Tatum v. Wall et al

Filing 21

ORDER signed by Judge Lynn Adelman on 8/16/16 denying 18 Motion for Reconsideration. Further ordering that plaintiff may file an amended complaint as described herein by September 8, 2016, or this case may be dismissed. (cc: all counsel, via USPS to plaintiff) (dm)

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

Case No. 15-CV-1435

EDWARD WALL, et al.,
Defendants.

ORDER

On August 3, 2016, due to the unavailability of Judge Rudolph T. Randa, this
case was reassigned to Judge Lynn Adelman. Before the court is plaintiff’s motion for
reconsideration of Judge Randa’s June 14, 2016, order denying plaintiff’s motion for
reconsideration of the Screening Order. The court will address plaintiff’s motion herein.
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)).
Background: Complaint, Screening Order and Order
Denying Plaintiff’s First Motion for Reconsideration
On December 1, 2015, plaintiff filed a class action complaint on behalf of all
similarly situated Wisconsin Department of Corrections inmates against forty-one
defendants. (ECF No. 1.) Plaintiff submitted his initial partial filing fee on March 7,
2016. See 28 U.S.C. § 1915(b)(1).
On May 5, 2016, Judge Randa screened the complaint under 28 U.S.C. § 1915A.
(ECF No. 14.) In the Screening Order, Judge Randa: (1) declined to certify a class
because the plaintiff is proceeding pro se; (2) determined that plaintiff could not proceed
on his claim against the forty-one defendants alleging the Wisconsin Department of
Corrections’ custom of a “Blue Code of Silence” was the moving force behind his
allegations because plaintiff’s conspiracy claim was implausible; and (2) found that
plaintiff’s complaint against the forty-one defendants violated Federal Rules of Civil
Procedure 18 and 20 insofar as it advanced unrelated claims against unrelated
defendants. (Id. at 7-10.) Judge Randa directed plaintiff to file an amended complaint
incorporating only properly related claims if he wanted to proceed and advised plaintiff
that failure to file an amended complaint might result in dismissal of the case for failure
to prosecute. (Id. at 10-11.)
On May 11, 2016, plaintiff filed a motion for reconsideration of the Screening
Order. (ECF No. 16.) In this first motion for reconsideration, plaintiff argued that the
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court erred in the Screening Order because, (1) the court lacked jurisdiction over this
action since plaintiff consented to magistrate judge jurisdiction under 28 U.S.C. § 636;
(2) the court erroneously determined that 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 plaintiff’s pro se status.
On June 14, 2016, Judge Randa issued an order denying plaintiff’s motion for
reconsideration of the Screening Order. (ECF No. 17.) He determined that the court
did not lack jurisdiction and that transfer to a magistrate judge would be premature
because the defendants had not yet consented to magistrate judge jurisdiction
(defendants have not yet been served), see Gen. L.R. 73 (E.D. Wis.) and 28 U.S.C. §
636(c). (Id. at 3.) Judge Randa also concluded that plaintiff did not show that the court
erred by denying his request for class certification because plaintiff is pro se, see Fed.
R. Civ. P. 23(a)(4), Howard v. Pollard, 814 F.3d 476, 478 (7th Cir. 2015). (ECF No. 17
at 3.)
Next, Judge Randa reiterated his finding that the complaint allegations were
implausible:
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
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singling him out for harsher treatment than other inmates. It is this
allegation – that every action the defendants did was pursuant to the Blue
Code 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).
(ECF No. 17 at 8.)
Then, Judge Randa acknowledged that plaintiff took issue with the fact that the
court did not clarify which of his claims were allegedly improperly joined. Judge Randa
directed plaintiff that he should decide which of his individual claims, if any, he wanted
to proceed on in this case and that he was also free to bring claims in another case(s).
(Id.) Judge Randa reiterated the guidelines for filing properly joined claims and directed
that if plaintiff wanted to proceed, he could file an amended complaint in compliance
with those guidelines. (Id. at 8-9.)
Lastly, Judge Randa clarified that, contrary to plaintiff’s assertions in his motion
for reconsideration, the court did not dismiss the complaint due to misjoinder, but rather
provided plaintiff with an opportunity to file an amended complaint. (Id. at 10.) Judge
Randa also directed that if plaintiff failed to timely file an amended complaint, the action
might be dismissed for failure to prosecute. (Id.)
Plaintiff’s Second Motion for Reconsideration
On June 17, 2016, plaintiff filed a motion for reconsideration of Judge Randa’s
June 14, 2016, order denying his motion for reconsideration of the Screening Order.
First, plaintiff contends that Judge Randa lacked jurisdiction to issue the order because
plaintiff consented to magistrate judge jurisdiction and defendants have not. According
to plaintiff, Judge Randa disregarded 28 U.S.C. § 636(c). However, this case will be
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transferred to a magistrate judge only if defendants also consent to magistrate judge
jurisdiction.

