Randle v. Barnes

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHARLES RANDLE (M-27372),

Plaintiff,

No. 19 C 6548

v.

LT. MICHAEL SIMMONS, Judge Thomas M. Durkin

Defendants.

ORDER

Defendant’s motion to dismiss for failure to state a claim [74] is granted.

This dismissal counts as a “strike” under 28 U.S.C. § 1915(g). Final judgment shall

be entered.

STATEMENT

Plaintiff Charles Randle, a prisoner at Menard Correctional Center, brings this

civil rights action under 42 U.S.C. § 1983 regarding the circumstances of his July 31,

2019, transfer between prisons for a court appearance. The Court allowed Plaintiff

to proceed with a claim that an unidentified officer at Stateville NRC choked and hit

Plaintiff as he was placed in a sedan for transport. Plaintiff did not identify that

officer until submitting his second amended complaint, which was signed on Feb. 12,

2022.1

1 The second amended complaint was electronically submitted to the Court on

February 28, 2022 by officials at Menard Correctional Center. See ECF No. 68 at 1.

It is unclear when Plaintiff gave the document to prisoner officials for electronic

submission, but the Court will give Plaintiff the benefit of the date he signed the

pleading. Cf. Taylor v. Brown, 787 F.3d 851, 858 (7th Cir. 2015) (prisoner mailbox

rule deems prisoner pleadings to be filed on the date submitted to correctional

authorities for mailing).

Defendant Lt. Michael Simmons has moved to dismiss the second amended

complaint, arguing that it is time-barred. Section 1983 claims in Illinois are governed

by a two-year statute of limitations. Lewis v. City of Chicago, 914 F.3d 472, 478 (7th

Cir. 2019) (citing 735 Ill. Comp. Stat. 5/13-202). Defendant argues that because

excessive force claims accrue immediately, see Elcock v. Whitecotton, 434 F. App’x

541, 542–43 (7th Cir. 2011) (unpublished), the two-year statute of limitations for

Plaintiff’s claims expired as of July 31, 2021.

A statute of limitations is an affirmative defense, which can be raised on a

motion to dismiss if the complaint’s allegations make it clear that the claim is

untimely. Coffey v. City of Freeport, Illinois, No. 3:21-cv-50336, 2022 WL 1404750, at

*1 (N.D. Ill. May 4, 2022) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)). If the

plaintiff’s allegations, accepted as true, foreclose his claim, then he has pleaded

himself out of court. Id. (citing O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th

Cir. 2015) (“[I]f a plaintiff alleges facts sufficient to establish a statute of limitations

defense, the district court may dismiss the complaint on that ground.”)).

Defendant argues that Plaintiff’s second amended complaint does not relate

back to the original filing date and that Plaintiff is not entitled to equitable tolling,

so the second amended complaint must be dismissed as time-barred. Plaintiff argues

that the second amended complaint does relate back (although his argument as to

that issue is confused) and that he is entitled to equitable tolling.

Applicability of Relation-Back Doctrine

As to the first issue, under Fed. R. Civ. P. 15(c)(1)(C), an amendment that

changes the party or the naming of the party against whom the claim is asserted

relates back to the date of the original pleading as long as: (1) the amendment asserts

a claim or defense that arose out of the same conduct, transaction, or occurrence as

the original pleading; (2) within the period provided for by Rule 4(m), the party added

by the amendment received such notice of the action that it will not be prejudiced in

defending on the merits; and (3) the added party knew or should have known that the

action would be brought against it, but for a mistake concerning the proper party’s

identity. Herrera v. Cleveland, 8 F.4th 493, 496 (7th Cir. 2021).

In Herrera, the Seventh Circuit held that naming a “John Doe” defendant does

not constitute a “mistake” for the purposes of relation-back under Rule 15(c). Id. at

498–99. The Court observed that suing a “John Doe” as a placeholder is a proper

action when the plaintiff lacks identifying information, and thus is a “conscious

choice, not an inadvertent error.” Id. at 499; see also Young v. Kirk, No. 3:19-cv-

00868, 2022 WL 1641442, at *2 (S.D. Ill. May 24, 2022) (untimely identification of

defendants did not relate back to the original complaint).

Plaintiff acknowledges that naming a “John Doe” defendant was not a mistake

within the meaning of Rule 15(c). See Pl.’s Resp. to Def.’s Mot. to Dismiss 1, ECF No.

77. Although he contends that the second amended complaint does relate back, see

id. 4, the Seventh Circuit was clear that the relation-back doctrine does not apply in

these circumstances, so Plaintiff is not entitled to the benefit of the original filing

date. The Court will move to the issue of tolling.

