John A. Logan v. Donna Wilkins, M.d.

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1415
JOHN A. LOGAN,
Plaintiff-Appellant,
v.
DONNA WILKINS, M.D., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:09-cv-00282-WTL-DML—William T. Lawrence, Judge.
ARGUED DECEMBER 2, 2010—DECIDED JULY 8, 2011
Before EASTERBROOK, Chief Judge, and MANION and
WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. John A. Logan claims that the
defendants, who are local government officials and a
private individual, conspired to deprive him of a
mobile home park he owned in Indiana, in violation of
his constitutional rights. Much of the defendants’
alleged wrongdoing occurred more than two years
before Logan filed this lawsuit. Because Logan’s claims

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2 No. 10-1415
are subject to a two-year statute of limitations, we find
that any claims arising from wrongdoing that occurred
more than two years before this lawsuit was filed are
time barred.
We also find that Logan failed to challenge on appeal
the district court’s dismissal of the claims that were not
time barred, and that he therefore waived any conten-
tion that the court erroneously dismissed those claims.
Even if there had been no waiver, we find that Logan’s
allegations do not give rise to a claim for conspiracy to
violate any rights protected by 42 U.S.C. § 1983, as Logan
claims.
Finally, we decline to exercise our power to remand
this case to the district court to allow Logan to amend
his complaint because Logan does not point to any addi-
tional facts that would cure the deficiencies in his com-
plaint. Therefore, we affirm the district court’s judgment.
I. BACKGROUND
On March 6, 2009, plaintiff-appellant John A. Logan
sued defendants-appellees, alleging violations of 42 U.S.C.
§§ 1983 and 1981. Logan claims that the defendants de-
prived him of the full use of a mobile home park he
owned in Delaware County, Indiana. The defendants
allegedly wanted the property developed into something
other than a mobile home park.
According to Logan, the wrongdoing began in 2005,
when defendant Phil Taylor, who worked for the Zoning
Board of the City of Muncie, Indiana, spread the word

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No. 10-1415 3
to Logan’s tenants that the Muncie, Indiana Health De-
partment was going to close down Logan’s mobile home
park. In November 2005, defendant Christine Dely-
Stintson, who worked for the Delaware County Health
Department, toured the property and allegedly told
Logan’s tenants to stop paying rent and to vacate the
property. Following that visit, thirteen of Logan’s
tenants left, causing him severe financial difficulties.
On September 6, 2006, defendant Donna Wilkins, the
Commissioner of the Delaware County Health Depart-
ment, commenced an action against Logan in connec-
tion with the mobile home park. On October 27, 2006,
the Delaware Circuit Court ordered the removal of
thirteen mobile homes from the park. Logan did not
appeal that ruling. He claims that no one advised him
that he had ten days to appeal, in violation of his Due
Process rights. In the alternative, he claims that he did
not appeal because he is bipolar and does not do well
under stress. He alleges that everyone in the community,
including the defendants, knew that he was bipolar, and
that the defendants took a series of (unspecified) steps
to ensure that he would be under stress by the time
he received the ruling from the circuit court.
Armed with the circuit court’s order, defendant
Wilkins hired defendant Rodney Barber, an allegedly
inept contractor, to demolish the homes. Barber was
allegedly unlicensed, uninsured, and did not have a
permit to remove debris. Logan claims that Wilkins
hired Barber because she wanted to split contract fees
with him.

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4 No. 10-1415
Instead of demolishing the thirteen homes specified in
the circuit court’s order, Barber allegedly demolished
fourteen homes. Barber also failed to cap public utility
lines, stole some of Logan’s property, and did not clean
up the site. Logan claims that Barber’s incompetent
handling of the demolition job caused him additional
financial harm and made attracting good tenants more
difficult. Logan also claims that Barber acted at the di-
rection of defendants Dely-Stintson, and Joshua Williams,
another county health department employee.
When Logan discovered the property damage, he filed
a report with the Delaware County Sheriff, defendant
George Sheridan. According to Logan, the complaint
was never investigated. As a result of all of these
actions, which Logan claims were part of a conspiracy
among the defendants to deprive him of his prop-
erty, Logan lost the mobile home park in foreclosure
on September 26, 2007. Under Indiana’s landlord-
tenant laws, a change of ownership on leased premises
allegedly has no effect on the rights of tenants under
their leases. But on December 19, 2007, Sheriff Sheridan
allegedly attempted to enforce the final decree of fore-
closure by ordering his deputy, defendant Beth Robbins,
to enter the mobile home park and order the tenants
to vacate. Logan claims that these post-foreclosure
actions were also part of the conspiracy.
In July 2009, the district court dismissed Logan’s com-
plaint. The court found that all of Logan’s pre-March 6,
2007 claims (which included all of the claims relating to
the damage caused to the property by defendant Barber)

