Bergeron Davila v. Marquez et al

Filing 78

ORDER signed by Chief Judge Pamela Pepper on 3/12/2025. 46 47 50 64 69 72 Plaintiff's motions for order DENIED. 48 54 62 Plaintiff's motions to compel DENIED. 53 69 Plaintiff's motions for order DENIED AS MOOT. 60 Plaintiff's motion to compel DENIED WITHOUT PREJUDICE. 66 Plaintiff's motion for order on pending motions GRANTED. (cc: all counsel and mailed to Raymond Bergeron-Davila at Green Bay Correctional Institution-with copy of Dkt. No. 45)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
RAYMOND J. BERGERON-DAVILA,
Plaintiff,
v.

Case No. 23-cv-1260-pp

DEION MARQUEZ,
Defendant.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR ORDER (DKT. NO. 46),
DENYING PLAINTIFF’S MOTION FOR ORDER (DKT. NO. 47), DENYING
PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 48), DENYING PLAINTIFF’S
MOTION FOR ORDER TO VIEW PRISON RECORDS (DKT. NO. 50),
DENYING AS MOOT PLAINTIFF’S MOTION FOR ORDER (DKT. NO. 53),
DENYING PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 54), DENYING
WITHOUT PREJUDICE PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 60),
DENYING PLAINTIFF’S MOTION TO COMPEL (DKT. NO. 62), DENYING
PLAINTIFF’S MOTION FOR EMERGENCY ORDER (DKT. NO. 64),
GRANTING PLAINTIFF’S MOTION FOR ORDER ON PENDING MOTIONS
(DKT. NO. 66), DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
(DKT. NO. 69), DENYING AS MOOT PLAINTIFF’S MOTION FOR ORDER
(DKT. NO. 69), DENYING PLAINTIFF’S MOTION FOR ORDER REGARDING
DEFENDANT’S RESPONSE AND VIDEO EVIDENCE PRESERVATION
(DKT. NO. 72)
______________________________________________________________________________
Plaintiff Raymond J. Bergeron-Davila, who is incarcerated at Green Bay
Correctional Institution and is representing himself, filed a complaint under 42
U.S.C. §1983, alleging that defendant Deion Marquez violated his
constitutional rights. The court screened the complaint and allowed the
plaintiff to proceed on an Eighth Amendment claim against the defendant
based on allegations that on July 4, 2023, the plaintiff told the defendant that
he was suicidal and was going to cut himself, but the defendant walked away
from the plaintiff’s cell; the plaintiff alleged that he then cut himself, causing
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injury. Dkt. No. 24 at 5. The defendant answered the complaint, dkt. no. 36,
and the court issued a scheduling order, dkt. no. 37. In the following two
months, the plaintiff filed three motions (dkt. nos. 38, 43, 44); the court denied
those motions (dkt. no. 45). Since then, the plaintiff has filed several more
motions; in less than one month, the court received six motions from the
plaintiff; it received another three in a one-month period and another three in
another one-month period.
This order addresses all but one of the plaintiff’s many motions. The
court received the most recent motion on March 5, 2025. Dkt. No. 76. Under
the court’s local rules, the defendant has twenty-one days in which to respond
to that motion. It is premature for the court to rule on it in this order.
I.

Motion for Order (Dkt. No. 46)
The plaintiff first asked the court for permission to talk to, interview and

gather declarations/affidavits from incarcerated individuals who he said
overheard the plaintiff make suicidal statements. Dkt. No. 46 at 1. He also
asked for permission to interview the defendant. Id. at 2. The plaintiff stated
that he also needed the court’s help to communicate better with defense
counsel; he said that as of the date he filed his motion, defense counsel had
not been responding to his letters. Id. at 4.
The defendant responded that he did not oppose the plaintiff’s request to
correspond with other incarcerated individuals who may have information
about the case, because the plaintiff always has been allowed to speak with
witnesses. Dkt. No. 52 at 1-2. Defense counsel stated that he never had denied
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the plaintiff the opportunity to depose the defendant, but he pointed out that
the plaintiff would be required to comply with the Federal Rules of Civil
Procedure to do so. Id. at 2. Regarding communication with defense counsel,
counsel stated that the court’s assistance was not necessary because he and
the plaintiff had communicated by phone, letters and discovery (just not always
on the plaintiff’s timeline). Id. at 2-3.
The plaintiff has not shown that he needs a court order to communicate
with other incarcerated individuals or that he needs assistance in
communicating with the defendant’s lawyer. The plaintiff probably cannot
comply with the procedural rules for deposing the defendant, see Fed. R. Civ. P.
30 (requiring a party seeking a deposition to give written notice of the
deposition, arrange for having the deposition recorded and pay the cost of that
recording and arrange for an “officer appointed or designated under Rule 28” to
be present), he may ask the defendant for information through “interrogatories”
(written questions, governed by Fed. R. Civ. P. 33), requests for the defendant
to provide him with documents (governed by Fed. R. Civ. P. 34) and “requests
for admission” (where, under Fed. R. Civ. P. 36, the plaintiff may write out
factual statements and then ask the defendant to either “admit” them, “deny”
them or state that the defendant does not have enough information to admit or
deny them). The court will deny the plaintiff’s motion for order.
II.

