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Williams v. Ortiz

United States District Court, E.D. Wisconsin

February 7, 2017



          HON. PAMELA PEPPER United States District Judge

         In September 2015, this court screened the plaintiff's complaint. Dkt. No.10. The court concluded that the plaintiff could proceed against six defendants (two of whom were, at the time, Doe defendants) on Fourteenth Amendment due process claims relating to a disciplinary complaint, alleged harassment, medical care and conditions of confinement. The court also ruled that the plaintiff could proceed against two defendants on a First Amendment retaliation claim. Id.

         Five of the defendants answered the complaint. Dkt. Nos. 22 (William Coe); 26 (defendants Friend, Hernandez and Isferding); 47 (James Olstinske). The marshal's service mailed the summons and complaint to defendant Ortiz on October 9, 2015; defendant Ortiz had not returned that waiver by November 11, 2015. Dkt. No. 36. To date, defendant Ortiz has not answered the complaint.

         On February 16, 2016, the court issued a scheduling order. Dkt. No. 50. It ordered the parties to complete all discovery by May 13, 2016. Dispositive motions were due June 14, 2016 (oppositions were due within thirty days). Id.

         Since the court issued its scheduling order, this case has deteriorated considerably. That deterioration is due, in no small part, to the fact that that over the last ten months, the parties have filed twenty-one motions; the court has not ruled on one of them. The court's delay in ruling on these motions has created a cascade effect-had it ruled on the plaintiff's motion asking the court to serve a missing defendant, for example, all of the parties would have been joined to the suit by now. Had the court processed the defendants' motion for sanctions, for example, its attention to that motion likely would have prevented a number of other motions from being filed. The responsibility for these delays lies with this court. While today's order does not repair the damage done in its entirety, the court hopes that it will assist in setting the case back on a forward path, and will prevent further damage from occurring.


         On April 25, 2016-not quite three weeks before discovery was scheduled to close-the plaintiff filed a motion “asking the court to order & compel the defendants & their attorney to produce” a series of documents. Dkt. No. 55. The plaintiff indicated that he had personally mailed to the defendants “and their attorney” a discovery request three times. Id. The motion is three pages long, and lists certain classes of documents: all of the disciplinary reports written about him during a certain time period; all written complaints he'd submitted during that time period; all summaries of disciplinary hearings regarding the plaintiff-no time period specified; an “exact copy” of “the CHC medical contract that was in effect at the Racine County Jail” during the relevant time; all investigation reports during the relevant time; the RCJ's intake procedures and procedures for medical screening; classification procedures for the relevant time; all separation orders relating to him. Id. at 1-2. He then asks “for readable in their entirety ‘inmate request for medical attention request filled out by the plaintiff indicating plaintiff's medical request and medical staff or security staff responses plaintiff ask for the following request.” Id. at 2. He then lists 93 dates, with notations after each date (which he indicated stood for “responded to” or “not responded to.” Id. at 2-3.

         Defendants Friend, Hernandez and Ortiz responded on May 10, 2016. Dkt. No. 57. They indicated that they hadn't received the plaintiff's requests until March 28, 2016, and that they'd served their response (including 598 pages of responsive documents) on April 27, 2016. Id. at 1-2. The defendants also pointed out that the plaintiff had failed to comply with the “meet-and-confer” requirements of Civil Local Rule 37, and noted that the court already had reminded the plaintiff once about this requirement. Id. at 2.

         The defendants' response indicates that they have responded to the plaintiff's March 2016 discovery requests. The defendants also are correct that in its February 10, 2016 order, the court explained to the plaintiff that before he could file a motion to compel discovery, he had an obligation to meet and confer in good faith with the defendants. Dkt. No. 45 at 2. Sending the same discovery demand three times does not constitute meeting and conferring in good faith. While the plaintiff cannot pick up the phone and call defense counsel, he can write and ask if there is any additional information counsel needs, or whether counsel could explain to him why he had not received the documents he requested. The plaintiff presented no evidence that he had done that. The court will deny this motion.


         The court received the defendants' response to the first motion to compel on May 10, 2016. Dkt. No. 57. On that same day, the court received a second motion to compel from the plaintiff. Dkt. No. 60. In this one, he asked the court to order the defendants to produce a video from July 2, 2014, recording an hour that he was out of his cell. He also asked for the RCJ's employee rule book; psychological stress evaluation reports for defendants Hernandez, Isferding and Friend; employee discipline records for those three defendants and Carrie Bellows (whom the court dismissed from the lawsuit on September 22, 2015), William Coe and James Olstinske; and a print-out of the plaintiff's trust account during the relevant time. Id. at 1-3.

