Wilson v. Kalelkar et al

Filing 51

MEMORANDUM Opinion and Order: Defendants' motions to dismiss [11, 19, 22, 26] are granted and Plaintiff's second amended complaint 18 is dismissed without prejudice. Plaintiff's third amended complaint, if any, shall be filed within 21 days. Signed by the Honorable Rebecca R. Pallmeyer on 3/18/2016. Mailed notice. (etv, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DR. ROBERT LANCE WILSON, D.O.,

)
)
Plaintiff,
)
)
v.
)
)
ILLINOIS DEPARTMENT OF
)
FINANCIAL AND PROFESSIONAL
)
REGULATION; ANDREW GORCHYNSKY;
)
THOMAS GLASGOW; LEONARD A.
)
SHERMAN; OFFICE OF THE COOK
)
COUNTY MEDICAL EXAMINER; MITRA B.
)
KALELKAR; EDMUND R. DONAGHUE;
)
THE STATE OF ILLINOIS; DOE
)
DEFENDANTS 1-5; DO DEFENDANTS 6-10; )
DOE DEFENDANTS 11-20; and DOE
)
DEFENDANTS 21-30,
)
)
Defendant.
)

No. 14 CV 10521

Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
The State of Illinois suspended the medical license of Doctor Robert Wilson in October
1998 based on the circumstances surrounding the death of one of his patients. The patient,
Henry Taylor, had been admitted to Wilson’s hospital with two life-threatening maladies: endstage renal disease and superior vena cava (SVC) syndrome, a blockage of a major vein that
can lead to upper-body swelling and, eventually, suffocation. As Taylor’s condition deteriorated
and his death appeared imminent, Wilson readied an injection of morphine and potassium
chloride intended to ease Taylor’s suffering in his final moments. Taylor died before Wilson
could fully administer the palliative dose on September 30, 1998. In the days that followed, the
Cook County Medical Examiner’s (CCME) office performed an autopsy and ruled Taylor’s death
a homicide by potassium chloride intoxication. No criminal charges were ever filed against
Wilson, but the Illinois Department of Financial and Professional Responsibility (IDFPR)—the

state agency charged with regulating medical licenses—temporarily suspended Wilson’s license
ex parte on October 9, 1998. Wilson’s license was not reinstated until April 2014, when the
Circuit Court of Cook County issued a final order reversing the determination of the IDFPR.
Over the intervening 15.5 years, Wilson and the IDFPR were embroiled in constant litigation,
with Wilson disputing both the autopsy’s conclusion and the propriety of his suspension. The
Circuit Court’s 2014 order marked the fourth time that court had reversed Wilson’s suspension.
On remand from the first three of those rulings, the IDFPR reinstated its own initial ruling. It did
not appeal the Circuit Court’s fourth reversal.
Wilson has filed suit against thirty-nine 1 defendants, including the State of Illinois and
Cook County. All of the individual defendants are current or former employees of the County or
State. Wilson raises five claims under 42 U.S.C. § 1983, alleging that the defendants violated
his constitutional rights to due process, his property interest in his license, and his liberty
interest in pursuing his chosen career. He also raises state-law claims for indemnification of the
individual defendants by their employers (i.e., the State and County), malicious prosecution, and
unreasonable suspension of a medical license, in violation of 225 ILCS 60/46.
The nine named defendants have all moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6).

In doing so, they have separated into three groups: (1) the “County

Defendants” [26], consisting of the CCME; Dr. Mitra Kalelkar, the CCME’s former Deputy Chief
Medical Examiner; and Dr. Edmund Donoghue, the CCME’s former Chief Medical Examiner; (2)
the “State Defendants” [19], which include the State of Illinois, the IDFPR, its Director Jay
Stewart, its former Director Leonard Sherman, and its former Chief Prosecutor Thomas
Glasgow; and (3) Dr. Andrew Gorchynsky [22], the former Chief Medical Coordinator for the
IDFPR. The defendants’ motions rely on, among other things, a statute-of-limitations argument
and defenses based on common-law and statutory immunity.
1

