Harp v. Mike Durfee State Prison

Filing 34

ORDER denying 27 Motion to Appoint Counsel; granting in part and denying in part 27 Motion to amend complaint; denying 30 Motion for TRO. Signed by Chief Judge Karen E. Schreier on 6/19/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GEORGE HARP,
Plaintiff,
vs.
MIKE DURFEE STATE PRISON;
SOUTH DAKOTA STATE PRISON;
SOUTH DAKOTA DEPT. OF CORR.
(D.O.C.), Superintendent, individual
and official capacity;
SOUTH DAKOTA PRISON MED.
DEPT.;
DOOLEY, Warden, Individual and
Official Capacity;
DR. WILINGA, Individual and Official
Capacity;
WEBBER, Warden So. Dak. St. Pr.;
and DR. REGERE;
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civ. 11-4149-KES

ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
LEAVE TO AMEND COMPLAINT,
DENYING MOTION FOR COURTAPPOINTED COUNSEL, AND
DENYING MOTION FOR
TEMPORARY RESTRAINING
ORDER

Plaintiff, George Harp, filed a pro se civil rights lawsuit alleging that
defendants were deliberately indifferent to his medical needs and failed to
protect him from assault by correctional officers. Harp now moves for the
appointment of counsel and for a temporary restraining order. It also appears
that Harp is seeking to amend his complaint to add additional claims and an
additional defendant. Defendants oppose these motions.

DISCUSSION
I.

Motion to Amend
Harp moves to amend his complaint to add an access to the courts claim

as well as a claim of “harassment and retaliation” and to add Unit Manager
Keith Ditmanson as a defendant. Docket 27. Defendants argue that Harp’s
motion to amend his complaint should be denied because he did not attach a
copy of the proposed complaint as required by the local rules. See D.S.D. Civ.
LR 15.1 (“Any party moving to amend a pleading shall attach a copy of the
proposed amended pleading to its motion to amend with the proposed changes
highlighted or underlined so they may be easily identified.”). Harp claims that
the prison law library does not have a copy of the local rules. Docket 32 at 2.
Assuming this is true, the court will not deny leave to amend on this basis,
but reminds Harp that he is still required to comply with both the local rules
and the Federal Rules of Civil Procedure even though he is proceeding pro se.
Defendants do not consent to Harp’s proposed amendment, so he may
amend his complaint only with leave of the court. Fed. R. Civ. P. 15(a)(2).
Leave to amend a complaint is freely given “when justice so requires.” Fed. R.
Civ. P. 15(a). But the court may “properly deny a party’s motion to amend its
complaint when such an amendment would unduly prejudice the non-moving
party or would be futile.” Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th
Cir. 2008). Defendants argue that Harp’s proposed amendment to his
complaint is futile, so leave to amend should be denied.

2

Harp asserts that he is being denied access to the courts because access
to the law library is insufficient. Harp claims that “Unit Mgr. Keith Ditmanson
has cut off the little access to the law library.” Docket 27 at 1. Harp asks that
he be given access to the law library “a minimum of two hours daily (Sat. And
Sun. excluded).” Id. Harp alleges that the prison law library contains “only one
Federal Law book” and argues that “the state should provide adequate access
to all Fed. Reporters.” Id.
Inmates have a constitutional right of meaningful access to the courts
and the legal system. Lewis v. Casey, 518 U.S. 343, 351 (1996). “Meaningful
access to the courts is the capability to bring ‘actions seeking new trials,
release from confinement, or vindication of fundamental civil rights.’ ” White v.
Kautzky, 494 F.3d 677, 680 (8th Cir. 2007) (quoting Bounds v. Smith, 430 U.S.
817, 827 (1977)). In order to prevail on an access to the courts claim, an
inmate must demonstrate that he sustained an “actual injury” as a result of
the challenged policy. Moore v. Plaster, 266 F.3d 928, 933 (8th Cir. 2001). “To
prove actual injury, a prisoner must demonstrate that a nonfrivolous legal
claim had been frustrated or was being impeded.” Hartsfield v. Nichols, 511
F.3d 826, 832 (8th Cir. 2008) (internal quotations and citations omitted).
Merely alleging that the law library is inadequate is insufficient to establish
actual injury. As the Supreme Court explains:
Because [precedent] did not create an abstract, freestanding right
to a law library or legal assistance, an inmate cannot establish
relevant actual injury simply by establishing that his prison’s law
3

