Prude, Terrance v. Meli, Anthony et al

Filing 128

ORDER that Plaintiff Terrance Prude's motion to reinstate Captain Westra as a defendant (dkt. 104 ) is DENIED. Plaintiff's motion to add DOC Secretary Carr as a defendant (dkt. 105 ) is DENIED without prejudice. Plaintiff's motion to compel and for sanctions (dkt. 111 ) is DENIED without prejudice. Plaintiff's motion to file sur-reply brief (dkt. 126 ) is GRANTED. Signed by Magistrate Judge Stephen L. Crocker on 12/18/2019. (rks),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TERRANCE PRUDE,
v.

Plaintiff,

OPINION AND ORDER
17-cv-336-slc

ANTHONY MELI, et al.,
Defendants.

Pro se plaintiff Terrance Prude is proceeding in this lawsuit on: (1) Fourteenth
Amendment due process claims against defendant Anthony Meli and Gary Boughton related
to Meli’s alleged withholding of exculpatory evidence at Prude’s conduct report hearing and
allegedly directing hearing officer Westra to impose a certain punishment; and (2) a First
Amendment claim against Meli for his alleged interference with Prude’s mail. I have taken the
parties’ dispositive motions under advisement, but in the meantime I will resolve these four
motions filed by Prude: (1) a motion to reinstate defendant Captain Westra (dkt. 104); (2) a
motion to amend the complaint to add Department of Corrections (DOC) Secretary Kevin
Carr as a defendant for purposes of injunctive relief (dkt. 105); (3) a motion to compel and for
sanctions (dkt. 111); and (4) a motion to file a sur-reply (dkt. 126). I am granting Prude’s
motion to file a sur-reply brief and I am denying the rest of these motions.

Motion to reinstate Captain Westra as a defendant (dkt. 104)
Prude seeks reconsideration of the leave to proceed order dismissing Captain Westra as
a defendant. Captain Westra presided over Prude’s disciplinary hearing at which he found
Prude guilty of the charges and imposed a punishment of 180 days of disciplinary separation.
In the leave to proceed order, I dismissed Westra as a defendant because Prude had not alleged

facts supporting an inference that Westra was a biased decision-maker. (Nov. 19, 2018 Order
(dkt. 41) at 8-9.) Prude argues that because I allowed him to proceed against Meli on the
theory that he controlled the sentence that Westra imposed, then Westra may be implicated
by this theory as well.
Prude waited too long to raise this argument. While Prude has been ardently pursuing
various due process theories against defendant Meli throughout this lawsuit, he never has asked
to reinstate Westra as a defendant until August 27, 2019, after the court already had granted
Prude’s third motion for reconsideration, see dkts. 97 and 103. Prude makes no effort to explain
why he waited so long. Given how zealously and assiduously Prude is prosecuting his current
string of civil rights lawsuits (he has three cases pending right now), I do not interpret this as
an oversight. I conclude that adding Westra back into this lawsuit as a defendant at this point
would unfairly prejudice defendants. Therefore, I am denying this motion.
Additionally, I note that Prude has not alleged facts suggesting that Westra was biased
against him. Prude’s version of the disciplinary hearing is that Meli usurped Westra’s role as
decision-maker because Westra allegedly told Prude his hands were “tied,” when he imposed
the 180-day punishment. I have concluded that these facts, construed in Prude’s favor, may
support an inference that Meli, who investigated Prude, acted inappropriately when he directed
Westra. Westra, on the other hand, was not involved in the underlying investigation, and he
is entitled to a presumption of honesty and integrity in his role as the hearing officer. See
Martin v. Zatecky, 749 F. App’x 463, 466 (7th Cir. 2019). The fact that Westra allegedly said
his hands were tied does not support a reasonable inference that Westra’s actions were the
product of his own bias against Prude. Rather, as I previously concluded, these allegations,
viewed in a light most favorable to Prude, suggest that Westra merely followed Meli’s orders,

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not that he acted out of bias against Prude. This would be a second reason to denying Prude’s
motion to reinstate Westra as a defendant.

