Riggs v. Sonney et al
Filing
114
MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 7/10/2017. Mailed notice (ao,)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEVEN RIGGS,
)
)
Plaintiff,
)
)
vs.
) Case No. 1:13-CV-9291
)
DEPUTY SHERIFF JON SONNEY,
)
#7718, Individually & COOK COUNTY, )
) Magistrate Judge M. David Weisman
)
Defendants.
)
MEMORANDUM OPINION AND ORDER
The issues before the Court arise from Plaintiff’s emergency motion
asking this Court to dismiss his claims without prejudice. (Pl.’s Mot at 1,
ECF No. 100.) The claims in this action stem from a 2013 altercation at the
Cook County Jail between Officer Sonney (“Defendant”) and Steven Riggs
(“Plaintiff”), a former inmate at the jail. Defendant now asks this Court to
reconsider its decision granting Plaintiff’s emergency motion. For the reasons
explained below, the Court denies Defendant’s motion.
I. Background
After the 2013 incident, Plaintiff, pro se at the time, filed a complaint
against Defendant for, among other things, excessive force under 42 U.S.C. §
1983. Because Plaintiff was incarcerated at the time he filed his complaint,
his claims were governed by the Prison Litigation Reform Act (“PLRA”).
1
Shortly after Plaintiff filed his complaint, he was charged criminally with
aggravated battery from the altercation that gave rise to this action. (Def.
Mot. Recons. at 2, ECF No. 103.) This action was stayed from March 2015 to
May 2016 during the pendency of Plaintiff’s criminal case. The stay was lifted
after Plaintiff was found not guilty and released from custody. (Id.) In
September of that year, four months after the stay was lifted, this case was
dismissed for want of prosecution after Plaintiff failed to appear, but was
reinstated a month later. (See ECF Nos. 66 & 81.) In March of this year,
Plaintiff retained counsel and amended his complaint to include a malicious
prosecution claim.
On the morning the statute of limitations for the malicious prosecution
claim was set to run, Plaintiff asked this Court to dismiss his complaint
without prejudice so he could refile his claims to circumvent the constraints
of PLRA. In short, Plaintiff argued that if his motion is denied he would be
prejudiced in this action because the PLRA limits damage recovery and
attorney’s fees for his claims. Defendant, on the other hand, argued that
Plaintiff is improperly attempting to avoid the constraints of the PLRA.
This Court granted Plaintiff’s emergency motion and noted that
Defendant could file a motion to reconsider. From the Court’s vantage point,
this essentially created a period of status quo. Plaintiff could file a new
action (effectively amending the complaint) and Defendant could brief the
legal merits of his position opposing the voluntary dismissal. This court
2
could then resolve the issues after more fully considering the parties’
arguments and the implications of Plaintiff’s motion.
II. Legal Standard
Pursuant to Rule 41(a)(2), “an action may be dismissed at the
plaintiff’s request only by court order, on terms that the court considers
proper.” Fed. R. Civ. P. 41(a)(2). It is within the district court’s discretion
whether to grant a motion for voluntary dismissal. Wojtas v. Capital
Guardian Trust Co., 477 F.3d 924, 927 (7th Cir. 2007). The district court’s
decision will only be reversed upon a showing of abuse of discretion. Tyco
Labs., Inc. v. Koppers Co., 627 F.2d 54, 56 (7th Cir. 1980) (citing Stern v.
Barnett, 452 F.2d 211, 213 (7th Cir. 1971)). “[I]t is an abuse of discretion for
the district court to permit the voluntary dismissal of an action where the
defendant would suffer ‘plain legal prejudice’ as a result.” (Id.) (quoting
United States v. Outboard Marine Corp., 789 F.2d 497, 502 (7th Cir. 1986)).
While there is no bright line rule as to what amounts to plain legal prejudice
a “showing of injury in fact, such as the prospect of a second lawsuit or the
creation of a tactical advantage” will not be sufficient to justify the plaintiff’s
motion to dismiss. Quad/Graphics, Inc. v. Fass, 724 F.2d 1230, 1234 (7th Cir.
1983).
The Seventh Circuit has set forth factors a court should consider when
ruling on a motion to voluntary dismiss. The factors include:
3
[The] defendant’s effort and expense of preparation for trial,
excessive delay and lack of diligence on the part of the plaintiff
in prosecuting the action, insufficient explanation for the need to
take a dismissal, and the fact that a motion for summary
judgment has been filed by the defendant.
Pace v. S. Express Co., 409 F.2d 331, 334 (7th Cir. 1969) (citing 5 Moore’s
Federal Practice, § 41.05 [1] (2d ed. 1968)).
While the Pace factors serve as a helpful framework in assessing the
parties’ arguments, the ultimate decision is within the court’s discretion. See
Tyco, 627 F.2d at 56 (“The enumeration of the factors to be considered in Pace
is not equivalent to a mandate that each and every such factor be resolved in
favor of the moving party before dismissal is appropriate. It is rather simply
a guide for the trial judge, in whom the discretion ultimately rests.”).
