January 6, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15 C 2451 - Harry
D. Leinenweber, Judge.
Wood, Chief Judge, and Bauer and Rovner, Circuit Judges.
15, 2013, Antwoyne Johnson was an occupant of a vehicle whose
driver was searching for parking on South Springfield Avenue
in Chicago, Illinois, at approximately 2:45 a.m. A Chicago
police car pulled behind the vehicle and turned on its
lights. Johnson left the vehicle and ran into a nearby alley.
The police officers drove into the alley in pursuit of
Johnson and fired a number of times, hitting Johnson in the
back and hand. Johnson died of his injuries.
March 23, 2015, plaintiff-appellant Stacey Liberty,
Johnson's mother, filed a complaint under 42 U.S.C.
§ 1983, naming the City of Chicago and unknown Chicago
police officers. Liberty's complaint raised claims of
false arrest, excessive force, deliberate indifference,
unlawful seizure, and violation of due process. She also
argued that the City adopted policies that permit police to
use excessive force, and that the City failed to properly
train and supervise the unknown officers.
after the filing her complaint, Liberty's attorney, Sean
Mulroney served a subpoena on the City, requesting the
production of all police reports, records, statements, and
photographs pertaining to the incident. On April 24, 2015,
OEMC supervisor Erin Hansen spoke to Mulroney and informed
him that all documents requested by the subpoena had been
sent to the City's Law Department; on May 21, 2015,
Mulroney advised the City that the documents were needed so
that the unknown officers could be identified. The City's
counsel, Daniel Nixa, stated that he would "look
into" a response to the subpoena. Nixa further stated
that the City would like to refrain from answering the
complaint until all unknown officers were identified and
added to the complaint.
26, 2015, Nixa emailed Mulroney two Tactical Response Reports
that identified Officers Mark Palazzolo and Eric Jehl as the
officers who shot Johnson and informed Mulroney that the City
did not have the "Area File" or other documents in
its possession. On June 24, 2015, Liberty filed a motion
for leave to file an amended complaint, and Mulroney sent
Nixa an email asking if the City would object to the motion
to amend the complaint. The City did not object, and Liberty
filed the amended complaint on July 6, 2015. The amended
complaint replaced "Unknown Chicago police
officers" with Officers Palazzolo and Jehl as
Defendants; it also clarified that the incident occurred on
or about June 16, 2013, at 2:30 a.m.
City moved to dismiss the Monell claims pursuant to
Federal Rule of Civil Procedure 12(b)(6) on July 8, 2015.
Liberty failed to respond in writing or appear at the hearing
related to the motion, and the district court granted it on
July 14, 2015. Officers Palazzolo and Jehl filed a motion to
dismiss under Rule 12(b)(6) on July 30, 2015, on the basis
that Liberty's claims were time-barred. The court granted
the motion on October 6, 2015. Liberty timely appealed.
appropriate statute of limitations for § 1983 cases
filed in Illinois is two years, as set forth in Illinois'
personal injury statute, 735Ill.Comp.Stat. 5/13-202.
Rosado v. Gonzalez, 832 F.3d 714, 716 (7th Cir.
2016) (citation omitted). "[A]ll that is required to
start the statute of limitations running is knowl- edge of
the injury and that the defendant or an employee of the
defendant acting within the scope of his or her employment
may have caused the injury" Artega v. United States,
711 F.3d 828, 831 (7th Cir. 2013) (citations omitted).
it is undisputed that Liberty's claims began to accrue on
June 16, 2013, and that the limitations period expired on
June 16, 2015, eight days before she moved for leave to file
the amended complaint. Liberty attempts to salvage her
time-barred claims by arguing that she is entitled to
equitable tolling or equitable estoppel. However, neither
theory is applicable here. We address each argument in turn.
tolling applies when a plaintiff, despite the exercise of due
diligence and through no fault of his own, cannot determine
information essential to bringing a complaint."
Ashafa v. City of Chicago, 146 F.3d 459, 463 (7th
Cir. 1998) (citation omitted). The record demonstrates that
Liberty was aware of the identities of Officers Palazzolo and
Jehl more than three weeks prior to the end of the
limitations period. Therefore, Liberty had the information
essential to amending her complaint, and tolling is
to Liberty's second argument, "[e]quitable estoppel
prevents a party from asserting the expiration of the statute
of limitations as a defense when that party's improper
conduct has induced the other into failing to file within the
statutory period." Ashafa, 146 F.3d at 462.
Liberty argues that the City refused to provide her with the
names of the additional unknown officers, but she has no
evidence to support such a charge. In addition, we are
unpersuaded that the City induced Liberty into failing to
file within the limitations period. Nixa's statement that
the City would likely not oppose the filing of an