Santos v. Kartman et al

Filing 46

ORDER signed by Judge Pamela Pepper on 1/11/2018. 30 Plaintiff's motion for reconsideration of order denying motion to compel DENIED. 36 Defendants' motion for protective order GRANTED. 43 Plaintiff's motion to strike declaration DENIED. (cc: all counsel, via mail to Jose Luis Santos at Wisconsin Secure Program Facility) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOSE LUIS SANTOS,
Plaintiff,
v.

Case No. 16-cv-1362-pp

MARK R. KARTMAN,
and LORIE IVERSON,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF
ORDER DENYING MOTION TO COMPEL (DKT. NO. 30), GRANTING
DEFENDANTS’ MOTION FOR PROTECTIVE ORDER (DKT. NO. 36), AND
DENYING PLAINTIFF’S MOTION TO STRIKE DECLARATION (DKT. NO. 43)
______________________________________________________________________________
1.

Motion for Reconsideration and Motion for Protective Order

On June 30, 2017, the court denied the plaintiff’s motion to compel the
production of a confidential document that the defendants refused to produce
in response to a discovery request, because the court found that the plaintiff’s
motion was premature. Dkt. No. 28. On July 10, 2017, the plaintiff filed a
motion for reconsideration of the court’s order denying his motion to compel.
Dkt. No. 30. The defendants oppose the motion, and have asked the court to
enter a protective order in connection with the confidential document. Dkt. No.
36. On August 14, 2017, the court ordered the defendants to deliver a copy of
the confidential investigation report to the court’s chambers for an in camera
review. Dkt. No. 41 at 6. The court stated that it would determine whether, as
the defendants represented, defendant Kartman’s response to the plaintiff’s
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interrogatory about the document was complete and accurate. Id. The court
also stated that if Kartman’s response was complete and accurate, the plaintiff
had given the court no reason to order that the defendants produce the
document. Id. The court indicated that it would enter a decision on that aspect
of the motion for reconsideration and on the defendant’s motion for a protective
order once it reviewed the document. Id.
The court has reviewed the confidential document; it says nothing about
why the plaintiff was fired from his job, and does not allege that the plaintiff
did anything wrong. Kartman’s response to the plaintiff’s interrogatory about
the document was complete and accurate. See Dkt. No. 37 at 4 (citing Dkt. No.
31-1 at 1-2). As explained in the court’s August 14, 2017 order, the court will
deny the plaintiff’s motion for reconsideration and grant the defendants’ motion
for protective order. See Dkt. No. 41 at 4-6.
2.

Motion to Strike

On October 6, 2017, the plaintiff filed a motion to strike defendant
Kartman’s declaration filed in support of the defendants’ motion for summary
judgment, pursuant to Federal Rule of Civil Procedure 12(f). Dkt. No. 43. The
plaintiff takes issue with paragraph 17 of Kartman’s declaration, which states:
“Santos’ race is listed in the Wisconsin Department of Correction centralized
computer system as white.” Dkt. No. 23 at ¶17. The plaintiff states that the
defendants lied in the declaration. Dkt. No. 43 at 1. In support of his assertion,
the plaintiff submits a Wisconsin Department of Corrections document that

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lists his race as Hispanic. Dkt. No. 44-1. The defendants oppose the plaintiff’s
motion.
The court will not strike Kartman’s declaration. First, Rule 12(f) applies
to pleadings; it does not authorize courts to strike a declaration. Second, the
fact that the one Department of Corrections document that the plaintiff
submitted states that the plaintiff is Hispanic does not prove that defendant
Kartman lied when he said that the DOC’s computer system lists the plaintiff’s
race as white; the DOC’s records may well be inconsistent. Third, the court will
not rely on paragraph 17 of Kartman’s declaration in its summary judgment
analysis. As the defendants explain in their response to the plaintiff’s motion to
strike, the defendants argue in their summary judgment brief that the
plaintiff’s equal protection claim fails because Kartman did not know that the
plaintiff was Hispanic. Dkt. No. 45 at 2. The defendants cite to paragraph 17 of
Kartman’s declaration in support of that argument. See id. The plaintiff’s
summary judgment response points out that he looks Latino and has a Latino
first, middle and last name. Id. (citing Dkt. No. 32 at ¶19). Based on the
plaintiff’s response, the defendants now have conceded that whether the
defendants knew the plaintiff’s race was Hispanic constitutes a disputed issue
of fact.1 Id. For all of these reasons, the court will deny the plaintiff’s motion to
strike.

The defendants contend that the court should grant their motion for summary
judgment on other grounds. Id. The court will resolve the defendants’ summary
judgment motion in a subsequent order.
1

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The court DENIES the plaintiff’s motion for reconsideration of order
denying motion to compel. Dkt. No. 30.
The court GRANTS the defendants’ motion for protective order. Dkt. No.
36.
The court DENIES the plaintiff’s motion to strike declaration. Dkt. No.
43.
Dated in Milwaukee, Wisconsin this 11th day of January, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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