Weis v. Shipley

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHAEL WEIS, #Y44990, )

)

Plaintiff, )

)

vs. ) Case No. 22-cv-01043-JPG

)

KARI SHIPLEY, )

RYAN JONES, and )

GRANITE CITY, IL POLICE )

DEPARTMENT, )

)

Defendants. )

MEMORANDUM & ORDER

GILBERT, District Judge:

Plaintiff Michael Weis, an inmate at Madison County Jail, brings this civil rights action

pro se pursuant to 42 U.S.C. § 1983. In the Complaint, Plaintiff alleges that he was denied the

right to contact a family member and/or attorney by phone after he was taken into custody at

Granite City Police Department from March 21-23, 2017. (Doc. 1, pp. 1-12). Plaintiff brings a

claim against the defendants for violating his right to due process of law under the Fourteenth

Amendment and his right to family and attorney contact following his arrest under now-repealed

725 ILCS § 5/103-3.1 (Id.). He seeks money damages and injunctive relief.2 (Id. at 7). Because

Plaintiff’s federal constitutional claim is obviously time-barred, the Complaint and this action shall

be DISMISSED with prejudice.

1 This statute was repealed by P.A. 102-694, § 25, eff. Jan. 7, 2022.

2 Plaintiff’s request for injunctive relief against Granite City Police Department is MOOT because he is no

longer in the custody of Granite City Police Department and does not plan to return. “If a prisoner seeking

injunctive relief for conditions of confinement at a particular prison is transferred without a realistic

possibility of return, then his request for relief becomes moot.” Tolentino v. Baker, 679 F. App’x 503 (7th

Cir. 2017); Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011).

Section 1915A requires the Court to screen prisoner complaints to filter out non-

meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a complaint that is legally

frivolous, malicious, meritless, or asks for money damages from a defendant who by law is

immune from such relief must be dismissed. 28 U.S.C. § 1915A(b). At this juncture, the factual

allegations of the pro se complaint are liberally construed. Rodriguez v. Plymouth Ambulance

Serv., 577 F.3d 816, 821 (7th Cir. 2009).

The Complaint

Plaintiff sets forth the following allegations in the Complaint he filed on May 18, 2022

(Doc. 1, pp. 1-12): On March 21, 2017, Plaintiff was arrested and booked by Granite City Police

Department. He remained in custody for two days, until his father bailed him out of jail on

March 23, 2017. In the interim, Defendants infringed on Plaintiff’s right to phone his family

and/or attorney, which he claims is guaranteed by now-repealed 725 ILCS § 5/103-3 and the

Fourteenth Amendment Due Process Clause.

On March 21, 2017, Plaintiff used the telephone on the wall of his holding cell to contact

his father. After only sixty seconds, the call was terminated. Plaintiff requested additional time

and opportunity to contact his father to discuss his need for an attorney. Dispatcher Kari Shipley

informed him that the phone was disabled pursuant to orders from Granite City Police detectives.

On March 22, 2017, Detective Donahey convinced Plaintiff to surrender the pin number

for his cellular phone. Detectives Bastilla and Shulz then issued Miranda warnings and

interviewed Plaintiff. At the end of the interview, Plaintiff was charged with three (3) Class 1

felonies and two (2) Class 2 felonies. He then requested an attorney and received his still-

deactivated cell phone.

On January 29, 2019, Plaintiff filed a motion to suppress evidence obtained by Granite City

Police in Madison County Criminal Case No. 17-CF-325. Judge Knapp heard the motion on

March 13, 2019. Plaintiff testified that his phone was deactivated on March 21, 2017. Shipley

testified that she deactivated the phone in response to orders from the detectives. Plaintiff’s father

testified that he was in the process of telling Plaintiff that he had already retained defense counsel

to represent him when the phone call abruptly ended. (Id.).

Discussion

Based on the allegations summarized above, the Court finds it convenient to designate two

claims in the pro se Complaint:

Count 1: Fourteenth Amendment due process claim against Defendants for denying

Plaintiff access to phone contact with his family and/or counsel from

March 21-23, 2017.

Count 2: Illinois state law claim against Defendants for denying Plaintiff access to

phone contact with his family and/or counsel from March 21-23, 2017, in

violation of now-repealed 725 ILCS § 5/103-3.