library or legal assistance program is subpar in some theoretical
sense. . . . [T]he inmate therefore must go one step further and
demonstrate that the alleged shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim. He
might show, for example, that a complaint he prepared was
dismissed for failure to satisfy some technical requirement which,
because of deficiencies in the prison’s legal assistance facilities, he
could not have known. Or that he had suffered arguably actionable
harm that he wished to bring before the courts, but was so stymied
by inadequacies of the law library that he was unable even to file a
complaint.
Lewis, 518 U.S. at 351. Defendants argue that Harp has not shown that a
nonfrivolous legal claim has been frustrated or impeded and note that Harp
has prepared and filed numerous documents with the court. Harp argues that
he “has been and is suffering an injury by being frustrated and impeded, in
bringing a non-frivolous claim about his prison sentence as determined by the
South Dakota State Penitentiary Administration.” Docket 32 at 3. But this
allegation is belied by the record in this case. Harp was able to file a motion for
a temporary restraining order and a memorandum in support based on his
claim that his sentence is being improperly calculated. Thus, he has failed to
show actual injury and his access to the courts claim fails.
Harp also seeks to add a retaliation claim. He alleges that Unit Manager
Ditmanson has a “campaign of harassment and retaliation for availing
[himself] of the almost non-existent access to the library.” Docket 27 at 1.
Defendants assert that permitting Harp to amend his complaint to add a
retaliation claim would be futile because his retaliation claim fails. Docket 29.
Harp also asserts that his sentence is being miscalculated to allow two 10-year
4

sentences to run consecutively, rather than concurrently, as “a punishment
taken in retaliation for plaintiff filing suit.” Docket 32 at 4. The court will
analyze each of Harp’s bases for his retaliation claim.
“A prisoner’s Eighth Amendment rights are violated if prison officials
‘impose a disciplinary sanction against a prisoner in retaliation for the
prisoner’s exercise of his constitutional right.’ ” Meuir v. Greene Cnty. Jail
Employees, 487 F.3d 1115, 1119 (8th Cir. 2007) (quoting Goff v. Burton, 7 F.3d
734, 738 (8th Cir. 1993)). To establish a prima facie case of retaliatory
discipline, Harp must show that “(1) [he] exercised a constitutionally protected
right; (2) prison officials disciplined [him]; and (3) exercising the right was the
motivation for the discipline.” Haynes v. Stephenson, 588 F.3d 1152, 1155 (8th
Cir. 2009). A claim for retaliatory discipline requires an inmate to show that
but for a retaliatory motive, the prisoner would not have received the
discipline. Id. at 1156.1
Harp has satisfied the first element of the prima facie case because he
exercised a constitutionally protected right by filing a lawsuit and by
attempting to exercise his right of access to the courts. See Lewis v. Jacks, 486
F.3d 1025, 1029 (8th Cir. 2007) (filing a lawsuit is protected First Amendment
activity); see also Lewis v. Casey, 518 U.S. at 351 (inmates have right to
meaningful access to the courts).

