Glick v. Walker et al

Filing 228

ORDER GRANTING 199 Motion to Dismiss for Failure to State a Claim; DENYING AS MOOT 218 Motion for Summary Judgment; GRANTING IN PART 219 Motion for Summary Judgment. Signed by Magistrate Judge Donald G. Wilkerson on 8/29/13. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DENNIS P. GLICK,

)
)
Plaintiff,
)
)
v.
)
)
KIM
BASKINS,
BRAD
THOMAS, )
ANTHONY WILLS, NATHAN PITTS, TINA )
MORGANTHALER,
and
BRAD )
COLERMAN,
)
)
Defendants.
)

Case No. 3:06-cv-586-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the Motion to Dismiss for Failure to State a Claim filed
by Defendant, Kim Baskins, on March 8, 2013 (Doc. 199), the Motion for Summary Judgment
filed by Defendant Baskins on June 26, 2013 (Doc. 218), and the Motion for Summary Judgment
filed by Defendants Brad Colerman, Tina Morganthaler, Nathan Pitts, Brad Thomas, and Anthony
Wills, on July 22, 2013 (Doc. 219). Plaintiff has filed a response to the Motion to Dismiss (Doc.
207) and the first Motion for Summary Judgment (Doc. 222).
For the reasons set forth below, the Motion to Dismiss is GRANTED; the Motion for
Summary Judgment (Doc. 218) is DENIED AS MOOT; and the Motion for Summary Judgment
(Doc. 219) is GRANTED IN PART.
INTRODUCTION
Plaintiff filed a Complaint on July 27, 2006, pursuant to 42 U.S.C. § 1983, alleging a
violation of his Eighth Amendment rights under the United States Constitution (Doc. 1). Plaintiff
initially sued a number of Defendants; however, only six Defendants remain, Kim Baskins, Brad

Thomas, Anthony Wills, Nathan Pitts, Tina Morganthaler, and Brad Colerman. As to each of
these Defendants, only one claim remains: that they failed to protect him from his cellmate, Scott
Drazen, who injured him on February 16, 2006.
PROCEDURAL HISTORY
Initially, Plaintiff claimed that prison officials were deliberately indifferent to (1) his
mental health needs, (2) the substantial risk of harm from his cellmate’s smoking, and (3) the
substantial risk of harm posed by the cellmate who threatened to, and did, attack him. He also
claimed that officials (4) retaliated against him for filing grievances when they transferred him out
of protective custody at Pontiac Correctional Center and then to Statesville Correctional Center
and (5) violated Title II of the ADA by denying him access to mental health services (Doc. 1). In
its threshold review on August 8, 2007, the District Court read Plaintiff’s complaint as making
only three claims—deliberate indifference to mental health needs, retaliation, and violation of the
ADA – and dismissed these claims without prejudice. In this Order, the Clerk of Court was
directed to “close the case on the Court’s docket” (Doc. 12, p. 7). Plaintiff appealed the District
Court’s Order to the Seventh Circuit Court of Appeals (Doc. 14).
On April 28, 2008, the Seventh Circuit held that Plaintiff alleged sufficient information in
his complaint to set forth the following claims: (1) deliberate indifference to mental health needs
in violation of the Eighth Amendment against Defendants Ford and Walker; (2) deliberate
indifference to a risk of both past and future harm from exposure to cigarette smoke in violation of
the Eighth Amendment against Defendants Alms, Murray, Walker, and Ford; (3) deliberate
indifference to risk of attack by another inmate against a John Doe Defendant; and (4) retaliatory
transfer for filing grievances in violation of the First Amendment against Defendants Ford,

2

Murray, Alms, Uchtman, and Walker. (Doc. 38). The Seventh Circuit affirmed the District
Court’s dismissal of Plaintiff’s ADA Claims. (Doc. 38). In its screening order entered on June
9, 2008, the District Court ordered service on the named Defendants, but not the John Doe
Defendant, until such time as Plaintiff identified him for service of process (Doc. 41).
A Motion for Summary Judgment on the Issue of Exhaustion of Administrative Remedies
was filed by Defendants Walker, Uchtman, Ford, Murray, and Alms on October 10, 2008 (Doc.
58) and by Defendant Grubman on December 12, 2008 (Doc. 83). The District Court held an
evidentiary hearing on the issue of exhaustion and entered an Order granting the Motions for
Summary Judgment on January 13, 2009 (Doc. 92). After a judgment was entered, Plaintiff again
appealed to the Seventh Circuit Court of Appeals (Doc. 99).
On August 4, 2010, the Seventh Circuit held that the Plaintiff sufficiently exhausted his
administrative remedies as to certain claims. (Doc. 114). The Seventh Circuit held that Plaintiff
properly exhausted his administrative remedies as to the first, second, and third claim listed above,
but not with respect to the fourth. On September 28, 2012 (some two years later), Plaintiff filed a
First Amended Complaint adding named defendants to replace the John Doe Defendant (Doc.
164).

