Cowser et al v. Clarke et al

Filing 34

ORDER signed by Magistrate Judge Nancy Joseph on September 12, 2018 granting in part and denying in part 27 Defendants' Motion to Dismiss Amended Complaint. (cc: all counsel) (cc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THE ESTATE OF ANTONIO COWSER, by
RONNIE COWSER, as Special Administrator, and
RUBY COWSER
Plaintiffs,
v.

Case No. 17-CV-866

DAVID J. CLARKE JR. et al.,
Defendants.
DECISION AND ORDER ON DEFENDANTS’
MOTION TO DISMISS
The Estate of Antonio Cowser, Ronnie Cowser, as Special Administrator, and Ruby
Cowser (“the Estate” or plaintiffs) bring this 42 U.S.C. § 1983 claim against David A.
Clarke Jr., Richard E. Schmidt, Captain George Gold, Corrections Officer Brooks,
Corrections Officer Tiara Sheet-Walker, John Doe # 1, John Does # 2-10, and Milwaukee
County (collectively defendants) for deliberate indifference leading to the death of Antonio
Cowser while in custody of a Milwaukee County Jail. Additionally, Ruby Cowser, Antonio
Cowser’s mother, brings a § 1983 claim for loss of companionship. Defendants move to
dismiss the Estate’s claim as time barred and Ruby Cowser’s claim for failure to state a
claim under 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons explained
below, defendants’ motion to dismiss is granted in part and denied in part.

BACKGROUND
On January 10, 2011, Antonio Cowser was admitted to the Milwaukee County
Justice Center after being sentenced to twenty-four days of confinement for “‘Driving Under
the Influence.’” (Am. Compl. ¶ 2.) Cowser was placed in the “Special Needs” section of the
facility. (Am. Comp. ¶ 25.) On January 23, 2011, Cowser was pronounced dead. (Id.) The
Estate alleges that shortly after Cowser’s death, Ruby Cowser was informed by an agent of
the Medical Examiner’s Office that Antonio’s death was the result of a heart attack. (Am.
Compl. ¶ 20.) However, on the December 28, 2011 Medical Examiner’ Report (“MER”), it
was determined that Cowser died “‘due to complications of a psychotic disorder.’” (Am.
Compl. ¶ 50.) The Estate alleges that defendants were deliberately indifferent to Cowser’s
serious medical needs, failed to properly train the Milwaukee County Jail personnel, and
failed to provide medical and psychological attention to Cowser leading to his death. (Am.
Compl. ¶ 87.) The Estate filed its action on January 21, 2017. (Docket # 1.) An amended
complaint was filed on September 28, 2017. (Docket # 19.)
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must satisfy Rule 8(a) by
providing a “short and plain statement of the claim showing that the pleader is entitled to
relief. . . in order to give the defendant fair notice of what the. . . claim is and the grounds
upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley
vs. Gibson, 355 U.S. 41, 47 (1957)). Additionally, the allegations must suggest that the
plaintiff is entitled to relief beyond the speculative level. E.E.O.C. v. Concentra Health Services,
Inc., 496 F.3d 773, 777 (7th Cir. 2007). Nevertheless, the Court must construe the complaint
“in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations

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and making all possible inferences from those allegations in his or her favor.” Lee v. City of
Chicago, 330 F.3d 456, 459 (7th Cir. 2003). “Dismissing a complaint as untimely at the
pleading state is an unusual step, since a complaint need not anticipate and overcome
affirmative defenses, such as the statute of limitations. But dismissal is appropriate when the
plaintiff pleads himself out of court by alleging facts sufficient to establish the complaint’s
tardiness.” Cancer Foundation, Inc., v. Cerberus Capital Management, LP, 559 F.3d 671 (7th Cir.
2009) (internal citation omitted).
ANALYSIS
In § 1983 actions, federal courts adopt the forum state’s statute of limitations. Wallace
v. Kato, 549 U.S. 384, 387 (2007). The Seventh Circuit has applied Wisconsin’s six-year
statute of limitations in actions involving § 1983 personal-rights claims. Gray v. Lacke, 885
F.2d 399 (7th Cir. 1989). While the statute of limitations is grounded in state law, the
accrual date of a § 1983 cause of action is a question of federal law “conforming in general
to common-law tort principles.” Wallace, 549 U.S. at 387-88. A § 1983 claim accrues “‘when
the plaintiff knows or should know that his or her constitutional rights have been violated.’”
Hileman v. Maze, 367 F.3d 694, 696 (7th Cir. 2004) (quoting Kelly v. City of Chicago, 4 F.3d
509, 511 (7th Cir. 1993)).
Generally, the accrual date is determined by the court identifying the injury and
determining the date the plaintiff could have sued for that injury. Hileman, 367 F.3d at 696.
However, the “discovery rule,” which is read into the state statute of limitations postpones
the beginning of the limitations period of a federal claim from the date the party is injured to
the date when the party discovers or should have discovered the injury, exercising

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reasonable diligence. Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 717
(7th Cir. 1994) (internal citation omitted).
In this case, the Estate filed this lawsuit on June 21, 2017. Defendants argue that the
date for accrual of the statute of limitations is the date of Cowser’s death, January 23, 2011.
Accordingly, defendants argue the lawsuit is untimely. Specifically, defendants argue that as
of the date of Cowser’s death, the Estate knew Cowser had suffered harm and that if anyone
other than Cowser caused the harm, it was potentially the County.
Construing the complaint in the light most favorable to the Estate and accepting the
factual allegations as true, as I must at this stage, I do not find that the claim is indisputably
time barred. The Estate alleges that it had initially been told that Cowser died of a heart
attack. The Medical Examiner’s Report, which was incorporated by the Estate’s amended
complaint, lists the cause of death as “complications of a psychotic disorder.” (Declaration
of Anthony Anzelmo (“Anzelmo Decl.”) ¶ 2, Exh. 1, Medical Examiner’s Report at 5,
Docket # 28-1.) Further, the Estate alleges it was not until the release of the Medical
Examiner’s Report on December 28, 2011 that it learned of the cause of death.
The defendants are correct that the Estate knew as of January 23, 2011, that Cowser
had died and that his death occurred while in defendants’ custody at the jail. However, the
Estate’s theory of their case is not merely that Cowser died while in custody, but that
Cowser died as a result of the defendants’ deliberate indifference to his psychological state
and needs. According to the amended complaint, all the Estate knew as of the date of
Cowser’s death was that he died of a heart attack. Cowser suffering a heart attack does not
necessarily evoke responsibility on the part of the defendants.

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Defendants reject that the Estate was told Cowser died of a heart attack. Defendants
notes that such a statement is not included in the Medical Examiner’s Report, which is
incorporated into the amended complaint. Indeed, defendants are correct that this statement
is not in the Medical Examiner’s Report. But in fairness to the Estate, the amended
complaint does not allege otherwise. It merely recounts that the Estate was told that the
cause of death was a heart attack without attributing the source of that information. (Am.
Compl. ¶ 20.) Defendants’ larger point seems to be that this statement is not supported by
the record. But this a motion on the pleadings, not summary judgment. At the summary
judgment stage, the Estate will have to provide evidence that supports its allegations.
However, “at this stage, the question is only whether there is any set of facts that if proven
would establish a defense to the statute of limitations.” Clark v. City of Braidwood, 318 F.3d
764, 768 (7th Cir. 2003) (internal citation omitted) (emphasis in original). The Estate has
satisfied this burden.
Additionally, defendants argue that this case is similar to Moore v. Vagnini, Case No.
14-CV-1446, 2016 WL 3448604 (E.D. Wis. June 20, 2016). In that case, Moore filed a §
1983 action against a police officer for assault. Id. at *1. However, Moore filed his
complaint six years and seven months after the incident occurred which, as Moore
conceded, would normally be barred by Wisconsin’s six-year statute of limitations for §
1983 claims. Id. Nevertheless, Moore argued that based on the discovery rule, his claim did
not accrue until months later, when he read in the newspapers about similar police
misconduct that resulted in criminal charges. Id. at *2. The Court rejected this argument and
found that the statute of limitations began the day the incident happened. Id. The Court
further stated:

