Manskey v. Wiggs

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JASON MANSKEY, )

)

Plaintiff, )

)

vs. ) Case No. 3:16 -CV-01368 -MAB

)

RICHARD WIGGS, STEPHEN JONES, )

JEFFREY STALLINGS, JOHN HOBBS, )

AND JACOB HORN, )

Defendants.

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

Plaintiff Jason Manskey, an inmate in the custody of the Illinois Department of

Corrections (“IDOC”), alleges Eighth Amendment claims against correctional officers at

Shawnee Correctional Center (“Shawnee”) for alleged unauthorized use of force and

failing to ensure Plaintiff received medical care for his resulting injuries (Doc. 6). Now

before the Court is Defendants Hobbs and Horn’s motion for summary judgment and

supporting memorandum (Docs. 101, 102). For the reasons set forth below, the Court

DENIES Defendants’ motion for summary judgment.

PROCEDURAL BACKGROUND

Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. §1983 on December

20, 2016 (Doc. 1), alleging Eighth and Fourteenth Amendment constitutional violations

against officials at Shawnee (Doc. 1). Following a threshold review of the complaint

pursuant to 28 USC § 1915A, Plaintiff was permitted to proceed on two Eighth

Amendment Claims: 1) an Eighth Amendment claim against Correctional Officer Wiggs

and Correctional Officer Jones for using excessive force against Plaintiff on November 14,

2014, and 2) an Eighth Amendment claim against Correctional Officer Wiggs,

Correctional Officer Jones, and Correctional Officer Stalling for using excessive force

against Plaintiff on December 28, 2014 (Doc. 6, p. 4). In this threshold review, entered on

January 11, 2017, the Court instructed Plaintiff that individuals mentioned, but not

specifically named as defendants, would be dismissed without prejudice (Id. at 7). One

of these individuals named, but not included in Plaintiff’s complaint caption, was current

Defendant Hobbs (Doc. 6).

Defendants filed a motion for summary judgment on the issue of exhaustion on

October 19, 2017, and soon after, Plaintiff filed a motion for leave to amend his complaint

on October 24, 2017 to add additional defendants, including Hobbs, and facts (Doc. 33).

Defendants filed a motion to stay the motion for leave, pending the result of the motion

for summary judgment (Doc. 35). The Court conducted a Pavey hearing on November 30,

2017 (Docs. 30, 31, 47). A Report and Recommendation was issued, which the Court

adopted, denying Defendants’ motion for summary judgment for failure to exhaust

administrative remedies (Docs. 49, 53). The Court granted the motion to stay, detailing

that it would decide Plaintiff’s motion to amend after the Report and Recommendation

on the issue of exhaustion was issued (Doc. 51).

Plaintiff was appointed counsel on July 10, 2018 (Doc. 57), and the Court denied,

without prejudice, his motion for leave to amend since he was recently appointed counsel

(Doc. 57). Plaintiff, through counsel, filed a motion for leave to file an amended complaint

on September 20, 2018 (Doc. 68), where Plaintiff requested to both add Defendant Hobbs

and substitute Defendant Horn for Defendant Stallings (Doc. 68). In this motion, Plaintiff

detailed how the claims against both Defendants Hobbs and Horn related back to the

original claims under Federal Rule 15(c)(1)(C). Defendants did not file an objection or

otherwise oppose Plaintiff’s motion to amend, which was then granted on November 16,

2018 (Doc. 71). Plaintiff filed his amended complaint on November 20, 2018 and included

Defendants Hobbs and Horn (Doc. 72). Defendants Hobbs and Horn filed their answer

to the amended complaint on February 4, 2019 (Doc. 88).

Defendants Hobbs and Horn filed their motion for summary judgment on July 8,

2019 (Doc. 101) at the end of the discovery deadline (See docket entry on June 10, 2019

setting discovery due by July 3, 2019). Plaintiff filed his response on August 7, 2019 (Doc.

104).

FACTUAL BACKGROUND

Plaintiff’s claims stem from his experience at Shawnee from approximately

November 2014 through December 2014. On November 14, 2014, Defendants Hobbs,

Wiggs, and Jones allegedly attacked Plaintiff (Doc. 102, p. 2). Plaintiff was taken from his

cell to segregation processing and was thrown onto the ground by Defendant Hobbs

(Doc. 104-1, p. 2). While on the ground, Defendant Wiggs stood on Plaintiff’s forehead

and Defendant Jones held Plaintiff’s arms while Defendant Hobbs punched Plaintiff in

the chest multiple times (Id.).

