United States District Court, E.D. Wisconsin
AND ORDER GRANTING (WITH MODIFICATIONS) PLAINTIFF'S
MOTION FOR SUBPOENA OF NON-PARTY DOCUMENTS (DKT. NO. 74),
DIRECTING THE DEFENDANTS TO ADVISE THE COURT WITHIN TEN DAYS
OF THE DATE OF THIS ORDER WHETHER THEY WILL BE PRODUCING THE
DOCUMENTS, GRANTING PLAINTIFF'S MOTION FOR RELIEF FROM
THE 25- INTERROGATORY LIMIT (DKT. NO. 78), DIRECTING THE
DEFENDANTS TO RESPOND TO THE PLAINTIFF'S INTERROGATORIES
WITHIN 30 DAYS OF THE DATE OF THIS ORDER, DENYING
PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF
“PRIVILEGE LOG” (DKT. NO. 84), DENYING
PLAINTIFF'S MOTION TO COMPEL FULL DISCLOSURE (DKT. NO.
86), DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED
COMPLAINT (DKT. NO 92), GRANTING PLAINTIFF'S MOTION FOR
EXTENSION OF DEADLINE TIME (DKT. NO. 97), AND SETTING THE
DISPOSITIVE MOTION FILING DEADLINE AT MARCH 17, 2017
PAMELA PEPPER United States District Judge
plaintiff, Asua Buie, is a prisoner representing himself. On
October 2, 2015, the court screened the amended complaint and
determined that the plaintiff could proceed on a First
Amendment free-exercise-of-religion claim, based on
allegations that prison officials at the Milwaukee Secure
Detention Facility denied him a kosher diet. Dkt. No. 27 at
8. On May 24, 2016, the court granted in part and denied in
part the plaintiff's motion to amend the complaint. Dkt.
No. 46. The court granted the motion to the extent the
plaintiff sought to add punitive damages to his request for
relief. Id. at 5. The plaintiff since has filed
several motions, which the court addresses in this order.
Plaintiff's Motion for Subpoena of Documents
plaintiff has filed a motion asking for permission to
subpoena documents pursuant to Federal Rule of Civil
Procedure 45. Dkt. No. 74. He wants to obtain the employment
records of the following non-party limited-term-employee food
service personnel who worked at the Milwaukee Secure
Detention Facility during the time relevant to the complaint:
Monica Nash, William Pearson, David Kimalya, and Daphney
Keita. Dkt. No. 74-2 at 1-3. These individuals were new
personnel, arguably have knowledge of events related to
kosher meals, and allegedly lacked understanding of the
distribution of kosher meals. Dkt. No. 75 at 3-5, 7. The
plaintiff asserts that an “inquiry into the question of
do the performance evaluations reflect this lack of
understanding is relevant because it answers the question of
liability and reckless disregard [sic].” Id.
at 5. According to the plaintiff, defendants Bruce Buege and
Chris Loberg were responsible for supervising and training
these non-party individuals. Id. at 1-2. Defendant
Buege allegedly informed defendant Paulson that there were
“new food service personnel that did not understand the
aspect of the Kosher meal preparation.” Id. at
defendants oppose the motion, arguing that the plaintiff has
not shown that the documents are relevant. Dkt. No. 77 at 1.
According to the defendants, to the extent that the plaintiff
suggests that defendants Buege and Loberg failed at
supervising their subordinates (which in turned caused the
alleged constitutional violation), the plaintiff cannot
establish the defendants' liability because there is no
respondeat superior liability (supervisor liability)
under §1983. Id. at 1. The defendants also
contend that they cannot be held personally liable for
failure to train, because a plaintiff can bring a
failure-to-train claim only against a municipality.
Id. at 1-2.
reply, the plaintiff contends that the documents are relevant
because they will show what defendants Buege and Loberg knew
about their employees' performance. Dkt. No. 81-1 at 3.
The plaintiff points out that a party may be liable if he
knows of a constitutional violations, yet fails to act.
plaintiff has shown that the employment records may be
relevant to his claims, because they may demonstrate that
Buege and Loberg knew that food service workers were not
complying with kosher food procedures. See
Fed.R.Civ.P. 26(b)(1); Childress v. Walker, 787 F.3d
433, 439-40 (7th Cir. 2015). The court finds that the
plaintiff should be able to access these records.
court notes that the plaintiff did not file a motion to
compel discovery from the defendants, see
Fed.R.Civ.P. 37. Rather, he filed a motion to subpoena the
documents from non-parties, see
Fed.R.Civ.P. 45. The defendants responded to the motion as if
the plaintiff had filed a motion to compel them to produce
discovery, arguing that the documents are not relevant. While
the court finds that the documents are relevant, the
court cannot tell whether the defendants possess the
employment files and can turn them over to the plaintiff, or
whether the plaintiff will need to seek these documents by
issuing a subpoena to the non-parties. These are personnel
files of people the defendants supervised, so it seems to the
court that the defendants would have access to the documents.
The court will require that within ten days of the date of
this order, the defendants shall file a written notice
advising the court whether they have access to the documents.
If the defendants do have access to the documents, the court
orders that the defendants shall produce them to the
plaintiff. If they do not have access to the documents, the
court will grant the plaintiff's motion for a subpoena
directed to the non-parties.
Plaintiff's Motion for Relief from Interrogatory
plaintiff has filed a motion asking the court to allow him to
file more than the twenty-five interrogatories allowed by the
rules. Dkt. No. 78. He says that he thought that he could
submit twenty-five interrogatories per defendant, not
twenty-five interrogatories in total, and that this is a
complex case with ten defendants. Id. The plaintiff
submitted proposed interrogatories for the court to review,
and he asks the court allow the additional interrogatories.
Dkt. No. 79-1. He proposes submitting 133 interrogatories,
divided among the ten defendants as follows: (1) Heather
Paulson, twelve interrogatories; (2) Bruce Buege, nineteen
interrogatories; (3) Chris Loberg, eighteen interrogatories;
(4) Floyd Mitchell, twelve interrogatories; (5) Iona
Guillonta, fourteen interrogatories; (6) Kelly Quarles,
fourteen interrogatories; (7) Kelli Willard-West, nine
interrogatories; (8) Charles Facktor, ten interrogatories;
(9) Ana Boatwright, ten interrogatories, and (10) Cindy
O'Donnell, fifteen interrogatories. Id. at 4-24.
defendants oppose the plaintiff's request to file 133
interrogatories. They argue that the plaintiff has not made a
“particularized showing” to justify exceeding
twenty-five interrogatories. Dkt. No. 81 at 1. Nonetheless,
the defendants offer to respond to fifty interrogatories,
indicating that they can sympathize with the difficulty a
pro se litigant may have in choosing twenty-five
interrogatories to be shared among ten defendants. Dkt. No.
83 at 2.
reply, the plaintiff reiterates that he needs all 133
interrogatories. Dkt. No. 89. He states that fifty
interrogatories would not provide him with the breadth needed
to question the defendants in a way that reflects the