“Legal prejudice may arise where dismissal would strip a defendant of
a defense in potential litigation in an alternative forum.” Futch v. AIG, Inc.,
2007 U.S. Dist. LEXIS 43553, No. 07-402-GPM, at *18 (S.D. Ill. June 15,
2007.) Compare Kovalic v. DEC Int’l, Inc., 855 F.2d 471, 474 (7th Cir. 1988)
(“DEC must establish concrete prejudice beyond the mere self-inflicted
deprivation of a federal forum. The prospect of facing a subsequent lawsuit in
a state rather than a federal court does not constitute prejudice when, as
here, the defendant-appellant fails to take advantage of the opportunity to
remove the case to federal court.”). The Seventh Circuit has expressly held
that plain legal prejudice occurs when the dismissal will result in the loss of a
valid statute of limitations defense by the nonmoving party. Wojtas, 477 F.3d
4
at 928. In Wojtas, the plaintiff sought to dismiss the case under Rule 41(a)(2)
in order to refile it in a jurisdiction with a longer statute of limitations period.
Id. at 925-26. The district court denied plaintiff’s motion finding that the
dismissal was improper on the grounds it would amount to “plain legal
prejudice.” Id. at 927. The Seventh Circuit agreed, holding that the state
law statute of limitations “conferred on [defendant] a vested right . . . that
would have been rendered useless if voluntary dismissal without prejudice
was granted.” Id. The Wojitas court determined that “‘[the] expiration of the
limitations period extinguishes the cause of action of the potential plaintiff
and it also creates a right enjoyed by the would-be defendant to insist on that
statutory bar.’” Id. (quoting Colby v. Columbia County, 202 Wis.2d 342, 350
(1996)). Thus, it is improper to grant a voluntary motion to dismiss where
the result is defendant’s loss of a valid statute of limitations defense.
III. Discussion
As stated above, Plaintiff asked this Court to dismiss his lawsuit so he
can refile it to avoid the constraints of the PLRA. The statute attaches when
a prisoner files an action in federal court. The statute defines a prisoner as
“any person incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations of
criminal law . . . .” 42 U.S.C. §1997e(h). The PLRA was enacted to discourage
frivolous lawsuits by prisoners and accordingly limits recovery in several
ways. Among the limitations, is the requirement that the plaintiff prove he
5
suffered a physical injury to recover for mental anguish. See 42 U.S.C.
§1997e(e) (“No Federal civil action may be brought by a prisoner confined in a
jail, prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury or the
commission of a sexual act.”) Additionally, the PLRA limits attorney’s fees to
150% of the recovery. See 42 U.S.C. § 1997e(d). It would be thus
advantageous for Plaintiff and Plaintiff’s attorney to file without the
restrictions of the PLRA.
Here, the prospect of a new law suit does not constitute plain legal
prejudice under Pace or Wojtas. We begin our analysis with the Pace factors.
Under the first factor, there has been relatively little preparation for trial.
Readily apparent from the docket is that since Plaintiff filed his complaint in
2013, periods of dormancy outweigh this case’s activity. Over the pendency of
this matter, Defendant has filed an answer, less than a handful of status
reports, a motion to stay, and briefs related to the instant motion. According
to Plaintiff, the parties have not yet propounded discovery requests and no
depositions have been taken. (Pl. Br., ECF No. 109 at 7.) Because this case
is in the early stages of litigation this factor weighs in Plaintiff’s favor.
Second, we find that any delay in this case does not amount to
sufficient legal prejudice to deny Plaintiff’s motion. As previously stated, this
case was stayed for more than a year during the criminal proceeding that
gave rise to the allegations herein. Defendant’s attempt to place the blame
6
for this slow-moving litigation completely on the Plaintiff is unfair. In fact,
the motion to stay, notably, was filed by Defendant, not Plaintiff. (Def. Mot.
Stay, ECF No. 33.) Either way, such a routine motion under the
circumstances cannot be held against Plaintiff. Likewise, Plaintiff’s failure to
appear one time is an insufficient basis to deny his motion. The Court notes
that until approximately four months ago, Plaintiff was proceeding pro se.
Status as a pro se litigant would not obviate the necessity to litigate the case
in a diligent manner, however it is a consideration in the Court’s analysis.
See, e.g., Cintron v. St.-Gobain Abbrassives, 2004 U.S. Dist. LEXIS 26872,
No. 03-1297-SEB-JPG, at *2 (S.D. Ind. Nov. 18, 2004) (“As a pro se litigant,
Plaintiff is permitted a more lenient standard with respect to her pleadings
than that imposed on a practicing attorney.”) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972)).
Moving to the next factor under Pace, Plaintiff has provided a
sufficient explanation for the need for dismissal: now that he is no longer
incarcerated he would like to file a claim, like all other non-incarcerated
individuals, without the constraints of the PLRA. The Seventh Circuit has
been explicit that the PLRA applies to prisoners as determined on the date
the claim is filed. Kerr v. Puckett, 138 F.3d 321 (7th Cir. 1997) (“[T]he statute
says that its object is a ‘prisoner confined in a jail, prison, or other
correctional facility.’ The statutory language does not leave wriggle room.”)
