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Date: 03-14-2019

Case Style:

Paul Regains v. City of Chicago

Case Number: 15-2444

Judge: Pepper

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney:

Defendant's Attorney:

Description:




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The Illinois Sex Offender Registration
Act (SORA) requires sex offenders to register with the police.
Because he did not have a permanent address (he was
homeless), Paul Regains followed the instructions of officers
* Of the Eastern District of Wisconsin, sitting by designation.
2 No. 15‐2444
who directed him to a local homeless shelter (which they
listed on his registration as his permanent address), and to return
for re‐registration in ninety days. When he appeared to
report three months later, Chicago police officers arrested Regains
on an “investigative alert,” because other officers had
not been able to locate Regains at the address provided. Regains
remained in custody seventeen months before the Illinois
trial court found him not guilty of failing to a report a
change of address.
Regains sued the City of Chicago under 42 U.S.C. § 1983,
claiming that it violated his rights under the Due Process
Clause of the Fourteenth Amendment. The district court dismissed
the case under Federal Rule of Civil Procedure
12(b)(6), finding that either the claim was time‐barred under
Illinois’ two‐year statute of limitations for personal injury
claims, or that it was barred by this court’s decision in Newsome
v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001), abrogated by
Manual v. City of Joliet, 137 S. Ct. 911 (2017) (“Manuel I”). The
district court also found that the amended complaint lacked
sufficient factual details to give the City fair notice, and that
because Regains did not specifically identify a particular constitutional
violation, the City could not be held liable under
Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 692 (1978).
We reverse the district court’s decision that Regains’ claim
was time‐barred, and remand for further proceedings.
I. Background
In 2012, SORA required sex offenders to register in person
within three days of establishing a residence or a temporary
domicile in any county. 730 ILCS § 150/3(b) (2012). Sex offenders
in the City of Chicago registered “at the Chicago Police
No. 15‐2444 3
Department Headquarters.” 730 ILCS § 150/3(a)(1). The law
required sex offenders without a fixed address or temporary
domicile to report weekly to the chief of police in the municipality
in which that person was located. 730 ILCS § 150/3.
The plaintiff asserts that SORA required “persons with a
fixed abode” to report every ninety days, citing 730 ILCS
§ 150/6. Appellant’s Br. at 2. In fact, that section of the statute
required a person who had been adjudicated to be sexually
dangerous or was a sexually violent person to report every
ninety days (and required such offenders to report weekly if
they did not have a fixed residence). “Any other person” required
to register under the statute was required to report
once a year. The record does not indicate whether Regains,
had he had a fixed residence, would have been subject to the
ninety‐day reporting interval or the one‐year reporting interval.
Either way, the law required homeless sex offenders to
report more frequently than sex offenders with fixed residences.
Failure to comply with the provisions of the statute
constituted a felony, for which there was strict liability. 730
ILCS § 150/10(a); People v. Molnar, 857 N.E.2d 209, 224 (Ill.
2006).
By 2012, the Chicago police officers assigned to sex offender
registration/reporting duty felt that the weekly reporting
requirement for homeless sex offenders had become burdensome.
Some of those police officers engaged in a widespread
practice of steering homeless sex offenders to homeless
shelters that would accept sex offenders, and directing
the sex offenders to return with documentation showing the
shelter as the sex offender’s residence. This scheme had the
effect of providing homeless sex offenders with a “residence,”
which meant that they were not subject to the weekly
4 No. 15‐2444
reporting requirement. The officers who engaged in this steering
practice, and their supervisors, were aware that the number
of persons registered at the shelters far exceeded the shelter’s
capacity. In other words, they knew that the homeless
sex offenders who listed the shelter as their “address” likely
would not be able to remain there.
Other Chicago police officers assigned to registration duties
disagreed with the steering practice. These other officers
visited homeless shelters that accepted sex offender registrants
and attempted to locate the registrant; if they could not
locate the registrant at the shelter, the officers would prepare
an investigative alert, informing any Chicago police officer
who encountered the registrant that there was probable cause
for arrest.
Regains alleges that in April 2012, Chicago police officers
employed the steering practice when he attempted to register
as a homeless sex offender. He asserts that they directed him
to a shelter, registered him as residing at that shelter, and instructed
him to return for quarterly reporting and re‐registration
in July 2012.
