Carter, Tommie v. Waterman, Jolinda

Filing 88

ORDER that the following motions filed by plaintiff Tommie Carter are DENIED: motion for recusal, dkt. #68 (in case no. 13-cv-742-bbc) and dkt. #92 (in case no. 14-cv-399-bbc); motion for access to his institutional file, dkt. #77 (in case no. 13-cv- 742-bbc) and dkt. #110 (in case no. 14-cv-399-bbc); August 21, 2015 motion to compel discovery, dkt. #93 (in case no. 14-cv-399-bbc); motions for assistance in recruiting counsel, dkt. ##109 and 111 (in case no. 14-cv-399-bbc); and motion to stay, dk t. #124 (in case no. 14-cv-399-bbc). Plaintiff's September 14, 2015 motion to compel, dkt. #76 (in case no. 13-cv-742-bbc), is GRANTED. Defendant Jolinda Waterman may have until October 30, 2015, to produce a copy of her curriculum vitae as well as that of Ryan Holzmacher. Plaintiff's August 13, 2015 motion to compel, dkt. #90 (in case no. 14-cv-399-bbc), is GRANTED. Defendants may have until October 30, 2015, to produce a copy of Leighton Lindsey's letter. Plaintiff's August 21, 2015 motion to compel video evidence, dkt. #94 (in case no. 14-cv-399-bbc), is GRANTED IN PART. Defendants may have until October 30, 2015, to either produce the video plaintiff is requesting or provide a supplemental res ponse. With the respect to plaintiff's motions for sanctions, dkt. #52 (in case no. 13-cv-742-bbc) and dkt. ##80 and 123 (in case no. 14-cv-399-bbc), and defendants' motion for sanctions, dkt. #83 (in case no 13-cv-742-bbc), an evid entiary hearing will be held on November 6, 2015 at 9:00 a.m. The clerk of court is directed to issue a writ of habeas corpus ad testificandum for plaintiff. Plaintiff should arrive no later than 8:30 a.m. on November 6. Signed by District Judge Barbara B. Crabb on 10/19/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - TOMMIE CARTER,
OPINION and ORDER
Plaintiff,
13-cv-742-bbc
v.
JOLINDA J. WATERMAN,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

TOMMIE CARTER,
OPINION and ORDER
Plaintiff,
14-cv-399-bbc
v.
SANDRA M. ASHTON,
RYAN P. ARMSON, TRACY R.
KOPFHAMER, MIKE A. MORRISON,
JASEN B. MILLER, JOSEPH W.
CICHONIWICZ, TROY HERMANS,
CRAIG A. TOM and PHILIP J. KERCH,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se prisoner Tommie Carter is proceeding in these cases on claims that prison
officials used excessive force against him on February 27, 2013 (case no. 14-cv-399-bbc) and
failed to provide medical care for his chest pain (case no. 13-cv-742-bbc). Over the last few

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weeks, plaintiff has continued his pattern of filing various motions in which he alleges that
prison officials are trying to interfere with his ability to litigate this case. In addition, he has
filed a motion for my recusal, motions to compel discovery, motions for assistance in
recruiting counsel and a motion for staying case no. 14-cv-399-bbc. Defendants have filed
a motion to dismiss case no. 13-cv-742-bbc on the ground that plaintiff has fabricated
evidence to support his claim. (Both sides have filed motions for summary judgment in both
cases and plaintiff has filed motions related to the evidence for those motions, but I am not
addressing any of those motions in this order.)
I am denying most of plaintiff’s motions, with a few exceptions that are explained
below. I am holding an evidentiary hearing on the parties’ motions for sanctions because
those motions cannot be resolved without making credibility determinations.

OPINION
A. Motions Related to Both Cases
1. Motion for recusal, dkt. #68 (in case no. 13-cv-742-bbc) and dkt. #92 (in case no. 14-cv399-bbc)
Plaintiff requests my recusal in both cases on the ground that I have “joined in a
combined conspiracy with defendants and their attorney against” plaintiff. In addition, he
says that I have “a long professional and social relationship with defendants’ attorneys” and
that I have prejudged the case.
The standards governing a federal judge’s recusal are set out in 28 U.S.C. § 144 and

