Allen, Raequon v. Mahoney, David et al
Filing
103
ORDER denying plaintiff Raequon Allen's 72 Motion for reconsideration of motion; denying plaintiff's 102 Motion Under Rule 37(e) ; and denying defendant Alexa Richardson's 61 Motion for Summary Judgment. The Final Pretrial Conference in this matter is reset to a telephonic conference to take place on Friday February 1, 2019, at 10:00 a.m., with defense counsel responsible for initiating the call. Signed by District Judge William M. Conley on 1/8/2019. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RAEQUON DEWRELL ALLEN,
Plaintiff,
OPINION AND ORDER
v.
16-cv-410-wmc
DEPUTY RICHARDSON,
Defendant.
Pro se plaintiff Raequon Dewrell Allen is proceeding in this civil lawsuit against
defendant Deputy Alexa Richardson on an excessive force claim arising out of Allen’s intial
altercation with another prisoner at the Dane County Jail on January 28, 2016. Currently
before the court are plaintiff Allen’s motion for reconsideration of the court’s order denying
his request for sanctions (dkt. #72), as well as his new motion under Rule 37(e) (dkt.
#102), and defendant Richardson’s motion for summary judgment (dkt. #61). For the
reasons that follow, the court will deny all pending motions, and this case will proceed to
trial on February 11, 2019. The court will also reset the Final Pretrial Conference to take
place by telephone on Friday February 1, 2019, at 10:00 a.m., with defense counsel
responsible for initiating the call.
I.
Allen’s motion for reconsideration (dkt. #72) and motion under Rule 37(e)
(dkt. #102)
On April 27, 2018, the court denied Allen’s motion for sanctions related to his
request for video footage of the altercation on January 28, 2016. While acknowledging
that the video had been overwritten in February of 2016 under the Dane County Sheriff’s
Office’s routine practice -- overwriting surveillance footage that has not been saved to a
DVD within 25 to 35 days -- the court explained that Allen had failed to show anyone at
the sheriff’s office had reason to know he would file a lawsuit arising out of that incident.
(Dkt. #69, at 5-6.) Allen now seeks reconsideration of that order based on additional
facts, but the court remains unpersuaded that sanctions are appropriate.
Federal Rule of Civil Procedure 37 permits the court to sanction a party who fails
to preserve evidence and was under a duty to do so. Such a duty arises when a party knows
or should know that litigation is imminent. Trask-Morton v. Motel 6 Operating, L.P., 534
F.3d 672, 681 (7th Cir. 2008). In circumstances in which electronically stored information
was lost because a party failed to take reasonable steps to preserve it, the court may: (1)
upon finding prejudice, order measures no greater than necessary to cure the prejudice; or
(2) upon finding of intent to deprive another party of information, presume the
information was unfavorable, instruct the jury of this presumption or dismiss the action.
Fed. R. Civ. P. 37(e)(1)-(2).
In support of his motion for reconsideration, Allen now submits a grievance and an
appeal of the denied grievance that he filed after the January 28, 2016, incident. Indeed,
his initial grievance is dated the same day as the incident itself. In it, Allen explicitly
requested a copy of the camera footage. (Ex. A (dkt. #72-1).) Moreover, his appeal was
dated February 8, 2016, in which he wrote that “[d]ue to this problem not being properly
resolved I am going to pursue legal action.” (Ex. B (dkt. #72-2).) In Allen’s view, the
language in his grievance and appeal were sufficient to trigger a duty to preserve the video
footage.
2
Unsurprisingly, defendant disagrees, arguing that his grievance or initial notice of
an intent to sue did not trigger a duty to preserve the video because the jail receives
approximately 140 grievances each month, and the jail’s budget simply cannot support the
practice of saving video footage related to every grievance. Rather, the jail’s policy is to
preserve video footage (1) upon receipt of a Notice of Claim or a summons and complaint,
or (2) in circumstances involving criminal acts, death or serious injury. Given the relative
ease and limited cost of transferring video to a DVD, the defendant’s response is
unsatisfying at best, but the court remains unpersuaded that sanctions are appropriate.