Motion for Order (Dkt. No. 47)
The same day that the court received the motion discussed above, the

court received from the plaintiff another “motion for order,” in which he says
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that Green Bay Correctional Institution was not providing him with his mail.
Dkt. No. 47 at 1-2. He explained that he recently was at the law library and
saw a ruling on his motion for preliminary injunction but he had not received
his copy of the court’s order addressing the motion. Id. at 2. The court will
include a copy of that order (Dkt. No. 45) along with this order. The plaintiff
stated that he also needed help with his outgoing mail because he had sent a
letter to defense counsel but it appeared that counsel didn’t receive it,
otherwise counsel would have gotten back to the plaintiff. Id. at 3. The plaintiff
asked the court to send him a copy of the injunction order. Id. at 4.
Defense counsel responded that he was not aware of any mail issues at
Green Bay, but that he would discuss this with the plaintiff when the plaintiff
and defense counsel talk on the phone. Dkt. No. 52 at 3. The defendant stated
that as to the letters the plaintiff sends to counsel, counsel cannot answer
every letter or call immediately. Id. Counsel pointed out that this was especially
true considering the number of letters, motions and calls the plaintiff initiates,
including having his family members contact the defendant’s counsel on his
behalf. Id. Defense counsel reiterated that he expected that he and the plaintiff
would be able to work out these issues when they talk on the phone in the next
week (the defendant’s response is dated August 30, 2024). Id. The plaintiff did
not file a reply.
The plaintiff has not demonstrated that there are any ongoing problem
with mail at Green Bay. It appears from the court’s own docket that the
plaintiff is impatient. The court strongly encourages him to try to be more
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patient. Mail takes time to get to defense counsel and to the court. Defense
counsel has many other cases, not just the plaintiff’s, as does the court. It has
taken the court longer than it would like to address the plaintiff’s many
motions. Just because the plaintiff does not hear from defense counsel or the
court immediately does not mean that he is being ignored or forgotten. The
court will deny the plaintiff’s motion for an order regarding his mail.
III.

Motion to Compel (Dkt. No. 48)
Two weeks after the court received the above two motions, the court

received from the plaintiff a motion to compel, in which he asserted that the
defendant had provided incomplete and evasive responses to his discovery
requests. Dkt. No. 48 at 1-2. The plaintiff stated that the defendant had not
responded to his request for a more complete response. Id. at 2. He asserted
that the defendant’s response to his request for admission number 7 was
inadequate because the defendant did not provide a “yes or no” answer.1 Id. at
3. The plaintiff also argued that the defendant’s response to his request for
admission number 8 was inadequate because the defendant had evaded the

Request for Admission 7: Defendant Marquez admit that the initial
handwritten complaint dated 7-12-23 does request that all of 300 wing
wall camera footage and Officer Cummin and Marquez’s body cam footage
be preserved.
1

RESPONSE: Counsel for defendant OBJECTS to this request on the
ground that it requires speculation on the part of the defendant to
respond. Notwithstanding and without waiving said objection, in the event
Plaintiff is referring to inmate compliant GBCI-2023-10289, Defendant
asserts that the document speaks for itself.
Dkt. No. 49-1 at 2-3.
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request by saying that he lacked knowledge about whether the plaintiff had
asked for the video evidence be preserved.2 Id. at 5.
The defendant advised the court that he had responded to the plaintiff’s
questions as best he could. Dkt. No. 56 at 2. He stated that request 7 was
incomplete and required speculation on the defendant’s part to answer because
it did not sufficiently identify the document or “complaint” to which the plaintiff
was referring, so the defendant could not answer only “yes or no.” Id.
Regarding request 8, the defendant stated that although the plaintiff had asked
the defendant if the plaintiff had submitted certain documents requesting video
be preserved, the defendant has nothing to do with video preservation. Id. He
advised the court that because he—the defendant—plays no part in video
preservation, he would not be aware of whether the plaintiff submitted video
preservation requests or what any of those requests would have contained. Id.
The defendant appropriately and reasonably responded to the plaintiff’s
discovery requests. Not every question can be answered with a simple “yes” or
“no.” The court itself cannot determine whether Request for Admission #7
refers to the complaint the plaintiff filed in this lawsuit (it appears not, because
that complaint was dated September 22, 2023 and the request mentions a
Request for Admission 8: Admit that the Plaintiff did submit a DOC0643 request form on 7-25-23 requesting for video footage from correction
Officer Marquez[’s] body camera within time frames 2:30pm up to 4:30pm.
2

RESPONSE: LACK KNOWLEDGE as Defendant is a Correctional
Officer and does not receive or review video requests, nor does he preserve
videos.
Dkt. No. 49-1 at 3.
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handwritten complaint dated July 12, 2023) or a grievance the plaintiff filed
through the prison (in which case the plaintiff did not provide a grievance
number). It appears that the defendant took an educated guess that the
plaintiff was referring to the grievance referenced in the answer and said,
basically, that that grievance says what it says. As for Request #8, it is
acceptable for a party to answer a request for admission by saying that he does
not have information sufficient to allow him to answer. Though there may be
others at the prison with knowledge of requests for video footage, the defendant
isn’t one of them and it was appropriate for him to answer that, basically, he
didn’t have information that would let him answer that question. The court will
deny the motion to compel.
IV.