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§455. Section 144 requires a federal judge to recuse herself for "personal bias or prejudice."
Section 455(a) requires a federal judge to "disqualify himself in any proceeding in which his
impartiality might reasonably be questioned," and section 455(b)(1) provides that a judge
shall disqualify himself if he "has a personal bias or prejudice concerning a party." Because
the phrase "personal bias or prejudice" found in § 144 mirrors the language of § 455(b), they
may be considered together. Brokaw v. Mercer County, 235 F.3d 1000,1025 (7th Cir.
2000).
In deciding whether a judge must disqualify herself under 28 U.S.C. § 455(b)(1), the
question is whether a reasonable person would be convinced the judge was biased. Hook
v.McDade, 89 F.3d 350, 355 (7th Cir. 1996) (internal quotation omitted). Recusal under
§455(b)(1) "is required only if actual bias or prejudice is proved by compelling evidence."
Id.
Section §144 provides that when a party makes and files a timely and sufficient
affidavit alleging that the judge has a personal bias or prejudice either against him or in favor
of the adverse party, the judge should proceed no further and another judge should be
assigned to the proceeding. The affidavit is to "state the facts and the reasons for the belief
that bias or prejudice exists." The factual statements of the affidavit must support an
assertion of actual bias. United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985).
They must be definite as to times, places, persons and circumstances. Id. Only those facts
that are "sufficiently definite and particular to convince a reasonable person that bias exists"
need be credited. United States v. Boyd, 208 F.3d 638, 647 (7th Cir. 2000). "Simple

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conclusions, opinion or rumors are insufficient." Id. The court must assume the truth of the
factual assertions even if it "knows them to be false." Balistrieri, 779 F.2d at 1199.
Plaintiff has not filed an affidavit stating the facts and reasons for his belief that bias
or prejudice exists. In fact, plaintiff has not supported his allegations with evidence of any
kind. To the extent plaintiff believes that I am biased against him because I have denied
some of his motions in these cases, adverse rulings are not a ground for recusal. Liteky v.
United States, 510 U.S. 540, 555 (1994); Collins v. Illinois, 554 F.3d 693, 697 (7th Cir.
2009). Accordingly, I am denying plaintiff’s motion for recusal.

2. Motion for access to institutional file, dkt. #77 (case no. 13-cv-742-bbc); dkt. #110 (case
no. 14-cv-399-bbc)
Although plaintiff says in this motion that he is seeking sanctions against defendants,
he does not discuss any conduct by defendants, sanctionable or not. Instead, he says that
various other prison officials have denied his request to see his “security files,” which he says
“contain investigation notes about these incidents with the defendants.” Plaintiff does not
deny defendants’ allegation that he was allowed to review his institution file on July 23,
2015 and that prison rules allow prisoners to review institution files once every six months.
If the prisoner needs to review his file more often than that he must submit a request to the
warden, explaining his reasons for needing the file.
As I have told plaintiff in previous orders, e.g., dkt. #46 (in case no. 13-cv-742-bbc)
and dkt. #62 (in case no. 14-cv-399-bbc), a court’s authority over nonparties is limited.

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Normally, if a party wishes to obtain documents from a nonparty he must request a
subpoena under Fed. R. Civ. P. 45, which plaintiff has not done. Further, even if I assume
that I have the authority to direct the warden to allow plaintiff to review his file, plaintiff
does not explain why he failed to review the relevant documents on July 23, 2015. The rules
regarding reviewing institution files are published, DAI Procedure #900.502.03, dkt. #80-1,
so plaintiff should have known then the time limitations for reviewing his file.
That being said, defendants acknowledge that a prisoner is entitled to review his file
more frequently if he needs to do so for pending litigation and defendants do not respond
to plaintiff’s allegation that the warden and other officials have refused plaintiff’s repeated
requests to review his file again so that he can collect evidence related to his cases.
Accordingly, if plaintiff submits another request to the warden, he should (1) explain that
he needs to review his file for a pending case; (2) identify the lawsuit to which his request
relates; (3) explain why he believes information in his file is relevant to his case; and (4)
include a copy of this order with his request; and (5) send a copy his request to defense
counsel. If plaintiff does this, I ask that counsel take steps to insure that plaintiff is able to
review his file again.

B. Motions Related to Case No. 13-cv-742-bbc Only
1. September 14, 2015 motion to compel, dkt. #76
Plaintiff wants a copy of the curriculum vitae for defendant Jolinda Warerman and
Ryan Holzmacher, who is an expert for defendant. Because defendants do not identify any

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reason they failed to comply with these requests, I am granting this motion. However, I am
denying plaintiff’s request for discovery sanctions.

