Walter Smith v. Sandra Hautamaki

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 21, 2022 *
Decided August 11, 2023
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-2004
WALTER SMITH,
Plaintiff-Appellant,
v.
SANDRA HAUTAMAKI, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 14-cv-796-slc
Stephen L. Crocker,
Magistrate Judge.
No. 21-2005
WALTER SMITH,
Plaintiff-Appellant,
v.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 18-cv-189-slc
Stephen L. Crocker,
* We have agreed to decide these cases without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. F ED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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Nos. 21-2004 & 21-2005 Page 2
THERESA MURPHY, et al.,
Defendants-Appellees.
Magistrate Judge.
O R D E R
Walter Smith, a Wisconsin prisoner who practices Islam, sued various prison
officials because he allegedly became sick from the meals he was given at Waupun
Correctional Institution to accommodate his religious beliefs. Smith alleged that these
conditions violated his rights under the First and Eighth Amendment and the Religious
Land Use and Institutionalized Persons Act. See 42 U.S.C. § 2000cc-1. He also alleged
another Eighth Amendment violation: that the water at Waupun was contaminated
with heavy metals that made him sick. The district court severed Smith’s claims into
separate suits and later dismissed both cases as a sanction based on its finding that
Smith fabricated evidence. We affirm.
Background
After the magistrate judge (presiding with the parties’ consent, see 28 U.S.C.
§ 636) severed the lawsuit and screened the amended complaint in each under 28 U.S.C.
§ 1915A, Smith proceeded with the two suits. The first concerned the adequacy of the
halal diet and the Ramadan meals Smith received from 2008 to 2011 as well as the
availability of proper foods for the 2009 Eid-ul-Fitr feast. The second suit alleged that
Waupun failed to provide him with safe drinking water. Counsel was recruited for
Smith’s religious-meals case.
I. Procedural history
In the religious-meals case, Smith sat for a deposition in May 2019. He testified
that his irritable bowel syndrome was made worse by the meals he received for his
religious diet. And he described a food log that he had been keeping since 2008, when
his doctor told him to do so to help identify foods that aggravated his symptoms. Smith,
who by then had been moved to a different prison, also testified that the part of the log
from the relevant time at Waupun was with his cousin, Rashida Rogers (formerly
Williams). Smith said that he had sent her the log because prison staff destroyed some
of his property and he had wanted to protect the log. He testified that the rest of the log
was in his cell.
Shortly after the deposition, the defendants made a document request under
Rule 34(a)(1)(A) of the Federal Rules of Civil Procedure for copies of “any and all food
logs” Smith had “ever started or maintained since being in prison.” Smith took almost
three months to provide the log to the defendants.

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Nos. 21-2004 & 21-2005 Page 3
After receiving it, the defendants moved for the sanction of dismissal, arguing
that Smith had fabricated the log. The log, in the form of a calendar, lists Smith’s
symptoms and other information written under each day (generally each page covers
two weeks). As their strongest evidence of fabrication, the defendants pointed out that
the dates for the holy month of Ramadan in 2010 were off by nine days, which, they
maintained, could not have happened if Smith was recording his meals and symptoms
in real time. (For instance, the log states that Smith started receiving Ramadan meals on
August 2, 2010, but Waupun started providing Ramadan meals on August 11.)
Moreover, at Smith’s deposition, the parties had discussed the dates of Ramadan in
every year but 2010; therefore, they inferred, he could use his notes to backdate the log
for those years, but not for 2010. The defendants also suggested that the log looked too
uniform to have been created over an 11-year span.
Smith responded to the sanctions motion with several explanations. He
attributed the three-month delay in producing the logs to the fact that he was waiting
for Rogers to mail him the part of the log that was in her possession. This took extra
time, he explained, because when Rogers first mailed it to him, the prison returned it to
her and Smith did not find out until later because he had been in segregation for a day.
Rogers then waited a few weeks to re-mail the log because she was traveling. Further,
Smith explained, prison officials had searched his cell and mixed up the pages of his
log, so that he had to spend time putting it back together. As for the 2010 Ramadan
dates, he did not definitively say how he came up with them, but said he could have
gotten them in a number of ways. He included two documents as support: a to-do list,
allegedly from October 2010, in which he had noted that the Ramadan dates were
wrong in his “ledger,” and a letter he sent to prison officials in June 2010 about his
observance of Ramadan. There, he incorrectly stated that Ramadan would be from
August 3 to September 2. He said (inaccurately) that the date in that letter was “the
same date [he] used in the food logs.” Smith also submitted a declaration in which he
attested that he had not fabricated the log.
The court denied the sanctions motion, explaining that there were legitimate
concerns about the log’s authenticity, but dismissal was not appropriate because the
defendants had not presented enough evidence, and they had not notified Smith’s
counsel in advance about their motion or given Smith a chance to explain. And the
court noted that neither party had relied on the logs in moving or responding to the
summary-judgment motion.
Three months later, the defendants renewed their motion for sanctions, this time
filing it in both cases. They had since conferred with opposing counsel in the religious-

