Tatum, Robert et al v. Meisner, Mike et al

Filing 11

ORDER denying 7 Motion to Certify Class under Rule 23; denying 8 Motion for Preliminary Injunction; pltf to identify which lawsuits he wishes to pursue by 10/21/13. If no response by 10/28/13, case will be dismissed without prejudice. Signed by District Judge William M. Conley on 09/30/2013. (mfh),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ROBERT TATUM, and all similarly situated
DOC/CCI Inmates,
Plaintiff,

OPINION AND ORDER

v.
13-cv-44-wmc
MIKE MEISNER, JIM SCHWOCHERT, CATHY
JESS, JANE NICKELS, RICK PHILLIPS, MARK
TESLIK, CHAP. CAMPBELL, CHAP. DORN,
KELLI WEST, MALONEY, PROG. DIRECTOR
SCHUELLER, PROG. DIRECTOR IRIZAY, UNIT
MANAGER HAUTAMAKI, LT. MORRISSON,
LT. PEACHIE, CAPT. PEIRCE, SRGT. PAUL, SRGT.
BERLUND, JEFF CAPELLE, DR. SULIENE, DAI
DIETICIAN, DR. SCOTT HOFTIEZER, RN KAY
DEGNER, MARY LEISER, JOANNE LANE, JOANNE
BOVEE, RICK SCHNIEIER, CHARLES FACKTOR,
CHARLES COLE, EDWARD WALL, 5 UNKNOWN
OFFICERS, and 2 UNKNOWN NURSES,
Defendants.
In this proposed civil class action, plaintiff Robert Tatum is seeking leave to
proceed under the in forma pauperis statute, 28 U.S.C. 1915, on his claims that
defendants violated his and other, similarly-situated inmates‟ constitutional rights in
numerous ways.

In particular, plaintiff challenges several policies of the Division of

Adult Institution and/or Columbia Correctional Institution.

Normally, the next step

would be for the court to screen plaintiff‟s complaint pursuant to 28 U.S.C. § 1915A.
Unfortunately for plaintiff, his complaint violates Federal Rule of Civil Procedure 20 in
that he alleges numerous claims against different defendants for unrelated conduct. Such
varied claims cannot be brought in a single action. As explained in more detail below,

Tatum must choose which lawsuit he wishes to pursue as Case No. 13-cv-44. For the
other proposed lawsuits, Tatum may (1) pursue those claims and defendants in separate
lawsuits, or (2) choose to dismiss the other claims and defendants without prejudice to
bringing them at another time provided the applicable statute of limitations has not
expired. Once Tatum has made his selection, the court will then screen this action under
28 U.S.C. § 1915A.
Tatum has also filed a motion for temporary restraining order / preliminary
injunction (dkt. #8), alleging that defendants‟ new photocopy policy obstructs his access
to courts. The court will deny this motion at this time because Tatum has not complied
with the court‟s procedures for seeking preliminary injunctions and because the facts do
not warrant this relief.

ALLEGATIONS OF FACT1
I. Parties
Plaintiff Robert Tatum is currently incarcerated at the Columbia Correctional
Institution (“CCI”) and was previously incarcerated at some other unidentified maximum
security facility for all times relevant to this complaint. Tatum seeks to represent a class
consisting of inmates also incarcerated at CCI, Dodge Correctional Institution and
(perhaps) other institutions.

1

In addressing any pro se litigant‟s complaint, the court must read the allegations
generously. Haines v. Kerner, 404 U.S. 519, 521 (1972). For purposes of this screening
order, the court assumes the probative facts above based on the allegations in his
complaint.
2

Defendant Edward Wall is the Secretary of the Department of Corrections
(“DOC”) for the State of Wisconsin.2 Cathy Jess is the Administrator of the Division of
Adult Institution (“DAI”), which is part of the DOC.

Kelli West is the DAI head

member of the religious request review committee. DAI Dietician is an unknown person
responsible for the management and nutrition of inmates‟ meals, including religious diets.
Faktor and Cole serve as Corrections Complaint Examiners (“CCE”) under the direction
of Hamblin.
Mike Meisner is the warden of CCI and serves as the Appropriate Reviewing
Authority.

