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Harris v. Jaeger

United States District Court, W.D. Wisconsin

March 14, 2017

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

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge

         This court gave pro se plaintiff Lowmorreo Harris leave to proceed on claims that certain officials at the New Lisbon Correctional Institution retaliated against him for filing grievances in violation of his First Amendment rights. (Dkt. #16) Harris was also granted leave to proceed on claims that defendants Jaeger and Baker violated his Fourteenth Amendment procedural due process rights as biased decisionmakers in hearing one of his conduct reports. (Id.) Pending before the court are the parties' cross motions for summary judgment. (Dkt. ##59, 85.)

         Because there are no facts in this record from which a reasonable jury could find that defendants Jaeger, Achterberg or Christopher Baker violated plaintiff's rights, those defendants will be granted summary judgment in their favor. The court will, however, deny summary judgment to defendants Devendorf and Waterman because of the short time period between Harris's grievances and their alleged actions which might support a retaliatory inference against them.

         UNDISPUTED FACTS [1]

         A. The Parties and Claims

         At the time of the events relevant to this lawsuit, plaintiff Lowmorreo A. Harris was an inmate at the New Lisbon Correctional Institution (“NLCI”). Similarly, defendants Jeff Jaeger, Charles Devendorf, Jason Achterberg, Amanda Waterman and Christopher Baker were all Wisconsin Department of Corrections (“DOC”) officials at NLCI.[2] During the relevant period, Jaeger was the Corrections Management Services Director; Devendorf, a Financial Specialist; Achterberg and Baker, Captains; and Waterman, a Segregation Property Officer.

         Harris alleges that Services Director Jaeger and Financial Specialist Devendorf both retaliated against him after he filed grievances by interfering with his legal mail and issuing him conduct reports. At least as to the conduct report issued by Specialist Devendorf, Harris claims the allegations were fabricated. Harris further claims that Officer Waterman issued him a false conduct report at the direction of Captain Achterberg in retaliation for filing a grievance. Finally, Harris claims that Director Jaeger and Captain Baker violated his procedural due process rights in ruling on the conduct report issued by Waterman.

         B. Conduct Reports for Using a False Name Issued by Director Jaeger

         Under DOC rules, an inmate who uses a name other than the one under which he was committed to DOC is subject to punishment for using “false names and titles, ” unless he has legally changed his name. Wis. Admin. Code § DOC 303.35. When Harris was originally committed to DOC during his intake at the Dodge Correctional Institution (“DCI”) on April 4, 2012, Harris actually had judgments of conviction from different Milwaukee County cases under two different names -- “Lowmorreo A. Harris” and “Mario A. Harris.” Defendants explain that DCI admitted Harris to DOC under the name “Harris, Mario A.” because the judgment of conviction with that name reflected his earliest offense date. (Pl.'s Exs. (dkt. 82-2) at ECF 108.) Consistent with its practice, DCI, therefore, listed “Lowmorreo Harris” as an alias.[3] (Id.)

         On June 20, 2012, Management Services Director Jaeger, who supervised staff in the business office and was responsible for approving or denying inmates' legal loan applications (Decl. of Jeffrey Jaeger (dkt. #64) ¶ 3), approved Harris's legal loan applications for three cases (Harris v. Latino Auto Sales, Harris v. Nichole Adams and Harris v. City of Milwaukee), but warned him that his loans for two of those cases (Latino Auto Sales and Nichole Adams) would be withdrawn if he did not provide case numbers for them by September 14, 2012. (Id. at ¶ 8.) The following day, Harris sent a disbursement request to the business office for five copies of his complaint in the Nichole Adams case. (Defs.' Resp. PFOF (dkt. #106) ¶ 28.) Harris signed his name “Mario Harris” on the disbursement request, but the complaint he wanted copied used the name and signature of “Lowmorreo Harris.” (Id. at ¶¶ 28-29.) Despite that discrepancy, Financial Specialist Devendorf, who also worked in the business office, approved the five copies on June 29, 2012. (Id. at ¶ 30.) Harris was not issued a conduct report for using the name “Lowmorreo Harris” in this transaction.

