NONPRECEDENTIAL DISPOSITION
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 November 14, 2013*
Decided November 15, 2013
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐1189
LOUISE DAVENPORT, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 C 4517
JOHN DOVGIN, et al.,
Defendants‐Appellees. Sharon J. Coleman,
Judge.
O R D E R
Louise Davenport brought a range of claims challenging two separate arrests for
trespass and other police conduct that occurred during her post‐arrest detention at the
police station. The district court disposed of these claims, dismissing most of them for
*
After examining the parties’ briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 13‐1189 Page 2
failure to state a claim, and granting summary judgment on a Fourth Amendment claim
challenging the conditions of her detention. We affirm.
In 2009 Davenport brought this suit under 42 U.S.C. § 1983 against the City of
Chicago, the Chicago Police Department, several individual officers, and other
defendants, claiming false arrest, due process violations in connection with the disposal
of her personal property, discrimination under the Americans with Disabilities Act,
intentional infliction of emotional distress, equal protection violations, and Fourth
Amendment violations in connection with the conditions of her confinement (the
Fourth Amendment governs the period of confinement between arrest without a
warrant and the probable cause determination, see Currie v. Chhabra, 728 F.3d 626, 629
(7th Cir. 2013)). According to her complaint, Davenport was arrested two years earlier
for trespassing when a police officer found her sleeping under an overpass next to a
sign that stated “State Property No Trespassing.” Once at the police station, she alleged,
the police refused to let her use the restroom, threw away her bags containing personal
belongings and denied her food. She added that the officers further detained her after
she resisted being photographed because the flash of the camera hurt her eyes. She also
alleged that police re‐arrested her the following month for trespassing at the same
place.
At screening, see 28 U.S.C. § 1915A, Judge Aspen dismissed most of Davenport’s
claims for failure to state a claim. First the judge dismissed the due process claim,
concluding that an adequate postdeprivation remedy at state law was available. The
judge also dismissed the ADA claim because Davenport did not allege how she was a
qualified individual, for what public program she qualified, or how the defendants
discriminated against her by reason of any disability. Next the judge dismissed her
claim for intentional infliction of emotional distress, concluding that she did not allege
that the defendants intended to inflict emotional distress (or were aware of a high
probability of doing so). The judge also dismissed the equal protection claim because
she did not allege that she was mistreated by the police because of her race or any other
protected characteristic. Judge Aspen, however, did allow Davenport to proceed on her
Fourth Amendment claim regarding the conditions of her confinement: that officers
refused her requests to use the bathroom, denied her food, and pressured her to be
photographed even though doing so would hurt her eyes.
The case was transferred to Judge Coleman and, after further proceedings,
Davenport moved to amend her complaint to name three additional defendants. Judge
Coleman granted the motion with respect to one defendant who had been named in the
No. 13‐1189 Page 3
body of the original complaint, but denied the motion with regard to the other two
because the statute of limitations had already run. The judge later granted the
defendants’ motion for summary judgment on the remaining Fourth Amendment
claim, agreeing that the individual officers were not involved in the conditions of
Davenport’s post‐arrest confinement and that Davenport failed to identify an official
City policy or custom that led to her injuries.
On appeal Davenport challenges the dismissal of many of her claims at the
screening stage. She asserts, for instance, that Judge Aspen failed to adequately explain
why he dismissed her false arrest claims–claims that, she maintains, must be liberally
construed because she was proceeding pro se. Although the judge on this point did not
explain his rationale, Davenport’s complaint cannot state a plausible false‐arrest claim
because she did not allege that the officer lacked probable cause to arrest her.
See Devenpeck v. Alford, 543 U.S. 146, 152 (2004); Sroga v. Weiglen, 649 F.3d 604, 608 (7th
Cir. 2011). To the contrary, her allegations confirm that a reasonably prudent officer
witnessing a person sitting near a no‐trespassing sign would believe that the offense of
trespassing had occurred. Sroga, 649 F.3d at 610 (probable cause existed for trespassing
arrest when defendant was stopped near sign reading “Police Parking Only and Police
Personnel Only”).
Davenport next asserts that Judge Aspen erred in dismissing her ADA claim
because her complaint, when viewed liberally, reflects that she should have received
reasonable accommodations for her medical conditions, which include congestive heart
failure, rheumatoid arthritis, peripheral artery disease, and blindness in one eye. But as
the judge noted, more is required to state a claim for an ADA violation: the complaint
must also allege that she was a “qualified person” denied the “benefits of the services,
programs or activities of a public entity.” 42 U.S.C. § 12132. Davenport’s complaint
cannot state a plausible claim for relief because it does not allege what service, program,
or activity she believes she was excluded from because of a disability. Id. §§ 12131(2),
12132.
