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Perez v. Sullivan

December 30, 2005

EDWIN PEREZ, PLAINTIFF,
v.
BONNIE SULLIVAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Proud, Magistrate Judge

ORDER

Before the Court is plaintiff's motion to compel defendants Sanford and Potocki to provide "complete and adequate responses" to plaintiff's interrogatories and request for production. (Doc. 43). Plaintiff also requests an award of $46.60 in costs associated with filing the subject motion. (Doc. 43, p. 3). Plaintiff has also submitted a brief and numerous exhibits in support of his motion. (Doc. 44). Defendants Sanford and Potocki have field a response, generally standing by objections asserted to plaintiff's discovery request. (Doc. 45). Plaintiff's reply indicates he has nothing else to add to his argument. (Doc. 46).

The Court will address each disputed discovery request in turn, keeping in mind that the only issues remaining in this case are whether Sanford and Potocki retaliated against plaintiff for filing a grievance by verbally harassing him and filing two false disciplinary reports against him. (Docs. 15 and 18). More specifically, plaintiff alleges that the two disciplinary tickets issued by defendant Potocki were in retaliation for a grievance plaintiff had lodged regarding alleged unsanitary food handling by Potocki. The first ticket stemmed from an incident where plaintiff purportedly refused to leave the shower and return to his cell as ordered by Potocki. Defendant Sanford was a corroborating witness to the events. Plaintiff was found "guilty" of disobeying an order and being insolent. The second ticket issued by Potocki was for possession of contraband-- ink pen barrels found secreted in the air vent of plaintiff's cell. Plaintiff was found "guilty" of possessing contraband.

"To prove such a retaliation claim, the inmate must show that his own activity was constitutionally protected, and that his conduct was a factor motivating the prison officials challenged actions. See Babcock v. White, 102 F.3d 267, 275 (7th Cir.1996)." Irby v. Siedschlag, No. 05-2985, 2005 WL 3479210, *2 (7th Cir. Dec. 20, 2005). That means plaintiff must establish that his filing a grievance was a constitutionally protected act, not that the disciplinary tickets were in violation of the Constitution or otherwise invalid.See generally Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005). The Court appreciates the value of proving that the disciplinary charges lodged against plaintiff were baseless or flawed in some way, although Heck v. Humphrey, 512 U.S. 477 (1994) and Okoro v. Callaghan, 324 F.3d 488 (7th Cir. 2003), prohibit using a Section 1983 civil rights action to collaterally attack an administrative adjudication that forms a basis for the inmates continued confinement*fn1, and may pose a legal impediment to such a collateral attack.

First Set of Interrogatories Directed to Sanford

Nos. 12 and 13

Interrogatory No. 12 seeks information regarding any complaints lodged against Sanford, including but not limited to institutional conduct or disciplinary files at Tamms Correctional Center or any other facility, grievances, lawsuits and responses to such documents. Interrogatory No. 13 seeks specific identification of documents responsive to Interrogatory No. 12. Sanford objects that the information sought is irrelevant and seeks confidential information. However, Sanford responds that he has not been disciplined for inmate-related incidents.

Federal Rule of Evidence 404(b) does not permit the introduction of evidence of other crimes, wrongs or acts in order to show conformity therewith. However, such evidence may be used for other purposes, such as to show motive, plan or lack of mistake. Plaintiff indicates that he believes such evidence will lead to the discovery of witnesses, and will show a pattern of behavior. The Court cannot fathom how witnesses regarding other similar incidents can fit into one of the Rule 404(b) exceptions. As written, this discovery request is overly broad and beyond the scope of relevance in this case. Therefore, defendant's objection based on relevancy is sustained.

First Request for Production Directed to Sanford

Nos. 14 and 15

Requests 14 and 15 seeks Sanford's complete disciplinary history, and documentation of any and all complaints lodged against Sanford, including but not limited to institutional conduct or disciplinary files at Tamms Correctional Center or any other facility, grievances, lawsuits and responses to such documents, including all documentation prepared by the Attorney General's Office or private counsel. Sanford objects based on relevance, confidentiality and attorney- client privilege. For the reasons set forth above regarding Interrogatories 12 and 13, defendant Sanford's objections to relevance are sustained. In addition, as drafted, these requests would improperly intrude on the attorney-client privilege.

Second Set of Interrogatories Directed to Sanford

No. 3

Interrogatory 3 seeks a description, in as much detail as possible, of the security protocol and restraint and removal procedures at Tamms for situations where inmates refuse to come off of the yard or out of the shower. Defendant objects to the relevance of the information, and asserts security concerns. Plaintiff explains that this ...


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