United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge
plaintiff, who is currently serving a state prison sentence
at Stanley Correctional Institution and is representing
himself, filed a complaint under 42 U.S.C. § 1983,
alleging that his civil rights were violated. On February 9,
2018, the court granted Plaintiff's motion for leave to
proceed without prepayment of the full filing fee. The court
also screened Plaintiff's complaint pursuant to 28 U.S.C.
§ 1915A(a). The court found Plaintiff's complaint to
be untimely, but granted Plaintiff leave to amend his
complaint to show that it was timely. This matter comes
before the court for screening of Plaintiff's amended
complaint pursuant to 28 U.S.C. § 1915A(a).
of the Amended Complaint
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
complaint must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The court accepts
the factual allegations as true and liberally construes them
in the plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013). Nevertheless, the
complaint's allegations “must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
of the Complaint
alleges that in June of 2004, he was sexually assaulted twice
by Defendant. Plaintiff was sixteen at the time of the
assault and Defendant was a cook at the Ethan Allen School,
where Plaintiff was confined. Plaintiff did not report the
assault for fear of being viewed as a homosexual and
suffering gang violence. On January 3, 2011, Plaintiff filed
an Inmate Complaint about the incident, which was denied as
moot because it had already been investigated internally and
externally. He appealed the decision, which was affirmed for
mootness. On January 10, 2014, Plaintiff inquired as to
whether he had exhausted his administrative remedies and on
January 24, 2014, he was informed that he had. However,
Plaintiff waited until January 17, 2018, to file this claim
under 42 U.S.C. § 1983 claim, which was nearly fourteen
years after the events, twelve years after he turned 18 years
old, and over seven years after acknowledging that he may
have a claim by filing his inmate complaint.
amended complaint must be dismissed because it is facially
untimely and Plaintiff has offered no basis for equitable
tolling. Plaintiff's amended complaint is substantively
identical to his original complaint. Plaintiff also includes
a brief in support of his ability to bring forth a claim.
Rather than establish or argue for equitable tolling,
Plaintiff alleges that his ability to bring a claim is
governed by Wisconsin Statute § 893.587, which allows
child victims of sexual assault the ability to bring a
Wisconsin tort suit until the age of thirty-five. Therefore,
because he is not yet thirty-five, Plaintiff asserts that his
claims are timely.
Wisconsin Statute § 893.587 provides the statute of
limitations for bringing a claim in Wisconsin state courts;
it does not provide the statute of limitations for bringing
suit in federal court. Plaintiff has alleged a violation of
his constitutional rights pursuant to 42 U.S.C. § 1983
and, as explained in the court's first screening order,
§ 1983 claims are subject to a six-year statute of
limitations in Wisconsin. Gray v. Lacke, 885 F.2d
399, 407 (7th Cir. 1989). The Supreme Court has explained
that for § 1983 claims a federal court must apply the
general statute of limitation that governs all personal
injury actions within that state, regardless of the type of
§ 1983 claim and regardless of the other statutes of
limitations that a state may provide. Id. (citing
Wilson v. Garcia, 471 U.S. 261 (1985)); see
generally Owens v. Okure, 488 U.S. 235, 244 n. 8, 245
(1989) (noting that Wis.Stat. § 893.587 is one of
Wisconsin's multiple intentional tort statutes of
limitation and explaining that although many states have
multiple statutes of limitations, most states have only one
general statute of limitations governing personal injury
actions, and explaining that applying the general statute of
limitations would lessen confusion as to which statute of
limitations was applicable). Thus, the statute of limitations
for Plaintiff's federal § 1983 claim was six years
and his claim cannot be saved by Wisconsin Statute §
893.587. See, e.g., Winston v. Pamela H.,
No. 16-cv-610-jdp, 2016 U.S. Dist. LEXIS 153191, at *2 (W.D.
Wis. Nov. 4, 2016) (holding that Wis.Stat. § 893.587
does not alter the six year statute of limitations for §
1983 claims in Wisconsin); Rodriguez v. Wineski, No.
05-C-059-S, 2005 WL 1587974, at *2 (W.D. Wis. July 6, 2005)
(applying the six-year statute of limitations).
Plaintiff's claims arose fourteen years ago and Plaintiff
has asserted no basis for equitable estoppel. Because of
this, Plaintiff's claims must be dismissed as untimely.
correctly notes that untimeliness is typically an affirmative
defense and, therefore, defendant bares the burden of raising
it. However, a “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, 464 (7th Cir.
2014). The untimeliness of Plaintiff's complaint is
apparent from its face, and thus his complaint is frivolous
and must be dismissed. See 28 U.S.C. §
1915(e)(2). In deeming Plaintiff's complaint frivolous,
the court is not declaring the merits of Plaintiff's
allegations to be frivolous, because Plaintiff's
allegations are very serious. Rather, the court is only
declaring that Plaintiff's federal complaint is legally
frivolous because it is barred by the statute of limitations.
As noted by Plaintiff, he is entitled to bring a claim under
Wisconsin Statute § 893.587 until he turns thirty-five;
however, those claims must be brought in state court, not
IS FURTHER ORDERED that this action is
DISMISSED pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1) as frivolous.
IS FURTHER ORDERED that the Clerk of Court document
that this inmate has incurred a "strike" under 28
IS FURTHER ORDERED that the Clerk of Court enter