On December 26, 2014, Defendant Wiggs and other correctional staff allegedly

entered Plaintiff’s cell and threatened to physically attack him (Doc. 72, p. 3). In a

declaration submitted with his response to Defendants’ motion for summary judgment,

Plaintiff details that he was taken from his cell in segregation by a correctional officer he

did not recognize who was not wearing a nametag on December 28, 2014 (Doc. 104-1).

That unnamed correctional officer dragged Plaintiff to segregation processing where the

lights were partially off (Doc. 104-1, pp. 2-3). Plaintiff testified that he was physically

attacked by Defendants Wiggs, Jones, and the unnamed correctional officer for a total of

two to three minutes (Id.). Plaintiff was unable to identify the unnamed correctional

officer because of the lack of lighting in the room and the unnamed correctional officer

was not wearing a nametag (Id. at 3).

Plaintiff testified that between December 29, 2014 and January 3, 2015, he filled out

a grievance regarding the December 28, 2014 incident and placed it in his door while he

was in segregation (Doc. 49, p. 2). Soon after placing it in his door, Defendant Jones ripped

it up (Id.). Plaintiff reported the December 28, 2014 attack to Lauren Oestmann in mental

health, who reported it to internal affairs via email on January 8, 2015 (Doc. 104-2, pp. 4-

5, 8). On or around January 10, 2015, during an internal affairs investigation, Plaintiff

informed internal affairs he had been beaten by Defendants Wiggs, Jones, and Hobbs on

November 14, 2014 and by Defendant Wiggs, Jones, and the unnamed officer on

December 28, 2014 (Docs. 102-2, p. 2; 104-1, p. 3). Internal affairs investigated Plaintiff’s

claims by discussing the matter with Defendant Horn (Doc. 104-3, p. 5). Defendant Horn

stated he was present in segregation on the date and time of the December 28, 2014 attack,

but denied ever becoming physical with Plaintiff (Id.).

Plaintiff filed two grievances with the Administrative Review Board (“ARB”)

about his claims (Doc. 102-1). These grievances were returned to Plaintiff on or around

February 23, 2015 for not following proper grievance procedure (Doc. 102-2). Plaintiff

was instructed to provide responses from his counselor and grievance officer at the

facility level (Id.).

LEGAL STANDARD

Federal Rule of Civil Procedure 56 governs motions for summary judgment.

Summary judgment is appropriate if the movant shows that there is no genuine dispute

as to any material fact and that the movant is entitled to judgment as a matter of law. See

Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7thCir. 2014) (citing FED. R. CIV. PROC.

56(a), see also Accord Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012)). A genuine

issue of material fact remains “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

See also Accord Bunn v. Khoury Enterpr., Inc., 753 F.3d 676, 681-682 (7th Cir. 2014).

In assessing a summary judgment motion, the district court views the facts in the

light most favorable to, and draws all reasonable inferences in favor of, the nonmoving

party. See Anderson, 699 F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011).

As the Seventh Circuit has explained, as required by Rule 56(a), “we set forth the facts by

examining the evidence in the light reasonably most favorable to the non-moving party,

giving [him] the benefit of reasonable, favorable inferences and resolving conflicts in the

evidence in [his] favor.” Spaine v. Community Contacts, Inc., 756 F.3d 542, 544 (7th Cir.

2014). The moving party is entitled to judgment where the non-moving party “has failed

to make a sufficient showing on an essential element of her case with respect to which

she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[A]

complete failure of proof concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Id.

DISCUSSION

In their motion for summary judgment, Defendants Horn and Hobbs argue that

Plaintiff’s claims against them are barred by the applicable two-year statute of limitations.

Additionally, they argue the legal doctrine of relation back under Federal Rule 15(c)(1)(C)

does not apply because there was no mistake as to Defendants Hobbs and Horn’s

identities (Doc. 102, p. 3). Lastly, Defendants argue that Plaintiff should not benefit from

equitable tolling because he has not diligently pursued his claims and there were no

extraordinary circumstances that prevented him from bringing his claims in a timely

manner (Id. at 3).

