Jackson v. Slome et al

Filing 53

ORDER signed by Judge Pamela Pepper on 2/28/2017 DENYING 39 Plaintiff's Motion for Summary Judgment; DENYING 42 Plaintiff's Motion to Exclude Declaration; DENYING 51 Plaintiff's Motion for Sanctions; GRANTING 28 Defendants' Motion for Summary Judgment; and DISMISSING case. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DEBRADRE D. JACKSON,
Plaintiff,
Case No. 15-cv-771-pp
v.
SCOTT SLOME,
JEREMIAH CURTIS, AND
KIMBERLY GRABA,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING THE PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 39), DENYING THE PLAINTIFF’S
MOTION TO EXCLUDE THE DECLARATION OF JACKIE K. RIGHTER
(DKT. NO. 42), DENYING PLAINTIFF’S MOTION FOR SANCTIONS
(DKT. NO. 51), GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 28), AND DISMISSING CASE
______________________________________________________________________________
Plaintiff DeBradre Jackson, a Wisconsin state prisoner who is
representing himself, filed a case under 42 U.S.C §1983, alleging that the
defendants violated his civil rights at the Racine Correctional Institution. Dkt.
No. 1. The court screened the complaint under 28 U.S.C. §1915A, and allowed
the plaintiff to proceed with three claims: (1) a First Amendment retaliation
claim against Scott Slome and Kimberly Graba; (2) a failure-to-intervene claim
against Jeremiah Curtis and Thomas Wiegand; and (3) a state-law defamation
claim against Scott Slome. Dkt. No. 10. The court did not allow the plaintiff to
proceed against Graba for failure to make copies for him or for defamation, did
not allow him to proceed against various defendants on theories of supervisory

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liability or due process, did not allow him to proceed on a class of one equal
protection claim, and did not allow him to proceed on his denial-of-access-tocourts claim.
On March 14, 2016, the court issued a scheduling order. Dkt. No. 16.
Less than a week later, on March 18, 2016, the plaintiff filed a motion for
summary judgment, which the court denied without prejudice. Dkt. Nos. 19,
25. The defendants timely filed their motion for summary judgment on July 15,
2016, dkt. no. 28; the plaintiff filed his second motion for summary judgment
on July 18, 2016, dkt. no. 39; and the plaintiff filed a motion to exclude the
declaration of Jackie K. Righter on August 15, 2016, dkt. no. 42. Two months
later, the plaintiff filed a motion for sanctions, dkt. no. 51, and he voluntarily
dismissed his failure-to-intervene claim against Thomas Wiegand two months
after that, dkt. no. 52. This decision and order resolves the pending motions,
and dismisses the case.
I.

FACTS
The court takes facts from the “Defendants Proposed Findings of Fact,”

Dkt. No. 33, and the “Defendants’ Reply to Plaintiff’s Response to Defendants’
Proposed Findings of Facts,” Dkt. No. 50. Where the plaintiff objected to the
defendants’ proposed findings of fact without citing evidentiary material, the
court deems those facts admitted for the purpose of deciding summary
judgment. Civ. L. R. 56(b)(4). The court takes additional facts from the
plaintiff’s “Statement of Undisputed Facts,” Dkt. No. 41, the plaintiff’s sworn
declaration, Dkt. No. 45, and his sworn complaint, Dkt. No. 1, which, at the
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summary judgment stage, the court construes as an affidavit. Ford v. Wilson,
90 F.3d 245, 246-47 (7th Cir. 1996).
A.

Parties

At the time of the events in the complaint, the plaintiff was an inmate at
Racine Correctional Institution (“RCI”). Dkt. No. 33, ¶ 1. The defendants were
employees at RCI: Kimberly Graba was a librarian (id., ¶ 2); Jeremiah Curtis
was a Lieutenant (id., ¶ 3); Thomas Wiegand was a Captain (id., ¶ 4); and Scott
Slome was a Correctional Sergeant (id., ¶ 5).
B.