Jane Nickels is the Security Director of CCI. Mark Teslik and Campbell are

or were chaplains at CCI for the relevant period. Maloney is the CCI librarian. Schuler
is a program director at CCI, responsible for the management of program services.
Hautamaki, Morrison, Paul, Berguld and five unknown officers are all correctional
officers at CCI. Dr. Suliene is a doctor at CCI. Tatum also asserts claims against two
unknown nurses at CCI. Leiser and Lane are both Inmate Complaint Examiners (“ICE”)
at CCI.
Jim Schwochert is the warden of Dodge Correctional Institution (“DCI”). Rick
Phillips is DCI‟s Security Director. Dorn is or was a chaplain at DCI. Irizay is a program
director at DCI. Peachie and Pierce are correctional officers at DCI. Jeff Cappelle is the
Food Service Administrator at DCI. Dr. Hoftiezer is a doctor and Degner is a nurse at

The complaint names Gary Hamblin, the former Secretary, as a defendant. Because
the allegations against Hamblin are in his official capacity, the court has replaced
Hamblin with the current secretary.
2

3

DCI. Bovee is the ICE at DCI. Schneiter is that Appropriate Reviewing Authority at
DCI.
All defendants are alleged to act under color of state law and are being sued in
both their individual and official capacities.

II. Nature of Complaints
A. Religious Diet
Tatum alleges that on about June 27, 2011, DCI Chaplain Dorn placed Tatum on
a vegan diet, which did not meet his religious diet requirement and left him
malnourished. Tatum further alleges that he was placed on a vegan diet pursuant to a
DAI‟s “Religious Affiliation Umbrella Group” policy, which is allegedly promulgated by
defendant Jess. Tatum alleges that this policy “classified related religions into a group,
and forces inmates to accept the exact same services designated to that group regardless
of whether the services meet your particular religion‟s requirements.” (Compl. (dkt. #1)
¶ 29.) Tatum complained to Dorn and DCI Warden Schwochert that the diet did not
meet his religious dietary restrictions or provide the minimum intake standards as
required under DOC-309.23.3

3

When defendants failed to respond, Tatum alleges that he started a fast / hunger strike.
As to this, Tatum alleges various related claims specific to his individual treatment. At
some point, Tatum allegedly decided to eat one meal per day and requested an
accommodation from defendant Phillips to allow him to eat that one meal in his cell so
that he could store and manage meals. Tatum claims defendants‟ denied his request
“based on spite and not a pertinent security issue/reason.” (Id. at ¶ 31.) Tatum also
alleges that defendant Peirce and Peachie removed a sign he had placed outside of his cell
tallying the number of days he was on fast to stop him from communicating his fast /
strike to other inmates. Tatum further alleges that Peirce and Peachie called him to the
4

On August 8, 2011, Tatum was transferred to CCI, at which time he filed a new
religious preference and religious diet form that was denied by defendant Irizay as
“outside of practice currently required by DCI.” The denial was affirmed by West and
Meisner and the subsequently-filed grievance was also rejected.

Subsequent requests

were similarly denied.
Tatum participated in the Ramadan fast at DCI / CCI during the 2011 fast. As
established by DAI (defendant Jess in particular), Ramadan meals consist of two bags
provided at approximately 4:00 a.m. and at sundown.

The food in the two bags is

supposed to be comparable to the three meals of the general diet in terms of nutrition
intake. Tatum alleges that the two bags combined do not equal the nutrition of the three
daily, general diet meals and, more importantly, do not meet the minimum intake
standards established in the DOC Diet Manual.
administrative remedies on this issue as well.4

Tatum alleges that he exhausted

Because of the inadequate nutrition,

Tatum further alleges that his religious practice was substantially burdened and he
suffered health consequences, including “suffered atypical damages” because of his
unique diet and health and body type. (Id. at ¶ 60.)

security office and threatened him in an attempt to persuade him to stop his fast / strike,
causing him emotional distress. Finally, Tatum alleges that he suffered health problems
related to the denial of religious diet and lack of proper nutrition and that defendant
Hoftiezer and Degner ignored his medical needs.
4

Tatum also alleges that he was later denied Ramadan meals in 2012 because of his 2011
grievance over the lack of nutrition in those meals.
5

B. Grievance Process
Tatum also alleges that CCI Warden Meisner “affirms any decision of the ICEs
without reviewing the merits of their actions / determinations or the inmates‟ grievance,
and is in effect a „rubber stamp‟ for affirming any actions against inmates regardless of
[whether] that action was valid or violated an inmate‟s substantial rights.” (Id. at ¶ 64.)
Tatum cites to examples from his own administrative challenges to the religious diet
policy. As such, Tatum alleges that defendants cause Tatum and “his class to suffer loss
of time and monetary expense in seeking court interve[n]tion that are more properly
venued with the ICRS [to] resolve.” (Id. at ¶ 69.)

