In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4196

Alonzo Mitchell,

Plaintiff-Appellant,

v.

Emanuel Donchin and Julian Rappaport,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of Illinois.
No. 99 C 2172--Michael P. McCuskey, Judge.

Argued February 22, 2002--Decided April 9, 2002



  Before Posner, Kanne, and Rovner, Circuit
Judges.

  Kanne, Circuit Judge. On August 5, 1999,
Alonzo Mitchell filed a one-count
complaint against Emanuel Donchin and
Julian Rappaport, alleging that Donchin
and Rappaport violated his First
Amendment rights. The district court
found that Mitchell’s claim was barred by
Illinois’ two-year statute of limitations
for personal injury claims. Mitchell now
appeals, alleging that the doctrines of
equitable estoppel and equitable tolling
apply to toll the two-year statute of
limitations. We affirm.

I.   History

  Plaintiff-Appellant Alonzo Mitchell was
employed at the University of Illinois at
Urbana-Champaign ("University"). Mitchell
administered a community-based program,
established in the early 1970s and known
as "Oasis Graphics Arts." The goal of
Oasis Graphics Arts was to develop a
relationship between the Department of
Psychology at the University and the
neighboring community. Specifically,
Oasis Graphics Arts published a journal,
Ground Level Critique, that discussed
issues impacting low-income residents in
the community and minorities. Mitchell
reported directly to Julian Rappaport, a
professor in the Department of Psychology
at the University. Rappaport in turn
reported to Emanuel Donchin, the head of
the Department of Psychology at the
University.

  In September 1991, Mitchell published
several articles in Ground Level Critique
critical of another community-based
research project at the University, the
"New North Project," headed by psychology
Professor Robert Felner. Five months
later, Rappaport decided to terminate the
funding for Oasis Graphics Arts.
Rappaport cited severe budgetary
constraints, the deteriorating physical
facility, and the program’s failure as a
training ground for graduate students as
reasons for terminating the program’s
funding. Donchin approved the
termination. Mitchell was informed that
the funding for Oasis Graphics Arts was
being terminated on March 2, 1992. The
funding was actually terminated, and
Mitchell’s position eliminated, in mid-
1993.

  On February 22, 1994, Mitchell filed a
four-count complaint against several
University of Illinois administrators and
professors, not including Donchin and
Rappaport. Pursuant to 42 U.S.C. sec.
1983, Mitchell alleged that the
defendants violated his First Amendment
rights by terminating the funding for
Oasis Graphics Arts in retaliation for
publishing articles in the Ground Level
Critique critical of the New North
Project and Felner. Mitchell supported
his complaint with statements allegedly
made to him by Rappaport that indicated
that the named defendants were behind the
decision to terminate the funding for
Oasis Graphics Arts. Specifically,
Mitchell alleged that Rappaport stated
that he had strongly opposed terminating
the funding for Oasis Graphics Arts, but
that he had been overruled by the
defendants. Mitchell further alleged that
Rappaport told him that "it was that
f..... Felner that’s behind this. I know
it is Bob Felner that caused this to
happen."

  On November 16, 1998, Mitchell deposed
Rappaport in connection with his February
22, 1994 complaint. During this
deposition, Mitchell learned that, in
fact, Rappaport himself had made the
decision, in conjunction with the
approval of Donchin, to terminate the
funding for Oasis Graphics Arts. On June
2, 1999, Mitchell’s February 22, 1994
complaint was voluntarily dismissed
pursuant to Federal Rule of Civil
Procedure Rule 41(a)(1). On August 5,
1999, Mitchell filed this suit against
Donchin and Rappaport, asserting that
Donchin and Rappaport violated his First
Amendment rights by terminating Oasis
Graphics Arts’ funding in retaliation for
publishing the articles critical of the
New North Project and Felner.

  In the district court, Donchin and
Rappaport asserted Illinois’ two-year
statute of limitations as an affirmative
defense. Mitchell argued that the
doctrines of equitable estoppel and
equitable tolling precluded such a
defense. However, the district court
disagreed, and finding that Mitchell knew
or should have known that circumstances
existed that violated his rights by mid-
1993, granted summary judgment in favor
of Donchin and Rappaport.

II.    Analysis

  We review a district court’s grant of
summary judgment de novo. See Lewis v.
Holsum of Fort Wayne, Inc., 278 F.3d 706,
709 (7th Cir. 2002). We view all of the
facts in the light most favorable to the
non-moving party, Mitchell. See id. We
will affirm the district court only if
the pleadings, depositions, answers to
interrogatories, admissions and
affidavits demonstrate that there is no
genuine issue of material fact and that
Donchin and Rappaport are entitled to
judgment as a matter of law. See id.

  As we stated, in this case, the district
court found that by mid-1993 Mitchell
knew or should have known that
circumstances existed that violated his
constitutional rights. Because Mitchell
did not file suit against Donchin and
Rappaport until 1999, the district court
granted summary judgment in favor of
Donchin and Rappaport on the ground that
Mitchell’s section 1983 claim was barred
by Illinois’ two-year statute of
limitations for personal injury
claims./1 On appeal, Mitchell argues
that the doctrines of equitable estoppel
and equitable tolling should apply to
toll the two-year statute of limitations.

