Harris, Lawrence v. Newoth, Laurie et al
ORDER denying plaintiff Lawrence Harris's 14 motion for leave to amend his complaint; denying 26 plaintiff's motion for the court's assistance in recruiting him counsel; and granting defendants' 17 motion for summary judgmen t based on plaintiff's failure to exhaust administrative remedies. This case is DISMISSED without prejudice. The clerk of court is directed to enter judgment for defendants and close this case. Signed by District Judge James D. Peterson on 3/9/2018. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION & ORDER
LORIE IVERSON, SGT. BOARDMAN,
MR. BROADBENT, GARY BOUGHTON,
W. BROWN, K. SALINAS,
C. O’DONNELL, and MR. KARTMAN,
Plaintiff Lawrence Harris, a prisoner incarcerated at the Wisconsin Secure Program
Facility, alleges that prison officials retaliated against him for filing complaints about being
fired from his prison job. He says that several of the defendants gave him a conduct report in
retaliation for his complaints about being fired, and several other defendants, in their roles as
grievance examiners, retaliated against him by mishandling a grievance about his firing.
Defendants have filed a motion for summary judgment alleging that Harris failed to
exhaust his administrative remedies for his claims. Dkt. 17. Harris has filed a motion to amend
his complaint to add new claims, Dkt. 14, and a motion for the court’s assistance in recruiting
him counsel, Dkt. 26. After considering the summary judgment materials, I conclude that
Harris indeed failed to exhaust his administrative remedies on each of his claims, so I will grant
defendants’ motion for summary judgment and dismiss the case. I will deny both of Harris’s
A. Motion for leave to amend complaint
Harris seeks leave to amend his complaint to add claims against several prison officials
for interfering with his ability to access the courts by denying a request for an extension of his
legal loan. Harris says that he was unable to fully litigate an appeal of a state-court case because
his meager income was not enough to pay for the documents he needed to submit. He also says
that he did not receive priority law library time.
Only some of the proposed new defendants are already defendants in this case, so
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. Wisconsin Dep’t of Corr., No. 10-cv-67-bbc, 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.”). Harris says that his new claims are related to his current claims because they are
part of a pattern of retaliation against him. But nothing in his allegations explain why this is
so, other than that the events regarding his access-to-the-courts allegations started shortly after
the other allegedly retaliatory events. This is not enough of a connection to say that these
claims are part of the same series of transactions or occurrences regarding his conduct report
and grievances, as is required under Rule 20. Accordingly, I will deny Harris’s motion for leave
to amend his complaint. He remains free to bring these new allegations in a new lawsuit.
B. Recruitment of counsel
Harris asks the court to appoint him a lawyer. Dkt. 26. I do not have the authority to
appoint counsel to represent a pro se plaintiff in this type of a case; I can only recruit counsel
who may be willing to serve voluntarily in that capacity. To show that it is appropriate for the
court to recruit counsel, a plaintiff must first show that he has made reasonable efforts to locate
an attorney on his own. See Jackson v. Cty. of McLean, 953 F.2d 1070, 1072–73 (7th Cir. 1992).
To meet this threshold requirement, this court generally requires plaintiffs to submit
correspondence from at least three attorneys to whom they have written and who have refused
to take the case. Harris provides three letters he wrote to attorneys. Although he provides only
one response turning him down, I will assume for purposes of this opinion that Harris has made
reasonable efforts to obtain counsel on his own.
Second, the court will seek to recruit counsel for a pro se litigant only when the litigant
demonstrates that his case is one of those relatively few in which it appears from the record
that the legal and factual difficulty of the case exceeds his ability to prosecute it. Pruitt v. Mote,
503 F.3d 647, 654–55 (7th Cir. 2007). Harris states that he has limited resources and is not
well versed in the law, but those are common problems facing pro se prisoners and they do not
in themselves show that counsel is necessary. Although, as discussed further below, I will grant
summary judgment to defendants, it is not because of Harris’s limitations; he presented
relatively well-reasoned briefs and appears to have gotten the help of a jailhouse lawyer with
some experience. The problem is that the facts surrounding his attempts at exhausting his
administrative remedies require me to rule for defendants. I will deny Harris’s motion and go
on to consider the summary judgment motion.
1. Undisputed facts
Harris was fired from his prison job on April 7, 2016. Harris submitted an inmate
grievance on April 11 stating that he was wrongfully terminated, but he did not sign the
grievance. The grievance was returned to him for being unsigned, the same day and he promptly
signed it and resubmitted it. The grievance was assigned No. WSPF-2016-7502.
On April 15, Harris was issued a conduct report for theft regarding an incident at his
prison job in which he was accused of stealing food from the kitchen. At an April 25 hearing,
Harris admitted to taking the food. He was found guilty. He did not appeal this decision.
