Rozak, Ryan v. Hepp, Randall

Filing 32

ORDER that plaintiff Ryan K. Rozak's supplements to his amended complaint, Dkt. 14 and Dkt. 28 , will be considered part of the operative complaint. Plaintiff is GRANTED leave to proceed on retaliation claims against defendants Sergeant Gem etzke and Sergeant Bailey. The state may have until November 17, 2017, to answer or otherwise respond to plaintiff's new claims if it accepts service on behalf of the new defendants. Plaintiff's motion to appoint attorney William Sulto n, Dkt. 19 , is DENIED. Plaintiff's motion for the court's assistance in recruiting him counsel, Dkt. 19 , is DENIED without prejudice to him renewing his motion later in the proceedings. Defendants' motion for partial summary jud gment on plaintiff's failure to exhaust his administrative remedies, Dkt. 20 , is GRANTED. Plaintiff's claims numbered as 2, 4, 5, 6, and 7 above are DISMISSED without prejudice. Defendants Paul, Larson, and Cooper are DISMISSED from the case. Defendants' motion to stay the schedule, Dkt. 31 , is DENIED as moot. The dispositive motions deadline is extended to January 3, 2018. Signed by District Judge James D. Peterson on 10/25/2017. (jef),(ps)

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

RYAN K. ROZAK,
Plaintiff,
v.

OPINION & ORDER

SGT. RANDT, SGT. PAUL, GEORGE COOPER
and DR. LARSON,

15-cv-367-jdp

Defendants.
Plaintiff Ryan K. Rozak, a prisoner at the Fox Lake Correctional Institution, brings
claims that several prison officials violated his First Amendment rights by retaliating against
him for filing lawsuits and grievances. I allowed Rozak to proceed on claims against defendants
Sergeant Randt, Sergeant Paul, George Cooper, and Dr. Larson, but I dismissed other
defendants and noted that Rozak appeared to be attempting to bring claims against other
officials who were not named as defendants. See Dkt. 10. I gave Rozak a chance to supplement
his amended complaint to clarify some of his claims. Rozak has done so, Dkt. 14, and he has
filed a second supplement as well, Dkt. 28, so I will screen his new allegations. Several other
matters are also before the court. Rozak asks for help in getting counsel to represent him.
Defendants have filed a motion for partial summary judgment based on Rozak’s failure to
exhaust his administrate remedies. Dkt. 20. Defendants also seek a stay of the schedule pending
resolution of their exhaustion motion.
A. Supplements to the complaint
Rozak says that he wants to bring a claim against Warden Randall Hepp because he
responded to Rozak’s letters by saying that Rozak should use the grievance process to address
his concerns about retaliation. Rozak says that this means that Hepp ignored his complaints,

but this is incorrect. The Constitution does not require that Hepp personally investigate every
letter sent to him, and pointing Rozak to the appropriate avenues for relief is an acceptable
response. Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (“[P]risoner’s view that
everyone who knows about a prisoner’s problem must pay damages implies that he could write
letters to the Governor of Wisconsin and 999 other public officials, demand that every one of
those 1,000 officials drop everything he or she is doing in order to investigate a single prisoner’s
claims, and then collect damages from all 1,000 recipients . . . . That can’t be right.”). Rozak’s
allegations also do not support a retaliation claim because they do not suggest that Hepp acted
the way he did to get back at Rozak for filing lawsuits and grievances.
Rozak also states that he would like to bring retaliation claims against Sergeant
Przybylinski for firing him from his job and against Captain Jamie Kuholk for ordering him to
be confined to his room. But he says that he is not sure whether he may bring those claims in
this lawsuit because he also brought them in another lawsuit, Rozak v. Hepp, No. 15-cv-134-jdp
(W.D. Wis.). I conclude that he is barred from bringing those claims in this lawsuit because
they were dismissed with prejudice along with the rest of his claims in the ’134 case after the
parties stipulated to dismissing that case with prejudice after reaching a settlement. The
doctrine of claim preclusion bars successive litigation of “any claims that were litigated or could
have been litigated in a previous action,” Bell v. Taylor, 827 F.3d 699, 706 (7th Cir. 2016); see
also Reed v. Mackey, 669 F. App’x 307, 308 (7th Cir. 2016) (“a district court may raise the issue
[of claim preclusion] sua sponte when . . . preclusion clearly applies”) (citing Kratville v. Runyon,
90 F.3d 195, 197–98 (7th Cir. 1996)).
Rozak wants to add retaliation claims against Sergeant Gemetzke and Sergeant Bailey
for constantly harassing him. These claims do not suffer from the flaws mentioned above. For

