Malone, Norman L. v. Corrections Corp Ame ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3640
N ORMAN L. M ALONE,
Plaintiff-Appellant,
v.
C ORRECTIONS C ORPORATION OF A MERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07-C-377-C—Barbara B. Crabb, Chief Judge.
S UBMITTED D ECEMBER 4, 2008—D ECIDED JANUARY 21, 2009
Before E ASTERBROOK, Chief Judge, and B AUER and
T INDER, Circuit Judges.
E ASTERBROOK, Chief Judge. After being convicted in
Wisconsin, Norman Malone was sent to Oklahoma to
serve his sentence in a prison run by Corrections Corp. of
America, which housed some of Wisconsin’s surplus
prisoners. Malone was injured by the guards during a
disturbance started by other prisoners in April 2003.
He says that the guards used gas and bodily force—
unnecessarily, he maintains, because they knew that he
2 No. 07-3640
was not among the troublemakers. He filed this suit
under 42 U.S.C. §1983 against the corporation (rather
than any of the guards), in Wisconsin, a little more than
four years later. Although she assumed that Malone’s
version of events is correct, the district court dismissed
the complaint after screening under 28 U.S.C. §1915A,
concluding that the claim is barred by the statute of
limitations. (The judge did not consider other potential
problems, such as whether the corporation is a state
actor amenable to suit under §1983 given the lack of any
allegation that Wisconsin directed or even influenced
the events of which Malone complains, cf. Correctional
Services Corp. v. Malesko, 534 U.S. 61 (2001) (holding that
privately operated prisons may not be sued under the
Bivens doctrine), or how the corporation could be held
vicariously liable for the guards’ misconduct or errors. See
Monell v. New York City Dep’t of Social Services, 436 U.S.
658 (1978).)
Malone’s claim accrued in 2003 because he knew of his
injury and could have filed suit immediately. See Wallace
v. Kato, 549 U.S. 384 (2007). Neither §1983 nor its compan-
ion 42 U.S.C. §1988 contains a statute of limitations. The
Supreme Court concluded in Wilson v. Garcia, 471 U.S. 261
(1985), that federal courts must use the periods of limita-
tions adopted by the states for personal-injury suits. See
also Owens v. Okure, 488 U.S. 235 (1989). That is six years
in Wisconsin and two years in Oklahoma. Compare Wis.
Stat. §893.53 with 12 Okla. Stat. §95. Malone contends
that the district court must use Wisconsin’s period, be-
cause that’s where he filed suit. But the district court chose
Oklahoma’s, because that’s where the injury occurred.
No. 07-3640 3
Wilson directs federal courts to use a period derived
from state law. Usually that means the state in which the
federal court sits. But the Supreme Court did not hold
that the forum state’s statute is the right one when the
injury occurred elsewhere. Neither this circuit nor, as far
as we can tell, any other, has considered which statute
of limitations is appropriate when the constitutional tort
occurred in a state other than the forum of the litiga-
tion. (Quite a few decisions, in and out of this circuit, say
that the law of the place of injury controls. E.g., Hileman v.
Maze, 367 F.3d 694, 696 (7th Cir. 2004). But these are not
holdings, for in each of these cases suit was filed in the
state where the injury occurred.)
In diversity litigation it is a familiar principle that
federal courts use the whole law of the forum state,
including that state’s choice-of-law rules. See Guaranty
Trust Co. v. York, 326 U.S. 99 (1945) (applying this
principle to the period of limitations). Wilson and Owens
do not say whether the same approach is apt for limita-
tions periods absorbed into federal law and applied to
federal claims. But Hardin v. Straub, 490 U.S. 536 (1989),
holds that, when borrowing a state’s period of limitations,
the federal court must take all related doctrines, such as
those that specify tolling, revival, and details of applica-
tion. See also Johnson v. Railway Express Agency, Inc., 421
U.S. 454, 464 (1975). In other words, the federal court takes
a body of developed law, for statutes of limitations cannot
be divorced from the associated rules that determine
how long a plaintiff has to commence suit.
A private patient can’t use Wisconsin’s six-year statute
to complain about medical malpractice in Oklahoma; that
4 No. 07-3640
must be so for §1983 suits as well. Wilson, Owens, and
Hardin tell us that the rules for §1983 litigation track those
that the state applies to private, personal-injury suits. This
must mean respecting the choice-of-law doctrines that
states employ to select the appropriate personal-injury
statute. Otherwise every §1983 plaintiff in the country
could file suit in whichever of the 50 states has the
longest statute of limitations, wait for the inevitable
transfer under 28 U.S.C. §1404(a), and then demand that
the original state’s statute of limitations travel with the
suit, as Ferens v. John Deere Co., 494 U.S. 516 (1990), and
Van Dusen v. Barrack, 376 U.S. 612 (1964), require when
the forum state’s statute of limitations would have
applied in the original forum.
Wisconsin generally applies the limitations period of
the state in which the injury occurs. See Wis. Stat.
§893.07(1); Wenke v. Gehl Co., 274 Wis. 2d 220, 682 N.W.2d
405 (2004). Although a world of complications may
lurk in the word “generally,” none of the potential excep-
tions and qualifications does Malone any good, because
Wisconsin has a statute directly covering his situation.
“Any person who is legally transferred . . . to a penal
institution [in another state] shall be subject to the same
statutes, regulations and discipline as if the person had
been originally sentenced to that institution”. Wis. Stat.
§302.18(5). See also Wis. Stat. §301.21(2m)(b). It is possible
to read these statutes as addressing only the substantive
rules that apply within the prison, and not the rules for
litigation about what happened in the prison, but Wiscon-
sin’s courts have read them broadly to mean that all laws
and regulations of the state where the prisoner is con-
No. 07-3640 5
fined will apply. See State ex rel. Barksdale v. Litscher, 685
N.W.2d 801, 807 (Wis. App. 2004); State ex rel. Griffin v.
Litscher, 659 N.W.2d 455, 460 (Wis. App. 2003). Wisconsin
treats statutes of limitations as substantive rules—not, say,
as procedural norms equivalent to giving a losing party
30 rather than 45 days to appeal. See Wenke, 274 Wis. 2d
at 261–62, 682 N.W.2d at 425–26. (This is why Wisconsin’s
borrowing statute generally applies the statute of limita-
tions from the state where the injury occurred, while
it uses its own procedures to conduct litigation in its
own courts.)
So Oklahoma’s statute of limitations applies, and the
suit is untimely—for Oklahoma does not toll the time
during a person’s imprisonment. 12 Okla. Stat. §96. (Per
Hardin, Wisconsin’s tolling rules are irrelevant when
Oklahoma’s law supplies the period of limitations.)
Malone contends that the contract between Wisconsin
and Corrections Corp. overrides this outcome, because a
clause of the contract says that “[t]he laws of the State
of Wisconsin shall govern all matters concerning this
contract.” The parties to a contract may choose the law
of any state in which the contract is negotiated or per-
formed, and we may assume that if a dispute broke
out about how much the corporation was owed for its
services, or whether the corporation had performed as
agreed, Wisconsin’s law would supply the period of
limitations for suit. But Malone is not a party to the
contract or even a third-party beneficiary, and he is not
suing to enforce the contract. His claim arises under
§1983, not the contract, and he cannot invoke the con-
tract’s provisions. See Kinslow v. Pullara, 538 F.3d 687, 692
6 No. 07-3640
(7th Cir. 2008). Corrections Corp. of America did not
agree with Malone to submit to suit under Wisconsin’s
long statute of limitations.
A FFIRMED
1-21-09