As a result of a March 26, 2013 Order, Defendant Walker was dismissed from this suit

(Doc. 203). Another Order dated March 26, 2013 also granted summary judgment for remaining
Defendants with respect to claims 1 and 2 (Doc. 204). The only claim that remains, then, is claim
3: deliberate indifference to a risk of attack by another inmate against Defendants Kim Baskins,
Brad Thomas, Anthony Wills, Nathan Pitts, Tina Morganthaler, and Brad Colerman.

3

BACKGROUND
When Plaintiff filed his initial complaint on July 27, 2006, claim 3 was directed against a
John Doe Defendant. In a June 9, 2008 Order, Plaintiff was informed that service would not be
made on the John Doe Defendant until such time as Plaintiff identified him in a “properly filed
amended complaint” (Doc. 41). After an attorney was appointed to represent Plaintiff, an
Amended Scheduling Order directed Plaintiff to file an Amended Complaint by November 30,
2010 (Doc. 124). No amended complaint was filed by the deadline. As a result, an Order to
Show Cause was entered on December 3, 2010 directing Plaintiff to show cause why the claim
against John Doe should not be dismissed for the failure to prosecute (Doc. 126). No response
having been filed, Defendant John Doe (along with claim 3) was dismissed without prejudice on
January 4, 2011 (Doc. 127). After a second attorney was appointed to represent Plaintiff (Doc.
136), Plaintiff filed a Motion to Amend the Complaint on June 25, 2012 (Doc. 156).
In that Motion, Plaintiff’s attorney indicates that Plaintiff had drafted an amended
complaint on December 7, 2008, that he had submitted to the Court, naming Defendants Thomas,
Wills, Pitts, Moragnthaler, Colerman, and Baskin, as the defendants answerable to claim 3. The
Motion was granted on September 27, 2012 (Doc. 163) and a First Amended Complaint, naming
Defendants as to claim 3, was filed on September 28, 2012 (Doc. 164).1
Defendant Baskins’ Motion to Dismiss argues a statute of limitations defense as to claim 3
(Doc. 199).

This argument is also made in Defendant Colerman’s, Morganthaler’s, Pitts’,

Thomas’, and Wills’ Motion for Summary Judgment (Doc. 219).

1

It appears that on December 11, 2008, the Clerk’s Office received a proposed Amended
Complaint that was not accompanied by a Motion. As such, the document was not docketed.
This document is identical to the First Amended Complaint filed on September 28, 2012.
4

STANDARD

Summary judgment is proper only if the moving party can demonstrate Athat there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.@
FEDERAL RULE OF CIVIL PROCEDURE 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
See also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir.
2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836
(7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in
genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the
moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v.
Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a
matter of law where the non-moving party “has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden of proof.” Celotex, 477 U.S. at 323.
“[A] complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Id. The Seventh Circuit has stated that summary
judgment is Athe put up or shut up moment in a lawsuit, when a party must show what evidence it
has that would convince a trier of fact to accept its version of the events.@ Steen v. Myers, 486 F.3d
1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th
Cir. 2005) (other citations omitted)).
On a defendant’s motion to dismiss, all facts in the complaint are accepted as true, a lesser
standard than the one outlined above. Doss v. Clearwater Title Co., 551 F.3d 634, 639 (7th Cir.
2008). In this case, however, there are no facts in dispute.

