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

Filing 168

ORDER that plaintiff Robert L. Tatum's motion for reconsideration (dkt. # 157 ), motion to strike response and to order 28-day menu and motion for sanctions (dkt. # 160 ), motion to request defendants to submit nutrition analysis report (dkt. # 162 ), motion to supplement and motion to expedite decision (dkt. # 163 ), motion for leave to file rely (dkt. #165), motion and declaration requesting relief regarding tray tampering (dkt. # 166 ) are DENIED. Plaintiff's motion for an a ward of costs (dkt. # 158 ) is GRANTED IN PART AND DENIED IN PART. Plaintiff is award $495.00 in costs, with $232.99 to be paid to plaintiff and $262.01 to be paid to the court to cover the remaining filing fee balance. The clerk of court is directed to amend the judgment to reflect this award of costs. Signed by District Judge William M. Conley on 1/5/2018. (jef),(ps)

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

ORDER
13-cv-44-wmc

MICHAEL MEISNER and CATHY JESS,
Defendants.
After a trial to the bench, the court previously entered judgment in plaintiff Robert
Tatum’s favor on his claim that defendants Michael Meisner and Cathy Jess violated the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc2(b), by failing to accommodate his request for a diet in compliance with the Nation of
Islam, resulting in the entry of a permanent injunction requiring such an accommodation.
(9/26/17 Op. & Order (dkt. #155); 9/27/17 Judgment (dkt. #156).)

Perhaps

unsurprisingly given the history of this case, rather than bringing finality, that judgment
lead to a flood of follow-up motions by plaintiff -- a motion to reconsider, a motion to
require defendants to submit a nutritional analysis, and various motions to supplement, to
strike and to file reply briefs, as well as a motion requesting relief from alleged tray
tampering. (Dkt. ##157, 160, 162, 163, 165, 166.) For the reasons explained below, all
of those motions will be denied.
As an initial matter, in light of Tatum’s recent transfer out of the Wisconsin
Department of Corrections to the Racine County Jail, the court will summarily deny all
post-judgment motions seeking modifications of prospective relief as moot. (11/29/17 Mail

Returned Entry (dkt. #167); 12/12/17 Call from Tatum updating address.) See, e.g., Herbst
v. Sevier, No. 10-2171, 2011 WL 1979732, 430 F. App’x 530, 531 (7th Cir. May 23, 2011)
(prisoner’s claim challenging a disciplinary conviction was moot by his release from
custody).

In one of the motions for reconsideration, however, plaintiff continues to

challenge this court’s denial of leave to pursue damages as part of an Eighth Amendment
claim. (Pl.’s Mot. (dkt. #157) 1-2.) While Tatum’s transfer out of state custody arguably
does not moot this motion, the court also sees no basis to revisit its decision for the reasons
previously, and repeatedly, explained to Tatum.

(9/26/17 Op. & Order (dkt. #155)

(explaining history of this case and reasons for not allowing Tatum to pursue an Eighth
Amendment claim at this late date) (citing 9/30/13 Op. & Order (dkt. #11); 9/16/14 Op.
& Order).)

Finally, while Tatum may attempt to bring a new lawsuit against the

defendants, alleging tray tampering in retaliation for the exercise of his First Amendment
Rights, or an RLUIPA claim against the Racine County Jail for denial of an NOI diet, the
court will not take up those separate claims in this lawsuit. Of course, Tatum is also free
to appeal this court’s various rulings and entry of a permanent injunction, or at least aspects
of that appeal not mooted by his transfer out of defendants’ custody.
There is one motion, however, which does warrant consideration. As the prevailing
party, plaintiff moves for an award of costs pursuant to 28 U.S.C. § 1935, specifically
seeking the following amounts:
• Paper costs
• Typewriter ribbons / writing materials
• Postage
• Legal assistance from L. Muhammad
• Filing fees
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$ 25.00
$ 40.00
$ 30.00
$200.00
$400.00

TOTAL:

$695.00

(Pl.’s Mot. (dkt. #158).)
In response to that motion, defendants object to two of the categories of requested
costs. First, with respect to the filing fee, defendants point out that plaintiff still owes the
court $262.01. As such, while the court will award $400.00 for filing fees, defendants will
be directed to pay $262.01 to the court, cancelling plaintiff’s debt in that amount, with
the remainder of $137.99 paid to plaintiff directly. Second, defendants challenge plaintiff’s
request for $200.00 to cover costs related to “legal assistance” that he purports to have
received from L. Muhammad, who appears to be his mother and not an attorney, for
undisclosed “travel, phone calls, and photocopies.” (Pl.’s Mot. (dkt. #158).) The court
will deny this request because it does not fall within the taxable costs allowed under 28
U.S.C. § 1920. Even if permitted, the request is also too vague to support an award. See
Wahl v. Carrier Mfg. Co., 511 F.2d 209, 217 (7th Cir. 1975). Accordingly, the court will
grant in part plaintiff’s motion awarding him $495.00 in costs, with $262.01 of that
amount to be paid by defendants to the court to clear the balance of the filing fee owed by
plaintiff and the remainder to be paid to plaintiff.

ORDER
IT IS ORDERED that:
1) Plaintiff Robert L. Tatum’s motion for reconsideration (dkt. #157), motion to
strike response and to order 28-day menu and motion for sanctions (dkt. #160),
motion to request defendants to submit nutrition analysis report (dkt. #162),
motion to supplement and motion to expedite decision (dkt. #163), motion for
leave to file rely (dkt. #165), motion and declaration requesting relief regarding
tray tampering (dkt. #166) are DENIED.
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2) Plaintiff’s motion for an award of costs (dkt. #158) is GRANTED IN PART
AND DENIED IN PART. Plaintiff is award $495.00 in costs, with $232.99 to
be paid to plaintiff and $262.01 to be paid to the court to cover the remaining
filing fee balance.
3) The clerk of court is directed to amend the judgment to reflect this award of
costs.
Entered this 5th day of January, 2018.
BY THE COURT:

/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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