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Lewis v. Stamper

United States District Court, W.D. Wisconsin

November 20, 2017

EDWARD MAX LEWIS, Plaintiff,
v.
GEORGE STAMPER, et al., Defendants.

          OPINION AND ORDER

          STEPHEN L. CROCKER, MAGISTRATE JUDGE.

         In this pro se civil rights lawsuit, plaintiff Edward Max Lewis proceeds on claims that during his October 26, 2003, to June 28, 2004, detention at the Forest County Jail, the defendants violated his constitutional, statutory and state law rights by failing to provide him with adequate medical and mental health treatment, subjected him to inhumane conditions of confinement, and used excessive force against him. In light of a number of outstanding issues in this lawsuit, this order is an effort to streamline the parties' focus towards summary judgment and, if necessary, trial. Accordingly, this opinion will address:

• The John Doe defendants, who are subject to dismissal.
• Defendants' motion for summary judgment on exhaustion grounds (dkt. 67), which appears unnecessary.
• Defendants' Motion to Compel (dkt. 75), which I am granting in part with modification, and denying in part.
• Plaintiff's Motion for Assistance in Recruiting Counsel (dkt. 88), which I am denying without prejudice.

         John Doe Defendants

         It appears that dismissal of the John Doe defendants is appropriate. Lewis's claims include a claim that defendants George Stamper and “John Doe jail staff” subjected him to inhumane conditions of confinement, and a claim that another John Doe entered his cell and used excessive force in response to Lewis's suicide threat. (Dkt. 36, at 11.) On April 13, 2017, I issued an order setting June 15, 2017, as the deadline for Lewis to amend his complaint and identify the John Doe defendants. (Supp. Prelim. Pretrial Conf. Order, dkt. 59.) The order specifically warned Lewis: “If plaintiff does not file an amended complaint identifying the Doe defendants by the deadline, then this court could dismiss all of plaintiff's claims against the Doe defendants.” (Id.)

         On May 5, 2017, when Lewis asked to extend the June 15 deadline, I denied his request as moot because he had served his discovery requests on defendants. I added that Lewis could renew his request if he needed additional time. (Dkt. 64.) While Lewis has submitted a number of filings since then, he never has requested additional time, nor has he submitted an amended complaint naming those defendants. Accordingly, the John Doe defendants are subject to being dismissed out of this lawsuit. Even so, I will give Lewis until December 5, 2017, both to file an amended complaint identifying the John Doe defendants and to explain why the presiding judge (Judge Conley) should grant leave to add these defendants to the case by name at this late date. If Lewis files nothing, then Judge Conley likely will conclude that Lewis has abandoned his claims against the Doe defendants.

         Exhaustion of Administrative Remedies (dkt. 67)

         Defendants filed a motion for partial summary judgment, seeking dismissal of all of Lewis's claims because he failed to file a grievance while he was incarcerated at the Forest County Jail. Although I cannot resolve this motion in another judge's case, I am ordering the defendants to notify the court whether they wish to pursue it in light of the fact that Lewis no longer is confined in jail or prison. Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Generally, to comply with § 1997e(a), a prisoner must “properly take each step within the administrative process.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), as well as filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), “in the place, and at the time, the [jail's] administrative rules require.” Pozo, 286 F.3d at 1025.

         The purpose of these requirements is to give the jail administrators a fair opportunity to resolve the grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). If a prisoner fails to exhaust his administrative remedies before filing a lawsuit, then the court must dismiss the case. Perez v. Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because exhaustion is an affirmative defense, defendants bear the burden of establishing that plaintiff failed to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).

         Based on Lewis's current address, it appears he has been released from incarceration and is on active community supervision, so the requirements of the PLRA would not apply to him if he chose to immediately refile a new lawsuit to pursue his constitutional claims against defendants. See Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (PLRA did not apply to former prisoner filing suit after his release); Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004) (“[T]he status of the plaintiff at the time he brings his suit” determines whether the plaintiff is a prisoner subject to the PLRA's exhaustion requirements). Thus, even if the presiding judge dismisses Lewis's claim for failure to exhaust, Lewis would be able to refile those claims without the need to exhaust his administrative remedies. See Miniz v. Pazera, 2007 WL 4233455, *4 (N.D. Ind. 2007) (“Even if a prisoner has a case dismissed for failure to exhaust available administrative remedies, they can refile the exact same complaint once they are released from prison without having to satisfy the exhaustion requirement.”).

         The parties have been engaging in substantive discovery related to all of Lewis's claims in this lawsuit for several months, and dispositive motions are due at the beginning of 2018. Given Lewis's active involvement in this lawsuit, it is logical to predict that in response to dismissal of these claims, Lewis promptly would file a new lawsuit to pursue them, resulting in the parties having to litigate a new lawsuit on a new timeline. This outcome appears to be an ...


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