(citing 42 U.S.C. §1997e(h)) (emphasis in original). The Seventh Circuit
7
explained that this distinction makes sense in light of the legislative intent of
the PLRA: “Congress deemed prisoners to be pestiferous litigants because
they have so much free time on their hands and there are few costs to filing
suit. Opportunity costs of litigation rise following release, diminishing the
need for special precautions against weak suits.” Kerr, 138 F.3d at 323. Now
that Plaintiff is no longer incarcerated, he clearly falls outside the statute’s
express definition of a prisoner and the category of litigants Congress has
deemed problematic under the PLRA.
Finally, under the final factor, summary judgment has not been filed.
Not only does Plaintiff’s motion pass muster under Pace, but we find
that Defendant failed to assert a right that would constitute legal prejudice
as envisioned by the Wojitas court. In Wojtas, the Court found plaintiff’s
attempt to circumvent a statute of limitations improper because the
“limitations period extinguishes the cause of action of the potential plaintiff
and it also creates a right enjoyed by the would-be defendant to insist on that
statutory bar.” Wojtas, 477 F.3d at 928. On consideration of the significant
legal prejudice that defendants faced in Wojtas – the possibility of having to
re-litigate a suit that would otherwise be barred — the Court finds that here,
Defendant has not articulated a comparable legal prejudice that would justify
denying Plaintiff’s motion. The Court acknowledges that Defendant’s case
might have been stronger and damage recovery would have been less had it
continued under the PLRA, but it is well settled that a “showing of injury in
8
fact, such as the prospect of a second lawsuit or the creation of a tactical
advantage, is insufficient to justify denying the plaintiff's motion to dismiss.”
Quad/Graphics, Inc., 724 F.2d at 1234.
While we were unable to find a case factually analogous in the Seventh
Circuit, the Southern District of New York has recently addressed the
question presented before this Court. In Paulino v. Taylor, the plaintiff
moved to dismiss her 42 U.S.C § 1983 claims against certain corrections
officers without prejudice “in the aim of refilling th[e] action without being
subject to the PLRA.” 2017 WL 1080081, No. 15 Civ. 5869, at *1 (S.D.N.Y
Mar. 15, 2017). Similar to the Plaintiff before this Court, the plaintiff in
Paulino was pro se and incarcerated when she filed her complaint but was
subsequently released. Id. And similar to the Defendants before this Court,
the defendants in Paulino argued that “if the PLRA no longer applie[d], they
[would] lose a potential statutory affirmative defense and Plaintiff’s potential
recovery for attorney’s fees [would] no longer [be] statutorily limited.” Id. at
3. The Paulino court found that Defendant’s loss of these advantages did not
amount to legal prejudice sufficient to bar the plaintiff’s motion. Id. at 2. In
considering whether to grant or deny the motion the Paulino court considered
several relevant factors to the Court today. 1
1
The Second Circuit uses its own multifactor test when considering whether to grant a motion to voluntary
dismiss a case. The Second Circuit has held:
Factors relevant to the consideration of a motion to dismiss without prejudice include the
plaintiff's diligence in bringing the motion; any “undue vexatiousness” on plaintiff's part;
the extent to which the suit has progressed, including the defendant's effort and expense
9
First, the Paulino court noted that the plaintiff had acted with
diligence in light of motions for extensions of time and a motion to stay filed
by Defendants. Id. The court also considered the fact that the plaintiff had
been proceeding as a pro se litigant for the majority of the case and timely
filed a motion for voluntary dismissal shortly after she retained counsel. Id.
The court also opined on whether the motion for voluntary dismissal was
brought for an improper purpose, a factor not present under the Pace
analysis. Id. (“The second Zagano factor, whether the plaintiff was unduly
vexatious in pursuing the motion, weighs heavily in Plaintiff's favor.
Vexatiousness refers to instances in which the case was brought to harass the
defendant.”) (internal quotations omitted). The court explained that the fact
that there was no ill-motive present in plaintiff’s motion to dismiss and that
the plaintiff was not unduly vexatious in bringing her motion weighed in her
favor. Id. at 3. Finally, the court reasoned that because the case was in the
early stages of discovery and plaintiff provided an adequate explanation for
dismissing her case, namely that she sought to avoid the statutory
limitations of the PLRA, dismissal weighed in plaintiff’s favor. The Paulino
court thus concluded the dismissal was in the interests of justice. Id.
While not binding on this Court, the Paulino court’s analysis supports
our conclusion that Defendant will not suffer plain legal prejudice.
in preparation for trial; the duplicative expense of relitigation; and the adequacy of
plaintiff's explanation for the need to dismiss.
Zagano v. Fordham Univ., 900 F.2d 12, 14 (2d Cir. 1990).
10
Moreover, the Court finds that Plaintiff has neither brought this suit for an
improper purpose nor has he been unduly vexatious in pursuing the motion.
Conclusion
For the foregoing reasons, the Court denies Defendants’ motion for
reconsideration [103].
SO ORDERED.
ENTERED: July 10, 2017
________________________________
M. David Weisman
United States Magistrate Judge
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?