The Plaintiff’s Allegations

On March 4, 2015, the plaintiff went to the prison library and asked
Graba to notarize a document entitled “Affidavit of Sovereign Status.” Id., ¶ 12.
After looking at the document, Graba (who was the librarian) called the
security office, because she suspected that the “sovereign citizenship
movement” 1 was a “security threat group” whose documents were
“contraband” at the prison. Id., ¶¶ 13-14. Graba spoke with Lieutenant Ziem
(not a defendant in the case), and Ziem told her to confiscate the document,

 According to the defendants, “sovereign citizens” are individuals who are antigovernment, who believe that they are separate from the United States even
though they physically reside in the country. Dkt. No. 33, ¶¶ 31-34. Some
sovereign citizens take specific steps to renounce their United States
citizenship. Id. They file lawsuits, liens, and other legal documents against
government officials in an attempt to obstruct government authority. Id. Some
sovereign citizens believe that they are the “Straw-Man,” a person who never
agreed to the authority of the federal government. Id., ¶¶ 61-62. Thus, they file
various legal documents to release themselves from government control,
thereby making themselves a “sovereign citizen.” Id. They indicate that the FBI
uses the term “Sovereign Citizen” to refer to individuals who declare their
sovereignty from the United States by overtly filing fraudulent documents or
committing other criminal activity.” Id., ¶105. 
1

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submit it to the security department as contraband, and file an incident report
stating what happened. Id., ¶ 14.
Graba went back to the library and told the plaintiff that she was taking
the document from him. Id., ¶15. She then asked the plaintiff to show her the
other two documents that he had brought with him for notarization. Id., ¶16.
The two other documents were identical to the first document, and were
entitled “Affidavit of Sovereign Status.” Id., ¶17. Graba took all three
documents from the plaintiff and completed an incident report. Id., ¶¶18-20,
24. She gave the documents to the security staff, and had no further
involvement with the plaintiff’s claims. Id., ¶26.
On March 6, 2015, prison staff forwarded all three documents to Slome
for review. Id., ¶ 27-29. Slome reviewed the documents and concluded that the
layouts (allegedly in affidavit form), along with the plaintiff’s name on the
documents, were consistent with the how individuals usually declare their
status as “sovereign citizens.” Id., ¶ 30. As a result, Slome issued Conduct
Report #2641802 for “group resistance and petitions,” “enterprise and fraud,”
and “possession of contraband,” stating that he believed that the plaintiff was
beginning the process of renouncing his United States citizenship. Id., ¶¶ 36,
52. Wiegand (who no longer is a defendant in the case) delivered a copy of the
conduct report, along with other documents, to the plaintiff on March 11,
2015. Id., ¶38.
On an unknown date after March 11, 2015, a hearing officer dismissed
Conduct Report #2641802 based on “charges not supported.” Dkt. No. 41 at 2,
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¶8. On March 23, 2015, Wiegand returned the confiscated documents to the
plaintiff. Id.; Dkt. No 43 at 3.
On another unknown date before March 26, 2015, the plaintiff moved to
Walworth Unit. Dkt. No. 33, ¶ 55. On March 26, 2015, Slome conducted a
search of the plaintiff’s cell. Id., ¶¶ 54-55. According to Slome, whenever an
inmate moves to Walworth Unit, he conducts a “random” cell search within the
first couple days to prevent introduction of contraband into the unit. Dkt. No.
38, ¶ 42. According to the plaintiff, Slome conducted the cell search in
“retaliation” for Conduct Report #2641802, which the hearing officer had
dismissed. Dkt. No. 45, ¶ 15.
During the cell search, Slome found various papers associated with the
sovereign citizen movement. Dkt. No. 50, ¶ 58. Slome found one document that
appeared to be a contract in which the state was “principal,” the plaintiff was
“executor,” and the contract “insure[d] the Executor as surety binding together
jointly on BID BOND in sum of $500,000 a year.” Id., ¶ 59. Slome found a
letter from the Office of Corporation Counsel of Milwaukee County sent to the
plaintiff in response to the “UCC Financing Statement and UCC Financing
Statement and Amendment Addendum” that the plaintiff had filed with
Register of Deeds. Id., ¶ 60. The letter stated that the plaintiff may be subject
to civil and felony “slander of title” charges if he continued to make frivolous
filings with the Register of Deeds. Id., ¶ 101. Slome found a form labeled IRS
W-6BEN that typically is used by non-U.S. citizens to claim a reduced tax
rate/exemption. Id., ¶ 64. Finally, Slome also found other documents used by
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sovereign citizens, such as financial chargeback paper work, court bonds,
security bonds, etc. Id., ¶ 65. In total, Slome confiscated 111 pages of
documents from the plaintiff’s cell. Dkt. No. 46 at 4.
Slome completed a “confiscation report” and gave it to the plaintiff. Dkt.
No. 33, ¶ 69. The plaintiff then stated, “You don’t know anything about
sovereigns if that’s all you took.” Id. Slome then issued Conduct Report
#2647851 for “group resistance and petitions” and “unauthorized use of mail.”
Id., ¶ 70. After he issued the conduct report, Slome had no further involvement
with the plaintiff’s claims. Id., ¶ 78.
Curtis conducted a review of the conduct report, and concluded that the
allegations created “a risk of serious disruption at the institution or in the
community.” Id., ¶ 81. The next day, Curtis placed the plaintiff in Temporary
Lock-Up (“TLU”) pending investigation into Conduct Report #2647851. Id., ¶
79.
The plaintiff stated to Curtis at that time that he felt that he was being
harassed by staff about his “legal work,” and that the cell search and conduct
report were issued in retaliation for the first conduct report that the hearing
officer had dismissed. Id., ¶ 85. Curtis told the plaintiff that he was not aware
of any previous conduct report and explained that the plaintiff was currently in
TLU because of the material Slome found in his cell. Id., ¶ 86. Curtis also
informed the plaintiff that he could explain his side of the story at the conduct
report hearing. Id., ¶87. Wiegand delivered a copy of the conduct report, along
with other documents, to the plaintiff on March 31, 2015. Id., ¶ 90. Curtis and
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Wiegand had no further involvement regarding the plaintiff’s claims. Id., ¶¶ 89,
97.
On April 1, 2015, a hearing officer held a disciplinary hearing for
Conduct Report #2647851 and concluded that the plaintiff was “guilty of
violating § 303.24,” and that he had possessed documents and papers
“consistent with the Sovereign Citizen Movement.” Id., ¶ 91. As a result, the
hearing officer found the plaintiff guilty of “group resistance and petitions” and
sentenced the plaintiff to 30 days in disciplinary segregation. Dkt. No. 1 at 6.
II.

