Famous v. John Doe Officers et al

Filing 25

ORDER signed by Judge J P Stadtmueller on 6/4/2021. 13 Defendant's Motion for Summary Judgment is GRANTED as to Claims One, Two, and Four in full and Claim Three in part, which are DISMISSED without prejudice for Plaintiff's failure to exhaust administrative remedies. By 9/2/2021, Plaintiff to IDENTIFY the John Doe Defendants, or they will be dismissed without further notice. 22 Plaintiff's Motion to Appoint Counsel is DENIED without prejudice. See Order. (cc: all counsel, via mail to Ronnie L Famous at Columbia Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RONNIE L. FAMOUS,
Plaintiff,
v.
MICHAEL JULSON and JOHN DOE
OFFICERS 1-4,

Case No. 20-CV-243-JPS-JPS

ORDER

Defendants.
Plaintiff Ronnie L. Famous, a prisoner proceeding in this matter pro
se, filed a complaint alleging that Defendants violated his constitutional
rights. (Docket #1). On July 8, 2020, this Court screened the complaint and
allowed Plaintiff to proceed on four claims: (1) excessive force,
(2) conditions of confinement, and (3) deliberate indifference, in violation
of the Eighth Amendment, and (4) state law negligence. (Docket #8).
On November 13, 2020, Defendant Michael Julson filed a motion for
summary judgment, arguing that Plaintiff failed to exhaust his
administrative remedies. (Docket #13). This motion has been fully briefed,
and for the reasons explained below, will be granted on Claims One, Two,
and Four in full, as well as on Claim Three in part (as to Plaintiff’s request
for medical attention). The Court will also address Plaintiff’s motion to
appoint counsel. (Docket #22).
1.

STANDARD OF REVIEW
1.1

Summary Judgment

Federal Rule of Civil Procedure 56 provides that the Court “shall
grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); Boss v. Castro, 816 F.3d 910, 916 (7th Cir.
2016). A fact is “material” if it “might affect the outcome of the suit” under
the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
Court construes all facts and reasonable inferences in the light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016).
1.2

Exhaustion of Prisoner Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) establishes that, prior to
filing a lawsuit complaining about prison conditions, a prisoner must
exhaust “such administrative remedies as are available[.]” 42 U.S.C.
§ 1997e(a). To do so, the prisoner must “file complaints and appeals in the
place, and at the time, the prison’s administrative rules require.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). He must do so precisely in
accordance with those rules; substantial compliance does not satisfy the
PLRA. Id.; Burrell v. Powers, 431 F.3d 282, 284–85 (7th Cir. 2005). A suit must
be dismissed if it was filed before exhaustion was complete, even if
exhaustion is achieved before judgment is entered. Perez v. Wis. Dep’t of
Corr., 182 F.3d 532, 535 (7th Cir. 1999). The exhaustion requirement furthers
several purposes, including restricting frivolous claims, giving prison
officials the opportunity to address situations internally, giving the parties
the opportunity to develop the factual record, and reducing the scope of
litigation. Smith v. Zachary, 255 F.3d 446, 450–51 (7th Cir. 2001). Failure to
exhaust administrative remedies is an affirmative defense to be proven by
a defendant. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005).

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1.2.1

Inmate Complaint Review System

The Wisconsin Department of Corrections (“DOC”) maintains an
inmate complaint review system (“ICRS”) to provide a forum for
administrative complaints. Wis. Admin. Code § DOC 310.04. The ICRS
“allow[s] inmates to raise in an orderly fashion issues regarding
department policies, rules, living conditions, and employee actions that
personally affect the inmate or institution environment, including civil
rights claims.” Id. § DOC 310.01(2)(a). Before commencing a civil action or
special proceedings, “inmate[s] shall exhaust all administrative remedies
the [DOC] has promulgated by rule.” Id. § DOC 310.05.
There are two steps an inmate must take to exhaust the available
administrative remedies. First, the inmate must file an offender complaint
with the Institution Complaint Examiner (“ICE”) within fourteen days of
the events giving rise to the complaint. Id. § DOC 310.07(2). The ICE may
reject the complaint or return the complaint to the inmate and allow him or
her to correct any issue(s) and re-file within ten days. See id. § DOC
310.10(5),(6). If the complaint is rejected, the inmate may appeal the
rejection to the appropriate reviewing authority within ten days. Id. § DOC
310.10(10).1 If the complaint is not rejected, the ICE issues a
recommendation of either dismissal or affirmance to the reviewing
authority. Id. § DOC 310.10(9),(12). The reviewing authority (“RA”) will
affirm or dismiss the complaint, in whole or in part, or return the complaint
to the ICE for further investigation. Id. § DOC 310.11(2).
Second, if the ICE recommends, and the RA accepts, dismissal of the
complaint, the inmate may appeal the decision to the Corrections
Complaint Examiner (“CCE”) within fourteen days. Id. §§ DOC 310.09(1),
The ICRS defines a “reviewing authority” as “a person who is authorized
to review and decide an inmate complaint.” Wis. Admin. Code § DOC 310.03(15).
1