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Certainly he may not have known, until he read about other cases in the
paper, that the defendant was alleged to have engaged in similar activity
with other people in the community. He may not have known under what
legal theory he had a claim. But he knew that he’d been treated badly, and
had suffered an injury. At that point, with that knowledge, his claim began
to accrue.
Id. at *3.
Moore is inapposite. In Moore, the nature of the injury and the responsible party was
apparent from the first contact between Moore and the police officer. Moore had alleged
that the police officer forcibly removed him from his car and penetrated his anus while
searching him. Id. at *1. Thus, as the court noted, even though Moore may not have been
able to put a legal name or theory to what was done to him, even prior to reading the
newspaper, he would have known that what allegedly occurred was not standard and that
he had been injured.
Here, while the Estate knew of Cowser’s death on January 23, 2011, unlike in Moore,
death alone, or death due to a heart attack, does not indicate a wrong was committed and
that a wrong must have been committed by the defendants. Stated differently, as of the date
of Cowser’s death, the Estate, according to the amended complaint, did not know that
Cowser “had been treated badly” or “suffered an injury.” See Moore, 2016 WL 3448604 at
*3. Taking as true the Estate’s allegation that it did not know that the cause of Cowser’s
death was due to complications of a psychotic disorder until the December Medical
Examiner’s Report, I find that the Estate’s claim is not indisputably time-barred at this
juncture. Therefore, defendants’ motion to dismiss the Estate’s amended complaint is
denied. Accordinly, I need not address parties’ equitable estoppel arguments.

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2.

Ruby Cowser’s § 1983 Claim

Ruby Cowser, Antonio Cowser’s mother, asserts a loss of companionship and
society of her son “as a direct and proximate result of the . . . violation of [Cowser’s]
constitutional rights . . . .” (Am. Compl. ¶ 92.) In Russ v. Watts, the Seventh Circuit
expressly held that parents have no “constitutional right to recover for the loss of
companionship of an adult child when that relationship is terminated as an incidental result
of state action.” 414 F.3d 783, 791 (7th Cir. 2005). For a constitutional loss of
companionship claim to survive, plaintiffs must show that the state intentionally aimed to
interrupt the familial relationship. Id. at 787.
The Estate argues that Ruby Cowser’s claim should not be dismissed because Russ v.
Watts did not eliminate a parent’s right to maintain a wrongful death claim under state law.
(Pls.’ Opp. at 7-9.) This argument fails for two reasons. First, the amended complaint does
not make a wrongful death claim under Wisconsin law. Second, even if it did, it would
surely be barred by Wisconsin’s three-year statute of limitations. See Wis. Stat. § 893.04;
Christ v. Exxon Mobil Corp., 2015 WI 58 ¶ 84, 362 Wis. 2d 668, 704, 868 N.W. 2d 602, 619.
Accordingly, defendants’ motion to dismiss Ruby Cowser’s claim for loss of companionship
and society for the death of Cowser is granted.
ORDER
NOW, THEREFORE, IT IS ORDERED that defendants’ motion to dismiss the
Estate’s complaint as time barred is (Docket # 27) is DENIED;
IT IS FURTHER ORDERED that defendants’ motion to dismiss Ruby Cowser’s
claim for loss of society and companionship is GRANTED.

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Dated at Milwaukee Wisconsin this 12th day of September, 2018.
BY THE COURT
s/Nancy Joseph_____________
NANCY JOSEPH
United States Magistrate Judge

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