lintitations. In Houston v. Lack, 487 U.S. 266 (1988), the Supreme Court held that a prisoner
files his notice of appeal ut the time he delivers it to prison authorities for forwarding to the
court. dd. at 276, The Seventh Circuit has assumed, but not expressly decided, that the Houston
“mailbox rule” extends to other pro se prisoner filings. See Jones v. Bertrand, 171 F.3d 499,
501-02 (7" Cir. 1999) (applicd the rule to a petition for habeas corpus); Simmons v. Ghent, 970
T',2d 392, 392 (7 Cir. 1992) (applied the rule to a Rule 59(e) motion). The Fourth and Fifth
Circuits have extended the //ouston “mailbox rule” to cover Section 1983 claims. See Cooper v.
Hrookshire, 70 F.3d 377, 379 (5" Cir. 1995); Lewis v. Richmond City Police Dept., 947 F.2d 733,
736 (4" Cir. 1991). These rulings extending the “mailbox rule” are consistent with the notion
thal pro se prisoners do not have the same access to the court system as other litigants, and in
order for justice 1o be served, their papers should be considered filed when given to prison
officials. Jones, 171 F.3d at 502; Cooper, 70 F.3d at 379; Lewis, 947 F.2d at 735.

Moreover, the Local Rules of this Court appear to have extended the Houston “mailbox
rule” to pro se prisoner filimgs when the inmate also files an in forma pauperis application with
his complaint. Local Rule 3.3(d) of this Court provides in pertinent part:

(d) Date of filing, If the judge grants the IFP petition, the complaint shall be filed

as of the date of the judge’s order except that where the complaimt must be filed

within a time limit and the order granting leave to file is entered after the

expiration of that lime limit, the complaint shall be deemed to have been filed:

(1) in the case of any plaintiff in custody, as of the time of the plaintiffs
delivery of the complaint to the custodial authorities for transmittal to the

courts...

Here, McPherson dated his complaint January 22, 2003, and the trust fund officer dated his

motion to proceed ia forma pauperis January 27, 2003—before the statute of limitations would



a

McPherson, however, it seems prudent to have McPherson’s counsel evaluate the case and
determine whether an amendment is warranted. Accordingly, McPherson’s motion for leave to
umend is denied without prejudice,
CONCLUSION
lor the foregoing reasons, defendant Bunch’s molion to reconsider is denied. Bunch
shal] answer the complaint wilhin twenty days of the date of this order. Additionally,
McPherson’s motion for appointment of counsel is granted, and his motion to amend the

complaint is denied without prejudice.

ENTERED:

VemrR Daten

HON. NAN R. NOLAN
United States Magistrate Judge

Date: April 30, 2004



prejudice on June 21, 2002, came well before this court received McPherson’s instant complaint
on February 11, 2003 (which was filed in the proper district and named one servable defendant).

Bunch’s motion to reconsider is denied on this basis.

Second, defendant Bunch argues that McPherson’s complaint is lime barred because he
did not lodge his complaint until February 11, 2003-six days after the statute of limitations
expired. ‘The statute of limitations for § 1983 actions arising in Illinois is two years. See
Henderson v. Bolanda, 253 F.3d 928, 931 (7" Cir. 2001), citing Ashafa v. City of Chicaga, 146
F.3d 459, 461 (7" Cir, 1998); Farrell v. McDonough, 966 F.2d 279, 280-82 (7° Cir. 1992);
Kalimara v. Illinois Department of Corrections, 879 ¥.2d 276, 277 (7" Cir, 1989). Mlinois no
longer tolls the statute of limitations for inmates. See Wilson v. Giesen, 956 F.2d 738, 741 (7"
Cir, 1992); Knox v. Lane, 726 F.Supp. 200, 201-02 (N.D, [(J1, 1989). Although state law governs
ibe length of the statute of limitations, federal law governs the accrual date of the cause of action.
See Sellars v. Perry, 80 F.3d 243, 245 (7" Cir. 1996). A claim generally accrues when the
plaintiff knows or has reason to know of the injury. Jd, McPherson obviously was aware of his
injury when he suffered it. He does not contend, for example, thal he was unconscious or
comatose for a length of time after he fell, McPherson’s cause of action therefore accrued on
lebruary 5, 2001.

The court received McPherson’s complaint on February 11, 2003, and Judge Ronald A.
Guyman! granted McPherson’ motion to proceed in forma pauperis on February 19, 2003.

Neither of these dates, however, are the controlling dates for purposes of the statute of

"The parties consented to the exercise of jurisdiction by a United States Magistrate Judge, and
Ihis section was reassigned lo Magistrate Judge Nolan on May 6, 2003, pursuant to Local Rule 73.1,

3



have run, However, the envelope in which McPherson’s complaint was mailed to the court is
postmarked February 8, 2003 — after the statute of limitations expired.

