them. /d.; Shropshear, 275 F.3d at 595, To invoke equitable tolling, Miceli would have to allege
not only that he could not have sued before the limitations period expired in 1999; he would have
to allege that even exercising due diligence he could not reasonably have been expected to file suit
until mid-2002.

The complaint suggests no grounds for equitable tolling, as it does not appear that Miceli
learned any essential fact after 1997, The other exception to the limitations bar, equitable estoppel,
applies only when a defendant has taken active steps, by fraud or deception, to prevent the plaintiff
from suing in time. Mitchell, 286 F.3d at 450; Shropshear, 275 F.3d at 595. There is no hint of
this in the complaint.

Miceli’s only cognizable injuries occurred in 1997. While the defendants’ failure to
investigate and prosecute Cruz and others allegedly continues to the present day, this does not
violate Miceli’s constitutional rights. Miceli may continue to be in danger, but none of the
defendants are presently responsible for his safety. As the allegations of the complaint suggest no

basis for avoiding the bar of the statute of limitations, this suit is dismissed as frivolous.

ENTER:

iL E, PLUNKETT
UNITED STATES DISTRICT JUDGE

DATED: November 2, 2002

13


Miceli no longer had the videotapes, and the Chicago Police Department internal affairs unit
told Miceli that without the tapes they would not pursue the investigation of the Chicago officers
Miceli alleges that with Fatta’s assistance he sought to have criminal charges brought against the
Chicago police officers involved in the home invasion, but Fatta’s investigation was obstructed by
the Chicago Police Department internal affairs unit.

In June of 1997, Miceli was arrested by Chicago police officers without a warrant "for a
non-existent case," and while he was in custody he as warned that if he did not cease his pursuit
of the police officers he would be killed. While in police custody, Miceli called the United States
Attorney's office and told defendant Assistant U.S, Attorney Brian Netols “of his situation and
fears." An hour later, because he had been refused his heart medication, Miceli collapsed and was
hospitalized for acute angina. His mother contacted Netols, and shortly thereafter Miceli was
released on a $100.00 bond.

Miceli then contacted defendant Jim Davis, an FBI special agent and supervisor, told him
"of his situation and fears," and gave him an audio tape proving that the Chicago Police
Department's internal affairs unit was obstructing justice in connection with the home invasion and
assault on Miceli by attempting to conceal the fact that two assailants were Chicago police officers.
The FBI did not investigate, but turned the evidence over to the Chicago Police Department, and
Miceli was charged with unlawful eavesdropping by defendant Sergeant Mark Buslik of the
Chicago Police internal affairs office. The FBI did not respond to numerous requests for help and
protection for Miceli and his family.

In 1998 and 1999 Miceli alleges he employed as many as eight Cook County sheriff’s
deputies as personal bodyguards, By exploiting their offices, they enabled Miceli to bypass airline
security measures and board two commercial flights while armed (in one case also carrying
explosives), in violation of federal law. Miceli complains that these accomplices have not been
prosecuted, although the Cook County Inspector General’s office, as well as the FBI, has "concrete
evidence" corroborating Miceli’s allegations.

At some unspecified time in 1999, attorney Thomas Freeman introduced Miceli to John N.

Rotunno, a special agent with the arson unit of the Bureau of Alcohol, Tobacco and Firearms

(ATF) in Chicago. Since then, Miceli has provided Rotunno with information regarding several



played no part creating the danger nor did it render the child more vulnerable. DeShaney, 489
U.S. at 201.

Miceli had no constitutional right to demand that law enforcement officers investigate his
charges against Cruz (or anyone else), no matter how persuasive his evidence, just as he had no
right to demand their arrest or prosecution. Nor did officers’ knowledge of a risk to Miceli create

a constitutional duty to protect him.