Applicability of Tolling While Pursuing Administrative Remedies

Although not addressed by either party, one type of tolling that could apply to

this case is that the two-year statute of limitations for § 1983 claims in Illinois is

tolled while the prisoner exhausts his administrative remedies. See Turley v.

Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Plaintiff stated in his original complaint

that around August 8, 2019 (the grievance is actually dated August 6, 2019), he

submitted a grievance marked as an “emergency grievance” directly to the

Administrative Review Board (“ARB”) because his complaint concerned a warden and

a superintendent. See Pl.’s Compl. 8, 17-19, ECF No. 5. He received a response dated

August 27, 2019, indicating that additional information was required in the form of

a response from the counselor, grievance officer, and chief administrative officer

(warden). Id. 17. There is no indication that Plaintiff took those steps, as he states

in his original complaint that the response was “a rubber-stamped incompetent one”

and that there was no point in sending the grievance to a counselor or grievance

officer because he considered the incident to involve an emergency, and “[W]hat can

these employees do in this matter?” See id. at 8.

The Court does not discern a basis for tolling the statute of limitations based

on the filing of this grievance because the failure to comply with mandatory grievance

procedures renders tolling of the statute of limitations unavailable. Wells v. Spencer,

No. 11-1029, 2014 WL 1013864, at *2 (C.D. Ill. Mar. 14, 2014). Submission of a

grievance directly to the ARB under the circumstances described by Plaintiff does not

comport with Illinois’s grievance procedure. See 20 Ill. Admin. Code § 504.870(a)

(allowing for submission directly to the ARB of grievances about protective custody,

involuntary administration of psychotropic medication, and disciplinary and other

issues at facilities other than the one where the inmate is currently housed).

There is a procedure for prisoners to submit grievances concerning issues they

consider emergencies. An emergency grievance is to be submitted to the chief

administrative officer (warden), who determines whether there is a substantial risk

of imminent serious harm to the inmate. 20 Ill. Admin. Code § 504.840(a). If the

warden determines that the emergency exception does not apply, the offender is

notified in writing that he may submit the grievance through the normal channels,

which include submission to the counselor and grievance officer. 20 Ill. Admin. Code

§ 504.840(c); 20 Ill. Admin. Code § 504.810(a). Plaintiff’s subjective belief that there

was nothing the grievance officer or counselor could do to remedy his issue does not

justify bypassing the grievance process. See, e.g., Gakuba v. Rains, No. 19 C 437,

2020 WL 3316012, at *4 (S.D. Ill. June 18, 2020), aff’d, No. 21-1864, 2022 WL 1768849

(7th Cir. June 1, 2022). The Court therefore declines to toll the statute of limitations

due to the filing of this grievance.2

Applicability of Equitable Tolling

Next, the Court observes that claims may be equitably tolled while courts

preliminarily screen prisoner complaints. See Sims v. Olszewski, No. 17 C 79, 2017

WL 1903121, at *7 (N.D. Ill. May 9, 2017) (collecting cases); see also Bryant v. City of

2 The Court notes for the sake of completeness that if it gave Plaintiff the benefit of

21 days of tolling while he pursued this grievance, his second amended complaint still

would be untimely.

Chicago, 746 F.3d 239, 243–44 (7th Cir. 2014) (statute of limitations should be

equitably tolled while plaintiff awaits ruling on a motion that is necessary for him to

proceed with his case, such as an application for leave to proceed in forma pauperis).

In this instance, the Court received Plaintiff’s original complaint on September

23, 2019. The Court issued a screening order on November 27, 2019, dismissing

certain claims and indicating that Plaintiff had a cognizable claim against the

lieutenant who allegedly used excessive force against him, but that he would have to

determine the lieutenant’s name, name him in a pleading, and serve him in

accordance with Fed. R. Civ. P. 4 in order to proceed. The Court named Warden

Barnes as a nominal Defendant for the purpose of Plaintiff serving interrogatories to

learn this officer’s name. Plaintiff was warned at that time that he should act as soon

as possible in light of the two-year statute of limitations for § 1983 claims in Illinois

and any applicable tolling rules. See ECF No. 4 at 4. The Court therefore will toll

the statute of limitations for the 65 days that his original complaint was pending

screening. Giving Plaintiff the benefit of that tolling, Plaintiff was obligated to file

suit against Lt. Simmons by October 4, 2021.

