NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 21, 2014*
Decided March 13, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 13‐1628
Appeal from the
LAVERTIS STEWART, United States District Court for the
Plaintiff‐Appellant, Northern District of Illinois,
Western Division.
v.
No. 12 C 50273
SPECIAL ADMINISTRATOR OF THE
ESTATE OF ANTREAS MESROBIAN, et al., Philip G. Reinhard,
Defendants‐Appellees. Judge.
O R D E R
LaVertis Stewart, a 58‐year‐old Illinois inmate, appeals from the dismissal at
screening of his civil‐rights suit. See 28 U.S.C. § 1915A. He claims that he suffers cruel
and unusual punishment when forced to wear a security box over his handcuffs, which
*
The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that the case is appropriate for summary disposition. See FED. R. APP.
P. 34(a)(2)(C).
No. 13‐1628 Page 2
causes severe pain because of carpal tunnel syndrome in both wrists and chronic pain in
his right shoulder. We vacate the judgment in part and remand for further proceedings.
For purposes here, we accept as true Stewart’s factual allegations. He receives
physical therapy in prison for his carpal tunnel syndrome and bursitis in his shoulder.
He also suffers from cirrhosis of the liver and leaves the prison every month or two for
medical treatment. During these trips, which last at least eight hours, Stewart must
wear the security box unless granted an exemption by the prison’s medical director.
(The security box covers the handcuff locks and forms a rigid link between the wrists.)
Stewart experiences severe pain from the security box while wearing it, and for several
days afterward, he has pain, numbness, and swelling in his wrists and substantial pain
in his shoulder. In March 2009 he alerted the medical director, Dr. Antreas Mesrobian,
about the pain he experienced. Dr. Mesrobian promised to issue an exemption, but
when Stewart prepared to leave the prison for treatment in April and told the guards
about the exemption, they didn’t find one in his file. The guards checked with a nurse
and were told that Dr. Mesrobian would not issue an exemption.
Stewart saw Dr. Mesrobian later that day and again in May, both times
emphasizing that the security box causes him severe pain, but Dr. Mesrobian refused to
order an exemption. Stewart submitted a grievance in June 2009 and appealed to the
Administrative Review Board when it was denied. The Board referred the matter to
medical personnel for review in July 2010 (we are not told the reason for the long
turnaround), and the next month Stewart received a six‐month exemption from
Dr. Imhotep Carter, who had replaced Dr. Mesrobian as medical director. That
exemption eventually expired after several renewals, and beginning in May 2012,
Stewart again was forced to wear the security box.
Stewart brought this action in July 2012 claiming that Dr. Mesrobian and several
unnamed guards had been deliberately indifferent to the pain caused by the security
box. He asked the district court to enlist counsel. At screening the court dismissed the
suit as against the guards because, by Stewart’s account, they had responded to his
reports of pain by verifying with the nurse that an exemption wouldn’t be authorized.
The court also dismissed without prejudice the claim against Dr. Mesrobian, explaining
that he had died and that Stewart would need to substitute a party for him. The court
denied Stewart’s request for counsel, reasoning that the case was not overly complex,
and gave Stewart 45 days to amend his complaint. The court later extended that
deadline.
No. 13‐1628 Page 3
Stewart timely submitted an amended complaint naming as a defendant the
“special administrator” of Dr. Mesrobian’s estate (and asking the district court to
appoint one). He also named Dr. Carter in his official capacity (although by that time
Dr. Carter had been replaced as medical director), and the director of the Department of
Corrections. Stewart again asked the court to enlist counsel, pointing out that
Dr. Mesrobian’s death complicated his case and that he had been unable to find relevant
information about the doctor’s estate. The court screened the amended complaint,
which seeks damages and an injunction against use of the security box, and this time
dismissed it with prejudice on the ground that Stewart’s allegations make apparent that
the statute of limitations bars his claims against Dr. Mesrobian’s estate and the medical
director. In addition, the district court concluded that the medical director could not be
joined in a suit against Dr. Mesrobian’s estate. Finally, the court also rejected Stewart’s
claim against the IDOC director because, it reasoned, a general policy of using security
boxes does not violate the Eighth Amendment.
On appeal Stewart argues that his claim against Dr. Mesrobian’s estate was
timely. The limitations clock began ticking, according to the district court, in May 2009
when Dr. Mesrobian refused to issue an exemption after Stewart complained a third
time about the pain caused by the security box. The court acknowledged that Stewart
had tolled the statute of limitations the following month by submitting a grievance. But
the tolling period ended in July 2010, the court concluded, and thus the limitations
period expired in June 2012—a little more than two weeks before Stewart signed his
original complaint.
