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Buie v. Mitchell

United States District Court, E.D. Wisconsin

December 19, 2016

ASUA BUIE, Plaintiff,
v.
FLOYD MITCHELL, IONE GUILLONTA, BRUCE BUEGE, HEATHER PAULSON, CHARLES FACKTOR, CINDY O'DONNELL, ANA BOATWRIGHT, CHRIS LOBERG, KELLY QUARLES, AND KELLI R. WILLARD WEST, Defendants.

         DECISION 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

          HON. PAMELA PEPPER United States District Judge

         The 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.

         1. Plaintiff's Motion for Subpoena of Documents

         The 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 2.

         The 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.

         In 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. Id.

         The 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.

         The 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.

         2. Plaintiff's Motion for Relief from Interrogatory Limit

         The 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.

         The 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.

         In 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 ...


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