Jones, Adonis v. Haines, Tim et al

Filing 32

ORDER granting 23 Motion for Partial Summary Judgment; granting 27 Motion for Assistance in Recruiting Counsel; denying as moot 31 Motion to Stay. Defendant Hermanes is DISMISSED as a defendant. This matter is STAYED until the court recruits counsel for plaintiff, at which point the court will schedule a telephonic conference. Signed by District Judge William M. Conley on 9/27/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ADONIS JONES,
Plaintiff,

OPINION AND ORDER

v.
14-cv-642-wmc
WARDEN TIM HAINES, et al.,
Defendants.

Plaintiff Adonis Jones has been permitted to proceed on his Eighth Amendment
claims that (1) defendant Officer Martin used excessive force against him; and (2)
defendants Officers Esser, Ritchner, McDaniels, Haines, Sweeney, Hermanes and
Flannery failed to protect him.

Defendants filed a Motion for Partial Summary

Judgment seeking a judgment dismissing seven of plaintiff’s claims due to his failure to
exhaust his administrative remedies (dkt. #23), which will be granted. Plaintiff filed a
Motion for Assistance in Recruiting Counsel (dkt. #27), which will also be granted.
Finally, in light of the above, defendants’ recently-filed motion to stay the dispositive
deadline pending a decision on defendants’ partial motion for summary judgment (dkt.
#31) will be denied as moot.
UNDISPUTED FACTS
I.

Jones’ Complaint
Jones is confined at the Wisconsin Secure Program Facility (“WSPF”) in Boscobel,

Wisconsin.

The defendants include the following individuals employed at that

institution during the relevant period: Warden Tim Haines; Security Director Jerome

Sweeney; Deputy Warden Hermanes; Officer Martin; Officer Esser; Officer McDaniel;
Captain Flannery; and Sergeant Ritchner.
On November 24, 2015, the court granted Jones leave to proceed on his Eighth
Amendment harassment and excessive force claims, based on the following allegations:


Officer Martin unnecessarily used aggressively harsh grips on Jones from
October 2012 through January 2013.



Martin called Jones a “stupid nigger” and told him he would “break [his] back”
in March 2013.



Martin moved Jones near another inmate so that inmate could spit at Jones in
May 2013, and Officer Esser was present and did nothing to intervene.



Martin sexually assaulted Jones during a pat-down on April 12, 2013.
Sergeant Ritchner was present and did nothing to intervene.



Martin slammed Jones against a door on April 17, 2013, injuring his shoulder
joint and wrist, and Officer McDaniel participated in slamming Jones against
the door.



Martin banged and kicked Jones’ cell on July 28, 2013.



On October 15, 2013, Martin used an “aggressive grip” on Jones during an
escort, and Officer Esser was present and did nothing to intervene.



Martin handcuffed Jones too tightly during an escort on November 13, 2013.
Officer Esser participated in Martin’s refusal to loosen the handcuffs.



Martin told Jones “I got a gun and I know how to shoot, we can’t fight in here
I’ll lose my job” in January 2014.
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

On May 14, 2014, Martin opened Jones’ cell door, and after Jones told him he
was going to sue him, Martin replied “Out of all the places to die you gone
wanna die at my place.”



Haines and Sweeney denied Jones’ request that Martin not be permitted to pat
down or escort him, but did nothing else to intervene. Haines never responded
to Jones’ family’s phone calls asking for Jones to be transferred



When Jones’ family called with concerns about how Jones was being treated,
Hermanes falsely told them that Jones had not been sexually assaulted.



Flannery investigated Jones’ complaints about Martin and lied during the
conduct report hearing, ignoring the fact that he knew about Martin’s use of
force upon Jones.

II.

Jones’ Grievances
Cindy O’Donnell is employed by the Wisconsin Department of Corrections as a

Limited Term Employee Policy Initiatives Advisor. Pursuant to her duties, O’Donnell
reviewed Jones’ complaint history and concluded that he failed to file inmate complaints
regarding six of his claims in his Complaint. Specifically, she reviewed the records of
appeals of inmate complaints (see dkt. #25-1) and found that Jones had not filed inmate
complaints with respect to the following allegations found in his complaint on which he
was permitted to proceed:
1. From October 2012 through January 2013, Martin used “aggressive grips” on
Jones during escorts, “played” with his food trays and yanked on his clothing
during pat-searches.
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2. In March 2013, Martin called Jones a “stupid nigger” and told him he would
“break [his] back.”
3. In May 2013 Martin moved Jones near another inmate so that inmate could
spit at Jones, and Esser was present.
4. In January 2014, Martin told Jones “I got a gun and I know how to shoot, we
can’t fight in here I’ll lose my job.”
5. Jones’ family called Haines about Martin’s treatment, but Haines never
acknowledged the requests and took no steps to intervene.
6. Hermanes falsely told Jones’ family that Jones had not been sexually assaulted.
Further, O’Donnell states that her search revealed that on July 29, 2013, Jones did
file Offender Complaint WSPF 2013-14767, complaining that Martin was harassing him.
(Dkt. #25-2.) In that complaint, Jones alleged that on July 28, 2013, Martin banged
and kicked Jones’ cell, yelling for him to wake up for medication distribution, and Jones
responded that he did not need medication. O’Donnell states that Inmate Complaint
Examiner Ellen Ray investigated this complaint, ultimately concluding that Martin was
following WSPF Policy 900.524.05 by waking Jones up. Ray found that because this
policy required Martin to wake up Jones because it required Jones to verbally refuse the
medication, Martin had not harassed Jones.