In early May 2012, two Chicago police officers went to the
shelter to look for Regains. They did not find him, and they
prepared a report for failure to register at that address. The
next day, a Chicago police detective reviewed the report, visited
the shelter without finding Regains, and issued an investigative
alert informing other Chicago police officers that
there was probable cause to arrest Regains.
On July 18, 2012, Regains reported as directed; Chicago
police officers arrested him under the investigative alert. The
prosecutor charged Regains with two violations of 730 ILCS
No. 15‐2444 5
§ 150/6—failure to register within three days after changing
his address, and failure to report every ninety days. On September
4, 2012, Cook County Judge Thomas V. Gainer arraigned
Regains and ordered him detained. Regains remained
in custody until his December 3, 2012 trial—some seventeen
months—at which time the judge found him not
guilty.1
Regains filed his original § 1983 complaint in federal court
on December 3, 2014.
II. Discussion
We review de novo a district court’s grant of a Rule 12(b)(6)
motion to dismiss. Volling v. Kurtz Paramedic Servs., Inc., 840
F.3d 378, 382 (7th Cir. 2016) (citation omitted). “In construing
the complaint, we accept all well‐pleaded facts as true and
draw reasonable inferences in the plaintiffsʹ favor.” Id. We
may affirm on any ground that the record supports, as long
as the district court adequately addressed that ground and the
non‐moving party had the opportunity to contest it. Thayer v.
Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012) (citation omitted).
Regains argues that he was deprived of his liberty for seventeen
months without due process of law, as a result of “the
widespread practice within the Chicago police department towards
homeless sex offenders.” Appellant’s Br. at 6. He asserts
that the City violated his Fourteenth Amendment due
1 The transcript of Regains’ trial indicates that he registered on April 17,
2012. App. to Appellee’s Br. at A27. He appeared at the police station on
July 18, 2012, id. at A30, ninety‐two days after the date he last registered,
id. at A37. The trial judge stated that he could not tell from looking at the
report date Regains had been given whether he was to report on July 16
or July 18, 2012, and made a finding that Regains was not guilty. Id. at A37.
6 No. 15‐2444
process rights by engaging in conduct “in the nature of malicious
prosecution.” He has taken pains to avoid giving his
personal injury claim a specific label. The district court found
that if Regains’ claim sounded in false arrest, it was timebarred,
and that if it sounded in malicious prosecution, it was
barred for other reasons.
Regains sued under a federal statute—42 U.S.C. § 1983—
but we look to the law of the state in which the personal injury
occurred to determine the length of the statute of limitations.
Wallace v. Kato, 549 U.S. 384, 387 (2007); Serino v. Hensley, 735
F.3d 588, 590 (7th Cir. 2013). Under Illinois law, a plaintiff
must bring a personal injury action within two years after its
accrual. Wallace, 549 U.S. at 387 (citing 735 ILCS § 5/13‐202
(West 2003)).
The question of when the cause of action accrues “is a
question of federal law that is not resolved by reference to
state law.” Wallace, 549 U.S. at 388 (emphasis in the original).
Federal common law holds that a cause of action accrues
when “the plaintiff has a ‘complete and present cause of action’”—
in other words, when “the plaintiff can file suit and
obtain relief.” Id. (quoting Bay Area Laundry and Dry Cleaning
Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201
(1997)). Put another way, a personal injury claim raised under
§ 1983 accrues “when the plaintiff knows or has reason to
know of the injury which is the basis of his action.” Serino, 735
F.3d at 591. Because there is “no single accrual rule for all
§ 1983 claims,” we must “use the rule that applies to the common‐
law cause of action most similar to the kind of claim the
plaintiff asserts.” Devbrow v. Kalu, 705 F.3d 765, 767 (7th Cir.
2013).
No. 15‐2444 7
At the time of briefing and oral argument, there was a debatable
question as to whether Regains’ claim was timebarred.
His assertion that he should not have been arrested
and charged sounded like a claim for false arrest, or false imprisonment.
His assertion that he was detained for seventeen
months while awaiting trial on a charge that was unfounded
sounded like a malicious prosecution claim. The accrual rule
for false arrest/false imprisonment claims is different from the
accrual rule for malicious prosecution claims. A claim for false
arrest or false imprisonment accrues once the plaintiff is detained
(or released) as a result of a lawful process. Wallace, 549
U.S. at 390‐391. A cause of action for malicious prosecution
“does not accrue until the criminal proceedings have terminated
in the plaintiff’s favor.” Heck v. Humphrey, 512 U.S. 477,
48 (1994).
When he appealed, that difference was critical for Regains.
He was arraigned and detained by lawful process on September
4, 2012; under the false arrest/false imprisonment accrual
rule, he would have had to file his § 1983 complaint by September
4, 2014. He did not file the complaint until December
3, 2014, three months later. In contrast, under the malicious
