Howard et al v. Walker et al

Filing 75

ORDER signed by Judge Pamela Pepper on 8/4/2017. 72 Defendants' MOTION to Strike Plaintiff's Response to Defendants' Motion for Summary Judgment GRANTED IN PART and DENIED IN PART. Plaintiff's Proposed Findings of Fact [ 68] STRICKEN. Plaintiff may file no more than 100 proposed findings of fact by end of day 9/1/2017. Defendants may file summary judgment reply materials by end of day 9/11/2017. 72 Defendants' MOTION to Stay Defendants' Deadline to File Reply Materials DENIED as moot. (cc: all counsel, via mail to Joshua Howard at Waupun Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOSHUA HOWARD,
Plaintiff,
v.

Case No. 15-cv-557-pp

BELINDA SCHRUBBE,
TODD CALLISTER, AND
JOHN O’DONOVAN,
Defendants.
______________________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO STRIKE PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 72); STRIKING PLAINTIFF’S
PROPOSED FINDINGS OF FACT (DKT. NO. 68); ORDERING THAT
PLAINTIFF MAY FILE PROPOSED FINDINGS OF FACT AS DESCRIBED IN
THIS ORDER BY SEPTEMBER 1, 2017; ORDERING THAT DEFENDANTS
MAY FILE SUMMARY JUDGMENT REPLY MATERIALS BY SEPTEMBER 11,
2017; AND DENYING AS MOOT DEFENDANTS’ MOTION TO STAY
DEADLINE TO FILE REPLY MATERIALS (DKT. NO. 72)
______________________________________________________________________________
On March 1, 2017, the defendants filed a motion for summary judgment.
Dkt. No. 55. The plaintiff filed a response on May 23, 2017, dkt. no. 66, and he
filed a supplemental declaration on May 30, 2017, dkt. no. 71. The defendants
have filed a motion to strike the plaintiff’s response to their motion for
summary judgment, and to stay the defendants’ deadline to file reply materials.
Dkt. No. 72.
I.

THE PLAINTIFF’S RESPONSE
The plaintiff’s May 23, 2017 response to the defendants’ motion for

summary judgment consists of a brief, objections to the defendants’ proposed
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findings of fact, proposed findings of fact, a declaration, and about 850 pages
of exhibits.1 Dkt. Nos. 66-69. On May 30, 2017, the plaintiff filed a letter
regarding modifications to his medical record exhibits, dkt. no. 70, along with a
supplemental declaration in support of his motion for summary judgment, dkt.
no. 71. The plaintiff’s letter states in relevant part:
On 5.18, I sent several hundred pages to the library to be e-filed to
the Court and on 5.23 I received copies of the originals I had
placed in the institution mailbox. When I spoke to the librarian on
5.26 he informed me that WCI Litigation Coordinator Pusich had
taken the original documents because I had altered some of the
medical records that I had submitted to the Court. While I
assumed that any modifications I made to my exhibits were
obvious and would not be construed as original medical
documents I am submitting a supplemental declaration to clarify
matters.
Dkt. No. 70. The plaintiff’s supplemental declaration explains the alterations he
made to his medical record exhibits. Dkt. No. 71.
II.

THE DEFENDANTS’ MOTION TO STRIKE
On June 2, 2017, the defendants filed their motion to strike. Dkt. No. 72.

The defendants stated two grounds in support of their motion. First, they
stated that the plaintiff’s summary judgment response contains 200 additional
proposed findings of fact, in violation of Civil Local Rule 56(b)(2)(B)(ii), which

On March 21, 2017, the court granted the plaintiff’s motion for extension of
time until May 15, 2017 to respond to the defendants’ motion for summary
judgment. Dkt. No. 63. The plaintiff filed a cover letter along with his summary
judgment response, stating that he “underestimated the total size of my filing
which ended up being close to (8) inches and I found that I did not have
envelopes large enough to send it to the library at one time . . . .” Dkt. No. 66-1.
The plaintiff asks that the court find good cause for the three-day delay. Id. The
defendants do not challenge the tardiness of the plaintiff’s response, and the
court finds good cause to accept the materials.
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sets a limit of 100 proposed facts for non-movants. Dkt. No. 72 at 2. Second,
the defendants stated:
4. Plaintiff submitted a supplemental declaration on May 30. In
that, Plaintiff admits that he “created” over 70 pages of exhibits for
his declaration by taking copies of DOC records and altering them
by “adding relevant information from other sources.” Specifically,
Plaintiff admits that he submitted the following DOC medical
records with additional information added by the Plaintiff via
typewriter:
•
•
•
•
•
•
•