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DISCUSSION
Title 42 U.S.C. § 1983 does not contain an express statute of limitations, so federal courts
adopt the forum state’s statute of limitations for personal injury claims. Johnson v. Rivera, 272
F.3d 519, 521 (7th Cir. 2001). In Illinois, the limitations period for § 1983 cases is two years. Id.
“Moreover, because ‘the chronological length of the limitation period is interrelated with
provisions regarding tolling, revival, and questions of application,’ federal courts must ‘also
borrow[] the state’s tolling rules -- including any equitable tolling doctrines.’” Id., quoting Smith
v. City of Chicago Heights, 951 F.2d 834, 839-40 (7th Cir. 1992). Such tolling doctrines are
adopted unless the rules are inconsistent with the Constitution and laws of the United States.
Smith, 951 F.2d at 837 n.1. Illinois law provides that the statute of limitations is tolled during the
time a prisoner exhausts his administrative remedies, which is required by the Prisoner Litigation
Reform Act. 42 U.S.C. § 1997e(a); Johnson, 272 F.3d at 522. However, a claim is barred by the
statute of limitations if a plaintiff fails to identify an unknown defendant before the statute of
limitations runs, unless the statute of limitations is tolled. Gomez v. Randle, 680 F.3d 859, 864,
n.1 (7th Cir. 2012); FED.R.CIV.PRO. 15(c). 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. Id.
The incidents giving rise to Plaintiff’s failure to protect claim occurred in March 2006.
The statute of limitations was tolled, until May, 2006, while Plaintiff availed himself of the
administrative remedy process. Thus, the statute of limitations ran until May 2008. Plaintiff
submitted an amended complaint to the Court to identify the unnamed “john doe” defendants in

6

December 2008. Even if this submission was a properly filed amended complaint,2 it was made
beyond the statute of limitations period.

Plaintiff’s properly filed September, 2012 First

Amended Complaint similarly was filed beyond the limitations period. Furthermore, Plaintiff did
not make a mistake concerning the identity of Defendants when he filed the original complaint in
June 2006. Plaintiff simply did not know the identities of the people purportedly involved in the
occurrence leading to his injuries. Thus, when Plaintiff sought to amend his complaint to add the
new Defendants, around December 2008, and actually amended in September, 2012, that
amendment did not relate back to the filing of the original complaint. See Jackson v. Kotter, 541
F.3d 688, 699 (7th Cir. 2008). Because Plaintiff did not amend his complaint to name the new
Defendants until after the statute of limitations had expired, his claim is untimely, unless tolling is
applicable.
Tolling
Plaintiff argues that the statute of limitations was tolled during his first appeal to the
Seventh Circuit on August 2, 2007 (Doc. 12) and during his second appeal of the District Court’s
dismissal of the case for his failure to exhaust administrative remedies on January 13, 2009 (Doc.
92). Thus the statute of limitations was tolled from August, 2007 to April, 2008 and from
January, 2009 to July, 2010. Plaintiff also argues that the effective date of his amended complaint
adding the current defendants was December 2008 because the mailbox rule applies to pleadings
filed by pro se prisoners. Thus, Plaintiff argues that the statute of limitations did not run until
February, 2009.
2

Which it is not. Responsive pleadings had been filed prior to submission of the document.
Therefore, Plaintiff was required to seek leave of court to file. Fed.R.Civ.Pro 15(a) See Friedman
v. Village of Skokie, 763 F.2d 236 (7th Cir. 1985) (“Filing an amendment to a complaint without
seeking leave of court or written consent of the parties is a nullity.”)
7

As indicated above, the December 2008 filing was not consistent with Rule 15.
Therefore, it did not function to amend the complaint in order to add the named Defendants, even
if the statute of limitations was tolled during appeal. The only question, then, is whether the
September, 2012 pleading can be considered timely.
Statutory Tolling
Pursuant to 735 ILCS 5/13-216, “[w]hen the commencement of an action is stayed by
injunction, order of a court, or statutory prohibition, the time of the continuance of the injunction
or prohibition is not part of the time limited for the commencement of the action.” This statutory
provision is inapplicable here, with the exception of the statutory prohibition related to exhaustion
of administrative remedies mentioned above. No injunction or other court order was issued to
stay the action. See Giannini v. Kumho Tire U.S.A., Inc., 898 N.E.2d 1095, 1098-1099 (Ill. App.
Ct. 2008) (citing Illinois Supreme Court Rule 306 which allows for a stay during the pendency of
appeal of certain orders concerning venue).3 Rather this matter was dismissed, without prejudice,
and not stayed during the pendency of appeal. Plaintiff has cited no statute or case authority that
holds that a statute of limitations is stayed pending the appeal of an order dismissing a case without
prejudice. IPF Recovery Co. v. Illinois Ins. Guar. Fund, 826 N.E.2d 943, 949 (Ill. App. Ct. 2005)

