Harris, Lowmorreo v. Jaeger, Jeff et al.
Filing
190
Transmission of Notice of Appeal, Orders, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 188 Notice of Appeal. (Attachments: # 1 Order Dkt. 16, # 2 Order Dkt. 130, # 3 Order Dkt. 138, # 4 Order Dkt. 158, # 5 Order Dkt. 169, # 6 Judgment, # 7 Docket Sheet) (nln),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
LOWMORREO A. HARRIS, SR.,
Plaintiff,
v.
1
EDWARD WALL, LIZZIE TEGELS,
JEFF JAEGER, CHARLES DEVENDORF,
LARRY FUCHS, TIM THOMAS, JASON
ACTERBERG, CAPT. KANNONBERG,
CAPTAIN CRASPER, SGT. KORAN,
C/O BENDER, SOCIAL WORKER NAVIS,
FLADHAMMER, JOE THYNE, BRENDON
IHGENTHRON, JANE OR JOHN DOE and
CAPT. BAKER,
OPINION AND ORDER
14-cv-047-wmc
Defendants.
Pro se prisoner Lowmorreo A. Harris, Sr. brought this proposed civil action under
42 U.S.C. § 1983 in January of 2014, contending that prison staff violated his rights
under the constitution in retaliation for his filing grievances against them.
He also
contends that he has been denied due process, access to the courts, and the right to be
free from unlawful searches and seizures. Harris has made an initial partial payment of
the filing fee in accordance with 28 U.S.C. § 1915(b)(1), so his complaint is ready for
screening under 28 U.S.C. § 1915A. Because he is a pro se litigant, Harris is held to a
“less stringent standard” in crafting pleadings. Haines v. Kerner, 404 U.S. 519, 521
(1972).
Plaintiff named “Edward Walls” as a defendant in his complaint and identifies “Walls” as the
Secretary of the Wisconsin Department of Corrections. Cpt. at 11. The correct spelling of the
Secretary’s name is “Edward Wall.” The clerk of court is directed to amend the caption
accordingly.
1
On July 2, 2015, Harris submitted a motion for leave to amend the complaint,
including a proposed amended complaint. The court will grant this motion and consider
the amended complaint as the operative pleading in this case.
See Fed. R. Civ. P.
15(a)(2) (“The court should freely give leave when justice so requires.”). Having now
done so, the court will further allow Harris to proceed on his claims that (1) defendants
Jeff Jaeger, Charles Devendorf, Captain Acterberg, C/O Bender and Captain Baker
retaliated against him in violation of the First Amendment; and (2) Jaeger and Baker
violated his right to procedural due process at the January 31, 2013 disciplinary hearing.
Harris’s allegations are not, however, sufficient to state viable claims against any other
defendant.
ALLEGATIONS OF FACT 2
A. The Parties
During the time relevant to the complaint, Harris was a prisoner at the New
Lisbon Correctional Institution (“NLCI”). The following defendants were employed by
Wisconsin Department of Corrections (“DOC”) at NLCI during the same time frame:
Lizzy Tegels (the warden); Jeff Jaeger (business office supervisor); Charles Devendorf
(business office employee); Larry Fuchs (security director); Tim Thomas (deputy
warden);
Jason
Acterberg
(segregation
program
captain);
Captain
Kannonberg,
(administrative captain); Captain Crasper (supervisor); Sergeant Koran (inmate
For purposes of this order, the court assumes the facts above based on the allegations in Harris’s
amended complaint.
2
2
advocate); Officer Bender (property sergeant); Navis (unit social worker); Flad Hammer
(due process committee supervisor); Joe Thyne (due process committee manager);
Brendon Ihgenthron (complaint examiner); Jane or John Doe (record’s office supervisor);
and Captain Baker (due process committee member).
Harris has also named DOC
Secretary Edward Wall as a defendant.
