Allen, Raequon v. Mahoney, David et al

Filing 69

ORDER granting defendant's motion to compel (dkt. # 43 ). By May 4, 2018, Allen must return to defendants the modified form consenting to disclosure of his medical records for the past six years. Plaintiff Raequon Dewrell Allen's moti on for temporary restraining order (dkt. # 30 ) is DENIED without prejudice. Plaintiff Raequon Dewrell Allen's motion to amend complaint (dkt. # 35 ) and motion for sanctions (dkt. # 38 ) are DENIED. Plaintiff's motion to obtain affidavits/statements from incarcerated witnesses (dkt. # 68 ) and motion for assistance in recruiting counsel (dkt. # 53 ) are both denied without prejudice. Signed by District Judge William M. Conley on 4/27/2018. (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 Richardson on a Fourteenth Amendment excessive force claim arising
from an incident that took place on January 28, 2016. There are several motions currently
pending before the court that this opinion resolves.

I.

Defendant’s motion to compel (dkt. #43)
Richardson seeks an order compelling Allen to endorse a medical authorization form

that would permit her to review records from Allen’s health care providers from the past
six years. Because Allen claims to have suffered damages allegedly caused by Richardson
during the January 28, 2016, incident that is the subject of this lawsuit, Richardson seeks
to review Allen’s medical records from the past 6 years in preparation of a defense to any
claim of actual injury. Despite receiving several extensions of time to respond, Allen has
failed to file an opposition brief explaining why he continues to refuse to comply with
Richardson’s request.
While Allen’s medical records from the past six years are not central to Allen’s

claims, Richardson’s request to review them are reasonable. Therefore, the court will direct
Allen to return signed and fully completed the requested medical authorization, by May
4, 2017. While this is a “direction,” not an “order,” Allen should be aware that his failure
to disclose this information will likely result in the court precluding him from
seeking damages for physical or mental injury.1 This is because defendants are entitled
to review medical records both before and after the incident for comparison purposes.2
Allen may choose how he wishes to proceed, but any further failure to comply with
defendant’s request will effectively be a choice to forego monetary damages in this case.

II.

Plaintiff’s motion for injunction and restraining order (dkt. #30)
Allen is currently incarcerated by the Bureau of Prisons at Big Sandy. On September

14, 2017, Allen filed a motion for an injunction barring Richardson from harassing him or
taking any retaliatory action against him, explaining concern about returning to the Dane
County Jail for resentencing in this court.

As an initial matter, plaintiff's motion is

procedurally defective because it does not comply with this court's procedure for obtaining
preliminary injunctive relief, a copy of which will be provided to plaintiff with this
order. Under these procedures, a plaintiff must file and serve proposed findings of fact
that support his claims, along with any evidence that supports those findings. Before the

This court will not directly compel plaintiff to disclose confidential medical information, if he
chooses not to do so, but as set forth above, his failure to facilitate disclosure will impact his
damages claim in this lawsuit.
1

To the extent Allen is concerned about misuse of information in his medical records, only the
defendant’s counsel and any designated third-party expert will have access to that information and
it may be used only for purposes related to this lawsuit.
2

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merits of plaintiff’s motion for preliminary injunction will be considered, he must first
comply with these basic requirements.
Even if plaintiff's motion were not facially flawed, it would likely fail on the merits
at this time. To prevail on a motion for a preliminary injunction, plaintiff must show: (1)
a likelihood of success on the merits of his case; (2) a lack of an adequate remedy at law;
and (3) an irreparable harm that will result if the injunction is not granted. Lambert v. Buss,
498 F.3d 446, 451 (7th Cir. 2007). Plaintiff has yet to show a likelihood of success on the
merits of his claims. In order to do so, he would have to submit actual evidence in support
his claim against Richardson. He would also have to submit more detailed evidence as to
why he would be harmed absent an injunction imposed against her. Given that it does not
appear that Allen is likely to be housed in the Dane County Jail in the near future, it does
not appear that such evidence exists. For all these reasons, plaintiff’s motion for injunctive
relief will be denied without prejudice to resubmission.

III.