3

Plaintiff cites this case, in addition to O’Brien v. Bonfield, 220 Ill. 219 (Ill. 1906) and Wright v.
Heizer Corp., 503 F.Supp. 802 (N.D. Ill. 1980), for the proposition that “Illinois tolls the statute of
limitations during the pendency of an appeal that must be resolved before a claim can proceed”
(Doc. 226, p. 5). As indicated above, Giannini relied on an Illinois Supreme Court rule that is
inapplicable to this case. O’Brien, similarly relied on a statutory basis (Section 7 of the statute of
wills), not applicable in this case, to toll the limitations period. And, Wright, which is a lengthy
order regarding a securities matter, stands for the general proposition that the district court loses
jurisdiction when final judgment is entered and the matter is appealed. Id. 503 F.Supp. at
808-809. Even if Wright were to stand for the more specific rule that an appeal tolls a statute of
limitations, Plaintiff’s 2012 First Amended Complaint was filed beyond the time or any such
tolling.
8

(“Illinois law is clear that, as a general rule, the statute of limitations continues to run unless tolling
is authorized by statute.”).
Plaintiff’s claim also is not tolled by Illinois’ savings statute which gives plaintiffs one year
to refile a tort claim -- and thus a § 1983 suit -- in six enumerated circumstances including when a
case has been dismissed by a United States District Court for lack of jurisdiction, or for improper
venue whether or not the time limitation for bringing such action expires during the pendency of
such action. 735 ILCS § 5/13-217 (1991). Plaintiff’s case was not dismissed for any of the
reasons listed in this statute nor has judgment for plaintiff been reversed (the claims were
involuntarily dismissed for failure to state a claim and failure to exhaust administrative remedies),
thus its tolling provisions do not apply. Even if this statute were to apply, Plaintiff’s 2012 First
Amended Complaint was filed more than a year after that matter was remanded in July, 2010.
Equitable Estoppel/Tolling
Plaintiff also cannot benefit from the doctrine of equitable estoppel.

There is no

indication in the record that Plaintiff was prevented from timely filing suit against Defendants
because of some conduct on their part. See Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996).
Equitable tolling applies when through no fault of Defendants, some “disability, irremediable lack
of information, or other circumstances beyond [plaintiff’s] control” reasonably prevented Plaintiff
from filing within the limitations period. Id.; See also, Williams v. Board of Review, 948 N.E.2d
561, 567 (Ill. 2011). Plaintiff suggests that the limitations period should be equitably tolled
during the pendency of his appeals. Plaintiff has presented no relevant case authority supporting
this position nor have Defendant provided any case authority refuting this position.
In Luevano v. Wal-Mart Stores, Inc., ___ F.3d ___, 2013 WL 3599156 (7th Cir. 2013), the

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Seventh Circuit Court of Appeals considered a factual scenario similar to the one before the Court
– however, with one salient fact missing, a John Doe Defendant. In that case, plaintiff who was
proceeding pro se, filed a complaint two days prior to the expiration of a statute of limitations.
That complaint was dismissed without prejudice for failure to state a claim and plaintiff was
essentially given leave to file an amended complaint. After an amended complaint was filed,
defendant moved to dismiss, arguing that the amended complaint was untimely, having been filed
after the limitations period had run. In finding that the amended complaint was timely, the Court
stated:
If a timely complaint is dismissed but the action remains pending, as occurred here,
an amended complaint relates back to the filing of the original complaint when ‘the
amendment asserts a claim or defense that arose out of the conduct, transaction or
occurrence set out—or attempted to be set out—in the original pleading . . . . Id.,
at * 5.
The Court went on to say that when a complaint is subject to § 1915A screening, a litigant should
be allowed the chance to amend their pleading in order to cure any deficiency noted by the District
Court. Failing to allow such an amendment would place IFP plaintiff’s and fee paying plaintiffs
on different footing which would raise “serious questions about fair access to the courts.”
Certain “hazards” would also be created:
Those hazards are especially great because of case law, discussed further below,
holding that dismissal of an entire suit (not just a complaint) without prejudice can
mean that the applicable statute of limitations will have run before the plaintiff can
correct the problem. For purposes of a statute of limitations, it is as if the
dismissed suit had never been filed. . . . [Under prior case law], the conditional
suspension of the statute of limitations clock that occurs upon filing the complaint
not only comes to an end but is actually undone retroactively. Id. at * 6.
See also Muzikowski v. Paramount Pictures, Corp., 322 F.3d 918, 923 (7th Cir.
2003) (“A dismissal without prejudice is treated for statute of limitations purposes
as if suit had never been filed.”)

