Clark v. City of Braidwood, 01-4270.

Citation318 F.3d 764
Decision Date07 February 2003
Docket NumberNo. 01-4270.,01-4270.
PartiesJames CLARK, Plaintiff-Appellant, v. The CITY OF BRAIDWOOD, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Joseph M. Williams (argued), Wheaton, IL, for Plaintiff-Appellant.

Michael G. Cainkar (argued), Chicago, IL, for Defendant-Appellee.

Before FLAUM, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

FLAUM, Chief Judge.

The district court dismissed James Clark's complaint on the ground that it facially showed noncompliance with the limitations period, and Clark appeals. We vacate the judgment and remand for further proceedings.

I. BACKGROUND

Clark owns a 37-acre parcel of land in Will County, Illinois, on which he had planned to build a single-family residential development. Sometime in 1997 the City of Braidwood ("City") authorized a competing developer to install sewer and water pipes on the land. Clark says that as a result he is unable to install pipes of his own, rendering development of the land impossible and causing a devaluation of $800,000.

In July 2001 Clark sued the City under 42 U.S.C. § 1983, alleging that "in or about 1997, the Defendant City knowingly and intentionally authorized a competitor of the Plaintiff to install sewer and water pipes to serve another development, `Lighthouse Cove,' with sewer and water, along and upon the Plaintiff's property and easement, which sewer and water pipes were so installed." Clark claimed that the City's action violated his due process and equal protection rights. He also claimed that the City violated rights conferred on him by Illinois law.

The City moved under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint on the ground that Clark's § 1983 claim was barred by the applicable statute of limitations. In his response to the motion to dismiss, Clark maintained that the City's action constituted a continuing trespass that served to postpone the running of the limitations period. The district court disagreed, however, and granted the motion to dismiss. It concluded that the continuing trespass doctrine did not save Clark's claim because "installation of an unauthorized water and sewer system on one's property surely should put the injured party on immediate notice of harm and a cause of action. It is true that the pipes continue to exist on Clark's land, but the... lingering effect of an unlawful act is not itself an unlawful act ... so it does not revive an already time-barred illegality."

Clark moved for reconsideration under Fed.R.Civ.P. 59(e) or alternatively for leave to amend the complaint, renewing his argument that the City's action was a continuing violation. He further alleged that "[i]t is not clear from the present pleading dismissed that the Plaintiff would have known, in 1997, that there was a trespass instigated upon his property in that the land was pled as vacant property for development and the great bulk of the trespass was, necessarily, underground and not patently obvious." Based on this, Clark argued that "there could well be the application of equitable tolling as to any applicable Statute of Limitations." In his memorandum supporting the motion to reconsider, Clark also seemed to assert that the discovery rule could potentially postpone the running of the limitations period: "It is not apparent under the present pleading that the Plaintiff knew or should have known of his injury in 1997, or at anytime outside of the applicable limitations period; an action does not commence the period of limitations until there is `accrual,' or a date not on which the wrong occurred, but upon which the Plaintiff discovers he has been injured.... Here, the land was vacant, the trespass underground and Plaintiff would not necessarily have known of the trespass until he began to develop that land himself."

The district court denied the motion to reconsider without addressing equitable tolling or the discovery rule. Instead, the court found that Clark's motion "simply reargue[d] his response to the motion to dismiss and fail[ed] to proffer an amended complaint that would cure the fatal defects of [the § 1983 claim]."

II. ANALYSIS

The limitations period for § 1983 cases in Illinois is two years. Licari v. City of Chi., 298 F.3d 664, 667-68 (7th Cir.2002). Clark complains of events that took place "in or about 1997," but he did not file this suit until 2001. Thus, at first glance his complaint appears to be about two years untimely.

Clark, however, advances several lines of argument that he believes could potentially rescue his suit. First, he reasserts his theory that the City's action is a "continuing violation" that therefore amounts to a fresh wrong each day. Clark cites a number of Illinois cases in support of this claim, but we have said that the doctrine of continuing violation is one governing accrual, not tolling, and is therefore governed by federal law. Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir.2001). And under federal law, the continuing violation doctrine does not save an otherwise untimely suit when "a single event gives rise to continuing injuries" because in such a case "the plaintiff can bring a single suit based on an estimation of his total injuries." Id. That is precisely the situation here. Clark alleges one discrete incident of unlawful conduct—the installation of the pipes on his land. That the alleged trespass is, by Clark's description, "permanent" does not convert that discrete act into one long continuing wrong. See Pitts v. City of Kankakee, 267 F.3d 592, 595-96 (7th Cir.2001) (doctrine of continuing violation did not apply to claim that the city violated plaintiffs' constitutional rights by placing signs on their land; at the moment the city posted each sign, plaintiffs knew they had suffered an injury and nothing new happened thereafter to change the nature of the injury).

Clark also contends that, because the trespass was not "readily apparent," the doctrine of equitable tolling could potentially save his claim. The City responds that equitable tolling cannot apply because "no averment in the complaint supports Clark's contention that the City was guilty of fraudulent concealment warranting the application of equitable tolling." This is wrong, both because a plaintiff is not required to negate an affirmative defense in his complaint, Leavell v. Kieffer, 189 F.3d 492, 494 (7th...

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