United States District Court, W.D. Wisconsin
MUSTAFA-EL K.A. AJALA formerly known as Dennis E. Jones-El, Plaintiff,
WILLIAM SWIEKATOWSKI, Defendant.
OPINION AND ORDER
BARBARA B. CRABB District Judge
Pro se plaintiff Mustafa-el Ajala, a Wisconsin prisoner, brought this case against defendant William Swiekatowski, a correctional officer, contending that defendant violated the equal protection clause by giving plaintiff a conduct report because he is an African American and a Muslim. On August 25, 2015, a jury rendered a verdict in favor of defendant. Dkt. #149. In particular, the jury answered “no” when asked whether plaintiff’s race or religion was one of the reasons that defendant gave plaintiff the conduct report. Id. Judgment was entered the following day. Dkt. #150.
Now before the court is plaintiff’s motion for a new trial on two grounds. Dkt. #154. First, plaintiff says that he is entitled to a new trial under Fed.R.Civ.P. 59(b) because the jury’s verdict is against the manifest weight of the evidence. Second, he says that he is entitled to a new trial under Fed.R.Civ.P. 60(b)(3) because defendant gave perjured testimony. Because plaintiff has not met the standard under either rule, I am denying his motion for a new trial.
A. Rule 59(b) Motion
I will consider first plaintiff’s argument that the verdict is against the weight of the evidence. To prevail on such a claim, a party must do more than show that the verdict is wrong. Whitehead v. Bond, 680 F.3d 919, 928-29 (7th Cir. 2012). Rather, he must show that no rational jury could have rendered the verdict or that the verdict shocks the conscience. Plyler v. Whirlpool Corp., 751 F.3d 509, 513 (7th Cir. 2014); Willis v. Lepine, 687 F.3d 826, 836-37 (7th Cir. 2012). Plaintiff has not met that standard.
Plaintiff’s conduct report arose out of a petition that plaintiff drafted in which he encouraged other prisoners to refuse to work if officials did not meet a long list of demands regarding prison conditions. After conducting an investigation, defendant determined that plaintiff’s petition was part of a larger conspiracy to riot and take hostages. Defendant issued a conduct report to plaintiff and six other prisoners for taking part in the conspiracy. All of the seven prisoners were Muslim and all but one of them was an African American.
In the order denying defendant’s motion for summary judgment, I noted that defendant had failed to adequately explain why he charged mostly black and Muslim prisoners, even though he alleged in plaintiff’s conduct report that prisoners of many different races were involved in the alleged conspiracy. At trial, defendant’s explanation was that he had stronger evidence against plaintiff and the other prisoners who received conduct reports. In particular, defendant stated that plaintiff was the author of the petition and distributed it throughout the prison. In addition, several confidential informants implicated plaintiff in the conspiracy. Defendant said that he did not have sufficient corroboration of involvement for the prisoners who did not receive a conduct report.
In his motion, plaintiff argues that the verdict was against the weight of the evidence for three reasons: (1) Thomas Campbell, who assisted defendant with the investigation, admitted that there was “corroboration” for the allegations against some of the prisoners who did not receive conduct reports; (2) there was no corroboration for the allegations against Tony Gray, a black and Muslim prison who received a conduct report for being part of the conspiracy to riot; and (3) during pretrial proceedings, defendant submitted documents to the court in which he falsely described plaintiff’s petition as including threats of violence. None of these arguments entitle plaintiff to a new trial under Rule 59.
As an initial matter, plaintiff misstates the parties’ burdens at trial. Plaintiff says that his burden was to show that “he was treated differently from members of other racial and/or religious groups” and defendant’s burden was “to show a non-racial and/or non-religious reason for doing so.” Plt.’s Br., dkt. #155, at 3. Both of these assertions are inconsistent with the special verdict form and case law.
Plaintiff’s burden was not simply to show that he was treated differently. Rather, his burden was to show that defendant treated him differently because of his (plaintiff’s) race or religion. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). In particular, the Supreme Court has held that a plaintiff who raises a claim under the equal protection clause must show that the characteristic at issue was a “motivating factor” for the defendant’s conduct. Hunter v. Underwood, 471 U.S. 222, 228 (1985). See also Smith v. Wilson, 705 F.3d 674, 681 (7th Cir. 2013). I have interpreted that standard to mean that a plaintiff must prove that the characteristic was “one of the reasons” that the defendant treated the plaintiff less favorably, e.g., Walker v. Board of Regents of University of Wisconsin System, 300 F.Supp.2d 836, 850 (W.D. Wis. 2004), and that is the standard on the special verdict form. Although plaintiff does not challenge the language in the special verdict form, his proposed standard requires him to prove disparate impact without having to prove discriminatory intent. It is well established that a showing of disparate impact is not sufficient to prove an equal protection violation. Snowden v. Hughes, 321 U.S. 1, 8 (1944) ("[A]dministration by state officers . . . resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination."); Bond v. Atkinson, 728 F.3d 690, 692-93 (7th Cir. 2013) (“[D]isparate impact does not violate the equal protection clause of the fourteenth amendment and cannot be redressed by suits under § 1983.”).
Plaintiff’s assertion regarding defendant’s burden is incorrect as well. Defendant did not have to prove anything unless plaintiff proved that his race or religion was one of the reasons that defendant gave him the conduct report. At that point, the burden would shift to defendant to show that he would have given plaintiff the conduct report even if plaintiff had been of a different race or religion. Smith, 705 F.3d at 681. However, because the jury found plaintiff had not met his burden, it did not need to reach that issue.
Plaintiff’s misstatement regarding the parties’ relative burdens is relevant to plaintiff’s motion because plaintiff says that he met his burden by obtaining an admission from defendant that all of the prisoners who received conduct reports were black or Muslim. That shows disparate impact, but it does not show why defendant issued those conduct reports. It remained plaintiff’s burden to prove that defendant gave the conduct report to plaintiff because of his race or religion or both. Thus, to prevail on his motion, plaintiff must show that he submitted strong evidence of discriminatory intent, not simply that defendant failed to disprove discrimination.
I turn now to plaintiff’s first argument, which is that the verdict was against the weight of the evidence because Thomas Campbell, who assisted defendant with the investigation, admitted that there was “corroboration” for the allegations against some of the prisoners who did not receive conduct reports. This argument is a nonstarter because plaintiff does not point to any testimony in which either defendant or Campbell stated that they gave conduct reports to any prisoner if there was any kind of corroboration for that prisoner’s involvement in the conspiracy. Rather, defendant and Campbell made a more specific ...