Tatum v. Wall et al

Filing 17

ORDER signed by Judge Rudolph T. Randa on 6/14/2016 DENYING 16 Plaintiff's Motion for Reconsideration. By 7/7/2016 plaintiff may file amended complaint in compliance with this Order; failure to file may result in dismissal for failure to prosecute. (cc: all counsel, via mail to Robert Tatum at Waupun Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT L. TATUM,
Plaintiff,
-vs-

Case No. 15-CV-1435

EDWARD WALL, et al.,
Defendants.

DECISION AND ORDER
The plaintiff has filed a motion for reconsideration of the Court’s
May 5, 2016, Order screening his complaint. (ECF No. 16.) He contends
that the Court erred because, (1) the Court lacks jurisdiction over this
action since the plaintiff consented to magistrate judge jurisdiction under
28 U.S.C. § 636; (2) the Court erroneously determined that the plaintiff’s
complaint allegations were implausible; (3) the Court directed the plaintiff
to file an amended complaint and stated that if he failed to file an amended
complaint the case might be dismissed for failure to prosecute; and (4) the
Court denied class certification based on the plaintiff’s pro se status.
Standard of Review
Federal Rule of Civil Procedure 54(b) allows any order adjudicating
fewer than all the claims to be revised at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities of all the

parties. Motions to reconsider (or more formally, to revise) an order under
Rule 54(b) are judged by largely the same standards as motions to alter or
amend a judgment under Rule 59(e): “to correct manifest errors of law or
fact or to present newly discovered evidence.” Rothwell Cotton Co. v.
Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987) (quoting Keene Corp. v.
Int’l Fid. Ins. Co., 561 F.Supp. 656, 665-66 (N.D.Ill. 1982), aff’d, 736 F.2d
388 (7th Cir. 1984) (citation and footnote omitted)), amended by, 835 F.2d
710 (7th Cir.1987); compare Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th
Cir. 1996) (providing nearly identical standard for motion under Rule
59(e)).
Discussion
On May 5, 2016, the Court issued an order screening the plaintiff’s
class action complaint. (ECF No. 14.) The Court declined to certify a class
because the plaintiff is proceeding pro se. (ECF No. 14 at 7.) Next, the
Court determined that the plaintiff could not proceed on his claim against
the 41 defendants alleging the Wisconsin Department of Corrections’
custom of a “Blue Code of Silence” was the moving force behind his
allegations because the plaintiff’s conspiracy claim was implausible. (Id. at
8.) Lastly, the Court found that the plaintiff’s complaint against the 41
defendants violated Federal Rules of Civil Procedure 18 and 20 insofar as it
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advanced unrelated claims against unrelated defendants. (Id. at 10.) The
Court directed the plaintiff to file an amended complaint incorporating only
properly related claims if he wanted to proceed and advised the plaintiff
that failure to file an amended complaint might result in dismissal of the
case for failure to prosecute.
A.

Magistrate Judge Jurisdiction
First, the plaintiff takes issue with the fact that this case was not

transferred to a magistrate judge after he consented to magistrate judge
jurisdiction. In the Eastern District of Wisconsin, magistrate judges “are
designated to exercise the jurisdiction and authority provided by 28 U.S.C.
§ 636(c), when all parties consent to it[.]”
(emphasis added).

Gen. L.R. 73 (E.D. Wis.)

At this time, only the plaintiff has consented to

magistrate judge jurisdiction. Thus, transfer to a magistrate judge would
be premature.
B.

Class Action
The Court denied class action status because the plaintiff is pro se.

It would be improper for the Court to certify a case where the class
representative is pro se. See Fed. R. Civ. P. 23(a)(4); Howard v. Pollard,
814 F.3d 476, 478 (7th Cir. 2015). The plaintiff has not shown that the
Court erred by declining to consider the other Rule 23(a) factors.
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C.

Plausibility of Plaintiff’s Complaint
In screening the complaint, the Court determined that the plaintiff’s

