Harris v. Larson et al
ORDER DENYING 79 Motion to Dismiss filed by L. Bradbury and Vipin Shah. Signed by Judge Nancy J. Rosenstengel on 9/21/2016. (mlp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DENNIS LARSON, et al.,
Case No. 15-CV-252-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Currently before the Court is a motion to dismiss filed by Defendants Vipin Shah
and Lynn Bradbury on January 11, 2016 (Doc. 79). For the reasons set forth below, the
motion is denied.
Plaintiff Darius Harris filed his original complaint pursuant to 28 U.S.C. § 1983 on
March 6, 2015, alleging that he received inadequate medical care while he was
incarcerated at the Western Illinois Correctional Center and Big Muddy River
Correctional Center (Doc. 1). The operative complaint in this matter is Plaintiff’s Fourth
Amended Complaint (Doc. 65).
Plaintiff alleges that on August 2, 2010, while housed at Western Illinois, he
injured his knee and finger while playing basketball. At the time, Plaintiff believed that
he had a torn ACL in his knee and a broken finger that required medical treatment.
Nurse Bradbury only gave Plaintiff an icepack and Tylenol for his knee, however, and
she told Plaintiff to fill out a medical request for nurse sick call, which he did. After nine
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days of not being seen by medical staff, Plaintiff filed an emergency grievance around
August 11, 2010.
Despite the emergency grievance, Plaintiff still did not see the doctor, Vipin Shah,
until August 30, 2010. Dr. Shah told him that because he was being transferred the next
day to Stateville Correctional Center, he should seek medical care there. Dr. Shah also
refused to provide medication because of the transfer; he told Plaintiff that there would
be no point in prescribing medication because Plaintiff would not be able to take it on the
When Plaintiff returned to Western Illinois twenty days later, he again sought
medical care. He was seen on September 20, 2010, and his finger was placed in a splint,
but no pain medication was ordered. On September 22, 2010, Dr. Shah ordered an x-ray
of his finger; it revealed a small fracture in his finger. Dr. Shah discounted the severity of
the injury and Plaintiff’s complaint that his finger was now crooked and difficult to
straighten. Plaintiff’s knee was x-rayed on October 14, 2010; however, the x-ray would
not have revealed damage to the ACL, and Plaintiff’s request for an MRI was refused by
Dr. Shah. Plaintiff received no other care regarding his finger and knee until his transfer
to Big Muddy River on March 30, 2011. Plaintiff finally received an MRI of his knee in
June 2015, which revealed that Plaintiff had a torn ACL and a torn meniscus (see Doc. 65,
Plaintiff is currently proceeding on the following two counts: 1
Eighth Amendment claim for deliberate indifference to his
serious medical needs related to his knee and finger injury
Plaintiff had a third claim for deliberate indifference as to Dr. Stephen Ritz for failing to approve an MRI
prior to June 5, 2015. On August 29, 2016, the Court granted summary judgment to Dr. Ritz (Doc. 121).
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against Defendants Dennis Larson and Vipin Shah beginning
in August 2010;
Eighth Amendment claim for deliberate indifference to his
serious medical needs related to his knee and finger injury in
August 2010 against Defendant Nurse L. Bradbury.
(Docs. 64, 87, 121).
Defendants seek dismissal of Count 1 against Dr. Shah and Count 2 against Nurse
Bradbury arguing that Plaintiff’s complaint was filed after the statute of limitations on
the claims expired (Doc. 79).
On a defendant’s motion to dismiss, all facts in the complaint are accepted as true.
Doss v. Clearwater Title Co., 551 F.3d 634, 639 (7th Cir. 2008). The complaint must contain
“a short and plain statement of the claim showing that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a)(2). To state a cognizable claim, the complaint must provide enough
detail to give defendants fair notice of the nature of the claim and the grounds upon
which it rests and to show that relief is plausible. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 554-56 (2007). A statute of limitations defense is an affirmative defense that
generally would not be brought pursuant to a motion to dismiss. FED. R. CIV. P. 8(c).