C. Motions Related to Case No. 14-cv-399-bbc Only
1. August 13, 2015 motion to compel, dkt. #90
Plaintiff seeks to compel defendants to produce a letter that prisoner Leighton
Lindsey wrote them regarding this case. According to plaintiff, Lindsey told him that the
letter includes information that defendants can use to prevail. In their discovery response,
defendants objected, both because the letter was irrelevant and because producing it would
pose a security risk. However, in their brief, defendants’ only objection is that the letter is
irrelevant to plaintiff’s claims, so I conclude that defendants have abandoned their security
argument.
With respect to relevance, defendants say that the letter does not have any because
they are not planning to call Lindsey as a witness. However, I am aware of no rule that a
document is not subject to discovery unless the document’s author plans to testify. Even if
defendants do not call Lindsey as a witness, the letter could have information that
defendants could use against plaintiff at trial. (Defendants do not argue that they are
entitled to keep the contents of letter secret because they intend to use the letter for the sole
purpose of impeachment, so I do not consider that issue.) Accordingly, I am directing
defendants to produce the letter.

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2. August 21, 2015 motion to compel discovery, dkt. #93
Plaintiff lists eight sets of documents that he wants defendants to produce, but he
does not explain why he wants any of the documents and why he believes defendants’
objections to producing them are unreasonable. Accordingly, I am denying this motion as
unsupported.

3. August 21, 2015 motion to compel video evidence, dkt. #94
Plaintiff wants the video footage of a camera in the day room where the use of force
occurred. Defendants do not deny that there is a video camera in that day room, but they
object to providing a video because “no such video exists.” Dkt. #99 at 1. That conclusory
objection is not sufficient. Accordingly I am directing defendants to either produce the video
plaintiff is requesting or provide a supplemental response that addresses the following
questions: (1) whether there is a video camera in the room where the use of force occurred;
(2) if so, whether the video was recording at the relevant time; (3) if so, what happened to
that video; (4) if the video was lost, what efforts have been taken to find it; (5) what
information defendants relied on to make each of these determinations; and (6) if the video
is recovered, why defendants will not produce the video. If plaintiff is not satisfied with
defendants’ response, he will have to file a new motion to compel.

4. Motions for assistance in recruiting counsel, dkt. ##109 and 111
A pro se plaintiff is entitled to assistance in recruiting counsel if the complexity of the

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case exceeds his ability to litigate. Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007).
Plaintiff says that he needs counsel because he believes he is mentally ill, he is transferred
to different prisons frequently, the case is complex and he is not trained in the law. I have
addressed all of these issues in previous orders, dkt. ##81 and 62, so it is unnecessary to do
so again. Plaintiff has not provided any new information supporting the view that he is
unable to represent himself. The many motions that he has filed show that he is more than
capable of advocating for his rights and interests.

5. Motion to stay the case, dkt. #124
Plaintiff requests a stay of the case while a related criminal case is pending in state
court. In an order dated September 23, 2015, I denied a similar motion filed by defendants
on the ground that they did “not identify any specific conflicts between the civil and
criminal cases and because the stay defendants request would be indefinite.” Dkt. #112.
Because plaintiff does not identify any new reasons for a stay, I am denying his request as
well.

D. Sanctions Motions
Both sides have filed motions to sanction the other. First, defendants have asked the
court to dismiss case no. 13-cv-742-bbc on the ground that plaintiff fabricated evidence to
support his claim. Dkt. #83. In particular, defendants allege that plaintiff falsified health
service requests after he filed this lawsuit to suggest that he had sought treatment for his

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chest pain. In support of this allegation, defendants say that the requests are not part of
plaintiff’s medical file; the requests lack a date stamp from a nurse, which all requests should
receive; the nurses who allegedly signed the requests deny that they did so; and one of the
nurses was not at the prison on the day she allegedly signed the request.
Defendants’ allegations are serious.

A party who falsifies evidence could face

dismissal of his case as a sanction, Hoskins v. Dart, 633 F.3d 541, 542-44 (7th Cir. 2011);
Negrete v. National Railroad Passenger Corp., 547 F.3d 721, 722 -24 (7th Cir. 2008); Allen
v. Chicago Transit Authority, 317 F.3d 696, 703 (7th Cir.2003), or even referral to the
United States Attorney for possible prosecution of perjury. Neal v. LaRiva, 765 F.3d 788,
790 (7th Cir. 2014); Rivera v. Drake, 767 F.3d 685, 687 (7th Cir. 2014). However, I
cannot conclude as a matter of law from defendants’ submissions that plaintiff has submitted
fabricated evidence, so I will hold an evidentiary hearing on defendants’ motion. Both sides
should be prepared to produce any evidence they have to support their version of the facts
on the question whether plaintiff falsified health service request forms to bolster his claim.
In addition, in the event that I determine that a sanction is appropriate, the parties should
be prepared to argue (with appropriate legal authority) what that sanction should be.
For his part, plaintiff filed two motions for sanctions, one that he filed in both cases
on August 3, 2015, (dkt. #52 in case no. 13-cv-742-bbc and dkt. #80 in case no. 14-cv-399bbc), and one that he filed in case no. 14-cv-399-bbc on October 5, 2015, dkt. #123. In
these motions, plaintiff alleges that prison staff members have retaliated against him in
various ways for filing these lawsuits and attempted to stop him from continuing with his

