Bonds v. City Of Chicago et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 1/11/2017. Mailed notice (mjc, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LENORA BONDS, individually
and as Independent Administrator
of the Estate of TERRANCE HARRIS,
Plaintiff,
v.
CITY OF CHICAGO, a municipal
Corporation, and UNKNOWN
OFFICERS,
Defendants.
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Case No. 16 C 5112
Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Before the court is Defendant the City of Chicago’s Motion to Dismiss Plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) [9]. For the reasons set forth
below, Defendant’s motion is granted.
I.
BACKGROUND
Plaintiff Lenora Bond’s son, Terrance Harris, was killed by Chicago police officers on
October 23, 2013. According to the allegations of Plaintiff’s complaint [1], Plaintiff called the
police to her home seeking assistance with her son, who had been diagnosed with a mental health
issue. Plaintiff’s complaint further alleges that Terrance was alone and unarmed when police
entered Plaintiff’s home, but that within a short period of time, Terrance had been shot 28 times
by police officers. Plaintiff also alleges that after her son was killed, she was taken to a Chicago
police station and interrogated.
On April 14, 2015, Plaintiff filed a pro se action in the Circuit Court of Cook County
against the Chicago Police Department. See Dkt. # 10-1. In that action, Plaintiff alleged
“wrongful death, [r]estitution of home and undue trust recompense, and compensation of
$80,000.00.” Id. However, Plaintiff failed to serve the named defendant, the Chicago Police
Department, and her case was dismissed less than two months later, on June 9, 2015, for want of
prosecution.1
On May 10, 2016, Plaintiff filed the instant action (this time with the assistance of
counsel) against the City of Chicago and unknown police officers. In her complaint, Plaintiff
sets forth five counts for relief: four counts under 42 U.S.C. § 1983 (excessive force, false arrest,
unlawful search and seizure, and denial of medical care), each alleging a “Monell
unconstitutional policy and practice claim against the City of Chicago;” and one count under
Illinois state law for damage to property. Plaintiff also alleges that she sent letters in July 2014
to the Chief Administrator of the Independent Police Review Authority, the Cook County State’s
Attorney’s Office, and the City of Chicago Law Department, requesting information about her
son’s case, but that these letters were ignored. Plaintiff does not attach any copies of the letters
to her complaint for the court’s review.
Defendant now moves for dismissal under Rule 12(b)(6) on numerous grounds, including
that Plaintiff’s claims are time barred by the applicable statutes of limitations and are not saved
from their untimeliness by the Illinois savings statute, 725 ILCS 5/13-217. Because we agree
with Defendant on this basis, we grant Defendant’s motion and dismiss Plaintiff’s complaint
with prejudice.
II.
LEGAL ANALYSIS
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move for dismissal of a
complaint if it “fail[s] to state a claim for which relief can be granted.” The court must accept all
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Plaintiff should have named the City of Chicago as the defendant. However, that error made no
difference in the resolution of her case because she never attempted service on any defendant.
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facts pleaded in the complaint as true, and must draw all reasonable inferences in the plaintiff's
favor. INEOS Polymers, Inc. v. BASF Catalysts, 553 F.3d 491, 497 (7th Cir. 2009). In general,
“the complaint need only contain a ‘short and plain statement of the claim showing that the
pleader is entitled to relief,’” E.E.O.C v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th
Cir. 2007) (quoting Rule 8(a)), with sufficient facts to put the defendant on notice “of what the ...
claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal quotation mark omitted)
(alterations in original). To survive a motion to dismiss under Rule 12(b)(6), the complaint need
not present particularized facts, but “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic, 550 U.S. at 555).
A statute of limitations is an affirmative defense. Fed. R. Civ. P. 8(c)(1). Dismissing a
claim as untimely at the pleading stage is an “unusual step, since a complaint need not anticipate
and overcome affirmative defenses, such as the statute of limitations.” Cancer Found., Inc. v.
Cerberus Capital Mgmt., LP, 559 F.3d 671, 674 (7th Cir. 2009). “[A] federal complaint does not
fail to state a claim simply because it omits facts that would defeat a statute of limitations
defense.” Hollander v. Brown, 457 F.3d 688, 691 n. 1 (7th Cir. 2006). But, a claim may be
dismissed as untimely at the motion to dismiss stage if “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.” United States v.
Lewis, 411 F.3d 838, 842 (7th Cir. 2005).
Defendant’s motion to dismiss alleges that all counts of Plaintiff’s complaint are barred
by applicable statutes of limitations. Turning first to the four Section 1983 claims, the court
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notes that this statute provides plaintiffs with a federal cause of action, but it does not contain a
statute of limitations. 42 U.S.C. § 1983. For this, courts look to the personal injury laws of the
state in which the injury occurred to determine the length of the statute of limitations. Wallace v.
Kato, 549 U.S. 384, 387 (2007); Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993).
Illinois has a two-year statute of limitations for personal injury claims. See 735 ILCS 5/13–202.
Thus, Section 1983 claims arising in Illinois are governed by a two-year statute of limitations.
Kelly, 4 F.3d at 511; Ashafa v. City of Chicago, 146 F.3d 459, 462 (7th Cir. 1998). The
applicable statute of limitations relative to Plaintiff’s state law damage to property claim against
the City of Chicago, a municipality, is subject to a one-year statute of limitations. See 745 ILCS
10/8-101(a); Fender v. Town of Cicero, 807 N.E.2d 606, 609 (Ill. App. Ct. 2004).
