BEHAVIORAL INSTITUTE OF INDIANA , LLC and 61 ST AVENUE BUILDING , LLC v. Hobart City of Common Council , School City of Hobart , City of Hobart , Indiana

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2360
B EHAVIORAL I NSTITUTE OF I NDIANA , LLC
and 61 ST A VENUE B UILDING , LLC,
Plaintiffs-Appellants,
v.
H OBART C ITY OF C OMMON C OUNCIL ,
S CHOOL C ITY OF H OBART , C ITY OF
H OBART , I NDIANA , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 04 C 19—Rudy Lozano, Judge.
____________
A RGUED D ECEMBER 1, 2004—D ECIDED M AY 9, 2005
____________
Before F LAUM , Chief Judge, and E VANS and S YKES ,
Circuit Judges.
S YKES , Circuit Judge. In this appeal we review the
district court’s dismissal of the plaintiffs’ complaint as time-
barred by the statute of limitations. The case stems from a
land use dispute in the City of Hobart, Indiana, over a
proposed residential treatment facility for emotionally

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2 No. 04-2360
disturbed children. The plaintiffs’ application for a zoning
variance for the proposed facility was denied, a decision
that was later overturned by the Indiana Court of Appeals
on various state and federal constitutional grounds. In the
meantime, however, the plaintiffs sold the property. They
then filed suit in Indiana state court alleging causes of
action under 42 U.S.C. § 1983 for violation of their federal
due process and equal protection rights, as well as viola-
tions of the Indiana Constitution. The case was removed to
the United States District Court for the Northern District
of Indiana, which dismissed the § 1983 claims pursuant to
Indiana’s two-year personal injury statute of limitations.
We affirm.
I. Background
A more detailed narration of events leading up to this
action is provided in the Indiana Court of Appeals’ decision
in the plaintiffs’ earlier case. See City of Hobart Common
Council v. Behavioral Inst. of Ind., LLC, 785 N.E.2d 238
(Ind. Ct. App. 2003). We take the pertinent facts from that
opinion as well as the record before us. The Behavioral
Institute of Indiana, LLC and 61st Avenue Building, LLC
(collectively, “the Institute”) applied to the City of Hobart
for a land use variance permitting the operation of a sixty-
bed, for-profit, court-ordered child placement facility for
emotionally disturbed children in an area zoned for single-
family residential and related uses. The previous occupant
of the building had operated a psychiatric hospital under a
conditional use permit that expired by operation of law
when the occupant vacated the premises. A hearing on the
Institute’s request was held before the City’s Board of
Zoning Appeals (“the Board”), which heard testimony in
support of and opposition to the Institute’s application. At
the conclusion of the hearing, the Board voted unanimously
to recommend granting the variance.

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No. 04-2360 3
In most Indiana counties the Board of Zoning Appeals is
the final municipal authority on use variances, but in Lake
County, where Hobart is located, and also in St. Joseph
County, the ultimate decision-making authority on use vari-
ances, as well as special exceptions and special use permits,
is vested in the municipality’s legislative body. See I ND .
C ODE A NN . § 36-7-4-918.6 (West 2004). In Hobart the
legislative body is the Common Council. In accordance with
the statute, the Council received the Board’s nonbinding
recommendation to grant the variance and scheduled a
hearing on the matter.
Before the hearing was convened, the Hobart city engi-
neer, who had testified against the variance before the
Board, circulated materials to members of the Common
Council in an effort to defeat the Institute’s application.
While some of this material merely recapitulated his earlier
testimony, the city engineer also included previously un-
stated factual assertions concerning the likely effect of the
Institute’s proposed land use on surrounding property values
and the safety risk to nearby residents. This material was
not provided to the Institute. In addition, before the Council
took up the variance request, at least two officials of the
Hobart Schools—also an opponent of the variance—spoke
with members of the Council to persuade them to vote
against the variance, also without notice to the Institute.
One of those school officials was herself a member of the
Common Council. After a hearing and discussion of the
Institute’s request, the Council met and denied the variance
on February 21, 2001.
The Institute filed a petition for a writ of certiorari in the
Lake County Superior Court, alleging that the Council
violated its right to due process and equal protection and
seeking an order directing the Council to issue a variance.
The court concluded that the Institute’s due process and
equal protection rights in fact had been violated for the
reasons suggested above. The court held that applicants for

