Moore v. Venice Police Department et al

Filing 78

MEMORANDUM AND ORDER, The Court ADOPTS the Report in its entirety (Doc. 66 ),GRANTS the defendants' motion to dismiss (Doc. 56 ), DISMISSES with prejudice all claims against defendants Ngoma and Shellenberg,DENIES as moot Moore's motion f or leave to amend (Doc. 58 ),GRANTS in part and DENIES in part Moore's motion for leave to amend (Doc. 59 ),DIRECTS the Clerk of Court to file the "Second Amended Complaint" (which is really the amended complaint) submitted by Moore on April 13, 2017. The Court directs the Clerk of Court to prepare for Defendant City of Venice: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Court directs the Clerk of Court to enter judgment accordingly at the close of the case. Signed by Judge J. Phil Gilbert on 10/11/2017. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEMETRIUS D. MOORE,
Plaintiff,
v.

Case No. 16-cv-808-JPG-DGW

VENICE POLICE DEPARTMENT,
OFFICER NGOMA and OFFICER
SHELLENBERG,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
66) of Magistrate Judge Donald G. Wilkerson recommending that the Court grant the motion to
dismiss filed by defendants Office Ngoma and Office Shellenberg on statute of limitations grounds
(Doc. 56) and grant in part and deny in part plaintiff Demetrius D. Moore’s motions for leave to
file an amended complaint (Doc. 58 & 59). Moore objected to the Report (Doc. 71), the
defendants responded to that objection (Doc. 72), and Moore replied to that response (Doc. 73).
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
This matter stems from the defendants’ arrest of Moore on July 5, 2013. Moore
complains that the defendants violated his Fourth Amendment rights because they lacked
justification for his arrest and the subsequent search of his home, they used excessive force in

making the arrest, and they unreasonably responded to his medical needs created by the use of
excessive force. He signed his complaint and placed it into the prison mail system on July 12,
2016, which is deemed the “filing date” under the mailbox rule of Houston v. Lack, 487 U.S. 266,
276 (1988).
In the Report, Magistrate Judge Wilkerson found that Moore’s causes of action accrued on
July 5, 2013, or a few days thereafter, but that Moore filed this July 12, 2016, lawsuit beyond the
two-year statute of limitations for lawsuits under 42 U.S.C. § 1983 brought in Illinois. See 735
ILCS 5/13-202; Wallace v. Kato, 549 U.S. 384, 387, 394 (2007). He found that, under Illinois
equitable tolling rules, tolling was not warranted on the grounds that Moore was incarcerated and
did not have funds to obtain materials and postage to file a timely lawsuit. He specifically noted
that Moore had filed two other lawsuits within the two-year limitations period (No.
3:14-cv-1356-SMY and No. 3:15-cv-3-JPG), the second of which he was able to file even though
he had a negative jail trust fund account balance at the time (Doc. 63). Magistrate Judge
Wilkerson found this showed Moore chose to spend his resources on another case (or cases) and
was not truly prevented from filing a lawsuit because of his indigency.
In his objection, Moore reiterates that he did not possess the funds necessary to obtain
writing materials and postage until he was sent to prison and that therefore the statute of limitations
should be tolled for that period. He also raises complaints about the substance of the violations he
pled in the complaint. The defendants complain that Moore’s objections are not specific enough
to warrant consideration.
The Court finds Moore’s objection is specific enough to consider. A party must raise
specific objections to the report and recommendation. Fed. R. Civ. P. 72(b). “[O]bjections need

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to be specific enough to alert the district court as to what issues are actually in dispute.” Sullivan
v. Running Waters Irrigation, Inc., 739 F.3d 354, 359 (7th Cir. 2014). However, the party only
needs “to specify each issue for which review is sought and not the factual or legal basis of the
objection.” Johnson, 170 F.3d at 741. Here it is clear that Moore is objecting to the finding that
equitable tolling does not apply. The Court will consider the objection.
Nevertheless, after a de novo review, the Court finds Magistrate Judge Wilkerson was
correct in his explanation of why equitable tolling does not apply to render Moore’s lawsuit timely.
The Court accordingly adopts that portion of the Report in its entirety.
As for the portions of the Report to which no party has objected, the Court finds they are
not clearly erroneous and, accordingly, will adopt them as well.
For these reasons, the Court hereby:


ADOPTS the Report in its entirety (Doc. 66);



GRANTS the defendants’ motion to dismiss (Doc. 56);



DISMISSES with prejudice all claims against defendants Ngoma and Shellenberg.
Those defendants are terminated from this case;



DENIES as moot Moore’s motion for leave to amend (Doc. 58);



GRANTS in part and DENIES in part Moore’s motion for leave to amend (Doc. 59);



DIRECTS the Clerk of Court to file the “Second Amended Complaint” (which is really
the amended complaint) submitted by Moore on April 13, 2017. The only claim in the
new pleading that shall proceed is:
Count 5:



A claim against the City of Venice for unlawful detention at the Madison
County Jail for 32 months beginning on July 8, 2013 in violation of the
Fourth Amendment;

DIRECTS the Clerk of Court to prepare for Defendant City of Venice: (1) Form 5 (Notice
of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of
Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the
amended complaint and this Memorandum and Order to the Defendant’s address as
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identified by Plaintiff. If the Defendant fails to sign and return the Waiver of Service of
Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk
shall take appropriate steps to effect formal service on the Defendant, and the Court will
require the Defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure;


ORDERS the City of Venice to timely file an appropriate responsive pleading to the
complaint and to not waive filing a reply pursuant to 42 U.S.C. § 1997e(g); and



DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

IT IS SO ORDERED.
DATED: October 11, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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