Anderson v. Agusta et al

Filing 102

ORDER signed by Judge Lynn Adelman on 11/18/21 that the plaintiff's motion to compel 79 is DENIED. The plaintiff's request to extend the discovery deadline is DENIED. The plaintiff's motion for reconsideration 83 is DENIED. (cc: all counsel and mailed to pro se party)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHAWN AVERY ANDERSON,
Plaintiff,
v.

Case No. 20-C-562

JIM CIESZYNSKI, et al.,
Defendants.
ORDER
The plaintiff is proceeding on various claims under the First Amendment and
RLUIPA. This order resolves the plaintiff’s motion to compel (ECF No. 79) and his motion
for reconsideration of my previous order granting partial summary judgment for the
defendants on exhaustion grounds (ECF No. 83).
I. MOTION TO COMPEL (ECF No. 79)
The plaintiff asks me to order the defendants to produce materials he requested in
his second and fourth set of discovery requests. The defendants did not initially respond
to the plaintiff’s second set of requests within 30 days. However, the plaintiff “graciously
extended the second request deadline by an additional 10 days.” ECF No. 80 at 1. The
defendants responded within that time but objected to the plaintiff’s requests to provide
pagan books and view property within the prison. The plaintiff states that the defendants
have not responded to his fourth set of requests. He seeks an extension of the discovery
deadline, which elapsed on October 11, 2021. ECF No. 40. He also seeks sanctions
against the defendants for their purported “behavior of deciet [sic] and lies.” ECF No. 98
at 3.

Case 2:20-cv-00562-LA Filed 11/18/21 Page 1 of 8 Document 102

Federal Rule of Civil Procedure 37 allows a party to move for an order compelling
discovery. Under Rule 37, “[t]he motion must include a certification that the movant has
in good faith conferred or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.” FED. R. CIV. P.
37(a)(1). Like its federal counterpart, the court’s Civil Local Rule 37 requires that “[a]ll
motions to compel disclosure or discovery pursuant to Fed. R. Civ. P. 26 through 37”
include a certification that efforts to informally resolve the dispute failed. Civil L.R. 37 (E.D.
Wis.). That certification “must recite the date and time of the conference or conferences
and the names of all parties participating in the conference or conferences.” Id. These
rules exist because parties are often able to reach an agreement before involving the
court, which saves both the parties and the court time and resources.
The plaintiff did not include with his motion a certification that he conferred or
attempted to confer with the defendants to resolve the discovery disputes. It is not enough
that the plaintiff wrote a letter to defense counsel about the first set of missing discovery
requests. As I explained to the plaintiff in a previous discovery order, his status as a pro
se litigant does not exempt him from following the court’s local rules. ECF No. 65 at 4
(citing Hinterberger v. City of Indianapolis, 966 F.3d 523, 528 (7th Cir. 2020); and Smith
v. Adams, 804 F.App’x 390, 391 (7th Cir. 2020)). The plaintiff has again failed to follow
these rules. For that reason, alone, I will deny his motion to compel.
There are also other reasons to deny the plaintiff’s motion. The defendants’
responses and objections to the plaintiff’s second set of discovery requests were
reasonable. The plaintiff requested that the defendants provide “[a]ny and all books,
magazines, tratcs [sic], or other publications” that relate to the pagan religion. ECF

2
Case 2:20-cv-00562-LA Filed 11/18/21 Page 2 of 8 Document 102

No. 82-1 at 2. He insisted the list “come from books on the shelves physically, not a data
base.” ECF No. 80 at 2; ECF No. 82-1 at 2. The defendants responded with a list of
available books related to the Pagan religion at the prison. ECF No. 88-4 at 1. They
explained that he could confirm whether an item was physically available by attempting
to pick it up at the library. Id. The plaintiff can examine the available books to determine
whether they relate to his religious beliefs and can provide a declaration noting which (or
how many) books on the defendants’ list are not available to him. I will not order the
defendants to respond differently to this request.
The plaintiff also requested to inspect the prison library, chapel, “and any and all
storage areas” where he has been informed that unlisted, donated books may exist. ECF
No. 80 at 3; ECF No. 82-1 at 2. The defendants permitted the plaintiff to visit the library
during his unit’s regular hours and the chapel for approved events. Id. But otherwise, they
objected to this request. ECF No. 88-4 at 1–2. The defendants asked the plaintiff to
explain why he sought access to storage areas and what information could not be gained
by submitting an interrogatory. Id. This, too, was a reasonable response. The plaintiff is
not entitled to enter unspecified, potentially restricted areas of the prison and spend hours
there to review books. He could have submitted an interrogatory, as the defendants
suggested, or he could have sent the defendants an affidavit from library staff who told
him about books that may be available elsewhere in the prison. The plaintiff took neither
of those options and instead filed this motion to compel. I will not order the defendants to
allow the plaintiff to inspect various areas of the prison.
Finally, the defendants’ responses to the fourth set of discovery requests were
timely. Counsel for the defendants swears she responded to the plaintiff’s most recent

