Charles Hatch v. Kenneth R. Briley

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 17, 2007*
Decided April 19, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-3204
CHARLES HATCH,
Plaintiff-Appellant,
v.
KENNETH R. BRILEY, et al.,
Defendants-Appellees.
Appeal from the United
States District Court for the
Northern District of Illinois,
Eastern Division.
No. 05 C 3517
John A. Nordberg, Judge.
Order
For religious reasons, Charles Hatch refuses to cut his hair. The prison system of
Illinois, where Hatch is confined, regulates the length of prisoners’ hair. On October
2, 2002, guards at Stateville Correctional Center cut off Hatch’s dreadlocks. He con-
tends in this action under 42 U.S.C. §1983 that they used excessive force in doing so
and failed to provide medical treatment for the injuries they inflicted—and that by
cutting his hair at all they violated the Constitution’s first amendment, applied to
the states by the fourteenth.
* The district court dismissed the complaint before defendants were served with process, and
they have elected not to participate in the appeal. At this court’s request, the Attorney General of
Illinois filed a brief as amicus curiae in support of the district court’s decision. After examining the
briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R. App. P.
34(a); Cir. R. 34(f).

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No. 05-3204 Page 2
Hatch filed his complaint on June 10, 2005, and the district court dismissed it on
screening under 28 U.S.C. §1915(e)(2)(B)(ii) because it is untimely. The district
judge noted that the time limit for §1983 actions in Illinois is two years and ob-
served that Hatch concedes taking more than that.
The district court did not discuss the significance of Hatch’s grievance within the
prison system. Because 42 U.S.C. §1997e(a) makes exhaustion of administrative
remedies a condition to prisoners’ litigation under §1983, we held in Johnson v.
Rivera, 272 F.3d 519 (7th Cir. 2001), that the statute of limitations is tolled while
prisoners pursue these remedies.
Hatch tells us that he filed a grievance on October 28, 2002, and that the prison
system did not finally resolve it until June 11, 2003. Hatch filed his complaint one
day short of two years later and maintains that it is therefore timely. But he does
not reckon with the 26 days that passed between the events of which he complains
and the initiation of the grievance process. Johnson is a tolling rule; it does not de-
lay the claim’s accrual. A claim accrues when the victim knows (or should know)
that he has been injured. See Behavioral Institute v. Hobart Common Council, 406
F.3d 926, 929 (7th Cir. 2005). For Hatch, that was October 2, 2002. The clock
stopped on October 28 and restarted on June 11, 2003. The complaint filed on June
10, 2005, is therefore 25 days late and was properly dismissed.
The district court stated that this suit counts as one of the three “strikes” al-
lowed to prisoners who seek to litigate in forma pauperis. See 28 U.S.C. §1915(g):
“In no event shall a prisoner bring a civil action or appeal a judgment in a civil ac-
tion or proceeding under this section if the prisoner has, on 3 or more prior occa-
sions, while incarcerated or detained in any facility, brought an action or appeal in
a court of the United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.” The district judge did
not classify the suit as frivolous or malicious but apparently believed that the com-
plaint fails to state a claim on which relief may be granted. That does not, however,
correspond to the ground on which the case has been decided. The statute of limita-
tions is an affirmative defense. See Fed. R. Civ. P. 8(c); United States Gypsum Co. v.
Indiana Gas Co., 350 F.3d 623 (7th Cir. 2003). Complaints need not anticipate or
plead around affirmative defenses.
Hatch’s complaint states recognized legal claims. He lost not because the com-
plaint failed to state a claim but because he did not sue in time. Consequently, nei-
ther the suit nor the appeal counts against the limit in §1915(g).
AFFIRMED

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