In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2093

Shaun R. Johnson,

Plaintiff-Appellant,

v.

Officer Ruben Rivera, Officer Matthew
Martinez, Officer Geoffrey Howard,
and Officer William Pellegrini,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 3907--Ruben Castillo, Judge.

Argued November 7, 2001--Decided November 29, 2001



  Before Flaum, Chief Judge, and Posner and
Kanne, Circuit Judges.

  Flaum, Chief Judge. Pursuant to Federal
Rule of Civil Procedure 12(b)(6), the
district court dismissed Plaintiff-
Appellant Shaun Johnson’s claim as
untimely, and Johnson appeals. For the
reasons stated herein, we reverse.

I.   Background

  In reviewing a motion to dismiss, we
accept all facts alleged in the complaint
as true and draw all reasonable
inferences in the light most favorable to
the plaintiff. See Crenshaw v. Baynerd,
180 F.3d 866, 868 (7th Cir. 1999).
Johnson is an inmate in the Cook County
Department of Corrections. On December
22, 1995, the toilet in Johnson’s cell
malfunctioned. One day later, with the
toilet stillinoperable, Johnson summoned
Officer Ruben Rivera to request use of
the prison’s shared facility. Officer
Rivera allowed Johnson’s cellmate to
utilize the common area toilet, but
detained Johnson in his cell. Rivera
refused to let Johnson leave because
Johnson had acted inappropriately when
the toilet broke on the previous day.
Johnson informed Officer Rivera that he
planned to file a grievance regarding
Rivera’s conduct, at which time Rivera
became enraged and called four additional
officers. Officers Rivera, Matthew
Martinez, Geoffrey Howard and William
Pellegrini (collectively "Defendants")
then beat Johnson, who subsequently
required medical treatment.

  Johnson filed a grievance concerning the
attack and placed the completed form in
his cellblock mailbox pursuant to
Department of Corrections procedures.
However, Pellegrini removed and destroyed
Johnson’s grievance. For the next year,
Johnson and his family repeatedly
inquired about the status of his
grievance, but neither Johnson nor his
family received a response from the
prison’s grievance officer.

  On June 24, 1998, Johnson filed in
federal court a pro se complaint
requesting relief for the December 23,
1995 beating. Defendants moved to dismiss
the complaint as time-barred by the
applicable statute of limitations, and
the district court granted Defendants’
motion. The district court ruled that
Johnson filed his complaint outside the
two-year statute of limitations period
for sec. 1983 actions in Illinois, and
Johnson could advance no legitimate
reason for the delay. The district court
noted that the Prison Litigation Reform
Act ("PLRA") requires prisoners to
exhaust administrative remedies before
filing suit under sec. 1983, and
acknowledged that Illinois tolls the
statute of limitations when a cause of
action is "statutorily prohibited."
However, the district court reasoned that
Johnson should have realized the futility
of the grievance process and filed his
claim anyway.

  Johnson offers two arguments on appeal.
First, he claims that the district court
should have tolled the statute of
limitations pursuant to 735 ILCS 5/13-216
because the PLRA required Johnson to
exhaust his administrative remedies
before filing suit. Alternatively,
Johnson contends that the district court
should have equitably tolled the statute
of limitations while he pursued
administrative remedies within the
Department of Corrections./1

II.   Discussion
  A motion to dismiss under Rule 12(b)(6)
challenges the sufficiency of a complaint
for failure to state a claim upon which
relief may be granted. See Fed. R. Civ.
P. 12(b)(6); Autry v. Northwest Premium
Services, Inc., 144 F.3d 1037, 1039 (7th
Cir. 1998). Whether a district court
correctly dismissed a complaint is a
question of law that we review de novo.
Id.

  Section 1983 does not contain an express
statute of limitations, so federal courts
adopt the forum state’s statute of
limitations for personal injury claims.
Wilson v. Garcia, 471 U.S. 261, 276
(1985); Ashafa v. City of Chicago, 146
F.3d 459, 461 (7th Cir. 1998). In
Illinois, the limitations period for sec.
1983 cases is two years. Kalimara v.
Illinois Dep’t of Corrections, 879 F.2d
276, 277 (7th Cir. 1989). Moreover,
because "the chronological length of the
limitation period is interrelated with
provisions regarding tolling, revival,
and questions of application," federal
courts must "also borrow[ ] the state’s
tolling rules--including any equitable
tolling doctrines." Smith v. City of
Chicago Heights, 951 F.2d 834, 839-40
(7th Cir. 1992). In this case, the
relevant tolling statute states,

When the commencement of an action is
stayed by an injunction, order of court,
or statutory prohibition, the time of the
continuance of the injunction or
prohibition is not part of the time
limited for the commencement of the
action.

