Brown, Larry v. Bellile, Doug et al

Filing 63

ORDER that plaintiff Larry J. Brown's motion for leave to depose defendants (dkt. 61 ) is DENIED as moot. Plaintiff's motion to compel and for sanctions (dkt. 42 ) is GRANTED in part and DENIED in part as specified in this order. Defenda nts have until October 22, 2021 to produce any previously undisclosed documents, policies or procedures related to the October 2019 discipline incident as alleged in plaintiff's complaint. Defendants Kattenbraker and Thomas are substituted for the John and Jane Doe Committee Members. The Attorney General's office may file an amended answer within two weeks of the date of this order. Signed by Magistrate Judge Stephen L. Crocker on 10/14/2021. (lam),(ps)

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

LARRY J. BROWN,
Plaintiff,
v.

OPINION AND ORDER
20-cv-337-wmc

DOUG BELLILE, DANIEL KATTENBRAKER,
JOHN AND JANE DOE “SPECIAL NEEDS
COMMITTEE MEMBERS,” LAURA THOMAS,
LISA POUILLIE, SARA DONOVAN,
JOSEPH SCHMELZLE, and DANIEL PARK,
Defendants.
__________________________________________________________________________________

Pro se plaintiff Larry J. Brown is proceeding under 42 U.S.C. § 1983 against several
Sand Ridge Secure Treatment Center staff members on Fourteenth Amendment medical
deliberate indifference claims related to an alleged skin condition and to ongoing trouble
swallowing and esophageal pain. The court will address two motions in this order. First, the
court will deny without prejudice Brown’s motion for leave to depose defendants. (Dkt. 61.)
Second, the court will grant in part and deny in part Brown’s motion objecting to
defendants’ responses to his request for production of documents and asking for sanctions,
and to compel defendants to produce additional information. (Dkt. 42.)

1.

Plaintiff’s motion for leave to depose defendants (dkt. 61)

Plaintiff asks for leave to depose defendants. Under Federal Rule of Civil Procedure
30(b)(3), depositions must be recorded and the party requesting the deposition must pay
for the recording and transcripts. The court does not have funds to pay for pro se litigants
to take depositions, and plaintiff has not represented that he is willing or able to pay to

record and obtain transcripts for any of the depositions he wishes to take. Therefore, the
court will deny the motion without prejudice to plaintiff’s ability to renew it if he (1) is
willing to pay the costs associated with taking the depositions he requests, and (2) files an
updated trust fund account statement verifying that he has the funds available to pay for the
costs associated with these depositions.

2.

Plaintiff’s motion to compel and for sanctions (dkt. 42)

Plaintiff objects to defendants’ responses to his first request for document production
and seeks sanctions; he also asks the court to compel defendants to produce certain
additional information and documents. By way of background, the court allowed plaintiff
to proceed against John and Jane Doe Special Needs Committee Members based on his
allegations that these defendants refused his repeated requests for medically necessary
accommodations despite their knowledge of plaintiff’s medical history, and in contravention
of the recommendations of University of Wisconsin specialists and a nurse practitioner.
(Dkt. 21 at 16-17, 19.) At the preliminary pretrial conference, plaintiff learned how to use
discovery requests to identify these defendants, and the court set deadlines for plaintiff to
file an amended complaint identifying his Doe defendants and for the any identified Doe
defendants to file and serve their answers. (Dkt. 30 at 4-5.)
Plaintiff then sent defendants a request for document production that consisted of
five questions. In question no. 1, plaintiff asks for “the names, position, and title” of each
committee member who “made medical decisions concerning” plaintiff’s complaints of

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gastroesophageal pain, besides already-named defendant Dr. Kattenbraker. (Dkt. 56-1 at
2.) In response, defendants name defendants Kattenbraker and Laura Thomas, Director of
Nursing.

