United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
Shayd Charles Mitchell, appearing pro se, is a prisoner
currently housed at the Redgranite Correctional Institution.
He has filed this civil lawsuit under 42 U.S.C. § 1983,
alleging that a member of the Lincoln Hills School staff
sexually assaulted him several times during his time as a
detainee there. Mitchell seeks leave to proceed in forma
pauperis and he has made an initial partial payment of
the filing fee as previously directed by the court.
next step is for me to screen Mitchell's complaint and
dismiss any portion that is legally frivolous, malicious,
fails to state a claim upon which relief may be granted, or
asks for monetary damages from a defendant who by law cannot
be sued for money damages. 28 U.S.C. §§ 1915 and
1915A. I must read Mitchell's pro se complaint
generously. See Haines v. Kerner, 404 U.S. 519, 521
(1972) (per curiam). With these principles in mind, I
conclude that Mitchell has waited too long to bring his
claims, so they are likely barred by the applicable statute
of limitations. But I will give him a chance to explain why I
should not dismiss the case as time barred.
Shayd Charles Mitchell was detained at the Lincoln Hills
School, in Irma, Wisconsin, from December 2004 to May 2006,
February to June 2007, and December 2009 to February
2011. During his detention, defendant Bruce
Meyers, a staff member holding the position “Youth
Counsel 3, ” raped him several times, starting in 2005.
As Mitchell grew older and more capable of resisting, Meyers
put sedatives in his bedtime snacks to make it easier to
assault him. On one occasion, Mitchell woke to find Meyers
raping him. Meyers hit him so hard that he again lost
names numerous of Meyers's supervisors, high-level DOC
staff, and state of Wisconsin officials as defendants, saying
that they either knew or should have known that Meyers was
dangerous and that the conditions at Lincoln Hills were
and 2018, Mitchell reported the sexual assaults to Department
of Corrections officials, but they either ignored him,
delayed in responding to him, or told others not to cooperate
with him. Ultimately, the internal investigation was closed
because the Lincoln County Sheriff was conducting his own
allegations are very serious and would state claims against
Meyers and those who knew about sexual abuse at Lincoln Hills
and did nothing to stop it. But there is a fatal flaw with
his allegations: it is clear that the sexual assaults
occurred between 2005 and 2011, which immediately prompts me
to consider the applicable statute of limitations. A
statute-of-limitations defense is an affirmative defense, but
a district court may dismiss a complaint if a party pleads
enough information to show that the complaint is untimely.
United States v. Lewis, 411 F.3d 838, 842 (7th Cir.
2005); Gleash v. Yuswak, 308 F.3d 758, 760-61 (7th
1983 does not have a limitations period. Instead, “to
determine the proper statute of limitations for § 1983
actions, a federal court must adopt the forum state's
statute of limitations for personal injury claims.”
Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th
Cir. 1998) (citing Wilson v. Garcia, 471 U.S. 261,
276 (1985)). This is so even where a state has a longer
limitations period for sexual-assault-of-a-child claims.
See Woods v. Illinois Dept of Children & Family
Servs., 710 F.3d 762, 766-68 (7th Cir. 2013).
Accordingly, I must apply Wisconsin's six-year statute of
limitations for personal rights claims, Wis.Stat. §
893.53, not its significantly more generous statute for
persons who are sexually abused as children, §
893.587. Mitchell filed his complaint in April
2018. For his claims to be timely, they must have accrued-in
other words, the statute of limitations must have started
running-no earlier than April 2012.
Wisconsin's limitation period applies, federal law
governs when Mitchell's claims accrued. Kelly v. City
of Chicago, 4 F.3d 509, 511 (7th Cir. 1993) (citing
Wilson v. Giesen, 956 F.2d 738, 740 (7th Cir.
1992)). A § 1983 claim accrues “when the plaintiff
has ‘a complete and present cause of action, ' that
is, when ‘the plaintiff can file suit and obtain
relief[.]'” Wallace v. Kato, 549 U.S. 384,
388 (2007) (quoting Bay Area Laundry and Dry Cleaning
Pension Tr. Fund v. Ferbar Corp. of Cal, 522 U.S. 192,
201 (1997)). Mitchell's claims for sexual and physical
abuse appear to have accrued immediately after the assaults
occurred. Although Mitchell does not pinpoint the exact date
of the last sexual assault, he says he left Lincoln Hills in
February 2011. Therefore, those claims appear to be time
includes allegations about DOC staff ignoring or stonewalling
his requests for a speedy investigation in 2017 or 2018,
which are within the statute of limitations. But those
allegations do not support constitutional claims in their own
right. Meyers's alleged misconduct had already ended by
the time these DOC officials failed to properly investigate
the allegations, so he cannot bring a claim under a theory
that they failed to protect him from harm. And the alleged
mishandling or denial of grievances “by persons who
otherwise did not cause or participate in the underlying
conduct states no claim.” Owens v. Hinsley,
635 F.3d 950, 953 (7th Cir. 2011). A defendant who
“rul[es] against a prisoner on an administrative
complaint does not cause or contribute to the violation. A
guard who stands and watches while another guard beats a
prisoner violates the Constitution; a guard who rejects an
administrative complaint about a completed act of misconduct
does not.” George v. Smith, 507 F.3d 605,
609-10 (7th Cir. 2007).
his claims regarding sexual and physical assault, Mitchell
will need to explain how his complaint is timely. Unless he
can show that any of the factual premises in this opinion
regarding the timeline of events are incorrect, his only
option is to make a case for equitable tolling.
tolling permits a plaintiff to avoid the bar of the statute
of limitations if despite the exercise of all due diligence
he is unable to obtain vital information bearing on the
existence of his claim.” Shropshear v. Corp.
Counsel of City of Chi.,275 F.3d 593, 595 (7th Cir.
2001). In the context of § 1983 claims, “the
state, rather than the federal, doctrine of equitable tolling
governs[.]” Id. at 596. Although Wisconsin
case law on equitable tolling is sparse, it is clear that, as
in Shropshear, tolling is available only when the
plaintiff's failure to meet a filing deadline is out of
the plaintiff's control or occurred despite the
plaintiff's due diligence. See, e.g., State ex rel.
Griffin v. Smith,2004 WI 36, ¶ 38, 270 Wis.2d 235,
677 N.W.2d 259 (“[p]rovided that the petitioners timely
pursue relief, ” time limit for filing writ of
certiorari is equitably tolled where counsel promises to file
writ but fails to do so); State ex rel. Nichols v.
Litscher,2001 WI 119, 247 Wis.2d 1013, 635 N.W.2d 292
(30-day deadline for petition for review tolled on date pro
se prisoner delivers correctly addressed petition to proper
prison authorities for mailing); see also Winston v.
Pamela H., No. 16-cv-610-jdp, 2016 WL 6808181, at *2
(W.D. Wis. Nov. 17, 2016) ...