However, “the statute of limitations may be raised in a motion to dismiss if ‘the
allegations of the complaint itself set forth everything necessary to satisfy the affirmative
defense.’” Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (quoting United States v. Lewis,
411 F.3d 838, 842 (7th Cir. 2005)).
As Defendants note, there is a two-year statute of limitations that applies to
Section 1983 suits in Illinois, which is tolled while the prisoner exhausts the
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administrative grievance process. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013)
(citing Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001)). For a Section 1983 claim to
redress a medical injury arising from deliberate indifference to a prisoner’s serious
medical needs, “[t]he statute of limitations starts to run when the plaintiff discovers his
injury and its cause even if the full extent or severity of the injury is not yet known.”
Devbrow v. Kalu, 705 F.3d 765, 768 (7th Cir. 2013). When the violation of the plaintiff’s
constitutional rights is a continuing one, however, the statute of limitations does not
start to run until later than the date of discovery. Id. at 770. Specifically, for continuing
violations, the statute of limitations does not start to run any earlier than the last day of
the ongoing injury.” Id. (emphasis in original) (citing Heard v. Sheahan, 253 F.3d 316, 319
(7th Cir. 2001) (“‘[T]he cause of action accrues at . . . the date of the last injury.’”)).
Here, Plaintiff’s Fourth Amended Complaint alleges a continuing violation. He
claims that he injured himself on August 2, 2010, and that Dr. Shah and Nurse Bradbury
refused to provide proper medical treatment for his injuries. This refusal continued until
Plaintiff was transferred from Western Illinois to Big Muddy on March 30, 2011. “Every
day that they prolonged his agony by not treating his painful condition marked a fresh
infliction of punishment that caused the statute of limitations to start running anew.”
Heard, 253 F.3d at 318. Thus, the statute of limitations period did not begin to run until
March 30, 2011, the last possible day that Plaintiff could have been treated by
Defendants at Western Illinois. 2 See id. Plaintiff thus had until March 30, 2013, to file his
Defendants are mistaken as to the importance of the continuing violation allegation and its relationship
to the statute of limitations. Plaintiff’s claim did not accrue on the last date that Defendants treated
Plaintiff, which was August 2, 2010, for Nurse Bradbury, and November 11, 2010, for Dr. Shah. Rather, the
limitations period accrued on the last possible date that these Defendants could have rendered allegedly
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complaint against Dr. Shah and Nurse Bradbury, unless tolling applies.
As previously mentioned, the statute of limitations is tolled while a prisoner
exhausts the administrative grievance process. It is undisputed that Plaintiff engaged the
grievance process, thereby tolling limitations clock for at least some period of time. The
question for the Court is how long that period lasted and when the clock began to run
In the complaint, Plaintiff states that he grieved the lack of medical care provided
at Western Illinois “several times” (Doc. 65, p. 5). Grievances attached to the original
complaint show that Plaintiff filed a grievance on August 11, 2010, which the warden
deemed was an emergency grievance and should be expedited (Doc. 1, p. 9). Despite the
warden’s command, Plaintiff still had not seen a doctor for his knee injury by September
19, 2010, so he filed another grievance (Doc. 1, p. 11). The warden deemed this one was
not an emergency (Doc. 1, p. 11). Plaintiff then filed another grievance on September 22,
2010, but the grievance does not indicate whether the warden responded (see Doc. 1, p.
13). Plaintiff alleges that he did not receive a response (Doc. 65, p. 5). Plaintiff further
alleges that he attempted to exhaust those three grievances by appealing them to the
ARB on October 6, 2010 (Doc. 65, p. 5; see Doc. 1, p. 8). The ARB received Plaintiff’s
appeal on October 12, 2010 (see Doc. 1, pp. 8–14). Plaintiff alleges that he never received a
response from the ARB (Doc. 65, p. 5).
Defendants do not discuss whether, and at what point, the ARB’s failure to
respond rendered the grievance process unavailable to Plaintiff. It is clear that there is a
adequate medical care. This date must be March 30, 2011, which is the date of Plaintiff’s transfer to Big
Muddy, because there is no allegation that either Defendant stopped providing, or was not able to
continue providing, medical care to Plaintiff at Western Illinois prior to that date. See id., 253 F.3d at 317-19.
