Thompson v. Uldrych
| Decision Date | 12 March 1986 |
| Docket Number | No. 84 C 10372.,84 C 10372. |
| Citation | 632 F. Supp. 279 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | George THOMPSON, Plaintiff, v. Rudy ULDRYCH, et al., Defendants. |
George Thompson, pro se.
Robert J. Dargis, Asst. Corp. Counsel, Chicago, Ill., for defendants.
Defendant Rudy Uldrych moves to dismiss count II of plaintiff George Thomas' complaint because he did not file a timely notice of claim upon defendant as required under Ill.Rev.Stat. ch. 85, ¶¶ 8-102 and 8-103.1 Since plaintiff is a prisoner, which tolls the notice provision, the motion is denied.2
Plaintiff seeks to hold three Chicago police officers responsible for injuries he maintains that he suffered during an arrest. For purposes of a motion to dismiss, this court takes all of the facts alleged in the complaint as true. A security guard called the defendants to a Jewel store where plaintiff was being held. Plaintiff was handcuffed and held in a rear room for the alleged attempted robbery of one Ms. Muzzell. When defendants entered the room the security guard removed the handcuffs and one of the defendants then handcuffed plaintiff.
Plaintiff claims that while he was restrained the husband and son of Ms. Muzzell entered the room, identified themselves and spoke to defendants about several police officers they knew in common. While defendants were present in the room, plaintiff states that defendants allowed Mr. Muzzell to threaten him and beat him continuously for twenty to twenty-five minutes.
Further, plaintiff alleges that defendants did not interfere with the beating. Rather, during the beating defendants asked plaintiff for information about drug sales and unsolved street crimes. Then defendants placed plaintiff in an unmarked police car and drove him through the West Side of Chicago. The officers again asked plaintiff for information about street crimes and threatened him with further punishment by Mr. Muzzell if he did not offer any additional information or give the police officers any names. Plaintiff says that he gave the police the name of someone he knew was in jail at the time.
After the drive through the neighborhoods the police took plaintiff to the 11th District Police Station. There he was allegedly told, before leaving the car, that if he told anyone about the beating by Mr. Muzzell he would not be alive to attend court the following day. Plaintiff claims that he did not receive any medical treatment for his injuries until the next evening at Cook County Jail. He did not tell anyone of the incident until an interview with Maurice Ford of the Office of Professional Standards of the Chicago Police Department.
Plaintiff's complaint, filed pro se, alleges two counts. The first count, which is not at issue for purposes of this motion, is an action under 42 U.S.C. § 1983 for violation of plaintiff's constitutional rights. Count II is a pendent state law claim for assault and battery, as well as for a violation of the regulations of the Chicago Police Department with respect to the lawful use of force. The count alleges that the defendants allowed the plaintiff to be beaten and severely assaulted while the plaintiff was physically restrained and in defendants' care and custody.
Defendant Uldrych seeks to dismiss count II of plaintiff's complaint because he did not comply with the notice provisions of the Illinois Governmental Tort Immunity Act. Unless otherwise tolled, a notice must be filed with the clerk of a municipal body within one year of the injury. Ill.Rev. Stat. ch. 85, ¶ 8-102. In order for a claim against that body to be valid, the notice must contain specific information about the claim such as the date, time, location, and general nature of the accident or injury. Plaintiff did not mail by registered or certified mail or personally file a written signed notice of his injury with the City Clerk of the City of Chicago.
The notice provisions of the Illinois Governmental Tort Immunity Act were intended to provide for the timely investigation and settlement of tort claims against local municipal bodies and their employees. See King v. Johnson, 47 Ill.2d 247, 265 N.E.2d 874 (1970). Frequently Illinois courts have strictly construed the notice requirements, dismissing complaints where the notice contained typographical errors, Smith v. City of Chicago, 92 Ill.App.3d 247, 416 N.E.2d 20, 48 Ill.Dec. 125 (1st Dist.1980); for failure to include plaintiff's address in the notice, Ramos v. Armstrong, 8 Ill.App.3d 503, 289 N.E.2d 709 (3d Dist.1972); where notice was not properly served on the City Clerk, People ex rel. Department of Transportation v. City of Chicago, 36 Ill. App.3d 712, 344 N.E.2d 688 (1st Dist.1976); or where the notice was served on the wrong municipal office, Repaskey v. Chicago Transit Authority, 60 Ill.2d 185, 326 N.E.2d 771 (1975).