Plaintiff disagrees, stating that that a number of legal doctrines apply that act as

exceptions to or extensions of the two-year statute of limitations, including relation back,

which Plaintiff has argued in multiple filings since 2018 (Doc. 104). In addition, Plaintiff

argues that Defendants’ arguments as to the appropriate statute of limitations have been

waived since Defendants did not appropriately plead these arguments as affirmative

defenses in their answer to the amended complaint (Doc. 104, pp. 5-6). Plaintiff’s waiver

argument could be determinative of the issues presently before the Court, so the Court

will address that argument first.

I. Waived Statute of Limitations Argument

Plaintiff asserts that Defendants have waived their arguments related to the

applicable statute of limitations because they did not plead it as an affirmative defense as

required by Federal Rule of Civil Procedure 8(c). Therefore, the Court’s analysis as to

Defendants’ arguments should stop there because their motion for summary judgment

should be summarily denied (Doc. 104, p. 5).

Rule 8(c) “requires a defendant to plead a statute of limitations defense and any

other affirmative defense in his answer to the complaint.” Venters v. Cty. of Delphi, 123 F.

3d 956, 967 (7th Cir. 1987). However, the Seventh Circuit has repeatedly held that “delay

in asserting an affirmative defense waives the defense only if the plaintiff was harmed as

a result.” Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005). This harm cannot be

established simply through a showing that the case has progressed significantly. District

Courts and the Seventh Circuit have repeatedly held that as long as a plaintiff has the

opportunity to respond to a statute of limitations argument, even if asserted after the

answer to the complaint, that plaintiff is not prejudiced. Neuma, Inc. v. Wells Fargo & Co.,

515 F.Supp. 2d 825, 849 (N.D. Ill. 2006), citing Curtis, 436 F.3d at 711 (finding no waiver

where defendant raised a failure-to-exhaust defense for the first time on summary

judgment, but plaintiff was able to confront the defense in its response to defendant’s

motion for summary judgment); Blaney v. United States, 34 F.3d 509, 512 (7th

Cir.1994) (rejecting plaintiff's argument that defendants waived a statute of limitations

defense by raising it for the first time in their motion to dismiss); Dresser Indus., Inc. v.

Pyrrhus AG, 936 F.2d 921, 928 (7th Cir.1991) (noting that while defendant’s Statute of

Frauds defense “technically” should have been raised in its answer rather than its motion

for judgment on the pleadings, the defense was not waived where plaintiff was allowed

to respond in an additional memorandum).

Defendants Horn and Hobbs filed their joint answer to Plaintiff’s amended

complaint on February 4, 2019 (Doc. 88) and did not assert their statute of limitations

argument until their motion for summary judgment was filed on July 8, 2019 (Docs. 101,

102). While it would have been preferable for Defendants to plead this argument as an

affirmative defense, failing to assert a statute of limitations argument as an affirmative

defense is “not [always] fatal.” Blaney v. U.S.¸34 F.3d 509, 512 (7th Cir. 1994). Defendants

did not assert this argument for the first time in a reply brief, for example, which would

not have allowed Plaintiff a response. See generally Venters, 123 F.3d. As Plaintiff has had

the chance to respond to Defendant Hobbs and Horn’s statute of limitations arguments,

it is clear that Plaintiff has not been harmed. Accordingly, the Court will examine the

parties’ remaining summary judgment arguments.

II. Applicable Statute of Limitations Period

Both Plaintiff and Defendant agree that a two-year statute of limitations period

applies to the present matter; however, the parties disagree when, exactly, this period

ended and whether it was tolled while Plaintiff exhausted his administrative remedies.

Defendants seem to argue that there are separate timelines for Defendant Hobbs

and Horn. Defendants contend that the claims against Defendant Hobbs accrued on

November 14, 2014. Since Plaintiff did not file his complaint until December 20, 2016,

more than two years after November 14, 2014, he is barred from bringing claims against

Defendant Hobbs (Doc. 102, p. 6). Additionally, Defendants argue that Plaintiff was

instructed by the Court to name Hobbs as a Defendant in its Merit Review Order (Doc.

6). Since Plaintiff did not name Hobbs as a Defendant until much later, which Defendants

argue is an example of Plaintiff affirmatively disregarding the Court’s instructions, his

claims against Hobbs are untimely and barred (Doc. 102, p. 8).

