Hanson v. Brey et al

Filing 80

DECISION AND ORDER signed by Judge Lynn Adelman on 1/13/16 that defendant Dennis Smiths motion to dismiss 52 is GRANTED and that defendants Brad DeYoung, Sharon Kamin, and Linda Van Den Heuvals motion to dismiss 59 is GRANTED. Further ordering that Dennis Smith, Brad DeYoung, Sharon Kamin, andLinda Van Den Heuval are DISMISSED as defendants. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DANIEL L. HANSON,
Plaintiff,
v.

Case No. 14-CV-1024

SEAN M. VAN ERMEN, et al.,
Defendants,

DECISION AND ORDER
Plaintiff Daniel Hanson is a Wisconsin state prisoner who is proceeding pro se. On
August 20, 2014, he filed a complaint, which I screened on March 23, 2015. In that order,
I informed plaintiff that it was unclear to me what claims he was purporting to state, so I
gave him the opportunity to amend his complaint. He availed himself of that opportunity
on June 8, 2015, and I allowed him to proceed as indicated in that order.
In plaintiff’s amended complaint, he added additional healthcare defendants not
named in his original complaint, including Nurse Sharon Kamin and Jane or John Does.
On July 27, 2015, plaintiff identified the Doe defendants as Nurse Brad DeYoung, Nurse
Linda Van Den Heuval, and Dr. Dennis Smith. Kamin, DeYoung, Van Den Heuval, and
Smith have filed motions to dismiss, arguing, in part, that plaintiff’s claims against them are
barred by the statute of limitations. (Docket #52, 59.)
I previously allowed plaintiff to proceed with medical negligence claims (under state
law) and deliberate indifference claims (under the U.S. Constitution) against these
defendants. The claims allegedly arose in connection with plaintiff’s November 3, 2008
arrest.

According to Wis. Stat. § 893.55(1m), “. . . an action to recover damages for injury
arising from any treatment or operation performed by . . . a person who is a health care
provider, regardless of the theory on which the action is based, shall be commenced within
. . . [t]hree years from the date of the injury . . . .” Plaintiff alleges his injury occurred on
November 3, 2008, so he was required to file his medical negligence claims by November
3, 2011. Plaintiff filed his amended complaint on June 8, 2015. Because plaintiff failed to
comply with the statute of limitations, his medical negligence claims against Kamin,
DeYoung, Van Den Heuval, and Smith are barred.
With regard to plaintiff’s deliberate indifference claim, the Seventh Circuit has held
that Wisconsin’s six-year personal rights statute is the applicable statute of limitations.
Gray v. Lacke, 885 F.2d 399, 407-08 (7th Cir. 1989). Based on the date of injury alleged
in plaintiff’s complaint, plaintiff was required to file his deliberate indifference claims by
November 3, 2014. He did not, and so these claims are also barred.
Plaintiff argues that he timely filed his deliberate indifference claims against Kamin,
DeYoung, Van Den Heuval, and Smith because he filed his original complaint on August
20, 2014, before the six-year limitations period expired. This argument lacks merit. As
explained by the Seventh Circuit Court of Appeals, a plaintiff’s amended complaint will
generally relate back to the filing date of the original complaint when the amendment is
necessary to correct the name of an improperly named defendant who is already before
the court. Wood v. Worachek, 618 F.2d 1225, 1229 (7th Cir. 1980). However, “a new
defendant cannot normally be substituted or added by amendment after the statute of
limitations has run.” Id. (citations omitted).

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Federal Rule of Civil Procedure 15(c) sets forth three prerequisites that must be met
before relation back will be allowed when a new defendant is added
First, the amended claim must arise out of the same occurrence set
forth in the original pleading. Second, within the applicable statute of
limitations period the purported substitute defendant must have
received such notice of the institution of the action that he will not be
prejudiced in maintaining his defense on the merits. Third, the
purported substitute defendant must have or should have know that,
but for a mistake concerning the identity of the proper party, the action
would have been brought against him.
Wood, 618 F.2d at 1229.
Here, plaintiff fails to satisfy the provisions of the second and third prerequisites.
First, Kamin did not receive notice of the institution of the action until June 8, 2015, when
plaintiff named her as a defendant for the first time. DeYoung, Van Den Heuval, and Smith
did not receive notice until July 27, 2015, when plaintiff identified them as the Doe
defendants. Second, “[t]his is not a case involving a misnomer of defendant which Rule
15(c) was envisioned to correct.” Wood, 618 F.2d at 1230. Plaintiff’s amended complaint
did not merely remedy a “mistake” in naming the incorrect defendants; it added a
completely new category of defendants (i.e., healthcare providers) who had no reason to
know that plaintiff had instituted an action in 2014. Because the record is clear that Kamin,
DeYoung, Van Den Heuval, and Smith did not have notice of the 2014 complaint and
because plaintiff’s amended complaint did not merely correct a mistake by identifying the
proper defendants, plaintiff is precluded from availing himself of the relation back benefits
set forth in Rule 15.
Plaintiff also points to the screening order I entered on July 8, 2015, arguing that I
have already determined that he may proceed on these claims. This argument also fails.
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My decision that plaintiff had stated claims that were neither frivolous nor malicious, did not
deprive defendants of the opportunity to raise the affirmative defense that the claims were
barred by the statute of limitations. See Jervis v. Mitcheff, 258 Fed.Appx. 3, 6 (7th Cir.
2007) (“A district court should not raise and resolve affirmative defenses at screening
unless the outcome is obvious and would render the suit frivolous . . . .”).
Finally, plaintiff’s claims are not saved by the “continuing violation” doctrine. The
Seventh Circuit Court of Appeals has instructed that the normal rule is that the statute of
limitations begins to run from the date of injury, even when that injury produces lingering
consequences. Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006). That rule does not
apply when “a state actor has a policy or practice that brings with it a fresh violation each
day.” Id. Here, plaintiff’s allegations relate to a single, discrete event that occurred on
November 3, 2008. There was no further contact with these defendants, and any effects
from that single contact were merely lingering consequences, not fresh violations.
IT IS THEREFORE ORDERED that defendant Dennis Smith’s motion to dismiss
(Docket #52) is GRANTED.
IT IS ALSO ORDERED that defendants Brad DeYoung, Sharon Kamin, and Linda
Van Den Heuval’s motion to dismiss (Docket #59) is GRANTED.
IT IS FURTHER ORDERED that Dennis Smith, Brad DeYoung, Sharon Kamin, and
Linda Van Den Heuval are DISMISSED as defendants.
Dated at Milwaukee, Wisconsin, this 13th day of January, 2016.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge
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