Toston v. Zank et al

Filing 63

ORDER signed by Judge Pamela Pepper on 6/11/2019 DENYING 61 plaintiff's motion to alter judgment. (cc: all counsel, via mail to Toni Toston at New Lisbon Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TONI TOSTON,
Plaintiff,
v.

Case No. 16-cv-1112-pp

PAMELA ZANK, JOHN O’DONOVAN,
and WILLIAM POLLARD,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION TO ALTER JUDGMENT
(DKT. NO. 61)
______________________________________________________________________________
Plaintiff Toni Toston filed a complaint on August 18, 2016, alleging that
the defendants retaliated against him for filing an inmate complaint when they
issued him a conduct report that resulted in his spending time in segregation.
On August 27, 2018, the court granted the defendants’ motion for summary
judgment. Dkt. No. 59. The plaintiff has asked the court to alter that judgment.
Dkt. No. 61.
The plaintiff filed his motion under Federal Rule of Civil Procedure 59(e),
which allows a court to alter a judgment only if the movant can demonstrate “a
manifest error of law or present newly discovered evidence.” Obriecht v.
Raemisch, 517 F.3d 486, 494 (7th Cir. 2008) (citing Sigsworth v. City of
Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007)). A manifest error of law is “not
demonstrated by the disappointment of the losing party. It is the ‘wholesale
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disregard, misapplication, or failure to recognize controlling precedent.’” Oto v.
Metropolitan Life Ins. Co., 224, F.3d 601, 606 (7th Cir. 2000) (citation omitted).
The plaintiff’s motion does not identify any newly discovered evidence.
Instead, it asserts that the court committed several manifest errors of law when
it found that defendant Pamela Zank did not retaliate against him for filing an
inmate complaint. The plaintiff first argues that the court did not cite the
controlling precedent for a retaliation claim; he says that the court should have
cited Babcock v. White, 102 F.3d 267 (7th Cir. 1996) and Mt. Healthy City Sch.
Dist. Bd. Educ. v. Doyle, 429 U.S. 274, 97 (1977)). Dkt. No. 61 at 1. The
plaintiff concedes that under these cases, he had the burden of proving by a
preponderance of the evidence that he was engaging in an activity protected by
the First Amendment and that that activity was one of the reasons the
defendants acted against him. Id. at 2. He states that if he made such a
showing, the burden of persuasion would shift to the defendants to show that
they would have taken the same actions absent protected activity. Id. The
plaintiff assumes that he met his burden, and argues that once the burden of
persuasion shifted to the defendants, they did not meet it—they did not show
that they would have written the conduct report even if he had not filed an
inmate complaint. Id.
The plaintiff is correct that the court did not rely on Babcock or Mt.
Healthy in citing the standard for evaluating a retaliation claim. That is
because those cases are twenty-three and forty-two years old, respectively.
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There are many more recent cases that state the standard (which is what the
plaintiff says it is); the court just used more recent cases, to make sure it was
citing the most current law. See Dkt. No. 59 at 14-15. The fact that the court
cited more recent cases describing the same standard articulated in Babcock
and Mt. Healthy does not constitute manifest error.
Next, the plaintiff argues that the court improperly applied the standard.
He asserts that the court should have placed the burden on the defendants to
show that the conduct report and resulting segregation time were not
punishment for his engaging in the protected activity. But that isn’t the
standard. As the plaintiff notes and as the standard states, the burden shifts to
the defendants only if the plaintiff has satisfied all the elements required to
state a prima facie claim of retaliation. The court found that the plaintiff had
not satisfied all the elements of a prima facie claim, because he had not shown
a causal connection between Zank issuing him the conduct report and his
engaging in the protected activity of writing an inmate complaint.
The plaintiff cites Tate v. Jenkins, No. 09-CV-169, 2010 WL 3809765
(E.D. Wis. Sept. 24, 2010), which also relies on the legal standard used by this
court; that case is distinguishable. In Tate, the plaintiff received a conduct
report for lying about staff after an investigation rendered unfounded his
allegation that the prison staff were racially discriminating against African
Americans’ inmate complaints and several officers had unjustly taken his
property. Id. at *4-5. The parties presented conflicting evidence on whether the
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allegations were in fact unfounded. The plaintiff in Tate alleged that the
defendant who wrote the conduct report had told the plaintiff that the
defendant was going to put “a target on [the plaintiff’s] back” because of the
plaintiff’s allegations. Id. at *2, 9. The Tate court found that there was a
dispute as to a material issue of fact—whether the plaintiff should have
received a conduct report and whether the conduct report had been issued in
retaliation for the plaintiff engaging in the protected activity of free speech. Id.,
*9.
Although the plaintiff disagrees with Zank’s finding that he lied about
staff, the only evidence he provided the court in the way of a dispute of material
fact is his assertion that the conduct report Zank issued was dismissed. The
plaintiff argues that because the report was dismissed (albeit years later, and
by a different warden), the only possibly explanation for why Zank issued it
was because she was trying to retaliate against him. This ignores the
undisputed facts: Zank received a report that something had happened
(something she didn’t observe herself, and wasn’t involved in). She investigated,
and concluded based on the evidence she found that the plaintiff had been
untruthful. The reviewing authorities found otherwise, but that does not mean
that Zank did not believe the plaintiff had lied when she issued the report. The
issue is Zank’s intent, and the plaintiff has not presented any evidence to
support his argument Zank intended to get back at him for filing an inmate
complaint.
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Third, the plaintiff disagrees with the court’s characterization that he
relies on circumstantial evidence—what the court characterized as the
“suspicious timing” of the conduct report—to defeat the defendants’ summary
judgment argument. The plaintiff says that he isn’t relying on the “suspicious
timing” alone. He says he submitted direct evidence—the defendants’
admission in discovery that Warden Foster dismissed the conduct report in
September 2016 (dkt. no. 47-1 at 32)—showing that retaliation was a
motivating factor for Zank to issue the conduct report. As the court explained
in its order, that argument assumes that Zank had no evidence to support her
belief that the plaintiff had lied about the alleged assault. The court pointed out
that there is no record evidence to show why Foster dismissed the conduct
report years later, and significant evidence to show why Zank believed the
plaintiff had lied. The issue is not whether the plaintiff lied; it is whether Zank
had reason to believe the plaintiff had lied when she issued the conduct report.
The plaintiff insists that she issued the report to punish him for complaining,
but the evidence indicates that she issued the report to punish him for what
Zank believed was falsely complaining.
The remainder of the plaintiff’s motion rehashes his arguments
regarding the significance of the conduct report being dismissed four years
later. The court discussed this argument at length in its decision. It will not do
so again here. While plaintiff disagrees with the court’s decision, his

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disagreement does not constitute manifest error under Rule 59(e). See Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000).
Finally, the plaintiff admits that he has no retaliation claim against
Pollard and O’Donovan.
The court DENIES the plaintiff’s motion to alter judgment. Dkt. No. 61.
Dated in Milwaukee, Wisconsin, this 11th day of June, 2019.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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