Henderson, Titus v. Radtke, Dylan et al

Filing 115

ORDER signed by Judge J P Stadtmueller on 8/30/2024. 43 Plaintiff's Motion for Default Judgment of Adverse Inference Based on Spoliation of Evidence is DENIED. 59 Defendants' Motion for Sanctions is GRANTED. CASE DISMISSED with p rejudice as sanction for Plaintiff's misconduct. Plaintiff is BARRED from a period of 2 years from filing any new civil cases in the Eastern District of Wisconsin except for habeas corpus petitions relating to his criminal convictions; the Clerk of Court shall RETURN UNFILED to Plaintiff any other new civil case filings. 110 Plaintiff's Motion for Extension of Time is GRANTED. 44 Plaintiff's Motion for TRO; 49 Defendants' Motion for Partial Summary Judgment; 96 Plaintiff's Motion for Hearing; and 106 Plaintiff's Motion for Relief from Judgment and for Default Judgment are DENIED as moot. See Order. (cc: all counsel, via mail to Titus Henderson at Green Bay Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TITUS HENDERSON,
Plaintiff,

Case No. 22-CV-884-JPS

v.
CALEB ZITEK, TRISTAN RETZLAFF,
ANTHONY MELI, ALEX BONIS,
DAVID YANG, JOSHUA GOMM,
GREGORY FRIEDEL, JOHN KIND,
DREW WEYCKER, ANTHONY
MATUSHAK, RYAN BAUMANN,
ALEJANDRA MEJIA, WILLIAM
SWEIKATOWSKI, JAY VAN LANEN,
MICHAEL NEVEU, ALAN
DEGROOT, and ANDREW
WICKMAN,

ORDER

Defendants.

1.

BACKGROUND
Plaintiff, Titus Henderson, a prisoner confined at Green Bay

Correctional Institution, brings this action under 42 U.S.C. § 1983 pro se. On
May 5, 2022, the Honorable James D. Peterson of the Western District of
Wisconsin screened Plaintiff’s complaint and allowed certain claims to
proceed. ECF No. 16. The case was transferred to the Eastern District of
Wisconsin and to the undersigned on August 4, 2022. The parties have filed
opposing cross-motions seeking sanctions up to default or dismissal of this
action. Currently, the pending motions include: Plaintiff’s motion for
default judgment of adverse inference based on the spoliation of evidence,

