United States District Court, W.D. Wisconsin
D. PETERSON, DISTRICT JUDGE.
James Edward Grant, a former state of Wisconsin inmate
currently living in Madison, brings claims that defendant
prison officials used excessive force on him while they
escorted him to a disciplinary hearing, and that he was
sexually assaulted during a strip search while housed at the
Waupun Correctional Institution (WCI). There are several
motions pending before the court, including defendants'
motion for summary judgment. This order will resolve all of
Grant's pending motions. I will issue a ruling on
defendants' motion for summary judgment in a later order,
after the parties have supplemented their summary judgment
materials, as discussed below.
I note that Grant has identified the “John Doe”
defendant who he says videotaped his escort and subsequent
strip search. He named this defendant as “CO
Bedkler.” Dkt. 30. The state has filed an answer on
Aaron Bedker's behalf, and from the parties' summary
judgment materials it appears that Grant agrees that this is
the proper defendant despite the slight difference in
spelling. I have amended the caption to include Bedker.
has filed a motion for the court's assistance in
recruiting counsel, Dkt. 22. But as Grant knows from his
previous cases, this court generally requires a plaintiff
seeking counsel to show that he has made reasonable efforts
to locate an attorney on his own. See Jackson v. Cnty. of
McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992)
(“the district judge must first determine if the
indigent has made reasonable efforts to retain counsel and
was unsuccessful or that the indigent was effectively
precluded from making such efforts”). To meet this
threshold requirement, this court usually requires plaintiffs
to submit correspondence from at least three attorneys to
whom they have written and who have refused to take the case.
Grant has not done so, so I will not consider his motion
order screening Grant's second amended complaint, I
stated that it was unclear whether Grant sought to bring
excessive force claims about the strip search itself (as
opposed to the escort leading up to the search), and that
Grant “will eventually have to decide whether he
intends to bring an excessive force claim based on the strip
search, and defendants are on notice that this issue may have
to be addressed in more detail later.” Dkt. 17, at 7.
Grant has filed a motion stating that would indeed like to
bring an excessive force claim about the strip search.
Because defendants are already defending against allegations
that they humiliated and “violated” Grant during
the strip search, defendants have perhaps already produced
all the evidence they wish regarding the propriety of their
conduct during the strip search, but I will give them a short
time to supplement their proposed findings regarding the
excessive force theory. I will give Grant an opportunity to
respond to any supplemental materials.
also give Grant a chance to conform his proposed findings of
fact, Dkt. 49, to this court's standards. Many of his
proposed findings recount his firsthand account of events.
Those types of proposed findings are usually accompanied by
an affidavit or declaration under which the plaintiff states
under penalty of perjury that he is telling the truth. I
would not require a separate affidavit or
declaration if the plaintiff's proposed-findings-of-fact
submission itself operated as a declaration, because the
plaintiff included within that document a statement that he
declares under penalty of perjury that his version of events
is true. But Grant has not done that here. Therefore I cannot
consider his proposed findings in their current form. I will
have the clerk of court send a copy back to Grant for him to
review and supplement with a statement that he
“declare[s] under penalty of perjury that the foregoing
is true and correct, ” followed by his signature.
See 28 U.S.C. § 1746. If Grant fails to do
this, I will not consider any of his proposed findings about
his firsthand account of events.
looks like defendants have substantively responded to most of
Grant's responses to their proposed findings, while also
objecting to the lack of accompanying evidence. But if Grant
appends a declaration to his proposed findings, defendants
may have another chance to fully respond to them. Defendants
should also respond to the statements on pages 1-4 of
Grant's opposition, in which he appears to state his own
direct proposed findings.
Grant has filed a document he calls a “discovery
motion” in which he requests copies of WCI's
policies for “control status.” Dkt. 33. I will
consider this to be a motion to compel production of these
materials. I will deny the motion because Grant does not show
that he filed formal discovery requests about these materials
and how the state responded to his requests. It is also
unclear what purpose those policies would serve in this case.
From other documents he has filed, including a copy of a
letter he sent to the state about prosecuting defendants for
their alleged misdeeds, Dkt. 34, he appears to take issue
with the conditions within the control-status cells, but he
does not have claims in this lawsuit about the conditions of
those cells. In any event, he may find Wisconsin
Administrative Code § DOC 303.74 helpful. That
regulation discusses the rules for the use and conditions of
1. Plaintiff James Edward Grant's motion for the
court's assistance in recruiting him counsel, Dkt. 22, is
DENIED without prejudice.
2. Plaintiff's motion to include an excessive force
theory with his strip search claim, Dkt. 29, is GRANTED.
Defendants may have until October 9, 2017, to supplement
their summary judgment motion with any additional materials
regarding plaintiff's claim that they used excessive
force against him during their strip search. Plaintiff may
have until October 16, 2017, to file a response to the
3. The clerk of court is directed to send plaintiff a copy of
his submission opposing summary judgment, Dkt. 49. Plaintiff
may have until October 9, 2017 to attach to that document a
statement that he swears under penalty of perjury that his
account of the events listed inside is true. Defendants may