Plummer v. Godinez et al, No. 1:2013cv08253 - Document 138 (N.D. Ill. 2016)
Court Description: MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 5/20/2016:Mailed notice(wp, )
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Plummer v. Godinez et al Doc. 138 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION EDWARD PLUMMER, Plaintiff, Case No. 13 C 8253 v. Judge Harry D. Leinenweber GEORGE WELBORN, et al., Defendants. MEMORANDUM OPINION AND ORDER Plaintiff Edward Plummer (“Plummer”), a former inmate of both the Menard and Dixon Correctional Facilities, sued numerous Defendants who are or were agents of those facilities, bringing claims medical for violation malpractice of his under constitutional Illinois law. rights and Defendants for George Welborn, Tom Page, Keith Nelson, Tom Roth, Jerry Sternes, and Nedra Chandler, facilities claims all (“the against former Wardens”), them. Wardens of the dismiss have moved to Defendant Peter Swire correctional Plummer’s (“Swire”), the Administrator of the estate of the now-deceased Doctor John Dorn (“Dorn”), has also moved to dismiss the claims against Dorn’s estate (Dorn was Facility in 2006). a staff psychiatrist at Dixon Correctional For the reasons stated herein, the Court grants the Wardens’ Motion to Dismiss [ECF No. 122], and grants Dockets.Justia.com in part and denies in part Swire’s Motion to Dismiss [ECF No. 102]. I. BACKGROUND This is Plummer’s Second Amended Complaint, after the Court twice dismissed Defendants (ECF certain of Nos. and 49 his claims 89). as After to being various other convicted of murder in state court, Plummer served parts of his sentence at both the Menard Correctional Center and the Dixon Correctional Center in Illinois. He claims that during his time at these facilities, he was force-medicated by the staff and suffered emotional and physical harm as a result. Plummer was diagnosed with schizophrenia, although it is unclear when the condition first developed. He claims he developed psychiatric disorders as a result of the medications administrated to him at Menard and Dixon. He further claims that, from roughly 1995 to his release from Dixon in 2007, medical staff forced him to take drugs as a form of punishment, and that staff repeatedly changed or increased his drug regimen without any medical basis. Staff also placed him in solitary confinement, he claims, subjecting him to long-term sensory deprivation. The only named individual in the Complaint who directly administered drugs is Doctor John Dorn. Throughout 2006, Dorn changed Plummer’s drug regimen six times, at least once without any medical basis. Doctor Dorn is recently deceased; Plummer - 2 - now names the Administrator of his estate in the suit, Peter Swire. Plummer has also sued the former Wardens of Menard and Dixon who were responsible for the facilities during the time periods he was an inmate. He filed this suit under Section 1983, arguing that his forced medication violated his rights to due process under the Fourteenth Amendment and his right to be free of cruel and unusual punishment under the Eight Amendment. He also includes a state claim for medical malpractice against Dorn’s estate under Illinois law. II. WARDENS’ MOTION TO DISMISS The only claims against the Wardens are for constitutional violations pursuant to Section 1983. The Wardens argue that the applicable statute of limitations has run, and so the claims against them in their individual capacities must be dismissed. The Court agrees. A statute of limitations affords the Wardens an affirmative defense, and the Court usually does not entertain an affirmative Rule 12(b)(6). a plaintiff’s barred, defense on a motion to dismiss under However, when the facts are clear on the face of complaint dismissal under that the applicable Rule 12(b)(6) is claims are appropriate. time See, Indep. Trust Corp. v. Stewart Info. Servs., 665 F.3d 930, 935 (7th Cir. 2012) (citing Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009)). - 3 - The Court looks to the forum state’s statute of limitations governing personal injury claims in order to determine relevant time limit for bringing a Section 1983 action. the Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998). Illinois law dictates the statute of limitations is two years. See, id. (citing 735 ILCS § 5/13-202). on November 17, 2013. Plummer filed his first Complaint All relevant conduct by the Wardens took place prior to 2008, so at first glance, it would appear that all Section 1983 claims are time barred. give Plummer every benefit of the However, in order to doubt, the Court assumes (without deciding) that Plummer had a “legal disability” that would equitably toll the statute of limitations past 2008. See, Basham v. Hunt, 773 N.E.2d 1213, 1221 (discussing application of equitable tolling for legal disability under Illinois law). The assumption is reasonable given that Plummer