Bowers v. Foster et al

Filing 45

DECISION AND ORDER signed by Judge Lynn Adelman on 2/3/17 that the defendants motion for sanctions 31 is GRANTED. This case is DISMISSED WITH PREJUDICE, and the Clerk of Court shall enter final judgment. Further ordering that the plaintiffs various motions 19 , 30 & 36 are DENIED. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID ELIJAH BOWERS, JR.,
Plaintiff,
v.

Case No. 16-C-0331

BRIAN FOSTER, et al.,
Defendants.
______________________________________________________________________
DECISION AND ORDER
When the plaintiff filed this action, he was an inmate at Waupun Correctional
Institution (“WCI”).

(He has since been released from prison.) He alleges various

claims against staff at WCI, including that they failed to protect him from an attack by a
fellow inmate. During an earlier stage of this case, the plaintiff filed a motion for a
temporary restraining order and a preliminary injunction. In this motion, he alleged that
staff at WCI was placing him in imminent danger, and he requested a transfer to a
different institution. In responding to this motion, the defendants submitted evidence
showing that the plaintiff had been transferred to the Wisconsin Resource Center, which
is a mental health facility operated as a prison by the Wisconsin Department of Health
Services. The defendants argued that because the plaintiff was no longer being housed
at WCI, his request for preliminary relief was moot.
After the defendants filed their response to the motion for preliminary relief, the
plaintiff filed a motion for judgment on the pleadings along with three purported
declarations from staff at the Wisconsin Resource Center. The motion for judgment on
the pleadings discusses the merits of the plaintiff’s claims and does not appear to be
connected to the motion for preliminary relief.

However, the three purported

declarations seem to be aimed at rebutting the defendants’ argument that the request
for preliminary relief was moot because the plaintiff had been transferred to the
Wisconsin Resource Center.

Each purported declaration states that staff at the

Wisconsin Resource Center recommends that the plaintiff be transferred back to WCI.
See ECF Nos. 22, 23 & 24. These purported declarations were obviously drafted by the
plaintiff, as they are handwritten and the penmanship matches that of the plaintiff’s other
handwritten filings. The declarations are not signed by the declarants. Rather, the
plaintiff used the symbol “/s/” on each declaration, which is used to represent that the
declarations were signed on behalf of each declarant with the declarant’s permission.
Judge Randa, to whom this case was assigned before it was transferred to me,
denied the plaintiff’s motion for preliminary relief as moot on the ground that the plaintiff
was no longer housed at WCI.

Judge Randa did not discuss the three purported

declarations.
After Judge Randa denied the motion, the defendants filed a motion to dismiss
this case with prejudice as a sanction for filing the purported declarations.

The

defendants submit actual declarations from each of the three purported declarants in
which they state that they did not give the plaintiff permission to prepare, sign, or file the
purported declarations. Two of these declarants, Jodi Heintz and Ashley Spiegelberg,
state that they did not know about the purported declarations until counsel for the
defendants told them they had been filed.

They state that they did not sign the

purported declarations, grant permission to the plaintiff to sign the declarations on their
behalf, or otherwise authorize the plaintiff to file the declarations. The third declarant,
Dee Kapitzke, states that the plaintiff showed her a copy of the declaration before he
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filed it, but that she told the plaintiff that he should not have created the document. She
further states that she did not authorize the plaintiff to file the document in her name,
and that the document falsely represents that staff at the Wisconsin Resource Center
recommended that the plaintiff be returned to WCI.
In response to the defendants’ motion for sanctions, the plaintiff filed a brief in
which he contends that the three declarants gave him permission to file the purported
declarations. The plaintiff makes this contention in his unsworn brief and does not
swear under penalty of perjury that he received permission from the declarants to file
declarations on their behalf.

He does file an affidavit along with his brief, but the

affidavit simply attempts to authenticate another document—a “release/transfer
summary” about him from the Wisconsin Resource Center—that he claims was
prepared by Heintz and Spiegelberg. Because the plaintiff’s unsworn assertions in his
brief are not evidence, see, e.g., Box v. A&P Tea Co., 772 F.2d 1372, 1379 n.5 (7th Cir.
1985), I may not consider them in resolving the defendant’s motion for sanctions.
In any event, the plaintiff’s statements in his brief would not help him even if they
were included in an affidavit or a declaration made under penalty of perjury. With
respect to Kapitzke, the plaintiff claims that he spoke with her and gave her a copy of
the declaration he drafted and then received her permission to file the declaration with
the court. This claim is obviously false. The declaration that the plaintiff filed identifies
Kapitzke as “Dee Penlinski.”