As for Horn, Defendants argue that Plaintiff’s claims against him accrued on

December 28, 2014 (Doc. 102, p. 9). So, while Plaintiff’s complaint was timely as to the

claims against Defendant Horn when it was filed on December 20, 2016 (Doc. 1),

Defendants argue that he is a “John Doe” defendant and the naming of a John Doe

defendant does not toll the two-year statute of limitations (Doc. 102, p. 9). Plaintiff did

not name Defendant Horn as a defendant until November 20, 2018, which is beyond the

two-year statute of limitations. Id.

Plaintiff, on the other hand, argues that the grievance process he utilized tolled the

statute of limitations for all Defendants and that, generally, his claims against both

Defendants Horn and Hobbs are timely. Plaintiff is correct. Defendant Horn’s arguments

that he is a “John Doe” defendant will be addressed in the next section as they are better

suited under the doctrine of relation back.

The applicable statute of limitations period for actions brought pursuant to 42

U.S.C. § 1983 is a state’s period for personal injury torts. See Kalimara v. Ill. Dept. of

Corrections, 879 F.2d 276, 277 (7th Cir. 1989). In Illinois, that period is two years. See Woods

v. Illinois Dept. of Children and Family Svcs., 710 F.3d 762, 765-766 (7th Cir. 2013); 735 ILCS

§ 5/13-202. Determining the exact statute of limitations period is a bit more complicated,

though, as the statute of limitations is tolled while a prisoner exhausts the administrative

grievance process. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013) (citing Johnson v.

Rivera, 272 F.3d 519, 521–22 (7th Cir. 2001)). This Court previously found that Plaintiff

exhausted his administrative remedies through a combination of a formal investigation,

subsequent grievances, and Plaintiff’s consistent informal complaints (Doc. 49, p. 7).

Additionally, while Defendants would prefer that both Hobbs and Horn have different

statute of limitations periods, the Court previously found that while Plaintiff details two

separate incidents in his complaint (one that occurred on November 14, 2014 and one

on December 28, 2014), they are both part of a “continuing violation.” Id. Consistent with

its prior Orders, the Court will continue to analyze Plaintiff’s claims as falling under one

period of time as a continuing violation.1

The Prison Litigation Reform Act (“PLRA”) requires exhaustion of administrative

remedies prior to filing suit under § 1983. 42 U.S.C. § 1997e(a); Pavey v. Conley, 663 F.3d

899, 903 (7th Cir. 2011)). According to the statute, no action shall be brought with respect

to prison conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such

1 The Court explained, in examining Defendants’ motion for summary judgment on the issue of

exhaustion, that while Plaintiff did not file a formal grievance for the November 14, 2014 assault, he did

file a series of formal and informal grievances regarding his treatment as a whole and the December 28,

2014 incident (Doc. 49, pp. 7-8). As Plaintiff also feared retaliation for grieving his treatment, the Court

found that his formal and informal combination of complaints was sufficient to put the prison on notice of

his lawsuit prior to filing. Id. Accordingly, Defendants’ motion for summary judgment on the issue of

exhaustion was denied.

administrative remedies as are available are exhausted. Id. See also Smith v. Zachary, 255

F.3d 446 (7th Cir.2001). The statute of limitations period is tolled while an inmate

attempts to exhaust his administrative remedies as he is required to by the PLRA. See

Johnson v. Rivera, 272 F.3d 519, 521-522 (7th Cir. 2001).

The question, then, is what is the appropriate length of the tolling period during

which Plaintiff is deemed to have been attempting to exhaust his administrative

remedies. Plaintiff detailed previously to this Court that he filled out a grievance

regarding the December 28, 2014 incident at some point between December 29, 2014 and

January 3, 2015 (Doc. 49, p. 2). Plaintiff filled out an emergency grievance addressed to

the Warden shortly after this and then filled out another grievance dated January 26, 2015

(Id. at 3). The Report and Recommendation issued by Magistrate Judge Wilkerson, which

the Court adopted, held that Plaintiff exhausted his administrative remedies through this

series of both formal and informal grievances. It appears that Plaintiff’s last official

grievance was submitted on January 26, 2015 (Doc. 102-1). Plaintiff’s grievances were

returned by the Administrative Review Board on February 23, 2015 (Doc. 102-2). It is

reasonable to assume, then, that the tolling period ended on or around February 23, 2015,

as the record indicates that Plaintiff did not take further action to attempt to grieve the

November and December 2014 assaults after the grievances were returned. Accordingly,

Plaintiff’s original complaint, filed on December 20, 2016, was within the two-year statute

of limitations and is, therefore, timely.

