Danny R. Richards v. Michael Mitcheff

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3227
DANNY R. RICHARDS,
Plaintiff-Appellant,
v.
MICHAEL MITCHEFF, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:10-cv-1583-SEB-MJD—Sarah Evans Barker, Judge.
SUBMITTED JULY 20, 2012—DECIDED AUGUST 9, 2012
Before EASTERBROOK, Chief Judge, and WOOD and
HAMILTON, Circuit Judges.
EASTERBROOK, Chief Judge. Danny Richards under-
went three surgeries necessitated by ulcerative colitis.
His colon has been removed and an ileo-anal pouch
constructed. Richards, a prisoner of Indiana, had com-
plained since January 2008 about abdominal pain and
blood in his stool; physicians in the prison system
assured him that he was fine, but they were wrong. In

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2 No. 11-3227
October 2008 they sent him to a hospital, where
specialists diagnosed ulcerative colitis. By then it was
too late to do anything but excise the colon and
attempt some palliation.
Richards filed this suit under 42 U.S.C. §1983 in
December 2010, contending that defendants violated
the eighth amendment by indifference to his serious
medical condition. See Farmer v. Brennan, 511 U.S. 825
(1994); Estelle v. Gamble, 429 U.S. 97 (1976). On defendants’
motions, the district court dismissed the complaint
under Fed. R. Civ. P. 12(b)(6), ruling it untimely. 2011
U.S. Dist. LEXIS 94961 (S.D. Ind. Aug. 22, 2011). Suits
under §1983 use the statute of limitations and tolling
rules that states employ for personal-injury claims. See
Wilson v. Garcia, 471 U.S. 261 (1985); Owens v. Okure, 488
U.S. 235 (1989); Hardin v. Straub, 490 U.S. 536 (1989).
Indiana allows two years. Ind. Code §34-11-2-4. Federal
law defines when a claim accrues, see Wallace v. Kato, 549
U.S. 384, 388 (2007), and the federal rule for medical
errors is that a claim accrues when a person knows his
injury and its cause. See United States v. Kubrick, 444 U.S.
111 (1979). The district judge concluded that Richards
knew, no later than October 2008, that he had ulcerative
colitis that defendants had failed to detect, causing
him to lose his lower gastrointestinal tract and anus.
Richards took more than two years to file suit and that,
the district judge held, is that.
Richards concedes that his claim accrued in
October 2008. He contends, however, that the time was
tolled while he was physically unable to sue despite the

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No. 11-3227 3
exercise of reasonable diligence. Indiana recognizes this
as a tolling condition; indeed, the state’s constitution
requires the judiciary to toll time limits for incapacitated
persons. See Indiana Const. Art. I §12; Herron v. Anigbo,
897 N.E.2d 444, 451, 453 (Ind. 2008); Fort Wayne v.
Cameron, 370 N.E.2d 338, 341 (Ind. 1997). The court re-
marked in Cameron that this rule prevents tortfeasors
from escaping liability by injuring victims so badly that
they cannot sue in time.
Richards contends that the surgeries disabled him
for extended periods, that when he was out of the
hospital he was in constant pain and unable to walk, and
that he filed suit as soon as he could muster the concen-
tration and energy to do so. These allegations may or
may not be true, but they are plausible—and no more
is required of a pleading. Ashcroft v. Iqbal, 556 U.S. 662
(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Actually not even that much is required of a pleading
on the subject of the statute of limitations. What a com-
plaint must plead is enough to show that the claim
for relief is plausible. Complaints need not anticipate
defenses and attempt to defeat them. See Gomez v.
Toledo, 446 U.S. 635 (1980). The period of limitations is
an affirmative defense. Fed. R. Civ. P. 8(c)(1).
We have held many times that, because complaints
need not anticipate defenses, Rule 12(b)(6) is not designed
for motions under Rule 8(c)(1). See, e.g., United States
Gypsum Co. v. Indiana Gas Co., 350 F.3d 623 (7th Cir. 2003);
United States v. Northern Trust Co., 372 F.3d 886 (7th Cir.
2004); Xechem, Inc. v. Bristol–Myers Squibb Co., 372 F.3d

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4 No. 11-3227
899 (7th Cir. 2004). A motion under Rule 12(b)(6) tests
whether the complaint states a claim on which relief
may be granted. Richards’s complaint does that. It could
not properly be dismissed under Rule 12(b)(6).
A plaintiff whose allegations show that there is an
airtight defense has pleaded himself out of court, and the
judge may dismiss the suit on the pleadings under
Rule 12(c). This comes to the same thing as a dismissal
under Rule 12(b)(6), and opinions, including some by
this court, often use the two interchangeably. But in
principle a complaint that alleges an impenetrable
defense to what would otherwise be a good claim
should be dismissed (on proper motion) under Rule
12(c), not Rule 12(b)(6). After all, the defendants may
waive or forfeit their defense, and then the case should
proceed.
This suit, however, could not properly be dismissed
under either Rule 12(b)(6) or Rule 12(c). The claim is
sound in theory (see Farmer and Gamble); the com-
plaint’s allegations make an eighth-amendment recovery
plausible. Indiana allows tolling because of physical
incapacity—and, far from pleading that he was capable
of suing throughout the two years after his first sur-
gery, Richards pleaded incapacity, again plausibly. The
district judge had this to say: “Richards’ explana-
tions for the delay are unpersuasive.” That’s it. No other
analysis. The court did not identify a legal obstacle to
the suit; the judge just deemed the allegations “unpersua-
sive.” But a judge cannot reject a complaint’s plausible
allegations by calling them “unpersuasive.” Only a trier

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No. 11-3227 5
of fact can do that, after a trial. For their part, defendants
seem to be unaware that state law supplies the
principles of tolling in litigation under §1983; neither of
the two briefs filed by appellees mentions Indiana’s
tolling rules.
We appreciate the judicial desire to resolve cases as
swiftly as possible. Litigation is costly for both sides, and
a doomed suit should be brought to a conclusion
before costs are needlessly run up. Twombly designed
its plausibility requirement as a partial antidote to the
high costs of discovery and trial. But neither Twombly
nor Iqbal has changed the rule that judges must not
make findings of fact at the pleading stage (or for that
matter the summary-judgment stage). A complaint that
invokes a recognized legal theory (as this one does) and
contains plausible allegations on the material issues (as
this one does) cannot be dismissed under Rule 12. See
Erickson v. Pardus, 551 U.S. 89 (2007).
Judges should respect the norm that complaints need
not anticipate or meet potential affirmative defenses.
If the facts are uncontested (or the defendants accept
plaintiffs’ allegations for the sake of argument), it may
be possible to decide under Rule 12(c); if the parties do
not agree, but one side cannot substantiate its position
with admissible evidence, the court may grant sum-
mary judgment under Rule 56. But this case has not
reached the stage where Richards’s allegations of
physical incapacity are put to the test. Once Richards
has had an opportunity to produce evidence material
to the tolling question, its sufficiency under Indiana law

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6 No. 11-3227
can be tested by a motion for summary judgment. Before
proceeding further, however, the district court should
consider carefully whether to assist Richards in finding
a lawyer who can muster the facts and, if necessary,
secure medical experts. See Pruitt v. Mote, 503 F.3d 647
(7th Cir. 2007) (en banc).
The judgment is reversed, and the case is remanded
for proceedings consistent with this opinion.
8-9-12

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