suffers from mental illness and was initially homeless upon his release from prison. In considering equitable tolling, the Court emphasizes that it is viewing the facts in the most favorable light to Plummer, choosing the latest could have accrued. possible date on which Plummer’s claims The issue turns on when Plummer’s legal disability was “removed” within the meaning of Illinois law. See, 735 ILCS § 5/13-211. Illinois law defines a legal disability as being “entirely without understanding or capacity to make or communicate decisions regarding [one’s] person and - 4 - totally unable to manage [one’s] estate or financial affairs.” Basham, 773 N.E.2d medical records at from 1221. the Plummer state, received them on May 3, 2012. requested and he his indicates partial that he That was the day he discovered his injuries, by learning about the alleged abuse he endured while incarcerated. Plummer also stated in his initial Complaint that he began “preparing for the instant cause of action” some time prior to documentation September from the 15, 2012, prison by system requesting about certain policies practices through the Illinois Freedom of Information Act. and (ECF No. 1, Pl. Compl. ¶ 53). Plummer’s capacity to petition for his medical records and to file an Illinois FOIA request suggest that he was no longer suffering from a legal disability within the meaning of Illinois law by September 15, 2012. Cf. Quinn v. Harris, 230 Fed. Appx. 595, 597 (7th Cir. 2007) (affirming district court’s refusal to apply equitable advocated Besides, for it limitations tolling for herself would beyond and be the legal sought illogical point prepping for litigation. disability at legal to which toll the where plaintiff representation). the statute plaintiff of begins The principle behind equitable tolling is to grant relief to a plaintiff who, because of disability or some other extraordinary expected to sue in time.” circumstance, “cannot reasonably be Miller v. Runyon, 77 F.3d 189, 191 - 5 - (7th Cir. 1996). By September 15, 2012, Plummer, by his own admission, knew of his injury, potential causes of action, and some likely defendants (even if he did not know those defendants by name – more on that later). Thus the latest possible date at which the statute of limitations could have been triggered is September 15, 2012. Plummer filed his initial Complaint on November 17, 2013. So far, so good: that’s roughly one year after the 2-year time limit would have commenced. But Plummer did not identify the individual Wardens by name in 2013. “unknown wardens” in the Complaint. name until his Second Amended Instead, he named several He did not identify them by Complaint, which he filed on September 28, 2015 – more than a year after the two-year statute of limitations had run. The Seventh Circuit has held definitively that the designation of “John Doe” defendants in a complaint will not toll the statute of limitations plaintiff can substitute a named defendant. until a Sassi v. Breier, 584 F.2d 234, 235 (7th Cir. 1978). There is an exception to the rule in Sassi for instances in which defendants fraudulently conceal their identities from the plaintiff. must “set In such a case, under Illinois law, the plaintiff forth affirmative acts or words by the defendants which prevent[ed] him from discovering their identity. Mere silence of the defendant and the mere failure on the part of the - 6 - plaintiff to learn of a fraudulent concealment.” 1257 (7th Cir. omitted). 1993) cause of action do not to Worthington v. Wilson, 8 F.3d 1253, (internal citations and quotations Plummer offers only the following explanation for his failure to name the Wardens in a timely fashion: Attorney amount General’s September 10, pages 4-5). 2015, office to from produce October those “[I]t took the 9, names” That explanation is deficient. 2014, (Pl. until Resp. at And a request to the Illinois Attorney General for names on October 9, 2014 was already too late, coming more than 2 years after September 15, 2012. The case for leniency on this issue might be stronger if Plummer were proceeding pro se. F.2d 83, 87-88 (7th Cir. 1980). See, Maclin v. Paulson, 627 But he has been represented by the same counsel since the day he filed his initial Complaint, and counsel has not offered the Court any explanation for his lack of diligence in ascertaining the Wardens’ identities. Lack of diligence, besides, will not excuse untimely filing. See, Worthington, 8 F.3d at 1257. Moreover, this case does not involve unknown defendants whose identification depends in large part on a plaintiff’s hazy memory; determining the identity of past high-level officials of two state-run correctional facilities should be a fairly straightforward matter. the Wardens were not named until - 7 - more than two Because years after September 15, 2012, the Court holds that the two-year statute of limitations has run on the Section 1983 claims against the Wardens in their individual capacities. Plummer argues that the claims against the Wardens in their official capacities should survive, because the state has been a party to this action from the beginning and so was put on notice back in 2013. claim against Plummer is correct that “an official capacity an individual defendant against the government entity itself.” 