Shuhaiber v. Dart et al

Filing 86

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, the motion 47 to dismiss based on the statute of limitations is granted. The only named defendants in the Third Amended Complaint are the i ndividual Defendants Thomas Dec, Thomas Ryan, Sargent Thomas, Michael Graczyk, Lieutenant Jackson, and Terry Nill, so this judgment applies to them. All other Defendants on the docket are terminated because they were not named in the Third Amended Co mplaint. The Court notes that the caption listed the currently named Defendants as being sued in their "official" capacity too, which would mean a suit against the governmental entity, but the allegations make clear the Defendants are sued individually only. A separate AO-450 judgment will be entered. The tracking status hearing of 11/20/2020 is vacated. Civil case terminated. Emailed notice (mw, )

Case: 1:17-cv-05331 Document #: 86 Filed: 11/17/20 Page 1 of 14 PageID #:243

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FADEEL SHUHAIBER,
Plaintiff,
v.
THOMAS W. DEC, et al.,
Defendants.

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No. 1:17-cv-05331
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Fadeel Shuhaiber brings this civil-rights lawsuit, 42 U.S.C. § 1983, alleging
that Cook County Jail officers and paramedics provided inadequate medical care
when he was detained in the Jail.1 R. 44, Third Am. Compl. ¶¶ 1–9. When he filed
the initial complaint, Shuhaiber listed the defendants as “John Doe” Defendants, because he did not know the identities of the officers and paramedics. R. 1. He later
amended the complaint three times in order to name the proper parties to the suit.
See R. 19, 33, 44. The Defendants now move to dismiss the Third Amended Complaint, arguing that it was filed too late under the applicable statute of limitations.
R. 47. The statute of limitations is an affirmative defense that typically does not need
to be pled around, but in this particular case, the limitations issue can be decided at
the pleading stage. For the reasons explained more fully below, the motion to dismiss
is granted.

1The

Court has federal-question jurisdiction under 28 U.S.C. § 1332 and supplemental
jurisdiction over the state law claims under 28 U.S.C. § 1367.

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I. Background
For purposes of this motion, the Court accepts as true the factual allegations
in the Third Amended Complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). At the
relevant time, Shuhaiber was a detainee in Cook County Jail. Third Am. Compl. ¶ 3.2
In mid-October 2016, Shuhaiber and another detainee got into a fight. Id. ¶ 12. As a
result, Shuhaiber suffered injuries to his leg and arm, which caused severe pain, required physical therapy, and occasionally confined Shuhaiber to a wheelchair. Id.
¶¶ 12-13. The following year, in mid-May 2017, a different detainee struck Shuhaiber
in the face, causing him to fall over a chair and onto the floor. Id. ¶¶ 16-17. Because
the previous injuries had not completely healed, Shuhaiber could not stand on his
own and remained lying on the floor. Id. ¶¶ 17-18, 21. Meanwhile, an officer restrained the other inmate and called for help. Id. ¶ 18-19.
A paramedic responded to the call, but according to Shuhaiber, the paramedic’s
examination was “superficial,” as it did not include any follow-up evaluation or any
review of his medical condition as a diabetic. Third Am.Compl. ¶¶ 20, 22. Despite
Shuhaiber’s inability to stand up or walk without the help of several other officers,
the paramedic “cleared” him to return to his cell. Id. ¶¶ 22-23. None of the Jail staff
followed up with Shuhaiber, and none of the medical staff administered the insulin
necessary to treat his diabetic condition. Id. ¶¶ 24-25. Around 31 hours after the assault, prison staff found Shuhaiber unresponsive on the floor of his cell, having fallen

2There

is a bit of confusion in the Third Amended Complaint, which alleges that
Shuhaiber was incarcerated at Stateville Correctional Center at the relevant time. Third Am.
Compl. ¶ 3. But his response brief makes clear that he was detained in the Cook County Jail
at the time, R. 54 at 1, which makes sense because he has sued Cook County Jail employees.

