Alexander, Robert et al v. Foster, Brian et al

Filing 222

ORDER that Plaintiff Robert Earl Alexander's motions for preliminary injunctive relief, Dkt. 212 and Dkt. 217 , are DENIED as moot. The case will proceed with the parties following the orders listed above. Signed by District Judge James D. Peterson on 3/25/2021. (lam),(ps)

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

ROBERT EARL ALEXANDER,
Plaintiff,
v.
NATHAN TAPIO and ROMAN KAPLAN,

ORDER
17-cv-861-jdp

Defendants.
I held a videoconference hearing in this case on March 25, 2021, to address plaintiff
Robert Earl Alexander’s allegations that 150 pages of materials, including his response to
defendants’ motion for summary judgment, were destroyed by prison staff for being
contaminated with fecal material, and that prison staff is blocking or delaying his receipt of
mail from the court. This order memorializes my rulings at that conference and expands on
them.
A written order is particularly important in this case because the court and all parties
have been operating under the assumption that Alexander cannot hear. Yet prison staff
arranged for Alexander to appear at the hearing without the aid of assistive technology or help
from a staff member. Prison staff relayed to the clerk’s office that Alexander did not have a
verified hearing problem, which is news to me following previous hearings—one held by phone
and one held in the courtroom with Alexander receiving a feed of the live transcription—giving
every indication that Alexander could not participate without assistance. Predictably, although
he was present on the video conference call, Alexander did not participate in today’s hearing. I
am concerned that prison staff is interfering with Alexander’s ability to prosecute his case.

Nonetheless, at today’s hearing I proceeded to address with counsel for defendants
deficiencies in the way Alexander’s mail and legal materials have been handled. I will send
Alexander this order, of course, but I will also send him a copy of the transcript of the hearing
as soon as it is available so that he can file a written response if he so chooses.
Alexander filed motions for injunctive relief ordering prison staff to return his 150-page
packet of materials and deliver pieces of mail to him. Dkt. 212 and Dkt. 217. I’ll deny those
motions as moot because defendants’ counsel says that the materials have been destroyed and
that the mail has been delivered to Alexander. But I did order officials to take several steps to
remediate the destruction of materials to ensure that Alexander can file his summary judgment
response. Counsel and prison staff are directed to comply strictly with these orders or face
sanctions:
•

For the remainder of this case, prison staff are prohibited from destroying any of
Alexander’s proposed filings or legal materials. Items posing sanitary or other
concerns may be quarantined or confiscated but those actions must be thoroughly
documented and promptly reported to the court.

•

Alexander says that he retains a copy of his summary judgment opposition brief.
Defendants’ counsel is directed to oversee that a copy of that document is made for
Alexander’s submission to the court and that the original is safely returned to
Alexander.

•

Counsel has assured the court that he will provide copies of case law and any internal
prison documents Alexander seeks to use, such as medical records. After Alexander
outlines his request for documents, counsel is directed to provide Alexander with
the materials he seeks or submit a brief to the court explaining why a particular
request cannot be met.

•

Defendants’ counsel may have until April 9, 2021, to submit the incident report
detailing the destruction of Alexander’s materials.

•

To prevent future disputes about whether Alexander is equipped to participate in
live court proceedings, defendants’ counsel may have until April 9, 2021, to submit
a report on Alexander’s ability to hear and a plan to provide necessary assistance to
him so he can adequately represent himself.

2

Alexander’s obligation to re-create his summary judgment materials is as follows:
•

Alexander will have two weeks from receipt of this order and the hearing transcript
to tell defendants’ counsel what documents he needs to reconstruct the 150 pages
of material that were destroyed.

•

Because the March 25 hearing was held without Alexander’s active involvement, he
may have two weeks from the receipt of this order and the hearing transcript to
submit a response to the court about those proceedings and my rulings.

•

After I rule on any issues raised by Alexander in that motion, I intend to give him a
month to prepare and submit his summary judgment opposition brief, his proposed
findings of fact and responses to defendants’ proposed findings, and his evidence in
support. The court will issue another order formally setting those deadlines once the
preliminary matters are resolved.
ORDER

IT IS ORDERED that:
1. Plaintiff Robert Earl Alexander’s motions for preliminary injunctive relief, Dkt. 212
and Dkt. 217, are DENIED as moot.
2. The case will proceed with the parties following the orders listed above.
Entered March 25, 2021.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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