Defendants will not have the option to consent to magistrate judge

jurisdiction until they appear in this case (the court will order service only after it screens
a complaint that states a plausible claim for relief). In the meantime, the district judge
(previously Judge Randa and now Judge Adelman) has jurisdiction over this case.
Second, plaintiff contends that the court overlooked and misapprehended his
positions on class certification, “which were that the court failed to screen Tatum’s
allegations and circumstances accord to F.R.Civ.P. 23(a)(1-3) requirements, and
abused its discretion in failing to consider appointing class counsel to meet Rule
23(a)(4) mandates.” (ECF No. 18 at 1.) The court understands that plaintiff would like
the court to appoint an attorney to represent him in a class action. However, Judge
Randa properly determined that it would be improper for the court to certify a class
action 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). Plaintiff has not shown that this decision
was in error.
Next, plaintiff contends that Judge Randa disregarded relevant case law on
“plausibility,” substantially misapprehended plaintiff’s position, and overlooked key facts.
According to plaintiff, Judge Randa’s determination that defendants acted “pursuant to”
the “Code of Silence” is incorrect. Instead, plaintiff explains his position as follows:
Tatum’s position is that a “Code of Silence” exists, which allows and
covers-up staff misconduct in the DOC. The “COS” constitutes an
unwritten policy and custom under Monell, and this custom caused the
rights violations as alleged, which is highly “plausible” and the reality – A
“COS” giving officers the assurance that misconduct will be tolerated,
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covered-up, and even encouraged, AND having wide officer participation,
see U.S v. Ambroso, 740 F.2d 505, 521 (7th Cir 1984) (when a COS is
existent “most [officers] observe it”), will naturally lead to multiple rights
violations as alleged – excessive uses of force, illegally obstructing mail
and access to courts, etc. – based on the environment a COS creates.
“Judicial experience” as contemplated by Iqbal will naturally include
previous case holdings related to claims and deference thereto, requiring
this Court to recognize the holding in U.S. v. Ambroso, cited above, and
Tatum’s claims are far from “sketchy or implausible” given the above
context. To the contrary, Tatum’s alleging that a “COS” custom causing
his multiple claims “present(s) a story that holds together.” Swanson, 614
F.3d 400, 404. The Court’s misapprehension of Tatum’s claims, and
overlook of case precedent and key facts is “manifest error” warrant of
reversal.
(ECF No. 18 at 2.) However, whether plaintiff characterizes his claim that the Code of
Silence caused defendants to violate his constitutional rights, allowed defendants to
violate his constitutional rights, or, as Judge Randa stated it, that defendants were
acting “pursuant to” the Code of Silence when they violated plaintiff’s rights, this
allegation is implausible, as explained in the Screening Order and in the order denying
plaintiff’s first motion for reconsideration.

(ECF No. 14 at 8; ECF No. 17 at 4-8.)

Plaintiff has not shown that Judge Randa’s order denying plaintiff’s motion for
reconsideration contains a manifest error of law.
Lastly, plaintiff contends that Judge Randa disregarded the holding in George v.
Smith, 507 F.3d 605 (7th Cir. 2007), when he permitted plaintiff to file an amended
complaint consisting of only properly joined claims.

According to plaintiff, under

George, the court should remedy the misjoinder by separating plaintiff’s claims into
separate suits. Plaintiff also contends that the court’s seeking or threatening dismissal
violates George and Federal Rule of Civil Procedure 21.
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Unrelated claims against different defendants belong in separate lawsuits, not
only “to prevent the sort of morass” produced by multi-claim, multi-defendants suits, but
also to ensure that prisoners pay all fees required under the Prison Litigation Reform
Act, see 28 U.S.C. § 1915(b)(g). Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011)
(citing George, 507 F.3d at 607). Complaints that contain unrelated claims against
different defendants should be “rejected,” George, 507 F.3d at 607, “either by severing
the action into separate lawsuits or by dismissing improperly joined defendants.”
Owens, 635 F.3d at 952.
The practice in this district when plaintiffs file complaints that contain unrelated
claims against different defendants is to alert plaintiff of the problem and allow them to
file an amended complaint that complies with the Federal Rules of Civil Procedure. The
court permits plaintiffs the opportunity to select which claim or claims they wish to
continue with in the present lawsuit, and also notifies them that they may file a new case
or cases with regard to any additional claim(s).
In this case, plaintiff’s underlying claim regarding the Blue Code of Silence has
been dismissed. It is not clear what plaintiff wants to do with this case now. The court
will not assume that plaintiff wants to pursue individual claims against the forty-one
defendants. Rather, as explained in the Screening Order and in the order denying
plaintiff’s motion for reconsideration, the court will provide plaintiff with an opportunity to
file an amended complaint that contains properly related claims. “To be precise: a
plaintiff may put in one complaint every claim of any kind against a single defendant, per
Rule 18(a), but a complaint may present claim # 1 against Defendant A, and claim # 2
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against Defendant B, only if both claims arise ‘out of the same transaction, occurrence,
or series of transactions or occurrences’. Rule 20(a)(1)(A).” Wheeler v. Wexford Health
Sources, Inc.,689 F.3d 680, 683 (7th Cir. 2012).
If plaintiff fails to file an amended complaint as described in this order, the court
may dismiss this case. See Fed. R. Civ. P. 41(b); Civil L.R. 41(c) (E.D. Wis.). Plaintiff
takes issue with the threat of dismissal for failure to prosecute since it is clear that he
wants to prosecute this case. Plaintiff is advised that along with prosecuting this case
he is required to follow the court’s orders. Repeated failure to follow the court’s orders
may be grounds for dismissal for failure to prosecute or may be grounds for dismissal
standing alone. See Fed. R. Civ. P. 41(b).
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that plaintiff’s motion for
reconsideration (Docket 18) is DENIED
IT IS FURTHER ORDERED that plaintiff may file an amended complaint as
described herein by September 8, 2016, or this case may be dismissed.
Dated at Milwaukee, Wisconsin, this 16th day of August, 2016.
BY THE COURT:
s/ Lynn Adelman
______________________________
LYNN ADELMAN
United States District Judge

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