Carter v. McGowan et al

Filing 29

ORDER signed by Judge J.P. Stadtmueller on 2/9/2017: DENYING 20 Plaintiff's Motion to Compel Discovery Responses; DENYING 21 Plaintiff's Motion for Preliminary Injunction and TRO; DENYING 22 , 23 Plaintiff's Motions for Protective Order; and DENYING 24 Plaintiff's Motion for Sanctions. (cc: all counsel, via mail to Tommie L. Carter at Columbia Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TOMMIE L. CARTER,
Plaintiff,
v.

Case No. 16-CV-838-JPS

ALLISON MCGOWAN, AMY
GUNDERSON, DEREK SCHAUTEN,
and JOEL SANKEY,
Defendants.

ORDER

Plaintiff, who is incarcerated at Waupun Correctional Institution, filed
a pro se complaint under 42 U.S.C. § 1983 alleging that his civil rights were
violated. (Docket #1). This matter comes before the Court on several of
Plaintiff’s recently filed motions, including: (1) a motion to compel discovery
responses (Docket #20); (2) a motion for preliminary injunction and
temporary restraining order (Docket #21); (3) two motions for protective
order (Docket #22 and #23); and (4) a motion for sanctions (Docket #24).
Defendants oppose each of these motions. (Docket #27). Plaintiff filed a short
reply letter (Docket #28), and so the motions are now ripe for resolution. For
the reasons stated below, all of Plaintiff’s motions will be denied.
1.

Motion to Compel Discovery Responses
Plaintiff’s first motion requests that the Court address Defendants’

failure to respond to his discovery requests within the time provided by the
Federal Rules of Civil Procedure. (Docket #20 at 1). After receiving his
discovery requests in late November 2016, Defendants’ counsel sent Plaintiff
a letter stating that she would provide responses after the Christmas holidays
because of short-staffing and the breadth of the requests. Id. Plaintiff objects
to this, noting that he did not consent to an extension of time. Id. Defendants

rejoin that they responded to Plaintiff’s discovery requests within thirty-seven
days of service and produced over 300 pages of documents. (Docket #27 at
2). Defendants believe that Plaintiff has a litigation strategy of serving
“oppressive amounts of discovery” while unfairly refusing to countenance
even minor extensions of time. Id.
Whatever his litigation strategy may be, Plaintiff’s motion must be
denied. Plaintiff did not certify that he first made a good-faith effort to meet
and confer with Defendants’ counsel about the subject of his motion before
seeking the Court’s intervention, as is required by the Federal Rules of Civil
Procedure and the Court’s Local Rules. Fed. R. Civ. P. 37(a)(1); Civ. L. R. 37.
Although he received a letter from defense counsel about the anticipated date
she would respond to his discovery requests, he did not actually confer with
her regarding his objection to her proposed extension. The purpose of Federal
and Local Rule 37 is to avoid just this sort of unnecessary court involvement
in minor discovery disagreements. Ross v. Bd. of Regents of Univ. of Wisconsin
Sys., No. 08–CV–230, 2008 WL 5129941, at *1 (E.D. Wis. Dec. 5, 2008) (“The
court has neither the time, nor the inclination to act as a referee in every
minor dispute between the parties during discovery.”). For this reason, the
motion will be denied. Williams v. Frank, No. 06C1051, 2007 WL 1217358, at
*1 (E.D. Wis. Apr. 19, 2007) (enforcing Local Rule 37 meet-and-confer
requirements against pro se prisoner).1
2.

Motion for Protective Order Related to Destruction of Records
Plaintiff’s first motion for protective order concerns the alleged

destruction of evidence. Plaintiff claims that disciplinary records in

1

It also appears that Plaintiff’s motion is moot—Defendants have now served their
discovery responses, and Plaintiff sought no relief other than to compel Defendants’
responses.