Motion to add DOC Secretary Carr as a defendant (dkt. 105)
Prude seeks to add DOC Secretary Kevin Carr as a defendant because he is pursuing
injunctive relief in the form of the return of his confiscated funds from the state general fund.
I am denying this motion as premature. If Prude survives defendants’ motion for summary
judgment, or he succeeds on either of his own dispositive motions, then I will sua sponte
substitute Carr without the need for Prude to refile this motion.

Motion to compel and for sanctions (dkt. 111)
Prude seeks an order compelling defendants to respond to his second request for
production of documents. Prude represents that he properly requested: (1) a copy of an email
sent on January 4 and/or January 7 of 2017 from two nurses to a deputy warden and another
person in which they discussed whether Prude’s confiscated $10,000 could be used towards
the purchase of new food trays (at a total cost of $65,000); and (2) copies of any email
responses about that January 2017 request. Prude argues that this discovery request is relevant
to his claims because the intended use of the money tends to prove that Westra’s decision to
confiscate his money was colored by the DOC’s budgetary issues. Prude further represents
that defense counsel objected because Prude’s request sought documents from non-parties and
was not proportional to the needs of the case. Finally, Prude represents that on September 19,
2019, he sent defendants’ attorney a letter attempting to resolve the dispute, but defense
counsel did not respond to that letter by September 28, 2019.

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In opposition, defendants represent that they did not receive Prude’s September 19
letter, and only learned of Prude’s problem with their objection when he filed this motion. In
light of this dispute as to who knew what when, I am not going to impose sanctions, but will
simply address this dispute on its merits. First, I will dispense with defense counsel’s claim
that defendants have no ability to obtain the requested emails from “third parties.” That’s
disingenuous at best.

If these emails were routed between WCI employees, then these

defendants and the Wisconsin Attorney General’s Office have access to them and could cause
them to be produced. This is not a basis to deny Prude’s motion.
But Prude has a relevance problem. I do not see how wish-list speculation by legally
inconsequential WCI employees about how they would like to spend a prisoner’s confiscated
money—which in fact ended up in Wisconsin’s general fund—would pass muster under Federal
Rules of Evidence 401 or 403, even if Meli, Boughton, or Westra were aware that these emails
were being sent. At this point, Prude is not suggesting that Meli, Boughton or Westra were
part of—or aware of—this food tray email chain at the time of the incidents at issue in this
lawsuit. But Prude is entitled to ask—and Meli and Boughton are required to answer—whether
they were aware of these emails at the time and whether these emails played any part in the
decisions they made.

If either defendant answers either question “yes,” then WCI must

produce the food tray email chain(s) to Prude, who then may attempt to establish the use
and/or admissibility of the food tray email chain(s) at trial. Westra’s knowledge of the food
tray email chains is irrelevant because I have denied Prude’s late request to add Westra as a
defendant in this case. The bottom line today is that I am denying Prude’s motion to compel
without prejudice and allowing him to attempt to lay a foundation for the disclosure of the
information he is requesting.

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Motion for leave to file sur-reply brief (dkt. 126)
Finally, Prude seeks permission to file a reply brief in opposition to defendants’ motion
for summary judgment. I will grant that motion and take it into consideration in resolving that
motion.

ORDER
IT IS ORDERED that:
1. Plaintiff Terrance Prude’s motion to reinstate Captain Westra as a defendant (dkt.
104) is DENIED.
2. Plaintiff’s motion to add DOC Secretary Carr as a defendant (dkt. 105) is DENIED
without prejudice.
3. Plaintiff’s motion to compel and for sanctions (dkt. 111) is DENIED without
prejudice.
4. Plaintiff’s motion to file sur-reply brief (dkt. 126) is GRANTED.

Entered this 18th day of December, 2019.
BY THE COURT:
/s/
_______________________
STEPHEN L. CROCKER
Magistrate Judge

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