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4 No. 04-2360
zoning variances in Lake and St. Joseph Counties are
entitled to the same due process protections as applicants
in all other counties in Indiana. In addition, finding sub-
stantial evidence that the Institute had met the statutory
requirements for a land use variance, the court approved
the Board’s recommendation and ordered the Common
Council to grant the variance.
The Indiana Court of Appeals affirmed the lower court’s
constitutional holdings but held that the court had exceeded
its powers by ordering the issuance of the variance. The
Court of Appeals remanded the case with instructions to
return it to the Common Council for further proceedings
consistent with due process. City of Hobart, 785 N.E.2d at
243. The Council dutifully set the matter for a new hearing,
but by that time the Institute had sold the property.
The Institute then brought the present action in Lake
County Superior Court, alleging causes of action under 42
U.S.C. § 1983 for violation of its federal due process and
equal protection rights. The complaint also alleged claims
pursuant to Article I, Section 23 of the Indiana Constitution
and asserted a separate cause of action for intentional
violation of the plaintiffs’ “rights to substantive due process
under the 14th Amendment.” The injury underlying each
legal claim was the same: the defendants’ denial of the
Institute’s request for a use variance. The defendants re-
moved the case to federal district court and immediately filed
a motion to dismiss all claims, asserting various grounds,
including expiration of the two-year statute of limitations
on the § 1983 claims. See Hondo, Inc. v. Sterling, 21 F.3d
775, 777 (7th Cir. 1994) (appropriate vehicle to challenge
complaint for failure to comply with applicable statute of
limitations is a motion under F ED . R. C IV . P. 12(b)(6)); but
see Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir. 2000)
(defendant need not raise statute of limitations in motion
under Rule 12(b)(6) if it was raised in the defendant’s

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No. 04-2360 5
1 The district court also dismissed the Institute’s substantive
due process claim as time-barred and further held that since the
Indiana Supreme Court has never recognized an independent cause
of action for damages for violation of the Indiana Constitution, the
Institute had failed to state a claim on those causes of action as
well. The Institute has not appealed these dismissals so we need
not discuss them further.
answer to the complaint). The district court held that the
§ 1983 claims were untimely and dismissed the case with
prejudice. 1
II. Discussion
Section 1983 claims are subject to the statute of limi-
tations for personal injury actions in the state in which the
alleged injury occurred. Wilson v. Garcia, 471 U.S. 261, 276-
80 (1985); Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir.
1992). The Supreme Court has further held that in cases
where state law provides for multiple statutes of limitations
for different types of personal injury, the general or residual
statute is the one applicable to § 1983 claims. Owens v.
Okure, 488 U.S. 235, 249-50 (1989). Indiana’s personal in-
jury statute of limitations is two years, see I ND . C ODE A NN .
§ 34-11-2-4 (West 2004), and Coopwood v. Lake County
Community Development Department, 932 F.2d 677 (7th
Cir. 1991), so the statute of limitations on the Institute’s
§ 1983 action is also two years.
While state law determines the length of the limitations
period, federal law determines the date of accrual of the
cause of action. Kelly v. City of Chicago, 4 F.3d 509, 511
(7th Cir. 1993). A claim accrues for § 1983 purposes “ ‘when
the plaintiff knows or should know that his or her constitu-
tional rights have been violated.’ ” Id. (quoting Wilson, 956
F.2d at 740). This inquiry proceeds in two steps. First, the
court must identify the injury. Next, it must determine the

