Davis, Alonzo v. Onunkwo, Charles et al

Filing 4

ORDER that plaintiff Alonzo Davis may have until January 26, 2017, tofile a supplemental complaint and any supporting evidence showing that his complaint should not be dismissed. Signed by District Judge James D. Peterson on 1/5/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ALONZO DAVIS,
OPINION and ORDER
Plaintiff,
16-cv-715-bbc1
v.
MILWAUKEE COUNTY,
MILWAUKEE DEPARTMENT
OF MENTAL HEALTH DIVISION,
FROEDERT HOSPITAL and
MILWAUKEE POLICE DEPARTMENT,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Alonzo Davis has filed a complaint about incidents that occurred in
September 2009. In particular, he alleges that he was detained involuntarily by Milwaukee
County and then Froedert Hospital for approximately one month. During his detention, he
was allegedly forced to take unknown medications and undergo a number of medical
procedures, including a blood draw, a catheter and an HIV test. Plaintiff says that he is
“permanently physically disabled” as a result of his treatment, though he does not say why
he believes defendants caused his disability.
Because plaintiff is proceeding in forma pauperis under 28 U.S.C. § 1915, his

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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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complaint is subject to screening by the court. I conclude that the complaint appears to be
untimely. However, before entering judgment, I will give plaintiff an opportunity to show
that his case should not be dismissed.

OPINION
A. Claim Preclusion
A potential threshold problem with plaintiff’s complaint is that he has sued about the
same matter before. In David v. Mental Health Division, No. 15-cv-157-bbc (W.D. Wis.),
plaintiff alleged that he had been detained and subjected to involuntary testing and
treatment by the Milwaukee Behavioral Health Division and Froedert Hospital.
Judge Crabb screened the complaint and dismissed it without prejudice because the
only defendant listed in the caption—the Mental Health Division—was not a suable entity.
Judge Crabb asked plaintiff to clarify whether he was trying to sue Milwaukee County. Id.
at dkt. #4. In addition, Judge Crabb noted that many of the allegations were difficult to
follow, so she asked him to file an amended complaint that more clearly explained what had
happened to him. Id. When plaintiff did not respond to the order, Judge Crabb dismissed
the complaint with prejudice and the clerk of court entered judgment. Id. at dkt. ##5 and
6. See also Paul v. Marberry, 658 F.3d 702, 704-06 (7th Cir. 2011) (when plaintiff fails to
correct pleading defect, dismissal should be with prejudice).
Generally, a plaintiff may not file two lawsuits arising out of the same set of facts.
Czarniecki v. City of Chicago, 633 F.3d 545, 548 (7th Cir. 2011). Although Judge Crabb

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did not decide in case no. 15-cv-157-bbc whether plaintiff’s allegations stated a violation of
the law, when plaintiff failed to respond to the court’s order, the judgment became final and
preclusive. Muhammad v. Oliver, 547 F.3d 874, 876 (7th Cir. 2008) ("[W]hen a suit is
abandoned after an adverse ruling against the plaintiff, the judgment ending the suit . . . will
generally bar bringing a new suit that arises from the same facts as the old one").
The one potential barrier to applying the doctrine of claim preclusion is that the
doctrine generally requires the parties to be the same in both cases. Czarniecki, 633 F.3d
at 548. Although the body of plaintiff’s complaint in case no. 15-cv-157-bbc discusses all
of the defendants listed in the complaint in this case, the Mental Health Division was the
only defendant in the caption of the complaint in case no. 15-cv-157-bbc.
There are a number of exceptions to the general rule requiring an identity of parties
to apply claim preclusion. For example, claim preclusion may apply when a new party has
a particular legal relationship with a party sued previously. Taylor v. Sturgell, 553 U.S. 880,
893–94 (2008). However, I need not decide whether the Department of Mental Health
Division is sufficiently related to some or all of the defendants in this case because plaintiff
filed this lawsuit after each of the relevant statutes of limitations expired.

