Leiser, Jeffrey v. Kloth, Karen et al

Filing 52

ORDER denying defendants' Motion for Summary Judgment (dkt. 21 ). Plaintiff Jeffrey Leiser's Motion to Strike (dkt. 38 ) is DENIED. The parties's discovery motions (dkts. 17 , 18 ) are DENIED in part. Defendants are DIRECTED to sub mit Kloth's disciplinary history and internal and external complaints filed against her, to the court under seal for the court's in camera review by November 3, 2017. All deadlines and the trial date in this matter are hereby STRICKEN, to be re-set after allowing the parties until November 3, 2017, to provide input on the new trial date. Signed by Magistrate Judge Stephen L. Crocker on 10/19/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JEFFREY D. LEISER
Plaintiff,

OPINION and ORDER

v.
Case No. 15-cv-768-slc
KAREN KLOTH, et al.,
Defendants.

Pro se plaintiff Jeffrey D. Leiser is proceeding in this lawsuit on Eighth Amendment claims
against defendants Karen Kloth, Paula Stoudt, and Reed Richardson, related to Kloth’s alleged
harassment and Stoudt and Richardson’s failure to protect him from harassment. Defendants
filed a Motion for Summary Judgment (dkt. 21), which I am denying, and Leiser filed a Motion
to Strike (dkt. 38) which I also am denying. Also, the parties have two pending motions related
to Leiser’s discovery requests (dkts. 17-18), which I am denying in part. Finally, I am striking
the upcoming trial date and scheduling this matter for a telephonic scheduling conference.

UNDISPUTED FACTS
I.

Parties
Leiser is a DOC inmate who was housed at the Stanley Correctional Institution at all

times relevant to his claims in this lawsuit. During his time at Stanley, Leiser was diagnosed with
post-traumatic stress disorder (PTSD) related to a sexual assault when he was a child. One trigger
for Leiser’s PTSD is when someone stands directly behind him. According to Leiser, when his
PTSD is triggered, he experiences flashbacks and becomes angry, starts sweating, knocks his head

against the wall, yells and screams, and wants to attack or hurt the people who trigger his PTSD.
(Leiser decl., dkt. 31, ¶ 18.)
Defendant Karen Kloth was employed at Stanley as a sergeant during the relevant time
period. Defendant Paula Stoudt was a Unit Manager at Stanley, and her responsibilities included
supervising the security, treatment, and general living conditions of the inmates. Defendant Reed
Richardson was the warden at Stanley during the relevant period, and he was responsible for the
overall administration and operation there.

II.

Stanley’s Psychological Services Unit (PSU) Approach to Inmate Diagnoses
During the relevant time period, non-defendant Dr. Jesse Frey was the psychological

supervisor at Stanley, and his responsibilities included overseeing inmate mental health
treatment there. Dr. Frey explains that PSU staff do not inform security staff about inmates’
clinical diagnoses. An exception to this general rule arises when an inmate needs a special
accommodation to address an inmate-specific psychological condition. In such a case,
psychological services staff informs unit security staff of the particular symptoms, behavioral or
emotional responses of the inmate, and the special accommodations needed to address that
inmate’s issues. Dr. Frey states that:
It is my opinion, to a reasonable degree of clinical certainty based
on my review of Leiser’s clinical records and my interactions with
him that Leiser did not need an accommodation directive
precluding Stanley security staff from standing or moving behind
him.
(Frey May 9, 2017 Declaration, dkt. 27, ¶ 16.)

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III.

Leiser’s PTSD Diagnosis and Treatment by PSU
Leiser worked consistently with PSU staff on a variety of psychological issues. During the