A.    Equitable Estoppel
  "[E]quitable estoppel comes into play if
the defendant takes active steps to
prevent the plaintiff from suing in time
as by promising not to plead the statute
of limitations." Shropshear v. Corp.
Counsel of Chicago, 275 F.3d 593, 595
(7th Cir. 2001); see also Bailey v. Int’l
Bhd of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local
374, 175 F.3d 526, 530 (7th Cir. 1999);
Hentosh v. Herman M. Finch Univ. of
Health Sciences, 167 F.3d 1170, 1174 (7th
Cir. 1999). Equitable estoppel "springs
from basic considerations of fairness,"
Bailey, 175 F.3d at 530, and "denotes
efforts by the defendant, above and
beyond the wrongdoing upon which the
plaintiff’s claim is founded, to prevent,
by fraud or deception, the plaintiff from
suing in time." Shropshear, 275 F.3d at
595.

  With respect to Donchin, the application
of equitable estoppel for obvious reasons
must fail. Mitchell never alleges that
Donchin took any step to prevent him from
suing in time. Without any allegation of
an active step, equitable estoppel is
clearly inapplicable to toll the two-year
statute of limitations. See Hentosh, 167
F.3d at 1175 (finding that because
"[plaintiff] has not identified any
actions taken by the University that may
have prevented her from filing her
administrative charge in a timely
manner," equitable estoppel is
inapplicable).

  With respect to Rappaport, Mitchell
asserts that Rappaport actively prevented
him from suing in time by lying to him
about who made the decision to terminate
the funding for Oasis Graphics Arts. This
court has explained that the mere denial
of one’s role in a potential lawsuit is
insufficient to give rise to equitable
estoppel. See Cada v. Baxter Healthcare
Corp., 920 F.2d 446, 451 (7th Cir. 1990).
Here, Rappaport told Mitchell that other
people had made the decision to terminate
the funding for Oasis Graphics Arts and
that he thought that Felner was the
motivating force behind the decision.
Additionally, Rappaport told Mitchell
that he strongly opposed terminating the
funding for Oasis Graphic Arts. In
Singletary v. Continental Illinois
National Bank and Trust Company of
Chicago, 9 F.3d 1236, 1241 (7th Cir.
1993), we explained that although the
bank, the defendant in the case, knew
that a particular loan was phony, the
fact that the bank continued to assert
that the loan was valid did not equitably
estop the bank to plead the statute of
limitations. In Singletary, the bank’s
actions constituted "a mere denial of
liability." Id. Similarly, we find that
Rappaport’s statements to Mitchell
constitute a mere denial of liability
because Rappaport merely said that other
people were behind the decision to
terminate the funding and that he opposed
the termination. As we have repeatedly
explained, if we permitted denials of
liability to be recast as active steps
preventing plaintiffs from suing in time,
"[a] statute of limitations would not
begin to run until a defendant
acknowledged liability, an entirely
strange concept." Bishop v. Gainer, 272
F.3d 1009, 1014-15 (7th Cir. 2001).
Therefore, Rappaport’s statements do not
equitably estop him to plead the statute
of limitations.

B.   Equitable Tolling

  "Equitable tolling permits a plaintiff
to avoid the bar of the statute of
limitations if despite the exercise of
all due diligence he is unable to obtain
vital information bearing on the
existence of his claim." Shropshear, 275
F.3d at 595. "[E]ven if the defendant is
not responsible for the plaintiff’s
failure to sue within the limitations
period, the latter can get an extension
of time within which to sue if it would
have been unreasonable to expect him to
be able to sue earlier." Id. An essential
element of equitable tolling is that "the
plaintiff have exercised due diligence;
in other words that he have acted
reasonably." Id.

  This Circuit has repeatedly emphasized
that "the application of equitable
tolling turns on whether a
reasonableperson would be aware of the
’possibility’ of a claim." Hentosh, 167
F.3d at 1175 (quoting Cada, 920 F.2d at
451). Equitable tolling is inapplicable
in this case because Mitchell should have
been aware of the possibility of a claim
against Donchin and Rappaport when he
filed his original complaint. This is
because Mitchell knew that Rappaport was
his immediate supervisor and that Donchin
was Rappaport’s supervisor. Thus,
Mitchell knew what the chain of command
was with respect to Oasis Graphics Arts
and that any decision regarding the
program would involve Donchin and
Rappaport. Moreover, with no excuse for
delay, Mitchell waited over four years,
until November 1998, to depose Rappaport
and then waited an additional nine months
before filing this lawsuit against
Donchin and Rappaport. Given Mitchell’s
lack of effort in pursuing this claim, we
simply cannot find that Mitchell acted
with due diligence.

III.   Conclusion

  For the foregoing reasons, we AFFIRM the
district court.

FOOTNOTE

/1 To determine the proper statute of limitations
for section 1983 actions, the federal court
adopts the forum state’s statute of limitations
for personal injury claims. See Ashafa v. City of
Chicago, 146 F.3d 459, 461 (7th Cir. 1998).
Pursuant to 735 ILCS 5/13-202, the statute of
limitations for section 1983 cases filed in
federal court is two years. See Ashafa, 146 F.3d
at 462.
