United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
Damien Rudebush, a patient confined at the Sand Ridge Secure
Treatment Center pursuant to Wis.Stat. Chapter 980, has filed
a proposed civil complaint and amended complaint in which he
brings state law claims against his adoptive mother for
physically and mentally abusing him from 1983 to 1995. I will
consider the amended complaint as the operative complaint for
at this point I would screen plaintiff's amended
complaint and dismiss any portion that is legally frivolous,
malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by
law cannot be sued for money damages. 28 U.S.C. § 1915.
But because plaintiff has not alleged sufficient plausible
facts for me to determine whether I have subject matter
jurisdiction over the case, I will direct plaintiff to file a
supplement to his amended complaint that establishes
diversity of the parties. I will also have plaintiff address
likely statue of limitations problems with his complaint.
alleges that defendant adopted him when he was two years old.
For the next 12 years (1983 to 1995), defendant abused
plaintiff physically and mentally in many ways, including by
“[w]ater-board[ing] the Plaintiff underneath the
bathtub faucet, ” locking him in a small dog cage,
tying him up and locking him in a basement room, verbally
abusing him, and sending plaintiff to group homes, where he
was sexually assaulted.
wants to bring claims for assault, battery, false
imprisonment, intentional infliction of emotional distress,
slander, and negligence. But these causes of action are state
law torts that may be brought in this federal court only if
certain requirements are met. “Federal courts are
courts of limited jurisdiction.” Int'l Union of
Operating Eng'rs, Local 150 v. Ward, 563 F.3d 276,
280 (7th Cir. 2009) (citation omitted). Plaintiff may not
bring these state law claims in this court unless he
establishes complete diversity of citizenship among the
parties and an amount in controversy exceeding $75, 000.
See Smart v. Local 702 Int'l Bhd. of Elec.
Workers, 562 F.3d 798, 802 (7th Cir. 2009). The
jurisdictional issue is one that I must raise on my own
initiative because federal courts “have an independent
obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any
party.” Arbaugh v. Y&H Corp., 546 U.S.
500, 514 (2006).
seeks $25 million in compensatory damages and $25 million in
punitive damages, which seem unlikely to be fully recoverable
against defendant. But his allegations, if true, easily
support more than $75, 000 in damages. The problem for
plaintiff is that he does not properly allege diversity of
alleges that he “lives in” Wisconsin and
defendant “lives in” Nebraska, which is not
enough to establish diversity of citizenship for purposes of
exercising jurisdiction under 28 U.S.C. § 1332.
“In federal law citizenship means domicile, not
residence. . . . [W]hen the parties allege residence but not
citizenship, the only proper step is to dismiss the
litigation for want of jurisdiction.” Am.'s
Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d
1072, 1074 (7th Cir. 1992). But instead of dismissing the
case, I will allow plaintiff to supplement his complaint with
allegations of the parties' citizenship.
individual's citizenship is determined by his or her
“domicile, ” which is the place where the
individual intends to remain, whereas residency may be
temporary. Dakuras v. Edwards, 312 F.3d 256, 258
(7th Cir. 2002). In particular, plaintiff is not necessarily
a Wisconsin citizen just because he is confined here.
Cf. Sullivan v. Freeman, 944 F.2d 334, 337
(7th Cir. 1991) (“[S]ince domicile is a voluntary
status, a forcible change in a person's . . . residence
does not alter his domicile; hence, the domicile of [a]
prisoner before he was imprisoned is presumed to remain his
domicile while he is in prison.”). If plaintiff fails
to submit new allegations of the parties' citizenship, I
will dismiss this case for lack of subject matter
will direct plaintiff to address the statutes of limitations
on his claims. A statute of limitations defense is an
affirmative defense, but a district court may dismiss a
complaint if a party pleads enough information to show that
the complaint is untimely. United States v. Lewis,
411 F.3d 838, 842 (7th Cir. 2005); Gleash v. Yuswak,
308 F.3d 758, 760-61 (7th Cir. 2002). According to
plaintiff's allegations, defendant's abuse took place
between 1983 and 1995. None of the statutes of limitations
that appear to apply to plaintiff's claims allow him to
bring claim 20 years after the events that occurred.
See Wis. Stat. §§ 893.53 (six-year limit
for “Action for injury to character or other
rights”; .54 (three-year limit for “Injury to the
person”); and .57 (three-year limit for
“Intentional torts”). Plaintiff's status as a
minor when the abuse occurs does not extend the time to bring
an action nearly long enough to allow plaintiff to bring his
claims now. See Wis. Stat. § 893.16 (“If
a person entitled to bring an action is, at the time the
cause of action accrues, either under the age of 18 years . .
. the action may be commenced within 2 years after [the
person reaches 18.]”
direct plaintiff to submit a brief to the court explaining
why he believes that the case should not be dismissed for
violating the statutes of limitations that apply to his
ORDERED that plaintiff Damien Rudebush may have until October
5, 2016, to submit:
a supplement to his amended complaint containing good faith
allegations sufficient to establish complete diversity of
citizenship for purposes of determining subject matter
jurisdiction under 28 U.S.C. § 1332; and
a brief explaining why he believes that the case should not
be dismissed for violating the statutes of ...