Opinion
Case No. 05-2082.
December 13, 2005
REPORT AND RECOMMENDATION
In April 2005, Plaintiff, Johnnie Lee Savory II, filed a Complaint (#1) against Defendants Kevin Lyons, Gary Poynter, and the City of Peoria, for constitutional violations arising from Defendants' alleged refusal to allow Defendant access to evidence related to Plaintiff's 1981 conviction for murder for DNA testing. In May 2005, Plaintiff filed a First Amended Complaint (#17) adding two parties as defendants, Peoria County and Robert Spears, in his official capacity as Clerk of the Tenth Judicial Circuit Court of Illinois, and asserting all claims against them. Federal jurisdiction is based on federal question ( 28 U.S.C. § 1331).
In September 2005, Defendants City of Peoria and Gary Poynter filed a Motion To Dismiss First Amended Complaint (#39), adopting the County's previous motion to dismiss based on the statute of limitations. Plaintiff filed a response, incorporating by reference his response to the County's motion and his objection to the Court's Report and Recommendation on the County's motion to dismiss. After reviewing the parties' pleadings and memoranda, this Court recommends, pursuant to its authority under 28 U.S.C. § 636(b)(1)(B), that Defendants' Motion To Dismiss First Amended Complaint (#39) be GRANTED.
I. Background
In June 2005, Defendants Lyons, Spears, and Peoria County filed similar motions, all titled "Motion To Dismiss First Amended Complaint Alternative Motion For More Definite Statement" (#23, #25, #27). In August 2005, the Court recommended granting Defendants' motions to dismiss based on the running of the statute of limitations. (Report and Recommendation, #32.) Plaintiff filed an objection to the Report and Recommendation and, in September 2005, Chief Judge Michael P. McCuskey accepted the Court's recommendation. (Opinion, #38.)In June 2005, Defendants Poynter and City of Peoria (hereinafter "City") filed a Motion To Dismiss First Amended Complaint (#21). In October 2005, the Court recommended granting the motion in its entirety as to Poynter. As to Defendant City, the Court recommended that the motion to dismiss be granted as to Counts I, II, III, IV, and VII and denied as to Counts V and VI. (Report and Recommendation, #40.) Plaintiff filed an objection to the Report and Recommendation and, in November 2005, Judge McCuskey accepted the Court's recommendation. (Opinion, #48.)
Only Counts V and VI remain pending against the City. Count V alleges a denial of access to executive clemency and Count VI alleges that Defendants denied Plaintiff his rights to confrontation and compulsory process in violation of the Sixth Amendment. Plaintiff seeks an injunctive order compelling DNA testing of evidence, but does not challenge directly the fact or length of his incarceration.
II. Standard of Review
The purpose of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). When considering a motion to dismiss, the Court must accept as true all well-pleaded factual allegations in the claim and draw all reasonable inferences in favor of the nonmoving party. Gutierrez v. Peters, 111 F.3d 1364, 1368-69 (7th Cir. 1997). The Court should dismiss the claim only if the nonmoving party cannot prove any set of facts consistent with the allegations of the complaint that would entitle him to relief. Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1319-20 (7th Cir. 1997).
III. Analysis
Defendant City now argues that the statute of limitations bars the remaining claims. The Court agrees. In a previous Report and Recommendation addressing the issue of the statute of limitations (raised by Defendants Lyons, Spears, and Peoria County), the Court stated as follows:
In his amended complaint, Plaintiff alleges that he sought DNA testing in January 1998 and March 1998 pursuant to Section 116-3 of the Code of Criminal Procedure of 1963. (#17, ¶ 37.) In an order dated July 7, 1998, the circuit court denied Plaintiff's motion. People v. Savory, No. 77CF 565, July 7, 1998, Order. Thus, Plaintiff knew or should have known that Defendants had violated his constitutional rights when his requests were denied in 1998.
(Report and Recommendation, #40, p. 18.) Thus, the Court found that Plaintiff's claims accrued in 1998, no later than July 7, 1998. The Court also found that the doctrine of equitable tolling did not apply. The Court reached the same conclusion when Defendants City and Poynter argued in their previous motion to dismiss that the Court should dismiss Count III based on the statute of limitations.
This same reasoning applies to Defendant City's motion to dismiss the remaining claims against it. On July 7, 1998, the state court denied Plaintiff's motion for access to testing. That order applied to all entities who might have authority to allow Plaintiff access to release the evidence. Plaintiff knew or should have known at that time that Defendants had violated his constitutional rights. Thus, Plaintiff's claim accrued no later than July 7, 1998, approximately seven years before Plaintiff filed his claims in this case. Accordingly, the Court concludes that the statute of limitations bars Plaintiff's claims against the City in Counts V and VI and recommends dismissing them.
IV. Summary
For the reasons set forth above, this Court recommends that Defendants' Motion To Dismiss First Amended Complaint (#39) be GRANTED. The parties are advised that any objection to this recommendation must be filed in writing with the clerk within ten (10) working days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1). Failure to object will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F. 2d 538, 539 (7th Cir. 1986).