III. Relation Back

It is clear to the Court and the parties that the applicable statute of limitations on

a § 1983 claim in Illinois is two years. E.g., Brown v. Dart, 876 F.3d 939, 940 (7th Cir. 2017).

It is undisputed that Plaintiff added Defendants Horn and Hobbs in an amended

complaint filed on November 20, 2018, approximately two years after his original

complaint was filed on December 20, 2016 and almost four years since the incidents at

issue occurred (Doc. 102). The last outstanding issue, then, is whether the amended

complaint with new claims against Defendant Hobbs and Horn relates back to the

original complaint for purposes of the two-year statute of limitations.

An amended complaint seeking to add new defendants after the two-year

limitations period has expired is time-barred unless, pursuant to Federal Rule of Civil

Procedure 15(c)(1)(C), it relates back to the earlier, timely-filed complaint. In order to

relate back, the claims against the newly-added defendant must arise out of the same

conduct or transaction set forth in the original complaint, and plaintiff must also show

that, within the period provided by Rule 4(m) for serving the summons and complaint,

the newly-added defendant:

(i) received such notice of the action that it will not be prejudiced in

defending on the merits; and

(ii) knew or should have known that the action would have been brought

against it, but for a mistake concerning the proper party's identity.

FED. R. CIV. P. 15(c)(1)(C).

In 2010, the Supreme Court significantly changed the law related to relation back

under Federal Rule of Civil Procedure 15(c)(1)(C). See Krupski v. Costa Crociere S. p. A., 560

U.S. 538 (2010). The Supreme Court’s decision in Krupski v. Costa Crociere S.p.A., “changed

what we and other courts had understood . . . to be the proper standard for deciding

whether an amended complaint relates back to the date of the filing of the original

complaint.” Joseph v. Elan Motorsports Technologies Racing Corp., 638 F.3d 555, 559 (7th Cir.

2011) (citing Krupski, 130 S.Ct. 2485). Courts previously focused on what the plaintiff

knew or should have known regarding the identity of the proper defendant at the time

of filing their original complaint. Joseph, 638 F.3d at 559; see also Krupski, 560 U.S. at 541,

548. Prior to Kruspki, the Seventh Circuit held that the lack of knowledge regarding the

defendant’s identity was not a “mistake” for purposes of relating back – effectively

barring John and Jane Doe cases. See Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 596 (7th Cir.

2006)(citing King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 914 (7th Cir.

2000)); Baskin v. City of Des Plaines, 138 F.3d 701, 704 (7th Cir. 1998). Pre-Krupski, the long-

standing rule was that “[a] plaintiff’s ignorance or misunderstanding about who is liable

for his injury is not a ‘mistake’ as to the defendant’s ‘identity.’” Hall v. Norfolk S. Ry. Co.,

469 F.3d 590, 596 (7th Cir. 2006) (where the plaintiff misunderstood which of two

railroads was liable for his injuries and named the wrong railroad as the defendant, there

was no “‘mistake’ concerning ‘identity’” within the meaning of Rule 15(c); plaintiff

“simply lack[ed[ knowledge of the proper party to sue.”)

Krupski made clear, however, that the focus should instead be on what the

prospective defendant knew or should have known during the Rule 4(m) period. Krupski,

560 U.S. at 548; Joseph, 638 F.3d at 559. “A prospective defendant who legitimately

believed that the limitations period had passed without any attempt to sue him has a

strong interest in repose. But repose would be a windfall for a prospective defendant who

understood, or who should have understood, that he escaped suit during the limitations

period only because the plaintiff misunderstood a crucial fact about his identity.” Krupski,

560 U.S. at 550. Krupski defined mistake broadly as “an error, misconception, or

misunderstanding; an erroneous belief”; “a wrong action or statement proceeding from

faulty judgment, inadequate knowledge, or inattention”; “an erroneous belief”; or “a

state of mind not in accordance with the facts.” Id. at 548 (quoting Black's Law Dictionary

1092 (9th ed. 2009) and Webster’s Third New International Dictionary 1446 (2002)). And

the Court stressed that a plaintiff's knowledge of a party’s existence does not

automatically equate to absence of mistake. Id. at 548, 549. For example, a plaintiff might

know that two parties exist but choose to sue the wrong one based on a misunderstanding

about parties’ statuses or roles in the events that gave rise to the lawsuit. Id. at 548–49. In

that instance, the plaintiff has made a “mistake concerning the proper party's identity”

notwithstanding her knowledge of the existence of both parties. Id. On the other hand,

there is no mistake when the plaintiff “mak[es] a deliberate choice to sue one party

instead of another while fully understanding the factual and legal differences between

the two parties.” Id. at 549.

