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

Filing 177

ORDER denying 172 Motion for Reconsideration; denying 173 Motion for Hearing; denying 175 Motion for Ruling; granting in part and denying in part 176 Motion for Sanctions. The 176 motion is granted as to requiring defendants to file proof of an adjustment in Tatum's trust account to reflect a $0 balance for the filing fee for this case on or before June 28, 2018. In all other respects, the motion is denied. Signed by District Judge William M. Conley on 6/14/2018. (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.

OPINION AND ORDER
13-cv-44-wmc

MICHAEL MEISNER and CATHY JESS,
Defendants.
Having entered judgment in this case in plaintiff Robert Tatum’s favor and an
amended judgment reflecting an award of costs, plaintiff has filed yet another motion for
reconsideration and related motions seeking modification of the court’s injunction
requiring defendants to provide a Nation of Islam compliant diet. For the reasons that
follow, the court denies Tatum’s most-recent motions. No further relief will be provided
in this lawsuit.
As described in the court’s last order, Tatum was released from the Wisconsin
Department of Corrections to the Racine County Jail. As such, the court summarily denied
as moot all of his post-judgment motions seeking modifications of prospective relief.
(1/5/18 Order (dkt. #168).)

After Tatum was “re-convicted,” he filed a motion for

reconsideration on the basis that his motions for prospective relief are no longer moot since
he will be returned to state custody. (Dkt. #172.) In an even more recent filing, Tatum
specifically represents that he was returned to DOC custody and moved to Dodge
Correctional Institution as of May 17, 2018. (Dkt. #173.)

As an initial matter, Tatum’s claims for relief still may be moot, since his release
from DOC custody arguably restarted the administrative process for Tatum to seek an
accommodation for his religious practices, although to the extent they are unchanged, the
court’s prior rulings are obviously a set of guidelines DOC may be well advised to follow.
Regardless, it appears from Tatum’s own filings that he was “immediately put back on their
diet scheme for NOI compliance without even requesting it.” (5/21/18 Mot. (dkt. #173).)
As evidenced from his most recent motions and from past motions for reconsideration,
Tatum is now dissatisfied with the court-ordered diet, urging the court to conduct a hearing
to ensure that it satisfies his rights under the Eighth Amendment and RLUIPA. Assuming
these arguments are not moot, all of Tatum’s current challenges are either: (1) forfeited
because he failed to raise those issues timely in his earlier challenges to the DOC proposed
diets; or (2) unrelated to the requirement that he be provided a nutritionally-adequate,
NOI-compliant, instead raising issues with respect to the blandness and repetitiveness of
the food offered, that should be the subject of a new lawsuit.
Regardless, Tatum now complains about the repetition of the diet plan and the
amount of certain items (e.g., beans, rice and bread). (Dkt. #160.) As the court previously
pointed out, Tatum presented a moving target as to his particular dietary requests, shifting
positions throughout the administrative process, into this litigation and even during trial.
(9/26/17 Op. & Order (dkt. #155) 7.) In its opinion and order granting injunctive relief,
the court explained why the diets described in Exhibits 503a and 503b, modified by
excluding peanut butter, pinto beans and skim milk, met his religious needs and were
nutritionally adequate. (Id. at 12-14.) The fact that these meals are provided on a 7-day,
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rather than a 28-day loop, does not undermine the adequacy of these meal plans to meet
Tatum’s religious needs.

Moreover, as the court explained in rejecting defendants’

argument that Tatum should “self-select” from the vegan or Halal menus, the NOI diet
itself is extremely limited in terms of acceptable foods. (1/26/16 Op. & Order (dkt. #75)
18-19.) As such, Tatum’s complaints about repetitiveness of food has as much to do with
the limitations in the NOI-diet, or at least Tatum’s restrictive interpretation of that diet,
than to lack of creativity or variety in the DOC’s menu plan.
Tatum also complains about receiving MF/LS bread, canned fruits and vegetables,
milk-free margarine and an assorted flavor fruit drink. (Dkt. #162.) However, all of these
items were on Exhibits 503a and 503b, and Tatum did not object to them at trial or in his
post-trial, pre-judgment briefing. Indeed, he argued that the DOC should be required to
adopt a diet “similar to 503a.” (9/26/17 Op. & Order (dkt. #155) 13 (quoting Pl.’s PostTrial Br. (dkt. #126) 5).) Accordingly, the time for voicing concerns about particular items
not being NOI-compliant has long since passed.
Moreover, in his post-trial briefing, Tatum primarily argued that the DOC should
be required to replace the Halal diet with an NOI-compliant diet, an argument which the
court rejected. For whatever reason, Tatum chose to focus his attention on this argument
rather than raising any additional concerns with respect to the diet contained in Exhibits
503a and 503b. Having relied on the objections Tatum made during the course of trial in
crafting the permanent injunction, the court sees no reason to amend the injunction
further, especially on the basis of objections Tatum already waived. Finally, in light of the
fact that the meal plans provide approximately 3500 calories per day (see dkt. #159-2),
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there is some wiggle room for Tatum to “self-select” and not eat items he now deems overly
repetitive or simply unacceptable.
In addition, Tatum now lodges complaints entirely unrelated to the religious
accommodation at issue in this case. For example, Tatum complains that the DOC only
provides one can of Boost, which is not enough to cover his cereal and requires him to eat
dry cereal. Tatum also complains that the beans are bland. Neither of these complaints
rise to the level of “torture” as Tatum dramatizes, nor do they violate the letter or the spirit
of the injunction, nor otherwise provide a cause of action under RLUIPA, much less reopen
final judgment in this case.
Tatum also seeks reconsideration of the court’s award of costs and sanctions against
defendants for misrepresenting cost payments. As for the reconsideration, Tatum seeks
reimbursement for various legal loans, but as far as the court can surmise these costs are
duplicative of the reimbursement already ordered for his paper costs, typewriter ribbons,
writing materials and postage -- or at least Tatum has not explained how the legal loans
covered other items, or if so, what the legal loans covered. Tatum next reasserts his
argument for $200.00 for legal assistance for Linda Muhammad for compensation for the
time that he personally spent on this lawsuit. As the court previously explained, neither
are taxable costs allowed under 28 U.S.C. § 1920. Even if they were permitted, the request
is too vague to support an award. See Wahl v. Carrier Mfg. Co., 511 F.2d 209, 217 (7th
Cir. 1975).
Finally and perhaps more meritorious, it appears that Tatum’s trust account
statement shows a balance due for the filing fee in this case. (Dkt. #176-1.) To the extent
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that the court is reading this document correctly, it received the balance of the filing fee
from defendants. Therefore, defendants should adjust Tatum’s trust account statement to
show a $0 balance for this filing fee. While the court will require defendants to file proof
of the adjustment, the court will neither sanction defendants for this apparent oversight
nor grant plaintiff any further relief on this record.

ORDER
IT IS ORDERED that:
1) Plaintiff Robert L. Tatum’s motion for reconsideration (dkt. #172), declaration
and request for evidentiary hearing (dkt. #173) and motion for the court to
expedite / timely hear and decide PI motions (dkt. #175) are DENIED.
2) Plaintiff’s motion for sanctions against defendants for misrepresenting cost
payments and for recalculation of costs based on new information and evidence
(dkt. #176) is GRANTED IN PART AND DENIED IN PART. The motion is
granted as to requiring defendants to file proof of an adjustment in Tatum’s trust
account to reflect a $0 balance for the filing fee for this case on or before June
28, 2018. In all other respects, the motion is denied.
Entered this 14th day of June, 2018.
BY THE COURT:

/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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