C. CD/DVD Ban
Tatum separately challenges DAI/CCI policy instituted by Jess and Meisner of
banning inmates‟ possession of CDs/DVDs for legal purposes. Tatum specifically alleges
that on July 20, 2012, two CD/DVDs containing evidence in another of Tatum‟s pro se
lawsuits were confiscated during a unit wide shakedown search. Tatum further maintains
that the content of these discs were copied off the chapel library computer, allowing any
inmate or officer to view the contents. Tatum alleges that this policy violates his Sixth
and First Amendment rights and that defendants lack a “legitimate penological interest in
the CD/DVD ban for legal use.” (Id. at ¶ 80.)

6

D. Laptop Ban
Tatum also challenges defendants Jess‟s and Meisner‟s policy banning possession
of laptop computer and email / internet access in CCI, contending that defendants have
“no substantial penological interest” in this ban.

E. Tort Claim based on Release Account Policy
Defendants Jess, Hamblin and Meisner are separately alleged to have a policy
denying inmates use of their release accounts, regardless of an inmates‟ sentence and
eligibility for release. Tatum alleges that “release accounts are trust accounts, in which a
percentage of an inmates‟ total received money is set aside up to $5000 to ensure the
inmate has funds for basic expenditures such as transport & clothes upon release from
incarceration.” (Id. at ¶ 86.) Tatum alleges, therefore, that he and other inmates with
life sentences with no parole eligibility should be able to access their release accounts
“because the purpose of the trust account cannot be achieved” in these cases. (Id. at ¶
100.)

In Tatum‟s view, that this policy is “basically a robbing on inmates‟ money

without legitimate purpose” and seeks release of the funds through a state law conversion
or replevin action.

F. Phone Access Policy
Tatum separately challenges Meisner‟s policy denying him and other inmates
pursuing cases pro se from “making phone calls to further their legal pursuits, calling
courts for case updates & information, conferring with opposing counsel, witnesses, or

7

other necessary parties during business hours, by not allowing inmates phone use during
business hours or access to direct-line phone services.”

(Id. at ¶ 102.)

Once again,

Tatum challenges the justification for this policy and further contends that the policy
limits his and other inmates‟ effectiveness at pursuing pro se lawsuits.

G. Library Access
Tatum also challenges Meisner and Maloney‟s policy limiting access to the library
to 10 inmates per unit on assigned dates and times, which forces inmates to choose
between recreation and library participation. Tatum similarly challenges a new policy
that removed all legal books from the library and only allows caselaw and statute searches
via LEXIS computer access allowed during law library time. As a result, Tatum contends
that defendants have prevented Tatum and others from pursuing their legal claims, and
that the policy serves no legitimate penological interest.

H. Treatment of Legal Materials during Search
Plaintiff also complains of having some of his legal papers thrown away during a
lockdown property search.

Plaintiff contends that defendants Morrison and Paul

discarded legal materials after Tatum alerted them of the content of some of his papers.
Tatum further alleges that this evidence was necessary for him to pursue his active pro se
cases.

8

I. Mail Use Policy
Tatum similarly alleges that on March 19, 2012, Tatum turned a brief over to the
prison mail personnel with three valid postage stamps, containing sufficient pre-paid
postage for the brief. On March 23, 2012, the package was returned with “void” written
on the stamps with an ink pen, destroying the stamps‟ value and preventing the filing of
Tatum‟s brief.

Tatum further alleges that the stamps were destroyed pursuant to

Meisner‟s policy. Plaintiff alleges that a similar incident occurred on May, 2, 2012, and
that he was disciplined for his use of the stamps. Tatum further alleges that this incident
was in retaliation for Tatum‟s filing of grievances for rights violations and his active court
cases against prison personnel.

J. Photocopy Policy
Finally, plaintiff alleges that CCI Warden Meisner instituted a new photocopy
policy on January 1, 2013, which requires inmates to send material through interinstitution mail to the Education Department for scanning and approval outside of the
inmate‟s presence. Previously, inmates copied materials during their scheduled library
period with the library correctional officer reviewing and approving materials in the
inmate‟s presence.

Tatum contends that the new policy threatens disclosure of

confidential legal documents and introduces the risk that the legal papers will be lost. In
turn, Tatum contends that the new policy obstructs inmates‟ access to courts.

