United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
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.
STANDARD OF REVIEW
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).
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.
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.
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). Plaintiff was not allowed to proceed on
the second claim. Id. at 2-3.
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. § 893.53. As noted above,
Plaintiff identifies the last date of injury as ...