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down, Shuhaiber alleges, from the lack of proper treatment. Id. ¶ 27. The fall caused
Shuhaiber to suffer a blunt head trauma. Id. ¶ 26.
Two months later, on July 19, 2017, Shuhaiber filed this case pro se against
Sheriff Tom Dart, Director Olsen, “ADA Sabrina,” and various “John Doe” officers,
paramedics, and doctors. R. 1. In December 2017, the Court dismissed the complaint
as against the named defendants, but held that the complaint adequately stated a
claim against the unknown defendants. R. 10. The following year, in July 2018,
Shuhaiber filed the First Amended Complaint, naming Sheriff Tom Dart and six John
and Jane Does as defendants. R. 19. A few months later, in October 2018, Shuhaiber
filed the Second Amended Complaint to add Cook County as a defendant. R. 33. Finally, the next year, on August 2, 2019, Shuhaiber filed the Third Amended Complaint to name specific individual defendants rather than John Does. R. 44. Given the
two-year statute of limitations that applies to Shuhaiber’s claims, the Defendants
have moved to dismiss the Third Amended Complaint.
II. Standard of Review
Although the Defendants style their motion as invoking Rule 12(b)(6), in reality it seeks judgment on the pleadings. The statute of limitations is an affirmative
defense, and “plaintiffs need not anticipate and attempt to plead around all potential
defenses.” Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004).
Indeed, the Seventh Circuit has noted that dismissal under Rule 12(b)(6) on the basis
of the statute of limitations is “irregular,” because Rule 12(b)(6) tests the adequacy of
the legal claim, not its timeliness. United States v. Northern Trust Co., 372 F.3d 886,

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888 (7th Cir. 2004) (citing Fed. R. Civ. P. 8(c)). Nevertheless, when the allegations of
the complaint itself reveal that the case is barred by the statute of limitations, dismissal might be appropriate. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665
F.3d 930, 935 (7th Cir. 2012); Jay E. Hayden Found. v. First Neighbor Bank, N.A.,
610 F.3d 382, 383 (7th Cir. 2010) (“[I]f it is plain from the complaint that the [statute
of limitations] defense is indeed a bar to the suit dismissal is proper without further
pleading.”). So long as no discovery is needed to fill-in factual gaps, a dismissal on
statute of limitations grounds can be properly granted as, in effect, a judgment on the
pleadings under Federal Rule of Civil Procedure 12(c). Brownmark Films, LLC v.
Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (citing Brooks v. Ross, 578 F.3d
574, 579 (7th Cir. 2009)).
III. Analysis
On its face, the Third Amended Complaint does reflect a statute of limitations
problem: Shuhaiber filed it in August 2019, which is more than two years after the
May 2017 accrual of the claims against the Defendants. In Illinois, Section 1983 civilrights claims for personal injuries, like the claims in this case, are governed by a twoyear statute of limitations. See Brooks v. City of Chicago, 564 F.3d 830, 832 (7th Cir.
2009) (citing 735 ILCS 5/13-202). The Third Amended Complaint is the first one actually identifying the Defendants by name, so they argue that the operative complaint against them was filed too late. In response, Shuhaiber contends that the Third
Amended Complaint ought to relate back to the filing date of the initial Complaint
under Federal Rule of Civil Procedure 15(c)(1)(C).

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A. Relation Back
Shuhaiber’s relation-back argument relies on a rule that gives, under certain
circumstances, a later-filed complaint the benefit of an earlier-filing date if there was
a “mistake” as to the proper defendant’s identity in the original complaint:
(1) An amendment to a pleading relates back to the date of the original pleading when:
(C) the amendment changes the party or the naming of the party against
whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within
the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced
in defending on the merits; and
(ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party's
identity.
Fed. R. Civ. P. 15(c)(1)(C) (emphasis added). As the text of the rule reflects, a plaintiff
seeking to take advantage of relation back first must satisfy another subparagraph,
specifically, Rule 15(c)(1)(B). That rule requires that the later-filed complaint assert
conduct that arises out of the same “conduct, transaction, or occurrence set out” in
the initial Complaint. Fed. R. Civ. 15(c)(1)(B). Here, the defense does not dispute that
the Third Amended Complaint does just that: the claims in it arise out of the same
allegedly inadequate medical care set out in the initial Complaint.
But the defense does dispute that the Defendants received notice of the action
on time, Fed. R. Civ. P. 15(c)(1)(C)(i), and also disputes that Shuhaiber’s lack of
knowledge as to the Defendants’ identities qualifies as a “mistake,” Fed. R. Civ. P.
15(c)(1)(C)(ii). To answer the first question—whether the Defendants had notice of