Relatedly, in question no. 2, plaintiff requested “all Statutes, policies and

procedure, Wisconsin Administrative Code, DHS laws and procedure or any other law that
governs [the committee’s] authority” and how it functions and makes decisions. (Dkt. 56-1
at 3.) Defendants’ response explains that what plaintiff refers to as a committee is in fact
a workgroup designed to address health service requests (“HSR”) in the unique environment
at Sand Ridge. (Dkt. 56-1 at 3.) Defendants have also produced an internal document
describing the group’s membership and procedure, and further note that the documents
plaintiff requested would not describe the workgroup’s functions, given that the workgroup
was “not a committee sanctioned by Wisconsin Administrative Code, DHS laws and
procedures” or any other laws. (Dkt. 56-1 at 3.)
Plaintiff objects to the sufficiency of these responses. In particular, he seeks to
compel defendants to disclose “the names of the Nursing Supervisors, the Pharmacy
Supervisor, the Health Information Supervisor, and the Client Rights Facilitators” that,
according to the internal document defendants produced, are also members of the medical
special needs workgroup. (Dkt. 42 at 1-2.) He further requests all documents related to the
workgroup’s consideration of his accommodation requests and its “final consensus based
decision” on these requests. (Dkt. 42 at 1.)
In response, defendants have supplemented their initial response to plaintiff’s
discovery request by producing “all workgroup notes and responses related to” plaintiff’s

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HSRs, and assert that these documents represent everything available concerning these
requests. (Dkt. 56 at 4.) The workgroup notes document the workgroup meetings held
between August 2019 and April 2021. Although redacted in part, they indicate which of
plaintiff’s health service requests were considered and the dates of consideration, as well as
the reasoning behind the decisions to approve or deny them. (Dkt. 56-2.) Moreover, these
notes also indicate that Kattenbraker and Thomas are the only two workgroup members who
reviewed and considered plaintiff’s HSRs. (Dkt. 56-2 at 2, 5, 8, 13, 15, 17, 19, 22.)
Although other individuals may have been members of the workgroup during this
period and may have been involved in decisions regarding other patients, the meeting notes
do not indicate that anyone else had input on the decisions plaintiff challenges here.
Therefore, it appears that there are no other individuals to identify and include in this
lawsuit based on workgroup involvement. See Minix v. Canarecci, 597 F.3d 824, 833-34 (7th
Cir. 2010) (“individual liability under § 1983 requires personal involvement in the alleged
constitutional violation”) (citation omitted). Plaintiff did not file a reply, nor did he
otherwise indicate to the court that the notes defendants have produced are insufficiently
responsive to his discovery request. In any event, the court has no reason to doubt
defendants’ assertion that they have produced all they have with respect to workgroup
documentation concerning plaintiff’s HSRs. Accordingly, the court will substitute the
already-named Kattenbraker and Thomas for the John and Jane Doe committee member
defendants. These defendants are already represented by the Wisconsin Attorney General’s
office, which may have two weeks to file an amended answer.

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Plaintiff further objects to defendants’ response to his question no. 5, asking for “all
Health Services medical policies that allows security staff to punish a patient (plaintiff) with
segregation for not complying with a rule, based on a medical condition.” (Dkt. 56-1 at 7.)
I infer that plaintiff seeks information relevant to the October 2019 incident in which
plaintiff allegedly was disciplined for not being able to finish eating breakfast by the end of
mealtime. (Dkt. 21 at 13-15.) Defendants respond that the health services unit does not
maintain any “internal medical policies, processes, or procedure documents” concerning how
to punish a patient. (Dkt. 56-1 at 8.) Even so, patient discipline or security policies or
procedures, or other documents, related to the decision to sanction plaintiff in October 2019
would be relevant to his claim arising out of that decision and thus discoverable. To the
extent such documentation has not been produced, the court will allow defendants one week
to do so.
Plaintiff’s remaining objections are argumentative and will be overruled. To start,
plaintiff complains that the workgroup is an unsanctioned committee making “life and death
decisions” whose members “answer only to themselves.” (Dkt. 42 at 2.) To the extent
plaintiff is claiming that the workgroup violates a policy or state law, that would not give rise
to a federal constitutional claim. Wozniak v. Adesida, 932 F.3d 1008, 1011 (7th Cir. 2019)
(“constitutional suit is not a way to enforce state law through the back door”); Scott v.
Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (observing that “42 U.S.C. § 1983 protects
plaintiffs from constitutional violations, not violations of state laws or. . . departmental
regulations”).