1

Although Harp has not alleged that he was disciplined in retaliation for
exercising his constitutional rights, the retaliatory discipline framework is the
most applicable to his claims.
5

The second prong, that the prisoner has been disciplined or in this case
injured, is met here as well. In Harp’s initial motion, Harp alleges that he has
been denied sufficient access to the legal library. In his response to
defendants’ reply, Harp asserts that his sentence is being miscalculated to
allow two 10-year sentences to run consecutively, rather than concurrently,
which changes his parole date. Docket 32 at 4. According to Harp, this
miscalculation is “a punishment taken in retaliation for plaintiff filing suit.” Id.
The third prong requires Harp to show that but for exercising his
constitutional rights, prison officials would not have taken these actions. Harp
has not made such a showing. Harp’s first basis for a retaliation asserts that
he was denied access to the courts because he filed a lawsuit. It appears that
Harp bases this retaliation claim upon the same facts as his access to the
courts claim—that is, he argues that the contents of and his access to the
prison law library are inadequate. But he does not allege that other prisoners
are allowed more access or that defendants have specifically restricted his
access. Thus, Harp has not shown that his access to the library was restricted
in response to his lawsuit. Rather, he complains of currently existing policies
that apply to all inmates. Thus, he has not established a prima facie case of
retaliation on these facts. Harp next asserts that the alleged miscalculation of
his parole date is retaliation for his filing of a lawsuit. But he has not alleged
any facts in support of this contention. Thus, he has not shown that but for
his filing a lawsuit, defendants would not have calculated his parole eligibility
6

date in the same manner. Thus, Harp has failed to establish a prima facie case
of retaliation. Consequently, leave to amend is denied as futile.
Harp also seeks to add Unit Manager Ditmanson as a defendant.
Defendants erroneously argue that “Unit Manager Ditmanson was [not] in any
way related to [Harp’s] original complaint.” Docket 29. Although Harp did not
include Ditmanson in the caption of his complaint, he did allege that “Unit
Mgr. Ditmunson [sic] at SDSP Sioux Falls refused me diabetic socks ordered
by drs. saying ‘they cost too much.’ ” Docket 7, Count III. Although the court is
required to “carefully consider” the joinder of defendants in prisoner cases, the
joinder of Unit Manager Ditmanson as a defendant is appropriate here because
Harp alleged that he was personally involved in denying him prescribed
medical treatment. See Warren v. Seabaugh, No.11-0054, 2011 WL 5374663 at
*5 (E.D. Mo. Nov. 8, 2011) (noting that court “should carefully consider joinder
of defendants and claims in prisoner cases”); see also Ellis v. Norris, 179 F.3d
1078, 1079 (8th Cir. 1999) (civil rights claimant must “allege facts supporting
any individual defendant’s personal involvement or responsibility for the
violations”). Thus, Harp’s motion to for leave to amend his complaint is
granted in part and denied in part.
II.

Harp’s Motion for Court-Appointed Counsel
Harp also moves for court-appointed counsel. Harp argues that because

of the inadequacies of the law library, both he and the court would benefit
from the appointment of counsel to represent him. This court denied a

7

previous motion for court-appointed counsel as premature because the record
was insufficiently developed to analyze whether the appointment of counsel
would benefit both Harp and the court. Docket 10. Defendants argue that
nothing has substantially changed since that order because the parties have
not begun discovery, no motions have been filed, and no hearings have been
scheduled. Docket 29 at 7-8.
“Indigent civil litigants do not have a constitutional or statutory right to
appointed counsel.” Edgington v. Mo. Dep’t of Corr., 52 F.3d 777, 780 (8th Cir.
1995), abrogation on other grounds recognized by Doe v. Cassel, 403 F.3d 986
(8th Cir. 2005). Thus, “the trial court has broad discretion to decide whether
both the plaintiff and the court will benefit from the appointment of counsel.”
Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996). The court should take into
account the legal and factual complexity of the case, the presence or absence
of conflicting testimony, and the plaintiff’s ability to investigate the facts and
present his claim. Id. The record here is insufficiently developed to analyze
whether there is conflicting testimony. At this point, the case does not appear
to be legally or factually complex. Harp has demonstrated his ability to present
his claim and investigate the facts. Thus, the appointment of counsel is
unwarranted at this time and Harp’s motion for court-appointed counsel is
denied without prejudice to refiling.

