Lewis, James v. Henneman, Chad et al

Filing 94

ORDER denying plaintiff James A. Lewis's 67 motion for sanctions. The clerk of court is directed to schedule a hearing on defendants' motion to dismiss the case as a sanction, Dkt. 81 . Signed by District Judge James D. Peterson on 5/1/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JAMES A. LEWIS,
Plaintiff,
v.

OPINION & ORDER

CHAD HENNEMAN, LORIE IVERSON, and
LAURIE NEUROTH,

16-cv-733-jdp

Defendants.
Plaintiff James A. Lewis, a prisoner currently incarcerated at the Wisconsin Secure
Program Facility (WSPF), brings this lawsuit alleging that defendants, WSPF officials Chad
Henneman, Lorie Iverson, and Laurie Neuroth, harassed and disciplined Lewis in retaliation
for his complaining about sexual harassment by Henneman. I granted Lewis leave to proceed
on First Amendment retaliation and Fourteenth Amendment equal protection claims against
defendants. Each side has filed a motion for sanctions. I will deny Lewis’s motion and direct
the clerk of court to schedule an evidentiary hearing on defendants’ motion. I will reserve ruling
on the remaining pending motions in this case until defendants’ motion for sanctions is
resolved.
A. Lewis’s motion for sanctions
Lewis contends that defendants failed to comply with my January 29, 2018 order,
Dkt. 63, instructing defendants to allow Lewis to review partially redacted copies of defendant
Chad Henneman’s disciplinary records. Lewis asks me to sanction defendants by denying their
summary judgment motion. Dkt. 67.

The facts here are undisputed. On January 29, I ordered defendants to arrange for Lewis
to view partially redacted copies of the disciplinary records available at Dkt. 37-1 and Dkt. 372. I ordered defendants to do so by February 5. I extended the deadline for Lewis’s summary
judgment response to February 28 to allow him time to review the records. Defendants’ counsel
arranged for Lewis to review Dkt. 37-2, a 163-page exhibit containing the detailed employee
investigation reports relating to Henneman’s disciplinary record, on January 31. But Lewis
never received a copy of Dkt. 37-1, a three-page summary of the disciplinary record.
Defendants’ counsel explains that she “inadvertently neglected” to make Dkt. 37-1 available
to Lewis. Dkt. 68, at 2. She mailed Lewis a copy of Dkt. 37-1 with her response to Lewis’s
motion for sanctions on February 23 and explains that she would have done so earlier if Lewis
had notified her of the issue before filing his motion. See id. Lewis says he didn’t receive Dkt.
37-1 until February 28, the same day his response brief was due.
Counsel’s “inadvertence” is becoming a common theme in this litigation. See Dkt. 63,
at 2 (“Defendants explain that their late disclosure was accidental . . . .”). Had Lewis asked for
leave to file a supplemental response incorporating information gleaned from Dkt. 37-1, I
would have likely granted his request. But it does not appear that Lewis had anything to add
after reviewing Dkt. 37-1. After all, Dkt. 37-1 is simply a summary of the records contained in
Dkt. 37-2. I will not sanction defendants for what appears to be a harmless oversight. But I
warn defendants’ counsel that I will not look favorably upon any future errors or incidents of
neglect.

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B. Defendants’ motion for sanctions
Next, defendants claim that Lewis falsified a record, Dkt. 64-1, that he submitted to
the court in opposition to defendants’ summary judgment motion. They ask me to sanction
Lewis by dismissing this case. Dkt. 81.
Unlike Lewis’s motion for sanctions, the facts concerning defendants’ motion for
sanctions are very much disputed. But I’ll begin with the common ground. In July 2015,
Henneman issued a conduct report alleging that Lewis violated two DOC rules: Rule 303.63,
concerning inadequate work or school performance, and Rule 303.33, concerning disruptive
conduct. Lewis contested the conduct report. Captain Lebbeus Brown served as the hearing
officer for the conduct report. He reviewed the conduct report on August 3, 2015, and
approved a disposition of three days’ room confinement. In support of their summary judgment
motion, defendants submitted what appears to be the original copy of the conduct report form.
See Dkt. 31-2. It bears two checkmarks indicating that Lewis was found guilty of both rule
violations. In opposition to defendants’ summary judgment motion, Lewis submitted a carbon
copy of the conduct report form. See Dkt. 64-1. On Lewis’s copy, the initials “LB” are written
next to the “guilty” checkmark for Rule 303.63, and the “not guilty” box is checked, instead.
The parties agree that Lewis’s copy of the conduct report form was altered after the original
conduct report form was completed.
The parties dispute who altered the form. Lewis states, in a declaration, that Brown
made the change before giving the copy to Lewis and told Lewis that “he would do the same
to the original.” Dkt. 91, ¶ 2. Defendants accuse Lewis of altering it in an attempt to defeat
defendants’ summary judgment motion. They point to Brown’s declaration, in which he states
that he does not recognize the initials on Lewis’s copy as his handwriting, that he did not

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amend his findings of guilt for Lewis’s conduct report, and that he has never altered a carbon
copy of a conduct report—any changes he makes to conduct reports are made on the original
version with the carbon copy underneath so that both copies reflect the change.
In sum, the parties genuinely dispute whether Lewis altered the copy of the conduct
report that he submitted to the court. If he did, he has not only submitted falsified evidence to
the court, but he has perjured himself as well. Dismissal with prejudice would be “entirely
warranted” in such a situation. Jackson v. Murphy, 468 F. App’x 616, 620 (7th Cir. 2012); see
also Howell v. Broadbent, No. 16-cv-477, 2018 WL 1433852, at *3 (W.D. Wis. Mar. 22, 2018).
But to obtain that sanction, defendants must prove by a preponderance of the evidence that
Lewis in fact altered the copy of the conduct report. See Ramirez v. T&H Lemont, Inc., 845 F.3d
772, 778 (7th Cir. 2016), cert. denied, 138 S. Ct. 116 (2017). So I will direct the clerk of court
to schedule an evidentiary hearing so that I can make a determination about whether Lewis
altered the copy of the conduct report.

ORDER
IT IS ORDERED that:
1. Plaintiff James A. Lewis’s motion for sanctions, Dkt. 67, is DENIED.
2. The clerk of court is directed to schedule a hearing on defendants’ motion to dismiss
the case as a sanction, Dkt. 81.
Entered May 1, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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