B. Harris Files Complaints against the Prison Business Office in July 2012.
On July 13, 2012, Harris sent an inquiry to the NLCI business office regarding
funds that he believed had been deducted improperly from his inmate account.
Defendants Jaeger and Devendorf worked in the business office at the time. Harris later
filed an inmate complaint regarding these deductions.
On approximately July 28, 2012, Harris began to experience delays in receiving
legal supplies that he needed for a small claims case he had filed in Milwaukee County
Circuit Court. Harris then filed a series of formal inmate complaints against Jaeger and
Devendorf, believing them to be responsible for the delays.
C. Harris is Given a Conduct Report by the Business Office
On August 22, 2012, Jaeger and Devendorf in turn issued a conduct report against
Harris for “false names and titles” and forgery. The conduct report charged him with
using a false name in his small claims lawsuit. DOC records apparently indicate that
Harris’s name is “Mario Harris,” although Harris’s given name is actually “Lowmorreo A.
Harris, Sr.” Harris used the name “Lowmorreo Harris” in his small claims case, which
3
apparently violated DOC regulations. The conduct report also accused Harris of forging
the Milwaukee County clerk of court’s signature on his small claims complaint.
Pending disposition of the conduct report, Harris was strip searched and placed in
segregation. In transport, Captain Baker allegedly told Harris that he would quickly find
out what he “needed to start doing and stop doing in order to have a comfortable stay”
and that Harris was “not going to be here very long if [he] ke[pt] messing with staff.”
Harris then wrote to the warden, complaining that he was being retaliated against for
filing grievances against the business office. He also filed another inmate complaint,
asserting that he was placed in segregation on retaliatory grounds.
On or about August 25, 2012, Harris was interviewed by defendant Koran, a
sergeant who had been assigned to act as his inmate advocate. Harris explained to Koran
that: the business office was retaliating against him for filing grievances; his birth name
is Lowmorreo A. Harris, Sr.; he had just received mail addressed to him as such; and he
had not forged anyone’s signature. Harris instructed Koran to obtain Harris’s judgment
of conviction to prove that he was convicted under the name “Lowmorreo.” He also told
Koran that if he obtained small claims forms from the law library he could defeat the
forgery charge.
On August 29, 2012, a due process hearing was held on the conduct report.
Koran served as Harris’s advocate but failed to present the judgment of conviction that
Harris had requested. Koran did present legal documents showing that Harris’s legal
name is “Lowmorreo A. Harris, Sr.” Koran also presented a small claims complaint form
from the law library to rebut the charge of counterfeiting and forgery. At the end of the
4
hearing, the charge of forgery was dropped, but Harris was found guilty of false names
and titles.
On August 31, 2012, Harris appealed the decision to Warden Tegels. Despite
presenting legal documents showing his given name, Tegels affirmed the decision below.
D. Harris Files Additional Complaints Against the Business Office Following
Dismissal of His Small Claims Case
On September 7, 2012, Harris’s small claims case was formally dismissed by the
Milwaukee County Circuit Court. Harris continued to make efforts to litigate his claim
and filed numerous complaints that his access to the courts was being abridged because
of his incarceration under the name “Mario Harris.” Those complaints were rejected.
On or about November 1, 2012, Harris also tried to refile his small claims suit.
On or about November 13, Harris received a letter from the Milwaukee County Circuit
Court, informing him that it had received mailings related to the small claims case, but
that it was returning the paperwork because his trust account statement had not been
certified. According to Harris, Devendorf and the business office should have certified
this statement.
On or about December 10, 2012, Harris filed another inmate complaint against
Devendorf relating to the business office’s alleged failure to certify the copies of his trust
account needed for the small claims action. That complaint was dismissed by complaint
examiner defendant Brendon Ihgenthron.
5
On or about December 21, 2012, Harris filed yet another complaint against
Devendorf and Jaeger, alleging that they had improperly denied his requests for funds
needed to litigate a case in Indiana involving termination of his parental rights.
