Case 2:23-cv-00078-JPH-MKK Document 144 Filed 10/03/24 Page 1 of 10 PageID #:
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`ANTHONY MARTIN,
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`CHRISTOPHER HOLCOMB Lt., et al.,
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`v.
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`Defendants.
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
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`Plaintiff,
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`No. 2:23-cv-00078-JPH-MKK
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`ORDER ON MOTIONS FOR SANCTIONS
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` Currently before the Court are the parties' cross-motions for sanctions
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`and several related motions filed by Mr. Martin. For the reasons that follow,
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`the Court sets Defendants' motion for sanctions, dkt. 106, for an evidentiary
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`hearing, denies Mr. Martin's motion for sanctions, dkt. 119, and denies Mr.
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`Martin's other pending motions, dkts. 118; 137; 141; 143.
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`I.
`BACKGROUND
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`Anthony Martin alleges that he was confined under inhumane conditions
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`at Wabash Valley Correctional Facility when Defendants failed to adequately
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`maintain the prison's plumbing system and respond reasonably when sewage
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`flooded his cell. Dkt. 2 (complaint); dkt. 9 (screening order).
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`Defendants filed a motion for summary judgment, dkt. 84, and Mr.
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`Martin filed a response with designated evidence, dkts. 93; 95; 97; 98.
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`The defendants then moved for sanctions against Mr. Martin, alleging
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`that he submitted forged or altered documents in response to their motion for
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`ANTHONY MARTIN,
`
`
`
`CHRISTOPHER HOLCOMB Lt., et al.,
`
`
`v.
`
`Defendants.
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
`
`Plaintiff,
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`No. 2:23-cv-00078-JPH-MKK
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`ORDER ON MOTIONS FOR SANCTIONS
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` Currently before the Court are the parties' cross-motions for sanctions
`
`and several related motions filed by Mr. Martin. For the reasons that follow,
`
`the Court sets Defendants' motion for sanctions, dkt. 106, for an evidentiary
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`hearing, denies Mr. Martin's motion for sanctions, dkt. 119, and denies Mr.
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`Martin's other pending motions, dkts. 118; 137; 141; 143.
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`I.
`BACKGROUND
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`Anthony Martin alleges that he was confined under inhumane conditions
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`at Wabash Valley Correctional Facility when Defendants failed to adequately
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`maintain the prison's plumbing system and respond reasonably when sewage
`
`flooded his cell. Dkt. 2 (complaint); dkt. 9 (screening order).
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`Defendants filed a motion for summary judgment, dkt. 84, and Mr.
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`Martin filed a response with designated evidence, dkts. 93; 95; 97; 98.
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`
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`The defendants then moved for sanctions against Mr. Martin, alleging
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`that he submitted forged or altered documents in response to their motion for
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`
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`Case 2:23-cv-00078-JPH-MKK Document 144 Filed 10/03/24 Page 2 of 10 PageID #:
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`summary judgment. Dkt. 106; 107. Defendants further allege that Mr. Martin
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`lied in his deposition and in a declaration submitted to the Court and made
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`false representations in his response. Dkt. 107 at 3.
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`The Court ordered Mr. Martin to respond to the defendants' allegations
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`and show cause why he should not be sanctioned or, alternatively, what
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`sanctions would be appropriate. Dkt. 114.
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`Mr. Martin filed a response to the defendants' motion and the Court's
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`show-cause order, and a cross-motion for sanctions, asserting that the
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`defendants' allegations against him are false. See dkts. 117–121.
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`With their reply in support of their motion for summary judgment, the
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`defendants designated recordings of phone calls that Mr. Martin placed from
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`prison. See dkts. 130–34. Defendants contend that these records show that
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`Mr. Martin solicited false testimony to avoid sanctions. Dkt. 133 at 9–11.
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`Mr. Martin has responded with several additional motions related to
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`these submissions. See dkts. 137, 139–41.
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`The Court now directs further proceedings on Defendants' motion for
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`sanctions and rules on Mr. Martin's pending motions.
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`II.
