United States District Court, W.D. Wisconsin
D. PETERSON District Judge.
Allan Owens, appearing pro se, is an inmate at Fox Lake
Correctional Institution (FLCI). Owens alleges that prison
officials deprived him of his trust account funds by
illegally applying tax to purchases of stamps and then
retaliated against him by deducting higher than permitted
amounts from his account to pay off costs assessed against
him in a previous case in this court. Owens has filed several
motions, including two motions to amend his complaint.
Motions to amend the complaint
15(a)(2) governs amendment of pleadings that fall outside the
deadline for amendments permitted as a matter of course. That
rule states that “a party may amend its pleading only
with the opposing party's written consent or the
court's leave.” Fed.R.Civ.P. 15(a)(2). The court
“should freely give leave when justice so
requires.” Id. Owens appears to have been
diligently amending his allegations as new information
warranted, so I will grant his first motion to amend his
complaint, Dkt. 10, at least for the amendments that support
asks to add former DOC secretaries Ed Wall and John Litscher,
as well as former FLCI Warden Mark Clements on his tax claim.
I take Owens to be saying that secretaries Wall and Litscher
worked with Clements to enforce the unlawful tax policy. This
is enough to establish a claim against these individuals
under 42 U.S.C. § 1983 for the violation of
plaintiff's due process rights.
also asks to proceed on claims against grievance examiners W.
Rose, M. Greenwood, and J. Bovee, who denied Owens's
complaints about the tax. Defendants oppose this request,
arguing that the court of appeals has limited the extent to
which a prisoner may sue an official for denying a grievance.
They cite George v. Smith, 507 F.3d 605, 609-10 (7th
Cir. 2007), for the following proposition: “A guard who
stands and watches while another guard beats a prisoner
violates the Constitution; a guard who rejects an
administrative complaint about a completed act of misconduct
does not.” But this principle actually works in
Owens's favor. I take him to be saying that these
defendants denied his grievances even though they had the
power to issue rulings stopping ongoing misconduct.
So I will allow Owens to proceed on due process claims
against these defendants as well.
also attempts to add Richard Chandler, former secretary of
the Department of Revenue, because of the information
defendants revealed in their answer regarding the stamp tax;
they admitted “that on July 7, 2014, tax was collected
on embossed envelopes based on direction from Wisconsin
Department of Corrections Central Office and the Wisconsin
Department of Revenue.” Dkt. 8, ¶ 13. Owens
states, “As far as the Dept. of revenue I'm seeking
to add their names too. At the time Richard Chandler, I'm
adding him because of the state's [answer].” Dkt.
10, at 2.
take Owens to be alleging that the Department of Revenue was
involved in creating or enforcing the tax. But he does not
allege that Chandler was personally involved in those
efforts, so I will not add him to the complaint in his
personal capacity. Owens does state a claim against the
secretary in his official capacity because he alleges that
the DOR helped to create an unconstitutional policy. See
Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(Official-capacity claims against state officials are
essentially claims for injunctive relief-and not for
damages-against the state itself.). But I won't add
Chandler in his official capacity, because he's no longer
the DOR secretary. As Federal Rule of Civil Procedure 25(b)
states, “An action does not abate when a public officer
who is a party in an official capacity dies, resigns, or
otherwise ceases to hold office while the action is pending.
The officer's successor is automatically substituted as a
party.” Peter Barca is the current DOR secretary. So I
will allow Owens to proceed on a due process claim against
Barca in his official capacity.
also attempts to include John and Jane Does 1-5 as defendants
in his amended complaint. Because Owens did not explain their
involvement in the events at issue, I will dismiss each of
these defendants. There is no need to keep these defendants
as “placeholders” for other parties who might be
involved. If Owens wants to add any new defendants, he'll
have to file another motion to amend his complaint.
has also filed what he calls a third motion to amend the
complaint. Dkt. 36. This motion is misnamed: it is actually
his second such motion, and he seems to acknowledge that in
the body of his motion itself. In any event, the only
potential new allegation I see in the motion is that Owens
has now learned that the tax policy violates state statutes
as well, and he wants an injunction forcing the state to
follow its own laws. But federal courts do not have
jurisdiction to force state officials to follow state laws.
Pennhurst St. Sch. & Hosp. v. Halderman, 465
U.S. 89, 104-05 (1984). So I will deny Owens's second
motion to amend his complaint.
Motion for preliminary injunction
first motion to amend the complaint, Dkt. 10, Owens also
seeks preliminary injunctive relief to stop the stamp tax and
change the percentage of funds withdrawn from his account. A
preliminary injunction is “an extraordinary and drastic
remedy, one that should not be granted unless the movant, by
a clear showing, carries the burden of persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997);
see also Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7 (2008) (“A preliminary injunction is an
extraordinary remedy never awarded as of right.”). When
dealing with prisoner cases, federal courts must accord
wide-ranging deference to correctional professionals in the
adoption and execution of policies for the operation of penal
institutions. Whitley v. Albers, 475 U.S. 312,
obtain a preliminary injunction, the moving party must first
meet its threshold burden. Owens must establish that (1) he
has a reasonable likelihood of success on the merits; (2)
denial of relief would result in irreparable harm to him
while he waits for the resolution of his claims; and (3)
traditional legal remedies are inadequate to remedy the harm.
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of
U.S. of Am., Inc., 549 F.3d 1079 (7th Cir. 2008)
“[I]f a plaintiff fails to meet just one of the
prerequisites for a preliminary injunction, the injunction
must be denied.” Cox v. City of Chicago, 868
F.2d 217, 223 (7th Cir. 1989).
I assume that there is a reasonable likelihood of success on
the merits, Owens fails on the other two requirements.
Generally, harm that can be redressed via monetary
compensation does not qualify as irreparable harm. Wis.
Cent. Ltd. v. Pub. Serv. Comm'n of Wis., 95 F.3d
1359, 1370 (7th Cir. 1996). Regarding the third factor,
traditional legal remedies, such as an injunction and
damages, would be adequate to remedy the harm in this
situation if Owens were to prevail. ...