claim that the Wisconsin Department of Corrections’ custom of a Blue Code
of Silence is the moving force behind his allegations was implausible.
According to Tatum, individually and as a part of the policy of
the Blue Code of Silence, he has been subjected to multiple
violations of his rights. The Blue Code of Silence allegedly
uses various tactics to reinforce its policies, such as ensuring
that the Inmate Complaint Review System is a sham,
obstructing the plaintiffs’ access to attorneys and to the courts,
and lying in official reports. The perpetuation of the Blue Code
of Silence has allegedly resulted in constitutional violations,
such as: denial of due process; denial of access to the courts;
excessive force, unnecessary strip searches and sexual assault;
retaliation; unlawful conditions of confinement in observation
status; forced medical intervention and force-feeding; unlawful
in-cell cameras; assault/battery/distress; unlawful conditions
of confinement related to unfair and unnecessary security
precautions; and denial of equal protection.
It appears that the plaintiff attempts to join all 41 defendants
and multiple claims together in one action under the
Wisconsin Department of Corrections’ Blue Code of Silence
because all defendants allegedly acted pursuant to that policy.
Specifically, he alleges:
Def. Boughton operates WSPF under a custom or
written policy known as the “Blue Code” or “Code
of Silence” (COS), which is a prevalent and illegal
system operating WI-DOC wide under def. Wall
wherein staff will and must cover-up and lie for
each other and against an inmate or inmates, or
otherwise act (harass or retaliate) against an
inmate or inmates to assist another staff members
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efforts against them, regardless of the illegality of
those actions and esp. if the “target” inmate or
inmates file lawsuits, report staff misconduct, or is
personally disliked by 1 or more staff for any
reason. All ranks, up to Boughton at WSPF level
and Wall WI-DOC (Madison – Central Ofc)-side,
are COS facilitators and participants.
The primary goals of the COS “custom” is to coverup and prevent prosecution of staff misconduct
and establish an “us v. them” team mentality
against inmates by “teaming-up” v. plaintiff even
pursuant to illegal conduct. These goals are
achieved by lying in official records and reports,
intentionally mishandling and refusing to process
staff misconduct ICIs, refusals to discipline even
overt misconduct of staff reported, and retaliating
against and harassing plaintiffs who report or file
lawsuits.
The environment created by the COS “custom” in
allowing and covering up staff misconduct is a
potential and actual danger to plaintiffs’ health
and safety (as even highly illegal acts may be
perpetrated w/o repercussions), demoralizes
Plaintiffs in having no recourse for inflicted
wrongs – detrimental to mental health and
effective rehabilitation, and puts plaintiffs at a
high risk for self-harm. The COS custom can be
reasonably attributed to correlatingly [sic] high
suicide rates in WI-DOC, which is higher than the
national average among prisons.
(Dkt. No. 1 at 8 ¶¶ 17-19.)
Additionally, he alleges that “[s]tate courts, judges, and
personnel in WI, facilitate the COS custom overtly or
implicitly by deliberate indifference to, and failure to properly
investigate, illegal acts Plaintiffs report in John Doe actions
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and other court filings and hearings, reinforcing the negative
behaviors of COS participants and the damaging effects to
plaintiffs.” (Dkt. No. 1 at 9 ¶ 22.)
...
Under Federal Rule of Civil Procedure 8, a complaint must
allege facts that allow a court “to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court
must also be mindful, however, that it should not allow
defendants to be subjected to “paranoid pro se litigation ...
alleging ... a vast, encompassing conspiracy” unless plaintiff
meets a “high standard of plausibility.” Cooney v. Rossiter, 583
F.3d 967, 971 (7th Cir. 2009); see also Walton v. Walker, 364
F.App’x. 256, 258 (7th Cir.2010) (unpublished). The plaintiff’s
complaint links all of his allegations against 41 defendants
under the umbrella of a Blue Code of Silence that includes not
only all ranks of the Wisconsin Department of Corrections, but
also judges, courts, and other Wisconsin state personnel.
Tatum links all of these claims by alleging that the
defendants’ actions were done in order to facilitate the DOC’s
Blue Code of Silence custom and/or the defendants acted
pursuant to the Blue Code of Silence Custom. The court
rejects this conspiracy claim as implausible. See Walton v.
Walker, 364 F. App’x 256, 258 (7th Cir. 2010).
(ECF No. 14 at 4-7, 8.)
In his motion for reconsideration, the plaintiff states that the Court
ignored the fact that not only did he allege that a Blue Code of Silence
exists, but he also provided specific examples of its existence. According to
the plaintiff, he cited a legal conclusion that a Blue Code of Silence exists,
which is “largely supported by a complaint system that shields officers

