The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO AMEND COMPLAINT, DENYING MOTION FOR COURT-APPOINTED COUNSEL, AND DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiff, George Harp, filed a pro se civil rights lawsuit alleging that defendants were deliberately indifferent to his medical needs and failed to protect him from assault by correctional officers. Harp now moves for the appointment of counsel and for a temporary restraining order. It also appears that Harp is seeking to amend his complaint to add additional claims and an additional defendant. Defendants oppose these motions.
Harp moves to amend his complaint to add an access to the courts claim as well as a claim of "harassment and retaliation" and to add Unit Manager Keith Ditmanson as a defendant. Docket 27. Defendants argue that Harp's motion to amend his complaint should be denied because he did not attach a copy of the proposed complaint as required by the local rules. See D.S.D. Civ. LR 15.1 ("Any party moving to amend a pleading shall attach a copy of the proposed amended pleading to its motion to amend with the proposed changes highlighted or underlined so they may be easily identified."). Harp claims that the prison law library does not have a copy of the local rules. Docket 32 at 2. Assuming this is true, the court will not deny leave to amend on this basis, but reminds Harp that he is still required to comply with both the local rules and the Federal Rules of Civil Procedure even though he is proceeding pro se.
Defendants do not consent to Harp's proposed amendment, so he may amend his complaint only with leave of the court. Fed. R. Civ. P. 15(a)(2). Leave to amend a complaint is freely given "when justice so requires." Fed. R. Civ. P. 15(a). But the court may "properly deny a party's motion to amend its complaint when such an amendment would unduly prejudice the non-moving party or would be futile." Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008). Defendants argue that Harp's proposed amendment to his complaint is futile, so leave to amend should be denied.
Harp asserts that he is being denied access to the courts because access to the law library is insufficient. Harp claims that "Unit Mgr. Keith Ditmanson has cut off the little access to the law library." Docket 27 at 1. Harp asks that he be given access to the law library "a minimum of two hours daily (Sat. And Sun. excluded)." Id. Harp alleges that the prison law library contains "only one Federal Law book" and argues that "the state should provide adequate access to all Fed. Reporters." Id.
Inmates have a constitutional right of meaningful access to the courts and the legal system. Lewis v. Casey, 518 U.S. 343, 351 (1996). "Meaningful access to the courts is the capability to bring 'actions seeking new trials, release from confinement, or vindication of fundamental civil rights.' " White v. Kautzky, 494 F.3d 677, 680 (8th Cir. 2007) (quoting Bounds v. Smith, 430 U.S. 817, 827 (1977)). In order to prevail on an access to the courts claim, an inmate must demonstrate that he sustained an "actual injury" as a result of the challenged policy. Moore v. Plaster, 266 F.3d 928, 933 (8th Cir. 2001). "To prove actual injury, a prisoner must demonstrate that a non-frivolous legal claim had been frustrated or was being impeded." Hartsfield v. Nichols, 511 F.3d 826, 832 (8th Cir. 2008) (internal quotations and citations omitted). Merely alleging that the law library is inadequate is insufficient to establish actual injury. As the Supreme Court explains:
Because [precedent] did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense. . . . [T]he inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.
Lewis, 518 U.S. at 351. Defendants argue that Harp has not shown that a non-frivolous legal claim has been frustrated or impeded and note that Harp has prepared and filed numerous documents with the court. Harp argues that he "has been and is suffering an injury by being frustrated and impeded, in bringing a non-frivolous claim about his prison sentence as determined by the South Dakota State Penitentiary Administration." Docket 32 at 3. But this allegation is belied by the record in this case. Harp was able to file a motion for a temporary restraining order and a memorandum in support based on his claim that his sentence is being improperly calculated. Thus, he has failed to show actual injury and his access to the courts claim fails.
Harp also seeks to add a retaliation claim. He alleges that Unit Manager Ditmanson has a "campaign of harassment and retaliation for availing [himself] of the almost non-existent access to the library." Docket 27 at 1. Defendants assert that permitting Harp to amend his complaint to add a retaliation claim would be futile because his retaliation claim fails. Docket 29. Harp also asserts that his sentence is being miscalculated to allow two 10-year sentences to run consecutively, rather than concurrently, as "a punishment taken in retaliation for plaintiff filing suit." Docket 32 at 4. The court will analyze each of Harp's bases for his retaliation claim.
"A prisoner's Eighth Amendment rights are violated if prison officials 'impose a disciplinary sanction against a prisoner in retaliation for the prisoner's exercise of his constitutional right.' " Meuir v. Greene Cnty. Jail Employees, 487 F.3d 1115, 1119 (8th Cir. 2007) (quoting Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993)). To establish a prima facie case of retaliatory discipline, Harp must show that "(1) [he] exercised a constitutionally protected right; (2) prison officials disciplined [him]; and (3) exercising the right was the motivation for the discipline." Haynes v. Stephenson, 588 F.3d 1152, 1155 (8th Cir. 2009). A claim for retaliatory discipline requires an inmate to show that but for a retaliatory motive, the prisoner would not have received the discipline. Id. at 1156.*fn1
Harp has satisfied the first element of the prima facie case because he exercised a constitutionally protected right by filing a lawsuit and by attempting to exercise his right of access to the courts. See Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir. 2007) (filing a lawsuit is protected First Amendment activity); see also Lewis v. Casey, 518 U.S. at 351 (inmates have right to meaningful access to the courts).
The second prong, that the prisoner has been disciplined or in this case injured, is met here as well. In Harp's initial motion, Harp alleges that he has been denied sufficient access to the legal library. In his response to defendants' reply, Harp asserts that his sentence is being miscalculated to allow two 10-year sentences to run consecutively, rather than concurrently, which changes his parole date. Docket 32 at 4. ...