         Friend, Hernandez and Isferding responded. Dkt. No. 61. While terse, the defendants' response implies that the plaintiff had not yet served these discovery demands on the defendants. Id. at 1 (“Insofar as Plaintiff actually intended to serve a request for production of documents pursuant to Fed.R.Civ.P. 34, Defendants will respond in accordance thereto.”)

         In this motion, the plaintiff did not indicate that he had served the defendants with these discovery requests. And again, he did not attach to the motion any certification that he had met and conferred in good faith with the defendants; in other words, he did not comply with Local Rule 37. Finally, the court received this motion on May 10, 2016-three days before the deadline for completing discovery, giving the defendants only three days to respond. The court will deny this motion.


         The court received this motion from the plaintiff almost two weeks after the deadline for completing discovery had passed. Dkt. No. 63. In the last couple of paragraphs of the motion, the plaintiff asked the court to stay all proceedings until it had ruled on the above two motions to compel. Id. But at the beginning of the motion, the plaintiff stated that the defendants were “slated to file a motion pertaining to a direct answer to a deposition question that was asked in bad faith.” Id.

         At that point, the court had not received any motions from the defendants about anything-depositions or otherwise. The court did not stay the proceedings at the time the plaintiff asked it to. The court generally does not “stay” proceedings unless there is something going on outside of the case- for example, a case pending in state court that must be resolved before the federal case can proceed-whose resolution might impact the federal case. The court does grant extensions of time for completing discovery and filing motions, when a party asks and there is good cause. The court will not grant the plaintiff's motion to stay proceedings, but it will address extending deadlines at the end of this order.

         The court also notes that in the last sentence of his motion, the plaintiff stated that one of the motions he wanted the court to rule on was a “motion filed by plaintiff stating this case was agreed to be heard by a magistrate.” Id. The plaintiff never filed such a motion. But the record does show that he consented to a magistrate judge hearing this case. What it does not show is whether all of the defendants have consented.

         After the plaintiff filed his complaint, he filed a completed “Consent to Proceed Before a U.S. Magistrate Judge.” Dkt. No. 6. At that time, the assigned magistrate judge was Judge Aaron E. Goodstein. The plaintiff refused to consent to Judge Goodstein hearing his case. Id. For that reason, the case was assigned to a district court judge-Judge Rudolph T. Randa. The case was reassigned to Judge Pepper on December 29, 2014, after she was appointed to the district court. Months later, in September 2015, Judge Goodstein went on recall status (a sort of semi-retirement), and all of the cases to which he'd been assigned were assigned to other magistrate judges. The plaintiff's case was assigned to Judge Nancy Joseph. Under this district's policy, the clerk's office sent out new consent forms to the parties who'd appeared. Dkt. No. 11.

         This time, the plaintiff consented to Judge Joseph hearing the case. Dkt. No. 13. After defendants Friend, Hernandez, and Isferding were served, they, too, consented to Judge Joseph hearing the case; their attorney, Attorney Lanzdorf, signed off on the consent. Dkt. No. 19. Despite the fact that the docket indicates that the clerk's office sent William Coe and James Olstinske consent forms on September 24, 2015 (dkt. no. 12), neither of those defendants (represented by Attorney Elmer) has ever filed a consent form.

         The consent form instructs parties that, whether they do or don't consent, they must file the form within twenty-one days of the date that they receive it. It is not clear when Coe and Olstinske received their consent forms, but Coe must have received his before November 4, 2015 (the date he filed his answer), and Olstinske must have received his by at least February 11, 2016 (the date he filed his answer). The twenty-one-day filing deadline stated in the consent form has long passed for both of these defendants.

         What happens when a defendant does not follow the directions in the consent form, and does not file the consent form on time? The clerk's office often sends a reminder to that party. Sometimes that doesn't happen- sometimes, particularly in cases involving more than one defendant, and cases involving defendants who are served later in a case, that letter does not go out. It didn't in this case. The court does not have a policy of “punishing” a defendant who fails to file a consent form on time, or who fails to file it at all. Instead, if a party does not file the consent form at all, the court assumes-as it must, given the requirements of Article III of the Constitution and 28 U.S.C. §636-that the party who didn't respond does not consent.

         The clerk's office cannot transfer a case from a district judge to a magistrate judge without the express consent of all of the parties. See 28 U.S.C. §636(c)(1). Because Coe and Olstinske have not consented to Judge Joseph hearing the case, the case remains with Judge Pepper.


         The court received the above motion to stay on May 24, 2015-eleven days after the deadline for the close of discovery. It also appears that the court received the motion eleven days after counsel for the defendants conducted the plaintiff's deposition.

