Mohammed v. Westcare Illinois, Inc. et al

Filing 62

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 1/23/2019. WestCare and Cook Countys Motions for Judgment on the Pleadings 38 and 41 are granted and the remaining counts against WestCare, Cook County, and the unknown employees are dismissed with prejudice. Mohammed's Motion to extend Fact Discovery 48 is denied. The Court dismisses the count against Joe Burnett without prejudice. Status hearing set for 1/23/2019 is stricken. Mailed notice(lk, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AHMED MOHAMMED,
Plaintiff,
v.
WESTCARE FOUNDATION, INC.,
WESTCARE ILLINOIS, INC., JOE
BURNETT, THOMAS J. DART, Cook
County Sheriff, COOK COUNTY, ILLINOIS, and, UNKNOWN EMPLOYEES AT COOK COUNTY JAIL,
Defendants.

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No. 17 C 07492
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Ahmed Mohammed filed this action seeking relief under 42 U.S.C. § 1983, Illinois law, and common law against Defendants WestCare Foundation, Inc., WestCare
Illinois, Inc. (collectively “WestCare”), inmate Joe Burnett (“Burnett”), Thomas J.
Dart, Cook County Sheriff (“Sheriff Dart”), Cook County, Illinois (“Cook County”),
and unknown employees at Cook County Jail (“unknown employees”). (Dkt. 1). Mohammed sought damages against WestCare, Cook County, Sheriff Dart, and the unknown employees alleging violations of his Eight and Fourteenth Amendment Rights
(Counts I and II); damages pursuant to common law respondeat superior against
WestCare, Cook County, or Sheriff Dart as the principals of the unknown employees
(Count III); indemnification claims against Cook County, Sheriff Dart and WestCare
pursuant to 745 ILCS § 10/9-102 for actions of the unknown employees (Count IV);
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and common law battery against Joe Burnett (Count V). Following motions to dismiss on behalf of the WestCare and Cook County defendants, Counts I and II remained only against the unknown employees, Count IV remained depending on who
employed the unknown employees, and Count V remained untouched. (Dkt. 34).
WestCare and Cook County now bring a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on the grounds that Mohammed’s remaining claims are
time barred by the statute of limitations. (Dkts. 38 and 41). On November 13, 2018,
after WestCare and Cook County filed their motions for judgment on the pleadings,
Mohammed filed a motion to extend fact discovery. (Dkt. 48). Defendants’ motions
for judgment on the pleadings are granted with prejudice. Mohammed’s motion to
extend fact discovery is denied. On the Court’s own motion, the claim against Burnett
is dismissed without prejudice consistent with Fed. R. Civ. P. 4(m).
BACKGROUND
In reviewing the parties’ motions for judgment on the pleadings, the Court accepts the allegations laid out in the complaint as true. See Harrison v. Deere & Co.,
533 F.App’x 644, 647 (7th Cir. 2013).
On November 1, 2015, Mohammed was an inmate of the Cook County Department of Corrections. (Dkt. 1 at ¶ 15). At that time, Mohammed was housed in an
“open-spaced dormitory style setting” with other inmates, including Joe Burnett. (Id.
at ¶ 20). Both Mohammed and Burnett were participants of a substance abuse treatment program provided by WestCare. (Id. at ¶¶15, 17). As of November 1, 2015,
Burnett had a history of threatened and actual altercations while in Cook County
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custody. (Id. at ¶ 21). Around 12:00 p.m. on November 1, 2015, Burnett approached
Mohammed, who was in his bunk, and struck him “with a closed fist causing [Mohammed] to sustain serious and permanent injuries and disfigurement.” (Id. at ¶
22).
Mohammed, through retained counsel, filed his complaint on October 17, 2017,
just two weeks prior to the two-year anniversary of the alleged wrongdoing. (Dkt. 1).
As mentioned above, the parties engaged in briefing on defendants’ motions to dismiss which the Court granted in part and denied in part. (Dkt. 34). The parties filed
a joint initial status report on January 5, 2018 in which they represented to the Court
that no discovery had been undertaken by either party at that point—nearly three
months after the filing of the complaint. (Dkt. 18). On May 15, 2018, the Court
ordered fact discovery to be completed by October 12, 2018. (Dkt. 33). On May 25,
2018, the Court ordered Mohammed to file an amended complaint by June 15, 2018.
(Dkt. 34). Mohammed did not file an amended complaint by June 15 and has yet to
do so. Cook County and WestCare filed motions for judgment on the pleadings on
October 22 and 24, 2018, respectively. (Dkts. 38 and 41). On November 13, 2018, one
month after the end of fact discovery, one day before the motions for judgment on the
pleadings would be fully briefed, and one day prior to the end of fact discovery status
hearing, Mohammed filed a motion for extension of time to complete discovery. (Dkt.
48). At a status hearing on November 14, 2018, Mr. Arroyo, on behalf of Mohammed,
indicated in open court that no discovery efforts had been undertaken up to that time.