Having determined the applicable statutes of limitations, the court must then establish
when Plaintiff’s cause of action accrued. Federal law governs the date of accrual for a Section
1983 action. Wallace, 549 U.S. at 388. A Section 1983 claim accrues “when the plaintiff knows
or should know that his or her constitutional rights have been violated.” Kelly, 4 F.3d at 511
(quoting Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir. 1992)). Determining the accrual date of a
Section 1983 claim proceeds in two steps. First, the court identifies the injury. See Hileman v.
Maze, 367 F.3d 694, 696 (7th Cir. 2004). Next, it determines the date “on which the plaintiff
could have sued for that injury. That date should coincide with the date the plaintiff ‘knows or
should know’ that her rights were violated.” Id. (citing Kelly, 4 F.3d at 511) (internal citations
omitted).
In this case, Plaintiff’s entire cause of action accrued on October 23, 2013, the date her
son was killed, because each of Plaintiff’s five counts—excessive force, false arrest, unlawful
search and seizure, denial of medical care, and damage to property—arose from the
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circumstances surrounding Terrance’s death. The date of the injury coincides with the date
Plaintiff knew or should have known that her rights, or her son’s rights, were violated.2
However, Plaintiff did not file the instant lawsuit until May 10, 2016, which is more than six
months past the October 23, 2015 expiration of the two-year statute of limitations period
applicable to her federal claims, and more than 18 months past the expiration of the one-year
limitations period applicable to her state law property damage claim. Accordingly, Plaintiff’s
claims are all time-barred.
Plaintiff asserts that her current action is made timely by the application of the Illinois
savings statute, 735 ILCS 5/13-217. The court disagrees. This statute allows a plaintiff to refile
certain (timely-filed) actions within one year of judgment, regardless of whether the applicable
statute of limitations has expired in the interim.3 However, the Illinois savings statute is
inapplicable to actions dismissed for want of prosecution. Specifically, the statute provides:
§ 13-217. Reversal or dismissal. In the actions specified in Article XIII of this Act
or any other act or contract where the time for commencing an action is limited, if
judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict
in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is
entered against the plaintiff, or the action is dismissed by a United States District
Court for lack of jurisdiction, or the action is dismissed by a United States District
Court for improper venue, then, whether or not the time limitation for bringing
such action expires during the pendency of such action, the plaintiff, his or her
heirs, executors or administrators may commence a new action within one year or
within the remaining period of limitation, whichever is greater, after such
judgment is reversed or entered against the plaintiff, or the action is dismissed by
a United States District Court for lack of jurisdiction, or the action is dismissed by
a United States District Court for improper venue. No action which is
voluntarily dismissed by the plaintiff or dismissed for want of prosecution by
the court may be filed where the time for commencing the action has expired.
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In light of the court’s ruling, the court declines to visit the issue of whether Plaintiff properly brings this
action on her son’s behalf.
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Also in light of the court’s ruling, the court need not discuss the timeliness of Plaintiff’s state court
filing.
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725 ILCS 5/13-217 (emphasis added); see also Gholson v. Lewis, No. 07 C 3694, 2008 WL
821875, at *5 (N.D. Ill. Mar. 26, 2008).
In other words, by the express language of the statute,
actions involving an earlier-filed case dismissed for want of prosecution may not “be filed where
the time for commencing the action has expired.” Id. Prior to 1995, the Illinois savings statute
encompassed cases that had been dismissed for want of prosecution, but the statute’s amendment
in 1995 expressly excluded such cases. Plaintiff’s reliance on the 1991 case of Gonzalez v.
Thorek Hosp. & Med. Center, 143 Ill.2d 28 (Ill. 1991), fails to account for the 1995 amendment.
See Gholson, 2008 WL 821875, at *5 (noting the pre-1995 amendment of Illinois savings statute
included cases refiled after dismissal for want or prosecution but that this language no longer
exists within the statute).
The court also is unpersuaded by Plaintiff’s assertion that Defendant received notice of
the state law claims filed against it—either by means of the state court filing or by the numerous
letters sent to the Chief Administrator of the Independent Police Review Authority, the Cook
County State’s Attorney’s Office, and the City of Chicago Law Department. As noted
previously, Plaintiff never attempted service on Defendant. “Due diligence in serving process is
essential to [the administration of justice without delay], for it is the sole legally sufficient means
of alerting defendants to the pendency of a civil suit.” O'Connell v. St. Francis Hosp., 492
N.E.2d 1322, 1326 (Ill. 1986). Plaintiff has presented no evidence supporting her contention that
Defendant had any knowledge or notice of the filing of the state court lawsuit in the absence of
service. The letters she allegedly sent to various authorities, like the City of Chicago Law
Department, are to no avail.
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III.
CONCLUSION
Plaintiff’s complaint sets forth facts detailing the underlying incident giving rise to her
current lawsuit, as well as facts detailing the filing of her state court suit. These facts are
sufficient to satisfy Defendant’s affirmative defense of untimeliness based on applicable statutes
of limitations, as well as the inapplicability of the Illinois savings statute. For the foregoing
reasons, Defendant’s motion to dismiss Plaintiff’s complaint [9] is granted.
Date: January 11, 2017
/s/______________
Joan B. Gottschall
United States District Judge
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