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Prude v. Clarke

United States District Court, E.D. Wisconsin

February 17, 2016



WILLIAM E. DUFFIN U.S. Magistrate Judge

Plaintiffs Terrance Prude and Scottie Baldwin are proceeding pro se on claims that the Milwaukee County Jail (Jail) visitation policy violated their constitutional rights by preventing them from visiting with their minor children during their brief stays at the Jail.


This case has a complicated procedural history and a number of pending motions, including motions for summary judgment filed by both the plaintiffs and the defendants.

In July 2014 this case was transferred from the United States District Court for the Western District of Wisconsin because venue was improper there. (ECF No. 56.) On February 27, 2015, this court entered a Scheduling Order that set a discovery deadline of May 29, 2015, and a dispositive motion deadline of June 29, 2015. (ECF No. 62.) Less than a week later, the plaintiffs, who had filed a motion for summary judgment in the Western District (ECF No. 45), filed a renewed summary judgment motion in this court. (ECF No. 63.)

The defendants filed their response to the plaintiffs’ motion for summary judgment, along with a motion for extension of time to file a supplemental response to plaintiffs’ motion. (ECF No. 72.) They asked for a May 18, 2015, response deadline so that they could incorporate testimony from the plaintiffs’ depositions, which were scheduled to take place on April 7, 2015. (ECF No. 99, ¶ 26.) The defendants filed their supplemental response on May 18, 2015. (ECF No. 80.) The court will grant the defendants’ motion for extension of time and consider their supplemental response.

At his deposition Baldwin indicated that he was not willing to answer questions because he had not heard from Prude since receiving the Notice of Deposition. (ECF No. 99, ¶ 28.) He also raised a concern about his deposition proceeding before Prude’s. (ECF No. 99, ¶ 32.) However, he did not contact defense counsel before the deposition regarding any concerns he had about participating in his deposition. (ECF No. 99, ¶¶ 29-30.) He refused to answer substantive questions regarding (1) visitation with his children while he was at the Jail; (2) the periods of time he spent at the Jail; (3) his interactions with personnel at the Jail regarding efforts to visit with his children; (4) grievance letters Baldwin forwarded to personnel at the Jail relating to visitation issues and responses he received; (5) whether Baldwin had any direct communications or interactions with Sheriff David Clarke about visitation issues at the Jail; (6) responses Baldwin provided to written discovery; (7) whether Baldwin experienced any physical injury or received any medical treatment associated with the allegations referenced in his complaint; (8) whether he intended to proceed against Sheriff Clarke in his official or individual capacity; and (9) damages. (ECF No. 99, ¶ 31.)

Twice during Baldwin’s deposition counsel for the defendants informed Baldwin that if he did not answer questions a motion for sanctions might be filed against him and one of the sanctions that could be requested would be the dismissal of his claims. (ECF No. 99, ¶ 35.) Baldwin still refused to answer. (ECF No. 99, ¶ 36.) The fees and expenses incurred by the defendants associated with Baldwin’s deposition on April 7, 2015, are $925.00. (ECF No. 99, ¶ 41.)

Prude’s deposition went forward without incident. However, on May 22, 2015, Prude filed a motion to strike the transcript of his deposition because the defendants did not submit the entire transcript. (ECF No. 83.) In his motion Prude relies on “rule 12(f)” regarding electronically filed documents. Id. In responding to this motion the defendants note that the rule Prude relies on is part of the Western District’s electronic filing rules and that the Eastern District does not have the same requirement that deposition transcripts be filed in their entirety. (ECF No. 88.) The defendants also submitted the entire transcript of Prude’s deposition, mooting the motion in any event.

Also on May 22, 2015, the plaintiffs filed an unsigned motion (ECF No. 84) to strike the affidavit of James Cox, a Milwaukee County Sheriff’s Office Captain, submitted in response to the plaintiffs’ summary judgment motion. In his affidavit, Cox stated that he listened to the recordings of four phone calls placed by Prude from the Jail and that Sheriff Clarke was not a participant in any of them. (ECF No. 68.) Although the motion itself is unsigned, a violation of Federal Rule of Civil Procedure 11(a), the plaintiffs’ brief in support of their motion is signed by both plaintiffs and the court will construe it as the motion to strike. In their motion the plaintiffs maintain that affidavits must be based on personal knowledge and that Cox’s affidavit improperly presents Cox as an expert on voice identification. The court notes that Cox has known and worked with Clarke for many years and may have personal knowledge regarding what his voice sounds like. In any event, the court finds that Cox’s affidavit is not material to the resolution of the parties’ motions for summary judgment. As a result, the court will deny the plaintiffs’ motion as moot.

