United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
16, 2018, Kenyatta Sobeasr Clincy (“Clincy”)
filed a pro se complaint against various defendants
alleging that his civil rights were violated during the
investigation of a state law crime for which Clincy was
ultimately convicted. (Docket #1). On August 30, 2018, the
Court issued a screening order allowing Clincy to proceed
in forma pauperis on his claims arising from the
alleged Fourth Amendment violations committed by defendants
Grant I. Huebner (“Huebner”), Gust Petropoulos
(“Petropoulos”), and Daniel P. Thompson
(“Thompson”). (Docket #9). On September 12,
2018, Huebner filed a motion to dismiss the claims against
him, asserting various defenses including that the action is
barred by the statute of limitations and that he is protected
by various forms of immunity. (Docket #13). Under Civil Local
Rule 7, Clincy's opposition was due on October 3, 2018,
but his opposition, which is dated October 11, 2018, was not
received by the Court until October 19, 2018. (Docket #17).
The Court granted Huebner's motion to dismiss as
unopposed on October 16, 2018, and dismissed Huebner from the
action. (Docket #16). On November 1, 2018, Clincy filed a
motion for reconsideration of Huebner's dismissal.
(Docket #19). In his motion, Clincy explains that he was
confused about the length of time he had to respond to the
motion to dismiss, as compared to the length of time to
respond to a motion for summary judgment. Id. at 2;
see also Civ. L.R. 56(b)(2) (allowing 30 days to
respond to a motion for summary judgment); Civ. L.R. 7(b)
(setting forth the general rule allowing 21 days for
responses to motions).
Rule of Civil Procedure 60 governs motions for relief from a
judgment or order. Under this rule, the Court may relieve a
party from an order if it determines there was
“mistake, inadvertence, surprise, or excusable neglect,
” or for “any other reason that justifies
relief.” Fed.R.Civ.P. 60(b)(1), (6). In this case, it
is clear that Clincy, a pro se litigant, was
mistaken as to the deadline for submitting an opposition to
the motion to dismiss. The Court finds this to be excusable
neglect and good cause to reconsider its order dismissing
Huebner's motion to dismiss as unopposed. (Docket #16).
However, for the reasons discussed below, Clincy's
opposition does not change the outcome of the Court's
prior order. Defendant Huebner will remain dismissed from the
may move to dismiss a complaint if it fails to state a viable
claim for relief. Fed.R.Civ.P. 12(b)(6). To state a viable
claim, a complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). In other words, the
complaint must give “fair notice of what the. . .claim
is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
omitted). The allegations must “plausibly suggest that
the plaintiff has a right to relief, raising that possibility
above a speculative level[.]” Kubiak v. City of
Chi., 810 F.3d 476, 480 (7th Cir. 2016) (quotation
reviewing the complaint, the Court is required to
“accept as true all of the well-pleaded facts in the
complaint and draw all reasonable inferences in favor of the
plaintiff.” Id. at 480-81. However, a
complaint that offers “‘labels and
conclusions'” or “‘a formulaic
recitation of the elements of a cause of action will not
do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). The Court
must identify allegations “that, because they are no
more than conclusions, are not entitled to the assumption of
truth.” Id. at 679. The Court is further
obliged to give Clincy's pro se allegations a
liberal construction. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
claims arise from his prosecution in Milwaukee County Circuit
Court No. 2011CF001752, which concerned a home invasion. In
that case, a victim was attacked in her home while her
husband was at work. The husband returned home to find the
house ransacked and his wife unconscious and bleeding.
Circumstantial evidence led police to a residence about
fifteen blocks away, where Plaintiff lived in an attic room.
After viewing the room with the permission of Plaintiff's
girlfriend, police returned with a search warrant and seized
several items connecting Plaintiff to both the room and the
home invasion. Plaintiff pleaded no-contest to charges of
theft and first-degree reckless injury. However, prior to
sentencing, Plaintiff learned that his counsel had only
recently obtained and reviewed the search warrant executed at
his home, and he moved to withdraw his plea. He contended
that his counsel's failure to investigate the
circumstances of the search and seizure prior to the entry of
his plea was a just reason to withdraw the plea. He was
appointed counsel to represent him for the purposes of that
motion. Following a hearing, the state trial court denied
Plaintiff's motion, and sentenced Plaintiff to a
significant term of imprisonment. Plaintiff appealed, and was
represented by a new attorney during the post-conviction
proceedings. His conviction and sentence were affirmed by the
Wisconsin Court of Appeals and the Wisconsin Supreme Court.
complaint before this Court, Clincy alleges that Huebner
assisted in preparing the affidavit for the search warrant at
issue. (Docket #1 at 4). Clincy also claims that Huebner
pursued baseless criminal charges against him and withheld
exculpatory evidence, including evidence that one of the
defendants conducted the search unlawfully. Id. In
response, Huebner argues that the claims against him should
be dismissed because, among other reasons, they are barred by
the statute of limitations. (Docket #14).