relevant time period, Leiser’s treating clinician was Nichole Kaeppler. It appears that she had her
first session with Leiser on October 2, 2014, at which point she noted that Leiser made
“mention of psychotherapeutic treatment as an adolescent while in foster care.” (Ex. 1005, dkt.
27-1, at 1.) According to Leiser, he told Kaeppler that he suffers from PTSD as a result of a
childhood trauma in which he was knocked out while talking to a blond female. (Leiser decl.,
dkt. 31, ¶ 10.) Leiser also claims that during that session he told Kaeppler specifically that Kloth
stands behind him to trigger his PTSD, but Kaeppler’s notes do not include that detail.
On December 18, 2014, Kaeppler noted that Leiser told her more about his childhood
trauma, this time revealing that the trauma included sexual assault. Leiser also told her that he
related the trauma to his refusal to trust others as well as his discomfort having people stand
behind him. (Ex. 1005, dkt. 27-1, at 4.) At that point, Kaeppler made a plan to clinically
monitor him to rule out PTSD. On January 8, 2015, Kaeppler met with Leiser again; she noted
that Leiser did not want to discuss his childhood sexual abuse and again, and noted her plan to
monitor him to rule out PTSD. On February 5, 2015, Kaeppler noted that Leiser talked more
about his childhood sexual assault. Kaeppler also noted that the themes he presented seemed “to
root from symptoms of PTSD.” (Id. at 7.) As such, she ordered a follow up in three weeks, and
planned with consult with Dr. Frey about Leiser’s symptoms to determine if an official PTSD
diagnosis was appropriate. She also ordered that Leiser receive PTSD workbook materials. They
met again on March 12, 2015, but the focus of that session was Leiser’s loss of a friend.

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On March 30, 2015, Kaeppler met with Leiser, and they again discussed his fear of
having people stand behind him. She noted that Leiser specifically said that his anxiety spiked
when he was waiting in line for medications in the Health Services Unit (HSU). Kaeppler noted
that she planned to assign him a PTSD diagnosis after consulting with Dr. Frey, and Dr. Frey
signed that treatment note on April 13, 2015.
Kaeppler and Dr. Frey continued to see Leiser. At times, the treatment notes indicate that
Leiser reported that he was having problems with unit staff standing behind him, but the notes
did not indicate that Leiser specifically reported that Kloth was harassing him or deliberately
triggering his PTSD. (See dkts. 31-2, 31-7, 31-8.) Neither Dr. Frey nor Kaeppler initiated a
treatment plan that would accommodate Leiser’s needs related to his PTSD. Additionally,
neither Kaeppler, nor anyone else from Stanley’s PSU informed Stanley’s other employees of
Leiser’s PTSD diagnosis or that his PTSD was triggered when people stood behind him. Dr. Frey
explains that PSU did not create or implement an accommodation prohibiting Stanley staff from
standing behind him because (1) psychological staff focus on internal, not external, changes, and
(2) Stanley is too closely populated to ensure that no one would stand behind Leiser, so any
such accommodation could not be implemented.
Leiser does not dispute that there was no official accommodation for him at Stanley.
Instead, he contends that he told his psychiatrist, Dr. Luxford, about the problem he had waiting
for his medications, and that afterwards, Dr. Luxford arranged for Leiser to receive his
medications inside the HSU rather than waiting in line. (Leiser decl., dkt. 31, ¶ 19.)

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IV.

Sergeant Kloth
At some point in 2014 and 2015, Leiser was housed in the unit where Kloth was

sergeant. The parties dispute whether Leiser told Kloth that he suffered from PTSD and that his
PTSD was triggered when someone stands directly behind him. Leiser submitted his own
declaration, stating that when he told Kloth about his PTSD, Kloth responded that she can
stand where she wants and he would have to learn to deal with it. (Leiser decl., dkt. 31, ¶ 10.)
Beyond his declaration, Leiser submits declarations from three other inmates, recounting what
they saw when Kloth and Leiser interacted. Specifically, Leiser’s brother, Loren Leiser (Loren),
states that he (Loren) told Kloth that she should not stand behind Leiser because it would trigger
his PTSD, warning her that it would be her fault if Leiser “snapped on her” and hurt her. (Loren
Leiser decl, dkt. 37, ¶¶ 16-18.) Loren also states that he saw Leiser tell Kloth not to stand behind
him as well. (Id. ¶ 19.) Loren describes what happens to Leiser when his PTSD is triggered,
explaining that he has two levels of PTSD: “level-one” involves fidgeting, sweating, and/or
darting eye movements, sometimes causing him to yell and walk away; “level-two” involves levelone symptoms, plus shaky hands, twitchy leg movements, and increased heart rate. (Id. ¶ 15.)
While Loren states that he warned Kloth that he might “snap on her,” Loren does not state that
Kloth saw Leiser experience these symptoms when Leiser interacted with her.
Two other inmates, Robert Sekola and Terry Gorichs, state that they saw Leiser tell Kloth
not to stand behind him in the cafeteria but she responded that she would stand where she
wanted and thereafter continued to stand behind him. (Gorichs decl., dkt. 35, ¶¶ 2-3; Sekola
decl., dkt. 36.) Sekola also states that when he saw Kloth stand behind Leiser, Leiser got angry
and started shaking and sweating. (Sekola decl, dkt. 36 ¶ 4.) Gorichs also explained that he was