Plaintiff’s motion to amend (dkt. #35)
On October 10, 2017, Allen also filed a motion to amend his complaint to include

additional constitutional claims related to the January 28, 2016, incident. In addition to
his claim for excessive force, the plaintiff would now claim violation of his Fourteenth
Amendment rights to due process and equal protection, as well as unspecified rights under
the Ninth, Tenth and Fifth Amendments. Allen provides no basis for asserting a due
process claim or for his other claims under the Ninth, Tenth and Fifth Amendments, so
the court will deny his motion to do so, but his request to add a Fourteenth Amendment
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equal protection claim requires more discussion.
A “person bringing an action under the Equal Protection Clause must show
intentional discrimination against him because of his membership in a particular class, not
merely that he was treated unfairly as an individual.” Herro v. City of Milwaukee, 44 F.3d
550, 552 (7th Cir. 1995). At the pleading stage in particular, a plaintiff is required at
minimum to allege: (1) “that he is a member of a protected class”; (2) “that he is otherwise
similarly situated to members of the unprotected class”; and (3) “that he was treated
differently from members of the unprotected class.” Brown v Budz, 398 F.3d 904, 916 (7th
Cir. 2005) (quoting McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993)).
Allen seeks to add an equal protection claim because he believes that Richardson
assaulted him because he is black. In his complaint, however, Allen alleged only that
Richardson assaulted him because of his status as a prisoner, and the only facts Allen has
pled regarding the incident are that Richardson yelled “stop resisting” and assaulted him.
As a result, Allen’s new conclusory claim lacks any factual allegation suggesting that
Richardson treated similarly situated, non-black prisoners differently.

This is simply

insufficient to support an equal protection clause claim. Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) (“While legal conclusions can provide the framework of a complaint, they must
be supported by factual allegations.”).
Allen also claims that Dane County police officers have shown a policy of systematic
discrimination against African American prisoners, but he may not proceed on this basis
either. Setting aside the fact that Richardson would not be the proper defendant for this
type of claim, and assuming that the court were disposed to add the Dane County Sheriff
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as an additional defendant, Allen still has not pleaded sufficient facts to infer that the Dane
County’s Sheriff’s Office “adopted and implemented a policy not for a neutral . . . reason
but for the purpose of discriminating on account of race, religion, or national origin.” Iqbal,
556 U.S. at 676-77. Since a plaintiff must allege an improper motive, and not merely a
discriminatory impact, see Washington v. Davis, 426 U.S. 229, 245 (1976), Allen’s motion
to amend will be denied as futile.

IV.

Plaintiff’s motion for sanctions and to compel (dkt. #38)
Allen filed a motion for sanctions and to compel with respect to his request to

preserve video footage from the January 28, 2016, incident. Richardson responds that
Allen never made a discovery request for the video. Regardless, Richardson represents
through counsel that the video was overwritten one year and five months before Judge
Crocker’s order to preserve the video footage. As support, Richardson provides an affidavit
from Krist Boldt, an employee of the Dane County Sheriff’s Office. Boldt explains that
the jail’s video system automatically saves video for 25 to 35 days, depending on the
camera, amount of recorded activity and memory space. If the footage is not manually
saved to a DVD by that time, the system overwrites it and the video is lost. Boldt further
explains that if the video is not saved to a DVD by the sheriff’s office, there is no method
to retrieve overwritten video.
As to the January 28, 2016, video footage relevant here, Boldt explains that the
footage was overwritten at some point in February. This action would be problematic if
the facts suggested that before the video footage was overwritten, the sheriff’s office had
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reason to know that Allen might pursue a lawsuit related to the January 28, 2016, incident.
Indeed, if a jail official destroys video footage in a bad faith effort to hide adverse
information, a plaintiff may be entitled to sanctions, including a spoiliation instruction
permitting the trier of fact to infer that the recording contained evidence supporting the
plaintiff’s claim. See Bracey v. Grondin, 712 F.3d 1012, 1019-20 (7th Cir. 2013). However,
nothing in the record before the court suggests that Allen filed a grievance about this
incident before February of 2016, nor that Allen took other steps to put Richardson or the
sheriff’s office on notice of his possible claim. Because the record before the court suggests
that the video was lost due to routine policy and was not done in bad faith, therefore,
Allen’s motion will be denied.

V.

Motion to obtain affidavits/statements from incarcerated witness (dkt. #68)
Allen further moves for an order permitting him to contact a prison custodian for

Willie Mills and Demenion (or according to defendant, “Daymon”) Fraizer.