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Defendants’ personnel files will be “purged” after one year’s time, thereby
destroying material relevant to his claims, which occurred in 2015. (Docket
#22). Defendants state that no such documents exist because none of them
were disciplined in relation to their interactions with Plaintiff. (Docket #27 at
2–3). Thus, in Defendants’ view the motion is moot. Id. The Court
agrees—Plaintiff’s fear of possible spoliation is grounded in pure speculation,
not in fact. Plaintiff’s reply in support of his motions does nothing to aid his
argument, since he merely accuses defense counsel of lying. See (Docket #28).
This motion will, therefore, be denied.
3.

Motions for Preliminary Injunctive Relief, Protective Order, and
Sanctions Related to Searches and Suicide Threats
Plaintiff’s remaining motions are related and concern his continuing

threats of suicide. Before turning to the motions, however, it is first important
to appreciate the nature of this case. After screening, Plaintiff’s lone
remaining claim relates to his attempted suicide in his cell. Plaintiff alleges
that on November 18, 2015, he informed Defendants that he would attempt
to commit suicide. (Docket #11 at 3). They did nothing in response to this
information, and he thereafter attempted suicide in his cell by cutting himself
with a razor and overdosing on acetaminophen. Id. at 3–4.
In his motion for preliminary injunctive relief, Plaintiff claims that he
was ignored when he recently warned Defendants of renewed plans to
commit suicide. (Docket #21 at 1–2). In particular, he requested that he be
placed in “observation” status, but those requests were denied. Id. He asks
that the Court order the prison to place him in observation status and in
physical restraints whenever he makes such suicide threats. See id. at 3. He
argues that Defendants have been inept at keeping him from harming himself