10

The Court went on to note that if the entire action in Luevano had been dismissed (without
prejudice) her statute of limitations would have run out. Neither Luevano, nor the cases that loom
large in its analysis of the hazards of dismissal, Lee v. Cook County, Ill., 635 F3d 969 (7th Cir.
2011), Muzikowski v. Paramount Pictures, Corp., 322 F.3d 918 (7th Cir. 2003), and Elmore v.
Henderson, 227 F.3d 1009 (7th Cir. 2000), squarely address a situation similar to this case:
whether the statute of limitations is tolled while a case is on appeal from a dismissal without
prejudice (that effectively terminated the action in the district court).
In the case at bar, it may have been error for the Court to initially dismiss Plaintiff’s
complaint (without prejudice) without giving Plaintiff leave to re-file in order to cure the
deficiency. That dismissal created the very same hazard outlined above: a situation where the
limitations period continued to run, even through appeal, because it was as if the case had never
been filed. See Muzikowski, 322 F.3d at (noting in dicta that the statute of limitations on a claim
had run during the pendency of appeal even though the claim did not expire until after the district
court’s dismissal); Elmore, 227 F.3d at 1011. Of course, there is no showing that, even if Plaintiff
was given leave to amend, he would have named the John Doe defendant in a timely manner. Nor
have the parties offered any argument as to the effect on the statute of limitations of the Seventh
Circuit’s remand in this case.
These cases do, however, stand for the proposition that if a Plaintiff has diligently pursued
his claims and some “extraordinary circumstance” stands in his way that would prevent timely
filing, the limitations period can be equitably tolled. Lee, 635 F.3d at 972-3. In Elmore,
however, the Court states that “[e]quitable tolling is not a remedy for an erroneous judgment;
appeal . . . is.” In this case, Plaintiff did appeal and the case was remanded for further

11

consideration. In light of that ruling, it can be argued, “[t]he filing of a suit stops the running of
the statute of limitations” notwithstanding the fact that the entire suit had been dismissed without
prejudice. Elmore, 227 F.3d at 1011.
In any event, whether the limitations period was tolled during appeal or not, Plaintiff still
failed to name Defendants in a timely manner. First, Plaintiff caused the delay in filing his
amended complaint by failing to file a motion seeking leave to file an amended complaint as
required by Federal Rule of Civil Procedure 15. While Plaintiff was proceeding pro se at the time
that he submitted his amended pleading, that fact does not excuse him from complying with the
Federal Rules of Civil Procedures. See Members v. Paige, 140 F.3d 699, 702 (7th Cir. 1998) (“To
put this differently, rules apply to uncounseled litigants and must be enforced,” citing McNeil v.
United States, 508 U.S. 106, 112-13 (1993)). The Court notes that Plaintiff was capable of
seeking relief, appealing adverse rulings, seeking clarification of rulings, participating in Court
hearings, and otherwise prosecuting this case in a competent manner. Furthermore, even if
Plaintiff did file a motion seeking leave to file an amended complaint, it was his duty to ensure that
the Defendants he sought to add were present and accounted for in this case.4 Plaintiff was fully
aware that the new defendants were never added to the case by virtue of his continued participation
in the action. Plaintiff failed to act, on his own or through subsequently appointed counsel
(appointed February 4, 2011), until September 2012. See Lee, 635 F.3d at 973 (“A lawyer’s
ineptitude does not support equitable tolling.”). Moreover, Plaintiff failed to respond to this
Court’s December 3, 2010 Order to show cause regarding the unnamed Defendants. And, it was
4

In a letter (dated December 7, 2008) accompanying the proposed Amended Complaint, Plaintiff
states that he was given leave of Court to file the amended pleading. However, this Court can find
no Order, nor does Plaintiff highlight such an order, where such leave was given prior to the filing
of the amended pleading.
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not until June 25, 2012 that Plaintiff made any attempt to correctly seek leave to amend the
complaint. Plaintiff’s substantial delay (four years) to act requires dismissal of this claim, with
prejudice, for failure to file within the limitations period.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss for Failure to State a Claim (Doc. 199) is
GRANTED; the Motion for Summary Judgment (Doc. 218) is DENIED as moot; and the Motion
for Summary Judgment (Doc. 219) is GRANTED IN PART.5
Plaintiff’s claim (3) for deliberate indifference to a risk of attack by another inmate against
Defendants Kim Baskins, Brad Thomas, Anthony Wills, Nathan Pitts, Tina Morganthaler, and
Brad Colerman is DISMISSED WITH PREJUDICE.
CASE TERMINATED.

DATED: August 29, 2013

DONALD G. WILKERSON
United States Magistrate Judge

5

It is appropriate to dismiss this matter, with prejudice, on the issue of statute of limitations rather
than to grant judgment in favor of Defendants on the claim. In light of this ruling, the Court will
not address Defendants’ substantive arguments.
13