Lamondre Moore v. Michael Vagnini
Filed Nonprecedential Disposition PER CURIAM. We MODIFY the judgment of the district court to reflect a dismissal of Moore s claim under that rule and AFFIRM as modified. William J. Bauer, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6812871-1]  [16-3097]
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 January 18, 2017*
Decided January 19, 2017
WILLIAM J. BAUER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
Appeal from the
United States District Court for the
Eastern District of Wisconsin.
O R D E R
LaMondre Moore, a Wisconsin inmate, appeals from the district court’s dismissal
of his civil‐rights lawsuit alleging that Milwaukee police officer Michael Vagnini
performed an illegal body‐cavity search during an arrest. The district court dismissed
the complaint on the ground that it was barred by the statute of limitations. We affirm.
* 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).
In his complaint, which he filed November 17, 2014, Moore alleged that “[i]n year
2008” Vagnini used excessive force in the course of arresting him. Moore said that while
he was stopped at a gas station, Vagnini approached his truck, “broke the window[,]
grabbed me by my throat[,] pulled me out of the car by my throat[,] threw me [o]nto the
ground,” and then probed his anal cavity, all without probable cause. Body‐cavity
searches in Wisconsin may be performed only by a medical professional and never in
public. See WIS. STAT. § 968.255(2)(b), (3).
Civil‐rights lawsuits brought in Wisconsin under 42 U.S.C. § 1983, like Moore’s,
are governed by the state’s six‐year statute of limitations for injuries to personal rights.
Kennedy v. Huibregtse, 831 F.3d 441, 442 (7th Cir. 2016). Vagnini moved to dismiss the
complaint on statute‐of‐limitations grounds, asserting that his only interaction with
Moore in 2008 occurred on April 1 (this was reflected in a police report he attached to his
motion), and that Moore’s complaint, filed November 17, 2014, came more than
six months too late. Moore did not dispute that the search occurred on April 1, 2008, but
he maintained that he did not know he had a right to relief until April 22, 2012, when he
read the first in a series of news articles in the Milwaukee Journal Sentinel describing
accusations that Vagnini had performed illegal body‐cavity and strip searches on others.
(He attached copies of two of these articles, pulled from the Journal Sentinel’s website, to
his response to Vagnini’s motion.) He argued that the statute of limitations should be
tolled to that date under Wisconsin’s discovery rule, see John Doe 1 v. Archdiocese of
Milwaukee, 734 N.W.2d 827, 835 (Wis. 2007), because that was the first time he realized
that Vagnini’s search was illegal. Thus, according to Moore’s calculations, the limitations
period should not expire until at least April 22, 2018.
The district court concluded that Wisconsin’s discovery rule did not apply and
dismissed the case. The discovery rule, as its name suggests, tolls the statute of
limitations until a plaintiff discovers or should have discovered an injury and the person
responsible for it. Id. at 834–39; Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d 780, 785–
86 (Wis. 1995). The rule did not apply in this case, the district court explained, because as
of April 1, 2008, Moore “knew that what the defendant had done was not acceptable
police behavior, and the plaintiff knew that he had been injured by that behavior,” and
“[a]t that point, with that knowledge, his claim began to accrue.”
On appeal Moore rehashes his contention that Wisconsin’s discovery rule should
extend the statute of limitations for his claims. But as the district court determined,
Moore knew as of April 1, 2008, that he had suffered an injury and that knowledge
foreclosed any assertion on his part that he did not “discover” his injury until April 2012.
See John Doe 1, 734 N.W.2d at 835. The news articles Moore submitted proved not that he
was unaware of his injury or its cause at the time of the incident, only that he may have
been unaware of his right to legal relief. But Moore did not need to know under what
legal theory he had a claim, or even that he had a claim at all, to know that he had
suffered harm. Saecker v. Thorie, 234 F.3d 1010, 1013 (7th Cir. 2000). He had “the statutory
period to determine whether he [had] a claim and if so to prepare and file his suit, and
that is time enough” given his knowledge of his injury and the person allegedly
responsible. Id.; see also Claypool v. Levin, 562 N.W.2d 584, 591 (Wis. 1997).
We close with a procedural observation. Although the district court dismissed
Moore’s complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, its
analysis relied on additional exhibits: the police report Vagnini submitted that
established the date of the parties’ interaction and the Milwaukee Journal Sentinel
coverage Moore submitted about the ongoing litigation against Vagnini. This reliance on
matters outside the pleadings means that the court should have converted Vagnini’s
motion to one for summary judgment and given the parties a “reasonable opportunity to
present all the material that is pertinent” to such a motion. FED. R. CIV. P. 12(d); Miller v.
Herman, 600 F.3d 726, 733 (7th Cir. 2010). But failure to follow that procedure “will not
necessarily mandate reversal unless the record discloses the existence of unresolved
material fact issues.” United States v. Rogers Cartage Co., 794 F.3d 854, 861 (7th Cir. 2015)
(quoting Woods v. City of Chicago, 234 F.3d 979, 991 (7th Cir. 2000) (internal quotation
marks omitted)). As described earlier, no issues of fact remain to be resolved—Moore
had all the facts he needed to file his complaint within the limitations period but failed to
The district court’s decision is properly understood as entering summary
judgment against Moore under Rule 56 of the Federal Rules of Civil Procedure. See
Miller, 600 F.3d at 732–33, 739. We MODIFY the judgment of the district court to reflect a
dismissal of Moore’s claim under that rule and AFFIRM as modified.
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