E. Given a Second Conduct Report by the Business Office, Harris Has
Difficulty Responding
On January 3, 2013, Devendorf issued a second conduct report against Harris for
counterfeiting and fraud after Harris allegedly altered a disbursement slip. Harris was
placed in segregation pending resolution of this conduct report as well.
While in
segregation, Harris requested his legal property from defendant Bender, the property
sergeant, but Bender denied his request. Harris then sent a request slip to defendant
Captain Acterburg about Bender’s denial of legal documents, to which Acterburg never
responded.
On or about January 7, 2013, Harris’s assigned inmate advocate, Sergeant Koran,
interviewed him about this second conduct report. Harris explained that he had various
legal papers in his property that he needed for his defense.
Koran said he would
personally give Bender a request slip to obtain Harris’s legal papers before the hearing.
Harris then wrote to Captain Kannonberg about not receiving his property, but
Kannonberg responded that he did not supervise Acterberg and that the “security
director” was the next level of authority.
On or about January 11, Harris sent a request slip to defendant Larry Fuchs,
NLCI’s security director, about his legal property. Acterberg purported to respond on
6
Fuchs’s behalf, but did not address the issues Harris had raised. Instead, he told Harris
that he would be given a conduct report if he had been untruthful.
On January 15, defendant Bender came to Harris’s cell with his property. Bender
began placing paper’s in the door trap. After Harris asked her to slow down because
papers were sliding on the floor, Bender allegedly responded instead by speeding up,
throwing several papers through the trap and telling Harris that he “whines too much.”
She also began picking through Harris’s legal papers, telling him that he did not need
several papers concerning Jaeger. Harris responded that he needed all of his legal papers.
Bender then allegedly told Harris that he was not getting any more papers, slammed the
trap closed, and left with over 3,000 of Harris’s legal papers still in her possession.
Harris filed another inmate complaint on January 16, 2013, which was sent back
with instructions to resolve his issue via the chain of command.
That same day, a
hearing was held on Devendorf’s second conduct report. Harris maintains that because
Bender had not provided him with the relevant papers from his legal property, he was
unable to present evidence. Harris received 90 days segregation.
Having still received no response from Acterberg regarding his complaint about
Bender, Harris filed another complaint on January 20, which was immediately returned
with instructions to resolve it by using the chain of command.
F. Harris is Given a Third Conduct Report For Lying.
On January 22, 2013, Harris was given a third conduct report accusing him of
lying about staff. Specifically, Harris was accused of writing a request slip on January 16,
alleging that he had not yet received his property, when in fact he had actually received it
7
the day before, on January 15. Additionally, the report accused Harris of lying when he
reported that Bender threw his paperwork through the trap.
A hearing on the conduct report was held before defendants Baker and Jaeger on
January 31. By that time, Harris had also filed multiple complaints against Jaeger. Upon
seeing Harris, Captain Baker said, “So you still haven’t learned about lying on my staff?”
Captain Crasper, also a proposed defendant, and an inmate testified on Harris’s behalf,
but Harris was found guilty of lying to staff. This time he was punished with 300 days in
segregation.
Harris later filed grievances against Bender and Jaeger for retaliation, but those
grievances were rejected also.
G.
Harris is Given a Fourth Conduct Report by the Business Office
On February 4, Jaeger issued another conduct report to Harris, accusing him of
using false names and titles and disobeying orders. The conduct report was again based
on Harris’s use of the name “Lowmorreo” in legal papers. In his capacity as security
director, Fuchs allowed this conduct report to proceed. Harris was again interviewed by
Koran and Harris again requested that Koran pull his institution record of conviction
before the due process hearing took place.
A due process hearing on the conduct report was held before Captains
Fladhammer and Joe Thyne, also proposed defendants, on February 13, 2013. Harris
presented multiple legal documents showing that his true name was “Lowmorreo.” He
also called complaint examiner Ihgenthron to establish that he had filed grievances
against Jaeger shortly before he issued this most recent conduct report.
