In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2860
DAVID A. SCHLEMM,
Plaintiff-Appellant,
v.
BRENDAN PIZZALA, JAY VAN LANEN,
and MICHAEL DONOVAN,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:19-cv-00266 — Nancy Joseph, Magistrate Judge.
____________________
ARGUED JANUARY 25, 2024 — DECIDED MARCH 5, 2024
____________________
Before HAMILTON, BRENNAN, and KIRSCH, Circuit Judges.
KIRSCH, Circuit Judge. On December 20, 2012, Brendan Piz-
zala, a correctional officer at Green Bay Correctional Institu-
tion, conducted a random search of inmate David Schlemm’s
cell. During the search, Pizzala found and confiscated a zip-
lock bag containing sage. At correctional officer Jay Van
Lanen’s direction, Pizzala consulted with Michael Donovan,
the prison chaplain, about the bag to determine if it was
2 No. 21-2860
contraband. Donovan thought Schlemm had stolen the sage
from the chapel or during a sweat lodge ceremony because it
appeared to be the type of sage the Oneida Nations Tribe do-
nated to the chapel. Pizzala then issued a conduct report to
Schlemm for theft.
At the subsequent disciplinary hearing, another correc-
tional officer testified that the bag of sage was the same one
he gave Schlemm when Schlemm was first transferred to
Green Bay. The conduct report was accordingly dismissed,
but Schlemm filed complaints against Pizzala, Van Lanen,
and Donovan on January 23, 2013, through the Inmate Com-
plaint Review System (ICRS). In the complaints, he listed the
“date of incident” as January 17, 2013, and stated that they
accused him of theft and wrote the conduct report to retaliate
against him for prior complaints he filed through the ICRS.
Schlemm’s administrative complaints were denied, and
he appealed to the administrative reviewing authority. The
reviewing authority affirmed the rejections of his complaints
on February 22, 2013, which completed Schlemm’s proper ex-
haustion of the administrative remedies available to him.
Having fulfilled the exhaustion requirement of the Prison Lit-
igation Reform Act (PLRA), 28 U.S.C. § 1915, Schlemm then
sued Pizzala, Van Lanen, and Donovan in federal court on
February 19, 2019, alleging First Amendment retaliation.
Wis. Stat. § 893.23 provides that when the requirements of
a statutory prohibition must be met before a plaintiff can sue,
as with the PLRA’s exhaustion requirement, the statute of
limitations is tolled for the “time of the continuance” of that
prohibition. The district court held that Schlemm failed to
properly exhaust administrative remedies and thus did not
receive the benefit of tolling under § 893.23. It dismissed
No. 21-2860 3
Schlemm’s action as time-barred by the then-applicable six-
year statute of limitations because he filed his complaint on
February 19, 2019, more than six years after the December 20,
2012, search of his cell. Schlemm appealed. 1
On appeal, Pizzala, Van Lanen, and Donovan abandon
their argument that Schlemm’s action is time-barred because
he improperly exhausted administrative remedies. They now
concede proper exhaustion and argue instead that his action
is time-barred because § 893.23 does not toll the six-day gap
between the accrual of his claim and the filing of his adminis-
trative complaints. (Pizzala, Van Lanen, and Donovan
broadly construe the accrual date as January 17, 2013—the
date on Schlemm’s administrative complaints—and Schlemm
filed his administrative complaints on January 23, 2013.)
Thus, in their view, Schlemm needed to bring his action
within six years of February 22, 2013 (when he finished
properly exhausting administrative remedies), minus six
days. In other words, they argue that he needed to bring his
action by February 16, 2019, and was three days late in filing
his complaint on February 19, 2019.
We review the district court’s dismissal based on the stat-
ute of limitations de novo. Towne v. Donnelly, 44 F.4th 666, 670
(7th Cir. 2022). As noted above, Appellees have conceded that
Schlemm properly exhausted the administrative remedies
available to him. Their only argument for dismissal is that the
tolling period excludes the gap between the accrual of a pris-
oner’s claim and the filing of his administrative grievance,
making Schlemm’s action three days late. But they waived
this statute of limitations argument. “[A] party waives the
1 We thank Alexis Zhang, Anthony Dick, and the firm of Jones Day for
their assistance to Schlemm and to the court on appeal.
