### In the



# United States Court of Appeals

For the Seventh Circuit

No. 16

‐ 2109

J OHNNIE W ATKINS

, as Guardian of the

Estate of Johnnice Ford, a disabled

person,

Plaintiff

‐ Appellant

,

v.

U NITED S TATES OF A MERICA

, Defendant

‐ Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:15

‐ cv

‐ 08350

— Ronald A. Guzmán

, Judge.

A RGUED J ANUARY 6, 2017

— D ECIDED A PRIL 27, 2017

Before W OOD

, Chief Judge

, and B AUER and R OVNER

, Circuit

Judges

.

R OVNER

, Circuit Judge. This appeal is from the district

court’s dismissal, on statute of limitations grounds, of a

medical malpractice claim. The plaintiff, Johnnie Watkins, filed2 No. 16

‐ 2109

the action on behalf of her adult daughter Johnnice Ford, who

is a disabled person. The complaint alleged that Ford sought

treatment at the emergency room of Ingalls Memorial Hospital,

where she was treated by Dr. Bari Parks

‐ Ballard, an employee

of Family Christian Health Center. She asserts that Parks

‐

Ballard failed to properly diagnose and treat Ford, who was

eventually diagnosed with Wernicke’s encephalopathy and

who sustained neurological injuries including permanent

disability. Because Family Christian Health Center operated

pursuant to grant money from the Public Health Services, an

agency of the United States government, the action was

brought pursuant to the Federal Tort Claims Act (FTCA) and

the United States is the defendant. The district court dismissed

the action as filed beyond the relevant statute of limitations,

and the plaintiff appeals that determination. On appeal, the

plaintiff argues that the court erred in taking judicial notice of

Ford’s prior lawsuit and dismissing the case based on the

statute of limitations without allowing her to establish that

Ford suffered from a mental disability. We agree with the

reasoning of the district court and affirm.

As the district court recognized, the FTCA constitutes a

limited waiver of the United States’ sovereign immunity,

which allows individuals to pursue actions against the federal

government for “personal injury or death caused by the

negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or

employment.” 28 U.S.C. § 2675(a); Warram v. United States

,

427 F.3d 1048, 1049 (7th Cir. 2005). The applicable FTCA statute

of limitations bars any such claim not presented in writing to

the appropriate agency within two years of the claim’s accrual.No. 16

‐ 2109 3

Under the savings clause, that time period can be extended as

long as the plaintiff filed a civil suit concerning the underlying

tort claim within two years of its accrual and presented that

case to the appropriate federal agency within 60 days of the

civil suit’s dismissal.

In assessing the timeliness of the 2015 action, we must first

identify when the claim accrued, because the limitations period

begins to run at that time. In United States v. Kubrick

, 444 U.S.

111, 118 (1979), the Supreme Court held that a cause of action

for purposes of the limitations period accrues when the

claimant knows, or would reasonably be expected to know, of

the existence of her injury and who caused it, whether or not

the claimant is aware that there was negligence or a wrongful

act involved. See also Blanche v. United States

, 811 F.3d 953, 958

(7th Cir. 2016). In Barnhart v. United States

, 884 F.2d 298, 299

(7th Cir. 1989), we addressed a claim that the injury itself

impaired the ability of the plaintiff to understand and pursue

her claim, and we considered that such incapacity could toll

the accrual date; we held that the proper focus in determining

when the claim accrued under the discovery rule in such cases

remains on the claimant’s awareness or ability to discover and

comprehend the cause of her injuries. In Blanche we further

noted that the plaintiff need not know that her injury was

caused by a doctor; “the accrual date is when the plaintiff has

enough information to suspect, or a reasonable person would

suspect, that the injury ‘had a doctor

‐ related cause.’” 811 F.3d

at 958, quoting Arroyo v. United States

, 656 F.3d 663, 672

‐ 73 (7th

Cir. 2011).

In determining that the claim accrued as of August 2010,

the district court took judicial notice of a state court medical4 No. 16

‐ 2109

malpractice claim filed in August 2010 by Ford against Ingalls

Memorial Hospital, Dr. Parks

‐ Ballard, and Family Christian

Health Center. See Ennenga v. Starns

, 677 F.3d 766, 773 (7th Cir.

2012) (noting that in considering a motion to dismiss, courts

may take judicial notice of facts readily ascertainable from the

public court record such as the dates on which certain actions

were taken). The district court noted that the August 2010

complaint contained virtually the same allegations as those in

this case regarding the failure to timely diagnose and treat her

encephalopathy. Ford voluntarily dismissed that complaint

within a month after its filing, but its relevance is in its reflec

‐

tion of Ford’s awareness that those defendants caused her

injuries.

Because the complaint reflects an awareness that her

injuries were caused by the defendant (through its agents), at

a minimum the claim accrued as of August 2010. Pursuant to

the limitations provision applicable to FTCA claims, Ford

could proceed with her claim against the United States only if

she (1) presented her claim to the appropriate agency within

two years of the date of the claim’s accrual; or (2) filed a civil

suit within 2 years from that date of accrual and presented that

case to the appropriate federal agency within 60 days of the

civil suit’s dismissal. See 28 U.S.C. § 2679(d)(5); Blanche

,

811 F.3d at 957

‐ 58. The plaintiff failed to satisfy either of those

alternate avenues. The claim was not presented to the adminis

‐

trative agency until January 19, 2015, which was approximately

4

‐ 1/2 years after the date the claim accrued. Nor was the claim

presented to the appropriate agency within 60 days from the

dismissal of a civil suit that was filed within 2 years from the

date of accrual. No claim was submitted to the agency withinNo. 16

‐ 2109 5

60 days of the dismissal of the August 2010 action, and no

other civil suit was filed within 2 years of the claim’s accrual,

which was August 2010 at the latest. On that basis, the district

court granted the defendant’s motion to dismiss the complaint.

