United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANT'S MOTION AND REVISED
MOTION FOR SUMMARY JUDGMENT (DKT. NOS. 82, 102) AND
PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
¶25. That day, they worked the noon transport, moving
inmates from the pretrial facility to the detention center
for hearings and moving inmates (not ...