Jason Olrich v. Kenosha County

                         NONPRECEDENTIAL DISPOSITION
                 To be cited only in accordance with Fed. R. App. P. 32.1

                 United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                Submitted October 15, 2020*
                                 Decided October 16, 2020


                            JOEL M. FLAUM, Circuit Judge

                            ILANA DIAMOND ROVNER, Circuit Judge

                            MICHAEL Y. SCUDDER, Circuit Judge

Nos. 19-2559 & 19-2560

JASON OLRICH,                                       Appeals from the United States District
     Plaintiff-Appellant,                           Court for the Eastern District of Wisconsin.

       v.                                           Nos. 18-cv-1981-pp & 18-cv-1982-pp

KENOSHA COUNTY, et al.,                             Pamela Pepper,
    Defendants-Appellees.                           Chief Judge.


        Jason Olrich filed two suits in 2018 alleging that Kenosha City and County
officials violated his Fourth, Fifth, and Fourteenth Amendment rights during arrests in
2007 and 2012. The district court dismissed both suits, concluding that his claims were
either time-barred or legally insufficient. Olrich appeals each ruling, and in light of their
similarities, we have consolidated his appeals for decision. Because the Fourth and

        Appellees were not served with process in the district court and are not
participating in this appeal. We have agreed to decide these cases without oral
argument because the appellant’s brief and record adequately present the facts and
legal arguments, and oral argument would not significantly aid the court. See FED. R.
APP. P. 34(a)(2)(C).
Nos. 19-2559 & 19-2560                                                               Page 2

Fourteenth Amendment claims accrued outside of the applicable limitations period, and
because no incriminating statements were allegedly used against him within the
limitations period, we affirm both judgments.

        Olrich’s suits allege that during two encounters state officials coerced him into
giving false statements. The first encounter occurred in 2007. Olrich alleges that deputy
sheriffs from Kenosha arrested him on drug charges, denied his requests for a phone
and a lawyer, forced him to “contract” to be a confidential informant, and when Olrich
later refused to inform, he was arrested and again denied an attorney. The second
encounter occurred in May 2012. Two Kenosha police officers arrested Olrich for selling
marijuana, denied his requests for an attorney, and physically coerced him to sign a
confession, which led to charges that were quickly dropped. Then four years later, in
2016, when Olrich was prosecuted for an unrelated crime, a prosecutor sought to admit
information about the 2007 and 2012 arrests. This was the first time Olrich saw reports
about his earlier encounters and believes that they contain information that is false.

        These suits, filed in December 2018 under 42 U.S.C. § 1983, came more than 11
years after the first encounter and 6 years after the second. In the first suit, he sues the
sheriff’s deputies who arrested him in 2007; in the second he sues an officer who
arrested him in 2012. Because Olrich is now in prison, the district court screened both
complaints under 28 U.S.C. § 1915A. It concluded that Olrich’s claims about unlawful
arrests and abuse during the interrogations in 2007 and May 2012 were, when he sued
in December 2018, untimely under Wisconsin’s six-year statute of limitations.
Regarding Olrich’s remaining claim that a violation of the Fifth Amendment accrued in
2016, the district court ruled that his complaint did not state sufficient facts. The
complaint, for example, did not identify the information obtained from his old arrests
or allege whether the prosecutor was allowed to use any of that information. Olrich
moved to reconsider the rulings, re-arguing the accrual dates on his claims and
invoking the “discovery” rule and the continuing-violations doctrine. The court denied
the motions. It reasoned that Olrich knew about his alleged injuries by May 2012, and
any discovery of evidence in 2016 did not prevent him from filing his complaints

       On appeal, Olrich maintains that his claims are timely. Although failure to bring
a claim within the limitations period is an affirmative defense, district courts may
nonetheless dismiss a case under § 1915A as untimely when the complaint alleges facts
that reveal that the claims are time-barred. Jones v. Bock, 

549 U.S. 199

, 215 (2007). Under
§ 1983, federal courts borrow the limitations period from the personal-injury laws of the
Nos. 19-2559 & 19-2560                                                               Page 3

forum state, here, Wisconsin. Malone v. Corr. Corp. of Am., 

553 F.3d 540

, 542 (7th Cir.
2009) (citing Wilson v. Garcia, 

471 U.S. 261

, 266, 279 (1985)). At the time of the events
alleged in Olrich’s complaints, this period was six years from the date that the claims
accrued. WIS. STAT. § 983.35 (1979). Federal law dictates when the claims accrued. Huber
v. Anderson, 

909 F.3d 201

, 207 (7th Cir. 2018).

