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Leroy K. Wheeler v. Robyn T. Schmalenberger

November 29, 2012


The opinion of the court was delivered by: Charles S. Miller, Jr. United States Magistrate Judge


On August 8, 2012, Plaintiff Leroy K. Wheeler filed a "Request for Leave of Court to Amend the Pleadings" (Docket No. 30), a "Motion for Leave to Supplement the Pleadings" (Docket No. 33) and a "Motion for Appointment of Private Investigator" (Docket No. 34), and a "Motion for Appointment of Medical Expert" (Docket No. 31). On August 10, 2012, Wheeler filed an "Ex-Parte Request for Collection of Newscast." (Docket No. 35). On August 22, 2012, defendants responded to Wheeler's motions. (Docket Nos. 36-38). On September 4, 2012 Wheeler replied to defendants' response. (Docket Nos. 39-40). On September 7, 2012, Wheeler filed a "Citation to Supplemental Authority" regarding his motion to amend the pleadings. (Docket No. 41).


Wheeler is an inmate at the North Dakota State Penitentiary ("NDSP"). On October 4, 2011, he filed a motion for leave to proceed in forma pauperis and a proposed complaint alleging violations of 42 U.S.C. §§ 1981 and 1983. On October 11, 2011, the court granted Wheeler's motion to proceed in forma pauperis and the complaint was filed. The complaint included four claims that Wheeler summarized as:

Claim No. 1: Retaliation for Exercising Constitutional Rights;

Claim No. 2: Enforcement of Black Supremacy & Discrimination against sex offenders;

Claim No. 3: Enforcing Unconstitutional Prison Policies & Practices; and Claim No. 4: Retaliation for Exercising Religious Right to be an informant. (Docket No. 2). The primary focus of Wheeler's complaint was Derrick Stanton, a federal inmate housed at NDSP. Wheeler alleged that while working in the prison kitchen, Stanton poisoned other inmates, not including Wheeler, by putting chemicals in their drinks. (Docket No. 2, pp. 6-14). Wheeler alleged that, although he reported the poisonings on several occasions, prison staff refused to take action to stop Stanton's conduct. Wheeler further alleged that he attempted to expose the poisonings and Stanton's sexual relationship with a female prison guard by writing a letter to State's Attorney Richard Riha, and suffered retaliation, including termination of his employment in the kitchen, transfer to a different housing unit, and screening of all of his outgoing mail, as a result. (Docket No. 2, pp. 11-12).

The undersigned conducted an initial screening of Wheeler's complaint pursuant to 28 U.S.C. § 1915A and submitted a Report and Recommendation on December 7, 2011. (Docket No. 9). The undersigned recommended permitting Wheeler to proceed with his retaliation claims, Claim Nos. 1 & 4, " to the extent that the claims allege that prison officials imposed discipline upon Wheeler in retaliation for the exercise of his constitutional rights" and recommended dismissing Claim Nos. 2 & 3 with prejudice. On February 21, 2012, the court adopted the report and recommendation. (Docket No. 14). On April 23, 2012, defendants filed an answer. (Docket No. 25). On June 25, 2012, the court issued a scheduling order giving the parties until August 30, 2012 to move to amend the pleadings and until October 31, 2012 to complete discovery. (Docket No. 27).


A. Motion to Amend

Wheeler requests leave of the court to amend his complaint to make "minor" changes to Claim Nos. 1 through 4 in his original complaint, to add Claim Nos. 5 and 6, and to add Steve Heit as a defendant. (Docket No. 30). Defendants resist the motion. (Docket No. 36).

Federal Rule of Civil Procedure 15(a)(1) provides that before trial, "A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." In all other cases, a party may amend its pleading only after obtaining written consent from the opposing party or leave of the court. Fed.R.Civ.P. 15(a)(2). Wheeler filed his motion to amend on August 8, 2012, more than 21 days after defendants filed an answer on April 23, 2012. Because defendants resist amendment, Wheeler may only amend his complaint with leave of the court.

Federal Rule of Civil Procedure 15(a)(2), requires that courts freely give leave to amend a pleading when justice so requires. Although amendment is to be liberally permitted, leave to amend may be denied for good reason such as "undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or futility of amendment[.]" Thompson-El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

Federal Rule of Civil Procedure 8(a) requires a pleading contain only "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" The court concluded Wheeler's Claim Nos.1 and 4 met that minimal pleading requirement and ordered that Wheeler be allowed to proceed with those claims to the extent they allege that Wheeler was disciplined in retaliation for exercising his constitutional rights. (Docket No. 14). Wheeler requests the court's leave to amend those claims to add paragraph numbers and to add several pages of additional facts detailing the contents of inmate grievances Wheeler filed at NDSP and the responses he received. (Docket No. 30-2, pp.14-18, 23).

While the facts regarding Wheeler's use of the prison grievance system may be relevant at some stage of the proceedings, he is not required to affirmatively plead exhaustion in his complaint. See Jones v. Bock, 549 U.S. 199, 216 (2007) (holding that under the PLRA failure to exhaust is an affirmative defense and that inmates are not required to plead exhaustion in their complaints). Because Wheeler's proposed amendments would have no effect ...

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