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6 No. 04-2360
date on which the plaintiff could have sued for that injury.
“That date should coincide with the date the plaintiff ‘knows
or should have known’ that his rights were violated.” Id.
The Institute contends that it suffered an injury only
when it sold the property for which it had sought the vari-
ance. In support of this contention, the Institute argues that
by selling the property it no longer was able to avail itself
of the remedy it won from the Indiana Court of Ap-
peals—namely, a reconsideration of its variance application
by the Common Council consistent with due process. If the
Institute’s argument is correct, it would mean that a person
can sue for self-inflicted injuries, a proposition that contra-
dicts the most basic premises of our legal system. If the
Institute were alleging that the defendants somehow forced
the sale of the building, then that sale might constitute a
separate and cognizable injury, but it has made no such
allegation.
In the alternative, the Institute argues that it first knew
it had suffered an injury and its § 1983 claims only accrued
when the Indiana Court of Appeals held that applicants for
variances before legislative bodies in Lake and St. Joseph
Counties are entitled to the same due process as applicants
for similar permits in other counties in the state. Under
this reasoning, it was not until the Court of Appeals issued
its decision in the certiorari action that the denial of the
Institute’s variance became an injury in the legal sense.
But the Institute’s own actions belie its argument. The
Institute clearly believed it had suffered a federal constitu-
tional injury when it sought certiorari review of the denial
of its variance application. In that action, the Institute
asserted federal due process and equal protection argu-
ments, in addition to invoking the Indiana Constitution and
statutes; the Indiana Court of Appeals’ decision was
grounded on both state and federal due process and equal
protections principles. City of Hobart, 785 N.E.2d at 248-54.

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No. 04-2360 7
The Institute thus knew that its constitutional rights had
been violated when its use variance application was denied
by the Hobart Common Council on February 21, 2001. The
two-year statute of limitations therefore expired on Febru-
ary 20, 2003; this action was filed on December 15, 2003, and
is time-barred.
The Institute advances an interrelated set of fallback ar-
guments drawing on (and sometimes conflating) the prin-
ciples of ripeness, exhaustion of remedies, and equitable
abstention, all involving an implicit claim that it could not
have brought this action earlier, or alternatively, that the
statute of limitations was tolled during the pendency of its
state court litigation. None of these arguments has merit.
First, the Institute argues that its § 1983 claim is at bot-
tom a claim for the taking of property without just compen-
sation in violation of the Fifth Amendment, and Williamson
County v. Hamilton Bank, 473 U.S. 172 (1991), holds that
plaintiffs asserting takings claims under the Fifth Amend-
ment must first pursue available state remedies before
filing in federal court. See also Greenfield Mills v. Macklin,
361 F.3d 934, 961 (7th Cir. 2004). The Institute says that
the certiorari action it filed in Indiana state court in 2001
was its state remedy, so that if it had attempted to file a
§ 1983 claim in federal court during the two-year period
following the denial of the variance, the federal court would
have dismissed the claim as premature under Williamson
County and Greenfield Mills.
The flaw in this argument is that this is not a takings case,
and if it were, Williamson County and Greenfield Mills
would supply an alternate ground for dismissal, not a basis
upon which to toll the statute of limitations. Williamson
County held that federal courts do not have subject matter
jurisdiction over a takings claim unless the property owner
has (1) obtained a final decision from the relevant govern-
mental entity regarding the application of the land use reg-

