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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN LISLE, JR. (R40159), )
)
Plaintiff, )
vs. ) Case #3:16-CV-00422-NJR-DGW
)
KIM BUTLER, et al., ) The Honorable Judge Nancy J. Rosenstengel
) Magistrate Judge Donald G. Wilkerson
)
Defendants. ) Jury Demanded
DEFENDANTS JODY HORMANN AND JANNA SOUTH’S REPLY BRIEF IN
SUPPORT OF THEIR MOTION TO STRIKE OR IN THE ALTERNATIVE MOTION
TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT
NOW COMES the Defendants, JODY HORMANN (hereinafter “Hormann”), and JANNA
SOUTH (hereinafter “South”), by and through their attorneys, BOLLINGER CONNOLLY
KRAUSE, LLC, and pursuant to Federal Rule 12(b)(6), reply to Plaintiff’s response to Defendants’
Motion to strike, or in the alternative, dismiss Plaintiff’s Second Amended Complaint (Dkt. 61).
Defendants understand that reply briefs are discouraged under Local Rule 7.1(c) and should be
filed only in exceptional circumstances. To that end, Defendants file this reply brief due to the
misrepresentations contained in Plaintiff’s response brief (Dkt. 81) regarding the case law relied
upon by Plaintiff. Thus, although discouraged, Defendants request this Honorable Court accept
this reply brief as Defendants contend they are entitled to inform the Court of the
misrepresentations made, and respond to the assertions made by Plaintiff in support thereof. In
support their reply brief, Defendants state as follows:
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I. SUMMARY OF PLAINTIFF’S RESPONSIVE FACTS AND ARGUMENTS
Plaintiff’s response contains irrelevant and misleading information in attempt to keep
Hormann and South as named Defendants in this case. The essence of Plaintiff’s responsive facts
and arguments in Plaintiff’s Response to Hormann and South’s Motion to dismiss is fourfold:
(a) Plaintiff has not added new parties, he has simply named the previously listed John and
Jane Doe Defendants;
(b) The statute of limitations does not bar Plaintiff’s claims;
(c) The relation back doctrine is applicable to avoid Plaintiff’s claims being barred by the
statute of limitations; and
(d) Plaintiff’s have sufficiently plead causes of action against Hormann and South in their
official capacities.
As will be explained below, all of these arguments are meritless and dismissal with
prejudice is required as to all claims against Hormann and South contained in Plaintiff’s Second
Amended Complaint (Dkt. 61).
II. ARGUMENT
a. Plaintiff’s claims against Hormann and South were filed in violation of a Court
order and were waived when he did not list Jane Doe defendants in his First
Amended Complaint
Defendants request this Honorable Court strike the claims against Hormann and South as
they are in direct violation of this Court’s October 11, 2017 Order (Dkt. 55).
Plaintiff cites to Marshall v. H & R Block Tax Services Inc., No. 08-cv-0591-MJR, 2010
WL 3118678, for the proposition that if a motion to strike “does not serve to refine issues and aid
in a more expeditious resolution of [the] matter” then it must be rejected. Marshall 2010 WL
3118678 at *2. However, if the Court examines the text of Marshall, nowhere does the Court
conclude that a motion to strike must be rejected if it doesn’t refine issued and aid an expeditious
resolution. (Emphasis added) See attached Exhibit 1, Marshall v. H & R Block Tax Services Inc.
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Plaintiff’s response misrepresents Marshall’s holding in attempt to bolster his lackadaisical
argument. Regardless of Plaintiff’s misrepresentations, granting Defendants’ motion to strike
would, in fact, refine issues and aid in a more expeditious resolution as it would eliminate two
parties from the case.
Further, Plaintiff’s attempt to add Hormann and South as Defendants in his Second
Amended Complaint (Dkt. 61) is in direct violation of this Court’s October 11, 2017 order (Dkt.
55). In that order, this Court specifically ordered that Plaintiff was not allowed to add any new
Defendants without proper leave of Court under Rule 15. Plaintiff then filed his Second Amended
Complaint (Dkt. 61) without requesting the appropriate leave in direct violation of the Court’s
order (Dkt. 55). Second, even assuming arguendo that this Court is going to entertain a complaint
filed in violation of its Order, Plaintiff has waived his ability to properly name Jane and John Doe
Defendants because Plaintiff’s First Amended Complaint (Dkt. 43) does not list any Jane and John
Doe Defendants which he could then later identify.