         The plaintiff already had hinted, in the above motion to stay, that there had been problems with the deposition, and that he expected the defendants to file a motion. The defendants did file that motion, in the form of a motion for sanctions. Dkt. No. 65. The motion seeks dismissal of the plaintiff's case. In the alternative, it seeks money damages, an order compelling the plaintiff to answer questions, and an extension of the dispositive motions deadline. Id. at 1.

         A. The Pleadings

         i. The Defendants' Brief

         In their supporting brief, the defendants explain that on April 27, 2016, they served notice of the deposition, scheduled for May 13, 2016. Dkt. No. 66 at 2. On that date, Attorneys Lanzdorf and Elmer, along with a court reporter, appeared at Columbia Correctional Institution for the scheduled deposition. Id. The plaintiff attended the deposition without security restraints, and there were no correctional facility staff in the deposition room. The plaintiff sat at the head of the table; counsel sat on one side, the court reporter on the other, each “approximately four feet away from Plaintiff.” Id. After the plaintiff acknowledged that counsel could enquire as to “anything reasonably calculated to lead to the discovery of relevant information, ” id., counsel began to ask a series of questions regarding which of the defendants actually found the plaintiff guilty of an infraction that led to his being disciplined, id. at 3. In particular, counsel asked the plaintiff whether it was defendant Isferding, or defendant Hernandez, who “actually made the finding of guilt that resulted in imposition of discipline?” Id. at 3. The plaintiff responded, “The answer again, the writer was Hernandez. He recommends the days. If you're found guilty, them the days you're going to get.” Counsel responded, “Does the person who makes the finding of guilt-Is the person who makes the finding of guilt the same person who makes the recommendation of discipline?” At this point, the plaintiff responded that he had answered the question already, and that he objected. Counsel and the plaintiff went back and forth, with the plaintiff continuing to object to the question. Counsel finally noted the objection, but stated-contrary to the plaintiff's comment that “we can move on to something else”-that he was not going to move on until the plaintiff gave him a clear answer to the question. Id. at 3-4.

         At this point, counsel indicates, the plaintiff became “hostile and confrontational.” Id. at 4. Counsel states that the plaintiff leaned toward counsel “aggressively” and demanded to know what counsel meant by saying he wasn't going to move on. When counsel continued to try to frame the question, the plaintiff stated, “Mr. Lanzdorf, this is a maximum security prison. You better move on, man.” Id. Counsel stated that he understood the plaintiff's remark to constitute a threat, and suggested a break (noting the court reporter moving away from the plaintiff). Counsel asked for a member of the institution staff to come in; when the staff member came into the room, the plaintiff stated, “I don't care who you call. If we call staff, it's over with, man.” Id. Counsel indicates that at that point, he did not feel safe continuing the deposition, or even trying to call the court for a ruling. Id.

         A higher-ranking security officer came into the room, and counsel explained what had happened and that he believed the plaintiff's statements were threatening. Id. at 5. The plaintiff did not deny that his statements were threatening. The institution staff was not able to locate a telephone, and so counsel eventually decided to continue with the deposition, and to try to call the court after it concluded. Id. Counsel indicates that, as the security staff left the room, the plaintiff said something to the effect of “this is a waste of time, ” or “this is not important.” Id. The following exchange then occurred:

COUNSEL: I'm going to ask that she read back the last pending question before we go on, but I would just state for the record that while - while we were on a break you stated to - to staff here at the prison here that this, referring to this deposition, is not important. Is it your position that this lawsuit is not important?
PLAINTIFF: The lawsuit is important, but, I mean, I mean, this is a hassle man. Don't you know, I got, ooh, man, psychological issues, man. You press the wrong button, man, too, man, you really don't want to do that, man.
COUNSEL: Why don't I want to do that?
PLAINTIFF: I mean, I keep telling you, when I tell you to leave stuff alone, man, leave it alone. I'm not properly medicated. I won't be responsible, man. I've asked you actually the best I know how to leave it alone, man.


         Concluding that continuing to try to clarify the plaintiff's answer would make matters worse, counsel moved on, and completed the deposition without getting the clarifying information. Id. Counsel indicates that he

deliberately steered clear from certain legitimate lines of inquiry that, but for Plaintiff's threats, he would have otherwise pursued because he believed them likely to provoke further threats or violent actions from the Plaintiff, including, but not limited to, Plaintiff's full disciplinary record and history of confrontations with staff at the Racine County Jail.

