Carter, Jackie v. Radtke, Dylan et al

Filing 171

ORDER denying 165 Motion to Alter or Amend Judgment; denying 167 Motion for Judgment as a Matter of Law; granting in part and denying in part 159 Motion for Attorney Fees. Plaintiff Jackie Carter awarded attorney fees in the amount of $226.50. Signed by District Judge William M. Conley on 3/20/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JACKIE CARTER,
Plaintiff,

OPINION AND ORDER

v.

10-cv-510-wmc

DYLON RADTKE and JANEL NICKEL,
Defendants.
After this court’s grant of partial summary judgment in favor of plaintiff Jackie
Carter on his First Amendment claims, a jury awarded $50 in punitive damages against
defendant Dylon Radtke and $100 in punitive damages against defendant Janel Nickel.
(Dkt. #156.) The court entered judgment accordingly, along with a $1.00 award in
nominal, compensatory damages.

(Dkt. #162.)

Before the court are three post-

judgment motions: (1) defendants’ motion for judgment as a matter of law (dkt. #167);
(2) plaintiff’s motion to alter or amend the judgment to include an order for injunctive
relief (dkt. #165); and (3) plaintiff’s motion for attorney’s fees (dkt. #159). For the
reasons that follow, the court will deny defendants’ motion for judgment as a matter of
law and plaintiff’s motion to alter or amend the judgment to include an order for
injunctive relief. The court, however, will award plaintiff attorney’s fees as the prevailing
party of a 42 U.S.C. § 1983 lawsuit. In light of the Prison Litigation Reform Act, 42
U.S.C. § 1997e(d)(2), however, the award is limited to 150% of the jury award, which is
$226.50.

BACKGROUND
At summary judgment, the court found: (1) defendant Dylan Radtke liable for
censoring plaintiff Carter’s outgoing mail in violation of his First Amendment rights; and
(2) defendants Radtke and Janel Nickel liable for retaliation against Carter by pursuing
disciplinary actions based on the content of his outgoing mail. (9/18/15 Op. & Order
(dkt. #110); see also 10/30/14 Op. & Order (dkt. #93).) 1
At trial, the court found no basis for awarding compensatory damages under 42
U.S.C. § 1997(e), and, therefore, awarded Carter $1 in nominal damages. Similarly, after
considering the sole, remaining question of whether to award punitive damages, the jury
awarded plaintiff $50 in punitive damages against defendant Radtke and $100 against
defendant Nickel. (Dkt. #156.)

OPINION
I. Defendant’s Motion for Judgment as a Matter of Law
Under Federal Rule of Civil Procedure 50, judgment as a matter of law may be
granted where there is no “legally sufficient evidentiary basis” to find for the party on
that issue.

Fed. R. Civ. P. 50(a).

In considering a Rule 50 motion, the court is to

“examine the evidence presented, combined with any reasonably drawn inferences, and
determine whether that evidence sufficiently supports the verdict when viewed in the
light most favorable to the non-moving party,” here, plaintiff. E.E.O.C. v. AutoZone, Inc.,

A detailed recitation of the material undisputed and disputed facts can be found in the court’s
summary judgment decision. (Dkt. #110.) While the court declined to enter partial summary
judgment on a separate First Amendment retaliation claim against Radtke for screening Carter’s
mail, plaintiff ultimately chose not to develop and pursue that claim at trial.
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707 F.3d 824, 835 (7th Cir. 2013). The court does not make credibility determinations
or weigh the evidence, though the court must assure that more than “a mere scintilla of
evidence” supports the verdict. Hossack v. Floor Covering Assocs. of Joliet, Inc., 492 F.3d
853, 859 (7th Cir. 2007). The court “reverse[s] the verdict only if no rational jury could
have found for the prevailing party.” AutoZone, Inc., 707 F.3d at 835.
Defendants contend that judgment as a matter of law is warranted because no
reasonable jury could find on the evidence presented at trial that defendants “knew that
what [they were] doing was wrongful and subject to punishment.” (Defs.’ Mot. (dkt.
#167) 2 (quoting Soderbeck v. Burnett Cty., Wis., 752 F.2d 285, 291 (7th Cir. 1985)).)
Specifically, defendant Radtke believed that his action of censoring of Carter’s letters,
and both defendants believed that their actions in subjecting Carter to disciplinary
actions based on the letter’s content, were consistent with the administrative code.
Consistent with the Seventh Circuit pattern instructions, the jury was instructed
that plaintiff must prove by a preponderance of the evidence that each respective
defendant acted in “reckless disregard” of his First Amendment rights.
Instructions (dkt. #154) 3.)

