# 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 Cr andon, 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 condit ions during his stint at the jail but did not

* The defendants were not served with pr ocess in the district court and are not participating in this appeal. After examin ing 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 NONPRECEDENTIAL DISPOSITION To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 15-1808 Page 2

receive proper medical care. Instead, says Le wis, 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 su bjected 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 detentio n. 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 Fore st 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 cour t, Lewis recounts facts making it possible that he is entitled to tolling because of mental illness.

Claims arising under 42 U.S.C. § 1983 an d some arising under Title II of the ADA use the statute of limitations and tolling rule s 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 L ewis’s claims accrued on his first day at the jail in 2003, his lawsuit is timely if he wa s mentally ill, as Wisconsin defines that term, from October 2003 until the day he filed hi s 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 di sorder. The district court also reasoned that Lewis does not “al lege facts showing that he was completely incapacitated” by these conditions, but th e tolling statute does not require “complete incapacitation.” A plaintiff is “mentally i ll” 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 “functio nally 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 th e district court’s dismissal at the complaint stage premature.

Finally, the district court indicated that it s dismissal of Lewis’s suit counts as a strike, principally because of the claim agains t 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.