ECF No. 43; Plaintiff’s motion for a temporary restraining order and
injunction, ECF No. 44; Defendants’ motion for partial summary judgment
based on exhaustion, ECF No. 49; Defendants’ motion for sanctions, ECF
No. 59; Plaintiff’s motion for a Pavey hearing and motion for partial
summary judgment, ECF No. 96; Plaintiff’s motion for relief from judgment
and motion for default judgment, ECF No. 106; and Plaintiff’s motion for
an extension of time to file an opposition brief, ECF No. 110.
On January 29, 2024, the Court set an evidentiary hearing for March
5, 2024. ECF No. 101. In that order, the Court acknowledged the February
14, 2024 evidentiary hearing before Judge Peterson in four related cases in
the Western District, Case Nos. 19-CV-264-JDP, 21-CV-346-JDP, 21-CV-347JPD, and 21-CV-562-JDP (the “related cases”), and instructed the parties to
submit written argument if they believed the hearing in this case could be
combined or otherwise avoided. Id. On February 7, 2024, Defendants
submitted a response, indicating their preference to stay the hearing to
determine whether issue preclusion can be applied. ECF No. 102. Based on
that guidance, on February 16, 2024, the Court vacated the evidentiary
hearing in an effort to preserve judicial resources. ECF No. 105. The Court
instructed the parties to file additional briefing within sixty days of Judge
Peterson’s decision in the related cases and what affect, if any, the decision
should have on this case. Id. The Court also ordered Defendants to provide
a transcript of the hearing with any additional briefing. Id.
On May 16, 2024, Defendants filed a brief in support of dismissal
based on issue preclusion. ECF No. 107. On June 18, 2024, the Court granted
Defendants’ motion for leave to belatedly file the transcript of the February
14, 2024 hearing before Judge Peterson. ECF No. 109. On July 1, 2024,
Plaintiff filed a motion for an extension to file a brief in opposition; the
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Court belatedly grants this motion. ECF No. 110. On July 23, 2024, Plaintiff
filed his brief in opposition to dismissal based on issue preclusion. ECF No.
111. On July 25, 2024, Defendants filed a reply brief. ECF No. 112. On
August 15, 2024, Plaintiff filed an unauthorized surreply. ECF No. 113.
The Court briefly addresses Plaintiff’s surreply. The Court’s local
rules do not provide for surreplies. C.f. Pike v. Caldera, 188 F.R.D. 519, 537
(S.D. Ind. 1999) (noting that the United States District Court for the
Southern District of Indiana has a local rule allowing for sur-replies when
there are new arguments or evidence presented in a reply brief). Moreover,
Plaintiff failed to seek leave to file his surreply. Additionally, and more
importantly, Plaintiff does not allege, and the Court does not find that
Defendants proposed new material facts or evidence in their reply brief that
would warrant a surreply. See Walker v. Green Bay Corr. Inst. Health Servs.
Unit, No. 16-C-1331, 2018 WL 3118298, at *2 (E.D. Wis. June 25, 2018). As
such, the Court will not consider Plaintiff’s unauthorized surreply.1
As such, Defendants’ request to dismiss the case based on issue
preclusion is now briefed and ready for disposition. As discussed below in
detail, the Court finds that issue preclusion applies, and the Court will
therefore grant Defendants’ motion for sanctions and dismiss this case with
prejudice.
2.

ISSUE PRECLUSION
Defendants argue that the Court should apply issue preclusion and

dismiss this case, without holding its own evidentiary hearing, because the
issue of Plaintiff’s false accusations are the same here as those that were

The Court notes that, in any event, Plaintiff previously raised the issue of
new evidence in his opposition. The Court addresses this argument in detail
below.
1

