IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

LAVERTIS STEWART (A-15380) , ) 

 )

Plaintiff, ) 12 C 50273

 )

v. )

 ) Judge Philip G. Reinhard

EVANSTON INSURANCE COMPANY as )

Special Representative for the Estate of )

ANTREAS MESROBIAN; JILL WAHL; )

IMHOTEP CARTER; WEXFORD HEALTH )

SOURCES, INC.; ARTHUR FUNK; JOHN )

DOE TWO; JOHN DOE THREE; JOHN DOE )

FOUR; JOHN DOE FIVE; JOHN DOE SIX; )

JOHN DOE SEVEN; JOHN DOE EIGHT; )

JOHN DOE NINE; JOHN DOE TEN; JOHN )

DOE ELEVEN; JOHN DOE TWELVE; JOHN )

DOE THIRTEEN; JOHN DOE FOURTEEN; )

and JOHN DOE FIFTEEN, )

 )

Defendants. )

ORDER

For the reasons set forth below, plaintiff Lavertis Stewart is ordered to show cause why his

claims in the third amended complaint should not be summarily dismissed pursuant to 28 U.S.C. §

1915(e)(2) for failure to state a claim with regard to Dr. Imhotep Carter, Dr. Jill Wahl, and John

Does Two through Fifteen. Failure to do so will result in summary dismissal of those claims

pursuant to 28 U.S.C. § 1915(e)(2) for the reasons set forth more fully below.

If plaintiff wishes to respond, he must do so by July 27, 2015. Defendants Dr. Carter and

Dr. Wahl are given leave to reply by August 26, 2015. 

STATEMENT - OPINION

Despite being in the early stages of discovery, this case has a complicated procedural history

spanning nearly three years. Upon review of plaintiff’s recently filed third amended complaint

[132] and Dr. Arthur Funk’s motion to dismiss on the grounds that the claims against him are

untimely [148], the court has taken occasion to reexamine plaintiff’s claims in light of that history

pursuant to its continuing screening duty for cases filed in forma pauperis. 28 U.S.C. § 1915(e)(2)

(“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

1
dismiss the case at any time if the court determines that . . . the action . . . is frivolous or malicious;

fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant

who is immune from such relief.”) (emphasis supplied); see also Lasley v. Welborn, 192 F. App’x.

541 (7th. Cir. 2006) (finding that “§ 1915(e)(2) authorized the action taken by the district court” to

screen suit eighteen months after filing and dismiss for failure to state a claim); Holly v. Wexford

Health Services, Inc., 339 F. App’x. 633, 636 (7th Cir. 2009) (court confronted with basis to dismiss

under § 1915(e)(2) “need not wait for a motion to dismiss and can apply [§ 1915(e)(2)] sua sponte”);

Thomas v. General Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002) (because the

conditions of § 1915(e)(2) were satisfied, “the suit had to be dismissed; the judge had no choice”). 

In screening this action, it appears that plaintiff fails to state a claim against Dr. Carter and

Dr. Wahl because the allegations against them in the third amended complaint are untimely and do

not relate back under Rule of Civil Procedure 15(c)(1)(C). Likewise, the allegations against John

Does Two through Fifteen appear either untimely or barred due to the doctrine of law of the case. 

To understand why, a discussion of the procedural history of this case is appropriate.

A. FACTUAL BACKGROUND & PROCEDURAL HISTORY

1. Original Complaint – Filed July 19, 2012.

On July 19, 2012, plaintiff filed his original complaint, alleging a deliberate indifference

claim against Dr. Mesrobian, former medical director of Dixon Correction Center, in his individual

and official capacity, as well as seven John Doe “correctional officers.” [1] at 2, 10 (naming six

John Does in the caption but referring to a “#7 c/o” within the body of the complaint). Plaintiff

alleged that he suffered from carpal tunnel and bursitis/arthritis, which was aggravated and worsened

when the John Doe correctional officers forced him to wear “Black Box” restraints1

 on his wrists

when he was sent from Dixon Correctional Center to the University of Illinois Chicago (“UIC”) for

medical treatment. He alleged that after being forced to wear the Black Box during UIC visits in

December of 2008 by John Doe One, January 27, 2009 by John Doe Two, and March 3, 2009 by

John Doe Three, he complained to Dr. Mesrobian on March 4, 2009, at which time Dr. Mesrobian

agreed to inform the officers not to use the restraints. Nevertheless, plaintiff was again forced to

wear the Black Box during subsequent UIC visits on March 31, 2009, by John Doe Four, and April

22, 2009, by John Doe Five. During the April 22, 2009 visit, plaintiff informed John Doe Five that

Dr. Mesrobian had agreed to order that the Black Box no longer be used. John Doe Five looked

through plaintiff’s “medical writ package” for the UIC visit and found no order. John Doe Five then

contacted the nursing station and was informed that Dr. Mesrobian would not issue such an order. 