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STANDARD OF REVIEW
Rule 12(c) allows parties to move for a judgment based on the content of the
pleadings after both the complaint and answer have been filed. See Fed. R. Civ. P.
12(c); Hayes v. City of Chicago, 670 F.3d 810, 813 (7th Cir. 2012). Rule 12(c) motions
are reviewed under the same standards that apply to Rule 12(b)(6) motions. See
Richards v. Mitcheff, 696 F.3d 635, 637-38 (7th Cir. 2012). The Court accepts all wellpleaded allegations in the complaint as true and draws all reasonable inferences in
favor of the non-moving party. Id. The Court “need not ignore facts set forth in the
complaint that undermine the plaintiff’s claim or give weight to unsupported conclusions of law.” Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009). The Court may consider the pleadings alone, including the complaint, the answer, and any documents attached thereto. See Northern Ind. Gun & Outdoor Shows,
Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir. 1998).
DISCUSSION
The statute of limitations for claims brought under 42 U.S.C. § 1983 is governed by the forum state’s statute of limitations period for personal injury claims.
Williams v. Lampe, 399 F.3d 867, 870 (7th Cir. 2005). Illinois law provides a twoyear statute of limitations for personal injury claims. 735 Ill. Comp. Stat. 5/13-202.
Therefore, the statute of limitations for Mohammed’s personal injury claims was up
on November 1, 2017. The parties agree that the statute of limitations has run on
Mohammed’s claims against the unknown employees named in the complaint. However, the remaining issue is whether the doctrines of equitable tolling or equitable
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estoppel should apply here as to Mohammed’s claims against the unknown employees. Parties are not able to use unknown or “John Doe” defendants to extend the
statute of limitations indefinitely. “A plaintiff’s lack of knowledge about a defendant’s
identity is not a ‘mistake’ within the meaning of Federal Rule of Civil Procedure 15(c)
such that the plaintiff could amend his complaint outside the statute of limitations
period upon learning the defendant’s identity … Accordingly, once the statute of limitations period expires, [Plaintiff] cannot amend his complaint to substitute a new
party in place of ‘John Doe.’” Gomez v. Randle, 680 F.3d 859, 864, n.1 (7th Cir. 2012)
(internal citation omitted). Mohammed bears the burden of determining the proper
parties responsible for his injuries and doing so before the statute of limitations runs.
Hall v. Norfolk Southern Ry. Co, 469 F.3d 590, 595 (7th Cir. 2006).
I. Equitable Considerations
Equitable tolling would allow Mohammed to file a claim against the unknown
employees after the expiration of the statute of limitations only if he could demonstrate that he was unable to do so within the statutory time period “despite the exercise of ‘reasonable diligence.’” Hines v. City of Chicago, 91 F. App’x 501, 502-03 (7th
Cir 2004) (quoting Wilson v. Battles, 302 F.3d 745, 748 (7th Cir 2002)). While a precise definition of “reasonable diligence” may prove elusive, the Court can turn to prior
cases as guideposts in its determination. “[I]t is imperative that the plaintiff also
help himself by filing his lawsuit as promptly as possible and then expeditiously engaging in the give-and-take that often is necessary to identify the proper defendant
officer from among the hundreds of employees who work at the facility where the