DISCUSSION
A.

Summary Judgment Standard

Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Ames v. Home
Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). The movant bears the
burden of establishing that there are no genuine issues of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden,
the non-movant must designate specific facts that establish that there is a
genuine triable fact. Fed. R. Civ. P. 56(e). The court grants summary judgment
when no reasonable jury could find for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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B.

First Amendment Retaliation Claim

In his second and third causes of action,2the plaintiff alleges
“retaliation.” Dkt. No. 1 at 3, 5. He alleged that defendant Graba denied him
library services in retaliation for him naming her as a defendant in this lawsuit.
Id. at 3-5. He also alleged that he was placed in TLU in retaliation for the fact
that a conduct report defendant Slome had written about the plaintiff had been
dismissed. Id. at 5, 6. He asserts that he told defendant Curtis that he was
being placed in TLU in retaliation for the dismissal of the grievance, and states
that he “put Lt. Curtis on notice at that moment that he needed to perform his
supervisory duties and not let plaintiff suffer deprivations of his rights to his
current legal affair documentation material.” Id. at 6. He states that Curtis
failed to intervene. Id.  
The First Amendment to the Constitution prohibits Congress from
making laws abridging the freedom of speech, as well as from making laws
abridging the right to petition the government for the redress of a grievance. If
the government retaliates against someone for exercising their right to free
speech or to petition for redress of grievances, that “tends to chill an
individual’s exercise of his First Amendment rights . . . .” Massey v. Johnson,

 In the complaint (Dkt. No. 1), the plaintiff numbers the first cause of action he
alleges as “3.,” located on page 2 of the complaint. He does not assign a
number to the second cause of action (located at page 3, about two-thirds of
the way down the page. He assigns the number “4.” to the third cause of
action, located on page 5. He does not number the fourth cause of action,
located toward the bottom of page 7. He assigns his fourth cause of action “5.,”
located on page 8, about halfway down the page. The court will refer to these
causes of action by the order in which they appear, followed by the page
numbers of the complaint on which they begin.
2

