                             In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-2982

H ARLIS W OODS,
                                                 Plaintiff-Appellant,
                                 v.

ILLINOIS D EPARTMENT OF C HILDREN AND
F AMILY S ERVICES, et al.,
                                   Defendants-Appellees.


            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 1:11-cv-08456—Ruben Castillo, Judge.



   A RGUED F EBRUARY 28, 2013—D ECIDED M ARCH 25, 2013




 Before M ANION, K ANNE, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. Harlis Woods brought this suit
under 42 U.S.C. § 1983 against the Illinois Department
of Children and Family Services (“IDCFS”), Lutheran
Child and Family Services of Illinois, Inc. (“LCFS”),
and various individuals. He alleged that defendants vio-
lated his due process rights when, twenty years
earlier, they took him into state custody and failed
to protect him from childhood sexual abuse he suffered
2                                             No. 12-2982

at the hands of another child. The district court
dismissed the suit as untimely because Woods failed
to bring his claim within two years of its accrual,
rejecting Woods’s contention that the twenty-year lim-
itations period applicable in Illinois to personal injury
claims based on childhood sexual abuse applied.
We affirm.


                            I
  The complaint alleges that in March 1991, IDCFS re-
moved Woods from his biological parents’ home and
placed him in a residential treatment facility; he was
seven years old at the time. In August 1991, Woods was
placed in Lutherbrook Children’s Center (“LCC”),
which was operated by defendant LCFS. Prior to his
placement, LCFS had received multiple reports of
sexual abuse among male residents at LCC due to a
lack of staff supervision. In October 1991, it was discov-
ered that Woods, by then eight years old, had been sexu-
ally abused by a thirteen-year-old LCC resident. Woods
was removed from LCC by court order and hospi-
talized a few weeks for evaluation, but he never re-
ceived psychological counseling to address the abuse.
  In 2004, at age twenty-one, Woods committed acts
of sexual violence, which he alleges were manifestations
of the psychological injury resulting from the sexual
abuse he experienced at LCC. He is currently serving
a lengthy state prison sentence for three convictions of
aggravated criminal sexual assault. See People v. Woods,
No. 12-2982                                                 3

No. 1-11-0946, 2012 WL 6962127, at *1, ¶¶ 1-2 (Ill. App.
Ct. Dec. 11, 2012).
   On November 21, 2011, Woods, pro se, brought this
§ 1983 claim against defendants, alleging that they had
violated his due process rights by failing to protect him
from sexual abuse while in state custody. See K.H.
Through Murphy v. Morgan, 914 F.2d 846, 849 (7th Cir.
1990) (once state removed child from parents’ custody
because of sexual abuse, the child had a constitutional
right not to be placed with foster parents that the state
knew or suspected to be abusive); see also Slade v. Bd. of
Sch. Dirs. of City of Milwaukee, 702 F.3d 1027, 1030 (7th Cir.
2012) (state employees may be “held liable under the
due process clause for injuries inflicted by private per-
sons” where “the state has by exercising custody over
a person deprived him of the ability to protect himself
and has thus endangered him”). The district court dis-
missed the complaint as untimely but without prejudice;
it then requested 1 counsel to represent Woods and file
either an amended complaint or a motion to reconsider.
  On March 23, 2012, Woods’s counsel filed a motion
to reconsider, contending that the statute of limitations
applicable to Woods’s § 1983 claim is the twenty-year
limitations period contained in the Illinois Childhood
Sexual Abuse Act, 735 ILCS 5/13-202.2, not the two-year
statute of limitations for general personal injury
actions, 735 ILCS 5/13-202. The district court denied



1
    The request was pursuant to 28 U.S.C. § 1915(e)(1).
4                                               No. 12-2982

Woods’s motion to reconsider, 880 F. Supp. 2d 918 (N.D.
Ill. 2012), and Woods appealed.2


