Doe v. Bobbitt

• Decision Date: 04 November 1988
• Docket Number: No. 85 C 7104.,85 C 7104.
• Parties: Brenda DOE, in her own proper person and as next best friend of Michelle Doe, Plaintiff, v. Booker BOBBITT, Shirley A. Dukes, Devorah Roberts, and Barbara Ullman, Individually and as employees of the Illinois Department of Children and Family Services, Defendants.
• Court: U.S. District Court — Northern District of Illinois

698 F. Supp. 1415

Brenda DOE, in her own proper person and as next best friend of Michelle Doe, Plaintiff, v. Booker BOBBITT, Shirley A. Dukes, Devorah Roberts, and Barbara Ullman, Individually and as employees of the Illinois Department of Children and Family Services, Defendants.

No. 85 C 7104.

United States District Court, N.D. Illinois, E.D.

November 4, 1988.

COPYRIGHT MATERIAL OMITTED

John P. DeRose, Chicago, Ill., for plaintiff.

Paula Giroux, Illinois Atty. Generals' Office, Chicago, Ill., for defendants.

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

This is the second round of motions to dismiss this case involving the alleged wrongful acts of certain employees of the Illinois Department of Children and Family Services ("DCFS"). Brenda and Michelle Doe assert that as a result of these acts, Michelle Doe suffered physical and sexual abuse at the hands of her relatives. The DCFS employees have moved to dismiss the Does' Second Amended Complaint on a variety of grounds; their thrust is that the Does have not stated claims upon which this court can grant relief.

The facts of this case are essentially the same as those outlined in this court's earlier opinion. See Doe v. Bobbitt, 665 F.Supp. 691 (N.D.Ill.1987). The Does' Second Amended Complaint differs from their original complaint in many ways, principally in the addition of DCFS employees Devorah Roberts, Barbara Ullman, and Shirley Dukes.¹ The Does have also pared their claims to three: Count 1, a claim under 42 U.S.C. § 1983 (1982) to redress violations of the Does' constitutional rights; Count 2, a claim under Illinois law for battery; and Count 3, a claim under Illinois law for intentional infliction of emotional distress.

Roberts, Ullman, and Dukes assert that the statute of limitations bars all three of these claims. Section 1983 does not contain a limitation on actions, but the Supreme Court in Wilson v. Garcia, 471 U.S. 261, 275-79, 105 S.Ct. 1938, 1946-48, 85 L.Ed.2d 254 (1985), determined that the federal district courts should borrow the limitations period for personal injury actions set by the state in which the court sits. Since Wilson created problems regarding its retroactive application, the Seventh Circuit construed Wilson in cases where a federal court must borrow Illinois law as barring all § 1983 claims filed within the shorter period of either five years of the accrual of the cause of action or two years after Wilson was decided, if the cause of action accrued prior to Wilson. See Anton v. Lehpamer, 787 F.2d 1141, 1146 (7th Cir.1986). Roberts, Ullman, and Dukes assert that Michelle's injuries occurred in February 1984, prior to Wilson. They contend that Anton thus dictates that the Does had to file their Second Amended Complaint prior to April 17, 1987 — two years after the decision in Wilson. The Does filed their Second Amended Complaint on September 6, 1988.

This argument contains a few flaws. First, under Ill.Rev.Stat. ch. 110, ¶ 13-211 (1983), Illinois' two-year limitation for personal injury claims contained in id., ¶ 13-202, does not apply to Michelle, since she is presently 15 years of age. Paragraph 13-202 bars some of Brenda's claims, however. Brenda argues that this court should relate her claims against Roberts, Ullman, and Dukes back in time to her original complaint, under the provisions of Rule 15(c), Fed.R.Civ.P. She contends that her claims against Roberts, Ullman, and Dukes arose out of the same transaction described in her original complaint, and that her naming of "Unknown Employees of the Department of Children and Family Services" in that complaint, see Doe, 665 F.Supp. at 691, notified Roberts, Ullman, and Dukes of her claims against them. The Seventh Circuit has held, however, that such pleading does not constitute proper notice under Rule 15(c), and that, moreover, Rule 15(c) is available only to those who demonstrate their failure to include a party stemmed from a mistake in identity. See Wood v. Worachek, 618 F.2d 1225, 1229-30 (7th Cir.1980).

Brenda makes one additional argument, however, that will enable her to save one of her claims from the statute of limitations. Brenda and Michelle filed their original complaint in this matter on August 14, 1985. They filed their first amended complaint on January 22, 1986. The two DCFS employees named in the suit at that time, Gary Morgan and Booker Bobbitt, moved to dismiss this complaint on March 4, 1986, and obtained a stay of discovery pending this court's ruling on their motion. Morgan and Bobbitt were represented by Assistant Illinois Attorney General Paula Giroux.

