United States District Court, W.D. Wisconsin
LADELL A. EVANS, Plaintiff,
CO II STRAHOTA, et al., Defendants.
STEPHEN L. CROCKER Magistrate Judge
pro se prisoner lawsuit, the court has granted
plaintiff LaDell Evans leave to proceed against a number of
defendants on an Eighth Amendment deliberate indifference
claim arising from an incident where Evans attempted suicide
by breaking his glasses and stabbing himself in the forehead.
Evans has filed a Motion for Sanctions (dkt. 47) and a Motion
for Assistance in Recruiting Counsel (dkt. 50). I am denying
both motions, the second without prejudice to renewal later.
for Sanctions (dkt. 47)
motion, Evans contends that the defendants have failed to
properly preserve his glasses as evidence, and he seeks $5,
000 as a sanction. According to Evans, the defendants
destroyed and/or tampered with the glasses because the
glasses do not appear to be his and when he received the
glasses for inspection, a women with no gloves handled them,
and he received them in a ripped paper bag. Evans is
requesting that the glasses be tested to establish that they
are his. Such testing is unnecessary because Evans has not
persuaded me that there is serious question whether these
actually are his glasses.
Rule of Civil Procedure 37 permits a court to sanction a
party who fails to preserve evidence when that party had a
duty to do so. Such a duty to preserve arises when a party
knows or should know that litigation is imminent.
Trask-Morton v. Motel 6 Operating L.P., 534 F.3d
672, 681 (7th Cir. 2008). Here, Evans states that he
requested that the glasses be preserved shortly after his
2014 suicide attempt, so I will consider defendants’
duty to preserve to have begun at that point. (See
dkt. 49-1, at 7.) The state responds that Waupun Correctional
Institution did preserve Evans’s glasses.
Evans has not submitted any evidence beyond his own say-so
that the glasses were actually destroyed. Nor has he
described what specifically is different about the preserved
glasses (such as color, shape, or where they were broken)
that led him to believe that they are not his.
contrast, defendants have submitted documentation from the
prison establishing that the glasses are the same. Namely,
the court has received affidavits from James Muenchow, a
Waupun employee who serves as the litigation coordinator for
inmate lawsuits, as well as the records of a conduct report
and subsequent disciplinary hearing that Evans received for
making a weapon out of the glasses. (Dkt. 49-1.) Muenchow
avers that when Evans requested that the glasses be
preserved, Muenchow looked through Waupun’s records
vault, located the broken glasses and preserved them for this
lawsuit. (Dkt. 41.) The conduct report records indicate that
the glasses were set to be disposed, but the disciplinary
hearing notes actually indicate both that Evans asked for the
glasses to be held, and that the glasses were, in fact,
evidence at the proceeding. Although the documents are
internally inconsistent, Evans has not submitted any evidence
that suggests that the glasses were not his, and
Muenchow’s affidavit tends to establish the opposite:
that the glasses that have been preserved are his. Finally,
there would be no reason for the defendants or anyone else at
WCI to lie about preserving the glasses, or to substitute a
different pair of glasses for Evans’s glasses. They
would gain no legal or evidentiary edge from such conduct,
weighed against the extraordinary penalties that could result
from fabricating evidence in a federal lawsuit. I am denying
Evans’ request for sanctions.
for Assistance in Recruiting Counsel (dkt. 50).
also denying Evans’ request for assistance recruiting
counsel, but without prejudice. Before a court will address
the merits of a request for assistance in recruiting counsel,
a plaintiff must demonstrate that he has made reasonable
efforts to find a lawyer on his own and has been
unsuccessful, or that he has been prevented from making such
efforts. Jackson v. County of McLean, 953 F.2d 1070,
1072-73 (7th Cir. 1992). To prove that he has made reasonable
efforts to find a lawyer, a plaintiff must specifically give
the court the names of at least three lawyers who denied
plaintiff’s request for representation. Evans has
submitted the name of only one attorney who has declined to
represent him, and he has not indicated that he has
unsuccessfully attempted to reach out to any other attorneys.
For that reason, alone, I am denying his motion.
not a glorification of form over substance: even if Evans
had submitted three attorney letters, I am not
convinced that the demands of this lawsuit exceed
Evans’ abilities. Pruitt v. Mote, 503 F.3d 647
(7th Cir. 2007). To the contrary, so far in this lawsuit
Evans has demonstrated that he is capable of engaging in
discovery and that he is aware of the relevant legal standard
that applies to his deliberate indifference claim. As this
case proceeds through and past the discovery and
“exhaustion” phases, if it becomes apparent that
this lawsuit is more complicated and if Evans is struggling
to represent himself at that time, then I will reconsider
ORDERED that plaintiff’s Motion for Sanctions (dkt. 47)
is DENIED and his Motion for Assistance in Recruiting ...