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

Filing 110

ORDER denying without prejudice 56 plaintiff Robert Tatum's motion for appointment of expert; denying 73 plaintiff's request for relief; denying 79 plaintiff's motion for reconsideration; granting 82 defendants Michael Meisner and Cathy Jess's motion to seal Exhibit 115; denying 86 , 98 plaintiff's motions for electronic filing access; denying 87 plaintiff's motion for contempt or alternatively for sanctions; denying as moot 96 plaintiff's request for hearing; and denying 108 plaintiff's motion to strike entire deposition of R. Tatum. Signed by District Judge William M. Conley on 6/07/2016. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROBERT TATUM, and all similarly situated
DOC/CCI Inmates,

v.

Plaintiff,

OPINION AND ORDER
13-cv-44-wmc

MICHAEL MEISNER and CATHY JESS,
Defendants.

This case is set for a bench trial commencing June 22, 2016, on plaintiff Robert
Tatum’s claim that defendants Michael Meisner and Cathy Jess denied his request for a
Nation of Islam diet in violation of the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”), 42 U.S.C. § 2000cc-2(b).

In advance of trial, the court issues the

following opinion and order on a number of pending motions. 1

I. Motion for Reconsideration
Plaintiff Tatum filed a motion for reconsideration on the court’s summary
judgment motion on four grounds. (Dkt. #79.) First, Tatum contends that the court
erred in failing to consider his two-page “motion for partial summary judgment,” one of
which contained his seven proposed findings of fact.

(Dkt. #50.)

In response,

defendants filed a motion to strike on the basis that the motion did not comply with this
court’s rules on summary judgment filings.

(Dkt. #53.)

To make matters worse,

Tatum’s only evidence in support of his so-called motion was the complaint and a single
The court will take up Tatum’s filings requesting subpoenas for witnesses and writs of habeas
corpus ad testificandum for inmate witnesses during the final pretrial conference scheduled for
June 10, 2016.
1

response to admission, to which defendants also objected. Instead of addressing these
two motions -- the only outcome of which would be to strike plaintiff’s motion for
summary judgment -- the court instead opted to take up defendants’ motion for summary
judgment, which complied with this court’s procedures and for which plaintiff filed a
robust opposition.

Ultimately, the court found disputed issues of fact in deciding

defendants’ motion, which foreclosed entry of partial judgment in plaintiff’s favor as well,
mooting both that motion and defendants’ motion to strike.
Second, and related to the first basis, Tatum argues that the court committed error
in failing to consider his request for judgment independent of his own incomplete and
defective motion under Federal Rule of Civil Procedure 56(f)(1), pointing out that this
request was part of his opposition brief to defendant’s motion for summary judgment.
While the court did not acknowledge this request in its opinion and order, there is no
claim or an element of a claim for which the court could have entered judgment in
Tatum’s favor for reasons aptly described above and in the court’s summary judgment
opinion itself.
Third, Tatum contends that the court erred in entering judgment in defendants’
favor on his First Amendment claim, arguing that the court both improperly weighed the
evidence and failed to conduct a full-blown Turner analysis. As for the court’s treatment
of the record, plaintiff is, of course, correct that the court’s role is not to weigh the
evidence on summary judgment, nor was this done here; rather, the court considered
whether a reasonable trier of fact could find that Tatum met his burden of demonstrating
that the denial of an NOI diet is not reasonably related to a legitimate penological
2

interest based on the undisputed facts viewed in a light most favorable to him. The court
finds no basis for reconsidering that decision for all of the reasons provided in its
summary judgment opinion. (1/26/16 Op. & Order (dkt. #75) 24-25.) Moreover, as the
court explained in that opinion and Tatum wholly fails to address in his motion for
reconsideration, defendants would be entitled to qualified immunity even if the court’s
analysis on the merits were somehow flawed. (Id. at 25-26.)
Fourth, and finally, Tatum argues that the court erred in finding that damages are
not available under RLUIPA. In particular, Tatum takes issue with the court’s failure to
consider his argument that the treatment of Wis. Stat. § 895.46 in Graham v. Sauk Prairie
Police Comm’n, 915 F.2d 1085 (7th Cir. 1990), provided an exception in Wisconsin to
RLUIPA’s general bar to damages.

Section 895.46, which requires municipalities to

indemnify its employees, is of no help to Tatum.

In Graham, the Seventh Circuit

resolved the conflict between that statute and Wisconsin’s municipal tort immunity
statute, Wis. Stat. § 893.80, holding that “the immunity statute does not absolve the
villages and the police commission from indemnifying Mueller’s estate.” Id. at 1089. In
other words, the court held that the government defendants could not claim immunity to
guard against damages awarded against an individual defendant on the basis that the
state would ultimately be on the hook to pay the damages under Wisconsin’s
indemnification provision. Critically, in that case, damages were available as a remedy
under the federal statute at issue, 42 U.S.C. § 1983.
Here, Tatum pursues claims under a federal statute for which there is no right to
damages.