`FURTHER PROCEEDINGS ON DEFENDANTS' MOTION FOR SANCTIONS
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`Defendants' motion for sanctions, [dkt. 106], is fully briefed. The filings
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`reveal there are factual disputes that the Court must resolve to determine
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`whether Mr. Martin fabricated, altered, or misrepresented the exhibits
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`appearing at dkt. 98, pp. 11–23, as Defendants allege. Therefore, the Court
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`schedules an evidentiary hearing on Defendants' motion for sanctions for
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`2
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`Case 2:23-cv-00078-JPH-MKK Document 144 Filed 10/03/24 Page 3 of 10 PageID #:
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`December 10, 2024. Each side will have a total of 2.0 hours to present their
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`case, inclusive of witness testimony and attorney argument.
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`In preparation for the hearing, the parties shall have until October 28,
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`2024, to file (1) witness lists identifying each witness they intend to call at the
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`evidentiary hearing, along with a brief summary of each witness's anticipated
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`testimony; and (2) exhibit lists identifying each exhibit the parties intend to
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`introduce at the evidentiary hearing. The parties shall have until November
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`25, 2024, to file any objections to the other side's witnesses and exhibits,
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`setting forth with specificity the basis for any objection.
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`Defendants' request for leave to depose witnesses whose affidavits are the
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`subjects of the phone recordings, dkt. 133 at 11–12, is denied without
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`prejudice. The testimony of those witnesses is tangential to the main issues
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`presented in the Defendants' motion for sanctions. See dkt. 107 (identifying
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`evidence that Defendants allege Mr. Martin falsified). If, however, Mr. Martin
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`identifies those individuals on his witness list, Defendants may renew their
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`motion.
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`Defendants' request for additional time to retain "an expert forensic
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`document review witness", dkt. 133 at 11–12, is denied as presented.
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`Defendants' submissions do not explain what matters such an expert would
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`address or how such testimony would be helpful to the Court's resolution of
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`Defendants' motion for sanctions. Mr. Martin's request for appointment of a
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`handwriting expert, dkt. 124 at 36, is denied for the same reasons.
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`3
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`Case 2:23-cv-00078-JPH-MKK Document 144 Filed 10/03/24 Page 4 of 10 PageID #:
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`Finally, if Defendants intend to submit evidence that the IDOC has no
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`records of the grievances in question, they must have the witness(es) whose
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`testimony supports those assertions available for cross-examination at the
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`evidentiary hearing.
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`III.
`MR. MARTIN'S PENDING MOTIONS
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`A. Motion to strike recorded phone calls
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`Mr. Martin's motions asking the Court to strike the phone recordings,
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`dkts. [137] and [141], are denied.
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`Mr. Martin asserts that the defendants wrongly obtained the phone
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`recordings after discovery closed. Dkt. 137 at ¶¶ 1–7. But there is no
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`indication that the defendants obtained the recordings through the discovery
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`process. Moreover, the phone recordings relate to affidavits submitted in
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`response to the sanctions motion, which were also created after the discovery
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`deadline. See dkt. 117 at ¶¶ 3–8. Finally, the defendants promptly disclosed
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`the evidence to Mr. Martin by filing it with their reply, thereby giving him an
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`opportunity to respond to the evidence. See dkts. 131, 133.
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`Mr. Martin further argues that the phone calls are protected by the work-
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`product privilege. Dkt. 137 at ¶ 8; dkt. 141 at ¶¶ 7–8. The defendants argue
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`that the recordings of Mr. Martin's phone calls are not privileged work product,
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`but instead records generated by his custodians in the regular course of their
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`operation. Dkt. 138 at ¶ 16. Alternatively, they argue that Mr. Martin waived
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`the privilege by making his statements on a call he knew was recorded. Dkt.
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`138 at ¶ 21.
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`4
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`Case 2:23-cv-00078-JPH-MKK Document 144 Filed 10/03/24 Page 5 of 10 PageID #:
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`The work-product doctrine does not apply to Mr. Martin's telephone
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`calls. "Codified at Rule 26(b)(3) of the Federal Rules of Civil Procedure, the
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`work-product doctrine is designed to serve dual purposes: (1) to protect an
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`attorney's thought processes and mental impressions against disclosure; and
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`(2) to limit the circumstances in which attorneys may piggyback on the fact-
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`finding investigation of their more diligent counterparts." Sandra T.E. v. South
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`Berwyn School Dist. 100, 600 F.3d 612, 621-22 (7th Cir. 2010).