8
Harris also
questioned Social Worker Navis about a recent communication Navis allegedly had with
the Department of Motor Vehicles regarding a car registered in Harris’s birthname,
apparently hoping to demonstrate that his legal name is “Lowmorreo.” In turn, Navis
testified that he did not know Harris’s real name.
Harris was again found guilty of using false names and titles, as well as disobeying
orders.
This time, he was penalized with 330 days in segregation and a transfer to
Wisconsin Secure Programs Facility in Boscobel, Wisconsin (“WSPF”).
H. Harris’s Confinement at WSPF
For approximately 14 months at WSPF, Harris was confined to his cell for 23-24
hours a day and kept under constant camera surveillance. On some days, Harris could
leave his cell for a one-hour recreation period during which he was escorted outside in
shackles. On several occasions, Harris suffered from burning and coughing, which he
attributes to gasses used in cell extractions and that are then circulated through the
ventilation system. While at WSPF, Harris also alleges that he suffered from extreme
paranoia and sleep deprivation.
OPINION
Harris purports to allege claims against various defendants for retaliation under
the First Amendment, due process violations under the Fourteenth Amendment, unlawful
search and seizure under the Fourth Amendment, and denial of his right to access the
courts. Each legal theory is considered below.
9
I. Retaliation
To state a claim for retaliation, a plaintiff must allege that: (1) he engaged in
activity protected by the Constitution; (2) the defendant subjected the plaintiff to
adverse treatment because of the plaintiff’s constitutionally protected activity; and (3)
the treatment was sufficiently adverse to deter a person of “ordinary firmness” from
engaging in the protected activity in the future. Gomez v. Randle, 680 F.3d 859, 866-67
(7th Cir. 2012); Bridges v. Gilbert, 557 F.3d 541, 555-56 (7th Cir. 2009).
Harris
contends unhelpfully that the defendants retaliated against him by giving him conduct
reports, placing him in segregation, dismissing his inmate complaints, and eventually,
transferring him to WSPF because he had filed several complaints regarding Jaeger,
Devendorf, Bender and others.
Under the less stringent pleading standards applicable to pro se litigants, Harris’s
allegations are sufficient to state claims of retaliation against defendants Jaeger,
Devendorf, Bender, Acterburg and Baker.
Harris alleges that he engaged in a
constitutionally protected activity by filing grievances regarding his inmate account, legal
mail and other actions taken by prison staff. This conduct satisfies the first element of
his retaliation claim: Harris has constitutional rights under the First Amendment to free
speech and to petition the government for redress of grievances, including the right to file
grievances about misconduct by prison officials. Powers v. Snyder, 484 F.3d 929, 932 (7th
Cir. 2007); Pearson v. Welborn, 471 F.3d 732, 740-41 (7th Cir. 2006).
With respect to the second and third elements of his claim, Harris alleges that in
response to his grievances: (a) defendants Jaeger and Devendorf wrongfully wrote him up
10
in numerous conduct reports and interfered with his legal mail; (b) defendant Bender
withheld Harris’s papers and filed a false conduct report against him; (c) defendant
Acterburg ordered Bender to write a false conduct report against Harris; and (d)
defendant Baker found him guilty of a false conduct report and punished him with
segregation. At this preliminary stage, these allegations are sufficient to state retaliation
claims against each of those defendants. See Bridges, 557 F.3d at 552 (allegations of false
disciplinary charges, interference with mail, and harassment by guards are sufficient to
show at the screening stage that the defendants’ actions would deter a person of ordinary
firmness from exercising his constitutional rights).
