Kirsch v. Smith

• Decision Date: 14 July 1995
• Docket Number: No. 94-C-474.,94-C-474.
• Citation: 894 F. Supp. 1222
• Parties: Kevin KIRSCH and James Griffin, Plaintiffs, v. Major J.C. SMITH and Warden McCaughtry (In their individual and official capacities), Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

894 F. Supp. 1222

Kevin KIRSCH and James Griffin, Plaintiffs, v. Major J.C. SMITH and Warden McCaughtry (In their individual and official capacities), Defendants.

No. 94-C-474.

United States District Court, E.D. Wisconsin.

July 14, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kevin Kirsch, pro se.

James Griffin, pro se.

Wis. Dept. Justice by Stepphen J. Nicks, Asst. Attorney General, Madison, WI, for defendants.

DECISION and ORDER

MYRON L. GORDON, District Judge.

In a May 19, 1994, decision and order, I granted the plaintiffs' request for leave to proceed in forma pauperis with their 42 U.S.C. § 1983 action. Kirsch v. Smith, 853 F.Supp. 301 (E.D.Wis.1994). The defendants were directed to answer the plaintiffs' complaint and to respond to the plaintiffs' request for a temporary restraining order or a preliminary injunction. I denied the plaintiffs' request for temporary relief in a decision and order dated December 5, 1994. Presently before the court are the parties' cross-motions for summary judgment.

On January 12, 1995, the defendants filed their motion for summary judgment. After three extensions of time, the plaintiffs responded. The plaintiffs have filed several motions: (1) motion for summary judgment docket entry # 47; (2) "motion to conform the complaint to the evidence (Rule 15(b), F.R.C.P.)" docket entry # 48; (3) "motion to take judicial notice (Rule 201, F.R.E.)" docket entry # 49; and (4) the plaintiffs' "motion to enforce order to compel" docket entry # 59.

For the reasons set forth below, the defendants' motion for summary judgment and the plaintiffs' motion to conform their complaint to the evidence will be granted. The plaintiffs' application for injunctive relief and declaratory relief and all of the remaining motions presented by the plaintiffs will be denied or dismissed.

I. BACKGROUND

The plaintiffs commenced this action with the filing of a complaint on April 29, 1994, asserting that the "ink tube policy," instituted by the defendants, violates their constitutional right of access to the courts. The ink tube policy is one whereby inmates confined in the punitive segregation unit at the Waupun Correctional Institution "W.C.I." are permitted to use only the plastic inner ink insert from a ballpoint pen for all legal and personal writing. The plaintiffs submitted a sample ink tube as exhibit A to their complaint.

In their complaint, the plaintiffs allege that they are both inmates in the W.C.I.'s punitive segregation unit "formally known as the Adjustment Center but commonly referred to as the `Overlook Hotel' due to the deleterious effect that it has on the minds of staff and prisoners." However, Mr. Griffin has since been transferred to the Green Bay Correctional Institution, and Mr. Kirsch is not presently confined in the Adjustment Center.

The plaintiffs also allege that they are both involved in ongoing litigation concerning their conditions of confinement. Specifically, Mr. Kirsch claims that he is involved in Kirsch v. Endicott, No. 94-359 (Wis.Ct.App. 1994) and that he was jailhouse counsel to the plaintiff in Santiago v. Ware, et al., No. 92-CV-3906 (Dane county circuit court). Mr. Griffin alleges that he is litigating Griffin v. McCaughtry, et al., No. 94-C-247-C (W.D.Wis.1994).

As a result of the ink tube policy at W.C.I., the plaintiffs claim that they are unable to pursue their pending litigation and administrative proceedings because they are unable to grip the ink tube and write legibly. They charge that they are unable to make carbon copies using an ink tube and that previous hand injuries make writing with the tube painful. The plaintiffs contend that the ink tube policy deprives them of meaningful access to the courts.

Along with their complaint, plaintiffs submitted a motion for temporary injunctive relief; they sought an injunction prohibiting the defendants from punishing them for modifying their ink tubes, or, in the alternative, ordering the defendants to provide them with proper pens. The plaintiffs also requested injunctive relief preventing the defendants from transferring them from the W.C.I. The plaintiffs' motion for temporary relief, construed by the court as a motion for a preliminary injunction, was denied in a December 5, 1994, decision and order. In addition, among other relief, the plaintiffs have requested damages, declaratory relief and permanent injunctive relief prohibiting the defendants from enforcing the ink tube policy.