prosecution accrual rule, Regains’ claim would have accrued
on December 3, 2012—the date he was acquitted. Regains filed
his § 1983 complaint exactly two years after that date. If his
claims properly fell into the false arrest/false imprisonment
realm, his claim would have been time barred; if it fell into the
malicious prosecution realm, it would have been timely.
After oral argument, this court resolved the timing question.
In Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018)
(“Manuel II”), petition for cert. filed, (U.S. Feb. 22, 2019) (No. 18‐
1093), we held that a claim that a plaintiff was detained
8 No. 15‐2444
without probable cause “accrues when the detention ends.”2
Regains concedes that the officers who arrested him had probable
cause to believe that he violated SORA, but he has consistently
argued that he seeks damages because he was “deprived
of liberty without due process of law when he was
held at the Cook County Jail until he was acquitted.” Appellant’s
Br. at 13. Applying the principle of Manuel II to Regains’
argument that his seventeen‐month detention for a crime that
he was misled into committing was unconstitutional, we conclude
that his claim accrued when he was released on December
3, 2012, and that his claim was timely filed.
This conclusion does not necessarily mandate remand,
however, because the district court stated other bases for dismissing
the case. The court also found that Regains’ amended
complaint failed to identify specific conduct on the City’s part
that formed the basis for Regains’ claim that it violated his
rights under the Fourteenth Amendment. Regains named
only the City as a defendant; he did not sue individual officers.
The amended complaint was terse—six of its twenty paragraphs
described how and why officers steered homeless sex
offenders to shelters. The complaint then alleged that when
Regains tried to register, officers steered him to a shelter, registered
him at that shelter and required him to come back for
2 The Supreme Court has accepted certiorari in McDonough v. Smith, 2019
WL 166879 (No. 18‐485). The petition presents the following question:
“Whether the statute of limitations for a Section 1983 claim based on fabrication
of evidence in criminal proceedings begins to run when those proceedings
terminate in the defendant’s favor (as the majority of circuits has
held) or whether it begins to run when the defendant becomes aware of
the tainted evidence and its improper use (as the Second Circuit held below).”
Petition for Writ of Certiorari, McDounough 2018 WL 5026294 (No.
18‐845). The Court will hear argument on April 17, 2019.
No. 15‐2444 9
re‐registration in three months. It alleged the facts surrounding
Regains’ arrest and charging, and alleged that he stayed
in custody until his trial and acquittal. The penultimate paragraph
stated, “As a result of the foregoing, plaintiff was deprived
of rights secured by the Fourteenth Amendments to
the Constitution of the United States and incurred damages.”
The amended complaint does not link specific conduct to
Regains’ assertion that his due process rights were violated.
Other than identifying the City as an Illinois municipal corporation,
it does not describe any conduct by the City. It describes
the actions of the officers who steered Regains to the
shelter, the actions of the officers who issued the investigative
alert and the actions of the officers who arrested him, but does
not say which—if any—of these actions constitute conduct by
the City that violated his due process rights. It says he “was
charged” with a felony, and “remained” in custody until his
acquittal, but does not attribute to the City or anyone else responsibility
for the charges or his detention. It does not allege
that police department officials with policy‐making authority
knew about these practices and allowed them to continue.
A plaintiff may remedy a deficient complaint by amending
it, but the district court also questioned whether Regains
could state a claim against the City at all. In brief comments
at the end of its decision, the court noted that a municipality
such as the City is subject to liability under § 1983 only if an
official municipal policy caused the violation of the plaintiff’s
constitutional rights, citing Monell, 436 U.S. at 692. The court
stated that in the absence of a constitutional violation, the City
could not be held liable. Regains has not addressed the Monell
question in his appellate briefs.
10 No. 15‐2444
Because Regains has chosen to sue only the City, he must
state a claim that the denial of his liberty for seventeen months
was the result of the implementation or execution of “a policy
statement, ordinance, regulation, or decision officially
adopted and promulgated by [the municipality’s] officers,” or
a “governmental ‘custom’ … .” Monell, 436 U.S. at 690. Allegations
that the City is liable “on a respondeat superior theory”
will not suffice. Id. at 691.
Before this court, Regains has alleged that there was a
“widespread practice within the police department of the City
of Chicago to manipulate the registration process to force
homeless sex offenders into violations of the Monitoring Act.”
Appellant’s Brief at 6. He asserts that “[t]his practice was ‘so
widespread and well‐settled that it constitutes a custom or usage
