NONPRECEDENTIAL DISPOSITION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 September 20, 2017*
Decided September 21, 2017
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17‐1263
TONY C. FRANKLIN, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 14‐CV‐1188
WILLIAM WARMINGTON and CITY OF
RACINE, William E. Duffin,
Defendants‐Appellees. Magistrate Judge.
O R D E R
Tony Franklin brought this action under 42 U.S.C. § 1983 against the City of
Racine and a former Racine police officer, who, he asserts, violated his Fourth
Amendment rights by forcibly removing him from a vehicle. The district court granted
* We have 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. FED. R. APP. P. 34(a)(2)(C).
No. 17‐1263 Page 2
the defendants summary judgment based on their statute‐of‐limitations defense.
Franklin, the court explained, filed the lawsuit more than one year after the statute of
limitations had passed, and the defendants were not equitably estopped from asserting
this defense. On appeal Franklin asks us to adopt a new approach for applying
equitable estoppel. We affirm.
As Franklin recounts, he was a passenger in a van driven by Michelle
Warmington in May 2007 when they were pulled over by William Warmington, a
Racine police officer—and her husband. Upset that Franklin was with his wife, William
Warmington grabbed him from the van and slammed him onto the cement, causing
injuries to his hands, chest, and face. Warmington then asked Franklin why he was with
his wife and threatened to kill him. Other officers arrived at the scene and eventually
allowed Franklin to leave. Warmington contests only two details of this account; he says
that he merely “directed” Franklin to the ground after pulling him out of the van and
that he never threatened him. The two men had no further interactions.
Franklin later heard from others that Warmington had threatened to kill him “for
messing with his wife.” Roughly three months after the confrontation, Franklin wrote to
the Racine Police Department about the traffic stop and reported a death threat from
Warmington that a friend had conveyed to him. The police department informed
Franklin several months later that it had investigated the matter and that “appropriate
corrective action [had] been taken.”
In 2014 Franklin sued Warmington and the City of Racine, asserting that
Warmington unlawfully seized him during the 2007 traffic stop. Franklin explained that
he delayed bringing this suit because he recently had learned that Warmington moved
out of state (Warmington joined a police department in Florida in 2009) and only at this
point did he “feel comfortable” enough to sue him.
The district court granted the defendants’ motion for summary judgment,
determining that Franklin’s claim was barred by Wisconsin’s six‐year statute of
limitations for personal‐injury claims. See WIS. STAT. § 893.53; Wudtke v. Davel, 128 F.3d
1057, 1061 (7th Cir. 1997). The court rejected Franklin’s contention that the defendants
should be equitably estopped from asserting a statute‐of‐limitations defense based on
Warmington’s post‐incident threats; in the court’s view, no reasonable factfinder could
conclude that Warmington’s threats, which Franklin heard secondhand, constituted
active steps to prevent him from timely filing this lawsuit within the requisite six years
No. 17‐1263 Page 3
(by May 2013). Notwithstanding such threats, the court emphasized that Franklin
(1) did in fact complain to the police as early as August 2007 about Warmington’s
conduct, (2) had no further interactions with Warmington after the incident, and
(3) provided no reason for waiting until after the statute of limitations had passed to
look into Warmington’s whereabouts.
Franklin challenges the district court’s approach for applying equitable estoppel
and urges us instead to adopt what he calls a “subjective test.” Under this subjective
test, according to Franklin, the sole inquiry should be the sincerity of a plaintiff’s belief
that a defendant took “active steps” to prevent or delay the filing of a lawsuit. Here,
Franklin insists, Warmington’s threats deterred him from timely filing suit and
therefore equitable estoppel must apply. He also points to the phrase, “equitable tolling
is subjective,” that a district court had used in an unpublished order addressing the
timeliness of a prisoner’s post‐conviction motion under 28 U.S.C. § 2255. See Johnson v.
United States, No. 10‐CV‐341, 2010 WL 2490694, at *3 (E.D. Wis. June 17, 2010).
Our case law has been consistent: applying equitable estoppel requires that a
plaintiff’s reliance on a defendant’s conduct be “both actual and reasonable.” Rager v.
Dade Behring, Inc., 210 F.3d 776, 779 (7th Cir. 2000) (citing cases); see also Matamoros v.
Grams, 706 F.3d 783, 793 (7th Cir. 2013). The district court here appropriately
determined that no reasonable factfinder could conclude that Franklin acted justifiably
based on dated death threats that he had learned of only secondhand. As the district
court observed, nothing stopped Franklin from inquiring about Warmington’s status
before the statute of limitations had passed. Moreover no reasonable factfinder could
conclude that Franklin actually relied on Warmington’s threats because he filed a
complaint with the police department regarding one of these threats and the traffic stop
about three months after it occurred.
Further Johnson does not support Franklin’s position. That case concerns the
doctrine of equitable tolling, which applies “when a litigant has pursued his rights
diligently but some extraordinary circumstance prevents him from bringing a timely
action.” Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1231–32 (2014). Equitable estoppel, by
contrast, “comes into play if the defendant takes active steps to prevent the plaintiff
from suing in time.” Clarke v. United States, 703 F.3d 1098, 1101 (7th Cir. 2013) (internal
quotation marks and citation omitted). In Johnson, the court analyzed whether equitable
tolling applied to a prisoner’s § 2255 motion and explained that this doctrine involves
“subjective standards such as whether the prisoner has ‘diligently followed up.’”
No. 17‐1263 Page 4
Johnson, 2010 WL 2490694, at *3. The court elsewhere remarked, in a phrase highlighted
by Franklin, that “equitable tolling is subjective.” Id. But the district court’s allusions to
the subjective nature of equitable tolling in no way undercut the requirement that a
plaintiff requesting equitable tolling have acted in an objectively reasonable manner
when protecting the right to file a claim. See Shropshear v. Corp. Counsel of City of Chi.,
275 F.3d 593, 595 (7th Cir. 2001) (citing cases). We decline the invitation to overturn our
precedent.
AFFIRMED.