8

III.

Motion for a Temporary Restraining Order
Harp next moves for a temporary restraining order and a preliminary

injunction. He asserts that his parole eligibility date is being improperly
calculated and asks that this court treat this claim as a condition of
confinement claim. Docket 30 at 1. He also asks that this court order
defendants to show cause why “Count 1 and Count 5 are now consecutive
even though Trial Court did not sentence plaintiff to consecutive sentences.”
Docket 30-2 at ¶ 13. Defendants oppose Harp’s motion.
Defendants argue that Harp’s motion for a temporary restraining order
should be denied because it is not related to the underlying complaint.2
The purpose of preliminary relief, such as a temporary restraining order or
preliminary injunction, is to preserve the status quo and prevent irreparable
harm until the court has an opportunity to rule on the lawsuit’s merits.
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113, n.5 (8th Cir. 1981)
(en banc). A plaintiff seeking injunctive relief “must necessarily establish a
relationship between the injury claimed in the party’s motion and the conduct
asserted in the complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.
1994); see also Ball v. Famiglio, 396 Fed. App’x 836, 838 (3d Cir. 2010)
(affirming the denial of a preliminary injunction to a prisoner who sought
preliminary relief based on allegation that correctional officers assaulted her

2

Because this argument suffices to deny Harp’s motion, the court need
not address defendants’ argument that Harp failed to exhaust available
administrative remedies.
9

where her complaint alleged deliberate indifference to medical needs). In
Devose, the Eighth Circuit Court of Appeals affirmed denial of a request for a
preliminary injunction where the requested relief relating to retaliatory
conduct had nothing to do with the underlying § 1983 claim of inadequate
medical treatment. Id. Harp’s original complaint alleges claims of deliberate
indifference to serious medical needs and failure to protect, both in violation of
the Eighth Amendment. Docket 1, 7. The instant motion alleges that Harp’s
parole date has been improperly calculated, ostensibly in retaliation for the
filing of this lawsuit. Docket 30, 31. The allegations are unrelated. Although
the retaliation claim may support additional relief in a new case, it is not a
basis for preliminary relief in this lawsuit.3 Thus, Harp’s motion for a
temporary restraining order is denied. Therefore, it is

3

Harp asks that this court treat his claim that his parole eligibility date
has been improperly calculated as a condition of his confinement and allow him
to seek relief under 42 U.S.C. § 1983. But “[w]hen a state prisoner is
challenging the very fact or duration of his physical imprisonment, and the
relief he seeks is a determination that he is entitled to immediate release or
speedier release from imprisonment, his sole remedy is a writ of habeas
corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (emphasis added); see
also Wilkinson v. Dotson, 544 U.S. 74 (2005) (where success of prisoner’s lawsuit
does not necessarily spell speedier release, it does not lie at the “core” of habeas
corpus and might be sustainable as a § 1983 claim). Harp claims that his parole
date has been improperly calculated, extending his sentence. Thus, his
argument is that he is entitled to “speedier release.” Consequently, the court
cannot allow him to seek this relief under § 1983. His sole remedy is habeas
corpus. Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (state prisoner who
sought to challenge the state’s refusal to grant him parole could only challenge
the parole decision through a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254).
10

ORDERED that Harp’s motion for leave to amend his complaint (Docket
27) is denied in part and granted in part. Harp is granted leave to add Unit
Manager Keith Ditmanson as a defendant, but he may not add additional
claims. Harp’s amended complaint is due by July 19, 2012.
IT IS FURTHER ORDERED that Harp’s motion for court-appointed
counsel (Docket 27) is denied without prejudice.
IT IS FURTHER ORDERED that Harp’s motion for a temporary
restraining order (Docket 30) is denied.
Dated June 19, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

11