Judges: Kanne
Filed: Aug. 10, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3155 MARK ROSADO, Plaintiff-Appellant, v. BILLY GONZALEZ, CHRISTIAN E. RAMIREZ, ROBERT A. KERO, and CITY OF CHICAGO, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15-cv-03733 — Rebecca R. Pallmeyer, Judge. _ ARGUED MAY 24, 2016 — DECIDED AUGUST 10, 2016 _ Before WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges. KANNE, Circuit Jud
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3155 MARK ROSADO, Plaintiff-Appellant, v. BILLY GONZALEZ, CHRISTIAN E. RAMIREZ, ROBERT A. KERO, and CITY OF CHICAGO, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:15-cv-03733 — Rebecca R. Pallmeyer, Judge. _ ARGUED MAY 24, 2016 — DECIDED AUGUST 10, 2016 _ Before WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges. KANNE, Circuit Judg..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3155
MARK ROSADO,
Plaintiff‐Appellant,
v.
BILLY GONZALEZ, CHRISTIAN E. RAMIREZ, ROBERT A. KERO,
and CITY OF CHICAGO,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15‐cv‐03733 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED MAY 24, 2016 — DECIDED AUGUST 10, 2016
____________________
Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
KANNE, Circuit Judge. On September 7, 2012, two Chicago
Police Department (“CPD”) officers, Defendants Billy Gon‐
zalez and Christian Ramirez, pulled over a car driven by
Plaintiff Mark Rosado for failing to use a turn signal. After
stopping the car, the officers “claimed to have seen” a badge
and handcuffs, as well as a handgun in plain view “between
2 No. 15‐3155
the brake lever and center console.” The officers arrested Ro‐
sado for unlawful possession of a weapon by a felon and for
violating the armed habitual criminal statute. Defendant Of‐
ficer Robert Kero approved the officers’ report as establish‐
ing probable cause. Rosado was bound over for trial on Sep‐
tember 8, 2012, after a probable cause hearing.
Rosado spent the next year and a half in jail fighting the
criminal charges. In February 2014, Rosado received a copy
of the dash cam video taken the evening he was arrested,
which, contrary to the officers’ accounts, showed that Ro‐
sado had used his turn signal, and it was operable. The state
court, relying on the video, found that the officers could not
have seen the traffic infraction. Accordingly, it granted Ro‐
sado’s motion to quash his arrest and suppress evidence. In
light of the grant of the motion, the state dismissed the case
nolle prosequi on April 14, 2014.
Rosado filed this § 1983 lawsuit against Defendants on
April 28, 2015, alleging false arrest, conspiracy to violate
constitutional rights, failure to intervene, violation of due
process, and a state‐law respondeat superior claim.1
Defendants filed a motion to dismiss Rosado’s false‐
arrest claim as barred by the two‐year statute of limitations.
The district court granted the motion to dismiss because Ro‐
sado’s claim accrued when he was bound over for trial on
September 8, 2012, and he did not file his complaint until
April 28, 2015—outside the two‐year statute of limitations.
Because his claims of conspiracy and failure to intervene
1 Rosado did not allege a state‐law malicious‐prosecution claim despite
the fact that he alleged that the officers “agree[d] to putatively and false‐
ly charge” him. (Compl. ¶ 21d (emphasis added).)
No. 15‐3155 3
arose from the underlying false‐arrest claim, those were also
dismissed. The district court dismissed Rosado’s due‐process
and respondeat‐superior claims on the merits.
I. ANALYSIS
On appeal, Rosado only challenges the district court’s
dismissal of three of his claims—false arrest, conspiracy, and
failure to intervene—as time‐barred.
A district court’s dismissal on statute‐of‐limitations
grounds constitutes a dismissal for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6) if the
claim is “indisputably time‐barred.” Small v. Chao, 398 F.3d
894, 898 (7th Cir. 2005). We therefore review the district
court’s dismissal of Rosado’s claims de novo, taking the factu‐
al allegations from Rosado’s complaint as true and drawing
all reasonable inferences in his favor. Vesely v. Armslist LLC,
762 F.3d 661, 664–65 (7th Cir. 2014).
The statute of limitations on Rosado’s claims is governed
by Illinois’s personal‐injury statute of limitations, which is
two years. 735 ILCS 5/13‐202; Wallace v. Kato, 549 U.S. 384,
387 (2007). The statute of limitations for a false‐arrest claim
“begins to run at the time the claimant becomes detained
pursuant to legal process,” meaning when the claimant is
“bound over for trial.” Wallace, 549 U.S. at 391, 397.
Rosado was bound over for trial on September 8, 2012.
He concedes that his two‐year statute of limitations began to
run at that point and therefore expired on September 8, 2014.
Because he did not file his claim until April 28, 2015, he was
out of time. But, Rosado attempts to salvage his time‐barred
claim by arguing that he is entitled to equitable estoppel or
equitable tolling.
4 No. 15‐3155
A. Equitable Estoppel
Rosado cannot satisfy the requirements for application of
equitable estoppel. Equitable estoppel, which is a doctrine of
federal law, “comes into play if the defendant takes active
steps to prevent the plaintiff from suing in time, as by prom‐
ising not to plead the statute of limitations.” Shropshear v.
Corp. Counsel of Chicago, 275 F.3d 593, 595 (7th Cir. 2001). Eq‐
uitable estoppel presupposes “efforts by the defendant,
above and beyond the wrongdoing upon which the plain‐
tiffʹs claim is founded, to prevent, by fraud or deception, the
plaintiff from suing in time.” Id.
