Compton v. Toler et al

Filing 55

ORDER signed by Chief Judge Pamela Pepper on 3/26/2024. 39 Plaintiff's motion for reconsideration DENIED. 41 Plaintiff's motion to compel DENIED. 43 Plaintiff's motion to take deposition DENIED. (cc: all counsel and mailed to Anthony Compton at Oshkosh Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ANTHONY DEWAYNE COMPTON, JR.,
Plaintiff,
v.

Case No. 22-cv-497-pp

JOSHUA TOLER,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
(DKT. NO. 39), DENYING PLAINTIFF’S MOTION TO COMPEL AND FOR
EXTENSION OF TIME (DKT. NO. 41) AND DENYING PLAINTIFF’S MOTION
TO TAKE DEPOSITIONS (DKT. NO. 43)
______________________________________________________________________________
Plaintiff Anthony DeWayne Compton, Jr., who is incarcerated at
Oshkosh Correctional Institution and is representing himself, filed this case
alleging that a number of defendants violated his constitutional rights. The
court screened the complaint under 28 U.S.C. §1915A and allowed the plaintiff
to proceed on an Eighth Amendment claim against defendant Joshua Toler
based on allegations that Toler touched him inappropriately when escorting the
plaintiff to the showers; a retaliation claim against Toler for allegedly harassing
the plaintiff because the plaintiff filed a grievance against Toler; and retaliation
claims against former defendants Emil Toney, Eric Henslin, E. Norman and
James Zanon based on allegations that they issued the plaintiff a conduct
report and encouraged him to withdraw his grievance based on the grievance
filed against Toler. Dkt. No. 11 at 13-14. On September 12, 2023, the court
granted the defendants’ motion for partial summary judgment on exhaustion
1

grounds as to the plaintiff’s retaliation claims; the court dismissed defendants
Toney, Zanon, Henslin and Norman. Dkt. No. 36 at 13-14. The plaintiff’s
Eighth Amendment claim against defendant Toler survived summary judgment.
This order addresses motions the plaintiff has filed since.
I.

Plaintiff’s Motion for Reconsideration (Dkt. No. 39)
On December 21, 2023, the court received from the plaintiff a motion for

reconsideration in which he contends that the defendants’ motion for partial
summary judgment on exhaustion grounds focused solely on retaliation “and
failed to properly address the fact that Plaintiff had exhausted administrative
remedies on other claims against Toney and Henslin that should have kept
them as defendants within this Civil Action.” Dkt. No. 39 at 1. The plaintiff
states that the scope of this case has been narrowed from what the court
originally said he could move forward on, and he asks the court to clarify his
active claim(s). Id. at 2. The plaintiff states he believes that in addition to his
Eighth Amendment claim against Toler, he should have been allowed to
proceed on a claim for “Unlawful Disciplinary Action for being punished for an
unjustified reason” because Toney did not conduct a proper PREA
investigation, initiated punishment by writing the major conduct report for
lying about an employee and moved for an arbitrary punishment that the
plaintiff did not deserve. Id. at 4. The plaintiff also contends that he should
have been allowed to proceed on a due process claim because Henslin denied
the plaintiff the opportunity to call nursing staff as witnesses and cited that the
plaintiff did not specify any nursing staff by name. Id. at 4-5. The plaintiff
2