In addition to the above, the statute of limitations may be equitably tolled

“when a litigant has pursued his rights diligently but some extraordinary

circumstance prevents him from bringing a timely action.” Herrera, 8 F.4th at 499

(citing Farzana K. v. Indiana Dep’t of Educ., 473 F.3d 703, 705 (7th Cir. 2007)

(equitable tolling “deals with situations in which timely filing is not possible despite

diligent conduct”)). It is the plaintiff’s burden to demonstrate that he diligently

pursued his claim and “some extraordinary circumstances prevented him from filing

his complaint within the statute of limitations.” Id. (cleaned up). “[E]quitable tolling

is an extraordinary remedy that is rarely granted.” Carpenter v. Douma, 840 F.3d

867, 870 (7th Cir. 2016) (cleaned up).

Since the Court issued its first screening order, this case has followed a

convoluted path, primarily due to delays occasioned by Plaintiff. More than five

months after the nominal Defendant answered the complaint, Plaintiff filed a motion

to reconsider the Court’s screening order, in which he indicated he did not want to

pursue the claim against the unidentified lieutenant and asked to reinstate claims

against Lt. Carr that the Court had dismissed upon screening. See ECF No. 23. The

Court denied Plaintiff’s request to amend its screening order but dismissed the claim

against the unidentified lieutenant and nominal Defendant Warden Barnes. As there

were then no remaining Defendants, Plaintiff was directed to, by December 23, 2020,

submit a motion to reinstate the original complaint or a motion for leave to amend

accompanied by a proposed amended complaint. See ECF No. 25.

Plaintiff sought and received four extensions of time to comply with this order.

See ECF Nos. 26, 28, 32, 38. During this time, Plaintiff reported to the Court that he

had made a settlement demand to defense counsel (although at that time there was

no defendant in the case). See ECF No. 34 at 4-5. Plaintiff also repeatedly requested

counsel, but the Court denied those requests and explained to Plaintiff that because

of his experience as a litigant, the quality of his pleadings, and the fact that he had

been present during the underlying events, he was capable of choosing a course of

action as directed by the Court. See ECF Nos. 30, 32, 34, 38.

The original complaint (stating a claim against the unidentified lieutenant)

was reinstated at Plaintiff’s request by order of August 30, 2021. See ECF No. 43.

The Court again explained to Plaintiff what he had to do to identify the lieutenant so

that he could be served. Id. at 4. The Court at that time did not make any

determination as to whether any future amended complaint naming this officer would

be timely. Id. Plaintiff never issued discovery requests to Defendant or his

predecessor, nominal Defendant Warden Barnes. See Def.’s Reply in Supp. of Mot. to

Dismiss 2, ECF No. 82.

At a telephonic status hearing on October 1, 2021, the Court directed defense

counsel to investigate the identity of the unnamed officer and provide names to the

Plaintiff by October 15, 2021. See ECF No. 48. Defense counsel sent Plaintiff an

employee roster, and during a November 18, 2021, status hearing, Plaintiff was

directed to file an amended complaint by December 20, 2021. See ECF No. 53. Days

later, the Court received a motion for extension of time from Plaintiff indicating that

he “forgot” to inform all parties during the status hearing that the roster he received

did not cover the correct time frame. See ECF No. 54 at 1. The Court then directed

that the proper roster be sent and once again extended the deadline to submit a

proposed amended complaint, to Jan. 13, 2022. See ECF No. 55.

Plaintiff received a final extension of time, to March 7, 2022, to submit an

amended complaint after reporting that he had been infected with the virus that

causes COVID-19. See ECF Nos. 60-61. Around the same time, however, Plaintiff

submitted repeated filings to the Court indicating that he was concerned about this

safety due to unrelated events at Menard Correctional Center. See ECF Nos. 58-59,

63-64. The Court continuously reminded Plaintiff that its having granted his

requests for additional time to submit a proposed amended complaint did not

constitute a finding that that pleading ultimately would be timely. See, e.g., ECF No.

55 at 1-2; ECF No. 59 at 2.; ECF No. 64. Even when Plaintiff submitted his second

amended complaint, he seemed to indicate that he just chose a lieutenant off the

employee roster and was unsure whether Lt. Simmons was actually the officer who

allegedly battered him. See Pl.’s Second Am. Compl. 30, ECF No. 68.

The Court recounts this lengthy litigation history because it amply

demonstrates that Plaintiff has not met his burden to demonstrate that he diligently

pursued his claim.

