United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN District Judge.
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
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.
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.
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.
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.)
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
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).
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.
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.
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