Ledford v. Baenen et al

Filing 85

ORDER signed by Judge J.P. Stadtmueller on 4/9/2018 GRANTING in part and DENYING in part 75 Construction Company Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint. Motion GRANTED as to and DISMISSING Plaintiff's E ighth Amendment claims under 42 U.S.C. § 1983 against Defendants Mike Abhold, Burt Feucht, SMA Construction Services, and Society Insurance Company. Motion DENIED as to Plaintiff's state law claims against such Defendants on statute of lim itations grounds; such claims shall be permitted to proceed under the Court's supplemental jurisdiction. DENYING as moot 80 Plaintiff's Motion for Relief under Fed. R. Civ. P. 12(d). See Order for further details. (cc: all counsel, via mail to William N. Ledford at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM N. LEDFORD,
Plaintiff,

Case No. 16-CV-665-JPS

v.
MICHAEL BAENEN, AMY BASTEN,
RANDY MATTISON, CATHY JESS,
YANA PUSICH, C.O. LEURQUIN,
SMA CONSTRUCTION SERVICES,
MIKE ABHOLD, BURT FEUCHT, and
SOCIETY INSURANCE COMPANY,

ORDER

Defendants.
Plaintiff William N. Ledford (“Ledford”), a prisoner proceeding pro
se, filed this action to recover for injuries he allegedly sustained from the
discharge of noxious fumes in his cell block during construction of a new
bathhouse at Green Bay Correctional Institution. (Docket #55). In his
amended complaint, Ledford asserts claims for violations of his
constitutional rights under the Eighth Amendment pursuant to 42 U.S.C. §
1983. Id. at 16. He also raises claims of negligence, negligent supervision,
and negligent infliction of emotional distress under Wisconsin state law. Id.
at 22–26. The defendants include an array of prison officials, as well as
private individuals and entities associated with the construction work. This
latter group includes Mike Abhold, Burt Feucht, SMA Construction
Services, and Society Insurance Company (collectively, the “Construction
Company Defendants”).

The Construction Company Defendants have moved to dismiss all
claims against them. (Docket #75). First, they argue that as private citizens,
they did not act under color of state law as required to sustain a claim under
Section 1983. (Docket #74 at 5–7). Second, they contend that the state-law
claims against them are barred by the applicable statute of limitations. Id.
at 7–8. The motion is fully briefed and, for the reasons stated below, it will
be granted as to the constitutional claim and denied as to the state-law
claims.
1.

The Construction Company Defendants are Not State Actors
A cause of action under Section 1983 requires that the defendants

acted under the color of state law. Fries v. Helsper, 146 F.3d 452, 457 (7th Cir.
1998). Generally, private parties do not act under the color of state law, but
they may nevertheless be subject to suit under Section 1983 if a plaintiff can
demonstrate “some nexus between the conduct complained of and the
state, state official, or some state entity.” Musso v. Suriano, 586 F.2d 59, 64
(7th Cir. 1978); Jackson v. Metro. Edison Co., 419 U.S. 345, 349–51 (1974).
Ledford alleges that the Construction Company Defendants were
state actors because they contracted with the prison to construct a new
bathhouse. As has been explained to Ledford several times, this contention
lacks merit. See (Docket #7, #13, #54). A private party can be considered a
state actor when “a state effectively directs, controls, or encourages [his]
actions,” or when “a state delegates a ‘public function’ to a private entity.”
Wade v. Byles, 83 F.3d 902, 905 (7th Cir. 1996); Payton v. Rush-Presbyterian-St.
Luke’s Med. Ctr., 184 F.3d 623, 628 (7th Cir. 1999).
Neither circumstance applies to the Construction Company
Defendants. As to the first, there is no allegation that the state directed them
to monitor or address the fumes impacting the prisoners and staff. As to the
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second, although these defendants worked on a contract from the state,
“[t]he simple fact that a private entity performs a function that serves the
public does not transform its conduct into state action.” Wade, 83 F.3d at
905. Instead, the relationship must rise to the level where the private entity
becomes effectively an arm of the state by performing functions that are
“traditionally the exclusive prerogative of the State.” Id. In other words, “it
takes more than just a business relationship to transform a private entity
into a state actor.” (Docket #7 at 7).
Here, the Construction Company Defendants’ contract with the state
was limited to construction work, which is not traditionally the exclusive
prerogative of the state. The mere fact that they were working on a state
prison facility did not mean that the state delegated to them its
responsibility to protect prisoners’ constitutional rights; that responsibility
always remained with the state. See White v. Cooper, 55 F. Supp. 2d 848, 859
(N.D. Ill. 1999). Only the prison officials had the authority to relocate the
prisoners or ensure that the fumes did not enter the cell block. The
Construction Company Defendants did not assume this obligation simply
by virtue of their contractual relationship with the state. As a consequence,
they were not state actors.
Ledford depends on Rodriguez v. Plymouth Ambulance Service, 577
F.3d 816 (7th Cir. 2009), to argue against this result, but the case does not
aid him. There, a Wisconsin state prisoner was transported to a hospital by
a private ambulance service. Id. at 819–20. He later sued under Section 1983
for pain and injuries he sustained from a misplaced IV in his arm. Id.
The Seventh Circuit determined that on the state of the pleadings, it
could not answer the question whether the ambulance service engaged in
state action. Id. at 829–30. To reach this conclusion, the court examined the
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“trilateral relationship” involving the prison, the ambulance service, and
the prisoner. Id. Although the inmate alleged that the ambulance service
employees had provided medical care to him, establishing that there was a
relationship between the ambulance service and state prisoners, it was
unclear whether the ambulance services had done so pursuant to a contract
or whether they had done so as part of a municipal service available to all
persons needing emergency medical care. Id. Because it was not clear
whether a relationship existed between the prison and the ambulance
service, the Seventh Circuit held that it could not be decided at the pleading
stage whether the ambulance service employees had acted under color of
state law. Id.
Rodriguez does not control the outcome in this case. Ledford alleges
that the prison and the construction company entered into a contract to
build a new bathhouse. There is no allegation, nor can it be reasonably
inferred, that as part of that contract, the construction company accepted
responsibility for caring for the prisoners. As the Seventh Circuit noted in
Rodriguez, “[t]o the degree that a private entity does not replace, but merely
assists the state. . ., the private entity’s responsibility for the level of
[prisoner] care becomes more attenuated, and it becomes more difficult to
characterize its actions as the assumption of a function traditionally within
the exclusive province of the state.” Id. at 828. Here, while the prison and
the Construction Company Defendants had a business relationship, the
prisoners and the Construction Company Defendants had no relationship
at all. Without some relationship between the private entity and the
prisoners, the Construction Company Defendants cannot be considered
state actors. Id.