At later stages in this case, Harris should be aware that he will need to prove his
retaliation claims against these defendants with facts, rather than the allegations in his
complaint, Sparing v. Village of Olympia Fields, 266 F.3d 684, 692 (7th Cir. 2001), or his
personal beliefs, Fane v. Locke Reynolds, LLP, 480 F.3d 534, 539 (7th Cir. 2007). Indeed,
to prove his claims at summary judgment or trial, Harris will have to come forward with
specific evidence in the form of sworn testimony or admissible documentation,
permitting a reasonable jury to find in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Fed. R. Civ. P. 56. For example, Harris will need to come forward with
admissible evidence showing that defendants Jaeger, Devendorf, Bender, Acterburg and
Baker issued conduct reports, interfered with his mail and legal papers, or punished him
all because he exercised his constitutional rights and not for some legitimate reason. This
means that he will have to prove that these defendants subjected him to adverse
11
treatment because he complained about staff misconduct, not because they believed he
had violated prison regulations or had lied about staff.
Finally, although Harris contends generally in his amended complaint that all of
the named defendants are liable for retaliation, the factual allegations of his amended
complaint do not support this contention against any of the other defendants. Harris
would fault Secretary Wall, Warden Tegals, Deputy Warden Thomas and Security
Director Fuchs for failing to overturn the results of the allegedly retaliatory conduct
reports and disciplinary hearings; defendants Kannonberg, Fladhammer and Thyne for
the outcomes of the disciplinary hearings; Crasper, Koran, Navis and Jane or John Doe
for providing incomplete information or for failing to advocate persuasively on his behalf;
and defendant Ihgenthron for rejecting his inmate complaints regarding other
defendants’ alleged retaliatory conduct.
Defendants can be liable for retaliation only if they were “personally involved” in
acts of retaliation. Minix v. Canarecci, 597 F.3d 824, 833-34 (7th Cir. 2010); Burks v.
Raemisch, 555 F.3d 592, 596 (7th Cir. 2009) (§ 1983 makes public employees
responsible “for their own misdeeds but not for anyone else’s”).
For this reason, a
defendant cannot generally be held liable under § 1983 simply because the defendant
had knowledge of another’s past misconduct. Ashcroft v. Iqbal, 555 U.S. 662, 677 (2009).
A defendant must “know about the conduct and facilitate it, approve it, condone it, or
turn a blind eye for fear of what they might see.” Matthews v. City of E. St. Louis, 675
F.3d 703, 708 (7th Cir. 2012) (quoting Jones v. City of Chicago, 856 F.2d 985, 992–93 (7th
Cir. 1988)). Moreover, supervisors and administrators, such as Wall, Tegals, Thomas,
12
and Fuchs, are entitled to relegate to others the primary responsibility for specific prison
functions without becoming vicariously liable for the failings of their subordinates. Burks,
555 F.3d at 595-96 (“Bureaucracies divide tasks; no prisoner is entitled to insist that one
employee do another’s job.”).
Here, Harris’s allegations do not support an inference that defendants Wall,
Tegals, Thomas, Fuchs, Kannonberg, Crasper, Fladhammer, Thyne, Koran, Navis,
Ihgenthron or Jane/ Jone Doe were personally involved in retaliating against Harris or
that any of them intended to retaliate against him because he had exercised his
constitutional rights. Accordingly, Harris may not proceed against these defendants on
claims of retaliation.
II. Procedural Due Process
Harris also claims that his due process rights were violated and that he suffered an
“atypical and significant hardship.” (Am. Compl. (dkt. #14) at 11.) Although Harris
does not explain specifically how or when his due process rights were violated, the
allegations in his amended complaint concern claims of inadequate procedural due
process during the various disciplinary hearings held to consider conduct reports against
him.