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310.12. The CCE issues a recommendation to the Secretary of the
Department of Corrections, who may accept or reject it. Id. §§ DOC
310.12(2), 310.13. The inmate exhausts this administrative process when
either he or she receives the Secretary’s decision. Id. § DOC 310.13(2),(3). If
the inmate does not receive the Secretary’s written decision within ninety
days of the date of receipt of the appeal in the CCE's office, the inmate shall
consider the administrative remedies to be exhausted. Id. § DOC 310.13(4).
2.

RELEVANT FACTS
Plaintiff was incarcerated at Columbia Correctional Institution

(“Columbia”) when the alleged events took place. (Docket #1 at 2).
Defendants John Doe Officers 1–4 are correctional officers at Columbia, and
Defendant Michael Julson (“Julson”) is a captain there (collectively,
“Defendants”). (Id. at 2-3). Plaintiff alleges that on November 18, 2019,
Plaintiff yelled at Sergeant Carl Kim when she returned mail to him that he
had given to prison officials for mailing to the court. (Id. at 4). Julson was
called and came to Plaintiff’s cell with the four John Doe Officer
Defendants. (Id.) Plaintiff yelled at them and refused to place his hands out
to be handcuffed. (Id.)
Defendants returned to Plaintiff’s cell in riot gear with gas masks
and ordered him to come to the door and submit to restraints; Plaintiff
refused. (Id. at 5). After his refusal, Defendants sprayed Plaintiff with OC
“pepper” spray numerous times. (Id.) Plaintiff alleges that after he was
sprayed, his body began to burn and he could hardly breathe. (Id.) Plaintiff
stopped resisting Defendants and obeyed their orders from that point on.
(Id.) According to Plaintiff, Defendants ordered Plaintiff to get on his knees
and crawl backwards to the door to be handcuffed. (Id.) Plaintiff complied
and had to crawl through pepper spray on the floor, which caused his

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hands and knees to burn. (Id.) Once at the door, Plaintiff was handcuffed.
(Id. at 5–6).
After being removed from his cell, Plaintiff asked Julson if he could
take a shower and see the nurse because he was in pain and was having
problems breathing. (Id. at 8). Plaintiff states that Julson refused to let him
see the nurse and refused to allow him to take a decontamination shower
to clean himself of the pepper spray. (Id. at 7). Instead, Plaintiff was allowed
to rinse his face for a few seconds. (Id. at 8). Plaintiff was put into a cell with
nothing but a smock to wear. (Id.) Additionally, Plaintiff alleges that he had
to sleep in the cold cell on a concrete bed without a mattress, additional
clothing, blankets, bedding, or towels. (Id. at 9). The cell did not have a
washcloth, soap, toilet paper, or running water. (Id.) Further, Plaintiff
alleges that he was forced to ask another prisoner to write to the nurse to
seek medical help, because Defendants refused to give him a pencil and
health services slip. (Id.)
Plaintiff filed one inmate complaint regarding the events on
November 18, 2019: CCI-2019-20928. (Docket #15 at 2). The inmate
complaint was acknowledged by the ICE office on December 4, 2019. (Id.)
Plaintiff identified his one issue as “Jewelson refused to allow me to shower
after spraying me with a chemical.” (Id.) In the details section, Plaintiff
wrote, “On 11-18-19 I was sprayed with a chemical by capt. Jewelson, who
refused to allow me to wash off the spray, causing physical damage to my
health.” (Id.) The ICE investigated the inmate complaint and recommended
dismissal because it was “clear Inmate Famous did in fact receive . . . a
decontamination shower.” (Id.) The RA agreed and dismissed the inmate
complaint on December 17, 2019. (Id. at 3). Plaintiff appealed, writing on his
appeal form that, “captain Julson refused to allow me to shower after I was
sprayed with OC. He only allowed his officer to rinse my face - nothing
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else causing burning body pain and skin discoloration.” (Id.) The CCE
recommended dismissal because Plaintiff was provided a decontamination
shower, and the Office of the Secretary accepted the recommendation and
dismissed the appeal on January 23, 2020. (Id.)
3.

