DeGrave, Cody v. State of WI D.O.C., et al.

Filing 7

ORDER that plaintiff Cody Michael DeGrave may have until December 9, 2021, to show cause as to why the court should not dismiss this case as time barred. Signed by District Judge William M. Conley on 11/18/2021. (kmd),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CODY MICHAEL DEGRAVE,
Plaintiff,

OPINION AND ORDER

v.
21-cv-256-wmc
STATE OF WISCONSIN D.O.C,
LINCOLN HILLS SCHOOL
FOR BOYS, and MS. SOMMERS,
Defendants.
Pro se plaintiff Cody Michael DeGrave brings this civil lawsuit alleging that a
member of the Lincoln Hills School staff sexually assaulted him several times after he was
sent there in 1999. Since DeGrave is proceeding without prepayment of the filling fee, the
next step is to screen DeGrave’s complaint and dismiss any portion that is legally frivolous,
malicious, fails to state a claim upon which relief may be granted, or asks for monetary
damages from a defendant who by law cannot be sued for money damages. 28 U.S.C.
§ 1915(e)(2). Because DeGrave’s claims appear to be barred by the applicable statute of
limitations, the court will order him to show cause as to why his case should not be
dismissed.

ALLEGATIONS OF FACT1
Publicly available records indicate that DeGrave was born in 1982.2 DeGrave
alleges that he was convicted of a felony in 1999, when he would have been approximately
17 years old, and sent to the Lincoln Hills School for Boys in Irma, Wisconsin.3 There, he
was housed in Dubois Cottage. Over the next few months, a staff member named Ms.
Sommers would allegedly approach DeGrave and ask him “about [his] sexuality” and other
“inappropriate sexual questions.” (Dkt. #1 at 2.) The complaint does not specify what
Ms. Sommers’s job was at Lincoln Hills, but DeGrave alleges that she would “pull [him]
out of his cell after lockdown to talk to her in the office” where he had repeated unwanted
sexual contact with her that he did not report out of fear of retaliation. (Dkt. #1 at 3.)
DeGrave alleges that he was left “emotionally and mentally traumatized” by this
experience, which has “negatively affected [his] entire life.” (Dkt. #1 at 3.) He seeks
compensatory and punitive damages.

In addressing any pro se litigant’s complaint, the court must read the allegations of the complaint
generously, resolving ambiguities and making reasonable inferences in plaintiff’s favor. Haines v.
Kerner, 404 U.S. 519, 521 (1972).
1

When DeGrave filed this lawsuit, he was incarcerated at the Brown County Jail in Green Bay,
Wisconsin. (Dkt. #1 at 1.) DeGrave’s page on the Brown County Jail’s “Inmate Lookup” website
states that his birth year is 1982. See http://www.lookup.inmate.oms.jail.co.brown.wi.us:8081/IML.
Plaintiff can indication whether this information is correct in his response to this order, should he
chose to file one.
2

DeGrave does not indicate when he was released from Lincoln Hills, but a juvenile, under certain
circumstances, can remain in custody until the age of 25. Wis. Stat. § 938.355(4)(b) (providing
that a dispositional order made before the juvenile turns 18 “shall apply . . . until the juvenile
reaches 25 years of age, if the juvenile is adjudicated delinquent [for certain offenses].”).
3

2

OPINION
Although the complaint does not specify a statutory or constitutional basis for this
suit, the court assumes plaintiff means to proceed under 42 U.S.C. § 1983, which
authorizes suits to vindicate federal statutory and constitutional rights against state and
local government officials. Plaintiff’s allegations of sexual abuse are very serious and may
state claims against Ms. Sommers. But plaintiff has a timing problem: the alleged abuse
occurred about 22 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
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 the complaint that the alleged offenses occurred
or began occurring in 1999, which immediately prompts the court to consider the
applicable statute of limitations.
Because § 1983 does not have a limitations period, federal courts adopt the forum
state’s applicable statute of limitations for personal injury claims. Johnson v. Rivera, 272
F.3d 519, 521 (7th Cir. 2001). Although Wisconsin’s limitation period applies, federal
law governs when plaintiff’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

