Tayr Kilaab Al Ghashiyah (Khan) v. Jess
| Docket Number | 21-CV-1479-JPS |
| Decision Date | 29 August 2023 |
| Parties | TAYR KILAAB AL GHASHIYAH (KHAN), Plaintiff, v. CATHY JESS, GARY BOUGHTON, M. KARTMAN, JAMES SCHWOCHORT, YANA PUSICH, ELLEN RAY, WILLIAM BROWN, A. BUSS, T. FREDLUND, MS. WASHETAS, J. BELOUNGY, MS. KENNEDY, MR. THOMAS, NEVIN WEBSTER, V. REISEN, TONIA MOON, MS. GYR, JASON JACKSON, JAILOR LEFFLER, JAILOR MORRIS, JAILOR HULCE, JAILOR MCDANIEL, JANE DOE, and DEPARTMENT OF CORRECTIONS, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
On December 29, 2021, various defendants removed this case from Kenosha County Circuit Court pursuant to 28 U.S.C §§ 1441, 1446. ECF No. 1. Pending before the Court is Defendants' amended motion to dismiss various claims ECF No. 23, Plaintiff's request for sanctions against defense counsel, ECF No. 25, Plaintiff's motion to appoint counsel, ECF No. 31, and Plaintiff's motion for an order to substitute judges, ECF No. 32.
Defendants seeks to dismiss various claims from this action. The Court first provides a brief overview of the relevant facts, the relevant legal standard, and then analyzes each argument in turn. As described below, the Court grants Defendants' motion to dismiss various claims and denies Plaintiff's motions for sanctions, counsel, and to substitute.
Plaintiff's complaint is thirty-nine (39) pages long, names fifty-nine (59) defendants, and covers incidents occurring over a period of years. ECF No. 1-1. The Court previously dismissed various defendants for the failure to serve them, and twenty-three defendants remain. See ECF No. 29. As such, the Court will briefly summarize the relevant facts, only as needed to address the pending motion to dismiss.
Plaintiff alleges that in 1988, he legally changed his name to Tayr Kilaab al Ghashiyah (“Bird dog the Over-whelming event”).[1] Id. ¶ 34. Since that time, he has maintained that he practices as a Muslim under Islam beliefs. Id. In 2001, Plaintiff legally changed his name within the Brown County Judicial System from John Casteel to Tayr Kilaab al Ghashiyah. Id. ¶ 35. Plaintiff sued the Department of Corrections (“DOC”) and multiple employees for refusing to allow him to use only his legal name at several different institutions over a span of eleven years. Id. He describes that the DOC prohibited him from using his new name initially because he was only permitted to use the name that appeared on his judgment of conviction. Id. ¶ 36. At some point, the DOC “reversed course” and began permitting him to use his new name as long as he referred to the former name by using “Casteel” and his DOC number on forms. Id. ¶ 37.
In 2005, the DOC reported to a federal court that the DOC would permit Plaintiff to use his full legal name without reference to “Casteel” for mail, visits, and business purposes, including any notary and financial matters. Id. ¶ 38. On April 18, 2005, Pamela S. Fuller issued a memorandum to all prisoner departments to permit Plaintiff to use his legal name without reference to his former name. Id. ¶ 39. Plaintiff was allowed to use his new legal name until January 17, 2007 when he was transferred to the Wisconsin Secure Program Facility. Id. ¶¶ 40, 41.
On February 22, 2007, Diane Alderson issued a memorandum stating, “Effective 2/22/2007, per Department of Justice (DOJ) you are allowed to use only your legally changed name along with your DOC number, on any mail going in or out of WSPF.” Plaintiff was required to use his incarcerated name, along with his legally changed name, for correspondence within the institution. Id. ¶ 43. Plaintiff provided Defendants with constructive notice that the dual name policy violated his federal and state law rights. Id. ¶ 44.
Plaintiff alleges all Defendants knew or should have known based on a 1995 decision, Malik v. Brown, 71 F.3d 724 (9th Cir. 1995), that in states where incarcerated persons are permitted to change their name legally, prison employees are generally required to recognize only the legal changed name. Id. ¶ 47. Plaintiff alleges various legal conclusions that Defendants violated his rights, including his liberty interests under the Substantive Due Process Clause; that Defendants failed to perform their mandatory duties under Wis.Stat. §§ 301.04, 302.04, 302.08 and the “original Wisconsin constitution;” and that Defendants prohibited his “attempts to process inmate grievances and freedom to exercise individual religious tenets and beliefs at all times relevant to this complaint . . . in violation of the due process clause of the Fifth Amendment and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” Id. ¶¶ 49-53.