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plaintiff is incarcerated.” Barwicks v. Dart, 2016 WL 3418570, at *6 (N.D. Ill. June
22, 2016). The Illinois Supreme Court provides that “[e]quitable tolling ... may be
appropriate if the defendant has actively misled the plaintiff, or if the plaintiff has
been prevented from asserting his or her rights in some extraordinary way.” Clay v.
Kuhl, 189 Ill.2d 603, 614 (2000). “Extraordinary barriers include legal disability, an
irredeemable lack of information, or situations where the plaintiff could not learn the
identity of proper defendants through the exercise of due diligence.” Thede v. Kapsas,
386 Ill.App.3d 396, 403 (Ill. App. Ct. 2008).
For his part, Mohammed argues, without any documentation or support, that
the statute of limitations should be equitably tolled because “there has been a FOIA
request, video footage obtained and plaintiff filed several inmate grievance requests
which were either not responded to, responded incomplete, or declined to be acknowledged and illegible.” (Dkt. 46). Mohammed also cites to Defendants’ failure to comply
with mandatory initial disclosures as justification for his failure to name the unknown employees. (Id.) Defendants’ shortcomings fall far short of being classified as
an “extraordinary” barrier to Mohammed’s ability to comply with the statute of limitations. Plaintiff has failed to cite to any affirmative steps taken by either WestCare
or Cook County that have prevented him from obtaining the identity of the unknown
employees. None of the required extraordinary barriers exist in this case as Plaintiff
has only pointed to a general lack of responsiveness to administrative grievances.
Mohammed bears the burden of prosecuting his case—a burden he has failed
to carry nearly every step of the way. See Hall, 469 F.3d at 595. The record of the

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litigation belies Plaintiff’s contention that he engaged in “all reasonable efforts[] to
identify the names of the individual employees responsible for his alleged deprivation
of constitutional rights.” Mohammed, who was represented by his own lawyer, filed
his complaint with just two weeks to spare before the statute of limitations ran. (Dkt.
1). With full knowledge that the clock was ticking, plaintiff’s counsel sat idly by as
November 1, 2017 came and went. Approximately two and a half months after the
complaint was filed, the parties’ joint initial status report stated that discovery had
still not begun. After a ruling on defendants’ motion to dismiss, the Court ordered
Mohammed to file an amended complaint by June 15, 2018. Like the statute of limitations deadline before it, this court-imposed deadline came and went without any
action by plaintiff’s counsel. At the end of fact discovery status hearing, plaintiff’s
counsel reported that as of November 14, 2018, over three years from the alleged
incident and more than a year after the passing of the statute of limitations, the parties had not engaged in any discovery.
Mohammed’s actions throughout this litigation fall far short of any definition
of “reasonable diligence” that would land him within the safe harbor of equitable tolling. While plaintiff may have engaged in some sort of extrajudicial investigation prior
to the filing of his complaint, it is undisputed that no legally significant discovery has
taken place since the outset of this case on October 17, 2017. Perhaps the bare minimum and most reasonable course of action would have been for Mohammed to file a
motion to compel. See e.g., Gonzalez v. Obaisi, 2016 WL 7238814, at *6 (N.D. Ill. Dec.
13, 2016) (“there is no reason to believe that Plaintiff could not have filed a motion to

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compel…”); Dandridge v. Cook Cty., 2013 WL 3421834, at *6 (N.D. Ill. July 8, 2013)
(“But Plaintiff’s argument starts with the faulty premise that FOIA is a discovery tool
… Plaintiff’s counsel decision to use FOIA, rather than to file a suit or use multiple
other available avenues … to identify the proper defendants, is not the fault of Defendants.”); see also Terry v. Chicago Police Dep’t, 200 F. Supp. 3d 719, 724-27 (N.D.
Ill. Sept. 27, 2016).