This court ruled on some of the issues presented in the motions to dismiss on July 30, 1987. See Doe, 665 F.Supp. at 691. The Does moved to commence discovery in October 1987, but at the urging of the defendants this court denied the Does' motion on November 5, 1987, pending the court's ruling on matters left unresolved in its July decision. This court completed its consideration of the motions to dismiss on March 23, 1988. See Doe v. Bobbitt, 682 F.Supp. 388 (N.D.Ill.1988). The Does then began discovery, which they claim led to the addition of Roberts, Ullman, and Dukes in their Second Amended Complaint.

Brenda Doe submits that because Morgan and Bobbitt obtained a stay that prevented discovery of facts that implicated Roberts, Ullman, and Dukes — their colleagues at DCFS — this court should tack the period the stay was in effect to the limitations period. Such a move would extend the filing deadline of April 17, 1987 by nearly two years, and thus preserve Brenda's § 1983 claims against Roberts, Ullman, and Dukes from the statute of limitations. This argument suffers, however, from a few factual defects. According to the Second Amended Complaint, Roberts and Ullman violated Brenda's constitutional rights by failing to heed Brenda or Michelle's warnings. See Second Amended Complaint, ¶¶ 19, 23, 44(e)-(f). Brenda did not need to engage in discovery to sue Roberts or Ullman within the limitations period, since she knew she had spoken to them. Even if Brenda did not know to whom she spoke, she could have alleged enough facts (telephone numbers, dates, and the like) to have notified Roberts and Ullman that she would name them in this suit eventually.

Not so for Dukes. Brenda's charges against Dukes stem from Dukes's role as Bobbitt's supervisor. See id. at ¶¶ 37(b), 37(f), 37(h), 40. Brenda would not have known the identity of Bobbitt's supervisor or her role in this matter without discovery, and thus this court must respond to Brenda's request to extend the limitations period by the length of the period of the stay of discovery. Under Illinois law, a statute of limitations runs unless another statute provides for tolling. See Ill. Bell Telephone Co. v. Allphin, 60 Ill.2d 350, 356, 326 N.E.2d 737, 741 (1975). The only Illinois common-law exception to this is the discovery rule, which will not aid Brenda in this case. See Knox College v. Celotex Corp., 88 Ill.2d 407, 414-17, 58 Ill.Dec. 725, 728-29, 430 N.E.2d 976, 979-80 (1981) (discovery rule postpones the starting of the period of limitations "until the injured party knows or should have known of his injury"); Hames v. Northern Illinois Gas Co., 70 Ill.App.3d 628, 629, 27 Ill.Dec. 164, 165, 388 N.E.2d 1127, 1128 (1979) (discovery rule does not extend to situations "where the undetermined fact is not the existence of the injury, but rather the identity of the tortfeasor").

If Brenda wishes to preserve her claims against Dukes from the statute of limitations, she must do so with the help of another statute. One such statute is Ill. Rev.Stat. ch. 110, ¶ 13-216, which provides: "When the commencement of an action is stayed by injunction, order of a court, or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action." This statute will save Brenda's claims against Dukes from the Illinois statute of limitations. Admittedly, this court's stay of discovery in and of itself did not prevent Brenda from filing any claim against Dukes. When coupled with Rule 11, Fed.R.Civ.P., however, the stay worked to prohibit such a filing. Rule 11 requires the signer of every pleading to certify "that to the best of the signer's knowledge, information, and belief found after reasonable inquiry it is well grounded in fact...." Had Brenda filed a complaint against Dukes on a mere hunch, Dukes (through her attorney Giroux, who is the same attorney who helped the other DCFS defendants obtain the stay of discovery in this case) could have moved for sanctions under Rule 11. Caught between a statute of limitations and Rule 11, Brenda properly waited until this court lifted the stay of discovery, discovered facts implicating Dukes, then amended her complaint.

This court thus holds that while the statute of limitations bars Brenda's claims against Roberts and Ullman, it does not bar her claims against Dukes. Dukes thus joins Bobbitt in asserting that Brenda has stated no claims under the Due Process Clause of the Fourteenth Amendment and the Ninth Amendment to the Constitution. Brenda does not dispute the defendants' observation about her Ninth Amendment claim, but she insists that the defendants denied her due process by ignoring her warnings that Michelle's placement home was dangerous. Under the Due Process Clause, however, Brenda's interest in Michelle's placement gave her a right only to "fundamentally fair procedures." See Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982). According to Santosky, a state's chosen procedures are "fundamentally fair" when they achieve a proper balance among the private interests affected by the proceeding, the risks of error from a state's chosen procedure, and the countervailing governmental interests supporting use of the procedure.

The problem with assessing Brenda's due process claim is...