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Howard v. Meli

United States District Court, E.D. Wisconsin

November 22, 2019



          Nancy Joseph United States Magistrate Judge.

         On October 9, 2019, U.S. District Judge Pamela Pepper referred this case to me to handle pretrial proceedings. (Docket # 62.) Joshua Howard, a Wisconsin state prisoner, filed this pro se civil rights case under 42 U.S.C. § 1983. He alleges that the defendants transferred him from Waupun Correctional Institution (WCI) to Green Bay Correctional Institution (GBCI) in 2017 in retaliation for helping inmate Kristopher Torgerson with a civil case. (Docket # 15 and Docket # 16.) On March 22, 2019, the defendants filed a motion for summary judgment. (Docket # 25.) Howard has not responded to the motion because of discovery-related issues. Howard has filed a motion to compel and a supplemental motion to compel. (Docket # 47 and Docket # 49.) The defendants have filed a motion for protective order as to Exhibits A and B, and a motion to strike Exhibit C. (Docket # 57.) I will address each in turn.

         1. Howard's Motion to Compel (Docket # 47) and Defendants' Motion for Protective Order (Docket # 57)

         Howard filed a motion to compel requesting the court order the defendants to produce the following materials: (1) any emails related to inmate Torgerson's criminal case which mentioned Torgerson and Howard; (2) any materials related to the 2016 inter-institutional transfer of Howard including, but not limited to, the email attachment from DOC-051, any documents generated from Torgerson's ICRS complaint about the transfer, the cell hall logs from the transfer date if they reference Howard, and any emails where the defendants reference the transfer; and (3) any materials related to the transfer of inmates Ralph Armstrong, Tobarus Porter, and Yusef Williams from GBCI. (Docket # 47 at 13.)

         1.1 Emails Mentioning Howard and Inmate Torgerson

         Howard submitted a discovery request to the defendants to “produce all documents and e-mails which mention or discuss both inmate Kristopher Torgerson and the plaintiff.” (Docket # 47 at 5.) The defendants objected to the request as overly broad, unduly burdensome, and not proportional to the needs of the case.[1] (Id.) The defendants also objected to the request on the grounds that “the only correspondence involving Plaintiff and inmate Kristopher Torgerson which Defendants were privy to which was located in our search pertains to inmate Torgerson's criminal case and is irrelevant to the claims Plaintiff was allowed to proceed on in this case.” (Id.)

         In his motion to compel, Howard contends that emails about inmate Torgerson's criminal case may be relevant because the prosecutor in Torgerson's criminal case (Assistant Attorney General Richard Dufour) stated in his declaration that he found out “Howard was helping Torgerson and/or a friend in some civil matters as a jailhouse lawyer.” (Id. at 6.) Howard concludes that AAG Dufour and the defendants may have discussed Howard's assistance in Torgerson's lawsuit against the defendants before he was transferred. (Id.)

         The defendants contend the court should deny Howard's motion to compel because in the course of responding to his voluminous discovery requests, they have provided Howard with all the documents to which he is entitled. (Docket # 50 at 1.) They state that in responding to Howard's motion to compel, they found one additional responsive email which was missed in the prior review of the 2, 611 emails. (Docket # 50 at 2.) The defendants state that this email references Torgerson and Howard and their “case” but does not describe the case as criminal or civil, but, nevertheless, its content is not relevant to Howard's lawsuit. (Id. n.2.) The defendants filed this email under seal. (Docket # 51-1, Exhibit A.) The defendants also state that there are a handful of emails which pertain to Howard's involvement in inmate Torgerson's criminal case which are responsive to Howard's discovery requests, but irrelevant to his lawsuit. (Docket # 50 at 3.) They also filed these emails under seal. (Docket # 51-2, Exhibit B.)

         1.2 Emails Related to Howard's Cell Hall Transfer

         Howard seeks emails, cell hall logs, and any documents generated from inmate Torgerson's ICRS complaint related to Howard's October 2016 cell hall transfer at WCI. (Docket # 47 at 6-9.) Howard states that the week before inmate Torgerson's civil case (the case that Howard helped him with) was “formally filed, ” the defendants moved Howard to the North Cell Hall, where his only contact with Torgerson was through the mail, which the defendants monitor. (Docket # 47 at 6-7.) The defendants objected because this transfer within WCI is irrelevant and outside the scope of the claims in this case. (Docket # 50 at 3.) In discovery requests, Howard replied to the objection and argued that the cell hall transfer occurred shortly after Howard e-filed Torgerson's civil case and, based on the timing, Howard believed that the filing of the lawsuit is what caused the defendants to move Howard away from inmate Torgerson. (Docket # 47 at 7.) In reply to Howard's request for cell hall logs, the defendants explained that inmate Torgerson's lawsuit was not screened until December 1, 2016, almost four months after the cell hall transfer. (Docket # 47 at 8.)

         Howard contend that the documents he requested are relevant and likely to lead to the discovery of admissible evidence of prior attempts to derail his assistance in an action against the defendants and/or evidence that they were aware of the assistance prior to ordering his transfer to GBCI. (Docket # 47 at 10.) The defendants contend that they would not have been made aware of the lawsuit until after the case was screened in December 2016, almost four months after the cell hall transfer. (Docket # 50 at 3.) They state that given this chronology, the transfer within WCI could not have been motivated by Howard's filing of inmate Torgerson's lawsuit. (Id. at 4.) The defendants contend that the documents relating to the cell hall transfer are not relevant and that, to assist the court in ruling on the motion, they have provided under seal the emails that Howard seeks (Docket # 51-3, Exhibit C) which show the transfer has no relevance to this lawsuit (Docket # 50 at 4).

         1.3 Documents Pertaining to Other Inmates

         Howard states that in response to discovery requests, defendant Meli stated that he wanted Howard transferred out of WCI because during his fifteen-year stay there, he had become very familiar with staff, other inmates and the daily operation of the institution. (Docket # 47 at 10.) Howard then requested specific information related to three inmates who were allegedly transferred for similar reasons, such as their Program Reclassification Committee paperwork and staff emails discussing the other inmates' transfers. (Id. at 10-11.) The defendants objected to the requests as overly broad, unduly burdensome, confidential, disproportional to the needs of the case, and irrelevant. (Id. at 11.)

         In his motion to compel, Howard contends that the defendants' stated reason for transferring him to GBCI is pretext and he claims that the only way he can prove that the defendants' reason for transferring him was pretextual is by showing that the three inmates identified by defendants were not transferred for the reasons offered just as he was not transferred for that reason. (Id.) The defendants contend that the details surrounding these other inmates is not relevant to why Howard was transferred and that they properly objected to the requests. (Docket # 50 at 4.)

         1.4 Howard's Reply

         In his reply, Howard contends that the court should order the defendants to disclose the 2, 611 Howard-related emails (referenced above at pages 2-3, n.1). According to Howard, based on the number of emails and the length of time the defendants have worked at WCI, the defendants sent an average of 435 Howard-related emails per year during the five-year period before his transfer to GBCI. (Docket # 56 at 2-3.) He states:

Even if these emails fail to directly implicate the defendants they show that their observations of the plaintiff was extensive and the plaintiff can use the more detailed emails and the sheer volume to demonstrate that given their seeming fixation on the plaintiff, it would be unlikely that they remained unaware that the plaintiff spent most of 2016 huddled up with Torgerson, preparing the ...

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