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litigation. Plaintiff’s allegations are disturbing, particularly with respect to his August 3
motion. For example, in paragraph 20 of that motion, plaintiff alleges the following:
On July 23, 2015, a John Doe Lieutenant and several John Doe and Jane Doe
officers call[ed] to plaintiff[’s] cell and threaten[ed] to use the taser on him if
he did not put his hands behind his back to be handcuff[ed]. Plaintiff
complied. Plaintiff was transported to a room in the HSU area that he has
never seen before and all of sudden Nurse Larson said, “Nigger do you want
this to stop?” Plaintiff did not respond. Nurse Larson said to John Doe
Lieutenant to fuck him real good. The plaintiff was raped in the presence of
several female officers who made discriminatory comments and when the
plaintiff scream[ed] for help, he was tased and sprayed with gas.
Plaintiff’s motions are filled with similar allegations of physical violence, sexual
violence, threats, racial slurs, defamatory statements and destruction of his legal property.
According to plaintiff, staff have told him that the retaliation “is not going to stop until the
plaintiff dismiss[es] his claims.” Case no. 13-cv-742-bbc, dkt. #52 at 4.
If any of plaintiff’s allegations are true, they show a shocking level of brutality and
corruption in the Wisconsin Department of Corrections. On the other hand, if plaintiff’s
allegations are false, they are a serious abuse of the judicial process. For both of these
reasons, plaintiff’s allegations require a response from this court. Accordingly, I will consider
plaintiff’s allegations at the evidentiary hearing as well. Plaintiff should be prepared to
provide any evidence he has to support his allegations in his August 3, 2015 motion and his
October 5, 2015 motion, which may include his own testimony. If plaintiff shows that
prison officials are retaliating against him in the ways that he describes, I will consider
appropriate injunctive relief to protect plaintiff from further harm. However, if the evidence
shows that plaintiff is fabricating his allegations, then I will consider appropriate sanctions,

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including dismissal of both of his lawsuits pending in this court. Again, the parties should
be prepared to argue what injunctive relief or sanction is appropriate, if any.

ORDER
IT IS ORDERED that
1. The following motions filed by plaintiff Tommie Carter are DENIED: motion for
recusal, dkt. #68 (in case no. 13-cv-742-bbc) and dkt. #92 (in case no. 14-cv-399-bbc);
motion for access to his institutional file, dkt. #77 (in case no. 13-cv-742-bbc) and dkt.
#110 (in case no. 14-cv-399-bbc); August 21, 2015 motion to compel discovery, dkt. #93
(in case no. 14-cv-399-bbc); motions for assistance in recruiting counsel, dkt. ##109 and
111 (in case no. 14-cv-399-bbc); and motion to stay, dkt. #124 (in case no. 14-cv-399-bbc).
2. Plaintiff’s September 14, 2015 motion to compel, dkt. #76 (in case no. 13-cv-742bbc), is GRANTED. Defendant Jolinda Waterman may have until October 30, 2015, to
produce a copy of her curriculum vitae as well as that of Ryan Holzmacher.
3.

Plaintiff’s August 13, 2015 motion to compel, dkt. #90 (in case no.

14-cv-399-bbc), is GRANTED. Defendants may have until October 30, 2015, to produce
a copy of Leighton Lindsey’s letter.
4. Plaintiff’s August 21, 2015 motion to compel video evidence, dkt. #94 (in case
no. 14-cv-399-bbc), is GRANTED IN PART. Defendants may have until October 30, 2015,
to either produce the video plaintiff is requesting or provide a supplemental response that
addresses the following questions: (1) whether there is a video camera in the room where the

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use of force occurred; (2) if so, whether the video was recording at the relevant time; (3) if
so, what happened to that video; (4) if the video was lost, what efforts have been taken to
find it; (5) what information defendants relied on to make each of these determinations; and
(6) if the video is recovered, why defendants will not produce the video.
5. With the respect to plaintiff’s motions for sanctions, dkt. #52 (in case no. 13-cv742-bbc) and dkt. ##80 and 123 (in case no. 14-cv-399-bbc), and defendants’ motion for
sanctions, dkt. #83 (in case no 13-cv-742-bbc), an evidentiary hearing will be held on
November 6, 2015 at 9:00 a.m.
6. The clerk of court is directed to issue a writ of habeas corpus ad testificandum for
plaintiff. Plaintiff should arrive no later than 8:30 a.m. on November 6.
Entered this 19th day of October, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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