Thomas, Darreyll v. Reese, Michael et al

Filing 163

Transmission of Notice of Appeal, Orders, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 161 Notice of Appeal. (Attachments: # 1 Order #138, # 2 Order #158, # 3 Judgment, # 4 Docket Sheet) (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DARREYLL T. THOMAS,
ORDER
Plaintiff,
v.

13-cv-597-wmc

MICHAEL REESE, et al.,
Defendants.
Pro se plaintiff Darreyll T. Thomas is proceeding on claims that deputies at the Dane
County Jail used excessive force, battered and retaliated against him because he refused to
sleep on a top bunk. Several matters are before court and are resolved as explained below.

OPINION
1.

Plaintiff’s Motion to Amend His Complaint (Dkt. #123).
Plaintiff has filed a motion for leave to amend his complaint to add claims against

Sergeant Dennis Seiren, Captain Richelle Anhalt and, Lieutenant Mark Twombly. Plaintiff
contends Seiren should be added because he supervised defendants Hampton and
VanNorman on the date of the incident that is the subject of his complaint. He further
contends Anhalt and Twombly should be added to explain why edits were made to the use of
force section of the incident report.
Plaintiff’s motion will be denied because he has failed to allege facts that would
support a finding that these individuals violated his constitutional rights. First, there is no
respondeat superior or vicarious liability under § 1983. See Monell v. Dep’t of Social Services, 436
U.S. 658, 694 (1978); Kinslow v. Pullara, 538 F.3d 687, 693 (7th Cir. 2008). In other words,
for a supervisor to be liable he or she must be “personally responsible for the deprivation of

the constitutional right.” Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001)
(quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). To be held liable under §
1983, a supervisor must “know about the conduct and facilitate it, approve it, condone it, or
turn a blind eye for fear of what they might see[.]” Matthews v. City of East St. Louis, 675 F.3d
703, 708 (7th Cir. 2012) (quoting Jones v. City of Chicago, 856 F.2d 985, 992-93 (7th Cir.
1988)). Certainly, a failure to supervise can give rise to liability under § 1983, but only “if
the supervisor, with knowledge of the subordinate’s conduct, approves of the conduct and the
basis for it.” Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir. 1997); see
also Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008). Here, plaintiff does not allege
facts showing that Sergeant Seiren was involved in the alleged use of force against him, or
even that he was aware of the incident until after it occurred.
As for Twombly and Anhalt, plaintiff’s current allegations about actions taken after
the incident, whether related to the investigation or subsequent report, also do not implicate
any constitutional violation. Of course, this does not prevent plaintiff from exploring the
possibility of a cover up by Dane County Jail generally (or these putative defendants
specifically) to the extent it may lead to the discovery of relevant information regarding the
conduct of the actual defendants.

Accordingly, his motion to add claims against these

defendants is denied.
2.

Plaintiff’s Requests for Assistance in Recruiting Counsel and the Parties’
Cross Motions for Summary Judgment.
Plaintiff has also filed at least five motions requesting assistance in recruiting counsel

in this case. Each of those motions was denied on the ground that plaintiff had not shown
that the legal and factual difficulty of the case exceeded his ability to litigate it. Pruitt v.
Mote, 503 F.3d 647, 654, 656 (7th Cir. 2007). This case has now reached the summary

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judgment stage, and both sides have moved for summary judgment. After reviewing the
parties’ respective filings, the court now is persuaded that it is appropriate to assist plaintiff
in finding counsel.
While defendants moved for partial summary judgment, they also concede that there
are disputed issues of fact with respect to plaintiff’s excessive force claim that will require a
trial. (Dkt. #131.) Indeed, the investigative reports of the incident certainly raise questions
regarding the appropriateness of the use of force against plaintiff. Plaintiff also moved for
summary judgment, but included arguments regarding claims for which he was not allowed to
proceed in this case (e.g., procedural due process and several state statutes). (Dkt. #125.)
Although plaintiff appears to have attempted to follow the court’s summary judgment
procedures, his submissions also show that he misunderstands evidentiary requirements, the
nature of the claims on which he has been allowed to proceed, and his burden at summary
judgment.

These submissions raise legitimate doubts about his ability to respond to

defendants’ summary judgment motion, much less represent himself at what appears to be a
near certain trial.
Accordingly, both motions for summary judgment will be denied without prejudice
and the case will be stayed while the court looks for counsel to represent plaintiff. After
counsel has been recruited, the court will set a status conference. Counsel may then decide
whether to request assistance in mediating this case, before renewing their respective
summary judgment motions.

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3.

Video Footage.
Finally, there remains a dispute about video footage of the incident in question. On

December 2, 2015, this court resolved several discovery disputes between the parties, but
reserved a ruling on plaintiff’s motion to compel defendants to provide him with the video
footage of the incident at issue in this case. (Dkt. #110 at 3-4.) Although defendants had
argued that allowing plaintiff to view the video raised security concerns, they provided
insufficient information regarding any particular security concern.