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`Neither of the "dual purposes" of the work-product doctrine would be
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`served by applying it here. Mr. Martin's "thought processes" and "mental
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`impressions" are not revealed during the calls, and Mr. Martin has no greater
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`claim to access the recorded calls than Defendants do, so Defendants are not
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`"piggybacking" on Mr. Martin's work. Moreover, Mr. Martin does not dispute
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`that both he and the persons he spoke with during the calls he placed from
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`Wabash Valley were notified that the calls were being monitored and recorded.1
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`Dkt. 138 at 3-4 ¶¶ 17-20. On these facts, Mr. Martin's recorded calls are not
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`within the scope of the work-product doctrine. Cf. Mattenson v. Baxter
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`Healthcare Corp., 438 F.3d 763, 767–68 (7th Cir. 2006) ("The work-product
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`doctrine shields materials that are prepared in anticipation of litigation from
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`the opposing party, on the theory that the opponent shouldn't be allowed to
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`take a free ride on the other party's research, or get the inside dope on that
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`1 Wabash Valley carves out a limited exception for legal calls an inmate has with his
`lawyer that applies when the inmate advises prison staff that "the telephone call is to
`an attorney or legal representative." Dkt. 138 at 3-4 ¶ 18. Mr. Martin does not contend
`that this exception applies here.
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`5
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`Case 2:23-cv-00078-JPH-MKK Document 144 Filed 10/03/24 Page 6 of 10 PageID #:
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`party's strategy,...."). See Prince v. Kato, 2020 WL 7698373 *3 (N.D. Ill. 2020)
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`(recorded prison telephone calls not subject to attorney-client privilege where
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`inmates know the calls are recorded and therefore have no reasonable
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`expectation of privacy) (citing cases); United States v. Sababu, 891 F.2d 1308,
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`1329 (7th Cir. 1989) (prisoners have no expectation of privacy in recorded jail
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`calls).
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`Mr. Martin next contends that the phone calls appear on the docket out
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`of context and are barred by the rule of completeness. See dkt. 137 at ¶¶ 12–
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`13; dkt. 141 at ¶ 9; Fed. R. Evid. 106. This argument fares no better. Rule
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`106 gives Mr. Martin an opportunity to present additional evidence to place the
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`phone recordings in the proper context—not to exclude the phone recordings
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`from the record. Fed. R. Evid. 106 ("If a party introduces all or part of a
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`statement, an adverse party may require the introduction, at that time, of any
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`other part—or any other statement—that in fairness ought to be considered at
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`the same time.").
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`In sum, Mr. Martin has not identified any meritorious basis for striking
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`the recordings of the phone calls from the record.
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`B. Motion to preserve evidence
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`Mr. Martin's motion to preserve evidence, dkt. [118], is denied as
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`unnecessary. He asks the Court:
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`to order the [state] defendants to preserve from altercation and
`destruction to the originals of documents designated as evidence in
`this case, and are within the possession of the Department of
`Corrections, and or [its] facility Wabash Valley Correction Facility,
`which has Databases such as OGRE, IRIS, OCMS, OIS, and Delta,
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`6
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`Case 2:23-cv-00078-JPH-MKK Document 144 Filed 10/03/24 Page 7 of 10 PageID #:
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`its employees uses to generate,
`that the Department and
`communicate, and or store records.
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`Id. at 1 (brackets and errors in original).
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`By virtue of this litigation, Defendants have an independent duty to
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`preserve relevant records and Mr. Martin has made no showing that
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`Defendants have or are likely to breach that duty.
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`C. Motion for sanctions
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`Mr. Martin's motion for sanctions, dkt. [119], is denied without
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`prejudice. The crux of Mr. Martin's motion is that Defendants' assertions in
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`their motion for sanctions are false and supported by false declarations offered
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`in bad faith by two defendants. Dkts. 103-3; 103-6; 119 (applying Fed. R. Civ.
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`P. 56(h)). The Court already found the defendants' allegations sufficiently
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`credible to require further proceedings and their sanctions motion is fully
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`briefed. Dkt. 114. At the evidentiary hearing, Mr. Martin will have the
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`opportunity to present additional evidence opposing the motion and the
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`declarations. If the Court finds in the defendants' favor and grants the
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`sanctions motion, it will necessarily have found that their allegations and
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`testimony were not presented in bad faith. On the other hand, if the Court
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`denies the defendants' motion for sanctions, Mr. Martin may submit a renewed
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`motion for sanctions.