As plaintiff did not have a medical order exempting him, John Doe Five made him choose whether

to wear the Black Box or refuse the UIC visit. Because plaintiff believed his condition was life

threatening, he agreed to wear the Black Box despite the pain.

1

Black Box restraints are security restraints that cover handcuff locks. The box forms a rigid link

between an individual’s wrists. 

2
Plaintiff further alleged that despite suffering outward manifestations of injury and meeting

with Dr. Mesrobian on April 24, 2009 to again request a “no Black Box” order, plaintiff was again

forced to wear the Black Box by John Doe Six during a UIC visit on May 5, 2009, during which

John Doe Six informed plaintiff that Dr. Mesrobian had not issued an order. Plaintiff once again

requested an exemption order from Dr. Mesrobian on May 8, 2009, but despite admitting that the

Black Box was “very painful,” Dr. Mesrobian refused to grant plaintiff’s request. [1] at 7-8.

Following Dr. Mesrobian’s last refusal, plaintiff filed a grievance on June 4, 2009. Plaintiff

alleged that “said grievance was not resolved until July 22, 2010, after Dr. Mesrobian was no longer

employed at Dixon Correctional Center[.]” [1] at 9. He further alleged that on July 22nd, the

grievance was forwarded to the Chief of Health Services for review and final recommendation, who

in turn forwarded the grievance to “Dr. Mesrobian’s replacement Dr. [Imhotop] Carter,” who 

reviewed plaintiff’s request and granted plaintiff a six-month “no Black Box” permit. Id. Despite

the temporary relief afforded by Dr. Carter’s permit, plaintiff alleged that “[t]his too has proven to

be problematic because now Dr. Carter is no longer employed at Dixon Correctional Center, and the

‘No Black Box’ permits prescribed by him has expired. Plaintiff informed the new Doctor of his

condition and the need for the ‘No Black Box’ permit, but on or about May 29, 2012 plaintiff was

once again given an ultimatum” by John Doe Seven, after searching plaintiff’s writ package and

finding no permit, to wear the Black Box or refuse his UIC medical appointment. [1] at 9.

Of note, despite being filed pro se, plaintiff’s original complaint set forth the specific actions

and respective dates he contended were violative of his civil rights. Plaintiff did not name Dr. Carter

as a defendant, despite explicitly referring to him as the Medical Director who ultimately replaced

Dr. Mesrobian, and he did not allege any action by Dr. Carter which would constitute deliberate

indifference as to the Black Box restraints. Indeed, the only action regarding the Black Box that Dr.

Carter is alleged to have taken was to grant plaintiff a six-month permit. Plaintiff also did not

specifically allege that he was forced to wear the Black Box during any visits between May 5, 2009

and May 29, 2012. While he did refer to a “new Doctor” who apparently refused to grant him a new

permit at the time of the May 29, 2012 incident, this individual was not named as one of the John

Doe defendants, who plaintiff explicitly referred to throughout the complaint as various corrections

officers.

The court dismissed the claims against Dr. Mesrobian without prejudice, finding that he was

deceased at the time of filing, and afforded plaintiff time to amend his complaint to name a suable

party. [6]. The court also dismissed with prejudice the claims against the John Doe correctional

officers because, according to the complaint, whenever plaintiff complained to them about the Black

Box, they responded by checking whether plaintiff was medically exempt from wearing the Black

Box. The officers only forced plaintiff to choose whether to wear the Black Box or refuse medical

treatment after verifying with his medical providers that an exception for the Black Box restraints

would not be authorized. Thus, they were only following proper procedures and could not be said

to be deliberately indifferent.

3
2. First Amended Complaint – Filed November 16, 2012.

Plaintiff amended his complaint on November 16, 2012, omitting the John Doe defendants,

naming the special administrator for Dr. Mesrobian’s estate (and asking the court to appoint one),

and adding “Dr. Imhotop Carter (in his official capacity only),” as well as the director of the IDOC.

While plaintiff’s first amended complaint was substantially similar to the original, plaintiff clarified

that he was challenging what he believed to be the IDOC’s official policy “of contouring inmates

into the Black Box Restraint [which] serve[s] only one purpose, ‘TORTURE[.]’” [13] at 11. In

addition, despite explicitly naming Dr. Carter “in his official capacity only,” the first amended

complaint also added one sentence of allegations against him: “Dr. Carter was also deliberately

indifferent to plaintiff’s serious medical needs by requiring him to go out in Black Box’s on 1-28-10;

3-9-10; and 5-14-10 before finally issuing a 6-month ‘NO BLACK BOX’ restraint order at [the

Chief of Health Service’s] inquiry finalized on 8-28-10.” [13] at 10. Finally, the first amended

complaint attached a FOIA request to Dixon Correctional Center requesting the names of

correctional officers who transported him to UIC on the following dates: “1-27-09; 3-3-09; 3-31-09;

4-22-09; 5-5-09; 6-6-09; 7-30-09; 9-1-09; 10-22-09; 12-8-09; 1-28-10; 3-9-10; 4-29-10; 

5-14-10.” [13] at 14.