The parties in the present matter do not contest whether the amended complaint

arises out of the same conduct as detailed in the original pleading (Fed. R. Civ P.

15(c)(1)(C)); rather, the parties disagree about whether Defendants Hobbs and Horn

knew, or should have known, that this action would have been brought against them, but

for Plaintiff’s mistake concerning the proper parties’ identities.

Defendants argue extensively about Plaintiff’s knowledge in their motion for

summary judgment, asserting that Plaintiff did not lack information as to Defendants

Horn and Hobbs’s identities, relying heavily on precedent from before the Krupski

decision in 2010 when the law significantly changed.2 As the Court previously outlined,

the appropriate inquiry is into Defendants’ knowledge of the claims and if they knew

that this action would have been brought against them absent a mistake by the Plaintiff,

not Plaintiff’s knowledge or mindset. Plaintiff argues that Defendant Hobbs had

knowledge of this lawsuit as he was named in Plaintiff’s original complaint (Doc. 1) and

that Defendant Horn knew, or should have known, within the Rule 4(m) time period (90

days from when the complaint is filed) of this lawsuit (Doc. 104).3 Plaintiff is correct.

A. Defendant Hobbs

It is clear from the record that Defendant Hobbs knew, or should have known

(within the Rule 4(m) period), that but for Plaintiff’s error, this action would have been

brought against him. All of the Defendants are represented by the Attorney General’s

office. Plaintiff named Defendant Hobbs in his original Complaint and details how

Defendant Hobbs participated in the attack by punching him in the chest multiple times

(Doc. 1, p. 5). Although Plaintiff detailed his interactions with Defendant Hobbs and

claims against him, he did not include him in the caption; therefore, the Court dismissed

Defendant Hobbs in its threshold Order (Doc. 6, p. 7). As Plaintiff was proceeding pro se

at that time, this appears to be the mistake of someone unfamiliar with the legal system.

2 For example, Defendants argue, “The Seventh Circuit has also held that a plaintiff’s lack of knowledge

about a defendant’s identity is not a mistake within the meaning of Rule 15(c). See Hall v. Norfolk S. Ry. Co.,

469 F. 3d 590, 596 (7th Cir. 2006); Baskin v. City of Des Plaines, 138 F. 3d 701, 704 (7th Cir. 1998).” See Doc.

102, p. 4.

3 The Complaint was filed on December 20, 2016, so 90 days after that is March 20, 2017.

Defendants argue that because Plaintiff did not add Defendant Hobbs when

instructed to do so by the Court in its Merit Review Order (Doc. 6), he essentially waived

those arguments against Defendant Hobbs. Not so. The record shows that Plaintiff

repeatedly attempted to correct his error, which was originally just a slip of the pen or a

common error of a pro se litigant. Plaintiff filed a motion for leave to add Defendant

Hobbs, which Defendants opposed due to their outstanding motion for summary

judgment on the issue of exhaustion, on October 24, 2017 (Doc. 33). It was not until the

exhaustion summary judgment motion was decided that the Court appointed Plaintiff an

attorney and granted him leave to file an amended complaint. At that time, Plaintiff

added Defendant Hobbs. This timeline demonstrates that Defendant Hobbs likely had

knowledge of this lawsuit and that he would have been included as a Defendant, but for

Plaintiff’s mistake. Accordingly, the claims against Defendant Hobbs relate back to the

original complaint and are timely.

