Butler v. Harrington et al

Filing 106

ORDER. Carter's motion to dismiss (Doc. No. 65) is GRANTED. Butler's claim against Bryan Carter (part of Count 2) is DISMISSED with prejudice. Signed by Judge Staci M. Yandle on 7/15/15. (ajr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENDRICK BUTLER,
Plaintiff,
v.
RICK HARRINGTON, et al.,
Defendants.

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Civil Case No. 3:13-cv-01270-SMY-PMF

MEMORANDUM AND ORDER
YANDLE, District Judge:
Before the Court is defendant Bryan Carter’s motion to dismiss (Doc. No. 65). Plaintiff
Kendrick Butler is proceeding against Carter on a § 1983 claim, challenging the conditions of his
confinement at the Marion County Jail. In Count 2, Butler alleges that, in December, 2010, or
January, 2011, Carter and others applied excessive force in violation of the Eighth Amendment’s
proscription against cruel and unusual punishment. Carter seeks dismissal of the claim against
him on the ground that Butler did not bring his claim within the applicable 2-year limitations
period for § 1983 actions. In response, Butler admits that his pleading – filed on March 20, 2014
– was late. He opposes the motion to dismiss on the basis that he is not responsible for the delay
in filing a pleading against Carter (Doc. No. 66).
A federal complaint requires only a short and plain statement of the claim showing that the
pleader is entitled to relief. Fed. R. Civ. P. 8(a). In approaching a motion to dismiss, the
allegations are viewed in a light favorable to the plaintiff, accepting well-pleaded facts as true and
drawing all possible inferences in his or her favor. Hecker v. Deere & Co., 556 F.3d 575 (7th Cir.
2009). A plaintiff who pleads facts showing that he has no viable claim may plead himself out of
court. McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006).

Carter argues that Butler pleaded himself out of court because his allegations show that his
claim accrued, at the latest, in January of 2011, and that the Amended Complaint signed on March
19 and filed on March 20, 2014, is barred by the applicable statute of limitations. Section 1983
claims are subject to the statute of limitations for personal injury actions in the state in which the
alleged injury occurred. Wilson v. Garcia, 471 U.S. 261, 276-80 (1985). In Illinois, the two-year
statute of limitations is borrowed and applied. 735 Ill. Comp. Stat. 5/13-202; Dominquez v.
Hendley, 545 F.3d 585, 588 (7th Cir. 2008). In prisoner litigation, there are two possible ways for
the Court to alter the two-year limitation period. First, the running of the limitations period will
be tolled while the prisoner completes an administrative grievance process. Walker v. Sheahan,
526 F.3d 973, 978 (7th Cir. 2008). Under certain circumstances, the limitations period may be
equitably tolled. Shropshear v. Corp. Counsel of the City of Chicago, 275 F.3d 593, 595 (7th Cir.
2001)(the Court may excuse an untimely claim where, despite the exercise of due diligence, the
plaintiff is unable to bring his claim in a timely manner). Butler’s argument that he is not
responsible for the filing delay is considered under the equitable tolling option.1
The information on file suggests that, after his encounter with Carter at the Marion County
Jail, Butler was immediately transferred to Menard Correctional Center, where he was initially
held in segregation. After he was released to general population, Butler’s housing unit was
locked down between May and July, 2011. In 2012, Butler conferred on several occasions with
Bradd Brammlet, a library clerk, regarding state and federal litigation. In Butler’s opinion,
Brammlet “refused to properly, adequately, and efficiently process” his § 1983 pleading.

At

some point, Butler was temporarily transferred to the Cook County Jail. It appears that Butler
was confined in Menard’s segregation unit again in November, 2013, and that he was transferred
to Pontiac Correctional Center in December, 2013. Butler signed his Amended Complaint while
he was confined at Pontiac, on March 19, 2014 (Doc. No. 17).
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Butler’s filings have been reviewed; there is no indication that he filed a grievance
regarding Carter’s conduct at the Marion County Jail.
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The circumstances outlined above do not show that equitable tolling is appropriate.
Butler’s litigation hurdles (transfers, limited access to law library materials) are similar to those
experienced by other inmates. His complaints about misconduct by Bradd Brammlet are not
sufficiently particularized to support a finding that Brammlet prevented Butler from acting on his
legal rights with respect to Carter’s conduct at the Marion County Jail prior to the expiration of the
limitations period. See Obriecht v. Foster, 727 F. 3d 744, 750-51 (7th Cir. 2013)(reasonable
diligence is established with facts showing actual impairment as opposed to conclusory
statements). Absent equitable tolling, the claim against Carter is barred.
Carter’s motion to dismiss (Doc. No. 65) is GRANTED. Butler’s claim against Bryan
Carter (part of Count 2) is DISMISSED with prejudice.
IT IS SO ORDERED.
DATED: July 15, 2015

s/ Staci M. Yandle
Staci M. Yandle
District Judge

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