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Daniels v. Foster

United States District Court, E.D. Wisconsin

September 16, 2019

REMO HARRISON DANIELS, Plaintiff,
v.
BRIAN FOSTER, et al., Defendants.

         ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AND FOR SANCTIONS (DKT. NO. 67), DENYING WITHOUT PREJUDICE MOTION TO APPOINT COUNSEL (DKT. NO. 73), DENYING MOTION FOR ORDER ALLOWING REVIEW OF VIDEO FOOTAGE (DKT. 77), GRANTING MOTION FOR EXTENSION OF TIME TO CONDUCT DISCOVERY (DKT. NO. 80) AND DENYING WITHOUT PREJUDICE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 83)

          Hon. Pamela Pepper United States District Judge

         The plaintiff, Remo Harrison Daniels, is representing himself. He has filed a series of motions relating to discovery, along with a motion to appoint counsel. The court will deny all but one of his motions relating to discovery and will deny without prejudice his motion to appoint counsel. The court will grant the plaintiff additional time to conduct discovery and will deny as moot the defendants' motion for summary judgment, which they may re-file once discovery is closed.

         I. MOTION TO COMPEL AND FOR SANCTIONS (DKT. NO. 67)

         In the brief supporting his motion to compel, the plaintiff asserts that he served the defendants with two requests for production of documents-one on October 16, 2018 and another on December 10, 2018. Dkt. No. 68 at 1. He asserts that the defendants responded by saying that they did not have the video footage he was requesting. Id. He says that he tried to work things out with defense counsel but has been unable to do so. Id. at ¶10. He attached the defendants' response to his request for the December 13, 2016 footage; they replied that they had no videos for that date. Dkt. No. 69-2 at ¶1 (response). His brief also mentions “document relevant to past mistreatment of inmates by defendant's Beahm and Krause.” Dkt. No. 68 at 2-3.

         A. Video Footage

         According to the plaintiff, the defendants failed to produce video footage from the December 13, 2016 incident involved in this case, and provided “cut” footage of the incident recorded on January 3, 2017. Dkt. No. 69 at ¶¶ 2, 8. This is not the first time the plaintiff has asked the court to order the defendants to turn over such footage-he made a similar request on December 28, 2018. Dkt. No. 62. The court denied the first request, in part because he failed to confer with counsel for the defendants before filing the motion, as required Civil Local Rule 37, and in part because he failed to offer anything beyond speculation that he was given the wrong video footage. Dkt. No. 66 at 4-5. The court told the plaintiff that if he had proof that the defendants had not given him relevant evidence or had tampered with the evidence they did give him, he could write to the defendants' attorney, Samuel Berg, and ask for an explanation. Id. According to Attorney Berg, the plaintiff has not done this. Dkt. No. 72 at 2.

         The court acknowledges that in this second motion, the plaintiff has remedied one of the problems with his last motion-he certified that he had tried to confer with defense counsel to work out the dispute before he filed this motion. But the plaintiff has not remedied the other problem-he has not provided the court with proof that a video exists that has not been turned over, or that the defendants tampered with the one they did turn over. The plaintiff continues to insist that there is video footage from December 13, 2016 and January 3, 2017 that would show the defendants sexually assaulting him. He argues that because he knows for a fact that such video exists, the fact that the defendants have not provided it to him shows that they are withholding evidence or tampering with evidence. Dkt. No. 69 at ¶8. Attorney Berg has (again) certified that video from December 13, 2016 does not exist and that the footage from January 3, 2017 has not been tampered with. Dkt. No. 72 at 2-4.

         The court will deny the motion.

         B. Investigations against Beahm and Krause

         The plaintiff argues that he is entitled to evidence he requested about defendants Beahm and Krause. Dkt. No. 68 at 2-3. The relevant request appears to be his request number four for production of documents, in which he asks for “[a]ll records, or Documents of Investigates claims against both Defendants.” Dkt. No. 69-1 at 2. The defendants objected to this request as overly broad, unduly burdensome, and not proportional to the needs of the case. Id. at 3. Attorney Berg stated that if the plaintiff submitted a more specific request, he would review it and respond accordingly. Id. at 3. The plaintiff failed to do so, and the court could deny his motion solely for failure to meet and confer as required under Civil L.R. 37.

         But the court will deny the plaintiff's motion on the merits. The court agrees that the plaintiff's request was very broad, and Attorney Berg outlined the results of those investigations in his response, despite his objection. Dkt. No. 72 at 3-4. Counsel indicated that there were no PREA investigations or disciplinary actions as to defendant Krause. Id. at 5. He indicated that Beahm had been the subject of thirteen investigations and that all thirteen were unfounded or unsubstantiated. Id. at 5. Counsel also indicated that Beahm had been subject to two disciplinary actions, neither of which were related to the plaintiff's claims, or to issues like the plaintiff's. Id. at 6.

         In an abundance of caution, the defendants submitted documents relating to investigations into Beahm for in camera review. The court has reviewed the documents. The two disciplinary actions against Beahm took place in 2011 and 2015, respectively, long before the incident that forms the basis of this lawsuit. Neither had to do with this plaintiff; neither had to do with sexual harassment. Of the thirteen PREA complaints against Beahm (one of which was the plaintiff's, for the incident in this case), all were investigated (several quite extensively). Investigators determined that they either were unsubstantiated (not enough evidence to draw a conclusion) or unfounded (did not happen). In one instance, the inmate who allegedly made the complaint against Beahm denied he ever called the PREA hotline, and speculated that another inmate did it under his name.

         None of the other inmates alleged that Beahm touched their buttocks, as the plaintiff has alleged. Even if they had, the fact that the investigators found the claims unfounded would prevent the plaintiff from presenting the complaints at his trial, or as evidence at summary judgment. Federal Rule of Evidence 404(b)(1) prohibits a party from admitting evidence of other crimes, wrongs or acts to show that someone acted in accordance with their character. There are exceptions; for example, Rule 414(b)(2) says that evidence of other “bad acts” may be admissible to show intent, absence of mistake or lack of accident. But for the court to admit “other bad acts” evidence for such purposes, the party seeking to admit the evidence must show that there is “sufficient amount of evidence for the fact finder to conclude that the similar act was committed.” Okai v. Verfuth, 275 F.3d 606, 610-11 (7th Cir. 2001). Because none of the PREA ...


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