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litigated in the related cases and that resulted in the final judgment in those
cases. ECF No. 107 at 3. Judge Peterson held an evidentiary hearing in the
related cases on February 14, 2024, and issued a decision, granting
Defendants’ motion for sanctions and dismissing the cases with prejudice,
on March 26, 2024. See Henderson v. Frank, No. 19-CV-264-JDP, 2024 WL
1282783 (W.D. Wis. Mar. 26, 2024). Plaintiff argues that issue preclusion
does not apply in this case for a number of reasons that the Court addresses
in detail below. ECF No. 111.
“Under the doctrine of collateral estoppel (also known as issue
preclusion), once an issue is actually and necessarily determined by a court
of competent jurisdiction, that determination is conclusive in subsequent
suits based on a different cause of action involving a party to the prior
litigation.” See Our Country Home Enters., Inc. v. Comm'r of Internal Revenue,
855 F.3d 773, 782 (7th Cir. 2017) (internal citations omitted). Collateral
estoppel constraints, as a matter of federal law, apply only when: “’(1) the
issue sought to be precluded [is] the same as that involved in the prior
litigation, (2) the issue must have been actually litigated, (3) the
determination of the issue must have been essential to the final judgment,
and (4) the party against whom estoppel is invoked must [have been] fully
represented in the prior action.”’ Grede v. FCStone, LLC, 867 F.3d 767, 776
(7th Cir. 2017) (quoting Matrix IV, Inc. v. Am. Nat'l Bank & Trust Co. of Chi.,
649 F.3d 539, 547 (7th Cir. 2011)) (citation omitted).
As described by the United States Supreme Court, issue preclusion
“protects ... adversaries from the expense and vexation of multiple lawsuits,
conserves judicial resources, and fosters reliance on judicial action by
minimizing the possibility of inconsistent decisions.” See Montana v. United
States, 440 U.S. 147, 153–54 (1979). As aptly put by another court, without
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issue preclusion, “[r]elative certainty would be replaced by chaos.” See
Palma v. Powers, 295 F. Supp. 924, 937 (N.D. Ill. 1969). The “’principle is
simply that later courts should honor the first actual decision of a matter
that has been actually litigated.’” Stewart v. JPMorgan Chase Bank, N.A., No.
23-CV-3731, 2024 WL 554281, at *12 (N.D. Ill. Feb. 12, 2024) (quoting 18
Charles Alan Wright et al., Federal Practice and Procedure § 4416 (3d ed.
2023)).
In Jackson v. Murphy, 468 F. App’x 616 (7th Cir. 2012), the Seventh
Circuit applied issue preclusion in a case with a similar procedural history
as this case. There, the plaintiff was a pro se prisoner suing prison officials
under 42 U.S.C. § 1983. Id. at 617. At the outset, the district court split the
plaintiff’s two sets of claims into two lawsuits that proceeded
simultaneously. Id. The defendants moved for summary judgment in the
first case and partial summary judgment in the second, arguing that
Plaintiff did not exhaust his administrative remedies under the Prison
Litigation Reform Act. Id. at 618. The district court held an evidentiary
hearing in the first case and found that Plaintiff had backdated a document,
that he swore under penalty of perjury in an affidavit, was a timely
grievance. Id. The district court accordingly dismissed the case for
Plaintiff’s failure to exhaust. Id. In the second case, the district court (same
judge) did not hold a separate evidentiary hearing and instead took
“judicial notice” of the finding from the first case that Plaintiff had not
timely grieved his injuries and dismissed those claims without prejudice.
Id. As to the remaining claims, the district court granted the defendants’
motion for sanctions based on the plaintiff’s falsification of documents and
lying to the court and dismissed the case. Id.

