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Mathews v. Brown

United States District Court, W.D. Wisconsin

September 29, 2017

DION MATHEWS, Plaintiff,
CAPTAIN LEBBEUS BROWN, et al., Defendants.



         Pro se plaintiff Dion Mathews is proceeding in this lawsuit on First Amendment and Due Process claims related to the conduct report and punishment he received after drafting letters that the defendants construed as an impermissible attempt to create a group petition. Defendants have filed a motion for summary judgment, which the parties still are briefing. Meantime, Mathews has filed another motion for sanctions (dkt. 89)-which I am denying-and a motion to amend the scheduling order (dkt. 103), which I am granting in part and denying in part.

         I. Motion for Sanctions (dkt. 89)

         Mathews' current motion for sanctions challenges the veracity of statements I relied on in two parts of my opinion denying his motion for a preliminary injunction and first motion for sanctions. (See dkt. 77.) I'll start with that backdrop.

         First, in denying Mathews' request for a preliminary injunction, I relied in part on a declaration submitted by defendant Lebbeus Brown. (Brown Decl., dkt. 36.) In particular, I relied on his statements that Mathews is a known member of the Gangster Disciples and that he believed that the letters resulting in the conduct report were his attempt to act on behalf of that gang because the letters used phrases like “we propose” and “we ask.” (Id. at 3-4, 10.) Brown also averred that Mathews was placed in Temporary Lock-Up (TLU) after staff found the letters in his cell, but I didn't rely on this statement in particular in denying Mathews' motions. (Brown Decl., dkt. 36, ¶ 6.)

         Second, on June 14, 2017, while the parties were briefing Mathews' first motion for sanctions, Mathews filed a letter complaining that defendants' counsel informed him that the letter that was the subject of Conduct Report #2732167 was “accidentally destroyed.” Mathews claimed that the letter was purposely destroyed. Defendants responded with their own letter and evidence explaining that the letters were destroyed by mistake.

         Specifically, defendants first explained that DAI Policy 306.00.16 requires all contraband to be retained for 120 days when a disciplinary hearing decision has been appealed. After that point, contraband items can be thrown away after photographs have been taken. Photographs and documents are supposed to be retained for 11 years after the inmate's maximum discharge date.

         Then defendants stated that non-defendant Captain Larry Primmer destroyed the letter by mistake and submitted a declaration he prepared in another lawsuit. (Dkt. 69.) In his declaration, Primmer states that he had been given orders to clean out the evidence/property room by the security director at WSPF. Primmer states that, to that end, he threw away the letters that were evidence in Oscar Garner's conduct report, which were the same letters used as evidence in Mathews' conduct report. He adds that he destroyed the letters because more than 120 days had passed since the disciplinary hearing decision. He admits that he misunderstood the policy and threw out the letters without taking photographs of them, but avers that he did not throw them out to hide adverse information. (Dkt. 69-2, at 2-3.) Finally, Primmer states that he did not learn that Mathews filed this lawsuit until January of 2017.

         Defendants also submitted a declaration from non-defendant Ellen Ray, the litigation coordinator who has been working with defendants to prepare their responses in Mathews' lawsuit. She states that she learned about his lawsuit on January 6, 2017, at which point she began to gather evidence related to his allegations and only then learned that the letters had been destroyed. Ray avers that she was unable to find any copies or photos of the letters. (Dkt. 69-2, at 6-7.)

         In light of these averments, and because Mathews had not submitted any evidence that would suggest that the letter was purposefully destroyed, I informed Matthews that if he did have evidence of intentional destruction, then he should submit it along with a motion or for an adverse inference. (See dkt. 77, at 2 n.2.)This is the resulting motion.


         Federal Rule of Civil Procedure 11(b) requires that all representations to the court be nonfrivolous, supported by evidence, and the product of reasonable inquiry. Additionally, if a party destroys evidence in a bad faith effort to hide adverse information, then his opponent may be entitled to sanctions or an inference that the recording contained evidence supporting the plaintiff's claim. See Bracey v. Grondin, 712 F.3d 1012, 1019-20 (7th Cir. 2013). To succeed in a motion for sanctions, the moving party faces a high burden, because courts must take care to impose sanctions only to protect the court and parties against “callous disregard for governing law or the procedures of the court.” Allison v. Dugan, 951 F.2d 828, 834 (7th Cir. 1992).

         Mathews seeks sanctions on four grounds: (1) defendants intentionally failed to preserve the letter, (2) Captain Primmer's statements in his declaration were false, (3) defendant Lebbeus Brown's statements in his declaration were also false, and (4) Assistant Attorney General Paulson used false statements and failed to investigate his motions. None of these grounds has merit.

         First Mathews argues that defendants should have preserved the letters even before Mathews filed this lawsuit because the defendants should have anticipated that Mathews would bring this suit. Mathews is correct: defendants should have anticipated this lawsuit, given that Mathews denied the allegations in the conduct report during his disciplinary proceeding and then exhausted his administrative remedies with respect to this claim. Defendants therefore had a duty to preserve the letters, and if DAI Policy 306.00.16 had been implemented, then the letters would not have been discarded. But sanctions are only appropriate if the defendants purposefully destroyed the letters to avoid the adverse effects ...

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