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No. 10-1415 5
were barred by the two-year statute of limitations gov-
erning actions brought under § 1983. The court reasoned
that Logan’s claims began to accrue when he realized,
or should have realized, that his constitutional rights
had been infringed. Because Logan knew that he was
injured each time the defendants engaged in an
allegedly unlawful act, the court found that the statute
of limitations began to run for each act when it
was committed. The court also concluded that it was
impossible for Logan to claim that the defendants con-
cealed the alleged conspiracy from him because Logan
was aware of each of the allegedly wrongful acts when
they occurred.
The only remaining claims were those asserted
against Sheriff Sheridan and Deputy Robbins in con-
nection with their attempts to enforce the circuit court’s
foreclosure order. As to those, the court found that even
if Logan had alleged that the defendants had exceeded
their authority in enforcing the foreclosure order
(which Logan did not do), Logan could not maintain
any claims based on those actions because Logan no
longer possessed the property in December 2007 and
had no interest in his former tenants’ rent payments. The
court therefore dismissed Logan’s complaint with leave
to amend.
In his amended complaint, Logan claimed that the
defendants “actively concealed” their involvement in
the alleged conspiracy until sometime after August 17,
2007. Around that time, Logan’s counsel received defen-
dant Barber’s answer in another civil case Logan had

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6 No. 10-1415
brought against Barber in connection with the demolition
of the fourteen homes. Barber’s answer in that case
(which Logan attached to the amended complaint) alleg-
edly led Logan’s attorney to investigate the role of the
county defendants and to discover that they had all
conspired together. Along with Barber’s answer, Logan
also attached to his amended complaint the circuit
court’s October 27, 2006 order, which identified Donna
Wilkins and Dely-Stintson as the Delaware County
Health Department officers behind the condemnation
and removal of the mobile homes.
Logan also included in his amended complaint new
allegations against defendant Taylor and the Sheriff.
Logan claimed that after the demolition of the fourteen
homes, defendant Taylor arbitrarily and capriciously
refused to schedule an electrical inspection that was
required by local regulations in order to install new
meters. He also claimed that the foreclosure order
did not direct the Sheriff to inform his tenants to stop
paying rent and to move out.
In January 2010, the court again dismissed Logan’s
complaint, explaining that, with the exception of the
allegations against defendant Taylor, the complaint was
substantively identical to the one previously dismissed.
As to defendant Taylor, the court found that, even as-
suming that Taylor had a duty to conduct the inspec-
tions, Logan did not articulate how Taylor’s failure to
schedule the inspections violated Logan’s constitutional
rights. This appeal followed.

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No. 10-1415 7
II. ANALYSIS
A. Pre-March 6, 2007 Claims
Logan contends that the gravamen of his complaint is
the conspiracy among the defendants. He argues that
the district court failed to address his argument that the
statute of limitations should have been tolled because
the defendants fraudulently concealed their conspiracy.
We review statute of limitations determinations de
novo. Dexia Crédit Local v. Rogan, 629 F.3d 612, 626 (7th
Cir. 2010).
The statute of limitations applicable to § 1983 suits in
Indiana is two years. Behavioral Institute of Indiana, LLC
v. Hobart City of Common Council, 406 F.3d 926, 929 (7th
Cir. 2005). “While state law determines the length of the
limitations period, federal law determines the date of
accrual of the cause of action.” Id. For § 1983 purposes, a
claim accrues when the plaintiff knows or should
know that his or her constitutional rights have been
violated. Id. To determine when the claim accrues, a
court must first identify the plaintiff’s injury and then
determine when the plaintiff could have sued for that
injury. Id.
Although Logan claims that he was not aware of the
defendants’ conspiracy, he was aware of every act alleg-
edly committed pursuant to that conspiracy that
injured him. For example, Logan knew shortly after
defendant Barber demolished the mobile homes that
Barber had bulldozed fourteen rather than thirteen
homes, causing unnecessary property damage. Logan
does not directly challenge the district court’s conclusion

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8 No. 10-1415
that his claims began to accrue when the defendants
committed the allegedly injurious acts. Rather, he con-
tends that the court did not consider his argument that
the statute should have been tolled due to the defen-
dants’ fraudulent concealment of their alleged conspiracy.
In Indiana, the doctrine of fraudulent concealment
is available to estop a defendant from asserting the
statute of limitations when the defendant has, either by
deception or by violating a duty, concealed from the
plaintiff material facts, preventing the plaintiff from
discovering a potential cause of action. City of E. Chi. v. E.
Chi. Second Century, Inc., 908 N.E.2d 611, 621-22 (Ind.
2009); see also Behavioral Institute, 406 F.3d at 932 (noting
in § 1983 action that “[u]nder Indiana law, statutes of
limitation may be tolled due to . . . fraudulent conceal-
ment”). The doctrine “does not establish a new date for
the [running] of the statute, but rather works an
equitable exception.” City of E. Chi., 908 N.E.2d at 622. To
successfully invoke fraudulent concealment and toll the
statue of limitations, a plaintiff must establish that the
concealment or fraud was of such character to prevent
inquiry, elude investigation, or to mislead the plaintiff.
Doe v. Shults-Lewis, 718 N.E.2d 738, 748 (Ind. 1999).
Logan has not pleaded any facts in his amended com-
plaint that would support his contention that the defen-
dants engaged in fraudulent concealment. He does not
describe any deception or other acts by the defendants
that prevented him from discovering that he was in-
jured. He asserts only that he learned of the alleged
conspiracy when his attorney decided to investigate

