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Murray v. Litwin

United States District Court, E.D. Wisconsin

August 12, 2016

DEREK MURRAY, Plaintiff,
v.
OFFICER RICHARD LITWIN, Defendant.

          ORDER

          J.P. Stadtmueller, U.S. District Judge

         1. INTRODUCTION

         On June 21, 2016, Defendant Officer Richard Litwin (“Litwin”) filed a motion to dismiss Plaintiff Derek Murray’s (“Murray”) amended complaint. (Docket #18). Murray’s response to that motion was due on or before July 12, 2016. See Civil L. R. 7(b). On July 13, 2016, Murray filed a motion for extension of time to submit his response. (Docket #22). That motion was granted and Murray was given until August 1, 2016 to do so. (Docket #23). That order informed Murray that no further extensions of time would be granted. Id.

         On August 2, 2016, Murray filed a second motion for extension of time to submit his response. (Docket #24). He claimed that he had no access to his “legal papers” because he was in the prison’s temporary lockup. Id. It appears, however, that, based on the exhibit to Murray’s motion and information obtained from the prison by Litwin’s counsel, Murray was placed there because he assaulted another inmate. (Docket #25, #26, #27, #32). Murray contends that he was defending himself. (Docket #30 at 1-2). However, the conduct report Murray provided says nothing about which party was the aggressor, and the officer reviewing the report found him guilty of assault. (Docket #30 at 3-4; #32-1).

         The Court will not exercise its discretion to allow Murray additional time to submit a response for two reasons. First, he was told that no further extensions would be granted. Second, it appears that the delay was occasioned, at least in part, by his own (possibly criminal) behavior. Murray’s second motion for an extension of time will be denied. His response, which was filed on August 3, 2016, will not be considered. (Docket #29). The Court will, therefore, address Litwin’s motion in its unopposed form.[1]

         2. STANDARD OF REVIEW

         Litwin has moved to dismiss Murray’s amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). This rule provides for dismissal of complaints which fail to state a viable claim for relief. Fed.R.Civ.P. 12(b)(6). To state a viable claim, a complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In other words, the complaint must give “fair notice of what the…claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The allegations must “plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level[.]” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016) (citation omitted). In reviewing Murray’s complaint, the Court is required to “accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff.” Id. at 480-81.

         3. RELEVANT ALLEGATIONS

         The amended complaint alleges as follows. On October 1, 2008, Litwin shot at Murray twice and struck him once in the side. (Docket #13 at 3). The connecting shot caused Murray injuries which put him in critical condition, requiring immediate surgery. Id. at 3-4. As of today, the injured area causes Murray pain when working or engaging in physical activity. Id. at 5.

         4. ANALYSIS

         4.1 Murray’s Claims Are Time-Barred

         Throughout the progression of this case, the Court has noted its concern for the timeliness of Murray’s claims. (Docket #10 and #12). At the screening stage, the Court did not dismiss the claims on timeliness grounds because it could not “say with certainty that the limitations period has run and should not be tolled.” (Docket #15 at 3-4); see Lewis v. Stenz, 637 Fed.Appx. 943, 944 (7th Cir. 2016). Litwin has now asserted the statute of limitations as an affirmative defense. (Docket #18).

         In light of Litwin’s arguments and Murray’s failure to respond thereto, the Court finds that Murray’s claims are time-barred. Murray’s claims are subject to a six-year statute of limitations. Malone v. Corrections Corp. of Am., 553 F.3d 540, 542 (7th Cir. 2009); Gray v. Lacke, 885 F.2d 399, 409 (7th Cir. 1989) (“[W]e hold that Wisconsin’s six-year personal rights statute of limitations applies to § 1983 actions.”). Because the complained-of act occurred in October 2008, and Murray did not file this lawsuit until December 2015, it would appear that he missed the statute of limitations by over a year. See (Docket #1 and #13).

         In briefs submitted as part of the screening process, Murray contended that he is entitled to equitable tolling of the statute of limitations. See (Docket #2, #11, and #14). The Court’s inquiry could end here; Murray chose not to respond to Litwin’s motion to dismiss and raise the equitable tolling issue. Nevertheless, the Court will give Murray the benefit of treating his ...


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