Lonas, Dessie v. Greisbach, Judge et al

Filing 16

ORDER dismissing this case without prejudice. The clerk of court is directed to enter judgment in favor of defendants and close this case. Plaintiff Dessie Lonas will not owe a filing fee for case nos. 16-cv-790-jdp and 16-cv-791-jdp. The clerk of court is directed to apply plaintiff's payments in those two cases toward the filing fee for case no. 16-cv-780-jdp. Signed by District Judge James D. Peterson on 1/20/2017. (jef),(ps)

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

DESSIE LONAS,
Plaintiff,
v.
JUDGE GRIESBACH, JUDGE BISHEL, JUDGE
ZUDMULDER, A.D.A. DANA JOHNSON, OFFICER
MARY SHARTNER, BROWN COUNTY POLICE
DEPARTMENT, DEPARTMENT OF CORRECTIONS,
ATTORNEY SINGH, and ATTY. KACHINSKY,

OPINION & ORDER
16-cv-780-jdp

Defendants.
DESSIE LONAS,
Plaintiff,
v.

OPINION & ORDER
16-cv-790-jdp

DANA JOHNSON,
Defendant.
DESSIE LONAS,
Plaintiff,
v.

OPINION & ORDER
16-cv-791-jdp

STATE OF WISCONSIN,
Defendant.

Plaintiff Dessie Lonas, a Wisconsin Department of Corrections prisoner housed at the
Oshkosh Correctional Institution, has filed documents styled as civil complaints in each of
the three above-captioned cases, all which concern his 2008 Brown County conviction for
repeated sexual assault of a child. The relief he seeks is the vacation of his conviction and a

new trial, a declaration that the repeated-sexual-assault-of-a-child criminal statute is
unconstitutional, and criminal charges to be brought against officials involved in prosecuting
him. Lonas seeks leave to proceed with his cases in forma pauperis, and he has already made
initial partial payments of the filing fees previously determined by the court.
The next step is to screen each of the complaints. In doing so, I must dismiss any
portion that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law cannot be sued for money
damages. 28 U.S.C. §§ 1915 and 1915A. Because Lonas is a pro se litigant, I must read his
allegations generously. Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam).
After considering Lonas’s allegations, I conclude that each of the cases must be
dismissed, because this court cannot grant the relief he seeks in the type of case he brings.
For instance, in the ’791 case, he seeks a declaratory judgment that Wis. Stat. § 948.025
(“Engaging in repeated acts of sexual assault of the same child.”) is unconstitutional. But
Lonas cannot bring an action for declaratory relief where a judgment in his favor would
implicitly question the validity of his conviction. See Heck v. Humphrey, 512 U.S. 477, 486-87
(1994); Edwards v. Balisok, 520 U.S. 641, 648 (1997) (“respondent's claim for declaratory
relief and money damages . . . that necessarily imply the invalidity of the punishment
imposed, is not cognizable under § 1983”). Nor can I initiate criminal proceedings or conduct
a “John Doe” proceeding under Wisconsin law, as Lonas asks for in the ’790 case. If Lonas
wants to pursue federal criminal charges against defendants, he should contact the United
States Attorney. If he wants to pursue a “John Doe” proceeding, he will have to do that in
state court.

2

At the heart of each of these cases is Lonas’s request that his conviction be vacated
and that he receive a new trial. This federal court can consider this type of request only if it is
included in a petition for writ of habeas corpus. I will not convert these cases into a habeas
action. See Copus v. City of Edgerton, 96 F.3d 1038, 1039 (7th Cir. 1996) (per curiam) (“The
district court was not authorized to convert a § 1983 action into a § 2254 action, a step that
carries disadvantages (exhaustion and the certificate of appealability only two among many)
for litigants. . . . It may be that as a § 1983 suit it is defective, but if so the proper step would
have been to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) or grant summary
judgment, rather than to ‘convert’ the case to an impossible or inappropriate alternative
suit.”).
I will dismiss these cases. Lonas can pursue his claims by filing a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Lonas should not construe anything in this order as
an opinion on the potential merits of any habeas claim he might bring. I will also warn Lonas
that to pursue his claims under § 2254, he will have to demonstrate that his petition is timely
and that he has complied with all applicable exhaustion requirements, meaning that he has
presented his claims to the state court system before filing his federal habeas petition.
Lonas has also filed a series of letters in these cases and his other currently pending
case (16-cv-752-jdp) regarding his prison trust fund account. Because I addressed those
letters in the ’752 case, I will not address them here.
Finally, I see no reason to hold Lonas to three separate filing fees when there was no
real reason for him to file three separate lawsuits about the problems with his conviction. I
will direct the clerk of court to excuse Lonas from paying the remainder of his filing fees for
the ’790 and ’791 cases. He will still have to pay the fee in the ’780 case. I will direct the

3

clerk of court to apply Lonas’s initial partial payments from the other two cases toward his
fee in the ’780 case.

ORDER
IT IS ORDERED that:
1. These cases are DISMISSED without prejudice. The clerk of court is directed to
enter judgment in favor of defendants and close those cases.
2. Plaintiff Dessie Lonas will not owe a filing fee for case nos. 16-cv-790-jdp and 16cv-791-jdp. The clerk of court is directed to apply plaintiff’s payments in those
two cases toward the filing fee for case no. 16-cv-780-jdp.
Entered January 20, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

4