United States District Court, W.D. Wisconsin
CHAD J. CONRAD and JEFFREY A. SCHULTZ, JR., Plaintiffs,
CAPTAIN LEROY DUNAHAY, JR., and NICHOLAS R. KLIMPKE, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
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.
Motion to dismiss
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
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.
Motion for leave to amend complaint
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.
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
Motion to consolidate
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.
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.
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 ...