‘The court cannot delermine from this limited information when McPherson delivered his
complaint to the custodial authorities for transmittal to the court. Any number of factors could
have caused a delay from the time McPherson actually delivered his complaint to officials for
nailing to the time when it was postmarked. McPherson states in his response that he delivered
ihe complaint for mailing on January 27, 2003. He also asks the court to contact Stateville
Correctional Center to obtain copies of his trust fund account and the like in order to show that
he delivered the complaint to prison officials for mailing before the statute of limitations expired.
‘Lhe court cannot obtain documents on behalf of McPherson. Llowever, on this motion to
reconsider the denial of defendant Bunch’s motion to dismiss, the court must accept
MePherson’s statements as tue, and he maintains that he delivered the complaint to prison
officiais for mailing on January 27, 2003.

Tn his reply, Bunch argues that McPherson has admitted m his response to the motion to
reconsider that Bunch was belatedly scrved because McPherson did not know he needed to name
a defendant at the time he lodged his action in the Central District, McPherson is proceeding pro
se, and this court will not entertain arguments that altempl to take advantage of McPherson’s lack
of legal knowledge. Jt is obvious to the court that McPherson was trying to explain why he did
not do anything further with the case in the Central District and that McPherson was confused by
the assistant attorncy gencral’s specious argument that the instant complaint is an amendment to

the complaint filed in the Central District. Bunch’s motion to reconsider is accordingly denied as

to his argument that the complaint is untimely.



-Minnte Grder Faron (06497)
5

‘ United States Distriet Court, Northern District of Illinois
| vol Assigned Judge NAN R, NOLAN Sitting Judge if Ouher
L. or Magistrate Judge ‘ than Assigned Judge
NUMBER 03 C 1008 DATE Apmil 30, 2004
CASK McPherson y. Bunch
TITLE

[In the fillowingbox (a) indicate the purty filing the motion, ¢.g., plaintif{, defendunt, 3rd party plaintiff, and (h) state briefly the nuture

MOTION: af the motion being presented.]

POCKET ENTRY:

a) im Liiled motion of [ use listing in “Motion” box above.)

(2) oO Brief in support of motion due

(3) o Answer brief to motion due___. Reply to answer brief due

{4) o Ruling/Hearing on _setfor at

(5) o Status hearing[held/continucd to] [set for/re-set for} on__—esct for at

(6) oO Pretrial conference{held/continued to] |sct for/re-set for} on set fora

ws) o Uriallscl for’re-set for] on at

(8) i [Bench/Jucy trial] [fearing] held/continued to at.

(9) tl Lhis case is dismissed [with/without] prejudice and wilhout costs[by/agreement/pursuant to]

OFRCP4(m) (] General Rule 21 OO FRCP41(ayi1) OO FRCP41(a)(2).

(10) a Other docket entry] Defendant's motion to reconsider |26] is denied, Plaintiff's mation to deny defendant's motion
to reconsider [27-1] is construed to be plaintiff's response to the motion to reconsider and the clerk is directed to terminate
itas a motion. Plaintiffs motion for reconsideration of appointment of counsel and affidavit in support 127-2] is granted. ‘The
court appoints Sheri De Koven, Attorney at Law, 480 Central Avenue, Northticld, TT. 60093, (847)441-G500, ext. 3011, to

sent plaintiff in accordance with counscl’s trial bar obligations under the District Court’s Local Rules 83.11(g) und 83.37

Plaintif!’s motion to amend pleadings [27-3] is denicd without prejudice to appointed counsel filing an amendedcomplaint.

i Defendant's answer is due on or before May 20, 2004. This matter is sel for status on June $, 2004 at 9:00 a.m,

rep

;Cp if {For further detail see attached Memorandum Opinion and Order,]

No noes required, advised ia open court [ Doeuthent
Number

No notices required eet came

Notices nailed by judge's staff.

Notified counsel by telephone. Sos OY,

X_ |] Rocketing to mail notices:

&.
Mail AQ 480 form, . docket: deylty initials O
Copy to judgchiiagistrate jute. :

fate mulled wie

courtrapn
CLH depuly’s,
initials

Date/time received in
central Clerk's Office ailing depmry initials



‘Chird, Bunch argues that he was not timely served. The instant action was filed when
McPherson delivered the complaint to custodial authorities to send to the court, N.D. IIL L.R.
3.3(d), which (or present purposcs the court accepts occurred before February 5, 2003.
Delendant Bunch was served on February 28, 2003. Bunch was therefore served well within the
120 days allowed by Rule 4(m) of the Federal Rules of Civil Procedure.’ The court cannot
emphasize any more than it already has that the action filed in the Central District has no bearing
on this action. That case was dismissed without prejudice, which freed McPherson to start his
casc anew. McPherson, who is pro se, is to be commended for discovering the name of
defendant Bunch and bringing his action in the proper district. Bunch’s motion to reconsider is
accordingly denied as to his argument that he was not timely served.