The heart of Rosado’s claim for equitable estoppel is that
after the police officers unlawfully detained him, they inten‐
tionally withheld the dash cam video to prevent him from
bringing suit. Even if we were to accept that Defendants’ al‐
leged intentional withholding of the dash cam video is the
type of active step that could give rise to equitable estoppel,2
Rosado has not shown that any affirmative misconduct
“prevent[ed him] from suing in time.” Shropshear, 275 F.3d at
595. In other words, he cannot show causation. See Flight At‐
tendants Against UAL Offset v. Comm’r Internal Revenue., 165
F.3d 572, 577 (7th Cir. 1999) (“It is implicit in the doctrine
that the conduct alleged as the basis for the estoppel have
2 Although Rosado admits that he “knew he used his turn signal toggle”
on the night of his arrest, he argues that he “had no way of knowing
whether or not the rear turn signal light was operable and visible to the
Officers.” (Appellant Br. 8.) Thus, the Defendants’ alleged concealment
of evidence showing that the arrest was a result of their wrongdoing (ra‐
ther than the signal’s malfunction) could constitute the type of “hiding
evidence” that justifies equitable estoppel. See Thelen v. Marc’s Big Boy
Corp., 64 F.3d 264, 267 (7th Cir. 1995). We need not decide that question.
No. 15‐3155 5
been the cause of the plaintiff’s not suing in time.” (emphasis
added)); see also Smith v. City of Chicago Heights, 951 F.2d 834,
840 (7th Cir. 1992) (“To prove estoppel successfully, the
plaintiff must show that the defendant’s conduct was im‐
proper, and that the plaintiff was harmed by such conduct.”
(emphasis added and internal quotation marks omitted)).
Rosado has not alleged that any wrongdoing by Defend‐
ants actually caused him to file outside the statute of limita‐
tions. At most, Defendants’ conduct delayed filing. But by
February 2014, Rosado had the dash cam video and knew
that the officers lacked probable cause to stop his vehicle. At
that point, he still had seven months remaining before the
statute of limitations expired. In the absence of some allega‐
tion that Defendants continued to obstruct his ability to file
his suit, or that seven months was insufficient time to file a
complaint, Rosado cannot demonstrate that Defendants “ac‐
tually prevent[ed Rosado] from suing in time.” Flight Attend‐
ants, 165 F.3d at 577. Accordingly, he is not entitled to equi‐
table estoppel.
B. Equitable Tolling
Rosado is also not entitled to equitable tolling. Equitable
tolling, which is governed by Illinois law, may apply “if the
defendant has actively misled the plaintiff, or if the plaintiff
has been prevented from asserting his or her rights in some
extraordinary way.” Clay v. Kuhl, 727 N.E.2d 217, 223 (Ill.
2000). Illinois law also requires that the plaintiff act diligent‐
ly to file his suit: “[E]quitable tolling does not reset the stat‐
ute of limitations; instead, the doctrine requires that the
plaintiff get the litigation under way promptly after the cir‐
cumstance justifying delay is no longer present.” Ashafa v.
6 No. 15‐3155
City of Chicago, 146 F.3d 459, 464 (7th Cir. 1998) (internal quo‐
tation marks omitted).
Rosado did not promptly file. There cannot be any dis‐
pute that Rosado knew the officers had fabricated probable
cause by February 2014, when he received the dash cam vid‐
eo that showed his turn‐signal light blinking. At that point,
he still had seven months to timely file suit. Rosado’s unex‐
plained failure to file suit within the seven months remain‐
ing on the statute of limitations precludes the applicability of
equitable tolling.3 See Cada, 920 F.2d at 453 (no equitable toll‐
ing where claimant had eight months remaining on statute
of limitations).
C. Remaining Claims
We briefly address the remaining claims in Rosado’s
complaint. Rosado’s claim of conspiracy to commit constitu‐
tional violations is a recast of his false‐arrest claim, which, as
we have said, is time‐barred. Because a plaintiff cannot use a
theory of a continuing civil conspiracy to recover for indi‐
vidual overt acts that would themselves be time‐barred, Ro‐
sado’s claim of conspiracy to commit false arrest is also time‐
barred. See Scherer v. Balkema, 840 F.2d 437, 440 (7th Cir. 1992)
3 Although we have described the delay in filing as “unexplained,” we
are not convinced that the delay is as unexplained as it may seem. Ro‐
sado at some point had a lawyer representing him in connection with his
potential civil lawsuit (albeit not counsel who ultimately filed Rosado’s
lawsuit and appeal). (Hr’g Tr. 5, Aug. 19, 2015 (“[T]his case came to me
within days … before filing this case. Another lawyer had it.”).) Alt‐
hough a lawyer’s error in allowing a statute of limitations to run is not
the type of extraordinary circumstance justifying equitable tolling, see
Modrowski v. Mote, 322 F.3d 965, 967–68 (7th Cir. 2003), the error may
give rise to liability for malpractice.
No. 15‐3155 7
(explaining that “[a] rule allowing plaintiffs in civil conspir‐
acy actions to recover only for overt acts alleged to have oc‐
curred within the applicable limitations period” prevents
plaintiffs from defeating the purpose of a statute of limita‐
tions “simply by asserting that a series of separate wrongs
were committed pursuant to a conspiracy” (internal quota‐
tion marks omitted)).
The same fate befalls Rosado’s claim of failure to inter‐
vene. “In order for there to be a failure to intervene, it logi‐
cally follows that there must exist an underlying constitu‐
tional violation … .” Harper v. Albert, 400 F.3d 1052, 1064 (7th
Cir. 2005). The underlying constitutional violation here is a
time‐barred false‐arrest claim. Because the claim of false ar‐
rest is time‐barred, the derivative claim of a failure to inter‐
vene during the false arrest is also time‐barred.
Finally, because Rosado has not argued on appeal that
the district court improperly dismissed his due‐process and
respondeat‐superior claims on the merits, we do not address
them here.
II. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
dismissal of Rosado’s suit.