contends that the court should not have dismissed Toney and Henslin as
defendants and asks the court to consider reinstating them. Id. at 6.
Motions to reconsider are governed by Federal Rule of Civil Procedure
54(b), which provides that non-final orders “may be revised 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); Galvan v. Norberg, 678 F.3d 581, 587 n.3
(7th Cir. 2012) (stating “Rule 54(b) governs non-final orders and permits
revision at any time prior to the entry of final judgment, thereby bestowing
sweeping authority upon the district court to reconsider a [summary judgment
motion]”). “The ‘standard courts apply in reconsidering their decisions is
generally the same under both Rule 59(e) and Rule 54(b).’” Cheese Depot, Inc.
v. Sirob Imports, Inc., Case No. 14 C 1727, 2019 WL 1505399 at *1 (N.D. Ill.
Apr. 5, 2019) (quoting Morningware, Inc. v. Hearthware Home Prods., Inc.,
Case No. 09 C 4348, 2011 WL 1376920, at *2 (N.D. Ill. Apr. 12, 2011)).
At screening, the court allowed the plaintiff to proceed on an Eighth
Amendment claim against Toler and retaliation claims against Toler, Toney,
Henslin, Normal and Zanon. Dkt. No. 11 at 13-14. The defendants did not err
in their motion for partial summary judgment when they moved for dismissal of
only the plaintiff’s retaliation claims. The defendants did not move for summary
judgment on the plaintiff’s Eighth Amendment claim against Toler and that
claim survives.1 At screening, the court did not allow the plaintiff to proceed on

On March 7, 2024, defendant Toler filed a motion for summary judgment on
the merits of the plaintiff’s remaining Eighth Amendment claim against him.
1

3

a due process claim based on his disciplinary hearing because the plaintiff
alleged that he was punished with ten days disciplinary separation time, which
the court concluded did not implicate his rights under the due process clause.
Id. at 11-13. And while the court allowed the plaintiff to proceed on a
retaliation claim against Toney and Henslin for issuing him the conduct report
for lying about staff, the court dismissed that claim on exhaustion grounds.
Dkt. No. 36. The plaintiff has not shown that the court’s order contains a
manifest error of law. The court will deny the plaintiff’s motion for
reconsideration.
II.

Plaintiff’s Motion to Compel and Motion for Extension of Time
(Dkt. No. 41)
On February 1, 2024, the court received from the plaintiff a combined

motion to compel discovery and for an extension of time. Dkt. No. 41. In the
motion to compel, the plaintiff asks the court to order the defendant to produce
discovery that he requested on December 11, 2023 and January 18, 2024, and
to instruct defense counsel to cooperate with the plaintiff in the future. Id. at 1.
In the motion for an extension of time, the plaintiff references his ongoing
difficulty in obtaining discovery material from the prison litigation coordinator
at his institution and asks for an extension of time for the completion of
discovery and filing dispositive motions. Id. Regarding the prison litigation
coordinator, the defendant submitted to the plaintiff discovery material that
includes video footage the plaintiff cannot possess, and he must make an
Dkt. No. 47. The court ordered the plaintiff to file a response to that motion by
the end of the day on April 8, 2024. Dkt. No. 54.
4

appointment with the litigation coordinator to view it; he said he had not yet
been able to do that. Dkt. No. 42 at ¶¶2-4. The plaintiff also states that if the
court grants his motion for reconsideration, defendants will be added to the
case and he will have more discovery requests. Dkt. No. 41 at 1. Finally, the
plaintiff asserts that he wants to depose three witnesses and he needs more
time to establish this process.2 Id. at 2. The plaintiff asks for a ninety-day
extension of the deadlines for the completion of discovery and filing motions for
summary judgment on the merits. Id.
In response, the defendant points out that the plaintiff’s motion to
compel is premature. Dkt. No. 46 at 1. Under the court’s scheduling order, the
defendant has sixty days to respond to the plaintiff’s discovery requests; the
defendant’s responses to the requests the plaintiff submitted on December 11,
2023 and January 18, 2024 were not yet due as of the date the plaintiff filed
his motion to compel. Id. The defendant states that on February 2, 2024,
counsel sent the plaintiff a letter explaining the discovery schedule and
informing the plaintiff that defense counsel had contacted the litigation
coordinator at his institution regarding his access to view restricted documents
that were responsive to his previous discovery requests. Id. The defendant also
states that the litigation coordinator confirmed that the plaintiff was able to
view the restricted material responsive to Defendant’s Response to Plaintiff’s
First and Second Request for Production of Documents. Id. at 1-2. And the

The plaintiff filed a separate motion to take depositions, addressed below.
Dkt. No. 43.
2

5

defendant says he provided a timely response to any outstanding discovery on
February 8, 2024. Id. at 2. The defendant did not respond to the plaintiff’s
motion for extension of time.
The court will deny the plaintiff’s motion to compel because it was
premature (and because the defendant since has responded to the plaintiff’s
discovery requests). The court also will deny the plaintiff’s motion for extension
of time. The defendant’s response shows that the plaintiff has received the
requested discovery and that he has been able to access the restricted
discovery from his institution litigation coordinator.
III.