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457 F.3d 711, 716 (7th Cir. 2006). To prove that a defendant retaliated against
him for exercising his rights under the First Amendment, the plaintiff must
prove “(1) he engaged in activity protected by the First Amendment; (2) he
suffered a deprivation that would likely deter First Amendment activity in the
future; and (3) the First Amendment activity was ‘at least a motivating factor’ in
the Defendants’ decision to take the retaliatory action.” Bridges v. Gilbert, 557
F.3d 541, 546 (7th Cir. 2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551
(7th Cir. 2008)). If a plaintiff can show that retaliatory animus was at least a
motivating factor in the retaliatory actions, the burden shifts to the defendants
to prove that they would have taken the same actions absent the protected
conduct. Spiegla v. Hull, 371 F.3d 928, 943 (7th Cir. 2004) (citing Mt. Healthy
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
The plaintiff alleges that librarian Graba denied him access to the law
library and prevented him from being able to access his papers, in retaliation
for the fact that he sued her in this case. While it is not clear, he may also
allege that Graba denied him access to the library and legal materials in
retaliation for the fact that the conduct report Slome had written about the
plaintiff got dismissed. He alleges that Slome retaliated against him for the fact
that the conduct report Slome wrote against the plaintiff was dismissed, and he
argues that Curtis, in his supervisory capacity, failed to intervene and prevent
Slome’s retaliation.
The first element of a retaliation claim requires the plaintiff to show that
he engaged in a constitutionally-protected activity. The plaintiff mentions two
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activities in which he engaged that he believes caused the defendant to
retaliate against him. First, he argues that defendant Graba retaliated against
him because she knew that he was suing her. The Seventh Circuit has held
that the “First Amendment right to petition the government for redress of
grievances includes the right to access to the courts.” Bridges v. Gilbert, 557
F.3d 541, 553 (7th Cir. 2009) (citations omitted).
Second, he alleges that all three defendants retaliated against him
because Lt. Londre dismissed conduct report #2641802 (written by Slome) on
March 23, 2015 because of “unsupported evidence.” It is a bit more difficult to
see how the fact that Londre dismissed conduct report #2641802 constitutes
First Amendment activity on the plaintiff’s part. The plaintiff seems to argue
that Slome was upset because he filed a conduct report against the plaintiff,
and that Lt. Londre, at Security Director Aldana’s order, dismissed it. Dkt. No.
1 at 2-3. The plaintiff does not indicate anywhere that he did something, or
said something, to cause Lt. Londre to dismiss Slome’s conduct report. The
dismissal of the conduct report, while it may (or may not) have been upsetting
to Slome, was not an exercise of the plaintiff’s First Amendment rights.
The second element of the retaliation claim requires the plaintiff to
demonstrate that he suffered a deprivation that would make him less likely to
exercise his constitutional rights in the future. The plaintiff argues that
defendant Graba deprived him of library time and resources (such as his legal
loan). While the Seventh Circuit has held that “mere denial of access to a
prison law library or to other legal materials is not itself a violation of a
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prisoner’s rights,” Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006)
(citations omitted), the court agrees that not being allowed to use the library or
have access to legal resources is a “deprivation.”
The plaintiff argues that Slome deprived him by searching his cell and
seizing papers, and that Slome and Curtis deprived him by engaging in conduct
that resulted in his being placed in Temporary Lockup Status pending his
disciplinary hearing. While it is not clear to the court that a cell search of an
incarcerated inmate constitutes a “deprivation,” the court will assume for the
purposes of this case only that the seizure of the plaintiff’s papers was a
“deprivation.”
The court considers being placed in TLU a “deprivation.” Wis. D.O.C.
§303.02(40) defines temporary lock up as “a temporary nonpunitive segregated
status allowing an inmate to be separated from the general population pending
further administrative action.” While TLU is not supposed to be punitive, most
inmates (including the plaintiff) likely consider being place in segregation for
any reason as a “deprivation,” compared to being in general population.
The third element requires the plaintiff to show that the defendants were
motivated, at least to some degree, by his First Amendment activity when they
caused him to suffer the deprivations (denial of access to the library and
resources, and placement in segregation). The plaintiff provides two pieces of
evidence to prove that the defendants were motivated by his First Amendment
activity.

