United States District Court, W.D. Wisconsin
ROBERT L. COLLINS BEY, Plaintiff,
GARY H. HAMBLIN, MICHAEL MEISNER, TIM DOUMA, JANEL NICKEL, TONEY ASHWORTH, CAPTAIN TRATTELS, CAPTAIN D. MORGAN, R. TETZLAFF, AND MARY LEISER, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
Robert L. Collins Bey, appearing pro se, is an inmate at the
Wisconsin Secure Program Facility. He has filed this civil
lawsuit under 42 U.S.C. § 1983, alleging that prison
officials violated his constitutional right to due process in
a conduct-report proceeding that led to him being placed in
segregation for a year. The court has already ruled that
Collins Bey may proceed without any prepayment of the filing
screening the complaint, I will address a preliminary matter.
Collins Bey has filed a letter asking the clerk of court
whether the court allows parties to consent to a magistrate
judge hearing cases, and if it does, for the court to send
him consent forms to fill out in this case and another
pending case, no. 17-cv-293-jdp. Dkt. 10. There is no need
for the court to go through the process of sending Collins
Bey consent forms because I will construe his letter as his
notice consenting to the magistrate judge.
28 U.S.C. § 636(c)(1), the district court may refer a
case to a magistrate judge when all parties agree to do so.
The defendants have not yet been served, but it is likely
that the Wisconsin Department of Justice would accept service
over all of the defendants, and the DOJ has already agreed to
consent to Magistrate Judge Crocker in this court's
prisoner cases. But even if defendants consented, the court
retains discretion to retain jurisdiction over a case even
when both sides consent to a magistrate judge's
jurisdiction. I see no reason to transfer the case to
Magistrate Judge Crocker, and one significant reason to keep
the case: Collins Bey is already in the process of litigating
another case before me, no. 13-cv-618. There is no reason to
split his cases among the judges of this district, so I will
deny his request to have the magistrate judge hear the case.
next step is for me to screen Collins Bey'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 Collins Bey's pro se complaint
generously. See Haines v. Kerner, 404 U.S. 519, 521
(1972) (per curiam).
Bey alleges that he was given a conduct report in which he
was charged with battery of his cellmate. He contends that
there were numerous procedural problems with the
conduct-report proceedings, such as not being given enough
time to prepare, not being allowed to have his witnesses
attend the hearing, and being convicted on insufficient
Bey's allegations might state claims against some of the
officials involved in his conduct-report proceedings, but
there is a fatal flaw with the bulk of his claims: the
conduct report-proceedings, including his appeal of the
conviction, concluded in September 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 Cir. 2002).
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)). The relevant statute of limitations here is six
years. See Wis. Stat. § 893.53 (six-year limit
for “Action for injury to character or other
rights”); Malone v. Corr. Corp. of Am., 553
F.3d 540, 542 (7th Cir. 2009) (federal courts generally apply
Wisconsin's six-year limitations period to § 1983
claims). Collins Bey's complaint is dated October 11,
2017. For his claims to be timely, they must have accrued-in
other words, the statute of limitations must have started
running-no earlier than October 11, 2011.
Wisconsin's limitation period applies, federal law
governs when Collins Bey'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)). Collins Bey's due process claims appear to
have accrued when the alleged violations occurred in his
conduct-report proceedings. Therefore, all of his claims
directly about constitutional violations within the
conduct-report proceedings appear to be time barred.
these due process claims, Collins Bey 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) (equitable tolling did not apply to
plaintiff alleging sexual abuse at Lincoln Hills 20 years
before filing lawsuit). I will give Collins Bey a chance to
respond to this order, explaining whether equitable tolling
applies to his conduct-report claims, or whether there is
some other reason to reconsider the discussion above
regarding the statute of limitations.
Bey has also filed a motion asking for the court to appoint
him counsel. Dkt. 6. I will deny his motion for now.
Litigants in civil cases do not have a constitutional right
to counsel, and I do not have the authority to appoint
counsel to represent a pro se plaintiff in a civil matter.
Rather, I can only assist in recruiting counsel who may be
willing to serve voluntarily. See 28 U.S.C. §
1915(e)(1); Pruitt v. Mote, 503 F.3d 647, 654, 656
(7th Cir. 2007) (en banc). To prove that assistance in
recruiting counsel is necessary, this court generally
requires that a pro se plaintiff: (1) provide the names and
addresses of at least three lawyers who have declined to
represent him in this case; and (2) demonstrate that his is
one of those relatively few cases in which it appears from
the record that the legal and factual difficulty of the case
exceeds his demonstrated ability to prosecute it.
Id. at 655; see also Young v. Cramer, No.
13-cv-077, 2013 WL 5504480, at *2 (W.D. Wis. Oct. 3, 2013).
Collins Bey says that three law firms have turned him down.
That is sufficient to meet this part of the test.
second requirement for assistance in recruiting counsel
requires a plaintiff to demonstrate that the legal and
factual difficulty of the case exceeds his ability to
prosecute it. It is too early to tell whether the case will
be too complex for Collins Bey to handle. He states that he
suffers from mental illness that will prevent him from
litigating the case. I allowed his court-recruited attorneys
to withdraw in the '618 case after he sexually harassed
them, so I am not inclined to recruit counsel for him unless
it is absolutely necessary. Given his coherent submissions in
this and his other cases, and the relatively straightforward
nature of his due process claims here, ...