oTM oN

clock as long as Pettiford was incarcerated. Once Pettiford was no longer incarcerated, he was
no longer subject to the exhaustion requirement, and the clock would have restarted. Pettiford
stated in the complaint that he had been released from custody on May 26, 2000, three months
short of two years before filing this suit. Accordingly, any claim that accrued more than three
months before April 26, 1996 -- such as Pettiford’s claims that he was assaulted by deputies in
April of 1995 and by another inmate in August of 1995 -- is barred, regardless of how long the
associated grievances were pending.

Further, although Pettiford does not give other dates when he was released from custody,
it is possible that he was not continuously incarcerated from April of 1995 until May 26, 2000.
If he had been released in the meantime, it would have restarted the limitations period with respect
to any claim that had accrued as of the date of release.?’

Pettiford’s assertion that he filed grievances with respect to all of his claims is taken as true
at this stage, but this does not establish that his claims are timely. With respect to each claim,
Pettiford should allege, if he can, the disposition of each grievance, when it was decided, whether
he appealed, the result on appeal, and when the appeal was decided. He must also give the earliest
date he was released from custody after the incident or incidents that gave rise to the claim.

Third, Pettiford states that certain claims asserted in this suit were previously raised in two
suits filed in 1999 in the Circuit Court of Cook County, Illinois, that were subsequently dismissed
for want of prosecution. Pettiford states that Counts I through IV of the present complaint were
raised in Pettiford v. County of Cook, No. 99 L 6287, filed June 8, 1999, and dismissed without
prejudice on February 28, 2000. Pettiford states he appealed the dismissal, but the appeal was

dismissed for want of prosecution on March 15, 2001. Pettiford states that Count V of the present

¥ What happens when a prisoner is released, then subsequently reincarcerated before filing suit, is an interesting question.

Presumably in most cases the correctional system terminates the grievance proceeding when the grievant is released from custody, and
in almost all cases it would make no sense to require a reincarcerated inmate to reopen it. Consequently, if an inmate’s release resulted
in the termination of his grievance proceeding short of exhaustion, he should not be prevented from bringing suit after he is
reincarcerated. The court is not aware of caselaw on this point. If reincarceration does not reinstate the bar of § 1997e(a) for claims

arising during a previous incarceration, it would not toll the limitations period.

4


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pleading in this case, even though both suits are assigned to the same district judge. Pettiford has
not moved to vacate the judgment in Pettiford v. Pucinski, and even accepting Pettiford’s account
as true, a motion to vacate the judgment at this time would be futile. The judgment satisfied due
process and cannot be attacked as void. See Grun v. Pneumo Abex Corp., 163 F.3d 411, 423-24
(7th Cir. 1998). Not only did Pettiford’s counsel have notice of the dismissal, which served as
notice to Pettiford, see United States v. Indoor Cultivation Equipment from High Tech Indoor
Garden Supply, 55 F.3d 1311, 1318 (7th Cir. 1995), but Pettiford states that he had actual notice
of it.

Litigants are normally bound by the actions, and inactions, of their attorneys. See United
States v. 8136 S. Dobson St., 125 F.3d 1076, 1084 (7th Cir. 1997); Indoor Cultivation Equipment,
supra. Jf that seems harsh where an indigent person is represented by counsel not of his own
choosing, Pettiford was himself at fault. Pettiford did not appear in court when his case was
called, nor did he file anything contesting counsel’s statement that no amended complaint had been
filed because Pettiford failed to keep his appointments. Nor, apparently, did he inquire of the
court for more than a year. Pettiford had one year from the date of judgment to seek to reopen
the case under Rule 60(b)(1) on grounds of "mistake, inadvertence, surprise, or excusable neglect."
It is now too late.