Motion for Order to View Prison Records (Dkt. No. 50)
A couple of days after the court received the plaintiff’s motion to compel,

it received from him another “motion for order,” asking the court to give “a
permission-Slip-Like-Court Ruling saying That the plaintiff Is Allowed to See
His own prison records” because his requests to prison staff had been ignored.
Dkt. No. 50 at 1. He stated that he was overdue for a file review pass for his
“PSU File review (mental Health records), Incident report File review, a review of
OBS Check Doc-112 Log file reviews, Inmate Complaint file review request, and
the files that contain plaintiff’s VIDEO Evidence preservation request
record/files.” Id. at 2. The plaintiff asserted that he needed access to his prison
records and that the court should not treat his request as a discovery request.
Id. at 2-3. He said that he needed documents in those records to support
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upcoming summary judgment motions. Id. at 4. The defendant responded that
the court should deny the plaintiff’s motion because the plaintiff had received
nearly everything he had asked for in discovery and many of the records he
sought to review were not related to any issues in this case. Dkt. No. 56 at 10.
It appears that the plaintiff seeks relief because his institution has not let
him access his institution records as quickly as he would like. The plaintiff has
not stated a reason for the court to interfere with prison administration, and in
any event, the law generally does not authorize courts to interfere in prison
administration. The court will deny the plaintiff’s motion. If the plaintiff needs
more time to file a dispositive motion, or to respond to one, he may file a
motion for extension of time.
V.

Motion for Order (Dkt. No. 53)
The plaintiff’s next motion consisted of a single sentence, asking the

court to let him change and correct the full name of the defendant to Deion
Marquez (presumably rather than “Correctional Officer Marquez,” which is how
the plaintiff referred to the defendant in the complaint). Dkt. No. 53. When
defense counsel accepted service of the complaint, he identified the defendant
as “Deion Marquez.” Dkt. No. 28. That is the name on the docket and the name
that the court has been using. There is no need for the plaintiff to correct or
change anything. The court will deny as moot the plaintiff’s motion for order.
VI.

Motion to Compel (Dkt. No. 54)
Two weeks after the court received the plaintiff’s first motion to compel, it

received a second one in which he challenged the adequacy of the defendant’s
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responses to some of his other discovery requests. Dkt. No. 54 at 1. The
defendant responded that defense counsel and the plaintiff had had
“numerous” phone conversations in which counsel tried to explain why the
plaintiff’s requests were unreasonable, or tried to gain a better understanding
of why the plaintiff believes some of things he believes. Dkt. No. 56 at 2-3. The
defendant states that these conversations have been largely unsuccessful. Id.
at 3. The court addresses the plaintiff’s specific discovery disputes below.
The first discovery request is from the plaintiff’s first set of
interrogatories. Dkt. No. 54 at 2. It reads:
REQUEST NO. 2: Defendant Marquez state your version of events
from the 7-4-23 Incident Regarding plaintiff’s suicide attempt
alleged in this lawsuit.
RESPONSE: Counsel for defendant OBJECTS to this request on the
grounds that it [is] broad, vague, and requires speculation on
defendant’s part for what plaintiff is seeking.
Id. The plaintiff contends that the defendant’s response is evasive,
unresponsive and incomplete. Id. The defendant responds that defense counsel
explained to the plaintiff that this request covered too much information for a
single interrogatory. Dkt. No. 56 at 3. He explains that such a broad
interrogatory is like the plaintiff submitting a discovery request asking the
defendants in every case to “tell me everything you know and everything you
did concerning the incidents alleged in this lawsuit.” Id. The court agrees. This
interrogatory is too broad, and the plaintiff must narrow his discovery request
by breaking it down into more specific questions. See Fed. R. Civ. P. 26(b),
33(a).
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The next dispute relates to the plaintiff’s second request for production of
documents. Dkt. No. 54 at 4. It says:
REQUEST NO. 1: Produce a document titled “interview/information
request” dated 8-29-23, by the plaintiff that was sent to Mr.
Grabowski that asked to review multiple video footage from 7-4-23,
and, produce Mr. Grabowski’s response to the 8-29-23 requests.
RESPONSE NO. 1: Upon inspection and review, there are not
documents responsive to this request.
Id. The plaintiff contends that the requested document does exist and that
“proof is located at (see) (Dkt. No. 51, Exhibit A), so if the Defendant and his
legal team want to lie about the requested document in question not existing
(when it does exist) this dishonesty with the court and plaintiff needs to be
sanctioned[.]” Id. The defendant responds that the Department of Corrections
(DOC) does not keep copies of every document that incarcerated individuals
submit and that routine documents often are simply answered and returned to
the individual. Dkt. No. 56 at 4. The defendant states that this is especially
true when the incarcerated individual is submitting requests to the wrong DOC
entities, and the response to the individual simply tells him the correct person
to contact, as happened with the alleged document the plaintiff references in
his declaration. Id.
Dkt. No. 51, Exhibit A is a handwritten list created by the plaintiff titled
“Excerpt of Log Book Video Evidence request for Preservation,” with attached
documents. One of the attached documents is an interview/information
request dated August 9, 2023, addressed to Mr. Grabowski in records. Id. at 7.
At the bottom of the request, someone whose signature appears to end with the
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letter “G” wrote, “Records handles files, not video retention. Contact. Cp.t.
Rozmarynowski.” Id. So—as of August 2024, when the plaintiff filed Dkt. No.
51, Exhibit A, the plaintiff had the document he is saying that the defendant
did not produce. It is not clear why the plaintiff is asking the defendant to
produce a document the plaintiff already has. Regardless, the defendant has
explained why the defendant may no longer have it. The court cannot order the
defendant to provide the plaintiff with a document the defendant does not
have, especially when the plaintiff already has it.
The next dispute relates to the plaintiff’s second request for production of
documents. Dkt. No. 54 at 6. It reads:
REQUEST NO. 2: The plaintiff sent a video evidence preservation
request to the G.B.C.I. Litigation Coordinator on 7-25-23, a total of
(3) pages asking to preserve multiple video footage from 7-4-23,
produce the Litigation Coordinator’s response to plaintiff’s request
which is on a document titled “interview/information request.”
RESPONSE NO. 2: Plaintiff may refer to the document at DOC-00420044.
Id. The plaintiff says that the documents the defendant provided are not the
documents he requested. Id. The plaintiff refers to his Exhibit E, dkt. no. 54-1,
which he says is the document he requested. Dtk. No. 54 at 7. He says he
needs the defendant to produce it because the plaintiff then can send the
defendant “a set of interrogatory, admissions, to have them swear to the
documents being verified as true and correct.” Id. The plaintiff states that he
needs the document to attach to his summary judgment motion, and his
motion for sanctions for spoliation of video evidence, to show that the missing
videos from the defendant’s body camera from 7-4-23 and the Green Bay RHU
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wall camera footage from that day, do exist. Id. The defendant responds that he
produced the documents he believed the plaintiff had requested. Dkt. No. 56 at
4-5. The defendant states that he is not sure which documents the plaintiff
wants. Id. at 5.
Request No. 2 is not a question, or an actual request. It is a statement—
it says that on July 25, 2023, the plaintiff sent a request for preservation of
video to the Green Bay litigation coordinator. Is the plaintiff asking for a copy of
that request? Is he asking for video footage from July 4, 2023? Is he asking
only for the litigation coordinator’s response? The court cannot tell from the
wording of the request. It appears the defendant could not tell, either. The
solution to this problem is not for the plaintiff to demand that the court compel
the defendant to comply with a request the defendant does not understand—it
is for the plaintiff to more clearly explain what it is he is asking for.
The next dispute relates to the plaintiff’s second request for production of
documents. Dkt. No. 54 at 9. It reads:
REQUEST NO. 3: The plaintiff sent a video evidence preservation
request on 7-25-23, to Mr. Grabowski asking for multiple videos to
be preserved from 7-4-23 and Mr. Grabowski replied on 6-26-23.3
Please produce this document described above (a total of 3 pages).
RESPONSE NO 3: Upon inspection and review, there are no retained
documents responsive to this request.
Id. The plaintiff contends that the defendant’s response is a lie, and he points
to his Exhibit D, which he says is the requested document. Id. The plaintiff
says he needs the documents to attach to his “motion to sanction for spoliation
3 The court assumes this is a typo and the plaintiff means 7-26-23.

