Gregory S. Wilson, Plaintiff-Appellant,
Wexford Health Sources, Inc., et al., Defendants-Appellees.
April 15, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 16 C 8446 -
Sharon Johnson Coleman, Judge.
Wood, Chief Judge, and Bauer and St. Eve, Circuit Judges.
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
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.
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.
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.
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)
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
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.
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