128 F.3d 481, 494 (7th Cir. 1997). entity in this case – the constitutes a claim Gossmeyer v. McDonald, And the relevant government authority in charge of the correctional facilities – is indeed the State of Illinois, which Plummer has named persistently as a defendant throughout these proceedings. But as the Court explained in a prior opinion on this exact subject (see, ECF No. 89), the Eleventh Amendment bars claims for damages against the States. F.3d at 495. And as to Plummer’s injunctive relief against Illinois: See, Gossmeyer, 128 repeated requests for the Court advises Plummer, for the second time (see, ECF No. 89) that there is nothing here to enjoin. Plummer is no longer incarcerated, and there are no allegations that state officials continue to harass or abuse him. The Court dismisses the claims against the Wardens in their official capacity as well. - 8 - III. SWIRE’S MOTION TO DISMISS The Court now considers the claims against Dorn. As an initial matter, Swire argues that Plummer’s claims should be dismissed because, after Dorn’s death on February 15, 2015, Plummer did not substitute Swire as the proper party within the time period set out in Federal Rule of Civil Procedure 25(a). Rule 25(a) deceased requires party be that made the within motion 90 for days substitution after of notification a of death; Plummer filed a Motion for Substitution approximately 124 days after Dorn’s death was first suggested to the Court. Swire’s argument is unconvincing. The Advisory Committee Notes to Rule 25 indicate that the Court may permit untimely motions for substitutions when the tardiness is the result of excusable neglect. F.3d 1293, 1297 See, Continental Bank, N.A. v. Meyer, 10 (7th Cir. 1993). Plummer argues that the suggestion of death filed in this suit (see, ECF No. 55) was deficient in that it did not name a proper party to substitute. The Court believes Plummer’s counsel diligently attempted to ascertain who to name in Dorn’s place, given that he filed a Motion to Strike the suggestion of death due to the perceived deficiency. That’s enough to find that the failure to substitute Swire within 90 days was excusable; Rule 25(a) was not meant “to act as a bar to otherwise meritorious actions, and extensions of the period may be liberally granted.” - 9 - Continental Bank, N.A., 10 F.3d at 1297 (internal citation and quotation omitted). Swire also argues that Dorn was never served pursuant to Federal Rule of Civil Procedure 4(m), that Dorn’s estate was served past Rule 4(m)’s 90-day window, and as such, that the Complaint Rule should be dismissed pursuant insufficient service of process. to 12(b)(5) for But Rule 4(m) also dictates that the Court must extend the time allowed if there was good cause for untimely service. that Plummer diligently As to Dorn, the record indicates attempted to serve him but difficulty tracking him down, perhaps due to an alias. had Roughly two months after an alias summons issued on December 16, 2014, Dorn passed away. Then Plummer had to determine who substitute (and serve) in Dorn’s place under Rule 25(a). to The Court has already considered and excused the delay related to that issue. Even if the Court were inclined to dismiss for non- compliance with Rule 4(m), the rule indicates that the dismissal should be without prejudice in another shot at proper service. order to give the plaintiff Plummer already served Swire – his executed summons was returned on December 31, 2015. Court thus declines to dismiss Plummer’s claims The pursuant to Rule 12(b)(5). Turning to the merits, Plummer first claims that Dorn violated his right to be free from cruel and unusual punishment - 10 - under the Eighth Amendment. States have a duty to provide medical care to prison inmates, and “deliberate indifference to the serious medical Amendment. needs of prisoners” violates the See, Duckworth v. Ahmad, 532 F.3d 675, 678-79 (7th Cir. 2008) (internal quotation and citation omitted). a Eighth legally sufficient objectively serious claim, medical “a plaintiff condition to To state must show which (2) (1) a an state official was deliberately, that is subjectively, indifferent.” Id. at 679 (citation omitted). Deliberate indifference is more than negligence but “something less than purposeful.” medical professional, specifically, exhibits Id. A deliberate indifference if he is aware of and ignores an excessive risk to an inmate’s health. Plummer’s See, id. allegations indifference standard. easily meet the deliberate He suffers from at least