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No. 10-1415 9
after receiving an answer filed by defendant Barber in a
separate civil case. Logan points to Barber’s statement
that two employees of the Delaware County Health
Department, defendants Williams and Dely-Stintson,
directed Barber’s actions during the demolition. How-
ever, Logan already knew from the circuit court’s
removal order that the Delaware County Health Depart-
ment, and specifically, defendant Dely-Stintson, who
is named in the circuit court’s order, were behind the
demolition of the homes. Therefore, Logan had the
same incentive to investigate any purported conspiracy
back in 2006 when the homes were demolished. No
other facts are averred in the complaint to support the
allegation that the defendants engaged in fraudulent
concealment.
While a statute of limitations defense is not normally
part of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), when the allegations of the com-
plaint reveal that relief is barred by the applicable
statute of limitations, the complaint is subject to
dismissal for failure to state a claim. See Andonissamy v.
Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008);
Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 802
(7th Cir. 2008). And if the facts pleaded in the complaint
establish that a claim is time barred, as they do here, a
bare allegation of fraudulent concealment, without
more, will not save the claim. See generally Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1950-51 (2009). So, we find that the
district court did not err in finding that Logan’s pre-
March 6, 2007 claims were barred by the applicable two-
year statute of limitations.

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10 No. 10-1415
Logan argues that “the act complained of which caused him 1
an injury . . . is a conspiracy among the governmental Defen-
dants.” But the “conspiracy matters only” with respect to
defendant Barber, a private actor, because the other defendants
“are state actors, and thus amenable to suit under 42 U.S.C.
§ 1983, by virtue of their offices.” See Hoskins v. Poelstra, 320
F.3d 761, 764 (7th Cir. 2003).
B. Post-March 6, 2007 Claims
Logan does not challenge in his opening brief the dis-
missal of his post-March 6, 2007 claims against the Sheriff,
Deputy Robbins, or defendant Taylor. Therefore, he has
waived the right to argue on appeal that the district
court improperly dismissed those claims. See Faas v.
Sears, Roebuck & Co., 532 F.3d 633, 641 (7th Cir. 2008)
(explaining that a party waives an argument if it fails
to develop that argument on appeal).
Even if there had been no waiver, the facts in the com-
plaint do not support Logan’s contention that these
defendants were part of a conspiracy to injure Logan.
“To establish § 1983 liability through a conspiracy, a
plaintiff must [establish that] (1) a state official and
private individual(s) reached an understanding to
deprive plaintiff of his constitutional rights; and (2) those
individual(s) were willful participants in joint activity
with the State or its agents.” Williams v. Seniff, 342 F.3d1
774, 785 (7th Cir. 2003) (internal quotations and citations
omitted). The only statement in the complaint that sug-
gests that there was an unlawful agreement between
any of the defendants in this case is the allegation that

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No. 10-1415 11
Because we find that Logan did not state a claim under § 1983 2
against the Sheriff, his deputy, or defendant Taylor, we need
not consider whether the district court correctly concluded
that Taylor could not assert a claim against these defendants
after he lost the property in foreclosure.
Wilkins hired Barber to split contract fees with him. But
the claims against Wilkins and Barber are time barred,
and no other allegations in the complaint suggest that
the Sheriff or his deputy, in enforcing a lawful foreclosure
order, were acting in concert with Wilkins or Barber
or any of the other defendants to do something ille-
gal. Similarly, nothing in the complaint suggests that
defendant Taylor’s alleged failure to schedule an
electrical inspection violated Logan’s constitutional
rights. Therefore, we affirm the district court’s dismissal
of these claims. See Brosted v. Unum Life Ins. Co. of Am.,2
421 F.3d 459, 467 (7th Cir. 2005) (an appellate court
may affirm on any basis supported by the record).
C. Request for Remand
Logan asks us to remand so that he can seek leave
from the district court to amend his complaint. Remand
is not required where a plaintiff’s complaint reveals
incurable defects. See Frey v. EPA, 270 F.3d 1129, 1132
(7th Cir. 2001). Logan has already been given one oppor-
tunity to amend his complaint, and he does not point
to any other facts that, if averred, would cure the com-
plaint’s deficiencies. We therefore decline to remand
for further proceedings.

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12 No. 10-1415
III. CONCLUSION
The judgment of the district court is AFFIRMED.
7-8-11

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