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First, he provides his own sworn declaration. Dkt No. 45. In this
declaration, he declares under penalty of perjury that
Slome and Graba was aware of me exercising my right to
write administrative inmate complaints about the library
personal copies being read by the librarian and inmate clerks
before this incident, about Graba confiscation of my Affidavits
and to a full due process hearing that resulted in a dismissal of
a conduct report Slome wrote on me.
Id. at 3. He also declares that “Slome motive comes from the conduct report he
wrote regarding the same issue and defaming me was dismissed for
‘unsupported evidence.’” Id. Second, he notes the suspicious timing of the cell
search, second conduct report, and placement in TLU, several days after the
hearing officer dismissed his first conduct report. Neither piece of evidence
proves that the defendants were motivated by the plaintiff’s exercise of First
Amendment rights.
The plaintiff’s unsworn declarations regarding Graba and Slome’s
motives are not based on his personal knowledge. See Fed. R. Civ. P.
56(c)(4)(“An affidavit or declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the
matters stated.”). The plaintiff has no way of knowing another individual’s state
of mind, and mere speculation is insufficient at the summary judgment stage.
Rockwell Automation, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 544
F.3d 752, 757 (7th Cir. 2008).
Although the court recognizes that it is hard for a plaintiff to prove a
defendant’s motives when that defendant hasn’t stated his or her motives
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directly, the plaintiff needs at least one piece of evidence from which the court
can infer retaliatory intent. Aside from the unsworn declaration (which is not
based on the plaintiff’s personal knowledge), the only other evidence that the
plaintiff provides to prove intent is the timing of the incidents—several days
after his first conduct report was dismissed. The Seventh Circuit has explained,
however, that “[m]ere temporal proximity is not enough to establish a genuine
issue of material fact” at summary judgment. Andonissamy v. Hewlett–Packard
Co., 547 F.3d 841, 851 (7th Cir.2008) (internal quotation omitted). The fact
that Curtis placed the plaintiff in TLU shortly after Londre dismissed Slome’s
conduct report does not, by itself, prove that Curtis was motivated by the
dismissal to put him in TLU. And again, dismissal of the conduct report was
not an exercise of the plaintiff’s First Amendment rights.
Finally, the plaintiff did exercise his First Amendment rights by filing this
lawsuit, and naming Graba as a defendant. But the plaintiff alleges that Graba
denied him access to the law library and to resources between March 4, 2015
and late June 2015. Dkt. No. 1 at 2-5. The plaintiff did not file his complaint in
federal court until June 25, 2015—after he alleges that Graba deprived him of
the ability to access the library and legal resources. Graba could not retaliate
against the plaintiff for First Amendment rights he had not yet exercised. The
plaintiff alleged in the complaint that Graba knew that he was going to sue her,
because he was approved for a legal loan. Id. at 3. But he doesn’t explain how
Graba would have known that he was going to use the legal loan to sue her.

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Because the plaintiff has not shown that the dismissal of Slome’s
conduct report was an exercise of his First Amendment rights, and because he
has not produced evidence that Graba, Slome and Curtis had retaliatory intent,
his retaliation claim against them cannot survive summary judgment.
Even if the plaintiff had been able to produce evidence to support all
three elements of a retaliation claim, the defendants met their burden of
establishing that they would have taken the same actions even if the hearing
officer had not dismissed the first conduct report. With regard to Slome’s
search of the plaintiff’s cell: The plaintiff recently had moved to Walworth Unit,
and Slome provided a sworn declaration stating that all inmates new to a unit
are subject to a “random” cell search within the first few days of a move to
prevent contraband from entering the unit. The plaintiff does not dispute this
statement with any facts or evidence; instead, he alleges his suspicion that the
cell search was “retaliatory.” If all inmates new to a unit have their cells
searched at random, then the plaintiff’s cell would have been searched after he
was moved to Walworth Unit, regardless of whether Slome was upset with him
and wanted to retaliate.
Regarding the second conduct report and Curtis placing the plaintiff in
TLU pending the hearing for that conduct report, the hearing officer who
conducted the disciplinary hearing (not a defendant in this case) found that the
plaintiff actually had possessed the items he was accused of having. Therefore,
the defendants can show that they would have taken the same actions related
to Conduct Report #2647851 and TLU even if Slome was upset with the
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plaintiff and wanted to retaliate against him. See Tate v. Jenkins, No. 09-CV169, 2010 WL 3809765, at *9 (E.D. Wis. Sept. 24, 2010). The court will grant
the defendants’ motion for summary judgment as to the retaliation claim.
C.

