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Owens v. Patek

United States District Court, W.D. Wisconsin

July 19, 2019

KERRY J. OWENS, JR., Plaintiff,
v.
SAMUEL PATEK and GARRETT MORRIS, Defendants.

          ORDER

          JAMES D. PETERSON, DISTRICT JUDGE

         Pro se plaintiff Kerry J. Owens, Jr., an inmate at Wisconsin Secure Program Facility, is proceeding on Fourth Amendment excessive force claims against defendant police officers. He alleges that defendant Samuel Patek tased him while he was standing still with his arms above his head, and that defendant Garrett Morris physically assaulted him in a holding cell at the Beloit Police Department precinct. There are three motions pending before the court: (1) defendants' motion to take Owens's deposition, Dkt. 35; (2) Owens's renewed motion for assistance in recruiting counsel, Dkt. 39; and (3) Owens's motion for sanctions based on defendants' alleged spoliation of evidence, Dkt. 29.

         A. Motion to take deposition and renewed motion for assistance in recruiting counsel

         I will address the first and second motions together, because both relate to Owens's deposition. A deposition is a question-and-answer session that takes place before the trial, in which the person being question is placed under oath. Under Rule 30 (a)(2)(B), a party must obtain leave of court before deposing someone who is confined in prison. Defendants have moved to depose Owens under Rule 30 (a)(2)(B). This court usaully grants such motions as a matter of course, and I will do so here as well.

         In response to defendants' deposition notice, Owens has renewed his motion for assistance in recruiting counsel. I denied Owens's previous motion for assistance in recruiting counsel because (1) Owens had not adequately documented his attempts to find a lawyer, and (2) I concluded that the legal and factual issues in his case were relatively straightforward and did not exceed Owens's abilities.

         Owens has resolved the first issue in his renewed motion, which indicates that he has made at least three attempts to secure representation. See Dkts. 39-1-39-3. Dkt. 22. But Owens has still not shown that the complexities of his case exceed his ability to litigate it. His renewed motion simply reiterates much of what he said in his original motion: he cannot afford counsel, he has limited access to a law library, and the legal resources at WSPF are not helpful to him. He also mentions the deposition, and I infer that Owens is anxious about being deposed without a lawyer. But depositions in these kinds of cases are routine, and getting deposed does not require legal knowledge or expertise. All Owens needs to do is answer the questions he is asked honestly and to the best of his ability. If he finds a question confusing, he may ask for clarification. If he doesn't know the answer to a question, he can say so. The focus of the deposition will be the facts of Owens's case; he will not be asked about the law.

         Because I am still not persuaded that the complexities of this case exceed Owens's abilities, I will deny his renewed motion for assistance in recruiting counsel.

         B. Motion for sanctions

         That leaves Owens's sanctions motion. Owens seeks sanctions based on defendants' alleged spoliation of evidence relevant to his case-specifically, defendants' alleged intentional deletion of (1) photographs taken on January 23, 2015, the date of the excessive force incidents; and (2) surveillance footage of the booking area, hallway, and holding cell of the jail where Owens was allegedly assaulted. Owens says that in response to his discovery requests, defendants produced only two photos and indicated that there was no surveillance footage, because the security system in question maintains files for only 44 days.

         1. Photographs

         In response to Owens's allegations about the unproduced photographs, defendants state that, after serving Owens with discovery, they “became aware of additional photos, which were taken of Plaintiff at his residence after he was detained by Officers.” Dkt. 30 at 2. So on March 15, 2019, they supplemented their discovery responses and provided Owens with twelve additional photos, in accordance with their obligations under Rule 26(e)(1)(A). Owens has filed these photos on the docket. See Dkt. 34-3 and Dkt. 34-4. The photos of Owens show him lying face-down on the ground after being tased.

         In reply, Owens indicates that he is dissatisfied with defendants' supplement because it does not include photos “of the plaintiff[']s injuries that were stated by the defendants to have been taken the night of January 23, 2015 before E.M.[S.] removed him from the scene.” Dkt. 34, at 2. I infer that Owens is referring to defendant Morris's statement in a police report that he “took pictures of . . . the [taser] probe strike itself . . . and of Owens' overall injuries.” Dkt. 18-1, at 5. But Owens also acknowledges that, in a prior criminal proceeding, Morris testified that these twelve additional photographs were “all that were taken.” Dkt. 34, at 2 (citing Dkt. 18-1, at 24). Morris also testified that the only “injuries” he photographed were “[t]he probe strikes” from the taser, Dkt. 18-1, at 31, a photo of which is included in the supplemental batch of photos that defendants provided. See Dkt. 34-3, at 1.

         Owens says that there are two possible explanations for the absence of any additional photographic evidence of his injuries. First, he speculates that defendants might have taken additional photos of his injuries “and then destroyed them once they realized” that they were inconsistent with Owens's booking photos (which Owens says show the injuries he sustained later, when Morris beat him at the police precinct). Dkt. 34, at 3. Second, Owens speculates that defendants simply “lied when they said they took photos of the plaintiff[']s injuries.” Id. But in the first scenario, spoliation sanctions would be inappropriate because Owens has offered no evidence, other than his own speculation, that these additional injury photos were taken, let alone destroyed. See Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 558 (7th Cir. 2001) (denying adverse inference instruction when moving party “offered no evidence, other than his own speculation, that [the documents] were destroyed to hide” incriminatory evidence). And in the second scenario, spoliation sanctions would be inappropriate because the photos at issue would not have existed in the first place. So I will deny Owens's motion as to any hypothetical additional photographs of his injuries.

         2. ...


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