United States District Court, W.D. Wisconsin
LEIGHTON D. LINDSEY, Plaintiff,
JOSEPH BEAHM, PAMELA ZANK, JESSE JONES, JANN JOHNSTON, ANTHONY MELI, WILLIAM POLLARD ED WALL, DAN STRAHOTA and DANIEL BRAEMER, Defendants.
BARBARA B. CRABB District Judge
prisoner Leighton Lindsey is proceeding on the following
claims under the Eighth Amendment: (1) defendants Joseph
Beahm and Jesse Jones used excessive force against him; and
(2) defendants Ed Wall, William Pollard, Dan Strahota, Pamela
Zank, Anthony Meli, Daniel Braemer and Jann Johnston were
aware that defendant Beahm posed a substantial risk of
serious harm to plaintiff but consciously refused to take
reasonable measures to help him. Now before the court is
defendants’ motion to dismiss the case as a sanction on
the ground that plaintiff has fabricated documents to support
his claim. Dkt. #29. Because defendants’ motion
requires a credibility determination, I am scheduling
defendants’ motion for an evidentiary hearing.
their motion, defendants allege that plaintiff fabricated
several letters that he filed with his amended complaint.
Dkt. #14. These letters are addressed to defendants Pollard,
Strahota, Wall, Meli, Zank and Braemer. Each of the letters
is signed by plaintiff and dated several weeks before the
alleged use of excessive force on December 23, 2011.
Plaintiff alleges in the letters that defendant Beahm has
been threatening to physically harm him and that he is afraid
of what Beahm might do next.
did not file these letters with his original complaint.
Rather, he included them with his amended complaint after I
dismissed the claims against Pollard, Strahota, Wall, Meli,
Zank and Braemer on ground that they were not involved in the
alleged use of force and did not have reason to believe that
plaintiff was in danger. As a result of plaintiff’s new
allegations about these defendants’ awareness of the
threat to plaintiff’s safety, I reinstated the claims.
their motion to dismiss, defendants focus on the letter to
defendant Wall, which identifies him as “DOC
Secretary.” Dkt. #14 at 35. Defendants say that the
letter is an obvious fake because Wall was not Secretary of
the Department of Corrections at any time in 2011. Rather,
Wall was not appointed to that position until Gary
Hamblin’s retirement in October 2012. Dkt. #30-1 and
allegations are serious. A party who falsifies evidence could
face dismissal of his case as a sanction, Hoskins v.
Dart, 633 F.3d 541, 542-44 (7th Cir. 2011); Negrete
v. National Railroad Passenger Corp., 547 F.3d 721,
722-24 (7th Cir. 2008); Allen v. Chicago Transit
Authority, 317 F.3d 696, 703 (7th Cir. 2003), or even
referral to the United States Attorney for possible
prosecution of perjury. Neal v. LaRiva, 765 F.3d
788, 790 (7th Cir. 2014); Rivera v. Drake, 767 F.3d
685, 687 (7th Cir. 2014).
response to defendants’ motion, plaintiff does not deny
that Hamblin rather than Wall was Secretary in 2011, but
plaintiff adheres to his story that he wrote all the letters
in 2011. His explanation is that, when he wrote the letters,
he was relying on information he received from another
prisoner, who told him that Wall was Secretary at the time.
Dkt. #31. Thus, the letter to Wall was simply a mistake.
plaintiff’s explanation is far from compelling, I will
reserve a ruling on defendants’ motion until I can
evaluate his credibility at a hearing. The general rule is
that a court should not sanction a party before giving him a
hearing, Roadway Exp., Inc. v. Piper, 447 U.S. 752,
767 (1980), particularly in a case such as this one that
requires a credibility determination. In re
Kunstler, 914 F.2d 505, 521 (4th Cir. 1990);
Donaldson v. Clark, 819 F.2d 1551, 1561 (11th
Cir.1987). See also Carter v. Waterman, No.
13-cv-742-bbc, 2015 WL 6143471, at *5 (W.D. Wis. Oct. 19,
2015) (scheduling hearing on defendants’ motion to
sanction plaintiff for fabricating evidence); Uhde v.
Bitsky, No. 03-cv-323-bbc (W.D. Wis. Apr. 1, 2004)
(same). At the hearing, both sides should be prepared to
produce any evidence they have to support their version of
the facts on the question whether plaintiff falsified one or
more letters to bolster his claim. In addition, in the event
that I determine that a sanction is appropriate, the parties
should be prepared to argue (with appropriate legal
authority) what that sanction should be.
closing, I note that plaintiff offers to dismiss his claim
against defendant Wall as a resolution to defendants’
motion. However, if defendants’ allegations are true,
simply dismissing Wall would not be an appropriate sanction.
If the only consequence of submitting a fraudulent claim is
dismissal of that claim, there is no disincentive for the
fraud. In other words, there is no deterrent value in
dismissing a claim as a sanction when the claim had no merit
in the first place. Rivera, 767 F.3d at 687
(“The judicial system cannot function if the only
consequence of lying is the loss of a suit that would have
had no chance from the outset, had the truth been
told.”). Thus, if plaintiff does not believe that he
can prove that he made an honest mistake, he is free to move
to dismiss his entire case with prejudice before the
hearing. However, he cannot avoid the sanctions hearing
simply by seeking to drop one claim.
ORDERED that an evidentiary hearing will be held on
defendants’ motion for sanctions on Wednesday, July 20,
2016 at 9:00 p.m. The clerk of court is directed to issue a
writ of habeas corpus ad testificandum for plaintiff Leighton
Lindsey. Plaintiff ...