For the reasons stated below,

Thirty of the defendants are “Doe” defendants, pending Wilson’s expected
discovery of their identities in this litigation. All thirty are IDFPR employees.
2

the Defendants’ motions [19, 22, 26] are granted, and Wilson’s second amended complaint [18]
is dismissed without prejudice.
BACKGROUND
The following facts are taken from the plaintiff’s second amended complaint [18]. Henry
Taylor was admitted to Olympia Fields Hospital in Olympia Fields, Illinois, in September 1998.
(Second Am. Compl. at 9.) At that time, Wilson, a cardiologist, had staff privileges at the
hospital. (Id. at 9.) Taylor was in dire straits, suffering from end-state renal disease and severe
swelling in his right arm. (Id. at 10.) Tests determined that Taylor’s swelling was the result of
SVC syndrome, a potentially fatal condition blocking the flow of blood from the upper body to
the heart. (Id. at 10.) The condition eventually results in swelling of tissue in the neck, which, in
turn, compresses the trachea.

This is referred to as “airway collapse,” and it leads to

suffocation, cardiac arrest, and death. (Id.)

Doctors relayed this prognosis to Taylor and

advised that his SVC syndrome could be treated with artificial ventilation, but Taylor rejected a
breathing tube on the morning of September 30, 1998. (Id.) Taylor’s doctors recognized that at
this stage of SVC syndrome, no medication could reverse the swelling or ease the pressure on
Taylor’s windpipe. (Id.) As Taylor had refused a breathing tube and previously signed two “do
not resuscitate” orders (DNRs), death from suffocation was inevitable. (Id. at 11.) Believing that
Taylor would die “within minutes,” the doctor treating him paged Wilson, who had treated Taylor
in the past. (Id.) Plaintiff arrived at Taylor’s bedside at 8:10 a.m. and found him “suffocating to
death as his trachea collapsed.” (Id.) He explained to Taylor that, without intubation, he would
die, but Taylor refused Wilson’s repeated requests to insert a breathing tube. (Id.) Within
minutes, Taylor’s airway completely collapsed and he began “uncontrollably gasping for air.”
(Id.) Based on Taylor’s DNRs, there was nothing Wilson could do to save Taylor’s life. He
administered morphine, but the 10mg dose did nothing to relieve Taylor’s obvious, extreme
pain.

3

Under the American Medical Association’s guidelines, Wilson knew that he had “an
obligation to relieve pain and suffering . . . , includ[ing by] providing effective palliative treatment
even thought it may foreseeably hasten death.” (Id. at 13 (quoting Am. Med. Assoc. Rule
2.20).) But Wilson recognized that morphine was insufficient to relieve Taylor’s suffering. So,
he administered a dosage of potassium chloride “for the purpose of rendering Taylor
unconscious as Taylor spiraled through the terrifying process of suffocating to death.” (Id. at 1516.) Potassium chloride has the potential to be lethal, but Wilson deemed that risk necessary in
light of Taylor’s suffering. He administered 40 millequivalents (m/eq) of the drug rather than the
standard dose of 30 m/eq, because Taylor had developed a tolerance for potassium during
years of kidney dialysis. (Id. at 16.) Though larger than standard, this dose was still one-sixth
the lethal dose of 240 m/eq. (Id.)
As Wilson began to administer the injection, however, Taylor’s heart stopped from lack
of oxygen. He died at 8:25 a.m. on September 30, 1998. (Id.) Recognizing that, because
Taylor died as potassium chloride was being administered, there might be suspicion that that
the drug had killed him, Wilson promptly took a voluntary leave of absence so that the IDFPR
and the Cook County State’s Attorney could conduct a thorough investigation into Taylor’s
death. (Id. at 17.) Wilson himself called the CCME to request that the office perform an
autopsy. (Id.)
The next day, October 1, 1998, Taylor’s body was transported to the CCME where
Deputy Chief Medical Examiner Mitra Kalelkar performed an autopsy. (Id. at 20.) At first,
Kalelkar could not determine the cause of Taylor’s death. She listed the result as uncertain
pending the return of a toxicology report on Taylor’s blood. While waiting for the blood test,
Kalelkar spoke to an unidentified “third party” 2 about the events leading to Taylor’s demise.
Based on that conversation, she changed the autopsy result to “homicide” resulting from
2

Wilson does not clarify whether he knows the identity of the third party, nor does
he explain how he learned of the third party’s involvement.
4