Plaintiff accuses Defendant of “obfuscating and abusing the process,” because

prison officials allegedly failed to: (1) investigate his emergency grievance submitted

August 6, 2019; (2) preserve video surveillance footage of the incident that occurred

on July 31, 2019; and (3) provide Plaintiff with an employee roster before they were

ordered to do so by the Court. See Pl’s Resp. to Def.’s Mot. to Dismiss 2, ECF No. 77.

Defendant’s failure to investigate an emergency grievance that admittedly was

not submitted through the proper channels or to preserve video surveillance footage

as requested in that grievance does not provide a basis for tolling the statute of

limitations given that there were other avenues of discovery available to Plaintiff that

he did not use to discover officer’s name.3

When the Court issued its screening order on November 27, 2019, directing

Plaintiff as to how to proceed against the then-unnamed lieutenant, almost the

entirety of the statute of limitations remained. Allowing Plaintiff to proceed against

a nominal Defendant and instructing him as to the steps he needed to take to identify

the officer who allegedly used improper force against him was consistent with the

Seventh Circuit’s instructions that the Court should assist the Plaintiff in identifying

the proper parties to a lawsuit. See, e.g., Bryant, 746 F.3d at 244 (pro se prisoner

should be given “latitude and assistance” in seeking names of unidentified parties);

Donald v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 554 n.1 (7th Cir. 1996) (district

court must consider difficulties posed by incarceration in regard to investigation of

unidentified parties); Billman v. Indiana Dep’t of Corr., 56 F.3d 785, 789–90 (7th Cir.

1995) (district court must assist pro se prisoners, within reason, in making

investigation of proper defendants).

Despite the Court’s instructions, Plaintiff did not at that time (or any time

after) submit interrogatories seeking the identity of this officer. That the Court

3 Plaintiff does not specifically invoke the doctrine of equitable estoppel, which applies

when a defendant takes active steps to prevent the plaintiff from bringing a timely

lawsuit. See Franklin v. Warmington, 709 F. App’x 373, 375 (7th Cir. 2017)

(unpublished). To invoke equitable estoppel, a plaintiff must not only show

misconduct by defendants, but that he reasonably relied on the misconduct. Ashafa

v. City of Chicago, 146 F.3d 459, 463 (7th Cir. 1998). Even if the failure to preserve

or turn over the video to Plaintiff could somehow be deemed wrongful, it would not

be reasonable for Plaintiff to rely on this as a reason to delay filing suit, given the

other discovery methods available to him.

eventually ordered defense counsel to provide the employee roster to Plaintiff in an

effort to move this case along does not excuse Plaintiff’s earlier failure to act. Plaintiff

knew how to contact defense counsel, as demonstrated by him having reached out to

her to make a settlement demand. Courts have observed that “identifying the

individual officers who would be proper defendants in Section 1983 prisoner litigation

can be a challenging and time-consuming task for all involved.” Barwicks v. Dart,

No. 14 C 8791, 2016 WL 3418570, at *5 (N.D. Ill. June 22, 2016). Because of this, “it

is imperative that the plaintiff also help himself by filing his lawsuit as promptly as

possible and then expeditiously engaging in the give-and-take that often is necessary

to identify the proper defendant officer from among the hundreds of employees who

work at the facility where the plaintiff is incarcerated.” Id. at *6. Plaintiff did not do

so here.

Plaintiff also argues that the COVID-19 pandemic prevented him from

amending his complaint sooner. See Pl.’s Resp. to Def.’s Mot. to Dismiss 3, ECF No.

77. He states that he contracted the virus in May 2020 and had to be quarantined.

Id. He further states that the virus “shut down prisons, courtrooms, etc.” Id. He

asserts that Stateville Correctional Center was on “level one lockdown” for more than

a year and “the courthouses were shut down, especially for cases that were not

deemed necessary like Plaintiff[’s].” Id.

To be clear, the District Court Clerk’s Office in Chicago remained open

throughout the pandemic, and at no time stopped accepting pleadings.4 Courts have

4 The Court’s first General Order in relation to the pandemic, entered on March 12,

explained that “the mere existence of the coronavirus pandemic does not warrant

equitable tolling.” Coffey, 2022 WL 1404750, at *2 (collecting cases). Rather, Plaintiff

must demonstrate how “disruptions and delays due to COVID-19 prevented him from

filing” a timely pleading. United States v. Washington, No. 20 C 50300, 2021 WL

2222609, at *3 (N.D. Ill. June 2, 2021); see also United States v. Henry, No. 20 C 1821,

2020 WL 7332657, at *4 (W.D. Pa. Dec. 14, 2020) (indicating that a movant must

show a “nexus” between COVID-19 and “failure to timely file his motion” for equitable

tolling to be warranted).

