Tate, Patrick S. v. Doe, John et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PATRICK S. TATE,
Plaintiff,
v.
JOHN DOE (CORR OFFICER),
BRUCE SIEDSCHLAG, RANDALL HEPP,
MARK SCHOMISCH, EUGENE DEVRIES,
CARL WIERSMA, and JOHN SZWEDA,
Defendants.
ORDER
20-cv-704-jdp
Plaintiff Patrick S. Tate, a former inmate in the Wisconsin prison system, alleges that
he was drugged and sexually assaulted by an unidentified “John Doe” correctional officer
multiple times and that he was later physically assaulted by another inmate after he complained
about the sexual assaults. Because Tate was unconscious during the assaults, he can’t identify
the John Doe defendant himself. Through recruited counsel, Tate sought an order under
Federal Rule of Civil Procedure 35 directing DNA samples to be taken from two officers who
he believes are the only possible suspects given their work schedules, to then be compared with
a partial DNA profile developed from DNA recovered from the underwear that Tate was
wearing during one of the assaults. Magistrate Judge Anita Marie Boor denied that motion,
ruling that Rule 35 didn’t apply to medical testing of the non-party officers, and that even if
Rule 35 had applied, Tate failed to show good cause for those tests. Tate objects to that ruling.
For the reasons stated below, I will overrule Tate’s objections.
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BACKGROUND
Tate is a former inmate at Fox Lake Correctional Institution. Tate alleges that on at
least three occasions in 2016, he woke up feeling as if he had been drugged, and feeling wet,
greasy, and sore around his buttocks. Then, after he complained about the assaults and got his
cellmate moved out of the unit, he was physically assaulted by another inmate who belonged
to the same gang as his former cellmate.
After screening Tate’s first amended complaint I granted him leave to proceed on Eighth
Amendment claims against five John Doe defendants—one was a correctional officer who Tate
says sexually assaulted him and the other four were correctional officers who failed to protect
him from the later assault by an inmate. Dkt. 11. I also granted him leave to proceed on Eighth
Amendment claims against supervisory staff who failed to protect him from assaults by both
staff and inmates. Id.
Tate then amended his complaint further, naming John Does Nos. 2–4, amending his
theory of relief against two of them, dropping John Doe No. 5 from the case and adding as
proposed defendants 37 officers who worked on third shift. Dkt. 28. Tate moved under Rule 35
to take DNA samples from the 35 male officers of the 37 he named, in an attempt to match
the DNA sample taken from Tate’s underwear after one of the assaults. Rule 35(a)(1) states:
The court where the action is pending may order a party whose
mental 	or 	physical 	condition—including 	blood 	group—is 	in
controversy to submit to a physical or mental examination by a
suitably licensed or certified examiner. The court has the same
authority to order a party to produce for examination a person
who is in its custody or under its legal control.
A motion for examination “may be made only on motion for good cause.” Rule 35(a)(2)(A).
I denied Tate’s motion without prejudice, stating, “I’d likely allow Tate to obtain a
DNA sample if he were seeking the sample from a particular person that he could identify as
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the defendant perpetrator” but that Tate hadn’t actually identified the perpetrator, and I was
unaware of any authority allowing him to use Rule 35 to obtain DNA evidence from multiple
people to ascertain the identity of a Doe defendant. Dkt. 34, at 3. I did not allow him to add
these various staff members as defendants, instead keeping John Doe No. 1 in the caption. Id.
Because his claim directly about the sexual assaults was at an impasse because of the complex
logistical difficulties in identifying the John Doe defendant, I stayed the case to recruit counsel
for the limited purpose of identifying the John Doe defendant. Id. at 4.
Recruited counsel conducted additional discovery and renewed Tate’s Rule 35 motion.
Dkt. 46. This time, Tate sought DNA testing of only two individuals: Sergeants Ronald Waas
and Scott Schulz. Tate argued that these were the only two people who could have perpetrated
the assaults because examination of the third-shift prison staff schedules for September 11 and
12 and October 5 and 6, 2016 (the approximate dates of two of the assaults), revealed that
they were the only two male officers who worked during both of those times.
Magistrate Judge Boor denied Tate’s renewed motion. Dkt. 59. In doing so she
recounted Tate’s allegations, the procedural history of the case, the procedures used to analyze
DNA samples, and the history of Rule 35. She noted that Rule 35’s “party” language has
historically been construed narrowly given the privacy concerns at stake. She distinguished
Tate’s request from other cases in which testing was ordered from individuals whose claims for
relief hinged on a DNA match; in those cases, the persons for whom testing was sought were
already parties in the case. Dkt. 59, at 12–13 (see e.g., Beach v. Beach, 114 F.2d 479 (D.C. Cir.