“Potassium Chloride Intoxication.” (Id.) Kalelkar’s change of heart could not have been based
on the blood test results, which were not completed by a third party until the following day.
(Blood Test Results, Ex. 12 to Second Am. Compl.) According to an affidavit from Wilson’s
expert, Dr. James Bryant, those results, which were apparently never analyzed by the CCME or
the IDFPR, actually confirmed that Taylor’s potassium levels were normal at the time of his
death (i.e., the injection had not reached his heart when he died). (Id. at 20-21.)
Immediately after modifying the autopsy results on October 1, 1998, Kalelkar notified the
Olympia Fields Police Department that Taylor’s death was a homicide. (Id. at 21.) Several days
later, without notifying Wilson, Kalelkar released Taylor’s body for cremation, foreclosing any
opportunity for a second autopsy. (Id.) Kalelkar and her boss, Edmund Donoghue, met with
IDFPR employees Dr. Andrew Gorchynsky and attorney Thomas Glasgow at the CCME office
in Chicago on October 7. Kalelkar told the others that she had been unable to determine the
cause of Taylor’s death based on medical testing alone, but that she’d concluded his death had
been a homicide after hearing a story from a third party about Wilson injecting Taylor with
potassium chloride. (Id.)
Based on this meeting, Gorchynsky and Glasgow concluded that Wilson had injected
Taylor in an effort to kill him, an effort that proved successful. Their conclusion relied, in part, on
the belief that potassium chloride was capable of immediately causing Taylor’s heart to stop.
Wilson, alleges, however, that it would actually take “much longer” for the drug to have had any
adverse effect on Taylor. (Id. at 24.) After the meeting with Kalelkar, Donoghue told the local
Olympia Fields newspaper that the amount of potassium chloride administered by Wilson “is
always fatal,” and that the injection was “given to euthanize [and t]hat’s exactly what happened.”
(Id. at 26.) Without interviewing Wilson or any other witnesses, Gorchynsky and Glasgow
concluded their investigation and, at their urging, the IDFPR suspended Wilson’s license without
a hearing on October 9, 1998. (Id. at 30.) They also initiated revocation proceedings against
Wilson. A formal hearing was eventually scheduled for November 1999. (Id. at 37.)
5

The next day, October 10, 1998, an IDFPR spokesman told the Chicago Tribune that “[i]t
is rare for a physician to be suspended without first receiving a hearing . . . , because it
eliminates the due process usually provided to a professional. But when we feel there is clear
and convincing evidence of wrongdoing, we can take this action.” (Id. at 31-32.) Over time,
however, the IDFPR softened its position slightly. One of its prosecutors, William McLaughlin,
Esq., told the IDFPR that it could not prove that Wilson had intended to kill Taylor. (Id. at 32.)
On November 17, 1998, the IDFPR changed the charge against Wilson from an allegation that
he had administered potassium chloride “for the purpose of causing Henry Taylor’s death,” to a
charge that Wilson had administered the injection “which resulted in Henry Taylor’s death.” (Id.
at 32-33.) At this point, Wilson claims, Gorchynsky, Glasgow, and others “must have known, or
should have known, that . . . there was no basis to summarily suspend Dr. Wilson’s medical
license without a contested evidentiary hearing.” (Id. at 33.) Nonetheless, Wilson’s license
remained suspended and the revocation proceedings continued apace.
On April 7, 1999, Wilson and his attorneys met with Glasgow and McLaughlin to discuss
the progress of revocation proceedings. The meeting did not go well, and Glasgow told Wilson
that “he did not care about Dr. Wilson’s 5th Amendment rights [to due process].” (Id. at 34
(alteration in original).) Glasgow made clear that he would not lift Wilson’s suspension because
he considered Wilson “a danger to society.” (Id.) Months later, in September 1999, Wilson
received two pieces of good news: the Cook County State’s Attorney’s Office announced that it
would not file any criminal charges against Wilson, and Taylor’s family dismissed a wrongful
death suit it had filed against Wilson without receiving any payment from the doctor or his
malpractice insurance carrier. (Id. at 36.)
With a month left until his formal hearing before the IDFPR, Wilson filed suit in federal
court against Kalelkar, Donoghue, the CCME, Gorchynsky, Glasgow, the IDFPR, and its former
director Leonard Sherman in October 1999. (Id. at 36.) That suit, filed pursuant to 42 U.S.C.
§ 1983, alleged that the defendants had violated Wilson’s constitutional rights by suspending his
6

license ex parte.

