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Long v. Harring

United States District Court, W.D. Wisconsin

December 5, 2017

PETER J. LONG, Plaintiff,
v.
LINDA HARRING, et al., Defendants.

          OPINION AND ORDER

          STEPHEN L. CROCKER MAGISTRATE JUDGE.

         Pro se plaintiff Peter J. Long is proceeding with a First Amendment retaliation claim against several staff members at Thompson Correctional Center. In this order I am sua sponte amending my order on leave to proceed, then I am ruling on the discovery disputes that prompted my re-review of Long's complaint.

         In the court's leave to proceed order, I allowed Long to proceed on a “claim[] that Harring retaliated against him for using the prison grievance system to win his cell assignment seniority back when she issued him a warning for wearing Carhartt jeans and conduct report for bringing butters back to his cell, ” and that the other defendants “either rejected, dismissed, or affirmed dismissal of Long's grievances . . . . because he filed so many grievances.” Screening Order, dkt. 11, at 5, 7. Before the court is Long's motion to compel defendants to respond to his First Set of Written Interrogatories and Request for Production of Documents, dkt. 20. (He has also filed a motion for the appointment of counsel to assist him in deposing witnesses, dkt. 23, which I will address in a separate order).

         The parties' briefs on their discovery disputes reveal that both sides have a view of this lawsuit that is at odds with the court's screening order and the claims on which I have allowed Long to proceed. Not surprisingly, Long argues that the court construed his claims too narrowly, while defendants argue the opposite. Unfortunately, neither side timely filed a motion to reconsider after the screening order issued, which would have been the best time to flag these concerns. (Long moved to reconsider that part of my order dismissing his substantive due process claim, but he said nothing about the retaliation claims on which he was allowed to proceed.)

         Having now re-read Long's complaint in light of the disputes the parties are presenting now, I find that both sides raise meritorious issues that should be addressed now, so that we can keep this lawsuit on a straight path toward summary judgment motions and trial. Accordingly, as discussed below, I am sua sponte (“on my own”) REVISING the screening order before addressing the motion to compel.

         BACKGROUND

         Long filed his pro se complaint on November 28, 2016. After Long consented to my jurisdiction, the case was referred to me on December 23, 2016. On March 21, 2017, I issued an order allowing Long to proceed on two claims: (1) defendant “Harring retaliated against him for using the prison grievance system to win his cell assignment seniority back when she issued him a warning for wearing Carhartt jeans and conduct report for bringing butters back to his cell, ” and (2) the other defendants “either rejected, dismissed, or affirmed dismissal of Long's grievances . . . . because he filed so many grievances.” Screening Order, dkt. 11, at 5, 7. With respect to the latter claim, I noted that Long's claims against Stiefvater, Olsen, Jaeger, Schneiter and Champagne were “shaky at best” but enough to allow him to proceed on a retaliation claim. Id. at I dismissed plaintiff's Fourteenth Amendment claims for procedural and substantive due process.

         On April 10, 2017, Long filed a motion for reconsideration, arguing that I had erred in dismissing his substantive due process claim. Dkt. 16. On May 18, 2017, I issued an order denying the motion. Dkt. 18. In the interim, on April 28, 2017, the Wisconsin Attorney General filed an answer to the complaint on behalf of all defendants. Dkt. 17.

         On June 7, 2017, Long served his First Set of Written Interrogatories and Request for Production of Documents on defendants; later that same day, he served one Amended and one New Request for Production. Subsequently, Long filed Second and Third sets of interrogatories, propounding a total of 43 interrogatories on defendants. Br. in Opp., dkt. 22 at 17. Long received responses to his first set of discovery requests from defendants on July 17, 2017, and amended responses on July 24, 2017. It appears that the motion to compel relates only to the First Set of Written Interrogatories and Requests for Production of Documents.

         Defendants have objected to most of Long's discovery requests on the ground that the information Long is seeking is not relevant to, or not proportional to the needs of the case. Long insists that defendants' objections are meritless. In addition to asking the court to order the discovery, he asks the court to order defendants to pay him $500 as a sanction for what he argues are non-meritorious objections to many of his discovery requests. Defendants oppose the motion to compel and to award costs.

         DISCUSSION

         I. SCOPE OF LONG'S CLAIMS

         A. Claims Against Defendant Harring

         In the screening order, I found that Long had alleged that Harring had retaliated against him for using the prison grievance system to win his cell assignment seniority back when she issued him (1) a July 2016 warning for wearing Carhartt jeans and (2) a conduct report (CR No. 2735154) for bringing butter back to his cell.

