United States District Court, E.D. Wisconsin
RAYMOND J. BERGERON DAVILA, Plaintiff,
BARBARA A. TEELING, BRAD FRIEND, MELISSA MORAN, ANTHONY LACOMBE, GREGORY BUCHOLTZ, ROBERT A. MASTRONARDI, STEVEN M. CLOPE, and NICOLE L. PETERSEN, Defendants.
Stadtmueller U.S. District Judge
parties have filed numerous motions since December 2017 which
the Court will now address. First is Plaintiff's December
4, 2017 motion asking the Court to order “Defendants
and their attorney . . . to respond to his letters and the
plaintiff's content in those letters[.]” (Docket
#71). He later withdrew that request. (Docket #98 at 2).
Plaintiff's motion further requests that the Court order
Defendants to be responsive to Antoinette Rodriguez and Lisa
Bergeron, his mother and grandmother, when they attempt to
communicate regarding this litigation. Id.
Defendants counter that the individuals Plaintiff identifies
are not licensed to practice law. (Docket #91). Plaintiff
replies that his family members are attempting to assist him
by purchasing a recording of video footage on his behalf.
(Docket #98 at 3). He says he already has a copy, but wants
another one so that he can test it for tampering.
Id. at 4. The Court will deny this aspect of
Plaintiff's motion. He received a copy of the video in
discovery and may make a copy of it if he wishes, subject to
his resources. The Court will not compel Defendants to
provide additional copies.
December 7, 2017, Plaintiff filed a motion for a preliminary
injunction. (Docket #73). He says that when he returns to the
Racine County Jail (the “Jail”) for regular court
dates, Defendants should be compelled to intervene more
directly to prevent his self-harming activities. Id.
“A preliminary injunction ordering [a] defendant to
take an affirmative act rather than merely refrain from
specific conduct, ” as is the case here, “is
‘cautiously viewed and sparingly issued.'”
Knox v. Shearing, 637 F. App'x 226, 228 (7th
Cir. 2016) (quoting Graham v. Med. Mut. of Ohio, 130
F.3d 293, 295 (7th Cir. 1997)). A preliminary injunction is
“an extraordinary remedy and is never awarded as of
right.” Id. (quoting Winter, 555 U.S.
request must be denied because the Court is not an expert in
mental health treatment or corrections. It will not order
Defendants to take, or refrain from taking, certain actions
in response to Plaintiff's future behavior, the
particulars of which are not yet known. In any event, as
Defendants note, (Docket #82 at 2), and as Plaintiff admits,
(Docket #94 at 2), the subject behavior consists of Plaintiff
biting the inside of his mouth. This does not seem to be a
life-threatening behavior, and it is not clear what
Defendants would be expected to do to control it. Forcibly
holding Plaintiff's jaw apart to prevent biting might
raise more constitutional issues than it
next motion in time was filed by Defendants. (Docket #75).
They seek a protective order limiting Plaintiff's
numerous and allegedly inappropriate discovery requests. The
motion will be denied. As provided in the trial scheduling
order, the discovery period closed on January 22, 2018.
(Docket #19 at 2). To the extent any discovery requests were
properly served, i.e. “served by a date
sufficiently early so that all discovery is completed no
later than” January 22, Defendants should respond to
them. If they believe any of the requests are objectionable,
Defendants are free to so object. The Court will also deny as
moot Plaintiff's related motions to dismiss (Docket #86)
and for leave to file a sur-reply (Docket #101).
December 11, 2017, Plaintiff filed a multi-faceted motion
related to video footage. (Docket #80). First, Plaintiff asks
for leave to mail in a copy of the footage in conjunction
with a future motion, because the copy cannot be e-filed in
accordance with the E-Filing Program in place at
Plaintiff's institution. (Docket #19 at 6-7). This aspect
of the motion will be granted. Plaintiff may file a copy of
the video footage with the Court via mail. For all other
filings, Plaintiff must continue to comply with the E-Filing
Program. Plaintiff further requests appointment of counsel to
address this concern, but in light of the Court's ruling,
this is unnecessary. Plaintiff also seeks various extensions
of time, but does not say what deadline(s) he wants extended.