While the court accepts that preserving every video of events that may relate to a
grievance may be both impractical and unnecessary, the short, default retention period
before writing over video is also problematic. In fact, prisoners who are in the process of
attempting to obtain relief using the jail’s administrative remedies during that brief
retention period are vulnerable to losing potentially important, if not dispositive, footage
simply because they are following the prerequisites to filing a federal lawsuit, much less
filing a lawsuit, just as Allen is here. Furthermore, while the decision to overwrite footage
within a 25-35 day time period might be tied to budgetary constraints, the court is troubled
by the fact that this time frame is significantly shorter than the 120-day time period a
plaintiff has to file a Notice of Claim, see Wis. Stat. § 893.82(3). In these circumstances,
the court rejects the notion that Allen’s grievance could not trigger a duty to preserve. On
the contrary, Allen’s February 8, 2016, appeal of his grievance should have made it
sufficiently clear to the sheriff’s office that legal action was imminent. Even assuming
(without resolving) that this knowledge can be fairly imputed to an individual Deputy
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Sheriff, like Richardson, however, sanctions are not appropriate.
First, Allen has not made a sufficient showing of likely prejudice to warrant sanctions
under Rule 37(e)(1). Allen served no requests for documents or discovery related to the
existence of a video, and neither party has suggested that there actually was video footage
taken of the general area where the incident took place, much less that the video footage
actually captured the incident or would have conclusively established that Allen should
succeed on his claim. Defendant’s response does not even suggest that anyone at the
sheriff’s office or Richardson ever actually viewed footage of the area where the incident
took place, much less of the incident itself. Additionally, Allen is not prejudiced insofar as
he has been able to submit evidence describing his version of the event in his deposition
and affidavit opposing defendant’s motion for summary judgment.
Moreover, even
accepting that Allen suffered prejudice, the sanction Allen desires -- judgment in his favor
and the money judgment he requested in his complaint -- is disproportionately greater than
necessary to cure the prejudice.
Second, an adverse inference instruction under Rule 37(e)(2) is inappropriate
because Allen has not submitted any evidence suggesting that the video was overwritten in
a bad faith effort to avoid the negative ramifications of the video. See Trask-Morton v. Motel
6 Operating, L.P., 534 F.3d 672 (7th Cir. 2008) (a showing of bad faith is a “prerequisite
to imposing sanctions for the destruction of evidence”) (citation omitted). Since nothing
before the court suggests that to be the case here -- rather, at most, the video was
overwritten pursuant to an erroneously narrow timeframe -- the court sees no basis upon
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which to sanction defendant.1
II.
Richardson’s motion for summary judgment (dkt. #61)
UNDISPUTED FACTS2
On January 28, 2016, Allen was serving a sentence at that Dane County Jail. 3
Having spent time in the Dane County Jail on previous occasions, Allen was familiar with
its policies and procedures. Among the Jail’s policies are requirements that prisoners must
(1) conduct themselves in a respectful manner and (2) avoid contact with staff or other
prisoners, including fights and disorderly conduct.
The night before the January 28, 2016, incident, Allen was housed in an eightperson general population cellblock (Cellblock 607) with another prisoner named Daymon
Frazier. Allen and Frazier began arguing, prompting Allen telling Frazier that he would
“beat his ass” the next morning. (Allen dep. (dkt. #67) at 79.) At about 5:00 a.m. on the
next morning, as Allen and Frazier were eating breakfast, Allen took his meal tray and
Should Allen have made a formal request for preservation of the video in anticipation of litigation,
or even have provided stronger proof that a video of the incident likely existed when he requested
to see it as part of the grievance process, the result may well have been different, as the rapidly
declining cost of video storage belies Dane County Jail’s excuse for not retaining it longer than 30
days.
1
The following facts are material and undisputed unless otherwise noted. The court has drawn
these facts from the parties’ proposed findings of fact and responses to those facts, as well as the
underlying evidence, as needed.
