Wilson v. Wesford Health Sources, Inc. et al

Filing 27

Opinion and Order. Signed by the Honorable William T. Hart on 2/3/2017:Mailed notice(clw, )

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

GREGORY SCOTT WILSON,
Plaintiff,
v.
SALEH OBAISI, et al.,
Defendants.

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No. 16 C 8446

OPINION AND ORDER
This re-filed case is before the court on the motions of defendants to dismiss
based on plaintiff Gregory Scott Wilson’s failure to exhaust administrative
remedies and the motion of defendant Imhotep Carter to dismiss based on the
statue of limitations. Jurisdiction of the court is based on Title 28 U.S.C. §§ 1331
and 1343.
On May 16, 2013, plaintiff Gregory Scott Wilson, confined in an Illinois
penitentiary, submitted a complaint in Case No. 13-cv-3656 (“the 2013 case”),
pursuant to Title 42 U.S.C. § 1983, alleging that the defendants Saleh Abas, M.D.,
Latona Williams, Imhotep Carter, M.D., Wexford Health Sources, Inc., Warden
Michael Lemke and Royce Brown-Reed violated his Eighth Amendment right to
be free from cruel and unusual punishment by delaying treatment for a reducible

hernia from and after September 2011. The hernia was repaired by surgery on
September 10, 2014.
During April of 2013, plaintiff filed two grievances with prison authorities
relating to his hernia condition, the first of which was returned without action for
more information. The second was pending at the time the plaintiff filed suit in
the 2013 case. His second grievance was not finally resolved until January 21,
2014 when it was denied as not being timely. Because no final administrative
action had been taken when the 2013 case was filed the action was dismissed
without prejudice in compliance with 42 U.S.C. § 1997e(a), the Prison Litigation
Reform Act. That Act provides that no action shall be brought with respect to
prison injury claims until all administrative remedies are exhausted. Ford v.
Johnson, 362 F. 3d 739, 742 (7th Cir. 2008).
Defendants again contend in this action that plaintiff has failed to exhaust
his administrative remedy. They state that the Administrative Appeal Board
dismissed plaintiff’s appeal because the appeal was not taken within 30 days after
the action of the warden denying the grievance, as required by an administrative
rule. The position is based on the contention that the warden denied the grievance
on October 11, 2013 and that the Administrative Review Board received the
appeal on December 12, 2013, a date stamped on the document. However,
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plaintiff alleges that he timely signed and submitted the appeal on November 8,
2013, a date also shown on the document, and that the “mailbox rule” governing
prisoner correspondence controls rather than the date of receipt by the Review
Board. The mailbox rule utilizes the date of mailing by the person in confinement
as the filing date rather than the date of receipt of the document. Jones v.
Bertrand, 171 F. 3d 499, 501(7th Cir. 1999). Irrespective of whether or not the
mailbox rule controls the timeliness of the appeal, the action of the appeal board
denying review was final. No further action could be taken by the plaintiff. The
motion to dismiss the action based on failure to exhaust administrative remedies
will be denied.
Dr. Imhotep Carter, a medical director at Stateville Correctional Center, left
this position in May of 2012, during the period plaintiff claims injury and
violation of his rights. Federal law provides that a claim against any particular
person accrues immediately when the person loses the ability to take action with
respect to the claim. When a person resigns or retires from public employment the
claim accrues on that date. Heard v. Elyea, 525 Fed. Appx. 510, 511 (7th Cir.
2013). Illinois has a two-year statute of limitations which is applicable to
plaintiff’s claims. This action against defendant Carter was brought more than
two years after it accrued. It must be dismissed with prejudice as against him.
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IT IS THEREFORE ORDERED AS FOLLOWS:
1. Defendants’ motion to dismiss [12] based on plaintiff’s failure to exhaust
his administrative remedies is denied.
2. Defendant Imhotep Carter’s motion to dismiss based on the Statue of
Limitations [8] is granted. The clerk of the court will enter an order dismissing
this action against defendant Carter with prejudice.
3. This case is set for hearing on status on February 16, 2017 at 2 P.M.
ENTER:

UNITED STATES DISTRICT JUDGE

DATED: FEBRUARY 3, 2017

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