As the court explained in its summary judgment opinion and order, the
3

Seventh Circuit held in Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009), that
damages were not available under RLUIPA.

The Supreme Court reached the same

conclusion in Sossamon v. Texas, 563 U.S. 277, 285-86 (2011), holding that RLUIPA’s
“appropriate relief” language does not constitute waiver of sovereign immunity for private
damages claims. While Tatum notes Justice Sotomayor’s dissent in Sossamon, in which
she, joined by Justice Breyer, argue that waiver should apply and damages should be
available under RLUIPA, that is plainly not the current state of the law.

On the

contrary, the majority’s decision barring private claims to damages is.
If RLUIPA provided a right to damages, then the state could not claim immunity
because Wisconsin’s indemnification provision would require it to pay the damages
consistent with Graham. Relief under RLUIPA, however, is limited to equitable remedies,
and therefore Graham has no import here. Accordingly, the court finds no error in its
determination that Tatum is limited to equitable relief under the RLUIPA claim. For all
of these reasons, the court will deny Tatum’s motion for reconsideration.

II. Expert Witness Appointment
The court previously reserved on plaintiff’s motion for appointment of counsel
(dkt. #56) and invited defendants to respond to the motion and to the court’s suggestion
during the February 10, 2016, telephonic conference of appointment of a neutral expert. 2
After reviewing defendants’ submission, the court agrees with defendants that an expert
is unlikely to assist the court in understanding the evidence in this case. In any event,
During the February 10 telephonic conference, Tatum acknowledged that appointment of a
neutral expert would address his concerns.

2

4

the court has already explained that if during the course of trial expert testimony would
appear to be important, the court could hold open the trial record and appoint a neutral
expert.

III. Confiscation of Legal Documents
Tatum filed a letter with the court complaining that certain legal documents were
confiscated during a cell search on December 4, 2015. (Pl’s 1/15/16 Letter (dkt. #73).)
During the last telephonic conference, the court ordered defendants to provide a copy of
the surveillance tape of his cell for the relevant period, which defendants promptly did.
The court also ordered defendants to allow Tatum to review the video.

Instead of

allowing Tatum to view the video, defendants filed a motion to file the videotape under
seal. (Dkt. #82.) For his part, Tatum filed a motion for contempt and sanctions. (Dkt.
#87.)
In support of defendants’ motion, the Security Director at WSPF Mark Kartman
submitted a declaration explaining that disclosure of the video to Tatum would
compromise WSPF’s security. Specifically, Kartman avers that the video would inform
inmates “on areas of the cell that are not focused on by staff, or any vulnerabilities in the
cell search process,” as well as reveal any “blind spots of the cell surve[i]llance cameras.”
(Kartman Decl. (dkt. #83) ¶¶ 7-8.)
Upon review, the court credits defendants’ argument that release of the video
could compromise the effectiveness of their search efforts going forward and, therefore,
undermine security efforts. Accordingly, the court will grant defendants’ motion to seal
5

the video. Moreover, in light of these reasonable security concerns, the court will deny
Tatum’s motion for a finding of contempt and sanctions based on defendants’ failure to
produce the video as originally required by the court.
In any event, the court has reviewed the video, which purports to be a recording
from December 4, 2015 of Tatum’s cell and is a little over one hour in length. During
the course of the video, Tatum is removed from the cell, the cell is searched, and then
Tatum is returned to the cell. Over the course of the search, there would appear to be
four officers involved in varying degrees. The officers sifted through papers, in addition
to other personal items.

A tray outside of the cell appears to contain items being

removed from the cell, which appear to be the same tray and items photographed in the
conduct report attached to Kartman’s declaration. In that report, an officer represents he
confiscated “pieces of paper, puzzles . . . he had taped on his camera, vents and wall, tape
off of his walls, folders that were falling apart and had tape on them, extra soap, food
from meals, a stack of extra state envelopes (he already had 25 envelopes in his cell), and
two juice cartons.”

(Kartman Decl., Ex. A (dkt. #83-1) p.3.)