                             II
  As a threshold matter, IDCFS argues that it is not
a proper party because it is a state agency entitled to im-
munity from damages suits. U.S. Const. amend. XI; see,
e.g., Tucker v. Williams, 682 F.3d 654, 658-59 (7th Cir.
2012). (It also points out, correctly, that it is not a “per-
son” under § 1983. See Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989).) Although IDCFS also insists
that Woods’s complaint was properly dismissed as un-
timely, the Eleventh Amendment issue must be
addressed at the outset because it is jurisdictional. See
Hans v. Louisiana, 134 U.S. 1, 10-21 (1890); Davidson v. Bd.
of Governors of State Colls. & Univs. for W. Ill. Univ., 920
F.2d 441, 442 (7th Cir. 1990).
  The district court deemed IDCFS’s Eleventh Amend-
ment argument waived as inadequately developed. 880
F. Supp. 2d at 920 n.2. But the State’s contention
should have been addressed. First, although IDCFS’s
argument was somewhat perfunctory and appeared in



2
  Although the duties counsel accepted in response to
the court’s request terminated upon denial of the motion
to reconsider, counsel also voluntarily pursued this appeal
on Woods’s behalf. We thank Beata G. Brewster and Steven A.
Levy, of the law firm Goldberg Kohn Ltd., for their volun-
teered efforts and exceptional representation of Mr. Woods.
No. 12-2982                                                5

a footnote, this is a fairly routine and straightforward
defense when a state agency is sued for damages, and
we fail to see what further development the district court
felt it needed. Cf. Hernandez v. Cook Cnty. Sheriff’s Office,
634 F.3d 906, 913-14 (7th Cir. 2011) (qualified-immunity
defense not waived, even though defendants’ argu-
ment “left much to be desired”). Second, Woods did not
contest this argument below and on appeal concedes
that IDCFS is not a proper party. Finally, there is little
sense in a district court deeming an Eleventh Amend-
ment defense waived for inadequate development
because the state can invoke it at any time during the
litigation. See Edelman v. Jordan, 415 U.S. 651, 658 (1974).
We will, consequently, modify the district court’s judg-
ment of dismissal, see, e.g., Chattanoga Mfg., Inc. v. Nike,
Inc., 301 F.3d 789, 795-96 (7th Cir. 2002), to reflect
dismissal of the claim against IDCFS for lack of juris-
diction. That takes care of IDCFS, but several other de-
fendants remain, so we press on.


                             III
  Federal law does not provide every rule of decision
for adjudicating a civil rights claim. Burnett v. Grattan,
468 U.S. 42, 47 (1984). To fill in the gaps, Congress
has instructed courts to engage in a three-step process:
(1) look to federal law “so far as such laws are suitable
to carry [the relevant civil rights laws] into effect”;
(2) if federal law is silent, look to the “common law, as
modified and changed by the constitution and statutes,”
of the forum state; but (3) apply state law only if it “is
6                                               No. 12-2982

not inconsistent with” federal law. 42 U.S.C. § 1988(a);
Burnett, 468 U.S. at 47-48. Federal law does not provide
a limitations period for § 1983 claims, so courts look to
the forum state’s law. Burnett, 468 U.S. at 49; Ray v.
Maher, 662 F.3d 770, 772 (7th Cir. 2011). Turning to
state law, of course, raises the question of which state
law to apply, for states often have numerous statutes
of limitations applicable to different types of legal claims.
  Prior to Wilson v. Garcia, 471 U.S. 261 (1985), the
Supreme Court had directed lower courts to apply the
state statute of limitations governing the state-law
claim that was most analogous to the particular § 1983
claim being litigated. See Burnett, 468 U.S. at 49-50; Bd.
of Regents of the State Univ. of N.Y. v. Tomanio, 446 U.S.
478, 483-84 (1980); cf. Johnson v. Ry. Express Agency, Inc.,
421 U.S. 454, 462 (1975) (applying same rule to § 1981
claim). This case-by-case approach spurred time-con-
suming litigation collateral to the merits of § 1983
claims, which in turn injected a great deal of uncertainty
into the law. Wilson, 471 U.S. at 272-74. Furthermore,
this approach lacked any semblance of uniformity be-
cause different limitations periods applied to the vari-
ous § 1983 claims brought in a particular state; indeed,
where a plaintiff asserted more than one claim under
§ 1983, different statutes of limitations might apply in
the same case. Id. at 274. The justification for the case-by-
case approach was also sketchy because the unique
nature of a § 1983 claim meant that it had “no precise
counterpart in state law,” so trying to find the perfect
analogy in state law (and the accompanying policies of
repose) was a battle of futility. Id. at 271-72. Concluding
No. 12-2982                                               7