He sought damages and also asked the court to enjoin the continued

prosecution of the IDFPR’s charges against him. (Id. at 36-37.) On the eve of Wilson’s hearing,
Judge Ruben Castillo of this court denied Wilson’s request for a temporary restraining order that
would have halted the IDFPR’s allegedly biased revocation proceedings against him.

The

district judge ruled that “if the doctor is correct in his allegations as to what’s about to occur; that
is, a kangaroo-type proceeding, I think the monetary damages that will be available under
Section 1983 will be more than sufficient . . . to take care of this . . . allegation.” (Id. at 38.)
Wilson’s suit was later dismissed by Judge George Lindberg without prejudice under the
Younger abstention doctrine, which requires federal courts to abstain from interfering in ongoing
state proceedings. (Id.) Wilson appealed that ruling, but later voluntarily dismissed his appeal
before the Seventh Circuit could rule on its merits. The record does not contain any information
about Wilson’s appeal.
A formal hearing on the IDFPR’s revocation charges against Wilson was held before an
administrative law judge (ALJ) in March 2000.

Following the hearing, which Wilson

characterizes as a “sham,” the ALJ recommended that Wilson’s license be suspended for “a
minimum of five years.” (Id. at 39.) The IDFPR adopted the ALJ’s findings, issuing a five-year
suspension, backdated to the start of Wilson’s temporary suspension on October 9, 1998. Soon
after that decision, Wilson ran into McLaughlin at a restaurant in Frankfort, Illinois. 3 According
to Wilson, McLaughlin approached him and “with an obvious and understandable sense of guilt
and remorse,” informed Plaintiff that the IDFPR had “blackballed” Wilson because Wilson had
“talk[ed] back” to Glasgow and didn’t cut a deal with the IDFPR. (Id. at 39-40.)
The conversation with McLaughlin “stiffened Dr. Wilson’s resolve to seek relief in a real
Court before a real Judge.” (Id. at 40.) He filed his first of four complaints for administrative
review in April 2002. The Circuit Court of Cook County reversed the IDFPR’s decision on two
3

The complaint does not identify the date of the chance meeting between
McLaughlin and Wilson.
7

grounds: the IDFPR had violated Wilson’s due process rights by (1) failing to grant Wilson a
continuance in order to present additional evidence; and (2) not granting Wilson’s motion in
limine to bar any evidence from the result of the autopsy, because Wilson had not been afforded
the opportunity to conduct an independent autopsy. (Id. at 40.)
The IDFPR appealed the decision. On appeal, the Illinois Appellate Court affirmed the
Circuit Court’s decision with regard to the witness issue, but reversed on the autopsy issue
because Wilson had not challenged the results of the autopsy during the initial evidentiary
hearing. The matter was remanded to the IDFPR in October 2004. Wilson sought to substitute
a new expert witness in November 2005, but that request was denied by the ALJ in March 2006.
New findings were issued to the IDFPR in November 2006, and without notice to Wilson, the
IDFPR affirmed its suspension order in July 2007.

(Id. at 41-42.)

Wilson again sought

administrative review of this decision in August 2007, and again the Circuit Court reversed the
IDFPR in May 2008. On remand this time, an evidentiary hearing was held before a new ALJ in
October 2008, who agreed with the first ALJ’s recommendation of a five-year suspension. (Id.
at 42-43.) The IDFPR adopted this recommendation in July 2009. (Id. at 43.)
Wilson’s third complaint for administrative review followed a familiar pattern. The Circuit
Court reversed the IDFPR’s decision a third time in July 2011, only to have Wilson’s suspension
reinstated on remand in June 2012.

(Id.)

Although the IDFPR issued its “initial findings”

affirming the suspension in June 2012, it did not issue its final order until April 2013. (Id. at 44.)
The IDFPR did not explain the cause of this delay.

Wilson filed his fourth complaint for

administrative review in May 2013. For a fourth time, the Circuit Court reversed the suspension,
this time on the merits: the Circuit Court held that the IDFPR’s conclusion that the potassium
chloride injection had killed Taylor “is against the manifest weight of the evidence.” That court
also held that reversal was alternatively warranted on the basis of the IDFPR’s due process
delays. (Id. at 44-45.) The IDFPR did not appeal this decision.

8

On December 31, 2014, Wilson filed this suit bringing federal claims pursuant to § 1983
and several state causes of action [1].