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8 No. 04-2360
2 Generally, § 1983 plaintiffs are not required to exhaust state
remedies before filing in federal court. Patsy v. Bd. of Regents of
State of Fla., 457 U.S. 496 (1982); Wudtke v. Davel, 128 F.3d 1057,
1063 (7th Cir. 1997) (“[T]here is no general exhaustion requirement
for § 1983 plaintiffs.”); see also Daniels v. Area Plan Comm’n of
Allen County, 306 F.3d 445, 453 (7th Cir. 2002) (“[T]he additional
ripeness requirements of Williamson County create a takings
claim exception to Patsy’s general requirement that exhaustion is
not required in § 1983 suits.”); but cf. M ARTIN A. S CHWARTZ , 1B
S ECTION 1983 L ITIGATION : C LAIMS AND D EFENSES § 10.2, at 559
(3d ed. 1997) (Williamson County is not an exhaustion decision
but one founded on the doctrine of Parratt v. Taylor, 451 U.S. 527
(1981), which makes a failed state court takings proceeding a
component of the federal constitutional claim, citing Cassettari v.
Nevada County, 824 F.2d 735, 739 (9th Cir. 1987)).
ulations at issue to the property in question, and (2) sought
compensation for the taking through the procedures the state
has provided for obtaining such compensation, e.g., inverse
condemnation. 2 Williamson County, 473 U.S. at 186-95; see
also Greenfield Mills, 361 F.3d at 957-58. We have held that
these requirements “appl[y] with full force to due process
claims (both procedural and substantive) when based on the
same facts as a takings claim.” Greenfield Mills, 361 F.3d at
961.
Here, although the Indiana Court of Appeals ordered the
Common Council to conduct a new hearing on the Institute’s
variance application, the Institute sold the property before
the do-over could occur, and never sought compensation for
a taking pursuant to state inverse condemnation proce-
dures. As a result, the Institute has not and cannot comply
with the requirements of Williamson County. Accordingly,
the Institute does not help itself by attempting to rechar-
acterize its claim as one for an unconstitutional taking.
In any event, the complaint does not allege that the
defendants’ actions amounted to an unconstitutional taking

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No. 04-2360 9
of the Institute’s property without just compensation; the
Fifth Amendment is nowhere invoked, and the prayer for
relief seeks only lost profits for the treatment center the
Institute planned to operate on the property, as well as
costs, expenses, and attorneys’ fees. This is a dispute about
the mishandling of the Institute’s variance application by
municipal officials in Hobart, not an attack on the way that
Hobart’s land use regulations operate against the Insti-
tute’s property. Williamson County and Greenfield Mills are
of no assistance to the Institute here.
In a similar vein, the Institute cites our decision in River
Park, Inc. v. City of Highland Park, 23 F.3d 164 (7th Cir.
1994), for the proposition that in a zoning-related case such
as this one, a § 1983 plaintiff is required to exhaust state
court remedies before filing its § 1983 claim. The plaintiff
in River Park was aggrieved by a denial of its request for
rezoning. Id. at 165. We concluded that because the federal
constitution guarantees only “scant process” in such cases,
the River Park plaintiff, who was provided with “ample
means” under state law to contest the denial of rezoning,
“must repair to state court” for a remedy. Id. at 167. The
Institute misreads River Park as an exhaustion case. We
explicitly said in River Park that we were affirming the
dismissal of the property owner’s case “not because the
owner must ‘exhaust’ state remedies,” but rather because
“in zoning cases . . . the only procedural rules at stake are
those local law provides, and these rules must be vindicated
in local courts.” Id. River Park has nothing to do with ex-
haustion of remedies, but is a decision on the merits of the
plaintiff’s claim.
As an additional alternative argument, the Institute as-
serts that if it had come to federal court before the Indiana
litigation ran its course, the court would have abstained
from exercising jurisdiction under the doctrine set forth in
Burford v. Sun Oil, 319 U.S. 315 (1943), and known collo-
quially as “Burford abstention.” Burford provides that a

