Sharp v. Keeling et al
MEMORANDUM AND ORDER, The Court ADOPTS in part and REJECTS in part the Report (Doc. 36), MODIFIES the Report only to the extent provided in this Memorandum & Order and DENIES the defendants' motion to dismiss (Doc. 28). Signed by Judge J. Phil Gilbert on 2/12/2018. (jdh)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 3:16-cv-01083-JPG-DGW
JOE KEELING and LYNETTE HENZE,
MEMORANDUM & ORDER
J. PHIL GILBERT, DISTRICT JUDGE
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
36) of Magistrate Judge Donald G. Wilkerson with regard to the defendants’ motion to dismiss
for failure to state a claim (Doc. 28). 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). Here, no party has filed an objection, but the entire Report does not
withstand a review for clear error.
David Sharp is an inmate with a history of mental health and brain issues, including post-
traumatic stress disorder. (Am. Compl. 2, Doc. 17.) These issues appear to be related to his
former service with the U.S. Army, and Sharp states that the U.S. Department of Veterans
Affairs was treating him for these health issues. (Id. at 2–3.) Nevertheless, in December 2013,
the police arrested Sharp following an incident and detained him at Wabash County Jail pending
resolution of the corresponding criminal charge. (Id. at 3.) On December 28, 2013—shortly after
his detention began—Sharp went on a hunger strike and formulated a plan to kill himself with a
broken shard of glass. (Id. at 3.) But when Sharp saw his father at a court hearing a few weeks
later on January 7, 2014, he changed his mind, turned over the shard of glass, and told
corrections officer Lynette Henze about his plan. (Id.)
Over the next few months, Sharp’s wife brought his medications to the jail so that Sharp
could continue his prescribed treatment. Those medication refills ran out in May 2014. Sharp
then asked Sheriff Joe Keeling to arrange an appointment with a doctor so that he could refill his
prescriptions, but after Keeling allegedly refused the request, Sharp was forced off his
In June 2014, the authorities transferred Sharp to Chester Mental Health Center
(“Chester”) so that the facility could assess Sharp’s fitness to stand trial. Sharp stayed at Chester
until September 2014, and that facility wrote him a new prescription for his medications. Sharp
refused to take them, however, because he believed he would go into withdrawal when he
returned to Wabash County Jail. Ultimately, the Illinois Department of Corrections took custody
of Sharp and removed him from the jail in December 2014. (Id.)
In September 2016, Sharp brought a deliberate indifference to medical needs claim in this
Court against Keeling and an unknown “Jane Doe” defendant, pursuant to 18 U.S.C. § 1983.
(Compl., Doc. 1.) Sharp amended that complaint in February 2017 to substitute Henze for the
“Jane Doe” defendant. (Am. Compl., Doc. 17.) Now, the defendants have moved to dismiss the
amended complaint on the grounds that (1) the statute of limitations bars Sharp’s claim, and (2)
Sharp’s claim against Henze in the amended complaint cannot relate back to the initial
complaint. (Mot. to Dismiss, Doc. 28.)
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as true all
allegations in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). To avoid dismissal under Rule 12(b)(6) for failure to state
a claim, a 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). This requirement is satisfied if the
complaint: (1) describes the claim in sufficient detail to give the defendant fair notice of what the
claim is and the grounds upon which it rests, and (2) plausibly suggests that the plaintiff has a
right to relief above a speculative level. Bell Atl., 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007). A claim
is facially plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678 (citing Bell Atl., 550 U.S. at 556). This is a context-specific task that invokes the Court’s
“judicial experience and common sense.” Iqbal, 556 U.S. at 679.
As an initial matter, the Court must clarify the applicable legal standards in this case.
While the Report correctly notes that the defendants seek dismissal here pursuant to Federal Rule
of Civil Procedure 12(b)(6), the Report also states several times that the defendants are seeking
summary judgment. This Court affirms that the defendants are seeking a 12(b)(6) dismissal, not
Defendant Joe Keeling
With respect to defendant Keeling, the Report first acknowledges that the “only dates
relevant to the deliberate indifference claim are those prior to Sharp’s transfer to Chester.” (R. &
R. 6, Doc. 36.) These dates are important because they govern when the cause of action started to
accrue in this case, which then implicates when the statute of limitations expired. See Devbrow v.
Kalu, 705 F.3d 765, 768 (7th Cir. 2013) (for Section 1983 deliberate indifference claims, the
claim accrues “when a person knows his injury and its cause.”). But then, the Report concludes
that Keeling’s argument fails because the complaint does not state which specific day in June
Sharp was transferred to Chester Mental Health Center. (R. & R. 6, Doc. 36.) The Report
believes that the specific day is necessary to determine whether the statute of limitations has run
The Report’s hair-splitting on this issue is unnecessary. According to the complaint, the
statute of limitations on Sharp’s claim started to accrue sometime in June 2014. The statute of
limitations on a Section 1983 claim in Illinois is two years. Gekas v. Vasiliades, 814 F.3d 890,
894 (7th Cir. 2016). Sharp filed this action in September 2016—over two years after the claim
started to accrue regardless of which day in June you select. Accordingly, the Court declines to
adopt the conclusions of the Report on this issue.
Next, there is another issue here that the Report did not address. In his first amended
complaint, Sharp mentions that he has filed over ten grievances about this issue. (Am. Compl. 2,
Doc. 17.) This indicates that Sharp was attempting to resolve this issue through the
administrative remedy process, which the Prison Litigation Reform Act requires him to do. 42
U.S.C. § 1997e(a). And the Seventh Circuit has instructed that the statute of limitations on a
claim is tolled while a prisoner is pursuing those administrative remedies. Johnson v. Rivera, 272
F.3d 519, 522 (7th Cir. 2001). Since the complaint plausibly suggests that the statute of
limitations may be subject to tolling in this case, it would be premature for the Court to conclude
at the 12(b)(6) stage that the statute of limitations bars Sharp’s claim. The Court must DENY the
motion to dismiss with respect to the claim against defendant Keeling.
Defendant Lynette Henze
Next, the Report discusses defendant Henze. The defendants made two arguments
regarding the claim against Henze in their motion to dismiss: (1) that the statute of limitations
bars Sharp’s claim against her, and (2) Sharp’s claim against Henze in the first amended
complaint cannot relate back to the initial complaint. (Mot. to Dismiss 8–12, Doc. 28.) Henze’s
argument on the statute of limitations differs slightly from Keeling’s: since Henze’s alleged
violation occurred in January 2014 rather than June 2014, the defendants argue that the statute of
limitations has indisputably run its course. (Id. at 8.)
First, the Report analyzed and rejected Henze’s relation back argument. The Court has
reviewed that analysis for clear error and finds none. The Report, however, failed to address
Henze’s statute of limitations argument. This was in clear error because Sharp’s claim against
Henze may certainly be barred by the statute of limitations—depending on the administrative
remedies tolling issue described above. Accordingly, Sharp’s claim against Henze may or may
not survive to the end of these proceedings, but that issue is not yet ready for adjudication at the
12(b)(6) stage. The Court must also DENY the motion to dismiss with respect to the claim
against defendant Henze.
For the foregoing reasons, the Court:
ADOPTS in part and REJECTS in part the Report (Doc. 36);
MODIFIES the Report only to the extent provided in this Memorandum & Order; and
DENIES the defendants’ motion to dismiss (Doc. 28).
IT IS SO ORDERED.
DATED: FEBRUARY 12, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
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