B. Defendant Horn

The analysis for Defendant Horn is less straightforward. Plaintiff contends he was

at a distinct disadvantage in identifying the third correctional officer who participated in

the attack on December 28, 2014 because the attack took place in the dark and the

unknown correctional officer was not wearing a nametag (Doc. 104, p. 14). Plaintiff

thought it was Officer Stallings and, therefore, included his name as a Defendant in his

complaint (Doc. 1). Defendants argue a slightly tangential argument. They assert that

Officer Stallings was not a substitute for Defendant Horn and Defendant Horn was, in

fact, the “unknown fourth correctional officer,” which would mean he was, essentially, a

“John Doe” or unnamed Defendant (Doc. 102, pp. 5-6). Because of that “John Doe” status,

Defendants argue relation back does not apply.

Before the Supreme Court ruling in Krupski, the “mistake” inquiry was simple. The

Seventh Circuit “repeatedly reiterated” that relation back on the grounds of mistake

“does not apply where the plaintiff simply lacks knowledge of the proper defendant,”

applying this standard to both mistakenly named defendants and those named with

placeholders, like “John Doe.” Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 596 (7th Cir. 2006).

It is not clear whether this so-called John Doe rule survived Krupski. The Seventh Circuit

has not directly addressed the impact of Krupski on John Doe defendants and District

Courts have come to differing conclusions. See Sharp v. Keeling, No. 3:16-cv-01083, 2018

WL 1833150 *5 (S.D. Ill. Jan. 5, 2018).4 Defendants argue that John Doe defendants are not

covered under Rule 15(c)(1)(C), and the post-Krupski analysis. And as previously noted,

there are differing conclusions on this issue by district courts, one thing is clear: the

Court’s focus should be on a defendant’s state of mind and knowledge and not the

plaintiff’s, unless it further helps identify the defendant’s state of mind.

Here, the Court must determine whether Defendant Horn knew or should have

known during the Rule 4(m) period that he should have been a party in this lawsuit, but

4 Some district courts within the Seventh Circuit have determined that the John Doe rule did not survive

Krupski. See, e.g., Haroon v. Talbott, No. 16-CV-04720, 2017 WL 4280980, at *7 (N.D. Ill. Sept. 27, 2017). The

Seventh Circuit has continued to recognize and apply the John Doe rule without addressing the potential

implications of Krupski. See Gomez v. Randle, 680 F.3d 859, 864 n.1 (7th Cir. 2012) (suggesting in dicta that

the John Doe rule is still good law); Vance v. Rumsfeld, 701 F.3d 193, 211 (7th Cir. 2012) (Wood, J., concurring)

(same); Flournoy v. Schomig, 418 Fed.Appx. 528, 532 (7th Cir. 2011) (applying John Doe rule and affirming

denial of motion to amend).

for Plaintiff’s mistake. Defendants’ arguments focus, incorrectly, on Plaintiff’s mindset.

Plaintiff argues that his lack of knowledge regarding Defendant Horn’s identity is the

exact type of mistake outlined in Krupski, citing to Brown v. Deleon, 11-cv-6292, 2013 WL

3812093, at *6 (N.D. Ill. July 18, 2013) (“Krupski supports that inadequate knowledge and

lack of full information regarding a defendants’ identity satisfies the mistake requirement

for Rule 15(c)(1)(C)”) (Doc. 104, p. 15).

Plaintiff alleges that Defendant Horn, not Stallings, was working in Plaintiff’s

segregation unit during the December 2014 attack (Doc. 104-3). Plaintiff argues that this

means Defendant Horn knew or should have known he would be party to this lawsuit

were it not for a mistake. At first glance, this appears to be quite the logical leap, because

knowledge of an attack, even if he was involved, does not equate knowledge of a lawsuit.

In defense of his argument, Plaintiff cites to a case out of the Southern District of

New York that found that a defendant had constructive notice of a lawsuit for purposes

of relation back since he was represented by the Attorney General’s office, who

represented all of the defendants in that case (Doc. 104, p. 11, citing Roland v. McMonagle,

No. 12-cv-6331, 2014 WL 2861433, at *4 (S.D.N.Y. June 24, 2014)).5 While not governing

in this Court, it is a persuasive argument as the only way Plaintiff was able to identify

Defendant Horn was when the Attorney General’s office produced the segregation roster

5 This case held that relation back under Rule 15(c)(1)(C) was appropriate based on constructive notice to

the attorney general’s office when it knew or should have known about certain defendants because

plaintiff’s “allegations adequately described the officers whom he intended to sue, even if he was mistaken

as to their names, and placed the AG’s office on notice that it needed to investigate the relevant records to

determine those officers’ identities and prepare a defense”. Id.

for December 28 (Doc. 104-4). It was only then that Plaintiff was able to determine that

Horn, not Stallings, was working that day (Doc. 104, p. 14). Defendants’ counsel

possessed the information, and knowledge, necessary to identify Defendant Horn.

