United States District Court, W.D. Wisconsin
JAMES A. LEWIS, Plaintiff,
CHAD HENNEMAN, LORIE IVERSON, and LAURIE NEUROTH, Defendants.
OPINION & ORDER
D. PETERSON District Judge
James A. Lewis, a prisoner currently incarcerated at the
Wisconsin Secure Program Facility (WSPF), brings this lawsuit
alleging that defendants, WSPF officials Chad Henneman, Lorie
Iverson, and Laurie Neuroth, harassed and disciplined Lewis
in retaliation for his complaining about sexual harassment by
Henneman. I granted Lewis leave to proceed on First Amendment
retaliation and Fourteenth Amendment equal protection claims
against defendants. Each side has filed a motion for
sanctions. I will deny Lewis's motion and direct the
clerk of court to schedule an evidentiary hearing on
defendants' motion. I will reserve ruling on the
remaining pending motions in this case until defendants'
motion for sanctions is resolved.
Lewis's motion for sanctions
contends that defendants failed to comply with my January 29,
2018 order, Dkt. 63, instructing defendants to allow Lewis to
review partially redacted copies of defendant Chad
Henneman's disciplinary records. Lewis asks me to
sanction defendants by denying their summary judgment motion.
facts here are undisputed. On January 29, I ordered
defendants to arrange for Lewis to view partially redacted
copies of the disciplinary records available at Dkt. 37-1 and
Dkt. 37-2. I ordered defendants to do so by February 5. I
extended the deadline for Lewis's summary judgment
response to February 28 to allow him time to review the
records. Defendants' counsel arranged for Lewis to review
Dkt. 37-2, a 163-page exhibit containing the detailed
employee investigation reports relating to Henneman's
disciplinary record, on January 31. But Lewis never received
a copy of Dkt. 37-1, a three-page summary of the disciplinary
record. Defendants' counsel explains that she
“inadvertently neglected” to make Dkt. 37-1
available to Lewis. Dkt. 68, at 2. She mailed Lewis a copy of
Dkt. 37-1 with her response to Lewis's motion for
sanctions on February 23 and explains that she would have
done so earlier if Lewis had notified her of the issue before
filing his motion. See Id. Lewis says he didn't
receive Dkt. 37-1 until February 28, the same day his
response brief was due.
“inadvertence” is becoming a common theme in this
litigation. See Dkt. 63, at 2 (“Defendants
explain that their late disclosure was accidental . . .
.”). Had Lewis asked for leave to file a supplemental
response incorporating information gleaned from Dkt. 37-1, I
would have likely granted his request. But it does not appear
that Lewis had anything to add after reviewing Dkt. 37-1.
After all, Dkt. 37-1 is simply a summary of the records
contained in Dkt. 37-2. I will not sanction defendants for
what appears to be a harmless oversight. But I warn
defendants' counsel that I will not look favorably upon
any future errors or incidents of neglect.
Defendants' motion for sanctions
defendants claim that Lewis falsified a record, Dkt. 64-1,
that he submitted to the court in opposition to
defendants' summary judgment motion. They ask me to
sanction Lewis by dismissing this case. Dkt. 81.
Lewis's motion for sanctions, the facts concerning
defendants' motion for sanctions are very much disputed.
But I'll begin with the common ground. In July 2015,
Henneman issued a conduct report alleging that Lewis violated
two DOC rules: Rule 303.63, concerning inadequate work or
school performance, and Rule 303.33, concerning disruptive
conduct. Lewis contested the conduct report. Captain Lebbeus
Brown served as the hearing officer for the conduct report.
He reviewed the conduct report on August 3, 2015, and
approved a disposition of three days' room confinement.
In support of their summary judgment motion, defendants
submitted what appears to be the original copy of the conduct
report form. See Dkt. 31-2. It bears two checkmarks
indicating that Lewis was found guilty of both rule
violations. In opposition to defendants' summary judgment
motion, Lewis submitted a carbon copy of the conduct report
form. See Dkt. 64-1. On Lewis's copy, the
initials “LB” are written next to the
“guilty” checkmark for Rule 303.63, and the
“not guilty” box is checked, instead. The parties
agree that Lewis's copy of the conduct report form was
altered after the original conduct report form was completed.
parties dispute who altered the form. Lewis states, in a
declaration, that Brown made the change before giving the
copy to Lewis and told Lewis that “he would do the same
to the original.” Dkt. 91, ¶ 2. Defendants accuse
Lewis of altering it in an attempt to defeat defendants'
summary judgment motion. They point to Brown's
declaration, in which he states that he does not recognize
the initials on Lewis's copy as his handwriting, that he
did not amend his findings of guilt for Lewis's conduct
report, and that he has never altered a carbon copy of a
conduct report-any changes he makes to conduct reports are
made on the original version with the carbon copy underneath
so that both copies reflect the change.
the parties genuinely dispute whether Lewis altered the copy
of the conduct report that he submitted to the court. If he
did, he has not only submitted falsified evidence to the
court, but he has perjured himself as well. Dismissal with
prejudice would be “entirely warranted” in such a
situation. Jackson v. Murphy, 468 Fed.Appx. 616, 620
(7th Cir. 2012); see also Howell v. Broadbent, No.
16-cv-477, 2018 WL 1433852, at *3 (W.D. Wis. Mar. 22, 2018).
But to obtain that sanction, defendants must prove by a
preponderance of the evidence that Lewis in fact altered the
copy of the conduct report. See Ramirez v. T&H
Lemont, Inc., 845 F.3d 772, 778 (7th Cir. 2016),
cert. denied, 138 S.Ct. 116 (2017). So I will direct
the clerk of court to schedule an evidentiary hearing so that
I can make a determination about whether Lewis altered the
copy of the conduct report.
Plaintiff James A. Lewis's motion for sanctions, ...