# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 21, 2014 *

Decided March 13, 2014

Before

RICHARD D. CUDAHY, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 13

‐ 1628

LAVERTIS STEWART,

Plaintiff

‐ Appellant,

v.

SPECIAL ADMINISTRATOR OF THE

ESTATE OF ANTREAS MESROBIAN, et al.

, Defendants

‐ Appellees

. Appeal from the

United States District Court for the

Northern District of Illinois,

Western Division.

No. 12 C 50273

Philip G. Reinhard,

Judge

.

O R D E R

LaVertis Stewart, a 58

‐ year

‐ old Illinois inmate, appeals from the dismissal at

screening of his civil

‐ rights suit. See 28 U.S.C. § 1915A. He claims that he suffers cruel

and unusual punishment when forced to wear a security box over his handcuffs, which NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* The appellees were not served with process in the district court and are not

participating in this appeal. After examining the appellant’s brief and the record, we

have concluded that the case is appropriate for summary disposition. See F ED

. R. A PP

.

P. 34(a)(2)(C).No. 13

‐ 1628 Page 2

causes severe pain because of carpal tunnel syndrome in both wrists and chronic pain in

his right shoulder. We vacate the judgment in part and remand for further proceedings.

For purposes here, we accept as true Stewart’s factual allegations. He receives

physical therapy in prison for his carpal tunnel syndrome and bursitis in his shoulder.

He also suffers from cirrhosis of the liver and leaves the prison every month or two for

medical treatment. During these trips, which last at least eight hours, Stewart must

wear the security box unless granted an exemption by the prison’s medical director.

(The security box covers the handcuff locks and forms a rigid link between the wrists.)

Stewart experiences severe pain from the security box while wearing it, and for several

days afterward, he has pain, numbness, and swelling in his wrists and substantial pain

in his shoulder. In March 2009 he alerted the medical director, Dr. Antreas Mesrobian,

about the pain he experienced. Dr. Mesrobian promised to issue an exemption, but

when Stewart prepared to leave the prison for treatment in April and told the guards

about the exemption, they didn’t find one in his file. The guards checked with a nurse

and were told that Dr. Mesrobian would not issue an exemption.

Stewart saw Dr. Mesrobian later that day and again in May, both times

emphasizing that the security box causes him severe pain, but Dr. Mesrobian refused to

order an exemption. Stewart submitted a grievance in June 2009 and appealed to the

Administrative Review Board when it was denied. The Board referred the matter to

medical personnel for review in July 2010 (we are not told the reason for the long

turnaround), and the next month Stewart received a six

‐ month exemption from

Dr. Imhotep Carter, who had replaced Dr. Mesrobian as medical director. That

exemption eventually expired after several renewals, and beginning in May 2012,

Stewart again was forced to wear the security box.

Stewart brought this action in July 2012 claiming that Dr. Mesrobian and several

unnamed guards had been deliberately indifferent to the pain caused by the security

box. He asked the district court to enlist counsel. At screening the court dismissed the

suit as against the guards because, by Stewart’s account, they had responded to his

reports of pain by verifying with the nurse that an exemption wouldn’t be authorized.

The court also dismissed without prejudice the claim against Dr. Mesrobian, explaining

that he had died and that Stewart would need to substitute a party for him. The court

denied Stewart’s request for counsel, reasoning that the case was not overly complex,

and gave Stewart 45 days to amend his complaint. The court later extended that

deadline.No. 13

‐ 1628 Page 3

Stewart timely submitted an amended complaint naming as a defendant the

“special administrator” of Dr. Mesrobian’s estate (and asking the district court to

appoint one). He also named Dr. Carter in his official capacity (although by that time

Dr. Carter had been replaced as medical director), and the director of the Department of

Corrections. Stewart again asked the court to enlist counsel, pointing out that

Dr. Mesrobian’s death complicated his case and that he had been unable to find relevant

information about the doctor’s estate. The court screened the amended complaint,

which seeks damages and an injunction against use of the security box, and this time

dismissed it with prejudice on the ground that Stewart’s allegations make apparent that

the statute of limitations bars his claims against Dr. Mesrobian’s estate and the medical

director. In addition, the district court concluded that the medical director could not be

joined in a suit against Dr. Mesrobian’s estate. Finally, the court also rejected Stewart’s

claim against the IDOC director because, it reasoned, a general policy of using security

boxes does not violate the Eighth Amendment.

On appeal Stewart argues that his claim against Dr. Mesrobian’s estate was

timely. The limitations clock began ticking, according to the district court, in May 2009

when Dr. Mesrobian refused to issue an exemption after Stewart complained a third

time about the pain caused by the security box. The court acknowledged that Stewart

had tolled the statute of limitations the following month by submitting a grievance. But

the tolling period ended in July 2010, the court concluded, and thus the limitations

period expired in June 2012—a little more than two weeks before Stewart signed his

original complaint.