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the suit within 90 days of the filing of the Third Amended Complaint—would require
discovery and factual development that has not yet happened. As it turns out, however, discovery is not needed, because the answer to the second question is that the
defense is right: as a matter of law, Shuhaiber’s lack of knowledge as to the identity
of the Defendants was not a “mistake” under the Civil Rules.
Remember that the pertinent requirement is that the new defendant “knew or
should have known that the action would have been brought against it, but for a
mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii) (emphasis added). Was Shuhaiber’s lack of knowledge of the proper party’s identity a “mistake” concerning that person’s identity? In support of answering yes, Shuhaiber cites
a 2010 Supreme Court case, Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 541
(2010). In Krupski, a passenger tripped over a cable and fractured her leg while on
board a cruise ship owned and operated by Costa Crociere S.p.A. Id. at 541-42. The
passenger filed a lawsuit, but initially named “Costa Cruise Lines” as the defendant.
Id. at 543. Costa Cruise Lines, however, was merely the North American sales and
marketing agent for Costa Crociere, an Italian corporation. Id. By the time the passenger sued and served Costa Crociere as the proper defendant in an amended complaint, the statute of limitations had expired. Id. at 544-45. The district court dismissed the amended complaint as untimely, and the court of appeals affirmed. Id. at
546. The appellate court reasoned that the passenger either knew or should have
known the identity of the correct defendant, so the court deemed the passenger to

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have deliberately chosen to sue Costa Cruises Lines. Thus, no “mistake” had been
committed as required by Rule 15(c)(1)(C)(ii).
The Supreme Court held, however, that the amended complaint could relate
back to the date of the original complaint. Id. at 548. Based on the text of the Rule,
the relevant question was not what the plaintiff knew or should have known about
the proper defendant’s identity—the question is what the defendant knew or should
have known. Id. “Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or
should have known during the Rule 4(m) period, not what the plaintiff knew or should
have known at the time of filing her original complaint.” Id. (emphasis in original).
Having said that, the Supreme Court did acknowledge that what the plaintiff knew
is relevant “if it bears on the defendant’s understanding of whether the plaintiff made
a mistake regarding the proper party's identity.” Id. (emphasis added). But just because the passenger knew of both Costa entities before filing the lawsuit did not necessarily mean that she did not make a “mistake” in initially suing Costa Cruise Lines.
Id. at 548-49. She still misunderstood the roles that each entity played in the accident, and that qualifies as a “mistake.” Id. at 549. So relation back could apply even
if the plaintiff knew about both Costa entities before filing the lawsuit. Id.
The problem with applying Krupski’s holding to Shuhaiber’s case is that he did
not know the identity of the proper defendants at all. Unlike the plaintiff in Krupski,
Shuhaiber did not misunderstand the roles of the John Doe Defendants—he simply
did not know what their names were. So far, the Seventh Circuit has not decided
whether suing John Doe Defendants qualifies as a “mistake” under Rule

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15(c)(1)(C)(ii). The district courts in this District have come to different conclusions
on this issue. Cheatham v. City of Chicago, 2016 WL 6217091, at *3 (N.D. Ill. Oct. 25,
2016) (qualifies as a mistake); Vandenburgh v. Bannockburn Police Officer Robert
Ogden, 2016 WL 403663, at *3 (N.D. Ill. Feb. 3, 2016) (does not qualify as a mistake);
White v. City of Chicago, 2016 WL 4270152, at *18 (N.D. Ill. Aug. 15, 2016) (qualifies
as a mistake). If anything, there is a “recent trend in this District [] for courts to apply
Krupski to [John Doe] cases.” Bilik v. Hardy, 2019 WL 4735394, at *4 (N.D. Ill. Sep.
27, 2019); see also Paulsen v. Abbott Laboratories, 368 F.Supp.3d 1152, 1169 (N.D.
Ill. 2019).
Outside of this District, however, every federal Circuit that has decided this
issue has decided not to extend Krupski to suits in which John Doe Defendants are
sued as the stand-in for the later-named defendants. See, e.g., Ceara v. Deacon, 916
F.3d 208, 213 (2d Cir. 2019); Heglund v. Aitkin Cty., 871 F.3d 572, 579-80 (8th Cir.
2017); Butler v. National Community Renaissance of California, 766 F.3d 1191, 120304 (9th Cir. 2014); Brown v. Cuyahoga Cty., Ohio, 517 Fed. Appx. 431, 433-34 (6th
Cir. Mar. 15, 2013) (unpublished opinion). For example, in Heglund, the Eighth Circuit relied on dictionary definitions of the word “mistake” to conclude that naming a
John Doe Defendant is not a mistake, because that word most often suggests “an
unintentional error through lack of understanding.” Heglund, 871 F.3d at 579-80 (emphasis added). Heglund pointed out that Krupski itself relied on dictionary definitions
that, for the most part, suggested that a “mistake” is an unintentionally wrong action:
The Court defined mistake as “[a]n error, misconception, or misunderstanding; an erroneous belief.” Id. at 548 (quoting BLACK’S LAW DICTIONARY