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10 No. 04-2360
federal court should abstain from exercising jurisdiction
when the case before it presents “ ‘difficult questions of
state law bearing on policy problems of substantial public
import whose importance transcends the result in the case
then at bar’ ” or where the “ ‘exercise of federal review of the
question in a case . . . would be disruptive of state efforts to
establish a coherent policy with respect to a matter of
substantial public concern.’ ” New Orleans Pub. Serv., Inc.
v. Council of City of New Orleans, 491 U.S. 350, 361 (1989)
(quoting Colo. River Water Conservation Dist. v. United States,
424 U.S. 800, 814 (1976)).
According to the Institute’s Burford argument, the ques-
tion of due process in variance proceedings before the Hobart
Common Council was a “difficult question of state law,” the
federal answer to which could disrupt Indiana’s efforts to
establish a “coherent policy” with respect to land use. The
Institute now says it did not bring its § 1983 claim to
federal court earlier because the federal court would have
abstained from deciding it anyway. The Institute has saved
the federal courts some unnecessary time and effort (so the
argument goes); it now wants credit in the form of a roughly
two-year tolling of the statute of limitations.
This argument, though creative, is entirely hypothetical.
For one thing, the Institute never did go to federal court
with its § 1983 claim while the state action was pending, so
we cannot say whether that court would have abstained
from exercising its jurisdiction under Burford. Though in a
given case we might decide as a matter of law that a district
court erred in failing to abstain from exercising its jurisdic-
tion, we can hardly make that determination in a case that
was never even brought. Tolling is an equitable doctrine
reviewed for abuse of discretion, Hondo v. Sterling, 21 F.3d
at 781, making the Institute’s hypothetical, after-the-fact
argument even more strained.
But more importantly, the precise problem here is not
whether the Institute could have gone to federal court with

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No. 04-2360 11
its § 1983 claim before the limitations period expired. The
problem is that the Institute failed to go to any court with
the claim before the limitations period expired. State courts
have jurisdiction over § 1983 claims. See Hondo, 21 F.3d at
779 (“state courts have ‘concurrent jurisdiction to enforce
rights created by a federal statute,’ such as § 1983” (quoting
Colvin v. Bowen, 399 N.E.2d 835, 837 (Ind. Ct. App. 1980))).
Indeed, this case was initiated in state court. The Institute
has not identified any reason why it could not have com-
menced this action in Indiana state court within the two-
year limitations period. Although the abstention argument
might have traction in response to a defendant’s motion to
remove to federal court in another scenario, the expiration
of the statute of limitations has mooted that argument here.
As the district court correctly recognized, only traditional
tolling principles could save the Institute’s claim, and none
are applicable. In § 1983 actions tolling of the statute of
limitations is governed by the forum state’s tolling rules,
unless those rules are inconsistent with the purposes un-
derlying 42 U.S.C. § 1983. Bd. of Regents of the Univ. of the
State of N.Y. v. Tomanio, 446 U.S. 478, 485 (1980); Wilson,
471 U.S. at 269 (“[T]he length of the limitations period, and
closely related questions of tolling and application, are to be
governed by state law.”). Under Indiana law, statutes of
limitation may be tolled due to legal disability, incompe-
tence, minority, imprisonment, nonresidency under certain
circumstances, war, death in certain instances, and fraudu-
lent concealment. I ND . C ODE A NN . §§ 34-11-4-1 to 8-1 (West
2004). The Institute does not claim that any of these
circumstances apply to it. Indiana also permits equitable
tolling for ordinary statutes of limitation. See In re Paternity
of M.G.S., 756 N.E.2d 990, 997 (Ind. Ct. App. 2001). The
doctrine authorizes a court to toll a statute of limitations for
plaintiffs “who, because of ‘disability, irremediable lack of
information, or other circumstances beyond [their] control
just cannot reasonably be expected to sue in time.’ ” Hoosier

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12 No. 04-2360
Bancorp of Ind., Inc. v. Rasmussen, 90 F.3d 180, 183 (7th
Cir. 1996) (quoting Miller v. Runyon, 77 F.3d 189, 191 (7th
Cir. 1996)). Again, the Institute has not asserted that any
of these circumstances apply in this case. In short, there are
no grounds on which to toll the applicable two-year statute
of limitations in this case.
The Institute’s claims under § 1983 are barred by the two-
year statute of limitations. The decision of the district court
is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-9-05

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