A prisoner challenging the process afforded in a prison disciplinary proceeding
must show that: (1) he has a liberty or property interest with which the state interfered;
and (2) the procedures he was afforded upon that interference were constitutionally
deficient. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989); Marion v. Columbia
Corr. Inst., 559 F.3d 693, 697 (7th Cir. 2009); Scruggs v. Jordan, 485 F.3d 934, 939 (7th
13
Cir. 2007). Harris’s due process claim appears to be grounded on an alleged deprivation
of a “liberty interest,” as he alleges that he faced “atypical and significant hardship.” In
the prison context, deprivations of a liberty interest amounting to an “atypical and
significant hardship” would bring the due process clause into play. Sandin v. Conner, 515
U.S. 472, 484 (1995).
See also Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir.
2013).
While Harris does not specify the nature of his liberty interest here, the only
allegations in his complaint that implicate a liberty interest are Harris’s allegations that
he was placed in segregation and ultimately transferred to WSPF after being found guilty
of violating prison rules. Certainly, a prisoner’s placement in segregation may create a
liberty interest “if the length of segregated confinement is substantial and the record
reveals that the conditions of confinement are unusually harsh.” Marion, 559 F.3d at
697; see also Townsend v. Cooper, 759 F.3d 678, 687 (7th Cir. 2014). Here, Harris alleges
that: (a) after a disciplinary hearing on January 16, 2013, he was found guilty of
counterfeiting and fraud, and he was punished with 90 days in segregation; (b) after a
disciplinary hearing on January 31, 2013, he was found guilty of lying about staff, and he
was punished with 300 days in segregation; and (c) after a disciplinary hearing on
February 13, 2013, he was found guilty of using false names and titles and disobeying
orders, and he was punished with 330 days in segregation and transferred to WSPF.
As an initial matter, although understandable if Harris presumed it obvious, he
does not expressly allege that conditions in segregation during any of these three terms of
segregation were unusually harsh. This is particularly important, at least according to the
14
Seventh Circuit, whose decisions are obviously controlling for this court, with respect to
Harris’s claim relating to the process he received at the January 16, 2013, disciplinary
hearing because the 90-day term of segregation is not long enough to “work an atypical
and significant hardship.” Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005). 3 Whether
Harris’s 300 and 330-day terms of segregation would implicate a liberty interest is a
closer question. Although Harris again does not allege that the conditions of segregation
were unusually harsh, the Seventh Circuit has already ruled that (1) “periods of
confinement that approach or exceed one year may trigger a cognizable liberty interest
without any reference to conditions”; and (2) the issue of whether 240 days in
disciplinary segregation is a type of “atypical, significant hardship,” for purposes of a
denial of due process claim, cannot be decided at the pleading stage. Marion, 559 F.3d at
697-98.
Assuming Harris had a protectable liberty interest with respect to at least the
longer to periods of segregation imposed, he is entitled to due process before being
punished, but unfortunately for Harris, a prisoner facing transfer to and confinement in
segregation is still only “entitled to informal, nonadversarial due process.” Westefer v.
Neal, 682 F.3d 679, 684 (7th Cir. 2012) (citing Wilkinson v. Austin, 545 U.S. 209, 21112 (2005); Hewitt v. Helms, 459 U.S. 460, 476 (1983)). This “requires ‘some notice’ of
Even if the court were to infer some kind of dubious, substantive due process claim with respect
to the 90 day period of incarceration – based on a lack of proportionality between the violation
found (using his legal, rather than prison, name in legal filings) and the punishment imposed -Harris’s claim would fail given Seventh Circuit case law acknowledging good reasons for an
institution insisting on an inmate using the same name in correspondence and filings, whether
inside or outside of prison. See discussion, infra.
3
15
the reasons for the inmate’s placement . . . and enough time to ‘prepare adequately’ for
the administrative review.” Westefer, 682 F.3d at 684. “Informal due process requires
only that the inmate be given an ‘opportunity to present his views’” to a neutral
decisionmaker; it does not require a hearing with the inmate present. Id. at 685. “If the
prison chooses to hold hearings, inmates do not have a constitutional right to call
witnesses or to require prison officials to interview witnesses.” Id. (citations omitted).