Finally, Pettiford asks the court to reconsider the denial of his motions for appointment of
counsel. There is no right to counsel in civil cases. Local Rule LR 83.11(g) of this court requires
each attorney admitted to this court’s trial bar accept one appointment per year to represent persons
who cannot afford to hire an attorney. An attorney appointed to represent a plaintiff who has no
viable claim cannot be appointed to another case where he or she might make a difference. The
court will consider appointing counsel only if it appears from an amended complaint that Pettiford
has a claim that can proceed. Pettiford’s complaints concerning law library access are irrelevant
at this stage of the litigation, because an amended complaint does not require legal argument, only

facts.


cy cTM
claim arising from the same set of operative facts. Roboserve, Inc. v. Kato Kagaku Co., Ltd., 121
F.3d 1027, 1034 (7th Cir. 1997).

Pettiford raises four grounds for reconsideration. First, Pettiford asserts that his claims are
not untimely because his incarceration tolled the limitations period. Pettiford is mistaken.
Imprisonment is not a “legal disability" under Illinois law, because prisoners are competent to sue
in their own names. At one time, incarceration did toll the limitations period in Illinois.
However, P.A. 86-1329, effective January 1, 1991, eliminated from Ill. Rev. Stat. Ch. 110 13-
217 (now 735 ILCS 5/13-211) references to a person entitled to bring an action who "is imprisoned
on a criminal charge" at the time the cause of action accrued, as well as the statement that he or
she may bring an action after "the person ceases to be imprisoned." Since that amendment, Illinois
statutes of limitations are not tolled for prisoners. See Schweihs v. Burdick, 96 F.3d 917, 919 (7th
Cir. 1996). The two-year limitations period began to run when Pettiford knew, or should have
known, of the facts upon which he bases his claims.

Second, Pettiford appears to have misunderstood the interaction between the requirement that
prisoners exhaust administrative remedies and the statute of limitations. As the court noted in its
previous order, the limitations period is tolled while a prisoner exhausts administrative remedies
as required by 42 U.S.C. § 1997e(a). In Johnson, the Seventh Circuit explained that in borrowing
the state statute of limitations for suits under § 1983, federal courts also borrow state tolling rules.
Illinois law tolls the limitations period when a plaintiff is legally barred from bringing suit:
"[w]hen the commencement of an action is stayed by an injunction, order of court, or statutory
prohibition, the time of the continuance of the injunction or prohibition is not part of the time
limited for the commencement of the action." 735 ILCS 5/13-216 (emphasis added). Johnson held
that 42 U.S.C. § 1997e(a), which prevents a prisoner from bringing suit under federal law before
administrative remedies have been exhausted, is such a statutory prohibition that tolls the
limitations period. Johnson, 272 F.3d at 521-22.

The requirement that prisoners exhaust administrative remedies took effect on the effective

date of the Prison Litigation Reform Act, April 26, 1996, which would have stopped the limitations

3


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suit was raised in Pettiford v. County of Cook, No. 99 L 3485, filed March 26, 1999, and
dismissed without prejudice on August 16, 2001.

Pettiford asserts that these actions gave defendants fair notice of his claims, so his present
complaint should "relate back" for limitations purpose. Pettiford is mistaken; "relation back”
applies to an amended complaint in the same suit, not a new suit, and the concept of “fair notice"
is irrelevant to the running of the statute of limitations. Nevertheless, a suit filed in Illinois state
court and dismissed without prejudice is relevant. Illinois law permits a plaintiff to refile a suit
dismissed without prejudice or for want of prosecution within one year of dismissal, even though
the limitations period has run since the first suit was filed. 735 ILCS 5/13-217.% This tolling rule
is given effect when the Illinois statute of limitations is borrowed for suits under 42
U.S.C. § 1983. Gosnell v. City of Troy, 59 F.3d 654, 656 (7th Cir. 1995).

