Tingley v. Keim et al
Filing
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ORDER ADOPTING 41 Report and Recommendations. Granting 15 MOTION to Dismiss filed by Martin Keim and 35 MOTION to Dismiss filed by Kyle Nave. Signed by Judge Michael J. Reagan on 05/10/2013. (dkd )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHAD STEVEN TINGLEY,
Plaintiff,
vs.
MARTIN KEIM and KYLE NAVE,
Defendants.
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Case No. 11–cv–0896–MJR–SCW
MEMORANDUM & ORDER
REAGAN, District Judge:
INTRODUCTION
Pro se Plaintiff Chad Tingley, an inmate at the Federal Correctional Institution in
Pekin, Illinois (FCI Pekin), is serving a sentence for methamphetamine and firearms violations. 1 In
October 2011, he sued five defendants—all of them members of the Marshall, Illinois, police
department—under 42 U.S.C. § 1983, alleging that Defendants falsified the 2005 affidavit used to
secure the search warrant that led to his conviction, thereby violating the Fourth Amendment. On
threshold review of the Complaint, the undersigned dismissed three unnamed defendants and
allowed Plaintiff’s claims against Defendants Keim and Nave to proceed.
Defendants filed respective motions to dismiss based on a statute of limitations
defense. By Report and Recommendation (R&R) dated March 18, 2013 and submitted via 28 U.S.C.
§ 636, the Honorable Stephen C. Williams, United States Magistrate Judge, recommends that the
undersigned grant both motions to dismiss. Plaintiff filed a timely objection on April 3, 2013, and
the deadline for responding to that objection has elapsed. The matter is ripe for ruling.
Tingley pled guilty to four counts in this Judicial District in October 2006. See United States v. Tingley , No. 06–cr–
40003–JPG (S.D. Ill. Oct. 30, 2006).
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Plaintiff’s timely objection having been filed, the District Judge undertakes de novo
review of the portion of the R&R to which Plaintiff specifically objected. 28 U.S.C. § 636(b)(1);
FED. R. CIV. P. 72(b); SDIL-LR 73.1(b). The undersigned can accept, reject, or modify the
recommendations made by Judge Williams, receive further evidence, or recommit the matter to
Judge Williams with instructions. Id. For the reasons stated below, the Court ADOPTS Judge
Williams’ R&R (Doc. 41) in its entirety. Analysis begins with reference to the applicable legal
standards.
LEGAL STANDARDS
1. Standard Governing Motions to Dismiss
Because the statute of limitations is an affirmative defense, dismissal under Rule
12(b)(6), which tests the sufficiency of a complaint, is atypical. U.S. v. N. Trust Co. , 372 F.3d 886,
888 (7th Cir. 2004). A Rule 12(c) motion for judgment on the pleadings is generally a more
appropriate procedural vehicle, Yassan v. J.P. Morgan Chase & Co. , 708 F.3d 963, 975 (7th Cir.
2013), but the practical effect can be identical, Brooks v. Ross , 578 F.3d 574, 579 (7th Cir. 2009).
When the complaint sets forth everything necessary to satisfy an affirmative defense, that defense
may be raised in a motion to dismiss. Brooks , 578 F.3d at 579. Accord Logan v. Wilkins , 644
F.3d 577, 582 (7th Cir. 2011).
Regardless of which section of Rule 12 controls, the standard is the same. Hayes v.
City of Chi. , 670 F.3d 810, 813 (7th Cir. 2012). A plaintiff’s factual allegations must be enough to
raise a right to relief above the speculative level. Brooks , 578 F.3d at 581 (citing Bell Atl. Corp. v.
Twombly , 550 U.S. 544, 555 (2007)). Though allegations in a pro se complaint must be liberally
construed, McCready v eBay, Inc. , 453 F.3d 882, 890 (7th Cir. 2006), a prisoner plaintiff may
“unwittingly plead himself out of court by alleging facts that preclude recovery,” Edwards v.