The court directed

defendants to either: (1) allow plaintiff to view the video; or (2) file a copy of the video with
the court, along with a specific explanation why the video footage raises a security risk,
including a sealed affidavit attaching a schematic of the room being recorded, designating the
location of all video cameras and explaining which parts of the footage in particular raise
security concerns. (Id. at 4.)
Defendants subsequently provided a copy of the video with the court, along with (1) a
schematic of the pod where the incident at issue took place (with the locations of each
security camera marked) and (2) an affidavit from Sergeant Krist Boldt, describing the jail’s
specific security concerns regarding the video. (Dkt. #111.) As described by Boldt, the
schematic shows that there are certain areas of the pod that are not fully captured by the
security cameras, which appears confirmed by the court’s review of the video footage in
question. Regardless, the use of force incident was not captured by any security camera,
which substantially diminishes the value of the video footage in question. That is not to say
that the footage would be completely useless to plaintiff, as it shows the events that occurred
right before the use of force incident and shows that several inmates were witnesses to the use

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of force. If plaintiff knows any of the inmates shown in the video, he could contact them as
potential witnesses for trial.
This leads to the question whether plaintiff is entitled to view video footage that may
have minimal evidentiary value and raises some security concerns. The court concludes that,
because it may provide some evidentiary benefit, plaintiff should be permitted to view the
video. Although defendants have raised some security concerns, the question remains why
the jail cannot move the security cameras or install additional security cameras to capture
what seems a significant and troubling blind spot in their camera system.

Additionally,

defendants’ security concerns remain rather vague and attenuated, as they are based on the
possibility that plaintiff will assume that the blind spot still exists some three years later,
return to the jail sometime in the future, and seek to somehow take advantage of that blind
spot or notify (or worse, even encourage) another inmate at the jail how to do so.
Defendants have not actually stated that plaintiff or any other inmate at the jail has
attempted to take advantage of a known or perceived blind spot in the past. Boldt does state
that allowing inmates to learn of a blind spot “might present a hazard in the future for
inmates who wanted to engage in prohibited conduct, because they would learn where they
could not be seen by deputies.” (Dkt. #96, Boldt Aff. ¶ 4 (emphasis added).) Here, however,
both Boldt and the schematics show that the area at issue here is “immediately adjacent to where
a deputy sheriff is stationed.” (Dkt. #111, Boldt Aff. ¶ 8 (emphasis added).)
Given its age and defendants failure to provide specifics as to their concerns regarding
how inmates may seek to “take advantage” of this particular area -- especially one so near a
deputy sheriff’s known location -- defendants must allow plaintiff to view the video footage in
question. Once the court has recruited counsel for plaintiff, defendants must either arrange

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for plaintiff and his counsel to view the video footage, or must provide a copy of the video to
plaintiff’s counsel. This should be accomplished within two weeks of that counsel’s filing of a
notice of appearance in this case, or other written document advising of his or her
representation of the defendant.
Plaintiff also filed three, additional motions relating to the video footage:

(1) a

motion seeking to obtain a personal copy of the video in question (dkt. #115); (2) a motion
seeking to designate the video as an “expert witness” (dkt. #120); and (3) a motion to stay
the case pending a decision on the video footage (dkt. #124). These motions will all be
denied. Plaintiff may work with his counsel to view the video footage, but plaintiff need not
be provided his own personal copy. The video footage may not be designated as an expert
witness, because it is not a person, but may still be admissible into evidence for reasons
plaintiff’s counsel can explain upon coming on board. In any event, as the court is resolving
the video footage issue and staying the case pending recruitment of counsel, the motion to
stay is moot.

ORDER
IT IS ORDERED that

1.

Plaintiff Darreyll T. Thomas’s motion to amend his complaint (dkt. #123) is
DENIED.

2.

The parties’ motions for summary judgment (dkt. ##125, 131) are DENIED
WITHOUT PREJUDICE.

3.

Plaintiff’s motions to obtain a personal copy of the video footage (dkt. #115),
to present video footage as an expert (dkt. #120), and to stay decision on his
motion for summary judgment (dkt. #124) are DENIED.

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3.

The proceedings in this case are STAYED pending recruitment of counsel for
plaintiff. If the court finds counsel willing to represent plaintiff, the court will
advise the parties. Soon thereafter, a status conference will be held.

4.

Within two weeks of plaintiff’s recruited counsel’s notice of appearance,
defendants shall arrange for plaintiff and his counsel to view the video footage
or provide a copy of the video footage to plaintiff’s counsel.

Entered this 15th day of March, 2016.

BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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