Failure-to-Intervene Claim

In its screening order, the court also allowed the plaintiff to proceed on
claims that defendant Curtis failed to intervene to prevent Slome’s retaliation
against him for his exercise of his First Amendment rights. Dkt. No. 10 at 10.
The plaintiff alleged that when Slome confiscated his papers, and when he
found out that there was a conduct report against him for possessing the
documents Slome had confiscated, he complained to Curtis. He indicates that
he told Curtis that he believed that the reason Slome had searched his cell and
gotten him written up was to retaliate for the fact that the first conduct report
Slome had written about the plaintiff had been dismissed. The plaintiff alleges
that, despite telling Curtis this, Curtis took no action to intervene.
The Seventh Circuit has held that, “under certain circumstances, a state
actor’s failure to intervene renders him or her culpable under § 1983.” Yang v.
Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (citations omitted). “A plaintiff may
state a claim for failure to intervene by showing that ‘any constitutional
violation has been committed by a law enforcement official; and the [defendant]
had a realistic opportunity to intervene to prevent the harm from occurring.’”
Hobbs v. Cappelluti, 899 F. Supp. 2d 738, 754 (N.D. Ill., 2012) (citing , 899 F.
Supp. 2d 738, 754 (N.D. Ill., 2012) (citing Yang, 37 F.3d at 285).

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Here, the court has found that the plaintiff has failed to present
sufficient evidence to support his claim that Slome’s search of his cell and
confiscation of his papers, and Curtis’ subsequent placement of the plaintiff in
TLU, was motivated by retaliation against the plaintiff for exercising his First
Amendment rights. Because the plaintiff has not demonstrated that the
defendants retaliated against him for exercising his First Amendment rights, he
cannot demonstrate that Curtis failed to intervene to prevent such a violation.
The court will grant the defendants’ summary judgment motion on the failureto-intervene claim.
D.

State Law Defamation

To prevail on a claim for defamation under Wisconsin law, the plaintiff
must show:
(1) a false statement, (2) communicated by speech,
conduct, or in writing to a person other than the person
defamed, and (3) the communication is unprivileged and is
defamatory, that is, tends to harm one’s reputation so as to
lower him or her in the estimation of the community or to deter
third persons from associating or dealing with him or her.
Hart v. Bennet, 267 Wis. 2d 919, 941 (Ct. App. 2003).
The complaint is not entirely clear with regard to the “false statements”
the plaintiff believes the defendants made. He alleged that he was “attacked” by
the defendants because of his beliefs and his political status. Dkt. No. 1 at 8-9.
But only once did he make reference to a “false statement”—on page 9 of the
complaint, he alleged that “Plaintiff was attacked by Defendant Sgt. Slome, by
accusing plaintiff of renouncing his United States Citizenship. In which is a
false statement written on State Government Defendant Department of
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Corrections documents to a decision maker.” Id. at 9. The only support that the
plaintiff presented in support of this claim is a sentence in his brief in support
of his motion for summary judgment. In that sentence, he states that “nowhere
on any record is there evidence of plaintiff being in the process of renouncing
his U.S. citizenship, nor is it nowhere in plaintiff affidavits that was confiscated
did plaintiff make such a statement or implicate the intent to do so.” Dkt. No.
40 at 7.
At the summary judgment stage, a judge must ask whether there is
“evidence on which the jury could reasonably find for the plaintiff.” Anderson v.
Liberty Lobby, Inc., 477 U.S. at 252. “The mere existence of a scintilla of
evidence in support of the plaintiff’s position will be insufficient . . . .” Id. And
“mere allegations” are not enough. Id. at 248. Here, a single sentence in an
unsworn brief is not “evidence.”
Further, the plaintiff’s argument improperly tries to shift the summary
judgment burden to the defendants. At summary judgment, the defendants do
not bear the burden of establishing that a “defamatory” statement is true; the
plaintiff must provide evidence to establish that the statement false. The
plaintiff asserts that Slome stated in his response to the plaintiff’s
interrogatories that it was his “opinion” that the papers he found in the
plaintiff’s cell indicated that the plaintiff was trying to renounce his U.S.
citizenship. Dkt. No. 40 at 7. He asks the court to construe the fact that Slome
expressed an opinion as evidence that the statements in the second conduct
report were “false” and were “defamatory.” Id.; Dkt. No. 41 at 4, ¶ III(2). The
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court will not draw this inference, because the plaintiff has produced no
evidence that Slome’s opinion constituted a “false statement.” The court will
dismiss the plaintiff’s state law defamation claim.
III.