He
He
He
He
He
He
He

admits
admits
admits
admits
admits
admits
admits

that
that
that
that
that
that
that

he
he
he
he
he
he
he

altered
altered
altered
altered
altered
altered
altered

pages 2-13 of Exhibit 2009
pages 2-13 of Exhibit 2010
pages 2-13 of Exhibit 2011
pages 2-13 of Exhibit 2012
pages 2-12 of Exhibit 2013
pages 3-10 & 14 of Exhibit 2014
10 pages of Exhibit 2015

5. Plaintiff’s exhibits that alter DOC medical records by “adding
relevant information from other sources” are not authentic and,
therefore, are inadmissible and run afoul of Fed. R. Civ. Pro. 56(c).
Dkt. No. 72 at 2-3.
The defendants request that the court strike the plaintiff’s summary
judgment response based on his submission of double the amount of permitted
proposed findings of fact, as well as his admission that he altered Wisconsin
Department of Corrections medical records for seventy pages of exhibits. Id. at
3. The defendants also request a stay of the reply deadline. Id.
The plaintiff filed a response to the defendants’ motion, in which he
states that he voluntarily withdraws proposed facts 24-26, 29-31, 34-36, 47,
and 68. Dkt. No. 73 at 2. He requests that the court allow the remaining 189
proposed facts, considering that the allegations in the complaint cover a period
of several years and almost eighty individual complaints. Id.
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With regard to the authenticity of his exhibits, the plaintiff states that
the defendants do not allege that he added incorrect dates to the exhibits, or
that he submitted fraudulent or doctored documents. Id. According to the
plaintiff, he took “med logs” that were already a part of the record, arranged
them in order and typed in the relevant refill dates that were listed on the
medication profile (which also is a part of the record). Id. The plaintiff asserts
that “the med log exhibits simply conveniently display information already
available in the record which is relevant to a highly contested issue: were the
lapses of medication the result of delayed refills or officer error.” Id. The
plaintiff contends that the fact that he filed a voluminous response a few days
late, which included exhibits that make it easier for the court to discern
whether a controversy exists, does not justify striking his response. Id.
III.

DISCUSSION
Civil Local Rule 56 provides that a non-moving party may not file more

than 100 separately-numbered statements of additional facts in response to
the moving party’s motion for summary judgment. Civil L.R. 56(b)(2)(B)(ii) (E.D.
Wis.). The Local Rules require prior leave of the court to increase the number of
statements of additional fact. Civil L.R. 56(b)(7) (E.D. Wis.). “A party may not
file any proposed statements of … additional fact in excess of the limit set forth
in this rule unless the Court previously has granted leave upon a showing that
an increase is warranted.” Id.
The plaintiff did not seek prior leave of the court before filing his 200
additional proposed findings of fact. Moreover, the plaintiff has not shown that
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these additional proposed findings of fact are warranted. The court will strike
the plaintiff’s facts, and allow him time to file up to 100 proposed facts, in
compliance with the Local Rules.
With regard to the altered medical records, instead of striking the
plaintiff’s exhibits, the court will allow the defendants to file objections to any
of the plaintiff’s materials they believe he has not properly authenticated. See
Fed. R. Civ. P. 56(c)(2). The court will deny the portion of the motion to strike
that seeks to strike the plaintiff’s exhibits or his supplemental declaration.
Instead of staying the defendants’ deadline to file their reply, the court
will set a deadline for the defendants to file their summary judgment reply.
Therefore, the court will deny as moot the defendants’ motion to stay.
Finally, in his response to the defendants’ motion to strike, the plaintiff
asked that the court order the defendants to return his sensitive legal
materials. Dkt. No. 73 at 3. The court will deny this request as moot, because
on June 20, 2017, the court received a letter from the plaintiff, stating that the
defendants returned the documents to him. Dkt. No. 74.
IV.

CONCLUSION
The court GRANTS IN PART AND DENIES IN PART the defendants’

motion to strike plaintiff’s response to defendants’ motion for summary
judgment. Dkt. No. 72.
The court STRIKES the plaintiff’s proposed findings of fact. Dkt. No. 68.

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The court ORDERS that the plaintiff may file no more than 100 proposed
findings of fact in time for the court to receive them on or before the end of the
day on September 1, 2017.
The court ORDERS that the defendants may file summary judgment
reply materials by the end of the day on September 11, 2017.
The court DENIES AS MOOT the defendants’ motion to stay defendants’
deadline to file reply materials. Dkt. No. 72.
Dated in Milwaukee, Wisconsin this 4th day of August, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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