January 7, 2000
REPORT AND RECOMMENDATION
This cause is before the Court on Defendant Esteban F. Sanchez's Motion to Dismiss, on Defendants Linda Sutton's, Jim Reed's, and Tim Bucher's Motion to Dismiss, and on Plaintiff's Motion for Extension of Time to Serve the United States Attorney and the Attorney General of the United States.
I. FACTS ALLEGED IN THE COMPLAINT
In case number 91-1253 in the United States District Court for the Central District of Illinois, United States District Judge Michael M. Mihm ordered that the real property located at 936 N.E. Glen Oak Avenue, Peoria, Illinois, and the real property located at 1327 N.E. Bond Street, Peoria, Illinois, be forfeited to the United States Government because the properties' owner, Burns Alexander, had used the properties to facilitate his drug trafficking. United States v. One Parcel of Real Estate Located at 936 Northeast Glen Oak Avenue, 172 F.3d 54, 1999 WL 50845, * 1 (7th Cir. 1999); see United States v. Alexander, 32 F.3d 570, 1994 WL 259447 (7th Cir. 1994) (affirming Burns Alexander's drug conspiracy conviction). Plaintiff is Alexander's wife, and she asserts that the federal agents evicted her from her home on July 10, 1997.
Plaintiff resided at 936 N.E. Glen Oak Avenue, and she maintained rental property at 1327 N.E. Bond Street for which she is seeking lost rental income.
Furthermore, Plaintiff alleges that although the federal agents who are named as Defendants in this action purportedly acted pursuant to Judge Mihm's order when they evicted her and seized her properties, the agents had, in reality, conspired with and were acting on the behalf of unknown representatives of a residential neighborhood association to evict her from her home because she is black. Plaintiff asserts that her home is located in a designated historic neighborhood in Peoria and that she and her husband were the only black residents of that neighborhood. Plaintiff claims that Defendants used the "fraudulent mechanism" of the forfeiture proceedings in case number 91-1253 in order to seize her properties and to evict her because she is black.
Accordingly, Plaintiff, acting pro se, has filed the instant three Count Complaint pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3). Defendants Sanchez, Sutton, Reed, and Bucher have, in turn, moved to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(5) and (6).
Before turning to the arguments raised by Defendants in their motions to dismiss, the Court notes that Plaintiff cannot maintain the causes of actions which she has alleged in her Complaint. Plaintiff asserts that she is bringing her three Count Complaint pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3). However, in order to maintain a cause of action under § 1983 or § 1985(3), the alleged wrong must have been committed by a state actor. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (holding that a state actor is necessary to maintain a § 1983 case); see also Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216, 1220 (7th Cir. 1994) (same); see also United Bhd. of Carpenters and Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 831 (1983) (holding that a state actor is necessary to maintain a § 1985(3) case); see also Stevens v. Tillman, 855 F.2d 394, 404 (7th Cir. 1988) (same).
Here, Plaintiff has not alleged any involvement by a state actor; rather, she alleges that federal agents deprived her of her property. As such, Plaintiff must bring her action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff has not alleged that Defendants Unknown Representatives of a Residential Neighborhood Association are state actors. Although she has alleged that the representatives conspired with the federal agents to deprive her of her property, a conclusory assertion that a private citizen and federal agents entered into conspiracy to deprive her of her Constitutional rights is insufficient to support a Bivens claim. Berman v. Turecki, 885 F. Supp. 528, 534 (S.D.N.Y. 1995).
In making this observation, the Court is cognizant of the fact that pro se complaints are given liberal construction, Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998), that plaintiffs are not required to plead legal theories, Ryan v. Illinois Dep't of Children and Family Servs., 185 F.3d 751, 764 (7th Cir. 1999), and that this mistake alone is insufficient to dismiss Plaintiff's pro se Complaint. The Court simply notes this for Plaintiff's benefit should she decide to file a new Complaint. That being said, the Court will turn to the arguments raised by Defendants in support of their motions to dismiss.
