Clark, James v. City of Braidwood ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4270
JAMES CLARK,
Plaintiff-Appellant,
v.
THE CITY OF BRAIDWOOD,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 5323—Suzanne B. Conlon, Judge.
____________
ARGUED DECEMBER 10, 2002—DECIDED FEBRUARY 7, 2003
____________
Before FLAUM, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. The district court dismissed James
Clark’s complaint on the ground that it facially showed
noncompliance with the limitations period, and Clark
appeals. We vacate the judgment and remand for further
proceedings.
I. BACKGROUND
Clark owns a 37-acre parcel of land in Will County,
Illinois, on which he had planned to build a single-fam-
ily residential development. Sometime in 1997 the City
2 No. 01-4270
of Braidwood (“City”) authorized a competing developer
to install sewer and water pipes on the land. Clark says
that as a result he is unable to install pipes of his own,
rendering development of the land impossible and caus-
ing a devaluation of $800,000.
In July 2001 Clark sued the City under 42 U.S.C. § 1983,
alleging that “in or about 1997, the Defendant City know-
ingly and intentionally authorized a competitor of the
Plaintiff to install sewer and water pipes to serve an-
other development, ‘Lighthouse Cove,’ with sewer and
water, along and upon the Plaintiff’s property and ease-
ment, which sewer and water pipes were so installed.”
Clark claimed that the City’s action violated his due proc-
ess and equal protection rights. He also claimed that the
City violated rights conferred on him by Illinois law.
The City moved under Fed. R. Civ. P. 12(b)(6) to dis-
miss the complaint on the ground that Clark’s § 1983
claim was barred by the applicable statute of limitations. In
his response to the motion to dismiss, Clark maintained
that the City’s action constituted a continuing trespass
that served to postpone the running of the limitations
period. The district court disagreed, however, and granted
the motion to dismiss. It concluded that the continuing
trespass doctrine did not save Clark’s claim because “in-
stallation of an unauthorized water and sewer system on
one’s property surely should put the injured party on
immediate notice of harm and a cause of action. It is true
that the pipes continue to exist on Clark’s land, but the . . .
lingering effect of an unlawful act is not itself an unlaw-
ful act . . . so it does not revive an already time-barred
illegality.”
Clark moved for reconsideration under Fed. R. Civ. P.
59(e) or alternatively for leave to amend the complaint,
renewing his argument that the City’s action was a con-
tinuing violation. He further alleged that “[i]t is not clear
No. 01-4270 3
from the present pleading dismissed that the Plaintiff
would have known, in 1997, that there was a trespass
instigated upon his property in that the land was pled as
vacant property for development and the great bulk of
the trespass was, necessarily, underground and not pa-
tently obvious.” Based on this, Clark argued that “there
could well be the application of equitable tolling as to any
applicable Statute of Limitations.” In his memorandum
supporting the motion to reconsider, Clark also seemed
to assert that the discovery rule could potentially post-
pone the running of the limitations period: “It is not
apparent under the present pleading that the Plaintiff
knew or should have known of his injury in 1997, or at
anytime outside of the applicable limitations period; an
action does not commence the period of limitations until
there is ‘accrual,’ or a date not on which the wrong occurred,
but upon which the Plaintiff discovers he has been
injured. . . . Here, the land was vacant, the trespass under-
ground and Plaintiff would not necessarily have known
of the trespass until he began to develop that land himself.”
The district court denied the motion to reconsider with-
out addressing equitable tolling or the discovery rule.
Instead, the court found that Clark’s motion “simply
reargue[d] his response to the motion to dismiss and
fail[ed] to proffer an amended complaint that would cure
the fatal defects of [the § 1983 claim].”
II. ANALYSIS
The limitations period for § 1983 cases in Illinois is two
years. Licari v. City of Chi., 298 F.3d 664, 667-68 (7th Cir.
2002). Clark complains of events that took place “in or
about 1997,” but he did not file this suit until 2001. Thus,
at first glance his complaint appears to be about two
years untimely.
4 No. 01-4270
Clark, however, advances several lines of argument that
he believes could potentially rescue his suit. First, he
reasserts his theory that the City’s action is a “continuing
violation” that therefore amounts to a fresh wrong each
day. Clark cites a number of Illinois cases in support of
this claim, but we have said that the doctrine of continu-
ing violation is one governing accrual, not tolling, and
is therefore governed by federal law. Heard v. Sheahan,
253 F.3d 316, 319 (7th Cir. 2001). And under federal law,
the continuing violation doctrine does not save an other-
wise untimely suit when “a single event gives rise to
continuing injuries” because in such a case “the plaintiff
can bring a single suit based on an estimation of his
total injuries.” Id. That is precisely the situation here.
