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

Filing 30

Order DENYING plaintiff's 27 motion to disqualify; DENYING plaintiff's 28 motion for reconsideration; and DENYING without prejudice plaintiff's 28 renewed motion for class certification and appointment of class counsel. Signed by District Judge William M. Conley on 11/18/2014. (elc),(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, and CATHY JESS,
Defendants.
Plaintiff Robert L. Tatum, an inmate currently incarcerated at the Wisconsin
Secure Program Facility and previously incarcerated at Columbia Correctional
Institution, now seeks: (1) my recusal from this case because delays in screening and
ultimate dismissal of many of his putative claims and defendants; (2) review of this
court’s order granting his third motion for reconsideration, which allows him to proceed
only against defendants Michael Meisner and Cathy Jess on claims under the First
Amendment Free Exercise clause and RLUIPA’s substantial burden provision, 42 U.S.C.
§ 2000cc-2(b); and (3) certification of a class action and appointment of class counsel.
(Dkt. ##27, 28.) For the reasons set forth below, the court will deny all motions, while
providing Tatum additional guidance on the process for certifying this case as a class
action and appointing class counsel.

OPINION
I. Motion for Recusal
Tatum filed this action on January 18, 2013 (dkt. #1), with motions following in
early February for class certification (dkt. #7) and preliminary injunction/TRO (dkt. #8).
At the end of September, 2013, the court denied those motions (dkt. #11), as well as a
separate motion for recruitment of counsel (dkt. #10), and directed him to advise which
of as many as 5 possible causes of action he wished to pursue in this lawsuit. After
denying repeated motions for reconsideration and entering judgment dismissing the
lawsuit without prejudice for failure to narrow his claims in December of 2013 (dkt.
#16), the court reopened the case in September of 2014 in response to a third, postjudgment motion to reconsider that directed the court to a cover letter accompanying one
of his earlier motions for reconsideration, in which Tatum stated, 'I am willing to drop
claims vs. the Warden of DCI, Jim Schwochert, but I still contend the Complaint is valid
as it is. All the other issues were asserted against 1 defendant in compliance with FRCP
Rule 18, CCI’s Warden Mike Meisner.”

(Dkt. #22 (quoting (2nd Mot. for

Reconsideration, Letter (dkt. #14-1)).) At the same time, the court granted Tatum
leave to proceed with claims under the First Amendment and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-2(b), against the warden
of the Columbia Correctional Institution (Michael Meisner) and the DOC Administrator
for the Division of Adult Institutions (Cathy Jess) concerning the nutritional adequacy of
Ramadan meals. (Dkt. #22.)

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Among other things in response, Tatum has now filed a motion to disqualify or
recuse the undersigned. Two statutes exist for disqualifying a federal judge in a particular
case. See 28 U.S.C. §§ 144 and 455. Section 144 requires a federal judge to recuse
himself for “personal bias or prejudice.” Section 455(a) requires a federal judge to
“disqualify himself in any proceeding in which his impartiality might reasonably be
questioned,” and section 455(b)(1) provides that a judge shall disqualify himself if he
“has a personal bias or prejudice concerning a party.” Because the phrase “personal bias
or prejudice” found in § 144 mirrors the language of § 455(b), they may be considered
together. Brokaw v. Mercer County, 235 F.3d 1000, 1025 (7th Cir. 2000).
Section 144 provides that when a party makes and files a timely and sufficient
affidavit alleging that the judge has a personal bias or prejudice either against him or in
favor of the adverse party, the judge should proceed no further and another judge should
be assigned to the proceeding. To be sufficient, the affidavit is to “state the facts and the
reasons for the belief that bias or prejudice exists,” which must support an assertion of
actual bias. United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985). They must
be definite as to times, places, persons and circumstances. Id. Only those facts that are
“sufficiently definite and particular to convince a reasonable person that bias exists” need
be credited.

United States v. Boyd, 208 F.3d 638, 647 (7th Cir. 2000).

