Schlemm v. Pizzala

94 F.4th 688

David A. SCHLEMM, Plaintiff-Appellant, v. Brendan PIZZALA, Jay Van Lanen, and Michael Donovan, Defendants-Appellees.

No. 21-2860

United States Court of Appeals, Seventh Circuit

Argued January 25, 2024

Decided March 5, 2024

Appeal from the United States District Court for the Eastern District of Wisconsin.

No. 2:19-cv-00266 — Nancy Joseph, Magistrate Judge.

Alexis Zhang, Anthony J. Dick, Attorneys, Jones Day, Washington, DC, for Plaintiff-Appellant.

Jody J. Schmelzer, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before Hamilton, Brennan, and Kirsch, Circuit Judges.

Kirsch, Circuit Judge.

On December 20, 2012, Brendan Pizzala, a correctional officer at Green Bay Correctional Institution, conducted a random search of inmate David Schlemm's cell. During the search, Pizzala found and confiscated a zip-lock bag containing sage. At correctional officer Jay Van Lanen's direction, Pizzala consulted with Michael Donovan, the prison chaplain, about the bag to determine if it was contraband. Donovan thought Schlemm had stolen the sage from the chapel or during a sweat lodge ceremony because it appeared to be the type of sage the Oneida Nations Tribe donated to the chapel. Pizzala then issued a conduct report to Schlemm for theft.

At the subsequent disciplinary hearing, another correctional officer testified that the bag of sage was the same one he gave Schlemm when Schlemm was first transferred to Green Bay. The conduct report was accordingly dismissed, but Schlemm filed complaints against Pizzala, Van Lanen, and Donovan on January 23, 2013, through the Inmate Complaint Review System (ICRS). In the complaints, he listed the "date of incident" as January 17, 2013, and stated that they accused him of theft and wrote the conduct report to retaliate against him for prior complaints he filed through the ICRS.

Schlemm's administrative complaints were denied, and he appealed to the administrative reviewing authority. The reviewing authority affirmed the rejections of his complaints on February 22, 2013, which completed Schlemm's proper exhaustion of the administrative remedies available to him. Having fulfilled the exhaustion requirement of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915, Schlemm then sued Pizzala, Van Lanen, and Donovan in federal court on February 19, 2019, alleging First Amendment retaliation.

Wis. Stat. § 893.23 provides that when the requirements of a statutory prohibition must be met before a plaintiff can sue, as with the PLRA's exhaustion requirement, the statute of limitations is tolled for the "time of the continuance" of that prohibition. The district court held that Schlemm failed to properly exhaust administrative remedies and thus did not receive the benefit of tolling under § 893.23. It dismissed Schlemm's action as time-barred by the then-applicable six-year statute of limitations because he filed his complaint on February 19, 2019, more than six years after the December 20, 2012, search of his cell. Schlemm appealed.¹

On appeal, Pizzala, Van Lanen, and Donovan abandon their argument that Schlemm's action is time-barred because he improperly exhausted administrative remedies. They now concede proper exhaustion and argue instead that his action is time-barred because § 893.23 does not toll the six-day gap between the accrual of his claim and the filing of his administrative complaints. (Pizzala, Van Lanen, and Donovan broadly construe the accrual date as January 17, 2013—the date on Schlemm's administrative complaints—and Schlemm filed his administrative complaints on January 23, 2013.) Thus, in their view, Schlemm needed to bring his action within six years of February 22, 2013 (when he finished properly exhausting administrative remedies), minus six days. In other words, they argue that he needed to bring his action by February 16, 2019, and was three days late in filing his complaint on February 19, 2019.

We review the district court's dismissal based on the statute of limitations de novo. Towne v. Donnelly, 44 F.4th 666, 670 (7th Cir. 2022). As noted above, Appellees have conceded that Schlemm properly exhausted the administrative remedies available to him. Their only argument for dismissal is that the tolling period excludes the gap between the accrual of a prisoner's claim and the filing of his administrative grievance, making Schlemm's action three days late. But they waived this statute of limitations argument. "[A] party waives the ability to make a specific argument for the first time on appeal when the party failed to present that specific argument to the district court, even though the issue may have been before the district court in more general terms." Duncan Place Owners Ass'n v. Danze, Inc., 927 F.3d 970, 974 (7th Cir. 2019) (quotation omitted). Appellees raised the general argument below that the statute of limitations bars Schlemm's action, but they did not raise the specific argument that his action is time-barred because the tolling period excludes the six-day gap. Instead, they argued below that the action is time-barred because Schlemm did not properly exhaust his administrative remedies.