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motions” and to support his motion for summary judgment. Id. The defendant
contends the plaintiff’s discovery requests contain errors and inconsistencies
that do not allow him to fulfill the plaintiff’s requests, even if the DOC had the
responsive documents. Dkt. No. 56 at 5. The defendant states that the plaintiff
misstates the defendant’s position; he emphasizes that the defendant did not
say that the documents did not exist, but that the defendant had no retained
documents to produce. Id. The defendant opines that the plaintiff is fixated on
the video preservation requests, but that those are immaterial, counsel
repeatedly has tried to explain to the plaintiff. Id. The defendant concedes that
the plaintiff asked for relevant video be preserved, but he contends that the
defendant preserved all the video he could possibly preserve, then produced all
of that video to the plaintiff. Id. Again, the plaintiff appears to be asking the
defendant to produce a document he already has. And defense counsel is
correct—the evidence of what happened on July 4 is the video, not the
plaintiff’s requests to preserve the video. The fact that the plaintiff asked the
defense to preserve video is not relevant to what the videos show.
The plaintiff says his next dispute is from his second request for
production of documents. Dkt. No. 54 at 10. It reads:
REQUEST NO 4: Produce any and all documents that were
responded to by “Paul” that were from plaintiff’s request for video
preservation to save videos from 7-4-23.
RESPONSE NO. 4: Plaintiff may refer to the document at DOC-00450058.
Id. at 10. The plaintiff contends that the defendant has not produced the
requested documents which he says will show that the missing videos exist
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because the prison staff received the plaintiff’s evidence preservation letters,
responded to the letters and saved the videos that are now missing. Id. Again,
the plaintiff has not demonstrated how his video preservation requests are
relevant. The defendant concedes that the plaintiff requested that videos of the
incident be preserved; there is no dispute over that fact, which means the
plaintiff’s requests are not relevant.
The next dispute is from the plaintiff’s third request for admission. Dkt.
No. 54 at 12. It reads:
REQUEST NO. 3: Defendant Marquez in regards to plaintiff’s
allegation made on 7-4-23 that you walked off on him after he made
suicidal statements, admit that because the plaintiff was not written
a conduct report for lying about staff (rule violation) that the plaintiff
did not lie on you regarding this particular allegation.
RESPONSE NO. 3: Counsel objects to this request on the grounds
that it is based on a false premise and assumes facts not in evidence.
Id. The plaintiff contends that the defendant is evading the request. Id. at 1213. The defendant responds that the plaintiff erroneously concludes that the
fact he did not receive a conduct report for lying on July 4, 2023 means
everything he said must be the truth. Dkt. No. 56 at 5. The defendant states
that this is obviously untrue. Id. The court agrees. There are many reasons
prison staff may not issue a conduct report (perhaps they think the
incarcerated person was mistaken or confused or suffering from mental health
issues rather than lying, for example); the fact that they do not do so does not
prove that what the plaintiff says happened actually happened.
The next dispute is from the plaintiff’s third request for admissions. Dkt.
No. 54 at 14. It reads:
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REQUEST NO 4: The background is that while prisoner Bobby
Johnson (or spelled Bobby Jhonson) was at GBCI – RHU and he told
staff he was suicidal and then recanted and received a conduct
report for lying to staff. Admit that prisoner Bobby Johnson did get
issued a conduct report because he lied to staff that he was suicidal.
RESPONSE: Counsel for defendant objects to this request on the
grounds that it requests information that is not relevant to the
claims plaintiff was allowed to proceed on in this case.
Id. The plaintiff contends he needs an answer to this request to show that
Green Bay has a practice of writing incarcerated persons up when they lie
about being suicidal. Id. He says states that if he had been lying, he would
have received a conduct report. Id. at 15. Whether another incarcerated
individual received a conduct report for saying he was suicidal and then
recanting that statement is irrelevant to whether the plaintiff tried to kill
himself.
The next dispute is from the plaintiff’s third request for admissions. Id. at
17. It reads:
REQUEST NO. 1: Defendant Marquez admit on 07-4-23 the plaintiff
alleged against you that you walked off on the plaintiff after he told
you he was suicidal and was going to cut himself, and, plaintiff never
received a conduct report for lying about staff under Rule violation
doc 303.02 for making that type of allegation.
RESPONSE NO. 1: Counsel for defendant objects to this request on
the grounds that it requests information that is not relevant to the
claims plaintiff was allowed to proceed on in this case.
notwithstanding and without waiving said objection, admit only that
plaintiff did not receive a conduct report for conduct related to July
4, 2023.
Id. The plaintiff contends that the defendant’s refusal to respond should be
sanctioned. Id. But the defendant did respond to the discovery request. And
this request is yet another way the plaintiff is attempting to get the defendant
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to say that because the plaintiff did not get written up, everything the plaintiff
says happened did happen—something the defendant cannot truthfully say
The last few pages of the defendant’s response brief contain information
about the plaintiff’s video preservation requests and the institution’s ongoing
attempts to locate and preserve videos. Dkt. No. 56 at 6-10. Particularly
relevant is defense counsel’s detailed explanation of the defendant’s attempt to
produce all the video evidence the plaintiff has requested. The court quotes it
here, because it is relevant to some of the motions the plaintiff since has filed.
Preservation Requests and Video Retention in Plaintiff’s Claim
On July 4, 2023, Plaintiff submitted a video preservation
request to Green Bay Correctional Institution (Green Bay) Litigation
Coordinator Denielle Larie. In this request, the Plaintiff requested
Green Bay retain multiple videos from the incident in this lawsuit.
On August 1, 2023, Larie forwarded [the plaintiff’s] video
preservation request to Lieutenant Rozmarynoski who was one of
the supervisors in charge of video preservation. On August 19, 2023,
Lt. Rozmarynoski reached out to Inmate Complaint Examiner (ICE)
Zachary Paul about the request. On August 28, 2023, ICE Paul
responded to Lt. Rozmarynoski and Larie that he downloaded all
available information for this incident, including body worn camera
and institution videos. (Larie Decl. ¶¶ 1-6.)
Defendant’s Video Requests
On Wednesday March 27, 2024, DOJ Advanced Paralegal
Zoua Cha sent Larie an email requesting relevant video footage and
other documents related to this case. When Larie received Paralegal
Cha’s video request, she searched the DAI folder via her work laptop
the same day. That Friday, March 29, 2024, when Larie was working
onsite at GBCI, she went to the security suite and checked the
computer that contains all preserved video to search for the
requested video. Her search produced videos related to this incident.
She emailed Lt. Swiekatowski (ICE LTE/responsible for video
preservation at GBCI) and he put all relevant videos in a folder for
me to upload to ShareFile. (Larie Decl. ¶¶ 7-8.)