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1092 (9th ed. 2009)). It also described a mistake as “a misunderstanding of the
meaning or implication of something”; “a wrong action or statement proceeding
from faulty judgment, inadequate knowledge, or inattention”; “an erroneous
belief”; or “a state of mind not in accordance with the facts.” Id. at 548-49 (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1446 (2002)).
871 F.3d at 579 (quoting and citing Krupski, 560 U.S. at 548-59). Because only unintentional actions can qualify as a “mistake,” and suing a John Doe Defendant is “not
the result of a misunderstanding or misconception,” a plaintiff cannot be said to have
made a “mistake” in suing John Doe Defendants. Id. at 580. So relation back is not
available for amended complaints that replace John Doe Defendants with the actual
names of the defendants. Id. at 581.
This interpretation of the word “mistake” is the most faithful textual reading
of the term. The dictionary definitions cited in Krupski and Heglund do establish that,
first and foremost, a mistake is something that is wrong: an “error, misconception, or
misunderstanding,” or put another way, “a wrong action or statement,” Krupski, 560
U.S. at 548. When a plaintiff does not know the name of the proper defendant, the
plaintiff does not commit an “error”—the plaintiff is not “wrong”—when the plaintiff
lists John Doe Defendant as the stand-in party. Indeed, that is the right thing to do
when the defendant’s identity is not known. This is the plain meaning of how the
word is used in ordinary situations. Consider this: a baseball aficionado tests another
fan’s knowledge by asking, “Who won the World Series in 2009?”, and the second
responds, “I don’t know.” The questioner could not fairly reply, “Well, you just made
a mistake.” That would not make sense. If the response had been the Boston Red Sox
(or any team other than the New York Yankees), then the questioner could fairly

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reply, “No, you just made a mistake—it was the Yankees.” The bottom line is that the
plain and ordinary meaning of the word “mistake” does not describe what a plaintiff
does when the plaintiff correctly sues John Doe Defendants in a complaint when the
identity of the proper defendants is not yet known. And there are no other textual or
contextual clues in Rule 15 that point to a specialized meaning of “mistake” for the
Rule.
It is true that, as noted earlier, some decisions have applied Krupski to suits
against John Doe Defendants. In doing so, the decisions primarily highlight one particular aspect of one of the dictionary definitions of “mistake” cited in Krupski. Specifically, Webster’s Third New International Dictionary defines “mistakes” as “a
wrong action or statement proceeding from faulty judgment, inadequate knowledge,
or inattention.” Krupski, 560 U.S. at 548-49 (emphasis added). The decisions that
apply Krupski to John Doe Defendants point out that action taken out of “inadequate
knowledge” is part of the definition, and that is what plaintiffs in the dark are doing
when they sue John Doe Defendants—acting out of “inadequate knowledge.” E.g.,
White v. City of Chicago, 2016 WL 4270152, at *16 (N.D. Ill. Aug. 15, 2016); see also
Haroon v. Talbott, 2017 WL 4280980, at *6 (N.D. Ill. Sep. 27, 2017). The problem with
this reasoning is that it divorces “inadequate knowledge” from the rest of the dictionary definition. The subject of the definition is “a wrong action or statement.” Krupski,
560 U.S. at 548 (emphasis added) (quoting WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1446 (2002)). As explained earlier, it simply is not “wrong” for a plaintiff
who does not know the identity of the proper defendant to sue a John Doe Defendant

