Barnes v. Brown County et al

Filing 180

ORDER signed by Judge Rudolph T. Randa on 6/5/2015. 136 Barnes' MOTION for Sanctions and Assessment of Expenses DENIED. 165 Barnes' MOTION for Discovery GRANTED to the extent that he may file motion to compel discovery by 6/22/2015, and DENIED to the extent that he may not seek additional discovery and defendants need not respond to Barnes' untimely discovery requests; defendants' response to motion to compel discovery due 7/1/2015, Barnes' reply due 7/8/2015. 165 Barnes' MOTION for Continuance of Summary Judgment Dispositive Motion Deadline/Extension of Time GRANTED; Barnes' response to defendants' summary judgment motion due 7/29/2015 and he may file dispositive motion by 7/29/2015. 172 Barn es' MOTION for leave to use inmate release account DENIED. 176 Barnes' MOTION for Leave to File Excess Pages GRANTED. Barnes to identify defendants John and Jane Doe 1-3 by 6/15/2015 or they will be dismissed. US Marshals Service to make additional efforts to locate and serve defendant Jujuan Jones; deadline for service is extended to 7/6/2015. (cc: all counsel, via mail to Lamon Barnes at Fox Lake Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LAMON LAMAR BARNES,
Plaintiff,
-vs-

Case No. 13-CV-607

BROWN COUNTY,
BROWN COUNTY DRUG TASK FORCE,
DAVE POTEAT,
JEFF LADE,
ZAK HOSCHBACH,
MARK HACKETT,
JOHN LAUX,
GUY SHEPARDSON,
INVESTIGATOR DERNBACH,
VILLAGE OF ASHWAUBENON,
CITY OF GREEN BAY,
JUJUAN JONES, and
JANE AND JOHN DOES 1-3,
Defendants.

DECISION AND ORDER
The plaintiff has filed a “motion for sanctions, assessment of expenses
and/or expenses incurred due to defendants’ submission of affidavits and/or
declaration in bad faith by means of false swearing” pursuant to Federal
Rules of Civil Procedure 37(b) and 56(h) (ECF No. 136). By this motion, the
plaintiff challenges the Brown County defendants’ reason for needing more
than thirty days to provide accurate responses to two of the plaintiff’s
discovery requests.

According to the plaintiff, all of the information he

requested in his August 25, 2014, request for production of documents, and
September 4, 2014, interrogatories and second document request, was readily
accessible and could have been provided in one day. The plaintiff asserts,
therefore, that the Brown County defendants’ justification for needing
additional time was false.
Next, the plaintiff states that counsel for the Brown County
defendants, Attorney Sara Mills, falsely stated that she supplemented the
defendants’ discovery response as newly discovered evidence became
available.

According to the plaintiff, Attorney Mills’s statement was false

because the Brown County defendants already had the information when they
submitted their initial disclosures to him. The plaintiff questions the timing
of the Brown County defendants’ supplementation of their discovery response
and suggests that they may have supplemented their responses in response to
the plaintiff’s motion to compel discovery. He also contends that the Brown
County defendants knowingly falsely stated that they provided him with Mr.
Jones’s entire informant file. Lastly, the plaintiff charges that the audio and
video discovery the Brown County defendants provided to him was
incomplete.
In response, the Brown County defendants first contend that the
plaintiff erroneously relies on Fed. R. Civ. P. 56(h) as a basis for his motion.
The defendants are correct – Rule 56(h) applies to summary judgment

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materials and the plaintiff’s motion challenges discovery responses.

The

Brown County defendants also contend that the plaintiff cannot establish any
valid basis upon which to impose sanctions. According to the defendants, the
plaintiff’s mere disagreement with statements made in the Brown County
defendants’ discovery responses is insufficient to establish that any of the
Brown County defendants’ actions, or the actions of their counsel, were
fraudulent. Rather, they assert, these issues may be raised in a motion to
compel discovery.
With regard to the plaintiff’s objections to the timing of the defendants’
discovery responses, the defendants acknowledge that they took more than
thirty days to respond to the plaintiff’s first two discovery requests.

As

indicated, the plaintiff challenges the Brown County defendants’ reason for
needing additional time, arguing that the documents were “readily available”
and could have been provided in one day. The Brown County defendants’
response provides the following explanation:
Plaintiff asserts that the mere availability of the produced
documents requires a finding that the County Defendants could
have produced the documents within 30 days. Plaintiff asserts
that 125 pages of documents provided by the County Defendants
“are identical to the documents” that were produced in his
criminal case, Brown County Circuit Court case number 11-CF43. (Doc No 137, p. 7, ¶ 23). Regardless of the veracity of this
statement, Plaintiff did not request a copy of the documents
produced during discovery in his criminal case.
Plaintiff
requested documents related to DTF investigation 10-0269.
Simply copying whatever documents were produced by the