On May 9, defendant Institution Complaint Examiner W. Brown recommended
dismissing Harris’s ’7502 grievance, stating that he was fired for the theft and for receiving an
unsatisfactory performance evaluation. Defendant Warden Gary Boughton dismissed the
grievance on May 10. Harris filed an appeal in which he stated that Brown “[d]id a poor
investigation” and did not interview him, and that staff failed to follow its rules about using
conduct reports in reviewing the performance of prison workers. Dkt. 19-3, at 16–19.
Defendant Correction Complaint Examiner K. Salinas disregarded Harris’s new allegations,
stating, “The inmate attempts to disparage the ICRS and the ICE office at WSPF at length in
this appeal submission. This new issue raised on appeal is not properly before this examiner
and will not be addressed.” Id. at 6. Defendant Cindy O’Donnell dismissed the appeal on behalf
of the Office of the Secretary of the DOC.
2. Legal standards
Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to
prison conditions . . . until such administrative remedies are exhausted.” 42 U.S.C. § 1997e(a).
The exhaustion requirement is mandatory and “applies to all inmate suits.” Woodford v. Ngo,
548 U.S. 81 (2006); Porter v. Nussle, 534 U.S. 516, 524 (2002). The exhaustion requirement’s
primary purpose is to “alert[ ] the state” to the problem “and invit[e] corrective action.”
Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004).
Section 1997e(a) requires “proper exhaustion,” Woodford, 548 U.S. at 93; Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which means that the prisoner must follow
prison rules when filing the initial grievance and all necessary appeals, “in the place, and at the
time, the prison’s administrative rules require.” Burrell v. Powers, 431 F.3d 282, 284–85 (7th
Cir. 2005) (internal quotation omitted). “[A] prisoner who does not properly take each step
within the administrative process has failed to exhaust state remedies.” Pozo, 286 F.3d at 1024.
Usually, the State of Wisconsin makes administrative remedies available to inmates
under the Inmate Complaint Review System (ICRS). But there are certain limits to inmates’
use of the ICRS. Under Wis. Admin. Code § DOC 310.08(2)(a), an inmate may not use the
ICRS to raise “[a]ny issue related to a conduct report, unless the inmate has exhausted the
disciplinary process in accordance with ch. DOC 303.” Accordingly, if an issue “is related to a
conduct report, the inmate must raise it at the time of his disciplinary hearing and again on
appeal to the warden, assuming the matter is not resolved at the disciplinary hearing stage.”
Lindell v. Frank, 2005 WL 2339145, at *1 (W.D. Wis. Sept. 23, 2005). After the disciplinary
appeal is complete, an inmate may use the ICRS only to appeal procedural errors. Wis. Admin.
Code §§ DOC 303.82(4); 310.08(3).
Defendants contend that Harris failed to exhaust his administrative remedies with
regard to both sets of his claims: (1) Broadbent, Iverson, Boardman, and Kartman gave him a
conduct report in retaliation for his complaints about being fired; and (2) complaint examiners
Brown, Boughton, Salinas, and O’Donnell retaliated against him by mishandling the grievance
about his firing. They say that Harris’s grievance about his termination predated the alleged
retaliation, so it could not have exhausted his retaliation claims, and Harris failed to file any
grievances directly about the conduct report or the handling of his grievance. They acknowledge
that Harris did mention examiner Brown’s handling of his grievance in the appeal of his
grievance, but they contend that this is not sufficient to exhaust his remedies, as he failed to
file a brand-new grievance at the institution level about any of the examiners’ conduct. They
also note that Harris did not appeal the conduct-report decision either.
Harris contends that administrative remedies were not truly available to him because
the administrative rules did not allow him to file a grievance about issues related to his conduct
report. He cites to previous orders of this court that have either considered an inmate’s
administrative remedies exhausted by his conduct-report appeal, or unavailable because of
confusing or incorrect information the inmate was given about the parallel ICRS and conductreport systems. See Dkt. 20 (citing Shaw v. Jahnke, 607 F. Supp. 2d 1005, 1007 (W.D. Wis.
2009); Vasquez v. Hilbert, No. 07-cv-723-bbc, 2008 WL 2224394 (W.D. Wis. May 28, 2008);
Lindell v. O’Donnell, No. 05-C-04-C, 2005 WL 2740999 (W.D. Wis. Oct. 21, 2005).
Harris has a point about the exhaustion of his claims about being given a retaliatory
conduct report. Although the state initially argues that Harris failed to file an ICRS grievance
about defendants alleged retaliatory conduct report, as discussed above, the ICRS rules
generally do not allow grievances of conduct-report-related issues. Only procedural conductreport-related issues may be raised in the ICRS system, and only after the disciplinary process
is complete. In keeping with rulings like Shaw, Vasquez, and Lindell, I conclude that Harris did
not have to use the ICRS process to grieve issues about his conduct report.
