United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
plaintiff Fradario Brim is a Muslim prisoner incarcerated at
Wisconsin Secure Program Facility. He brings First, Eighth,
and Fourteenth Amendment against officials at his former
institution, Green Bay Correctional Institution, for
allegedly conspiring to punish him for his religious
practices and legal activity.
filed a motion for partial summary judgment based on
Brim's failure to exhaust his administrative remedies
regarding some of his claims against them. Among the claims
they asked the court to dismiss were Brim's First
Amendment retaliation and substantive due process claims
against prison officials Christopher Stevens and Jay Van
Lanen for allegedly issuing a false conduct report against
Brim and bribing inmates for fabricated inculpatory testimony
about him. Defendants asserted that Brim failed to raise
these issues as defenses at his disciplinary hearing and on
appeal to the warden, as is required to exhaust conduct
response, Brim argued that he indeed raised his grievances at
these junctures even though there was no corroborating
documentation in the underlying record. He explained that the
hearing officer had intentionally failed to note the
objections Brim raised during the hearing on the hearing
form. He also insisted that he had included a two-page
written statement stressing his claims of fabrication and
retaliation in his appeal to the warden, despite the absence
of this statement from the institution's records of his
appeal. Brim attached what he said was a copy of this missing
statement to his opposition brief. Dkt. 31-1, at 11-12. In
reply, defendants said they had no record of Brim ever
submitting this document.
an evidentiary hearing on February 27, 2019 to resolve these
and other exhaustion-related issues. Findings from that
hearing are summarized in a previous order. See Dkt.
73. Regarding the claims against Sevens and Van Lanen, I
found by a preponderance of the evidence that Brim had not
raised his allegations orally during the hearing or in
writing on appeal to the warden. I explained the various
factors that led me to conclude that Brim was being
untruthful, including credible testimony from Brim's
staff advocate that Brim had not raised objections about
retaliation at the hearing and implausible, inadequately
explained discrepancies in Brim's written appeal
documents. See id., at 3-6. I ultimately concluded
that the two-page document Brim said he submitted to the
warden was fabricated, and that he did not in fact submit it
along with his other appeal documents. So I dismissed
Brim's First Amendment and substantive due process claims
against Stevens and Van Lanen.
now ask me to dismiss Brim's entire case with prejudice
and assess him a strike under 28 U.S.C. § 1915(g) as a
sanction for his untruthful testimony and fabricated appeal
document. Dkt. 75. “A district court has inherent power
to sanction a party who ‘has willfully abused the
judicial process or otherwise conducted litigation in bad
faith.'” Secrease v. W. & S. Life Ins.
Co., 800 F.3d 397, 401 (7th Cir. 2015) (quoting
Salmeron v. Enterprise Recovery Sys., Inc., 579 F.3d
787, 793 (7th Cir. 2009)). I have already found by a
preponderance of the evidence that Brim was untruthful in his
testimony and in documents he submitted to the court, so I
conclude that sanctions are appropriate. See Ramirez
v. T&H Lemont, Inc., 845 F.3d 772, 778-81 (7th Cir.
2016), cert. denied, 138 S.Ct. 116 (2017).
next question is what sanctions should be imposed. Defendants
ask that I dismiss the case with prejudice. I am required to
consider other, lesser sanctions before dismissing the case,
see Rivera v. Drake, 767 F.3d 685, 686 (7th Cir.
2014), but I conclude that a lesser sanction would not be
effective. For instance, Brim is proceeding in forma
pauperis, so it is unlikely that a monetary sanction
would work. See Id. at 687. Brim suggests that
dismissing some of his claims on exhaustion grounds is a
sanction enough in itself, but that is plainly inadequate.
Were it not for Brim's false statements, his claims would
have been dismissed on exhaustion grounds without the need
for an evidentiary hearing, so the post-hearing dismissal of
those claims doesn't provide any incentive for Brim to be
truthful in the future.
conclude that it is appropriate to dismiss the entire case as
a sanction for submitting false evidence of exhaustion. This
is consistent with my practice in other cases. See,
e.g., Howell v. Broadbent, No. 16-cv-477-JDP,
2018 WL 2223668, at *3 (W.D. Wis. May 15, 2018). Defendants
ask that I also issue a strike under 28 U.S.C. §
1915(g). I think a strike would be warranted under the
circumstances here, but I do not believe that a strike is
authorized by the terms of the statute. But Brim should be
aware that if he commits any misconduct in the future, I will
impose harsher sanctions, which will include dismissal of all
pending cases and a bar on filing cases in this court.
case is DISMISSED with prejudice for plaintiff Fradario
clerk of court is directed to enter judgment for defendants
and close the case. Entered April 4, 2019.