4 No. 21-2860
ability to make a specific argument for the first time on appeal
when the party failed to present that specific argument to the
district court, even though the issue may have been before the
district court in more general terms.” Duncan Place Owners
Ass’n v. Danze, Inc., 927 F.3d 970, 974 (7th Cir. 2019) (quotation
omitted). Appellees raised the general argument below that
the statute of limitations bars Schlemm’s action, but they did
not raise the specific argument that his action is time-barred
because the tolling period excludes the six-day gap. Instead,
they argued below that the action is time-barred because
Schlemm did not properly exhaust his administrative reme-
dies.
Rather than offer a “new twist” “as additional support”
for their statute of limitations argument, United States v.
Billups, 536 F.3d 574, 578 (7th Cir. 2008), Appellees have com-
pletely abandoned their improper exhaustion theory, have
conceded proper exhaustion, and now solely rely on this new
theory based on the six-day gap. They have thus waived their
new statute of limitations argument, and this is not the excep-
tional case in which the waiver has caused no one, including
Schlemm and the district court, “any harm of which the law
ought to take note.” Allen v. City of Chicago, 865 F.3d 936, 944
(7th Cir. 2017) (quotation omitted). We therefore decline to
consider the argument, reverse the dismissal, and remand for
further proceedings.
We pause to acknowledge that our precedent is incon-
sistent on whether the gap between claim accrual and griev-
ance filing is included in the tolling period. In Gomez v. Randle,
680 F.3d 859 (7th Cir. 2012), we stated that the relevant Illinois
statute of limitations was tolled from the date the prisoner
filed his grievance to the date he completed the grievance
No. 21-2860 5
process, id. at 864. Yet in Bowers v. Dart, 1 F.4th 513 (7th Cir.
2021), we assumed that under the Illinois tolling statute, the
gap between accrual and the prisoner’s grievance filing was
included in the tolling period, id. at 518. We will need to ad-
dress this question, but given Appellees’ waiver, we leave it
for another day.
REVERSED AND REMANDED
6 No. 21-2860
HAMILTON, Circuit Judge, concurring. I agree with my col-
leagues that we should reverse and that the defense waived
the new theory it has offered on appeal. The new defense the-
ory is also without merit, refuted by the plain language of the
governing statute. Explaining why may help clear up some
confusion caused by loose language in prior opinions and or-
ders, and it may provide district courts some guidance going
forward.
1. The Merits. The new defense theory on appeal is that
the statute of limitations for plaintiff’s claims was running
during the six days between the day of the alleged incident,
January 17, 2013, and the day he submitted his grievance, Jan-
uary 23, 2013. If that were correct, plaintiff would have filed
his federal case three days too late under Wisconsin’s statute
of limitations.
But here’s the language from the governing state tolling
statute: “When the commencement of an action is stayed by
injunction or statutory prohibition the time of the continuance
of the injunction or prohibition is not part of the time limited
for the commencement of the action.” Wis. Stat. § 893.23. All
parties here agree that a federal statute, 42 U.S.C. § 1997e(a),
prohibited plaintiff from commencing this federal lawsuit un-
til he had exhausted available administrative remedies. The
requirement to exhaust administrative remedies in 42 U.S.C.
§ 1997e(a) is a statutory prohibition that stays the commence-
ment of an action. Under Wisconsin’s tolling statute, there-
fore, the time until the prisoner has exhausted administrative
remedies should not count toward the statute of limitations
on the prisoner’s federal claim under 42 U.S.C. § 1983.
It’s not difficult to test plaintiff Schlemm’s situation
against the language of the state statute. Suppose he had tried
No. 21-2860 7
to file this lawsuit on any of the six days in 2013 that the de-
fense argues should count against him to bar this suit: January
17, 18, 19, 20, 21, and 22. On each of those days, § 1997e(a)
prohibited him from commencing the suit. Period. In the lan-
guage of the Wisconsin statute, that means that those days
were “not part of the time limited for the commencement of
the action.” Wis. Stat. § 893.23. Plaintiff’s suit was timely.
The issue should be no more complicated than that. The
rest of this concurring opinion addresses the defense argu-
ments and tries to untangle the sources of some conflicting
dicta and non-precedential orders on this issue.
2. The Defense Argument. Defendants have no real an-
swer for the textual argument against their theory. Instead,
they cite the Wisconsin Supreme Court’s decision in Colby v.