Ill. CREATION OF RISK OF HARM

These principles eliminate the bulk of Miceli’s complaint, with one significant exception.
DeShaney’s rationale implies that a state official may be liable where the state official creates the
danger of harm, rather than merely fails to prevent it. In Dykema v. Skoumal, 261 F.3d 701, 705
(7th Cir, 2001), the Seventh Circuit recently considered the application of this exception to a
civilian police informant, Matthew Dykema, who was injured in the course of an investigation.
Dykema had inquired of the police about reinstating his suspended driver's license, and the
officers’ promise to facilitate the return of his driver’s license induced him to work for a police
investigative unit making drug purchases, Dykema said he was experienced in drug transactions
and needed no training.

In order to build a case against a suspected drug dealer, Dantzler, the police planned a
"reverse buy," in which Dykema and an officer posing as Dykema’s brother would attempt to scll
drugs to Dantzler and then arrest him. The reverse buy fell through when Dantzler wanted to
inspect the drugs before paying. When Dantzler drove out of the parking lot, agents followed him,
and they may have been observed by Dantzler’s cousin, Stephen Stepney, who was reportedly
acting as protection for Dantzler.

A week later, the officer attempted to complete the reverse buy without Dykema, but
Dantzler refused to deal without Dykema present. The next day, officers gave Dykema $20.00
to buy cocaine from Dantzler, telling him to "smooth things over" with Dantzler and tell him they
wanted to do business with him another time. After unsuccessfully trying to contact Dantzler,
Dykema drove alone to Dantzler’s house and was shot by Stepney. /d,, 261 F.3d at 702-03.



agencies may be sued only to the extent that the sovereign immunity of the United States has been
waived. The Federal Tort Claims Act, 28 U.S.C. § 2671 et seg. (FTCA), provides a limited
waiver of sovereign immunity for tort claims, but requires exhaustion of administrative remedies,
28 U.S.C. § 2675. Miceli has not alleged that he has complied with the prerequisites of the
FTCA. Further, the FTCA permits the United States to be sued for acts by federal employees that
would render the United States liable, if it were a private person, under state tort law, it does not
waive sovereign immunity for constitutional torts. 28 U.S.C. § 1346(b); Meyer, 510 U.S. at 477.
The FBI and "United States Attorney’s Office" must be dismissed.

B. City of Chicago and Cook County

Miceli has also not stated a claim against the Chicago Police Department, which is not a
legal entity but part of the City of Chicago. Individual municipal officials may be sued for
deprivations of constitutional rights under 42 U.S.C. § 1983, but there is no respondeat superior
lability under § 1983, i-e., a municipality is not automatically liable for constitutional violations
committed by its employees in the course of their employment. Latuszkin v. City of Chicago, 250
F.3d 502, 503 (7th Cir, 2001); Lanigan v. Village of East Hazel Crest, 110 F.3d 467, 478 (7th
Cir. 1997). The Chicago Police Department, that is, the City of Chicago, can be liable only if
Miceli’s injury was a result of either (1) the enforcement of an express policy of the City, (2) a
widespread practice that is so permanent and well settled as to constitute a custom or usage with
the force of law, or (3) action by a person with final policymaking authority. /d., 250 F.3d at 503-
504.

Miceli has not alleged that he was injured as a consequence of any custom or official policy
of the City of Chicago. The fact that a number of police officers, including supervisors, conspired
to violate Miceli’s rights is not enough to establish a custom or policy unless knowledge and
approval extended to the policymaking level. Jd. Miceli alleges that he wrote to Chicago Police

Superintendent Matt Rodriguez and his successor, Terrence Hillard, but, as Latuszkin notes, the

Superintendent of Police is not a policymaker for the City. Jd. at 505 (citing Auriemma v. Rice,
957 F.2d 397 (7th Cir. 1992). Miceli has not stated a claim against the City of Chicago.



murders, arsons and sundry other crimes as well as official corruption involving several judges and
prosecutors. He claims to have given the ATF the locations of the corpses of twenty-seven murder
victims, but the ATE never attempted to recover them. Miceli complains that he has never “been
properly interviewed and de-briefed" regarding what he knows of these crimes and the workings
of organized crime syndicates in New York, Chicago and Florida. He also states that the "U.S.
Attorneys" are aware that he passed $50,000 to a Chicago police officer as part of a contract to
murder the wife of an organized crime figure and that the "contract" is still pending, implying that

nothing has been done to prevent the murder.

