In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2840

CARLOS HENDERSON and CHARLIE RICHARDSON,

Plaintiffs-Appellants,

v.

OFFICER DENNIS BOLANDA, STAR NO. 32,/*

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 5908--James H. Alesia, Judge.

Argued January 8, 2001--Decided May 16, 2001


  Before POSNER, MANION, and KANNE, Circuit
Judges.

  MANION, Circuit Judge. Carlos Henderson
and his grandfather, Charlie Richardson,
sued the Village of Dixmoor, Illinois,
and three of its police officers,
Officers Recendez, Bolanda and Kelly, for
injuries resulting from Henderson’s
arrest and subsequent prosecution. After
the filing of an amended complaint,
removal of the action to federal court
and the dismissal of all defendants
except Officer Bolanda, Bolanda moved to
dismiss the case against him because the
statute of limitations had expired. The
district court granted his motion, and
Henderson appeals./1 We affirm.

I.   Background

  When reviewing a motion to dismiss, we
view all the facts alleged in the
complaint and the reasonable inferences
therefrom in the light most favorable to
the plaintiff. See Kelly v. City of
Chicago, 4 F.3d 509, 510 (7th Cir. 1993).
This case arises out of the arrest of
Carlos Henderson on May 8, 1997, which
Henderson’s grandfather, Charlie
Richardson, witnessed. According to both
the original and amended complaints,
Henderson was driving his car in Dixmoor
when Officer Recendez pulled him over for
a traffic violation. Recendez gave him a
citation and Henderson continued on to
his residence. Officers Recendez, Kelly
and Bolanda then followed Henderson, and
upon Henderson’s arrival at home they got
out of their cars, approached Henderson
and proceeded to attack him. After
attacking him, the officers handcuffed
and arrested Henderson, charging him with
fleeing, battery, resisting arrest and
traffic violations. Henderson’s
grandfather, Richardson, witnessed the
attack and asked Officer Kelly what crime
his grandson had committed. Officer Kelly
responded by pointing his weapon at
Richardson and ordering him to get back.
Henderson was subsequently prosecuted in
state court based on the arrest and found
not guilty on August 11, 1997.

  On May 10, 1999, Henderson and
Richardson filed a complaint in state
court wherein Henderson alleged state law
claims of excessive force, negligence,
false arrest and malicious prosecution
against the three police officers and
against the Village of Dixmoor based on
vicarious liability. Richardson alleged a
count of intentional infliction of
emotional distress against Officer Kelly
and against the Village based on
vicarious liability. When the Village
moved to dismiss the lawsuit based on the
expiration of the state’s statute of
limitations, the state court allowed the
plaintiffs to amend their complaint.

  On August 13, 1999, the plaintiffs filed
an amended complaint based on the same
events, but this time alleging violations
of their constitutional rights under 42
U.S.C. sec. 1983; the amended complaint
no longer contained state law claims.
Accordingly, the Village removed the case
to federal court and again moved to
dismiss the case, arguing that it was
barred by the statute of limitations. The
district court granted the Village’s
motion to dismiss, and gave the
plaintiffs a deadline by which to serve
the remaining defendants with process.
Because the plaintiffs only obtained
service of process on Officer Bolanda,
the district court dismissed the lawsuits
against Officers Kelly and Recendez.

  Officer Bolanda then filed a motion to
dismiss pursuant to Rule 12(b)(6) arguing
that the Section 1983 claims asserted in
the amended complaint were time-barred
because Henderson filed the complaint
more than two years after both the date
of the arrest, May 8, 1997, and the date
of the disposition of the criminal
charges, August 11, 1997. The district
court held that the amended complaint was
untimely and that it could not relate
back to the date the original complaint
was filed because the original complaint
itself had been untimely. Thus, the
district court dismissed the case against
Bolanda. That dismissal is the subject of
this appeal.

II.   Discussion

  We review the dismissal of an action
pursuant to Rule 12(b)(6) de novo. See
Kelly, 4 F.3d at 510. Henderson’s amended
complaint set forth a Section 1983 claim
against Officer Bolanda. While Section
1983 does not contain an express statute
of limitations, a federal court must
adopt the forum state’s limitations
period for personal injury claims. See
Wilson v. Garcia, 471 U.S. 261, 276
(1985). The correct statute of
limitations for Section 1983 actions
filed in Illinois is two years as set
forth in 735 ILCS sec. 5/13-202. See
Ashafa v. City of Chicago, 146 F.3d 459,
462 (7th Cir. 1998).

