Seventh Circuit Avoids Deciding Whether Wisconsin Statute of Limitations Tolls from Prisoner’s Incident or Grievances
by David M. Reutter
On March 5, 2024, the U.S. Court of Appeals for the Seventh Circuit vacated dismissal of a Wisconsin prisoner’s civil rights action for failure to exhaust administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e. Defendant state Department of Corrections (DOC) officials had reversed course on appeal, conceding exhaustion. Instead they argued that the statute of limitations time-barred the claims of Green Bay Correctional Institution (GBCI) prisoner David Schlemm.
When guard Brendan Pizzala conducted a random search of the prisoner’s cell on December 20, 2012, he uncovered a Ziplock bag containing sage. Following the direction of fellow guard Jay Van Lanen, Pizzala consulted prison chaplain Michael Donovon. Together, they drew the conclusion that Schlemm had stolen the sage from donations made to the chapel by the Oneida Nations Tribe.
Schlemm was issued a disciplinary report for theft. But at the hearing on that report, another guard testified that the bag of sage was the same that he gave to Schlemm when he arrived at the prison. That was sufficient to get the misconduct report dismissed. Schlemm then went through the grievance process to challenge the theft charge, arguing it was lodged in retaliation for his prior grievances.
He filed his complaint pro se under 42 U.S.C. § 1983 on February 19, 2019. The district court dismissed the action, not because Schlemm failed to exhaust his remedies, as Defendants argued, but because the complaint was time-barred by the then-applicable six-year statute of limitations, calculated from the cell search on December 20, 2012. Schlemm appealed.
At the Seventh Circuit, Defendants switched course, conceding exhaustion. Instead they argued that the action was time-barred, pointing to an alleged gap from the date the claim accrued to the date Schlemm filed a grievance. By their calculation, his claim needed to be filed by February 16, 2019, so it was three days late.
The Seventh Circuit affirmed the district court’s ruling, ignoring the new statute of limitations argument; that was waived, the Court said, when Defendants failed to raise it in the district court. The Court “pause[d] to acknowledge” its “precedent is inconsistent on whether the gap between claim accrual and grievance filing is included in the tolling period.” But the question was left for another day since Defendants had not properly preserved it for review.
In a concurring opinion, Judge David F. Hamilton said that the Court does “not count the time between accrual of the plaintiff’s claim and his filing of the grievance that launched the administrative remedies process.” That holding was made clear in Bowers v. Dart, 1 F.4th 513 (7th Cir. 2021), he said, and “[t]he misreading” of Johnson v. Rivera, 272 F.3d 519 (7th Cir. 2001) led to an approach that held “the tolling period starts only when the prisoner files his grievance and ends when the administrative review process is over.”
Judge Hamilton further found that “unfortunate loose language” used in Gomez v. Randle, 680 F.3d 859 (7th Cir. 2012), which did not engage with the statutory language, led to confusion and conflicting opinions. District courts he therefore encouraged to “skip over dicta and non-precedential orders and focus primarily on the statutory language.” Before the Court, Schlemm was represented by attorney Alexis Zhang with Jones Day in Washington, D.C. See: Schlemm v. Pizzala, 94 F.4th 688 (7th Cir. 2024).
The case then returned to district court, where Schlemm, 55, once again proceeded pro se. An amended scheduling order was issued in April 2024, but GBCI returned Schlemm’s copy as undeliverable. It was re-mailed to him that same month at Jackson Correctional Center, where DOC said he was still held in early September 2024. Hopefully for Schlemm, this is a minor delay, and PLN will be able to update developments in case as they are available. See: Schlemm v. Pizzala, USDC (E.D. Wisc.), Case No. 2:19-cv-00266.
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