1940) (affirming ordering of blood tests for minor wife suing by next friend and wife’s child,
who were “parties in substance” in maintenance action focusing on paternity); Howell v. Hillcorp
Energy Co., No. CIV.A. 12-0293, 2013 WL 1455758 (E.D. La. Apr. 9, 2013) (testing ordered
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for child in wrongful death action brought on her behalf, with child’s standing hinging on
paternity). She concluded that Rule 35 does not give the court authority to compel DNA tests
from Waas and Schulz because they weren’t “parties to this lawsuit either in name or
substance.” Id. at 14.
Magistrate Judge Boor also concluded that even had Rule 35 applied to Waas and
Schulz, she would deny Tate’s motion for lacking good cause because there wasn’t a reasonable
possibility that testing would be likely to return a match to the partial profile from Tate’s
underwear. Id. at 15–20 (adapting good-cause test from McGrath v. Nassau Health Care Corp.,
209 F.R.D. 55, 61–62 (E.D.N.Y. 2002)). Tate’s proposal to test Waas and Schulz was based
on him identifying the date of one assault as either September 11 or 12, 2016, and another as
either October 5 and 6, 2016, and the officer schedules for those dates returning only those
two officers as working during both periods. Magistrate Judge Boor stated that “the selection
of these dates is tenuous at best” given Tate’s inconsistent recollections, and she concluded
that “the court does not have much confidence that the dates of the alleged assaults have been
identified with any degree of certainty.” Id. at 19.
ANALYSIS
Tate makes two objections, arguing that Magistrate Judge Boor erred in (1) concluding
that Rule 35 does not authorize this court to order DNA testing from the two officers who
Tate suspects are the John Doe defendant; and (2) concluding that there was not a reasonable
possibility of getting a DNA match from one of the two officers because of discrepancies in
Tate’s accounts of when the two assaults occurred.
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A magistrate judge’s ruling on a non-dispositive issue will be modified or set aside only
if it is “clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A).
This standard is deferential and will be met only when the reviewing court is “left with the
definite and firm conviction that a mistake has been committed.” Pinkston v. Madry, 440 F.3d
879, 888 (7th Cir. 2006) (citation omitted).1
A. Scope of Rule 35
In arguing that Magistrate Judge Boor was incorrect about the scope of Rule 35, Tate
states that “the John Doe 1 defendant has been joined to the case and is a party, providing the
Court with jurisdiction to order discovery relevant to identifying that defendant up to and
including DNA evidence” and says that he means to incorporate his previous briefing with his
objection. Dkt. 61, at 1–2. Tate is correct that the John Doe defendant is a party to this case.
But I agree with Magistrate Judge Boor that Sergeants Waas and Schulz are not parties to this
case, and that there is no authority allowing Rule 35 medical examinations of persons suspected
to be the identity of a John Doe defendant.
Otherwise, in his brief-in-chief Tate doesn’t meaningfully grapple with Magistrate Judge
Boor’s discussion of how Rule 35 has been applied in other marginal cases. Stating that his
previous briefing is incorporated doesn’t explain what Tate believes that Magistrate Judge Boor
got wrong. Rather than point out a mistake in her reasoning, Tate refers back to my ruling
denying his first, pro se motion for DNA testing of 35 prison staffers, in which I stated:
Based on [cases cited by Tate], I’d likely allow Tate to obtain a
DNA sample if he were seeking the sample from a particular
person that he could identify as the defendant perpetrator . . . .
But Tate has not actually identified the perpetrator. He has stated
1 As Tate points out, defendants incorrectly cite Rule 72(b) for part of its discussion of the
standard of review, but that doesn’t materially affect the analysis.
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a claim against John Doe No. 1; he has not stated claims against
each of the 35 people that might be Doe No. 1. Tate cites no
authority (and my own research reveals none) allowing a plaintiff
to use Rule 35 to obtain DNA evidence from multiple people to
ascertain the identity of a Doe defendant.
Dkt. 34, at 3.
Tate’s interpretation of that passage is this: “Judge Peterson indicated that if Mr. Tate
were able to narrow down his list of 35 officers to a single officer, he would likely grant the
motion for DNA testing. With the aid of representation, Mr. Tate was able to narrow the list
down to 2 officers. Although this is not the single officer Judge Peterson referenced, it is hardly
a fishing expedition.” Dkt. 61, at 1–2.