3
Case 2:20-cv-00562-LA Filed 11/18/21 Page 3 of 8 Document 102

request for discovery after he filed his motion to compel. ECF No. 87 at 4–5; ECF No. 88,
¶ 5. Counsel attached the letter and responses she sent to the plaintiff on October 1,
2021. ECF No. 88-2 at 1. The plaintiff does not respond to counsel’s sworn statements
about these responses. He instead claims that the defendants have repeatedly lied to the
court and “attempt to work trickery with math.” ECF No. 98 at 2.
The defendants’ exhibits show that the plaintiff dated his fourth request for exhibits
August 29, 2021; it was post-marked August 30, 2021; and the defendants received it on
September 2, 2021. ECF No. 80 at 1; ECF No. 88, ¶ 6. ECF No. 88-3 at 1, 6–7. The
defendants had thirty days from the date they were served, see FED. R. CIV. P. 34(b)(2)(A)
& 36(a)(3), plus three days because service was made by mail, see FED. R. CIV. P. 6(d),
to respond to that request. Service by mail “is complete upon mailing.” Fed. R. Civ. P.
5(b)(2)(C). The defendants complied with those rules by mailing the response to the
plaintiff’s responses on October 1, 2021—thirty-three days after the plaintiff handed over
his requests for mailing. ECF No. 80, ¶ 5; ECF No. 88-2.
The plaintiff insists his requests should be considered served the date he dropped
them in the prison mailbox under the prison mailbox rule. ECF No. 98 at 2. That rule
provides that “a pro se prisoner’s legal documents are considered filed on the date that
they’re tendered to prison staff in accordance with reasonable prison policies.” See Taylor
v. Brown, 787 F.3d 851, 858–59 (7th Cir. 2015). The Seventh Circuit has not determined
whether that rule also applies to discovery requests mailed to an opposing party, rather
than filed with the court. See Lee v. County of Cook, 2 F. App’x 571, 573 (7th Cir. 2001)
(citing Faile v. Upjohn Co., 988 F.2d 985 (9th Cir. 1993)). But even assuming it does
apply, the defendants’ responses were timely. As explained above, the plaintiff signed his

4
Case 2:20-cv-00562-LA Filed 11/18/21 Page 4 of 8 Document 102

requests on August 29, 2021. ECF No. 88-3 at 1. Thirty plus three days later (to allow
extra time for mailing) was October 1, 2021. That is the date the defendants mailed their
responses to the plaintiff. ECF No. 88-2. The defendants therefore complied with the
Federal Rules and timely responded to the plaintiff’s fourth set of requests.
In sum, the plaintiff did not follow the Federal and Civil Local Rules governing
motions to compel by failing to confer or attempt to confer with the defendants before
seeking court intervention. Even if he had, the defendants timely responded to the
plaintiff’s second and fourth requests for discovery. That the plaintiff is dissatisfied with
their responses is not a reason to compel the defendants to respond differently. For these
reasons, I will deny the plaintiff’s motion to compel and his request for sanctions against
the defendants. I advise the plaintiff, as I have in previous orders, to exercise patience in
litigating this lawsuit and to work with the defendants as it proceeds.
II. MOTION FOR RECONSIDERATION (ECF No. 83)
The plaintiff also asks me to reconsider my previous decision (ECF No. 78)
dismissing his claim related to his religious fast because he failed to exhaust his
administrative remedies before bringing this lawsuit. ECF No. 83. The plaintiff filed his
motion under Federal Rule of Civil Procedure 59(e). But that Rule applies only when
judgment has been entered. The previous order disposed of only one claim in this lawsuit.
Several claims remain, and judgment has not yet been entered. I therefore construe the
plaintiff’s motion as brought under Federal Rule of Civil Procedure 54(b). That Rule
provides, in part,
[A]ny order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or parties and may be revised