In a recent decision following Illinois law and strictly construing the requirements of the Illinois Governmental Tort Immunity Act, Judge Aspen dismissed a pendent state law claim because the plaintiff there had failed to comply with the service of notice provisions. Cain v. City of Chicago, 619 F.Supp. 1228 (N.D.Ill.1985). In reaching its decision, the court felt bound to strictly construe the Illinois Governmental Tort Immunity Act, as it had in Mui v. Dietz, 559 F.Supp. 485 (N.D.Ill.1983). In Mui, the court also granted a defendant's motion to dismiss a pendent state law claim for false arrest, malicious prosecution and assault and battery, when the plaintiff served the required notice on the Police Department instead of the City Clerk. Cain, 619 F.Supp. at 1232.
Plaintiff, however, argues that he should be excused from strict compliance with the notice provision because he is a prisoner. Indeed, he has been in confinement continuously since the cause of action accrued. This court finds no Illinois case directly on point, but in analogous situations Illinois courts have agreed with him.
First, Illinois courts have construed the notice provision at issue here as a statute of limitations. Girman v. County of Cook, 103 Ill.App.3d 897, 431 N.E.2d 1291, 59 Ill.Dec. 534 (1st Dist.1981). Its context indicates that it is. The paragraph which immediately precedes the notice provision, Ill.Rev.Stat. ch. 85, ¶ 8-101, is a maximum two-year limitation period for any action brought against a local entity. In Girman, the plaintiff's action against an Illinois county had been timely filed under paragraph 8-101, but he had never served the county with the notice required by paragraph 8-102. The court held that the notice provision is a statute of limitations. The same factors which would toll a statute of limitations would also excuse a failure to give paragraph 8-102 notice. Girman, 103 Ill.App.3d at 898, 431 N.E.2d at 1292, 59 Ill.Dec. at 535. See also Haymes v. Catholic Bishop of Chicago, 33 Ill.2d 425, 211 N.E.2d 690 (1965).
Tolling provisions are an essential part of a limitations scheme. See, e.g., Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). They exist because "justice would not be served by barring an individual from vindicating his rights when he cannot by his own actions comply with the statute's time limit for bringing his suit." Hurst v. Hederman, 451 F.Supp. 1354, 1354 (N.D.Ill.1978) (). See also Duncan v. Nelson, 466 F.2d 939 (7th Cir.1972) ().
Many jurisdictions have tolled their statutes of limitations for prisoners. Since the state has restricted a prisoner's liberty, he cannot by his own actions comply with all the procedural requirements for a lawsuit. For example, Illinois prisoners who bring federal civil rights actions under 42 U.S.C. § 1983 are excused from the notice provisions of the Illinois Governmental Tort Immunity Act as a matter of federal law. Luker v. Nelson, 341 F.Supp. 111 (N.D.Ill. 1972); see also Firestone v. Fritz, 119 Ill. App.3d 685, 456 N.E.2d 904, 75 Ill.Dec. 83 (2d Dist.1983); Tedder v. Fairman, 93 Ill. App.3d 948, 418 N.E.2d 91, 49 Ill.Dec. 447 (4th Dist.1981) ().
Illinois is a jurisdiction that tolls its statutes of limitations for prisoners. Ill.Rev. Stat. ch. 110, ¶ 13-211 tolls limitation periods for minors, those legally disabled, and those...
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Hunt v. Jaglowski, 85 C 1976.
...of ¶ 8-102 does not bar plaintiff's suit. See Duncan v. Nelson, 466 F.2d 939, 941-42 (7th Cir.1972); Thompson v. Uldrych, 632 F.Supp. 279, 281-82 (N.D. Ill.1986) (Moran, J.). The motion to dismiss is denied with respect to Counts CONCLUSION Count II is dismissed by agreement of the parties.......
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...action within two years after the disability is removed. Hurst v. Hederman, 451 F.Supp. 1354 (N.D.Ill. 1978). See also Thompson v. Uldrych, 632 F.Supp. 279 (N.D.Ill.1986). Plaintiff herein was not incarcerated from the date his cause of action accrued and therefore cannot take advantage of ......