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Ledford clings to communications he received in 2014 from the
Correctional Management Services Director, Amy Basten (“Basten”),
explaining that she would not provide him with the name of the
construction company or its employees because, pursuant to the Wisconsin
Administrative Code, the construction company, as an independent
contractor, was considered “staff” and he was not permitted to possess
identifying information about prison staff. See (Docket #77 at 7); (Docket #81 at 15–16). Further, he claims that the Construction Company Defendants
are being indemnified by the state—an allegation that they deny. (Docket
#77 at 7); (Docket #79 at 5–6). Ledford believes that these facts establish that
the Construction Company Defendants are state employees.
This is not true, since, as Magistrate Judge David E. Jones cogently
explained in an earlier order,
the prison’s analysis of which entities and people are “staff”
for purposes of determining whether to disseminate personal
contact information to prisoners is very different from the
Court’s analysis of whether an entity or person is a state actor
for purposes of § 1983 liability. In the first, the definition of
staff will necessarily be broad to protect private information
from public dissemination; in the second, the definition will
necessarily be narrow, to protect private parties from liability
for actions that are within the exclusive province of the state.
The circumstances giving rise to the analyses are so different
that one does not inform or have any bearing on the other.
(Docket #13 at 4). Ledford gives no reason to doubt the magistrate’s sound
reasoning on this point. Moreover, these claims do nothing to make up for
the lack of a relationship between the Construction Company Defendants
and the inmates directly. This was the key in Rodriguez, and Ledford’s
allegations fail to fill this gap, even construing them generously in his favor,
as the standard of review requires. Kubiak v. City of Chicago, 810 F.3d 476,
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480 (7th Cir. 2016). The constitutional claim against the Construction
Company Defendants will be dismissed.1
2.

Plaintiff’s State-Law Claims Against the Construction Company
Defendants are Not Barred by the Statute of Limitations
As to the state-law claims pending against them, the Construction

Company Defendants argue that they are time-barred. Ledford’s
negligence claims are governed by a three-year statute of limitations. Wis.
Stat. § 893.54(1m)(a). In Wisconsin, a claim accrues when there is an injury
capable of redress, a suable party, and a party who may bring the claim.
Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d 780, 785 (Wis. 1995). The
limitations period begins to run “on the date the injury is discovered or with
reasonable diligence should be discovered, whichever occurs first.” Hansen
v. A.H, Robins, Inc., 335 N.W.2d 578, 583 (Wis. 1983).2

When Magistrate Jones, to whom the case was originally assigned,
screened the amended complaint, he found that the Eighth Amendment claim
against the Construction Company Defendants could not proceed because they
did not act under color of state law. (Docket #54 at 3). Normally, there would be
no need for these defendants to request dismissal of the claim, since in prisoner
litigation no claims may proceed unless and until the court allows them. See 28
U.S.C. § 1915A(b) (noting that the court on screening must identify the cognizable
claims); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). However, in light of the
limitations on a magistrate’s power to dismiss claims enunciated in Coleman v.
Labor & Industry Review Commission of Wisconsin, 860 F.3d 461 (7th Cir. 2017), the
Court has independently analyzed the viability of the Eighth Amendment claim
and found it lacking.
1