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Leiser’s cellmate, and that he saw Leiser respond to Kloth standing behind him by dumping his
tray and going back to his cell, where he would be shaking, sweating, and talking to himself,
saying things like “She is not worth it” and “don’t hurt her, she’s not the one!” (Gorichs decl.,
dkt. 35, ¶¶ 4-6.) Gorichs states that Kloth would stand behind Leiser “every time” she worked
in Leiser’s unit as sergeant.
For her part, Kloth claims that, prior to Leiser bringing this lawsuit, she did not know
that Leiser had PTSD or that standing behind Leiser triggered his PTSD. Kloth admits that in
both the day room and cafeteria, she stood behind inmates, including Leiser, while she was
monitoring them. Yet she states that she never had any conversations with Leiser about his
PTSD, nor did Leiser complain to her that standing behind him would trigger his PTSD.
Furthermore, Kloth states that PSU staff never informed her that Leiser had PTSD, and she was
unaware of any accommodation issued to Leiser for staff not to stand behind him to avoid
triggering his PTSD.

V.

Leiser’s Complaints to Stoudt and Richardson about Kloth
Stoudt worked at the unit manager where Leiser was housed. Leiser often complained to

Stoudt about Kloth, and Stoudt knew that Leiser did not like Kloth. According to Stoudt,
however, Leiser did not make any complaints – either orally or in writing – in which he
specifically told her that Kloth was attempting to trigger his PTSD by standing behind him.
More specifically, on May of 2015, Stout reviewed the a conduct report Kloth issued
Leiser for disobeying orders. Stoudt was responsible for reviewing the conduct report and Leiser’s
statement in his defense. Although Leiser repeatedly stated that Kloth was harassing him by

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issuing the conduct report, Leiser did not report that Kloth stood behind him in an attempt to
trigger his PTSD. (Ex. 1001, dkt. 24-1, at 3.) Stoudt explains that after reviewing the conduct
report and Leiser’s statement, Stoudt gave Leiser a disposition of a reprimand. Stoudt further
states that she did not believe that the statements in the conduct report indicated that Kloth was
harassing Leiser.
As to Richardson, Leiser claims that on October 14, 2014, he sent Richardson a letter in
which Leiser reports that he suffers from PTSD and requested that Kloth be prohibited from
standing behind him. (Dkt. 31-12.) Leiser also claims that when Richardson was doing rounds
through Stanley, Leiser talked to him about Kloth, but Richardson failed to take any action.
Richardson disputes that he ever received Leiser’s October 14 letter, and similarly states
that he never had conversations with Leiser about this issue. Rather, according to Richardson,
when he reviewed acted as the Reviewing Authority for inmate complaints filed at Stanley, he
never saw any complaints from Leiser alleging that Kloth was harassing him by standing behind
him to trigger his PTSD. Richardson explains that he did review one complaint Leiser filed
related to Kloth, SCI -2015-10912, but in that complaint Leiser challenged only Kloth’s decision
to give him a conduct report, he did not claim that Kloth deliberately would stand behind him
in order to trigger Leiser’s PTSD. (See dkt. 26-2.)

OPINION
Leiser is proceeding on an Eighth Amendment claim against defendant Kloth for her
alleged harassment, and a related Eighth Amendment claim against defendants Paula Stoudt and
Reed Richardson for their failure to take action to stop Kloth’s harassment. Defendants moved