Rather than offer a "new twist" "as additional support" for their statute of limitations argument, United States v. Billups, 536 F.3d 574, 578 (7th Cir. 2008), Appellees have completely abandoned their improper exhaustion theory, have conceded proper exhaustion, and now solely rely on this new theory based on the six-day gap. They have thus waived their new statute of limitations argument, and this is not the exceptional case in which the waiver has caused no one, including Schlemm and the district court, "any harm of which the law ought to take note." Allen v. City of Chicago, 865 F.3d 936, 944 (7th Cir. 2017) (quotation omitted). We therefore decline to consider the argument, reverse the dismissal, and remand for further proceedings.

We pause to acknowledge that our precedent is inconsistent on whether the gap between claim accrual and grievance filing is included in the tolling period. In Gomez v. Randle, 680 F.3d 859 (7th Cir. 2012), we stated that the relevant Illinois statute of limitations was tolled from the date the prisoner filed his grievance to the date he completed the grievance process, id. at 864. Yet in Bowers v. Dart, 1 F.4th 513 (7th Cir. 2021), we assumed that under the Illinois tolling statute, the gap between accrual and the prisoner's grievance filing was included in the tolling period, id. at 518. We will need to address this question, but given Appellees' waiver, we leave it for another day.

REVERSED AND REMANDED

Hamilton, Circuit Judge, concurring.

I agree with my colleagues that we should reverse and that the defense waived the new theory it has offered on appeal. The new defense theory is also without merit, refuted by the plain language of the governing statute. Explaining why may help clear up some confusion caused by loose language in prior opinions and orders, and it may provide district courts some guidance going forward.

1. The Merits. The new defense theory on appeal is that the statute of limitations for plaintiff's claims was running during the six days between the day of the alleged incident, January 17, 2013, and the day he submitted his grievance, January 23, 2013. If that were correct, plaintiff would have filed his federal case three days too late under Wisconsin's statute of limitations.

But here's the language from the governing state tolling statute: "When the commencement of an action is stayed by injunction or statutory prohibition the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action." Wis. Stat. § 893.23. All parties here agree that a federal statute, 42 U.S.C. § 1997e(a), prohibited plaintiff from commencing this federal lawsuit until he had exhausted available administrative remedies. The requirement to exhaust administrative remedies in 42 U.S.C. § 1997e(a) is a statutory prohibition that stays the commencement of an action. Under Wisconsin's tolling statute, therefore, the time until the prisoner has exhausted administrative remedies should not count toward the statute of limitations on the prisoner's federal claim under 42 U.S.C. § 1983.

It's not difficult to test plaintiff Schlemm's situation against the language of the state statute. Suppose he had tried to file this lawsuit on any of the six days in 2013 that the defense argues should count against him to bar this suit: January 17, 18, 19, 20, 21, and 22. On each of those days, § 1997e(a) prohibited him from commencing the suit. Period. In the language of the Wisconsin statute, that means that those days were "not part of the time limited for the commencement of the action." Wis. Stat. § 893.23. Plaintiff's suit was timely.

The issue should be no more complicated than that. The rest of this concurring opinion addresses the defense arguments and tries to untangle the sources of some conflicting dicta and non-precedential orders on this issue.

2. The Defense Argument. Defendants have no real answer for the textual argument against their theory. Instead, they cite the Wisconsin Supreme Court's decision in Colby v. Columbia County, 202 Wis. 2d 342, 550 N.W.2d 124 (1996). The citation does not help the defendants here. Colby arose under the state tort claims act, which required an injured person to file an administrative notice with a local government before filing suit against that government. The principal issue was whether the statute of limitations clock for tort claims was tolled by filing a premature lawsuit, one filed before filing the required administrative notice. That statutory prohibition operates quite differently than the Prison Litigation Reform Act's requirement to exhaust administrative remedies in 42 U.S.C. § 1997e(a).

Plaintiff Colby was injured in a car accident in March 1990. Colby, 550 N.W.2d at 126. Colby...