Davenport next challenges Judge Aspen’s dismissal of her intentional‐infliction‐
of‐emotional‐distress claim, asserting that she sufficiently alleged that the officers
should have known that the disposal of her property was likely to cause severe
emotional distress. But we need not reach the issue because her claim is barred by the
relevant one‐year statute of limitations. See 745 ILCS 10/8‐101, 1‐204. Although the
statute of limitations is an affirmative defense, a court may dismiss a claim as time‐
barred if the complaint sets forth the necessary information to show that the statute of
No. 13‐1189 Page 4
limitations has expired. See Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009); United States
v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). Judge Aspen assumed that a two‐year statute
of limitations applied, but in fact it is only for a single year because the claim falls
within an Illinois statute that covers civil actions against a local entity or its employees
for an injury. See 745 ILCS 10/8‐101; Woidtke v. St. Clair County, Ill., 335 F.3d 558, 561 (7th
Cir. 2003) (stating that one‐year statute of limitation applied to suit alleging negligence
by county and public defender); Kaufmann v. Schroeder, 946 N.E.2d 345, 346–47 (Ill. 2011)
(affirming dismissal of intentional infliction of emotional distress claim against
municipal corporation under 10/8‐101). Because Davenport alleged that she was injured
by the City, its police department, and several city employees, her intentional infliction
of emotional distress claim is subject to a one‐year statute of limitations. See 745 ILCS
10/8‐101. This claim is therefore time‐barred because it arises out of incidents that
occurred in July and August 2007, well over a year before she eventually filed this
lawsuit.
Davenport also challenges Judge Coleman’s denial of her request to amend the
complaint to name two additional defendants because the statute of limitations had
expired. In her view, the proposed defendants had notice of the suit through what
another circuit has identified as the “shared attorney” method of imputing notice.
Under this method, the defendant to be added is deemed to have received timely notice
of the plaintiff’s claims because that person is currently being represented by the
particular attorney who represents an originally named defendant. Garvin v. City of
Philadelphia, 354 F.3d 215, 222–23 (3d. Cir. 2003); Singletary v. Pa. Dep’t of Corrs., 266 F.3d
186, 196–97 (3d Cir. 2001). But even if we accepted the “shared attorney” method, it
does not apply here because notice of the suit was not imputed to the proposed
defendants through the shared attorney within 120 days of Davenport’s filing of her
complaint. See FED. R. CIV. P. 15(c)(1)(C), 4(m); Garvin, 354 F.3d at 223. The shared
attorney did not begin representing the proposed defendants until Davenport moved to
amend the complaint, almost two years after she filed suit. Because the “shared
attorney” method does not apply, and Davenport attempted to name the proposed
defendants after the statute of limitations expired, Judge Coleman correctly denied the
motion to amend.
Finally Davenport contests summary judgment on her Fourth Amendment claim
relating to post‐arrest confinement conditions. Though her argument is difficult to
decipher she seems to believe that she identified a factual dispute when she alleged that
the officers’ lack of training led to their refusal to let her use the bathroom and
pressuring her to be photographed even though doing so would hurt her eyes. But
No. 13‐1189 Page 5
Judge Coleman properly granted summary judgement to the City because Davenport
merely speculated that her injuries resulted from a City policy or widespread practice;
instead, she must produce some evidence so showing. See Carroll v. Lynch, 698 F.3d 561,
565 (7th Cir. 2012); Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008).
Further, Judge Coleman correctly determined that summary judgment was proper with
regard to the individual defendants because the evidence showed that they were
involved only in Davenport’s arrests and the inventory of her property, not the
conditions of her post‐arrest confinement.
Although Davenport also purports to appeal Judge Coleman’s failure to address
her request for a preliminary injunction, the point is moot because a preliminary
injunction would serve no purpose now that the case has been resolved on the merits.
See Girl Scouts of Manitou Council, Inc., v. Girl Scouts of the U.S.A., Inc., 549 F.3d 1079,
1085–86 (7th Cir. 2008).
We have reviewed Davenport’s remaining arguments, and all are without merit.
Accordingly, we AFFIRM the judgment of the district court.