Finally, inmates are not entitled to a written decision describing the reasons for
placement; they are entitled only to review of the placement by a neutral reviewer. Id.
Here, Harris affirmatively alleges that he was afforded formal due process hearings
before receiving each of his three terms of segregation described in his amended
complaint. In other words, Harris was provided with more formal process than required
by the Constitution.
Obviously, to state a viable due process claim under these
circumstances would require Harris to allege that the formal due process hearings
somehow otherwise failed to satisfy the requirements for informal process set forth in
Westefer, Wilkinson and Hewitt. Harris’s allegations do not support such an inference for
either the January 16 or February 13, 2013, disciplinary hearings. In particular, Harris
alleges neither that he was denied notice, nor given inadequate time to prepare
adequately for the hearings. The Supreme Court has held that inmates must receive
notice “[a]t least a brief period of time . . ., no less than 24 hours,” before a hearing to
revoke good-time credits. Wolff v. McDonnell, 418 U.S. 539, 564 (1974). Moreover,
revocation of good-time credits extends the length of an inmate’s incarceration, which
has been held to implicate “a more significant liberty interest” than placement in
16
segregation and to require “a greater measure of procedural protection.” Westefer, 682
F.3d at 684.
Similarly, Harris’s affirmative allegations that there were several days between
when he received conduct reports and when due process hearings were held also
establishes that he received more time than required by the Constitution to prepare.
Harris also does not allege that he was denied the opportunity to present his views at any
of the hearings.
Although he complains that he was not able to present all of the
evidence he wished, informal due process requires only that an inmate be permitted to
“present his views.” Id. at 685. Generally, a “written statement by the inmate” would be
sufficient to satisfy this requirement. Id. Because Harris was allowed to make an oral
presentation at each hearing, he was provided even more process than was required.
Finally, Harris does not allege that the decisionmakers at the January 16 or February 13,
2013, disciplinary hearings were biased.
The sole exception in this regard is the January 31, 2013, hearing.
At that
hearing, Harris alleges facts supporting an inference that the decisionmakers, defendants
Jaeger and Baker, were not impartial. By the time that hearing was held, Harris alleges
he had filed numerous complaints against Jaeger, and that Jaeger had filed conduct
reports against Harris. As for Baker, Harris alleges that Baker accused him both before
and during the hearing of lying about staff. If these allegations are true, Harris may be
able to prove that Jaeger and Baker were not impartial decisionmakers. On this basis,
Harris may proceed with his procedural due process claims against Jaeger and Baker
beyond the screening stage.
17
As a final point, it appears that many of Harris’s frustrations stem from the fact
that he was punished, rather harshly, simply for using his birthname in legal filings or
disbursement requests. However, prison regulations require inmates to use the “name
under which the inmate was committed to the department, unless the name was legally
changed.” Wis. Admin. Code § DOC 303.35(2). Additionally, prison regulations allow
inmates to use a legally changed name only if the inmate also includes “the name under
which the inmate was committed to the department.” Id. § DOC 303.35(3). Although
Harris alleges that his “legal name” is actually Lowmorreo A. Harris, Sr., he has not
denied that he was “committed to the [DOC]” under the name Mario A. Harris. Thus,
Harris violates the DOC regulation each time he uses the name Lowmorreo A. Harris, Sr.
without also including “aka Mario A. Harris.” While Harris is obviously frustrated by
this regulation, his belief that it is unfair or that his punishment was too harsh does not
mean that he was denied the minimum due process protections afforded by the
Constitution, particularly since according to his own allegations, his harshest punishment
came after his continued, obstinate refusal to comply with the rule.
III. Unreasonable Search and Seizure.
In his amended complaint, Harris next alleges claims for violation of his Fourth
Amendment right to be free of unlawful searches and seizures. Although he does not say
so expressly, the court assumes Harris’s Fourth Amendment claim is based on his
allegations that he was subjected to strip searches before being taken to segregation.