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the same reasons that I allowed Rozak to proceed on retaliation claims against the other
defendants for their repeated harassing actions, I will allow him to proceed against Gemetzke
and Bailey.
B. Exhaustion
Defendants have filed a motion for summary judgment on the ground that Rozak failed
to exhaust his administrative remedies on most of his retaliation claims. Under the Prison
Litigation Reform Act, “[n]o action shall be brought with respect to prison conditions . . . until
such administrative remedies 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). The exhaustion requirement’s primary
purpose is to “alert[ ] the state” to the problem “and invit[e] corrective action.” Riccardo v.
Rausch, 375 F.3d 521, 524 (7th Cir. 2004).
Section 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.
Before Rozak amended his complaint to include claims against new defendants
Gemetzke and Sergeant Bailey, I allowed him to proceed on the following retaliation claims:

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1. Defendant Randt did not hire Rozak
2. Randt performed a search of Rozak’s cell without an appropriate reason
3. Randt would not allow Rozak to take two pieces of fruit out of the dining hall
4. Randt and defendant Paul do not let Rozak eat where he wants
5. Defendant Larson forces Rozak drink his nutritional supplement in front of
prison staff
6. Randt forces Rozak to stay in his cell from 8:00 a.m. to 4:30 p.m.
7. Defendant Cooper dismissed all of Rozak’s grievances
See Dkt. 10, at 3.
Defendants produce Rozak’s grievance history and state that he has exhausted only
claims 1 and 3 by fulling litigating those issues through the ICRS process, that he failed to fully
appeal his grievance about his nutritional supplement, and that he failed to file grievances
about any of the other incidents.
In his opposition, Rozak mainly responds about claim 7, against Cooper for dismissing
his grievances. Rozak states that he exhausted his other claims though Cooper (as an institution
complaint examiner) and that Cooper dismissed them out of a retaliatory motive, but he does
not dispute defendants’ assertion that he never filed a grievance about Cooper. Therefore he
has filed to exhaust his remedies regarding Cooper.
Rozak says that claims 2, 4, 5, and 6 are “on file,” but he does not explain what he
means by this. He does not say that he properly exhausted grievances about these issues, and
he does not provide any evidence suggesting that his ICRS history as provided by defendants
is inaccurate. Because Rozak fails to place into dispute the evidence provided by defendants
showing that he failed to exhaust his administrative remedies on claims 2, 4, 5, 6, and 7, I will
dismiss those claims without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004)

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(dismissal for failure to exhaust is always without prejudice). He can refile those claims if he
can successfully exhaust them, but he will likely find it impossible to file proper grievances
because those events happened too long ago. Because Rozak’s claims against defendants Paul,
Larson, and Cooper are being dismissed, I will dismiss them from the case. The only claims
remaining out of the original seven are claim 1 (about Randt failing to hire him) and claim 3
(about Randt stopping him from carrying two pieces of fruit out of the dining hall).
C. Motion to stay schedule
Defendants have filed a motion asking me to stay the summary judgment deadline of
November 3, 2017, and all future case deadlines until I issue a ruling on their exhaustion
motion. I have now ruled on the exhaustion motion, but the timing of this order does create
some complications for the schedule. Assuming the state will agree to represent the new
defendants, it is very likely that it will seek summary judgment on exhaustion grounds
regarding the new claims. I will push the dispositive motions deadline to January 3, 2018, to
accommodate the introduction of the new defendants and claims.
D. Recruitment of counsel
Finally, Rozak has filed two letters in which he asks about how recruitment of counsel
works in this court and whether the court would appoint attorney William Sulton to represent
him. He attaches a letter from Sulton stating that his law firm generally “does not get involved
in prisoners’ rights cases until after summary judgment or when the district court makes a
request.” Dkt. 19-1. Rozak states that he will need counsel because he reads at a fifth-grade
level and has little understanding of how court procedure works.
I will explain how this court’s recruitment process works. I do not have the authority to
appoint counsel to represent a pro se plaintiff in this type of a case; I can only recruit counsel