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for summary judgment on the ground that Kloth’s behavior did not rise to the level of cruel and
unusual punishment, and that the evidence does not establish that any of them knew that he
suffered from PTSD that was triggered when people stand behind him. In addition, defendants
argue that qualified immunity shields them for money damages here. Although Leiser faces a
steep uphill battle at trial, I am constrained to deny defendants’ motion.
As an initial matter, Leiser asks that I strike Dr. Frey’s declaration from the record
because Frey was not Leiser’s clinician and Frey does not have first-hand knowledge of Leiser’s
discussion with his clinician. (Dkt. 38.) However, Dr. Frey’s declaration includes only statements
related to Stanley’s approach to special accommodations as well as his review of Kaeppler’s notes
and his personal interactions with Leiser. Additionally, Leiser’s treatment records show that Dr.
Frey consistently reviewed and signed off on Kaeppler’s session notes, and that Dr. Frey met
with Leiser personally. (See generally Ex. 1005, dkt. 27-1.) Accordingly, Leiser has not established
that Dr. Frey’s statements in his declaration were not based on his personal knowledge or
involvement in Leiser’s care. I am denying Leiser’s motion to strike.

I.

Eighth Amendment Harassment Claim
The standard for assessing Eighth Amendment claims of cruel an unusual punishment

includes objective and subjective components. Fillmore v. Page, 358 F.3d 496, 509 (7th Cir.
2004). As to the objective component, the test is “not the actual fear of the victim, but what a
‘reasonable’ victim would fear.” Dobbey v. Illinois Dept. of Corr., 574 F.3d 443, 445 (7th Cir. 2009)
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1970)). The subjective component evaluates

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whether the state actor intended to inflict physical or psychological pain. Calhoun v. DeTella, 319
F.3d 936, 939 (7th Cir. 2003).
With respect to harassment claims specifically, the court also has noted that “[t]he line
between ‘mere’ harassment and ‘cruel and unusual punishment’ is fuzzy, but requires “a credible
threat to kill, or to inflict any other physical injury” for harassment to rise to the level of a
constitutional violation. Dobbey, 574 F.3d at 445; see also Hughes v. Farris, 809 F.3d 330, 334 (7th
Cir. 2015) (“Threats of grave violence can constitute cruel and unusual punishment under the
Eighth Amendment.”). More specifically, the Seventh Circuit has stated, “most verbal
harassment by jail or prison guards does not rise to the level of cruel and unusual punishment.”
Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015) (citing DeWalt v. Carter, 224 F.3d, 607, 612
(7th Cir. 2002)). However, in Beal, the court nevertheless concluded that harassment in the form
calling an inmate names such as “punk, fag, sissy, and queer” was sufficient to state an Eighth
Amendment claim because the allegations supported the finding of psychological harm and an
increased the likelihood of sexual assaults on the inmate, thus stating a claim for cruel and
unusual punishment. Id. at 358.
In this case, the objective prong of the analysis is subsumed within the subjective
prong–at least initially–because the fact that Kloth stood behind Leiser in the cafeteria is
objectively innocuous. The operative questions are: did Kloth stand behind Leiser knowing that
this could trigger Leiser’s PTSD; and, even if she did, did this rise to the level of an injury
cognizable by the Eighth Amendment?
At the Rule 56 stage, the court must accept as true the nonmovant’s version of events.
According to Leiser and his brother, they both told Kloth that Leiser had PTSD and that if she

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stood behind him, this could trigger the condition. Both men claim that Kloth responded that
she did not care, she was going to stand where she wanted to. Kloth denies all this, and other
evidence cited above (for instance, Leiser’s failure to make this claim in response to the conduct
report and the failure of the PSU notes to reflect Leiser’s claim) calls into question Leiser’s
averments to the court. Kloth may well be telling the truth and the Leisers not, but this does
not help Kloth at the summary judgment stage. The court must assume that Kloth knew that
Leiser had PTSD, that she knew standing behind him was a trigger, and that she continued to
stand behind Leiser anyway.

This could be viewed as “the very definition of deliberate

indifference.” Rowe v. Gibson, 798 F.3d 622, 635 (7th Cir. 2015) (Rovner, J., concurring) (citing
Green v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)).
A corollary to this observation is that, even accepting Leiser’s version of the facts as true,
there is no direct evidence that Kloth would stand behind Leiser for the purpose of provoking
a PTSD attack. Rather, this is the inference that Leiser wants the court to draw from his
supporting affidavits, and since I have to accept Leiser’s version of events at true, and since it
is not an unreasonable inference to draw if I have to accept this version of events, then, for the
purposes of summary judgment, I am constrained to draw this inference in Leiser’s favor.
As to the second question, to survive summary judgment, Leiser must present evidence
that Kloth “intended to humiliate and inflict psychological pain.” Calhoun, 319 F.3d at 939. I
am not persuaded that Leiser has done this. Kaeppler and Dr. Frey were aware that Leiser would
have people standing behind him while he was incarcerated because Leiser “resided in a densely
populated correctional facility”; a fortiori, Kaeppler and Frey knew that Leiser’s PTSD likely
would be triggered in this environment. Even so, Dr. Frey in PSU has opined to a reasonable

