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Harris v. Jaeger

United States District Court, W.D. Wisconsin

September 28, 2016

LOWMORREO HARRIS, SR., Plaintiff,
v.
JEFF JAEGER, et al ., Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge.

         In this civil action, the court granted pro se prisoner Lowmorreo Harris, Sr., leave to proceed on his claims that defendants, “Jeff Jaeger, Charles Devendorf, Captain Acterberg, C/O Bender and Captain Baker, ” retaliated against him in violation of his First Amendment rights, as well as his claims that defendants Jaeger and Baker violated his procedural due process rights at a disciplinary hearing. This opinion and order will address and rule on Harris's varied, currently pending motions.

         I. Motion for leave to file amended complaint

         Plaintiff moves for leave to add several claims to this lawsuit. (Dkt. #45.) While courts “should freely give leave when justice so requires, ” Fed.R.Civ.P. 15(a)(2), it is appropriate for the court to deny leave “where there has been undue delay, dilatory motive on the part of the movant, repeated failure to cure previous deficiencies, and where amendment would be futile.” CogniTest Corp. v. Riverside Publ'g Co., 107 F.3d 493, 499 (7th Cir. 1997) (citation omitted).

         A. Actions by Hearing Examiners

         Here, plaintiff seeks to add claims against Captain Kannonberg and Joe Thyne, apparently learning through discovery that in Harris's initial disciplinary hearing to address a conduct report for using a false name, two members of the disciplinary committee, Kannonberg and Thyne, “held that plaintiff's name was in fact ‘Lowmorreo A. Harris' because of papers given to the committee by Sgt. Koran acting as staff advocate for the accused.” (Pl.'s Mtn. for Leave to Amend Compl. (dkt. #45) at 2.) This information, plaintiff claims, should have resulted in a finding that he was not guilty of using a false name.[1] (Id.) Plaintiff also purports to have learned through discovery that Thyne in particular, who was also on the disciplinary committee for Harris's hearing to address a second conduct report against him, “was motivated as [a] colleague to assist the retribution imposed on Harris.” (Id.)

         Plaintiff fails to identify in his amended complaint, however, any facts to support a reasonable inference that Kannonberg and Thyne subjected him to discipline despite knowing that it was not warranted nor that Thyne participated in retaliating against him because he complained about staff misconduct. Absent those facts, allowing plaintiff to proceed on his proposed claims against Kannonberg and Thyne would be a futile gesture. Accordingly, the court will deny leave to add either as a defendant.

         B. Denial of Adequate Sunlight

         In addition to his proposed claims against Kannonberg and Thyne, plaintiff seeks leave to add a claim for cruel and unusual punishment under the Eighth Amendment on the basis that, among other things, his “vitamin D levels dipped below normal levels causing plaintiff to suffer severe bone aches and [risk of fracture], ” all as a result of a lack of sunlight while he was held at Wisconsin Secure Program Facility. (Id. at 4.) Plaintiff further adds that DOC medical staff said that he “will have to take vitamin supplements for the rest of his life.” (Pl.'s Mtn. for Leave to Amend Compl. (dkt. #45) at 4.)

         Prison officials violate the constitution when they are “deliberately indifferent to adverse conditions that deny the minimal civilized nature of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted). Prison conditions severe enough to violate the constitution are varied and are assessed in combination. See Budd v. Motley, 711 F.3d 840, 842-43 (7th Cir. 2013).

         Assuming that the conditions plaintiff describes are serious enough to rise to the level of a constitutional violation, he has yet to identify any defendant who could be held personally liable. Regardless, Federal Rule of Civil Procedure 20 permits plaintiffs to join multiple defendants in a lawsuit only if: (1) at least one claim against each defendant arises out of the same transaction or series of transactions; and (2) there is a question of law or fact common to all of the defendants. Fed.R.Civ.P. 20; see George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Since any claims concerning the alleged conditions at Wisconsin Secure Program Facility appear to be unrelated in law or fact to Harris's remaining claims against any of the approved defendants in this lawsuit, plaintiff will be denied leave to add his proposed Eighth Amendment claim.

         C. Retaliation

         Finally, plaintiff seeks leave to add a claim against Sgt. Perkins arising out of Harris's alleged refusal to accept delivery of already-opened legal mail from Perkins in January of 2012. When Harris asked Perkins what he did with that mail about two hours later, plaintiff alleges that Perkins became upset and “broadcasted” a false assertion that Harris was incarcerated for child molestation. Harris further alleges that after he filed a complaint against Perkins for his behavior, Perkins was interviewed by the complaint examiner and said “something different” than this in his conduct report. (Pl.'s Am. Compl. (dkt. #46) at 9.)

         Any claim against Perkins would likewise be futile under Rule 20 because it also appears to be unrelated to any of Harris's remaining claims. In addition, Harris provides no reason to infer that Perkins retaliated against him for any protected activity recognized under the Eighth Amendment. Farmer, 511 ...


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