Id. at 6. Before leaving the deposition-and with institution staff present- counsel called the court's chambers to ask the court to address the issues described above. The court's staff indicated to counsel that Judge Pepper was not available to receive the call. Id. (In fact, Judge Pepper was in Chicago on personal business on May 13, 2016, and was not available to take calls that day.) Counsel indicates that the court reporter appeared shaken, stated that she'd never seen anything like this during a prison deposition, and that if the plaintiff had made another threatening statement, she would have left. Id. Counsel indicates that he himself has conducted over thirty inmate depositions, some at supermax facilities, and has never been threatened or made to feel that his or anyone else's safety was at risk. Id. Counsel believes that the plaintiff deliberately threatened him with violence. He indicates that he spent nine hours working on the deposition (including prep time, travel and conducting the deposition itself), and also would be receiving an invoice for the cost of obtaining the deposition transcript. Id.

         The defendants ask the court to impose the sanction of dismissal. Id. at 7-8. They argue that such a harsh sanction is warranted by the plaintiff's litigiousness (not only in this case, but in a number of other cases he has filed); his ignoring of the court's warnings (such as its warning that he could not file a motion to compel without first meeting and conferring with counsel, or the court's warning in one of the plaintiff's other cases that responding to correspondence or motions with threats could result in sanctions); and the need to deter the kind of threatening conduct in which the plaintiff engaged at the deposition. Id. at 8-10. The defendants argue that if the court does not feel it appropriate to dismiss the case, the court should require the plaintiff to pay the costs and fees that the defendants have incurred in conducting the deposition, require the plaintiff to respond (in writing) to the questions they did not pose (or did not get clear answers to) at the deposition, and extend the deadline for filing dispositive motions. Id. at 10.

         ii. The Plaintiff's Response

         The plaintiff objected to the defendants' motion. Dkt. No. 75. He first points out that in its February 16, 2016 scheduling order, the court advised the parties that if the defendants wanted to depose the plaintiff, they had to serve all parties with notice at least fourteen days before the deposition. Id. at 1; see Dkt. No. 50 (scheduling order) at 1, ¶1. The plaintiff argues that counsel did not provide that fourteen-day notice, and he refers the court to an attachment to a motion he filed after the defendants filed their motion for sanctions.

         At Dkt. No. 71-1, in connection with a motion to stay proceedings and strike the deposition in its entirety, the plaintiff attached a “Visitor Notification” form. The document is “from” someone named “J. Haldeman, ” and it's addressed to “LOBBY.” In the “date notified” box, it shows the date “5/6/16.” Id. at 1. It indicates that the date of the visit will be May 13, 2016, the time will be 12:45 p.m., and the purpose of the visit is “Professional Visit-Deposition for WILLIAMS, TRAVIS . . . .” Id. The form indicates that when the visitors (listed as Attorneys Lanzdorf and Elmer and court reporter Peterson) arrived, “J. Haldeman” was to be contacted. Id.

         The plaintiff reads this form to indicate that counsel did not notify Columbia Correctional staff about the May 13, 2016 deposition until May 6, 2016-seven days beforehand. He argues that this meant he had little time to have someone help him review his complaint (and indicates that someone else wrote the complaint for him). Dkt. No. 75 at 1. He alleges that counsel's statement that counsel sent the deposition notice on April 27, 2016 was not true, and that the plaintiff wasn't notified until nine days later. Id. He takes issue with various details in the defendants' motion-he argues that the deposition room wasn't small, that there was no need for him to be in restraints for the deposition, that he was not four feet away from the lawyers and the court reporter, that he did not acknowledge that counsel could ask him questions about anything reasonably calculated to lead to discovery of relevant information. Id. at 2.

         He argues that counsel asked questions designed to annoy, harass and bully him into giving answers that would favor the defendants. He indicates that the exchanges the defendants quoted in their motion came after he'd already been asked about forty questions, and that the quotes do not show his full words. Id. He expresses frustration at the fact that counsel refused to move on after the plaintiff objected to the “who determined guilt” question four times. Id. He indicates that counsel left out a discussion of how counsel tried to get staff attention by waving his arm at a surveillance camera, and he indicates that he-the plaintiff-asked for higher-ranking staff to come in because he'd lodged numerous complaints about the first officer to respond. Id.

         The plaintiff raises many other issues, but the court particularly notes the following:

1.) Plaintiff further stated to Captain Keller [the officer of higher rank] that this is a court proceeding so you can't instruct me to do anything. 2.) Plaintiff further stated to Captain Keller review the camera and see the fact that this man's changed his posture and leaned forward while demanding I answer a question, Captain this attorney tried to intimidate me by his actions, this is a maximum security prison Captain I am surrounded by much tougher people than him that's what I'm trying to explain.