“Simple

conclusions, opinion or rumors are insufficient.” Id.
Similarly, in deciding whether a judge must disqualify himself under 28 U.S.C. §
455(b)(1), the question is whether a reasonable person would be convinced the judge was

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biased. Hook v. McDade, 89 F.3d 350, 355 (7th Cir. 1996) (internal quotation omitted).
Recusal “is required only if actual bias or prejudice is proved by compelling evidence.” Id.
Tatum has neither filed an affidavit stating the facts and reasons for his belief that
bias or prejudice exists, nor otherwise demonstrated that disqualification or recusal is
required. Accordingly, Tatum has not complied with the requirements of § 144.
Even ignoring the lack of an affidavit, Tatum merely takes issue with the timing
and the content of the court’s screening order in this case, which limited Tatum’s claims
to the ones set forth above under the First Amendment and the RLUIPA. The record
reflects that a substantial part of the delay in this case is attributable to Tatum, who
repeatedly refused to comply with court orders to file an amended complaint in
compliance with federal pleading rules.

Tatum does not show that the remaining

portions of delay in this case are attributable to reasons other than this court’s heavy
workload. Perhaps Tatum could take some comfort from the fact that this court has one
of the highest weighted caseloads per judgeship and had been down one of its two
judgeships for six years until very recently. Perhaps not.
Regardless, I can assure him that the delay in taking up his third motion to
reconsider had nothing to do with any bias or prejudice, but rather was a product of
oversight. Nor was Tatum’s filing a judicial complaint about that delay ill-received. On
the contrary, it called the court’s attention to this long-pending motion. In any event,
there is neither bias or prejudice, nor the appearance of bias in the court agreeing to
reopen this case despite Tatum burying his election to narrow his suit in a cover letter to
the court.
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To the extent that Tatum takes issue with the screening order itself, he fails to
show that the order was incorrect. Moreover, judicial rulings do not constitute proof of
bias. Liteky v. United States, 510 U.S. 540, 555 (1994). Because Tatum has failed to
present any, much less compelling, evidence of bias or prejudice, his motion for the
court’s disqualification will be denied.

II. Motion for Reconsideration
The court previously laid out the procedural posture of this case in its September
16, 2014, opinion and order, granting Tatum leave to proceed on two claims both
relating to defendants’ alleged denial of a nutritionally adequate diet during Ramadan.
(9/16/14 Opinion & Order (dkt. #22).) Plaintiff challenges that order on several bases,
all of which the court rejects.
First, Tatum argues that the court misinterpreted his prior filings and failed to
consider his complaint in light of his request to proceed “against all related defendants of
the claims I joined against Meisner under Rule 18.” (4th Mot. for Reconsideration (dkt.
#28) 1.) As explained in the court’s September 16 order, the court considered all claims
against Meisner and only granted Tatum leave to proceed on First Amendment and
RLUIPA claims concerning the nutritional adequacy of Ramadan meals. With respect to
that claim, the court joined defendant Cathy Jess, who allegedly promulgated the policy
at issue. Since the court did not grant Tatum leave to proceed on any other claim against
Meisner, there are no other claims to which other defendants could be joined.

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Second, Tatum complains that the court erred in not allowing him to proceed on an
“access-to-courts” claim against Meisner and related defendants based on their approach
to the grievance policy. The court denied Tatum leave because such a claim requires
plaintiff to plead an actual injury. In re Maxy, 674 F.3d 658, 660 (7th Cir. 2012) (“[T]o
satisfactorily state a claim for an infringement of the right of access, prisoners must also
allege an actual injury.”); see also Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006)
(explaining that an access-to-courts claim “spell out . . . [a] connection between the
alleged denial of access to legal materials and an inability to pursue a legitimate challenge
to a conviction, sentence, or prison conditions”). Tatum contends that he did plead
injury because interfering with the exhaustion process constitutes injury for purposes of
stating an access-to-courts claim. (4th Mot. for Reconsideration (dkt. #28) 1.)
In support of this argument, plaintiff cites to Davis v. Milwaukee County, 225 F.
Supp. 2d 967 (E.D. Wis. 2002). In that case, however, defendants impeded plaintiff’s
ability to exhaust by blocking access to the grievance process. Id. at 976-77.

