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Rainey v. Forster

United States District Court, E.D. Wisconsin

January 10, 2020

KELLY RAINEY, Plaintiff,
v.
CHASE FORSTER, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION AND REVISED MOTION FOR SUMMARY JUDGMENT (DKT. NOS. 82, 102) AND DISMISSING CASE

          HON. PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.

         The plaintiff, who is representing himself, filed this lawsuit under 42 U.S.C. §1983. Dkt. No. 1. On July 31, 2018, the court screened the complaint and allowed the plaintiff to proceed against an unidentified Kenosha County Sheriff's Deputy on allegations that the deputy fondled the plaintiff's chest and pinched his nipple in an inappropriate fashion while conducting a pat-down search. Dkt. No. 14 at 4-5. The court ordered the plaintiff to identify the deputy by September 28, 2018. Id. at 6.

         On October 17, 2018, Magistrate Judge William Duffin (to whom the court had referred the case to handle pretrial matters) granted the plaintiff's motion to identify the deputy as defendant Chase Forster. Dkt. No. 30. The defendant filed an answer on November 28, 2018. Dkt. No. 37.

         This is where things began to go sideways. On February 15, 2019, Judge Duffin ordered the defendant to provide the plaintiff with a video showing the defendant performing the pat-down search of the plaintiff. Dkt. No. 58. A little more than a week later, the defendant objected to Judge Duffin's order. Dkt. No. 59. He explained that, based on the plaintiff's recent filings, he was no longer confident that he was the person who had performed the search at issue. Id. The defendant asserted that he was one of two deputies who had transported the plaintiff from the Kenosha County Pretrial Facility (also referred to as the Kenosha County Jail) to the Kenosha County Detention Center on December 17, 2017, for a hearing. Dkt. No. 59 at 1. According to the time alleged in the complaint, the plaintiff was at the pretrial facility when the search happened. Id. The defendant noted that he and the other deputy had transported the plaintiff to the detention center shortly after the time alleged in the complaint. Id.

         The defendant further explained that, in response to the plaintiff's discovery requests, Kenosha County had identified him as the deputy who performed the pat-down search at the pretrial facility. Dkt. No. 59 at 2. The plaintiff insisted in subsequent filings, however, that the search happened at the detention center, not the pretrial facility. Id. The defendant explained that if the complained-of search happened at the detention center, it was unlikely that he was the one who performed the search. Id.

         About a week after the defendant filed his objections, the plaintiff sought to correct the time he had alleged that the search had occurred. He was adamant that the search occurred at the detention center and that the defendant was the one who had performed the search. Dkt. Nos. 64, 65.

         About four months later, on July 3, 2019, the defendant filed a motion for summary judgment, which he amended on October 21, 2019 to include copies of various procedural rules (he did not amend his brief in support or his proposed findings of fact). Dkt. Nos. 82, 102. The defendant argued, in part, that the plaintiff was mistaken as to the identity of the person who performed the allegedly improper search. Dkt. No. 83. He explained that he did not search the plaintiff at the detention center on December 20, 2017. Dkt. No. 90 at ¶33. In response, the plaintiff filed a “motion to amend his complaint so plaintiff can identify the deputy ‘who' sexual abuse plaintiff on date December 20, 2017.” Dkt. No. 94.

         Judge Duffin held a telephone status conference on September 5, 2019 to address the plaintiff's motion and to discuss the possibility that the plaintiff had identified the wrong person as the deputy who searched him. See Dkt. No. 98. During the hearing, the plaintiff stated that he believed Forster was the name of the person who had searched him. Id. He also insisted that he would recognize the person who searched him if he saw him again. Id. To help the plaintiff identify the person who searched him, Judge Duffin asked the defendant's lawyer to show the plaintiff pictures of the two officers who transported him from the pretrial facility to the detention center, a picture of the intake officer working at the detention center when the plaintiff arrived (Officer Deboer), and pictures of the two officers who transported the plaintiff from the detention center back to the pretrial facility. Dkt. No. 98 at ¶k; Dkt. No. 104 at 2.

         On October 17, 2019, Judge Duffin held a follow-up telephone status conference. See Dkt. No. 101. The plaintiff explained that he was shown five pictures. Id. at 2; Dkt. No. 104 at 2. There were no names on the pictures, but he identified one of them as the person who improperly searched him. Dkt. No. 101 at 2; Dkt. No. 104 at 2. He was confident that the picture he chose was of the defendant. Id. It was not.

         The defendant's lawyer explained that someone (it's not clear who) showed the plaintiff five pictures: the two deputies who transported the plaintiff to the detention center, the intake officer who was at the detention center when the plaintiff arrived, and the two deputies who transported him back to the pretrial facility. Dkt. No. 101 at 2; Dkt. No. 104 at 2. According to the defendant's lawyer, the plaintiff chose the picture of Deputy Coultrip, one of the deputies who transported the plaintiff back to the pretrial facility. Id. Dkt. No. 101 at 2; Dkt. No. 104 at 3. Deputy Coultrip was not at the detention center at time the plaintiff alleges the search occurred. Id.

         According to the minutes from the hearing, defense counsel asked Judge Duffin to dismiss the case. Id. at 2. The plaintiff reiterated that he was sexually assaulted and asked if he could see the pictures again. Id. Judge Duffin denied that request, and said he could not think of anything else he could do to help the plaintiff identify the individual who searched him. Id. In the written order following the hearing, Judge Duffin noted that he'd told the plaintiff at the hearing that he was “not going to let [the plaintiff] keep guessing until he happened to guess a person who was present during the transport from the jail to the detention center.” Dkt. No. 104 at 3.

         Judge Duffin set deadlines for the plaintiff to respond to the defendant's summary judgment motion and for the defendant to reply in support of his motion. Dkt. No. 104 at 4. He also explained to the plaintiff that, when he responded to the defendant's motion, he must respond to each of the defendant's proposed findings of fact, either by agreeing with each fact or explaining why he disagreed with a particular fact. Id. Judge Duffin cautioned the plaintiff that if he did not indicate whether he agreed or disagreed with a proposed fact, the court would assume that he agreed with the fact. Id.

         I. RELEVANT FACTS

         The defendant is a Kenosha County Sheriff's Deputy. Dkt. No. 90 at ¶1. On the morning of December 20, 2017, the defendant and Deputy Boldus worked conveyance, transporting inmates from one location to another. Id. at ΒΆ25. That day, they worked the noon transport, moving inmates from the pretrial facility to the detention center for hearings and moving inmates (not ...


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