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degree of medical certainty that Leiser did not need an accommodation for his PTSD.
Therefore, PSU staff did not share Leiser’s diagnosis with any correctional officers (including
Kloth), and they did not provide any information to any correctional officers (including Kloth)
about the symptoms of PTSD. The implicit but logical and reasonable conclusion is that even
if Leiser’s PTSD was triggered by someone standing behind him, there was no substantial risk
that Leiser would suffer serious psychological harm.
Leiser’s own evidence corroborates this conclusion. His brother Loren reports that
Leiser’s “level-one” symptoms are fidgeting, sweating, and/or darting eye movements, and
sometimes yelling and walking away; Leiser’s “level-two” symptoms add to this shaky hands,
twitchy leg movements, and increased heart rate. Leiser’s cellmate reported essentially the same
symptoms. However unpleasant these symptoms may have been to Leiser, they do not amount
to the level of “serious harm” that would state a constitutional violation. This list of symptoms
is no more severe than what many hot-tempered people exhibit when they get angry.1
Suppose, arguendo, that Kloth knew only that Leiser had a short fuse and could be easily
provoked to yell, wave his arms, and turn red in the face with bulging eyes, and then, knowing
these things, Kloth would try to press Leiser’s buttons to get a rise out of him. Howsoever
unprofessional and blameworthy this would be, would such conduct rise to the level of a
constitutional violation? If it does not, would putting a DSM-5 label on Leiser’s condition

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Leiser avers that when his PTSD is triggered, he also knocks his head against the wall and wants to
attack or hurt the people who trigger his PTSD. W hile Leiser and Loren state that they told Kloth that
Leiser might hurt her, there is no evidence that Leiser ever actually attacked anyone. Nor is there
evidence suggesting that anyone else – not Kloth, not Leiser’s cellmate, not anyone in PSU – knew that
Leiser would knock his head against the wall.

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change the outcome? “Not every psychological discomfort a prisoner endures amounts to a
constitutional violation.” Calhoun, 319 F.3d at 939.
But the court in Calhoun continues:
Instead, the Eighth Amendment prohibits unnecessary and wanton
infliction of pain, thus forbidding punishment that is so totally
without penological justification that it results in the gratuitous
infliction of suffering. Such gratuitous infliction of pain always
violates contemporary standards of decency and need not produce
serious injury in order to violate the Eighth Amendment.
Moreover, physical injury need not result for the punishment to
state a cause of action, for the wanton infliction of psychological
pain is also prohibited.
Id. at 939 (citations omitted).
In this case, Leiser and his witnesses claim that they told Kloth that Leiser had PTSD,
that one of his triggers was people standing behind him, that this caused Leiser psychological and
physical distress, and that after knowing these things, Kloth increased the amount of time she
spent standing behind Leiser in the cafeteria, implicitly for the purpose of provoking a PTSD
response. Kloth disputes all of this, but summary judgment is not available to Kloth on this
record.
One could logically ask: in the absence of any information and direction from PSU
regarding Leiser’s PTSD, why should Kloth take Leiser’s word for it? After all, if this really was
a serious psychological issue, wouldn’t PSU staff have flagged it for the correctional officers who
had to deal with Leiser? This position has traction up to a point. If Leiser’s version of events had
stopped with Kloth simply continuing to behave toward Leiser as she always had behaved, then
this court would be comfortable granting summary judgment in favor of Kloth. Leiser could not
prevail on a constitutional claim based essentially on him (and his brother) directing Kloth how

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to do her job in a way that did not upset Leiser. But in Leiser’s version of events, Kloth
intentionally exploited her new knowledge of Leiser’s psychological vulnerability. Even then, it
would not necessarily be a problem of constitutional dimension for her to have behaved in a
manner intended to press Leiser’s buttons if it turned out that there were no buttons to be
pressed. But the buttons were there. PSU staff could have advised Kloth, if she had asked, that
it was aware of Leiser’s PTSD, it was working to de-condition him, and would Kloth please not
make it harder for him by standing behind him more often than her normal duties required her
to? Before changing her behavior to test Leiser’s claim, Kloth would have had an obligation to
confirm that her testing would not constitute deliberate indifference to Leiser’s known
psychological condition.
As already noted, from Kloth’s perspective this entire discussion is counterfactual
conjecture. How could she have consulted with PSU about a condition about which she had no
knowledge and that she was not exacerbating, intentionally or otherwise? Point taken. But at
summary judgment, the court cannot choose between competing material facts. It will be up to
a jury to determine who is telling the truth.