         In opposition to the motion to compel, defendants argue they need not provide discovery related to Conduct Report No. 2735154 because it was issued before Long began using the ICRS system on March 10, 2016 to file grievances to win his cell seniority back, and therefore could not have been retaliatory. In response, Long insists that his complaint fairly alleged that his protected activity began much earlier. Specifically, Long asserts that his claim against Harring is not just that she retaliated against him for using the prison grievance system to win his cell assignment seniority back on or after March 10, 2016, but that she retaliated against him for using the prison grievance system and the courts to file numerous complaints against various TCC staff beginning with his arrival at the institution on September 9, 2015. Br. in Reply, dkt. 26, at 4. Long further asserts that Harring's retaliatory adverse actions did not consist merely of issuing Conduct Report No. 2735154 and meritless warnings about wearing jeans (and other matters), but also included (1) conducting “excessive” cell searches, (2) denying his move into a single cell on March 9, 2016, (3) moving him to the bottom of the seniority list, and (4) issuing a Conduct Report in July 2016 (#2717620) for wearing Carhartt jeans. Reply Br., dkt 26, at 3.

         I agree that the allegations in the complaint support a broader retaliation claim against Harring than described in the screening order. With respect to Long's constitutionally protected activity, Long alleged that: Harring retaliated against him for filing “inmate complaints against TCC staff, including defendant Linda Harring, ” while incarcerated at TCC, ¶40; he filed an inmate complaint alleging that Harring was retaliating against him because he “write[s] a lot of ICI's at TCC and [] represent[s] [him]self pro se in several civil lawsuits against DOC employees, ” ¶42; Harring retaliated against him “for his continued use of the ICRS against TCC staff, ” ¶56; and “Defendant Harring was upset with plaintiff Long for all the inmate complaints he filed against her and other TCC staff . . .”, ¶143. Reading these allegations generously, the complaint fairly alleges that Long's protected activity was the filing of inmate complaints against various TCC staff beginning in September 2015 and not merely the complaints he filed against Harring on or after March 10, 2016. Indeed, defendants appear to acknowledge as much, insofar as they “have responded to the discovery that bears upon what Harring knew about Long's inmate complaints prior to March 10, 2016, ” notwithstanding their objections. Br. in Opp., dkt. 22, at 6.

         I further agree that the complaint alleges a broader range of retaliatory adverse actions by Harring than identified in the screening order. The complaint recited an inmate complaint (TCC-2016-5529) in which Long alleged that, in retaliation for his filing of numerous inmate complaints, Harring searched his cell excessively, issued warnings for having items on his desk and an extra box of legal documents, searched only his cell and not those of other inmates on March 9, 2016 and denied his move into a single cell. Complaint, dkt. 1, ¶42. He also alleged that Harring moved him to the bottom of the TCC Seniority list. Id., ¶90. Some of these actions appear to have been merely the application of standard prison regulations which cannot amount to an adverse action sufficient to maintain a retaliation claim, see, e.g., West v. Kingsland, ___ Fed.Appx. ___, 2017 WL 579389 (7th Cir. 2017) (holding that cell search did not constitute an adverse action where prison regulation required cells to be searched monthly if not more often) (citing Roney v. Illinois Dep't of Transp., 474 F.3d 455, 461 (7th Cir. 2007) (explaining that routine activities are not materially adverse actions suggesting retaliation). However, being subjected to cell searches more frequently than other inmates and to loss of privileges such as seniority and a single cell assignment arguably could deter a person from complaining or filing grievances in the future. Accordingly, I shall amend the screening order to allow Long to proceed on these claims.

         Finally, there is the issue of Conduct Report No. #2717620, which Long alleges Harring issued against him in July 2016 for wearing Carhartt jeans. In the screening order, I referred to this as a “warning, ” but a review of the complaint reveals that it was a disciplinary charge that was dismissed. Complaint, dkt. 1, ¶126 (quoting inmate complaint where Long complained that Harring was “harassing him in retaliation for [his] use of the ICRS” by writing him a “meritless Conduct Report #2717620.”), ¶129 (noting conduct report was “reviewed by TCC Supervisors and . . . dismissed.”) Defendants argue that Long should not be allowed to proceed on this claim because “[a] single retaliatory disciplinary charge that is later dismissed is insufficient to serve as the basis of a § 1983 action.” Br. in Opp., dkt. 22, at 8 (quoting Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009)). I might agree with defendants if the unjustified disciplinary charge was Harring's only act, but Long alleges harassment by Harring “in a variety of ways over a period of several months, ” which could deter a person of ordinary firmness from exercising his First Amendment rights. Bridges, 557 F.3d at 552.