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District Attorney in case number 11-CF-43 would not be
responsive to the request.
Likewise, Plaintiff complains that because several of the
documents produced were departmental policies, the availability
of these documents proves that the County Defendants could
have responded to his discovery requests faster. (Doc. No. 137, p.
6, ¶ 20). While some of the documents that were ultimately
produced were indeed accessible with relative ease, the process of
responding completely and accurately to discovery requests does
not simply end once documents have been located.
Before responding, the County Defendants and their
attorneys had to review the entirety of the investigative file
created as a result of DTF investigation 10-0269. As extensively
outlined in the County Defendants’ brief in support of summary
judgment, the file contained documentation related to six
individual undercover transactions. (See Doc. No. 124). The
County Defendants and their attorneys also had to review the
entirety of Jujuan Jones’ informant file and all DTF policies to
determine whether they were responsive to Plaintiff’s requests
and not otherwise protected by privileges. Counsel for the
County Defendants had to confirm that all information produced
did not contain any reference to any active CIs or ongoing
investigations. The County Defendants and their attorneys had
to review all audiovisual recordings created as part of DTF
investigation 10-0269 to ensure that they were responsive and
that information disclosed in them was not related to any other
ongoing investigations and/or did not identify other active CIs or
individuals whose privacy is entitled to protection such as
minors.
(ECF No. 145 at 4-5.) The plaintiff did not file a reply brief.
The Court may impose sanctions where a party fails to obey an order to
provide or permit discovery. Fed. R. Civ. P. 37(b)(2)(A). Here, the defendants
have not failed to obey a court order. Thus, the plaintiff is not entitled to
sanctions.

Any issues related to the substance of the Brown County

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defendants’ discovery responses may be raised in a motion to compel discovery
(and, as discussed herein, the Court will provide the plaintiff with an
opportunity to file a motion to compel).
Next, the plaintiff has filed a “motion for continuance, of discovery,
continuance of summary judgment dispositive motion deadline and extension
of time to reply to dispositive motion” (ECF No. 165). By this motion, the
plaintiff takes issue with the defendants’ discovery responses. He asserts that
the defendants have altered records and that his motion “exposes a police
record keeping system that allows the usage of a file system where police
reports can be hidden and information can be suppress[ed].” (ECF No. 165 at
2.)

According to the plaintiff, the defendants’ discovery responses are

incomplete and he seeks additional time so that he may file a motion to
compel discovery. The plaintiff also requests additional time to respond to the
defendants’ December 8, 2014, joint motion for summary judgment and to file
his own dispositive motion.
The Brown County defendants oppose the plaintiff’s motion as
untimely and unnecessary.

The defendants’ response set forth a helpful

timeline of the recent discovery process in this case.
Prior to the Court’s December 31, 2014 decision extending
discovery, Plaintiff had served the County Defendants with 23
Requests for Production and 25 Interrogatories. (See Doc. Nos.
85, 86). On January 12, 2015, Plaintiff served the County
Defendants with 17 Requests for Production. (Doc. No. 148). On

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February 3, 2015, Plaintiff served the County Defendants with
148 Requests to Admit, 9 of which also contained Requests to
Produce. (Doc. No. 154). On February 19, 2015, Plaintiff Served
the County Defendants with 99 Requests to Admit, 14 of which
contained Requests to Produce. (Doc. No. 157). On March 3,
2015, Plaintiff served the County Defendants with 15 Requests
to Admit and 13 Requests to Produce. (Doc. No. 164). Thus, in
just over six months, Plaintiff has served the County
Defendants with 340 discovery requests. 292 of these
requests were served since Plaintiff’s first Motion for
Continuance was granted.
The County Defendants have
responded to all requests other than those served after the close
of discovery on March 3, 2015. Thus, the County Defendants
have responded to 312 discovery requests.
(ECF No. 169 at 2) (emphasis in original).
The Brown County defendants contend that another time extension to
the discovery and motion deadlines is unwarranted because the plaintiff failed
to file his motion before the discovery deadline and because he has not shown
excusable neglect for failing to comply with the discovery deadline.

See

Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459, 464 (7th Cir. 2005); Fed.
R. Civ. P. 6(b)(1)(B). They further contend that an additional time extension
would subject them to the likelihood of hundreds of additional discovery
requests from the plaintiff. According to the Brown County defendants, an
extension of time is unsupportable, especially when the Court has already
granted previous requests for extensions. The Brown County defendants also
contend that the plaintiff’s reasons for the delay and for his request for
additional time are both meritless and insufficient to support his motion.

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Lastly, the Brown County defendants contend that the plaintiff is not acting
in good faith by the nature of some of his discovery requests which seek
admissions based on evidence that they have already submitted and that is
already on file with the Court.
The plaintiff filed a twenty-four page reply brief.1 He reiterates that he
does not seek leave for additional discovery but rather seeks a continuance to
file a motion to compel discovery.
Here, the Brown County defendants’ objections to the plaintiff’s motion
for the most part take issue with allowing him to conduct additional discovery.
However, the plaintiff makes clear that he does not wish to conduct additional
discovery but rather wants to file a motion to compel discovery. Previously,
the Court denied the plaintiff’s motion to compel discovery because the
plaintiff had not attempted to resolve his issues with the defendants prior to
filing the motion. (ECF No. 146.) The plaintiff should have an opportunity to
file a motion to compel. Thus, the Court will permit him additional time to
file a motion to compel. The Court will extend the deadlines for his summary
judgment response and to file his own dispositive motion.
The plaintiff’s motion also states that he still needs responses to his
March 3, 2015, discovery request (the defendants did not provide responses to
Along with his reply brief, the plaintiff filed a motion to file a lengthy reply
brief. The Court will grant this motion.
1

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that request because it was untimely). However, the Court will not extend the
discovery deadline and require the defendants to respond to these requests
because the plaintiff has not demonstrated good cause for filing the requests
outside of the February 27, 2015, deadline. Thus, while the plaintiff may file
a motion to compel discovery with regard to his timely discovery requests that
the defendants already answered, the Court will not require the defendants to
respond to the plaintiff’s discovery request that was untimely.
Next, the plaintiff has filed motion for leave to utilize his release
account for copies of specific materials to oppose the defendants’ motion for
summary judgment (ECF No. 172). While it is true that this Court has the
authority to order disbursements from a prisoner’s release account for
payment of an initial partial filing fee, see, e.g., Doty v. Doyle, 182 F. Supp. 2d
750, 751 (E.D. Wis. 2002), this Court lacks the authority—statutory or
otherwise—to order that a prisoner may tap into his release account to pay
current (or future) litigation costs. Cf. Wilson v. Anderson, No. 14-CV-0798,
2014 WL 3671878, at *3 (July 23, 2014).
Notwithstanding the foregoing, denying prisoners the use of their
release accounts to fund litigation costs is also prudent given that those
accounts are “restricted account[s] maintained by the [DOC] to be used upon
the prisoner’s release from custody.” Id. Permitting a prisoner to invade that
account for litigation costs could be a detriment that prisoner’s likelihood of

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success post-incarceration, see Wis. Adm. Code. § DOC 309.466 (stating that
disbursements from a prisoner’s release account are authorized “for purposes
that will aid the inmate’s reintegration into the community”). As the Seventh
Circuit has instructed, “like any other civil litigant, [a prisoner] must decide
which of [his] legal actions is important enough to fund,” Lindell v. McCallum,
352 F.3d 1107, 1111 (7th Cir. 2003); thus, if a prisoner concludes that “the
limitations on his funds prevent him from prosecuting [a] case with the full
vigor he wishes to prosecute it, he is free to choose to dismiss it voluntarily
and bring it at a later date.” Williams v. Berge, No. 02-CV-10, 2002 WL
32350026, at *8 (W.D. Wis. Apr. 30, 2002). He is not free, however, to tap into
his release account to cover those legal costs.

Accordingly, the plaintiff’s

motion will be denied.
Next, the Court notes that the plaintiff has not identified the John and
Jane Does 1-3 defendants. The plaintiff must identify these defendants by
June 15, 2015, or the Court will dismiss them.
Finally, defendant JuJuan Jones has not been served. The Court will
direct the United States Marshals Service to make further attempts to serve
him.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the plaintiff’s motion for sanctions and for
assessment of expenses (ECF No. 136) is DENIED.

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IT IS FURTHER ORDERED that the plaintiff’s motion for
continuance of discovery (ECF No. 165) is GRANTED in part to the extent
that he may file a motion to compel discovery by June 22, 2015, and
DENIED in part to the extent that the plaintiff may not seek additional
discovery and the defendants need not respond to the plaintiff’s untimely
discovery requests.

The defendants’ response to the plaintiff’s motion to

compel discovery is due by July 1, 2015, and the plaintiff may file a reply by
July 8, 2015.
IT IS FURTHER ORDERED that the plaintiff’s motions for
continuance of summary judgment deadline and motion for extension of time
to respond to defendants’ motion for summary judgment (ECF No. 165) are
GRANTED. The plaintiff’s response to the defendants’ motion for summary
judgment is due by July 29, 2015, and he may file a dispositive motion on or
before July 29, 2015.
IT IS FURTHER ORDERED that the plaintiff’s motion for leave to
utilize inmate release account (ECF No. 172) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for leave to
file excess pages (ECF No. 176) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff shall identify
defendants John and Jane Doe 1-3 by June 15, 2015, or they will be
dismissed.

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IT IS FURTHER ORDERED that the United States Marshals
Service shall make additional efforts to locate and serve defendant Jujuan
Jones. The deadline for serving defendant Jones is extended until July 6,
2015. If the Marshals need additional time, they need only notify the Court.
Dated at Milwaukee, Wisconsin, this 5th day of June, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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