Defendants Sanchez, Sutton, Reed, and Bucher have filed nearly identical motions to dismiss Plaintiff's Complaint. In their motions, Defendants ask the Court to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficiency of service of process and to dismiss her Complaint pursuant to Rule 12(b)(6) based upon the doctrine ofres judicata and because her Complaint is barred by the applicable statute of limitations. In addition, Defendant Sanchez asserts that Plaintiff's Complaint should be dismissed against him because he is protected from liability in this suit based upon the doctrine of absolute immunity.
The Court may dismiss a complaint, pursuant to Rule 12(b)(5), for failure to effect proper service. Rule 4(m) requires a plaintiff to perfect service upon all defendants within 120 days of filing of the complaint, unless good cause is shown. As the United States Court of Appeals for the Seventh Circuit has explained,
[w]hen considering a process defect like the one involved in this case, a district court must first inquire whether a plaintiff has established good cause for failing to effect timely service. If good cause is shown, the court shall extend the time for service for an appropriate period. In other words, where good cause is shown, the court has no choice but to extend the time for service, and the inquiry is ended. If, however, good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time. Thus, absent a showing of good cause, a district court must still consider whether a permissive extension of time is warranted.Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 341 (7th Cir. 1996) (internal citations omitted).
In her response to Defendants' motions to dismiss, Plaintiff admits that she did not serve the United States Attorney for the Central District of Illinois or the Attorney General of the United States as required by Federal Rule of Civil Procedure 4(i). Thus, Plaintiff's Complaint is subject to being dismissed for insufficient service of process.
Nevertheless, Plaintiff argues that her failure to comply with Rule 4(i) does not mandate the dismissal of her case because she has good cause for failing to perfect service and because the Court should exercise its discretion to allow her motion to extend the time to serve the United States Attorney for the Central District of Illinois and the Attorney General of the United States. Plaintiff claims that the Court should allow her motion to extend and should not dismiss her Complaint based upon insufficient service because she is proceeding pro se, because she was unaware of the requirement that she must serve the United States Attorney for the Central District of Illinois or the Attorney General of the United States, because she made a good faith effort to comply with Rule 4 (she served all of the named Defendants), and because Defendants have not suffered any prejudice from her failure to serve the United States Attorney for the Central District of Illinois or the Attorney General of the United States.
However, the Court does not believe that the reasons tendered by Plaintiff for failing to effect timely service constitute good cause. The United States Supreme Court has "never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel." McNeil v. United States, 508 U.S. 106, 113 (1993). Likewise, the Seventh Circuit has made it clear that "[i]gnorance of the law can be no excuse for a failure to perfect service of process." Lewellen v. Morley, 909 F.2d 1073, 1077 (7th Cir. 1990). "Consistent with these observations, a number of courts have specifically held that a pro se litigant's ignorance of the 120-day time limit does not establish good cause under Rule 4[(m)]." Marozsan v. United States, 849 F. Supp. 617, 648 (N.D. Ind. 1994) (collecting cases).
The Court agrees with the reasoning of the cases cited inMarozsan and finds that Plaintiff's tendered reasons do not constitute good cause.
First, Rule 4(i) is clear as to whom a plaintiff suing the federal government must serve. McNeil, 508 at 113. "Failure to read a rule is the antithesis of good cause. Ignorance may be an explanation but is not an excuse." Tuke v. United States, 76 F.3d 155, 156 (7th Cir. 1996). Second, a finding of good cause by the Court based upon the reasons given by Plaintiff would effectively eviscerate Rule 4(i) because every pro se litigant could claim ignorance, thereby automatically excusing his failure to timely serve the defendant. See Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) (opining that "[t]o hold that a pro se litigant's ignorance of Rule 4[(m)] excuses his compliance with the rule would automatically excuse his failure to serve his defendants timely."); see also Townsel v. County of Contra Costa, California, 820 F.2d 319, 320 (9th Cir. 1987) (stating that "to hold that complete ignorance of Rule 4[(m)] constitutes good cause for untimely service would allow the good cause exception to swallow the rule."). Therefore, the Court finds that Plaintiff has failed to establish good cause for failing to timely effect service in compliance with Rule 4(i).
