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McMillion v. Mollenhauer

United States District Court, N.D. Indiana

December 2, 2014



RESA L. SPRINGMANN, District Judge.

The pro se Plaintiff, Johnnie McMillion, has sued four individuals she believes violated her rights under the First Amendment and various civil rights laws. The Plaintiff's pleading points to six distinct events that she maintains were illegally motivated by a desire to retaliate against her for failing to support Defendant Sheriff Michael F. Mollenhauer's primary election campaign, or were motivated by her race, gender, or age. The Plaintiff also cites the Family Medical Leave Act, and to disparate treatment under the Act, as a basis for recovery. The Plaintiff and all the Defendants have moved for summary judgment. For the reasons stated below, the Court finds that the Defendants are entitled to judgment as a matter of law on all claims.


"[A] district court cannot properly act on a motion for summary judgment without giving the opposing party a reasonable opportunity to submit affidavits that contradict the affidavits submitted in support of the motion and demonstrate that there is a genuine issue of material fact which precludes granting the defendants summary judgment." Lewis v. Faulkner, 689 F.2d 100, 101 (7th Cir. 1982); see also Timms v. Frank, 953 F.2d 281, 285-86 (7th Cir. 1992). The purpose of the notice is to warn an unrepresented party of the consequences of failing to respond with affidavits, or other evidence, as distinct from responding with argument. Bryant v. Madigan, 91 F.3d 994, 996 (7th Cir. 1996). Unless notice is sent to an unrepresented party that outlines the consequences of failing to respond to a motion for summary judgment, any grant of summary judgment may be invalid. Id. The Northern District of Indiana has adopted a local rule that requires "[a] party seeking summary judgment against an unrepresented party" to "serve that party with the notice contained in Appendix C." N.D. Ind. L.R. 56-1(f). This notice thoroughly advises a pro se litigant of his or her obligations under Federal Rule of Civil Procedure 56 and Northern District of Indiana Local Rule 56-1.

The Defendants filed their Motion for Summary Judgment on June 9, 2014, but did not provide the appropriate notice to the Plaintiff. Upon realizing that the Plaintiff had not received warning of the consequences of failing to respond to the Defendant's Motion with evidentiary materials, the Court directed the Defendants to provide the appropriate notice. On October 21, 2014, the Defendants issued to the Plaintiff a Notice of Summary Judgment Motion to Pro Se Litigant [ECF No. 125]. The Plaintiff then filed a "Respond to Memorandum in Support of Motion of Sheriff Mollenhauer for Summary Judgment and/or Reply in Support of Motion of Plaintiff for Summary Judgment" [ECF No. 126]. Additionally, the Plaintiff filed responses previously on June 20, 2014 [ECF Nos. 103, 104, 105, and 106], along with a Supplemental Declaration of Johnnie McMillon[1] [ECF No. 107]. The docket also contains submissions from the Plaintiff that she characterizes as being in response to the Defendant's reply briefs or as a reply in support of her own Motion for Summary Judgment [ECF Nos. 120, 121, 122, and 123]. The Court is satisfied that the Plaintiff has been adequately advised of summary judgment procedures and response obligations, and that the matter is ripe for this Court's review.


On October 29, 2012, the Plaintiff filed a Complaint Pursuant to 42 U.S.C. § 1983. She complained that events that took place in May and August 2010 were retaliation against her for not campaigning for Sheriff Mollenhauer in the primary election, and that the August 2010 actions also constituted race discrimination. The Plaintiff claimed that she was demoted in November 2010 due to her race, age, and gender, and that in June 2011, her employer treated her differently under the Family Medical Leave Act (FMLA) because of her race. The only Defendant the Plaintiff named in her Complaint was Sheriff Michael F. Mollenhauer. On January 25, 2013, the Plaintiff filed a Motion for Leave to File Second Amended Complaint, stating that she wanted to add more information and facts. On February 4, 2013, the Plaintiff filed a "Statement of fact for Amendment to Leave of Second Complaint." The document appeared to be alleging facts and claims against the Sheriff as well as three other individuals, Sergeant Steven Vance, Captain Scott Bell, and Matron Sue Mollenhauer. The Plaintiff also attached proposed summonses for these individuals. This document was stricken as confusing, and the Plaintiff was given leave to amend her complaint. The Plaintiff filed her amended complaint on April 8, 2013.

The Defendants argue that all but three of the claims against Sheriff Mollenhauer are barred by the statute of limitations. The other Defendants, who were added to this litigation through the Amended Complaint, also assert the statute of limitations as a bar to all but one of the Plaintiff's claims. Because § 1983 does not provide for a specific statute of limitations, federal courts look to the law of the state where the injury occurred to determine the statute of limitations in a § 1983 case. Wilson v. Garcia, 471 U.S. 261, 280 (1985); Kelly v. City of Chi., 4 F.3d 509, 510 (7th Cir.1993). Specifically, they incorporate the forum state's limitations period for personal injury claims, Malone v. Corr. Corp. of Am., 553 F.3d 540, 542 (7th Cir. 2009), which in Indiana is two years, Ind. Code § 34-11-2-4.

The Plaintiff has not asserted timely First Amendment retaliation or race discrimination claims with respect to the allegations that Captain Bell asked why the Plaintiff placed a trustee in the kitchen to spy on Matron Mollenhauer (May 2010) and that Matron Mollenhauer accused the Plaintiff of screaming and cursing at Matron Mollenhauer and Mike Jones (August 2010). The statute of limitations for these § 1983 claims expired in May 2012 and August 2012-two years after the alleged retaliatory events. The October 29, 2012, Complaint did assert timely claims against Sheriff Mollenhauer for the November 2010 demotion and the June 2011 medical leave.

The Defendants who were added to the lawsuit through the Plaintiff's amended pleading, however, are only answerable for the June 2011 events. The amendment, sought in January 2013, was too late to add defendants for the November 2010 event because the statute of limitations had already run. See Wood v. Worachek, 618 F.2d 1225, 1229 (7th Cir. 1980) ("[A] new defendant cannot normally be substituted or added by amendment after the statute of limitations has run.").

For completeness of the record, the court also finds that the Plaintiff's amendments do not satisfy the rule of relation back under Rule 15(c)(1)(C). The rule allows an amendment that changes the party against whom a claim is asserted to "relate back" as if it were filed on the date of the original pleading when:

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

Fed. R. Civ. P. 15(c)(1)(B) and (C).

The Plaintiff's amendments do not relate back to the original complaint because she did not make a "mistake" concerning the identity of the proper party within the meaning of Rule 15(c)(1)(C)(ii). See King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 914 (7th Cir. 2000) (noting that the mistake requirement is independent from the other requirements for relation back). The individuals named as Defendants in the amended pleading were merely mentioned in the body of the original Complaint where the Plaintiff set forth the factual support for her claims. But the Plaintiff only listed one Defendant, Sheriff Michael F. Mollenahauer (Compl. 8), in the section of the Complaint where the Plaintiff was instructed to list everyone she was suing. Moreover, on the first page of the Complaint, the Plaintiff responded emphatically and unambiguously to the inquiry "How many defendants are you suing." She wrote, "One!" (Compl. 1.) "It is the plaintiff's responsibility to determine the proper party to sue and ...

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