Defendants did not object to this instruction.

(Closing
While

defendants testified that they believed their actions were appropriate under the First
Amendment, the jury rejected this testimony, at least in part, in finding that they acted
in reckless disregard of Carter’s rights.

It is not the court’s role to make creditability

determinations, and on the trial record, the court cannot conclude that the jury was

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“irrational” in reaching its conclusion. May, 692 F.3d at 742. Accordingly, the court will
deny defendants’ motion. 2
II. Plaintiff’s Request for Injunctive Relief
In an order directing the clerk of court to enter judgment, the court noted that
while previously indicating a willingness “to consider ordering equitable relief,” the
“plaintiff, to date, has made no such request.”

(2/23/16 Order (dkt. #161) 1.)

In

response, plaintiff filed a “motion to alter or amend the judgment,” explaining that he
failed to request injunctive relief because he did not think it was necessary. Plaintiff also
makes a half-hearted request to enter this relief now, stating that: (1) the court’s findings
at summary judgment and the jury verdict “support an injunction”; and (2) “enter[ing]
an injunction against Defendants would not prejudice Defendants in any way at all, but
would simply require them to follow the law and the Constitution.” (Pl.’s Mot. (dkt.
#165) 2.)
The court agrees with defendant that plaintiff failed to provide a reason that
would satisfy the requirement of Rule 59(e) for not moving for injunctive relief before the
judgment was entered. See Bordelon v. Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 529
(7th Cir. 2000) (explaining that Rule 59(e) does not “provide a vehicle for a party to
undo its own procedural failures”); Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 729
(7th Cir. 1999) (Rule 59(e) “does not allow a party to introduce new evidence or

In their motions, defendants also challenge the court’s prior conclusion that the content of
Carter’s outgoing mail constituted protected speech. The court has already addressed this issue
extensively, and defendants have advanced no reason to address it further. (See 10/13/14 Op. &
Order (dkt. #93) 29-34; 9/18/15 Op. & Order (dkt. #110) 6-7).)
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advance arguments that could or should have been presented to the district court prior to
the judgment.”) (quotation marks and citation omitted).

Even now, plaintiff fails to

provide any detail as to what the injunction would or should prohibit, or which
individuals it would involve, especially given Nickel’s retirement and Radtke’s transfer to
another facility. Accordingly, the court will deny plaintiff’s motion.
III. Plaintiff’s Motion for Attorney’s Fees
Finally, plaintiff, as the prevailing party seeks an award of attorney’s fees in the
amount of $58,014.60. (Dkt. #159.) “Section 1988(b) allows prevailing parties in §
1983 litigation to recover ‘a reasonable attorney’s fee.’” Montanez v. Simon, 755 F.3d
547, 553 (7th Cir. 2014). Plaintiff’s counsel provides itemized timesheets in support of
the request, and represents, albeit with very limited explanation or support, that his
hourly rate is $399. (Galloway Decl. (dkt. #159-1); Corrected itemization (dkt. #160).)
While defendants question the reasonableness of counsel’s rate and certain hours
they attribute to other, unsuccessful Carter cases, the court agrees that a substantial
award is due both to adequately compensate plaintiff’s counsel and to incentivize others
to take on these difficult cases.
In response to the motion, however, defendants also correctly point out that the
PLRA, 42 U.S.C. § 1997e(d)(2), “limit[s] attorney’s fees in cases where prisoners obtain
monetary relief to 150% of the damages award.” Pearson v. Welborn, 471 F.3d 732, 742
(7th Cir. 2006). Accordingly, the court will award plaintiff fees in the maximum amount
of $226.50.

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ORDER
IT IS ORDERED that:
1) Plaintiff’s motion for attorney fees (dkt. #159) is GRANTED IN PART AND
DENIED IN PART. The motion for fees is granted, but the award is limited
to $226.50.
2) Plaintiff’s motion to alter or amend judgment (dkt. #165) is DENIED.
3) Defendants’ motion for judgment as a matter of law as to punitive damages
(dkt. #167) is DENIED.
4) The clerk of court is directed to enter an amended judgment, adding the award
of $226.50 in attorneys’ fees, of which $75.00 is due solely from defendant
Radtke, $150.00 is due solely from defendant Nickel, and the remainder $1.50
is due jointly and severally from both defendants.
Entered this 20th day of March, 2017.
BY THE COURT:

/s/
_____________________________________
WILLIAM M. CONLEY
District Judge

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