As a result, Ray recommended that the

complaint be dismissed on August 1, 2013. On August 9, 2013, Tim Haines accepted
Ray’s recommendation and dismissed WSPF 2013-14767. Finally, Jones did not appeal
this decision to the CCE’s office.

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OPINION
I. Exhaustion of Eighth Amendment Claims
Defendants contend that since Jones did not properly pursue administratively any
of the six claims described above, nor properly exhaust the seventh claim, all seven are
subject to dismissal. 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.” To comply with § 1997e(a),
generally a prisoner must “properly take each step within the administrative process,”
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which 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 prison’s administrative rules require.”
Pozo, 286 F.3d at 1025.
To exhaust administrative remedies in Wisconsin, inmates must follow the inmate
complaint review process set forth in Wisconsin Administrative Code ch. DOC 310.
These procedures include, among others, the requirements that the inmate (1) file
complaint with the Inmate Complaint Examiner within 14 calendar days after the
occurrence giving rise to the complaint (Wis. Admin. Code § DOC 310.09) and (2) file
an appeal to the Corrections Complaint Examiner within 10 days of an unfavorable result
(Wis. Admin. Code §§ 310.13(1), (7), 310.14(2)). The purpose of these requirements is
to give the prison administrators a fair opportunity to resolve the grievance without
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litigation. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). If a prisoner fails to exhaust his
administrative remedies before filing his lawsuit, the court must dismiss the case. Perez v.
Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999).
Here, the undisputed facts show that, as to six of the claims that Jones included in
his complaint, he did not even attempt to seek relief in the prison system by filing a
grievance, much less follow these claims through the necessary appeals. As to the seventh
claim, although Jones did file a complaint about Martin’s July 28, 2013, harassment
(WSPF 2013-14767), he did not appeal that decision as required under Wisconsin’s
administrative code.
Jones does not dispute these basic facts with respect to any of these seven claims.
Instead, he submitted 66 pages of portions of inmate complaints and appeals that he has
pursued at WSPF. (See dkt. #26.) Since none of these documents show that Jones even
filed a grievance as to the first six claims, nor that he pursued an appeal related to the
seventh claim, WSPF 2013-14767, summary judgment in defendants’ favor is
appropriate as to the following seven claims, which are dismissed:
1. In October 2012 and March 2013, Martin used “aggressive grips” on Jones
during escorts, “played” with his food trays and yanked on his clothing during
pat-searches.
2. In March 2013, Martin called Jones a “stupid nigger” and told him he would
“break [his] back.”
3. In May 2013 Martin moved Jones near another inmate so that inmate could
spit at Jones, and Esser was present.
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4. In January 2014, Martin told Jones “I got a gun and I know how to shoot, we
can’t fight in here I’ll lose my job.”
5. Jones’ family called Haines about Martin’s treatment, but Haines never
acknowledged the requests and took no steps to intervene.
6. Hermanes falsely told Jones’ family that Jones had not been sexually assaulted.
7. Martin harassed Jones on July 28, 2013, by kicking at his cell and yelling at
Jones that he needed to take his medications.
As the only claim implicating defendant Hermanes is being dismissed, this defendant will
likewise be dismissed. To be clear, defendants sought summary judgment on the ground
that these allegations constitute claims. Although these claims are being dismissed, the
court makes no judgment as to the relevance of these allegations to plaintiffs’ remaining
claims. For instance, one remaining claim is that Martin harassed plaintiff, which may be
factually related to the dismissed harassment claims, all of which could be relevant to the
determination of whether Martin’s harassment amounted to an Eighth Amendment
violation.1 Accordingly, while plaintiff may not obtain relief on the above allegations as
independent claims, this opinion should not be construed as an evidentiary bar on
evidence related to these unexhausted claims for purposes of summary judgment or trial.