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from liability and obstructs court resolve intentionally, and this created an
environment allowing rights violations and even serious criminal conduct
of staff to go unchecked and continuously perpetrated against inmates[.]”
(ECF No. 16 at 2.) The plaintiff goes on to state that he “also cited several
specific instances of abuse, failure to investigate and discipline officer
misconduct, complaint obstruction, and rights violations, proving a
persistent pattern by factual allegations to support the legal conclusion
that a COS exists.” (Id.)
Determining plausibility is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Plausibility requires the
plaintiff to give the court “enough details about the subject-matter of the
case to present a story that holds together.” Swanson v. Citibank, N.A., 614
F.3d 400, 404 (7th Cir. 2010). Factual allegations that are “sketchy or
implausible” may be insufficient to provide a defendant with adequate
notice of the plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.
2009). While the Court will generally accept as true the allegations
contained in the plaintiff's complaint, this does not require the court to
“accept as adequate abstract recitations of the elements of a cause of action
or conclusory legal statements.” Id.
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Here, the plaintiff alleges all defendants were acting pursuant to the
Blue Code of Silence “agenda” or custom, whether they were improperly
returning or rejecting his inmate complaints, obstructing his mail,
improperly reading his mail, obstructing his access to the courts, illegally
monitoring his telephone calls, taking away his phone privileges, lying in
official reports, retaliating against him, improperly strip searching him,
imposing atypical conditions of confinement without a hearing, condoning
the use of force or using excessive force, issuing false and frivolous conduct
reports, being deliberately indifferent to his mental health, or singling him
out for harsher treatment than other inmates. It is this allegation – that
every that action the defendants did was pursuant to the Blue Code of
Silence agenda – that the Court finds implausible. See Cooney v. Rossiter,
583 F.3d 967, 971 (7th Cir. 2009); see also Walton v. Walker, 364 F. App’x
256, 258 (7th Cir. 2010).
The plaintiff also takes issue with the fact that the Court did not
clarify which claims were allegedly improperly joined.

However, the

plaintiff should decide on which of his individual claims he wants to
proceed in this case. Any other claims he is free to bring in another case.
As described in the Screening Order:
As instructed by the Seventh Circuit Court of Appeals, under
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the controlling principle of Rule 18(a), Federal Rules of Civil
Procedure, “[u]nrelated claims against different defendants
belong in different suits” so as to prevent prisoners from
dodging the fee payment or three strikes provisions in the
Prison Litigation Reform Act. George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007). Specifically, Rule 18(a) provides that “[a]
party asserting a claim, counterclaim, crossclaim, or thirdparty claim may join, as independent or alternate claims, as
many claims as it has against an opposing party.” Under this
rule, “multiple claims against a single party are fine, but
Claim A against Defendant 1 should not be joined with
unrelated Claim B against Defendant 2.” George, 507 F.3d at
607.
Moreover, the court in George reminded district courts that
Rule 20, Federal Rules of Civil Procedure, applies as much to
prisoner cases as it does to any other case. 507 F.3d at 607.
Under Rule 20, joinder of multiple defendants into one action
is proper only if “they assert any right to relief jointly,
severally, or in the alternative with respect to or arising out of
the same transaction, occurrence, or series of transactions or
occurrences; and any question of law or fact common to all
defendants will arise in the action.”
The Court finds that the complaint violates Rules 18 and 20
insofar as it advances unrelated claims against multiple
defendants. The George court instructed that such “buckshot
complaints” should be “rejected.” Id. The plaintiff will be
allowed to file an amended complaint in this case
incorporating only properly related claims. Any unrelated
claim not pursued in this case must be brought in a separate
action.
(ECF No. 14 at 9-10.)
The plaintiff is advised that if he wants to proceed, he may file an
amended complaint as described above.

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D.

Failure to Prosecute Dismissal
The Court’s order of May 5, 2016, directed the plaintiff to file an

amended complaint containing properly joined claims.

The Court also

directed that if the plaintiff failed to file a timely amended complaint, the
action might be dismissed for failure to prosecute.

Contrary to the

plaintiff’s assertions in his motion for reconsideration, the Court did not
dismiss the complaint due to misjoinder. Rather, the Court provided the
plaintiff with an opportunity to file an amended complaint.
E.

Conclusion
The plaintiff has not shown that the Court’s May 5, 2016, order

contains a manifest error of law. Therefore, the Court will deny his motion
for reconsideration.

The Court will provide the plaintiff with another

opportunity to file an amended complaint with claims properly joined as
described by the guidelines in this order. The plaintiff is advised that this
case may be dismissed without prejudice for failure to prosecute if the
plaintiff fails to timely file an amended complaint.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the plaintiff’s motion for reconsideration
(ECF No. 16) is DENIED.
IT IS FURTHER ORDERED that the plaintiff may file an
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amended complaint on or before July 7, 2016, which contains only related
claims in accordance with this Order.
IT IS FURTHER ORDERED that the plaintiff does not file an
amended complaint by July 7, 2016, that complies with the requirements
of Rule 18 and 20, Federal Rules of Civil Procedure, this action may be
dismissed for failure to prosecute.
Dated at Milwaukee, Wisconsin, this 14th day of June, 2016.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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