Here,

Tatum alleged that Meisner acted as a “rubber stamp,” “affirm[ing] any decision of the
ICEs without reviewing the merits of their actions/determinations or the inmates’
grievance[s].” (Compl. (dkt. #1) ¶ 64.) While Tatum may not have received the relief
he requested through the grievance process, he does not allege that Meisner blocked his
efforts to engage in the grievance process. As such, the court finds no basis to reconsider
its conclusion at the screening stage that Tatum failed to allege an injury necessary to
state an access-to-courts claim against Meisner. If he can do so in good faith, Tatum may
seek leave to amend his complaint, filing a proposed amended complaint containing such
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allegations of injury. Tatum, however, should be mindful that such a claim may not be
conducive as a purported class action.
Third, Tatum argues that the court erred in failing to consider his allegations
concerning legal CD/DVD and phone access policies as claims arising under the Sixth
Amendment right to self-counsel. (4th Mot. for Reconsideration (dkt. #28) p.2.) As an
initial matter, Tatum’s allegations with respect to the legal CD/DVD ban do not reference
the Sixth Amendment; rather, the complaint simply references an “access to the courts
violation.” (Compl. (dkt. #1) p.6.) The case referenced in the legal CD/DVD section of
the complaint also appears to be either a civil action or a collateral attack on his criminal
conviction, neither of which implicates the Sixth Amendment. See Rauter v. United States,
871 F.2d 693 (7th Cir. 1989).
With respect to the CCI’s phone policy, the complaint does reference the “right to
self-counsel.” (Compl. (dkt. #1) p.8.) Plaintiff’s injury, however, is not that his Sixth
Amendment rights were violated: there is no claim that he was denied counsel or denied
the opportunity to represent himself by the state court. Rather, his complaint is that
Meisner, through the phone policy, impeded his ability to access the courts. For that
claim, plaintiff must plead an injury, which again he has failed to do. Accordingly, the
court did not err in denying Tatum leave to proceed on a Sixth Amendment claim or an
access-to-courts claim concerning the legal CD/DVD and phone access policies.
Fourth, Tatum argues that the court erred in considering his technology ban claim
as an access-to-courts claim, rather than an Eighth Amendment deliberate indifference
claim.

In his motion for reconsideration, Tatum contends that this claim presents a
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“novel, critical rights issue . . . that failure to allow inmates access to necessary
technology to prepare them for integration into/allow connection to a technological
society violates the 8th Amendment by denying effective rehabilitation.” (4th Mot. for
Reconsideration (dkt. #28) p.2.) While this legal theory is certainly novel, it is also
frivolous. The Eight Amendment prohibits conditions of confinement that “involve the
wanton and unnecessary infliction of pain.”

Rhodes v. Chapman, 452 U.S. 337, 347

(1981). The denial of access to laptops and other forms of technology does not even
arguably approach this level.
Even if this claim had some legal merit, Tatum would lack standing to bring such a
claim given that he is serving a term of imprisonment of life without the opportunity for
parole and, therefore, he is in no way injured by Meisner’s failure to prepare him for
integration back into a technologically-advanced society. See Friends of the Earth, Inc. v.
Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (requiring injury to have
constitutional standing to bring a claim).
Fifth, Tatum contends that the court erred in failing to consider whether he stated
a claim under the Due Process Clause of the Fourteenth Amendment with respect to his
allegations about Meisner’s treatment of release accounts. Specifically, Tatum argues
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. (Compl. (dkt. #1) ¶ 100.). The Seventh Circuit has closed the
door, however, on any substantive due process claim based on a prisoner’s confiscation of
personal property, including money. See Secret v. Brierton, 584 F.2d 823, 830 (7th Cir.
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1978) (“There is no constitutional right that prohibits prison officials from confiscating
most of a prisoner’s personal property pending release from prison. The constitutional
violation arises only if they confiscate that property without due process of law.”)
To the extent Tatum seeks to assert a procedural due process claim -- and Tatum
does not allege that he was denied certain procedural protections, like notice and an
opportunity to be heard -- this court, as well as the Wisconsin Court of Appeals, has
rejected similar claims. See Sahagian v. Dickey, 646 F. Supp. 1502, 1508-09 (W.D. Wis.
1986) (rejecting substantive and procedural due process claims premised on requirement
that inmate deposit 15% from every incoming check into a release account); Richards v.
Cullen, 150 Wis. 2d 935, 941-43, 442 N.W.2d 574, 576-77 (Ct. App. 1989) (rejecting
due process and equal protection claims where plaintiff serving life sentence challenged
“gate money” requirement).
Relatedly, Tatum also contends that Meisner’s release account policy constitutes
an ex post facto violation because the new policy requires an account balance of $5000,
instead of $500 under the old policy. (4th Mot. for Reconsideration (dkt. #28) p.2.)
Tatum fails to lay out a coherent theory of how the release account policy increases his
punishment, but even if he had, Tatum cannot demonstrate as a matter of law that the
“new policy improperly dimish[es] rights” given the Seventh Circuit’s finding that a
prisoner does not have a substantive due process right in his personal property. (Id.) See
also Secret, 584 F.2d at 830.
Sixth, Tatum takes issue with the court’s denial of leave to proceed on an access to
courts claim premised on Meisner’s and related defendants’ “intentionally destroy[ing]
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all of the legal books in the law library as a way to hinder / obstruct inmate lawsuits /
court access.”