Id. at 3. The plaintiff also alleges that the excerpts of the deposition which counsel quoted are “tailored.” Id. He asserted that he's never ‘had a attorney just inquire away telling him he's not moving on to the next question.” Id. at 4.

         iii. The Defendants' Reply

         The defendants replied. Dkt. No. 84. They reiterate that they served notice of the deposition on April 27, 2016, and attach the notice of deposition. Dkt. No. 85-3. That notice is dated April 27, 2016 and the certificate of service indicates that it was served by U.S. mail, postage paid, on the same date. Id. They note that even if they hadn't served the notice fourteen days prior to the deposition, the remedy for the plaintiff would have been to move for a protective order pursuant to Fed.R.Civ.P. 26(c)(1)(B). Id. at 84. In response to the plaintiff's allegation that the defendants misquoted the deposition transcript, the defendants have provided the court with the full transcript, as well as a video. Dkt. No. 84 at 1; Dkt. No. 85-4 (transcript); Dkt. No. 88 (video). Finally, the defendants argue that the plaintiff has continued to be obstreperous, pointing out that when they sent the plaintiff a video he'd requested, the plaintiff responded with a letter, saying he'd sent the entire packet back unopened. Dkt. No. 84 at 3.

         B. The Court's Analysis

         i. The Rules Governing Depositions

         The court begins by looking at Fed.R.Civ.P. 30, which governs oral depositions. Rule 30(d)(2) states, “The court may impose an appropriate sanction-including the reasonable expenses and attorney's fees incurred by any party-on any person who impedes, delays, or frustrates the fair examination of the deponent.” The question the court must answer is whether the plaintiff “impeded, delayed or frustrated” a “fair” deposition. Fed.R.Civ.P. 26(b) says that parties may obtain

discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

         So the scope of discovery is broad. This means that a lawyer conducting a deposition may ask about any issue that is relevant to a party's claim or defense. There are several ways that a party can collect that information- through oral depositions (Fed. R. Civ. P. 30), through written interrogatories (Rule 33), through requests for production of documents (Rule 34), and through requests for admissions (Rule 36).

         Fed. R. Civ. P. 30(c)(2) states that if a party who is being deposed objects to a question (for example, on the ground that it isn't relevant to his claim), the court reporter must note the objection, “but the examination still proceeds; the testimony is taken subject to any objection.” The rule also states that if a party does have an objection to a question, the objection “must be stated concisely in a nonargumentative and nonsuggestive manner.” The only grounds for not answering a question in a deposition are “to preserve a privilege, to enforce a limitation ordered by the court, or” to make a motion “to terminate or limit [the deposition] on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Id., Fed.R.Civ.P. 30(d)(3)(A).

         So a party who is being deposed may not simply refuse to answer questions. The person may note, for the record, that he objects to a question, and the court reporter has to record that objection. But he still has to answer the question, unless it falls into one of the categories in Rule 30(d)(3)(A).

         ii. The Fairness of the May 13, 2016 Deposition

         The deposition began at 12:38 p.m. on May 13. Dkt. No. 85-4 at 1. At the outset, Attorney Lanzdorf attempted to explain the standard deposition rules to the plaintiff. Id. at 3-5. The plaintiff, however, expressed impatience with this, stating, “We can get down to business, though. You can save the formalities.” Id. at 5. When the plaintiff indicated that he was in pain, Attorney Lanzdorf enquired whether the pain was so bad that the plaintiff couldn't participate meaningfully in the deposition. Before counsel could finish the question, however, the plaintiff interrupted, saying, “No. I'm in such degree of pain, I wish you just - let's get to the meat of this and get it over with and you can hit the highway, I can go back and do what I do best.” Id. at 6.

         The following exchange occurred next:

COUNSEL: All right. I'm going to try to do this as quickly as possible. Just another background thing. I may ask you a question that you don't feel comfortable answering, that you don't think is bearing on the incidents that are the subject of this lawsuit.
That said, if you feel uncomfortable answering a question you can tell me why, you can state your objection for the record, but this being a deposition, I'm giving - I've given broad leeway in the scope of questions that I can ask you.
And so the rules of a deposition are very different than the rules of a court. In a court proceeding lawyers can only ask questions and expect to receive an answer to those questions if it's directly relevant to that proceeding. In a deposition it's a little bit broader. It's anything that's reasonably calculated to lead to the discovery of information that's relevant.
So if we need to, if there's a question that you don't feel comfortable answering, you can make that record clear, but if you're refusing to answer a question, then at that stage we'll contact ...

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