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Nos. 21-2004 & 21-2005 Page 4
meals case, and Smith had filed the log as evidence in his (pro se) contaminated-water
case. The defendants argued that Smith had lied about who had possession of the food
log, and that they had new information showing he had sent some blank and completed
pages to Natalie Johnson, his friend (and not to Rogers).
II. The evidentiary hearing
The court held an evidentiary hearing on November 18 and December 10, 2020.
The testimony focused mainly on the 2010 Ramadan dates, whether Smith had enlisted
Johnson to help him fabricate the log, and whether Smith had ever sent the log to
Rogers. Smith and Rogers testified by videoconference. Because Johnson died before the
hearing, the parties played recorded phone calls between Smith and Johnson and filed
the transcript of her deposition.
Regarding the incorrect Ramadan dates, Smith testified that he had
miscalculated them at the time—not erred when creating the log for purposes of these
lawsuits. He said that he estimated when Ramadan began by subtracting 10 days from
the previous year’s dates. But he mistakenly subtracted the days twice. He was then
called upon to explain how he had not noticed the Ramadan dates were incorrect even
though the other August entries were correct. He testified that he was using a separate
notebook to keep track of his food and symptoms in real time and that he had a
separate pile of documents like medical slips or complaints. He later (sometimes not
until the end of the month) transferred the information to the calendar log. He said that
he labeled his notebook using the days of Ramadan (i.e., Ramadan Day 1, Ramadan
Day 2), but he switched back to Western calendar dates once Ramadan ended.
The defendants presented recordings of several phone calls between Smith and
Johnson. The first occurred less than two weeks after Smith was deposed, and two days
after the defendants asked Smith to produce his food log in discovery. Smith told
Johnson he needed her to copy something for him “involving [his] lawsuit.” Smith sent
Johnson blank and completed calendar pages for her to photocopy. Smith testified that
he was asking Johnson to make the copies for a different suit—filed several months
later—that involved issues that overlapped with his religious-meals case. The
defendants played two other phone calls between Smith and Johnson. In the first, Smith
told Johnson that she had made the copies incorrectly, but there was time to resend
them because his attorney knew he needed time. While testifying, Smith conceded he
had been talking about his attorney in this (the religious diet) suit. In the other call,
Johnson told Smith that she had sent the corrected copies, and Smith stated that he
wanted them for the “the Attorney General” who was “arguing for the defendants in

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Nos. 21-2004 & 21-2005 Page 5
[his] lawsuit.” On the stand, Smith conceded that he had been talking about defense
counsel in this suit.
Rogers’s testimony generally supported Smith’s account; she testified that,
around 2012, Smith sent her part of his food log and that it was returned to her when
she first mailed it back to Smith. Her recollection was spotty (she admitted she had
trouble recalling some details), however, and her testimony at times conflicted with
Smith’s. For instance, she testified that she communicated with Smith around five times
over roughly 20 years, while Smith said they spoke every two to three months from
2007 to 2012.
After post-hearing briefing, the district court dismissed both cases under its
inherent power. See Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 (1991); Ramirez v. T&H
Lemont, Inc., 845 F.3d 772, 776 (7th Cir. 2016). The court found that Smith had fabricated
the food log and lied repeatedly to the court and to defense counsel about it.
Analysis
Smith, now pro se, appeals the dismissal of both cases; by previous order, we
consolidated the appeals for briefing and disposition. We requested supplemental briefs
on the timeliness of the appeals and are now satisfied that the appeals are timely. We
also ordered the defendants to provide Smith with the phone recordings, which he had
been unable to review in preparing his appellate briefs. The defendants provided
transcripts of the calls, and Smith has submitted a supplemental brief, arguing generally
that the phone calls contradict the district court’s conclusions. The appeals are now
ready for our consideration.
First, Smith has not established that the district court incorrectly concluded that
he fabricated the food log and imposed sanctions erroneously. We review the district
court’s decision on sanctions for abuse of discretion and its underlying findings of fact
for clear error. See Secrease v. W. & S. Life Ins. Co., 800 F.3d 397, 401 (7th Cir. 2015).
Smith fails to show that the court clearly erred in its factual finding that he fabricated
the food log. Properly applying a preponderance of the evidence standard, see Ramirez,
845 F.3d at 781, the court determined that it was more likely than not that the log was
fabricated, in large part because of Smith’s changing story. For instance, Smith
originally attested that he had kept the “food logs contemporaneously over the course
of many years.” But at the hearing, Smith testified that he entered information into a
separate notebook and then later (sometimes weeks later) transferred the information
into his food log. This notebook was no longer in his possession and was never
mentioned until the hearing (despite the defendants’ broad discovery request for such