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as the stand-in. Suing a John Doe Defendant “accurately convey[s]” that the plaintiff
does not know the defendant’s identity. Heglund, 871 F.3d at 580 (emphasis added).
It is also true, as the decisions that apply Krupski to John Doe Defendants
point out, that Krupski does instruct that the relevant question is the defendant’s
knowledge about whether the action would have been brought against the defendant
but for a mistake about identity. 560 U.S. at 548. After all, that is what the text of
Rule 15(c)(1)(C)(ii) demands. But if naming a John Doe Defendant is by definition not
a “mistake,” then necessarily Rule 15(c)(1)(C)(ii) cannot be satisfied, because the defendant—as a matter of law—cannot have known that the plaintiff made a mistake
by suing a John Doe Defendant. Viewing the complaint’s targeting of a John Doe
Defendant from the perspective of the defendant does not change anything.
No doubt that there are sound policy reasons to allow an amended complaint
to relate back to an original complaint naming John Doe Defendants, especially if the
proper defendants know that they would have been sued but for the plaintiff’s lack of
knowledge. If the defendants would not otherwise be prejudiced, then there ought to
be a strong preference for resolving suits on their merits, rather than on a statute of
limitations. But this policy-making rationale cannot override the plain meaning of
the Rule’s text. Indeed, it appears that the Civil Rules Advisory Committee considered—but rejected—adding “lack of information” to Rule 15(c) as a basis for relation
back. Specifically, in 2006, the Committee considered “whether to expand the concept

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of ‘mistake’ by adding ‘or lack of information.’” Minutes of the Civil Rules Advisory
Committee at 26 (May 2006).3 The Committee described the problem this way:
“[M]istake” is read to cover only a claimant who erroneously believes that the
right defendant has been identified. If the claimant knows that it cannot identify the proper defendant, there is no “mistake,” but only ignorance. This interpretation could easily be changed by adding four words: “mistake or lack of
information.”
Id. at 24-25 (underlining in original). So the Committee’s interpretation of “mistake”
did not include the naming of John Doe Defendants. On the plus side of adding “lack
of information,” the Committee noted that aiding plaintiffs who sue unknown police
officers “seems attractive in this setting.” Id. at 26. But the Committee also acknowledged the possibility of “broad intrusions on limitations periods.” Id. Ultimately, the
Committee decided that the “balance between difficulty and need seems close,” so it
decided to cease consideration of the amendment. Id. at 26-27.
Given this prior consideration of the policy balance, there is all the more reason
to stick with the plain meaning of the Rule and leave it to rule-makers to consider
the issue. See Heglund, 871 F.3d at 581 (“There may well be sound policy arguments
for permitting relation back when a plaintiff amends a John Doe pleading … . But we
think these concerns are best directed to the rulemakers, because it would unduly
strain the plain language of the present rule to say that Rule 15(c) encompasses the
[plaintiff’s] amendment.”).

3Available

at https://www.uscourts.gov/rules-policies/archives/meeting-minutes/advisory-committee-rules-civil-procedure-may-2006.

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B. Equitable Tolling
One final point is worth addressing: Shuhaiber’s response brief makes a nod
at the possibility of equitable tolling as a way around the statute of limitations problem. Pl.’s Resp. at 6. Equitable tolling “permits a plaintiff to sue after the statute of
limitations has expired if through no fault or lack of diligence on his part he was
unable to sue before … . He might have been injured and known he was injured …
yet have been unable despite all reasonable diligence to learn that he had been injured by a wrongful act or to learn the wrongdoer’s identity.” Singletary v. Continental
Illinois Nat. Bank & Trust Co. of Chicago, 9 F.3d 1236, 1241 (7th Cir. 1993). Shuhaiber seems to invoke this doctrine by arguing that the Defendants had “exclusive control” over the information that he needed to identify the individual defendants. Pl.’s
Resp. at 6. Because the Defendants delayed providing this necessary information until after the statute of limitations had expired, Shuhaiber could not have amended his
complaint on time. Id.
But Shuhaiber only “seems” to invoke equitable tolling because he does not
actually explicitly say that he is relying on the doctrine: the term “equitable tolling”
does not appear in the response brief. What’s more, the response brief does not cite
any cases involving equitable tolling; does not set forth the standard for equitable
tolling; and does not address whether he was reasonably diligent in attempting to

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identify the defendants. So he has not adequately developed the argument, and has
forfeited it.
IV. Conclusion
For the reasons discussed above, the Defendants’ motion for judgment based
on the statute of limitations is granted. The status hearing set for November 20, 2020
is vacated. Final judgment shall be entered.

ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: November 17, 2020

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