As Stewart correctly argues, however, the district court based its calculations on
the wrong starting date. He claims that he experienced severe pain every time he wore
the security box; each instance represents another potential violation and a new
limitations period, and when evaluating the timeliness of his claim, the last violation is
what matters. See United States v. Midwest Generation, LLC, 720 F.3d 644, 646–47 (7th Cir.
2013); Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013); Heard v. Sheahan, 253 F.3d 316,
318–20 (7th Cir. 2001). Stewart says the last violation during Dr. Mesrobian’s tenure as
medical director happened in October 2009. For purposes of screening, that is when the
claim accrued, but the limitations period was tolled until the grievance already filed by
Stewart was resolved. See Turley, 729 F.3d at 651; Johnson v. Rivera, 272 F.3d 519, 522 (7th
Cir. 2001). That didn’t happen until an exemption was granted in August 2010, less than
two years before Stewart filed his original complaint.
No. 13‐1628 Page 4
Although the limitations period expired before Stewart amended his complaint
in November 2010, that complaint will relate back if the defendants received notice of
the suit within 120 days of his timely filed complaint. See FED. R. CIV. P. 15(c), 4(m);
Krupski v. Costa Crociere S.P.A., 560 U.S. 538, 548 (2010) (“Rule 15(c)(1)(C)(ii) asks what
the prospective defendant knew or should have known during the Rule 4(m) period, not
what the plaintiff knew or should have known at the time of filing her original
complaint.”). The 120 days did not start until the district court granted Stewart’s
application to proceed in forma pauperis on August 8, 2012, see Donald v. Cook Cnty.
Sheriff’s Dep’t, 95 F.3d 548, 557 n.5 (7th Cir. 1996), so Stewart had until December 6 to
provide notice absent an extension for good cause. He filed his amended complaint by
giving it to the prison mailroom more than three weeks before that deadline. Of course,
no defendants actually received notice because the district court dismissed the amended
complaint at screening, but that should not count against Stewart. The amended
complaint had to pass screening before any defendant could be served with process,
see Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004), and the delay attributable to
screening was outside of Stewart’s control and constituted good cause to extend the
time for notice, see Graham v. Satkoski, 51 F.3d 710, 712–13 (7th Cir. 1995) (concluding
that delay attributable to Marshals Service constituted good cause); Sellers v. United
States, 902 F.3d 598, 602 (7th Cir. 1990) (concluding that failure of Marshals Service to
identify and serve defendant after receiving sufficient information from prisoner is
“automatically good cause”); Palk v. Dep’t of the Air Force, 830 F.2d 79, 83 (7th Cir. 1987)
(explaining that screening tolls statute of limitations); Robinson v. Clipse, 602 F.3d 605,
608 (4th Cir. 2010) (concluding that delay attributable to screening doesn’t count against
Rule 4(m)’s 120 days); Richardson v. Johnson, 598 F.3d 734, 738–39 (11th Cir. 2010)
(explaining that delay attributable to Marshals Service constitutes good cause);
see also Urrutia v. Harrisburg Cnty. Police Dep’t, 91 F.3d 451, 459 (3d Cir. 1996)
(suspending 120‐day period until service of amended complaint is authorized).
So the district court should not have dismissed as untimely the claim against
Dr. Mesrobian’s estate, and looking to the merits, we conclude that Stewart’s allegations
are sufficient to state a claim. Using a security box is permissible in some settings.
See Bruscino v. Carlson, 854 F.2d 162, 166 (7th Cir. 1988) (concluding that use of security
box was reasonable given history of violence at prison); Fulford v. King, 692 F.2d 11,
14–15 (5th Cir. 1982) (concluding that forcing prisoners to wear security box while
outside prison did not violate Eighth Amendment). But even security measures as
ordinary as handcuffs can be used in ways that violate the constitution. See Hope v.
Pelzer, 536 U.S. 730, 738 (2002) (holding that prisoner’s allegations, including that he
suffered unnecessary pain while handcuffed for seven hours, were sufficient to state
No. 13‐1628 Page 5
Eighth Amendment violation); Payne v. Pauley, 337 F.3d 767, 774–75 (7th Cir. 2003)
(reversing summary judgment on Fourth Amendment claim of excessive force based in
part on overly tight handcuffs). Stewart alleges that his carpal tunnel syndrome and
bursitis make use of a security box extremely painful and thus inappropriate for him, a
fact known but disregarded by Dr. Mesrobian and, apparently, the current medical
director. We cannot say at this stage that Stewart’s allegations are implausible,
particularly since medical exemptions are available and Stewart received one for an
extended period after his grievance reached the Administrative Review Board.
This does not mean that Stewart has cleared all procedural hurdles relating to
Dr. Mesrobian’s estate. The district court may appoint a “special administrator”
consistent with Illinois law only if a state judge has not opened the estate already;
otherwise, Stewart must sue the personal representative of the estate. See 735 ILL. COMP.