Snyder, 478 F.3d 827, 830 (7th Cir. 2007). In other words, dismissal for failure to state a claim is
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appropriate if the existence of a valid affirmative defense “is so plain from the complaint that the
suit can be regarded as frivolous.” Turley v. Gaetz , 625 F.3d 1005, 1013 (7th Cir. 2010). See also
Walker v. Thompson , 288 F.3d 1005, 1010 (7th Cir. 2002) (validity of the affirmative defense
must be “apparent” and “unmistakable”).
2. Standard Governing Statute of Limitations
Federal courts must look to state law for the limitations period in § 1983 actions. 42
U.S.C. § 1988(a); Ray v. Maher, 662 F.3d 770, 772 (7th Cir. 2011). The state limitations period
for personal injury actions is applied in its entirety, complete with related tolling provisions. Ray ,
662 F.3d at 773. In Illinois, that period is two years. Id. ; 735 ILCS 5/13–202. Federal law,
however, controls when the statute of limitations begins to run: a plaintiff’s claim accrues when he
“knows or should know that his … constitutional rights have been violated.” Draper v. Martin ,
664 F.3d 1110, 1113 (7th Cir. 2011) (citing Hileman v. Mays , 367 F.3d 694, 696 (7th Cir. 2004)).
Pinpointing the accrual date requires a two-part inquiry: (1) identification of the injury and (2)
determining when the plaintiff could have sued for that injury. Draper, 664 F.3d at 1113. In cases
where a purportedly false affidavit lead to Fourth Amendment allegations, the limitations period
begins to run as soon as plaintiff knows (or should know) about the search and the facts making it
unlawful. Thomas v. McElroy , 463 F.App’x 591, 592 (7th Cir. 2012) (citing Wallace v. Kato,
549 U.S. 384, 392–94 (2007), Evans v. Poskon , 603 F.3d 362, 363 (7th Cir. 2010), and
Washington v. Summerville , 127 F.3d 552, 556 (7th Cir. 1997)).
ANALYSIS
Plaintiff filed this lawsuit on October 4, 2011. If his claims accrued, as he argues,
sometime in early October 2009, then the suit escapes the statute of limitations defense. 2 Plaintiff
Plaintiff claims that, pursuant to a FOIA request inspired by his mother’s discovery of other, similar allegations against
Defendant Keim, he received information “concerning the misconduct of Defendant Keim” on October 2, 2009. This
lawsuit was filed on October 4, 2011—two years and two days after that date, and past the expiration of the limitations
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posits that he neither knew (nor should have known) about the false 2005 affidavit until October
2009, when, pursuant to a FOIA request, he received information from the City of Marshall
concerning an internal investigation into Defendant Keim’s fabrication of incident reports and
possible Brady violations in other criminal investigations.
By itself, Plaintiff’s argument may have sufficed to create an issue of fact as to when
he should have known about Keim’s false affidavit. But the argument does not exist in a vacuum:
Plaintiff’s Complaint unmistakably indicates precisely when he knew about Keim’s fabrication (and
therefore should have known about Nave’s complicity). In pertinent part, his Complaint alleges:
17. Approximately 2 weeks following Plaintiff Tingley’s complaint to the Sheriff, he
was approached by Defendant Keim at Casey’s General Store in Marshall.
Defendant Keim proceeded to threaten Plaintiff Tingley for making the complaint
and promised to put Plaintiff and his father . . . in prison.
18. The following day after Plaintiff Tingley’s encounter with Defendant Keim at
Casey’s Plaintiff Tingley lodged a formal complaint concerning the matter with
Defendant Nave at the Marshall Police Department. Plaintiff Tingley relayed the
facts described in paragraph 17 to Defendant Nave, who made written notes of the
interview. Defendant Nave informed Plaintiff Tingley that a report would be filed.
19. In the several months that followed Plaintiff Tingley’s complaint, Defendant
Keim was repeatedly observed driving past his residence and the home of [Plaintiff’s
father]. Defendant Keim was also observed running away from [Plaintiff’s
girlfriend’s] residence . . .