that these results were inconsistent with Congress’s
intent, the Wilson Court jettisoned the case-by-case ap-
proach and held that § 1988(a) “is fairly construed as a
directive to select, in each State, the one most appro-
priate statute of limitations for all § 1983 claims.” Id.
at 275. The Court also held that § 1983 claims are best
characterized as personal injury claims and, conse-
quently, that courts should apply the state limitations
period governing personal injury claims to all § 1983
claims. Id. at 276-80.
  Wilson did much to streamline this area of law, but it
did not address what a court should do when a state
has multiple limitations periods applicable to different
categories of personal injury claims. In Owens v. Okure,
488 U.S. 235 (1989), the Court was asked to determine
which of two New York limitations periods applied to
§ 1983 claims: the one-year period applicable to certain
enumerated intentional torts, or the three-year residual
statute of limitations applicable to personal injury
claims not otherwise covered by a specific statute of
limitations. Id. at 237-38. The Court held “that where
state law provides multiple statutes of limitations for
personal injury actions, courts considering § 1983 claims
should borrow the general or residual statute for
personal injury actions.” Id. at 249-50. Adopting the
alternative approach under which courts would look to
the limitations periods applicable to intentional torts,
the Court explained, would lead to the same prob-
lems that predated Wilson, as courts would be required
to determine which one of several intentional torts
was most analogous to a particular § 1983 claim. Id. at 243-
8                                                 No. 12-2982

44 & n.8; see also id. at 248 (“In Wilson, we expressly
rejected the practice of drawing narrow analogies
between § 1983 claims and state causes of action.” (cita-
tion omitted)).
   In line with Wilson and Owens, this court has
consistently held that the limitations period applicable
to § 1983 actions brought in Illinois is the two-year
period for general personal injury actions set forth in
735 ILCS 5/13-202. See, e.g., Ray, 662 F.3d at 772-73;
Ashafa v. City of Chicago, 146 F.3d 459, 461-62 (7th Cir.
1998); Farrell v. McDonough, 966 F.2d 279, 280-82 (7th
Cir. 1992); Kalimara v. Ill. Dep’t of Corr., 879 F.2d 276, 277
(7th Cir. 1989) (per curiam). Here, the parties agree that
Woods’s claim accrued some time in 2004, when he
“discovered” his psychological injury, and on the basis
of their agreement we assume without deciding that
2004 is the proper accrual date. But see Wallace v. Kato,
549 U.S. 384, 388-91 (2007) (“accrual occurs when the
plaintiff has ‘a complete and present cause of action,’ that
is, when ‘the plaintiff can file suit and obtain relief,’ ” and
this is true “even though the full extent of the injury
is not then known or predictable” (brackets omitted)
(quotation marks and citations omitted)). Although the
district court provided him an opportunity to do
so, Woods has not attempted to seek refuge under any
relevant Illinois tolling provisions. Cf. Hardin v. Straub,
490 U.S. 536, 539 (1989). Thus, the two-year limitations
period expired in 2006, rendering Woods’s 2011 com-
plaint five years too late.
  Woods concedes that his claim is untimely if the two-
year limitations period applies, but he maintains that
No. 12-2982                                                  9

the twenty-year limitations period contained in the
Illinois Childhood Sexual Abuse Act, 735 ILCS 5/13-202.2,
should apply because his claim involves childhood
sexual abuse.3 He argues that the Supreme Court, in a
comment in Owens (specifically, footnote 13), recognized
an exception to the Wilson rule, specifically, that the
general personal injury limitations period does not
apply when it would be inconsistent with the federal
interests underlying § 1983, which are to compensate
victims and to deter officials from abusing their power,
e.g., Robertson v. Wegmann, 436 U.S. 584, 590-91 (1978). A
limitations period that does not afford a reasonable
time for a § 1983 plaintiff to bring suit, he continues, is
inconsistent with federal interests. He then marshals
case law, legislation, and social commentary to show
that two years is an unreasonable time in which to
require a victim of childhood sexual abuse to bring
suit. At the very least, he argues, he is entitled to an
evidentiary hearing in the district court at which
he can adduce evidence to show that two years is an
unreasonable limitations period, hence inconsistent