Clark alleges one discrete incident of unlawful conduct—the
installation of the pipes on his land. That the alleged
trespass is, by Clark’s description, “permanent” does not
convert that discrete act into one long continuing wrong.
See Pitts v. City of Kankakee, 267 F.3d 592, 595-96 (7th
Cir. 2001) (doctrine of continuing violation did not apply
to claim that the city violated plaintiffs’ constitutional
rights by placing signs on their land; at the moment the
city posted each sign, plaintiffs knew they had suffered
an injury and nothing new happened thereafter to change
the nature of the injury).
Clark also contends that, because the trespass was
not “readily apparent,” the doctrine of equitable tolling
could potentially save his claim. The City responds that
equitable tolling cannot apply because “no averment in the
complaint supports Clark’s contention that the City was
guilty of fraudulent concealment warranting the applica-
tion of equitable tolling.” This is wrong, both because a
plaintiff is not required to negate an affirmative defense
in his complaint, Leavell v. Kieffer, 189 F.3d 492, 494 (7th
Cir. 1999); Tregenza v. Great Am. Communications Co.,
12 F.3d 717, 718 (7th Cir. 1993), and because equitable
No. 01-4270 5
tolling does not assume any blameworthy conduct by the
defendant (as opposed to equitable estoppel, which does),
Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th
Cir. 1990). Nonetheless, we are uncertain whether Clark
can ultimately benefit from equitable tolling. First of all,
in § 1983 cases it is the state doctrine of equitable tolling
that governs, Shropshear v. Corp. Counsel of the City of
Chi., 275 F.3d 593, 596 (7th Cir. 2001), and it remains
unsettled whether the doctrine exists in Illinois. More-
over, we question whether Clark has confused equitable
tolling with the discovery rule. Clark’s basic position is
that he did not have knowledge of his injury until the
limitations period had already lapsed. But equitable tolling
assumes that the plaintiff knows he has been injured; the
limitations period is tolled, however, if he cannot obtain
information necessary to file suit. Cada, 920 F.2d at 451.
It seems, therefore, that what Clark wants to rely on is
the discovery rule, which postpones the beginning of the
limitations period to the date when the plaintiff discov-
ers or should have discovered that he has been injured.
Id. at 450. The City contends that the discovery rule does
not save Clark’s suit because his “complaint is wanting
for any reasonable inference triggering the application of
the discovery rule or otherwise resulting in a tolling of
the limitations period.” But again, a plaintiff is not re-
quired to negate an affirmative defense, such as the stat-
ute of limitations, in his complaint. And though a plain-
tiff can plead himself out of court if he alleges facts that
affirmatively show that his suit is time-barred, Tregenza,
12 F.3d at 718, that is not what we have here. Clark’s
complaint states that the City violated his constitu-
tional rights “in or about 1997,” but it is silent as to the
date of discovery.
Clark could have spared everyone this appeal if he
had just alleged a specific date of discovery in his reply to
the motion to dismiss or in his motion to reconsider. Then,
6 No. 01-4270
if the City still wanted to plead the statute of limitations,
it would have moved for summary judgment, and the is-
sue would have come to us with a more complete factual
record. But at this stage, the question is only whether there
is any set of facts that if proven would establish a defense
to the statute of limitations, Early v. Bankers Life and
Casualty Co., 959 F.2d 75, 80 (7th Cir. 1992), and that
possibility exists. Clark’s motion to reconsider, though not
exactly artful, made reasonably clear that he was trying to
allege that he did not learn of his injury until some point
outside of the limitations period, perhaps because, as he
clarifies on appeal, he did not try to develop the land be-
fore then. If Clark can prove his allegation and also show
that a reasonable person would not have discovered the
injury earlier, he would have a defense to the time bar.
Dismissal under Rule 12(b)(6) was therefore premature.
See Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir. 2002)
(vacating Rule 12(b)(6) dismissal where plaintiff alleged
(seemingly for the first time on appeal) that he did not
have all the information required to bring suit within
limitations period); Early, 959 F.2d at 80 (finding dismiss-
al premature where plaintiff could prove a set of facts
that would show that the untimeliness of his suit was
due to wrongful acts of defendant).1
III. CONCLUSION
The judgment of the district court is VACATED, and the
case is REMANDED for further proceedings.
1
Because Clark’s complaint is not deficient on its face, we
need not consider his alternative argument that the district
court should have given him the opportunity to file an amend-
ment.
No. 01-4270 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-7-03