Instead, he should have used the conduct-report process itself to raise the issue of the
retaliatory conduct report. This dooms this set of claims because regardless how Harris
managed the ICRS process, he failed to exhaust the conduct-report process. After he was
convicted on the theft charge, he did not appeal the decision to Warden Boughton.
Harris says that he did alert Boughton about the retaliation by sending him a letter
titled “update on job removal status” on April 27, two days after the conduct-report hearing,
in which he stated that prison officials did not follow the proper protocol by firing him before
he was ever convicted of any wrongdoing. See Dkt. 21-1. The problem for Harris is that this
letter cannot reasonably be seen as fulfilling his burden to appeal his disciplinary decision.
As stated above, Harris was required to follow prison rules by litigating his claims “in
the place, and at the time, the prison’s administrative rules require.” Burrell, 431 F.3d at 284–
85. Harris wrote a letter instead of filling out the form usually used for conduct-report appeals,
and the letter is not written from the perspective of someone complaining about the outcome
of the conduct-report proceedings. He focuses on what he believes was a breach of protocol by
him being fired before he was convicted of wrongdoing. Boughton appears to have agreed with
Harris because he responded by changing the date of Harris’s termination to April 25, the date
of the conduct-report hearing. See Dkt. 21-2. Boughton also stated that “Ms. Sutter is
coordinating the pay adjustment to [Harris’s account],” by which I take to mean that Harris
received back pay for the extra time he was now deemed to have held the position. But neither
Harris’s letter nor Boughton’s response can reasonably be construed as documents filed
pursuant to a disciplinary appeal, because they do not discuss the substance of the hearing or
the possibility of overturning the conviction. Because Harris did not exhaust the disciplinary
process about the retaliatory conduct report, I will grant defendants’ motion for summary
judgment on this set of claims.
That leaves Harris’s set of claims about retaliatory misconduct by the ICRS examiners
with regard to his grievance about his termination. Harris did not file a separate grievance
about this issue, although he did complain about Institution Complaint Examiner W. Brown’s
conduct in his appeal of the ’7502 grievance. Raising the issue on appeal is not sufficient to
exhaust his claims: the corrections complaint examiner disregarded that argument as not
properly before the CCE. This was an appropriate response, not only because the issue was
raised for the first time on appeal, see Malone v. Clark, No. 04-C-229-C, 2004 WL 2504211, at
*5 (W.D. Wis. Oct. 26, 2004) (“The exhaustion procedures require plaintiff to raise his claim
initially in an inmate complaint and receive a decision on that complaint.”), but also because
inmate grievances must be limited to one issue at a time. See Wis. Admin. Code § DOC
310.09(1)(e) (Complaints . . . shall: . . . Contain only one issue per complaint . . . .”).
Harris also argues that it would have been futile to file a grievance about the grievance
examiners, because a fellow inmate, Oscar Garner, was rebuffed in a similar situation. Garner
says that he filed an inmate grievance in 2014 about an allegedly retaliatory conduct report,
only to have the institution complaint examiner reject it as being related to the conduct report.
Then, when Garner filed a grievance against the complaint examiner for failing to investigate
his complaint, defendant Brown rejected that grievance as having already been addressed by
the previous grievance. So I take Harris to be saying that he thought that had he filed a
grievance about the grievance examiners’ retaliation, that grievance would have been rejected
I am not persuaded that Garner’s grievance shows that an administrative hearing was
not available to Harris. If Harris could show that it was the DOC’s policy or practice to reject
all complaints about grievance examiners, that might be enough to show that the grievance
process is unavailable for those types of complaints. But even if Garner’s grievance had been
mishandled, that is not enough to show that Harris’s remedies were unavailable; an examiner
(like any decision maker) is bound to make mistakes, but that does not mean the entire system
is unavailable to future filers. It was Harris’s responsibility to file a grievance about the
examiners’ retaliation. Because he failed to do so, I will grant defendants’ motion for summary
judgment on this set of claims as well. Because Harris failed to exhaust all of his claims, I will
dismiss the entire case without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004)
(dismissal for failure to exhaust is always without prejudice).
IT IS ORDERED that:
1. Plaintiff Lawrence Harris’s motion for leave to amend his complaint, Dkt. 14, is
2. Plaintiff’s motion for the court’s assistance in recruiting him counsel, Dkt. 26, is
3. Defendants’ motion for summary judgment based on plaintiff’s failure to exhaust
administrative remedies, Dkt. 17, is GRANTED. This case is DISMISSED without
4. The clerk of court is directed to enter judgment for defendants and close this case.
Entered March 9, 2018.
BY THE COURT:
JAMES D. PETERSON
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