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Tatum v. Meisner

United States District Court, W.D. Wisconsin

June 7, 2016

ROBERT TATUM, and all similarly situated DOC/CCI Inmates, Plaintiff,



         This case is set for a bench trial commencing June 22, 2016, on plaintiff Robert Tatum’s claim that defendants Michael Meisner and Cathy Jess denied his request for a Nation of Islam diet in violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-2(b). In advance of trial, the court issues the following opinion and order on a number of pending motions.[1]

         I. Motion for Reconsideration

         Plaintiff Tatum filed a motion for reconsideration on the court’s summary judgment motion on four grounds. (Dkt. #79.) First, Tatum contends that the court erred in failing to consider his two-page “motion for partial summary judgment, ” one of which contained his seven proposed findings of fact. (Dkt. #50.) In response, defendants filed a motion to strike on the basis that the motion did not comply with this court’s rules on summary judgment filings. (Dkt. #53.) To make matters worse, Tatum’s only evidence in support of his so-called motion was the complaint and a single response to admission, to which defendants also objected. Instead of addressing these two motions -- the only outcome of which would be to strike plaintiff’s motion for summary judgment -- the court instead opted to take up defendants’ motion for summary judgment, which complied with this court’s procedures and for which plaintiff filed a robust opposition. Ultimately, the court found disputed issues of fact in deciding defendants’ motion, which foreclosed entry of partial judgment in plaintiff’s favor as well, mooting both that motion and defendants’ motion to strike.

         Second, and related to the first basis, Tatum argues that the court committed error in failing to consider his request for judgment independent of his own incomplete and defective motion under Federal Rule of Civil Procedure 56(f)(1), pointing out that this request was part of his opposition brief to defendant’s motion for summary judgment. While the court did not acknowledge this request in its opinion and order, there is no claim or an element of a claim for which the court could have entered judgment in Tatum’s favor for reasons aptly described above and in the court’s summary judgment opinion itself.

         Third, Tatum contends that the court erred in entering judgment in defendants’ favor on his First Amendment claim, arguing that the court both improperly weighed the evidence and failed to conduct a full-blown Turner analysis. As for the court’s treatment of the record, plaintiff is, of course, correct that the court’s role is not to weigh the evidence on summary judgment, nor was this done here; rather, the court considered whether a reasonable trier of fact could find that Tatum met his burden of demonstrating that the denial of an NOI diet is not reasonably related to a legitimate penological interest based on the undisputed facts viewed in a light most favorable to him. The court finds no basis for reconsidering that decision for all of the reasons provided in its summary judgment opinion. (1/26/16 Op. & Order (dkt. #75) 24-25.) Moreover, as the court explained in that opinion and Tatum wholly fails to address in his motion for reconsideration, defendants would be entitled to qualified immunity even if the court’s analysis on the merits were somehow flawed. (Id. at 25-26.)

         Fourth, and finally, Tatum argues that the court erred in finding that damages are not available under RLUIPA. In particular, Tatum takes issue with the court’s failure to consider his argument that the treatment of Wis.Stat. § 895.46 in Graham v. Sauk Prairie Police Comm’n, 915 F.2d 1085 (7th Cir. 1990), provided an exception in Wisconsin to RLUIPA’s general bar to damages. Section 895.46, which requires municipalities to indemnify its employees, is of no help to Tatum. In Graham, the Seventh Circuit resolved the conflict between that statute and Wisconsin’s municipal tort immunity statute, Wis.Stat. § 893.80, holding that “the immunity statute does not absolve the villages and the police commission from indemnifying Mueller’s estate.” Id. at 1089. In other words, the court held that the government defendants could not claim immunity to guard against damages awarded against an individual defendant on the basis that the state would ultimately be on the hook to pay the damages under Wisconsin’s indemnification provision. Critically, in that case, damages were available as a remedy under the federal statute at issue, 42 U.S.C. § 1983.

         Here, Tatum pursues claims under a federal statute for which there is no right to damages. As the court explained in its summary judgment opinion and order, the Seventh Circuit held in Nelson v. Miller, 570 F.3d 868, 886-89 (7th Cir. 2009), that damages were not available under RLUIPA. The Supreme Court reached the same conclusion in Sossamon v. Texas, 563 U.S. 277, 285-86 (2011), holding that RLUIPA’s “appropriate relief” language does not constitute waiver of sovereign immunity for private damages claims. While Tatum notes Justice Sotomayor’s dissent in Sossamon, in which she, joined by Justice Breyer, argue that waiver should apply and damages should be available under RLUIPA, that is plainly not the current state of the law. On the contrary, the majority’s decision barring private claims to damages is.

         If RLUIPA provided a right to damages, then the state could not claim immunity because Wisconsin’s indemnification provision would require it to pay the damages consistent with Graham. Relief under RLUIPA, however, is limited to equitable remedies, and therefore Graham has no import here. Accordingly, the court finds no error in its determination that Tatum is limited to equitable relief under the RLUIPA claim. For all of these reasons, the court will deny Tatum’s motion for reconsideration.

         II. Expert Witness Appointment

         The court previously reserved on plaintiff’s motion for appointment of counsel (dkt. #56) and invited defendants to respond to the motion and to the court’s suggestion during the February 10, 2016, telephonic conference of appointment of a neutral expert.[2]After reviewing defendants’ submission, the court agrees with defendants that an expert is unlikely to assist the court in understanding the evidence in this case. In any event, the court has already explained that if during the course of trial expert testimony would appear to be important, the court could hold open the trial record and appoint a neutral expert.

         III. Confiscation of Legal Documents

         Tatum filed a letter with the court complaining that certain legal documents were confiscated during a cell search on December 4, 2015. (Pl’s 1/15/16 Letter (dkt. #73).) During the last telephonic conference, the court ordered defendants to provide a copy of the surveillance tape of his cell for the relevant period, which defendants promptly did. The court also ordered defendants to allow Tatum to review the video. Instead of allowing Tatum to view the video, defendants filed a motion to file the videotape under seal. (Dkt. #82.) For his part, Tatum filed a motion for contempt and sanctions. (Dkt. #87.)

         In support of defendants’ motion, the Security Director at WSPF Mark Kartman submitted a declaration explaining that disclosure of the video to Tatum would compromise WSPF’s security. Specifically, Kartman avers that the video would inform inmates “on areas of the cell that are not focused on by staff, or any vulnerabilities in the cell search process, ” as well as reveal ...

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