                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           Powell v. Lewellyn, 2012 IL App (4th) 110168




Appellate Court             DOUGLAS C. POWELL, Plaintiff-Appellant, v. RAYMOND
Caption                     LEWELLYN, SERGEANT HUEY, and SERGEANT OSENBERG,
                            Defendants-Appellees.



District & No.              Fourth District
                            Docket No. 4-11-0168


Filed                       September 12, 2012


Held                        Where an inmate in a county jail filed a pro se petition for injunctive
(Note: This syllabus        relief that did not specifically describe the relief sought and there was no
constitutes no part of      indication defendants were served with summons or notice, the trial
the opinion of the court    court’s sua sponte denial of the petition was vacated and the cause was
but has been prepared       remanded to the trial court to allow the inmate to have defendants served
by the Reporter of          and proceed to a hearing or, after a reasonable time, dismiss the matter for
Decisions for the           want of prosecution.
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Vermilion County, No. 11-CH-27; the
Review                      Hon. Michael D. Clary, Judge, presiding.



Judgment                    Judgment vacated; cause remanded for further proceedings.
Counsel on                  Douglas C. Powell, of Jonesboro, Arkansas, appellant pro se.
Appeal
                            No brief filed for appellees.


Panel                       PRESIDING JUSTICE TURNER delivered the judgment of the court,
                            with opinion.
                            Justices Pope and McCullough concurred in the judgment and opinion.




                                              OPINION

¶1         In February 2011, plaintiff, Douglas C. Powell, filed a pro se petition for injunctive relief
        against defendants, Raymond Lewellyn, Sergeant Huey, and Sergeant Osenberg. The trial
        court denied the petition. We vacate the trial court’s judgment and remand for further
        proceedings.

¶2                                          I. BACKGROUND
¶3           In a pro se petition dated January 31, 2011, and filed on February 1, 2011, plaintiff, an
        inmate in the Vermilion County jail, sought injunctive relief against “Capt. Lewellyn,” “Sgt.
        Huey,” and “Sgt. Osenberg.” Plaintiff stated he suffers from seizures that require immediate
        medical attention. He alleged he filed an institutional grievance concerning the denial of
        medical attention and the regulation of medication. He also alleged Sergeant Osenberg
        denied him medical attention and placed him in a padded cell. The petition includes a “notice
        of filing,” and names the State’s Attorney, the circuit clerk, Judge Clary, Captain Lewellyn,
        Sergeant Huey, and Sergeant Osenberg.
¶4           On February 7, 2011, a letter from plaintiff was filed, wherein he stated he had filed a
        lawsuit and “sent a copy of it to all parties involved.” Plaintiff requested that he be notified
        when the hearing on the matter would take place.
¶5           In a letter dated February 1, 2011, and filed on February 14, 2011, plaintiff wrote to the
        trial court, stating he suffered from seizures and was supposed to have blood work performed
        every 30 days. He claimed that had not been done since the date of his arrest on December
        20, 2010. On January 5, 2011, plaintiff alleged he felt a seizure coming on and told “Sgt.
        Sands,” who did nothing. When the seizure occurred, plaintiff sustained a head injury. On
        January 17, 2011, plaintiff had a seizure and “Sgt. Osterber” placed him in a padded cell and
        told him he was not going to the hospital. Plaintiff claimed he was being wrongfully treated
        and asked for help in this matter.
¶6           On February 14, 2011, the trial court denied plaintiff’s petition for injunctive relief. The
        court noted plaintiff failed to describe what specific act he wanted defendants enjoined from

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       doing. The court found an injunctive order was not proper under the allegations of the
       petition. This appeal followed.