5
Case 2:20-cv-00562-LA Filed 11/18/21 Page 5 of 8 Document 102

at any time before the entry of a judgment adjudicating all the claims and all
the parties’ rights and liabilities.
FED. R. CIV. P. 54(b). Motions for reconsideration serve a limited function. They allow the
court to correct manifest errors of law or fact or the plaintiff to present newly discovered
evidence that was not available before the court ruled. Caisse Nationale de Credit v. CBI
Industries, 90 F.3d 1264, 1269 (7th Cir. 1996). They are not a vehicle for losing parties to
reargue issues decided against them. Id. at 1270. A manifest error of law “is not
demonstrated by the disappointment of the losing party. It is the ‘wholesale disregard,
misapplication, or failure to recognize controlling precedent.’” Oto v. Metro. Life Ins. Co.,
224 F.3d 601, 606 (7th Cir. 2000) (quoting Sedrak v. Callahan, 987 F. Supp. 1063, 1069
(N.D. Ill. 1997)).
The plaintiff fails to demonstrate I committed a manifest error of law or fact in my
previous decision. The plaintiff merely takes issue with my rulings and reiterates
arguments he made in opposition to the defendants’ motion. For example, he reiterates
that he exhausted a claim about his fast earlier in 2019. ECF No. 84 at 2–4. I addressed
that argument in the previous order and will not address it again here. ECF No. 78 at 7–
8 (citing ECF No. 18 at 8). The plaintiff’s dissatisfaction with my ruling is grounds for an
appeal, not for reconsideration. I will deny his motion.
As an aside, the plaintiff in reply asserts that he exhausted his administrative
remedies because he filed his second amended complaint after completing the
administrative appeals process. ECF No. 101. Because he raised this argument for the
first time in his reply brief, it is waived. See Est. of Smith by Haynes v. City of Milwaukee,
410 F. Supp. 3d 1066, 1076 (E.D. Wis. 2019); Little v. Foster, No. 16-CV-805-JPS, 2017
WL 2912465, at *2 (E.D. Wis. July 7, 2017) (enforcing this rule against a pro se litigant).

6
Case 2:20-cv-00562-LA Filed 11/18/21 Page 6 of 8 Document 102

Nonetheless, the plaintiff is incorrect. Under the PLRA, “[n]o action shall be brought with
respect to prison conditions . . . until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a) (emphasis added); see Cannon v. Washington, 418
F.3d 714, 719 (7th Cir. 2005) (“A prisoner may not file a lawsuit before exhausting his
administrative remedies, even if he exhausts those remedies while the litigation is
pending.”). The plaintiff brought this action on April 1, 2020—the day he signed his initial
complaint. ECF No. 1 at 16. The original complaint included his religious fasting claim. Id.
at 2, 4–8. The plaintiff did not amend his complaint to include the fasting claim for the first
time after exhausting his administrative remedies, which would have been permissible.
See Cannon, 418 F.3d at 719. Instead, the amended complaints repleaded the same
unexhausted fasting claim as in the initial complaint, which does not satisfy the PLRA’s
exhaustion requirements. See Chambers v. Sood, 956 F.3d 979, 984–85 (7th Cir. 2020)
(noting that Cannon applies only to “amended complaints raising new claims that the
plaintiff had exhausted while litigation was ongoing” (emphasis added)).
III. CONCLUSION
Since filing the two motions addressed in this order, the plaintiff filed two motions
for summary judgment on the merits of his remaining claims. ECF Nos. 89 & 94. He filed
those motions more than a month before the deadline for dispositive motions, which I
extended to December 10, 2021, before he filed his summary judgment motions. Textonly Order of 10/22/21. The defendants’ combined response and motion are due
December 10, 2021. Text Only Order of 11/10/21. Because I am denying the plaintiff’s
motions, I will not reopen discovery or extend the deadline to complete it. This case shall
proceed with briefing of the dispositive motions.

7
Case 2:20-cv-00562-LA Filed 11/18/21 Page 7 of 8 Document 102

IT IS THEREFORE ORDERED that the plaintiff’s motion to compel (ECF No. 79)
is DENIED. The plaintiff’s request to extend the discovery deadline is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for reconsideration (ECF No.
83) is DENIED.
Dated at Milwaukee, Wisconsin this 18th day of November, 2021.

s/Lynn Adelman________
LYNN ADELMAN
United States District Judge

8
Case 2:20-cv-00562-LA Filed 11/18/21 Page 8 of 8 Document 102