United States District Court, W.D. Wisconsin
D. PETERSON, DISTRICT JUDGE
Dessie Russell Lonas, appearing pro se, is an inmate at
Oshkosh Correctional Institution. Lonas alleges that
defendant prison officials violated his Eighth Amendment
rights by failing to properly treat his broken nose or his
hernia. A number of matters are before the court.
main issue I will address is defendants' motion for
summary judgment based on Lonas's alleged failure to
exhaust the administrative remedies for his claims. Dkt. 109.
Under the Prison Litigation Reform Act, “[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 . . . until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a).
The exhaustion requirement is mandatory and applies to all
inmate suits. Woodford v. Ngo, 548 U.S. 81 (2006);
Porter v. Nussle, 534 U.S. 516, 524 (2002).
1997e(a) requires “proper exhaustion, ”
Woodford, 548 U.S. at 93; Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which
means that the prisoner must follow prison rules when filing
the initial grievance and all necessary appeals, “in
the place, and at the time, the prison's administrative
rules require.” Burrell v. Powers, 431 F.3d
282, 284-85 (7th Cir. 2005). “[A] prisoner who does not
properly take each step within the administrative process has
failed to exhaust state remedies.” Pozo, 286
F.3d at 1024. The Wisconsin Department of Corrections uses a
four-step process called the Inmate Complaint Review System
(ICRS) to review inmate grievances. See Wis. Admin.
Code Ch. DOC 310.
say that Lonas “never filed an inmate complaint related
to either the delay in treating his hernia nor the medical
care (or lack thereof) for his nose.” Dkt. 110, at 5-6.
This statement is based off the DOC's “Inmate
Complaint History Report, ” which, at least from the
summaries of the listed grievances, appears to show no
grievances directly about either medical problem.
did not file a formal brief in opposition, and so there is no
reply from defendants. But Lonas did submit a letter in which
he discusses defendants' motion. Dkt. 114. He says that
defendants' grievance-history materials have been
doctored and that he filed more grievances than those
appearing on the report. He notes that he already submitted
copies of those grievances along with his amended complaint.
See Dkt. 39-1, at 21-27. Those documents show that
Lonas submitted three grievances discussing his medical
problems that were rejected out of hand by the institution
complaint examiner. But defendants do not mention these
grievances in their brief. Because exhaustion is an
affirmative defense that defendants have the burden to prove,
Turley v. Rednour, 729 F.3d 645, 649-50 (7th Cir.
2013), I will give defendants a short time to reply to
Lonas's opposition, explaining the responses to those
submissions also show that his February 2017 grievance listed
in the history report as being about a medical-records
request was about records related to his nose and hernia
problems. Grievance No. OSCI-2017-4918, see Dkt.
39-1. But Lonas does not attach the grievance itself; without
it, I cannot tell whether Lonas's grievance was merely
about access to records, or it was also about his medical
treatment itself. Defendants should also reply specifically
about the '4918 grievance. After receiving
defendants' reply, I will decide whether it is necessary
to have a hearing to determine whether Lonas exhausted his
also ask to stay discovery and all deadlines pending
resolution of the exhaustion motion. Dkt. 119. I will deny
that motion regarding discovery, but there is time remining
in the schedule to move the dispositive-motions deadline, so
I will amend that deadline, as stated in the order below.
Recruitment of counsel
the course of this lawsuit, Lonas has submitted more than 70
letters in addition to his formal pleadings and motions,
discussing a number of issues and asking questions about
lawsuits in this court. In some of his letters, Lonas asks
why the court has not responded. But I cannot respond to
every letter written by each pro se litigant before me: I
must allocate my time among hundreds of cases, and the court
cannot give Lonas-or any other litigant-legal advice. I will
address a handful of the issues he raises that are proper for
me to consider.
among these issues is Lonas's oft-repeated request for
the court to recruit him counsel because he does not
understand how to litigate this lawsuit. I denied his
previous motions for counsel for two reasons: (1) he did not
show that he contacted at least three lawyers and that they
turned him down; and (2) it was also too early to tell
whether the case will be too complicated for Lonas.
See Dkt. 89.
has filed a formal motion renewing his request for counsel,
Dkt. 131, and he addresses the issue in many of the letters
he has recently sent to the court. He now submits letters
showing that at least three lawyers have refused to represent
him, Dkt. 94; Dkt. 118; Dkt 131, so I conclude that he has
met this part of the test. But I am still not convinced that
the case will be too difficult for Lonas to handle, in part
because the case might still be resolved on exhaustion
grounds. Lonas has already stated his case opposing that
motion. Even if the case is not dismissed for that reason, it
is still unclear what facts are in dispute and whether the
case might boil down to complex medical issues outside of
Lonas's ability to litigate himself. So I will deny his