         In sum, in response to the concerns raised by the parties in the context of the motion to compel and to provide further guidance moving forward, I am sua sponte REVISING the screening order to read:

Plaintiff is allowed to proceed on a claim that defendant Harring retaliated against him for using the prison grievance system to file complaints against TCC staff, including Harring, by conducting excessive and targeted cell searches, writing meritless written warnings on his Face Card, writing meritless conduct reports (Nos. 2735154 and 2717620), denying his move to a single cell and removing his seniority.

         B. Re-screening Long's Claims Against Defendants Stiefvater, Olson, Jaeger, Schneiter and Champagne

         These five defendants object to providing any discovery to Long on the ground that Long should not have been allowed to proceed against them in the first place because their only role was to dismiss or reject Long's inmate complaints. See, e.g., Br. in Opp., dkt. 22, at 20 (arguing that motion to compel should be denied because Long “has not stated a plausible claim for retaliation against those defendants.”). Defendants point out that “[a] prison official's failure to follow the institution's grievance procedure or to sustain a grievance simply does not give rise to a constitutional claim, ” even if that claim is labeled as a “retaliation” claim. Br. in Opp. dkt, 22, at 18 (citing Brown v. Wexford Health Sources, No. 14-CV-1122-NJR, 2014 WL 7014111, at *4-5 (S.D. Ill.Dec. 11, 2014)). These defendants further note that the complaint is bereft of any allegations of retaliatory motive by defendants Stiefvater, Olson, Jaeger, Schneiter and Champagne or actions taken by these defendants that would likely deter First Amendment activity in the future. Id. at 19-20.

         Defendants make a persuasive case that I erred when I granted Long leave to proceed on retaliation claims against defendants Stiefvater, Olson, Jaeger, Schneiter and Champagne. My recent review of the complaint leads me to conclude that Long is not asserting a retaliation claim against these defendants. Rather, the thrust of Long's allegations is that these defendants failed to intervene to stop the retaliation by Harring. Complaint, dkt. 1, ¶190 (“[T]he remaining defendants knew about defendant Harring's retaliatory harassment of plaintiff Long to include facilitated it, approved it, condoned it, and turned a blind eye for fear of what they might have seen and dismissed, or contributed to the dismissal, of plaintiff Long's inmate complaints”); ¶191 (“Defendants Stiefvater, Olson, Jaeger, Schneiter and Champagne were aware of Harring's pattern of retaliation but took no steps to prevent it from occurring”); ¶150 (“Defendants were clearly aware of the continued pattern of retaliatory harassment/staff misconduct by defendant Harring . . . because they were brought to the attention of supervisory staff and investigated pursuant [to] Chapter 310, Wis. Adm. Code”). Indeed, Long sums up his claim as follows:

The plaintiff's allegations support an inference that defendant Harring engaged in repeated harassment after plaintiff filed grievances against her, and that the other defendants failed to intervene to stop Harring's retaliation, despite being asked by plaintiff repeatedly to do so.

         Plt.'s Br. in Supp. of Mot. for App. of Counsel, dkt. 24, at 10.

         Thus, although labeled in his complaint as a “retaliation” claim, what Long actually is alleging against the non-Harring defendants is a failure to intervene to prevent Harring's retaliation. Accordingly, I am re-screening Long's complaint, sua sponte, using that legal framework:

         A prison official “can be held liable under § 1983 if [he] (1) had reason to know that a fellow officer was . . . committing a constitutional violation, and (2) had a realistic opportunity to intervene to prevent the act from occurring.” Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009). In his complaint, Long alleges that he filed three inmate complaints in which he alleged that Harring was retaliating against him or harassing him: TCC-2016-5529, TCC-2016-16821 and TCC-2016-16866. Each of these complaints was reviewed and dismissed by defendant Stiefvater, who was TCC's Inmate Complaint Examiner and defendant Harring's immediate supervisor. Steifvater's decision in Complaints 5529 and 16821 were reviewed by by defendant Jaeger, who was TCC's Inmate Complaint Reviewer and Harring's “intermediate” supervisor. The decision in 16866 was reviewed by defendant Olson, who was also Harring's “intermediate” supervisor. Defendants Schneiter, the warden of the Wisconsin Correctional ...


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