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On appeal, the Seventh Circuit affirmed the dismissal on another
ground. See id. at 619. While the court noted that the factual findings made
at an evidentiary hearing are generally not subject to judicial notice, it
nonetheless found that the district court was not wrong to adopt its findings
about exhaustion because it “properly precluded [the plaintiff] from
relitigating an issue that it already had decided.” Id. The court found that
“’[c]ollateral estoppel (issue preclusion) will bar relitigation of the grounds
on which the present suit was dismissed.’” Id. (quoting Robinson v. Sherrod,
631 F.3d 839, 843 (7th Cir.2011). Specifically, it held that the district court
properly precluded relitigation of the plaintiff’s exhaustion arguments,
even though it had mislabeled its action as judicial notice. Id.
Here, the Court finds that all four factors are met to warrant issue
preclusion in this case. First, the issue in this case is the same issue that
Judge Peterson decided in the related cases. Significantly, Defendants filed
identical motions for dismissal as a sanction in the related cases as the
motion at issue here. See ECF No. 59 at 2 n.1. Defendants sought dismissal
based on: (1) Plaintiff lying at a deposition in the Western District Case No.
21-CV-56; and (2) Plaintiff lying in each of his declarations in the related
cases and this case. Id. at 9. Along with the motions, Defendants submitted
evidence to disprove Plaintiff’s allegations, including video evidence to
show the assistant attorneys general were not at Plaintiff’s cell front on
April 5, 2023. Id. at 10.
Judge Peterson summarized the sanctions dispute as two issues:
“(1) whether the assistant attorneys general ordered confiscation or
destruction of the property; and (2) whether [Plaintiff] fabricated his
allegations against the assistant attorneys general and other staff.”
Henderson, 2024 WL 1282783, at *3. In the written decision, Judge Peterson
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found that it “strains credulity to think that a team of Department of Justice
attorneys would order prison staff to destroy a prisoner’s legal materials,
and [Plaintiff] presents no credible evidence to support that assertion.” Id.
at *4. He therefore concluded that Plaintiff “knowingly made false
statements that several officers told him about the conspiracy to harm him.
He also falsely stated in his first declaration that his underlying statements
were based on his personal observation and video evidence.” Id.
Additionally, he found Plaintiff made other statements that were reckless
and not supported by any evidence. Id. (“The evidence here clearly shows
that [Plaintiff] recklessly accused the DOJ attorneys of serious misconduct
without any evidence supporting that accusation.”). Based on this, the
Court finds that Judge Peterson’s decision in the related cases addressed
the same issue as the issue present here, and Plaintiff makes no argument
that the issues are not the same. As such, the Court finds that the first factor
of issue preclusion is met.
Second, the Court finds that the issue at hand was actually litigated
in the related cases. Prior to the evidentiary hearings, the parties each
submitted documents in support of their respective positions of sanctions
against the other party. See id. at *1. Afterwards, Judge Peterson determined
that an evidentiary hearing was necessary, and he directed the parties to
submit specific documents and information in preparation for the hearing.
Id. At the hearing, Plaintiff testified on his own behalf and Defendants
called Attorneys Paulson, Remington, and Simcox, and prison officials
Whiting, Cushing, DeGroot, Mejia, Cortes, Reignier, and property room
officer Randy Fisher. Id. *2. The hearing lasted for over two and a half hours
and Judge Peterson asked detailed questions following the witness
testimony. See ECF No. 108-2. Following the hearing, Judge Peterson wrote
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a through decision, determining that Plaintiff had knowingly made false
statements, among other things, granted Defendants’ motion for sanctions,
and dismissed the related cases. See Henderson, 2024 WL 1282783, *1–5.
Plaintiff argues that Judge Peterson’s evidentiary hearing violated
his right to cross examine witnesses because it was held via Zoom rather
than in person. The Court disagrees. Plaintiff provides no viable legal
support for his assertion; the Sixth Amendment applies to criminal cases
and is not applicable here. As the technology has become more common,
district courts have held evidentiary hearings via Zoom. See, e.g., Collins v.
Surprise, No. 21-CV-237-BBC, 2022 WL 756877, at *3 (W.D. Wis. Feb. 25,
2022) (ordering Zoom evidentiary hearing on exhaustion issue); French v.
Hannula, No. 19-CV-503-WMC, 2021 WL 1721598, at *1 (W.D. Wis. Apr. 30,
2021) (Zoom evidentiary hearing on exhaustion issue); Ford v. Matushak, No.
19-CV-1005, 2020 WL 3798868, at *1 (E.D. Wis. July 6, 2020) (same). Further,
in the trial context, the Seventh Circuit has found that, a “judge has
discretion to allow live testimony by video for ‘good cause in compelling
circumstances and with appropriate safeguards.’” See Thomas v. Anderson,
912 F.3d 971, 977 (7th Cir. 2018) (quoting Thornton v. Snyder, 428 F.3d 690,
698 (7th Cir. 2005)). Plaintiff also generally argues that his case was not fully
litigated because Defendants could not see the exhibits on Zoom to answer
questions during cross-examination. However, the Court is not convinced;
it has reviewed the hearing transcript and Plaintiff successfully crossexamined witnesses to get his points across. The Court therefore does not
find that the Zoom hearing negated Plaintiff’s opportunity to actually
litigate his issue in the related cases. As such, the Court finds the second
factor for issue preclusion is met.