  In this case, Henderson was arrested on
May 8, 1997 and acquitted on August 11,
1997. In order to timely file a Section
1983 action for claims arising out of his
arrest, Henderson must have filed his
complaint on or before May 10, 1999./2
In order to timely file a Section 1983
action for claims arising out of his
prosecution, Henderson must have filed
his complaint on or before August 11,
1999. However, he did not file his
amended complaint, containing the Section
1983 claims, until August 13, 1999.
Therefore, more than two years had passed
between the alleged injuries and the
filing of the amended complaint.
Nevertheless, Henderson argues that his
claims are not time-barred because he had
filed his original complaint within two
years of the constitutional injuries. In
other words, Henderson asserts that the
filing of his amended complaint "relates
back" to the date he filed his original
complaint, May 10, 1999.

  Federal Rule 15(c) provides that an
amended complaint relates back to the
date of the original complaint for
purposes of tolling the statute of
limitations where "the claim or defense
asserted in the amended pleading arose
out of the conduct, transaction, or
occurrence set forth or attempted to be
set forth in the original pleading." Fed.
R. Civ. P. 15(c)(2). The district court
found that the Section 1983 claims arose
out of the same conduct (the arrest and
prosecution) as the state tort law
claims, and we agree. Generally, an
amended complaint in which the plaintiff
merely adds legal conclusions or changes
the theory of recovery will relate back
to the filing of the original complaint
if "the factual situation upon which the
action depends remains the same and has
been brought to defendant’s attention by
the original pleading." 6A Charles
Wright, Arthur Miller and Mary Kay Kane,
Federal Practice and Procedure Civil 2d,
sec. 1497 at 95 (1990). See also Kuba v.
Ristow Trucking Co., Inc., 811 F.2d 1053,
1055 (7th Cir. 1987); Donnelly v. Yellow
Freight System, Inc., 874 F.2d 402, 410
(7th Cir. 1989).

  However, in order to benefit from Rule
15(c)’s relation back doctrine, the
original complaint must have been timely
filed. "An amended complaint does not
relate back to the filing of the original
complaint if the original complaint,
itself, was filed after the expiration of
the statute of limitations." 51 Am. Jur.
2d Limitation of Actions sec. 263 (2000).
Here, Henderson filed his original
complaint solely alleging state tort
claims for which the statute of
limitations was one year. See 745 ILCS
10/8-101 (tort claims against a
municipality or one of its employees must
be brought within one year from the date
of injury). To bring a timely complaint
for state law claims based on his arrest,
Henderson should have filed on or before
May 8, 1998. To bring a timely complaint
for claims based on his prosecution, he
should have filed on or before August 11,
1998. Because he filed his original
complaint on May 10, 1999, after the one-
year period had expired, it was
untimely./3

  Accordingly, even though it was based on
the same conduct as that set forth in the
original complaint, Henderson’s amended
complaint may not relate back to the date
the original complaint was filed. The
prior complaint, having been itself filed
after the expiration of the one-year
statute of limitations for the claims
which it contained, was a nullity. That
complaint cannot then act as a life-line
for a later complaint, filed after the
two-year statute of limitations for the
claims which it contained. See Benjamin
v. Katten, Muchin & Zavis, 1998 WL 25757
(N.D.Ill., Jan. 12, 1998) ("Implicit in
this rule [15(c)], however, is the
requirement that the original complaint
be filed within the applicable statute of
limitations period."); Papenthien v.
Papenthien, 16 F.Supp.2d 1235, 1241
(S.D.Cal. 1998) ("[I]t simply makes no
sense to hold that a complaint that was
dead on arrival can breathe life into
another complaint."). Cf. Bailey v.
Northern Indiana Public Service Co., 910
F.2d 406, 413 (7th Cir. 1990) (an amended
complaint may only relate back to an
earlier, timely pleading; amended
complaint could not relate back to an
earlier pleading filed in a separate
action). Had Henderson’s original
complaint been timely filed within the
one-year requirement, and had he then
filed the Section 1983 action after the
expiration of the two-year statute of
limitations, Rule 15(c) would likely
apply to toll the limitations period for
the amended claim. But, such is not the
case before us.

