Davis, Alonzo v. Onunkwo, Charles et al

Filing 6

ORDER dismissing this case with prejudice as barred by the statute of limitations. The clerk of court is directed to enter judgment in favor of defendants and close this case. Signed by District Judge James D. Peterson on 2/27/2017. (jef),(ps)

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

ALONZO DAVIS,
Plaintiff,
v.
OPINION & ORDER
MILWAUKEE COUNTY, MILWAUKEE
DEPARTMENT OF MENTAL HEALTH
DIVISION, FROEDERT HOSPITAL and
MILWAUKEE POLICE DEPARTMENT,

16-cv-715-bbc1

Defendants.
Pro se plaintiff Alonzo Davis has responded to the court’s January 5, 2017 order
directing him to show cause why this case should not be dismissed as untimely. Because
Davis’s response does not show either that (1) he filed his claims within any of the applicable
statutes of limitations or (2) he is entitled to equitable tolling, I am dismissing the case and
directing the clerk of court to enter judgment.

ANALYSIS
Davis filed this lawsuit on October 31, 2016. The allegations in his complaint relate
to incidents that occurred in September and October 2009. In particular, Davis alleges that
he was detained involuntarily by the Milwaukee Department of Mental Health Division 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

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I am issuing this order because Judge Crabb is on medical leave.

a blood draw, a catheter, and an HIV test. Davis says that he is “permanently physically
disabled” as a result of his treatment.
In his complaint, Davis 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 Crosse, 595
F.3d 691, 694 (7th Cir. 2010). The limitations period for Davis’s state law claims 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
Davis’s claims is that the statute of limitations begins to run when the plaintiff knows or
should know of his injury. Logan v. Wilkins, 644 F.3d 577, 582 (7th Cir. 2011) (“For § 1983
purposes, a claim accrues when the plaintiff knows or should know that his or her
constitutional rights have been violated.”); Doe 56 v. Mayo Clinic Health Systems—Eau Claire
Clinic, Inc., 2016 WI 48, ¶¶ 15, 369 Wis. 2d 351, 363, 880 N.W.2d 681, 687 (“Accrual dates
in medical malpractice claims are based on the date of injury or, if applying the discovery
rule, the date the injury was or should have been discovered.”); Spitler v. Dean, 148 Wis. 2d
630, 633-34, 436 N.W.2d 308, 310 (1989) (“[T]ort claims shall accrue on the date the
injury is discovered or with reasonable diligence should be discovered, whichever occurs
first.”) (internal quotations omitted).
In the January 5 order, I wrote that it appeared from Davis’s complaint that he had
notice of all his alleged injuries in September or October 2009. Because the longest of the
applicable statutes of limitations is six years, and Davis did not file this lawsuit until seven
years after he had notice, I directed Davis to show cause why this case should not be
dismissed as untimely. I noted that a plaintiff is not entitled to equitable tolling of the statute

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of limitations unless he “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).
In response to the court’s order, Davis has filed a lengthy document that is devoted
primarily to providing more detailed allegations regarding the events in September and
October 2009. However, I did not consider the merits of Davis’s claims in the January 5
order and I did not ask Davis to file an amended complaint, so much of his document is not
responsive to the court’s order.
Davis raises three issues in his response that could be relevant to the question of
timeliness. First, he discusses new information that he learned in medical records that he
reviewed for the first time years after his detention. Second, he discusses hardship that he
experienced after he was released. Third, he explains why he abandoned an earlier lawsuit he
filed about the same issues, Davis v. Mental Health Div., No. 15-cv-157-bbc (W.D. Wis.), and
waited another year and a half to file this case. I will consider each issue in turn.
As to the medical records, Davis alleges that he did not learn that he had been
subjected to an HIV test without his consent until he reviewed records from the Milwaukee
Department of Mental Health Division. Thus, these records could be relevant to the
questions of when Davis had notice of any injuries related to that test and when any claims
related to those injuries accrued.
One potential problem with Davis’s allegation is that he provides inconsistent dates
regarding when he obtained these documents. E.g., Dkt. 5, at 5 (January 2014); id. at 9
(March 2014); id. at 12 (May 2014). See also Dkt. 1, at 3 (alleging that he obtained medical
records in September 2013). I need not attempt to resolve these discrepancies because,