ANALYSIS

Miceli’s lurid account, which for the sake of this initial review the court must assume to be
true, cries out for action-- but not for action by this court. Miceli’s complaint reflects a
fundamental misunderstanding of this court’s function. A federal court is not a super-agency,
overseeing municipal, state and federal law enforcement agencies and compelling them to perform
their duties. The court resolves concrete disputes between particular parties where the Constitution
and laws of the United States grant it the power to do so. After examining the complaint, the court
finds that (1) Miceli has no claim against the governmental entities named as defendants; (2) most
of the actions of which Miceli complains did not violate his constitutional rights; and (3) claims

regarding actions which may have violated Miceli’s rights are barred by the statute of limitations.

I. DEFENDANTS
A. Federal Entities
Both the Federal Bureau of Investigation and the "United States Attorney’s Office” (which
is not an independent agency but part of the Department of Justice) share the sovereign immunity
of the United States. The Supreme Court has recognized an implied federal right of action against
federal officials for claims of deprivation of constitutional rights under color of federal authority.
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

However, the right of action recognized in Bivens is limited to claims against individual federal

officers and does not extend to federal agencies. FD/C v. Meyer, 510 U.S. 471 (1994). Federal



political or social interest and a constitutional right. Clay v. Fort Wayne Community Schools, 76
F.3d 873, 878 (7th Cir. 1996). "[AJn asserted right to have the Government act in accordance
with law is not sufficient, standing alone, to confer jurisdiction on a federal court." Allen, 468
U.S, at 754.

Miceli would seem to be in a different position with respect to the investigation of those who
attacked him and presumably might do so again if they believed they could get away with it.
Nevertheless, because investigation would not guarantee prosecution, much less conviction, it is
doubtful whether Miceli would have standing to complain of defendants’ failure to investigate. See
Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981). In any event, standing, a "personal injury fairly
traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested
relief," is only the first step. There must be an underlying legal right. As the Supreme Court
repeated in Leeke, quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), "a private citizen
lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Leeke, 454
U.S. at 86. So Miceli has no federal claim against the defendants for failing to investigate and
initiate the prosecution of criminals, even criminals who have directly injured him. Johnson v.
City of Evanston, 250 F.3d 560, 563 (7th Cir. 2001).

As Johnson notes, this rule reflects a more general proposition that the Constitution does not,
as a rule, require states to protect citizens from each other. /d, The Constitution is primarily "a
charter of negative liberties." It creates areas in which the government has to let people alone, but
does not entitle them to demand services, such as police protection, Hilton v. City of Wheeling,
209 F.3d 1005, 1007 (7th Cir. 2000) (citing DeShaney v. Winnebago County Dept. of Social
Services, 489 U.S. 189, 195-97 (1989)).

DeShaney teaches that while state officials are forbidden by the Fourteenth Amendment to
deprive a person of life, liberty or property without due process of law, they do not do so merely
by failing to protect a person from harm caused by someone not acting for the state. DeShaney
was a suit brought on behalf of a child who had been badly beaten by his father after employees
of the state child protection agency disregarded reports of abuse and failed to remove him from
his father’s custody. The Supreme Court, affirming the Seventh Circuit, held that the state had

ho constitutional duty to protect the child, since although the state was aware of the danger, it



Minute Order Form (0697)