2
Apparently, Allen was serving a jail sentence after being revoked for violations in Dane County,
Wisconsin, Case No. 2013CF757. While Allen purports to dispute this fact in his response to
defendant’s proposed findings of fact, he simply adds that he had two other pending cases in Dane
County Circuit Court, Case No. 2015CF979 and 13CF757. The fact that Allen may not have been
specifically sentenced to jail time in Case Nos. 2015CF979 does not alter the material fact that, as
of January 28, 2016, Allen was serving a sentence in the Dane County Jail.
3
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swung it, hitting Frazier in the face. This caused Frazier to jump across the table, and Allen
and Frazier to begin fighting each other, both of them throwing punches and eventually
slipping and falling to the ground. Eventually, Allen was able to sit on Frazier’s chest; and
while Frazier struggled to stop him, Allen proceeded to take swings at Frazier’s face.
Deputy Michael Corrigan, who was serving breakfast in the cellblock that morning,
called for all available deputies and yelled for all of the other prisoners to lock down in
their cells. Deputy Alexa Richardson responded to the call for help and also yelled for the
other inmates to lock down in their cells. After Richardson confirmed that all other
inmates were locked down, Corrigan entered the cellblock to stop the altercation. Corrigan
then stepped in physically, pressing his weight against Allen’s back in an effort to push
Allen closer to Frazier, thereby making it more difficult for Allen to continue to strike
Frazier.
This much of the incident is essentially undisputed.
From here, however, the
parties’ version of events diverge. Corrigan and Richardson claim that before Corrigan
stepped in physically, they both directed Allen and Frazier to stop fighting, but they
continued to brawl.4 Next, defendant maintains that despite Corrigan’s weight on Allen’s
back, he continued to resist; at which point, Richardson stepped in to help Corrigan stop
the fight. Richardson, who it is undisputed weighs significantly less than Allen, says that
she positioned herself at Allen’s and Frazier’s feet and applied two strikes to Allen’s lower
Defendant recently filed a supplement to her reply to her proposed findings of fact, adding
proposed facts related to Frazier’s version of events that corroborated Corrigan and Richardson’s
version. (Dkt. #96.) Setting aside the fact that defendant failed to seek leave of court to
supplement the record, and that Allen has not responded, the fact remains that Allen disputes
defendant’s version of events. Adding another witness into the mix does not change that fact.
4
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back with her right hand. According to Richardson, she then paused to see if her two
strikes had the desired effect. When she saw that Allen was undeterred, she struck Allen
three more times on the back. At that point, three more deputies entered the cellblock,
pulling Allen off of Frazier. Allen was then handcuffed and escorted to another cellblock.
During his deposition Allen was unable to remember all the details of the
altercation, but he did claim to remember the following general timeline and provided
further clarification in his affidavit.5 Allen testified as an initial matter that he could not
remember anyone telling them to stop fighting.
(Allen dep. (dkt. #67) at 60-61.)
According to Allen, however, Corrigan put him in cuffs before he even pressed his weight
against him. (Id. at 61.) Then:
when he was laying on us, the other officer -- whoever’s laying on me or the
other officers came in, once the officers got my head down and they got us
down to the ground, everything’s cool. They was trying to get -- I guess their
little procedures on getting us out of there. That’s when she come in. “Stop
resisting” and get to trying to work me like she know how to fight.
(Id. at 61.)
In his affidavit, Allen similarly states that: (1) he only heard Richardson yell “stop
resisting” after Corrigan was sitting on his back and he had been handcuffed; (2) he never
5
Richardson argues that the court should not consider Allen’s statements in his affidavit because
he could not remember the details of events during his deposition. “As a general rule, the law of
this circuit does not permit a party to create an issue of fact by submitting an affidavit whose
conclusions contradict prior deposition or other sworn testimony.” Buckner v. Sam’s Club, Inc., 75
F.3d 290, 292 (7th Cir. 1996) (citations omitted). Even so, supplemental affidavits may be
appropriate to “clarify ambiguous or confusing deposition testimony.” Id. (citing Adelman-Tremblay
v. Jewel Companies, Inc., 859 F.2d 517, 520-21 (7th Cir. 1998)). While Allen’s more precise
statements in his affidavit certainly will subject him to impeachment at trial to the extent his
testimony and averment are inconsistent, Allen’s testimony and affidavit are not contradictory with
respect to the order of events. Accordingly, the court generally considered both pieces of evidence
to be in concert for purposes of summery judgment.
