Diaz-Guillen v. Vieregge et al

Filing 69

ORDER GRANTING 42 Motion to Dismiss for Failure to State a Claim filed by Defendants Vieregge, McConkey, and Lay. These Defendants are DISMISSED with prejudice. Further, in light of this ruling, Defendants Vieregge, McConkey, and Lay's Motion to Stay Discovery and Deadlines (Doc. 56) is MOOT. Signed by Judge Nancy J. Rosenstengel on 6/20/2017. (mlp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LUIS M. DIAZ-GUILLEN,

)
)
Plaintiff,
)
)
vs.
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)
J.D. VIEREGGE, AARON L. LAY, MATT )
MCCONKEY, VIPIN SHAH, and JAY L. )
SWANSON,
)
)
Defendants.
)

Case No. 3:15-CV-1101-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Now pending before the Court is the motion to dismiss for Failure to State a
Claim pursuant to Rule 12(b)(6) (Doc. 42) and Supplement thereto (Doc. 45) filed by
Defendants J.D. Vieregge, Matt McConkey, and Aaron L. Lay. For the reasons set forth
below, the motion is granted.
RELEVANT BACKGROUND
Plaintiff Luis M. Diaz-Guillen, an inmate in the custody of the Illinois Department
of Corrections (“IDOC”), filed this lawsuit on October 6, 2015 pursuant to 42 U.S.C.
§ 1983 alleging his constitutional rights were violated while he was detained at the
Fayette County Jail. Diaz-Guillen’s initial complaint was dismissed for failure to state an
adequate claim for relief (see Doc. 4); however, at the direction of the Court, Diaz-Guillen
filed an amended complaint on November 16, 2015 (see Doc. 7). Diaz-Guillen later was
granted leave to file a second amended complaint (incorrectly designated as the First

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Amended Complaint on the docket), which is the operative complaint in this matter
(Doc. 16). In the operative complaint, Diaz-Guillen sets forth a Fourteenth Amendment
conditions of confinement claim against Defendants Vieregge, McConkey, and Lay for
exposing Diaz-Guillen to improper conditions in his cell at the Fayette County Jail.
Defendants Vieregge, McConkey, and Lay filed a motion to dismiss on December
6, 2016, and a supplement thereto on January 4, 2017. Diaz-Guillen did not file a
response to the December 6 motion and, despite being provided notice that the Court
would consider the arguments in Defendants’ supplement, Diaz-Guillen again failed to
respond by the May 19, 2017 deadline (see Doc. 61).
In their motion to dismiss, Defendants assert the complaint should be dismissed
because it was filed more than two years after the cause of action accrued and, insofar as
the complaint may be read to plead a claim of deliberate indifference against
Defendants, any such claim was insufficiently pleaded. In their supplement, Defendants
address the issue of tolling of the statute of limitations as relates to Diaz-Guillen’s
exhaustion of administrative remedies. In particular, Defendants assert that
Diaz-Guillen’s administrative remedies became “unavailable” to him, at the latest, on
August 27, 2012, when he transferred out of the Fayette County Jail and into IDOC
custody. Therefore, Defendants argue, the two-year statute of limitations period began
to run on that date.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal if a

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complaint fails to state a claim upon which relief can be granted. In considering a motion
to dismiss, the Court accepts as true all well-pleaded allegations in the complaint and
draws all possible inferences in favor of the plaintiff. See Killingsworth v. HSBC Bank
Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007) (quotations omitted). A plaintiff need not
set out all relevant facts or recite the law in his or her complaint; however, the plaintiff
must provide a short and plain statement that shows that he or she is entitled to relief.
See FED. R. CIV. P. 8(a)(2). Thus, a complaint will not be dismissed if it “contain[s]
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Additionally, “[a]llegations of a pro se complaint are held ‘to less
stringent standards than formal pleadings draft by lawyers … Accordingly, pro se
complaints are liberally construed.” Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
Statute of Limitations
Although Section 1983 does not contain an express statute of limitations, it is well
established in this Circuit that the appropriate statute of limitations period for Section
1983 cases is two years, as set forth in 735 ILCS § 5/13-202, which prescribes that actions
for personal injury must be commenced within two years after the cause of action
accrued. Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998) (citations omitted).
Pursuant to 735 ILCS 5/13-216, “[w]hen the commencement of an action is stayed
by … statutory prohibition, the time of the continuance of the … prohibition is not part of
the time limited for the commencement of the action” (emphasis added). Importantly,
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the Prison Litigation Reform Act (“PLRA”) requires inmates to exhaust administrative
remedies prior to filing suit under § 1983. See 42 U.S.C. § 1997(e)(a). Accordingly, the
Seventh Circuit has held that a federal court relying on the Illinois statute of limitations
in §1983 cases must toll the limitations period while a prisoner completes the
administrative grievance process. Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001).
DISCUSSION
Defendants Vieregge, Lay, and McConkey assert that dismissal is appropriate
because Diaz-Guillen’s cause of action accrued on August 27, 2012, when he was
transferred from the Fayette County Jail to IDOC custody, but he did not file his lawsuit
until October 6, 2015, well after the statute of limitations expired. This Court previously
denied Defendant Dr. Swanson’s motion to dismiss, brought forth on a similar basis,
finding Dr. Swanson failed to account for the exhaustion period. Defendants Vieregge,
Lay, and McConkey argue the accrual date for the claims pending against them is
different than the accrual date for the claim against Dr. Swanson. The Court agrees.
Significantly, Diaz-Guillen’s conditions of confinement claim against Defendants
Vieregge, Lay, and McConkey necessarily relates to conditions in his cell at Fayette
County Jail, whereas Diaz-Guillen’s claim against Dr. Swanson relates at least in part to
his time in IDOC custody. Thus, even if the Court finds that Diaz-Guillen’s complaint
indicates he made attempts to exhaust his administrative remedies, thereby tolling the
relevant limitations period, once he transferred from Fayette County Jail to IDOC
custody, any such tolling stopped for claims that occurred at the Fayette County Jail.
Simply put, once Diaz-Guillen was moved out of the Fayette County Jail in August 2012
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and into IDOC custody, he clearly was not going to receive a response to any grievances
he may have filed. As such, the two-year statute of limitations period began to run. See
Merritte v. Lasalle County Sheriff’s Office, No. 14-C-7058, 2015 WL 8986857, at * 7 (N.D. Ill.
Dec. 16, 2015). Based on this timeline, Diaz-Guillen had to file his complaint prior to
August 27, 2014, in order to comply with the statute of limitations. Diaz-Guillen did not
file his original complaint until October 6, 2015, more than one year after the limitations
period on his claims arising from his time at Fayette County Jail expired.
Based on this finding, the Court need not consider whether Diaz-Guillen stated a
claim for deliberate indifference against Defendants Vieregge, McConkey, and Lay as it
would necessarily be dismissed in light of the foregoing.
CONCLUSION
For these reasons, Defendants J.D. Vieregge, Matt McConkey, and Aaron L. Lay’s
Motion to Dismiss for Failure to State a Claim pursuant to Rule 12(b)(6) (Doc. 42) is
GRANTED, and these Defendants are DISMISSED with prejudice. Further, in light of
this ruling, Defendant Vieregge, McConkey, and Lay’s Motion to Stay Discovery and
Deadlines (Doc. 56) is MOOT. Plaintiff Luis Diaz-Guillen is now proceeding in this
action only against Defendants Dr. Shah and Dr. Swanson for deliberate indifference for
delaying treatment for his serious medical condition.
IT IS SO ORDERED.
DATED: June 20, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge

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