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Hewitt v. Nygen

United States District Court, E.D. Wisconsin

May 7, 2018

CORY ALLEN HEWITT, Plaintiff,
v.
SUSAN NYGEN, et al. Defendants.

          DECISION AND ORDER

          LYNN ADELMAN District Judge.

         Cory Hewitt was in the custody of the Wisconsin Department of Corrections until about March 2010. After his release, he commenced this action against a number of individuals who were responsible for his medical care while he was in prison. He alleges that he contracted MRSA (Methicillin-resistant Staphylococcus aureus) from his cellmate and that the defendants did not properly diagnose and treat him. He seeks damages, under 42 U.S.C. § 1983, for the pain he experienced while he suffered from the condition. Before me now is the defendants' motion for summary judgment.[1]

         I. FACTS

         The plaintiff alleges that, in September 2007, his cellmate was diagnosed with MRSA. He alleges that defendant Lisa Baker, a nurse at Racine Correctional Institution, failed to quarantine his cellmate. The plaintiff believes that he was exposed to MRSA by his cellmate and became infected. The plaintiff alleges that the infection caused a painful area in his left armpit. As far as the record in this case reveals, the plaintiff was never diagnosed with MRSA. However, it seems to be undisputed that the plaintiff had some form of infection in his left armpit, for which he received treatment while he was in prison.

         The plaintiff alleges that he suffered from the armpit infection until March 2010. (Am. Compl. at p. 9.) He alleges that, between November 2007 and March 2010, the defendants failed to properly treat his infection, and that their improper treatment rose to the level of deliberate indifference, in violation of the Eighth Amendment.

         In 2010, the plaintiff filed a civil action in state court in Dane County, Wisconsin, based on the same events as the present case. He alleged in that suit that he did not receive proper medical care for his armpit infection. Many of the defendants in this case were also defendants in the Dane County case. On October 7, 2011, the trial court granted the defendants' motion for summary judgment, finding, among other things, that the defendants were not deliberately indifferent to the plaintiff's medical condition. The plaintiff appealed, but the Wisconsin Court of Appeals affirmed. The plaintiff sought review by the Wisconsin Supreme Court, but his petition for review was denied.

         The plaintiff filed his complaint in federal court on November 4, 2016. He re-alleges the same claims for deliberate indifference that he alleged in the Dane County action and adds a new claim for denial of access to the courts. This, however, is not a traditional claim for denial of access to the courts, for the plaintiff does not allege that prison officials prevented him from filing documents with the court or otherwise hindered his access to the courts while he was in prison. Rather, the plaintiff alleges that the defendants generated false evidence that the Dane County court relied on when granting their motion for summary judgment. Although the plaintiff's allegations on this point are unclear, he seems to be alleging that the defendants generated false lab reports showing that he did not have MRSA. (Am. Compl. at p. 10, ¶ 5.)

         The defendants move for summary judgment. They argue that the plaintiff's deliberate-indifference claims are barred by both the statute of limitations and claim preclusion (also known as res judicata). They also argue that the plaintiff's allegations concerning the lab reports are baseless.

         II. DISCUSSION

         Summary judgment is required where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When considering a motion for summary judgment, I take evidence in the light most favorable to the non-moving party and must grant the motion if no reasonable juror could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986).

         A. Deliberate Indifference

         The defendants argue that the plaintiff's deliberate-indifference claims are barred by the statute of limitations and claim preclusion. I begin with the statute of limitations. Federal courts adjudicating claims under 42 U.S.C. § 1983 borrow the applicable state- law statute of limitations governing personal-injury suits. Malone v. Corr. Corp. of Am., 553 F.3d 540, 542 (7th Cir. 2009). Here, Wisconsin law applies, and the relevant limitations period is six years. Id. at 542.

         The plaintiff's deliberate-indifference claims are based on injuries sustained between September 2007 and March 2010. (Am. Compl. at p. 9.) The claims thus accrued no later than March 31, 2010. But the plaintiff did not commence this suit until November 4, 2016, more than six years later. Still, the plaintiff filed the Dane County action in 2010, and that case was pending for about three years. Under Wisconsin law, the limitations period for a claim is tolled for the time in which an action concerning that very claim is pending. See Wis. Stat. § 893.13. If we subtract the three years in which the Dane County action was pending from the limitations period, the present suit would be timely. But it would be timely only as to the defendants who were actually defendants in the Dane County suit. This is so because the plaintiff did not “commence” an action against the individuals who were not defendants in the Dane County action, see Wis. Stat. § 893.02, and thus he could not use the tolling statute to save his claims against those defendants.

         Comparing the amended complaint in this case to the complaint filed in Dane County (which is in the record at ECF No. 26-2, beginning on ECF page 11), I find that the defendants in the present case who were not also defendants in the Dane County case are the following: Linda Karaszewski, the defendant identified only as “Scherricks, ” Ms. Demars, Jean Carlson, Diane Swiers, and the defendants identified as John or Jane Does. The plaintiff's ...


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