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Third, the Court finds that Judge Peterson’s determination that
Plaintiff made false statements to the court was essential to the final
judgment. There is no doubt that Judge Peterson’s decision led to the
ultimate dismissal and final judgment in the case. Upon finding that
Plaintiff knowingly lied and made statements without any reasonable
support for being true, Judge Peterson granted Defendants’ motion for
sanctions, dismissed the related cases, and directed the clerk of court to
enter judgment. See Henderson, 2024 WL 1282783, at *5. As such, the Court
finds the third factor for issue preclusion is met.
Fourth, the Court finds that Plaintiff was fully represented in the
prior action. Plaintiff contends that he was deprived of counsel for the
hearing before Judge Peterson. While the word ‘represented’ may
understandably suggest that counsel is required for this factor, a “litigant’s
pro se status in the prior suit or the current one does not insulate him from
the collateral estoppel doctrine.” United States v. Luna, No. 17 CV 1472, 2019
WL 1098936, at *4 (N.D. Ill. Mar. 8, 2019) (citing DeGuelle v. Camilli, 724 F.3d
933, 938 (7th Cir. 2013)); see also Jackson, 468 F. App’x at 619 (applying issue
preclusion in a pro se case). As such, the Court finds that the fourth factor
for issue preclusion is met.
Finally, the Court briefly addresses Plaintiff’s contention that newly
discovered evidence should preclude issue preclusion. See ECF No. 111 at
5–6. Courts have found that a “party may avoid collateral estoppel by
showing that newly discovered evidence was essential to a proper decision
in a prior action … and that he was in no way responsible for the lack of
such evidence in the prior action.” See, e.g., Luna, 2019 WL 1098936, at *4
(internal quotations omitted). Plaintiff has not met this high burden.
Plaintiff argues that there is newly discovered evidence that he will produce
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from a Brown County prosecutor and detective from his latest criminal
case, Wisconsin v. Henderson, Brown County Case No. 23-CF-1156. He
asserts these witnesses are willing to provide testimony that Defendants
and correctional officers lied about not destroying his legal property;
however, he does not provide any support for this assertion aside from his
own declaration filed with the surreply. See ECF No. 114. Further, given the
timeline of Plaintiff’s July 2023 criminal case, it remains unclear why this
evidence was not available or addressed at the February 14, 2024
evidentiary hearing. As such, the Court does not find that Plaintiff’s alleged
newly discovered evidence meets the high burden to avoid issue
preclusion.
In sum, the Court finds that issue preclusion applies; Plaintiff had
the opportunity to fully litigate this issue before Judge Peterson in the
related cases and he “doesn’t get a do-over before this Court.” See Stewart,
2024 WL 554281, at *12. Although the procedural posture of this case is
somewhat unusual, the Court likens this case to the Seventh Circuit’s
reasoning in Jackson where an evidentiary hearing was held at the district
court level in one case and issue preclusion applied in the second related
case with no hearing needed. See 468 F. App’x at 619. As such, the Court
finds that no evidentiary hearing is necessary in this case based on Judge
Peterson’s thorough decision and findings that Plaintiff knowingly made
false statements and made other statements without any reasonable
support for them being true. This is sanctionable conduct, and the Court
will therefore grant Defendants’ motion for sanctions and deny Plaintiff’s
competing motion. See Henderson, 2024 WL 1282783, *4 (citing Mach v. Will
Cnty. Sheriff, 580 F.3d 495, 501 (7th Cir. 2009); Egan v. Pineda, 808 F.3d 1180,
1180 (7th Cir. 2015); Kotsilieris v. Chalmers, 966 F.2d 1181, 1185 (7th Cir.
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1992)). The Court now turns to the question of what sanction is appropriate
in this case based on Plaintiff’s misconduct.
3.