On February 4, 2013, this court summarily dismissed the first amended complaint in its

entirety with prejudice. See [17]. The court found that the allegations against Dr. Mesrobian and

Dr. Carter were untimely. The court also found that the claims against the IDOC failed to state a

claim because the Seventh Circuit had previously found the use of Black Boxes to be constitutional.

Of note, following the court’s summary dismissal, plaintiff filed a timely 59(e) motion to

reconsider [20, 23]. Within the motion, plaintiff reiterated that the claims made against Dr. Carter

were only in his official capacity, which plaintiff noted “is not a suit against the official but rather

is a suit against the office.” See [23] at 2. Plaintiff explained that “Dr. Carter is only named in the

amended complaint to maintain this suit against the Dixon Correctional Center Medical Director

Office,” because “the medical director’s office was always included in this suit by way of Dr.

Mesrobian in both his official and unofficial capacity” and the court had instructed him to substitute

a party for Dr. Mesrobian at the time it dismissed his original complaint. See [23] at 3. The court

denied plaintiff’s 59(e) motion to reconsider its previous order and judgment. [25].

3. Plaintiff’s Appeal to the Seventh Circuit.

Plaintiff filed a timely notice of appeal on March 25, 2013 [27], and on April 14, 2014, the

Seventh Circuit issued its opinion and mandate affirming in part, vacating in part, and remanding

the case to the district court. See Stewart v. Special Adm'r of Estate of Mesrobian, 559 F. App’x.

543 (7th Cir. 2014); [50]. The Seventh Circuit affirmed this court’s dismissal of the John Doe

correctional officers, finding that plaintiff had not sufficiently alleged deliberate indifference. It also

affirmed this court’s dismissal of the IDOC and its director, finding that plaintiff’s complaint “says

too little” to properly allege a departmental policy to “torture” inmates. Stewart, 559 F. App’x. at

549. 

4
However, the Seventh Circuit found that this court had improperly dismissed the claims

against Dr. Mesrobian’s estate, directed towards his actions in his individual capacity, as well as the

claims against Dr. Carter in his official capacity. First, the panel noted that plaintiff had alleged an

ongoing violation of his civil rights which occurred every time he was forced to wear the Black Box. 

With regard to Dr. Mesrobian, the panel noted that he left his position in October of 2009 and thus

plaintiff’s claim against him accrued on October 22, 2009, the last time (according to the first

amended complaint) that plaintiff was forced to wear the Black Box during his tenure. See Stewart,

559 F. App’x. at 547. However, plaintiff had already filed a grievance in June of 2009 with regard

to the Black Box restraints, which tolled his claim until grievance procedures were completed. The

statute of limitations did not begin to run until August 28, 2010, when plaintiff’s grievance was

resolved and Dr. Carter issued the six-month permit. 

The Seventh Circuit thus found that plaintiff’s original complaint, filed in July of 2012, was

timely as to the claims against Dr. Mesrobian. And although the November, 2012 first amended

complaint was untimely with respect to Dr. Mesrobian’s estate, the court found that plaintiff had

satisfied the relation back requirement of Federal Rule of Civil Procedure 15(c)(1)(C), which states

that an amendment “chang[ing] the party or the naming of the party against whom a claim is

asserted” relates back if the claim against the party arose out of the same transaction alleged in the

original pleading and if, within the Rule 4(m) period, the party to be amended in received notice

such that it would not be prejudiced and “knew or should have known that the action would have

been brought against it, but for a mistake concerning the proper party’s identity.” 

In analyzing Rule 15(c)(1)(C), the Seventh Circuit primarily focused on whether the “within

the Rule 4(m) period, the party to be amended in received notice” requirement could be said to be

satisfied given that actual notice (in the form of service of process) had not been sent to any

defendants, because this court had dismissed plaintiff’s action at the screening stage. The Seventh

Circuit found that the absence of service would not be held against plaintiff because it was entirely

attributable to delays attributable to screening that were outside his control. The court did not

explicitly analyze the other requirements of Rule 15(c)(1)(C), namely whether the claims against

Dr. Mesrobian’s estate arose out of the same transaction as the original complaint or whether the

estate should have known the action would have been brought against it but for a mistake concerning

the proper party’s identity. This was most likely due to the fact that those requirements were clearly

satisfied. It was obvious that plaintiff replaced Dr. Mesrobian with his estate because this court

instructed him to correct his mistake in naming the deceased Dr. Mesrobian by naming a proper

suable entity, such as the estate. And the claims against the estate in the first amended complaint

obviously arose out of the same transaction as the claims against Dr. Mesrobian in the original

complaint because they were identical – the estate was chosen because it was the entity potentially

liable for the allegations made against Dr. Mesrobian in the original complaint.

