United States District Court, W.D. Wisconsin
MICHAEL L. WINSTON, Plaintiff,
PAMELA H., LORI YOKEY, JOHNSON 1, JOHNSON 2, and REGINGSER, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
plaintiff Michael L. Winston is a prisoner in the custody of
the Wisconsin Department of Corrections (DOC), currently
housed at the Columbia Correctional Institution (CCI).
Winston has filed a complaint alleging that during his time
at Lincoln Hills School for Boys, a DOC juvenile corrections
facility, several staff members physically and sexually
abused him. These events date back to 1995. The court
determined that Winston qualifies for in forma
pauperis status, and Winston paid the initial partial
filing fee set by the court. Dkt. 6.
next step is for the court to screen the complaint and
dismiss any portion that is legally frivolous, malicious,
fails to state a claim upon which relief can be granted, or
asks for money damages from a defendant who by law cannot be
sued for money damages. 28 U.S.C. §§ 1915, 1915A.
When screening a pro se litigant's complaint, the court
construes the allegations liberally and in the
plaintiff's favor. McGowan v. Hulick, 612 F.3d
636, 640 (7th Cir. 2010). Because Winston's claims are
untimely, I will order him to show cause as to why I should
not dismiss his case.
allegations concern events that occurred during his
confinement at the Lincoln Hills School for Boys years ago;
Winston's claims date back to 1995. Winston alleges that
during his time at Lincoln Hills, defendants Johnson (1),
Johnson (2), and Regingser, three male guards at the
facility, physically abused him. They beat him, kicked him,
and sprayed him with riot gas. On one occasion, they strapped
Winston to his bed, turned his radio on full volume, and left
him there for hours. They tampered with his food. Winston
also alleges that defendants Pamela H. and Lori Yokey, female
staff members, sexually abused him between 1995 and 1997.
states that he is mentally ill and that since his time at
Lincoln Hills, his “life has been in complete
disarray.” Dkt. 1, at 4. Winston sustained severe
psychological damage as a result of his time at Lincoln
Hills, and the abuse exacerbated his mental illness. Winston
states that “[t]he recent news regarding the current
abuses being investigated at LHS has caused flashbacks and
with Winston demonstrating extreme hostilities at guards here
at CCI.” Id.
alleges that defendants physically and sexually abused him
for years, in violation of the Eighth and Fourteenth
Amendments. But even if Winston has adequately pleaded
constitutional violations, he has a timing problem: the
alleged abuse occurred about 20 years ago.
district court must dismiss a suit at screening if it is
frivolous, see 28 U.S.C. § 1915(e)(2), and in
doing so may rely on an affirmative defense that is apparent
and unmistakable from the complaint's face.”
Briggs-Muhammad v. SSM Healthcare Corp., 567
F.App'x 464 (7th Cir. 2014) (citing Gleash v.
Yuswak, 308 F.3d 758, 760-61 (7th Cir. 2002)). Here, it
is readily apparent from Winston's complaint that the
alleged offenses occurred between 1995 and 1997, which
immediately prompts me to consider the applicable statute of
U.S.C. § 1983 does not have a limitations period.
Instead, “to determine the proper statute of
limitations for § 1983 actions, a federal court must
adopt the forum state's statute of limitations for
personal injury claims.” Ashafa v. City of
Chicago, 146 F.3d 459, 461 (7th Cir. 1998) (citing
Wilson v. Garcia, 471 U.S. 261, 276 (1985)).
Accordingly, I apply Wisconsin's six-year statute of
limitations for personal rights claims. Wis.Stat. §
893.53; see also Gray v. Lacke, 885 F.2d 399, 409
(7th Cir. 1989). Winston filed his complaint on September 6,
2016; for his claims to be timely, they must have accrued-in
other words, the statute of limitations must have started
running-no earlier than September 6, 2010.
Wisconsin's limitation period applies, federal law
governs when Winston's claims accrued. Kelly v. City
of Chicago, 4 F.3d 509, 511 (7th Cir. 1993) (citing
Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir.
1992)). A § 1983 claim accrues “when the plaintiff
has ‘a complete and present cause of action, ' that
is, when ‘the plaintiff can file suit and obtain
relief[.]'” Wallace v. Kato, 549 U.S. 384,
388 (2007) (quoting Bay Area Laundry and Dry Cleaning
Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192,
201 (1997)). Here, Winston's claims for physical and
sexual abuse appear to have accrued immediately after the
assaults occurred, approximately 20 years ago. As a result,
his claims appear to be time barred. And the fact that
Winston was a minor when defendants abused him does not
extend the time to bring an action nearly long enough to
allow Winston 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.]”).
Winston alleges that he is now 33 years old, so his claims
became untimely approximately 13 years ago, when he turned
his claims, Winston will need to explain how his complaint is
timely. It appears that Winston's only option is to make
a case for equitable tolling. “Equitable tolling
permits a plaintiff to avoid the bar of the statute of
limitations if despite the exercise of all due diligence he
is unable to obtain vital information bearing on the
existence of his claim.” Shropshear v. Corp.
Counsel of City of Chi., 275 F.3d 593, 595 (7th Cir.
2001). In the context of § 1983 claims, “the
state, rather than the federal, doctrine of equitable tolling
governs[.]” Id. at 596. Although Wisconsin
case law on equitable tolling is very sparse, it is clear
that, as in Shropshear, tolling is available only
when the plaintiff's failure to meet a filing deadline is
out of the plaintiff's control or occurred despite the
plaintiff's due diligence. See, e.g., State
ex rel. Griffin v. Smith, 2004 WI 36, ¶ 38, 270
Wis.2d 235, 677 N.W.2d 259 (“[p]rovided that the
petitioners timely pursue relief, ” time limit for
filing writ of certiorari is equitably tolled where counsel
promises to file writ but fails to do so); State ex rel.
Nichols v. Litscher, 2001 WI 119, 247 Wis.2d 1013, 635
N.W.2d 292 (30-day deadline for petition for review tolled on
date pro se prisoner delivers correctly addressed petition to
proper prison authorities for mailing). See also Coleman
v. Messman, No. 13-cv-566, 2014 WL 4678264, at *3 (W.D.
Wis. Sept. 18, 2014). I will allow Winston the opportunity to
demonstrate why I should allow his claims to proceed.
IT IS ORDERED that:
Plaintiff Michael L. Winston may have until November 17,
2016, to show cause as to why the court should ...