II.

Eighth Amendment Failure to Protect Claim
I am denying defendants’ motion as to Stoudt and Richardson for the same reason.

Plaintiff claims that Stoudt’s inaction after he told Stoudt that Kloth’s conduct report was false,
and Richardson’s inaction after he filed an inmate complaint about Kloth, both constitute cruel
and unusual punishment. As these claims focus on the failure to act, it is better to characterize
them as claims that the defendants failed to protect him from harassment. See Farmer v. Brennan,

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511 U.S. 825, 837 (1994). To state an Eighth Amendment failure to protect claim, a prisoner
must allege that (1) he faced a “substantial risk of serious harm” and (2) the prison officials
identified acted with “deliberate indifference” to that risk. Id. at 834. Deliberate indifference
has two components: (1) a defendant must have actually known that the inmate was at risk; and
(2) the defendant must have disregarded that risk by failing to take reasonable measures in
response. Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005).
Here, because Leiser’s factual submissions have allowed him to survive Kloth’s summary
judgment motion regarding Leiser’s claim of cruel and unusual punishment, Leiser’s claims that
Stoudt and Richardson failed to take any action to protect him from Kloth likewise must be put
to trial. Indeed, while Stoudt and Richardson dispute this, Leiser claims that he informed both
of them that Kloth was purposefully triggering his PTSD. Then, claims Leiser, neither Stoudt
nor Richardson took any action to investigate Kloth’s behavior or to prevent it. If a jury were
to believe Leiser’s version of events, then it could conclude that Stoudt’s and Richardson’s
inaction constituted deliberate indifference to the risk that Leiser would suffer severe
psychological harm. I am denying defendants’ motion for summary judgment as to Stoudt and
Richardson as well.

III.

Qualified Immunity
Finally, because the record contains a version of events that would allow a jury to

conclude that Kloth intentionally caused Leiser psychological harm, qualified immunity does not
shield any defendant from liability. Qualified immunity protects government employees from

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liability for civil damages for actions taken within the scope of their employment unless their
conduct violates “clearly established . . . constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Saucier v. Katz, 533 U.S.
194, 201 (2001); Pearson v. Callahan, 555 U.S. 223, 236 (2009). “In determining whether a
constitutional right has been clearly established, it is unnecessary for the particular violation in
question to have been previously held unlawful.” Lewis v. McLean, 864 F.3d 556, 563 (7th Cir.
2017) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Instead, the question is whether
the “contours of the right [are] sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Anderson, 483 U.S. at 640.
Leiser has submitted evidence that would allow a finding that all of the defendants knew
that Leiser suffered psychological harm when his PTSD is triggered. While defendants dispute
it, Leiser likewise submitted evidence that (1) Kloth intentionally triggered that harm, and (2)
Stoudt and Richardson knew that she triggered his PTSD but did nothing to stop her. Because
Leiser has a clearly established right to be free from intentionally inflicted psychological harm,
qualified immunity does not shield defendants from liability at this stage.

Pending Discovery Motions
Finally, I will resolve the two remaining discovery motions, which, for the most part, are
mirror images of one another. Leiser requests an order compelling defendants’ to respond to his
discovery requests related to (1) Kloth’s termination from the Stanley and New Lisbon
Correctional Institutions, (2) inmate complaints filed against Kloth since 2016, (3) mental
health examination requirements for DOC employees, and (4) a log book entry that defendants