B. Statute of Limitations
In his complaint, plaintiff says that he is suing defendants for “neglect, violations of
my civil rights, physical and emotional distress, medical malpractice.” In Wisconsin, the
statute of limitations for a violation of constitutional rights is six years. Reget v. City of La

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Crosse, 595 F.3d 691, 694 (7th Cir. 2010). The limitations period for the state law theories
plaintiff cites is three years.

Wis. Stat. § 893.57 (intentional torts); Wis. Stat. §

893.55(1m)(a) (medical malpractice); Wis. Stat. § 893.54 (negligent injury to persons). The
general rule for all of plaintiff’s claims is that the statute of limitations begins to run when
the plaintiff has notice of his injury. Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir.
2012); Doe 56 v. Mayo Clinic Health Systems—Eau Claire Clinic, Inc., 2016 WI 48, ¶¶
15-17, 369 Wis. 2d 351, 363–64, 880 N.W.2d 681, 687–88; Spitler v. Dean, 148 Wis.2d
630, 636, 436 N.W.2d 308 (1989).
In this case, it appears that plaintiff had notice of all of his injuries in September
2009. Obviously, plaintiff knew at the time that he was being detained and that defendants
were subjecting him to various medical procedures. Although injuries related to medical
malpractice are not always apparent immediately, plaintiff does not suggest that his injuries
were hidden from him for any period of time. Rather, in his complaint in case no. 15-cv157-bbc, plaintiff alleged that he was disabled from the time he was released from the
hospital in late September or early October 2009. Dkt. #1 at 10. Thus, it appears that
more than six years had passed by the time plaintiff filed this case on October 31, 2016, so
the statute of limitations has run on all of his claims.
The deadline for filing a claim may be extended under the doctrine of equitable
tolling, but that doctrine applies only when the plaintiff “diligently pursued [his] claim” and
“some extraordinary circumstances prevented [him] from timely filing [his] complaint.”
Blanche v. United States, 811 F.3d 953, 962 (7th Cir. 2016). Because plaintiff’s previous

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lawsuit in 2015 shows that he could have filed his claims more than a year and a half earlier,
it seems unlikely that he could meet the standard for tolling.
In both of his complaints, plaintiff says that he uncovered new documents in
September 2013 that support his claims. Plaintiff does not specify what was in those
documents, but, if plaintiff means to rely on his alleged discovery to justify his delay in filing,
what he has alleged thus far is not helpful. As an initial matter, because more than three
years passed between September 2013 and the date plaintiff filed this lawsuit, all of
plaintiff’s state law claims still would be untimely, even if plaintiff’s claims did not accrue
until September 2013. Moreover, as discussed above, the statute of limitations begins to run
when a plaintiff has notice of his injury, not when he discovers additional evidence to help
him prove his claim. Thus, unless the documents revealed an injury of which plaintiff could
not have been aware earlier, the documents would not have any bearing on the date that his
claim accrued and the limitations period began to run.
Although it seems unlikely that plaintiff will be able to show that any of his claims
accrued within the limitations period or that he is entitled to equitable tolling, I will give him
one opportunity to make that showing with a supplemental complaint and any supporting
evidence that he has. If he fails to respond by the deadline, I will dismiss his case with
prejudice.
If plaintiff chooses to try to show that his complaint is timely, he should address
another issue as well. In particular, at the end of his complaint, plaintiff lists several
individuals as “personal parties involved in incident,” including a police officer and three

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doctors. However, plaintiff did not include any of these individuals in the caption of his
complaint, so it is not clear whether he intends to sue them. Fed. R. Civ. P. 10(a) ("In the
complaint the title of the action shall include the names of all the parties"). If plaintiff does
intend to sue the individual defendants, he should file an amended complaint in which he
includes those individuals in the caption. If he fails to do so, I will assume that defendants
Milwaukee County, Milwaukee Department of Mental Health Division, Froedert Hospital
and the Milwaukee Police Department are the only entities that plaintiff wishes to sue.

ORDER
IT IS ORDERED that plaintiff Alonzo David may have until January 26, 2017, to
file a supplemental complaint and any supporting evidence showing that his complaint
should not be dismissed. If plaintiff does not respond by January 26, 2017, I will dismiss
the case with prejudice and direct the clerk of court to enter judgment.
Dated January 5, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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