Nevertheless, this one-year grace period applies only after a dismissal by the trial court; it
would not apply to the dismissal of the subsequent appeal.’ With respect to Counts I through IV,

raised in No. 99 L 6287, the trial court’s dismissal without prejudice on February 28, 2000,

# Although 735 ILCS 5/13-217 was amended by P.A, 89-7, effective March 9, 1995, removing this protection for suits dismissed
for want of prosecution, P.A. 89-7 was declared unconstitutional in its entirety in Best v. Taylor Machine Works, 179 Il1.2d 367, 689
N.E.2d 1057 (1997). Prior to the amendment, § 5/13-217 read as follows:

Reversal or dismissal. In the actions specified in Article XIII of this Act or any other act or contract where
the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal,
or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is
entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed
for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction,
or the action is dismissed by a United States District Court for improper venue, then, whether or not the time
limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs,
executors or administrators may commence a new action within one year or within the remaining period of
limitation, whichever is greater, after such judgment is reversed or entered against the plaintiff, or after the
action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the
action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a
United States District Court for improper venue.

¥ A dismissal without prejudice for want of prosecution is not a final and appealable order before the expiration of the one-year
refiling period. $.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill.2d 489, 502, 693 N.B.2d 338, 344 (1998); Ryan v.
Rudeway Enterprises, Inc., 326 I.App.3d 959, 962-63, 763 N.E.2d 338, 341-42 (1st Dist. 2001). Here the appeal was dismissed after
the expiration of the refiling period. Nevertheless, assuming the appeal was dismissed for want of prosecution rather than lack of
jurisdiction, to construe the reference in § 5/13-217 to the dismissal of "an action" for want of prosecution as including the dismissal
of an appeal would permit the plaintiff to double the grace period simply by filing an appeal and failing to prosecute it. This would
be contrary to the intent of the legislature to create a one-year grace period, and the court finds no Illinois cases so holding.

5


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To summarize, the motion to reconsider is granted in part. The court acknowledges that
claims raised in Pettiford v. County of Cook, No. 99 L 3485, filed March 26, 1999, if timely then,
are timely in this suit as well. The court reaffirms its ruling that the final judgment in Pettiford
v. Pucinski, No. 00 C 3225, bars any claim arising from the same operative facts against any of
the defendants named in that suit.

Pettiford is given sixty days from the date of this order to file an amended complaint
consistent with the rulings in this memorandum opinion and order. No further extensions will be
granted. Pettiford should file the complaint together with one copy for the court and a copy for
each named defendant.

The amended complaint shall include, with respect to each claim, allegations that, taken as
true, show that the claim is not barred by the statute of limitations. If Pettiford was released from
custody at any time between the earliest event recited in the amended complaint and May 26, 2000,
he should give the dates of each release and reincarceration. Pettiford should also allege, to the
best of his knowledge, the dates of filing and disposition of each administrative grievance relating
to each claim. The amended complaint may not add new defendants or causes of action not alleged
in the original complaint. The clerk is directed to send Pettiford a copy of the complaint in

Pettiford v. Pucinski, No. 00 C 3225, for his review.

IT IS SO ORDERED.

Robert 'W. Gettleman, Judge
United States District Court

DATED: yu ol 90.



3 Mirgte OrdersFon (06/97)
“ ~*

United St. -s District Court, Northern Dist. .. of Lllinois

Name of Assigned Judge or | ROBERT W. GETTLEMAN Sitting Judge if Other
Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 1777 DATE| ‘7 /& VA, L
CASE Cello Pettiford v. Michael Sheahan, et al,
TITLE

MOTION:

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented.]

DOCKET ENTRY:

(1) 0 Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) im Answer brief to motion due. . Reply to answer brief due

(4) a Ruling/Hearing on set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at

(6) Oo Pretrial conferencefheld/continued to] [set for/re-set for] on set for at

K7) im) Trial[set for/re-set for] on at

(8) im) {Bench/Jury trial] [Hearing] held/continued to at

(9) i) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

O FRCP4(m) (General Rule21 © FRCP41(a)(1) © FRCP41(a)(2).