4a

United States District Court, Northern District of Illinois

Nae of Assigned Judge or PAUL E. PLUNKETT Sitting Judge if Other
Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 5749 DATE {l-20-O27
CASE Charles N. Miceli (# D87412) v. Federal Bureau of Investigation, et al.
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nanure of the motion being presented.)
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.)
(2) a Brief in support of motion due
(3) im} Answer brief to motion due____._Reply to answer brief due__.
4) Ruling/Hearing on set fort
(5) 0 Status hearing(held/continued to] [set for/re-set for] on__—sset for atl
(6) Oo Pretrial conference[held/continued to] (set for/re-set for] on ___setfor_ = at__
(7) a Trial[set for/re-set for] on at
8) qd [Bench/Jury trial] [Hearing] held/continued toa
9) co This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

O FRCP4(m) 0 General Rule 21 =O FRCP41(a)(1)_ =O FRCP41(a)(2).

10) «(al (Other docket entry} | Enter memorandum opinion and order. Plaintiff's motion for leave to
proceed in forma pauperis [3-1] is granted. Instructions for the installment payment of the filing fec
pursuant to 28 U.S.C. § 1915(b) will be entered by separate order. After reviewing the complaint
in accordance with 28 U.S.C. § 1915A, the court dismisses this action as frivolous. This dismissal
counts as one of plaintiff’s three allotted dismissals under 28 U.S.C. § 1915(g).

(11) mf For further detail see order attached to the original minute order,

No notices required, advised in open court.

INo notices required.
io notives req! umber of notices

Notices mailed by judge’s staff.

r— nov 2 $ 2002

[Notified counsel by telephone. date docketod

date mailed notice

¥  |Dovketing to mail notices.

[-_|Mail AO 450 form. Lunos LOMASIO “st

ICopy to judge/mugistrate judge.

OC Ol HY O2 AON ZO
did

Kleputy's yore
hnitialy Ot Ga
Date/time received in

central Clerk's Office

courtroom

mailing deputy initials



Miceli’s complaint arguably falls within the rationale of Monfils. Miceli alleges that despite
promises of confidentiality, information he gave to the internal affairs investigative unit of the
Chicago Police Department was leaked to the targets of the investigation, creating a danger of harm
that materialized when Miceli was assaulted and beaten.” The difficulty is that Miceli has named
as defendants the officers to whom he gave the information that was wrongfully disclosed, but has
not alleged that they were responsible for disclosing it.

The court is required to draw reasonable inferences in Miceli’s favor, Nevertheless, because
the complaint does not allege that the defendants were linked to associates of Cruz, or anyone else
Miceli fingered, it can reasonably be inferred that someone was careless, but not that a defendant
intentionally leaked the information. Negligence will not support a claim under the Due Process
Clause. Daniels v. Williams, 474 U.S, 327 (1986); Davidson v, Cannon, 474 U.S. 344 (1986):
Harrell y. Cook, 169 F.3d 428, 432 (7th Cir. 1999). While a due process violation can be based
on a defendant's “deliberate indifference" to a risk of harm, this requires "conscious disregard of
known or obvious dangers." Armstrong v, Squadrito, 152 F.3d 564, 577 (7th Cir, 1998). It would
have been obvious that the information would be dangerous to Miceli if it got into the wrong
hands, but the allegations do not permit the inference that a defendant should have known it was

likely to be leaked.

LIMITATIONS

Although Miceli might be able to cure this problem by amending his complaint, his claims
face another barrier, the statute of limitations. Limitations is an affirmative defense, and normally
raised by the defendant. Nevertheless, when a valid affirmative defense is evident from the face

of the complaint, the court need not wait for an answer before dismissing the suit as frivolous.

® Of course, the Chicago policemen who allegedly assaulted and beat Miceli violated his tights under the Due
Process Clause, but Miceli has not named them as defendants.

il



The court held that these facts did not render the officers liable. The court stated the rule
that "state liability may exist if any state action ‘creates, or substantially contributes to the creation
of a danger or renders citizens more vulnerable to a danger than they otherwise would have been.’”
Td,, 261 F.3d at 705 (quoting Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993)). The court
noted that Dykema had chosen to cooperate with the police for his own benefit, and was not in
custody. Although Dykema had been told to try to “smooth things over" with Dantzler, no one
gave Dykema instructions as to what he should do or when he should do it; the details were left
to Dykema’s judgment as an experienced drug operator. It is common knowledge that drug dealers
are often armed, and Dykema assumed the risk. Stepney was not a target of the investigation, and
the narcotics unit with which Dykema worked was not aware that he was in any danger from
Stepney. Dykema had not been told that the police would protect him, nor did he ask for
protection. /d., 261 F.3d at 706-07. The court concluded that the police had not created the risk
that Dykema voluntarily assumed by engaging in undercover work for them.

The court contrasted Dykema’s situation with that of the plaintiff in Monfils v. Taylor, 165
F.3d 511 (7th Cir. 1998), where false assurances of protection had increased the danger to an
informant. Monfils, an employee in a paper plant, had made a telephone call to the police
informing them that another employee, Kutska, was going to steal plant property, insisting on
anonymity because Kutska had a reputation fot violence. The police called security at the plant
and Kutska was stopped on his way out the door; when he refused to submit to a search he was
suspended. Tncensed that someone had reported him, Kutska told Monfils and others that he was
going to get the police tape and identify the informant. Although Monfils made several calls to
the police trying to prevent the release of the recording, and was assured each time that it would
never be released, the police gave Kutska a copy. Several hours later Kutska and others brutally

murdered Monfils, The Seventh Circuit held that the deputy chief of detectives could be liable

under § 1983 for assuring Monfils that the tape would not be released while doing nothing to

secure it, placing Monfils in position of danger greater than he would have otherwise faced.



Miceli is even further from stating a claim against Cook County, in that he only alleges that
its Inspector General, Thomas Swaine, knows of criminal misconduct by Cook County sheriff's
deputies. Apart from the fact that Swaine’s inaction did not violate Miceli’s rights, as discussed

below, it can hardly be considered to amount to a policy or custom of Cook County,

C. Official Capacity Claims
A claim brought against a governmental employee in his or her official capacity amounts to
a claim against the employing governmental entity, Kentucky v. Graham, 473 U.S. 159, 165
(1985). Because Miceli has no claim against the United States, any official-capacity claims against
the defendant federal officers must be dismissed. Sterling v. United States, 85 F.3d 1225, 1228-29
(7th Cir. 1996). The same goes for official-capacity claims against municipal and county officials.
Lanigan, 110 F.3d at 479 1.5.

II, FAILURE TO INVESTIGATE OR PROSECUTE

Miceli complains of three kinds of actions or inactions by the various defendants: (1) that
they failed to follow up on information Miceli had given them concerning criminal activity and
official corruption; (2) that they leaked information to those in league with the targets of Miceli’s
disclosures, and (3) they failed to protect Miceli from retaliation and intimidation.

The first category does not state a claim. The various law-enforcement officials to whom
Miceli provided information regarding criminal behavior had a duty to act upon it, but that duty
was owed to the governmental entities they served, not to Miceli, Miceli’s interest, as a citizen,
in having the law enforced and criminals prosecuted, does not create standing to sue in federal
court. Article III of the Constitution authorizes federal courts to decide "cases" and
"controversies," not issue general pronouncements or supervise other branches of government. A
justiciable "case" or "controversy" requires that the plaintiff allege a “personal injury fairly
traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested
relief." Allen v. Wright, 468 U.S. 737, 751 (1984). Most of the unlawful conduct Miceli
allegedly denounced and attempted to stop had no direct effect on him. While all citizens are

benefitted by diligent law enforcement untainted by corruption, there is a difference between a



well as to the police officers Miceli had identified to Gunnery. Miceli does not allege who was
actually responsible for the leak or leaks, and presumably does not know,

At the same time -- December of 1995 -- Miceli alleges that defendant Gerald Thies, an FBI
special agent, came to his house in Arlington Heights, Illinois and told him that Marvin Cruz and
John Skiersch had placed a “hit,” a murder contract, on Miceli because of his cooperation with law
enforcement agencies. According to Miceli, Thies told him to "pay Mr. Cruz whatever [Cruz]
wanted to stop the hit." Subsequently Cruz used the threat of murder to coerce Miceli’s wife into
a sexual relationship and sexually assaulted Miceli’s young daughter.

Miceli alleges that because Cruz had himself become an informant, law enforcement agencies
would not investigate or prosecute him. He states that on unspecified occasions he wrote to
Chicago Police Superintendent Matt Rodriguez and his successor, Terrence Hillard, and received
no response. He alleges Rodriguez refused to "force an investigation" after Miceli provided
evidence to the media in February of 1997 that Cruz was furnishing prostitutes to a Chicago police
officer.

As a consequence of the disclosure of confidential information Miceli had given Gunnery,
on February 16, 1997, two Chicago police officers entered Miceli’s home in Stone Park, Illinois
and beat Miceli unconscious. While Miceli was in the hospital, investigators from the Chicago
Police Department interviewed him and encouraged him to continue his cooperation. The case
agent, defendant Sergeant James Dooley, promised Miceli that if he turned over certain videotapes,
Dooley would guarantee Miceli’s safety and "that the case against the Chicago Police officers and
others would be prosecuted." Miceli agreed to cooperate.

On the evening of March 21, 1997, Miceli contacted Dooley and arranged to meet him the
following day and turn over all the evidence he had of police corruption. Approximately four
hours after Miceli made the call to Dooley, four assailants broke into Miceli’s home and tortured
him into surrendering his evidence to them. He was found bound and unconscious by his mother
later that evening and his home had been ransacked. The Stone Park detective investigating the
incident, Louis Fatta, asked why Miceli had not asked the Stone Park police to protect him; Miceli
responded that he had been warned by Gunnery and Dooley not to involve the Stone Park police

because they were supposedly corrupt and tied to organized crime.



in deciding a motion to dismiss under Rule 12(b)(6), taking all well-pleaded allegations of the
complaint as true and viewing them in the light most favorable to the plaintiff. Zimmerman v.

Tribble, 226 F.3d 568, 571 (7th Cir. 2000).

ALLEGATIONS OF THE COMPLAINT

Tt has been necessary to reorder Miceli’s allegations, since the various incidents are not given
in chronological order. Miceli’s career as an informant goes back at least to 1990, when he
provided information to the FBI regarding James "Jack" Novelli, convicted in this court in 1992
of governmental corruption in violation of 18 U.S.C. § 666 and 371. Miceli alleges his problems
began when he contacted the FBI and the Chicago Police Department with information regarding
criminal conduct of a certain Marvin Cruz, who, he alleges has never been "properly investigated
or arrested for his criminal activities," and his association with corrupt Chicago police officers
whom he names in the complaint.

Miceli states that “throughout early 1995" he attempted to work with the Chicago police with
regards to criminal activities of [Cruz]." In October of 1995 Miceli met with defendant F.B.I.
agent Tracy Pierce and FBI Chicago police liaison George Patton, and provided them with
audiotapes of Cruz attempting to extort and threaten Miceli. Nothing was done with the tape, there
was no investigation, and Pearce later told other law enforcement agents that the tape had been
destroyed.

In December of 1995, Miceli met with defendant Sergeant Isaac of the Chicago police
internal affairs unit, Isaac told Miceli that Cruz was an informant for the Chicago police
department and had "a long history of criminal conduct with members of the Chicago Police
Department."

Miceli also states that in December of 1995 he contacted defendant Lieutenant James
Gunnery of the Chicago Police Internal Affairs unit. Miceli does not explain why he was dealing
with both Isaac and Gunnery at the same time, or whether each of them was aware of his contact
with the other. Gunnery promised that the information Miceli gave him would be kept

confidential, but Miceli alleges that it was leaked to unnamed “members of organized crime" as



or
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS p j

EASTERN DIVISION
NOY 2 1 200

CHARLES N. MICELI,

Plaintiff,
No. 02 C 5749 Sete sm
v.
Judge Paul E. Plunkett
FEDERAL BUREAU OF INVESTIGATION,
CHICAGO DIVISION, et al.,

Ne Se Sew

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Charles N. Miceli, a prisoner in the custody of the Florida Department of
Corrections, has filed a pro se civil rights complaint alleging that Chicago and federal law
enforcement officers and agencies have violated his constitutional rights. Miceli alleges that he
provided confidential information to law enforcement agencies concerning organized crime and
police corruption and was betrayed to those he had fingered. Miceli was not protected from
violence at their hands, and those whose guilt he exposed have not been investigated and
prosecuted. Miceli demands an investigation, the appointment of a special prosecutor, protection
for himself and his family, and damages.!’

Miceli’s motion for leave to proceed without prepayment of the filing fee is granted. A
separate order shall be entered directing the collection of the initial partial filing fee and installment
payments as required by 28 U.S.C. § 1915(b), part of the Prison Litigation Reform Act (PLRA).
Another portion of the PLRA, 28 U.S.C. § 1915A, requires the court to review prisoners’
complaints against governmental entities or their officers or employees and dismiss any portion of
the complaint it finds frivolous, malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief from a defendant immune from such relief. In determining whether the

complaint states a claim upon which relief may be granted, the court applies the standard employed

¥ Miceli continues to fear for his safety; shortly after this case was filed, Miceli sought an injunction requiring
state and federal officials in Florida to provide him with a higher level of protection. Because the persons presently
responsible for Miceli’s custody and safety are not defendants in this action, the court denied the motion without
prejudice to Miceli’s filing a separate suit in Florida.

j
2

“eo

so



Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Buckley v. Fitzsimmons, 20 F.3d 789,
793 (7th Cir. 1994); Bates v. Clarke, No. 97 C 8467, 1998 WL 122745 (N.D. Ill. 1998)(Zagel,
J,)("The expensive machinery of the federal court should not be set into motion in the hope that
the defendant will blunder and waive an obvious and dispositive defense").

Illinois’ two-year statute of limitations for personal injury claims, 735 ILCS 5/13-202,
governs § 1983 claims arising in Illinois. Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir.
2001); Kelly v. City of Chicago, 4 F.3d 509, 510 (7th Cir. 1993). It also applies to Bivens actions
arising in Illinois against federal officials. Delgado-Brunet v. Clark, 93 F.3d 339, 342 (7th Cir.
1996). The limitations period begins to run when the cause of action accrues, which federal
common law defines as when the plaintiff knows, or reasonably should know, that his constitutional
rights have been violated. Licari v. City of Chicago, 298 F.3d 664, 668 (7th Cir. 2002); Wilson
y. Giesen, 956 F.2d 738, 740 (7th Cir, 1992).

The attacks on Miceli took place in 1997. Because Miceli had reason to know that the
attacks were the result of information he had given to law enforcement authorities, his claims
arising from those attacks accrued at that time. The limitations period would have expired two
years later, more than three years before this suit was filed.

The bar of the statute of limitations may be avoided by the doctrines of equitable tolling and
equitable estoppel, but nothing in the complaint suggests that either would apply here. 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."
Mitchell v. Donchin, 286 F.3d 447, 451 (7th Cir. 2002)(quoting Shropshear v. Corp, Counsel of
Chicago, 275 F.3d 593, 595 (7th Cir. 2001)). The missing information must go to the existence
of the claim, not its details, ie., whether a reasonable person would be aware of the possibility
of aclaim. Mitchell, 286 F.3d at 451. Equitable tolling requires that the plaintiff have exercised

due diligence, both in seeking to discover the necessary facts and in bringing suit once he learns

12