United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 27, 2016*

Decided February 21, 2017

Before

WILLIAM J. BAUER, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 15-3887

ERIC LEON JOHNSON,

Plaintiff-Appellant,

v.

CITY OF SOUTH BEND, et al., 

Defendants-Appellees.

Appeal from the United States

District Court for the Northern District

of Indiana, Hammond Division.

No. 2:14-cv-249

William C. Lee,

Judge.

O R D E R

Eric Johnson, a pro se litigant, filed this suit under 42 U.S.C. § 1983 in July 2014, 

principally alleging that three times in early 2004 police officers employed by the City of 

South Bend, Indiana, entered his apartment unlawfully, searched it, and stole money 

and other property. On the third occasion, he says, the officers also damaged his car, 

destroyed electronic equipment, and arrested him without probable cause. Johnson 

named as defendants the City and the individual police officers. On their motion the 

 

* We have agreed to decide the case without oral argument because the briefs and record 

adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 15-3887 Page 2

district court dismissed the action as barred by the 2-year statute of limitations 

governing § 1983 claims arising in Indiana. See IND. CODE § 34-11-2-4; Behavioral Inst. of 

Ind., LLC v. Hobart City of Common Council, 406 F.3d 926, 929 (7th Cir. 2005). Johnson 

challenges that ruling, and on this record we agree that the district court erred.

Johnson realized that his lawsuit was long delayed, and with his complaint he 

also filed a “Motion for Statutory Exception” explaining that from October 2004 until 

September 2013 he had been receiving daily treatment for mental illness and addiction to 

heroin. The district court read this motion as asking for relief from the statute of 

limitations on the ground that Johnson had been “under a civil commitment order and 

could not file his case within the limitations period.” Attached to Johnson’s complaint

are some records from Edgewater Behavioral Health Services in Gary, Indiana. Those 

records document ongoing treatment for bipolar disorder and drug addiction but do not 

confirm that Johnson was civilly committed.

The defendants did not answer Johnson’s complaint, and they have never 

asserted that his complaint fails to state a claim for relief. (Indeed, one of the defendant 

officers has been convicted in federal court of misusing his official authority to enter and 

steal valuables from homes in South Bend, and in a civil case in federal court that same 

officer was found liable for violating the civil rights of another city resident who was 

physically assaulted and had his apartment ransacked after an unlawful entry. 

See United States v. Buford, No. 2:07cr149-003 (N.D. Ind. May 14, 2009); Longs v. City of 

South Bend, No. 3:02-CV-221RM, 2005 WL 2456904 (N.D. Ind. 2005).) Instead, the 

defendants moved to dismiss, ostensibly under Federal Rule of Civil Procedure 12(b)(6),

on the sole ground that Johnson filed his lawsuit outside the statute of limitations. After 

receiving that motion, the district court entered an order telling Johnson the following:

... In the spirit of Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982) and 

Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992), cert. denied, 504 U.S. 957, 

112 S. Ct. 2307, 119 L.Ed.2d 228 (1992), the plaintiff is hereby notified of his 

obligations to respond to the defendants’ motion to dismiss. ...

By filing a motion to dismiss, the defendants are asking to have this 

suit decided in their favor because you have either failed to present facts in 

your Complaint which would entitle you to relief or this court is without 

jurisdiction to entertain your claim. In ruling on this motion, any factual 

assertions contained in your Complaint will be assumed by the court to be 

true and you may rely solely on these allegations in defending against the 
No. 15-3887 Page 3

defendants’ motion to dismiss. However, you may choose to supplement 

your complaint by stating why the facts you have already presented to the 

court entitle you to relief under the law. Only after assuming your 

allegations are true and finding that these allegations do not state a claim 

under the law or fail to give the court jurisdiction over your claim, shall a 

dismissal be entered against you.

Johnson filed a response asserting that he had been “acting under the civil commitment 

clause and according to federal law” was “entitled to a statutory exception” from the 

statute of limitations. He also quoted a line from what appears to be a treatise on civil 

procedure: “While a plaintiff whose mental or physical impairments prevent him from 

complying with a statute of limitations may invoke equitable tolling, the doctrine is 

permitted only upon a showing that plaintiff’s medical conditions in fact prevented the 

plaintiff from satisfying the imitations requirement.” The defendants did not reply to 

this response, and neither did they nor the district court notify Johnson about the need 

for evidence to support the invocation of equitable tolling.

In granting the defendants’ motion and dismissing the action, the district court 

reasoned that Johnson’s claims had accrued in 2004 and that he did “not have much 

argument as to why he failed to sue for over 10 years.” The court did not address 

directly the possible application of equitable tolling. Instead, after noting that Johnson 

had asserted in his Motion for Statutory Exception that he had been “under a civil 

commitment order,” the court denied that motion with the explanation that, even if “a 

civil commitment would toll the statute of limitations, there is no showing that Johnson 

was under a civil commitment order.” At best, the court added, the medical records 

submitted with Johnson’s complaint establish that he “was voluntarily receiving 

treatment as an outpatient.” Johnson timely moved for reconsideration, see FED. R. CIV. P. 

