Lonas, Dessie v. Greisbach, Judge et al

Filing 45

Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 43 Notice of Appeal. (Attachments: # 1 Orders, judgment, # 2 Docket sheet) (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

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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

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DESSIE LONAS,

Plaintiff,

JUDGMENT IN A CIVIL CASE

v.

16-cv-780-jdp

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,

Defendants.

This action came for consideration before the court with District Judge
James D. Peterson presiding. The issues have been considered and a decision has
been rendered.

IT IS ORDERED AND ADJUDGED that judgment is entered in favor of
defendants dismissing this case without prejudice.

/s/
Peter Oppeneer, Clerk of Court

1/20/2017
Date

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,

ORDER
16-cv-780-jdp

Defendants.
DESSIE LONAS,
Plaintiff,
v.

ORDER
16-cv-790-jdp

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

ORDER
16-cv-791-jdp

STATE OF WISCONSIN,
Defendant.

Plaintiff Dessie Lonas, a Wisconsin Department of Corrections prisoner housed at the
Oshkosh Correctional Institution, filed documents styled as civil complaints in each of the
three above-captioned cases, all which concerned his 2008 Brown County conviction for
repeated sexual assault of a child. Lonas sought 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.
I dismissed all three of these cases in a January 20, 2017 order, because I could not
grant the type of relief he sought in civil rights lawsuits brought under 42 U.S.C. § 1983.
Dkt. 16 in the ’780 case. In particular, I could not issue an order vacating his conviction. And
under Seventh Circuit precedent, I would not convert his cases into a petition for writ of
habeas corpus.
Now Lonas has filed a motion for reconsideration of the dismissal of these three cases.
He states that the district attorney, police, and Department of Corrections are withholding
evidence “so [he] could not file a habeas or motions to get back in a court of law” and he
suggests that after writing to the clerk of court about this withholding of evidence (before he
filed his lawsuits here), he was informed to file a complaint. Dkt. 19 in the ’780 case, at 1.
Lonas asks me to allow him to rewrite his cases or to tell him how to proceed with a challenge
to his conviction.
I have directed the clerk of court to place two of its responses to Lonas’s letters on the
docket of his ’780 case. Dkt. 21. The clerk’s responses show that the clerk’s office informed
Lonas that he could file a civil complaint or a habeas action, depending on the type of relief
he was seeking. Id. The clerk cannot give Lonas legal advice about which type of lawsuit to
file, so it was up to Lonas to determine which type of action was best. As I explained in the
January 20 order, a civil rights lawsuit was not the proper way to litigate his claims for
vacation of his conviction. I will deny Lonas’s motion for reconsideration because he does not
persuade me that my decision was incorrect.

2

What I said in the previous order (and what the clerk told Lonas) holds true: to
challenge his conviction, Lonas must file a postconviction motion in his state trial court or a
petition for writ of habeas corpus in federal court.1 Nothing in any of Lonas’s submissions
suggests that he is being blocked from filing a postconviction motion or habeas petition. If
government officials are not allowing him access to certain evidence, that is an issue he
should raise in his postconviction motion or habeas petition. But he must take one of those
options; he cannot present this claim in the civil rights lawsuits that I have dismissed.
From the online record of Lonas’s criminal proceedings, I cannot tell which option is
right for him. He will have to make that decision himself. But I again warn Lonas that to
pursue his claims in a habeas petition 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.

ORDER
IT IS ORDERED that plaintiff Dessie Lonas’s motion for reconsideration of the
court’s January 20, 2017 order is DENIED.
Entered February 2, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
1

I also note that the appropriate place to file his habeas is almost certainly the District Court
for the Eastern District of Wisconsin, because that is the district in which he was sentenced
and in which he is currently incarcerated.

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

DESSIE RUSSELL LONAS,
Plaintiff,
v.

ORDER

OSHKOSH CORRECTIONS INST. and
DEPARTMENT OF CORRECTIONS,

16-cv-752-jdp

Defendants.
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,

ORDER
16-cv-780-jdp

Defendants.