Additionally, Defendants had possession of the Internal Affairs report, which showed

that Defendant Horn was interviewed on January 12, 2015 about the attack on Plaintiff

(Doc. 104-3). Again, while this is not knowledge of the lawsuit, per se, it does show that

Defendants had in their possession materials that would have allowed Plaintiff to identify

the appropriate Defendant and show that at least Defendants’ counsel knew, or should

have known, that Stallings was not present in Plaintiff’s unit on December 28, 2014 and,

therefore, could not have been the appropriate Defendant.

Plaintiff’s arguments are particularly persuasive in light of the procedural posture

of this case, where Plaintiff first asserted arguments regarding the doctrine of relation

back in his motion for leave to amend his complaint, filed on September 20, 2018 (Doc.

68). As argued there, Plaintiff did not learn of the true identity of the Officer who attacked

him on December 28 until he received the segregation roster and Horn and the other

Defendants were listed, but Stallings was not (Doc. 68-5). Plaintiff first attached the roster

and Internal Affairs report to his motion for leave to amend. Defendants did not oppose

that motion. Once in the case, Defendants Horn and Hobbs did not raise these arguments

as affirmative defenses in their answer to Plaintiff’s complaint (Doc. 88). While failure to

assert an affirmative defense is not fatal to a case, failure to do so weakens Defendants’

arguments that the claims brought against them are prejudicial.6

The Supreme Court noted that Krupski’s misunderstanding was “clearly a ‘mistake

concerning the proper party’s identity’” because the plaintiff lacked full information and

knowledge regarding the defendants’ identity. Id. at 555 (emphasis added). Krupski

dictates that substitution of an individual defendant can relate back under Rule 15(c)

when there is a mistake based on inadequate knowledge. Krupsiki, 550 U.S. at 548-549.

There is no mistake, however, when a plaintiff makes a deliberate choice to sue one party

instead of another, fully informed of the factual and legal differences of the parties. Id. at

549. It is clear that here, like in Krupski, Plaintiff made a mistake as to the identification of

Defendant Horn due to circumstances out of his control. Once Plaintiff learned of the

correct Defendants’ identities, he promptly substituted in Defendants Hobbs and Horn.

The record indicates the both Defendants had, or should have had, knowledge of this

lawsuit within the Rule 4(m) period. For the aforementioned reasons, the claims against

Defendants Hobbs and Horn relate back under Rule 15(c) and are, therefore, timely.

IV. Equitable Tolling

The doctrine of equitable tolling excuses an untimely submission if, despite the

plaintiff’s exercise of reasonable diligence, some extraordinary circumstance prevented

him from meeting the prescribed deadline. See Blanche v. United States, 811 F.3d 953, 962

6 Plaintiff makes a compelling argument here as well, stating that this is an older case and all of the

Defendants currently experience the same issues in terms of finding witnesses to provide testimony about

events that occurred in 2014. Defendants Horn and Hobbs are not unique in facing those challenges (Doc.

104, pp. 11-12).

(7th Cir. 2016). The plaintiff bears the burden of establishing both his diligent pursuit of

his claim and the extraordinary circumstances that prevented him from timely filing his

complaint. Id. See also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The bar for obtaining

equitable tolling is high, and the doctrine does not extend to a “garden variety claim of

excusable neglect.” Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990).

Defendants assert that because the doctrine of relation back does not apply,

Plaintiff will likely argue that equitable tolling should apply to cover his claims. As the

Court has already demonstrated that relation back does, in fact, apply here and Plaintiff’s

claims against Defendants are not barred by the statute of limitations, equitable tolling

does not apply to Plaintiff’s claims.

CONCLUSION

For the above-stated reasons, Defendants Hobbs and Horn’s motion for summary

judgment is DENIED. Plaintiff’s claims against all Defendants (Wiggs, Jones, Hobbs, and

Horn) will proceed. The Court will set this matter for a status conference in the near

future to discuss the utility of scheduling a mediation and a final pretrial conference and

jury trial will be set by separate order.

IT IS SO ORDERED.

DATED: November 13, 2020

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge