Hashim v. Hamblin et al

Filing 114

ORDER signed by Judge Lynn Adelman on 10/22/16 that plaintiffs motion to compel discovery 79 is DENIED. Further ordering that plaintiffs motion for judgment as a matter of law 81 is DENIED. Further ordering that plaintiffs motion to suspend sum mary judgment pending decision on motion to compel 94 is DENIED AS MOOT. Further ordering that plaintiffs motion for extension of time 99 is GRANTED. Further ordering that plaintiffs motion to expedite decisions on motion to compel and motion f or extension of time 102 is GRANTED. Further ordering that plaintiffs motion to expedite decisions on motion to compel and motion for extension of time 105 is GRANTED. Further ordering that plaintiffs motion for preliminary injunction and tempo rary restraining order 107 is DENIED. Further ordering that plaintiffs motion to enlarge motion for preliminary injunction and temporary restraining order 109 is DENIED. Further ordering that plaintiffs response to defendants motion for summary judgment is due within thirty days of the date of this order and that plaintiffs reply in support of his motion for summary judgment is due within thirty days of the date of this order. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AKINBO JS HASHIM,
also known as, John D. Tiggs, Jr.,
Plaintiff,
v.

Case No. 14-CV-1265

PETER ERICKSEN, DAVID LONGSINE,
JAMES HILBERT, OFFICER ANTONIO CUMMINGS,
LARRY DILLENBERG, CHAD DEBROUX,
BRIAN VAN LOO, DALE COMEAU,
BEN GRIFFIN, OFFICER J. MOMMAERTS,
MICHAEL PREBERG, JUSTIN SEGERSTROM,
AND MICHAEL SCHULTZ,
Defendants.

ORDER

Plaintiff, Akinbo J.S. Hashim, also known as John D. Tiggs, Jr., is a Wisconsin
state prisoner representing himself. He is proceeding on the following claims: (1)
retaliation claim against defendant Preberg; (2) Eighth Amendment claims against the
corrections officers who denied him food and medicine when he refused to kneel in
violation of his medication restriction (i.e., Longsine, Dillenberg, DeBroux, VanLoo,
Keiler, Giffin, Mommaerts, Segerstrom, Cummings, Hilbert, Preberg, Comeau); (3)
Eighth Amendment claim against defendant Ericksen for failure to take corrective action
when notified that plaintiff was being deprived of meals; and (4) Eighth Amendment
claims against defendants Longsine and Schultz for forcing plaintiff to eat foods such as

mashed potatoes and soup without eating utensils. Plaintiff has filed several motions,
which will be addressed herein. 1
Plaintiff’s Motion to Compel Discovery (Dkt. No. 79)
Plaintiff has filed a motion for an order compelling defendants to answer his First
Request for Admissions, First Request for Production of Documents and Interrogatories,
Second Set of Interrogatories, and Second Request for Admissions.

Defendants

oppose the motion, arguing that they have substantively answered many of the requests
and that plaintiff’s disagreement with defendants’ answers are not the proper subject of
a motion to compel. (Dkt. No. 93 at 1.) Defendants also contend that other discovery
requests were not answered, or the answer was limited, based on valid objections. (Id.
at 1-2.)

I will reproduce plaintiff’s relevant discovery requests, and defendants’

responses to the requests, here.
First Request for Admission 3: Defendants, consistent with Wis.
Adm. Code § DOC 303.85(2), the department may keep conduct reports
which have been dismissed or in which the prisoner was found not guilty
for statistical purposes. Id. (Register No. 569, May 2003). Please admit
that Correctional Officer Preberg wrote and Plaintiff was subsequently
issued Conduct Reprot 2075023 charging Plaintiff with threats, disruptive
conduct and disrespect in violation of Wis. Adm. Code §§ DOC 303.28
and DOC 303.25. (Register No. 569, May 2003). Defendant, please
produce Conduct Report 2075023 and the entire disciplinary record,
and/or other relevant and pertinent documents created and generated
concerning Conduct Report 2075023 to them absolute end tendered and
submitted for the official disciplinary record by prison staff, the prisoner,
witnesses or otherwise.
RESPONSE NO. 3: Counsel for defendants OBJECTS to this
request on the ground that it is a compound request and is not a proper
request to admit pursuant to Rule 36 of the Federal Rules of Civil
Procedure. Notwithstanding and without waiving said objection, ADMIT
that DOC 303.85 (May 2003 version) indicates that the department may
1

The parties have filed cross-motions for summary judgment. These motions are not
yet fully briefed, and will be addressed in a subsequent order.
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keep conduct reports that have been dismissed or in which the inmate
was found not guilty for statistical purposes and security reasons. Green
Bay Correctional Institution retains copies of dismissed conduct reports
only for one year and no longer has this conduct report. Upon inquiry into
the information known or readily available to the defendants, defendants
lack sufficient knowledge with which to admit or deny the remainder of this
request because Conduct Report #2075023 is not contained in plaintiff’s
legal file and does not appear on his DOC-120 ID Card.
First Request for Admission 4: Defendants, please admit that on
or about March 29, 2010, or approximately eleven days after Conduct
Report 2075023 had been issued to Plaintiff, defendant, Michael Schultz
was the presiding supervisor at the disciplinary hearing committee for that
conduct report and Plaintiff was found and adjudged Not Guilty of the
disciplinary infractions charged in Conduct Report 2075023.
RESPONSE 4: ADMIT that Conduct Report #2075023 was
dismissed; however, upon inquiry into the information known or readily
available to the defendants, defendants lack sufficient knowledge with
which to admit or deny the remainder of this request because Conduct
Report #2075023 is not contained in plaintiff’s legal file and does not
appear on his DOC-120 ID Card.
(Dkt. No. 80-1 at 14-15.) Plaintiff disagrees with defendants’ assertion that they did not
retain the conduct report, as well as defendants’ lack of knowledge as to whether
Schultz was the presiding supervisor at the disciplinary hearing committee. However,
plaintiff’s disagreement with defendants’ response is not a proper basis for a motion to
compel.
First Request for Admission 9: Defendants, please admit that
Defendant Ericksen’s discretion to impose security precautions against
Plaintiff while at GBCI in the segregation building does not include, and
indeed, could not include the property issued and received by Plaintiff at
the Grant County Jail.
RESPONSE 9: DENY on the grounds that plaintiff would not be
allowed to retain any property issued to him from the Grant County Jail
upon his return to Green Bay Correctional Institution.
(Dkt. No. 80-1 at 17.) Plaintiff contends that defendants’ response twists his request to
purport that plaintiff would not have been permitted to retain property items issued at the
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jail.

(Dkt. No. 79 at 6.) According to plaintiff, defendant Ericksen imposed security

precautions against him in an unconstitutional manner. He requests that the court order
defendants to admit that “Ericksen did not possess the discretion and authority to
extend to the Grant County Jail the security precautions imposed at GBCI and and by
extension, Hashim can’t have violated prison rules at GBCI when returning with pens
issued at the county jail[.]” Id. However, I find that defendants’ response answers
plaintiff’s discovery request. Plaintiff’s disagreement with the manner in which they
responded is not a proper basis for a motion to compel.
First Request for Admission 10: Defendants, please admit that
following Conduct Report 2075054 written by Defendant DeBroux against
Plaintiff for purportedly for refusing to return a meal tray [sic], defendants
imposed a three-day “bag-meal” security precaution.
RESPONSE NO. 10: DENY.
(Dkt. No. 80-1 at 17.) Plaintiff disagrees with defendants’ denial of this admissions
requests. (Dkt. No. 79 at 7.)

However, defendants responded to the request and

plaintiff’s disagreement with it is not the proper subject of a motion to compel.
First Set of Interrogatories, No. 6: Defendants, please identify
and describe any correspondence that the Division of Adult Institutions,
the security suite at GBCI or Defendants Schultz and/or Ericksen received
from plaintiff and/or private citizens demonstrating the allegations included
in Conduct Report 2075023, Plaintiff’s ailment or injuries preventing
kneeling and the defendants’ decisions to deny Plaintiff any meals, mails
and/or medications.
Defendants, please produce any and all
correspondence that the Division of Adult Institutions, the security suite at
GBCI, or Defendants Schultz and/or Ericksen. Defendants, please
produce any such correspondences that fits this characterization received
and their responses during the period from March, 2010 through July 1,
2010. Suffice it to note that this is not a compound request; the
correspondences would have addressed the false allegation in the
conduct report, the security precautions, Plaintiff’s medical restriction and
the likes.
RESPONSE: Counsel for defendants OBJECTS to this request on
the grounds that it is incomprehensible, vague, ambiguous, and calls for
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speculation on behalf of the defendants in order to respond.
Notwithstanding said objection, GBCI did not locate any correspondence
in either the Security Director’s Office or Captain Schultz’s office regarding
plaintiff.
(Dkt. No. 80-1 at 30-31.) Plaintiff contends that the court should compel defendants to
enlarge their search, as specified in his discovery request.

However, defendants

searched for correspondence and did not find any. They reasonably responded to this
discovery request.
First Set of Interrogatories, No. 8: Defendants, please identify
and describe the dates, times and correctional staff performing,
conducting and ordering the cell searches and strip searches of Plaintiff
from the period of March 18, 2010 through June 26, 2010, while assigned
to GBCI in the Program Segregation Building. Defendants, please
produce any written documentation that exists that substantiates the
position articulation under oath in response to this interrogatory.
RESPONSE: Counsel for defendants OBJECTS to this request on
the grounds that it is overly broad and burdensome. Counsel for
defendants further OBJECTS because Plaintiff was not permitted to
proceed on his claims regarding the cell and strip searches. See ECF No.
61, p. 4.
(Dkt. No. 80-1 at 31.) Plaintiff contends that the court should compel defendants to
answer this interrogatory because the claims included in this lawsuit include the
unconstitutional application of security precautions. However, plaintiff was not permitted
to proceed on his claim related to cell and strip searches.

Thus, the defendants

appropriately objected to this request.
First Set of Interrogatories, No. 9: Defendants, please identify
and describe the number of prisoners assigned at GBCI in the Program
Segregation Building excluding the prisoners’ names, identification
numbers or other information that would tend to reveal the identity of the
prisoner who were assigned to any security precaution for a five-year
period from March, 2010 through March, 2015. This interrogatory should
include but be not limited to correctional staff name imposing the
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precautions, what those precautions were, the duration those precautions
were sustained and perpetuated.
RESPONSE: Counsel for defendants OBJECTS to this request on
the grounds that it is overly broad and burdensome. Defendants would
have to search the records of every inmate at GBCI during this five-year
period to determine who was on a security precaution during that time.
Moreover, counsel for defendants OBJECTS as this Request is not likely
to lead to the discovery of admissible evidence.
(Dkt. No. 80-1 at 32-33.) Plaintiff disagrees with the defendants’ characterization of this
request as overly broad. However, plaintiff acknowledges that answering the request
could necessitate reviewing hundreds of files involving non-party inmates. Plaintiff does
not respond to the contention that the information sought was irrelevant. Plaintiff also
contends that defendants waived their objection because their response was untimely.
But defendants notified plaintiff that they would need a two-week time extension. This
time extension was not unreasonable and plaintiff has not shown that he was prejudiced
by the delay. Defendants adequately responded to this request.
First Set of Interrogatories, No. 14: Defendants, please identify,
describe and produce the “bag meal” security precaution imposed against
Plaintiff discussed in the amended complaint at para. 123 to include the
name of the person or persons imposing it, the reason for its imposition
and the menu items provided in the bag meals during that period by
kitchen at GBCI in the program segregation building predicated on
Conduct Report 2075054 written by Defendant DeBroux.
RESPONSE: See the bag meal security restriction attached hereto
as Bates No. 257. GBCI does not have menus from 2010 responsive to
this request.
(Dkt. No. 80-1 at 35.) Plaintiff takes issue with the fact that defendants did not preserve
the menu from 2010. He contends that the court should enter an order indicating the
defendants failed to preserve the menu for the items served for three days in the bag
meals constitutes spoliation of evidence. However, defendants have responded to this
request. They do not have the menu.
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Second Set of Interrogatories, No. 21: Defendants, please
identify and describe the purpose or intended purpose of the 10mg
Lisinopril and 25mg Hydrochlorothiazide prescribed to plaintiff by GBCI
physician, Dr. Heidorn, or any other medical personnel, during March –
June, 2010, while a state prisoner assigned at GBCI in the program
segregation building.
RESPONSE: Counsel for defendants OBJECTS to this
interrogatory on the grounds that none of the defendants are medical
professionals and it would require speculation on their part in order to
respond.
Second Set of Interrogatories, No. 22: Defendants, based upon
reasonable inquiry, please identify and describe hypertension in the health
risk associated with hypertension especially with persons of color, AfricanAmerican, or African descent. Defendants, you may use the assistance of
the physician at GBCI, the internet or whatever other resource available to
you to answer this interrogatory.
RESPONSE: Counsel for defendants OBJECTS to this
interrogatory on the grounds that none of the defendants are medical
professionals and it would require speculation on their part in order to
respond. Plaintiff may request information about his medical conditions by
submitting a Health Service Request to the Health Services Unit at his
current institution.
(Dkt. No. 80-1 at 51-52.) Plaintiff contends that the court should compel defendants to
answer these interrogatories because defendants are responsible for medication
distribution and, therefore, should have some form of working knowledge of the
medications that they are responsible for. However, defendants properly objected to
these requests. They are not medical professionals and are not required to speculate
as to why plaintiff was prescribed certain medication, or general health risks of African
American persons. See, e.g., Davis v. G.N. Morg. Corp., 396 F.3d 869, 885-86 (7th Cir.
2005). Based on the foregoing, the court will deny plaintiff’s motion to compel.
Plaintiff’s Motion for Judgment as a Matter of Law (Doc. 81)
Plaintiff has filed a motion for judgment as a matter of law based on the
defendants’ alleged spoliation of evidence. He contends that defendants failed to retain
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a copy of documents related to Conduct Report 2075023 and a copy of the menus
showing what meals he was served for a three-day period in March 2010. According to
plaintiff, defendants produced the disciplinary record for another conduct report that had
been dismissed. He wonders if Conduct Report 2075023 was not preserved because it
would support plaintiff’s claims against Preberg. Plaintiff also asserts that there is “no
reason” why the menu at issue was not preserved.
Defendants oppose the motion.

First, they point out that plaintiff has not

suffered any prejudice because he already has his own copy of Conduct Report
2075023, which he filed the court and that, with regard to the meals, plaintiff has
personal knowledge of what meals he was served in the relevant three day period.
Second, defendants assert that there is no evidence that Green Bay Correctional
Institution staff destroyed the evidence with an intent to deprive their use by plaintiff in
this litigation. Rather, Green Bay did not retain the conduct report pursuant to its own
policies.

Third, there is no evidence that any named defendant had any personal

involvement in the non-retention of the records.
Here, there is no evidence that any defendant intentionally destroyed the
evidence in bad faith. Accordingly, the court will deny plaintiff’s motion for sanctions.
See Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008); Fed. R. Civ. P.
37(e)(2).
Plaintiff’s Motion to Suspend Summary Judgment,
Motion for Extension of Time, Motions to Expedite (Doc. 94, 99, 102, 105)
On August 2, 2016, plaintiff filed a motion to suspend defendants’ motion for
summary judgment pending resolution of plaintiff’s motion to compel discovery.
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Defendants oppose the motion. Defendants filed their summary judgment motion on
July 29, 2016, and plaintiff has not yet responded to the motion. This order resolves
plaintiff’s motion to compel. The court will direct plaintiff to respond to defendants’
summary judgment motion within thirty days of the date of this order. Accordingly,
plaintiff’s motion to suspend the motion pending resolution of his motion to compel is
moot.
On August 10, 2016, plaintiff filed a motion for an extension of time to file his
response to defendants’ motion for summary judgment as well as his reply in support of
his own motion for summary judgment.

Plaintiff seeks thirty days after the court

resolves his discovery-related motions. Defendants did not respond to this motion. I
have already determined that plaintiff may have thirty days from the date of this order to
respond to defendants’ motion for summary judgment. Upon due consideration, he may
also have an additional thirty days to file his reply.
On August 23, 2016, plaintiff a motion for expeditious decisions of plaintiff’s
motion for extension of time to file reply and responses to summary judgment and
plaintiff’s motion to compel discovery answers from defendants. He refiled the motion
on August 29, 2016. This order resolves the motions that plaintiff requests the court to
resolve. Thus, I will grant plaintiff’s motions for expeditious decisions.
Plaintiff’s Motion for Preliminary Injunction/Temporary Restraining Order and Motion to
Enlarge Motion for Preliminary Injunction/Temporary Restraining Order (Doc. 107, 109)
Plaintiff has filed a motion for preliminary injunction/temporary restraining order
and a motion to enlarge his motion for preliminary injunction/temporary restraining
order. In the first motion, plaintiff requests a hearing for a temporary restraining order
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and preliminary injunction enjoining correctional officers at Wisconsin Secure Program
Facility (WSPF) to return approximately 264 pages of legal work allegedly erroneously
taken from plaintiff’s cell on August 30, 2016, and prohibiting any future confiscations of
legal documents without leave of the court. According to plaintiff, Correctional Officer
Bliss decided to search plaintiff’s cell and confiscated the 264 legal documents. Later,
Officer Morris confiscated 2,500 legal documents. Plaintiff helps other inmates with
their legal work and many of the documents confiscated belonged to other inmates.
The officers, who are not defendants in this case, allegedly relied on a November 2015,
Division of Adult Institutions policy that requires inmates performing legal services for
other inmates to retain the envelopes that the legal documents were received in.
Plaintiff alleges that the problem is that several, if not all, of the cases he provided legal
services on pre-date the November 2015 enactment of the policy. Plaintiff also alleges
that Bliss and Morris, who are not educated or trained in the law, did not check the
names on the documents but mixed up the case files and “stole them” because
plaintiff’s name was not on them. (Dkt. No. 107 at 5.) Plaintiff contends that Bliss and
Morris’s intentional confiscation of over 2,500 pages of legal documents violates his
right to equal protection (class-of-one) and his right of access to the courts. Included
among those documents were the motions, pleadings, and exhibits belonging to this
case.

Plaintiff states that he cannot complete his reply and response to the pending

summary judgment and cross-summary judgment motions without his materials.
In plaintiff’s second motion, he seeks a temporary restraining order and
preliminary injunction that forbids WSPF from enforcing its proscription against inmates
in segregation from access to inmates’ “EDNET” account and enjoining WSPF to permit
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plaintiff access to that account containing case files from this case.

According to

plaintiff, WSPF is denying him access to his EDNET account because he is in
segregation. That account contains the unfinished case file pleadings in this case.
Defendants oppose plaintiff’s motion.

Defendants submit a declaration from

WSPF Institution Complaint Examiner Ellen Ray establishing that the legal work taken
by the officers on August 20, 2016, did not belong to plaintiff and is not associated with
this case. (Ray Decl. ¶¶ 5-10; Dkt. No. 112.) Ms. Ray’s declaration also establishes that
the legal work taken by the officers on August 20, 2016, belonged to other inmates and
that plaintiff failed to comply with Division of Adult Institutions Policy 309.15.01, which
states, “Inmates shall retain all envelopes associated with any legal correspondence
sent to them from another inmate.” (Ray Decl., ¶¶ 7-9.) Finally, Ms. Ray’s declaration
also establishes that plaintiff is not being denied access to his legal materials for this
case. (Ray Decl., ¶¶ 10, 14.) Ms. Ray avers that on September 9, 2016, she looked
through the box of materials confiscated from plaintiff’s cell, and none of them were for
the present case, or for any of plaintiff’s cases. (Ray Decl. ¶ 9.) With regard to the
EDNET 2 allegations, Ms. Ray avers that since plaintiff is currently in a Restrictive
Housing Unit, he cannot access a computer with EDNET. (Ray Dec. ¶ 12.) However,
inmates may request printed copies of their legal work from EDNET.

(Id.)

On

September 20, 2016, Ms. Ray printed out forty-five pages of documents from plaintiff’s
EDNET account regarding the above-referenced lawsuit and delivered them to this cell.
(Ray Dec. ¶ 14.)
2

EDNET is a Microsoft Word account that allows inmates to type their own brief and
legal work. (Ray Dec. ¶ 11.)
11

In his reply brief, plaintiff focuses on Officers Bliss and Morris’s actions in which
they allegedly mixed up his legal files. (Dkt. No. 113.) Plaintiff does not deny that he
currently has all of his legal papers from this case.
To obtain preliminary injunctive relief, whether through a temporary restraining
order or preliminary injunction, the plaintiff must show that (1) his underlying case has
some likelihood of success on the merits, (2) no adequate remedy at law exists, and (3)
he will suffer irreparable harm without the injunction. Wood v. Buss, 496 F.3d 620, 622
(7th Cir. 2007). If those three factors are shown, the Court must then balance the harm
to each party and to the public interest from granting or denying the injunction. Id.;
Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper v. Salazar, 196 F.3d 809,
813 (7th Cir. 1999).
Here, plaintiff seeks relief for two non-defendant officers’ confiscation of legal
materials. It appears that plaintiff has all of his legal materials in this case. The court
cannot grant plaintiff the injunctive relief he seeks, which is the return of other inmates’
legal materials. See Hashim v. Hamblin, Case No. 14-cv-1265, 2016 WL 297465 at *4
(E.D. Wis. January 22, 2016) (“Plaintiff’s requests for injunctive relief are not connected
to the claims he is proceeding on in this case. He may not seek relief in connection with
these claims in this lawsuit.”) (citations omitted). If the plaintiff believes that he has
claims against employees at the Wisconsin Secure Program Facility based on their
handling of legal materials, he may file a separate lawsuit against those individuals. See
Hashim, 2015 WL 1840434 at *3 (quoting George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007) (“Unrelated claims against different defendants belong in different suits.”)

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Therefore, I will deny plaintiff’s motion for a preliminary injunction and temporary
restraining order as well as his motion to enlarge.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that plaintiff’s motion to compel
discovery (Docket # 79) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for judgment as a matter of law
(Docket # 81) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to suspend summary judgment
pending decision on motion to compel (Docket # 94) is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time (Docket #
99) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to expedite decisions on
motion to compel and motion for extension of time (Docket # 102) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to expedite decisions on
motion to compel and motion for extension of time (Docket # 105) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for preliminary injunction and
temporary restraining order (Docket # 107) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to enlarge motion for
preliminary injunction and temporary restraining order (Docket # 109) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s response to defendants’ motion for
summary judgment is due within thirty days of the date of this order.
IT IS FURTHER ORDERED that plaintiff’s reply in support of his motion for
summary judgment is due within thirty days of the date of this order.
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Dated at Milwaukee, Wisconsin, this 22nd day of October, 2016.
BY THE COURT:
s/ Lynn Adelman
______________________________
LYNN ADELMAN
United States District Judge

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