With regard to Dr. Carter, the Seventh Circuit explicitly found that the claims nominally

against him were “against the medical director in his official capacity.” Stewart, 559 F. App’x. at

549. Because the official capacity claims were not against Dr. Carter himself, the court made no

attempt to identify which dates plaintiff wore the Black Box during his tenure to determine whether

the claims were timely, as it had done with Dr. Mesrobian. Instead, the Seventh Circuit found that

5
the official capacity claims were timely in November of 2012 because plaintiff alleged a continuing

violation regarding the Black Box, which according to the amended complaint was ongoing as

recently as May of 2012 (notably after the first amended complaint alleged that Dr. Carter had left

as medical director). Stewart, 559 F. App’x. at 549. Thus, there was no need to conduct a Rule

15(c)(1)(C) analysis with regard to the official capacity claims, because the statute of limitations had

been running for less than a year as to the entity subject to those claims.2

Because plaintiff’s first amended complaint was not untimely with regard to the claims

against Dr. Mesrobian’s estate and the official capacity claim against the office of the medical

director, the Seventh Circuit vacated this court’s dismissal of the action and remanded for further

proceedings. See [49, 50]. 

4. The Second Amended Complaint – Filed November 3, 2014.

Following the Seventh Circuit’s remand, this court ordered that plaintiff’s first amended

complaint was reinstated with respect to the official capacity claim against “the medical director of

Dixon Correctional Center” and the individual claim against Dr. Mesrobian’s estate, and appointed

counsel. [54]. Magistrate Judge Johnston granted plaintiff leave to file a second amended

complaint, “subject to Federal Rule of Civil Procedure 15” [60], and extended the Rule 4(m) period

to October 15, 2014 to serve the existing first amended complaint. [77]. 

Plaintiff filed a motion to reconsider this last order, requesting an additional extension of

the Rule 4(m) period so that he could file his second amended complaint and serve it, rather than

the first amended complaint, on Dr. Carter and additional defendants to be added. See [78]. In

response, Judge Johnston ordered plaintiff to file his amended complaint by November 3, 2014 and

extended the Rule 4(m) period to November 24, 2014. [80]. 

Plaintiff filed his second amended complaint on November 3, 2014. [83]. The second

amended complaint continued to name Dr. Mesrobian’s estate, but all other parties were changed. 

Plaintiff replaced the official capacity claims against Dr. Carter with claims against Wexford Health

Sources, Inc., the entity that the Dixon medical directors acted for as agents. For the first time,

plaintiff named Dr. Carter in his individual capacity. Plaintiff also named Dr. Jill Wahl, acting 

medical director for Dixon between Dr. Mesrobian and Dr. Carter, in her individual capacity. 

Finally, plaintiff added fifteen John Doe defendants in their individual capacities. Plaintiff alleged

that John Doe One “served as a licensed medical doctor and Medical Director at Dixon during May

2012.” [83] at ¶ 8. John Does Two through Fifteen allegedly “served as correctional officers at

Dixon” during the relevant incidents. [83] at ¶ 11. 

The second amended complaint largely echoed the allegations made against Dr. Mesrobian

in the original and first amended complaint, with one significant difference. While the original and

2

Although plaintiff later identified this entity as Wexford Health Sources, Inc., in the original

complaint he believed it to be Dixon Correctional Center itself, see [1] at 2, and in the first amended

complaint he mistakenly named it as “Wexford Correctional Medical Services.” See [13] at 2.

6
first amended complaints alleged that the April 22, 2009 incident was the first time plaintiff told the

John Doe officers about his conversations with Dr. Mesrobian, the second amended complaint

alleged that plaintiff referred to those conversations during the March 31, 2009 incident. The second

amended complaint alleges that the officers checked with Dr. Mesrobian’s office during the March

31st incident and were told that Dr. Mesrobian refused to issue a no Black Box order. Thus, the

March 31st incident was also the first time plaintiff was offered the ultimatum whether to wear the

Black Box or forgo treatment. According to the second amended complaint, plaintiff again

complained and officers again verified that Dr. Mesrobian refused to issue an order during the April

22, 2009 incident. All other allegations with regard to the Black Box incidents alleged in the

original complaint are substantially identical.