         On July 13, 2012, Harris sent a letter to the business office claiming that funds had been improperly deducted from his inmate account. Specialist Devendorf responded with a July 17th letter that explained the deductions were made in accordance with DOC policy. Unsatisfied, Harris attempted to file an inmate complaint dated the same day, but the Institution Complaint Examiner (“ICE”), Lynn Washetas, returned it to him on August 1, 2012, without processing it or assigning it a number.[4]

         Specialist Devendorf sent a follow-up memorandum to Harris on August 1, 2012, responding to two information requests Harris had sent to the business office regarding his legal loan and supplies. (Decl. of Charles Devendorf (dkt. #65) ¶ 12.) On August 7, 2012, Devendorf sent Harris yet another letter (1) informing him that the business office was aware that he had filed a complaint “regarding legal loan supplies to the [ICE], ” and (2) directing him to “cease all communication with the Business Office regarding legal loan supplies” until ICE issued a decision on that complaint.[5] (Decl. of Lowmorreo A. Harris Exs. (dkt. #84-1) at ECF 37.) Harris attempted to file another complaint about the business office, dated August 18, 2012, but ICE returned it to him on August 21st, advising him to contact Director Jaeger to address these issues. (Defs.' Resp. PFOF (dkt. #106) ¶¶ 42-43.)

         On August 22, 2012, the business office received written requests from Harris to make copies of documents signed by “Lowmorreo Harris” with funds from his legal loan.[6]After receiving this request, Devendorf “checked DOC's online database and verified his committed name was Mario Harris, ” then “forwarded these documents” to Jaeger as well. (Decl. of Charles Devendorf (dkt. #65) ¶ 29.) Having had the documents “brought to [his] attention, ” Jaeger: (1) “checked with the Records Office and verified Harris' committed name was Mario Harris and that he had not legally changed his name to anything else”; (2) “checked with property staff to see if he had a birth certificate or Social Security card on file at New Lisbon, which he did not”; and (3) “checked the DOC inmate locator, which identifies him as Mario Harris with Lowmorreo listed as an identified alias.” (Decl. of Jeffrey Jaeger (dkt. #64) ¶ 12.) After verifying Harris's committed name, Director Jaeger wrote him a conduct report that same day for using a false name. A hearing committee found that Harris had violated the prohibition against using false names on August 29, 2012, for which he was reprimanded. (Decl. of Lynn Washetas Ex. 118 (dkt. #67-1) at 1-2.)

         On August 22, 2012, defendant Baker placed Harris in the NLCI segregation unit pending the resolution of Jaeger's conduct report (Defs.' Resp. PFOF (dkt. #107) ¶ 17), and a “Review of Offender in Temporary Lockup” form in the record Dated: August 28, 2012, indicates that a decision to retain Harris in temporary lockup pending the outcome of his conduct report was the result of the security director's “first 7-day review.” (Decl. of Lynn Washetas Ex. 118 (dkt. #67-1) at 10.) There are no facts in the record as to when Harris was released from this period of temporary lockup, although the “reprimand” disposition of the conduct report would suggest that he was not held in segregation after being found guilty of using a false name the first time. Defendants do not dispute that Harris was strip searched before being placed in temporary lockup. (Defs.' Resp. PFOF (dkt. #107) ¶ 19.)

         Despite being found guilty of the conduct charged in Jaeger's report, Harris persisted in submitting requests for copies of the summons and complaint in the Nichole Adams case on September 3, 2012, both of which were signed “Lowmorreo Harris.” On September 7, 2012, Jaeger then emailed an attorney from the DOC's Office of Legal Counsel to ask whether the business office could require him to use “Mario Harris, ” since that remained his DOC committed name and the name for which his legal loan was approved. The attorney responded that she would deny Harris's legal loan requests if he only used an alias. (Decl. of Charles Devendorf Ex. 108 (dkt. #64-2).) That same day, Jaeger denied Harris's copy requests and returned the documents to Harris.

         Harris then resubmitted the documents returned to him, this time whiting-out and changing “Lowmorreo” to “Mario” in the documents, including in his signature, which had already been notarized. In what was becoming a “Catch 22” situation, Jaeger responded to Harris with a memorandum on September 19, 2012, notifying him that the documents would not be processed, since they were now altered in violation of DOC rules. In that same memorandum, Jaeger explained that Harris could not use any name other than “Mario” as his first name, but that he could, for example, use “Mario (aka Lowmorreo) Harris.”[7] Jaeger also notified Harris that his loans for the Latino Auto Sales and Nichole Adams cases would be withdrawn because he had failed to submit case numbers to the business office by the deadline established when Jaeger conditionally approved those loans in June of 2012.

         Two days after notifying Harris about the cancellation of his loans, on September 21, 2012, Director Jaeger sent Harris another memorandum informing him that his loan would be reinstated for the Nichole Adams case, since Devendorf and he had discovered the case number after they “reviewed case numbers for filing fees.” (Decl. of Jeffrey Jaeger Ex. 110 (dkt. #64-4).) Jaeger also informed Harris that copies of his altered summons and complaint would be returned for his records, but that Jaeger would keep the originals, since they were “altered notarized legal document[s], which [would] be retained for future reference/discipline, if warranted.” (Id.) Director Jaeger also instructed Harris that he would need to resubmit any documents that he wanted to be copied, along with a new disbursement request. (Id.)