The Court must deny that aspect of the motion.
December 13, 2017, Plaintiff filed another multi-faceted
motion, this time aimed at the Court itself. (Docket #81).
First, Plaintiff asks that the Court recuse itself from this
matter. The standards governing a judge's recusal are set
out in 28 U.S.C. Sections 144 and 455. Section 144 requires a
judge to recuse himself for “personal bias or
prejudice.” 28 U.S.C. § 144. Section 455(a)
requires a federal judge to “disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned, ” and Section 455(b)(1) provides that a
judge shall disqualify himself if he “has a personal
bias or prejudice concerning a party.” Id.
§ 455(a) and (b)(1). Because the phrase “personal
bias or prejudice” found in Section 144 mirrors the
language of Section 455(b), they may be considered together.
Brokaw v. Mercer Cnty., 235 F.3d 1000, 1025 (7th
Cir. 2000). In deciding whether a judge must disqualify
himself under Section 455(b)(1), the question is whether a
reasonable person would be convinced the judge was biased.
Hook v. McDade, 89 F.3d 350, 355 (7th Cir. 1996)
(internal quotation omitted). Recusal under Section 455(b)(1)
“is required only if actual bias or prejudice is proved
by compelling evidence.” Id.
has not presented compelling evidence of actual bias against
him. First, he alleges that the Court has treated him
differently than other pro se prisoner litigants
because the Court did not accept a late filing in one of
Plaintiff's other cases. See Raymond J. Bergeron
Davila v. Christopher Schmaling, et al., 16-CV-1665-JPS,
(Docket #127). Plaintiff speculates that the Court may reject
late filings in this case. The Court addresses compliance
with the rules of procedure on an individual basis in each
instance where it is necessary. The Court's enforcement
of those rules against late filings is no evidence of bias.
Plaintiff further asserts that if the Court knows certain
other persons, presumably state court judges handling
Plaintiff's criminal cases, it must recuse. Plaintiff
does not explain how being acquainted with others is evidence
of bias, much less compelling evidence. Plaintiff further
suggests that this Court cannot decide the motion for
recusal. This is false. See 28 U.S.C. § 455(a)
(“Any . . . judge . . . shall disqualify
himself in any proceeding in which his impartiality
might reasonably be questioned.”) (emphasis added).
Finally, Plaintiff's motion references as desire for a
stay, though he does not address this meaningfully in the
body of his motion. That request must be denied.
final pending motion was filed on December 20, 2017. (Docket
#90). Plaintiff seeks an order compelling Defendants to
produce certain video footage to his mother at her expense.
As with Plaintiff's prior motion addressing the same
topic, this request must be denied. Plaintiff has already
been provided a copy of the footage and may copy it as he
sees fit. Defendants are not required to provide him any more
copies. To the extent Plaintiff needs financial support, that
is a matter between him, his family, and the Department of
Corrections' policies on prisoner finances. The Court
will not intervene in such matters.
IT IS ORDERED that Plaintiff's motion
for an order requiring Defendants to provide an additional
copy of video footage (Docket #71) be and the same is hereby
IS FURTHER ORDERED that Plaintiff's motion for
preliminary injunction and seeking production of video
footage (Docket #73) be and the same is hereby
IS FURTHER ORDERED that Defendants' motion for a
protective order (Docket #75) be and the same is hereby
IS FURTHER ORDERD that Plaintiff's motions to
dismiss (Docket #86) and for leave to file a sur-reply
(Docket #101) be and the same are hereby DENIED as
IS FURTHER ORDERED that Plaintiff's December 11,
2017 motion (Docket #80) be and the same is hereby
GRANTED in part and DENIED in