This misconstrues my previous ruling. My point wasn’t that 35 potential John Does are
too many to justify Rule 35 examinations (although that does seem like an obvious problem;
more on that below); it was that Tate’s previously cited case law supports Rule 35 examinations
of an actual named defendant in certain circumstances. The fact remains that Tate did not
identify that defendant, so that case law doesn’t support Rule 35 testing of the non-party
officers here.
Tate’s reply brief contains a more detailed analysis of this issue. This comes dangerously
close to waiver, but because Tate was arguably responding to defendants’ arguments supporting
Magistrate Judge Boor’s ruling, I’ll consider his reply arguments. Tate argues that the two
officers were indeed named as parties because they were included in the caption of his second
amended complaint, Dkt. 28, which I accepted as the operative pleading, Dkt. 34, at 4. But in
screening that complaint, I explicitly rejected the inclusion of the 35 staffers as defendants,
concluding that “[f]or now, the alleged perpetrator will remain Doe No. 1.” Id. at 3.
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Given the court’s reasoning that Sergeants Waas and Schulz aren’t parties, Tate asks
for permission to amend his complaint to name Waas and Schulz as defendants. But that
request runs into the same problem that I discussed in denying his attempt to add 37 third-
shift officers: Tate doesn’t state a plausible claim for relief against Waas or Schulz; he only
speculates that either one of them harmed him. He can’t name them as defendants.
Also in reply, Tate argues that Magistrate Judge Boor incorrectly interpreted Beach, a
case in which a minor sued her husband for maintenance, claiming that they had had a child
together. Because the wife was a minor, the lawsuit was brought by a next friend. Nonetheless,
the district court ordered blood testing of the wife and the child under Rule 35 to prove
paternity, stating that the wife was “of course a party” and that the child was also a “party in
substance,” citing the concept that “parties not before the court will not be bound by the
decree” unless that person “is so far represented by others that his interest receives actual and
efficient protection.” Beach, 114 F.2d at 481–82 (internal quotations omitted).
Tate argued that Sergeants Waas and Schulz are “parties in substance” under Beach.
Magistrate Judge Boor distinguished Beach from the present case, stating as follows:
By analogizing to this case, plaintiff is putting the cart before the
horse. In Beach, the appellant and her child were substantially
involved in the case prior to the Rule 35 blood draw. It was their
connection to the litigation that justified the court’s order. Here,
the opposite is true. Waas and Shulz’s involvement is speculative
and depends on the results of a Rule 35 examination. At this point,
before the DNA test, neither has any sufficient connection to the
case to be considered a party in substance.
Dkt. 59, at 12 (emphases in original).
Tate argues that this reasoning incorrectly narrows the scope of what the Beach court’s
definition of a “party in substance”; Tate states that the opinion “lists a variety of circumstances
where an unnamed party may be considered a party in substance under the law,” citing footnote
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16 of that decision. Dkt. 67, at 4. But the examples given in that footnote support Magistrate
Judge Boor’s point; all involve non-party persons who were substantially involved in the cases.2
Unlike those examples, Tate merely speculates that Waas and Schulz are involved in this case
at all. And in any event, Magistrate Judge Boor’s discussion of Beach was only one portion of
her overall analysis of the relevant case law concluding that Rule 35 does not apply to a person
suspected to be a John Doe defendant. I agree with that decision and will overrule Tate’s
objection.
B. Good cause
My ruling on the scope of Rule 35 is enough to doom Tate’s request for examinations.
Tate also objects to Magistrate Judge Boor’s ruling that that there wasn’t good cause to perform
the DNA testing even if Rule 35 did apply to the two officers because there wasn’t a reasonable
possibility of getting a DNA match from one of the two officers.
Magistrate Judge Boor applied the following test for good cause, taken from McGrath,
209 F.R.D., at 61–62: (1) the DNA evidence is relevant; (2) providing a sample will not unduly
infringe the party’s privacy rights; and (3) a reasonable possibility that the testing will yield a
match. Magistrate Judge Boor added a fourth element: that Tate must make a “‘showing of
need’ for the DNA testing.” Dkt. 59, at 15 (quoting Schlagenhauf v. Holder, 379 U.S. 104, 118
(1964). Tate argues that the “reasonable possibility” element is not always included in Rule 35
decisions and should thus be excised from the test, but even if it is included, the facts meet
2 The examples include (1) the United States, in a suit brought against a nominal defendant in
an attempt to evade sovereign immunity; (2) private persons, in a suit brought by the United
States to cancel patents on their behalf; (3) a child to be adopted, in contested adoption
proceedings; and (4) a party’s lawyer, in proceedings concerning whether to disqualify a judge
for improper bias. Beach v. Beach, 114 F.2d 479, 482 n.16 (D.C. Cir. 1940).