Wisconsin plaintiff must bring a Section 1983 claim within
six years of its accrual. Wis.Stat. § 893.53; Gray
v. Lacke, 885 F.2d 399, 409 (7th Cir. 1989);
Hemberger v. Bitzer, 574 N.W.2d 656, 660 (Wis.
1998). Therefore, Clincy's claim needed to
accrue on or after July 16, 2012; i.e., within six years
prior to the filing of his complaint. (Docket #1).
Section 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 & Dry Cleaning
Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192,
201 (1997)). Usually, federal courts apply a discovery rule
to evaluating statute of limitations issues, holding that
constitutional claims accrue “when the plaintiff knows
or should know that his or her constitutional rights have
been violated.” Wilson v. Giesen, 956 F.2d
738, 740 (7th Cir. 1992); Logan v. Wilkins, 644 F.3d
577, 581-82 (7th Cir. 2011). However, the plaintiff need not
understand the full constitutional injury and the likely
cause of the injury. See United States v. Kubrick,
444 U.S. 111, 121-22 (1979); CSC Holdings, Inc. v.
Redisi, 309 F.3d 988, 992 (7th Cir. 2002). In other
words, he need only know the fact that he was
injured, not its legal significance.
the general application of the discovery rule to Section 1983
cases, the Supreme Court and the Seventh Circuit have
articulated a different rule for Fourth Amendment claims. As
the Court noted in its screening order, (Docket #9), Fourth
Amendment claims accrue on the date of the allegedly wrongful
search or seizure, regardless of when the plaintiff
discovered that the search or seizure was wrongful. Neita
v. City of Chi., 830 F.3d 494, 498 (7th Cir. 2016)
(citing Wallace, 549 U.S. at 396); Evans v.
Poskon, 603 F.3d 362, 363 (7th Cir. 2010). The Court
continues to observe that there is tension between the rule
in Wallace and the discovery rule that applies to
other Section 1983 actions. See Mihelic v. Will Cty.,
Ill. 826 F.Supp.2d 1104, 1111 (N.D. Ill. 2011);
Bennett v. Vahl, 2011 WL 2415017, at *4-5 (N.D. Ill.
June 10, 2011). Nevertheless, the Court is bound to apply the
rule set forth by the Supreme Court and the Seventh Circuit.
the allegedly wrongful search occurred on April 5, 2011.
(Docket #1 at 2). Clincy knew or should have known that the
search was unlawful on that date. Neita, 830 F.3d at
498. Therefore, he would have needed to file his case before
April 5, 2017. But Clincy did not bring this action until
July 16, 2018, which is outside of the six year statute of
limitations. Indeed, in his opposition to the motion to
dismiss, Clincy did not argue that he did not know
of the violation until after July 16, 2012. Rather, he stated
that throughout 2011 he sought records related to his arrest,
and that he finally received them in July, 2012. (Docket #17
at 15). He argues, without legal basis, that “his
attorney filed his motion to withdraw his plea concerning the
defects in the search warrant in August of 2012 which means
Mr. Clincy's lawsuit was filed within…the six
years of which this action accrued.” Id.
However, the statute of limitations began to run when Clincy
knew of the violation, not when he appreciated its legal
significance. Therefore, the statute of limitations clearly
bars the suit, and Huebner's motion to dismiss must be
granted. Although they did not file a motion to
dismiss, Thompson and Petropoulos also assert the statute of
limitations in their answer. (Docket #22-1 at 5). Since the
statute of limitations bars the entire suit, the claims
against Thompson and Petropoulos will be dismissed as well.
Accordingly, Clincy's motion for appointment of counsel
(Docket #25) must be denied as moot.
IT IS ORDERED that Plaintiff's motion
for reconsideration (Docket #19) be and the same is hereby
IS FURTHER ORDERED that Defendant Grant I.
Huebner's motion to dismiss (Docket #13) be and the same
is hereby is hereby GRANTED;
IS FURTHER ORDERED that Defendant Daniel P.
Thompson's motion for extension of time to file an answer