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Moreover, plaintiff is not proceeding on a claim challenging the existence of the
workgroup, and workgroup members are not beyond reach or reproach. For one, plaintiff
is proceeding in this court against the two members who allegedly were involved in the
decisions denying him the requested accommodations. For another, as defendants note in
their response to plaintiff’s discovery request no. 3 asking how patients can appeal
workgroup decisions, Sand Ridge patients can file a grievance with the Client Rights
Facilitator. (Dkt. 56-1 at 6.) In support, defendants have produced Sand Ridge’s patient
handbook outlining the grievance process and referencing policy SR425 concerning patient
grievances. (Dkt. 56-1 at 22.)
Plaintiff objects, but solely based on his speculation that filing a grievance against the
workgroup would be futile because the workgroup includes a facilitator. Again, no facilitator
appears to have been involved in the workgroup decisions concerning his requests. In any
event, plaintiff’s skepticism regarding the fairness of the grievance process does not mean
that defendants were unresponsive to his discovery request asking them to describe and
document that process, which they have done.
Next, plaintiff objects to defendants’ general statement in response to his question
no. 2 in which they state that “all of the patients at [Sand Ridge] suffer from serious
psychiatric illness and/or mood disorders,” and the workgroup was designed to safely address
patient health care concerns in this environment while avoiding the “fracturing of the
physician-patient relationship” at the facility. (Dkt. 56-1 at 4.) Plaintiff asks for sanctions
and the statement’s redaction because he claims the statement is untrue, offensive, and

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speculative, and therefore cannot serve as a reason why the workgroup operates as it does.
(Dkt. 42 at 2.) Plaintiff, however, is proceeding only on behalf of himself, not all Sand
Ridge patients, and unlike defendants, is not in a position to speak to how many patients
there have been diagnosed with mental illness or to the general safety concerns with which
health care staff contend. Moreover, defendants have made no specific statement regarding
any particular patient or their mental health history. Finally, plaintiff has already disclosed
his own diagnoses in this case, including antisocial personality disorder. (Dkt. 35 at 1, 36
at 4.) Accordingly, the court will neither redact this general statement nor sanction defense
counsel or defendants for making it.
Plaintiff’s remaining objections do not merit much discussion. Specifically, plaintiff:
(1) takes issue with defendants’ characterization of the complaint as concerning the number
of meals plaintiff is willing to eat per day rather than the denial of accommodations; (2) and
with defendants’ statement that his requested nighttime snack bag is not medically
indicated; (3) he argues that medical staff should have intervened and halted the October
2019 conduct hearing; and (4) he restates his position that he should not have to pay for
the accommodations he is requesting. (Dkt. 42 at 3-4.) These arguments and assertions are
best reserved for plaintiff’s opposition to defendants’ anticipated motion for summary
judgment and proposed findings of fact. The court will not resolve these disputes without
the parties having had the opportunity to marshal their evidence in support of their
respective versions of events. Accordingly, plaintiff’s discovery motion will be granted in
part and denied in part, as specified above.

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ORDER
IT IS ORDERED THAT:
1. Plaintiff Larry J. Brown’s motion for leave to depose defendants
(dkt. 61) is DENIED as moot.
2. Plaintiff’s motion to compel and for sanctions (dkt. 42) is
GRANTED in part and DENIED in part as specified above.
Defendants have until October 22, 2021 to produce any
previously undisclosed documents, policies or procedures related
to the October 2019 discipline incident as alleged in plaintiff’s
complaint.
3.

Defendants Kattenbraker and Thomas are substituted for the John
and Jane Doe Committee Members. The Attorney General’s office
may file an amended answer within two weeks of the date of this
order.

Entered this 14th day of October, 2021.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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