3
   Recall that Woods is not alleging that governmental actors
sexually abused him but that they failed to protect him from
sexual abuse at the hands of a ward of the state when they
had a duty to protect; Illinois courts have interpreted the
Illinois Childhood Sexual Abuse Act to give rise to a cause
of action against nonabusers based on their failure to protect,
Doe v. Hinsdale Twp. High Sch. Dist. 86, 905 N.E.2d 343, 346-47
(Ill. App. Ct. 2009); Hobert v. Covenant Children’s Home, 723
N.E.2d 384, 386 (Ill. App. Ct. 2000).
10                                                No. 12-2982

with federal interests, for claims involving childhood
sexual abuse. We are not persuaded.
  It is true that § 1988(a) allows application of state
law only when it is not inconsistent with federal law.
And it may be that a limitations period can be so short
as to be inconsistent with federal interests. See Owens,
488 U.S. at 251 n.13 (citing Burnett, 468 U.S. at 61
(Rehnquist, J., concurring in the judgment)). But cf.
Wilson, 471 U.S. at 279 (“The characterization of all
§ 1983 actions as involving claims for personal injuries
minimizes the risk that the choice of a state statute
of limitations would not fairly serve the federal inter-
ests vindicated by § 1983. General personal injury actions,
sounding in tort, constitute a major part of the total
volume of civil litigation in the state courts today . . . . It
is most unlikely that the period of limitations appli-
cable to such claims ever was, or ever would be, fixed
in a way that would discriminate against federal claims,
or be inconsistent with federal law in any respect.”).
   But in light of Wilson and Owens, the determination
whether a limitations period is consistent or not with
federal interests must be made with reference to all
§ 1983 claims, not a particular subset, because all § 1983
claims within a single state are to be governed by the
same limitations period. Put differently, to prevail on
his theory, Woods must show that the two-year limita-
tions period applicable to all § 1983 claims in Illinois
is inconsistent with the federal interests of compensation
and deterrence generally. See Blake v. Dickason, 997 F.2d
749, 751 (10th Cir. 1993); cf. Robertson, 436 U.S. at 593 (“A
No. 12-2982                                             11

state statute cannot be considered ‘inconsistent’ with
federal law merely because the statute causes the
plaintiff to lose the litigation.”). He has not done so.
And nothing can be gained from an evidentiary
hearing because his focus is too narrow—he does not
suggest that he would or could show that a two-year
limitations period is inconsistent with the federal
interests underlying § 1983 claims generally. Even had
Woods requested an appropriately focused hearing,
it is doubtful he could show that two years is an unrea-
sonably short time for § 1983 plaintiffs in general to
bring their claims. See Burnett, 468 U.S. at 61 (Rehnquist,
J., concurring in the judgment) (“The willingness
of Congress to impose a 1-year limitations period in 42
U.S.C. § 1986 demonstrates that at least a 1-year period
is reasonable.”); McDougal v. County of Imperial, 942
F.2d 668, 673 (9th Cir. 1991) (one-year limitations period
not inconsistent with federal interests); Jones v. Preuit &
Mauldin, 876 F.2d 1480, 1484 (11th Cir. 1989) (same).
  At oral argument, counsel for Woods asserted that
although Owens and Wilson emphasize the federal
interests of uniformity, certainty, and the minimization
of unnecessary litigation, those interests should not
trump deterrence and compensation, which are the
chief goals of § 1983. Furthermore, the argument goes,
footnote 13 in Owens should be understood as im-
plicit recognition that other interests may override uni-
formity. We think this over-reads the footnote. The
Court simply left open the question whether a one-
year limitations period was consistent with federal in-
terests; it did not need to reach the issue because it
12                                              No. 12-2982