Watkins raises a number of challenges to that reasoning.

First, Watkins argues that the district court improperly failed

to credit her allegations that Ford suffered from a mental

disability since September 2008. Watkins alleged in the

complaint that Ford “has been disabled since September 10,

2008, when she was diagnosed with Wernicke’s encepha

‐ lopathy,” and that Ford “has been unable to manage her

person, and estate and unable to recognize the cause of her

action due to her diagnosis of Wernicke’s encephalopathy.”

Plaintiff’s First Amended Complaint § 6. The complaint further

provided that Watkins brought the cause of action as Ford’s

legal guardian “due to Johnnice Ford’s inability to make

medical, legal, and financial decisions for herself.” Id. at § 7.

Watkins asserts that the district court failed to consider those

allegations as true, as required in addressing a Rule 12(b)(6)

motion, and that if it had done so, it would have necessarily

concluded that Ford’s mental disability prevented her from

recognizing the “doctor

‐ related cause of her injuries.”

But the district court properly took judicial notice of the

state court complaint filed by Ford’s counsel in August 2010,

which contained the same essential allegations as the present

suit. We need not speculate as to whether the alleged mental

disability impacted Ford’s ability to recognize the cause of her

injuries, because the 2010 lawsuit establishes that Ford was

actually aware of the cause of her injuries. Watkins argues,

however, that the court erred in taking judicial notice of that6 No. 16

‐ 2109

2010 complaint, alleging that the filing of the complaint

establishes only two facts—that Ford’s name appears in the

caption and that the complaint was filed on a certain date. She

asserts that the record is devoid of evidence that Ford had any

awareness of its filing. That bare allegation, without more, is

insufficient to render the 2010 complaint irrelevant to these

proceedings. Watkins provides nothing more than mere

speculation that the complaint was filed without Ford’s

awareness. She includes no argument as to how the attorney

who filed the complaint would be aware of the injuries to Ford

and the circumstances which caused those injuries without

Ford’s participation and awareness. Moreover, she never

alleges that she has, or could provide, evidence calling into

question the legitimacy of the complaint, such as affidavit

evidence from the attorney who filed it indicating that he or

she communicated with someone other than Ford, or evidence

that the attorney engaged in such unethical behavior in other

such cases by purporting to bring a cause of action on behalf of

a person without that person’s knowledge or consent. Al

‐ though the appeal is here on a motion to dismiss, the com

‐ plaint and the public court record establish that Ford was

aware of the injury and its cause, and in fact was pursuing

legal action on such claims, as of August 2010. To survive

dismissal, Watkins must allege some non

‐ speculative basis to

dispute that conclusion. Absent a claim that there is a plausi

‐

ble, good

‐ faith basis to challenge the legitimacy of the August

2010 complaint, the court is entitled to take judicial notice that

the complaint was filed by Ford in 2010 which contained the

same essential allegations as the complaint before us now.No. 16

‐ 2109 7

Moreover, although the complaint alleges that Ford has

been disabled since September 10, 2008, when she was diag

‐

nosed with Wernicke’s encephalopathy, and has been unable

to manage her person and estate and to recognize the cause of

her action due to that diagnosis, there is no allegation that any

guardian was appointed for Ford until Watkins was named her

guardian on January 14, 2015. Accordingly, the 2010 complaint

with Ford as plaintiff cannot be attacked on the basis that Ford

legally could act only through a guardian.

Watkins questions whether the district court considered the

statements of Ford’s physicians and case workers regarding

her brain damage, such as a statement in 2008 by her physician

that she was unable to attend to her financial affairs since she

was unresponsive for unknown reasons and that he could not

predict when she would be able to attend to her personal

affairs. Although in November 2008, a case manager issued a

report indicating that due to Watkins’ cognitive limitations and

physical impairments, she was unable to care for her children,

and Watkins was appointed as guardian for those children, no

guardian was appointed for Ford and nothing indicated a total

inability to understand her own circumstances or to appreciate

the cause of her injuries. As we concluded earlier, however, we

need not assess whether the allegations of Ford’s disability

would have been sufficient to permit an inference that Ford

was unable to recognize the cause of her injuries, because the

allegations in the complaint filed in 2010 establish that at least

as of that date she in fact possessed such knowledge. Contrary

to Watkins’ argument to this court, the court in taking judicial

notice of that 2010 complaint did not take notice of the validity

of the substance of the allegations within it, but rather took8 No. 16

‐ 2109

notice only of the existence and timing of those allegations.

Whether the allegations are valid or not, the court can take

notice of their presence in the complaint, and that presence

demonstrates Ford’s awareness of those potential allegations

at that time. Because the cause of action accrued at least as of

that date, the complaint in this case was not filed within the

limitations period. As we uphold the dismissal on that ground,

we need not consider the defendant’s alternative argument

that dismissal would also be proper under Illinois’ statute of

repose. See Augutis v. United States

, 732 F.3d 749 (7th Cir. 2013).

Accordingly, the decision of the district court is

AFFIRMED.