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On April 1, 2024, Larie responded to Paralegal Cha informing
Cha that videos were uploaded to ShareFile, a file sharing service
that Corrections and the DOJ use to share documents. Larie also let
Cha know that Larie believed there were additional videos and Larie
would let Cha know when those videos were added to ShareFile. No
body worn camera videos for Deion Marquez were discovered during
this search. (Larie Decl. ¶¶ 9-10.)
Larie uploaded an additional video to ShareFile on April 2,
2024, and informed Paralegal Cha that there were three additional
videos that would not play, and Larie was waiting on security to
recover them. Larie reached out to Swiekatowski regarding the three
videos that would not play. On April 8, 2024, Larie followed up with
Swiekatowski regarding the three videos that would not play.
Swiekatowski responded that he had spoken with Captain Cushing,
who is another security staff member charged with video
preservation. Swiekatowski explained that the way the videos were
downloaded, no video was saved, and they would not be able to
recover the videos any longer. On this same date, Larie emailed Cha
to let her know that there were three videos that security staff were
unable to recover. Larie does not know what these three videos
contained and where security staff had attempted to save them.
(Larie Decl. ¶¶ 11-14.)
On May 3, 2024, Larie received an email from Paralegal Cha
stating that Cha was reviewing their past communications and it
sounded like there were additional videos. Larie responded that
there were additional videos, but security was unable to recover
them. On June 14, 2024, Cha reached out asking Larie to conduct
another search for videos. Larie contacted Swiekatowski for
assistance and asked if there were any other possible locations to
search for the video. Swiekatowski ended up locating multiple
external hard drives that had additional video pertaining to this case
(and many other videos unrelated to this case). He uploaded them
for Larie to the DAI folder and she placed them on ShareFile. Larie
and Swiekatowski also did another sweep on the Security Suite
computer to confirm they had all the videos. (Larie Decl. ¶¶ 15-16.)
On June 14, 2024, Larie also called Cha to inform her that staff were
able to locate videos on an external hard drive. The videos were
uploaded to ShareFile. There were no body worn camera videos for
Deion Marquez on the hard drives. Swiekatowski and security were
unable to confirm the origin of the external hard drives or who saved
the videos to these hard drives. On June 28, 2024, Swiekatowski
was able to locate a tier camera video footage. This video was
uploaded to ShareFile. (Larie Decl. ¶¶ 17-19.)
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In total, Larie sent 25 videos related to this case to the WI
DOJ. This included 22 body worn camera videos, one handheld
camera video, and two surveillance videos. There were no body worn
camera videos for Deion Marquez. (Larie Decl. ¶ 20.)
On July 12, 2024, Cha informed Larie that DOJ had
responded to Bergeron-Davila’s discovery requests, and he could
request to view the videos. Paralegal Cha uploaded the videos to
ShareFile. As of September 16, 2024, [the plaintiff] had not
submitted any requests to view the videos in this case of which Larie
is aware. [The plaintiff] will have to submit timely requests to review
videos to the Records Department so he may review any video that
he wants to review. (Larie Decl. ¶¶ 21-23.)
On Friday September 13, 2024, Larie spoke with Cha on the
phone about searching for additional videos in this case, specifically
any body-worn-camera footage from Marquez. At Cha’s request,
Larie reached out to ICE Paul. On September 13, 2024, ICE Paul
responded that he was certain he had retained all available body
worn camera footage, so it was possible that Marquez did not have
his camera turned on. To date, staff have been unable to locate any
body worn camera video footage for Deion Marquez from July 4,
2023, or find any documentation indicating that any body-worncamera footage for Marquez existed and should have been preserved.
(Larie Decl. ¶¶ 24-26.)
There are also three videos that security staff were unable to
recover. If staff do locate any additional videos related to this
incident, the videos will be sent to the DOJ via ShareFile so they can
be provided to [the plaintiff] for viewing. (Larie Decl. ¶¶ 27-28.)
Id. at 6-10.
The defendant reasonably and appropriately responded to the plaintiff’s
discovery requests. The court will deny the plaintiff’s motion to compel.
VII.