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actually resisted and Corrigan had him in handcuffs and was sitting on his back, so it was
impossible for him to resist; (3) Richardson punched him repeatedly without pausing in
between strikes; and (4) he was never offered any medical attention, even though he was
in severe pain. (Allen Aff. (dkt. #79) ¶¶ 9-11.) As a result, Allen claims that he cannot
play sports the way that he used to, and he has trouble sleeping because of back pain, but
he has neither submitted medical records nor provided details about the nature of his back
injury to support his claims.
OPINION
Since Allen was serving a sentence at the Dane County Jail on January 28, 2016,
his excessive force claim falls under the Eighth Amendment,6 which protects prisoners from
officials’ use of excessive physical force. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). For
a plaintiff to succeed on an excessive force claim, he must submit evidence that the prison
official acted “wantonly or, stated another way, ‘maliciously and sadistically for the very
purpose of causing harm.’” Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir. 2005) (quoting
Whitley v. Albers, 475 U.S. 312, 320 (1986)).
Relevant factors to consider in weighing the evidence are: (1) the need for the
application of force; (2) the relationship between the need and the amount of force used;
(3) the extent of injury inflicted; (4) the extent of threat to the safety of staff and inmates,
At screening, the court operated on the assumption that Allen was a pretrial jail detainee, and
thus, the Fourteenth Amendment applied to his claim. As the record has now established, Allen
was, in fact, serving a sentence as of January 28, 2016, which means the Eighth Amendment applies
to his claim.
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as reasonably perceived by the responsible officials based on the facts known to them; and
(5) any efforts made to temper the severity of a forceful response. Whitley, 475 U.S. at
321. Because prison officials must sometimes use force to maintain order, the central
inquiry is whether the force “was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6-7.
At summary judgment, a plaintiff must put forward evidence that would “support a
reliable inference of wantonness in the infliction of pain.” Fillmore v. Page, 358 F.3d 496,
504 (7th Cir. 2004) (quoting Whitley, 475 U.S. at 322). While this is a close call given
the circumstances as a whole, including Allen being the undisputed initiator of a dangerous
prison fight, in the relatively unlikely event that a jury were to believe his version of events,
it would not be unreasonable for the jury to find that Richardson’s allegedly repeated,
gratuitous punches were intended to inflict pain, rather than to restore order.
As an initial matter, while Richardson does not argue the point explicitly, much of
her argument focuses on the minimal nature of Allen’s injury. In the past, the Court of
Appeals for the Seventh Circuit has accepted that “Eighth Amendment claims based on de
minimus uses of physical force by prison guards are not cognizable unless they involve ‘force
that is repugnant to the conscience of mankind.’” Outlaw v. Newkirk, 259 F.3d 833, 839
(7th Cir. 2001 (quoting Hudson, 503 U.S. at 9-10.) However, more recently the court has
clarified that there is no de minimus force requirement because the Eighth Amendment does
not include a “significant injury requirement,” and the use of the term “de minimus” in
Hudson reflected the necessary distinction between common law battery claims and
constitutional claims of excessive force. Washington v. Hively, 695 F.3d 641, 642 (7th Cir.
9
2012); Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir. 2012). In Guitron, the Seventh
Circuit even emphasized that “[w]hen a physical injury occurs as the result of force applied
in the course of prison operations, as happened to Guitron, the courts should approach the
matter as Whitley and Hudson v. McMillian direct, rather than trying to classify injuries as
de minimus.” 675 F.3d at 1046. This court must, therefore, follow suit, and conclude that
at the crux of Allen’s claim are factual disputes that a jury will have to resolve with respect
to whether physical injury was imparted, of whatever degree.