Finally, although the Court possesses the authority to extend the time within which Plaintiff may perfect service upon Defendants despite her inability to show good cause, this Court recommends that the district court decline to do so. Even if the Court were to allow Plaintiff the extension of time which she seeks, her Complaint would be barred by the applicable statute of limitations.
"Bivens actions, like actions under § 1983, are considered as personal injury claims and are governed by the personal injury statute of limitations and tolling laws in the state where the alleged injury occurred. In Illinois, this kind of personal injury case is governed by a two-year statute of limitations."Delgado-Brunet v. Clark, 93 F.3d 339, 342 (7th Cir. 1996) (internal citations omitted). "Federal law defines the accrual of a Bivens claim. Under federal law, the time begins to run when the plaintiff knows that he has been injured." Leavell v. Kieffer, 189 F.3d 492, 495 (7th Cir. 1999) (internal citations omitted). In "this circuit . . . the rule [is] that a cause of action accrues for statute of limitations purposes when a reasonable person knows or in the exercise of reasonable diligence should have known of both the injury and its governing cause. Both components require an objective inquiry into when the plaintiff knew or should have known, in the exercise of reasonable diligence, the essential facts of injury and cause."Fries v. Chicago Northwestern Transp. Co., 909 F.2d 1092, 1095 (7th Cir. 1990) (internal citations omitted).
In the instant case, Plaintiff argues that the statute of limitations did not accrue until Defendants evicted her on July 10, 1997. Because she filed her Complaint on July 6, 1999, she asserts that she is within the two year statute of limitations period.
However, in her Complaint, Plaintiff has referenced case number 91-1253. Because she has done so, the Court "may take into consideration documents incorporated by reference to the pleadings [and] . . . may also take judicial notice of matters of public record" when considering a motion to dismiss without converting the motion into one for summary judgment. United States v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991) (internal citations omitted). Although Plaintiff asserts that she did not know of the forfeiture action until she was evicted on July 10, 1997, the court file in case number 91-1253 reveals otherwise. On September 3, 1996, Judge Mihm granted the Government's motion for summary judgment, thereby allowing the forfeiture of Plaintiff's two properties to the federal government. On May 29, 1997, Judge Mihm denied Alexander's motion to stay the execution of physical possession of the forfeited properties pending a resolution of his appeal by the Seventh Circuit. On June 17, 1997, the docket sheet in case number 91-1253 contains a minute entry which provides: "on June 16, 1997, Helen Perkins Alexander paid the filing fee for the appeal in this matter." Thus, Plaintiff knew as early as June 16, 1997, that the Government was seizing her property and that the seizure was going to occur notwithstanding her husband's appeal. Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (holding that the possibility that internal appeals may mitigate or avoid the injury does not postpone accrual); Lever v. Northwestern Univ., 979 F.2d 552, 553 (7th Cir. 1992) (same). Therefore, June 16, 1997, is the date upon which her cause of action in this case accrued. As such, Plaintiff has filed her Complaint outside of the applicable two year statute of limitations period.
The Court bases its conclusion by analogy upon the Supreme Court's decisions in Delaware State College v. Ricks, 449 U.S. 250 (1980). In Ricks, the Supreme Court held that a person who has been notified that he is being terminated effective at some later date has suffered an "injury" (and the statute of limitations clock begins to run) when he receives notification of his unlawful termination, not when the effective date of his termination arrives. Id. at 257-58; see Kelly v. City of Chicago, 4 F.3d 509, 512-13 (7th Cir. 1993) (holding that when a city revokes a liquor license, the injury occurs when the allegedly wrongful revocation occurs, not when the business closes its doors).
Likewise, in the instant case, Plaintiff suffered her alleged injury when she became aware that her property had been forfeited to the Government (i.e., on June 16, 1997), not when she was evicted on July 10, 1997. Accordingly, Plaintiff's Complaint is barred by the applicable statute of limitations.
