Opinion
Case No. 01 C 9982
September 5, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff, Clark Truly ("Plaintiff"), filed a pro se complaint against Defendants, the Cook County Department of Corrections, Sheriff Michael Sheahan, Deputy Sheriffs Morris, Mundt and Brogan alleging violation of 42 U.S.C. § 1983 (2002). The Cook County Department of Corrections was dismissed as a defendant by an order of this Court dated March 6, 2002. Counsel was appointed to represent Plaintiff, and Plaintiff filed an amended three-count complaint against Defendants and other unknown individuals, alleging violations of § 1983 (Count I) and state law claims for willful and wanton conduct (Count II) and negligence (Count III).
Sheriff Sheahan ("Sheahan") moves, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the amended complaint. For the reasons set forth, Sheahan's Motion to Dismiss is granted.
LEGAL STANDARD
When considering a motion to dismiss, well-pleaded allegations in the complaint are accepted as true. Turner/Ozanne v. Hyman/Power, 111 F.3d 1312, 1319 (7th Cir. 1997). Any ambiguities in the complaint are construed in favor of the plaintiff. Kelly v. Crosfield Catalysts, 135 F.3d 1202, 1205 (7th Cir. 1998). Dismissal is proper only when it appears beyond doubt that Plaintiff can prove no set of facts to support the allegations in his or her claim. Strasburger v. Board of Education, 143 F.3d 351, 359 (7th Cir. 1998).
"Although the Federal Rules of Civil Procedure do not require a plaintiff `to set out in detail the facts upon which he bases his claim,' . . . he must `set out sufficient factual matter to outline the elements of his cause of action or claim, proof of which is essential to his recovery.'" Benson v. Cady, 761 F.2d 335, 338 (7th Cir. 1985) (internal citation omitted). A complaint will not avoid dismissal if it contains "bare legal conclusions" absent facts outlining the basis of the claims. Perkins v. Silverstein, 939 F.2d 463, 467 (7th Cir. 1991).
BACKGROUND
For purposes of this Motion to Dismiss, the following allegations are taken as true.
Plaintiff was incarcerated in the Cook County Jail ("the jail") located at 26th Street and California in Chicago, Illinois, and charged with the crime of aggravated assault and possession of a stolen vehicie. On or about January 1, 2000, Plaintiff was in a day-room area of Division 1, Tier 83, when another inmate named Dante began making verbal threats against him. Dante was reputed to be a gang member among the jail population.
Deputy Sheriff Morris ("Morris"), who was nearby at the time Dante was threatening P1aintiff, stated that he had no objection to a fight between Plaintiff and Dante. After this comment by Morris, a fight ensued between Plaintiff and Dante. At the end of the fight, Dante made additional threats against Plaintiff which were heard by Morris., who was still in the day-room.
Morris also permitted other inmates, who he knew to be gang affiliates of Dante, to leave their cells and enter the day room. These other gang members also verbally threatened Plaintiff Morris stated that a fight should take place out of his view. Plaintiff told Morris and the other inmates that he did not want to fight. In Morris's presence, the other inmates struck Plaintiff on his face and body until he lost consciousness. The inmates continued to attack Plaintiff after he lost consciousness.
Plaintiff was taken to Cermak Hospital and later transferred to Cook County Hospital for treatment. At Cook County Hospital, Plaintiff was treated for neck injuries, a broken nose, permanent facial disfigurement and additional injuries to his face and head.
After being released from the hospital, Morris and Deputy Sheriffs Mundt ("Mundt") and Brogan ("Brogan") placed Plaintiff in a segregation unit at the jail where some of the inmates who had attacked Plaintiff were being housed. Those inmates began to threaten Plaintiff, who feared for his life.
DISCUSSION
Sheahan argues that Count I against him should be dismissed because Count I does not allege that Sheahan has official policy, practice or custom of failing to protect inmates. Count I's prayer for relief does not seek any relief from Sheahan. Furthermore, in his response to Sheahan's motion to dismiss, Plaintiff points out that the § 1983 claim is piled solely against the individual defendants Morris, Mundt and Brogan. Therefore, Sheahan's Motion to Dismiss Sheahan from Count I is granted.
Sheahan argues that Counts II and III should be dismissed because they are barred by the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("Tort Immunity Act"), 745 Ill. Comp. Stat. 10/8-101 (2002).
The Tort Immunity Act provides that:
[n]o civil action may be commenced in any court against a local entity or any of its employees for any injuries unless it is commenced within one year from the date that the injury was received or the cause of action accrued. For purposes of this Article, the term "civil action" includes any action, whether based upon the common law or statutes or Constitution of this State.
§ 10/8-101. Under the Tort Immunity Act, civil actions against governmental entities and their employees are barred if not commenced within one year from the date the cause of action accrued. Here, Plaintiff was injured on or about January 1, 2000. Thus, under the Tort Immunity Act, Plaintiff was required to file an action against the governmental unit and its employees by January 1, 2001. However, Plaintiff did not file the original complaint until December 28, 2001 and the amended complaint until May, 14, 2002.
Plaintiff argues that the one-year statute of limitations should be tolled because he was under a legal disability, imprisonment, when his cause of action accrued. See 735 Ill. Comp. Stat. 5/13-211 (2002). Section 5/13-211 provides that a person who was under a legal disability at the time the cause of action accrued may bring the action within two years after the disability is removed. "Until 1987, Illinois law treated imprisonment as a legal disability that tolled the statute of limitations while the plaintiff was still in prison." Dixon v. Chrans, 986 F.2d 201, 204 (7th Cir. 1993). However, the Illinois legislature has amended section 5/13-211 to eliminate the tolling provisions for prisoners. Schweihs v. Burdick, 96 F.3d 917, 921 (7th Cir. 1996). Therefore, Plaintiff's claims for willful and wanton conduct (Count II) and negligence (Count III) are time-barred and, therefore, dismissed.
CONCLUSION
For the reasons stated herein, Defendant's, Sheriff Michael Sheahan's, Motion to Dismiss is granted.