(10) [Other docket entry] Enter memorandum opinion and order. Plaintiff’s motion for
reconsideration [11-1] is granted in part. Plaintiff’s motion for extension of time [11-2] is granted.
Plaintiff is given sixty days from the date of this order to file an amended complaint in compliance
with the rulings set forth in the memorandum opinion and order. No further extensions of time will
be granted. The clerk is directed to send plaintiff a copy of the complaint in Pettiford v. Pucinski,
No. 00 C 3225.

(11) = For further detail see order attached to the original minute order.

INo notices required, advised in open court.
INo notices required. umber of notices
INotices mailed by judge’s staff.
INotified counsel by telephone. JUL al , 2 Zone
X _— [Docketing to mail notices.
Mail AO 450 form. nA Letng dept iia
ICopy to judge/magistrate judge. LYNOD LaMLsia “Sn
NEM) :
date mailed notice
Leputy's SO :01 Kv 2- Int 20
initials
Dateline aled lad WI
central Clerk's Office roalting deputy tnkils



of ‘ om
permitted Pettiford to refile by February 28, 2001, without risk that limitations would bar the suit -
- assuming, of course, that the original suit was timely. Because this suit missed that date by a
year, the prior suit has no effect on the timeliness of Counts I-IV. On the other hand, with respect
to claims asserted in Count V and raised in No. 99 L 3485, claims that were timely in that suit
would be timely in this one. To this extent the court grants the motion for reconsideration.”

Fourth, Pettiford objects to the court’s ruling that this court’s dismissal of Pettiford v.
Pucinski with prejudice bars, as res judicata, any claim against the same defendants that was
brought, or could have been brought, in that suit. The court stands by that ruling, with the
clarification that not all possible claims against the same defendants are barred, but all claims based
on any “cause of action" asserted in the previous suit are barred. A "cause of action" for res
judicata purposes is broadly defined as "a single core of operative facts which give rise to a
remedy." Roboserve, 121 F.3d at 1034.

Pettiford argues that the dismissal of Pettiford v. Pucinski for want of prosecution should be
disregarded because it was the fault of his appointed counsel. The suit was dismissed after
Pettiford’s attorney failed to file an amended complaint as directed and failed to appear at a status
hearing after the amended complaint was due. Pettiford’s counsel subsequently moved to vacate
the dismissal and to withdraw from his representation of Pettiford, stating that Pettiford had not
kept appointments. The court granted the motion to withdraw but denied the motion to reinstate
the case. According to Pettiford’s account in his motion to reconsider, counsel told him the suit
had been dismissed, but that "he would have the claim reinstated, as it was his fault it was
dismissed." Pettiford states that after he was reincarcerated in February of 2001 he had no further
contact with appointed counsel.

As long as the final judgment in Pettiford v. Pucinski stands, it is res judicata in any

subsequent suit between the same parties. That judgment cannot be affected by a motion or

© Pettiford refers to a third case, 01 L 8438 (no parties named), but does not state what relationship the claims in that case have
to this suit. Pettiford states that an adversary motion to dismiss this case was granted on January 11, 2002. Because that suit proceeded
to final judgment, it would be res judicata as to any claims based on the same operative facts against the same defendant or defendants.

6


coe oy a

DOCKETEI

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS JUL.O 2 200
EASTERN DIVISION :
CELLO PETTIFORD ) o
) G8
Plaintiff, ) ‘ aa
) No. 02 C 1777 3 .Fe
. ) a2 5 8
) Judge Robert W. Gettléi a
MICHAEL SHEAHAN, et al., ) Ge 2 2
) 8 Sor
Defendants. ) < oo
Zz a

