Winston v. Clark et al

Filing 162

ORDER OF RECUSAL signed by Judge J.P. Stadtmueller on 9/12/2018. Judge J.P. Stadtmueller recused. Case reassigned to Judge Lynn Adelman for all further proceedings. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL L. WINSTON,
Plaintiff,
v.
DAVID A. CLARK, KEONA GARTHDICKENS, OFFICER D. BLUE,
OFFICER BROOKS, OFFICER D.
ADAMS, OFFICER JOSHUA
MIKULECKY, DOROTHY GREER,
FREDERICK PORLUCOS, OFFICER
COPELAND, D. BRODSKY, and
CHRISTINE BECKER,

Case No. 15-CV-1398-JPS-JPS

ORDER

Defendants.
On September 25, 2017, the Court granted Defendants’ motion for
summary judgment and dismissed this action for Plaintiff’s failure to
exhaust his administrative remedies. (Docket #136). The evidence regarding
exhaustion had been disputed. Id. at 6–8. The Seventh Circuit’s opinion in
Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), instructs that in such
circumstances, the district court should generally hold a hearing to resolve
the dispute; the issue of exhaustion is one for the court, not a jury, to decide.
(Docket #136 at 8–9).
The Court acknowledged Pavey’s directive but determined that a
hearing was unnecessary. Id. at 9. The Court found that Plaintiff’s evidence
was simply not credible. Id. at 9–12. More importantly, Plaintiff had
presented all of the evidence he desired in his summary judgment
submissions, including documentary evidence and affidavit testimony. Id.

at 9–12. Holding a hearing to take live testimony from the parties would
impose great expense on the public with no corresponding benefit to the
Court’s determination of the issue. Id. at 12–13.
Plaintiff appealed the dismissal of this action on September 28, 2017.
Almost a year later, the Court of Appeals reversed this Court’s decision.
(Docket #161). It held that factual disputes regarding exhaustion of
remedies must, rather than may, be resolved at a Pavey hearing. Id. at 3–4.
In its words, “[e]ither party could be lying, and the American judicial
system’s preferred tool for sniffing our falsehoods is the testimonial
process.” Id. at 4.
The Court has already determined that Plaintiff’s evidence is not
credible. It is nigh certain that he will present precisely that same evidence
at a Pavey hearing. Thus, in accordance with the provisions found in 28
U.S.C. § 455(a), to ensure that the hearing and ultimate determination of the
exhaustion issue, are not tainted by the Court’s prior ruling, the
undersigned is obliged to recuse from any further participation in this case.
Accordingly,
IT IS ORDERED that the undersigned RECUSES from this matter
and directs that the case be reassigned by the Clerk of the Court.
Dated at Milwaukee, Wisconsin, this 12th day of September, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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