United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. Simon CHIEF JUDGE
Konrath, a pro se prisoner, filed a complaint alleging that
his divorce lawyer committed legal malpractice from 2009
until March 2011. He acknowledges that Indiana has a two-year
statute of limitations for legal malpractice claims. However,
he argues that ever since he was diagnosed with Type II
Bipolar Disorder in 2001, he has been under a legal
disability which tolls the statute of limitations. “A
document filed pro se is to be liberally construed, and a pro
se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quotation marks and citations omitted). Nevertheless,
pursuant to 28 U.S.C. § 1915A, I must screen the
person who is under legal disabilities when the cause of
action accrues may bring the action within two (2) years
after the disability is removed. Ind. Code §
34-11-6-1.” Whitlock v. Steel Dynamics, Inc.,
35 N.E.3d 265, 270 (Ind.Ct.App.), transfer denied, 37 N.E.3d
960 (Ind. 2015) (quotation marks and emphasis removed). Here
is how the Indiana Courts have explained what it takes to
qualify as being under a legal disability.
“Under legal disabilities” includes
“persons less than eighteen (18) years of age, mentally
incompetent, or out of the United States.” Ind. Code
§ 1-1-4- 5(24) (emphasis added). “Mentally
incompetent, ” in turn, means “of unsound
mind.” I.C. § 1-1-4-5(12). “Of unsound
mind” is not currently defined in the Indiana Code.
See Fager v. Hundt, 610 N.E.2d 246, 250 n. 2
(Ind.1993). The Indiana Supreme Court noted that although the
phrase “of unsound mind” was previously defined,
that statute was repealed in 1990 by P.L. 1-1990, Sec. 334.
Id. (citing the previous statute, Indiana Code
section 34-1-67-1). Specifically, “of unsound
mind” was previously defined to include “idiots,
noncompotes (non compos mentis), lunatics and distracted
persons.” Id. (emphasis added). The phrase
“distracted person” was construed to mean
“a person who by reason of his or her mental state is
incapable of managing or procuring the management of his or
her ordinary affairs.” Id. (quoting Duwe
v. Rodgers, 438 N.E.2d 759, 761 (Ind.Ct.App.1982));
see also Collins, 323 N.E.2d at 269 (noting that to
be considered of unsound mind, the relevant proof “is
whether the person claiming the benefit of the extension
statute is incapable of either understanding the rights that
he would otherwise be bound to know, or of managing his
affairs, with respect to the institution and maintenance of a
claim for relief”).
on Konrath's description of himself in other filings in
this court, it is clear that his Type II Bipolar Disorder did
not prevent him from managing his ordinary affairs since
2001. In his complaint in another case, Konrath describes
himself as a highly successful orthopedic surgeon who was
able to climb the highest mountain on all seven
continents. (Cause No. 3:16CV537, DE 1 at 2.) In 2009
he earned $1.7 million dollars. (Id.)
he took a medical leave in May 2010, he was ready to return
to work in August 2010. (Id. at 3.) His earnings
decreased when he changed positions, but he still practiced
medicine and was able to earn $600, 000/year. (Id.
at 4.) It is unclear what limitations his Type II Bipolar
Disorder placed on him, but it is clear that he was not under
a legal disability and unable to manage his own affairs. The
statute of limitations was not tolled and this claim is
legal disability claims might be close calls - this one is
not. This claim is frivolous. Some unsophisticated pro se
filers might not understand whether they were legally
disabled. They might file a case like this out of ignorance.
Konrath was an orthopedic surgeon. He is a highly educated
individual. This is one of 47 cases he has filed in this
court. Though not formally trained in the law, he includes
citations to cases and statutes. He makes reasoned legal
arguments and is not just parroting what he has read. He has
demonstrated that he understands the legal concepts he is
presenting. Therefore this case will be dismissed because it
it is usually necessary “to give pro se litigants one
opportunity to amend after dismissing a complaint[, ]
that's unnecessary where, as here, it is certain from the
face of the complaint that any amendment would be futile or
otherwise unwarranted.” Carpenter v. PNC Bank, Nat.
Ass'n, No. 633 Fed.Appx. 346, 348 (7th Cir. Feb. 3,
2016) (quotation marks omitted). See Luevano v.
Wal-Mart, 722 F.3d 1014 (7th Cir. 2013) and Hukic v.
Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009)
(“[C]ourts have broad discretion to deny leave to amend
where . . . the amendment would be futile.”).
these reasons, this case is DISMISSED pursuant to 28 U.S.C.
§ 1915A because it is frivolous.