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point where a tardy response from the ARB becomes an unavailable grievance process to
the inmate, but it is unclear where that point is. See Lewis v. Washington, 300 F.3d 829, 833
(7th Cir. 2002) (holding the PLRA does not allow prison officials to “exploit the
exhaustion requirement through indefinite delay in responding to grievances”); Jamison
v. Franko, No. 12 C 0242, 2013 WL 5166626, at *3 n.3 (N.D. Ill. Sept. 13, 2013) (Exactly
where the line is between a late response and an unavailable process is unclear.”). Even
if that point were determinable, it is unclear what effect it would have on the limitations
clock because Defendants do not attempt to explain the relationship between an
unavailable grievance process and tolling the statute of limitations.
Instead, Defendants ignore the grievances attached to the original complaint and
give Plaintiff the benefit of all reasonable inferences by assuming that the latest relevant
grievance Plaintiff could have filed would have been on May 28, 2011, sixty days after
Plaintiff was transferred from Western Illinois (Doc. 79). Defendants go on to extrapolate
that if Plaintiff received timely responses and made timely appeals, the grievance
process would have concluded on February 27, 2012, six months after the ARB would
have received Plaintiff’s appeal, thus rendering the complaint filed on March 6, 2015,
untimely by over a year given the two-year statute of limitations in this case (Doc. 79).
Defendants present no authority indicating a statute of limitations analysis can be
based on an assumption about Plaintiff’s efforts to exhaust his administrative remedies,
as opposed to the actual facts of the case. Even if such an assumption is acceptable,
however, Defendants fail to cite any case law stating that the tolling period ends
immediately at the conclusion of the six-month period allotted to the ARB to make its
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decision after receiving an appealed grievance. The Administrative Code clearly
indicates that the recommended six-month timeframe for the ARB to respond to an
inmate’s appeal shall be adhered to “where reasonably feasible under the
circumstances.” ILL. ADMIN. CODE, tit.20, § 504.850(f). As the Court noted in Woods v.
Forehand, the six-month timeframe is not a strict deadline. Woods v. Forehand, No.
13-CV-1130-NJR-DGW, 2015 WL 1188326, at *3 (S.D. Ill. Mar. 12, 2015) (citing Gregory v.
Santos, No. 07-CV-669-JPG-CJP, 2010 WL 750047, at *6 (S.D. Ill. Jan. 19, 2010), report and
recommendation adopted as modified, 2010 WL 750040 (S.D. Ill. Mar. 3, 2010) (“Section
504.850(f) does not strictly require the Director to respond to an appeal within six
months.”)); Beahringer v. Page, 789 N.E.2d 1216, 1226 (Ill. 2003) (“The time frames for the
consideration of grievances were directory and not mandatory.”). Cf. Ford v. Johnson, 362
F.3d 395, 400 (7th Cir. 2004) (rejecting inmate’s argument that the administrative process
is no longer available once the recommended deadline has passed). Therefore, the Court
cannot agree with Defendants’ assumption that the tolling period ended at the
conclusion of the ARB’s six-month deadline to respond.
Defendants have failed to provide a properly supported explanation as to when
the tolling period ended. Therefore, the motion to dismiss must be denied. See Gomez v.
Randle, 680 F.3d 859, 864 (7th Cir. 2012) (date tolling period ended was an issue of fact
precluding dismissal of case when the record contained no final decision from the ARB).
The Court acknowledges that Defendants’ statute of limitations defense has potential
merit. But, at this point, the Court is unable to fully evaluate the defense because
Defendants’ argument is based entirely on speculation and insufficient legal authority. It
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seems to the Court that the appropriate time to raise the argument regarding the statute
of limitations is after discovery and in conjunction with a motion for summary judgment
on the merits of the case.
For the reasons set forth above, the motion to dismiss filed by Defendants Vipin
Shah and Lynn Bradbury (Doc. 79) is DENIED.
IT IS SO ORDERED.
DATED: September 21, 2016
NANCY J. ROSENSTENGEL
United States District Judge
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