Ledford asserts that his claims are subject to a six-year statute of
limitations, citing Hicks v. Nunnery, 643 N.W.2d 809 (Wis. Ct. App. 2002). He is
mistaken. In Hicks, the court found that a legal malpractice claim did not involve
injuries to the plaintiff’s person, and therefore the catch-all six-year statute of
limitations under Wis. Stat. § 893.53, which covers injuries to “character or other
rights,” applied in place of the three-year limitations period under Section 893.54
for injuries to the person. Id. at 816–17. Here, Ledford claims both physical and
emotional injuries from the noxious fumes he inhaled and Defendants’ alleged
indifference to his plight. See (Docket #55 ¶¶ 69, 140–41). Although emotional
2

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Ledford alleges that he was exposed to toxic fumes emanating from
the construction work between November 2013 and April 2014. (Docket #55
¶ 85). He allegedly complained about these fumes “[b]etween November
2013 and January 2014.” Id. ¶ 39. Consequently, it appears that Ledford was
aware of his alleged injuries and believed the injuries were caused by the
fumes coming from the construction work at some point between
November 2013 and, at the latest, April 2014. As a result, say the
Construction Company Defendants, Ledford had until April 2017 to file a
complaint asserting these claims against the Construction Company
Defendants. (Docket #74 at 8).3

harm is in some ways conceptually distinct from bodily harm, see Restatement
(Third) of Torts: Phys. & Emot. Harm § 45 (2012), the law treats both as an injury
to the person, see Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 432, 442 n.23
(Wis. 1994). Consequently, Wisconsin courts subject claims for negligent infliction
of emotional distress to the same three-year limitations period as claims for bodily
injuries. See Sawyer v. Midelfort, 595 N.W.2d 423, 438 (Wis. 1999); Braun v. Duren,
568 N.W.2d 652, 1997 WL 213199, at *1 n.2 (Wis. Ct. App. 1997). By contrast,
Ledford’s Eighth Amendment claim is subject to the six-year limitations period
because constitutional claims are viewed as alleging an injury to the prisoner’s
rights. Cannon v. Newport, 850 F.3d 303, 305–06 (7th Cir. 2017). Ledford’s allegation
that Defendants violated his “right to be free from toxic fumes” does not change
this result, for this is at worst a violation of a duty of care, not a violation of a
constitutional right. Thus, the three-year limitations period controls Ledford’s
state-law claims.
Ledford contends that because he is a prisoner, the limitations period for
his claims did not begin to run until he had fully exhausted his prison
administrative remedies. But this principle only applies to constitutional claims
brought pursuant to Section 1983, as they have an administrative exhaustion
requirement. See Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001); Hoban v.
Anderson, 688 F. App’x 385, 389 (7th Cir. 2017). Ledford’s state-law claims do not
have a similar exhaustion requirement, and his need to exhaust remedies in
anticipation of a potential constitutional claim therefore has no effect on the
limitations period for his state-law claims. Moreover, even assuming he was
entitled to a period of tolling while he exhausted his Eighth Amendment claim, by
his own admission the prison grievance process was completed on March 21, 2014,
3

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In the original complaint, filed on June 6, 2016, Ledford named the
Construction Company Defendants as Does because he did not know their
true identities. (Docket #1). He asserted both constitutional and state-law
claims against them. Id. at 11–12. Magistrate Jones dismissed the
constitutional claim because they are not state actors, as detailed above.
(Docket #7 at 7). He also implicitly declined to exercise supplemental
jurisdiction under 28 U.S.C. § 1367(a) over the state-law claims asserted
against the Construction Company Defendants. See id. at 7–8; (Docket #54
at 3–5). The magistrate did, however, allow both constitutional and statelaw claims to proceed against the prison officials. (Docket #7 at 7–8).
Ledford moved for leave to file an amended complaint a few days
after the screening order issued, and in that amended complaint, he named
the Construction Company Defendants using their real identities. See
(Docket #8, #8-1). Magistrate Jones denied the motion for leave to amend
the complaint, again based on the failure to allege state action, (Docket #13),
and denied Ledford’s motion to reconsider that decision, (Docket #14, #15).
Ledford did not try to resurrect his claims against these defendants again
until he submitted a second motion to amend his complaint on November
20, 2017. (Docket #50).
That motion was granted on December 21, 2017. (Docket #54). In this
second screening order, Magistrate Jones acknowledged that the state-law
claims had originally not been allowed to proceed against the Construction
Company Defendants. Id. at 3–5. The magistrate observed that while
exercising supplemental jurisdiction over the state-law claims made against

(Docket #77 at 4), which is prior to Defendants’ asserted limitations cut-off date of
April 2017.