3

U.S. 192, 201 (1997)).
None of the statutes of limitations that could apply to plaintiff’s claims appear to
allow him to bring this civil lawsuit over two decades after the alleged events occurred. To
begin, Wis. Stat. § 893.53, which governs actions “for injury to character or other rights,”
set a six-year statute of limitations at the time the alleged abuse occurred. See Wis. Stat.
§ 893.53 (vers. eff. Jul. 1, 1980 to Apr. 4, 2018); see also Gray v. Lacke, 885 F.2d 399, 409
(7th Cir. 1989) (Wisconsin’s statute of limitations for violations of “general personal
rights” was the most analogous to claims arising under 42 U.S.C. § 1983). Before February
26, 2010, Wis. Stat. § 893.57, governing actions to recover damages for intentional torts
including assault, set a two-year statute of limitations. Here, plaintiff’s sexual abuse claims
appear to have accrued immediately after the assaults occurred in 1999. The two-year and
six-year statute of limitations would therefore have begun to run approximately 22 years
ago, expiring in 2001 and 2005 respectively. Even if the court assumed plaintiff had
remained at Lincoln Hills until 2007, when he would have turned 25, and his claims
accrued then, the three and six-year statutes of limitations would have expired in 2009 and
2013.
Nor does plaintiff’s status as a minor when the alleged abuse occurred appear to
extend the time to bring an action long enough for him to bring his claims now. See Wis.
Stat. § 893.16(1) (“If a person entitled to bring an action is, at the time the cause of action
accrues . . . under the age of 18 years . . . the action may be commenced within 2 years
after [the person reaches 18.]”); see also Wis. Stat. § 893.587 (tolling the limitations period
for claims of sexual assault involving a child until the plaintiff reaches the age of 35). As

4

noted, plaintiff was born in 1982. It is not clear whether the alleged assaults that began
in 1999 continued after plaintiff turned 18 in 2000, but even if they did not, plaintiff
turned 20 in 2002, and 35 in 2017, before he filed this lawsuit.
To proceed, plaintiff will need to explain how his complaint is timely. Unless he
can show that any of the factual premises in this opinion regarding the timeline of events
are incorrect, or that some other state statute of limitations applies and saves his claims,
his only option appears to be equitable tolling, which is granted sparingly and in
extraordinary circumstances. “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). Federal courts use the tolling rules of whichever
jurisdiction supplies the statute of limitations, id. at 596, meaning Wisconsin’s tolling rules
apply here. “Although Wisconsin case law on equitable tolling is relatively 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.” Henderson v. Jess, 18-cv-680-jdp, 2021 WL 1080269, at *9 (March 19, 2021);
see, e.g., State ex rel. Asik v. Tegels, 2020 WI App 31, ¶ 3, 392 Wis. 2d 382, 944 N.W.2d 361
(equitable tolling doctrines may apply if circumstances beyond the prisoner’s control
prevent timely filing); 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-

5

day deadline for petition for review tolled on date pro se prisoner delivers correctly
addressed petition to proper prison authorities for mailing); see also Winston v. Pamela H.,
No. 16-cv-610-jdp, 2016 WL 6808181, at *2 (W.D. Wis. Nov. 17, 2016) (equitable
tolling did not apply to plaintiff alleging sexual abuse at Lincoln Hills 20 years before filing
lawsuit).
Although plaintiff alleges that he feared retaliation while at Lincoln Hills4, that does
not account for the subsequent delay in filing this lawsuit after he was released. Moreover,
courts have expressed skepticism towards fear of retaliation as basis for equitable tolling,
at least when generally alleged. E.g., Rosenblum v. Yates, No. 09-cv-3302, 2011 WL 590750,
at *3 (E.D. Cal. Feb. 10, 2011) (plaintiff’s “generalized allegation [of] fear of retaliation”
was “insufficient to meet his high burden”); Davis v. Jackson, No. 15-cv-5359 (KMK), 2016
WL 5720811, at *8-12 (S.D.N.Y. Sept. 30, 2016) (although the specific facts alleged
amounted to extraordinary circumstances meriting equitable tolling, “[g]eneralized
allegations of fear of retaliation” would be insufficient); Fox v. Lackawanna Cty., No. 3:16cv-1511, 2017 WL 5007905, at *9 (M.D. Pa. Nov. 2, 2017) (even if a reasonable fear of
retaliation in the prison context may, on occasion, justify equitable tolling, this principle

Plaintiff also alleges that the alleged abuse left him “emotionally and mentally traumatized.” (Dkt.
#1 at 3.) To the extent plaintiff suggests he has suffered mental illness, that can, in some situations,
warrant equitable tolling. See, e.g., Davis v. Humphreys, 747 F.3d 497, 499 (7th Cir. 2014) (mental
incompetence can satisfy the standard for equitable tolling). But “mental illness tolls a statute of
limitations only if the illness in fact prevents the sufferer from managing his affairs and thus from
understanding his legal rights and acting upon them.” Obriecht v. Foster, 727 F.3d 744, 750-51 (7th
Cir. 2013) (quoting Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)). Plaintiff would therefore
have to explain specifically how any symptoms actually prevented him from bringing his claims, or
so continuously and severely affected him that he was unable to make any effort to pursue his claims
before now, and what has changed so that he can now bring his claims.
4

6

would not be applicable where a plaintiff had been released from prison years before his
claims were filed).
Still, there may be more to the story, so the court will give plaintiff a chance to
respond to this order, explaining whether equitable tolling applies to his case, or whether
there is some other reason to reconsider the discussion above regarding the statute of
limitations.

ORDER
IT IS ORDERED that plaintiff Cody Michael DeGrave may have until December
9, 2021, to show cause as to why the court should not dismiss this case as time barred.
Entered this 18th day of November, 2021.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

7