Reimann v. Murphy
| Decision Date | 31 July 1995 |
| Docket Number | No. 94-C-0284.,94-C-0284. |
| Citation | 897 F. Supp. 398 |
| Parties | Thomas REIMANN, Plaintiff, v. James P. MURPHY, Robert W. Kent and Steve Wellens, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Thomas Reimann, pro se.
Stephen J. Nicks, Assistant Attorney General, for defendants.
Plaintiff Thomas Reimann, a prisoner currently incarcerated at the Green Bay Correctional Institution initiated a civil rights action pursuant to 42 U.S.C. § 1983 against the Warden, the Security Director and the Mailroom Supervisor of the prison. The Plaintiff claims that his civil rights were violated by the refusal of prison officials to deliver two issues of a newspaper which had been mailed to him and which were published by the "Church of the Creator" (hereinafter referred to as COTC). Prison officials told the Plaintiff that these issues of the paper would not be allowed in the prison because they advocated the taking of human life and advocated violence against non-white races. The Plaintiff further claims that books concerning COTC have been stolen from his cell. The Plaintiff contends that the refusal to deliver these installments of the COTC newspaper violates his right to religious freedom. The Plaintiff also complains about undocumented and unauthorized searches of his cell and alleges that he was subjected to these actions in retaliation for his filing of lawsuits against prison authorities.
The Defendants have filed a motion for summary judgment and a motion for protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. The Plaintiff has filed a brief opposing the summary judgment motion. The Plaintiff has also filed an amended complaint, to which the Defendants have objected because the Plaintiff failed to seek prior leave of the court. The Plaintiff has responded by filing a motion for leave to file his amended complaint. The Plaintiff has also made a request that the court reconsider its earlier denial of his motion for appointment of counsel. The court has considered the various pleadings filed by the parties, including the amended complaint. The Defendants' motions for summary judgment and protective order will be GRANTED. Because the proposed amended complaint adds little to the original complaint and would not survive summary judgment, the motion to amend will be DENIED. The Plaintiff's request that the court reconsider the earlier denial of his motion for appointment of counsel will also be DENIED.
The Plaintiff alleges that in January of 1992 he filed a lawsuit in state circuit court against a prison official, defendant Wellens. Curiously, the Plaintiff's complaint indicates that he also dismissed the lawsuit in January of 1992. The Plaintiff alleges that shortly thereafter, prison officials refused to deliver to him an issue of the newspaper "Racial Loyalty" published by the COTC. The Plaintiff claims that the newspaper is religious in nature, and that he had been receiving the COTC newspaper in prison since 1991. Prison officials told him that the issue of the newspaper which was not delivered to him advocated violence, and therefore was not allowed in the institution. In February of 1993, prison officials again refused to deliver an issue of the newspaper, for essentially the same reason. The Plaintiff alleges that he was not allowed to keep a COTC membership card, even though another inmate was allowed to keep such a card. The Plaintiff alleges that prison officials told him the card could be used to escalate racial tensions at the prison. The Plaintiff does not indicate when this occurred. The Plaintiff claims that defendant Wellens returns periodicals which he rejects without allowing the material to be reviewed by the warden, although he provides no specific examples.
Sometime after the second incident of refusal to deliver the COTC newspaper, the Plaintiff's cell was ransacked by parties unknown, and several books relating to COTC were stolen. The Plaintiff alleges that during this period, a prison official conducted several undocumented and unauthorized searches of his cell. The Plaintiff also has provided to the court affidavits from other inmates stating that they saw a prison official with one of the Plaintiff's stolen books. The inmates' affidavits state that the Plaintiff's books were seen on a table used by prison staff to sort through prisoner property prior to an inmate transfer. The affidavits indicate that an inmate retrieved one of the books from the table and returned it to the Plaintiff. Based on this, the Plaintiff concludes that it was prison officials who ransacked his cell and took his books. The Plaintiff does not specify when the alleged ransacking of his cell and theft of his books occurred. The affidavit of inmate Wade Rolf indicates that these events occurred sometime in or near February of 1993. The Plaintiff also does not say specifically when the unauthorized cell searches occurred. He does not say when prison officials were observed in possession of his books, and does not say which inmate's property was being sorted by prison officials at the time. The Plaintiff claims that the Defendants violated his First Amendment rights in a manner which served no valid penological purpose, and that the Defendants violated the Religious Freedom Restoration Act. The Plaintiff further contends that the Defendants violated state administrative regulations.
Plaintiff has filed a motion seeking permission to file an amended complaint. The court has considered the allegations contained in the proposed amended complaint but has concluded that the amended complaint adds very little to the original complaint, and would not affect the outcome of this case. Amending of the complaint would therefore be futile. Although Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend a party's pleading shall be freely given when justice so requires, there is no abuse of discretion in denying a motion to amend pleadings if amendment would be futile. Morissette v. Peters, 45 F.3d 1119, 1123 (7th Cir.1995). Accordingly, plaintiff's motion for leave to amend the complaint will be DENIED.
By order of this court dated November 2, 1994, the Plaintiff's request for appointment of counsel was DENIED without prejudice. The Plaintiff has renewed this request. As stated in the earlier order, in evaluating requests for appointment of counsel in civil cases, the court will consider factors which include the relative merits of the Plaintiff's case, the complexity of the issues involved, and the ability of the Plaintiff to adequately present the case. See Maclin v. Freake, 650 F.2d 885, 887-88 (7th Cir. 1981). During this case the Plaintiff has filed several interrogatories, an amended complaint, requests for production of documents, requests for admissions and a brief opposing summary judgment with supporting affidavits and containing citations to case law and statutory law. This is ample demonstration that the Plaintiff is able to adequately present this case. Accordingly, the Plaintiff's motion for reconsideration of his request for appointment of counsel will be DENIED.
The Defendants have filed a motion for summary judgment in which they raise alternative arguments claiming that the Religious Freedom Restoration Act was not violated, that it is not to be applied retroactively and that the Act is unconstitutional. The Defendants also assert that they are entitled to qualified immunity. As to the Plaintiff's allegations regarding unauthorized cell searches, the Defendants assert that these allegations are too conclusory to state a valid claim. Finally, the Defendants argue that any claims regarding missing or stolen property are not cognizable in a civil rights action because the Plaintiff has adequate state remedies.
Under Rule 56(c), summary judgment is proper when the pleadings and other submissions filed in the case show that there is no genuine issue regarding any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). After adequate time for discovery, summary judgment is appropriate against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. However, the existence of a factual dispute between the parties will not defeat a properly supported motion for summary judgment unless the facts in dispute are those which might affect the outcome or resolution of issues before the court. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists only where a reasonable finder of fact could make a finding in favor of the non-moving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510 (1986); Santiago v. Lane, 894 F.2d 218, 221 (7th Cir.1990). Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no need for trial and summary judgment is proper. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
The moving party has the initial burden of demonstrating that it is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. Once this burden is met, the non-moving party must designate specific facts to support or defend each element of the cause of action, showing that there is a genuine issue for trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53. The non-movant may not rest on mere allegations...
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