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`D. Motion for leave to file a sur-reply
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`Mr. Martin's motion for leave to file a surreply on the motion for
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`sanctions, dkt. [143], is denied. The local rules permit a surreply only in
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`response to a summary judgment motion and then only to respond to
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`7
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`arguments or evidence raised for the first time in the reply. See S.D. Ind. L.R.
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`56-1(d). Mr. Martin does not identify in his motion or his surreply what new
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`argument or evidence he wishes to address. Further, Mr. Martin addressed
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`newly filed evidence in his objection and motions to strike the phone
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`recordings, dkts. 137, 140, 141, so it is not clear why an additional surreply is
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`warranted.
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`E. Motion for recruitment of counsel
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`Mr. Martin asks the Court to appoint counsel to assist him in any
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`evidentiary hearing and develop evidence regarding the question of whether the
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`allegedly falsified grievances in question were ever received and logged into the
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`Indiana Department of Correction's electronic records systems. Dkt. 124 at 36.
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`Litigants in federal civil cases do not have a constitutional or statutory right to
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`court-appointed counsel. Walker v. Price, 900 F.3d 933, 938 (7th Cir. 2018).
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`Instead, 28 U.S.C. § 1915(e)(1) gives courts the authority to "request" counsel.
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`See Mallard v. United States District Court, 490 U.S. 296, 300 (1989). As a
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`practical matter, there are not enough lawyers willing and qualified to accept a
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`pro bono assignment in every pro se case. See Olson v. Morgan, 750 F.3d 708,
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`711 (7th Cir. 2014) ("Whether to recruit an attorney is a difficult decision:
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`Almost everyone would benefit from having a lawyer, but there are too many
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`indigent litigants and too few lawyers willing and able to volunteer for these
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`cases.").
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`"'When confronted with a request under § 1915(e)(1) for pro bono
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`counsel, the district court is to make the following inquiries: (1) has the
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`indigent plaintiff made a reasonable attempt to obtain counsel or been
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`effectively precluded from doing so; and if so, (2) given the difficulty of the case,
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`does the plaintiff appear competent to litigate it himself?'" Eagan v. Dempsey,
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`987 F.3d 667, 682 (7th Cir. 2021) (quoting Pruitt v. Mote, 503 F.3d 647, 654
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`(7th Cir. 2007)). These two questions "must guide" the Court's determination
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`whether to attempt to recruit counsel. Id. These questions require an
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`individualized assessment of the plaintiff, the claims, and the stage of
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`litigation. See Pruitt, 503 F.3d at 655–56.
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`The first question, whether litigants have made a reasonable attempt to
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`secure private counsel on their own "is a mandatory, threshold inquiry that
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`must be determined before moving to the second inquiry." Eagan, 987 F.3d at
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`682; see also Thomas v. Anderson, 912 F.3d 971, 978 (7th Cir. 2019) (because
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`plaintiff did not show that he tried to obtain counsel on his own or that he was
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`precluded from doing so, the judge's denial of these requests was not an abuse
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`of discretion). Mr. Martin's request does not demonstrate that he has
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`undertaken any efforts to recruit counsel on his own, so it is denied.
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`IV.
`CONCLUSION
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`The Court sets an evidentiary hearing on December 10, 2024, at 10:00
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`a.m. in Room 329, United States Courthouse, 46 East Ohio Street,
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`Indianapolis, Indiana before Judge James Patrick Hanlon.
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`The Court proposes holding the hearing in Indianapolis rather than in
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`Terre Haute. Defendants have until October 10, 2024, to file a joint statement
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`9
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`Case 2:23-cv-00078-JPH-MKK Document 144 Filed 10/03/24 Page 10 of 10 PageID #:
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`setting forth their position regarding holding the hearing in Indianapolis and
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`the specific reasons for any objection.
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`Mr. Martin's motions to strike the phone recordings, dkts. [137] and
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`[141], to preserve evidence, dkt. [118], for sanctions, dkt. [119], for leave to file
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`a surreply, dkt. [143], and request for the appointment of counsel are denied.
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`SO ORDERED.
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`Distribution:
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`ANTHONY MARTIN
`945288
`WABASH VALLEY – CF
`Wabash Valley Correctional Facility
`Electronic Service Participant – Court Only
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`All electronically registered counsel
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`10
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`Date: 10/3/2024
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