The photos appear

consistent with this representation.
While Tatum complains about missing case notes, it appears that his main
complaint is “the mixing and mutilating my entire legal property, making it un-usable
and substantially affecting my ability to prosecute any of my cases.” (Pl’s 1/15/16 Letter
(dkt. #73).) In conducting the search, the officers moved and restacked his legal papers,
but there is nothing on the video supporting his claim that they removed legal documents
from his cell (or if removed, did not return them), much less conducted the search for the
6

purpose of upsetting his organizational system. Indeed, after completing the search, the
officers took extra time to stack his papers into neat piles along the wall. While the court
understands Tatum’s frustration with the disorganization caused by the search,
unfortunately that frustration is part of the day-to-day challenges of being incarcerated.
Lastly, when pressed at his deposition for a description of the specific documents
removed, Tatum noted declarations submitted by defendants in support of their motion
for summary judgment. (Tatum Depo. (dkt. #100) 8.) To the extent Tatum no longer
has these materials, the court or opposing counsel could provide copies. Tatum did not,
however, describe any evidence confiscated that he needs to pursue his claim at trial later
this month. While the court will deny Tatum any relief from the search itself, Tatum is
free to address any ongoing concerns with access to legal documents at this week’s final
pretrial conference and during the court trial itself. 3

IV. Motion to Strike Deposition Testimony
Finally, Tatum seeks an order striking his deposition testimony based on his belief
that defendants’ counsel “allowed [Waupun Correctional Institution] to obstruct the
deposition in this fashion so she could use the ‘hard to hear’ excuse as a way to later
falsify my responses.” (Pl.’s Mot. (dkt. #108) 1.) Plaintiff explains that the deposition
took place over an intercom system, and while defendants’ counsel initially pressed for
In addition to these motions, Tatum filed two motions seeking an order requiring defendant to
unblock access to this court’s electronic docket. (Dkt. ##86, 98.) While this court continues to
work with the DOC on electronic filing efforts, the court is not in a position to order direct
electronic access of a docket by an inmate. As evidenced by the record in this case, however, the
clerk’s office has repeatedly responded to Tatum’s requests for the docket sheet and will continue
to do so as trial approaches. (See, e.g., dkt. #78.) Tatum’s request for electronic access to the
docket is, therefore, denied.
3

7

Tatum to be allowed into the room, eventually she acquiesced to WCI’s demand that
Tatum remain in a separate room. Apparently, Tatum now believes that this was an
elaborate charade by defendants’ counsel who had intended to use the intercom system
all along. This makes little sense. Regardless, Tatum contends that after review of the
deposition testimony, “[t]he entire transcript is a mass of inaccuracies, jumbling my
speech making statements partial, incoherent, inaccurate, for every answer provided.”
(Id. at 2.)
The court has reviewed the transcript, and while there are quite a few
“(inaudible)” notations in the transcript, the vast majority of Tatum’s testimony appears
to be recorded accurately.

Moreover, Tatum fails to direct the court to any specific

passages that are inaccurate.

If anything Tatum’s deposition testimony reflects the

court’s experience with his speaking style during telephonic hearings -- responding very
quickly and, at times, moving from topic to topic in a sporadic fashion.

While the

deposition transcript may be difficult to follow at times -- and certainly the “inaudible”
notations add to this -- it appears consistent with Tatum’s overall speaking style.
Regardless, defendants are the one prejudiced by an incomplete and unreliable
transcript. To the extent that the transcript is uncertain due to inaudible sections, for
example, defendants will not be able to rely on those portions to impeach Tatum. In the
event that defendants sought to enter part of his deposition testimony into the record as
a statement of a party opponent, or more likely for the purpose of assisting Tatum to
recall his prior testimony or to impeach based on any inconsistencies with his trial
testimony, the apparent deficiencies in the transcript will undermine its force.
8

Regardless, the court will not strike the deposition testimony as a whole, or otherwise
grant a blanket limit on defendant’s ability to refer to it at trial on a blanket basis, but
rather will take it up on an individual basis as offered at trial.

ORDER
IT IS ORDERED that:
1) plaintiff Robert Tatum’s motion for appointment of expert (dkt. #56) is
DENIED without prejudice;
2) plaintiff’s request for relief (dkt. #73) is DENIED;
3) plaintiff’s motion for reconsideration (dkt. #79) is DENIED;
4) defendants Michael Meisner and Cathy Jess’s motion to seal Exhibit 115 (dkt.
#82) is GRANTED;
5) plaintiff’s motions for electronic filing access (dkt. ##86, 98) are DENIED;
6) plaintiff’s motion for contempt or alternatively for sanctions (dkt. #87) is
DENIED;
7) plaintiff’s request for hearing (dkt. #96) is DENIED AS MOOT; and
8) plaintiff’s motion to strike entire deposition of R. Tatum (dkt. #108) is
DENIED.
Entered this 7th day of June, 2016.
BY THE COURT:

/s/
________________________________________
WILLIAM M. CONLEY
District Judge

9