United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
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.
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).
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.
STANDARD OF REVIEW
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.
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.
Murray’s Claims Are Time-Barred
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).
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).
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 ...