United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted March 10, 2016*

Decided March 15, 2016 

Before 

DIANE P. WOOD, Chief Judge 

RICHARD A. POSNER, Circuit Judge 

ILANA DIAMOND ROVNER, Circuit Judge

No. 15-1808 

EDWARD MAX LEWIS, 

Plaintiff-Appellant, 

v. 

LEON STENZ, et al., 

 Defendants-Appellees.

 Appeal from the United States District 

Court for the Western District of Wisconsin.

14-cv-446-wmc 

William M. Conley, 

Chief Judge. 

O R D E R 

 Edward Lewis was arrested in October 2003 and for several months was detained 

pending trial at the Forest County Jail in Crandon, Wisconsin. Lewis has been formally 

diagnosed with epilepsy and mental illness, and in this lawsuit, filed in June 2014, he 

alleges that he suffered from these same conditions during his stint at the jail but did not 

 

*

 The defendants were not served with process in the district court and are not 

participating in this appeal. After examining the appellant’s brief and the record, we 

have concluded that the case is appropriate for summary disposition. See Fed. R. App. P.

34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 15-1808 Page 2 

receive proper medical care. Instead, says Lewis, he was placed in segregation without a 

blanket or clothing and was made to shower in cold water. His physical and mental 

needs were not accommodated, continues Lewis, and on one occasion he hit his head 

during an epileptic seizure. He also was subjected to excessive force by jail guards. 

Lewis claims that the defendants, mostly persons having a direct role in the 

conditions of his confinement at the jail, violated his rights under the Fourteenth 

Amendment and Title II of the Americans with Disabilities Act, see 42 U.S.C. § 12132. 

(The list of named defendants includes the district attorney, whose office prosecuted 

Lewis in 2003, as well as the current district attorney and other county officials who were 

not employed at the time of Lewis’s detention. As the district court recognized, Lewis’s 

claim that the former district attorney (and the current office holder) violated his rights 

during the criminal case is barred by Heck v. Humphrey, 512 U.S. 477 (1994). And the 

defendants who were not employed by Forest County when Lewis was detained could 

not have been personally involved in the underlying events. All of these defendants 

were properly dismissed, and we don’t mention them further.) The district court 

screened Lewis’s complaint under 28 U.S.C. § 1915A, but did not examine whether he 

states a claim against the defendants involved in his pretrial detention. Rather, the court 

concluded that Lewis’s claims are time barred. We reject this conclusion as premature. 

The application of a statute of limitations is an affirmative defense. See Indep. Trust Corp. 

v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012); Cancer Found., Inc. v. Cerberus 

Capital Mgmt., LP, 559 F.3d 671, 674–75 (7th Cir. 2009). Only when the outcome is 

uncontestable should a district court apply a statute of limitations to dismiss a lawsuit 

before the defendants have been served with process. See Richards v. Mitcheff, 696 F.3d 

635, 637–38 (7th Cir. 2012); Foss v. Bear, Stearns & Co., 394 F.3d 540, 542 (7th Cir. 2005). 

And rather than pleading himself out of court, Lewis recounts facts making it possible 

that he is entitled to tolling because of mental illness. 

Claims arising under 42 U.S.C. § 1983 and some arising under Title II of the ADA 

use the statute of limitations and tolling rules that states employ for personal-injury 

claims. See Owens v. Okure, 488 U.S. 235, 250 (1989); Scherr v. Marriott Int’l, Inc., 703 F.3d 

1069, 1075 (7th Cir. 2013) (ADA); Richards, 696 F.3d at 637 (§ 1983). In Wisconsin, that 

limitations period is 6 years. See Wis. Stat. § 893.53; Gray v. Lacke, 885 F.2d 399, 408–09 

(7th Cir. 1989). But, as Lewis alludes to in his complaint, Wisconsin also provides for 

tolling up to 5 years if the plaintiff was “mentally ill” when the injury accrued and 

continues to be mentally ill. See Wis. Stat. § 893.16(1); Walberg v. St. Francis Home, Inc., 697 

N.W.2d 36, 41 (Wis. 2005). 
No. 15-1808 Page 3 

Even assuming (improbably) that all of Lewis’s claims accrued on his first day at 

the jail in 2003, his lawsuit is timely if he was mentally ill, as Wisconsin defines that term, 

from October 2003 until the day he filed his complaint in June 2014. The district court 

reasoned that Lewis is ineligible for tolling because his epileptic seizures were, in the 

court’s view, “intermittent episodes.” But epilepsy is not a mental illness and has 

nothing to do with the question of tolling. Rather, Lewis alleges that he also suffered 

from Post-Traumatic Stress Disorder, depression, and a personality disorder. The district 

court also reasoned that Lewis does not “allege facts showing that he was completely 

incapacitated” by these conditions, but the tolling statute does not require “complete 

incapacitation.” A plaintiff is “mentally ill” for purposes of the Wisconsin tolling 

provision if he is or was “functionally unable to understand or appreciate the situation 

giving rise to the legal claim” or “functionally unable to understand legal rights and 

appreciate the need to assert them.” Storm v. Legion Ins. Co., 665 N.W.2d 353, 369 (Wis. 

2003). This is a factual inquiry that renders the district court’s dismissal at the complaint 

stage premature. 

Finally, the district court indicated that its dismissal of Lewis’s suit counts as a 

strike, principally because of the claim against the prosecutors. But a plaintiff incurs a 

strike only when an entire action—not an individual claim—is dismissed on the ground 

that it is frivolous, malicious, or fails to state a claim. See Turley v. Gaetz, 625, F.3d 1005,

1012 (7th Cir. 2010). 

The judgment is AFFIRMED as to defendants Leon Stenz, Charles Simono, John 

Dennee, and Steve Weber. In all other respects, the judgment is VACATED, and the case 

is REMANDED for further proceedings.