Harper, Kevin v. Boughton, Gary et al

Filing 52

ORDER that the clerk of court is directed to schedule an evidentiary hearing on defendants' motion for judgment on the pleadings, Dkt. 41 . Signed by District Judge James D. Peterson on 5/10/2024. (rks),(ps)

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

KEVIN OMAR HARPER,
Plaintiff,
v.
GARY BOUGHTON, MR. JAEGER, MARK
KARTMAN, JAIME ADAMS, SHERYL L. KINYON,
BRIAN KOOL, ANTHONY BROADBENT, LEBBUS A.
BROWN, MRS. BROWN, CAPTAIN ANDREW
HULCE, CAPTAIN MR. FLANNERY, CAPTAIN J.
BOISEN, SCOTT RUBIN-ASCH, DR. HEATHER
SCHWENN, DR. STACEY HOEM, MS. MINK, MS.
LEMEIUX, TODD BRESEE, MS. C. MORRISON, J.
HENDRICKSON, D. CHASE, DOUGALAS PERCY,
SGT. TYLER J. RUDIE, C.O. AMBER L. FREDRICK,
C.O. CARLY A. KNOCKEL, C.O. HAGENSTICK, C.O.
BROWN, SGT. FERRON, SGT. WINGER, BRETT
WILKINSON, NURSE KINNEY, COOK, COLLINS,
REEK, RIBAULT, LATIFA, WARD, JOHN DOES,
JOHN DOES, MEDICAL STAFF, HSU JOHN DOES,
and BERGER,

OPINION and ORDER
22-cv-74-jdp

Defendants.
Plaintiff Kevin Omar Harper, proceeding without counsel, alleges that defendants
violated his civil rights in several ways. I have screened the complaint and allowed Harper to
proceed on several claims.
Defendants move for judgment on the pleadings, Dkt. 41, contending that in the
settlement reached in Case No. 19-cv-723-jdp, Harper released any claims against DOC
employees based on actions that occurred before February 24, 2002. Dkt. 40 (written
settlement agreement). That settlement agreement, if enforced as written, would apply to this
case.

But I will deny the motion for judgment on the pleadings because there are factual
disputes concerning whether the settlement agreement is enforceable as written.

BACKGROUND
On July 22, 2021, Magistrate Judge Peter Oppeneer successfully mediated the ’723 case.
At the end of that proceeding, Judge Oppeneer documented the terms of the agreement in an
audio recording, stating:
I understand that the parties have agreed that for the payment of
$12,000 by the defendants to the plaintiff, that plaintiff will
dismiss his four pending lawsuits and sign a global release that
releases defendants from any claims which will have arisen at or
prior to the time of this settlement.
Dkt. 84-1 in the ’723 case. The four pending lawsuits were the ’723 case, Case Nos.
20-cv-592-jdp and 21-cv-313-jdp in this court, and Case No. 20-cv-424 in the Eastern District
of Wisconsin.
Counsel for defendants drafted a settlement agreement and sent it to Harper. Harper
wouldn’t sign it, so counsel for defendants moved to enforce the settlement agreement. Dkt. 83
in the ’723 case. I granted the motion, concluding that the release negotiated at the mediation
was enforceable and that it covered the four pending cases. Dkt. 88. Harper moved for
reconsideration, contending that the terms of the proposed written agreement differed from
the terms agreed to at the mediation. Dkt. 90. I denied the motion for reconsideration,
concluding that at the mediation Harper had indeed agreed to release all claims against
defendants based on actions occurring before the execution of the settlement agreement.
Dkt. 94. Harper signed the settlement agreement and got the settlement payment.

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ANALYSIS
There was a problem lurking, which I did not appreciate during the ’723 case. The
written settlement agreement is actually broader than the agreement that had been reached at
the mediation. The written agreement covered not just claims against defendants, but those
against all state and DOC employees. Harper realized the problem, and he spelled it out in his
motion for reconsideration. Dkt. 90 at 1. But the difference wasn’t material to my decision on
the motion for reconsideration, because the agreement reached at the mediation covered the
four pending suits regardless of what the written settlement agreement said. Had the difference
been material, I would have required defendants to conform the written agreement to the one
reached at the mediation.
The difference is material to this suit. The agreement reached at the mediation wouldn’t
bar Harper from pursuing this suit, but the written settlement agreement would.
Defendants contend now that the written agreement is unambiguous, so I should simply
enforce it. But the enforceability of the written settlement agreement is not something I can
decide on the pleadings for three reasons. First, it’s not clear whether consideration supports
the written agreement. The written agreement is broader than the verbal agreement, and it’s
unclear what further consideration Harper received for agreeing to the broader release. Second,
Harper contends that he signed the written agreement only because defense counsel Samir
Jaber falsely represented that it applied only to claims against the defendants in the four
pending lawsuits. If Jaber made those representations, my rulings in the ’723 case may have
reasonably misled Harper into thinking that Jaber’s statements about the scope of the release
in the written agreement were true. Third, it’s not clear whether the written agreement was the
result of either mutual or unilateral mistake.

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I recognize the potential unfairness of holding Harper to an agreement that is broader
than the one reached at the mediation, which is the only one that I have previously enforced.
Because I cannot determine as a matter of law whether I should enforce the written agreement’s
release clause, further development of the facts will be necessary. In particular, the analysis
may turn on the credibility of Harper’s or Jaber’s testimony about their discussions during the
settlement process and their understanding of the consequences of Harper signing the written
agreement. When there is a dispute of material fact over the existence or terms of a settlement
agreement, the district court should conduct an evidentiary hearing to resolve the matter.
See Sims-Madison v. Inland Paperboard & Packaging, Inc., 379 F.3d 445, 449 (7th Cir. 2004);
Wilson v. Wilson, 46 F.3d 660, 664 (7th Cir. 1995). I will direct the clerk of court to schedule
an evidentiary hearing to take testimony from Harper and Jaber about the process by which
they reached settlement in that case and to hear argument on the issues discussed in this
opinion. The parties should seek permission from the court if they wish to call any other
witnesses.

ORDER
IT IS ORDERED that:
1. The clerk of court is directed to schedule an evidentiary hearing on defendants’
motion for judgment on the pleadings, Dkt. 41.

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2. The clerk of court is directed to issue a writ of habeas corpus ad testificandum for
the attendance of plaintiff at that hearing.
Entered May 10, 2024.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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