As Stewart correctly argues, however, the district court based its calculations on

the wrong starting date. He claims that he experienced severe pain every time he wore

the security box; each instance represents another potential violation and a new

limitations period, and when evaluating the timeliness of his claim, the last violation is

what matters. See United States v. Midwest Generation, LLC

, 720 F.3d 644, 646–47 (7th Cir.

2013); Turley v. Rednour

, 729 F.3d 645, 651 (7th Cir. 2013); Heard v. Sheahan

, 253 F.3d 316,

318–20 (7th Cir. 2001). Stewart says the last violation during Dr. Mesrobian’s tenure as

medical director happened in October 2009. For purposes of screening, that is when the

claim accrued, but the limitations period was tolled until the grievance already filed by

Stewart was resolved. See Turley

, 729 F.3d at 651; Johnson v. Rivera

, 272 F.3d 519, 522 (7th

Cir. 2001). That didn’t happen until an exemption was granted in August 2010, less than

two years before Stewart filed his original complaint.No. 13

‐ 1628 Page 4

Although the limitations period expired before Stewart amended his complaint

in November 2010, that complaint will relate back if the defendants received notice of

the suit within 120 days of his timely filed complaint. See F ED

. R. C IV

. P. 15(c), 4(m);

Krupski v. Costa Crociere S.P.A.

, 560 U.S. 538, 548 (2010) (“Rule 15(c)(1)(C)(ii) asks what

the prospective defendant knew or should have known during the Rule 4(m) period, not

what the plaintiff knew or should have known at the time of filing her original

complaint.”). The 120 days did not start until the district court granted Stewart’s

application to proceed in forma pauperis on August 8, 2012, see Donald v. Cook Cnty.

Sheriff’s Dep’t

, 95 F.3d 548, 557 n.5 (7th Cir. 1996), so Stewart had until December 6 to

provide notice absent an extension for good cause. He filed his amended complaint by

giving it to the prison mailroom more than three weeks before that deadline. Of course,

no defendants actually received notice because the district court dismissed the amended

complaint at screening, but that should not count against Stewart. The amended

complaint had to pass screening before any defendant could be served with process,

see Ford v. Johnson

, 362 F.3d 395, 398 (7th Cir. 2004), and the delay attributable to

screening was outside of Stewart’s control and constituted good cause to extend the

time for notice, see Graham v. Satkoski

, 51 F.3d 710, 712–13 (7th Cir. 1995) (concluding

that delay attributable to Marshals Service constituted good cause); Sellers v. United

States

, 902 F.3d 598, 602 (7th Cir. 1990) (concluding that failure of Marshals Service to

identify and serve defendant after receiving sufficient information from prisoner is

“automatically good cause”); Palk v. Dep’t of the Air Force

, 830 F.2d 79, 83 (7th Cir. 1987)

(explaining that screening tolls statute of limitations); Robinson v. Clipse

, 602 F.3d 605,

608 (4th Cir. 2010) (concluding that delay attributable to screening doesn’t count against

Rule 4(m)’s 120 days); Richardson v. Johnson

, 598 F.3d 734, 738–39 (11th Cir. 2010)

(explaining that delay attributable to Marshals Service constitutes good cause);

see also Urrutia v. Harrisburg Cnty. Police Dep’t

, 91 F.3d 451, 459 (3d Cir. 1996)

(suspending 120

‐ day period until service of amended complaint is authorized).

So the district court should not have dismissed as untimely the claim against

Dr. Mesrobian’s estate, and looking to the merits, we conclude that Stewart’s allegations

are sufficient to state a claim. Using a security box is permissible in some settings.

See Bruscino v. Carlson

, 854 F.2d 162, 166 (7th Cir. 1988) (concluding that use of security

box was reasonable given history of violence at prison); Fulford v. King

, 692 F.2d 11,

14–15 (5th Cir. 1982) (concluding that forcing prisoners to wear security box while

outside prison did not violate Eighth Amendment). But even security measures as

ordinary as handcuffs can be used in ways that violate the constitution. See Hope v.

Pelzer

, 536 U.S. 730, 738 (2002) (holding that prisoner’s allegations, including that he

suffered unnecessary pain while handcuffed for seven hours, were sufficient to stateNo. 13

‐ 1628 Page 5

Eighth Amendment violation); Payne v. Pauley

, 337 F.3d 767, 774–75 (7th Cir. 2003)

(reversing summary judgment on Fourth Amendment claim of excessive force based in

part on overly tight handcuffs). Stewart alleges that his carpal tunnel syndrome and

bursitis make use of a security box extremely painful and thus inappropriate for him, a

fact known but disregarded by Dr. Mesrobian and, apparently, the current medical

director. We cannot say at this stage that Stewart’s allegations are implausible,

particularly since medical exemptions are available and Stewart received one for an

extended period after his grievance reached the Administrative Review Board.