BB. McPherson’s motion for reconsideration of appointment of counsel and to amend
pleadings

McPherson asks the court to reconsider his motion for appointment of counsel, which
was previously denied without prejudice. At this stage, the cour! finds that appointment of
counsel is warranted, and thus grants McPherson's motion to reconsider his motion for
appointment of counsel.

McPherson also moves to amend his complaint. It appears thal McPherson wants to
amend his requested relief. The court does not allow piccemeal amendments—McPherson

would have to file an amended complaint. Because the court is appointing counsel to represent

"Rule 4(m) of the Federal Rules of Civil Procedure provides:
If service of the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint, the court, upon motion or
on its own initiative after notice to the plaintiff, shall dismiss the action
without prejudice as to that defendant... -

6



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF LLLINOIS
EASTERN ILLINOIS

GIORGIO McPHERSON,

Plaintiff,
y. CASE NO. 03 € 1008

EDDIE BUNCH, et al. Magistrate Judge Nan R. Nolan

Defendants,

MEMORANDUM OPINION AND ORDER

Plaintiff Giorgio McPherson, currently an inmate at the Lawrence Correctional Center,
brought this pro se complaint pursuant to 42 U.S.C. § 1983, alleging that defendant Eddie Bunch
and unknown defendants were deliberately indifferent to his serious medical needs because they
did not honor the “low bunk/low gallery” permit that medical staff had issued when McPherson
arrived at the Joliet Correctional Center on January 26, 2001. Instead McPherson was placed on
gallery three. According to McPherson, he informed Officer Eddie T.. Bunch that he had epilepsy
aod should not be on gallery three. Bunch agreed, but never moved McPherson to a lower
yallery. On February 5, 2001, McPherson had an epileptic seizure as he was going down the
stairs. He {cll from gallery three to gallery onc and broke his lefi wrist and right arm and clbow.

Bunch filed a motion to dismiss claiming (1) that the statute of limitations barred
McPherson’s cause of action; (2) that McPherson filed a previous action in the Central District
about this incident, which was dismissed; and (3) that McPherson failed to state a claim. On
January 27, 2004, the court denied Bunch’s motion to dismiss, Bunch has now filed a motion to
reconsider to which McPherson has responded. For the following reasons, Bunch’s motion to

reconsider is denicd.



DISCUSSION

A. Defendant Bunch’s Motion to Reconsider

Virst, Bunch argues that McPherson filed this action previously on February 15, 2002 in
the Central District of Tlinois and thus has already had his first bite at the apple. Pro se or not, a
litigant has one chance to sue the same parties for the same events in federal court. See
Federated Department Stores, Inc. v. Moitie, 452 U.S. 394 (1981) (one dispute between the same
parties may be litigated only once when first judgment rendered by a federal court). A litigant is
harred with respect to all claims that were, or could have been, raised in the first suit. Montana
v. United States, 440 U.S. 147, 153 (1979). As many courts have concluded, a complaint that
secks to relitigate previously dismissed claims is both frivolous and malicious. See Okoro v.
Bohman, 164 F.3d 1059, 1064 (7" Cir, 1999); DePineda v. Hemphill, 34 F.3d 946, 948 (10" Cir.
(994); Sassower v, American Bar Ass‘n, 33 F.3d 733 (7" Cir, 1994); Pittman v. Moore, 980 F.2d
994, 995 (5"" Cir. 1993); Aziz v. Burrows, 976 F.2d 1158 (8" Cir. 1992); Crisafi v. Holland, 655
F.2d 1305, 1309 (D.C. Cir. 1981); Phillips v. Carey, 638 F.2d 207, 209 (10" Cir), cert. denied,
450) U.S, 985 (1981), Graham v. Riddle, 554 F.2d 133, 135 (4" Cir. 1977). While all this is true,
McPherson’s complaint was never litigated in the Central District. Judge Harold A. Baker
dismissed the complaint without prejudice on June 21, 2002 (this court’s emphasis), See
McPherson vy. LDOC, No, 02-3045 (C.D. UL, June 21, 2002),

Bunch appears to be arguing that the instant complaint constitutes an amended complaint
to the one filed in the Central District. The court is hard pressed to sec how the Assistant
Attorncy General who is representing Bunch can make this argument. Judge Baker’s order,

which she attached, clearly states that the dismissal is without prejudice. The dismissal without