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who may be willing to serve voluntarily in that capacity. I take Attorney Sulton’s letter as
meaning that he is not interested in representing Rozak completely voluntarily, but might
consider doing so if the court asked. If Rozak is asking me to appoint Sulton to the case, I must
deny that request.
I would reach out to Sulton or other attorneys only if Rozak met this court’s
requirements for recruiting counsel. Normally, to show that it is appropriate for the court to
recruit counsel, a plaintiff must first show that he has made reasonable efforts to locate an
attorney on his own. See Jackson v. Cty. of McLean, 953 F.2d 1070, 1072–73 (7th Cir. 1992)
(“the district judge must first determine if the indigent has made reasonable efforts to retain
counsel and was unsuccessful or that the indigent was effectively precluded from making such
efforts”). To meet this threshold requirement, this court generally requires plaintiffs to submit
correspondence from at least three attorneys to whom they have written and who have refused
to take the case. Rozak has reached out to only one attorney, so he does not meet this
requirement.
I am not convinced that Rozak meets the second requirement either. This court will
seek to recruit counsel for a pro se litigant only when the litigant demonstrates that his case is
one of those relatively few in which it appears from the record that the legal and factual
difficulty of the case exceeds his ability to prosecute it. Pruitt v. Mote, 503 F.3d 647, 654–55
(7th Cir. 2007). Although Rozak has a grade-school reading level and says that he has a limited
knowledge of the law and this court’s procedures, those impediments are fairly common among
our pro se litigants and do not in themselves necessarily require court intervention to recruit
counsel. He suggests that he will not be able to file an appropriate summary judgment response
when the time comes, but I am not convinced that he needs help. The important thing for him

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to do at summary judgment will be to explain the events surrounding the alleged acts of
retaliation, and to explain how he knows that the various defendants meant to retaliate against
him. Based on the submissions he has already filed in this case, he should be able to do this.
As the case progresses, Rozak is free to renew his motion, but he will have to show the court
that he has contacted two more lawyers, and explain what particular tasks are too complex for
him to litigate without counsel.

ORDER
IT IS ORDERED that:
1. Plaintiff Ryan K. Rozak’s supplements to his amended complaint, Dkt. 14 & Dkt. 28,
will be considered part of the operative complaint.
2. Plaintiff is GRANTED leave to proceed on retaliation claims against defendants
Sergeant Gemetzke and Sergeant Bailey.
3. The state may have until November 17, 2017, to answer or otherwise respond to
plaintiff’s new claims if it accepts service on behalf of the new defendants.
4. Plaintiff’s motion to appoint attorney William Sulton, Dkt. 19, is DENIED.
5. Plaintiff’s motion for the court’s assistance in recruiting him counsel, Dkt. 19, is
DENIED without prejudice to him renewing his motion later in the proceedings.
6. Defendants’ motion for partial summary judgment on plaintiff’s failure to exhaust his
administrative remedies, Dkt. 20, is GRANTED. Plaintiff’s claims numbered as 2, 4, 5,
6, and 7 above are DISMISSED without prejudice.
7. Defendants Paul, Larson, and Cooper are DISMISSED from the case.
8. Defendants’ motion to stay the schedule, Dkt. 31, is DENIED as moot.

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9. The dispositive motions deadline is extended to January 3, 2018.
Entered October 25, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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