United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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.
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
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
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 ...