With regard to Dr. Wahl, plaintiff alleged that he was forced to wear the Black Box on

December 8, 2009, during Dr. Wahl’s tenure as acting medical director and while plaintiff’s

grievance was still pending. [83] at ¶ 36. With regard to Dr. Carter, plaintiff alleged that he was

forced to wear the Black Box on January 28, 2010, March 9, 2010, April 29, 2010, and May 14,

2010, during Dr. Carter’s ’s tenure as medical director prior to him issuing the no Black Box permit

on August 28, 2010. [83] at ¶ 39. With regard to John Doe One, plaintiff alleged that the no Black

Box permit, despite being renewed during Dr. Carter’s tenure, “eventually expired in early 2012,

after Dr. Carter was no longer the Medical Director at Dixon. John Doe One replaced Dr. Carter

as the Medical Director at Dixon.” [83] at ¶ 42. Plaintiff alleged that he was forced to wear the

Black Box again on May 29, 2012, after the permit expired and during John Doe One’s tenure. 

Finally, plaintiff alleged that John Does Two through Fifteen were the correctional officers who

forced him to wear the Black Box during these incidents. 

In response, Dr. Carter answered the second amended complaint [90], but defendants Dr.

Wahl and Wexford filed a motion to dismiss on the grounds that the claims against them were

untimely [92]. This court denied the motion to dismiss on February 18, 2015. [123]. The court

found that the claims against Wexford related back to the official capacity claims against Dr.

Mesrobian in the original complaint because they arose out of the same conduct, Wexford was

served with summons within the Rule 4(m) period, and Wexford should have known it could have

been named in the original complaint but for plaintiff’s mistake in believing that Dixon Correctional

Center, not Wexford, was Dr. Mesrobian’s employer.

The court also found that the claims against Dr. Wahl related back to the original complaint

because plaintiff was mistaken regarding her role as medical director during some of the time period

in which he was forced to wear the Black Box. Crucial to the court’s holding was its incorrect belief

that “the Seventh Circuit expressly held that plaintiff’s claim against Dr. Carter was timely despite

the fact that the limitations period had expired before plaintiff filed his first amended complaint in

November 2012,” [123] at 7, which would necessarily bind this court to find the individual capacity

claims against Dr. Carter (and by logical extension, Dr. Wahl) timely due to the law of the case.

7
5. The Third Amended Complaint – Filed April 17, 2015.

On March 6, 2015, plaintiff moved for leave to file a third amended complaint to substitute

Dr. Arthur Funk for John Doe One, attaching the proposed third amended complaint to the motion. 

[124].3

 On April 17, 2015, Judge Johnston granted the motion [133] and plaintiff filed the third

amended complaint [132].

The filed third amended complaint is largely identical, with minor modifications, to the

proposed third amended complaint attached to plaintiff’s motion for leave to file. Compare, e.g.

[124] at 9, ¶ 8 (“Defendant Funk served as a licensed medical doctor and Medical Director at Dixon

from May to June 2012”) with [132] at ¶ 8 (“Defendant Funk served as a licensed medical doctor

and Regional Medical Director for various prisons, including Dixon, from May to June 2012”). It

is also substantially similar to the second amended complaint, with several differences. Most

notably, Dr. Arthur Funk is substituted for John Doe One. Evanston Insurance Company as Special

Representative for the Estate of Antreas Mesrobian is also substituted for Dr. Mesrobian’s estate. 

In addition, the third amended complaint adds additional allegations against John Does Two through

Fifteen with regard to the May 29, 2012 incident, alleging that “[o]n this occasion, the Black Box

was not working properly. One of John Does Two through Fifteen proceeded to beat the Black Box

onto Mr. Stewart’s wrists to overcome the malfunction of the Black Box.” [132] at ¶ 43.

3

The court notes that in the course of briefing that motion, plaintiff attached a grievance he filed

on July 28, 2012 regarding the May 29, 2012 Black Box incident, which was denied on October 17, 2012. 

See [130-3]. It is unclear whether plaintiff appealed the denial, as he could have done within 30 days. Id.

If he did not, it would appear that all allegations regarding the May 29, 2012 incident would fail because

plaintiff failed to fully exhaust his remedies regarding the May 29, 2012 incident. Dixon v. Page, 291

F.3d 485, 489 (7th Cir. 2002) (failure to appeal grievance denial merits dismissal for failure to exhaust

pursuant to 42 U.S.C. § 1997e). If he did, grievance procedures would have continued such that any new

claims regarding the May 29, 2012 incident may well have been timely with regard to the second

amended complaint or even when plaintiff moved for leave to file the third amended complaint on March

6, 2015. See Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993) (“As a party has no control over

when a court renders its decision regarding the proposed amended complaint, the submission of a motion

for leave to amend, properly accompanied by the proposed amended complaint that provides notice of the

substance of those amendments, tolls the statute of limitations, even though technically the amended

complaint will not be filed until the court rules on the motion.”) (internal citations omitted). However,

the 2012 grievance is not included or referenced in any of plaintiff’s pleadings and thus at this time the

court has not considered it in determining whether to dismiss any of the claims in the third amended

complaint pursuant to § 1915(e)(2)(B)(ii). See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011)

(holding that the standard for screening an action under § 1915(e)(2)(B) is the same as for evaluating a

motion to dismiss pursuant to Rule 12(b)(6), and applying that standard to avoid relying on matters

outside the pleadings).

