Henderson v. Jess, 18-cv-713-jdp
| Decision Date | 09 July 2021 |
| Docket Number | 18-cv-713-jdp |
| Parties | TITUS HENDERSON, Plaintiff, v. CATHY A. JESS, KRISTEY JELLE, VICKI SEBASTIAN, SUSAN LOCKWOOD-ROBERTS, DOE PRES. CORRECTION EDUC. ASSOC., VICKI J. MARTIN, MICHAEL L. BURKE, DARNELL E. COLE, and DOE PRES. UNIV. OF WIS. SYSTEM, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Plaintiff Titus Henderson, appearing pro se, alleges that state and private officials developed college correspondence courses for prisoners that discriminated against him based on his age: the programs were limited to inmates age 35 or under. Henderson is proceeding on equal protection claims under the Fourteenth Amendment to the United States Constitution. The parties have filed several motions that I will address below.
Henderson has filed a motion to compel discovery, Dkt. 78, seeking responses from three sets of defendants.
Henderson seeks to compel the Wisconsin Department of Corrections (DOC) defendants to disclose several types of documents, including the contract for the "College of the Air" program from 2007 to 2015, Henderson's correspondence-course screening forms from 2009 to 2015, copies of exhibits from Henderson's complaint for the purpose of authenticating them, the DOC's Rehabilitation Act and Americans with Disabilities Act certification, documentation of loans or grants used to fund the College of the Air program, and copies of grievances he filed about the program.
The DOC defendants initially responded that Henderson did not attempt to confer with counsel before filing his motion, as required by Federal Rule of Civil Procedure 37(a)(1). The court granted their later motion to strike that portion of their response as incorrect. Dkt. 118. Counsel states that she had neglected to review the transcript of Henderson's deposition, which shows that the parties indeed discussed having the DOC defendants supplement their discovery responses. See Dkt. 83 (Henderson's deposition); Dkt. 117 (counsel's declaration). So the DOC defendants concede that Henderson did confer with them. Henderson asks for sanctions against counsel for lying about the fact that Henderson had conferred with her, but counsel corrected the error, which one may do to avoid sanctions under Federal Rule of Civil Procedure 11. In any event, Henderson does not persuasively show that counsel knowingly made a false statement, as opposed to a simple error. And as I explain below, that error did not affect the discovery process here: Henderson fails to show that he is entitled to any documents that DOC defendants actually possess. So he isn't entitled to discovery sanctions.
The DOC defendants address the substance of Henderson's motion to compel by stating that they already gave Henderson all the relevant documents they possess. They produced the grant documentation for the College of the Air program, but they don't have a copy of Henderson's contract or the screening forms that Henderson seeks. They also note that Henderson dd not specifically ask for a copy of his contract or the screening forms in discovery. They do not have copies of any of the exhibits that Henderson sought to be authenticated, butdefendant Jelle states that she has personal knowledge of the authenticity of two "Interview/Information Request" forms, so the DOC defendants stipulate to the authenticity of those documents. And they have neither of the two grievances Henderson seeks: they no longer possess the 2009 document because all pre-2011 grievance records have been destroyed, and the 2018 grievance number Henderson provides does not match any grievance in the DOC's system. The DOC defendants say that they should not have to disclose their Rehab Act and ADA certification, and I agree: I did not allow Henderson to proceed on claims under these theories and there isn't any reason to think that this certification would be relevant to his age-based equal protection claims. Because the DOC defendants' discovery responses are adequate, I will deny Henderson's motion to compel against this set of defendants.
Henderson seeks to compel discovery from the defendants associated with Milwaukee Area Technical College (MATC). His motion is technically deficient because both his discovery requests and his motion to compel were filed when there were no MATC-related parties active in the case. Henderson initially brought claims against Milwaukee Area Technical College (MATC) and the John or Jane Doe MATC president. I dismissed the college from the case in March 2020, Dkt. 53. The Doe president, later identified as multiple defendants—current or former presidents Vicki J. Martin, Michael L. Burke, and Darnell E. Cole—did not join the case until April 2021 when they waived service of the complaint. Henderson served his discovery requests and filed his motion to compel during the period after MATC had been dismissed and the Doe president was still unidentified. I cannot grant a motion to compel discovery against parties who were not part of the case at the time of the requests or even the motion to compel itself. So I will deny this part of Henderson's motion to compel.
Nonetheless, the MATC Doe presidents were identified relatively late in the proceedings and Henderson's requests should not be difficult to answer. I'll direct the now-identified MATC defendants to respond to Henderson's interrogatories and requests for production of documents as if they were newly submitted. They are free to raise objections to the requests as if they were responding to them for the first time. But for the most part, Henderson's request are fairly straightforward. When there wasn't a MATC defendant active in the case, counsel for the MATC defendants responded to Henderson's requests, objecting to interrogatories about operation of the College of the Air program and even the term "College of the Air Prog." as "undefined, vague, and ambiguous." Dkt. 78-3, at 4-5. Those are likely no longer plausible objections given the MATC defendants' detailed discussion of the College of the Air program in their summary judgment motion. One set of requests that they do not need to respond to is Henderson's requests about "black-to-white inmates enrolled in College of the Air." Id. at 7, 13. This case isn't about racial discrimination so these requests aren't relevant.
Henderson also seeks to compel discovery from Susan Lockwood-Roberts, the current president of Correctional Education Association, Inc. (CEA). But Henderson doesn't provide Lockwood-Roberts's discovery responses or explain the deficiencies with those responses. So I will deny his motion to compel regarding Lockwood-Roberts.
In my previous order, I gave Henderson a final chance to send discovery requests to defendants to identify the remaining Doe defendants: the UW System and CEA presidents during the time at issue in the case. Dkt. 76.
Henderson has filed a proposed supplement to the complaint, Dkt. 87, in which he identifies the Doe UW defendants: former UW System Presidents Kevin P. Reilly, Richard J. Telfer, and Raymond W. Cross; and former UW Board of Regents Presidents Mark J. Bradley, Charles R. Pruitt, Michael J. Spector, Brent P. Smith, and Michael J. Falbo. I will grant Henderson leave to amend his complaint to include these officials. Counsel for the UW System have already filed a motion for summary judgment on behalf of these defendants.
Henderson does not identify Doe CEA presidents in his supplement, so I will dismiss the Doe CEA president from the case.
In his supplement, Henderson also appears to be attempting to add new federal defendants, former United States Attorneys General Eric Holder and Michael Mukasey and a new cause of action under the Higher Education Opportunity Act. But I've previously explained that Henderson cannot proceed on equal protection Bivens claims against federal officials. Dkt. 53, at 8. And the Higher Education Act of 1965 (HEA), 20 U.S.C. § 1070 et seq., does not provide for a private cause of action, even after amendments like the 2008 Higher Education Opportunity Act. McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1221 (11th Cir. 2002) (collecting cases); Paine Coll. v. S. Ass'n of Colleges & Sch. Comm'n on Colleges, Inc., 342 F. Supp. 3d 1321, 1332 (N.D. Ga. 2018) (). So I will not allow Henderson to amend his complaint to include claims against Holder or Mukasey.
Henderson and each set of defendants have filed motions for summary judgment. The court set a combined briefing schedule for all of the summary judgment motions, with the next round of briefing being Henderson's opposition to defendants' motions. Henderson has filedmotions for extension of time...
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