United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
Willie Williams, who is represented by counsel, filed this
lawsuit under 42 U.S.C. § 1983, alleging that the former
Secretary of the Department of Administration and several
capitol police officers violated his constitutional rights
while he was participating in the “Solidarity Sing
Along” at the state capitol in 2013. Before the court
is defendants' motion under Federal Rule of Civil
Procedure 12(b)(6) to dismiss as untimely plaintiff's
claims that are based on conduct that occurred outside the
six-year statute of limitations period for § 1983
actions. Dkt. #5. Plaintiff has not opposed the motion. For
the reasons set out below, I am granting defendants'
motion to dismiss plaintiff's claims based on conduct
that occurred before August 1, 2013, as barred by the
applicable statute of limitations.
resolving a motion to dismiss, the court must take all
well-pled facts in the complaint as true and draw all
reasonable inferences in favor of plaintiff. Reger
Development, LLC v. National City Bank, 592 F.3d 759,
763 (7th Cir. 2010). Plaintiff alleges the following facts in
Willie Williams is a United States Army veteran who served in
Vietnam. At all times relevant to the complaint, defendant
Michael Huebsch was Secretary of the Department of
Administration and defendants David Erwin, Mitch Steingraber,
Bob W. Sloey, John Ballard and Lisa Kaufman were employed by
the Wisconsin State Capitol Police Department.
February 2011, protests occurred in Madison, Wisconsin
concerning legislation known as Act 10. Among the protestors
were those participating in the “Solidarity Sing Along,
” who sang protest songs in the capitol rotunda and on
the outside steps. In December 2011, the Department of
Administration issued a revised capitol access policy,
requiring permits for groups of four or more gathering in the
rotunda. The policy was not enforced, and the- along
continued without a permit application. However, when
defendant Erwin became chief of the capitol police in July
2012, he announced that he would clamp down on protestors.
125 citations were issued to approximately 40 individuals
between September 2012 and January of 2013. Following a legal
challenge to its administrative rules, the Department of
Administration declared that an emergency existed which
required the adoption of revised rules. On March 15, 2013,
Governor Walker approved a scope statement for the revised
rules, and the new rules took effect on April 14, 2013. On
July 8, 2013, Judge William Conley enjoined the enforcement
of the new rules against groups of twenty or less.
on July 24, 2013, Erwin began a policy of handcuffing,
detaining and arresting anyone associated with the
sing-along. After stating that more than 20 people were
present, the police played a pre-recorded announcement
stating that an unlawful assembly was being declared and
anyone who did not disperse could be arrested.
30, 2013, plaintiff attended the sing-along, holding a
handmade sign. Plaintiff did not have a permit. He was
arrested without a warrant, handcuffed by defendant
Steingraber and issued a citation.
joined the sing-along again on August 1, 2013. He was
approached by defendants Ballard, Steingraber, Sloey and
Kaufman and handcuffed for not having a permit. Plaintiff did
not resist arrest, but defendants Steingraber and Ballard
pushed him down a hallway toward a staircase. Plaintiff's
leg gave way, causing him to fall while his arms were held by
officers. He remained in handcuffs until he was taken by
ambulance to a local hospital. Plaintiff was issued a
citation for the incident.
motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the
complaint's legal sufficiency. A complaint survives a
motion to dismiss if it “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“While a statute of limitations defense is not normally
part of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), when the allegations of the complaint
reveal that relief is barred by the applicable statute of
limitations, the complaint is subject to dismissal for
failure to state a claim.” Logan v. Wilkins,
644 F.3d 577, 582 (7th Cir. 2011) (citations omitted). See
also Chicago Building Design, P.C. v. Mongolian House,
Inc., 770 F.3d 610, 614 (7th Cir. 2014) (dismissal
appropriate when complaint plainly reveals action is untimely
under governing statute of limitations).
respect to both the July 30 and August 1, 2013 incidents,
plaintiff alleges Fourth Amendment false arrest and excessive
force claims and First Amendment retaliation claims against
the officers who arrested him. He also alleges that
defendants Huebsch and Erwin implemented a policy of
detaining, processing and handcuffing protestors to deter and
punish them for exercising their First Amendment rights.
Defendants contend that any request for relief related to the
incident on July 30, 2013 and the policies implemented by
Huebsch and Erwin in 2012, April 14, 2013 and July 24, 2013
are time barred. Plaintiff did not respond to defendants'
arguments or provide any information about the dates of
accrual for any of his claims.
§ 1983 claims, federal courts borrow the statute of
limitations governing personal injury actions in the state
where the injury took place. Wallace v. Kato, 549
U.S. 384, 387 (2007). At the time of plaintiff's arrests
in 2013, Wisconsin had a six-year personal injury statute of
limitations. Wis.Stat. § 893.53 (vers. eff. Jul. 1, 1980
to Apr. 4, 2018); Cannon v. Newport,850 F.3d 303,
305-06 (7th Cir. 2017); Gray v. Lacke,885 F.2d 399,
408-09 (7th Cir. 1989). Because plaintiff ...