Plaintiff, argues in his response brief (Dkt. 81) that he “initially identified Defendants
[Hormann and South] as Jane Doe defendants at the time he filed his initial Complaint.” See
Plaintiff’s Response, Dkt. 81 at § B. Plaintiff then continues to state, “[d]efendants are not newly
discovered parties, whose actions were not present in Plaintiff’s original Complaint. Plaintiff’s
Second Amended Complaint merely substitutes the previously identified John and Jane Does with
their appropriate names.” Id. However, Plaintiff conveniently omits the fact that although certain
newly named parties were added to his Amended Complaint (Dkt. 43), there were no additional
Jane Does listed as potential parties in his Amended Complaint (Dkt. 43). Thus, when Plaintiff
added Hormann and South to his Second Amended Complaint (Dkt. 61), he was adding completely
new parties as there were no Jane Does in his prior pleading who he could later identify.
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Therefore, this Court should strike all claims against Hormann and South in Plaintiff’s
Second Amended Complaint (Dkt. 61) as their addition was waived when Plaintiff filed his
Amended Complaint (Dkt. 43) without any Jane Does; and is also in violation of this Court’s
October 11, 2017 Order (Dkt. 55).
b. Plaintiff’s claims against Hormann and South are barred by the statute of
limitations
Plaintiff argues in his response brief (Dkt. 81) that his newly added claims against Hormann
and South are not barred by the statute of limitations. This argument should fail.
For claims brought under § 1983, the applicable state statute of limitations and tolling rules
for personal injury actions apply, which is two years in Illinois. Devbrow v. Kalu, 705 F.3d 765,
768 (7th Cir. 2013); see also 735 ILCS 5/13-202. For deliberate indifference claims brought under
§ 1983, the cause of action accrues when a person knows his injury and its cause. Devbrow, 705
F.3d at Id. Indeed, “for a § 1983 claim based on medical injury arising from deliberate
indifference, the relevant injury for statute-of-limitations purposes is not the intangible harm to the
prisoner’s constitutional rights but the physical injury caused by the defendants’ indifference to
the prisoner’s medical needs.” Id. at 769. see also White v. Unites States., 2017 U.S. Dist. LEXIS
127140 (S.D. Ill., August 10, 2017)(ruling that the two-year statute of limitations began to run
once Plaintiff was aware of his symptoms of PTSD despite having not been officially diagnosed
with the injury); Davis v. Stephanie, 2016 U.S. Dist. LEXIS 58068(S.D. Ill. May 2, 2016)(ruling
that the statute of limitations begins to accrue “once a plaintiff is in possession of the critical facts
that he has been hurt and who has inflicted the injury”).
“Civil rights claims, therefore, accrue when the plaintiff knows or should know that his or
her constitutional rights have been violated.” See Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir.
1992). A reviewing court should go through the following analysis in determining if claims are
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barred by the statute of limitations: first, the court must identify the injury; and second, it must
determine the date on which the plaintiff could have sued for that injury. “That date should
coincide with the date the plaintiff 'knows or should have known' that his rights were
violated.” Wilson 956 F.2d at 740.
In the instant case, this analysis is completely straight forward. Plaintiff’s entire lawsuit is
centered around his self-induced injury – swallowing a razor blade. Thus, this Court can identify
Plaintiff’s injury as him swallowing the razor blade. Second, Plaintiff states in his Second
Amended Complaint that he swallowed the razor blade on June 17, 2015 and the razor blade exited
his body during a bowel movement on June 26, 2015. Thus, according to Plaintiff’s own pleading,
he knew or should have known that his constitutional rights were (allegedly) violated at some point
during that nine-day span.1 Plaintiff filed his Second Amended Complaint (Dkt. 61) on November
22, 2017. This date is clearly more than two years after June 26, 2015.