While the parties disagree on this record whether there was any need for force, the
court concludes that some force by Richardson was certainly appropriate to bring the fight
between Allen and Frazier to an end and regain control over both of them. Allen insists
that he was no longer resisting, with his hands cuffed behind his back by the time
Richardson began to strike him repeatedly in his back for no reason than to inflict pain.
Of course, Richardson denies this. Even accepting that Allen was handcuffed, Richardson
further argues that undisputed facts suggest that the struggle between Allen, Frazier and
the officers was ongoing, thus justifying her physical intervention. Indeed, Allen does not
dispute that he had started a fight with Frazier, creating a significant security threat in the
jail. Nor does Allen dispute that by the time Corrigan physically interjected himself, he
had successfully climbed on top of Frazier, and while sitting on his chest, repeatedly
pummeled Frazier with his fists. While Corrigan had apparently pressed his body against
Allen in an effort to curb his ability to punch Frazier by the time Richardson entered the
cellblock, Corrigan was still sitting on top of Allen in effort to control both Allen and
Frazier.
Even assuming that Corrigan had been able to handcuff Allen by the time
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Richardson had contact, therefore, the situation that Richardson was walking into
continued to be unsafe, and she may have reasonably believed further physical force was
needed to gain Allen’s full compliance. No evidence in the record suggests that it would
have been obvious to Richardson that Allen was no longer resisting. In fact, even Allen
admits that Richardson directed him to “stop resisting.” Based on this record, therefore,
the court rejects Allen’s argument that no force was warranted after Richardson entered the
cellblock.
In considering the second factor, however, Allen’s description of the type of force
Richardson used might permit a reasonable jury to conclude that her use of force was
disproportionate to what the circumstances warranted, and exhibited a malicious intent to
cause harm. As Allen describes it, he was handcuffed behind his back and no longer
resisting, but Richardson still repeatedly punched him on the back, without pausing. Again
accepting Allen’s version of events wholesale, punching Allen repeatedly and without pause
in his back, even as he was sandwiched between Corrigan and Frazier and handcuffed
behind his back, could be reasonably construed as malicious.
While a close one, the Seventh Circuit has encouraged such calls to be sumitted to
the trier of fact. For example, in Mitchell v. Krueger, 594 F. App’s 874 (7th Cir. 2014), a
case that Richardson cites, the court found that factual disputes precluded summary
judgment as to whether guards used excessive force in transporting the plaintiff in
restraints. 594 F. App’x 874 (7th Cir. 2014). There, the undisputed facts showed that the
plaintiff started a fight with another prisoner, and that one officer tackled the plaintiff to
stop him from fighting. After the plaintiff was handcuffed, the plaintiff alleged that a
11
second officer used excessive force during his transport. While the court agreed that
judgment in the first defendant’s favor was appropriate, the second officer’s actions
required a trial. The court noted in particular that the plaintiff “was restrained with his
hands behind his back, flanked on either side by the defendants holding his arms, at least
one of whom was more than 100 pounds heavier and a half a foot taller than Mitchell.”
Id. at 877. In that light, the court concluded that disputed evidence related to the second
officer’s subsequent use of force, after the plaintiff had been restrained, required a trial. Id.
Applying that reasoning here, while Richardson claims that Allen was still resisting when
she intervened, Allen claims that he was handcuffed and calm, which would permit a
reasonable jury to conclude that her punches were malicious.
Richardson also relies on Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 668 (7th
Cir. 2012), but this decision also works against her. In Rice, the court affirmed summary
judgment in favor of a correctional officer that used pepper spray in an effort to stop
prisoners from fighting. While Richardson argues that this case emphasizes the significant
threat that prisoner altercations present, the record before the court in that case left no
doubt that the prisoner was still noncompliant when the officer employed the pepper spray.
Id. at 668 (plaintiff did not dispute that he “had been fighting with his cellmate or that he
failed to comply with the directive that he step out of his cell”). For the reasons already
explained, the court cannot conclude as a matter of fact that Allen was noncompliant,
rendering this decision inapposite here.