8
B. ANALYSIS

In determining whether the claims against the parties in the third amended complaint are

timely, for each party the court must first evaluate whether the party was first named after the statute

of limitations had expired with regard to that party. If the statute of limitations had expired, the

court must then evaluate whether the claims against the party relate back under Rule 15(c)(1)(C) to

an earlier timely complaint. Because the timeliness analysis is different with respect to the various

parties, the court will analyze each in turn.

1. Dr. Carter.

Despite never being the subject of a motion to dismiss, the timeliness analysis with regard

to Dr. Carter is relatively straightforward. The Seventh Circuit found that the claim against Dr.

Mesrobian accrued on the last date plaintiff alleged that he was forced to wear the Black Box during

his tenure. On the face of the third amended complaint, the last time plaintiff was forced to wear

the Black Box during Dr. Carter’s tenure was May 14, 2010. Therefore, the statute of limitations

began to run on August 28, 2010, when grievance procedures were completed, and expired in

August of 2012, just as it did with regard to Dr. Mesrobian. And as the Seventh Circuit noted with

regard to Dr. Mesrobian, this means that the claims against Dr. Carter in the original complaint were

timely, but not those in the first amended complaint. Dr. Carter was not named in his individual

capacity until the November 3, 2014 second amended complaint, and thus the claims against him

are untimely unless they relate back to the original complaint under Rule 15(c)(1)(C). In other

words, the claims are untimely unless the second amended complaint substituted Dr. Carter for a

party named in the original complaint due to plaintiff’s mistake regarding the proper party’s identity.

The original complaint names Dr. Mesrobian and John Does One through Seven. [1]. The

John Does are explicitly alleged to be correctional officers, so the only possible mistake would be

in naming Dr. Mesrobian rather than Dr. Carter. But there is no reason to suspect there was any

such mistake. First, despite being filed pro se, the original complaint is extremely clear in alleging

specific wrongful actions taken by Dr. Mesrobian and alleging specific dates on which plaintiff’s

resulting injury occurred. Plaintiff alleges that Dr. Mesrobian was deliberately indifferent because

he explicitly refused to issue plaintiff a no Black Box permit in the face of plaintiff’s repeated

requests, despite being personally familiar with plaintiff’s clinical situation. As a result, plaintiff

alleges he was forced to wear the Black Box (following this lack of intervention) on April 22, 2009

and May 5, 2009, both of which took place during Dr. Mesrobian’s tenure as medical director.4

 He

alleges that he then filed a grievance, which ultimately resulted in Dr. Carter, explicitly referenced

as “Dr. Mesrobian’s replacement,” issuing him a no Black Box permit. [1] at 10. Finally, plaintiff

4

While plaintiff alleged additional dates he was forced to wear the Black Box in subsequent

complaints, for purposes of relation back the original complaint must be taken on its own terms. And in

the original complaint, plaintiff clearly alleges seven separate incidents in which he was forced to wear

the Black Box, and he names seven separate John Doe correctional officers for each of those seven

respective claims. Plaintiff’s allegations against Dr. Mesrobian explicitly relate to the two incidents

which occurred after plaintiff began complaining to him about having to wear the Black Box.

9
alleges that after Dr. Carter left as medical director, the permit expired and he was again forced to

wear the Black Box on May 29, 2012. A close reading of the original complaint thus makes clear

that there is no overlap between plaintiff’s allegations of wrongdoing and Dr. Carter’s tenure as

medical director – plaintiff only complains of actions taken before Dr. Carter arrived or after he left. 

It is equally clear from the original complaint that plaintiff was aware, not simply of Dr.

Carter’s existence, but also his role with regard to plaintiff’s allegations. In Krupski, the Supreme

Court held that a plaintiff could mistakenly name the wrong party for purposes of Rule

15(c)(1)(C)(ii), despite being aware of the proper party’s existence, due to a misunderstanding of

the role that the respective parties played in regard to the underlying claim. See Krupski v. Costa

Crociere S.p. A., 560 U.S. 538, 549 (2010) (“[A] plaintiff may know generally what party A does

while misunderstanding the roles that party A and party B played in the ‘conduct, transaction, or

occurrence’ giving rise to her claim.”). Here, unlike the situation contemplated in Kruspki, there

is no reason to doubt that the original complaint correctly sets forth Dr. Carter’s role and actions

with regard to the allegations in that complaint. Plaintiff set forth specific dates that he was forced

to wear the Black Box, April 22, 2009 and May 5, 2009, and plaintiff continues to allege in the third

amended complaint that those incidents occurred before Dr. Carter’s tenure. Plaintiff alleged, and

continues to allege, that he filed a grievance which ultimately resulted in Dr. Carter, as the new

medical director, issuing a no Black Box permit. The fact that plaintiff has since added new and

separate allegations of wrongdoing does not mean that he was mistaken with regard to his

allegations in the original complaint. 