Alternatively, Plaintiff argues that her cause of action did not accrue until she obtained "the evidence" of Defendants' racial animus on June 11, 1999. However, "[a] plaintiff's action accrues when he discovers that he has been injured, not when he determines that the injury was unlawful." Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 (7th Cir. 1995), citing Teumer v. General Motors Corp., 34 F.3d 542, 550 (7th Cir. 1994).
Moreover, the "discovery rule" raised by Defendants does not bring Plaintiff's Complaint within the two year statute of limitations period. The discovery rule applies in situations in which a would-be plaintiff does not know of his injury. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990). Here, Plaintiff was aware of her injury; she merely alleges that she did not know of Defendants' racial animus behind her injury. As such, the discovery rule does not apply. Spina v. Forest Preserve of Cook County, ___ F. Supp. 2d ___, 1999 WL 1101904, * 2 n. 2 (N.D. Ill. Nov. 30, 1999).
Finally, Plaintiff asks the Court to apply the "continuing wrong" theory to bring her Complaint within the statute of limitations period. Plaintiff argues that the statute did not begin to run until July 10, 1997, because that was the date upon which "the wrong [wa]s over and done with." Taylor v. Meirick, 712 F.2d 1112, 1118 (7th Cir. 1983).
However, as the Court has previously explained, "when there is only one wrongful act the claim accrues with the first injury."Palmer v. Board of Educ. of Community Unit Sch. Dist. 201-U, Will County, 46 F.3d 682, 686 (7th Cir. 1995). Here, there was only one allegedly wrongful act, i.e., the taking of Plaintiff's property by Defendants because she is black. Although the forfeiture proceeding occurred in stages, there was no series of wrongful acts which created a series of claims. Id. Thus, the continuing wrong theory does not bring Plaintiff's Complaint within the applicable statute of limitations period.
Despite filing this Complaint outside of the applicable statute of limitations period, Plaintiff may, nevertheless, be able to maintain her cause of action. As explained above, Bivens actions are subject to state tolling laws. Delgado-Brunet, 93 F.3d at 342; see Andrews v. Heinold Commodities, Inc., 771 F.2d 184, 186 (7th Cir. 1985) (holding that "[t]he borrowing of a state statute of limitations includes the state's tolling doctrines, which suspend the application of the statute of limitations in prescribed situations."). "Tolling doctrines stop the statute of limitations from running even if the accrual date has passed."Cada, 920 F.2d at 450.
However, Plaintiff has not argued that her Complaint is subject to equitable tolling, nor has she advanced any reason, ground, or basis for the Court to determine that her Complaint is subject to equitable tolling. Although Plaintiff is acting pro se in this case and although the Court must construe pro se pleadings liberally, the Court is not required to make her arguments for her or to assume arguments not made. Smith v. Town of Eaton, Indiana, 910 F.2d 1469, 1471 (7th Cir. 1990). If Plaintiff believes that her cause of action is subject to some equitable tolling principle, she may file a new Complaint, and this time make proper service of process pursuant to Rule 4(i).
Plaintiff's allegation that she discovered evidence on June 11, 1999, of Defendants' racial animus is an insufficient basis to apply the principles of equitable tolling.
Because the Court is recommending that Plaintiff's Complaint be dismissed pursuant to Rule 12(b)(5) for insufficient service of process, the Court need not further address the other arguments raised by Defendants in support of their motions to dismiss. In addition, for the reasons contained within this Report and Recommendation, the Court recommends that Plaintiff's motion for extension of time be denied.
Wherefore, the Court RECOMMENDS that Defendant Esteban F. Sanchez's Motion to Dismiss (d/e 4) and Defendants Linda Sutton's, Jim Reed's, and Tim Bucher's Motion to Dismiss (d/e 8) be ALLOWED. Accordingly, the Court RECOMMENDS that Plaintiff's Complaint be DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 12(b)(5). Finally, the Court RECOMMENDS that Plaintiff's Motion for Extension of Time to Serve the United States Attorney and the Attorney General of the United States (d/e 7) be DENIED.
The parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk of the Court within ten working days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1). Failure to file a timely objection will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986). See also Local Rule 72.2.