SANCTIONS
Defendants seek dismissal of this action as the appropriate sanction

for Plaintiff’s misconduct. ECF Nos. 59 at 10–12, 107 at 11. “A district court
has inherent power to sanction a party who ‘has willfully abused the
judicial process or otherwise conducted litigation in bad faith.’” Secrease v.
W. & S. Life Ins. Co., 800 F.3d 397, 401 (7th Cir. 2015) (quoting Salmeron v.
Enter. Recovery Sys., Inc., 579 F.3d 787, 793 (7th Cir. 2009)). The Court agrees
with Judge Peterson’s thoughtful analysis and finds that dismissal of this
case with prejudice and a limited filing bar is the only appropriate sanction
to deter Plaintiff’s further abuse of the judicial process.
Plaintiff “is an experienced and relatively sophisticated pro se
litigant who has filed 23 cases in [the Western District of Wisconsin] and 8
in the Eastern District of Wisconsin, with most of those coming in the last
several years.” Henderson, 2024 WL 1282783, *5. He has already “struck out”
under 28 U.S.C. § 1915(g) by bringing lawsuits or appeals that were
dismissed because they were frivolous or malicious or they failed to state a
claim upon which relief may be granted. Id. Judge Peterson found that,
based on Plaintiff’s recent financial information, Plaintiff was already
effectively barred from filing non-imminent danger cases. Id. Judge
Peterson also noted that he had previously sanctioned Plaintiff for
repeatedly filing lawsuits naming dozens of defendants concerning
multiple unrelated series of events. Id. He found that Plaintiff’s “repeated
misconduct drains the resources of the court, the Wisconsin Department of
Justice, and the Department of Corrections.” Id.

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Based on this history, Judge Peterson concluded that the only
effective sanction would be to “fully bar [Plaintiff] from litigating civil
rights lawsuits for a period of time.” Id. This Court agrees. As such, the
Court will impose the same sanction that Judge Peterson imposed in the
related cases. First, this case will be dismissed with prejudice for Plaintiff’s
misconduct and abuse of the judicial process. Second, the Court will impose
a two-year filing bar in the Eastern District of Wisconsin that does not
include an imminent-danger exception. Id. (citing Lindsey v. Hoem, No. 193278, 2020 WL 1514856 (7th Cir. Mar. 30, 2020). The only new civil cases that
Plaintiff may file in the Eastern District of Wisconsin are habeas corpus
petitions relating to his criminal convictions; the Clerk of Court shall return
unfiled any other new civil cases that Plaintiff seeks to file for a period of
two (2) years from the entry of this Order.
4.

CONCLUSION
In sum, the Court finds that issue preclusion applies in this case and

based on Judge Peterson’s findings of Plaintiff’s misconduct, the Court
therefore grants Defendants’ motion for sanctions. The Court further finds
that the appropriate sanction is dismissal of this case with prejudice and a
limited filing bar in this district. The Court will accordingly deny Plaintiff’s
motion for sanctions (motion for default judgment of adverse interest based
on spoliation of evidence) and will deny all remaining motions as moot.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for default judgment of
adverse interest based on spoliation of evidence, ECF No. 43, be and the
same is hereby DENIED;
IT IS FURTHER ORDERED that Defendants’ motion for sanctions,
ECF No. 59, be and the same is hereby GRANTED;
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IT IS FURTHER ORDERED that this case be and the same is hereby
DISMISSED with prejudice as a sanction for Plaintiff’s misconduct;
IT IS FURTHER ORDERED that Plaintiff be and the same is hereby
BARRED for a period of two (2) years from the entry of this Order from
filing any new civil cases in the Eastern District of Wisconsin except for
habeas corpus petitions relating to his criminal convictions; the Clerk of
Court shall RETURN UNFILED to Plaintiff any other new civil case filings;
IT IS FURTHER ORDERED that Plaintiff’s motion for an extension
of time, ECF No. 110, be and the same is hereby GRANTED; Plaintiff’s
opposition brief was timely; and
IT IS FURTHER ORDERED that the parties’ remaining motions,
ECF Nos. 44, 49, 96, 106, be and the same are hereby DENIED as moot.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of August, 2024.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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This Order and the judgment to follow are final. A dissatisfied party may
appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within thirty (30) days of
the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend
this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the thirty-day
deadline. See Fed. R. App. P. 4(a)(5)(A). Moreover, under certain
circumstances, a party may ask this Court to alter or amend its judgment
under Federal Rule of Civil Procedure 59(e) or ask for relief from
judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within twenty-eight
(28) days of the entry of judgment. The Court cannot extend this deadline.
See Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The Court cannot extend
this deadline. See id. A party is expected to closely review all applicable
rules and determine what, if any, further action is appropriate in a case

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