Columbia County, 202 Wis. 2d 342, 550 N.W.2d 124 (1996). The
citation does not help the defendants here. Colby arose under
the state tort claims act, which required an injured person to
file an administrative notice with a local government before
filing suit against that government. The principal issue was
whether the statute of limitations clock for tort claims was
tolled by filing a premature lawsuit, one filed before filing the
required administrative notice. That statutory prohibition op-
erates quite differently than the Prison Litigation Reform
Act’s requirement to exhaust administrative remedies in 42
U.S.C. § 1997e(a).
Plaintiff Colby was injured in a car accident in March 1990.
Colby, 550 N.W.2d at 126. Colby did not file a notice and claim
with the county clerk as required under Wis. Stat.
§ 893.80(1)(b) (1993–94) until February 24, 1993, less than
three weeks before the three-year statute of limitations was
set to expire, on March 10, 1993. Id. Section 893.80(1)(b)
8 No. 21-2860
required plaintiffs alleging tort claims against local govern-
ments to wait to file suit until either the county clerk rejected
their filed notice of claim or 120 days had passed without ac-
tion by the clerk’s office. The Wisconsin Supreme Court held
that filing a premature lawsuit, without having filed the re-
quired notice, did not toll the statute of limitations. Colby, 550
N.W.2d, at 131; see also McNeil v. United States, 508 U.S. 106
(1993) (same result under Federal Tort Claims Act proce-
dures). The state court in Colby, however, interpreted the no-
tice requirement in the tort claims act to create, in effect, a
three-year-and-120-day statute of limitations for tort claims
subject to the 120-day waiting period for filing suit. Colby, 550
N.W.2d at 130–31. Colby eventually filed suit properly on Au-
gust 10, 1993, so his claim was untimely under the 3-year-and-
120-day statute of limitations. Id. at 131. 1
Under 42 U.S.C. § 1997e(a), by contrast, there is no na-
tional standard requiring a prisoner to wait a specific number
of days before filing suit or deeming a prison grievance de-
nied after a certain number of days. The prisoner must wait
until all available administrative remedies have been ex-
hausted, period. The time that takes will vary. The state
court’s handling of the different tort-claim notice requirement
in Colby thus does not answer when tolling should commence
when applying both Wis. Stat. § 893.23 and 42 U.S.C.
§ 1997e(a) to a prisoner’s claim. The statutory language pro-
vides our best and most straightforward guide for this case.
1 The Wisconsin Supreme Court ultimately allowed Colby’s claim to
proceed under a different tolling statute, Wis. Stat. § 893.13, but held that
for future claims like Colby’s, that alternative tolling statute would not
apply. 550 N.W.2d at 133–34.
No. 21-2860 9
3. Conflicting Dicta and Confusion. As pointed out at the
end of Judge Kirsch’s opinion, this court has managed to cre-
ate some confusion about this relatively simple problem. On
the correct side, we said in Bowers v. Dart, 1 F.4th 513 (7th Cir.
2021), following the language of the parallel Illinois tolling
statute, that the two-year statute of limitations clock started
ticking only when administrative remedies were exhausted.
Id. at 518, citing Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir.
2001). The outcome of Bowers did not turn on the point,
though, because the plaintiff had waited nearly another year
to file his suit. We rejected his argument that the statute of
limitations was also tolled while a county office of profes-
sional review investigated the incident. Still, in applying the
statute of limitations, we did not count the time between ac-
crual of the plaintiff’s claim and his filing of the grievance that
launched the administrative remedies process. We have
stated the correct Bowers formulation in both published opin-
ions and non-precedential orders. 2
On the other hand, we said something different in Gomez
v. Randle, 680 F.3d 859 (7th Cir. 2012), another case involving
the Illinois statute. The prisoner-plaintiff was injured on May
16, 2009 and filed an emergency grievance the same day.
2 See, e.g., Wilson v. Wexford Health Sources, Inc., 932 F.3d 513, 518 (7th
Cir. 2019) (“Wilson’s limitations clock for Dr. Carter did not begin to run
until his administrative grievance was denied. … That happened, at the
latest, in January 2014—a date that is also more than two years before the
date when Wilson refiled suit,” citing Johnson, 272 F.3d at 522); Dobbey v.
Uptown People’s Law Center, No. 23-1885, 2023 WL 8106978, at *1–2 (7th Cir.
Nov. 22, 2023) (prisoner waited ten days after his alleged injury before
filing administrative grievance and exhausted administrative remedies on
February 12, 2021; prisoner “had to file suit by February 12, 2023, and so
the complaint he filed on December 1, 2022, was timely”).