Therefore, Plaintiff’s claims against Hormann and South should be dismissed as they are
clearly barred by the applicable statute of limitations.
c. The relation-back doctrine is inapplicable in this case
Under Federal Rule of Civil Procedure 15(c)(1)(C), claims asserted against a newly
identified defendant will relate back only if:
“Rule 15(c)(1)(B) is satisfied and if, within the period provided by
Rule 4(m) for serving the summons and complaint, the party to be
brought in by amendment: (i) received such notice of the action that
it will not be prejudiced in defending on the merits; and (ii) knew or
should have known that the action would have been brought against
it, but for a mistake concerning the proper parties identity.”
1 Defendants are in no way admitting that any party named as a Defendant in Plaintiff’s Second Amended
Complaint (Dkt. 61) committed any actionable violations against Plaintiff.
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See Fed. R. Civ. P. 15(c)(1)(C); see also White v. City of Chicago, No. 14 CV 3720, 2016 WL
4270152, *15 (N.D. Ill. Aug. 15, 2016). In opposition to Defendants’ position that the relation-
back doctrine is inapplicable in the instant case, Plaintiff relies on Krupski.2 In relying on Krupski,
Plaintiff misrepresents in his response brief the practical effect of the Court’s holding in Krupski.
Plaintiff incorrectly asserts that “[t]hese cases, decided after White, reject the application of the
John Doe rule.” See Plaintiff’s Response at Argument § C1. However, the Court in Krupski (and
cases cited by Plaintiff who have applied the Krupski analysis) did not reject the John Doe
application, it simply introduced a new analysis for determining whether the relation back doctrine
applies in certain instances.3 Krupski states that in examining whether to apply the relation-back
doctrine, a reviewing court should examine the knowledge of the unidentified defendants rather
than the knowledge of the plaintiff at the time of filing the operative complaint listing John Doe
defendants. See generally Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010).
Thus, in the instant case, as stated in Defendants’ initial Motion to Dismiss (Dkt.75),
Krupski bolsters Defendants’ argument for dismissal because there is no possible way Hormann
nor South knew or should have known that when Plaintiff filed his initial Complaint (Dkt. 1) they
would be identified as one of the Jane Doe defendants. Plaintiff’s initial Complaint (Dkt. 1) names
nine Jane and/or John Doe defendants. Then in Plaintiff’s First Amended Complaint (Dkt. 43) he
names zero Jane and/or John Doe defendants.4 There are dozens of medical professionals, doctors,
nurses, technicians, and other medical staff who work at Menard Correctional Center. Often times,
these medical professionals and staff will see a patient on a single occassion for a short
2 Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010)
3 Although, as stated by Plaintiff, some courts have adopted the analysis provided in Krupski, many courts have also
rejected its analysis. See Vandenburgh v. Ogden, No. 15 C 6191, 2016 U.S. Dist. LEXIS 12493, 2016 WL 403663,
at *3-4 (N.D. Ill. Feb. 3, 2016)
4 Defendants re-assert their argument that Plaintiff has effectively waived his right to identify any Jane/John Doe
defendants from his initial Complaint (Dkt. 1) as he waived that right by not listing any Jane/John Doe defendants in
his Amended Complaint (Dkt. 43).
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appointment. In order for this Court to apply the relation-back doctrine as laid out in Krupski
under this set of facts, this Court would ultimately be stating that Hormann and South should be
on notice that every patient they’ve ever treated may name them as a defendant in a lawsuit. This
logic is simply unsupported by case law and is not the proposition outlined in Krupski. Further,
Plaintiff, in his response brief (Dkt. 81), points to nothing in his initial complaint which would
have put Hormann or South on notice that they may be later identified as one of the Jane Doe
defendants. Plaintiff can only point to allegations plead in his Second Amended Complaint (Dkt.
61) which he claims to be sufficient. Again, this is not the standard laid out in any of the case law
cited by Plaintiff. There must be facts in the operative pleading (here Plaintiff’s initial Complaint
(Dkt. 1)) sufficient to put potential defendants on notice that they will be identified as the unknown
Jane Doe defendants. There are no facts in Plaintiff’s initial complaint that satisfy this standard as
it applies to Hormann or South.
Therefore, even if this Court chooses to apply Krupski, as plaintiff requests, dismissal of
Hormann and South is still the logical conclusion based on that analysis, as the relation-back
doctrine is inapplicable.
d. Plaintiff has not plead a prima facie case under Monell
Plaintiff has not plead sufficient facts to bring a cause of action alleging constitutional
violations against Hormann and South in their official capacities under Monell.
