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Wilson v. Wexford Health Sources, Inc.

United States Court of Appeals, Seventh Circuit

July 26, 2019

Gregory S. Wilson, Plaintiff-Appellant,
v.
Wexford Health Sources, Inc., et al., Defendants-Appellees.

          Argued April 15, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16 C 8446 - Sharon Johnson Coleman, Judge.

          Before Wood, Chief Judge, and Bauer and St. Eve, Circuit Judges.

          WOOD, CHIEF JUDGE.

         Gregory Wilson was an inmate at Illinois's Stateville Correctional Center. This case concerns the medical care he received there for an inguinal hernia. The hernia was first spotted in the 1990s, but then it apparently subsided. In 2011, it reappeared in the identical spot. Wilson, by that time at Stateville, says that the 2011 recurrence was extremely painful. He complains that the prison's medical officers refused to listen to him and delayed giving him hernia-repair surgery, instead forcing him repeatedly and fruitlessly to push the herniated tissue back into his abdominal cavity.

         Eventually, however, in September 2014 Wilson did receive surgery, which was successful. Precisely what Wilson told medical personnel and what kind of treatment he should have received during the three years before the surgery is the subject of this case. Wilson asserts that Wexford Health Sources, LLC ("Wexford"), the private company that provides medical services at Stateville, along with Dr. Imhotep Carter, Dr. Saleh Obaisi, and Physician's Assistant (PA) LaTanya Williams, violated his Eighth Amendment rights through deliberate indifference to his serious medical needs. He seeks damages under 42 U.S.C. § 1983.

         After the court dismissed Dr. Carter on statute of limitations grounds, the case proceeded to discovery. Before trial, the district court granted several motions in limine filed by the defendants. This resulted in the exclusion of several reports and a ban on Wilson's mentioning a respondeat superior theory of liability for Wexford. After the close of Wilson's case, the defendants moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). The court granted the motion and dismissed the case. Although we agree with most of these rulings, we conclude that the court dismissed Dr. Obaisi too quickly, and so a remand is necessary with respect to him.

         I

         Given the posture of the case, our account of the facts presents them in the light most favorable to Wilson; these are not either the jury's or our independent findings. Wilson testified that he first noticed the reappearance of his hernia in 2011. Though painful, the hernia was small and "reducible," meaning that Wilson could manually push the protruding tissue back into his abdominal cavity. At trial, Wilson said that he first submitted a complaint about the hernia in January 2012, and around that time he saw Dr. Carter, who was then the medical director of Stateville. Dr. Carter refused to listen to Wilson or help him with his hernia. In May 2012, Dr. Carter left Stateville.

         Because Wilson did not file this suit until August 30, 2016, the question naturally arises whether it is time-barred with respect to Dr. Carter. We review this question de novo. Middle-ton v. City of Chicago, 578 F.3d 655, 657 (7th Cir. 2009). All parties agree that this action under section 1983 is subject to Illinois's two-year statute of limitations and tolling rules. Devbrow v. Kalu, 705 F.3d 765, 767 (7th Cir. 2013). Accrual, however, is governed by federal law. Id. In Heard v. Sheahan, 253 F.3d 316 (7th Cir. 2001), we recognized that a section 1983 Eighth Amendment claim based on deliberate indifference in the delivery of medical care does not necessarily allege a single event or a series of events, but may describe an ongoing denial of care. Id. at 319. In such cases, we have a continuing violation for accrual purposes. The alleged wrong-the refusal to provide medical care-"continued for as long as the defendants had the power to do something about [the plaintiff's] condition." Id. at 318. But even under that theory, if a defendant leaves the institution altogether, his involvement in the alleged wrong is over. The date of the defendant's departure thus marks the last possible time when the claim might have accrued. In Dr. Carter's case, that date is in May 2012, when he resigned. See also Heard v. Elyea, 525 Fed.Appx. 510 (7th Cir. 2013) (nonprecedential).

         Initially Wilson filed a complaint in May 2013. After several amendments and years of discovery, the court dismissed that complaint without prejudice, because Wilson was still pursuing administrative remedies within Stateville. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). By the time Wilson refiled the complaint, it was August 2016. That is the date that matters here. Wilson cannot rely for limitations purposes on the filing date of the dismissed complaint. Dupuy v. McEwen, 495 F.3d 807, 810 (7th Cir. 2007) ("[W]hen a suit is dismissed without prejudice, the statute of limitations continues to run from the date (normally the date of the injury) on which the claim accrued."). Because the accrual date is no later than Dr. Carter's last day of work at Stateville, Wilson's claim against him is untimely unless another legal rule saves it.

         Wilson believes that he has found such a rule in Illinois's savings statute. 735 ILCS 5/13-217. That statute gives plaintiffs a year to refile a state suit following a dismissal by a federal district court, as relevant here, "for lack of jurisdiction" or "improper venue." Id. The statute also applies to cases that were "voluntarily dismissed by the plaintiff or dismissed for want of prosecution by the court." Id. But, even assuming that a state statute is capable of providing extra time for filing a suit in federal court, none of those reasons applies to Wilson's case-the court dismissed for lack of exhaustion, and so the savings statute cannot help him.

         We note as well that Wilson cannot rely on another Illinois tolling rule, which applies when the commencement of an action is stayed by statutory prohibition. See 735 ILCS 5/13-216. This provision applies to prisoner litigants such as Wilson who are subject to the exhaustion of remedies requirement imposed by the Prison Litigation Reform Act. Johnson v. Rivera,272 F.3d 519, 522 (7th Cir. 2001). Wilson's limitations clock for Dr. Carter did not begin to run until his administrative grievance was denied. Id. That happened, at the latest, in January 2014-a date that is also more ...


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