Thus, it appears that the claims against Dr. Carter are untimely and there was no mistake

which would justify relation back under Rule 15(c) with regard to the original complaint.5

5

While not crucial to the timeliness analysis, plaintiff’s own filings in this case would make it

difficult to find that Dr. Carter “knew or should have know” during the Rule 4(m) period that the action

would have been brought against him but for a mistake concerning the proper party’s identity. See

Krupski, 560 U.S. at 548 (“Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or should have

known during the Rule 4(m) period . . . . Information in the plaintiff’s possession is relevant only if it

bears on the defendant’s understanding of whether the plaintiff made a mistake regarding the proper

party’s identity.”). Following this court’s dismissal of the first amended complaint, and before Dr. Carter

was served, plaintiff filed a 59(e) motion in which he essentially admitted that Dr. Carter was never

intended to be named in his individual capacity in either the original or first amended complaint. Plaintiff

himself explained that an official capacity claim “is not a suit against the official but rather is a suit

against the office,” and that “Dr. Carter is only named in the amended complaint to maintain this suit

against the Dixon Correctional Center Medical Director Office,” which plaintiff later learned was

Wexford, because “the medical director’s office was always included in this suit by way of Dr. Mesrobian

in both his official and unofficial capacity” and the court had instructed him to substitute a party for Dr.

Mesrobian at the time it dismissed his original complaint. See [23] at 2-3.

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2. Dr. Wahl.

The claims against Dr. Wahl appear to be untimely for the same reason. In his third amended

complaint, plaintiff alleges that Dr. Wahl was acting medical director for Dixon Correctional Center

from October of 2009 to December of 2009, between the tenures of Dr. Mesrobian and Dr. Carter. 

[132] at ¶ 6. Thus, like Dr. Mesrobian and Dr. Carter, the statute of limitations began running with

regard to Dr. Wahl when grievance procedures were completed on August 28, 2010, and expired in

August, 2012. Dr. Wahl was first named in the second amended complaint on November 3, 2014,

and thus the claims against her are untimely unless they relate back under Rule 15(c)(1)(C) to the

original complaint.

As discussed with regard to Dr. Carter, the only possible party to substitute in the original

complaint is Dr. Mesrobian. And for the same reasons, there appears to be no mistake. Plaintiff

challenged decisions made by Dr. Mesrobian in March, April, and May of 2009, and being forced

to wear the Black Box on April 22, 2009 and May 5, 2009. He did not reference being forced to

wear the Black Box during Dr. Wahl’s tenure, nor did he allege any decisions which could be

attributed to her. Thus, the Rule 15(c) relation back analysis with regard to Dr. Carter applies

equally to Dr. Wahl.

Complicating matters is this court’s previous order denying Dr. Wahl’s motion to dismiss

the claims against her as untimely. The court’s decision at that time stemmed in part from its

misapprehension that on appeal “the Seventh Circuit expressly held that plaintiff’s claim against Dr.

Carter was timely despite the fact that the limitations period had expired before plaintiff filed his

first amended complaint in November 2012.” [123] at 7 (citing Stewart, 559 F. App’x. at 547). 

Based on the court’s belief as to what constituted the law of the case, it appeared that the timeliness

analysis with regard to Dr. Wahl should be analogous as to that with regard to Dr. Carter. And

indeed the timeliness analysis regarding the two is analogous, but as explained above, a closer

reading of the Seventh Circuit’s opinion makes clear that the court did not recognize a claim against

Dr. Carter which related back to the original complaint under Rule 15(c)(1)(C). In fact, the Seventh

Circuit did not discuss Dr. Carter at all, but rather correctly noted that plaintiff had made a claim

against “the medical director in his official capacity” and found that such a claim was timely with

respect to the first amended complaint. Stewart, 559 F. App’x. at 549. Thus, this court was

incorrect in its belief that it was bound by the law of the case to find timely the claims against Dr.

Carter and, by analogy, Dr. Wahl.

Viewed in their proper context, the claims against Dr. Wahl in her individual capacity

appear to be untimely and do not relate back under Rule 15(c)(1)(C).