one serious medical condition (schizophrenia), and he maintains that Dorn not only forcibly medicated him, but did so without any medical basis. He also claims generally (although not specifically as to Dorn) that changes in medication were punitive, not medical. The forced disability. medication exacerbated Plummer’s psychiatric He bolsters these claims with references to how and when his treatment regimen changed while incarcerated. that the Court must accept the allegations - 11 - as true Given at this stage, Plummer has provided more than enough to state a legally sufficient claim that Dorn violated his Eighth Amendment rights. Plummer also contends, briefly, that Dorn violated right to due process under the Fourteenth Amendment. his The Court assumes that Plummer implicates the Fourteenth Amendment to the extent that it extends the Eighth Amendment’s protections to pretrial detainees; the Eighth Amendment, by contrast, applies only to convicted prisoners. See, Williams v. Rodriguez, 509 F.3d 392, 401 (7th Cir. 2007). Plummer’s Complaint specific But there are no allegations in to pretrial detention. Dorn’s alleged conduct took place well after Plummer’s conviction and imprisonment. If Plummer invoked the Fourteenth Amendment for different reasons, unrelated to the Eighth Amendment and his allegations of deliberate indifference, the purpose is lost on the Court. The claim is either inapplicable or fails for lack of specificity. The final malpractice frivolous The Court dismisses it accordingly. claim under against Illinois medical Dorn’s law. malpractice In estate an lawsuits, is for effort Illinois medical to reduce requires plaintiff’s counsel to file an affidavit stating that he has consulted with a qualified, licensed physician and that there is a reasonable and meritorious cause for filing the suit. See, 735 ILCS § 5/2-622; see also, Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). The physician’s written report on the case - 12 - also must be included with the attorney affidavit. Swire argues that the claim should be dismissed because Plummer failed to attach a certificate of merit with the Complaint. The Court dismissed the same medical malpractice claims as to other Defendants over a year ago due to Plummer’s failure to attach the indicated certificate that the of merit. dismissal At was that without time, the prejudice Court and that Plummer may have the right to refile if he could obtain the required certificate (ECF No. 65, Trans. at pgs. 2-5, 8). Plummer filed his most recent Amended Complaint on September 28, 2015, and it still lacks the certificate. Plummer’s response to Swire’s Motion to Dismiss (see, ECF No. 128), contains a letter from a licensed records. psychiatrist who reviewed Plummer’s medical However, as a certificate of merit, the letter is deficient. First, the letter was required by the statute. not attached to the Complaint See, 735 ILCS § 5/2-622(a). as Second, there is no actual affidavit from Plummer’s counsel stating that he consulted and reviewed physician. Instead, observations about approximately 2004 alleged conduct the facts filing Plummer’s to the 2007 perpetrated is medical (note by of just the the records that those Dorn). The - 13 - case with the physician’s own from Dixon years statute cover from all requires affirmative physician. representations by the attorney, not just the state that the See, id. Finally, the letter actually does not physician believes there is a reasonable and meritorious cause for the filing of the suit. That’s the whole point behind the law, but such a representation is missing from the letter. And in fact, the letter opens with the physician’s caveat that he has not interviewed Plummer, so his “perpective [sic] may be skewed” (Pl. Resp. Ex. 2). Counsel’s failure to make his client available to the physician for an interview cannot be laid at the feet of the Defendant. Counsel has known, or should have known, that he needed this certificate for a valid malpractice claim since initiating the litigation in 2013. dismissed once opportunity to without cure failed to do so. estate capacity is the and procedural provided defect Plummer already. He the has The medical malpractice claim against Dorn’s dismissed claim prejudice The Court has with against prejudice. Dorn’s estate Lastly, is the denied for official the same reasons the Court denied the official capacity claim against the Wardens. IV. CONCLUSION To summarize, the Court dismisses all claims against the Wardens, and it dismisses all claims against Dorn’s estate with the exception of the Eighth Amendment claim. - 14 - The Court thus grants the Wardens’ Motion to Dismiss [ECF No. 122] in its entirety, and grants in part and denies in part Swire’s Motion to Dismiss [ECF No. 102]. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated: May 20, 2016 - 15 -
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