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that element here because Sergeants Waas and Schulz are the only two prison staffers who
worked at the prison on the dates that Tate identified two of the assaults taking place.
Particularly given the lack of controlling case law on Rule 35 examinations, Magistrate
Judge Boor did not err in considering the possibility of a match when making the good-cause
determination. Whether considered as a separate element in the test or “simply a re-packaging
of the question of relevance” as Tate put it in his brief supporting his motion before Magistrate
Judge Boor, Dkt. 47, at 12, it makes sense to consider the likelihood of a match to avoid parties
using Rule 35 as a tool for “fishing expeditions,” McGrath, 209 F.R.D. at 61. This case is a good
example of why such a consideration is necessary. If I had allowed Tate to amend his complaint
to name all 37 third-shift staffers as defendants, would it have been appropriate to mandate
buccal swabs for all of them? Nothing in the relevant case law suggests that Tate would have
good cause for that wide a sweep of DNA evidence, even given his dearth of other options to
identify the John Doe defendant.
Which leads to the question whether Tate had good cause to seek DNA evidence from
only Sergeants Waas and Schulz. Magistrate Judge Boor said there wasn’t because Tate didn’t
adequately confirm the specific dates that counsel used to cross-check the staff schedules:
[T]he court needs to look at the information plaintiff has
gathered, and there isn’t much there. Plaintiff identified Officers
Schulz and Waas because they were the officers who worked at
the prison on September 11 or 12 and October 5—dates plaintiff
now asserts correspond to the alleged assaults. Dkt. 47 at 9. But
the selection of these dates is tenuous at best. Plaintiff identified
the date of the first assault as “on or about” September 11,
Dkt. 28 at 9, unable to recall whether it was the morning of the
11th or 12th. Adding to the uncertainty, plaintiff reportedly
marked the incident on the calendar after the fact. Id. at 10. And
plaintiff has alternatively identified the date of the second assault
as October 5, the morning of October 6, and “Thursday night
October 6th,” Dkt. 48-3 at 4. The court understands the difficulty
plaintiff has faced in piecing together the facts and sympathizes
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with plaintiff’s plight, but that does not change the limited record.
As it stands, the court does not have much confidence that the
dates of the alleged assaults have been identified with any degree
of certainty.
Dkt. 59, at 19.
Tate argues that Magistrate Judge Boor erred in this analysis because Sergeants Waas
and Schulz were the only staffers who worked third shift during both the September 11 and
12 and October 5 and 6, 2016 windows of time that Tate says two assaults took place. He adds
that “there is no indication that the assaults occurred outside of the range of dates identified.”
Dkt. 61, at 2. But that’s incorrect. As Magistrate Judge Boor’s discussion of this issue suggests,
Tate’s own uncertainty about the date of the assaults calls into question whether the assaults
fell within those narrow windows. For instance, given that Tate didn’t contemporaneously
record the date of the September 2016 assault, how does he remember that the first assault
didn’t occur on September 10 or 13 instead? He doesn’t say. And once Tate is unable to lock
down the dates of the assaults, there’s much less reason to think that Waas and Schulz are the
correct suspects. Which leads back to the question whether Tate has good cause to obtain
testing from a much larger number of staffers; he wouldn’t. I conclude that Tate fails to show
that Magistrate Judge Boor’s analysis was clearly erroneous or contrary to law. So I will overrule
this objection.
CONCLUSION
Given my ruling, it appears that Tate will be unable to name the John Doe defendant.
Tate calls this a “catch-22.” Dkt. 67, at 5. While Tate’s frustration is understandable,
particularly given the heinous nature of his allegations, the bottom line is that litigants are
usually unable to maintain a lawsuit against a party they cannot identify. The usual solution
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for this problem in prisoner cases is to allow the plaintiff to use discovery methods to obtain
the identity of an unknown prison staffer. That effort has failed here, both because of the
unfortunate unavailability of video footage and because of the limitations of Rule 35.
I recruited counsel for the limited purpose of identifying the Doe John defendant. With
that effort seemingly finished, I’ll give counsel a deadline to withdraw or otherwise respond
regarding their representation in this case. Once the court receives that response, I’ll direct the
clerk of court to set a conference with Magistrate Judge Boor to set a schedule for resolving the
remaining claims.
ORDER
IT IS ORDERED that:
1. 	Plaintiff’s objections to Magistrate Judge Boor’s order on his Rule 35 motion,
Dkt. 61, are OVERRULED.
2. 	Plaintiff’s counsel may have until April 10, 2026, to respond regarding their limited
representation of plaintiff in this case.
Entered March 20, 2026.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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