4. John Does Two through Fifteen.

The claims against John Does Two through Fifteen are somewhat more difficult to analyze,

in part due to the vague nature of the allegations against them. Plaintiff refers to fourteen

correctional officers, jointly alleged to have been involved in the various Black Box incidents

between 2008 and 2012. Unlike with the original complaint, which named seven John Does

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allegedly responsible for seven respective incidents between December of 2008 and May of 2012,

it is impossible to determine in the third amended complaint which of the officers are alleged to have

been involved in which incidents. 

What is clear, however, is that the seven original John Does in the original complaint appear

to be among the group of fourteen John Does named in the third amended complaint. See [132] at

¶¶ 15-16, 24, 26, 30, 43 (referring to the seven Black Box incident dates referenced in the original

complaint and alleging that “one of John Does Two through Fifteen” was involved during each

incident). The claims against these defendants were dismissed with prejudice. See [6] at 2 (finding

that the allegations against the John Doe officers failed to state a claim and dismissing the original

complaint “without prejudice to plaintiff submitting an amended complaint that names a proper party

who may be liable for the claims he alleges against Dr. Mesrobian[,]” not the John Doe officers). 

This court’s dismissal was upheld by the Seventh Circuit on appeal. See Stewart, 559 F. App’x. at

549 (“The district court also properly dismissed Stewart’s claim against the unnamed guards. His

allegations do not plausibly suggest that they were deliberately indifferent to his complaints of

severe pain. Indeed, his allegations suggest the opposite, for he says that the guards responded to

his complaints by looking in his file for an exemption and then following up to see whether Dr.

Mesrobian would issue one.”) (internal citations omitted). Thus, the Seventh Circuit’s ruling

regarding the John Does involved in the original complaint is now the law of the case. See

Waid v. Merrill Area Public Schools, 130 F.3d 1268, 1272 (7th Cir. 1997) (“The law of the case

doctrine generally binds a court to its own previous decision on issues arising earlier in the litigation

as well as to decisions entered by a higher court earlier in the litigation.”).

The Seventh Circuit has held that the law of the case doctrine, although “not ‘hard and fast,’”

should not be ignored unless there are “unusual circumstances that justify abandonment of the law

of the case includ[ing] (1) substantial new evidence introduced after the first review, (2) a decision

of the Supreme Court after the first review that is inconsistent with the decision on that review, and

(3) a conviction on the part of the second reviewing court that the decision of the first was clearly

erroneous.” Kathrein v. City of Evanston, Ill., 752 F.3d 680, 685 (7th Cir. 2014). In this case, this

court and the Seventh Circuit have dismissed and upheld, respectively, the claims against the John

Doe officers involved in the December, 2008, January 27, 2009, March 3, 2009, March 31, 2009,

April 22, 2009, May 5, 2009, and May 29, 2012 Black Box incidents. Thus, it would appear that

the claims against those John Does should be dismissed.6

With regard to the remaining John Does, the claims against them appear to be directed at

those Black Box incidents not alleged in the original complaint. Most of those incidents occurred

prior to Dr. Carter issuing the no Black Box permit on August 28, 2010, making the claims

regarding them untimely when John Does Two through Fifteen were named in the November 3,

2014 second amended complaint. The claims regarding these officers could not relate back to the

6

If plaintiff believes that substantial new evidence, a change in law, or a clearly erroneous filing

justifies reinstatement of any of those defendants, the proper course of action would be to file a motion

seeking leave to reinstate rather than simply reinstating them on his own initiative in an amended

pleading. 

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original complaint under Rule 15(c)(1)(C) because the relevant Black Box incidents they were

involved in were not alleged in the original complaint. Moreover, the only parties they could be

substituted for were dismissed with prejudice. And finally, there is no reason to believe that this

court’s and the Seventh Circuit’s analysis would be any different with regard to those incidents

because the allegations against them are substantially identical to those against the dismissed John

Does in the original complaint. Thus, it appears that plaintiff’s claims with regard to the remaining

John Does Two through Fifteen should be dismissed as well.

For the reasons above, it appears that the third amended complaint fails to state a claim

against Dr. Jill Wahl, Dr. Imhotep Carter, and John Does Two through Fifteen. Nevertheless, the

court is of the opinion that plaintiff should have the opportunity to respond, particularly in light of

the complex procedural history of this case, the limited discovery already conducted (including the

apparent 2012 grievance which is not yet before the court) which may shed further light on these

issues, and the fact that the parties are already in the process of briefing whether plaintiff’s claims

against Dr. Funk are timely, which the court will consider when that matter has been fully argued. 

If plaintiff believes the claims against these parties should not be dismissed, he is ordered to file a

response by July 27, 2015. Failure to do so will result in summary dismissal of those claims

pursuant to 28 U.S.C. § 1915(e)(2). In the event plaintiff files a response, Dr. Wahl and Dr. Carter

are given leave to file a reply by August 26, 2015. 

Date: 5/22/2015 ENTER:

 United States District Court Judge

Electronic Notices. (LC)

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