had held that the three-year period applied. See Owens,
488 U.S. at 251 n.13. Importantly, adhering to Wilson, the
Owens Court was deciding which of two limitations
periods applied to all § 1983 claims brought in
New York; had it decided on the one-year period
and proceeded to examine the question left open in
footnote 13, it would have been considering whether
one year was too short for § 1983 claims generally.
  Contrary to counsel’s assertion, there is a reason that
the federal interests of uniformity, certainty, and the
minimization of unnecessary litigation trump deterrence
and compensation—the Supreme Court has interpreted
§ 1988(a) to so require. The Wilson Court deemed the
benefits of the bright-line rule to outweigh the costs of
abandoning the case-by-case approach, and it was
aware that its rule might shorten the period in which a
§ 1983 plaintiff could bring suit, relative to what a
state legislature might provide arguably analogous state
tort claimants. Cf. Wilson, 471 U.S. at 284-85 (O’Connor, J.,
dissenting) (“[T]he Court’s decision effectively fore-
closes legislative creativity on the part of the States. Were
a State now to formulate a detailed statutory scheme
setting individualized limitations periods for various
§ 1983 claims, drawing upon policies regarding the timeli-
ness of suits for assault, libel, written contract, employ-
ment disputes, and so on, the Supremacy Clause would
dictate that the blunt instrument announced today
must supersede such legislative fine-tuning. Presum-
ably, today’s decision would pre-empt such legislation
even if the State’s limitations period in a given case
were more generous than the tort rule that the Court
No. 12-2982                                            13

today mandates invariably shall apply.” (emphasis in
original)). And the Owens Court was aware that some
states had special limitations periods applicable to in-
tentional torts involving childhood sexual abuse: after
explaining that “[a] rule endorsing the choice of the
state statute of limitations for intentional torts would
be manifestly inappropriate,” 488 U.S. at 243, because it
would cause confusion over the “choice among multiple
intentional tort provisions,” id. at 244, the Court listed
examples of the various statutes governing different
intentional torts, and among those examples were
statutes of limitation governing actions based on child-
hood sexual abuse, see id. at 244 n.8.
  Notwithstanding Woods’s assertions to the contrary,
in the end his argument is simply an invitation to revive
the pre-Wilson approach of choosing a state limitations
period based on which state tort claim is most analogous
to a particular § 1983 claim. The underlying premise of
his argument is that his particular § 1983 claim is most
closely analogous to a state tort claim for personal
injuries resulting from childhood sexual abuse. This is
precisely what Wilson and Owens forbid.
   To sum up, we reiterate our holding that the limita-
tions period applicable to all § 1983 claims brought in
Illinois is two years, as provided in 735 ILCS 5/13-202,
and this includes § 1983 claims involving allegations
of failure to protect from childhood sexual abuse, accord
Walker v. Barrett, 650 F.3d 1198, 1205-06 (8th Cir. 2011);
14                                                  No. 12-2982

Blake, 997 F.2d at 751 4 ; cf. Bonneau v. Centennial Sch. Dist.
No. 28J, 666 F.3d 577, 579-80 (9th Cir. 2012). Woods
filed his complaint long after the limitations period
had expired, and so it was properly dismissed. His argu-
ments for applying a different limitations period are
foreclosed by Supreme Court and circuit precedent,
and there is nothing that can be achieved from an evi-
dentiary hearing.



4
   Woods argues that Blake is no longer the law of the Tenth
Circuit and urges us to follow the course he believes that
circuit has laid. He says that the Tenth Circuit departed from
Blake in Cosgrove v. Kansas Department of Social & Rehabilitative
Services, 162 F. App’x 823, 825-28 (10th Cir. 2006), when it
reversed a district court’s dismissal of a prisoner’s § 1983 claim
at the screening stage, 28 U.S.C. § 1915A, because it was not
“patently clear from the face of the complaint nor rooted in
adequately developed facts” that Kansas’s two-year limita-
tions period applied, rather than its three-year period
governing claims of childhood sexual abuse. But, of course,
it almost goes without saying that Cosgrove, an unpublished,
nonprecedential decision, 162 F. App’x at 824 n.*, did not
change the law of the Tenth Circuit. Aside from being unpub-
lished and nonprecedential, Cosgrove does not mention
Wilson, Owens, or even Blake and endorses precisely what the
Supreme Court has held is not permitted—applying different
limitations periods to different § 1983 claims brought in a
single state. Under Wilson and Owens, the alleged facts under-
lying a § 1983 claim are wholly irrelevant for determining
which state limitations period applies. It is also notable that,
due to the unique posture in Cosgrove, the court did not
have the benefit of briefing from the defendants.
No. 12-2982                                            15

                           IV
   The district court’s judgment of dismissal is M ODIFIED
to reflect that Woods’s claim against IDCFS is dismissed
for lack of jurisdiction, and the judgment, as modified,
is A FFIRMED.




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