MOTION TO EXCLUDE THE DECLARATION OF JACKIE K. RIGHTER
On August 15, 2016, the plaintiff filed a motion to exclude the

declaration of Jackie K. Righter under Federal Rule of Civil Procedure 37(c)(1).
Dkt. No 42. Righter is a paralegal with the Wisconsin Department of Justice
(“DOJ”), and her declaration authenticates exhibits #107, #108 and #109. Dkt.
Nos. 37 (Righter Declaration); 37-1 (Exh. #107); 37-2 (Exh. # 108); 37-3 (Exh.
#109). Exhibit #107 is a certification of records from the Office of Corporation
Counsel. Dkt. No. 37-1. Exhibit #108 is a letter drafted by Assistant Attorney
General Roy Korte to the plaintiff stating that the plaintiff may be subject to
civil and felony “slander of title” charges if he continues to make frivolous
filings with the Register of Deeds. Dkt. No. 37-2. Exhibit #109 is the Federal
Bureau of Investigation’s handbook on sovereign citizens. Dkt. No. 37-3.
Federal Rule of Civil Procedure 37(c)(1) provides that “[i]f a party fails to
provide information or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified
or is harmless.” The defendants, however, are exempt from Rule 26(a) and (e) in
“action[s] brought without an attorney by a person in the custody of the United
States, a state, or a state subdivision.” Fed. R. Civ. P. 26(a)(1)(B). The plaintiff

18 

is a person in custody of the state and he filed this case without an attorney.
Therefore, Rule 37(c)(1) does not apply to the defendants.
The court will deny the plaintiff’s motion to exclude the declaration of
Jackie K. Righter. Dkt. No. 42.
IV.

MOTION FOR SANCTIONS
On October 18, 2016, the plaintiff filed a motion for sanctions, alleging

that the defendants submitted a witness declaration in bad faith in violation of
Fed. R. Civ. P. 56(h). Dkt. No. 51. Specifically, he alleges that Jason Aldana’s
declaration (Dkt. No. 47, which the defendants filed in support of their
response to the plaintiff’s statement of undisputed facts) constituted “perjury.”
Dkt. No. 51. The plaintiff first asserts that it is undisputed that all the
documents Slome confiscated from his cell were returned to him. Id. at 2. He
argues because the documents were returned to him, they must not have
constituted “contraband.” Id. at 2-3. The plaintiff then contends that because
the Aldana declaration states that that the documents “were placed in a
contraband file and not returned to Jackson” (dkt. no. 47 at 3), the declaration
is untrue, and constitutes perjury, dkt. no. 51 at 2. He also asserts that he has
“reason to believe” that Aldana did not make the declaration, and that the
defendants’ attorney “submitted [the declaration] deliberately in bad faith.”
Dkt. No. 51 at 3. He demands that the court order Aldana into court to testify,
or to prove that the confiscated documents are contraband. Id.
Fed. R. Civ. P. 56(h) indicates that if a court is satisfied that a party
submits a declaration “in bad faith,” a court, “after notice and a reasonable
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time to respond—may order the submitting party to pay the other party the
reasonable expenses . . . it incurred as a result.” The court also may hold the
offending party in content, or impose other sanctions.
This court is not satisfied that the defendants submitted Jason Aldana’s
declaration in bad faith. The plaintiff has presented absolutely no evidence that
Aldana himself did not prepare the declaration. Nor has he presented any
evidence at all to support his claim that if Aldana did prepare the declaration,
the statements in that declaration constituted perjury. Indeed, Aldana’s
declaration seems to support the plaintiff’s assertion that his documents
weren’t contraband. Aldana asserts that he himself reviewed the documents
and concluded that they weren’t contraband. A hearing examiner later
determined otherwise, and it appears that Aldana assumed from that that the
institution must have retained the plaintiff’s papers. The plaintiff says that the
institution didn’t retain his papers, and that they were returned to him. But he
provides no evidence to show that Aldana knew that, or had reason to know it.
Even if the court had relied on the Aldana declaration in deciding the
summary judgment motion (and it has not—whether the plaintiff’s papers were
or were not contraband is not relevant to the questions raised in the summary
judgment motions), the plaintiff has presented no evidence that the Aldana
declaration is false, or was submitted in bad faith. The court will deny the
plaintiff’s motion for sanctions.

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V.

CONCLUSION
The court DENIES the plaintiff’s motion for summary judgment. Dkt.

No. 39.
The court DENIES the plaintiff’s motion to exclude the declaration of
Jackie K. Righter. Dkt. No. 42.
The court DENIES the plaintiff’s motion for sanctions. Dkt. No. 51.
The court GRANTS the defendants’ motion for summary judgment (Dkt.
No. 28), and DISMISSES this case.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rule of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the

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entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 28th day of February, 2017.

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