The

defendant maintains in her proposed findings of fact about this incident that Frazier is the
inmate Allen fought with on January 28, 2016, and Allen maintains that both Mills and
Fraizer witnessed Richardson’s alleged assault on the plaintiff. Regardless, Allen states that
he would like to reach out to both Mills and Fraizer about their willingness to testify or
submit an affidavit describing what they saw that day. Allen also asks for an order directing
their custodian to arrange their attendance at his October 29, 2018, trial in this matter.
At this point, both of these requests will be denied.
As to Allen’s first request -- to contact the custodians at the institutions where Mills
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and Fraizer are incarcerated -- such an order from this court is unnecessary. If Allen wishes
to reach out to Mills and Fraizer about their willingness to testify on his behalf (either
through an affidavit or through in-person testimony at trial), Allen is free to write to each
of these individuals directly.

It appears that Mills is located at the Kettle Moraine

Correctional Institution, but it does not appear that Frazier is currently in the custody of
the Wisconsin Department of Corrections. Either way, Allen is free to attempt contact
with both of these individuals by mail, phone or otherwise, using the resources available to
him. He does not need an order from the court to carry out those efforts. If, as he is
attempting to communicate with these potential witnesses, Allen needs additional time to
respond to defendant’s motion for summary judgment, he should file a motion for an
extension, which will likely be granted within reason.
To the extent Allen is requesting an order to require Mills or Fraizer to sit for a
telephonic deposition or ultimately attendance at trial, both requests will be denied as
premature. If Allen gets resistance from these witnesses to speak to him, he should follow
up with the clerk’s office to try to arrange for a deposition, with the understanding that he
will have to cover the costs. Similarly, if this case proceeds to trial, the court will issue a
Trial Preparation Order that will lay out the requirements and deadlines Allen will need to
follow to request witnesses to appear at trial, something the court’s pro se clerks will be
willing to help facilitate. Accordingly, the court will deny this motion without prejudice.

VI.

Plaintiff’s motion for assistance in recruiting counsel (dkt. #53)
Finally, the court will deny Allen’s motion for assistance in recruiting counsel at this
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time. Unfortunately, there is no general right to counsel in civil cases. Olson v. Morgan,
750 F.3d 708, 711 (7th Cir. 2014). Rather, courts have discretion to grant motions for
assistance in recruiting counsel where a party meets several requirements. Santiago v. Walls,
599 F.3d 749, 760-61 (7th Cir. 2010). The court is satisfied that Allen has established
both that he is unable to afford counsel and has made reasonable efforts to find a lawyer
on his own without success, but it is simply not apparent that this is one of those relatively
few cases in which the legal and factual complexities of the case exceeds the plaintiff’s
ability to prosecute it. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007).
The operative question is not whether a lawyer will do a better job than he can -that is almost always the case -- but rather whether practically speaking Allen is unable to
represent himself. The answer to that question appears to be “no” for the following
reasons. First, Allen’s claim in this lawsuit is straightforward, and the court is confident in
Allen’s ability to litigate this claim on his own. For one, Allen is proceeding against
Richardson on a claim that Richardson used excessive force against him on January 28,
2016. To prove this claim, Allen will need to submit evidence of the facts related to that
incident, which he can submit based on his own memory. Second, Allen has actively
participated in litigating this case, understands the nature of his claim, and, articulates
arguments to the court effectively, if not always successfully, demonstrating that he has
been researching his claim and knows what he needs to prove it.
Accordingly, while the court is sympathetic to the challenges Allen faces in light of
his lack of legal expertise, pro se status, and the limitations imposed by his incarceration,
the legal and factual difficulty posed by his Fourteenth Amendment claim do not exceed
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his abilities. As such, the motion for assistance in recruiting counsel will be denied without
prejudice, subject to his right to renew it should this case proceed to trial and he discovers
that the requirements at trial exceed his abilities.

ORDER
IT IS ORDERED that:

(1)

Defendant’s motion to compel (dkt. #43) is GRANTED. By May 4, 2018,
Allen must return to defendants the modified form consenting to disclosure
of his medical records for the past six years.

(2)

Plaintiff Raequon Dewrell Allen’s motion for temporary restraining order

(dkt. #30) is DENIED without prejudice.

(3)

Plaintiff Raequon Dewrell Allen’s motion to amend complaint (dkt. #35) and

motion for sanctions (dkt. #38) are DENIED.

(4)

Plaintiff’s motion to obtain affidavits/statements from incarcerated witnesses
(dkt. #68) and motion for assistance in recruiting counsel (dkt. #53) are both
denied without prejudice.

Entered this 27th day of April, 2018.
BY THE COURT:
/s/
______________________________________
WILLIAM M. CONLEY
District Judge

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