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Bub v. Swiekatowski

United States District Court, W.D. Wisconsin

October 18, 2019

MARTIN R. BUB, Plaintiff,

         Members of the jury, we are about to begin the trial of the case. Before it begins, I will give you some instructions to help you understand how the trial will proceed, how you should evaluate the evidence, and how you should conduct yourselves during the trial. This will take about 15 minutes; I will give you written copies of all my instructions so you will have them when you deliberate.

         The party who begins the lawsuit is called the plaintiff. In this case, the plaintiff is Martin Bub, who is currently housed at the Winnebago County Jail. This case involves events that took place while he was housed at Green Bay Correctional Institution. The defendants are William Swiekatowski, Samuel Menning, and Christopher Stevens, who worked at the Green Bay prison.

         When Bub was incarcerated at the Green Bay prison, he was accused of having his girlfriend smuggle drugs into the prison and he was given a conduct report for it. Bub successfully defended himself against the conduct report, and he was found not guilty. He also helped his girlfriend with a lawsuit against prison officials. Bub says that defendants took actions against him for defending himself and for helping his girlfriend. Bub says that Swiekatowski retaliated against him by monitoring his communications, confiscating legal materials, and planting cocaine in his urine sample. Bub says that defendants Samuel Menning and Christopher Stevens created a false, backdated incident report to give prison officials a pretext to collect his urine. Defendants say that (1) the legal materials were confiscated in accordance with prison policy and that Swiekatowski later returned them to Bub; (2) that they did not tamper with Bub's urine sample or fabricate an incident report; and (3) that nothing they did was motivated by a desire to retaliate against Bub.

         I'll give you more detailed instructions about the law after you hear the evidence, but in general, the First Amendment to the United States Constitution prohibits prison staff from punishing inmates for exercising their First Amendment rights. A prisoner would have a First Amendment right to defend himself in disciplinary proceedings and to help others to file a lawsuit about misconduct by prison staff. The first question you must decide, as jurors in this case, is whether Bub has proved that Swiekatowski punished him for exercising his First Amendment rights.

         The Fourth Amendment to the United States Constitution protects persons from unreasonable searches, including in prisons. The second question you must decide is whether Bub has proved that Menning and Stevens acted unreasonably in causing Bub to be searched.

         If you find that defendants violated Bub's rights, then you will have to decide whether Bub is entitled to damages and, if he is, decide the amount of those damages.


         One of my duties as the judge in this case is to decide all questions of law and procedure. In these preliminary instructions, during trial, and at the end of the trial, I will instruct you on the rules of law that you must follow in making your decision.

         You have two duties as jurors. Your first duty is to decide the facts from the evidence that you see and hear in court. Your second duty is to take the law as I give it to you, apply it to the facts, and decide if Bub has proved that defendants' actions or inactions violated the First and Fourth Amendments.

         You must perform these duties fairly and impartially. Do not let sympathy, prejudice, fear, or public opinion influence you. You should not take anything that I say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.


         The case will proceed as follows:

         First, Bub will make an opening statement outlining his case. Immediately after Bub's statement, defendants' counsel will also make an opening statement outlining defendants' case. What is said in opening statements is not evidence; it is simply a guide to help you understand what each party expects the evidence to show.

         Second, after the opening statements, Bub will introduce evidence in support of his claim. At the conclusion of Bub's case, defendants may introduce evidence. And, finally, Bub may choose to introduce rebuttal evidence.

         Third, after the evidence is presented, I will instruct you on the law that you are to apply in reaching your verdict. I will give you copies of all my instructions, so you will have them in writing when you deliberate.

         Fourth, the parties will make closing arguments explaining what they believe the evidence has shown and what inferences you should draw from the evidence. What is said in closing argument is not evidence. Bub will make the first closing argument and ...

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