Larry Warren v. Robert Vazquez

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 5, 2023 *
Decided March 7, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-2017
LARRY WARREN,
Plaintiff-Appellant,
v.
ROBERT VAZQUEZ,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:20-cv-02201-SEB-TAB
Sarah Evans Barker,
Judge.
O R D E R
Larry Warren, an Indiana prisoner, sued Deputy Robert Vazquez under 42 U.S.C.
§ 1983 alleging that over two years earlier, Vazquez violated his Eighth Amendment
rights by confining him in an unventilated, crowded, and overheated van. The district
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not aid the court. See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 21-2017 Page 2
judge dismissed the complaint as time-barred. Because Warren sued after the expiration
of the applicable two-year limitations period, we affirm.
On August 13, 2018, Deputy Vazquez drove Warren from prison to a hearing.
Along the way, Vazquez stopped for 30 minutes to pick up another prisoner. Warren
alleges that during this stop, he and other prisoners were “shackled” inside an
“extremely tight small space” in a van “with no proper ventilation[] and [a]
malfunctioning A/C unit on a particularly warm day” of the summer. Warren could not
breathe and told Vazquez that he needed air, but Vazquez did nothing.
One day before the second-year anniversary of this incident, on August 12, 2020,
Warren tried to sue Vazquez by amending his complaint in a different suit—about his
healthcare at the Marion County Jail—to add his claim against Vazquez. See Warren v.
Marion Cnty. Sheriff’s Dep’t, No. 1:19-cv-04575-RLY-MPB (S.D. Ind. Aug. 17, 2020) (The
complaint was file-stamped August 17, but the district judge applied the prison mailbox
rule to the complaint and treated it as filed on August 12.). A week later, the judge in
that case (Judge Young) rejected the proposed amended complaint. Citing Rule 15(a)(2)
of the Federal Rules of Civil Procedure, Judge Young explained that he would not grant
leave to file it because the defendants had not consented to its filing and it raised a
claim against a new defendant about matters unrelated to Warren’s healthcare at the
jail.
Warren responded with a new suit. He filed it on August 19, 2020, the day after
Judge Young’s dismissal and six days after the two-year anniversary of the van
incident. (The complaint was file-stamped August 21, but the judge—Judge Barker,
who also applied the prison mailbox rule—treated the date of filing as August 19.)
Warren alleged that Deputy Vazquez had violated his Eighth Amendment rights by
confining him inside a hot, crowded, and unventilated van. Vazquez moved to dismiss
under Rule 12(b)(6), arguing that Warren’s claim was untimely. Judge Barker agreed,
ruling that Warren filed his suit after the applicable two-year statute of limitations had
run. See Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012); IND. C ODE § 34-11-2-4.
Warren sought reconsideration, arguing that the judge had applied the wrong
limitations period and proposing different theories of liability. The judge denied
reconsideration.
On appeal Warren contends that his suit is timely, but we disagree. Suits brought
under § 1983 borrow the statute of limitations of a state’s personal-injury law.
Shropshear v. Corp. Counsel, 275 F.3d 593, 594 (7th Cir. 2001). In Indiana that period is
two years. § 34-11-2-4. Warren moved for leave to amend his complaint in the case

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No. 21-2017 Page 3
before Judge Young one day before the expiration of this two-year period. Because
Warren attached the proposed amended complaint to his motion, the limitations period
for the new claim was tolled while the motion was pending with the court. Moore v.
Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993). But the tolling effect was wiped away when
Judge Young denied the motion to amend. See Lee v. Cook County, 635 F.3d 969, 971–72
(7th Cir. 2011). Thus, by the time Warren had filed the separate suit that led to this
appeal, it was untimely by six days.
Warren responds that he is entitled to equitable tolling of the six days. In cases
under § 1983, state law also governs the principles of equitable tolling. Shropshear,
275 F.3d at 596. Indiana permits equitable tolling and authorizes a court to toll a statute
of limitations for plaintiffs “who, because of disability, irremediable lack of information,
or other circumstances beyond [their] control just cannot reasonably be expected to sue
in time.” Behav. Inst. of Ind., LLC v. Hobart City of Common Council, 406 F.3d 926, 932 (7th
Cir. 2005) (quotation marks omitted). In the allegations of his present complaint,
Warren was not required to anticipate the limitations defense and respond to it. See
O’Gorman v. City of Chicago, 777 F.3d 885, 888–89 (7th Cir. 2015). But to qualify for
equitable tolling, Warren must establish grounds for it—i.e., a disability, lack of
information, or other circumstance beyond his control that prevented him from timely
suing. He has not done so. No factor beyond his control made it unreasonable to expect
him to sue in time. Rather, it was unreasonable for him to try to add the “overheated
van” claim against Vazquez to his earlier suit, which involved different defendants and
raised wholly unrelated claims about jail healthcare.
We have considered Warren’s other arguments, but none has merit.
AFFIRMED

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