STAT. 5/13‐209(b); Anderson v. Romero, 42 F.3d 1121, 1125 (7th Cir. 1994) (appointing as
special administrators the lawyers who were representing Illinois inmate who died
intestate while suit under 42 U.S.C. § 1983 was pending); see also Ward v. Edgeton,
59 F.3d 652, 653 (7th Cir. 1995) (explaining that provision in 42 U.S.C. § 1988 authorizing
federal courts to borrow from state law as necessary to provide complete remedy in
§ 1983 actions empowered court of appeals to appoint special representative for inmate
who died while appeal was pending); Slade for Estate of Slade v. U.S. Postal Serv., 952 F.2d
357, 360 (10th Cir. 1991) (substituting decedent’s wife as plaintiff when no
representative had been appointed). Additionally, the application of Illinois law would
bar Stewart’s suit unless the estate is covered by liability insurance because
Dr. Mesrobian died more than two years before Stewart filed his complaint. See 755 ILL.
COMP. STAT. 5/18–12(b), (c); Water Tower Nursing & Home Care, Inc. v. Estate of Weil,
988 N.E.2d 217, 221 (Ill. App. Ct. 2013). We don’t know whether an Illinois court has
opened an estate for Dr. Mesrobian, or whether his estate is covered by liability
insurance. In fact, we don’t even know that the estate would have been probated in
Illinois, for it appears that Dr. Mesrobian died in California. See Antreas D. Mesrobian
Obituatary, THE DESERT SUN, http://www.legacy.com/obituaries/thedesertsun/obituary.
aspx?page=notice&pid=138787950 (last visited Feb. 24, 2014). Under California law if
Dr. Mesrobian’s estate is covered by insurance, Stewart could proceed directly against
the insurer without naming any estate representative. See CAL. PROB. CODE § 550(a). The
district court didn’t address Stewart’s renewed motion for counsel given its ruling on
the statute of limitations, but it will need to take up that motion on remand in light of
these issues. See Pruitt v. Mote, 503 F.3d 647, 656–59 (7th Cir. 2007) (en banc).
No. 13‐1628 Page 6
As for the other defendants, Stewart argues, and we agree, that the district court
erred by dismissing his claim against the medical director in his official capacity.
Stewart seeks an injunction against use of the security box. He says that he wore the
security box as recently as May 2012, and nothing in the record suggests that use of the
security box is not ongoing and will not continue. Moreover, we disagree with the
district court that the claim against the medical director is unrelated to the claim against
Dr. Mesrobian’s estate and cannot be joined in the same lawsuit. The court cited
George v. Smith, 507 F.3d 605, 606–07 (7th Cir. 2007), but that decision dealt with
24 defendants and dozens of distinct suits and unrelated claims all heaped into one
complaint that we called “sprawling,” a “blunderbuss,” and a “mishmash.” That is far
from this case. Stewart’s claims all relate to alleged continuing violations that are
properly joined in one suit. See FED. R. CIV. P. 20(a)(2); Wheeler v. Wexford Health Sources,
Inc., 689 F.3d 680, 683 (7th Cir. 2012) (“Joinder that requires the inclusion of extra parties
is limited to claims arising from the same transaction or series of related transactions.”).
We conclude, however, that the district court properly dismissed Stewart’s claim
against the director of the Department of Corrections alleging that it is the departmental
policy to use security boxes to “torture” inmates. The court construed this as a broad
attack on the use of security boxes generally; Stewart insists that he challenges only the
specific way the boxes are used at his prison—with an inmate’s wrists facing opposite
directions, one up and the other down. Yet Stewart’s complaint says too little to make
even this narrower theory plausible. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009);
Brooks v. Pactiv Corp., 729 F.3d 758, 763 (7th Cir. 2013). He speculates that the prison’s
preferred wrist position must have nothing to do with preventing prisoners from
picking the handcuff locks (which is what the guards told him) because the security box
itself is designed to thwart that. But he alleges nothing that might turn this speculation
into a plausible inference.
The district court also properly dismissed Stewart’s claim against the unnamed
guards. His allegations do not plausibly suggest that they were deliberately indifferent
to his complaints of severe pain. See Farmer v. Brennan, 511 U.S. 825, 847 (1994); Earl v.
Racine Cnty. Jail, 718 F.3d 689, 692 (7th Cir. 2013). Indeed, his allegations suggest the
opposite, for he says that the guards responded to his complaints by looking in his file
for an exemption and then following up to see whether Dr. Mesrobian would issue one.
Accordingly, we VACATE the judgment dismissing the claims against
Dr. Mesrobian’s estate and the medical director and REMAND those claims for further
proceedings. In all other respects the judgment is AFFIRMED.