9

OPINION
I. Federal Rule of Civil Procedure 20
The Court of Appeals for the Seventh Circuit has emphasized that district courts
have an independent duty to apply the permissive joinder rule in Fed. R. Civ. P. 20 to
prevent improperly joined parties or claims from proceeding in a single case. George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007) (holding that complaint raising unrelated
issues against different defendants “should be rejected” by district court in accordance
with Rule 20). Rule 20(a) prohibits a plaintiff from asserting unrelated claims against
different defendants in the same lawsuit, unless (1) the plaintiff asserts at least one claim
against each defendant arising out of the same transaction or series of transactions; and
(2) the action presents a question of law or fact common to all of the defendants. Fed. R.
Civ. P. 20(a); George, 507 F.3d at 607. If both requirements of Rule 20(a) are satisfied,
then a plaintiff may join as many additional, unrelated claims as he has against those
defendants. Fed. R. Civ. P. 18(a); Intercon Research Assn., Ltd. v. Dresser Ind., Inc., 696
F.2d 53, 57 (7th Cir. 1983). A plaintiff may not, however, use Rule 18(a) to join claims
against additional defendants outside the “core group” identified in Rule 20(a).
In this case, Tatum asserts separate claims against different defendants for
different occurrences or series of occurrences.

The court understands Tatum to be

bringing the following claims, which even generously divide into at least four separate
lawsuits:


Lawsuit #1 (Denial of Adequate Religious Diet as violation of First
Amendment and RLUIPA and Retaliation Because of Complaints about
Religious Diet)
10

o Defendants‟ religious diet policy fails to account for an individual‟s
specific religious requirements.
o Defendants‟ religious diet policy fails to provide adequate nutrition, in
particular for those inmates observing Ramadan.
o Defendants Peirce and Peachie retaliated against him because of his
complaints about the inadequacy of the religious diet, including
Tatum‟s fast / food strike.


Lawsuit #2 (Denial of Medical Treatment Related to Inadequate Diet in
Violation of the Eighth Amendment)
o Defendants Hoftiezer and Degner ignored his medical needs related to
the denial of religious diet and lack of proper nutrition.



Lawsuit #3 (Meisner’s Treatment of Grievances in Violation of
Fourteenth Amendment)
o Defendant Meisner‟s automatic affirmance of any action against
inmates violates inmates‟ Fourteenth Amendment rights.



Lawsuit #4 (Access to Courts Claim Challenging Various Prison Access
Policies)
o Defendants Jess, Meisner and Maloney implemented various policies
that limit inmates‟ ability to represent themselves in pro se cases,
including (1) CD/DVD ban, (2) laptop ban, (3) phone access policy, (4)
library access, (5) treatment of legal materials during a search), (6) mail
use policy, and (7) photocopy policy.



Lawsuit #5 (Tort Claim based on Release Account Policy)
o Defendants‟ policy of not allowing inmates serving life sentences
without the possibility of parole from using the funds in their release
accounts constitutes conversion.

Because these five, distinct claims involve separate transactions against a different
core set of defendants, they may not be brought in a single lawsuit. Under George, the
court may apply the filing fee that Tatum owes in this case to any of the five lawsuits
listed above, but Tatum will have to choose which of the lawsuits to pursue as Case No.

11

13-cv-44.5
For the other lawsuits, Tatum must make a choice. He may choose to pursue
them separately. In that case, he will be required to file separate complaints as to each
and pay a separate filing fee for each, understanding that Tatum will be subject to a
separate strike for each lawsuit ultimately dismissed as legally meritless.6 Alternatively,
Tatum may choose to dismiss the other lawsuits voluntarily. If he chooses this latter
route, he will not owe any additional filing fees or face any potential strikes. Any lawsuit
dismissed voluntarily would be dismissed without prejudice, so Tatum may be able to
bring it at another time provided the applicable statute of limitation has not expired.
In short, because Tatum faces a filing fee and possible strike for each additional
lawsuit pursued, he should carefully consider the merits and relative importance of each
potential lawsuit before proceeding. Because it is unclear which lawsuit Tatum wants to
pursue, he should also be aware that the court has not assessed the possible merits of any
of the separate lawsuits identified above. Once Tatum identifies the suit he wants to
pursue under this case number, the court will screen the actions that remain as required
under 28 U.S.C. § 1915(e)(2).

5

Arguably, plaintiff‟s medical claims in Lawsuit #2 above arise out of the actions
challenged in Lawsuit #1, even though the legal standards are different, meaning plaintiff
might combine those two suits, but Lawsuits ##3, 4, and 5 have no arguably common
transaction or question of law or fact. For this reason, plaintiff‟s motion for class
certification and appointment of class counsel (dkt. #7) is also premature. The court is
not in a position to evaluate plaintiff‟s motion until Tatum selects which of his several
proposed claims is going forward. Accordingly, the court will deny this motion without
prejudice to refiling at the appropriate time.
6

Once a prisoner receives three strikes, he is not able to proceed in new lawsuits without
first paying the full filing fee (except in narrow circumstances). 28 U.S.C. § 1915(g).
12

II. Preliminary Injunction
Tatum has also filed a motion for preliminary injunction/ temporary restraining
order.

(Dkt. #8.)