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and that the Court should intervene to protect him from himself. See id. at 2–3.
Plaintiff’s motion for sanctions is based on similar allegations. In it, he
seeks sanctions against Defendants for their failure to prevent him from
continuing to harm himself. (Docket #24 at 1). For instance, Plaintiff alleges
that he has inflicted injuries on himself by scraping himself with staples while
Defendants did nothing. Id. He also reiterates the claims he made in his
motion for injunctive relief concerning his repeated, and ignored, suicide
threats throughout December 2016 and January 2017. Id. at 1–2. On several
occasions, he claims he managed to make himself bleed and smeared blood
on his cell and his person, yet officers did not respond. Id. at 2. He calls for
a “prompt investigation” of his allegations and that the Court order
Defendants and other correctional staff to comply with the applicable policies
and procedures when Plaintiff threatens suicide. Id.
Finally, in his second motion for protective order, Plaintiff contends
that correctional officers are repeatedly searching his cell and his person.
(Docket #23 at 1). He says the searches occur “almost every other day” and
involve officers “shuffling his legal files and strewing them around,
hampering his preparation for this case.” Id. He also claims that there are
sometimes late-night searches that include a strip-search of his person. Id. He
accuses Defendants of trying to interfere with this litigation through these
searches. Id. at 2. However, Plaintiff also acknowledges that the officers
explained that the searches are being done in order to uncover items Plaintiff
might use to hurt himself with. Id.
Defendants contend that Plaintiff’s two motions relating to his
continuing threats of self-harm—the motion for preliminary injunctive relief
and the motion for sanctions—should be denied. (Docket #27 at 3).
Defendants argue that Plaintiff’s allegations concern many prison officials
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who are not defendants in this case and that Plaintiff inappropriately asks the
Court to step in and oversee his mental health treatment. Id.
Defendants also provided the declaration of Dr. Torria Van Buren, a
psychologist at the prison, who gives a detailed account of Plaintiff’s mental
health treatment and opines that Plaintiff has been fabricating instances
where he threatens self-harm. (Docket #25 at 4). On those instances where
Plaintiff in fact expressed suicidal thoughts, he was placed in observation and
then released when the danger passed. Id. at 5–6. According to the doctor,
Plaintiff has expressly threatened to tell other inmates to engage in self-harm,
and threatened Defendants with litigation, if Defendants and other prison
staff do not respond to his suicide threats as he wishes. See id. at 6–7. Dr. Van
Buren opines that Plaintiff’s behavior is simply an effort to get transferred to
another prison, not genuine evidence of suicidality. Id. at 9.
Further, Defendants contend that Plaintiff’s final motion, relating to
the searches of his person and his cell, underscores the impossible position
he has placed them in. (Docket #27 at 3). Defendants note that when they
search his cell, they find sharp objects that he can and does use to hurt
himself. Id. If the Court stops these searches, Defendants will be left unable
to protect Plaintiff from himself. See id. In the face of this catch-22,
Defendants urge the Court to defer to their institutional and medical
treatment prerogatives. Id. at 4.
Plaintiff’s motions regarding Defendants’ responses to his recent
suicide threats must be denied. First, the Court generally will not interfere in
matters of prison administration through preliminary injunctive relief. In fact,
Congress has expressly cautioned against it. The Prison Litigation Reform Act
of 1995 (“PLRA”) provides, in pertinent part, that in considering the need for
preliminary injunctive relief, “[t]he court shall give substantial weight to any
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adverse impact on public safety or the operation of a criminal justice system
caused by the preliminary relief[.]” 18 U.S.C. § 3626(a)(2). The Court’s
reluctance is particularly keen in this case, for despite Plaintiff’s complaint
that Defendants are mistreating his mental health disorders, the Court itself
lacks expertise in such matters.
Nor is the Court confident that it should, based on Plaintiff’s word
alone, implement his highly specific proposed protocols. The PLRA instructs
that “[p]reliminary injunctive relief must be narrowly drawn, extend no
further than necessary to correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to correct that harm.” Id.
Plaintiff’s opinion on the proper way to simultaneously incarcerate him and
treat his suicidal ideation does not meet this standard. Faced with a difficult
situation in which an inmate seeks to engage in self-harm nearly constantly,
the Court will instead defer to the sound judgment of prison officials. See
Bowers v. Pollard, 602 F. Supp. 2d 977, 993 (E.D. Wis. 2009) (noting that
constantly suicidal inmate presented prison officials with “a dilemma with
no easy options”).
Moreover, Plaintiff has not satisfied the requisite standards for the
relief he seeks. His motion for sanctions cites Federal Rule of Civil Procedure
37, but that Rule exists to remedy discovery misconduct, not an alleged
failure to treat a medical condition. See Fed. R. Civ. P. 37. Similarly, Plaintiff’s
submissions do not meet the high threshold required for the entry of
preliminary injunctive relief, since he has not shown even a minimal
likelihood of success on the merits of his case or that the irreparable harm he
fears—his own suicide—is likely to occur in the absence of Court
intervention. See D.U. v. Rhoades, 825 F.3d 331, 335 (7th Cir. 2016); Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (a preliminary injunction
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requires a “clear showing that [the plaintiff] is entitled to such relief”).
Because preliminary injunctive relief is an extraordinary remedy and is never
granted as of right, Knox v. Shearing, 637 F. App’x 226, 228 (7th Cir. 2016),
Plaintiff is incorrect that mere “continuing deliberate indifference” to his risk
of suicide is sufficient, standing alone, to warrant such relief, (Docket #21 at
2). Nor do Plaintiff’s threadbare assertions justify what would amount to
extreme interference by the Court into prison administration. Christian Legal
Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006) (a court must “exercise its
discretion to determine whether the balance of harms weighs in favor of the
moving party or whether the nonmoving party or public interest will be
harmed sufficiently that the injunction should be denied”).
For similar reasons, the Court must deny Plaintiff’s motion for
protective order relating to the searches of his prison cell and his person.
Plaintiff dislikes these searches, but he does not provide evidence that the
searches are in fact interfering with his ability to litigate. Additionally,
Plaintiff admits that these searches are undertaken in order to keep him from
possessing objects he could use to harm himself. Because his suicide threats
and attempts form the basis of this entire lawsuit and appear to be ongoing,
the searches are not inherently suspect. And, in any event, Plaintiff represents
that he has recently transferred prisons, see (Docket #28), so his request for a
protective order against officials at his former prison is now moot.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to compel discovery
responses (Docket #20) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for a preliminary
injunction and a temporary restraining order (Docket #21) be and the same
is hereby DENIED;
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IT IS FURTHER ORDERED that Plaintiff’s motion for protective
order (Docket #22) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for protective
order (Docket #23) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s motion for sanctions
(Docket #24) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 9th day of February, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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