Hunt ex rel. Chiovari v. Dart

• Decision Date: 30 April 2009
• Docket Number: No. 07 C 6003.,07 C 6003.
• Citation: 612 F.Supp.2d 969
• Court: U.S. District Court — Northern District of Illinois
• Parties: Thomas HUNT, deceased, by and through his Supervised Administrator of his estate, Tracy CHIOVARI, Plaintiff, v. Thomas DART, as Sheriff of Cook Michael Sheahan, as Former Sheriff of Cook County, Certain Unknown Cook County Department of Corrections Officers, Certain Unknown Worth Police Department Officers, Village of Worth.

612 F.Supp.2d 969

Thomas HUNT, deceased, by and through his Supervised Administrator of his estate, Tracy CHIOVARI, Plaintiff, v. Thomas DART, as Sheriff of Cook Michael Sheahan, as Former Sheriff of Cook County, Certain Unknown Cook County Department of Corrections Officers, Certain Unknown Worth Police Department Officers, Village of Worth.

No. 07 C 6003.

United States District Court, N.D. Illinois, Eastern Division.

April 30, 2009.

COPYRIGHT MATERIAL OMITTED

Martin A. Dolan, Karen Munoz, Dolan Law Offices, P.C., Laurie A. Niego, Steven K. Jambois, Kralovec Jambois & Schwartz, Chicago, IL, for Plaintiff.

Daniel Francis Gallagher, Dominick L. Lanzito, Lawrence S. Kowalczyk, Terrence Franklin Guolee, Querrey & Harrow, Ltd., Patrick Stephen Smith, Chicago, IL, William W. Kurnik, Krista Eleanore Oswald, Knight, Hoppe, Kurnik & Knight LLC, Rosemont, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, United States Magistrate Judge.

I.

BACKGROUND

Something happened to Thomas Hunt on October 23, 2006 while he was being transported to the Cook County Jail. The Cook County Department of Corrections says that Mr. Hunt suffered a seizure and fell to the ground while he was being processed and booked. (Amended Complaint, at ¶ 15). He was taken to Stroger Hospital and pronounced dead at 8:20 p.m. that evening. (Id. at ¶ 16). An autopsy by the Cook County Medical Examiner's Office concluded that the cause of death was "natural," resulting from intracerebral hemorrhage due to hypertensive cardiovascular disease. (Id. at ¶ 17). But the plaintiff says that wasn't the whole story. A post mortem examination revealed multiple evidences of external and internal injuries, and a CT scan showed extensive brain, nasal, and facial injuries. (Id. at ¶¶ 18-19).

Convinced that these injuries could not have occurred the way the Department of Corrections claimed, Ms. Chiovari filed suit on October 23, 2007 under 42 U.S.C. § 1983 for deprivation of Mr. Hunt's Constitutional rights and added state law claims for wrongful death. She named as defendants, Thomas Dart, Sheriff of Cook County; the Village of Worth; and "Certain Unknown Cook County Department of Corrections Officers and Village of Worth Police Officers." Sheriff Dart argues that the Certain Unknown Cook County Department of Corrections and Police Officers should be stricken from the case— Counts IV and VII—because the claims are now time-barred and that any attempt now to replace the Unknowns with named defendants would be too late. Plaintiff contends that she can amend her complaint to name the officers once she has satisfied herself of their identities, and that the amendment will relate back to the original (timely filed) complaint under Rule 15(c).¹

I.

DISCUSSION

A. The Applicable Statutes of Limitations

The applicable statute of limitations for plaintiffs state law claims is one year. It is found in the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("the Act"), 745 ILCS 10/8-101, which provides that:

(a) No civil action other than an action described in subsection (b) may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued ...

* * *

(c) For purposes of this Article, the term "civil action" includes any action, whether based upon the common law or statutes or Constitution of this State.

Plaintiffs federal claim under § 1983 is governed by a two-year statute of limitations. This limitation period is drawn from Illinois' statute of limitation applicable to personal injury claims. See Fillmore v. Page, 358 F.3d 496, 508 (7th Cir.2004); King, 201 F.3d at 913. Hence, plaintiff had to file her state law claims by October 23, 2007, and her § 1983 claim by October 23, 2008. She filed her complaint on October 23, 2007.

B.

