaint on September 28,
2015, and it still lacks the certificate.

Plummer’s response to

Swire’s Motion to Dismiss (see, ECF No. 128), contains a letter
from

a

licensed

records.

psychiatrist

who

reviewed

Plummer’s

medical

However, as a certificate of merit, the letter is

deficient.
First,

the

letter

was

required by the statute.

not

attached

to

the

Complaint

See, 735 ILCS § 5/2-622(a).

as

Second,

there is no actual affidavit from Plummer’s counsel stating that
he

consulted

and

reviewed

physician.

Instead,

observations

about

approximately

2004

alleged

conduct

the

facts

filing

Plummer’s
to

the

2007

perpetrated

is

medical
(note
by

of

just

the
the

records

that

those

Dorn).

The

- 13 -

case

with

the

physician’s

own

from

Dixon

years
statute

cover

from
all

requires

affirmative
physician.

representations

by

the

attorney,

not

just

the

state

that

the

See, id.

Finally,

the

letter

actually

does

not

physician believes there is a reasonable and meritorious cause
for the filing of the suit.

That’s the whole point behind the

law, but such a representation is missing from the letter.

And

in fact, the letter opens with the physician’s caveat that he
has not interviewed Plummer, so his “perpective [sic] may be
skewed” (Pl. Resp. Ex. 2).

Counsel’s failure to make his client

available to the physician for an interview cannot be laid at
the feet of the Defendant.

Counsel has known, or should have

known, that he needed this certificate for a valid malpractice
claim since initiating the litigation in 2013.
dismissed

once

opportunity

to

without
cure

failed to do so.
estate
capacity

is

the

and

procedural

provided

defect

Plummer

already.

He

the
has

The medical malpractice claim against Dorn’s

dismissed

claim

prejudice

The Court has

with

against

prejudice.

Dorn’s

estate

Lastly,
is

the

denied

for

official
the

same

reasons the Court denied the official capacity claim against the
Wardens.
IV.

CONCLUSION

To summarize, the Court dismisses all claims against the
Wardens, and it dismisses all claims against Dorn’s estate with
the exception of the Eighth Amendment claim.
- 14 -

The Court thus

grants

the

Wardens’

Motion

to

Dismiss

[ECF

No.

122]

in

its

entirety, and grants in part and denies in part Swire’s Motion
to Dismiss [ECF No. 102].

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: May 20, 2016

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