Plaintiff relies in his response brief (Dkt. 81) on Gevas v. Wexford Health Sources, Inc.,
for the proposition that “[I]t is not impossible for a plaintiff to demonstrate the existence of an
official policy or custom by presenting evidence limited to his experience.” (emphasis added) No.
12-c-1297, 2016 WL 7374222, at *2. What Plaintiff does not mention in his response brief (Dkt.
81) is that although it is not impossible to demonstrate the existence of an official policy or custom
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based on allegations exclusive to an individual plaintiff, it is very difficult. Multiple courts have
recently stated that they will generally dismiss Monell claims that pertain exclusively to the
plaintiff or contain highly speculative and vague allegations. See Hardy v. Wexford Health
Sources, Inc., 2015 U.S. Dist. LEXIS 43411, at *46-47; 12 C 6554 (N.D. Ill. April 2, 2015); Taylor
v. Wexford Health Sources, Inc., No. 15 C 5190, 2016 U.S. Dist. LEXIS 76341, at *13-14 (N.D.
Ill. June 13, 2016) citing Peacock v. Rigsby, No. 15 C 1884, 2016 U.S. Dist. LEXIS 46994, 2016
WL 1383232, at *3 (N.D. Ill. Apr. 7, 2016); see also Young v. Obaisi, 2015 U.S. Dist. LEXIS
163446 at *8-11 (N.D. Ill. Dec. 7, 2015); Davis v. Metro. Pier & Exposition Auth., 2012 U.S. Dist.
LEXIS 91710 at *12 (N.D. Ill. July 3, 2012); Lewis v. County of Cook, 2011 U.S. Dist. LEXIS
18400 at *14 (N.D. Ill. Feb. 24, 2011); Travis v. City of Chicago, 2012 U.S. Dist. LEXIS 90906 at
*5 (N.D. Ill. June 29, 2012).
In the instant case, Plaintiff’s allegations fall squarely within the holdings of the cases cited
above. Plaintiff’s allegations pertain exclusively to him. Additionally, they are vague and tenuous.
Plaintiff’s response brief cites to Paragraph 26 of his Second Amended Complaint (Dkt. 61) for
the proposition that Plaintiff was on a “blackball list” and thus was not receiving medical care.
However, there is nothing in Paragraph 26 alleging anything against Hormann or South. Paragraph
26 contains allegations against IDOC employees Lieutenant Eovaldi, Sergeant Anthony, and
“Menard staff.” Hormann and South are not Menard staff. They are employees of Wexford Health
Sources, Inc.
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Therefore, Plaintiff’s allegations against Hormann and South, without any support from an
expert medical professional5, or without the support of allegations by other inmates, does not pass
muster under Monell and must be dismissed.
III. CONCLUSION
WHEREFORE, for the above reasons, Defendants, JODY HORMANN and JANNA
SOUTH, respectfully request this Honorable Court grant their Motion to Strike, or in the
alternative, Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), with
prejudice, as it pertains to the allegations against them contained in Plaintiff’s Second Amended
Complaint (Dkt. 61), as it improperly adds new parties without leave of court, contains allegations
that are time barred, and does not properly plead a prima facie case under Monell.
Respectfully Submitted,
JODY HORMANN and JANNA SOUTH
By:___/s/ Robert S. Tengesdal
Attorney for Defendants
Robert S. Tengesdal (#6288650)
BOLLINGER CONNOLLY KRAUSE LLC
500 West Madison Street
Suite #2430
Chicago, IL 60661
Ph: (312) 253-6200
5 Although this is not a medical malpractice case, and thus an affidavit of a medical expert is not required, Plaintiff’s
claim from deliberate indifference without any additional support other than his objective feelings that the defendant
medical professionals could have done more is insufficient to pass muster under Monell.
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CERTIFICATE OF SERVICE
I hereby certify that on March 14, 2018, I caused the foregoing document to be filed
electronically with the Clerk of the Court through ECF and to be served upon all counsel of record
by filing the same with the CM/ECF system.
By: _/s/ Robert S. Tengesdal
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