The plaintiffs are suing the defendants, who are state officials, "in their individual and official capacities." An action against state officials in their official capacities is no different from an action against the state itself. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). Because damage actions against the state (absent its consent) are barred by the Eleventh Amendment, to the extent that the plaintiffs are seeking damages from the defendants in their official capacities, such claims are barred by that amendment. Knox v. McGinnis, 998 F.2d 1405, 1412 (7th Cir.1993).

II. PLAINTIFFS' REQUEST FOR INJUNCTIVE AND DECLARATORY RELIEF

As part of their requested relief, the plaintiffs seek a permanent injunction enjoining the defendants from enforcing the ink tube policy and requiring the defendants to permit the plaintiffs to use a pen with a barrel. Unlike a claim for damages, a claim for prospective injunctive relief against a state official is properly asserted against that official in his official capacity. Akins v. Board of Governors of State Colleges and Universities, 840 F.2d 1371, 1377 (7th Cir.), vacated, 488 U.S. 920, 109 S.Ct. 299, 102 L.Ed.2d 319 on remand, 867 F.2d 972 (7th Cir.1988) (reinstating original judgment as to named plaintiff).

However, Mr. Griffin's application for injunctive relief is moot because he is no longer incarcerated at the W.C.I. Absent some evidence that he is likely to return to the W.C.I., Mr. Griffin is not entitled to such relief. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983) (A § 1983 plaintiff must show a likelihood of future injury where he is seeking injunctive relief based upon past exposure to illegal conduct). In Robinson v. City of Chicago, the seventh circuit court of appeals held that the Lyons rule applies to claims for declaratory relief. 868 F.2d 959, 966-67 (7th Cir.1989), cert. dismissed, 493 U.S. 1012, 110 S.Ct. 708, 107 L.Ed.2d 729 (1989), and cert. denied, 493 U.S. 1035, 110 S.Ct. 756, 107 L.Ed.2d 773 (1990). Therefore, the same analysis applies to Mr. Griffin's request for declaratory relief.

Mr. Griffin has not demonstrated that he is likely to return to the W.C.I., and thus he does not have standing to obtain injunctive or declaratory relief. Consequently, the only relief which Mr. Griffin may be entitled to recover through this action is damages from the defendants in their individual capacities.

Mr. Kirsch, though still incarcerated at the W.C.I., is no longer confined in the Adjustment Center at that institution. Therefore, Mr. Kirsch must show that there is a likelihood that he will return there in the future in order to be entitled to injunctive or declaratory relief. Although Mr. Kirsch has been confined in the Adjustment Center for periods of time in eight out of the ten years of his confinement at the W.C.I., see Second Kirsch aff. at ¶ 2, the mere possibility that he will be returned to such confinement does not establish his entitlement to injunctive or declaratory relief. See Knox, 998 F.2d at 1413. Despite Mr. Kirsch's previous periods of confinement in the Adjustment Center, the court declines to assume that he will not abide by prison rules and again will be confined to that unit. Id. (Inmate's placement in program segregation twice during his four years of confinement deemed insufficient to show likelihood of his future placement in segregation). Therefore, Mr. Kirsch's request for injunctive relief is moot.

My resolution below of all of the plaintiffs' claims in favor of the defendants provides an additional basis for my denial of the plaintiffs' request for declaratory and injunctive relief.

III. PLAINTIFFS' MOTION TO AMEND THEIR COMPLAINT

The plaintiffs seek leave to "conform the complaint to the evidence." In this motion, the plaintiffs state that certain issues raised in their motion for summary judgment "involve facts and legal claims not specifically referred to in the original civil complaint." Specifically, the plaintiffs ask that the court permit them to amend their complaint to assert claims that the ink tube policy violated their "First Amendment right to petition" and that the ink tube policy violates their state created property interests. The plaintiffs' pro se motions must be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972).

The plaintiffs' motion to conform their complaint was filed pursuant to Rule 15(b), Federal Rules of Civil Procedure. Under Rule 15(b), a party may seek leave to amend the pleadings to conform such pleadings to the issues raised in an action "when issues not raised by the pleadings are tried by express or implied consent of the parties."

It does not appear that the plaintiffs are attempting to amend their pleadings to conform to the evidence. Rather it appears that they are attempting to amend their complaint to add new claims. Rule 15(b) addresses the amendment of pleadings when new issues are raised by the evidence. Nevertheless, I will address the plaintiffs' additional claims in conjunction with my resolution of the parties' motions for summary judgment.

IV. PLAINTIFFS' MOTION TO TAKE JUDICIAL NOTICE

In this motion, the plaintiffs, pursuant to Rule 201, Federal Rules of Evidence, ask the court to take judicial notice of the "fact" that

it would be less of a security concern in the Adjustment Center for Adjustment

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