Motion to Compel (Dkt. No. 60)
About a month after receiving the second motion to compel, the court

received the plaintiff’s third motion to compel the defendant to respond to his
discovery requests. Dkt. No. 60 at 1-2. The plaintiff asserted that on August 4,
2024 and August 20, 2024, he had mailed defense counsel separate sets of
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discovery demands. Id. at 1. He said that on September 24, 2024, he’d written
defense counsel “In attempt to resolve Discovery Disputes” and saying that
defense counsel had not responded to the two August discovery demands. Id.
at 2. He said that as of October 6, 2024, he’d received only one response to his
fourth request for admissions and that he had five discovery requests
outstanding and unresponded-to. Id. The plaintiff asserted that he needed the
discovery “to support his pending motions to compel, his upcoming motion to
compel and to put together a motion to sanction for spoilation to video
evidence, as well as the plaintiff needing the due Discovery request to support
his motions for Summary Judgment.” Id. at 3.
The plaintiff did not attach to this motion the August discovery demands,
but he attached a document that appears to be a copy of his September 24,
2024 letter to defense counsel. Dkt. No. 61-1. In that letter, he says he needs
the discovery so that he can prepare his motion for spoliation regarding
“missing videos from 7-24-23 GBCI wall cam videos by strip cell area and all of
Defendant Marquez’s Body Cam Footage, all Footages from 12:00 pm up to
4:30 pm.” Id. The defendant has not responded to this motion.
As the court has observed, the plaintiff does not explain what discovery
he requested in his August 4 and 20, 2024 discovery demands. The September
24, 2024 letter he attached to the motion refers to video footage from July 3,
2023, which the defendant has told the court that he has searched for and
been unable to locate. Because the plaintiff did not provide detail about what