He has since amended his complaint twice, most

recently in April 2015 [18]. The Defendants have filed three separate motions to dismiss [19,
22, 26] Wilson’s second amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). They argue that Wilson’s suit is barred by the applicable statute of limitations and that
they are immune from liability.
DISCUSSION
I.

Counts One Through Five: § 1983 claims
The first five counts of Wilson’s complaint raise claims under 42 U.S.C. § 1983, alleging

that state and county employees violated his constitutional rights: Count One is based on the
Defendants’ 4 “unreasonable seizure” of Wilson’s medical license without a hearing. (Second
Am. Compl. at 46-47.) Count Two alleges that Defendants violated Wilson’s constitutional rights
to property (the medical license) and liberty (the opportunity to pursue his chosen career) by
continuing to pursue revocation proceedings after they knew or should have known that the
charges against Wilson were false. (Id. at 47-48.) Count Three alleges the same constitutional
violations as Count Two, but it is predicated on the delays in the administrative proceedings
following the first remand in October 2004. (Id. at 48-49.) Count Four is a Monell claim based
on the CCME’s “practice of allowing inappropriate hearsay autopsies[,] which contributed to the
deprivation of Dr. Wilson’s constitutional rights.” (Id. at 49-50.) Finally, Count Five alleges that
all Defendants conspired together to commit the constitutional violations cited in Counts One
through Four. (Id. at 50-51.)

4

Counts One through Five each name different combinations of state and county
Defendants. For the sake of simplicity, the court does not list each set of defendants in
summarizing Wilson’s claims, as those distinctions are immaterial to the court’s statute-oflimitations analysis.
9

The Defendants 5 argue that all of Wilson’s § 1983 claims are barred by the two-year
limitations period applicable to any such claim filed in Illinois. See Wallace v. Kato, 549 U.S.
384, 387 (2007) (explaining that the applicable statute of limitations “is that which the State
provides for personal-injury torts”); 735 ILCS 5/13-202 (two-year statute of limitations for
personal injury claims in Illinois).

“Section 1983 claims accrue when the plaintiff knows or

should know that his or her constitutional rights have been violated.” Kelly v. City of Chicago, 4
F.3d 509, 511 (7th Cir. 1993). And the Defendants contend that Wilson knew about all of the
constitutional violations alleged in his complaint long before December 31, 2012 (i.e., two years
before Wilson filed this suit). (County Defs.’ Mot. to Dismiss at 6-9.)
Wilson counters that his § 1983 claims are timely because they did not accrue until his
suspension was overturned by a final order of the Circuit Court of Cook County in April 2014.
(Pl.’s Resp. to County Defs.’ Mot. to Dismiss at 2.) For support, he cites, without elaboration, to
Heck v. Humphrey, 512 U.S. 477, 487-87 (1984), and Tillman v. Burge, 813 F.Supp. 2d 946,
969–71 (N.D. Ill. 2011).

Upon closer inspection, however, neither case supports Wilson’s

position.
The plaintiff in Heck was convicted of murder. With his criminal appeal pending, Heck
filed suit under § 1983, alleging that police officers and prosecutors had, among other things,
“knowingly destroy[ed]” evidence. The Court affirmed the district court’s dismissal of Heck’s
suit, because

5

Only the County Defendants raised a statute-of-limitations defense in their
motion to dismiss. Although Gorchynsky and the rest of the State Defendants did not argue that
Wilson’s § 1983 claims are time-barred, they are free to raise such a defense in a subsequent
answer. See Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir. 2000) (“Rule 8(c) requires a
defendant to plead a statute of limitations defense and any other affirmative defense in his
answer to the complaint.”) (internal quotation marks omitted). Because the County Defendants’
statute-of-limitations arguments apply with equal force to Counts One through Five—even
though Counts Two and Three name only State Defendants—the court will consider those
arguments as they relate to all of Wilson’s § 1983 claims. To do otherwise would require
unnecessary briefing from the State and would run counter to the notion of judicial economy.
10

in order to recover damages for . . . harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship
to a conviction or sentence that has not been so invalidated is not cognizable
under § 1983.
Heck, 512 U.S. at 486. Although the complaint in Heck sought monetary damages only, the
Court ruled that the plaintiff could not proceed under § 1983, because any award in his favor
would “necessarily imply” the invalidity of his conviction. (Id. at 487.)
Tillman also involved civil claims arising out of a criminal prosecution. The plaintiff there
filed multiple § 1983 claims against various state and municipal employees in 2010, based on
the circumstances surrounding his wrongful conviction for rape in 1986. Tillman’s conviction
had been vacated just months before he filed the civil suit.

