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Phoneprasith v. Clarke

United States District Court, E.D. Wisconsin

November 28, 2017

DAVID A. CLARKE, JR., Defendant.


          J. P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         Plaintiff filed this action on July 14, 2017, complaining that certain policies at the Milwaukee County Jail (the “Jail”) violated his constitutional rights while he was held there. (Docket #1). The Court screened his Amended Complaint, the current operative pleading, on September 7, 2017, and allowed Plaintiff's lawsuit to proceed. (Docket #13). On October 16, 2017, Defendant filed a motion to dismiss the case as time-barred. (Docket #20). That motion is now fully briefed. (Response, Docket #32; Reply, Docket #34). For the reasons explained below, Defendant's motion must be granted.


         Defendant has moved to dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure (“FRCP”) 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 Atl. 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 Plaintiff'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 [his] favor[.]” Id. at 480-81. However, a complaint that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). The Court must identify allegations “that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679.

         “While complaints typically do not address affirmative defenses, the statute of limitations may be raised in a motion to dismiss if ‘the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense.'” Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009) (quoting United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005)). It is particularly appropriate to consider the statute of limitations on a motion to dismiss when “the relevant dates are set forth unambiguously in the complaint.” Id.

         3. RELEVANT FACTS

         The Court applied the FRCP 12(b)(6) standard of review to Plaintiff's pleading upon screening. It will, therefore, quote its discussion of the facts and claims from the September 7, 2017 screening order:

Plaintiff's amended complaint advances two claims. First, pursuant to [Jail] policy set by Defendant . . ., the Milwaukee County Sheriff, Plaintiff was not allowed to receive visits from his daughter, a minor child at the time. (Docket #12 at 2). Plaintiff states that the policy was enforced against him from February [2nd, ] 2008 until July [11th, ] 2011 while he was detained at the Jail. Id. Inmates have a basic right to maintain familial relations, subject to the institution's penological needs. Stojanovic v. Humphreys, 309 F. App'x 48, 50-52 (7th Cir. 2009). Plaintiff may therefore proceed on this claim as one for violation of his substantive due process rights. Id. Reading the amended complaint liberally, the Court further finds that Clarke may be sued in his personal capacity. Though not explicitly stated by Plaintiff, it is reasonable to infer from his allegations that Clarke, as the head policymaker for the Jail, is personally responsible for creating and enforcing the visitation policy. See Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 615 (7th Cir. 2002).
Plaintiff's second claim is for “denial of access to an adequate law library.” (Docket #12 at 4). He claims that the Jail's limited law library and its procedures for handling copy requests slowed his preparation and filing of legal documents. Id. at 3-5. This is in the vein of an access-to-courts claim.

(Docket #13 at 2).[1] Plaintiff was not allowed to proceed on the second claim. Id. at 2-3.

         4. ANALYSIS

         Defendant seeks to dismiss Plaintiff's sole claim, and thus this lawsuit generally, as untimely. Section 1983 does not have an internal statute of limitations. Instead, federal courts look to the “general or residual statute of limitations governing personal injury actions” as provided for by the state where the injury occurred. Gray v. Lacke,885 F.2d 399, 407 (7th Cir. 1989). In Wisconsin, the period is six years. Kennedy v. Huibregtse,831 F.3d 441, 442 (7th Cir. 2016); Wis.Stat. ยง 893.53. As noted above, Plaintiff identifies the last date of injury as ...

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