¶7                                          II. ANALYSIS
¶8         On appeal, plaintiff filed a handwritten brief, the “argument” of which consists of 1 1/2
       pages. He reiterates that he suffers from seizures and claims he was denied adequate health
       care. He seeks $700,000 in compensation for medical negligence and pain and suffering and
       asks that defendants be relieved of their jobs. Defendants did not file a brief as they are not
       parties to the appeal because they have never been served with plaintiff’s petition. We find
       this case is not ripe for adjudication.
¶9         In People v. Laugharn, 233 Ill. 2d 318, 323, 909 N.E.2d 802, 805 (2009), the trial court
       dismissed the prisoner’s pro se petition under section 2-1401 of the Code of Civil Procedure
       (735 ILCS 5/2-1401 (West 2004)) only 7 days after the petition’s filing and prior to the
       expiration of the usual 30-day period for the State to answer or plead. Our supreme court
       held the trial court could not sua sponte dismiss a plaintiff’s petition unless it is “ ‘ripe for
       adjudication.’ [Citation.]” Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805. The supreme
       court held the “dismissal short-circuited the proceedings and deprived the State of the time
       it was entitled to answer or otherwise plead.” Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at
       805. Since the section 2-1401 petition was not ripe for adjudication, the court vacated the
       judgments of the appellate court and the trial court. Laugharn, 233 Ill. 2d at 323-24, 909
       N.E.2d at 805.
¶ 10       In the case sub judice, plaintiff filed his pro se petition for injunctive relief on February
       1, 2011. It does not appear defendants were ever served with notice or a summons. On
       February 14, 2011, the trial court sua sponte denied plaintiff’s petition.
¶ 11       While this case involves a petition for injunctive relief rather than a section 2-1401
       petition, we find the Laugharn principles applicable. Thus, this case is not ripe for
       adjudication because defendants were never notified that a petition for injunctive relief had
       been filed against them. Without notice, they could not answer or otherwise plead. The trial
       court denied the petition only two weeks after it was filed. A plaintiff must be given a
       reasonable amount of time to obtain service on a defendant or defendants. “If the plaintiff
       fails to exercise reasonable diligence to obtain service on a defendant prior to the expiration
       of the applicable statute of limitations, the action as to that defendant may be dismissed
       without prejudice.” Ill. S. Ct. R. 103(b) (eff. July 1, 2007). If the defendant is properly
       served, he will then be entitled to answer or file a motion to dismiss within the appropriate
       length of time. Here, plaintiff was indigent and in jail when he filed his petition. Service of
       summons might or might not have been forthcoming. But, as stated, only two weeks had
       passed since plaintiff filed his pro se petition. See Segal v. Sacco, 136 Ill. 2d 282, 289, 555
       N.E.2d 719, 721-22 (1990) (finding 19-week delay in the service of process did not justify
       the dismissal of the plaintiff’s action with prejudice). While we recognize “the trial court
       possesses the inherent authority to control its own docket and the course of litigation,
       including the authority to prevent undue delays in the disposition of cases caused by abuses
       of the litigation process” (J.S.A. v. M.H., 224 Ill. 2d 182, 196, 863 N.E.2d 236, 244 (2007)),


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       the court’s ruling on the merits here, before defendants had even been served with the
       petition, was premature.
¶ 12       We note our disagreement with the Second District’s recent decision in People v. Nitz,
       2012 IL App (2d) 091165, 971 N.E.2d 633. In that case, like Laugharn, the defendant filed
       a petition for relief from judgment under section 2-1401. Nitz, 2012 IL App (2d) 091165, ¶ 4,
       971 N.E.2d 633. Less than 30 days later, the trial court took up the matter, and an assistant
       State’s Attorney appeared but did not participate beyond stating his name. Nitz, 2012 IL App
       (2d) 091165, ¶ 6, 971 N.E.2d 633. The court dismissed the petition sua sponte. Nitz, 2012
       IL App (2d) 091165, ¶ 6, 971 N.E.2d 633. The defendant appealed, arguing Laugharn
       applied, and thus the trial court erred in dismissing his petition prior to the expiration of the
       30-day period in which the State could respond. Nitz, 2012 IL App (2d) 091165, ¶ 8, 971
       N.E.2d 633.
¶ 13       The Second District disagreed, finding the case distinguishable from Laugharn because
       the defendant did not give the State notice pursuant to section 2-1401(b). Nitz, 2012 IL App
       (2d) 091165, ¶ 12, 971 N.E.2d 633. Without service or a waiver of service, the court found
       the 30-day period for filing an answer by the State was irrelevant because it would “never
       commence.” Nitz, 2012 IL App (2d) 091165, ¶ 12, 971 N.E.2d 633. Moreover, the court
       stated as follows:
           “A remand ‘for further proceedings’ would be meaningless, because no ‘further
           proceedings’ will occur. The State will never answer or move to dismiss, and the State
           cannot be defaulted, because it was never served. Thus, remand would place the trial
           court in the position of being able to do nothing while the case remains on its docket
           permanently.” Nitz, 2012 IL App (2d) 091165, ¶ 12, 971 N.E.2d 633.
       After finding the petition deficient based on the failure to give notice, the court concluded
       dismissal without prejudice was proper. Nitz, 2012 IL App (2d) 091165, ¶ 13, 971 N.E.2d
       633.
¶ 14       In contrast to our sister district, we find further proceedings in this case would not be
       “meaningless” or wind up permanently etched on the trial court’s docket. If plaintiff seeks
       to have his case heard, he can have defendants served. Otherwise, the trial court has the
       power to dismiss the case for want of prosecution after a reasonable period of time.
       Accordingly, we vacate the court’s judgment and remand for further proceedings. We
       express no opinion on the merits of the substantive arguments raised by plaintiff in his
       petition.

¶ 15                                 III. CONCLUSION
¶ 16      For the reasons stated, we vacate the trial court’s judgment and remand for further
       proceedings.

¶ 17       Judgment vacated; cause remanded for further proceedings.




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