Winston, Michael v. Pamela H. et al

Filing 9

ORDER that plaintiff Michael L. Winston may have until November 17, 2016, to show cause as to why the court should not dismiss this case as time barred. Signed by District Judge James D. Peterson on 10/27/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MICHAEL L. WINSTON,
Plaintiff,
v.

OPINION & ORDER

PAMELA H., LORI YOKEY, JOHNSON (1),
JOHNSON (2), and REGINGSER,

16-cv-610-jdp

Defendants.
Pro se plaintiff Michael L. Winston is a prisoner in the custody of the Wisconsin
Department of Corrections (DOC), currently housed at the Columbia Correctional
Institution (CCI). Winston has filed a complaint alleging that during his time at Lincoln
Hills School for Boys, a DOC juvenile corrections facility, several staff members physically
and sexually abused him. These events date back to 1995. The court determined that
Winston qualifies for in forma pauperis status, and Winston paid the initial partial filing fee
set by the court. Dkt. 6.
The next step is for the court to screen the complaint and dismiss any portion that is
legally frivolous, malicious, fails to state a claim upon which relief can be granted, or asks for
money damages from a defendant who by law cannot be sued for money damages. 28 U.S.C.
§§ 1915, 1915A. When screening a pro se litigant’s complaint, the court construes the
allegations liberally and in the plaintiff’s favor. McGowan v. Hulick, 612 F.3d 636, 640 (7th
Cir. 2010). Because Winston’s claims are untimely, I will order him to show cause as to why
I should not dismiss his case.

ALLEGATIONS OF FACT
Winston’s allegations concern events that occurred during his confinement at the
Lincoln Hills School for Boys years ago; Winston’s claims date back to 1995. Winston alleges
that during his time at Lincoln Hills, defendants Johnson (1), Johnson (2), and Regingser,
three male guards at the facility, physically abused him. They beat him, kicked him, and
sprayed him with riot gas. On one occasion, they strapped Winston to his bed, turned his
radio on full volume, and left him there for hours. They tampered with his food. Winston
also alleges that defendants Pamela H. and Lori Yokey, female staff members, sexually abused
him between 1995 and 1997.
Winston states that he is mentally ill and that since his time at Lincoln Hills, his “life
has been in complete disarray.” Dkt. 1, at 4. Winston sustained severe psychological damage
as a result of his time at Lincoln Hills, and the abuse exacerbated his mental illness. Winston
states that “[t]he recent news regarding the current abuses being investigated at LHS has
caused flashbacks and with Winston demonstrating extreme hostilities at guards here at
CCI.” Id.

ANALYSIS
Winston alleges that defendants physically and sexually abused him for years, in
violation of the Eighth and Fourteenth Amendments. But even if Winston has adequately
pleaded constitutional violations, he has a timing problem: the alleged abuse occurred about
20 years ago.
“A district court must dismiss a suit at screening if it is frivolous, see 28 U.S.C.
§ 1915(e)(2), and in doing so may rely on an affirmative defense that is apparent and

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unmistakable from the complaint’s face.” Briggs-Muhammad v. SSM Healthcare Corp., 567 F.
App’x 464 (7th Cir. 2014) (citing Gleash v. Yuswak, 308 F.3d 758, 760-61 (7th Cir. 2002)).
Here, it is readily apparent from Winston’s complaint that the alleged offenses occurred
between 1995 and 1997, which immediately prompts me to consider the applicable statute of
limitations.
42 U.S.C. § 1983 does not have a limitations period. Instead, “to determine the
proper statute of limitations for § 1983 actions, a federal court must adopt the forum state’s
statute of limitations for personal injury claims.” Ashafa v. City of Chicago, 146 F.3d 459, 461
(7th Cir. 1998) (citing Wilson v. Garcia, 471 U.S. 261, 276 (1985)). Accordingly, I apply
Wisconsin’s six-year statute of limitations for personal rights claims. Wis. Stat. § 893.53; see
also Gray v. Lacke, 885 F.2d 399, 409 (7th Cir. 1989). Winston filed his complaint on
September 6, 2016; for his claims to be timely, they must have accrued—in other words, the
statute of limitations must have started running—no earlier than September 6, 2010.
Although Wisconsin’s limitation period applies, federal law governs when Winston’s
claims accrued. Kelly v. City of Chicago, 4 F.3d 509, 511 (7th Cir. 1993) (citing Wilson v.
Giesen, 956 F.2d 738, 740 (7th Cir. 1992)). A § 1983 claim accrues “when the plaintiff has ‘a
complete and present cause of action,’ that is, when ‘the plaintiff can file suit and obtain
relief[.]’” Wallace v. Kato, 549 U.S. 384, 388 (2007) (quoting Bay Area Laundry and Dry
Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). Here, Winston’s
claims for physical and sexual abuse appear to have accrued immediately after the assaults
occurred, approximately 20 years ago. As a result, his claims appear to be time barred. And
the fact that Winston was a minor when defendants abused him does not extend the time to
bring an action nearly long enough to allow Winston to bring his claims now. See Wis. Stat.

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§ 893.16 (“If a person entitled to bring an action is, at the time the cause of action accrues,
either under the age of 18 years . . . the action may be commenced within 2 years after [the
person reaches 18.]”). Winston alleges that he is now 33 years old, so his claims became
untimely approximately 13 years ago, when he turned 20.
To save his claims, Winston will need to explain how his complaint is timely. It
appears that Winston’s only option is to make a case for equitable tolling. “Equitable tolling
permits a plaintiff to avoid the bar of the statute of limitations if despite the exercise of all
due diligence he is unable to obtain vital information bearing on the existence of his claim.”
Shropshear v. Corp. Counsel of City of Chi., 275 F.3d 593, 595 (7th Cir. 2001). In the context of
§ 1983 claims, “the state, rather than the federal, doctrine of equitable tolling governs[.]” Id.
at 596. Although Wisconsin case law on equitable tolling is very sparse, it is clear that, as in
Shropshear, tolling is available only when the plaintiff’s failure to meet a filing deadline is out
of the plaintiff’s control or occurred despite the plaintiff’s due diligence. See, e.g., State ex rel.
Griffin v. Smith, 2004 WI 36, ¶ 38, 270 Wis. 2d 235, 677 N.W.2d 259 (“[p]rovided that the
petitioners timely pursue relief,” time limit for filing writ of certiorari is equitably tolled
where counsel promises to file writ but fails to do so); State ex rel. Nichols v. Litscher, 2001 WI
119, 247 Wis. 2d 1013, 635 N.W.2d 292 (30-day deadline for petition for review tolled on
date pro se prisoner delivers correctly addressed petition to proper prison authorities for
mailing). See also Coleman v. Messman, No. 13-cv-566, 2014 WL 4678264, at *3 (W.D. Wis.
Sept. 18, 2014). I will allow Winston the opportunity to demonstrate why I should allow his
claims to proceed.

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ORDER
IT IS ORDERED that:
1. Plaintiff Michael L. Winston may have until November 17, 2016, to show cause
as to why the court should not dismiss this case as time barred.
2. If plaintiff does not timely respond to this order, the court will dismiss this case
with prejudice as time barred.
Entered October 27, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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