United States District Court, W.D. Wisconsin
ANTHONY M. LEE, Plaintiff,
HEATH PARSHALL, STEVE HELGESON, JOHN DOE I and JANE DOE II, Defendants.
OPINION AND ORDER
D. PETERSON District Judge.
plaintiff Anthony Lee is proceeding on two claims: (1)
defendant Heath Parshall, a police officer for the La Crosse
Police Department, used excessive force against him in August
2012, in violation of the Fourth Amendment; and (2) defendant
Parshall and an unknown jail staff member or members failed
to provide adequate medical care to plaintiff for the
injuries he sustained related to the use of force, in
violation of the Fourth Amendment. In addition, plaintiff is
proceeding against Steve Helgeson, the sheriff for La Crosse
County, for the purpose of learning the identities of the
unknown defendant or defendants. The case is now stayed while
the court searches for counsel willing to represent
plaintiff. Dkt. #36.
the stay, both sides have filed new documents in the case
that are unrelated to the recruitment of counsel and without
asking the court to lift the stay. First, defendant Heath
Parshall has filed a motion under Fed.R.Civ.P. 12(b)(6) to
dismiss for failure to state a claim upon which relief may be
granted on the ground that plaintiff's claims are
untimely. Dkt. #46. For his part, plaintiff has filed a
letter in which he says that unnamed prison staff are
threatening him and he asks the court to “call and
talk” to him about the situation. Dkt. #50. I will
overlook both side's failure to request a lift of the
stay because it is clear that neither side is entitled to
relief, for the reasons explained below.
Defendants' Motion to Dismiss
Ratzel v. Marinette County, 694 F.Supp. 606, 607
(E.D. Wis. 1988), defendant Parshall contends that the
statute of limitations for a claim such as plaintiff's
brought under the federal civil rights statute, 42 U.S.C.
§ 1983, is three years and that plaintiff's claim is
untimely because he filed his complaint four years after the
events described in his complaint. Although defendant
Parshall is correct that plaintiff alleges that defendants
violated his rights in 2012, defendant is wrong about the
relevant limitations period. It is now well established in
this circuit that the statute of limitations for a §
1983 claim brought in Wisconsin is six years, not
three, so plaintiff's complaint is timely. Malone v.
Corrections Corp. of America, 553 F.3d 540, 542 (7th
Cir. 2009); Conyers v. Abitz, 416 F.3d 580, 583 (7th
Cir. 2005); Wudtke v. Davel, 128 F.3d 1057, 1061
(7th Cir. 1997); Gray v. Lacke, 885 F.2d 399, 407-08
(7th Cir. 1989). In fact, the court of appeals recently
corrected a similar mistake made by another lawyer.
Kennedy v. Huibregtse, 831 F.3d 441, 442 (7th Cir.
2016) (“[T]he statute of limitations for section 1983
claims in Wisconsin is six years, not three.”).
was decided before the court of appeals resolved the issue in
Gray, which explains the inconsistency. In any
event, in light of the many decisions of the court of appeals
on this issue, Ratzel is no longer good law.
Accordingly, I am denying defendant Parshall's motion to
dismiss. I am sure that the experienced counsel representing
defendant Parshall will take greater care in the future to
research their motions before filing them.
asks the court to call him because unnamed staff at the Green
Bay Correctional Institution are threatening to harm him. I
cannot grant plaintiff's request for two reasons.
ethical rules prohibit a judge from having private
communication with only one litigant under most
circumstances. Drobny v. C.I.R., 113 F.3d 670, 680
(7th Cir. 1997). Even if I construe plaintiff's letter as
requesting an evidentiary hearing in which both sides would
be allowed to participate, I could not grant plaintiff's
request. A federal court may not issue orders to prison
officials on matters that are unrelated to the claims in the
case that the plaintiff filed. Neuroscience, Inc. v.
Forrest, No. 12-cv-813-bbc, 2013 WL 6331348, at *1 (W.D.
Wis. Dec. 5, 2013) (“Because a preliminary injunction
is intended to preserve the status quo until the court has an
opportunity to reach the merits, ‘a party moving for a
preliminary injunction must necessarily establish a
relationship between the injury claimed in the party's
motion and the conduct asserted in the
complaint.'”) (quoting Devose v.
Herrington, 42 F.3d 470, 471 (8th Cir. 1994)). See
also Dudgeon v. Fiorello, 06-C-563-C, 2007 WL 5517460
(W.D. Wis. Jan. 31, 2007) (denying motion for preliminary
injunction because it raised issues outside scope of
complaint); Williams v. Nelson, 04-C-774-C, 2005 WL
840358 (W.D. Wis. Apr. 1, 2005) (same). Plaintiff's
claims in this case are about events that occurred in La
Crosse, Wisconsin at the time he was arrested. They have
nothing to do with the Green Bay Correctional Institution.
Further, plaintiff is not alleging that staff members are
threatening him because he filed this lawsuit, so
there is no connection between this lawsuit and the alleged
threat. If plaintiff believes that officials at the Green Bay
prison are violating his rights, he will have to file a new
lawsuit about that issue.
Defendant Heath Parshall's motion to dismiss, ...