Plaintiff then describes numerous alleged incidents from 2007 - 2018 during which staff did not process his disbursement forms, mail, library material requests, interview request forms, notary request, and complaints because he did not include his dual name on the documents. Id. ¶¶ 60-185. The Court will not elaborate on each instance, however, because as discussed below, the majority of these claims are barred by the statute of limitations.
Federal Rule of Civil Procedure 12(b) provides for dismissal of complaints which, among other things, fail to state a viable claim for relief. Fed.R.Civ.P. 12(b)(6). To state a claim, a complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In other words, the complaint must give “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations must “plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level.” Kubiak v. City of Chicago, 810 F.3d 476, 480 (7th Cir. 2016) (internal citation omitted). Plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.” Olson v. Champaign County, 784 F.3d 1093, 1099 (7th Cir. 2015) (internal citations and quotations omitted). In reviewing the complaint, the Court is required to “accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff.” Kubiak, 810 F.3d at 480-81. However, the Court “need not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (internal citations and quotations omitted).
Specifically, Defendants seek dismissal of the following claims: all claims against the DOC; federal constitutional claims from before November 9, 2015 and from April 5, 2018 - November 9, 2018; all Religious Freedom Act (“RFRA”) or Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claims; any State constitutional claims; any State statutory claims; all criminal conspiracy claims; Plaintiff's grievance claims; and claims that rely solely on supervisor liability. ECF No. 24 at 1-2. The Court analyzes each argument separately below.
3.1 Federal Constitutional Claims - Statute of Limitations
Plaintiff's complaint was filed on November 9, 2021. ECF No. 1-1. The allegations in Plaintiff's complaint stem from incidents occurring from 2007 through 2018. See ECF No. 1-1. Defendants argue that all of the 42 U.S.C. § 1983 claims from before November 9, 2015 and from April 5, 2018 through November 9, 2018 should be dismissed on statute of limitations grounds. ECF No. 24 at 9. Plaintiff first argues that a tolling provision that was in effect in 1985, the year of his conviction, expands his statute of limitations to eleven years. ECF No. 25 at 3. Alternatively, Plaintiff argues his claims are not barred by the statute of limitations because of the “continuing violation” theory. Id. at 4. Plaintiff cites to Turley v. Rednour, 729 F.3d 645 (7th Cir. 2013), in support of his argument that his cause of action accrues from the date of the last incidence of that violation. Because Defendants had not discussed the continuing violating theory, the Court ordered supplemental briefing on this issue. See ECF No. 29.
The Court begins its discussion with an overview of § 1983 statute of limitations and what law applies with respect to tolling and dates of accrual. Actions brought under § 1983 which accrued prior to April 5, 2018, have a six- year statute of limitations in Wisconsin, and actions which accrued after April 5, 2018 have a three-year statute of limitations in Wisconsin. Huber v. Anderson, 909 F.3d 201, 207 (7th Cir. 2018) (citing 2017 Wis. Act 235 (eff. Apr. 5, 2018)) (reducing applicable statute of limitations from six to three years).
To properly apply either the applicable six- or three-year statute of limitation, however, the Court must first know the date a claim accrued. As identified above, the statute of limitations for suits under § 1983 is supplied by state law-not only the limitations period but also the tolling rules. Heard v. Sheahan, 253 F.3d 316, 317 (7th Cir. 2001) (citing Wilson v. Garcia, 471 U.S. 261, 275 (1985); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464 (1975)). “Tolling interrupts the statute of limitations after it has begun to run, but does not determine when it begins to run; that question is the question of accrual, [citation] and in section 1983 suits as in other suits under federal law the answer is furnished by federal common law rather than by state law.” Heard, 253 F.3d at 317-18. “Under those common-law tort principles, claims accrue when a plaintiff has a complete and present cause of action.” Savory v. Cannon, 947 F.3d 409, 414 (7th Cir. 2020). The Seventh Circuit has clarified...
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