…
21. On August 26, 2005, Defendant Keim . . . executed a search warrant at Plaintiff
Tingley’s residence. As a result of this search, Defendant Keim claimed to uncover
evidence that methamphetamine was being manufactured in Plaintiff’s barn.
Defendant Keim also claimed to discover a number of firearms from Plaintiff
Tingley’s residence. The [seizure] of this evidence ultimately gave rise to a federal
indictment against the Plaintiff…
22. Following Plaintiff Tingley’s [August 2005] arrest in the matter, he had the
opportunity to review the affidavit and complaint filed by Defendant Keim in
period. But it was dated on October 1, 2011, and the Court will assume, for the purpose of this motion, that it was
delivered to prison officials that day. See U.S. v. Craig , 368 F.3d 738, 740–41 (7th Cir. 2004) (applying “mailbox
rule”—that a pleading is timely if deposited in an institution’s internal mail system on or before the last day of
filing—to a prisoner’s document).
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support of the search warrant executed at his residence. Upon reviewing the
contents of the document, … Plaintiff Tingley realized the information contained therein was
false. Specifically, the information relayed to Defendant Keim by the confidential sources is untrue.
Plaintiff Tingley relayed the information to his attorney, Todd Reardon.
23. During the prosecution of the federal indictment against him, Plaintiff Tingley
regularly informed his attorney that the evidence allegedly discovered in his barn did
not belong to him and he was unaware of its presence. However, Mr. Reardon
refused to act on Plaintiff Tingley’s complaints because Defendant Keim was a
police officer. Reardon informed Plaintiff that his only option was to plead guilty.
Plaintiff Tingley followed counsel’s advice and entered a guilty plea on October 30,
2006. …
(Doc. 1, 6) (emphasis added).
It is clear, then, that Plaintiff knew of Keim’s threats to imprison him, knew that
Keim had falsely “claimed” to discover evidence on his property that did not belong to Plaintiff,
knew that Keim had authored the affidavit that led to the search of his barn (which in turn led to his
arrest), knew that Nave had ignored Keim’s malfeasance, and knew that falsified portions of the
affidavit that described Keim’s conversations with confidential informants were written by Keim
himself. Crucially, it is also clear that Plaintiff knew these things, and could have sued Keim and
Nave for Fourth Amendment violations, before he pled guilty in October 2006. See Draper, 664
F.3d at 1113.
On the face of the Complaint, therefore, Plaintiff set forth “everything necessary” to
satisfy the statute of limitations defense. 3 Because he knew then (or at least, given the facts pled,
should have known) that Defendant Keim falsified the affidavit at the heart of this case, Plaintiff’s
claim accrued (at the very latest) in October 2006—almost five years before he filed the instant
lawsuit. He has pled himself out of court. Edwards , 478 F.3d at 830. See also Thomas , 463
F.App’x at 591–92 (dismissal of Illinois inmate’s Fourth Amendment suit on statute of
Plaintiff admits as much when, in his objection to the R&R, he argues that his complaint, liberally construed, states
“that [P]laintiff assumes on August 2005 that Defendant’s Affidavit was false.” (Doc. 44, 6–7).
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limitations grounds affirmed where it was clear he knew about a policeman’s purportedly
bogus affidavit more than two years before he filed suit).
CONCLUSION
Plaintiff’s claims are barred by Illinois’ two-year statute of limitations. The Court
ADOPTS in its entirety Judge Williams’ Report and Recommendation (Doc. 41), and GRANTS the
Motions to Dismiss filed by Defendants Keim (Doc. 15) and Nave (Doc. 35). Plaintiff’s claims
against Keim and Nave are DISMISSED with prejudice.
No claims remain in this case, so the Clerk is DIRECTED to enter final judgment
against Plaintiff Tingley and in favor of all Defendants, and to close this case.
IT IS SO ORDERED.
/s/ Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge
DATE: May 10, 2013
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