In order for equitable tolling to be applicable, “the statute of

limitations [must have] expired through no fault or lack of diligence” on Mohammed’s
part. Singletary v. Cont'l Ill. Nat'l Bank & Trust Co. of Chicago, 9 F.3d 1236, 1241
(7th Cir.1993).
The Seventh Circuit has addressed a strikingly similar set of factual circumstances in Hines v. City of Chicago and ultimately concluded the claims were barred,
while at the same time addressing and disposing of an argument advocating for the
application of equitable estoppel:
The doctrine of equitable tolling allows a plaintiff to file a claim after
the statute of limitations has expired, but only if she was unable to do
so earlier despite the exercise of “reasonable diligence.” See Wilson v.
Battles, 302 F.3d 745, 748 (7th Cir.2002); Singletary v. Cont'l Ill. Nat'l
Bank and Trust Co. of Chicago, 9 F.3d 1236, 1242 (7th Cir.1993). To
show that they diligently tried to find out the names of the officers, the
plaintiffs in this case point to a series of requests they made to officials
in the Chicago Police Department between December 2000 and July
2001. The officials were unresponsive, either ignoring the plaintiffs' letters, referring them to other department officials, or refusing outright
to provide the information. The plaintiffs finally got the information not
from the police department but from the City's corporation counsel, in
response to a subpoena issued in July 2002. They added the officers'
names to the complaint soon thereafter.
The district court dismissed the claim against the officers, concluding
that the plaintiffs had not been reasonably diligent. We agree. The
method that finally uncovered the officers' names—the use of discovery
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after the filing of the lawsuit—was available to the plaintiffs long before
the statute of limitations expired. See Donald v. Cook County Sheriff's
Dep't, 95 F.3d 548, 555 & n. 3 (7th Cir.1996) (discussing the use of discovery to identify unknown defendants) .... [Plaintiffs] have not explained why they failed to take advantage of discovery until July 2002.
Instead, the plaintiffs argue that the City's failure to respond to their
earlier requests, and its failure to identify the officers in its answer to
the original complaint, should estop it from raising the statute-of-limitations defense on behalf of the officers. We addressed an almost identical argument in Ashafa v. City of Chicago, 146 F.3d 459 (7th Cir.1998).
As here, the plaintiff in Ashafa wished to bring a § 1983 claim against
unknown police officers, but was unable to get the police department to
release their names. In rejecting Ashafa's equitable-estoppel argument,
we noted that the doctrine “requires that a defendant take active steps”
to delay or prevent the filing of a suit, “such as destruction of evidence
or promises not to plead the statute of limitations as a defense,” id. at
462. The plaintiff must also show “that he actually and reasonably relied
on the [defendant's] misconduct,” id. at 463. In this case, the City did
nothing more than refuse to release the officers' names. We do not see
how this can have induced the plaintiffs to delay filing their suit; if anything, it put the plaintiffs on notice that they needed to file suit
promptly in order to obtain the names through discovery.
The plaintiffs failed to take timely advantage of available discovery procedures to find out the names of the police officers. And although the
City did not fully cooperate with the plaintiffs' other investigative efforts, it did not take any active dissuasive steps on which the plaintiffs
can be said to have relied.
Hines, 91 Fed.Appx. at 502-03.
Like the litigants in Hines and its referenced cases, Mohammed failed to take
advantage of various discovery tools (e.g., a motion to compel) at his disposal for an
extended period of time. There is little question that plaintiff comes to this court
bearing a significant portion of fault in allowing the statute of limitations to lapse
without naming the unknown employees. While Mohammed correctly points out that
WestCare and Cook County did not fulfill certain discovery obligations, such an

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argument is a double-edged sword, as it only serves to highlight his neglect in prosecuting the case he brought. This, paired with a record devoid of reasonable diligence
despite extensive opportunity, leads this court to the conclusion that equitable tolling
is not appropriate here.
Relatedly, Mohammed argues that WestCare and Cook County should be
barred from arguing the statute of limitations has run based on the doctrine of equitable estoppel. “[I]n order to invoke equitable estoppel, a plaintiff must show not only
misconduct by the defendants, but also that he actually and reasonably relied on the
misconduct.” Ashafa v. City of Chicago, 146 F.3d 459, 463 (7th Cir. 1998). “In essence, equitable estoppel focuses on whether the defendant acted affirmatively to stop
or delay the plaintiff from bringing suit within the limitations period.” Smith v. City
of Chicago Heights, 951 F.2d 834, 841 (7th Cir. 1992). “It requires that a defendant
take active steps such as destruction of evidence or promises not to plead the statute
of limitations as a defense.” Id. at 462. Additionally, plaintiff must have exercised
due diligence for equitable estoppel to apply. Shropshear v. Corporation Counsel of
the City of Chicago, 275 F.3d 593, 595 (7th Cir. 2001). In Ashafa, the Seventh Circuit
declined to find that a failure to disclose information amounted to affirmative steps
to delay the plaintiff in carrying out his case. See Ashafa, at 463-464. Here, Mohammed simply has not identified any affirmative actions that defendants took to delay
or prevent him in carrying out his case, much less that he actually relied on such
actions. The record is devoid of actions that would rise to the level of destroying
evidence or an overt promise not to raise the statute of limitations as a defense. The