In the motion, Tatum complains that the new photocopy policy

described above “violates pl[aintiff‟s] ([and] his class[‟s] access to courts rights and
impedes pl[aintiff] from completely pursuing his active pro se cases by its enforcement.”
(Id. at 1.) Specifically, Tatum contends that the policy is preventing him from obtaining
copies to file motions in a separate pro se case because his inter-institutional mail
containing legal materials is being “tampered with, „lost‟ without a trace, and [that he
has] received other inmates‟ mail on FREQUENT basis.” (Id.) Tatum also complains
that other inmates have had similar issues.
Although there are many reasons to deny this motion, two will suffice at this
juncture. First, Tatum‟s motion fails to comply with this court‟s procedures for obtaining
a preliminary injunction, a copy of which will be provided to Tatum with this order.
Under these procedures, a plaintiff must file and serve individual, proposed findings of
fact that support his claims, along with underlying evidence that support each proposed
finding of fact. Although Tatum has declared under oath alleged impacts of the new
policy, he has submitted no proposed findings of fact or evidence to which the defendants
would be required to respond.
Second, even if Tatum‟s motions were not facially flawed, the court would deny the
motion on its merits at this time. Granting preliminary injunctive relief “is an exercise of
a very far-reaching power, never to be indulged in except in a case clearly demanding it.”
Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 389 (7th Cir. 1984). A district court
13

must consider four factors in deciding whether a preliminary injunction should be
granted: (1) whether the plaintiff has a reasonable likelihood of success on the merits; (2)
whether the plaintiff will have an adequate remedy at law or will be irreparably harmed if
the injunction does not issue; (3) whether the threatened injury to the plaintiff outweighs
the threatened harm an injunction may inflict on defendant; and (4) whether the
granting of a preliminary injunction will disserve the public interest. Pelfresne v. Vill. of
Williams Bay, 865 F.2d 877, 882-83 (7th Cir. 1989).
Based on his submission to date, Tatum is not likely to demonstrate that
defendants‟ new photocopy policy obstructs his access to court in violation of the First
Amendment. Indeed, a review of the docket in Tatum v. Clarke, No. 11-cv-1131 (E.D.
Wis. Dec. 31, 2011), demonstrates that Tatum is fully participating in this lawsuit. See
Eichwedel v. Chandler, 696 F.3d 660, 673 (7th Cir. 2012) (“[A]n inmate may prevail on a
right-of-access claim only if the official actions at issue hindered his efforts to pursue a
legal claim.” (internal citation and quotation marks omitted)).

To the extent Tatum

experienced difficulty in submitting summary judgment papers in that lawsuit because of
defendants‟ photocopy policy, he could have sought relief in the Eastern District of
Wisconsin. Moreover, Tatum‟s numerous court filings in that case bellies any claim that
he has been irreparably injured by defendants‟ new photocopy policy.

See E.D. Wis.

CM/ECF Docket for Tatum.
At this time, Tatum should respond to the pleading deficiencies identified in this
order, so that the court can apply the appropriate law to screen his claims. Should he
wish to pursue any motion for Temporary Restraining Order or Preliminary Injunction in
14

the meantime, he must refile it in accordance with this opinion. Plaintiff is not, however,
entitled to discovery (1) unless separately allowed by order of the court or (2) until after
this court screens his complaint, the complaint is served on defendants and the court
holds its preliminary pretrial conference. Fed. R. Civ. P. 26(b).

ORDER
IT IS ORDERED that:
1) Plaintiff Robert Tatum‟s motion for temporary restraining order / preliminary
injunction (dkt. #8) is DENIED without prejudice;
2) Plaintiff‟s motion for class certification and appointment of class counsel (dkt.
#7) is DENIED without prejudice;
3) No later than October 21, 2013, Tatum must identify for the court which one
of the lawsuits identified in this opinion, he wishes to pursue under the case
number assigned to his complaint;
4) No later than October 21, 2013, Tatum must also inform the court whether he
wishes to continue to prosecute any of his other claims as separate lawsuits or
withdraw them voluntarily. If Tatum dismisses these claims voluntarily, he
will owe no further filing fee. If Tatum advises the court he intends to
prosecute one or more of these claims in a separate lawsuit, he will (1) owe a
separate $350 filing fee for each new lawsuit and (2) need to file a separate
complaint setting forth his claims; and
5) If plaintiff fails to respond to this order by October 28, 2013, then the clerk is
directed to enter an order dismissing without prejudice the entire lawsuit based
on plaintiff‟s failure to prosecute it.
Entered this 30th day of September, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

15