Vince Davis, Sr. v. City of Chicago Police Depart, et al

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Michael S. Kanne, Circuit Judge; Ann Claire Williams, Circuit Judge and Diane S. Sykes, Circuit Judge. [6784992-1] [6784992] [15-1341]

Case: 15-1341

Document: 48
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted September 22, 2016 *
Decided September 23, 2016
Before
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 15-1341
VINCE DAVIS,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.

Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 13-cv-08149
Charles P. Kocoras,
Judge.
ORDER

Vince Davis, a former Chicago police officer, seeks to regain the job he lost in
1990. Davis brought this suit under 42 U.S.C. § 1983 principally claiming that the City of
Chicago and a number of its employees used a falsified drug test to get him fired in
retaliation for testifying against a police commander’s son accused of robbery. Davis
appended to his complaint hundreds of pages documenting his investigation into the
company that tested his urine and his attempts throughout the 1990s to prove his

We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
*

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innocence. In a series of oral rulings, the district court dismissed the complaint as
untimely and Davis appeals.
Davis argues that the two-year statute of limitations governing § 1983 claims
arising in Illinois, see O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015), does
not bar his suit because the City fraudulently concealed evidence “about the harm that
was done to him.” Davis grounds this assertion on new evidence that, he argues, proves
that the testing company never had a valid contract with the City so his failed drug test
resulted from fraud.
The City counters that in addition to untimeliness, we may affirm the dismissal
on the ground that Davis’s lawsuit is precluded by two earlier suits against the City
raising the same allegations—first in state court in 1995 and then in federal court in 1997.
The City is wrong; under both federal and Illinois law, an earlier lawsuit cannot
preclude a later action unless the parties are the same or in privity, see Rose v. Bd. of
Election Comm’rs, 815 F.3d 372, 374 (7th Cir. 2016); Bernstein v. Bankert, 733 F.3d 190, 226
(7th Cir. 2012), and the individuals sued in this action for the first time are not the same
as, or in privity with, the City, see Conner v. Reinhard, 847 F.2d 384, 395 (7th Cir. 1988)
(“[C]ourts do not generally consider an official sued in his personal capacity as being in
privity with the government”); Kanfer v. Busey Tr. Co., 1 N.E.3d 61, 74 (Ill. App. Ct. 2013)
(“A party appearing in an action in one capacity, individual or representative, is not
thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent
action in which he appears in another capacity.”) (quotation marks omitted). The City
wants us to conclude that the current defendants have been sued in their official capacity
(making the City the only real defendant) even though Davis’s complaint says nothing at
all about official capacity. According to the City, “[t]his court ordinarily assumes that
public officials named as defendants in section 1983 actions are sued in their official
capacities,” and thus the current defendants, as City employees, are in privity with the
City. For this proposition the City cites Kolar v. County of Sangamon, 756 F.2d 564, 568 (7th
Cir. 1985), but only a few years later in Hill v. Shelander we expressly disavowed the
City’s reading of Kolar, 924 F.2d 1370, 1373–74 (7th Cir. 1991) (“[I]n a suit where the
complaint alleges the tortious conduct of an individual acting under color of state law,
an individual capacity suit plainly lies, even if the plaintiff failed to spell out the
defendant’s capacity in the complaint.”). And in Miller v. Smith we confirmed this “new
regime” under which an official-capacity suit is presumed only when a plaintiff seeks
injunctive relief from official policies. 220 F.3d 491, 494 (7th Cir. 2000) (observing that an
official-capacity suit for damages makes no sense because it “would run headlong into

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the 11th Amendment”). Davis’s prior suits cannot shield the individual defendants, who
are sued in their personal capacity and so are not in privity with the City.
Despite the absence of a preclusion defense, Davis’s suit still is doomed. Reading
his complaint generously, at best he has found additional evidence to bolster his
contentions. But that does not allow him to circumvent the statute of limitations to
complain of events that happened a quarter century ago. Davis accuses the defendants of
fraudulently concealing information that, he says, will help prove his allegations of
retaliation. But even if those allegations state a claim for relief under federal law, Davis
has been making them since he was fired in 1990. And under Illinois law, see 735 ILL.
COMP. STAT. 5/13-215, fraudulent concealment tolls the statute of limitations only when
the plaintiff has been thwarted from discovering the claim itself, not pieces of evidence
underlying the claim, see Smith v. City of Chicago Heights, 951 F.2d 834, 837–38 (7th Cir.
1992); Henderson Square Condo. Ass’n v. Lab Townhomes, LLC, 46 N.E.3d 706, 716 (Ill. 2015);
Clay v. Kuhl, 727 N.E.2d 217, 223 (Ill. 2000). Moreover, Davis’s assertion that only recently
did he find enough information to sustain this suit is untenable given that he attached
documents to his complaint showing that as a result of his fraud allegations, the City
terminated its contract with the drug-testing company back in 1995.
AFFIRMED.