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discovery he requested that he claims he did not receive, the court will deny
this motion.
VIII. Motion to Compel (Dkt. No. 62)
The court received the plaintiff’s fourth motion to compel ten days after it
received the third one. Dkt. No. 62. He began this motion by stating that he
had written to defense counsel several times to try to resolve discovery
disputes, including on July 28, 2024, August 4, 2024 and August 20, 2024. Id.
at 1-2. He says that there are “three Key videos” in dispute—defendant
Marquez’s body camera footage from July 4, 2023 from 12:30 p.m. to 4:30
p.m.; “RHU’s 300 wing wall camera recording from times of 12:30 pm up to
4:30 pm;” and “GBCI’s strip cage hearing room area’s from times of 12:30 pm
up to 4:30 pm.” Id. at 2.
The plaintiff says that on July 25, 2023, he submitted a video
preservation request and that inmate complaint examiner Paul told him that no
such footage existed. Id. at 3. He says that he filed an inmate complaint “for
the missing video of Defendant Deion Marquez’s,” and that Mr. DeGroot and
Ms. Davidson “documented the videos in question were in face preserved.” Id.
The plaintiff insists that the defendant must turn over the video because
DeGroot and Davidson’s statements prove it exists. Id.
The plaintiff complains that although he asked for video footage to be
preserved starting at 2:30 p.m., the defendant preserved only a few minutes of
the Restricted Housing Unit’s 300 wing wall video, starting at 3:00 p.m. Id. at
4. He says that “a couple of documents indicates that the Rhu 300 wing wall
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cam Footage does exist from times and dates of 7-4-23 from 2:30 pm up to
4:30 pm;” he asserts that inmate complaint examiner Paul sent him a response
on August 26, 2023 showing that his “time and Dates and locations were
acknowledged and responded to as being preserved.” Id. at 5. The defendant
has not responded to this motion.
The plaintiff appears to believe that because he filed video preservation
requests and was told by prison employees that they had preserved video, he
has proven that the video he requests exists and that the defendants are
refusing to provide it. That is not the case. An evidence preservation request
requires prison employees to preserve whatever evidence exists. If the evidence
did not exist at the time employees received the request, employees cannot
preserve it. If employees preserve the evidence but that evidence is damaged,
then the employees can produce only what they have—the damaged evidence.
The court has reviewed the preservation requests and responses the
plaintiff attached to his motion. It is true that on July 25, 2023, the plaintiff
submitted a request to preserve the RHU wall camera video. Dkt. No. 63-1 at 7.
It also is true that “Paul” reviewed the request and appears to have put the
date “8/26/23” in the field next to “Video was preserved.” Id. But Paul does not
say that he viewed the video, or that the video was capable of being viewed, or
that it showed what the plaintiff says it shows. “Paul” simply wrote the date on
which the video was preserved. And DeGroot and Davidson said exactly the
same thing—that the plaintiff had asked for the video to be preserved and that
it had been preserved. Id. at 10-11. The institution employees preserved
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whatever there was to preserve, but defense counsel has explained that some of
the videos were not able to be played and some were “unrecoverable.” They
continued to look for others.
As for footage from the defendant’s body-worn camera, the plaintiff
insists that it exists because he observed the defendant with the camera.
Defense counsel, as an officer of the court, has advised the court prison
employees have found no body-worn camera footage for the defendant. Counsel
provided a declaration by Green Bay litigation coordinator Larie. Dkt. No. 57.
Perhaps the defendant neglected to activate his body camera that day. Perhaps
he did activate it and it malfunctioned. But the defendant cannot produce what
does not exist, and what he cannot find.
Based on the defendant’s filings, the court concludes that the defense
had, as of the date of the plaintiff’s fourth motion to compel, produced all of the
video institution employees had been able to find. The defense has an ongoing
obligation to produce any discovery that may surface going forward. The court
will deny the fourth motion to compel.
IX.

Motion for Emergency Order and Motion for Time Extension
(Dkt. No. 64)
A month and a half after it received the plaintiff’s fourth motion to

compel, the court received from the plaintiff a motion for emergency order and
motion for time extension. Dkt. No. 64. The plaintiff said that he was at great
risk of serious harm because on November 15, 2024, he was denied medical
treatment when Green Bay staff agreed not to treat his “self-harm injury of a
cable cord that plaintiff inserted in his arm and multiple angles and multiple
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depths under ligaments, mus[c]les, in v[ei]ns and skin and tendons etc.” Id. at
2. The plaintiff stated that he was placed in restraints because he could not
remove the metal cable cord from his arm himself. Id. On November 16, 2024,
staff allegedly told the plaintiff that the warden had approved Lieutenant
Howath, a non-medical staff member, to cut the metal cable cord out of the
plaintiff or the plaintiff’s time on the restraint bed would be extended. Id. at 23. The plaintiff said he then agreed to let Howath cut the metal cable cord out
of his arm, which Howath did using tweezers, a wire cutter and saline. Id. at 3.
The plaintiff states that this made the injury worse. Id.
The plaintiff stated that Green Bay staff members now are making the
plaintiff remove all metal that he stabs into himself on his own, which
happened on November 25-26, 2024. Id. at 3-4. The plaintiff stated that he
made a serious error when he was pulling and digging metal out and a piece
broke off and is still in his arm. Id. at 4. The plaintiff said that he lacks medical
skill to conduct surgery on himself and that prison staff is permitting his injury
to fester with metal in his arm. Id. at 5. The plaintiff asked the court to
interrupt the prison’s dangerous practice of letting him treat his self-harm
injuries. Id. He also asked the court to “address the security staff’s surgery he
did onto the plaintiff’s arm as he practiced medicine without no medical license
when he cut/pulled metal out of plaintiff’s arm on 11-16-24.” Id.
The defendant responds that the plaintiff’s assertion that he was
completely denied medical care on November 15 and 16, 2024 and November
25, 2024 “is incorrect and an outright lie to the Court.” Dkt. No. 70 at 2. The
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defendant states that the plaintiff has been receiving consistent and proper
medical treatment for his repeated, ongoing self-harm issues. Id. at 3. The
defendant has submitted a declaration from Green Bay’s health services
manager regarding the plaintiff’s care, along with medical records. Dkt. Nos.
71, 71-1. The court’s review of these records shows that the plaintiff has
received care for his self-harm attempts. Id.; Dkt. No. 71-1.
Though he did not use the words, the plaintiff is asking the court for a
preliminary injunction. A preliminary injunction is “an extraordinary and
drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S.
968, 972 (1997). The purpose of such an injunction is to minimize the
hardship to the parties pending the ultimate resolution of the lawsuit.”
Fahenm-El v. Klincar, 841 F.2d 712, 717 (7th Cir. 1988). To obtain a
preliminary injunction, the plaintiff has the burden of establishing that (1) he
is likely to succeed on the merits of his claim; (2) he has no adequate remedy at
law; and (3) he is likely to suffer irreparable harm without the injunction.
Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699
F.3d 962, 972 (7th Cir. 2012), citing Am. Civil Liberties Union of Ill. v. Alvarez,
679 F.3d 583, 589-90 (7th Cir. 2012).
The plaintiff’s claim that he needs the court to intervene because his
institution is not providing him care when he self-harms is not supported by
the record evidence presented by the defendant. The plaintiff is not entitled to a
preliminary injunction. The court will deny his motion.
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X.

