First Amendment Retaliation Claim

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7^th Circuit Court of Appeals

Case Name: David Schlemm v. Brendan Pizzala

Case No.: 21-2860

Officials: Hamilton, Brennan, and Kirsch, Circuit Judges.

Focus: First Amendment Retaliation Claim

Schlemm, an inmate, had filed a First Amendment retaliation claim against Brendan Pizzala, Jay Van Lanen, and Michael Donovan. Schlemm’s claim stemmed from allegations against him regarding the theft of sage from the chapel of the Green Bay Correctional Institution, which resulted in a conduct report being issued against him. However, the report was later dismissed after another correctional officer testified that he had given the sage to Schlemm. Subsequently, Schlemm filed complaints against the defendants through the Inmate Complaint Review System (ICRS), alleging retaliation.

Initially, the lower court dismissed Schlemm’s case, citing it as time-barred due to the six-year statute of limitations. The court observed that Schlemm’s lawsuit, filed in 2019, exceeded six years from the 2012 search of his cell. On appeal, the defendants conceded that Schlemm had properly exhausted his administrative remedies but contended that his action was time-barred because of the six-day gap between the accrual of his claim and the filing of his administrative complaints.

Upon review, the Appeals Court conducted a de novo examination of the district court’s dismissal. It concluded that the defendants had waived their specific statute of limitations argument concerning the six-day gap. Notably, they raised this argument for the first time on appeal, having previously argued that Schlemm had not exhausted his administrative remedies properly. Consequently, the court overturned the dismissal and remanded the case for further proceedings, highlighting that it did not need to address whether the gap between claim accrual and grievance filing falls within the tolling period due to the defendants’ waiver of their argument.

Reversed and remanded.

Decided 03/05/24

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