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represent does not exist. Leiser seeks this information to support his theory that Kloth intended
to harass him and in fact had a habit of harassing inmates. Defendants opposed the motion and,
seek an in camera review of Kloth’s disciplinary history and the complaints filed against her
before turning those documents over.
The parties do not argue the details of the mental health examination and log book, so
I’ll resolve them quickly. As to the mental health examination, despite defendants’ objection that
the request was overly broad, Leiser argues only that the examination would provide evidence
of Kloth’s state of mind, but he has not suggested that he has any reason to believe that such an
examination exists. As to the log book entry, defendants represented that it does not exist, and
Leiser has not submitted any facts that suggest otherwise. Accordingly, I’m denying Leiser’s
requests related to those documents.
Leiser’s requests related to Kloth’s termination and the grievances filed against her since
2016 require a bit more discussion. Leiser argues that this information is relevant to proving that
Kloth had a habit of harassing inmates, and thus carried out this habit against Leiser. Thus, he
will seek to admit such evidence against Kloth pursuant to Fed. R. Evid. 406, which permits
evidence of a “person’s habit” to prove that “on a particular occasion the person ... acted in
accordance with the habit or routine practice.” I doubt that Leiser will be able to make a
sufficient showing to actually admit evidence that Kloth had a “habit” of harassing inmates.
Nelson v. City of Chicago, 810 F.3d 1061, 1073 (7th Cir. 2016) (“Before a court may admit
evidence of habit, the offering party must establish the degree of specificity and frequency of
uniform response that ensures more than a mere ‘tendency” to act in a given manner, but rather,
conduct that is semiautomatic in nature.”) (citations omitted). However, the question of this

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information’s admissibility isn’t before me, it’s whether he is entitled to discovery of it. If Leiser’s
theory of the case is that Kloth habitually harassed inmates, I agree that such information could
lead to admissible evidence.
For their part, defendants argue that the disciplinary and complaint information Leiser
requested are not related to his lawsuit’s narrow time frame, and thus that such information
constitutes inadmissible “other acts” under Fed. R. Evid. 404(b), which permits character
evidence for other purposes, which as “proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” While that’s true, Leiser
acknowledges that the only purpose of this evidence would be to prove that Kloth acted in
accordance with her character trait (or habit, as he labels it) of harassing inmates. Defendants
also oppose on security grounds, arguing that giving Leiser this type of information creates a
security risk because the inmate might be able to use that information improperly against that
employee. This argument is puzzling because Kloth is no longer employed at Stanley, so it is
unclear why Leiser would be able to this information against her. However, I’ll clear up this
confusion by directing defendants to submit those documents to me under seal for my in camera
review. Once I’ve reviewed them, I’ll issue a follow up order resolving whether defendants must
produce this information. As such, Leiser’s and defendants’ motions are denied in part, and I’m
deferring my ruling as to Kloth’s disciplinary history and the internal and external complaints
filed against her.

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Amending the Schedule
Trial currently is set for November 13, 2017, with motions and limine and Rule 26
disclosures due by October 23. To give the parties time to resolve the outstanding discovery
dispute and to provide some breathing room before trial, I am striking the trial date. Because
of the holidays, my plan is to reset the jury selection and trial for one of these dates: January
16, 22, or 29. Other dates would be reset to match the trial date. Not later than November
3, 2017, the parties should report to the court which of these date(s) they prefer and which
date(s) will not work.
In Leiser’s other pending case, Leiser v. Hannula, Case No. 15-cv-328-slc, the court is in
the process of recruiting counsel on Leiser’s behalf. I am not planning to recruit counsel for
Leiser in this case because the disputed facts that require a trial are remarkably straightforward
and Leiser has more than adequately represented himself in this matter. That said, once the
court recruits counsel for Leiser in 15-cv-328-slc, if there is a mutual interest in global mediation,
the court will assist the parties with this if they ask.

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ORDER
IT IS ORDERED that:
(1)

Defendants’ Motion for Summary Judgment (dkt. 21) is DENIED.

(2)

Plaintiff Jeffrey Leiser’s Motion to Strike (dkt. 38) is DENIED.

(3)

The parties’s discovery motions (dkts. 17, 18) are DENIED in part as provided
above. Defendants are DIRECTED to submit Kloth’s disciplinary history and
internal and external complaints filed against her, to the court under seal for the
court’s in camera review by November 3, 2017.

(4)

All deadlines and the trial date in this matter are hereby STRICKEN, to be re-set
after allowing the parties until November 3, 2017, to provide input on the new
trial date.

Entered this 19th day of October, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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