Plaintiff’s Motion to Take Depositions (Dkt. No. 43)
The plaintiff has filed a motion to conduct an audiovisual deposition with

three non-party witnesses who are employed at Oshkosh. Dkt. No. 43. He asks
the court to subpoena them for the depositions and, because the plaintiff is
indigent, he asks the court to appoint a court reporter to record the deposition
testimony. Id. at 2.
The plaintiff states that he wants to depose Warden Cheryl Eplett,
Security Director Emil Toney and Nurse Practitioner Tracy Thompson. Id. at 1.
According to the plaintiff, Toney investigated the incident, gave the plaintiff a
major conduct report (for lying about staff) and initiated the punishment the
plaintiff received. Id. The plaintiff states that Eplett subsequently dismissed the
conduct report from his record but that there is no explanation as to why she
did so. Id. at 2. He says he wants to question Toney and Eplett about their
respective decisions. Id. In addition, the plaintiff says he wants to depose
6

Thompson, his primary caregiver at Oshkosh, who “would serve as an expert
witness to provide a description/demonstration showing and explaining the
plaintiff’s anatomy with photographs or video, and it would be used as evidence
at trial.” Id. at 2. He states that he would like to use the footage obtained side
by side with the video footage from February 1, 2021, because this “example
would better show the anatomy of the Plaintiff so there would not be any
guessing as to where Toler’s hand was on the Plaintiff’s body.” Id.
The procedure for conducting depositions on oral examination is laid out
in Fed. R. Civ. P. 30. The procedure is rather lengthy. A deponent’s attendance
may be compelled by subpoena under Fed. R. Civ. P. 45. However, the court is
not obligated to subsidize the plaintiff's litigation by paying for an officer to
take a deposition, even when the plaintiff is indigent. See, e.g., McNeil v.
Lowney, 831 F.2d 1368, 1373 (7th Cir. 1987) (holding that although the
constitution guarantees a right of access to the courts, it does not require the
government to pay witness fees so that an indigent plaintiff can present his
case fully to the court) (citation omitted).
The plaintiff is proceeding on an Eighth Amendment claim that the
defendant touched him inappropriately while escorting him from the restrictive
housing unit to the showers. The defendant has filed a motion for summary
judgment in which he contends that video footage of the escort demonstrates
that the defendant did not inappropriately touch the plaintiff, and the
defendant submitted the video footage in support of his motion. Dkt. Nos. 47,
48. The plaintiff can respond to the defendant’s motion without evidence from
7

the three witnesses referenced in his motion. The plaintiff does not need an
expert witness to testify about where the defendant’s hand was on the
plaintiff’s body. The plaintiff may provide that information himself (he knows it
best) in a declaration and may reference the video footage if applicable. In
response to the defendant’s motion for summary judgment, the plaintiff may
include his documentation about Eplett dismissing his conduct report and
argue why he believes that fact is relevant to his claim against the defendant.3
The court will deny the plaintiff’s motion to take depositions.
IV.

Conclusion
The court DENIES the plaintiff’s motion for reconsideration. Dkt. No. 39.
The court DENIES the plaintiff’s motion to compel. Dkt. No. 41.
The court DENIES the plaintiff’s motion for extension of time. Dkt. No.

41.
The court DENIES the plaintiff’s motion to take deposition. Dkt. No. 43.
Dated in Milwaukee, Wisconsin this 26th day of March, 2024.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

If needed, the plaintiff may file a motion for an extension of time to respond to
the defendant’s motion for summary judgment.
3

8