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Nos. 21-2004 & 21-2005 Page 6
documents). The court permissibly found this eleventh-hour explanation implausible.
See Salmeron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 794 (7th Cir. 2009) (given shifting
stories, court entitled to disbelieve latest explanation).
Smith argues that the district court improperly shifted the burden to him to
prove he had not fabricated the food log and suggests that he did not mention the
additional notebook because he was never asked about it. But as the court stated, the
defendants raised the Ramadan date discrepancies 15 months before the hearing. Yet, in
multiple responses, Smith never mentioned a separate notebook. And the court
reasonably determined that Smith’s testimony about his notetaking practices did not
explain why the Ramadan days were wrong while other August 2010 entries were
correctly dated. As further evidence of the fabrication, the court reasonably found
(citing, for instance, the timing of the calls and Smith’s references to his attorneys in this
case) that it was more likely than not that Johnson was making photocopies for Smith to
use in creating a log for this case.
The court also found that Smith was generally not credible. When a district
court’s credibility determination is based on live testimony, we will not disturb the
court’s assessment “unless it is completely without foundation.” See United States v.
Freeman, 691 F.3d 893, 900 (7th Cir. 2012) (quoting United States v. Huebner, 356 F.3d 807,
812 (7th Cir. 2004)). Here, the district court had an adequate foundation to conclude that
Smith was not credible, given, for instance, the impeachment evidence presented by the
defendants (for example, evidence that Smith had testified untruthfully about emails
with his daughter). Contrary to Smith’s argument on appeal, the district court did not
apply the fallacy of falsus in uno, falsus in omnibus. Instead, it permissibly found based
on other evidence that he was lying about material points. See United States v. Edwards,
581 F.3d 604, 612 (7th Cir. 2009).
Nor did the court clearly err in discrediting Rogers’s testimony and concluding
that she never possessed the original log. The court pointed to her spotty recollection
and the inconsistencies with Smith’s testimony, her incentive to support Smith (he had
promised her money from this lawsuit), and the court’s conclusion that Johnson, not
Rogers, was helping Smith. See Coleman v. Lemke, 739 F.3d 342, 352 (7th Cir. 2014)
(credibility undermined in part by inconsistencies and bias).
True, Smith presented some evidence to support his version of events, such as
the June 2010 letter, his inmate complaint and recorded statements about his legal
materials being mixed up, and Johnson’s deposition testimony (including that she had
been copying blank calendar templates for Smith since 2014). But there was sufficient
evidence for the court to conclude that he fabricated the log, and the court’s choice

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Nos. 21-2004 & 21-2005 Page 7
between “two permissible views” of evidence “cannot be clearly erroneous.”
See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). And, contrary to Smith’s
arguments in his supplemental brief, nothing in the phone conversations so undermines
the district court’s finding as to make it clearly erroneous. He simply urges us to
interpret his statements differently than the district court, which is not our role.
Having determined that Smith fabricated evidence, the district court did not
abuse its discretion in dismissing both cases. Sanctions “must be proportionate to the
circumstances.” Donelson v. Hardy, 931 F.3d 565, 569 (7th Cir. 2019). In determining what
is proportionate, courts consider “the extent of the misconduct, the ineffectiveness of
lesser sanctions, the harm from the misconduct, and the weakness of the case.” See id.
Dismissal is a severe penalty, see Salmeron, 579 F.3d at 793, and here two of Smith’s cases
were dismissed. Further, the court did not explicitly consider the strength of Smith’s
cases, and its actions—letting claims proceed beyond screening, recruiting counsel in
one of them—suggest that it did not view either as weak. Cf. Donelson, 931 F.3d at 570.
Nevertheless, the district court did not abuse its discretion because a reasonable
jurist could have decided to dismiss in these circumstances. See Greviskes v. Univs.
Research Ass’n, Inc., 417 F.3d 752, 758 (7th Cir. 2005). Here, the court explained that
Smith had not just submitted evidence he knew was false, but he had fabricated the
evidence himself and repeatedly lied about it to the defendants and the court.
Submitting false evidence “to secure a court victory” is an abuse of the judicial process
that “undermines the most basic foundations of our judicial system.” See Secrease,
800 F.3d at 402. And although Smith may not have (yet) relied on the log in this (the
religious-meals) case, he did falsely testify about the log in his deposition for this case,
and he submitted it as evidence in his contaminated-water case. Additionally, sorting
out the fabrication question took almost two years—incurring significant costs to the
judiciary and the defendants. See Rivera v. Drake, 767 F.3d 685, 686 (7th Cir. 2014).
Further, the court properly considered other sanctions, see id., but found that they
were inadequate. It concluded that a monetary sanction would be pointless because
Smith was indigent and could not pay a fine. See Secrease, 800 F.3d at 402. And it found
that excluding the log from evidence would simply return the parties to a pre-fraud
status without punishing Smith’s wrongdoing. The court observed that dismissal also
served the broader purpose of deterring others from behaving similarly. See id.
We have considered Smith’s other arguments, including those about the
evidence admitted at the hearing, but none is substantial enough to merit discussion.
AFFIRMED

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