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the prison officials was appropriate because a federal claim had been
allowed to proceed against them, the facts and claims relating to the
Construction Company Defendants were different from the facts and
claims relating to the prison officials, making the exercise of supplemental
jurisdiction inadvisable. Id.
However, upon screening the amended complaint, Magistrate Jones
noted that similar state-law claims were allowed to proceed against the
Construction Company Defendants in Cox v. Baenen, 15-CV-395-PP (E.D.
Wis.). That case is very similar to this one, arising from the same
construction work and involving a group of prison officials and the
Construction Company Defendants. In Cox, the Construction Company
Defendants have had ample time to undertake discovery on claims much
like Ledford’s. (Docket #54 at 3–5). In view of the lack of prejudice to the
Construction Company Defendants, the magistrate allowed Ledford’s
state-law claims to proceed against them. Id.
Magistrate Jones did not grapple with the statute-of-limitations
question during screening. Now that they have been served, the
Construction Company Defendants claim that Ledford was nine months
late in filing a viable complaint against them. The Court disagrees, finding
that these defendants suffered no prejudicial lack of notice of this suit.4
First, it is worth observing that if Magistrate Jones had at the start
allowed the state-law claims against the Construction Company

To be clear, the Court need not and does not make any finding on
Ledford’s argument that he exercised reasonable diligence in discovering the
identities of these defendants and should therefore be given the benefit of the
discovery rule. (Docket #77 at 9). His request to convert this motion into a motion
for summary judgment in light of factual disputes about his diligence will be
denied as moot. (Docket #80).
4

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Defendants to proceed under the Court’s supplemental jurisdiction,
Ledford certainly would have identified them within the limitations period.
Indeed, in his first motion to amend his complaint, filed on June 27, 2016,
Ledford used their real identities. (Docket #8, #8-1). Thus, Ledford tried to
make a timely state-law claim against the properly identified Construction
Company Defendants but was refused by the Court. Although it is a
prisoner’s responsibility to ensure he states claims that can survive
screening, see supra note 1, the fact that the Court itself forestalled his
attempts to notify these defendants of the pending suit makes it harder to
conclude that he bears direct responsibility for his present predicament.
Second, although the Construction Company Defendants may
complain that they are prejudiced by this late change of course, in reality,
that prejudice is slight and does not weigh in favor of applying the
limitations bar. As Magistrate Jones observed, the Construction Company
Defendants have been defending Cox since mid-2016, well before the
alleged expiration of Ledford’s limitations period in April 2017. Cox
involves allegations nearly identical to Ledford’s, and the Construction
Company Defendants have had a large period of time in which to assemble
the facts and evidence needed to mount their defense in that case, which
will likely be quite similar to their defense here. Indeed, the Construction
Company Defendants deposed Ledford in September 2017, see (Docket #791), indicating they have already been gathering evidence relevant to this
action. Furthermore, at a minimum the Construction Company Defendants
had actual notice of Ledford’s claims no later than August 29, 2016, when
Ledford filed a motion to consolidate his action with Cox. That motion was
ultimately denied by the judge in Cox, but its filing placed these defendants
on notice of Ledford’s suit.
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There is a dearth of authority on how the notice principles animating
statutes of limitation interact with the unique fact of prisoner litigation that
the Court itself plays a role in providing notice to the defendants of pending
claims. Because it must always treat pro se filings generously, the Court
finds it equitable to grant the prisoner the benefit of the doubt in this
instance. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Thus, while Ledford
may have filed his amended complaint outside the limitations period, the
prejudice to Ledford in dismissing his state-law claims would be substantial
and the burden on the Construction Company Defendants to defend
against them would not be not onerous. As a result, the Court concludes
that the limitations bar should not be applied in this case, and it will deny
the motion to dismiss the state-law claims on that ground. Those claims
shall be permitted to proceed under the Court’s supplemental jurisdiction.
Accordingly,
IT IS ORDERED that the Construction Company Defendants’
motion to dismiss the amended complaint (Docket #75) be and the same is
hereby GRANTED in part and DENIED in part;
IT IS FURTHER ORDERED that Plaintiff’s motion for relief under
Federal Rule of Civil Procedure 12(d) (Docket #80) be and the same is
hereby DENIED as moot; and
IT IS FURTHER ORDERED that Plaintiff’s claims under Section
1983 against Defendants Mike Abhold, Burt Feucht, SMA Construction
Services, and Society Insurance Company be and the same are hereby
DISMISSED.

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Dated at Milwaukee, Wisconsin, this 9th day of April, 2018.
BY THE COURT:

__________________
J. P. Stadtmueller
U.S. District Judge

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