with the force of law even though it is not authorized by
written law or express policy.’” Appellant’s Reply Brief at 2,
quoting Rossi v. City of Chicago, 790 F.3d 729, 737 (7th Cir.
2015). Regains has presented no evidence to support these allegations;
he never got the chance, because the district court
dismissed the case at the pleading stage. Other plaintiffs have
had the opportunity to present such evidence.
In Beley v. City of Chicago, a class composed of “[a]ll persons
who attempted to register under the Illinois Sex Offender
Registration Act with the City of Chicago from December 6,
2010 to the date of entry of judgment and who were not permitted
to register because they were homeless” alleged that
the City had violated, among other provisions, the due process
clause. Beley v. City of Chicago, Case No. 12‐cv‐9714, 2017
WL 77096, at *1 (N.D. Ill., Feb. 28, 2017), aff’d 901 F.3d 823 (7th
Cir. 2018). The district court granted summary judgment in
favor of the City on the due process claim. The court stated
No. 15‐2444 11
that its ruling turned on “one dispositive issue: whether Plaintiffs
present sufficient evidence of a ‘policy’ or ‘custom’ on the
part of Defendant to support municipal liability.” Id. at *6.
Viewing the evidence the plaintiffs had presented in the light
most favorable to them, the court found that they “fail[ed] to
raise a genuine issue of fact with respect to whether [Criminal
Registration Section] personnel acted pursuant to an official
policy or practice regarding the registration of homeless sex
offenders.” Id. at *8. The court found that, at best, the plaintiffs
had proven that on ten occasions, individual officers may
have engaged in unconstitutional behavior. Id. Although the
plaintiffs appear to have presented a substantial amount of
evidence in Beley, the court concluded that “the evidence does
not present a triable issue of fact regarding whether there was
a policy or widespread practice of denying SORA registration
to sex offenders who lacked a fixed address at the time of registration.”
Id. at *10. “At most, Plaintiffs have shown ‘occasional
lapses of judgment’ or ‘individual misconduct by police
officers,’ not ‘systemic problems’ or ‘institutional behavior.’”
Id., quoting Rossi 790 F.3d at 737. The plaintiffs appealed;
we affirmed on other grounds. Beley 901 F.3d at 826 (affirming
on the ground that the ability to register under SORA is not a
cognizable liberty interest).
Another district court reached the same conclusion in a
case involving individual plaintiffs. See Derfus v. City of Chicago,
Case No. 13 C 7298, 2015 WL 1592558 (N.D. Ill., April 6,
2015). In granting summary judgment in favor of the City, the
Derfus court concluded:
The fact that the City registered more offenders
as not having a fixed residence or temporary
domicile in two random time periods in 2014
12 No. 15‐2444
than in two random time periods in prior years
does not suggest that the City had a policy of
refusing to register offenders with that status.
Nor does the fact that it refused over a threeyear
period to register six offenders as “homeless,”
a term that does not appear in SORA and
that is commonly used to refer to a much
broader segment of people than those deemed
by SORA to be lacking a fixed residence or temporary
domicile.
Id. at *4.
These cases raise doubts about whether Regains could
amend his complaint to allege a widespread policy or practice,
or marshal proof the proof at summary judgment that the
Beley and Derfus plaintiffs could not. Even if he can allege that
a practice existed and that it was widespread enough to constitute
a custom, Monell requires more. Regains’ arguments
and the very fact of his arrest and detention show that not all
officers followed the practice. He describes a schism between
registering officers who followed the steering practice and
those who did not. To state a Monell claim, Regains will need
to show that high‐ranking members of the Chicago Police Department
knew of the differing practices and allowed them to
continue. This may be a tall order, but we cannot conclude
that allowing Regains to try would be an exercise in futility.
A final point: on appeal, Regains consistently has characterized
his claim as a violation of his Fourteenth Amendment
due process rights. At the time he filed the appeal, that was
his only option; our decision in Newsome, 256 F.3d at 750, precluded
the argument that pretrial detention that occurred after
the start of the judicial process violated the Fourth
No. 15‐2444 13
Amendment. Manuel I since has abrogated Newsome, holding
that “the Fourth Amendment governs a claim for unlawful
pretrial detention even beyond the start of legal process.” 137
U.S. at 920. In the post‐Manuel I/Manuel II world, “the Fourth
Amendment, not the Due Process Clause, is the source of the
right in a § 1983 claim for unlawful pretrial detention,
whether before or after the initiation of formal legal process.”
Lewis v. City of Chicago, 914 F.3d 472, 479 (7th Cir. Jan. 23,
2019).

Outcome: Because Regains timely filed his complaint, we reverse the
district court’s dismissal of the complaint and remand for further
proceedings consistent with this decision.

Plaintiff's Experts:

Defendant's Experts:

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