The defendants argued that

Tillman’s claims were time-barred, and the district court granted their motion as it related to
certain counts, but denied it as to others. The Tillman court’s reasoning relied on Heck. It found
that any claims that would “impugn[] the validity of the conviction” did not accrue until the
conviction was vacated, but those claims that did not rely on the invalidity of his conviction
accrued at the time the constitutional violation occurred. Based on that conclusion, the court
dismissed Tillman’s false-arrest claim as untimely. Tillman, 813 F.Supp. 2d at 968-69. It did not
dismiss certain other counts, however, such as a coercive-confession claim, because “had
[Tillman] brought this claim earlier, it would have impugned the validity of his conviction.” Id. at
971.
The County Defendants urge that Heck and Tillman do not address the circumstances of
Wilson’s case, because “the underlying administrative and civil proceedings in this case . . . do
not deal with allegations of criminal conduct.” (County Defs.’ Reply at 3.) Wilson does not cite
to any case applying Heck to § 1983 claims unrelated to a criminal conviction or sentence, nor
could the court find any. The lack of support for Wilson’s position is perhaps unsurprising, given

11

that Heck and its progeny are singularly concerned with the prospect of a civil action
undermining an outstanding criminal conviction or sentence.

The Younger abstention

doctrine—which demands that federal courts, absent extraordinary circumstances, abstain from
enjoining state proceedings, Younger v. Harris, 401 U.S. 37 (1971)—is more relevant here.
Although Younger itself demands that federal courts abstain from enjoining state proceedings,
the plurality of circuit courts—including the Seventh Circuit—have concluded that the Younger
doctrine dictates federal abstention in at least certain damages suits where an award “would be
akin to a declaratory judgment.” Am. Fed’n of State, Cty. & Mun. Emps. v. Tristano, 898 F.2d
1302, 1304 (7th Cir. 1990). In fact, that is exactly what happened here, as Judge Lindberg of
this court dismissed Wilson’s 1999 suit—which sought both injunctive relief and monetary
damages—without prejudice, citing Younger. 6

But the fact that Younger required federal

abstention does not have the same impact on the accrual of Wilson’s claims as Heck would
have.

Although claims barred by Heck do not accrue until the reversal of the underlying

conviction, the Younger doctrine has no bearing on a claim’s accrual. This is why the Supreme
Court has advised district courts to stay rather than dismiss without prejudice those claims it
abstains from reaching based on the Younger doctrine: failure to do say may result in the
plaintiff’s claims being barred by the statute of limitations. See Deakins v. Monaghan, 484 U.S.
193, 203 n.7 (1988) (holding that where federal courts abstain under Younger, they should stay
rather than dismiss those claims, otherwise “a plaintiff could be barred permanently from
asserting his claims . . . by the running of the applicable statute of limitations.”).

6

The district judge should have stayed rather than dismissed Wilson’s damages
claims. See Lee v. Bernard, 62 F. App’x 670, 672 (7th Cir. 2003) (“When a court abstains under
Younger, it must stay, rather than dismiss, § 1983 claims for money damages that cannot be
redressed in the state proceeding; otherwise, the plaintiff's claims may be time-barred by the
time the state case is resolved.”) (citing Deakins, 484 U.S. at 202-03). But Wilson did not
appeal that issue and cannot raise it now. See United States v. Husband, 312 F.3d 247, 250
(7th Cir. 2002) (“[A]ny issue that could have been but was not raised on appeal is waived . . . .”).
12

Because Heck does not apply here to suspend the statute of limitations, the only
question that remains is whether any of Wilson’s claims accrued after December 31, 2012. 7
Wilson does not refer to specific dates in each count, but a close reading of the second
amended complaint reveals that all of the § 1983 claims involve alleged constitutional violations
of which Wilson was aware prior to that date: Count One is based on the ex parte suspension
of Wilson’s license, which occurred on October 9, 1998. (Second Am. Compl. at 29, 46-47.)
Count Two charges that Defendants continued revocation proceedings after they knew or
should have known that the IDFPR’s claims were “baseless.” (Id. at 47-48.) Wilson does not
allege exactly when or how the Defendants should have recognized the inaccuracy of their
claims, but other portions of the complaint confirm that this claim relies on Taylor’s medical
records and the autopsy blood test, which the Defendants would have had access to as part of
their initial investigation in 1998.