MEMORANDUM OPINION AND ORDER

Plaintiff Cello Pettiford, currently detained in the Cook County Jail, filed a pro se complaint
under 42 U.S.C. § 1983 alleging violations of his constitutional rights during previous
confinements there. By order dated April 18, 2002, the court granted Pettiford leave to proceed
in forma pauperis but dismissed the complaint because the court’s initial review of the complaint,
as required by 28 U.S.C. § 1915A, disclosed two serious problems. Because it appeared that
Pettiford might be able to state a claim that would survive these objections, Pettiford was given
leave to file an amended complaint within thirty days. Pettiford failed to do so, and the court
dismissed this suit. However, before the dismissal order was entered on May 29, 2002, Pettiford
had filed a motion for reconsideration and extension of time. On June 7, 2002, the court vacated
the dismissal and now grants the motion for reconsideration in part.

The first problem identified by the court was that all of Pettiford’s claims appeared barred
by the statute of limitations.’ Illinois’ two-year statute of limitations for personal injury claims,
735 ILCS 5/13-202, governs § 1983 claims arising in Illinois. Henderson v. Bolanda, 253 F.3d
928, 931 (7th Cir. 2001). Pettiford’s complaint was dated February 28, 2002, and received March

! Although limitations is an affirmative defense, “when the existence of a valid affirmative defense is so plain from the face of
the complaint that the suit can be regarded as frivolous, the district judge need not wait for an answer before dismissing the suit."
Walker v. Thompson, 288 F.3d 1005, 1010 (7th Cir. 2002). Because there was a possibility that some claims were not barred, the
complaint was dismissed with leave to amend.

f&


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7, 2002.” But Pettiford’s complaint begins with an account of his assault by sheriff’s deputies in
April of 1995, and the latest action of which he complains took place "on or about 14 February
2000."

The Seventh Circuit recently held that the limitations period is tolled while a prisoner
exhausts administrative remedies as required by 42 U.S.C. § 1997e(a). Johnson v. Rivera, 272
F.3d 519 (7th Cir. 2001). In its order dismissing Pettiford’s complaint, the court recognized that
it was possible that some of Pettiford’s claims could be timely if grievances had been pending with
respect to them within two years before he filed this suit. Pettiford had stated that he had been
released from custody on May 26, 2000, only three months short of two years before the filing
date. After May 26, 2000, Pettiford was no longer a "prisoner" as defined in 28 U.S.C. § 1915(h)
and not required to exhaust administrative remedies, ending the tolling of the limitations period.
Pettiford was directed to allege in his amended complaint when he filed a grievance with respect
to each claim, when it was resolved, and the date and result of any appeal.

The second problem the court identified was res judicata, Latin for "a thing adjudged," the
principle that one final judgment on a claim is enough. This court’s records show that in Pettiford
vy, Pucinski, No. 00 C 3225, filed May 26, 2000, Pettiford sued six of the defendants named in this
case, Michael Sheahan, Marcus Lyles, Richard Remus, James Edwards, Henry Troka and a
"Deputy Demcak" (no first name given). It appeared that many of the incidents recited in the
present complaint had been alleged in Pettiford v. Pucinski, which had been dismissed for want of
prosecution on December 19, 2000. In federal court, dismissal for want of prosecution is dismissal
with prejudice, unless otherwise stated in the court’s order. LeBeau v. Taco Bell, Inc., 892 F.2d
605, 607 (7th Cir. 1989). Because the dismissal was a final judgment with prejudice, res judicata

prevents Pettiford from bringing a new suit against any defendant named in the prior suit on any

» Although a complaint is not actually filed until the filing fee is paid or the plaintiff given leave to proceed without prepayment,
it is deemed filed for limitations purposes on the date it is received. In the case of an incarcerated person, it is deemed filed when given
to institutional officials for mailing. Local Rule 3.3(d)(1); see Edwards v, United States, 266 F.3d 756, 758 (7th Cir. 2002)(""We need
not decide here whether there is any kind of paper, or any circumstance, under which a district court would be entitled to hold a pro
se prisoner litigant to an actual receipt standard, but we are confident that this would be an exceptional situation.").

2