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Wheeler v. Radtke

United States District Court, E.D. Wisconsin

January 13, 2016

TINGIA D. WHEELER, Plaintiff,
v.
CAPTAIN CYNTHIA RADTKE, BRET MIERZEJEWSKI, WILLIAM POLLARD, and WARDEN GARY BOUGHTON, Defendants.

DECISION AND ORDER

LYNN ADELMAN District Judge

The pro se plaintiff, Tingia D. Wheeler, is a Wisconsin state prisoner. He filed a second amended complaint (Dkt. No. 25) alleging that: (1) defendants Radtke and Mierzejewski issued him a retaliatory conduct report; (2) defendants Radtke and Mierzejewski interfered with his mail in violation of the First Amendment; (3) defendants Radtke and Mierzejewski suppressed evidence favorable to him during two disciplinary hearings on conduct reports, in violation of the Due Process Clause of the Fourteenth Amendment; and that he was issued a retaliatory transfer to the Wisconsin Secure Program Facility for filing this lawsuit. The parties have filed several motions, which I will address in this order.[1]

Plaintiff’s Motion for Summary Judgment

On August 13, 2015, plaintiff filed a motion for summary judgment (Dkt. No. 27). Defendants subsequently filed a motion to stay briefing on the motion for summary judgment (Dkt. No. 36). However, on November 19, 2015, plaintiff filed a letter requesting to withdraw his summary judgment motion (Dkt. No. 69). I will grant plaintiff’s request to withdraw the motion, and deny as moot defendants’ motion to stay briefing.

Discovery-Related Motions

A. Plaintiff’s Motion to Compel

On August 17, 2015, plaintiff filed a motion to compel discovery (Docket No. 32). He states that defendants did not respond to his July 14, 2015, discovery request. In response, defendants contend that I should deny the motion because plaintiff has not certified that he attempted to confer with them before filing his motion to compel, as required. See Fed.R.Civ.P. 37(a)(1); Civil L.R. 37 (E.D. Wis.). Defendants also contend that I should deny plaintiff’s motion because they timely responded to the discovery requests. Because defendants timely responded to plaintiff’s discovery, see Docket No. 42 (Bresette Decl. ¶ 4, Ex. C), and because plaintiff failed to comply with the applicable procedural rules, I will deny his motion to compel.

B. Defendants’ Motion for Protective Order and Motion to Seal

On September 4, 2015, defendants filed a motion for a protective order (Docket No. 37) in which they request that plaintiff be prevented from using discovery to learn information prison officials kept from him for security reasons. Specifically, they ask that plaintiff be prevented from seeing the letters that formed the basis of Conduct Report 2481117, and from learning the identities of the recipients of those letters. Defendants filed a separate motion requesting that Exhibit B from the Declaration of Cynthia Radtke, the letters that are the subject of the requested protective order, be filed under seal and ex parte for in camera review (Docket No. 40). Defendants contend that the proposed discovery is outside the scope of Federal Rule of Civil Procedure 26(b)(1) in that it creates a burden that outweighs any benefit.

The court must limit the frequency or extent of discovery if it determines that the proposed discovery is outside the scope permitted by Rule 26(b)(1). See Fed.R.Civ.P. 26(b)(2)(C)(iii). The scope of discovery is as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

Plaintiff received Conduct Report 2481117, charging him with threats, in violation of Wis. Admin. Code § DOC 303.76, based on his efforts to identify and harm confidential informants who provided information regarding plaintiff’s alleged gang activities. (See Dkt. No. 38 at 4-6.) Allowing plaintiff to learn “the names of each recipient of a letter from the plaintiff that makes up the body of conduct report #2481117" could place an unnecessary burden on prison security and could place the letter recipients in danger. (Dkt. No. 38 at 6.) Moreover, a protective order will not harm plaintiff because he already has a copy of Conduct Report 2481117, which describes the content of the ...


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