  That does not end the inquiry, however,
because Rule 15(c) provides that relation
back is allowed if it is permitted by the
state law that provides the applicable
statute of limitations, here Illinois.
See Fed. R. Civ. P. 15(c)(1). The
rationale is that if state law "affords a
more forgiving principle of relation back
than the one provided in this rule, it
should be available to save the claim."
See Fed. R. Civ. P. 15(c)(1), commentary
to the 1991 Amendment. Unfortunately for
Henderson, Illinois law on relation back
is not more forgiving. Under Illinois
law, relation back is allowed only when
two requirements are met: (1) the
original complaint was timely filed, and
(2) the amended complaint grew out of the
same transaction or occurrence set forth
in the original pleading. See 735 ILCS
5/2-616(b); Digby v. Chicago Park Dist.,
608 N.E.2d 116, 118 (Ill.App.Ct. 1992).
Since the original pleading was not
timely filed, Illinois law would not
permit relation back either.

  As we have stated, "[i]gnoring deadlines
is the surest way to lose a case. Time
limits coordinate and expedite a complex
process; they pervade the legal system,
starting with the statute of limitations.
Extended disregard of time limits (even
the non-jurisdictional kind) is ruinous."
United States v. Golden Elevator, Inc.,
27 F.3d 301, 301 (7th Cir. 1994).
Henderson’s disregard of Illinois’ one-
year statute of limitations when he filed
his original complaint and his subsequent
disregard of the Section 1983 two-year
statute of limitations when filing his
amended complaint is fatal to his
claims./4

III.   Conclusion

  Because we hold that Rule 15(c) of the
Federal Rules of Civil Procedure does not
permit an amended complaint to relate
back to an earlier, untimely complaint,
and because Henderson’s amended complaint
was filed after the expiration of the
statute of limitations, we affirm the
dismissal of his complaint by the
district court.

FOOTNOTES

/* On appeal, both parties have stated the
defendant’s star number as 22, but the district
court record reveals that the number is actually
32.

/1 It is unclear why Richardson has joined in this
appeal. In the amended complaint, his only claim
was against Officer Kelly. Because Kelly was
never personally served, on March 7, 2000, the
district court dismissed him pursuant to Rule
4(m), and subsequently dismissed Richardson from
the case. The plaintiffs do not appeal these
dismissals, so this appeal only concerns Hender-
son and his claim against Officer Bolanda.

/2 The two-year statute of limitations for any
Section 1983 claim arising out of Henderson’s
arrest expired on May 8, 1999. However, since
that date fell on a Saturday, the time period was
extended until the next business day, or May 10,
1999. See Fed. R. Civ. P. 6(a).

/3 Henderson argues that his original complaint was
timely because it contained federal claims for
which the statute of limitations is two years. We
disagree. In order to bring a Section 1983 claim,
the plaintiff must allege that a person acting
under color of state law engaged in conduct that
deprived him of a right, privilege or immunity
secured by the Constitution. See 42 U.S.C. sec.
1983. Henderson’s original complaint contains no
reference to any violation of his constitutional
rights. "Ordinarily a court determines whether
there is federal question jurisdiction by examin-
ing the plaintiff’s well-pleaded complaint, for
’[i]t is long-settled law that a cause of action
arises under federal law only when the plain-
tiff’s well pleaded complaint raises issues of
federal law.’" Rice v. Panchal, 65 F.3d 637, 639
(7th Cir. 1995) (quoting Metropolitan Life Ins.
Co. v. Taylor, 481 U.S. 58, 63 (1987)). While,
based on the facts alleged, the defendants might
have reasonably expected an amendment to include
a federal claim, the original complaint itself
did not contain one. The fact that the action was
brought in state court supports this conclusion.
See Caterpillar Inc. v. Williams, 482 U.S. 386,
398-99 (1987) (noting that "a defendant cannot,
merely by injecting a federal question into an
action that asserts what is plainly a state-law
claim, transform the action into one arising
under federal law, thereby selecting the forum in
which the claim shall be litigated.").

/4 Because we hold that the Amended Complaint does
not relate back to the filing of the original
complaint, we need not address Bolanda’s argument
that relation back would severely prejudice him.
See Woods v. Indiana University-Purdue University
at Indianapolis, 996 F.2d 880, 884 (7th Cir.
1993) (Rule 15(c) allows relation back as long as
no prejudice will result); Donald v. Cook County
Sheriff’s Dept., 95 F.3d 548 (7th Cir. 1996)
(remanded to determine if defendants had received
actual notice of proceeding).