10 No. 21-2860
Because both occurred on the same day, we did not have to
choose whether to count any days before a grievance was
filed. But here’s what we wrote: “In this case, Gomez filed his
emergency grievance on May 16, 2009. Thus, the statute of limi-
tations was tolled from that date until the grievance process
was complete.” Id. at 864 (emphasis added). Under the text of
the parallel Illinois tolling statute, it would have been more
precise to say that Gomez was injured on May 16, 2009, so the
statute of limitations was tolled until the grievance process
was complete and the statutory prohibition on filing suit was
lifted. Unfortunately, at least two non-precedential orders
also reflect the Gomez approach and held that the tolling pe-
riod starts only when the prisoner files his grievance and ends
when the administrative review process is over. See Hatch v.
Briley, 230 F. App’x 598, 599 (7th Cir. 2007); Santiago v. Snyder,
211 F. App’x 478, 480 (7th Cir. 2006).3 These cases derive this
mistaken rule by misreading an earlier case, Johnson v. Rivera,
272 F.3d 519 (7th Cir. 2001), rather than Gomez, decided later.
Some digging turned up possible sources for this confu-
sion. First, many cases on this topic were issued without the
benefit of full briefing to tee up the specific issue raised by the
defense in our case, nor were they even subject to the adver-
sarial process. (Fortunately, that’s not the case here. I echo
Judge Kirsch’s opinion thanks to attorneys Alexis Zhang and
3 The rule stated in these non-precedential orders has also percolated
among district courts. See, e.g., McCarter v. Brookhart, No. 21-CV-0062-
SPM, 2023 WL 2018467, at *2 (S.D. Ill. Feb. 15, 2023) (citing Hatch); Harmon
v. Jordan, No. 12-CV-0021-MJR-SCW, 2013 WL 4410995, at *2 (S.D. Ill. Aug.
15, 2013) (oldest district court case citing Hatch for this point); Knox v. Ross,
No. 17-CV-0571-SMY, 2017 WL 5756906, at *2–3 (S.D. Ill. Nov. 28, 2017)
(citing Santiago); Wilson v. Wexford Health Sources, Inc., No. 18-CV-0498-
SMY, 2018 WL 2864033, at *4 (S.D. Ill. June 11, 2018) (same).
No. 21-2860 11
Anthony Dick and the law firm Jones Day, who volunteered
to serve as appointed counsel for appellant Schlemm.) Sec-
ond, loose language in some of our opinions has led to confu-
sion and conflicting interpretations. I begin with the unfortu-
nate loose language in Gomez.
Gomez supplied its loose language without having en-
gaged with the statutory language. Nothing in Gomez turned
on the difference between the date of injury and the filing of
the grievance. They happened on the same day. 680 F.3d at
861, 864. Accordingly, that language in Gomez should not be
overread as having adopted the atextual theory offered here,
that the statute of limitations clock starts when the injury oc-
curs, stops when a grievance is filed, and starts again when
the grievance process has been completed. 4
4 Gomez quoted Walker v. Sheahan, 526 F.3d 973, 978 (7th Cir. 2008) for
the proposition that “the limitations period is tolled while a prisoner com-
pletes the administrative grievance process” before launching the loose
language that has caused confusion for proper application of the tolling
statute. Gomez, 680 F.3d at 864. Here’s the Westlaw headnote in Walker on
this point:
Limitations period for pretrial detainee’s § 1983 excessive
force claim against county correctional officers was tolled from
time that detainee filed administrative grievance until he received
the denial of the grievance, notwithstanding that detainee failed
to file grievance within 15 days of the incident, as required by
county policy, where the policy requirements were not avail-
able to detainees, and detainee testified that he was not aware
of the 15-day requirement. 42 U.S.C.A. § 1983.
526 F.3d at 974, headnote 9 (emphasis added). The headnote seems to mir-
ror the approach taken in Gomez and some non-precedential orders. See,
e.g., Wagner v. Hardy, 609 F. App’x 874, 876 (7th Cir. 2015) (citing Walker).
But the Walker headnote was just flat wrong on the facts. In Walker, the
district court had granted summary judgment to defendants on the theory
12 No. 21-2860
Nevertheless, a couple of non-precedential orders from
this court and dozens of district court orders have counted
days between a prisoner’s injury and grievance toward the
statute of limitations. Those cases often did not have the ben-
efit of the adversarial process or full briefing on the specific
defense theory at issue in our case. See, e.g., Givens v. Luedtke,
587 F. App’x 979, 981 (7th Cir. 2014) (summary disposition;
defendants not served with process and did not participate in
appeal; plaintiff himself asserted statute of limitations was
tolled for only the 239 days between filing of administrative
grievances and exhaustion of administrative remedies). This
dynamic seems to have contributed to imprecise language in
opinions and orders.