(4th Mot. for Reconsideration (dkt. #28) p.2.)

As explained above,

Tatum must plead an actual injury in pursuing an access-to-courts claim, which he has
failed to do. See, e.g., In re Maxy, 674 F.3d at 660; Marshall, 445 F.3d at 968.

Tatum

represents that he could provide exampled where he was denied “the necessary
information to file a sufficient complaint by their destruction of all of the law books.”
(4th Mot. for Reconsideration (dkt. #28) p.2.) If he can do so in good faith and with
specificity, Tatum may seek leave to amend his complaint, filing a proposed amended
complaint containing such allegations of injury.
Seventh, Tatum next complains that the court misconstrued his “property
claim/lockdown policy” as an access-to-courts claim, instead of a Fourteenth Amendment
Due Process claim. (4th Mot. for Reconsideration (dkt. #28) p.3.) In reviewing the
allegations under the “lockdown policy/suspension of inmate rights” section of the
complaint, the only allegation involving Meisner concerned an August 20, 2012, facilitywide lockdown and the searches associated with that lockdown. (Compl. (dkt. #1) ¶
119.)

However, a prisoner has no “reasonable expectation of privacy” in his living

quarters. Hudson v. Palmer, 468 U.S. 517, 530 (1984). Thus, there are no due process
protections at stake here.
While Tatum also alleges that other individuals seized legal items, this too would
not state a due process claim, but rather could make out an access-to-courts claim,
provided, of course, that Tatum alleged an injury associated with such a seizure. See, e.g.,
Mitchell v. Dupnik, 75 F.3d 517 (9th Cir. 1996) (citing Hudson and finding no privacy
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interest involved in search of cell, including legal materials); Edwards v. Faust, No. 093264, 2010 WL 4386852, at *1-2, 407 F.App’x 948, 949-50 (7th Cir. Nov. 4, 2010)
(affirming district court’s construing of seizure of legal documents as an access-to-courts
claim, requiring allegation of injury).
Eighth, Tatum takes issue with the court’s treatment of his mail use policy claim,
arguing that the court misconstrued this claim as an access-to-courts claim, rather than a
First Amendment claim. (4th Mot. for Reconsideration (dkt. #28) p.3.) In brief, Tatum
alleges that certain stamps were destroyed pursuant to Meisner’s policy. Plaintiff has not
explained why he has a speech interest in the use of specific stamps. To the extent Tatum
has a First Amendment interest in the outgoing mail that he sought to send, plaintiff has
not alleged that he was barred from sending the mail at issue in this case, but rather that
Meisner has a policy on the type of stamp used.1 As such, the court concludes that
plaintiff has failed to state a claim under the First Amendment.
Ultimately, I can assure Tatum that there was no deliberate act on the part of the
court to miss claims or frame them in a way unintended by Tatum. Rather, by casting
his net so wide and failing repeatedly to respond to this court’s order requiring him to
narrow his claims as required under the Federal Rules of Civil Procedure, plaintiff himself
created a convoluted record, which the court itself was forced to unravel. Having been
granted leave to proceed on claims against Meisner, and having received a second review
on several claims for which Tatum was denied leave, the court strongly encourages Tatum

1

As best as the court can surmise, it appears the policy may bar use of improperly
obtained stamps.
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to move this case forward, focusing on his First Amendment and RLUIPA claim premised
on denial of a nutritionally-adequate Ramadan meal.2

III. Renewed Motion for Class Certification and Appointment of Class Counsel
Tatum also renews his motion for class certification under Rule 23 and seeks
appointment of class counsel.