Any other claim mentioned in the Complaint but not addressed herein is considered

dismissed without prejudice as inadequately pled under Twombly.3

Count 1

The federal constitutional claim is time-barred. Section 1983 contains no statute of

limitations. See 42 U.S.C. § 1983; Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th Cir. 1998).

The court instead borrows the statute of limitations for personal injury actions from the state where

the alleged injury occurred. Chambers v. Cross, 788 F. App’x 1032, 1033 (7th Cir. 2019) (citing

King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir. 2000)). Plaintiff’s injury

occurred in Illinois. Therefore, the Court looks to Illinois state law for the applicable statute of

3 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which

relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face”).

limitations for this claim. Under Illinois law, a two-year statute of limitations applies to personal

injury claims. 735 ILCS § 5/13-202; Cesal v. Moats, 851 F.3d 714, 721-22 (7th Cir. 2017).

Plaintiff was required to bring suit within two years of his injury. According to the

allegations set forth in the Complaint, Plaintiff’s injury occurred on March 21-23, 2017. He was

thus required to bring suit no later than March 2019. He did not file this action until May 2022,

more than three years after the expiration of this limitations period. The Fourteenth Amendment

due process claim against the defendants is thus time-barred.

A complaint must contain sufficient factual matter, accepted as true, to state a claim for

relief that is facially plausible. O’Gorman v. City of Chicago, 777 F.3d 885, 888-89 (7th Cir.

2015) (citing Twombly, 550 U.S. at 570; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Mann v.

Vogel, 707 F.3d 872, 877 (7th Cir. 2013)). The allegations must be sufficient to raise a right to

relief above the speculative level. Id. (citing Twombly, 550 U.S. at 555). With that said, a plaintiff

can plead himself out of court by setting forth factual allegations that establish he is not entitled to

relief as a matter of law. Id. (citing Hollander v. Brown, 457 F.3d 688, 691 n. 1 (7th Cir. 2006)).

Thus, although a plaintiff is not required to anticipate or overcome affirmative defenses, such as

those based on the statute of limitations, the district court may dismiss the complaint if a plaintiff

alleges facts sufficient to establish a statute of limitations defense. Id. (citing Cancer Fndtn., Inc.

v. Cerberus Capital Management, LP, 559 F.3d 671, 674–75 (7th Cir. 2009)).

The allegations clearly show that Plaintiff brought suit well beyond the applicable two-

year limitations period. Consequently, Plaintiff has pleaded himself out of court by setting forth

facts that establish that his claim is time-barred. Accordingly, Count 1 shall be dismissed with

prejudice.

Count 2

This court’s jurisdiction over the state law claim in Count 2 is conferred by 28 U.S.C.

§ 1367(a). But, once a district court dismisses all claims over which it has original jurisdiction,

such as Count 1 above, the court has discretion to retain jurisdiction over the supplemental claims

or to dismiss them. 28 U.S.C. § 1367(c)(3); Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140

F.3d 716, 717 (7th Cir.), cert. denied, 525 U.S. 870 (1998). Typically, a district court dismisses

the pendant state claim. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988). Given

the dismissal of the federal claim in Count 1, this Court declines to exercise supplemental

jurisdiction over the pendant state law claim in Count 2 and shall dismiss it for lack of jurisdiction.

Disposition

IT IS ORDERED that the Complaint (Doc. 1) is DISMISSED with prejudice. COUNT 1

is DISMISSED with prejudice because the claim is time-barred, and COUNT 2 is DISMISSED

without prejudice for lack of jurisdiction. Because no other claims remain pending, the entire

action is DISMISSED with prejudice. If Plaintiff wishes to appeal this dismissal, his notice of

appeal must be filed with this Court within thirty days of the entry of judgment. FED. R. APP. P.

4(a)(1)(A). A motion for leave to appeal in forma pauperis should set forth the issues Plaintiff

plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he

will be liable for the $505.00 appellate filing fee irrespective of the outcome of the appeal. See

FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2). Moreover, if the appeal is found to be

nonmeritorious, Plaintiff may also incur a “strike” under 28 U.S.C. § 1915(g). A proper and timely

motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline.

FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more than twenty-eight (28) days

after the entry of the judgment, and this 28-day deadline cannot be extended.

The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.

IT IS SO ORDERED.

DATED: 10/19/2022 s/J. Phil Gilbert

J. PHIL GILBERT

United States District Judge