The Doctrine Of Relation Back Of Amendments Under Rule 15(c)

Plaintiff concedes that she has yet to name as defendants the officers she believes may be responsible for her son's death. Nonetheless, she submits that when she does so, Illinois' "relation-back" statute will permit the amendment of her complaint to identify the officers. The applicability of state law in this case is, she contends, allowed by Rule 15(c)(1)(A), which provides that an amendment will relate back to the original pleading if the law that provides the applicable statute of limitations allows relation back. If it does, and if state law is more favorable than the other provisions of Rule 15(c), state law governs. Henderson v. Bolanda, 253 F.3d 928, 932 (7th Cir.2001); DeRienzo v. Harvard Industries, Inc., 357 F.3d 348, 353 (3rd Cir.2004). "The rationale [of Rule 15(c)(1)(A) ] is that if state law `affords a more forgiving principle of relation back than the one provided in [Rule 15(c) ], it should be available to save the claim.'" Henderson, 253 F.3d at 932-33 (quoting advisory committee notes to 1991 amendment to Rule 15(c)).

Rule 15(c)(1)(B) applies when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading, but does not name new defendants. Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir.2008). Rule 15(c)(1)(C) applies where the amendment changes the party or the naming of the party against whom a claim is asserted. It provides that if Rule 15(c)(1)(B) is satisfied and, if within the period provided by Rule 4(m) for serving of summons, the party to be brought in by the amendment received such notice of the action that it will not be prejudiced in defending on the merits, and the party knew or should have known that the action would have been brought against it but for a mistake concerning the proper party's identity when there has been an error as to the identity of the proper party, a new party may be brought into the case and the amendment will relate back to the original complain. See Rule 15(c)(1)(C)(i) and (ii); Arreola, 546 F.3d at 796. But, not knowing a defendant's name is not a "mistake" under Rule 15(c)(1)(C). Jackson v. Kotter, 541 F.3d 688, 696 (7th Cir.2008); Jennis v. Rood, 310 Fed.Appx. 439, 440 (2nd Cir.2009)("Jennis's failure to name the individual defendants was due to a lack of knowledge, not mistake. The district court reasonably concluded that the proposed amendment was futile since the statute of limitations had run and the relation-back doctrine did not apply."); Beightler v. Produkte Fur Die Medizin AG, 2008 WL 4160589, *2 (N.D.Ohio 2008).

Since state law provides the applicable statute of limitations for the federal and state claims in this case, the threshold inquiry is whether Illinois' relation back principles are more favorable to the plaintiff than those in Rule 15(c)(1)(C).² All this seems clear enough, and yet the defendant's reply brief maintains that the state law relation back rule cannot apply to this case under the Erie doctrine. The argument relies on a 1978 case, which was decided 13 years before Rule 15(c) was amended to provide exactly that. (Reply in Support of Motion, at unnumbered page 2). As the Advisory Committee notes to Rule 15(c) point out in regard to the 1991 amendment:

This provision is new. It is intended to make clear that the rule does not apply to preclude any relation back that may be permitted under the applicable limitations law ... [which] [g]enerally ... will be state law.... If Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) implies the contrary, this paragraph is intended to make a material change in the rule.³

Apart from the fact that reply briefs are for replying, not for raising matters that should have been in the opening brief, Hussein v. Oshkosh Motor Truck Company, 816 F.2d 348, 360 (7th Cir.1987) (Posner, J., concurring); United States v. Boyle, 484 F.3d 943, 946 (7th Cir.2007); United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir.2006), the plain language of Rule 15(c)(1)(A) requires that, in cases such as this, a court look to state law to determine the applicability of the relation back doctrine. Given the unambiguous text of Rule 15(c)(1)(A), it is not surprising that case after case has rejected the contention that state relation back principles have no role to play in § 1983 cases or other cases in which state law provides the limitations period. Arendt v. Vetta Sports, Inc., 99 F.3d 231, 236-237 (7th Cir.1996). A sampling of the cases is set forth below.⁴

We turn then to Illinois law to determine whether its relation back principles are more favorable to the plaintiff than those in Rule 15(c)(1)(C). 735 ILCS 5/2-616(d) provides that "a cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if "all the following terms and conditions are met"":

(1) the time prescribed or limited had not expired when the original action was commenced; (2) the person, within the time that the action might have been brought or the right asserted against him or her, plus the time for service permitted under Supreme Court Rule 103(b), received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense on the merits and knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him or her; and (3) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery when the condition...