In addition to the loose language in Gomez, two non-prec-
edential orders, Santiago v. Snyder, 211 F. App’x 478 (7th Cir.
2006), and Hatch v. Briley, 230 F. App’x 598 (7th Cir. 2007),
cited Johnson v. Rivera, 272 F.3d 519 (7th Cir. 2001), for the
proposition that the statute of limitations is not tolled for the
that the statute of limitations had run on several of Walker’s claims. We
reversed. For one of the claims, Walker’s injury occurred on January 11,
2004, but the prison did not receive an administrative grievance until 31
days later, on February 11, 2004. See Brief and Argument of Defend-
ants/Appellees, 07-2817, 2007 WL 4516462, at *15. Notably, Walker did not
state the specific date Walker’s grievance was filed, only that it was more
than 15 days after his injury. 526 F.3d at 978. The administrative grievance
process was completed on February 27, 2004, and Walker filed his lawsuit
on February 13, 2006. This means Walker filed his suit 14 days shy of the
two-year statutory limit if counted from the date he exhausted his admin-
istrative remedies (February 27, 2004). By contrast, if the 31 days between
Walker’s injury and the filing of his grievance had counted toward the
statute of limitations, as the headnote asserted, his suit would have been
untimely. Under the rule stated in the headnote, we could not have re-
versed the grant of summary judgment.
No. 21-2860 13
time between the injury and the filing of an administrative
grievance. Santiago and Hatch both misread Johnson, which
said only: “We thus hold that in the ordinary case, a federal
court relying on the Illinois statute of limitations in a § 1983
case must toll the limitations period while a prisoner com-
pletes the administrative grievance process.” 272 F.3d at 522.
This language in Johnson clearly did not go as far as Santi-
ago said it did. Santiago said that Johnson held that the statute
was tolled only while the prisoner exhausted his formal ad-
ministrative remedies. Santiago, 211 F. App’x at 480. Santiago
did not focus on the statutory language. It focused instead on
distinguishing between a prisoner’s informal efforts to seek
relief and the formal administrative remedies. We rejected the
plaintiff’s argument that the statute of limitations should have
been tolled from the time of his alleged injury until he filed
his formal grievance under the parallel Illinois statute. Id. I do
not question the result in Santiago, but its analysis might have
been better framed in terms of the prisoner’s failure to pursue
administrative remedies on a timely basis.
In Hatch, the panel also did not engage with the language
of the statute. Instead, it simply asserted that Johnson estab-
lished a tolling rule that did not apply between accrual of a
claim and the start of the grievance process. Hatch, 230 F.
App’x at 599.
Both non-precedential orders appear to have overread
Johnson and used language that is out of step with the plain
language of the Illinois and Wisconsin tolling statutes. In John-
son, the court was not presented with the defense’s theory in
our present case because the prisoner never exhausted his ad-
ministrative remedies. 272 F.3d at 522. Instead, he alleged
prison officials destroyed his grievances, foiling his
14 No. 21-2860
exhaustion attempts. Accordingly, we correctly reversed the
district court’s dismissal for untimeliness, id., but without ac-
tually supporting the atextual rule applied in Santiago and
Hatch. 5
I hope that district courts considering this issue in the fu-
ture will skip over the prior dicta and non-precedential orders
and focus primarily on the statutory language. It is not diffi-
cult to construe and apply in cases like this, where a prisoner
waits some days to file a grievance about an alleged wrong.6
Our prior non-precedential orders that have denied tolling for
time between a prisoner’s injury and his submission of a
grievance are not reliable guides to interpretation of these
statutes.
5 Indiana does not have a tolling statute parallel to the Wisconsin and
Illinois statutes addressed here. Seabrooks v. Randall, 2019 WL 144241, at *2
(S.D. Ind. Jan. 9, 2019); Smith v. Wilson, 2009 WL 3444662, at *2–3 (N.D. Ind.
Oct. 22, 2009).
6 I do not address here different issues that might arise if a prisoner-
plaintiff never tried to exhaust available administrative remedies or
missed deadlines in that process, except to note that such a plaintiff would
encounter problems under 42 U.S.C. § 1997e(a).