This does not mean that Stewart has cleared all procedural hurdles relating to

Dr. Mesrobian’s estate. The district court may appoint a “special administrator”

consistent with Illinois law only if a state judge has not opened the estate already;

otherwise, Stewart must sue the personal representative of the estate. See 735 I LL

. C OMP

.

S TAT

. 5/13

‐ 209(b); Anderson v. Romero

, 42 F.3d 1121, 1125 (7th Cir. 1994) (appointing as

special administrators the lawyers who were representing Illinois inmate who died

intestate while suit under 42 U.S.C. § 1983 was pending); see also Ward v. Edgeton

,

59 F.3d 652, 653 (7th Cir. 1995) (explaining that provision in 42 U.S.C. § 1988 authorizing

federal courts to borrow from state law as necessary to provide complete remedy in

§ 1983 actions empowered court of appeals to appoint special representative for inmate

who died while appeal was pending); Slade for Estate of Slade v. U.S. Postal Serv.

, 952 F.2d

357, 360 (10th Cir. 1991) (substituting decedent’s wife as plaintiff when no

representative had been appointed). Additionally, the application of Illinois law would

bar Stewart’s suit unless the estate is covered by liability insurance because

Dr. Mesrobian died more than two years before Stewart filed his complaint. See 755 I LL

.

C OMP

. S TAT

. 5/18–12(b), (c); Water Tower Nursing & Home Care, Inc. v. Estate of Weil

,

988 N.E.2d 217, 221 (Ill. App. Ct. 2013). We don’t know whether an Illinois court has

opened an estate for Dr. Mesrobian, or whether his estate is covered by liability

insurance. In fact, we don’t even know that the estate would have been probated in

Illinois, for it appears that Dr. Mesrobian died in California. See Antreas D. Mesrobian

Obituatary

, T HE D ESERT S UN

, http://www.legacy.com/obituaries/thedesertsun/obituary.

aspx?page=notice&pid=138787950 (last visited Feb. 24, 2014). Under California law if

Dr. Mesrobian’s estate is covered by insurance, Stewart could proceed directly against

the insurer without naming any estate representative. See C AL

. P ROB

. C ODE § 550(a). The

district court didn’t address Stewart’s renewed motion for counsel given its ruling on

the statute of limitations, but it will need to take up that motion on remand in light of

these issues. See Pruitt v. Mote

, 503 F.3d 647, 656–59 (7th Cir. 2007) (en banc).No. 13

‐ 1628 Page 6

As for the other defendants, Stewart argues, and we agree, that the district court

erred by dismissing his claim against the medical director in his official capacity.

Stewart seeks an injunction against use of the security box. He says that he wore the

security box as recently as May 2012, and nothing in the record suggests that use of the

security box is not ongoing and will not continue. Moreover, we disagree with the

district court that the claim against the medical director is unrelated to the claim against

Dr. Mesrobian’s estate and cannot be joined in the same lawsuit. The court cited

George v. Smith

, 507 F.3d 605, 606–07 (7th Cir. 2007), but that decision dealt with

24 defendants and dozens of distinct suits and unrelated claims all heaped into one

complaint that we called “sprawling,” a “blunderbuss,” and a “mishmash.” That is far

from this case. Stewart’s claims all relate to alleged continuing violations that are

properly joined in one suit. See F ED

. R. C IV

. P. 20(a)(2); Wheeler v. Wexford Health Sources,

Inc.

, 689 F.3d 680, 683 (7th Cir. 2012) (“Joinder that requires the inclusion of extra parties

is limited to claims arising from the same transaction or series of related transactions.”).

We conclude, however, that the district court properly dismissed Stewart’s claim

against the director of the Department of Corrections alleging that it is the departmental

policy to use security boxes to “torture” inmates. The court construed this as a broad

attack on the use of security boxes generally; Stewart insists that he challenges only the

specific way the boxes are used at his prison—with an inmate’s wrists facing opposite

directions, one up and the other down. Yet Stewart’s complaint says too little to make

even this narrower theory plausible. See Ashcroft v. Iqbal

, 556 U.S. 662, 678–79 (2009);

Brooks v. Pactiv Corp.

, 729 F.3d 758, 763 (7th Cir. 2013). He speculates that the prison’s

preferred wrist position must have nothing to do with preventing prisoners from

picking the handcuff locks (which is what the guards told him) because the security box

itself is designed to thwart that. But he alleges nothing that might turn this speculation

into a plausible inference.

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. See Farmer v. Brennan

, 511 U.S. 825, 847 (1994); Earl v.

Racine Cnty. Jail

, 718 F.3d 689, 692 (7th Cir. 2013). 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.

Accordingly, we VACATE the judgment dismissing the claims against

Dr. Mesrobian’s estate and the medical director and REMAND those claims for further

proceedings. In all other respects the judgment is AFFIRMED.