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Smith v. Lind

United States District Court, W.D. Wisconsin

November 5, 2019

WALTER SMITH, Plaintiff,
BETH LIND, et al., Defendants.



         Plaintiff Walter Smith is pursuing claims related to the adequacy of Ramadan meal bags at Waupun Correctional Institution (Waupun) in 2008, 2009, 2010, and 2011; the availability of proper foods for the 2009 Eid-ul-Fitr feast; and the adequacy of the halal diet. With respect to his claims related to Ramadan meal bags and the adequacy of the halal diet in particular, Smith claims that the food he was receiving between 2008 and 2011 sickened him. Defendants have filed a motion for sanctions, asking the court to dismiss this lawsuit with prejudice (and assess Smith a strike) on the ground that Smith fabricated years of food logs that he recently produced during discovery. (Dkt. 143.) I am denying defendants' motion without prejudice for the reasons stated below.


         “A district court has inherent power to sanction a party who ‘had 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)). “Dismissal can be appropriate when the plaintiff has abused the judicial process by seeking relief based on information that the plaintiff knows is false.” Id. Defendants have the burden to prove that the basis for seeking sanctions to a preponderance of the evidence. See Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 778-81 (7th Cir. 2016).

         Here, defendants have raised legitimate concerns about the authenticity of the food logs prepared and submitted by plaintiff. In January 2008, Smith's doctor recommended that Smith start keeping a food log to help him determine the foods that triggered his Irritable Bowel Syndrome (IBS). During his May 9, 2019, deposition, Smith testified that he did keep such a food log, but that his cousin, Rashida Williams, possessed it and was in the process of sending it to him. (Smith Dep. (dkt. 91) 109-10.) On May 20, 2019, defendants served a discovery request on Smith requesting all of his food logs. Smith took so long to produce the logs that the court had to extend defendants' summary judgment reply deadline multiple times.

         Smith finally produced the logs on August 15, 2019. That same day, defendants served Smith's counsel with follow up interrogatories, asking in Interrogatory Request No. 7 for Smith to explain his delay. (See Anstaett Decl. Ex. 1 (dkt. 153-1).) Smith's response deadline was September 16, 2019. Defendants filed their motion for sanctions on August 21, 2019, without waiting for Smith to respond to that interrogatory and without notifying Smith's counsel.

         Smith filed his opposition brief on September 5, 2019, and his counsel submitted Smith's unverified response to the August 15 discovery requests. (See Anstaett Decl. Ex. 1 (dkt. 153-1) 6-7.) Smith's counsel explains that while Smith agreed to the drafted responses over the phone, he had not verified them as of September 5. In that response, Smith provides a number of reasons for his delayed production of the food log. First, Smith explains that on June 11, 2019, Smith was sent to restrictive housing. Smith was in segregation for one day, but during that day, two things happened. First, the mail room received the 2008-2011 food log from Williams, but sent it back to her because Smith was in segregation. Second, that day, all of Smith's materials in his cell, including the portions of his food log in his possession, were confiscated and mixed up in such a way that he had to go through his materials page-by-page to put them back together.

         These yet-to-be-verified representations raise questions about Smith's truthfulness and are rife with potential factual disputes. For instance, Smith's claim that he was placed in segregation on the exact date that the mail room received his food logs back from Williams strains credulity. Additionally, Smith's response doesn't explain when he eventually received the portion of the food log Williams was sending, just that it was a “couple of weeks” after it was returned to her. Perhaps Smith could explain all of this if asked to do so. Defendants, however, filed their motion without asking for more followup.

         Defendants's motion is based on more than just Smith's delay. They also contend that the food log (Ex. 127 (dkt. 146) 13-168) has been fabricated because (1) the log entries appear “too uniform to have been created in real time over the past eleven years, ” and (2) Smith's 2010 log places Ramadan on the wrong dates. This, contend defendants, could not have happened if Smith had prepared the log at the time.

         As for the uniformity of the food log, there are factors supporting defendants' suspicions, but none is telling enough to cause this court to conclude that Smith must have fabricated his entries. For instance, it is remarkable that from January 2008 through June, 2019, Smith seems to have used the same blue pen to make his entries: the line width and hue of the ink are uncannily similar over this 11½ year span. On the other hand, it may be that WCI has provided the same brand and model of pen to inmates during this entire period, so that one should expect decades of uniformity. To the same effect, one could point to the increasing terseness of Smith's entries, which might suggest that Smith was running out of steam toward the end of his fabrication project; on the other hand, there also are gaps and terse entries in the middle years, undermining the strength of this inference.

         A redder flag (to the court, if not the defendants) is that many of Smith's entries have nothing to do how his meals are affecting him. Instead, Smith reports interactions he had with Waupun staff, the status of his inmate complaints, that Waupun staff weren't allowing him to practice his religious beliefs, and that something is wrong with the water. Here are a few examples:

August 3, 2009: “Sent letter to Scrubbe on Ramadan bag meals for this year.” (Ex. 127 (dkt. 146) 51.)
August 4, 2009: “Scrubbe responded telling me not to fast, I don't have to, she's sooo wrong. She really doesn't give a dam. I'm not sick when the fast starts and I'm not near death.” (Id.)
September 22, 2009: “The Eid[-ul Fitr feast] was so bogus, wrong day . . . sat in chair whole time, no one ate . . . none Halal food. It was ...

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