Lewis, Jerry v. Haines, Timothy et al

Filing 35

ORDER granting in part and denying in part 31 Motion to Compel. No later than April 25, 2014, defendants must either give plaintiff a redacted copy of Procedure #900.516.03 that allows him to see any portion of the procedure that addresses the size of restraints that should be used and whether to restrain a prisoner in the front or the back, or, if the procedure does not include that information, provide plaintiff and the court a sworn statement to that effect from someone with personal knowl edge. In either case, defendants should provide an unredacted, in camera copy of the procedure to the court. In all other respects, plaintiff's motion to compel, dkt. 31, is DENIED. Signed by District Judge Barbara B. Crabb on 4/11/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JERRY LEE LEWIS,
Plaintiff,
v.

ORDER
13-cv-457-bbc

JEROME SWEENEY, et al.,
Defendants.

Pro se prisoner Jerry Lee Lewis is proceeding on a claim that defendants violated his
Eighth Amendment rights by using hand and leg restraints on him in a way that caused him
unnecessary pain.

Plaintiff has filed a motion to compel defendants to produce several

documents: (1) WSPF Procedure #900.516.03, (2) any policies that “encompass staff
observance of medical restrictions while applying hand and leg restraints on prisoners” and (3)
DAI Policy #300.00.57. For the reasons explained below, I am denying plaintiff’s motion, with
the exception that I am requiring defendants to supplement their response to plaintiff’s request
for Procedure #900.516.03.

I. WSPF Procedure #900.516.03
The parties agree that this procedure relates to the restraining and escorting of prisoners
within the institution. Defendants object to providing this procedure to plaintiff on security
grounds. In a declaration, the prison’s security director gave the following explanation:
If an inmate were to gain access of this policy, it would give them
insight as to how security staff maintain control of inmates
through the use of restraints. This policy discusses in detail the
step-by-step process of retraining an inmate. More specifically, it
discusses: retaining procedure – behind the back, unrestraining
procedure – behind the back, restraint procedure – from the front,
unrestraining procedure – from the front, non-restrained

segregated status inmates (High Risk Offender Program - Green
Phrase), miscellaneous precautions, restraint levels/escorting of
segregation inmates, general population inmates and unit main
entrance doors.
Inmates could use the information in WSPF Facility Procedure
#900.516.03 to manipulate staff, thwart security/restraining
procedures and cause an incident with staff and/or other inmates.
It is imperative to the security of the institution and safety of staff
and other inmates, that inmates not be allowed access to this
policy.
Sweeney Decl. ¶¶ 4-5, dkt. 34.
If this is all that the procedure discusses, then it has no relevance to plaintiff’s claim. The
court did not allow plaintiff to proceed on a claim that particular techniques that defendants
used on him are unconstitutional. Rather, plaintiff is alleging that defendants should have used
larger restraints on him and should have handcuffed him in the front rather than the back.
Defendants do not say expressly whether Procedure #900.516.03 addresses the general
questions of the size of restraints that should be used on a prisoner or whether a particular
prisoner should be restrained in the front or the back. If these questions are addressed by the
policy, it is difficult to see how that information could implicate security concerns.
Accordingly, I will give defendants two options: (1) give plaintiff a redacted copy of
Procedure #900.516.03 that allows him to see any portion of the procedure that addresses the
size of restraints that should be used and whether to restrain a prisoner in the front or the back,
or (2) if the procedure does not include that information, provide plaintiff and the court a sworn
statement to that effect from someone with personal knowledge. In either case, defendants
should provide an unredacted, in camera copy of the procedure to the court.

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In the future, if defendants object to the production of otherwise discoverable
information on the ground that doing so would implicate security, they should seek a protective
order under Fed. R. Civ. P. 26(c) and provide the information to the court in camera, along with
a specific explanation of their objection, rather than simply refuse to produce the information.
Rule 26(b) provides various grounds for objecting to a discovery request, but “security” is not
one of them. Thus, the burden is on defendants to show that they are entitled to withhold the
information.

II. Policy regarding medical restrictions on the use of restraints
Defendants objected to this request on the ground that no such policy exists, but they
say that they will stipulate to the fact that “correctional officers or other personnel are supposed
to observe applicable medical restrictions when applying restraints.” Dfts.’ Br., dkt. 32, at 3.
Because defendants cannot produce what does not exist, and defendants’ stipulation seems to
address plaintiff’s request, I am denying this aspect of plaintiff’s motion as moot.

III. DAI Policy #300.00.57
Defendants say that DAI Policy #300.00.57 is titled “Hunger Strikes—Inmates Refusal
to Eat or Drink” and that it has no relation to this case. Plaintiff does not dispute defendants’
description of the subject matter of the policy, but he says that the policy “has total relevance
to this lawsuit by showing that defendants have a history of deliberate indifference towards
plaintiff and WSPF policies.” Plt.’s Br., dkt. 31, at 4. However, plaintiff does not explain with
any specificity how the policy could help him prove his claims. Even if I assume that plaintiff

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believes that one or more defendants violated this policy in the past, this would not show that
defendants restrained him improperly. To the extent that plaintiff wants to argue that it is more
likely that defendants restrained him improperly because they treated him improperly when he
was on a hunger strike, this type of generalized propensity evidence would be barred by Fed. Rs.
Evid. 403 and 404(b).

ORDER
It is ORDERED that
(1)

No later than April 25, 2014, defendants must either give plaintiff a
redacted copy of Procedure #900.516.03 that allows him to see any
portion of the procedure that addresses the size of restraints that should
be used and whether to restrain a prisoner in the front or the back, or, if
the procedure does not include that information, provide plaintiff and the
court a sworn statement to that effect from someone with personal
knowledge. In either case, defendants should provide an unredacted, in
camera copy of the procedure to the court.

(2)

In all other respects, plaintiff’s motion to compel, dkt. 31, is DENIED.

Entered this 11th day of April, 2014.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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