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Harris v. Schaller

United States District Court, W.D. Wisconsin

October 25, 2019

THOMAS D. HARRIS, Plaintiff,



         Plaintiff Thomas D. Harris was granted leave to proceed on a variety of constitutional claims against various correctional officers, nurses and others at Green Bay Correctional Institution. (8/1/17 Op. & Order (dkt. #8).) Before the court are two motions by defendants: (1) a motion by defendants Schaller, Heitzkey, Stevens, Frappier, Vanloo, Rhoades, Delvaux, Swiekatowski, Pollard and Vanterkinter, and joined by the Estate of Sequin, seeking partial judgment as to plaintiffs' claims of excessive force, deliberate indifference and retaliation arising out of incidents that occurred between February and May of 2007, as time-barred (dkt. ##18, 33); and (2) a motion for partial summary judgment for failure to exhaust administrative remedies as to plaintiff's claims for First Amendment retaliation and denial of access to court based on 2013 incidents asserted against defendants Schiller, Kazik and DeGroot (dkt. #20). For the reasons that follow, the court will grant both motions and direct the entry of final judgment.


         Collectively, these two motions seek judgment in defendants' favor as to all claims asserted by the plaintiff. As noted above, the underlying plaintiff's claims concern two distinct periods of time: (1) a 2007 incident giving rise to his claims for excessive force, denial of medical treatment and retaliation; and (2) 2013 incidents giving rise to his claims for retaliation and denial of access to courts claim. Accordingly, the factual summaries below are similarly divided, with the first derived from plaintiff's pleadings, and the second from the parties' summary judgment submissions, both viewed in a light most favorable to plaintiff.

         A. 2007 Incidents

         Plaintiff alleges that he was subjected to excessive force on February 20, 2007. (Compl. (dkt. #1) ¶¶ 1-30.) He filed a grievance about this use of force on March 7, 2007, which was forwarded to the Warden on April 24, 2007, who denied his request for relief. On May 2, 2007 the Warden also informed plaintiff that he was being written up for lying about staff. Plaintiff appealed that conduct report to the Corrections Complaint Examiner, with the final decision issued June 15, 2007. (Pl.'s Opp'n (dkt. #41) 2 (citing Exs. 2-11 (dkt. #41-1)).)

         Plaintiff's deliberate indifference claim is asserted against certain defendants for failure to provide medical care for injuries allegedly incurred during the February 20, 2007, use of force. (Compl. (dkt. #1) ¶¶ 35-42.) In his present complaint, he specifically alleges that he suffered from extreme pain due to the denial of medication from February 20 until his last date of pain on May 23, 2007. (Id. at ¶ 42.) Plaintiff filed a grievance about the lack of medical care on May 14, 2007; and in his opposition brief in his case, plaintiff represents that the administrative process for matters in his complaint was completed on June 4, 2007. (Pl.'s Opp'n (dkt. #41) 3 (citing Exs. 12-21 (dkt. #41-2).)

         As for plaintiff's retaliation claim, plaintiff alleges that the February 20, 2007, physical assault was in retaliation for his threat to file a complaint against defendant Schaller and that the subsequent disciplinary action was in retaliation for his actually filing an inmate grievance about the February 20th attack. (Compl. (dkt. #1) ¶¶ 43-56.) Plaintiff filed his grievance for the retaliation on July 23, 2007, and the administrative process was completed on September 25, 2007. (Pl.'s Opp'n (dkt. #41) 4 (citing Exs. 23, 27-30 (dkt. #41-3)).)

         Plaintiff pursued his first lawsuit arising out of the February 20th attack on June 11, 2013.[1] Harris v. Schaller, No. 13-cv-408-wmc (W.D. Wis. June 11, 2013). In an order dated July 30, 2013, the court dismissed plaintiff's complaint for failure to pay the initial partial fee payment. Id. (dkt. #7). The order also provided “Harris may seek leave to reopen this case only if he makes the initial partial filing fee payment of $149.50 within ten days. Otherwise, Harris must re-file his complaint as a new case.” Id. In his present complaint, plaintiff acknowledges that on August 3, 2013, he received two letters from the district court, one requiring him to pay a partial filing fee of $149.50 by July 12, 2013, and the second dated July 30, 2013, ordering plaintiff's action dismissed for failure to pay the filing fee. (Compl. (dkt. #1) ¶¶ 72-75.)

         B. Exhaustion of Claims Concerning 2013 Incidents

         As set forth in his complaint as well as in this court's order granting him leave to proceed, plaintiff also alleges retaliation and access to court claims based on certain defendants' taking and failing to return his legal materials. Specifically, plaintiff alleges that on June 18, 2013, he was placed in temporary lock-up (“TLU”) and his property, including his legal materials, were packed up and supposedly stored. (Compl. (dkt. #1) ¶ 59.) He was not given his legal materials -- which included the June 11, 2013, complaint filed in this court and the evidence in support of that complaint -- while on TLU status. (Id. at ¶ 60.) Plaintiff was transferred from TLU to the general population on August 3, 2013, but his legal materials were not returned. (Id. at ¶ 72.) Beginning on August 6, 2013, and continuing into 2015, plaintiff filed a number of inmate complaints and sent letters to DOC officials complaining about destruction of his legal materials and/or seeking their return. (Id. at ¶¶ 64-71, 81-99.)


         I. Statute of Limitations of Claims Based on 2007 Incident

         As for the first motion -- seeking judgment on the pleadings of plaintiffs' claims arising out of the 2007 incident as time-barred -- defendants persuasively argue that plaintiff's claims premised on this incident would have had to have been filed in 2013 to be timely. (See Defs.' Br. (dkt. #19) 3 (citing Wis.Stat. § 893.53 (six-year statute of limitations for tort claims); Wudtke v. Davel, 128 F.3d 1057, 1061 (7th Cir. 1997) (applying § 893.53 period to § 1983 claims)).) Specifically, with respect to plaintiff's excessive force claim, defendants content that the claim accrued at the time of the force, February 20, 2007, and, therefore, the deadline for filing the claim was February 20, 2013, six years later.[2] As for the deliberate indifference claim, defendants allege that plaintiff's claim accrued on May 23, 2007, the date plaintiff claims his pain ended, and therefore the deadline for filing that claim ...

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