DESSIE LONAS,
Plaintiff,
v.

ORDER
16-cv-790-jdp

DANA JOHNSON,
Defendant.

DESSIE LONAS,
Plaintiff,

ORDER

v.

16-cv-791-jdp

STATE OF WISCONSIN,
Defendant.

Plaintiff Dessie Lonas, a Wisconsin Department of Corrections prisoner housed at the
Oshkosh Correctional Institution, filed documents styled as civil complaints in each of these
four cases. In a January 20, 2017 order, I dismissed Lonas’s complaint in the ’752 case (about
mistreatment of a broken nose and hernia) because he did not name as a defendant any
individual who failed to properly treat him. Dkt. 21 in the ’752 case. I gave him a short
deadline to amend his complaint to explain who violated his rights and to name those
persons as defendants. The court later extended his deadline to March 13, 2017.
His three other complaints all concerned his 2008 Brown County conviction for
repeated sexual assault of a child. Lonas sought to vacate his conviction and receive 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. I dismissed all three of these cases in a January 20, 2017 order, because I could not
grant the type of relief he sought in civil rights lawsuits brought under 42 U.S.C. § 1983.
Dkt. 16 in the ’780 case. In particular, I could not issue an order vacating his conviction. And
under Seventh Circuit precedent, I would not convert his cases into a petition for writ of
habeas corpus. I denied Lonas’s motion for reconsideration in a February 2 order. Dkt. 23 in
the ’780 case. In doing so, I noted that the appropriate place to file his habeas petition was

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most likely the District Court for the Eastern District of Wisconsin, because that is the
district in which he was sentenced and in which he is currently incarcerated.
Lonas has now filed a series of letters addressing each of his cases. With regard to the
’752 case, he initially asked for an extension of time to file his amended complaint, but he
now appears to be satisfied with the extension he received. He states that prison officials are
refusing to give him medical records that might help him understand exactly who violated his
rights. But he should not need medical records at this point. As I previously explained to him,
he does not need to amend his complaint to include the actual names of prison officials who
harmed him. If Lonas does not know the identity of particular defendants, he may label them
as John Doe #1, John Doe #2, and so on, and the court has procedures by which he may
make discovery requests to identify those defendants.
Lonas also asks whether he is required to file an “ICE complaint” about his medical
treatment before he can pursue his lawsuit. Prisoners are generally required to exhaust
internal prison administrative remedies before filing a lawsuit about mistreatment. See 42
U.S.C. § 1997e(a) (“No 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.”). But I cannot give Lonas detailed legal advice about his situation. I encourage
him to attempt resolving his problems using the internal grievance process if he has not
already done so, but it is up to him to decide whether he wishes to continue litigating the
’752 case.
With regard to his other three cases, Lonas continues to argue that this court could
vacate his conviction or order the release of evidence showing his innocence. He also suggests

3

that his mail is being tampered with, and that he has been threatened with harm if he files
documents to the courts in general and the Eastern District in particular. Because one of
Lonas’s letters asks to change my previous orders in his three cases concerning his conviction,
I will construe that letter as a motion for reconsideration and deny it. As I explained before, I
cannot take any action on his current allegations. He needs to file either a formal petition for
writ of habeas corpus in federal court, or a postconviction motion in state court. His
allegations that he is being threatened or that his mail is being tampered with are perhaps the
basis for a new lawsuit, but only after he raises these problems internally to prison officials.
Once Lonas has an active habeas case, he should raise his concerns to the court hearing that
case.
At this point, Lonas should understand the choices he needs to make. He has a March
13 deadline for filing his amended complaint in the ’752 case. The ’780, ’790, and ’791 cases
will remain closed. Any further letters or motions for reconsideration in those cases will be
deemed dismissed upon filing unless the court informs Lonas that it is taking other action. It
is up to him to decide whether he wishes to file a habeas petition about his conviction.

ORDER
IT IS ORDERED that plaintiff Dessie Lonas’s motion for reconsideration, Dkt. 24 in
case no. 16-cv-780-jdp, is DENIED.
Entered February 27, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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