# Weis v. Shipley

> District Court, S.D. Illinois · October 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10155627

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** October 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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Amendment and his right to family and attorney contact following his arrest under now-repealed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1 This statute was repealed by P.A. 102-694, § 25, eff.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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10155627. Public record. Not legal advice.