ANALYSIS
Julson alleges that Plaintiff has not exhausted his administrative

remedies for Claims One (excessive force); Two (conditions of
confinement); Three (deliberate indifference to the extent it relates to
Plaintiff requesting medical attention); and Four (state law negligence); and
therefore, those claims must be dismissed for failure to exhaust. Plaintiff
concedes that he did not exhaust his excessive force claim (regarding being
strapped into a restraint chair); his conditions of confinement claim; his
deliberate indifference claim (regarding seeking medical attention); and his
state law negligence claim. (Docket #18 at 3). Julson’s motion for summary
judgment will be granted accordingly, and such claims will be dismissed
without prejudice for Plaintiff’s failure to exhaust.2
Both parties agree that Plaintiff exhausted his administrative
remedies

regarding

a

claim

against

Julson

denying

Plaintiff

a

decontamination shower after he was sprayed with pepper spray. (Docket
#14 at 1-2, 10; Docket #18 at 3; Docket #21). There are, however, two areas
of disagreement. The first dispute is whether Plaintiff can proceed on claims
of both excessive force and deliberate indifference—or only on a deliberate
indifference claim—regarding the denial of a decontamination shower after
he was sprayed with pepper spray.

Although it seems clear that Plaintiff will not be able to complete the ICRS
process for his claims at this late date, dismissals for failure to exhaust are always
without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
2

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The Court, in the Screening Order, listed a lack of shower after being
sprayed by pepper spray as a potential excessive force claim. (Docket #8 at
5-6). Upon further review, the Court determines that the denial of a
decontamination shower after being sprayed with pepper spray is not an
excessive force claim. Denying someone a shower is not an act of applying
force, and therefore, is not an excessive force claim. Thus, Plaintiff may
proceed on only a deliberate indifference claim regarding the denial of a
decontamination shower.
The second disagreement is whether Plaintiff exhausted his
decontamination shower claim against all Defendants, or only as to Julson.
Defendants argue that because Plaintiff’s grievance only named Julson,
then the prison officials did not have notice that they needed to investigate
whether other staff members failed to provide a decontamination shower.
(Docket #21 at 2-3). Based on the lack of notice, Defendants argue that
Plaintiff did not exhaust his decontamination shower claim against any of
the John Doe Officer Defendants. (Id.)
To satisfy the exhaustion requirement, a grievance must alert prison
officials to the claims the plaintiff has included in the complaint, but need
only provide the level of detail required by the grievance system itself. Jones
v. Bock, 549 U.S. 199, 218–19 (2007); Porter v. Nussle, 534 U.S. 516, 524–25
(2002) (purpose of exhaustion requirement is to give officials “time and
opportunity to address complaints internally before allowing the initiation
of a federal case”). A prisoner need not name a specific individual in his
complaint in order to satisfy the requirements of exhaustion under 42 U.S.C.
§ 1997e(a). Plaintiff only had to name the John Doe Officer Defendants in
the inmate complaint if the prison grievance system or Wis. Admin. Code
§ DOC 310.07 required it, and it is not required in either.

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Exhaustion is met if Plaintiff’s inmate complaints contained
“sufficient information for the department to investigate and decide the
complaint.” Id. § DOC 310.07(6). In support of his motion for summary
judgment, Julson provided the Court with the ICRS history for Plaintiff, the
inmate complaint, the ICE reports, and the incident report regarding the
events at issue in this case. (Docket #16-2). In Plaintiff’s inmate complaint
he states that, “capt. Jewelson refused to allow me to shower after spraying
me with a chemical.” (Id. at 10). Although the inmate complaint only names
Julson, the incident report makes it clear that the prison officials were made
aware that Plaintiff was involved in an incident with several officers,
including Julson. (Id. at 12-15). Additionally, the ICE recommendation
summary of facts states that the ICE employee reviewed the incident report
when investigating Plaintiff’s inmate complaint. (Id. at 7).
The purpose of the exhaustion requirement is to give the prison
administrators a fair opportunity to resolve the grievance without
litigation. Woodford v. Ngo, 548 U.S. 81, 88–89 (2006); see also Turley v.
Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (“once a prison has received notice
of, and an opportunity to correct, a problem, the prisoner has satisfied the
purpose of the exhaustion requirement”). Based on the inmate complaint,
incident report, and ICE report, the Court finds that the prison officials were
put on notice of the issue that Plaintiff alleges in this action and Plaintiff
exhausted his deliberate indifference decontamination shower claim
against all Defendants.
Therefore, Plaintiff may proceed against all Defendants on his
deliberate indifference claim regarding the denial of a decontamination
shower. However, Plaintiff must identify the John Doe Officer Defendants
on or before September 2, 2021. If they are not identified by that deadline,
they will be dismissed from this case without further notice.
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4.

