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Naseer v. McArdle

United States District Court, W.D. Wisconsin

September 23, 2019

HAKIM NASEER, Plaintiff,
v.
NURSE MCARDLE, NURSE WATERMAN, NURSE EDGE, LORI ALSUM, and ICE PAYNE, Defendants.

          ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Plaintiff Hakim Naseer, appearing pro se, alleges that prison officials have failed to adequately treat his severe head pain in several ways. Naseer says that they will not assess him, they intercept his correspondence to the health services manager about this mistreatment, they keep him from being seen by a doctor, and they returned his grievance instead of processing it. He brings claims under Eighth Amendment, equal protection “class of one, ” and First Amendment theories. The parties have filed a series of motions-almost all of them filed by Naseer-that I will address in this order.

         A. Preliminary injunction

         Naseer has filed a motion asking for preliminary injunctive relief to stop prison officials from removing documents from his medical file and giving him medications that were not prescribed to him, to be provided with proper medical care, and to be sent to another prison. Dkt. 52.

         I denied a previous preliminary injunction motion filed by Naseer about staff removing evidence from his files because he did not describe in any detail what he believed was taken. See Dkt. 51. He has a similar problem here. He states that defendant Jolinda Waterman removed items from his medical file that caused him to be unable to respond to a summary judgment motion in a previous case in this court, No. 13-cv-821-jdp. But that appears to be an act of past misconduct that does not affect the current case. He adds that staff removed documents from his medical file in June 2018, but he does not explain what that those documents were, what they would have said, or how they affect this lawsuit. Because Naseer does not present specific facts explaining how defendants are harming him, I cannot consider his request for injunctive relief about his medical file. As discussed further below, later motions by Naseer flesh out his theory that medical records are being destroyed, but he doesn't show that there has been any intentional destruction of documents.

         I will also deny Naseer's requests about being given incorrect medication and receiving inadequate care. This case is about severe head pain Naseer says that he suffers. But his proposed findings of fact and declaration focus on treatment for skin problems that Naseer believes are caused by lupus. He also says that he is not receiving medication refills, but the documents he attaches show the medications to be lotion, eye drops, and medicated shampoo. See Dkt. 54-5 and 54-6. I cannot consider injunctive relief unrelated to the claims in this lawsuit, and Naseer does not explain what these problems have to do with his severe head pain. So I will deny his motion for preliminary injunctive relief.

         B. Sanctions

         Naseer has filed a motion seeking sanctions against counsel for defendants. Dkt. 66. He contends that when counsel repeated his proposed findings of fact in their responses, see Dkt. 62, they did not reproduce the proposed findings verbatim as required by the court. Naseer believes that they did so for the purpose of misleading the court. For instance, counsel left out the word “to” in the phrase “transferred shortly after to GBCI prison, ” id. at 2, and did not put the words “in part” in all capital letters like Naseer did, id. at 3. I want parties to faithfully reproduce the other side's proposed findings of fact in their own materials, but these discrepancies are so minor that they cannot reasonably seen as attempts to mislead. And I note that this is not an easy task for defendants given Naseer's difficult-to-read handwriting. This simply is not matter for which sanctions are appropriate, so I will deny Naseer's motion.

         Naseer has filed a second motion for sanctions, in which he says that defendant Waterman perjured herself in responding to his motion for preliminary injunction. Dkt. 82. Inconsistences in testimony are often a result of fallible human memory or other mistakes. And parties are free to give their opinion or to disagree with each other over the meaning of facts without that being considered lying under oath. None of Waterman's statements that Naseer raises in his motion come anywhere close to perjury.

         For instance, Naseer says that Waterman falsely testified that neither she nor her staff removed items from his medical file. Naseer states that the medical file that Waterman compiled for him does not include a letter written by defendant Lori Alsum to Naseer (and copied to Waterman) responding to his complaint that years' worth of medical records were missing from his file. Dkt. 83-1, at 3. I take Naseer to be saying that Waterman intentionally did not include that letter in the medical file she sent to him, that the letter itself states that some of his records were destroyed, and that Waterman lied when she said that the destruction of records did not occur. I'm not certain that the letter itself is really a “medical record” that Waterman was supposed to include in the file she sent to Naseer, because it is not directly about Naseer's treatment. But even if the letter should have been included, all Naseer has shown is an oversight by Waterman, not that she intentionally removed the record from his medical file. The letter itself is also not proof that years' worth of his medical records were actually destroyed. It shows that Naseer believes that records were destroyed. Alsum's response says only that she discussed the issue with health staff and that Naseer could also discuss it with health staff or file an inmate grievance. Alsum did not say that records were in fact destroyed. Naseer has given me no reason to think that Waterman lied about records being destroyed.

         Naseer also says that Waterman was lying when she said that Naseer's medical records would show that “Naseer is requesting care and having his medical needs addressed on a regular basis by WSPF staff and outside providers.” Dkt. 63, at 3. Naseer says that he's not receiving proper care for lupus, but as stated above, this case is not about his lupus treatment. And in any event, Waterman's statement about the quality of care that Naseer received may be correct or incorrect, but Naseer does not show that Waterman intentionally presented false testimony, rather than her truthful opinion about his care. I will deny his second motion for sanctions.

         C. Discovery

         Naseer has filed a motion “for immediate relief” concerning incomplete discovery responses by defendants. Dkt. 71. Defendants responded to his first request for production of documents by stating that 85 pages of documents were attached to the response, but Naseer did not receive those documents. Defendants respond by stating that they mistakenly failed to attach copies of the documents to the packet they sent to Naseer, and that they sent new copies to him. Dkt. 72. This would ordinarily resolve the matter. But in his reply, Naseer states that he believes that this was not merely an oversight and that counsel for defendants is intentionally harassing and abusing him. Dkt. 76. He suggests that counsel attempted to conceal her wrongdoing by withdrawing from her representation after sending him the incomplete discovery responses. Id.

         Naseer is incorrect that counsel withdrew from the case: the notice regarding counsel he refers to states that additional counsel has joined the defense, not that the original attorney has been replaced with a new one. See Dkt. 68. But even if original counsel had withdrawn, that wouldn't have hidden any wrongdoing, had it occurred. I agree with Naseer that the discovery responses were incomplete, but counsel has fixed the error. There is no relief to be given Naseer, and there ...


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