As previously explained, to certify a class pursuant to

Federal Rule of Civil Procedure 23, a plaintiff must prove (1) that the case satisfies the
four requirements of Rule 23(a) -- numerosity, commonality, typicality and adequacy -and (2) that the class can be maintained under one of the subsections of 23(b). Except
for a passing reference to there being at least 800 inmates at CCI and thousands in the
Wisconsin Department of Correction, plaintiff neither makes an argument nor offers any
evidence demonstrating that these requirements are met. While the court notes that
plaintiff cannot demonstrate adequacy without the appointment of class counsel, the
court will not recruit counsel solely because Tatum seeks to bring a class action. Instead,
plaintiff will be required to make a threshold showing that his claims are suitable for class
treatment.
To that end, in seeking class certification, plaintiff will be required to submit a
motion with accompanying materials demonstrating:


Numerosity. To satisfy the first requirement, plaintiff must demonstrate that
the class is so “numerous that joinder of all parties is impracticable.” Fed. R.

2

In this regard, rather than bringing further motions to reconsider past rulings that
Tatum no doubt believes were erroneous, he will be better served by saving them for
appeal and instead concentrate on those claims this court has allowed to proceed.
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Civ. P. 23(a)(1). “The rule of thumb adopted in most courts is that proposed
classes in excess of 40 generally satisfy the numerosity requirement.” 1 Joseph
M. McLaughlin, McLaughlin on Class Actions § 4:5 (8th ed. 2011) (collecting
cases); see also Armes v. Sogro, Inc., No. 08-C-0244, 2011 WL 1197537, at *2
(E.D. Wis. Mar. 29, 2011) (“The Seventh Circuit has indicated that a group as
small as forty may satisfy the numerosity requirement.” (citing Swanson v. Am.
Consumer Indus., Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969))).

In

demonstrating numerosity, plaintiff must focus on the number of inmates at
CCI impacted by the Ramadan-meal policy, and not the number of total
inmates at CCI.


Commonality. Rule 23 also requires “questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). This requirement “does not demand that
every member of the class have an identical claim. It is enough that there be
one or more common questions of law or fact; supplemental proceedings can
then take place if, for example, the common question relates to liability of the
defendant to a class and separate hearings are needed to resolve the payments
due to each member.” Spano v. The Boeing Co., 633 F.3d 574, 585 (7th Cir.
2011). Plaintiff should identify the common question or questions of law or
fact which could be presented as a class action.



Typicality. Plaintiff must demonstrate that “the claims or defenses of the
representative parties are typical of the claims or defenses of the class.” Fed. R.
Civ. P. 23(a)(3).

This requirement is satisfied if the class representative’s
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claim “arises from the same event or practice or course of conduct that gives
rise to the claims of other class members and his or her claims are based on the
same legal theory.”

De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225,

232 (7th Cir. 1983) (internal citation omitted).


Adequacy with respect to class representative.

Rule 23(a) requires that

both the class representative and class counsel must “fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). At the initial stage,
Tatum need only demonstrate that he would be an adequate class
representative. This “adequacy” requirement is not onerous and generally is
satisfied if the representative plaintiff does not have interests antagonistic to
those of the other class members. See Uhl v. Thoroughbred Tech. and Telecomm.,
Inc., 309 F.3d 978, 985 (7th Cir. 2002); Susman v. Lincoln Am. Corp., 561 F.2d
86, 90 (7th Cir. 1977).

In addressing this requirement, Tatum should

specifically address (1) whether he can serve as the representative of a class of
CCI inmates now that he is incarcerated at WSPF; and (2) whether his
sentence to life without parole may make his interests different form other, if
not most, members of the class.

ORDER
IT IS ORDERED that:
1) plaintiff Robert Tatum’s motion to disqualify (dkt. #27) is DENIED;
2) plaintiff’s motion for reconsideration of the court’s September 16, 2014,
opinion and order (dkt. #28) is DENIED; and
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3) plaintiff’s renewed motion for class certification and appointment of class

counsel (dkt. #28) is DENIED without prejudice.
Entered this 18th day of November, 2014.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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