(See id. at 18-19 (referring to “the undisputed medical

evidence” in Taylor’s medical charts).) Count Three attacks the lengthy delays in the IDFPR’s
“prosecution of its claims against Dr. Wilson from and after the first remand to the Department in
October 2004.” (Id. at 48.) That remand concluded on July 17, 2007 when the director of the
IDFPR affirmed Wilson’s suspension. (Id. at 42.) Count Four is a Monell claim predicated on
the CCME’s autopsy practices. (Id. at 49-50.) The CCME released the results of its autopsy of
Taylor on October 1, 1998. (Ex. 15 to Compl. [1].) Finally, Count Five alleges that Defendants
conspired to produce the constitutional violations alleged in the first four counts of the complaint.

7

Although Heck is inapplicable, the court notes that, even if the opposite were
true, it is not clear that Wilson’s claims would be preserved by its holding. Under Wilson’s
apparent understanding of Heck, any claims that impugn the validity of his suspension did not
accrue until that suspension was overturned in April 2014. But which of Wilson’s claims actually
rely on the invalidity of his suspension? For instance, Count One, which alleges due process
violations based on the IDFPR’s ex parte suspension of Wilson’s license, would not require
proof that his license was improperly suspended. See Carey v. Piphus, 435 U.S. 247, 266
(1978) (“[T]he right to procedural due process is ‘absolute’ in the sense that it does not depend
upon the merits of a claimant's substantive assertions . . . .”)
13

(Second Am. Compl. at 50-51.) Wilson alleges that the conspiracy “began on or about October
1, 1998, and continued through June 2, 2014.” (Id.)
None of the five counts accrued within the two-year statute of limitations. Although the
alleged conspiracy continued through June 2014, civil conspiracy claims accrue “when the
plaintiff becomes aware that he is suffering from a wrong for which damages may be recovered
in a civil action.” Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992). As the underlying
constitutional violations spelled out in Counts One through Four all accrued long before
December 31, 2012, a conspiracy to commit those violations likewise accrued prior to that date.
All of Wilson’s § 1983 claims appear to be time-barred. Counts One through Five are
dismissed without prejudice. If Plaintiff believes that his claims are in fact timely under the
reasoning of this opinion, he may file an amended complaint, specifying how and when he
believes any alleged constitutional violations accrued after December 31, 2012.
II.

Counts Six Through Eight: State-Law Claims
The remaining three counts of Wilson’s second amended complaint raise state-law

claims against Defendants.
(Second Am. Compl. at 52.)

Count Six alleges that Wilson was maliciously prosecuted.
Count Seven raises a claim under 225 ILCS 60/46, which

establishes a cause of action for physicians whose licenses are revoked or suspended by the
state “without any reasonable basis in fact.”

(Id. at 52-53.)

And Count Eight seeks a

“declaratory judgment of indemnification as to the duty of the [IDFPR], the State of Illinois, and
Cook County to indemnify the individual [Defendants].” (Id. at 53-54.)
Having dismissed Wilson’s federal claims, the court declines to exercise supplemental
jurisdiction over the remaining state-law claims. 28 U.S.C. §§ 1367(c)(1), (3). This course of
action is particularly prudent given that Illinois courts have, as yet, offered little guidance in
applying 225 ILCS 60/46, the statutory claim that appears to have the most direct application
here. Novel issues of state law are better left to the state courts. Insolia v. Philip Morris Inc.,
216 F.3d 596, 607 (7th Cir. 2000) (“Federal courts are loathe to fiddle around with state law.
14

Though district courts may try to determine how the state courts would rule on an unclear area
of state law, district courts are encouraged to dismiss actions based on novel state law claims.”)
The court notes that Wilson’s claim under 225 ILCS 60/46 may also have a significant impact
his federal-law claims, as § 1983 claims are “not actionable if there is an adequate state-law
remedy.” Howlett v. Hack, 794 F3.d 721, 727 (7th Cir. 2015). Counts Five through Eight are
dismissed without prejudice to their being re-filed in state court.
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss [11, 19, 22, 26] are granted
and Plaintiff's second amended complaint [18] is dismissed without prejudice. Plaintiff’s third
amended complaint, if any, shall be filed within 21 days.
ENTER:

Dated: March 18, 2016

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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