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Conrad v. Dunahay

United States District Court, W.D. Wisconsin

July 16, 2018


          OPINION & ORDER


         Pro se plaintiffs Chad J. Conrad and Jeffrey A. Schultz are state prisoners incarcerated at the Jackson Correctional Institution (JCI). They are proceeding on due process, equal protection, and First Amendment retaliation claims concerning the confiscation of their personal property by defendants, Wisconsin Department of Corrections officers. Several motions are before the court.

         A. Motion to dismiss

         Defendants have moved to dismiss plaintiffs' due process claims. Dkt. 23. Plaintiffs asked the court to extend their response deadline, Dkt. 43, but later withdrew that motion and indicated that they did not oppose defendants' motion to dismiss. So I will grant defendants' motion to dismiss plaintiffs' due process claims and deny plaintiffs' motion for an extension as moot. The case will proceed on plaintiffs' equal protection and retaliation claims alone.

         B. Default motions

         Plaintiffs have moved for entry of default and default judgment based on defendants' failure to file an answer to plaintiffs' fourth amended complaint. Dkt. 59 and Dkt. 61. The clerk of court is responsible for entering default under Federal Rule of Civil Procedure 55(a) but has not done so in this case because default is inappropriate. Rule 55(a) provides that default must be entered against a party against whom affirmative relief is sought, but who fails “to plead or otherwise defend.” Defendants have defended against plaintiffs' claims by filing a motion to dismiss, which I redirected to plaintiffs' fourth amended complaint. See Dkt. 37, at 2-3. So defendants have not defaulted, and I will deny plaintiffs' motion.

         C. Motion for leave to amend complaint

         Plaintiffs seek leave to amend their complaint to add retaliation claims against several JCI officials for events postdating plaintiffs' filing of this lawsuit. Specifically, plaintiffs allege that a JCI official did not mail some of their submissions to the court, and that other JCI officials issued Conrad a conduct report for an innocent act-throwing away an empty ice cream container while working in the prison kitchen-that resulted in Conrad losing his job, being confined to his cell, and being removed from the prisoners assisting with service dogs (PAWS) program.

         Only one of the JCI officials allegedly involved in these acts, defendant Nicholas R. Klimpke, is already a defendant in this case. The sole allegation against him is that about a week after Conrad was removed from the PAWS program, Klimpke said “got you” as he passed Conrad. Dkt. 70, ¶ 107. 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. Wis. Dep't of Corr., No. 10-cv-67, 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.”). Plaintiffs say that their new claims are related to their current claims because they concern retaliation for filing this lawsuit. But that is not enough of a connection to say that these claims are part of the same series of transactions or occurrences regarding the confiscation of plaintiffs' music hobby property and the denial of Conrad's request for eyeglasses-the factual basis for plaintiffs' current claims. So I will deny plaintiffs' motion for leave to amend their complaint. They remain free to bring these new allegations in a new lawsuit.

         D. Motion to consolidate

         Plaintiffs move to consolidate their case with Paulson v. Petronovich, No. 17-cv-97 (W.D. Wis. filed Feb. 6, 2017). But Paulson was recently dismissed because of the plaintiff's failure to prosecute his claims. See Paulson, No. 17-cv-97, Dkt. 41. So I will deny plaintiffs' motion to consolidate.

         E. Discovery-related motions

         Plaintiffs have moved for an order compelling defendants to produce several categories of documents and information. First, plaintiffs asked for “communication documents.” Dkt. 44, at 1. But more recently, they indicated that this issue is moot because defendants have produced the documents they sought. Regardless, plaintiffs have not explained what documents they wanted, specifically, so I would not have enough information to rule in their favor even if the issue were still a live one.

         Second, plaintiffs want the identity of all inmates at JCI and any other Wisconsin correctional institution who possess music hobby property similar to the property Conrad has been denied (that is, electronic music accessories). Defendants have given plaintiffs a response for JCI, which is that no other inmate possesses music hobby property similar to Conrad's. Plaintiffs are unhappy with this response for two reasons. First, they argue that defendants should have acknowledged that Schultz possesses electronic music accessories. There's no need to compel a further response from defendants for this reason, because it's clear from defendants' filings that they interpreted plaintiffs' interrogatory as concerning inmates other than Conrad and Schultz, and plaintiffs already know what property Schultz has. Second, plaintiffs argue that other inmates used to possess electronic music accessories-it was only after Conrad started complaining about the confiscation of his property that JCI officials tracked down ...

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