       We first address the claims in both suits under the Fourth Amendment (for
unlawful arrest) and Fourteenth Amendment (for abuse during detention). Olrich filed
the suits in December 2018, so to be timely these claims must have accrued no earlier
than December 2012. Claims of unlawful arrest accrue either when the detention ends,
see Manuel v. City of Joliet, 

903 F.3d 667

, 670 (7th Cir. 2018), or when detention converts
to one authorized by valid legal process (like arraignment), Wallace v. Kato, 

549 U.S. 384

389–90 (2007). Olrich’s arrests in 2007 and May 2012 allegedly occurred and ended more
than six years before December 2018, rendering them untimely. The same is true of
Olrich’s claims that officers violated the Fourteenth Amendment by physically abusing
him during his detentions in 2007 and May 2012. Any excessive force during a
detention “is immediately actionable,” Evans v. Poskon, 

603 F.3d 362

, 363 (7th Cir. 2010),
so these claims too accrued more than six years before December 2018. The district court
therefore correctly dismissed these claims.

       Olrich replies that his claims are not time-barred by virtue of the discovery rule
and the continuing-violations doctrine, but he is incorrect. The discovery rule applies
when a plaintiff does not learn of an injury and who caused it until after its occurrence.
United States v. Norwood, 

602 F.3d 830

, 837 (7th Cir. 2010) (citing United States v. Kubrick,

444 U.S. 111

(1979)). Olrich, however, was present at his arrests and detention. Nothing
prevented him from appreciating any alleged violations that occurred. Olrich admits as
much by alleging that, shortly after his arrests, he put them behind him when he could
not find an attorney to help him sue. Likewise, the continuing-violations doctrine
applies only to claims necessarily comprised of a string of connected wrongful acts that,
though beginning outside the limitations period, ends within the period (like hostile
work environment claims). Nat’l R.R. Passenger Corp. v. Morgan, 

536 U.S. 101

, 115–17
(2002). Each constitutional violation Olrich alleges, however, constitutes its own
singular, discrete event and ended outside of the limitations period.

      That brings us to Olrich’s claims under the Fifth Amendment. He argues that
when the officers in 2007 and 2012 refused his requests for counsel and questioned him
anyway, they violated his Fifth Amendment right against self-incrimination. A Fifth
Amendment claim based on a denial of counsel during an interrogation accrues only if
Nos. 19-2559 & 19-2560                                                               Page 4

and when any inculpatory statements obtained without counsel are used against the
plaintiff in a criminal case. See Johnson v. Winstead, 

900 F.3d 428

, 434 (7th Cir. 2018).
Olrich contends that this occurred in 2016 when, during a trial on unrelated charges, a
prosecutor attempted to offer into evidence information about his 2007 and 2012 arrests.
This criminal trial took place in 2016, so Olrich concludes that his Fifth Amendment
claims would be timely in 2018.

       Even if these claims were timely, the district court still rightly dismissed them
because Olrich does not adequately allege a violation. He alleges only that he was
notified in 2016 that the prosecution moved to admit information about the 2007 and
2012 arrests. As the district court observed, this allegation is insufficient because Olrich
does not state that the prosecution sought to use incriminating statements that he made
after he requested counsel, or even that the prosecutor’s motion was granted. Given
these omissions, we cannot plausibly infer a violation of the Fifth Amendment.

        We have considered whether Olrich should receive an opportunity to amend his
complaint to rectify these omissions, but conclude that an amendment is unnecessary.
When a complaint fails to state a claim, the plaintiff ordinarily should receive at least
one opportunity to amend it, unless an amendment would be futile. Runnion ex rel.
Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 

786 F.3d 510

, 520 (7th Cir. 2015). This
norm is even more acute when the district court exercises its authority to dismiss a
claim sua sponte. Luevano v. Wal-Mart Stores, Inc., 

722 F.3d 1014

, 1022 (7th Cir. 2013). In
dismissing the Fifth Amendment claims, however, the district court told Olrich about
these omissions. Yet despite the court’s advice about his claims’ defects, Olrich did not
assert, either during his motions for reconsideration in the district court or to us on
appeal, that he can cure these shortcomings. Because he has not given us any reason to
believe that an amendment might be worthwhile, it is not necessary to allow for one.


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