United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge.
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.
Motion for leave to file amended complaint
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).
Actions by Hearing Examiners
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. (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.)
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.
Denial of Adequate Sunlight
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.)
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).
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.
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
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 ...