         In direct defiance of these warnings - whether because he felt out of options, or was just being obstinate, or both -- Harris resubmitted the same, altered summons and complaint for copying. Predictably enough, Jaeger responded by memorandum, dated September 28, 2012, advising that the documents would be seized as evidence and not returned. Jaeger also warned Harris in that memorandum that he would be issued a conduct report if he continued to submit altered documents. (Decl. of Jeffrey Jaeger Ex. 111 (dkt. #64-5).) In response to the memorandum, Harris sent Director Jaeger an interview/information request, claiming that he had not been informed his resubmission of the altered copies was prohibited.

         While Jaeger never issued a conduct report for submitting or resubmitting those altered documents, he did issue Harris another conduct report for using a false name some four months later.[8] This February 1, 2013, conduct report was based on “two pieces of correspondence from Harris for processing under his legal loan, ” in which “Harris used and/or signed his name as Lowmorreo Harris.”[9] (Defs.' Reply PFOF (dkt. #108) ¶ 61.) A hearing committee found on February 13, 2013, that Harris had again violated the prohibition on using false names, for which he ultimately received 180 days in segregation.[10]

         C. Alleged Interference with Mail and Conduct Report Issued by Financial Specialist Devendorf

         Harris claims that both Director Jaeger and Specialist Devendorf interfered with his legal mail in retaliation for earlier filed grievances against them. In November of 2012, after receiving notification that a trust account statement for one of his cases had not been certified, Harris sent a follow up request to the business office. While Devendorf admits that he failed to mail a certified copy of the trust account statement in response to Harris's first request, Devendorf also claims that the omission was inadvertent and that he immediately corrected his mistake at no additional charge to Harris once he was alerted to it. Nevertheless, Harris filed a complaint against the business office on November 14, 2012, for failing to certify copies of his inmate trust account, causing him to incur an additional charge for postage.

         On December 10, 2012, ICE Brendan Ingenthron acknowledged receipt of this first complaint, which he rejected for Harris's “refusal to cooperate with the investigation.” (Decl. of Lynn Washetas Ex. 123 (dkt. #67-6) at 2.) On December 21, 2012, ICE acknowledged receipt of Harris's second inmate complaint against the business office, this time claiming that he was repeatedly denied a legal loan for a case involving termination of his parental rights. (Decl. of Lynn Washetas Ex. 124 (dkt. #67-7) at 1.) ICE Ingenthron dismissed Harris's second complaint on December 26, 2012, because Devendorf and Jaeger told him that Harris had asked about mailing items to a social worker but had not actually requested a legal loan for his parental rights case. (Id. at 2.)

         On January 2, 2013, Specialist Devendorf was working in the records office during office hours when Harris visited with a disbursement request to receive blank sheets of paper. Devendorf told Harris that he would deliver the paper when he returned to the business office. When Harris offered to instead go get the paper from the librarian, however, Devendorf assented.

         While in material agreement on most of the facts, the parties dispute whether Devendorf authorized Harris to receive 50 or 150 sheets. According to Harris, he handed Devendorf a request for 150 sheets, which Devendorf then approved. Devendorf, on the other hand, asserts that the request read fifty sheets when he approved it, consistent with policy regarding the maximum number of sheets an inmate can receive per week. (Decl. of Lynn Washetas Ex. 122 [Wisconsin Division of Adult Institution Policy # 309.51.01] (dkt. #67-5) at ECF 9.) Devendorf claims that he first noticed Harris had altered the approval to read 150 sheets the following day, when he reviewed the disbursement slip before posting it to Harris's legal loan. On January 3, 2013, after Devendorf voiced his concern about the altered disbursement slip, Harris was moved to segregation under temporary lockup status (“TLU”) pending administrative action on Devendorf's expected conduct report.

         Inmates placed in segregation under TLU have all of the property in their general population cells inventoried and moved to the property room. Those inmates must sign an inventory sheet before they can receive their property, which is typically delivered the following weekday, provided the segregation unit is adequately staffed. Harris refused to sign the inventory sheet on January 4, 2013.

         After contacting the librarian to confirm that Harris had indeed received 150 sheets from her, Devendorf wrote Harris a conduct report for altering the disbursement slip on January 7, 2013. Harris was found guilty of this conduct report after a disciplinary hearing and received 90 days in segregation.

         D. Conduct Report Issued ...


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