Stacey Liberty v. City of Chicago, et al
Filed opinion of the court by Judge Bauer. We AFFIRM the district court s dismissal of Liberty s suit. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6850466-1]  [15-3444]
United States Court of Appeals
For the Seventh Circuit
CITY OF CHICAGO, ERIC JEHL and
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 2451 — Harry D. Leinenweber, Judge.
ARGUED JANUARY 6, 2017 — DECIDED JUNE 27, 2017
Before WOOD, Chief Judge, and BAUER and ROVNER, Circuit
BAUER, Circuit Judge. On June 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.
On 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
A week 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.
On May 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.1 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.
The 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.
The appropriate statute of limitations for § 1983 cases filed
in Illinois is two years, as set forth in Illinois’ personal injury
statute, 735 Ill. 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‐
Mulroney contends that there were six additional officers “involved in
altering and concealing the facts and evidence from the scene of the
shooting” based upon interviews that he conducted with witnesses and
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).
Here, 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.
“Equitable 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 com‐
plaint.” 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 inappropriate.
Moving 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
amended complaint fell far short of an assurance that the City
would abandon all of its’ affirmative defenses. Thus, Liberty is
not entitled to equitable estoppel.
Before concluding, we briefly address Liberty’s final
contention that her claims against the additional unknown
officers and the City should be reinstated. The City contends
that Liberty has waived these arguments because she failed to
raise them before the district court. We agree. See King v.
Kramer, 763 F.3d 635, 641 (7th Cir. 2014) (“[A] party waives on
appeal any argument that it does not present to the district
court.”) (collecting cases). Liberty’s decision to drop the
unknown officers as Defendants and forego a challenge to the
City’s dismissal relinquishes any claims she had against them.
We AFFIRM the district court’s dismissal of Liberty’s suit.
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