United States District Court, W.D. Wisconsin
William M. Conley, District Judge.
se plaintiff Lamonte Alton Ealy was granted leave to
proceed on a First Amendment retaliation claim against the
named defendants. Defendants were then served with the
complaint, and answered it. In his most recent filings,
however, plaintiff now seeks leave to amend his complaint to
add: (1) a state law claim for defamation against defendant
Janzen; (2) a Fourteenth Amendment due process claim against
the same defendants based on the termination of his prison
job; and (3) claims against previously-named defendants the
Department of Corrections and the Division of Adult
Institutions. (Dkt. ##16, 18.) The court will grant in part
and deny in part plaintiff's motions to amend, allowing
him to add a state law defamation claim against Janzen, but
denying his request to add a Fourteenth Amendment due process
claim or to pursue claims against state entities.
complaint and in his motion for leave to amend his complaint,
plaintiff alleges that Janzen falsified Ealy's
performance evaluation by telling others within DOC that his
work ethic was inadequate, precipitating his loss of a
full-time position as a laundry worker. To state a claim of
defamation under Wisconsin law, a plaintiff must allege that
the defamatory statement: “(1) was spoken to someone
other than the person defamed, (2) is false, (3) is
unprivileged and (4) tends to harm the defamed person's
reputation so as to lower him in the estimation of the
community or to deter third persons from associating or
dealing with him.” Torgerson v. Journal Sentinel,
Inc., 210 Wis.2d 524, 534, 563 N.W.2d 472, 477 (1997);
Hart v. Bennet, 2003 WI.App. 231, ¶ 21, 267
Wis.2d 919, 672 N.W.2d 306. While this action may still prove
privileged, the facts as alleged would otherwise appear to
support the elements of a defamation claim. Regardless, since
defendants declined an opportunity to oppose plaintiff's
motion for leave to amend his complaint, the court will grant
that portion of plaintiff's motion. Moreover, as the
essential facts are already set out in the complaint, and
defendants have denied them, neither party need file a
further pleading to proceed on plaintiff's claim for
defamation against defendant Janzen. However, Janzen may have
ten days to file an affirmative motion to dismiss that claim,
should he wish.
the court can discern, plaintiff also seeks to add a
Fourteenth Amendment due process claim based on the
termination of his prison job. That amendment would be
pointless, however, since there is no due process right to
prison employment. See Gilman v. Manzo, No.
2:03-CV-00044 WGH RL, 2005 WL 941676, at *1 (S.D. Ind. Feb.
24, 2005) (“The Seventh Circuit has clearly indicated
that a prisoner has no property or liberty interest in prison
employment.”) (citing Garza v. Miller, 688
F.2d 480, 485 (7th Cir. 1982)). Accordingly, the court will
deny plaintiff leave to add this claim.
next seeks to add the Wisconsin Department of Corrections and
the Division of Adult Institutions as defendants. In its
opinion and order screening parts of plaintiff's
complaint to go forward, the court explained that plaintiff
cannot pursue claims against these states entities because
they are entitled to immunity under the Eleventh Amendment.
(11/27/18 Order (dkt. #11) 4-5 (citing Hughes v. Joliet
Corr. Ctr., 931 F.2d 425, 427 (7th Cir. 1991)).) In his
filing, plaintiff points to tort cases imposing liability
under the doctrine of respondeat superior, but that doctrine
has no application in the context of 42 U.S.C. § 1983
claims asserting violations of constitutional rights. See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822
(7th Cir. 2009) (“It has long been established that
there is no respondeat superior liability under section
1983.”). Moreover, while a plaintiff may pursue claims
against a municipality (e.g., a town or a city),
based on an unconstitutional policy or practice under §
1983, no such claim is permitted against state entities like
the Department of Corrections and Division of Adults
Institutions. See Yan v. Bd. of Regents of Univ. of Wis.
Sys., No. 05-C-16-C, 2005 WL 2206768, at *9 (W.D. Wis.
Sept. 12, 2005) (“[P]laintiff may not sue state
entities for damages under § 1983.”) (citing
Williams v. Wisconsin, 336 F.3d 576, 580 (7th Cir.
2003)). As such, the court will deny plaintiff leave to add
these two defendants.
plaintiff filed a motion for default judgment arguing that
somehow by failing to respond to his motion for leave to
amend his complaint, defendants have admitted those
allegations. (Dkt. #17.) That's not accurate. To the
contrary, defendants already answered the material
allegations in plaintiff's complaint timely, formally
putting them in dispute. In failing to respond to the motion
for leave to amend, defendants simply took no position as to
the proposed amendment. In no way did their decision not to
respond constitute an admission. As such, the court will deny
plaintiff's motion for default judgment.
1) Plaintiff Lamonte Alton Ealy' motion for leave to
amend his complaint (dkt. #16) is GRANTED IN PART AND DENIED
IN PART. Plaintiff is granted leave to add a state law
defamation claim against defendant Janzen. Neither side need
file any other pleading to proceed or defend against that
additional claim, although defendant Jansen may formally move
to dismiss, should he wish, on or before March 11, 2019. In
all other respects, plaintiff's motion is denied.
2) Plaintiff's motion for default judgment (dkt. #17) is
3) Plaintiff's motion for addendum to civil complaint
(dkt. #18) is DENIED. Entered this 27th day ...