If Kapitzke had indeed reviewed and approved the

declaration, she certainly would have noticed that her name had been badly misspelled
and corrected that error. Moreover, if in fact the plaintiff showed the declaration to
Kapitzke and she authorized him to file it, she would have just signed it herself. There
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would have been no need for the plaintiff to sign it on her behalf using the “/s/” symbol.
Thus, the plaintiff is obviously lying when he says that Kapitzke granted him permission
to file the declaration on her behalf. No evidentiary hearing is needed to confirm that
the plaintiff is lying, since under these circumstances, no reasonable person could
believe him. See Seshadri v. Kasraian, 130 F.3d 798, (7th Cir. 1997) (“testimony can
and should be rejected without a trial if, in the circumstances, no reasonable person
would believe it”).
The plaintiff does not even claim that he showed Heintz and Spiegelberg the
declarations he drafted in their names or received their permission to file them. Rather,
he points out that Heintz and Spiegelberg gave him the “release/transfer summary” that
he attached to his affidavit. See ECF No. 36 at 2. This summary, in turn, states that the
plaintiff “may return to DOC,” i.e., be transferred out of the Wisconsin Resource Center,
but it does not recommend that he be returned to WCI specifically. ECF No. 37-1 at 2,
3. The plaintiff seems to be claiming that because Heintz and Spiegelberg drafted a
document stating that the plaintiff could return to the Department of Corrections, he was
at liberty to file declarations on their behalf stating that they recommended returning him
to WCI. Obviously, he was not at liberty to do that. The declarations purport to be
made under penalty of perjury, yet the “release/transfer summary” was not even signed
by Heintz and Spiegelberg, much less made under penalty of perjury. Moreover, the
summary does not mention WCI but rather only states that the plaintiff may be returned
to the DOC. In any event, under no circumstances may a litigant create a declaration
purporting to be made by another person under penalty of perjury and file it without at
least having the person review the declaration and approve it.
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A court has the inherent power to sanction misconduct in the litigation before it.
Salmeron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 793 (7th Cir. 2009). Sanctions
are appropriate where the offender has willfully abused the judicial process or otherwise
conducted litigation in bad faith.

Id.

In the present case, I find that the plaintiff

submitted the three purported declarations to this court knowing full well that Kapitzke,
Heintz and Spiegelberg did not approve the contents of the declarations or authorize
him to file them. In submitting these fabricated declarations, the plaintiff willfully abused
the judicial process and conducted the litigation in bad faith.

Moreover, after the

defendants pointed out this misconduct by filing their motion for sanctions, the plaintiff
continued to engage in bad faith by lying about having permission to file the
declarations. Particularly egregious is the plaintiff’s claim that Kapitzke reviewed the
declaration and agreed with its contents when in fact her name is badly misspelled in
both the caption and body of the declaration. The plaintiff also exhibits bad faith in his
response to the defendant’s motion by describing defendants’ counsel as being “two
bricks shy from a full load.”

ECF No. 36 at 3.

Thus, I find that sanctions are

appropriate.
Having decided that sanctions are appropriate, I must identify an appropriate
penalty that is proportionate to the wrong. See, e.g., Montano v. City of Chicago, 535
F.3d 558, 563 (7th Cir. 2008). The defendants argue that dismissal of this suit with
prejudice is an appropriate sanction. See id. (“Though ‘particularly severe,’ the sanction
of dismissal is within the court's discretion.”). I agree. First, there is no less severe
sanction that would be effective in this case.

The plaintiff is indigent, and thus a

monetary penalty would have no effect. Second, the plaintiff’s misconduct is egregious
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and warrants a hefty penalty. Pro se prisoner litigation is difficult enough to defend
against and manage when prisoners conduct the litigation in good faith, and courts
cannot tolerate litigants, whether pro se or not, submitting fabricated evidence in
support of their claims. Although in this case neither the defendants nor the court were
fooled by the plaintiff’s fabricated evidence, the plaintiff’s actions caused the defendants
to expend time and resources investigating the plaintiff’s false claims. Moreover, a hefty
sanction is warranted to discourage the plaintiff and other pro se litigants from engaging
in similar conduct in the future. See Greviskes v. Univs. Research Ass’n, Inc., 417 F.3d
752, 759 (7th Cir. 2005) (sanction of dismissal serves “not merely to penalize those
whose conduct may be deemed to warrant such a sanction, but to deter those who
might be tempted to such conduct in the absence of such a deterrent”). Finally, once
the defendants brought the plaintiff’s misconduct to the court’s attention, the plaintiff,
instead of admitting wrongdoing, lied about his conduct and hurled insults at
defendants’ counsel.

Under these circumstances, dismissal with prejudice is the

appropriate sanction.
For the reasons stated, IT IS ORDERED that the defendants’ motion for
sanctions (ECF No. 31) is GRANTED. This case is DISMISSED WITH PREJUDICE,
and the Clerk of Court shall enter final judgment.
IT IS FURTHER ORDERED that the plaintiff’s various motions (ECF No. 19, 30 &
36) are DENIED.
Dated at Milwaukee, Wisconsin, this 3rd day of February, 2017.
s/ Lynn Adelman
____________________________
LYNN ADELMAN, U.S. District Judge
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