Motion for Order on Pending Motions (Dkt. No. 66)
Having not heard from the court for a few months, the plaintiff filed a

motion asking for a timely ruling and for a copy of the docket. Dkt. No. 66. This
order addresses the pending motions, so the court will grant this motion.
XI.

Motion for Protective Order (Dkt. No. 69)
The plaintiff filed a motion asking the court to provide him with a reply to

his motion for an emergency order. Dkt. No. 69 at 1. The defendant filed his
opposition brief a few days late, but he has filed it and sent a copy to the
plaintiff. See Dkt. No. 70. The court will deny as moot the plaintiff’s motion for
order.
The plaintiff also asked the court to issue a protective order, asking that
the defendant’s response to his motion for emergency order be kept under seal
because it will include his medical information. Dkt. No. 69. The day after the
court received this motion from the plaintiff, the court received the defendant’s
response to the plaintiff’s motion for emergency order, which includes a brief, a
declaration and excerpts from the plaintiff’s medical records. Dkt. Nos 70, 71,
71-1. These materials describe information similar to what the plaintiff
described in his motion—that is, his self-harming activities and his interactions
with Green Bay staff. The defendant has not filed a response to the plaintiff’s
request for a protective order
“Documents that affect the disposition of federal litigation are
presumptively open to public view, even if the litigants strongly prefer secrecy,
unless a statute, rule, or privilege justifies confidentiality.” In re Specht, 622
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F.3d 697, 701 (7th Cir. 2010). The Seventh Circuit has held that there is a
general presumption that judicial records are public. Citizens First Nat. Bank
of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999). That
presumption “can be overridden only if . . . there is good cause for sealing a
part or the whole of the record in that case.” Id. (citations omitted). See also
Civil Local Rule 79(d)(3) (E.D. Wis.).
The court received the plaintiff’s motion for a protective order before it
received the defendant’s response to the plaintiff’s motion for emergency order.
The plaintiff put his medical condition at issue by filing this lawsuit and the
motion for emergency order, and he has filed documents that contain
information similar to the information in the defendant’s filings. The plaintiff
has not shown good cause for restricting the documents the defendant filed in
response to the plaintiff’s motion for emergency order.4 The court will deny the
plaintiff’s motion.
XII.

Motion for Order (Dkt. No. 72)
The court received from the plaintiff a motion asking the court to advise

the defendant of his duty to respond to the plaintiff’s motion for an emergency
order. Dkt. No. 72 at 1. The court received this motion three days after it
received the defendant’s response to the plaintiff’s motion for an emergency
order. The court will deny this motion as moot.

The medical records did contain the plaintiff’s date of birth, but the defendant
redacted it before filing the records.
4

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The plaintiff also asked the court for an order regarding a video evidence
preservation request he says he submitted to staff at Green Bay for incidents
that occurred on November 15 and 16, 2024, when he put a metal cable cord
in his arm and staff allegedly refused to treat it. Id. at 1. The court has denied
the plaintiff’s motion for emergency injunctive relief related to that incident.
The claim at issue in this case stems from the plaintiff’s July 4, 2023 self-harm
incident and is not related to the November 2024 incident. The court will not
address in this case any issues related to incidents that occurred at times other
than the July 4, 2023 incident upon which the court allowed the plaintiff to
proceed in this case. The court will deny the plaintiff’s motion.
XIII. Conclusion
The court DENIES the plaintiff’s motion for order. Dkt. No. 46.
The court DENIES the plaintiff’s motion for order. Dkt. No. 47. The court
will send the plaintiff a copy of the court’s order denying his motion
preliminary injunction (Dkt. No. 45) along with this order.
The court DENIES the plaintiff’s motion to compel. Dkt. No. 48.
The court DENIES the plaintiff’s motion for order to view prison records.
Dkt. No. 50.
The court DENIES AS MOOT the plaintiff’s motion for order. Dkt. No. 53.
The court DENIES the plaintiff’s motion to compel. Dkt. No. 54.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
compel. Dkt. No. 60.
The court DENIES the plaintiff’s motion to compel. Dkt. No. 62.
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The court DENIES the plaintiff’s motion for emergency order. Dkt. No.
64.
The court GRANTS the plaintiff’s motion for order on pending motions.
Dkt. No. 66.
The court DENIES the plaintiff’s motion for protective order. Dkt. No. 69.
The court DENIES AS MOOT the plaintiff’s motion for order. Dkt. No. 69.
The court DENIES the plaintiff’s motion for order regarding defendant’s
response and video evidence preservation. Dkt. No. 72.
Dated in Milwaukee, Wisconsin this 12th day of March, 2025.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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