Harris’s allegations do not support a claim that his Fourth Amendment rights were
violated.
The Fourth Amendment requires law enforcement officials to act in a
18
reasonable manner when they subject people to searches of their person or property.
King v. McCarty, 781 F.3d 889, 899 (7th Cir. 2015). Harris has not alleged that he was
treated unreasonably during the strip searches, and the Seventh Circuit has held that
routine visual strip-searches of prisoners do not violate the Fourth Amendment. See id.
(concluding that prisoner’s allegations regarding lengthy strip search failed to state claim
under Fourth Amendment claim).
In Florence v. Bd. of Chosen Freeholders of Cnty. of
Burlington, 566 U.S. –––– 132 S. Ct. 1510 (2012), the Court held that invasive strip and
body-cavity searches of detainees entering the jail’s general population did not violate the
Fourth Amendment.
It is no great leap to conclude the same with respect to the
placement of a prisoner when entering a new, arguably more dangerous, and certainly less
compliant, population of prisoners.
Accordingly, Harris may not proceed on a claim
under the Fourth Amendment.
IV. Access to the Courts.
Finally, Harris claims that his constitutional right to access the courts was
violated. Although he does not explain specifically when or how he believes this right
was violated, the court infers his claim is based on allegations that his small claims case
was dismissed after Jaeger and Devendorf obstructed his mail and refused to provide him
with the materials needed to litigate the case.
These allegations do not support a claim that he was deprived of his constitutional
right to access the courts. A prisoner’s right to access the courts is limited to the ability
to file claims challenging a sentence or conditions of confinement. See Lewis v. Casey, 518
U.S. 343 (1996); Bounds v. Smith, 430 U.S. 817 (1977). Because Harris has not alleged
19
that he was denied the right to access courts to challenge his sentence or conditions of
confinement, he may not proceed on a claim for denial of access to the courts.
ORDER
IT IS ORDERED that:
(1) Plaintiff Lowmorreo Harris’s motion for leave to amend his complaint (dkt.
#13) is GRANTED;
(2) Plaintiff Lowmorreo Harris is GRANTED leave to proceed on claims that:
a. Defendants Jeff Jaeger, Charles Devendorf, Captain Acterberg, C/O
Bender and Captain Baker retaliated against him; and
b. Defendants Jaeger and Baker violated his right to procedural due
process at the January 31, 2013 disciplinary hearing.
(3) Plaintiff is DENIED leave to proceed in all other respects. Defendants
Lizzy Tegels, Larry Fuchs, Tim Thomas, Captain Kannonberg, Captain
Crasper, Sergeant Koran, Navis, Fladhammer, Joe Thyne, Brendon
Ihgenthron, Jane or John Doe, and Edward Wall are DISMISSED.
(4) Pursuant to an informal service agreement between the Wisconsin
Department of Justice and this court, copies of plaintiff’s complaint and
this order are being sent today to the Attorney General for service on the
defendants. Under the agreement, the Department of Justice will have 40
days from the date of the Notice of Electronic Filing in this order to answer
or otherwise plead to plaintiff’s complaint if it accepts service for the
defendants.
(5) For the time being, plaintiff must send defendants a copy of every paper or
document he files with the court. Once plaintiff has learned what lawyer
will be representing defendants, he should serve the lawyer directly rather
than defendants. The court will disregard any documents submitted by
plaintiff unless plaintiff shows on the court’s copy that he has sent a copy
to defendants or to defendant’s attorney.
(6) Plaintiff should keep a copy of all documents for his own files. If plaintiff
does not have access to a photocopy machine, he may send out identical
handwritten or typed copies of his documents.
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(7) If plaintiff is transferred or released while this case is pending, it is his
obligation to inform the court of his new address. If he fails to do this and
defendants or the court are unable to locate him, his case may be dismissed
for failure to prosecute.
Entered this 20th day of August, 2015
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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