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Court does not excuse the inaction of the Defendants in this matter and in no way did
they operate as model parties to this litigation; however, equitable estoppel requires
affirmative actions on the part of the defendant. See Ashafa, 146 F.3d at 462. Therefore, equitable estoppel is not appropriate in this case. Mohammed did not exhibit
the required diligence and the defendants did not engage in active steps to prevent
Mohammed in prosecuting his case. At any time, Mohammed could have utilized a
variety of discovery tools to obtain the necessary information before the statute of
limitations ran.
II. Plaintiff’s Motion to Extend Fact Discovery
Plaintiff filed a motion for extension of time to complete fact discovery on November 13, 2018, over a year from the commencement of this litigation and more than
a month after the close of fact discovery. The Federal Rules provide: “A schedule may
be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16.
Similarly: “When an act may or must be done within a specified time, the court may,
for good cause, extend the time … (B) on motion made after the time has expired if
the party failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b); see Brosted
v. Unum Life Ins. Co. of America, 421 F.3d 459, 464 (7th Cir. 2005). As the Seventh
Circuit has cautioned litigants: “[I]gnoring deadlines is the surest way to lose a case.
Time limits coordinate and expedite a complex process; they pervade the legal system,
starting with the statute of limitations. Extended disregard of time limits (even the
non-jurisdictional kind is ruinous.” Henderson v. Bolanda, 253 F.3d 928, 933 (7th
Cir. 2001).

This sentiment rings true here as plaintiff’s repeated disregard for

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deadlines has doomed core components of his case. Mohammed’s motion for extension
of time offers no explanation for his utter failure to generate any discovery or his
significant delay in seeking an extension. Plaintiff has certainly neglected this case,
but such neglect is not excusable here where he has shown a complete lack of initiative in pursuing his claims. Plaintiff’s counsel’s busy schedule is insufficient in overcoming this hurdle. Keeton v. Morningstar, Inc., 667 F.3d 877, 883 (7th Cir. 2012).
Because of his dilatory approach to this matter and failure to carry his burden of
demonstrating excusable neglect, the motion for extension of time to complete fact
discovery is denied.
Finally, the Court addresses a lingering issue regarding the battery claim
(Count V) against Burnett. Summons was issued as to Joe Burnett on October 31,
2017 with alias summons issued on March 5, 2018, April 10, 2018, and May 29, 2018.
Service was never made on Burnett and he has never filed an appearance on the
docket. “If a defendant is not served within 90 days after the complaint is filed, the
court--on motion or on its own after notice to the plaintiff--must dismiss the action
without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.” Fed. R. Civ. P. 4. 90 days from October
17, 2017, the filing of the complaint, was January 15, 2018. As permitted by the
Rules, the Court addresses the issue on its own motion. “[I]f good cause is not shown,
the court has a choice between dismissing the suit and giving the plaintiff more time
(“direct that service be effected within a specified time”) … Thus the plaintiff who
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fails to demonstrate good cause for his delay throws himself on the mercy of the district court.” United States v. McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006) (internal
citations omitted). The case now sits one year past the final date to comply with
service and Mohammed has apparently made no attempts at serving Burnett in seven
months. In the absence of any good cause to excuse such non-compliance, the Court
dismisses Count V.
CONCLUSION
For the foregoing reasons, WestCare and Cook County’s motions for judgment
on the pleadings are granted and the remaining counts against WestCare, Cook
County, and the unknown employees are dismissed with prejudice. Mohammed’s motion to extend fact discovery is denied. Addressing the issue sua sponte, the Court
dismisses the count against Joe Burnett without prejudice.

Date: January 23, 2019

____________________________________
Virginia M. Kendall
United States District Judge

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