Kuslits, John v. Kloth et al

Filing 52

ORDER denying 50 Motion for Reconsideration. Signed by District Judge Barbara B. Crabb on 5/26/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOHN KUSLITS,
OPINION and ORDER
Plaintiff,
15-cv-413-bbc
v.
KAREN KLOTH, PAULA STOUDT
and REED RICHARDSON,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se prisoner John Kuslits brought this lawsuit against three officials at the Stanley
Correctional Institution, claiming that they disciplined him in retaliation for exercising his
right to free speech, in violation of the First Amendment to the United States Constitution.
Plaintiff ably litigated his own case through discovery and dispositive motions. I granted
defendants’ motion for summary judgment because I concluded that the undisputed
evidence showed that they were entitled to judgment as a matter of law, and that plaintiff
would not be able to establish one or more necessary elements of his claim at trial. Dkt.
#47.
Now before the court is plaintiff’s motion to reconsider that decision. Dkt. #50.
After reviewing and considering the motion, I conclude that plaintiff has not shown that the
court made any error or that he is entitled to any further relief under the Federal Rules of
Civil Procedure. Therefore, I will deny his motion for reconsideration.

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OPINION
A party may file a motion for “reconsideration” under Federal Rule of Civil Procedure
59(e) (to alter or amend a judgment) or Rule 60 (relief from a judgment or order). Plaintiff
does not identify any newly discovered evidence, oversight, misconduct or inadvertent
mistake of the kind that would typically be governed by Rule 60. Rather, his motion is more
naturally considered under Rule 59(e), because plaintiff argues that the court improperly
resolved disputed facts or otherwise got the summary judgment standard and legal analysis
wrong.
“Rule 59(e) allows a party to direct the district court’s attention to newly discovered
material evidence or a manifest error of law or fact, and enables the court to correct its own
errors and thus avoid unnecessary appellate procedures. . . . The rule does not provide a
vehicle for a party to undo its own procedural failures, and it certainly does not allow a party
to introduce new evidence or advance arguments that could and should have been presented
to the district court prior to the judgment.” Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th
Cir. 1996) (citations omitted). Therefore, “[t]o prevail on a Rule 59(e) motion to amend
judgment, a party must clearly establish (1) that the court committed a manifest error of law
or fact, or (2) that newly discovered evidence precluded entry of judgment.”

Blue v.

Hartford Life & Accident Insurance Co., 698 F.3d 587, 598 (7th Cir. 2012) (internal
quotation and citation omitted). As noted, plaintiff does not identify any newly discovered
evidence, so he relies on the first option. “A manifest error is not demonstrated by the
disappointment of the losing party. It is the wholesale disregard, misapplication, or failure

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to recognize controlling precedent.” Oto v. Metropolitan Life Insurance Co., 224 F.3d 601,
606 (7th Cir. 2000) (internal quotation and citation omitted).
Plaintiff contends that the court erred in holding both that his speech at issue in the
case was not protected by the First Amendment and that he suffered no injury likely to deter
First Amendment activity in the future. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009) (setting forth standard for First Amendment retaliation claim). In particular, plaintiff
argues that the court was wrong to reach the conclusion it did because there were disputed
facts in this case, including disputes about what exactly plaintiff said and how he said it.
Plaintiff is correct that “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). However, that does not mean that the court must accept the
conclusions of law that plaintiff draws from those facts and inferences. To the contrary, the
question whether certain kinds of activity are protected by the First Amendment is a legal
determination that is properly the court’s to make. Watkins v. Kasper, 599 F.3d 791, 797,
799 (7th Cir. 2010). Thus, plaintiff’s repeated assertion that he was engaged in protected
speech is not “evidence” that the court can accept.
In the opinion and order granting defendants’ motion for summary judgment, I
acknowledged that there were disputed facts in this case, especially regarding what words
plaintiff spoke and how he spoke them. Dkt. #47, at 3-4, 7-8. However, I simply concluded
that those factual disputes were not material because they did not change the legal analysis
one way or the other.

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Plaintiff admits that, after defendant and correctional officer Kloth told another
inmate to stop using one of the day room microwaves because they were closed to workers
at that time, plaintiff told defendant Kloth that the microwaves were “open to workers, they
are open to all, just [be]cause you’re here, they are not open.” (For purposes of summary
judgment, I accepted as true plaintiff’s testimony that he did not also tell defendant Kloth
“you don’t belong here, you need to go,” as she said he did.) Plaintiff also denies that he
spoke loudly, obscenely, sarcastically or disrespectfully, but as I explained in my opinion,
even if I accept plaintiff’s testimony as true, the undisputed facts still show that plaintiff
spoke up and contradicted an officer who had just given an order, that he did so in front
of other inmates and that this caused something of a disturbance. Id. at 7-8. In fact,
plaintiff acknowledged and other witnesses confirmed that he did this. Under Seventh
Circuit precedent that is binding on this court, that kind of speech is unprotected as a
matter of law. Watkins, 599 F.3d at 797 (“Because Watkins’s public challenge to Kasper’s
directives was inconsistent with [Kasper’s] legitimate interests in discipline and library
administration, this speech is unprotected as a matter of law under Turner.”) (citing Turner
v. Safley, 482 U.S. 78, 89 (1987)).
Plaintiff’s objections that his speech did not cause any major disruptions to the
normal operations of the prison do not change this. Moreover, I did not decide that
“inmates have no free speech no matter how consistent with [their] status as a prisoner,”
as plaintiff states. Dkt. #50, at 2. To the contrary, I noted explicitly that plaintiff was free
to speak in other ways, including expressing his disagreement by filing a grievance or

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speaking with defendant Kloth (or another official) privately. Dkt. #47, at 8. Plaintiff has
never submitted any evidence that he was prevented from doing so, or explained why
publicly contradicting defendant Kloth in front of other inmates was the only “speech”
option he could pursue or was interested in pursuing. All I told plaintiff was that “openly
challenging [an officer’s] directives in front of other prisoner[s],” Watkins, 599 F.3d at 797,
was not protected speech under the First Amendment.
Further, as I explained in the opinion, I am not persuaded that a mere reprimand
alone, without further evidence of actual harm, is enough of an injury to deter an ordinary
prisoner from exercising legitimate First Amendment activity in the future. Id. at 9. I have
found no case law suggesting that it is. However, I need not analyze that issue again. If the
speech at issue in this case was not constitutionally protected, then the first element of
plaintiff’s retaliation claim is not satisfied, and I need not address the other elements.
Plaintiff’s motion for reconsideration fails to identify a manifest error of law or fact.
In particular, plaintiff fails to demonstrate that, in holding that plaintiff’s speech was not
protected, the court disregarded, misconstrued or otherwise failed to properly apply
controlling precedent. Accordingly, I will deny his motion.

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ORDER
IT IS ORDERED that plaintiff John Kuslits’s motion for reconsideration, dkt. #50,
is DENIED.
Entered this 26th day of May, 2017.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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