While Plaintiff states in his response that he contracted COVID-19 in May

2020 and filed a document with the Court indicating that he contracted the virus in

January 2022 (after the statute of limitations expired), Plaintiff has not

demonstrated how these unfortunate events prevented him from timely filing his

second amended complaint. A review of the docket indicates that Plaintiff was able

to file documents with the Court throughout the pendency of this case, but delayed

both in deciding whether to proceed with this excessive force claim and in taking

necessary steps to identify the officer who allegedly used excessive force against him.

2020, provided in relevant part: “The U.S. District Court for the Northern District of

Illinois shall remain open for all other business. Staff in the Clerk’s Office are

available by telephone, mail will be received, and intake desks remain open for

filings.” United States District Court for the Northern District of Illinois, General

Order 20-0012, In Re: Coronavirus COVID-19 Public Emergency, ¶11, March 12,

2020, available at https://www.ilnd.uscourts.gov/_assets/_documents/_forms/

_clerksoffice/rules/admin/pdf-orders/General%20Order%2020-0012%20-

%20In%20Re%20Coronavirus%20COVID%2019%20Public%20Emergency.pdf

Finally, Plaintiff argues that his second amended complaint should be deemed

timely because the Court granted his motions for extensions of time to submit the

pleading. See Pl.’s Resp. to Def.’s Motion to Dismiss 3, ECF No. 77. But as set forth

above, the Court warned Plaintiff throughout the course of this matter that it had

made no determination that a pleading naming the proper defendant would be timely,

and that he should act quickly to preserve his rights. The statute of limitations is not

extended by an order granting the plaintiff additional time to submit a pleading. See,

e.g., Walker v. Jones, No. 3:19-cv-00445, 2022 WL 4598868, at *4 (S.D. Ill. Sept. 30,

2022).

For these reasons, Defendant’s motion to dismiss is granted. Because the

dismissal is for failure to state a claim, this dismissal counts as a “strike” under 28

U.S.C. § 1915(g). Final judgment will be entered.

If Plaintiff wishes to appeal, he must file a notice of appeal with this Court

within thirty days of the entry of judgment. See Fed. R. App. P. 4(a)(1). If Plaintiff

appeals, he will be liable for the $505.00 appellate filing fee regardless of the appeal’s

outcome. See Evans v. Ill. Dep’t of Corr., 150 F.3d 810, 812 (7th Cir. 1998). If the

appeal is found to be non-meritorious, Plaintiff could be assessed another “strike”

under 28 U.S.C. § 1915(g). If a prisoner accumulates three “strikes” because three

federal cases or appeals have been dismissed as frivolous or malicious, or for failure

to state a claim, the prisoner may not file suit in federal court without pre-paying the

filing fee unless he is in imminent danger of serious physical injury. Id. If Plaintiff

seeks leave to proceed in forma pauperis on appeal, he must file a motion for leave to

proceed in forma pauperis in this Court stating the issues he intends to present on

appeal. See Fed. R. App. P. 24(a)(1).

Plaintiff need not bring a motion to reconsider this Court’s ruling to preserve

his appellate rights. However, if Plaintiff wishes the Court to reconsider its

judgment, he may file a motion under Federal Rule of Civil Procedure 59(e) or 60(b).

Any Rule 59(e) motion must be filed within 28 days of the entry of this judgment. See

Fed. R. Civ. P. 59(e). The time to file a motion pursuant to Rule 59(e) cannot be

extended. See Fed. R. Civ. P. 6(b)(2). A timely Rule 59(e) motion suspends the

deadline for filing an appeal until the Rule 59(e) motion is ruled upon. See Fed. R.

App. P. 4(a)(4)(A)Giv). Any Rule 60(b) motion must be filed within a reasonable time

and, if seeking relief under Rule 60(b)(1), (2), or (3), must be filed no more than one

year after entry of the judgment or order. See Fed. R. Civ. P. 60(c)(1). The time to

file a Rule 60(b) motion cannot be extended. See Fed. R. Civ. P. 6(b)(2). A Rule 60(b)

motion suspends the deadline for filing an appeal until the Rule 60(b) motion is ruled

upon only if the motion is filed within 28 days of the entry of judgment. See Fed. R.

App. P. 4(a)(4)(A)(vi).

ENTERED:

Arnie MN Luthor

Honorable Thomas M. Durkin

United States District Judge

Dated: October 27, 2022

14