United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
SARA L. ELLIS, District Judge.
After the arrest and prosecution arising from Plaintiff Lloyd Turentine's possession of four firearms, he filed suit against Defendants City of Chicago, the City of Chicago Department of Police, and Chicago Police Superintendent Garry McCarthy. Turentine brings claims for (1) violation of his Fourteenth Amendment procedural due process rights for defendants' failure to provide him with a procedure for the return of his firearms (Count I), (2) conversion (Count II), (3) replevin (Count III), (4) violation of his First and Fourth Amendment rights to be free from false arrest and prosecution and unreasonable and illegal searches and seizures (Count IV),  and (5) violation of his Second Amendment rights (Count V). Defendants have moved to dismiss all but the replevin claim but ask the Court to decline to exercise supplemental jurisdiction over that claim and dismiss the entire complaint. Because the Court finds that Turentine's federal claims are barred by the statute of limitations, Defendants' motion to dismiss  is granted.
On May 13, 2011, Turentine was visiting relatives who resided in Chicago, Illinois when he was arrested and charged with firearms violations under city and state law. He was found with one firearm in the trunk of his vehicle and three firearms inside his relatives' residence. All firearms were unloaded and cased. At the time, Turentine was employed by Kates' Detective & Security Agency Inc. and had a valid Illinois Firearms Identification ("FOID") card and a valid firearm control card from the Illinois Department of Financial and Professional Regulation. Despite Turentine making the Chicago Police Department aware of the fact that he had a valid FOID card and was a properly licensed and employed private security contractor, police officers proceeded with the arrest.
The State prosecuted Turentine for the misdemeanor offense of unlawful use of a weapon in violation of 720 Ill. Comp. Stat. 5/24-1 for possession of the firearm in his vehicle, while the City prosecuted Turentine for possessing the three firearms in the residence without a firearms registration certificate in violation of Section 8-20-140(a) of the Chicago Municipal Code. Turentine was found not guilty of all charges on September 29, 2011. Despite demands for their return, the Chicago Police Department has not returned Turentine's firearms to him.
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed.R.Civ.P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
I. Statute of Limitations
Defendants argue that all of Turentine's claims based on his unlawful arrest and the seizure and retention of his firearms are barred by the statute of limitations. The statute of limitations is an affirmative defense that need not be anticipated in the complaint in order to survive a motion to dismiss. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). But that is not the case where "the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint reveals that an action is untimely under the governing statute of limitations." Id .; see also Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (considering statute of limitations defense on motion to dismiss where relevant dates were set forth in the complaint).
Section 1983 claims are governed by the forum state's statute of limitations for personal injury claims, in this case, two years. Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir. 2001); 735 Ill. Comp. Stat. 5/13-202. Although the statute of limitations is borrowed from state law, federal law determines when a § 1983 claim accrues. Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Under federal law, § 1983 claims begin to accrue when a plaintiff knows or has reason to know that his constitutional rights have been violated. Wilson v. Giesen, 956 F.2d 738, 741 (7th Cir. 1992).
Turentine's fourth and fifth claims, for violation of his First and Fourth Amendment rights to be free from false arrest and prosecution and unreasonable and illegal searches and seizures and violation of his Second Amendment rights, arise from his arrest and the seizure of his firearms on May 13, 2011. See Serino v. Hensley, 735 F.3d 588, 591 (7th Cir. 2013) (false arrest claims accrue "at the time the claimant becomes detained pursuant to legal process" (quoting Wallace, 549 U.S. at 397)); White v. City of Waukegan, No. 10 C 6454, 2011 WL 2470470, at *2 n.2 (N.D. Ill. June 20, 2011) (claims based on unreasonable search and seizure were time-barred because they accrued at time of seizure); Herrin v. Dunham, No. 05-10245, 2008 WL 2781456, at *4 (E.D. Mich. Mar. 17, 2008) (collecting cases finding that causes of action based on seizures of property accrue when alleged illegal seizure occurred), report & recommendation adopted in part by 2008 WL 2718802 (E.D. Mich. July 10, 2008). The continued retention of Turentine's firearms does not affect the accrual date. See MacNamara v. Hess, 67 F.Appx. 139, 143-44 (3d Cir. 2003) ("Although this Court has not had occasion to address the issue in a Section 1983 action alleging an unlawful seizure of property, without exception courts that have faced the question have found that the retention of the seized property is only a consequence of the original alleged illegal seizure and does not affect the date on which the claim accrues."); Herrin, 2008 WL 2718802, at *7 ("It is the illegal seizure that triggered this claim, even though the effects of those police actions may have continued into the future. Courts must take note of the subtle difference between a continuing violation and a continuing effect of a prior violation.'" (quoting Trzebuckowski v. City of Cleveland, 319 F.3d 853, 858 (6th Cir. 2003))); Mallard v. Potenza, No. 94-CV-223 (CBA), 2007 WL 4198246, at *4 n.3 (E.D.N.Y. Nov. 21, 2007) ("The continued possession of illegally seized property is merely the continued effect of the earlier unlawful seizure."). Turentine filed his complaint on July 22, 2013, more than two years after his arrest and the seizure of his firearms. Thus, counts IV and V are time-barred.
The accrual date of Turentine's procedural due process claim, however, is not as clear-cut. The complaint alleges that Defendants' seizure of Turentine's firearms without a policy or procedure by which he can reclaim those firearms violates due process and that the continued failure to provide Turentine with an opportunity to challenge the alleged illegal seizure further violates due process. In response to Defendants' motion to dismiss, Turentine argues that his due process claim is not for the wrongful seizure of his firearms but rather for the wrongful retention of his firearms. Defendants argue that Turentine is improperly attempting to amend his complaint through briefing on his motion to dismiss to add this wrongful retention claim, but the complaint can fairly be read to allege a claim that Turentine's due process rights have been violated by both the alleged wrongful seizure and the continued retention of his firearms without adequate due process. Whether his claims are timely depends on whether the alleged due process violation accrued at the time of the initial seizure or can be considered a continuing violation.
The initial claim for wrongful seizure without due process is similar to the claims discussed above, but Turentine contends that it only accrued on November 17, 2011, when the State's motion to confiscate and destroy his firearms was denied by the state court. But because Turentine alleges that he knew of his injury as of the time of the seizure, see Compl. ¶ 16, the Court concludes that Turentine's due process claim accrued at the time Turentine's firearms were seized, on May 13, 2011. See Woods v. City of Rockford, Ill., 367 F.Appx. 674, 678 (7th Cir. 2010) (plaintiffs' procedural due process claim for deprivation of liquor license accrued at the time the license was revoked, as this was when the alleged due process violation occurred and "the harm attendant to the nonrenewal [of the liquor license] began to accrue"); Johnson v. Cullen, 925 F.Supp. 244, 250 (D. Del. 1996) (due process claim accrued at time property was seized for "[p]laintiffs knew immediately (or at least fairly immediately) that the seizure occurred and that the process of obtaining the writ may have been infirm"); Shannon v. Recording Industry Ass'n of Am., 661 F.Supp. 205, 210 (S.D. Ohio 1987) (rejecting plaintiffs' argument that the action did not accrue until after criminal ...