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United States District Court, N.D. Illinois

April 21, 2004.


The opinion of the court was delivered by: JOHN W. DARRAH, District Judge


Plaintiff, Raymond C. Russell, filed suit against Defendant, the City of Chicago. Plaintiff alleges that Defendant had a pattern and practice of placing "Denver Boots" on automobiles, in violation of 42 U.S.C. § 1983, the Illinois Constitution, and Illinois state law. Presently before the Court is Defendant's Motion to Dismiss Plaintiff's Amended Complaint. For the foregoing reasons, that motion is granted.


  In reviewing a motion to dismiss, the court reviews all facts alleged, in the complaint and any reasonable inferences drawn therefrom in the light most favorable to the plaintiff. See Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). A plaintiff is not required to plead the facts or elements of a claim, with the exceptions found in Federal Rule of Civil Procedure 9. See Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). Dismissal is warranted only if "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The "suit should not be dismissed if it is possible to hypothesize facts, consistent with the complaint, that would make out a claim." Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995).


  The facts, for the purposes of this motion, are taken as true from Plaintiff's Complaint. Plaintiff is a homeless resident of Chicago, Illinois, and is an African-American. Defendant is a municipal corporation empowered to enforce the Chicago Municipal Code.

  Prior to April 9, 2001, Raymond Russell was the owner of an automobile. On fourteen separate occasions before April 9, 2001, Plaintiff received parking tickets for this vehicle. At least two of these tickets claimed Plaintiff's automobile did not have a valid sticker and State of Illinois license plate, even though the automobile properly had these items. Plaintiff did not pay any of these tickets,

  On April 9, 2001, Defendant affixed a Denver Boot to Plaintiff's automobile because Plaintiff is an African-American. A Denver Boot is a huge clamp applied to a wheel of a car which prevents the car from moving. A Denver Boot is sturdy enough to resist determined efforts by drivers to free their vehicles from its embrace. In 2001, Defendant destroyed Plaintiff's automobile.

  Defendant disproportionally places Denver Boots on vehicles in economically depressed parts of Chicago and disproportionally places Denver Boots on vehicles owned by African-Americans. At the time they are placing a Denver Boot on a vehicle, Defendant's employees know the race of the vehicle's owner.

  Plaintiff filed the instant suit on June 3, 2003. ANALYSIS

  Defendant argues that Plaintiff's Complaint is time-barred by the statute of limitations. According to Defendant, Plaintiff filed his claims more than two years from the time he knew of the allegedly illegal act, on April 9, 2001. Generally, parties may not assert a statute of limitations defense on a Rule 12(b)(6) motion to dismiss. However, if a "plaintiff pleads facts that show its suit [is] barred by a statute of limitations, it may plead itself out of court under a Rule 12(b)(6) analysis," Kauthar SDN BHD v. Sternherg, 149 F.3d 659, 670 (7th Cir. 1998) (alteration in original),

  In Illinois, the statute of limitations for § 1983 claims is two years. E.g., Chirk v. City of Braidwood, 318 F.3d 764, 766 (7th Cir. 2003). For state law claims filed against a local entity, the statute of limitations in Illinois is one year. 745 ILCS 10/8-101. The statute of limitations begins to run when a plaintiff knows or should have known of the commission of the allegedly illegal act. E.g., Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993).

  Here, Plaintiff alleges that Defendant has a pattern or practice of placing Denver Boots on vehicles owned by African-Americans, Plaintiff argues that the tort, as committed against him, was not complete on April 9, 2001. because he continued to suffer injury from Defendant's action. However, the statute of limitations began to run when Plaintiff knew or should have known Defendant committed the illegal act.

  From the facts Plaintiff pled in his Amended Complaint, the date Plaintiff knew or should have known of the illegal act was April 9, 2001, when Defendant placed a Denver Boot on Plaintiff's car. This date is more than two years removed from the date Plaintiff filed his suit. Accordingly, Plaintiff's action is time-barred for both his § 1983 and Illinois causes of action. CONCLUSION

  For the foregoing reasons, Defendant's Motion to Dismiss is granted.


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