On June 29, 2015, the defendants filed a motion for summary judgment and a motion for sanctions. In their motion for summary judgment, the defendants argue that Prude lacks standing to assert a familial relationship claim because his parental rights had been terminated with regard to the child he wanted to have visit him at the Jail. (ECF No. 95.) In their motion for sanctions, the defendants state that Baldwin refused to be deposed and ask that he be ordered to pay the costs incurred for the attempted deposition and that he be compelled to participate in a deposition. (ECF No. 96.) They also ask for additional time to file another motion for summary judgment with respect to the merits of Baldwin’s claims once he has been deposed.

The plaintiffs responded to the defendants’ motion for summary judgment on July 2, 2015 (ECF No. 103), and the defendants filed their reply brief on July 16, 2015 (ECF No. 105). The plaintiffs then submitted an affidavit (that purports to be from both plaintiffs) on July 20, 2015 (ECF No. 106) and a surreply brief on July 24, 2015 (ECF No. 107). In the affidavit, the plaintiffs suggest that the defendants did not have permission to depose them under Federal Rule of Civil Procedure 30(a)(2)(A)(ii). However, that permission was granted in the court’s Scheduling Order (ECF No. 62, ¶ 1); no separate order was required.

The plaintiffs also argue that the defendants’ attorney asked Baldwin the same questions in his deposition that were asked during written discovery, which made the deposition subject to Rule 27. But Rule 27, which sets forth procedures for depositions taken before a case is filed or while an appeal is pending after judgment has been entered, does not apply to this case. Because this case is still pending and judgment has not been entered, Rule 30 applies to these depositions. The defendants were free to depose Baldwin and Prude regarding any matters relevant to their claims. Fed.R. Civ. P. 26(b)(1).

The plaintiffs further argue that Baldwin did not know what could and could not be asked and did not know what to object to in his deposition. The plaintiffs argue that not allowing Prude to be present at Baldwin’s deposition denied him access to his jailhouse lawyer with whom Baldwin wished to confer during the deposition. But a pro se plaintiff has no right to confer with a co-plaintiff or a jailhouse lawyer during a deposition. See Doss v. Gilkey, 649 F.Supp.2d 905, 912 (S.D. Ill. 2009) (a non-attorney cannot represent anyone but himself).

In their surreply brief, the plaintiffs set forth arguments regarding the merits of the case. They also argue that Baldwin’s actions were not “willful.” They admit that Baldwin pre-signed about thirty signature pages before this lawsuit began in order to make litigation convenient for Prude, who was litigating this case on Baldwin’s behalf as Prude saw fit. (ECF No. 107 at 3.)

On July 27, 2015, the defendants filed a motion to strike any summary judgment documents filed by the plaintiffs after July 16, 2015. (ECF No. 108.) However, the documents defendants move to strike reveal important information regarding how the plaintiffs have litigated this case and the court will not strike them. Also, to the extent the documents contain arguments regarding the merits of the case, the court will consider them. The court will deny the defendants’ motion to strike.

On August 3, 2015, Prude filed a motion to amend the joint affidavit (ECF No. 106) because the signature page was not dated (ECF No. 111). The court will grant this motion and consider the affidavit as though it was signed and dated when originally filed.

Finally, on September 15, 2015, Prude submitted over 100 pages of documents. (ECF No. 112.) The defendants responded with a letter questioning whether Prude intended to file the documents in this case since many of them relate to other legal proceedings. (ECF No. 114.) Prude then engaged in correspondence with the Clerk of Court’s office regarding purchasing copies of some of the documents he submitted on September 15. (ECF Nos. 115-118.) The court will not consider these documents as part of any pending motion as they were not properly submitted to the court and their relevance has not been explained by Prude.

The court now turns to the parties’ motions for summary judgment and the ...

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