Myers v. Foster et al

Filing 37

ORDER ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS signed by Magistrate Judge Nancy Joseph on 3/11/2025. IT IS THEREFORE ORDERED that the defendants' motion for judgment on the pleadings (ECF No. 28 ) is GRANTED. IT IS FURTHER ORDERED that the case is DISMISSED. (cc: all counsel and mailed to pro se party)(rcm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KEITH MYERS,
Plaintiff,
v.

Case No. 23-CV-079

JOSHUA M. ADDERTON, et. al.,
Defendants.
ORDER ON DEFENDANTS’ MOTION
FOR JUDGMENT ON THE PLEADINGS
Plaintiff Keith Myers, who is incarcerated and representing himself, brings
this lawsuit under 42 U.S.C. § 1983. (ECF No. 1.) On March 28, 2024, the
defendants moved for a judgment on the pleadings under Federal Rule of Civil
Procedure 12(c) on the grounds that Myers failed to file his lawsuit within the
applicable statute of limitations period. (ECF No. 28.)
In his response materials, Myers did not dispute that he filed his suit after
the statute of limitations period, even accounting for tolling while he exhausted his
administrative remedies. (ECF No. 32 at 1.) However, he stated that his mental
health prevented him from timely filing his suit. (Id.) Under Wis. Stat. § 893.16(1),
there is an extension of the filing deadline where the plaintiff experiences mental
health issues. Myers further asserted that if he could engage in discovery, he would
be able to obtain his mental health records to demonstrate his incapacity. (Id. at 3.)

The defendants argued that because Myers did not produce evidence to show
that he was incapable of timely filing his suit due to mental health issues, he cannot
rely on the mental health exception. (ECF No. 33 at 2.)
In its October 17, 2024 order, the court gave the parties an opportunity to
supplement their materials regarding the judgment on the pleadings to fully brief
the issue of whether Myers’ mental health impeded his ability to timely file his
lawsuit. (ECF No. 34.) The court gave the parties 2 months of discovery on this
issue and 30 days to respond to discovery requests, Once discovery closed, Myers
had 30 days to supplement his response to the motion for judgment on the pleadings
to include evidence of how his mental health prevented him from timely filing his
suit. The defendants then 14 days to reply to Myers’s supplemental response upon
receipt. The court cautioned Myers that failure to timely provide this evidence or
seek an extension of the deadlines will result in the court granting the defendants’
motion for judgment on the pleadings on the grounds that Myers filed his suit
outside of the applicable statute of limitations.
On December 23, 2024, Myers filed his supplemental response. In it, he
clarifies that he did not need additional discovery because the defendants already
obtained his medical records in January 2024, so they should have realized that the
§ 893.16(1) exception applies. However, it is not the defendants’ burden to explain
how Myers’ mental health prevented him from timely filing his lawsuit, it is Myers’
burden. In other words, as the court stated in its October 17, 2024, order, Myers
needed to file a supplemental response telling the court in detail, including using
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his medical records, why his mental health prevented him from timely filing his
compliant. In his supplemental response, Myers states that the defendants “were
incorrect to assert that the plaintiff had failed to show cause of mental illness.”
(ECF No. 36 at 3.) However, that bald assertion is not enough. Myers does not
explain specifically what happened around June 14, 2022, (the end of the
limitations period) to prevent him from timely filing suit—such as evidence of not
being of sound mind, or evidence that he was not able to communicate. Myers fails
to do so. As such, the court grants the defendants’ motion judgment on the
pleadings because Myers’s suit is barred by the statute of limitations.
IT IS THEREFORE ORDERED that the defendants’ motion for judgment
on the pleadings (ECF No. 28) is GRANTED.
IT IS FURTHER ORDERED that the case is DISMISSED. The
Clerk of Court will enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by filing
in this court a notice of appeal within 30 days of the entry of judgment. See Federal
Rule of Appellate Procedure 3, 4. This court may extend this deadline if a party
timely requests an extension and shows good cause or excusable neglect for not
being able to meet the 30-day deadline. See Federal Rule of Appellate Procedure
4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or amend its
judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from
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judgment under Federal Rule of Civil Procedure 60(b). Any motion under Federal
Rule of Civil Procedure 59(e) must be filed within 28 days of the entry of judgment.
The court cannot extend this deadline. See Federal Rule of Civil Procedure 6(b)(2).
Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of the judgment.
The court cannot extend this deadline. See Federal Rule of Civil Procedure 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if
any, further action is appropriate in a case.

Dated at Milwaukee, Wisconsin this 11th day of March, 2025.

BY
B
Y THE COURT:
COURT
T:
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____________
_____________
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__
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___
_ ______
______________________________
NANC
NC
N
C JO
CY
OS
SE
EP
PH
H
NANCY
JOSEPH
U
it d St
t Magistrate
M i t t J
d
United
States
Judge

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