The Seventh Circuit’s affirmance of summary judgment in an officer’s favor in Caffey
v. Maue, 679 F. App’x 487, 489 (7th Cir. 2017), is just another example of why judgment
12
cannot be entered in Richardson’s favor. In Caffey, the plaintiff was descending a flight of
stairs during a transport, lost his balance, leaned against the handrail, and asked to slow
down. One of the defendants then allegedly struck the plaintiff with a wooden stick.
When the plaintiff eventually got to the bus, he complained that his head hurt, prompting
another defendant who overheard this to grab the plaintiff’s head, pressing it against a
window, and shackle his feet. Id. Even though the plaintiff repeatedly complained about
his head injury, the defendant then ignored him. In reviewing the district court’s entry of
summary judgment in defendants’ favor, the Seventh Circuit reversed with respect to the
officer who struck the plaintiff with a stick, but affirmed with respect to the officer that
shackled the plaintiff, reasoning that some force was necessary in placing a prisoner in
restraints, and no other facts suggested that that defendant was acting with the intent to
cause harm. Id. at 491-92.
While Richardson would emphasize the court’s conclusion that the officer that
shackled the plaintiff needed to use some force, the force actually employed by that officer
was pushing and pressing the plaintiff against a window while transporting him.
In
contrast, the court’s discussion of the officer who struck the plaintiff with a stick is more
akin to Richardson’s, at least if one accepts Allen’s version of the facts, because both
officers were allegedly striking the prisoner in question.
Finally, in Guitron, as defendant points out, the Seventh Circuit affirmed the district
court’s dismissal of an excessive force claim in circumstances in which officers slammed the
plaintiff against the wall to get him to walk to his cell. 675 F.3d at 1045-46. During the
transport, one of the officers had used additional force to bend Guitron’s wrist after he
13
refused to move. As a result, by the time plaintiff reached his cellblock, his wrist was
swollen, red and skinned. Id. While the court recognized that the officer’s use of additional
force could seem unreasonable in retrospect, the evidence of record showed that it was a
“good-faith” attempt to restore order. Id. The court elaborated that “an error of judgment
does not convert a prison security measure into a constitutional violation.” Id. at 1046.
In comparison to the circumstances here, however, Allen maintains that order had
already been restored, that he was no longer resisting when Richardson intervened, and
Richardson’s decision to punch plaintiff was not just an error of judgment. Again, while
some force may have been necessary to assist Corrigan in breaking up the fight, questions
about exactly how incapacitated Allen was when Richardson intervenes precludes a finding,
as a matter of law, that Richardson’s punches were a good faith attempt to restore order.
In short, factual disputes preclude the court from concluding as a matter of law on
summary judgment that Richardson did not act with the malicious intent to injure Allen.
Likewise, since those disputes relate to what Richardson may have intended when she
punched Allen, it follows that Richardson is not entitled to qualified immunity on these
facts. See, e.g., Hill v. Shelander, 992 F.2d 714, 718 (7th Cir. 1993) (“[I]f the finder of fact
were to decide that [defendant] acted with malicious intent, there could be no question
that a reasonable prison sergeant should reasonably have known that the conduct described
by [plaintiff] violated the Eighth Amendment.”).7 Accordingly, Richardson’s motion must
be denied and this lawsuit will proceed to trial.
Given the factual disputes and that under Allen’s version of events he was a passive victim, the
United States Supreme Court’s recent decision in Escondido v. Emmons, No. 17-1660 2019 WL
113027, at 3 (U.S. Jan. 7, 2019), does not affect this result.
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ORDER
IT IS ORDERED that:
1. Plaintiff Raequon Allen’s motion for reconsideration (dkt. #72) and motion under
Rule 37(e) (dkt. #102) are DENIED.
2. Defendant Alexa Richardson’s motion for summary judgment (dkt. #61) is
DENIED.
3. The Final Pretrial Conference in this matter is reset to a telephonic conference
to take place on Friday February 1, 2019, at 10:00 a.m., with defense counsel
responsible for initiating the call.
Entered this 8th day of January, 2019.
BY THE COURT:
/s/
______________________________________
WILLIAM M. CONLEY
District Judge
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