Joshua W. Harmon v. Kevin A. Carr

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 7, 2025*
Decided January 8, 2025
Before
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-2681
JOSHUA W. HARMON,
Plaintiff-Appellant,
v.
KEVIN A. CARR, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 24-cv-437-pp
Pamela Pepper,
Chief Judge.
O R D E R
Joshua Harmon, a Wisconsin prisoner, sued prison officials for denying him
access to a restroom for one hour, for issuing a conduct report (which officials later
dismissed) because he urinated on himself, and for rejecting his grievance about the
lack of restroom access. See 42 U.S.C. § 1983. The district court dismissed his complaint
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-2681 Page 2
for failure to state a claim. Because the alleged one-hour delay in access to a restroom
and the related administrative actions failed to state a claim for relief, we affirm.
We accept the allegations in Harmon’s complaint as true and view them in the
light most favorable to him. Thomas v. Neenah Joint Sch. Dist., 74 F.4th 521, 522 (7th Cir.
2023). In October 2023, Harmon, who is incarcerated at Oshkosh Correctional
Institution in Oshkosh, Wisconsin, had a visit with his family for roughly two hours. An
hour into the visit, Harmon asked a guard if he could use the restroom. The guard
responded that, under the prison’s policy, Harmon had to wait until after the visit
ended. Another hour later, when the visit ended, Harmon again asked to use the
restroom. The guard responded that he first had to pass through a metal detector,
which he did, at which time the guard said, “it will be a second.” Minutes later,
Harmon urinated on himself.
Two internal actions followed. First, Harmon filed a grievance. He explained
that, after an hour delay, he could not stop from urinating on himself and asked that the
prison not issue a conduct report for doing so. The prison issued a conduct report
anyway, stating that Harmon had created a risk of serious disruption at the facility, but
it later dismissed that conduct report, and because of that dismissal, it also dismissed
his grievance. Harmon unsuccessfully challenged the dismissal of his grievance,
arguing that it contested the guard’s refusal to allow him to use the restroom after an
hour, not the legitimacy of the conduct report.
Harmon sued the guard who delayed his restroom access for an hour, the
officials involved in his conduct report and grievance, and the Wisconsin Department of
Corrections and its Secretary. See 42 U.S.C. § 1983. The district court screened Harmon’s
amended complaint and dismissed it for failure to state a claim. See 28 U.S.C. § 1915A. It
analyzed the claim about the restroom under the Eighth Amendment and ruled that the
denial of a toilet for roughly an hour did not violate Harmon’s rights. As for his claims
about the grievance and conduct report, the court explained that the processing of those
matters also did not violate Harmon’s rights. It next dismissed the claims against the
Secretary because Harmon did not allege that he was personally involved, and the
claims against the Department failed because it is not a “person” suable under § 1983.
Finally, the court did not offer Harmon leave to amend, concluding that doing so would
be futile.
On appeal, Harmon challenges the district court’s dismissal of his complaint, a
ruling that we review de novo. Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). He
first argues that the court improperly used a heightened pleading standard in screening

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No. 24-2681 Page 3
his suit and that, under the right standard, he stated an Eighth Amendment claim. In its
dismissal order, the district court stated the standard correctly:
“In determining whether the amended complaint states a claim, the court
applies the same standard that it applies when considering whether to dismiss a
case under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d
714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison, 668
F.3d 896, 899 (7th Cir. 2012)). To state a claim, the amended complaint must
include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” F ED. R. C IV. P. 8(a)(2). The amended complaint must contain
enough facts, “accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows a court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).”
Harmon fails to provide any example of where the district court supposedly deviated
from this correct standard or required particularized factual allegations, and in our own
review of the district court’s analysis, we see none.
That said, we still independently review the dismissal, and we conclude that
Harmon has not stated a claim against any of these defendants. To avoid dismissal on
the restroom claim against the guard, Harmon must plead facts sufficient to draw a
reasonable inference that the guard is liable under the legal theory Harmon advances,
the Eighth Amendment. See Schillinger v. Kiley, 954 F.3d 990, 993–94 (7th Cir. 2020). To
do so, he must allege that the guard knew of and consciously disregarded a substantial
risk of severe harm to Harmon. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). He has
not. Although Harmon alleges that the guard denied him access to a toilet for an hour,
he does not contend that he has a medical condition affecting his continence or that he
risks serious harm by having to wait an hour to use the restroom, let alone that the
guard knew this. Thus, his one-hour lack of restroom access did not violate his Eighth
Amendment rights. Cf. Harris v. Fleming, 839 F.2d 1232, 1234–36 (7th Cir. 1988)
(affirming summary judgment on Eighth Amendment claim from prisoner who lacked
toilet paper for five days, reasoning that nothing suggested that the defendants
deliberately disregarded known harms). Harmon replies that the guard disregarded an
intra-prison policy governing bathroom access for prisoners during family visits. But a
violation of prison policy does not by itself offend the Eighth Amendment. Courtney v.

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No. 24-2681 Page 4
Butler, 66 F.4th 1043, 1052–53 (7th Cir. 2023) (citing Scott v. Edinburg, 346 F.3d 752, 760
(7th Cir. 2003) (Ҥ 1983 protects plaintiffs from constitutional violations, not violations
of state laws or, in this case, departmental regulations.”).
The district court also properly dismissed the remaining defendants. Harmon’s
allegations against the officials who issued the conduct report or denied his grievance
do not state a claim because he accuses them of failing to follow state-law grievance
policies, but a violation of state law does not by itself violate the Eighth Amendment.
See Owens v. Evans, 878 F.3d 559, 563 (7th Cir. 2017). The closest he comes is accusing
them of violating the Eighth Amendment by not achieving a different administrative
outcome, but the Eighth Amendment does not entitle him to a particular outcome. See
id. The district court also correctly dismissed the claims against the Department because
it is not subject to suit under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989). Finally, the claims against the Secretary fail because, as the district court
observed, Harmon did not allege that he had any personal involvement in the events.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Further, even if Harmon believes that the
Secretary should have created a policy that grants prisoners restroom access after one
hour of a two-hour family visit, for the reasons stated above, such brief inaccessibility
does not violate the Eighth Amendment.
One final matter. This court typically cautions district courts not to dismiss a
prisoner’s complaint under § 1915A, as happened here, without first granting leave to
amend, see Perez, 792 F.3d at 783, “unless it is certain … that any amendment would be
futile or otherwise unwarranted,” Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago
& Nw. Indiana, 786 F.3d 510, 519–20 (7th Cir. 2015). Although the district court did not
allow Harmon the opportunity to amend his complaint after its § 1915A screening, its
decision was proper. For one thing, Harmon had already amended his complaint. In
addition, Harmon does not contest the court’s view that amendment would be futile.
AFFIRMED

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