735 ILCS 5/13-216 ("section 13-216")
(emphasis added). There can be no
question that a federal court applying
Illinois law must toll the statute of
limitations if a "statutory prohibition"
exists that prevents a plaintiff’s cause
of action. Here, such a statutory
prohibition exists. The PLRA requires
exhaustion of administrative remedies
prior to filing suit under sec. 1983. See
42 U.S.C. sec. 1997e(a) (2000). According
to the statute,

no action shall be brought with respect
to prison conditions under section 1983
of this title, or any other Federal law,
by a prisoner confined in any jail,
prison, or other correctional facility
until such administrative remedies as are
available are exhausted.

Id. See also Smith v. Zachary, 255 F.3d
446 (7th Cir. 2001). While this circuit
has yet to rule on the precise
relationship between sec. 1997e and the
Illinois tolling statute, other circuits
have concluded that federal courts should
toll state statutes of limitations while
inmates exhaust their administrative
remedies under sec. 1997e. See Brown v.
Morgan, 209 F.3d 595, 596 (6th Cir.
2000); Harris v. Hegmann, 198 F.3d 153,
157-59 (5th Cir. 1999); see also Cardenas
v. Washington, 2001 U.S. App. LEXIS 14056
(7th Cir. June 19, 2001) (unpublished)
(acknowledging Brown and Harris, but not
deciding the issue for this court);
Scanlon v. Drew, 2000 U.S. App. LEXIS
18776 (7th Cir. July 31, 2000)
(unpublished) (same).

  It is not difficult to see why the
Illinois tolling statute applies in such
cases. Tolling statutes are designed to
avoid a "procedural catch-22," in which a
statute or court order prevents a
potential plaintiff from properly filing
a cause of action. Two examples
illustrate the procedural complexities
cured by tolling statutes. In Doe v.
Bobbitt, 698 F. Supp. 1415 (N.D. Ill.
1988), rev’d on other grounds, 881 F.2d
510 (7th Cir. 1989), the plaintiff
discovered facts sufficient to survive a
motion to dismiss only after the district
court lifted a two-year discovery ban.
The court identified a situation in which
the plaintiff could risk Rule 11
sanctions by filing an unfounded claim
within the limitations period or wait
until after the limitations period and
file a well-grounded complaint. Because
this was the type of procedural morass
that tolling statutes are designed to
prevent, the court suspended the
prescriptive period during the discovery
stay. Id. at 1419.

  Similarly, in Board of Education v.
Wolinsky, 842 F. Supp. 1080 (N.D. Ill.
1994), the district court considered a
claim brought under sec. 504 of the
Rehabilitation Act. Like the PLRA, the
Rehabilitation Act requires plaintiffs
seeking recovery under sec. 504 to
exhaust certain administrative remedies
before filing suit. The district court
relied upon section 13-216 and held that
the "exhaustion requirement is in effect
a stay of an action by statutory
prohibition." Id. at 1085. The court thus
tolled the statute of limitations, giving
the plaintiff time to exhaust the
requisite administrative remedies before
filing suit. Id.

  The procedural morass identified by
courts in other contexts is equally
relevant to the case before us. The
"catch-22" in this case is self-evident:
the prisoner who files suit under sec.
1983 prior to exhausting administrative
remedies risks dismissal based upon sec.
1997e; whereas the prisoner who waits to
exhaust his administrative remedies risks
dismissal based upon untimeliness. We
thus hold that in the ordinary case, a
federal court relying on the Illinois
statute of limitations in a sec. 1983
case must toll the limitations period
while a prisoner completes the
administrative grievance process.

  That does not end our inquiry, however,
because this is not the ordinary case.
Here, Johnson never completed the
prison’s grievance process. The district
court held that even if section 13-216
applied, "it became clear well within the
limitations period that Johnson would not
obtain satisfaction via the prison’s
administrative procedures." Johnson v.
Rivera, No. 98 C 3907, slip op. at 2
(N.D. Ill. Apr. 1, 1999). The district
court cites no authority for this
proposition, which, in our view, does not
address Johnson’s allegations that
Officer Pellegrini destroyed his
grievance and that Johnson’s repeated
inquiries to the grievance board proved
unavailing. Given that we must accept all
well-pleaded facts in Johnson’s complaint
as true, see Crenshaw, 180 F.3d at 868,
we cannot set aside Johnson’s assertions
of misconduct by the defendants./2

III.   Conclusion

  For the foregoing reasons, we REVERSE the
decision of the district court and REMAND
for proceedings consistent with this
opinion.

FOOTNOTES

/1 We need not reach the issue of federal equitable
tolling principles in this context because we
agree with Johnson that the Illinois tolling
statute applies in this case. See Tyler v. Run-
yon, 70 F.3d 458, 464 n.6 (7th Cir. 1995).

/2 We are mindful of the potential for fraud in the
present context, whereby prisoners could feign
compliance with grievance procedures to avoid
statute of limitations problems. However, there
are other, more appropriate methods to prevent
such malfeasance. For example, the district court
could allow limited discovery on the issue of
Johnson’s attempt to file a grievance in the
Department of Corrections.
