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Harris v. Iverson

United States District Court, W.D. Wisconsin

March 9, 2018


          OPINION & ORDER


         Plaintiff Lawrence Harris, a prisoner incarcerated at the Wisconsin Secure Program Facility, alleges that prison officials retaliated against him for filing complaints about being fired from his prison job. He says that several of the defendants gave him a conduct report in retaliation for his complaints about being fired, and several other defendants, in their roles as grievance examiners, retaliated against him by mishandling a grievance about his firing.

         Defendants have filed a motion for summary judgment alleging that Harris failed to exhaust his administrative remedies for his claims. Dkt. 17. Harris has filed a motion to amend his complaint to add new claims, Dkt. 14, and a motion for the court's assistance in recruiting him counsel, Dkt. 26. After considering the summary judgment materials, I conclude that Harris indeed failed to exhaust his administrative remedies on each of his claims, so I will grant defendants' motion for summary judgment and dismiss the case. I will deny both of Harris's motions.

         A. Motion for leave to amend complaint

         Harris seeks leave to amend his complaint to add claims against several prison officials for interfering with his ability to access the courts by denying a request for an extension of his legal loan. Harris says that he was unable to fully litigate an appeal of a state-court case because his meager income was not enough to pay for the documents he needed to submit. He also says that he did not receive priority law library time.

         Only some of the proposed new defendants are already defendants in this case, so Federal Rule of Civil Procedure 18 does not allow me to add a whole new set of defendants along with the current set, unless the claims may also be joined together under Rule 20. See, e.g., Balli v. Wisconsin Dep't of Corr., No. 10-cv-67-bbc, 2010 WL 924886, at *1 (W.D. Wis. Mar. 9, 2010) (“[T]he core set of allowable defendants must be determined under Rule 20 before a plaintiff may join additional unrelated claims against one or more of those defendants under Rule 18.”). Harris says that his new claims are related to his current claims because they are part of a pattern of retaliation against him. But nothing in his allegations explain why this is so, other than that the events regarding his access-to-the-courts allegations started shortly after the other allegedly retaliatory events. This is not enough of a connection to say that these claims are part of the same series of transactions or occurrences regarding his conduct report and grievances, as is required under Rule 20. Accordingly, I will deny Harris's motion for leave to amend his complaint. He remains free to bring these new allegations in a new lawsuit.

         B. Recruitment of counsel

         Harris asks the court to appoint him a lawyer. Dkt. 26. I do not have the authority to appoint counsel to represent a pro se plaintiff in this type of a case; I can only recruit counsel who may be willing to serve voluntarily in that capacity. To show that it is appropriate for the court to recruit counsel, a plaintiff must first show that he has made reasonable efforts to locate an attorney on his own. See Jackson v. Cty. of McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992). To meet this threshold requirement, this court generally requires plaintiffs to submit correspondence from at least three attorneys to whom they have written and who have refused to take the case. Harris provides three letters he wrote to attorneys. Although he provides only one response turning him down, I will assume for purposes of this opinion that Harris has made reasonable efforts to obtain counsel on his own.

         Second, the court will seek to recruit counsel for a pro se litigant only when the litigant demonstrates that his case is one of those relatively few in which it appears from the record that the legal and factual difficulty of the case exceeds his ability to prosecute it. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). Harris states that he has limited resources and is not well versed in the law, but those are common problems facing pro se prisoners and they do not in themselves show that counsel is necessary. Although, as discussed further below, I will grant summary judgment to defendants, it is not because of Harris's limitations; he presented relatively well-reasoned briefs and appears to have gotten the help of a jailhouse lawyer with some experience. The problem is that the facts surrounding his attempts at exhausting his administrative remedies require me to rule for defendants. I will deny Harris's motion and go on to consider the summary judgment motion.

         C. Exhaustion

         1. Undisputed facts

         Harris was fired from his prison job on April 7, 2016. Harris submitted an inmate grievance on April 11 stating that he was wrongfully terminated, but he did not sign the grievance. The grievance was returned to him for being unsigned, the same day and he promptly signed it and resubmitted it. The grievance was assigned No. WSPF-2016-7502.

         On April 15, Harris was issued a conduct report for theft regarding an incident at his prison job in which he was accused of stealing food from the kitchen. At an April 25 hearing, Harris admitted to taking the food. He was found guilty. He did not appeal this decision.

         On May 9, defendant Institution Complaint Examiner W. Brown recommended dismissing Harris's '7502 grievance, stating that he was fired for the theft and for receiving an unsatisfactory performance evaluation. Defendant Warden Gary Boughton dismissed the grievance on May 10. Harris filed an appeal in which he stated that Brown “[d]id a poor investigation” and did not interview him, and that staff failed to follow its rules about using conduct reports in reviewing the performance of prison workers. Dkt. 19-3, at 16-19. Defendant Correction Complaint Examiner K. Salinas disregarded Harris's new allegations, stating, “The inmate attempts to disparage the ICRS and the ICE office at WSPF at length in this appeal submission. This new issue ...

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