PLAINTIFF’S MOTION TO APPOINT COUNSEL
The Court turns to Plaintiff’s pending motion to appoint counsel.

(Docket #22). As a civil litigant, Plaintiff has “neither a constitutional nor
statutory right to a court-appointed attorney.” James v. Eli, 889 F.3d 320, 326
(7th Cir. 2018). However, under 28 U.S.C. § 1915(e)(1), the “court may
request an attorney to represent any person unable to afford counsel.” The
court should seek counsel to represent a plaintiff if: (1) he has made
reasonable attempts to secure counsel; and (2) “‘the difficulty of the case—
factually and legally—exceeds the particular plaintiff’s capacity as a
layperson to coherently present it.’” Navejar v. Iyiola, 718 F.3d 692, 696 (7th
Cir. 2013) (quoting Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc)).
Whether to appoint counsel in a particular case is left to the Court’s
discretion. James, 889 F.3d at 326; McCaa v. Hamilton, 893 F.3d 1027, 1031 (7th
Cir. 2018).
First, the Court asks whether the litigant has made “reasonable”
efforts to obtain his own representation. Pruitt, 503 F.3d at 655; Jackson v.
County of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). It is a question not
often litigated; many district judges either overlook arguably unreasonable
efforts at obtaining counsel, or they impose eminently practical
requirements such as the submission of evidence demonstrating that the
prisoner has tried and failed to secure representation from several lawyers.
See, e.g., Kyle v. Feather, 2009 WL 2474627, at *1 (W.D. Wis. Aug. 11, 2009).
The first element of Pruitt is fairly easy to satisfy, but it is not
toothless, and it is not a mere technical condition of submitting a certain
number of rejection letters. If it was, then a Wisconsin prisoner litigating a
Section 1983 action could submit rejection letters from ten randomly
selected criminal defense lawyers from Nevada and call his work complete.
This cannot be. The purpose of the reasonable-efforts requirement is to
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ensure that if the Court and private lawyers must expend scarce resources
to provide counsel for a prisoner, he has at least made a good-faith effort to
avoid those costs by getting a lawyer himself. To fulfill this duty, a pro se
prisoner should reach out to lawyers whose areas of practice suggest that
they might consider taking his case. If he learns that some of the lawyers he
has contacted do not, he should reach out to others before he concludes that
no one will help him.
In this case, Plaintiff states that he sent letters to two lawyers
regarding representation. (Docket #22 at 4). He states that the two letters
are attached as Exhibit 3. (Id.) However, Exhibit 3 does not exist or has not
been properly filed with this Court, and no copies of letters have been
attached to the motion or supporting declarations. (See Docket #22-#24).
As he has not provided any letters, Plaintiff’s showing is simply
insufficient to satisfy the first element. Plaintiff must demonstrate that he
sought representation from at least three lawyers who practice in this area
before making a request that the Court consider recruiting counsel to assist
him. The Court acknowledges that this places an additional burden on
Plaintiff, but his request for pro bono counsel is a serious one and cannot be
taken lightly. Plaintiff has failed to satisfy the first element in Pruitt and the
Court need not go further in its analysis. Plaintiff’s motion to appoint
counsel will be denied without prejudice.
5.

CONCLUSION
For the reasons explained above, Julson’s motion for summary

judgment, (Docket #13), shall be granted. The only claim which now
remains is Claim Three for deliberate indifference to Plaintiff’s serious
medical needs in violation of the Eighth Amendment—to the extent it
relates to the denial of decontamination shower after Plaintiff was sprayed
with OC “pepper” spray—by Defendant Michael Julson and John Does 1-4,
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on November 18, 2019. Plaintiff’s motion for recruitment of counsel,
(Docket #22), will be denied without prejudice.
Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment
(Docket #13) be and the same is hereby GRANTED as to Claims One, Two,
and Four in full, as well as to Claim Three in part (to the extent it relates to
Plaintiff’s request for medical attention);
IT IS FURTHER ORDERED that Claims One, Two, and Four in full,
as well as Claim Three in part (to the extent it relates to Plaintiff’s request
for medical attention), are DISMISSED without prejudice for Plaintiff’s
failure to exhaust administrative remedies;
IT IS FURTHER ORDERED that Plaintiff must identify the John
Doe defendants on or before September 2, 2021. If they are not identified
by that deadline, they will be dismissed without further notice; and
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint
counsel (Docket #22) be and the same is hereby DENIED without
prejudice.
Dated at Milwaukee, Wisconsin, this 4th day of June, 2021.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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