Rosado v. Gonzalez, No. 15-3155 (7th Cir. 2016)
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Chicago Police officers pulled over a car driven by Rosado for failing to use a turn signal. After stopping the car, the officers “claimed to have seen” a badge, handcuffs, and a handgun in plain view “between the brake lever and center console.” They arrested Rosado for unlawful possession of a weapon by a felon and for violating the armed habitual criminal statute. Another officer approved the report as establishing probable cause. Rosado spent about 18 months in jail before receiving a copy of the dash cam video recorded when he was arrested, which, contrary to the officers’ accounts, showed that Rosado had used an operable turn signal. The state court dismissed the charges. Rosado filed suit under 42 U.S.C. 1983. The court dismissed Rosado’s false‐arrest claim as barred by the two‐year statute of limitations. Because his claims of conspiracy and failure to intervene arose from the false‐arrest claim, those were also dismissed. The court dismissed Rosado’s due‐process and respondeat‐superior claims on the merits. The Seventh Circuit affirmed. Rosado did not promptly file. He knew the officers had fabricated probable cause by February 2014, when he received the video, and still had seven months to timely file suit. Rosado’s unexplained failure to timely file precluded equitable tolling.
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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 tiff s 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.
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