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regardless when he obtained the records, he does not allege that he had been unable to obtain
them sooner. Rather, he alleges that he did not even request his records from the department
until 2014, after four law firms declined to represent him and he decided to investigate his
claims on his own. Dkt. 5, at 12. As noted above, under both federal and state law, a claim
accrues when a plaintiff reasonably should have learned of his injury. Davis does not identify
any reason that he could not have requested his records much sooner, so he cannot rely on
the date he reviewed those records as the date his claim accrued. In fact, Davis admits that he
obtained his records from Froedert Hospital in March 2010, Dkt. 5. at 8, and he identifies no
reason why he could not have requested his records from the Department of Mental Health
Division at the same time. Even if I assume that March 2010 was the earliest that Davis
could have received his records from the department and discovered the HIV test, Davis filed
this lawsuit more than six and a half years later, so that claim still would be untimely.
As to the hardship that Davis experienced after he was released from the hospital, that
could be relevant to the question of equitable tolling. Davis alleges that he was “traumatized”
and “emotionally damaged” by his hospitalization, so it took him “six months” to recover. Id.
at 10. Again, however, even if I assume that Davis was unable to act until March 2010, this
does not explain his additional six and a half year delay in filing this lawsuit. Davis says that
he was trying to find a lawyer to represent him during at least some of that time, but “the
inability to find an attorney . . . does not toll the limitations period as plaintiff is not entitled
to representation in [a] civil suit.” Dunn v. Bldg. Trades United Pension Trust Fund, No. 15-cv0026, 2015 WL 7432846, at *2 (E.D. Wis. Nov. 23, 2015).

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Finally, the circumstances around Davis’s previous lawsuit do not show that he is
entitled to equitable tolling. In fact, it is just the opposite. His 2015 lawsuit shows that he
could have filed these claims much earlier but he failed to do so.
In March 2015, Davis filed a complaint in which he alleged that he had been detained
and subjected to involuntary testing and treatment by the “Mental Health Division” and
Froedert Hospital. Davis v. Mental Health Div., No. 15-cv-157-bbc (W.D. Wis.). 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 and because Davis’s
allegations were confusing and vague. Id., at Dkt. 4. Although Judge Crabb gave Davis an
opportunity to amend his complaint, he never responded to the court’s order, so the
complaint was dismissed 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). Once that case was dismissed,
Davis’s statutes of limitations continued to run as if the case had never been filed. Elmore v.
Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000).2
Davis says that he did not respond to the court’s order because he “became sidelined
by a horrific incident that involved my family member Tony Robinson when he was shot and
killed by a Madison police officer in March [2015]. I had absolutely no time to focus on
resubmitting a second complaint in the timeframe that I had.” Dkt. 5, at 12.
Davis does not identify his relationship to Robinson and he does not explain how
Robinson’s death prevented him from complying with the court’s order or at least from
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As I noted in the January 5 order, Dkt. 4, at 3, it is not clear whether Davis’s earlier lawsuit
would bar this one under the doctrine of claim preclusion because Davis is suing different
defendants in this case. Czarniecki v. City of Chicago, 633 F.3d 545, 548 (7th Cir. 2011).

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seeking an extension of time. Regardless, even if I assume that Davis and Robinson were
closely related and that Davis was grief-stricken by the loss of his relative, equitable tolling is
reserved for “[e]xtraordinary circumstances.” United States v. Marcello, 212 F.3d 1005, 1010
(7th Cir. 2000) (citations omitted). Mental health issues do not reach that level unless they
are so severe that they “prevent a plaintiff from discovering or understanding the cause of an
injury.” Barnhart v. United States, 884 F.2d 295, 300 (7th Cir. 1989). For this reason, courts
in this circuit have rejected requests for equitable tolling that rely on the death of a loved
one. Dunn, 2015 WL 7432846, at *2 (pro se plaintiff not entitled to equitable tolling
because of deaths of son and husband); Ocholi v. Wal-Mart Stores E., LP, No. 12-C-1069,
2013 WL 1759423, at *1 (E.D. Wis. Apr. 22, 2013) (pro se plaintiff not entitled to
equitable tolling for death of daughter). Cf. United States v. Marcello, 212 F.3d 1005, 1010
(7th Cir. 2000) (citations omitted) (no equitable tolling for death of attorney’s father).
Davis also says that he waited another year and a half to file this case because he was
involved in a car accident in June 2015 that required him “to go to court for 9 months and
serve 2 months” in prison. Dkt. 5, at 12. In light of my conclusion that Davis could have
filed his lawsuit before June 2015, this allegation cannot help him. In any event, being
incarcerated is not an extraordinary circumstance that justifies equitable tolling. Johnson v.
McCaughtry, 265 F.3d 559, 566 (7th Cir. 2001). Also, although I have no doubt that the
other litigation was “distract[ing]” as Davis alleges, equitable tolling is limited to situations in
which an earlier filing was “not possible.” Farzana K. v. Ind. Dept. of Educ., 473 F.3d 703, 70506 (7th Cir. 2007). Being distracted by other matters does not qualify.

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In sum, none of Davis’s allegations suggest that he filed this lawsuit within any of the
applicable statutes of limitations governing his claims or that he is entitled to equitable
tolling. Accordingly, I am dismissing the lawsuit as untimely.

ORDER
IT IS ORDERED that this case is DISMISSED WITH PREJUDICE as barred by the
statute of limitations. The clerk of court is directed to enter judgment in favor of defendants
and close this case.
Entered February 27, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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