59(e), relying explicitly on the doctrine of equitable tolling and clarifying that he “wasn’t 

ordered to go to Edgewater Systems” but thought instead he was “under a volunteered 

civil commitment.” His doctor had recommended Edgewater, and he went because he 

was “ill, incompetent, and drug addicted.” The district court denied this motion.

On appeal Johnson contends that the district court erred in dismissing his lawsuit 

because, he says, the doctrine of equitable tolling should have overcome the defendants’ 

reliance on the statute of limitations as an affirmative defense. The defendants 

acknowledge that Indiana’s tolling rules apply to § 1983 cases and that the state 

recognizes equitable tolling for mental incapacity. See Richards v. Mitcheff, 696 F.3d 635, 

637 (7th Cir. 2012); City of Fort Wayne v. Cameron, 370 N.E.2d 338, 341 (Ind. 1977). The 
No. 15-3887 Page 4

defendants even concede that, “[w]hen construed entirely in favor of Mr. Johnson, his 

Motion for Statutory Exception posits the tolling of the statute of limitations until at least 

September 14, 2013, the date when Mr. Johnson ceased treatment at Edgewater Systems” 

for mental illness and drug addiction. But echoing the district court, the defendants 

argue that equitable tolling based upon mental incapacity cannot apply because “there is 

no evidence that Mr. Johnson was institutionally committed to Edgewater Systems, or

that he was treated as an inpatient” at any time after his claims accrued in 2004. And 

“[m]ost fatal” to Johnson’s tolling argument, the defendants continue, “is the void of 

evidence” that Johnson was incapacitated during the limitations period.

The defendants, like the district court, cite no authority for their assumption that 

Indiana courts would refuse to apply the doctrine of equitable tolling to a plaintiff 

simply because his mental illness did not lead to a civil commitment—involuntary or 

otherwise—or require inpatient treatment. We cannot find any decision supporting this 

contention. Moreover, the district court told Johnson that his factual allegations would 

be accepted as true in ruling on the defendants’ motion to dismiss, and what Johnson 

alleged is that he was “under a civil commitment.” The district court did not take him at 

his word but instead faulted him for not offering proof.

That points to the greater flaw in the defendants’ effort to sustain the dismissal. 

The expiration of a statute of limitations is an affirmative defense. See FED. R. CIV.

P. 8(c)(1). And since plaintiffs need not anticipate affirmative defenses in a complaint, a 

motion to dismiss under Rule 12(b)(6) is not the appropriate means for defendants to 

seek dismissal based on a statute of limitations. Richards, 696 F.3d at 637. An affirmative 

defense might be capable of resolution on the pleadings, see FED. R. CIV. P. 12(c), but if a 

Rule 12 motion cannot be resolved without evidence outside the pleadings, “the motion 

must be treated as one for summary judgment under Rule 56,” see FED. R. CIV. P. 12(d).

That did not happen here.

Johnson filed his complaint long after the statute of limitations appears to have 

run, so it was his burden to establish that equitable tolling or some other theory avoids 

this defense. See Whitlock v. Steel Dynamics, Inc., 35 N.E.3d 265, 269 (Ind. Ct. App. 2015); 

Hayes v. Westminster Vill. N., Inc., 953 N.E.2d 114, 116 (Ind. Ct. App. 2011). But when a 

defendant moves for summary judgment in a case involving a pro se plaintiff, or when 

the district judge in such a case effectively converts a Rule 12 motion into one for 

summary judgment, the plaintiff must be warned in plain English about the 

consequences of not opposing the motion with admissible evidence. See N.D. IND. L.R.

56-1(f) & App. C; Jones v. Simek, 193 F.3d 485, 489 (7th Cir. 1999); Bryant v. Madigan, 91 
No. 15-3887 Page 5

F.3d 994, 995 (7th Cir. 1996); Kinkaid v. Vail, 969 F.2d 594, 599 (7th Cir. 1992); Timms v. 

Frank, 953 F.2d 281, 285 (7th Cir. 1992); Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982). 

The notice given to Johnson by the district court, despite citing Timms and Lewis, was 

inadequate because it did not inform Johnson that admissible evidence was expected to 

avoid dismissal. See Bryant, 91 F.3d at 996; Kinkaid, 969 F.2d at 599. In fact, as we 

explained recently in another case from the same judge, the notice that was given to 

Johnson directly contradicts the warning required by Timms and Lewis. See Dirig v. 

Wilson, 609 F. App’x 857, 859–60 (7th Cir. 2015) (nonprecedential decision).

In short, a pro se plaintiff “must be told ... that he cannot rest on his pleadings.”

Bryant, 91 F.3d at 995. Johnson, though, was led to believe that evidence of mental 

incapacity was unnecessary and then faulted because he did not produce any. And while 

his long delay in filing suit suggests that his theory of equitable tolling will be difficult to 

establish, Johnson did not receive a fair opportunity to produce relevant evidence. The 

district court thus erred in granting the defendants’ motion to dismiss.

Accordingly, the judgment of the district court is VACATED, and the case is 

REMANDED for further proceedings.