1

Specifically, plaintiff’s claim that on May 14, 2014, Martin told him that he would die in “this
place” was exhausted. This complaint was labeled WSPF 2014-9635 and was received by ICE on
May 16, 2014. However, in one of the hand-written pages Jones submitted during the grievance
process with respect to this complaint, he references his “past history” with Martin, including
Martin’s threats to break his back, shoot him and fight him. (Dkt. #26, at 8.) Although those
prior harassment claims were not exhausted, Jones appears to be referencing those previous
instances as evidence of the fact that he was telling the truth with respect to WSPF 2014-9635,
and to establish a prior history of Martin’s harassment. Thus, it may be that the facts comprising
certain unexhausted claims are admissible as relevant to other exhausted claims.

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This means that the following substantive claims of violations of plaintiff’s Eighth
Amendment rights remain:


On October 15, 2013, Martin used an “aggressive grip” on Jones during an
escort, and Officer Esser was present and did nothing to intervene.



Martin sexually assaulted Jones during a pat-down on April 12, 2013.
Sergeant Ritchner was present and did nothing to intervene.



Martin slammed Jones against a door on April 17, 2013, injuring his shoulder
joint and wrist, and Officer McDaniel participated in slamming Jones against
the door.



Martin handcuffed Jones too tightly during an escort on November 13, 2013.
Officer Esser participated in Martin’s refusal to loosen the handcuffs.



On May 14, 2014, Martin opened Jones’ cell door, and after Jones told him he
was going to sue him, Martin replied “Out of all the places to die you gone
wanna die at my place.”



Haines and Sweeney denied Jones’ request that Martin not be permitted to pat
down or escort him, but both denied his requests and did nothing else to
intervene.



Haines failed to respond to Jones’ family’s requests that Jones be transferred.



Flannery investigated Jones’ complaints about Martin and lied during the
conduct report hearing, ignoring the fact that he knew about Martin’s use of
force upon Jones.

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II. Motion for Assistance in Recruiting Counsel
Before a district court can consider such motions, it must first find that the
plaintiff has made reasonable efforts to find a lawyer on his own and that they were
unsuccessful, or that he was prevented from making such efforts. Jackson v. County of
McLean, 953 F.2d 1070 (7th Cir. 1992). To prove that he has made reasonable efforts to
find a lawyer, plaintiff must submit letters from at least three lawyers who he asked to
represent him in this case and who turned him down, or if such letters do not exist, an
affidavit with the names, addresses and dates when he requested their assistance. Jones
has attached five letters from attorneys declining to represent him, so he has easily
fulfilled this initial requirement.
The next question is whether litigating this lawsuit exceeds Jones’ capabilities. See
Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc) (the central question in deciding
whether to request counsel for an indigent civil litigant is “whether the difficulty of the
case – factually and legally – exceeds the particular plaintiff’s capacity as a layperson to
coherently present it to the judge or jury himself”). In his motion, Jones indicates that
his imprisonment and placement in segregation greatly limit his ability to access the law
library, and he believes that the issues in this case are too complex for him to properly
litigate them. Since filing his motion, he also filed a supplement that represents he has
been unsuccessful in his attempts to comprehend the procedural rules and that he has
not been able to find another inmate able to assist him. Based on the record in this case
to date, the court finds these representations to be credible.

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Although his request for counsel was clearly written, Jones explains that he
submitted it with the help of another inmate.

Jones’ other filings in this court

demonstrate that he cannot advocate for himself. His initial complaint violated Fed. R.
Civ. P. 20 and required him to inform the court which claim he would like to proceed on.
His summary judgment response similarly indicates that he does not understand how to
respond effectively to a dispositive motion. Indeed, instead of submitting an opposition
brief or any evidence in opposition to defendants’ brief, Jones merely submitted
documents related to his inmate complaints.

At best, his response indicates an

understanding that he needed to submit proof that he exhausted his claims, but an
inability to provide any sort of advocacy.
While the court was able to parse out the correct result on the issue of exhaustion,
based on Jones’ and the defendants’ filings, his filings leave the court with little
confidence in Jones’ ability to engage in discovery, respond to a dispositive motion on the
merits of his procedurally viable claims, or effectively handle witness testimony at trial
without the help of an attorney.

This is especially so given that plaintiff’s Eighth

Amendment claims arise from a multitude of allegations that will require him to prepare
and cross-examine witnesses. Accordingly, the court will grant his request for assistance
in recruiting counsel.
ORDER
IT IS ORDERED that:
1.

Defendants’ Motion for Partial Summary Judgment (dkt. #23) is
GRANTED, and defendant Hermanes is hereby DISMISSED as a
defendant.
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2.

Plaintiff’s Motion for Assistance in Recruiting Counsel (dkt. #27) is
GRANTED. This matter is STAYED until the court recruits counsel for
plaintiff, at which point the court will schedule a telephonic conference.

3.

Defendants’ Motion To Stay The Dispositive Deadline Pending A Decision
On Defendants’ Partial Motion For Summary Judgment (dkt. #31) is
DENIED as moot.

Entered this 27th day of September, 2016.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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