Lee, Anthony et al v. Parshall, Heath et al

Filing 53

ORDER denying defendants' 46 motion to dismiss; denying plaintiff's 50 request for court assistance. Signed by District Judge James D. Peterson on 1/6/2017. (jef),(ps) Modified text, (jef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ANTHONY M. LEE,
OPINION and ORDER
Plaintiff,
16-cv-524-bbc1
v.
HEATH PARSHALL, STEVE HELGESON,
JOHN DOE I and JANE DOE II,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Anthony Lee is proceeding on two claims: (1) defendant Heath
Parshall, a police officer for the La Crosse Police Department, used excessive force against
him in August 2012, in violation of the Fourth Amendment; and (2) defendant Parshall and
an unknown jail staff member or members failed to provide adequate medical care to
plaintiff for the injuries he sustained related to the use of force, in violation of the Fourth
Amendment. In addition, plaintiff is proceeding against Steve Helgeson, the sheriff for La
Crosse County, for the purpose of learning the identities of the unknown defendant or
defendants. The case is now stayed while the court searches for counsel willing to represent
plaintiff. Dkt. #36.
Despite the stay, both sides have filed new documents in the case that are unrelated

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Because Judge Crabb is on medical leave, I am issuing this order to prevent an undue
delay in the progress of the case.
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to the recruitment of counsel and without asking the court to lift the stay. First, defendant
Heath Parshall has filed a motion under Fed. R. Civ. P. 12(b)(6) to dismiss for failure to
state a claim upon which relief may be granted on the ground that plaintiff’s claims are
untimely. Dkt. #46. For his part, plaintiff has filed a letter in which he says that unnamed
prison staff are threatening him and he asks the court to “call and talk” to him about the
situation. Dkt. #50. I will overlook both side’s failure to request a lift of the stay because
it is clear that neither side is entitled to relief, for the reasons explained below.

OPINION
A. Defendants’ Motion to Dismiss
Citing Ratzel v. Marinette County, 694 F. Supp. 606, 607 (E.D. Wis. 1988),
defendant Parshall contends that the statute of limitations for a claim such as plaintiff’s
brought under the federal civil rights statute, 42 U.S.C. § 1983, is three years and that
plaintiff’s claim is untimely because he filed his complaint four years after the events
described in his complaint. Although defendant Parshall is correct that plaintiff alleges that
defendants violated his rights in 2012, defendant is wrong about the relevant limitations
period. It is now well established in this circuit that the statute of limitations for a § 1983
claim brought in Wisconsin is six years, not three, so plaintiff’s complaint is timely. Malone
v. Corrections Corp. of America, 553 F.3d 540, 542 (7th Cir. 2009); Conyers v. Abitz, 416
F.3d 580, 583 (7th Cir. 2005); Wudtke v. Davel, 128 F.3d 1057, 1061 (7th Cir. 1997);
Gray v. Lacke, 885 F.2d 399, 407–08 (7th Cir. 1989). In fact, the court of appeals recently

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corrected a similar mistake made by another lawyer. Kennedy v. Huibregtse, 831 F.3d 441,
442 (7th Cir. 2016) (“[T]he statute of limitations for section 1983 claims in Wisconsin is
six years, not three.”).
Ratzel was decided before the court of appeals resolved the issue in Gray, which
explains the inconsistency. In any event, in light of the many decisions of the court of
appeals on this issue, Ratzel is no longer good law. Accordingly, I am denying defendant
Parshall’s motion to dismiss. I am sure that the experienced counsel representing defendant
Parshall will take greater care in the future to research their motions before filing them.

B. Plaintiff’s Letter
Plaintiff asks the court to call him because unnamed staff at the Green Bay
Correctional Institution are threatening to harm him. I cannot grant plaintiff’s request for
two reasons.
First, ethical rules prohibit a judge from having private communication with only one
litigant under most circumstances. Drobny v. C.I.R., 113 F.3d 670, 680 (7th Cir. 1997).
Even if I construe plaintiff’s letter as requesting an evidentiary hearing in which both sides
would be allowed to participate, I could not grant plaintiff’s request. A federal court may
not issue orders to prison officials on matters that are unrelated to the claims in the case that
the plaintiff filed. Neuroscience, Inc. v. Forrest, No. 12-cv-813-bbc, 2013 WL 6331348, at
*1 (W.D. Wis. Dec. 5, 2013) (“Because a preliminary injunction is intended to preserve the
status quo until the court has an opportunity to reach the merits, ‘a party moving for a

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preliminary injunction must necessarily establish a relationship between the injury claimed
in the party's motion and the conduct asserted in the complaint.’”) (quoting Devose v.
Herrington, 42 F.3d 470, 471 (8th Cir. 1994)). See also Dudgeon v. Fiorello, 06–C–563–C,
2007 WL 5517460 (W.D. Wis. Jan. 31, 2007) (denying motion for preliminary injunction
because it raised issues outside scope of complaint); Williams v. Nelson, 04–C–774–C, 2005
WL 840358 (W.D. Wis. Apr. 1, 2005) (same). Plaintiff’s claims in this case are about
events that occurred in La Crosse, Wisconsin at the time he was arrested. They have
nothing to do with the Green Bay Correctional Institution. Further, plaintiff is not alleging
that staff members are threatening him because he filed this lawsuit, so there is no connection
between this lawsuit and the alleged threat. If plaintiff believes that officials at the Green
Bay prison are violating his rights, he will have to file a new lawsuit about that issue.

ORDER
IT IS ORDERED that
1. Defendant Heath Parshall’s motion to dismiss, dkt. #46, is DENIED.
2. Plaintiff Anthony Lee’s request for court assistance, dkt. #50, is DENIED.
Entered January 6, 2017.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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