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Balele v. Olmanson

United States District Court, W.D. Wisconsin

January 10, 2017

PASTORI M. BALELE, Plaintiff,
v.
ANDREA OLMANSON, BOB CONNOR, DEPARTMENT OF CORRECTIONS, DEPARTMENT OF WORKFORCE DEVELOPMENT, EDWARD F. WALL, GARY HAMBLIN, J.B. VAN HOLLEN, JACK LAWTON, JEAN NICHOLS, JERRY SALVO, SCOTT WALKER, STEPHEN A. HERJE, THOMAS PIERCE, MARK GOTTLIEB, DEPARTMENT OF TRANSPORTATION, DEPARTMENT OF ADMINISTRATION, MIKE HUEBSCH, CATHY STEPP, DEPARTMENT OF HEALTH SERVICES, STEPHANIE SMILEY, and DEPARTMENT OF NATURAL RESOURCES, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         In this case removed from the Dane County Circuit Court, plaintiff Pastori Balele brought several claims related to his unsuccessful applications for employment with the state of Wisconsin, including claims under Title VII of the Civil Rights Act, the due process and equal protection clauses of the Fourteenth Amendment, and claims for malicious prosecution, denial of public accommodations, and invasion of privacy. Several claims and defendants were dismissed in an April 24, 2014 order. Dkt. 26. I granted defendants' motion for summary judgment on Balele's remaining claims in an August 13, 2015 order. Dkt. 74.

         Balele filed a motion to alter or amend the judgment, Dkt. 78, and later followed with a motion for relief from the judgment, Dkt. 126. The parties have filed a handful of other motions relating to the two substantive motions, all of which I will address below.

         Given the sanctions against Balele, it is an open question whether the court should accept for filing his postjudgment motions. The Court of Appeals for the Seventh Circuit has sanctioned Balele by directing all courts of the circuit to reject his filings until he pays off the substantial costs he has incurred in litigating previous frivolous cases, and unless he files an affidavit certifying that the matters he raises in the proposed filing are not frivolous and have not been raised in previous suits. Balele v. Barnett, Case No. 96-1133 (7th Cir. Apr. 29, 1997). In situations in which a defendant removes a civil action originally filed by Balele in state court, this court has interpreted the sanction order to generally limit Balele's ability to file documents proactively, but it has allowed him to file responses to motions filed by the defendant. See Dkt. 74 at 2 n.1; see also Balele v. Sears, Roebuck and Co., 12-cv-140-slc, at 1-2 (W.D. Wis. May 23, 2012). Also, in the August 13, 2015 summary judgment order, I modified the sanctions against Balele in future removal actions by explaining that Balele will have to provide for the court's inspection the evidence he believes supports his claims without forcing defendants to go through the effort and expense of filing their own motion for summary judgment. Dkt. 74, at 35-36.

         Despite these sanctions, I conclude that the prudent course of action is to allow Balele, like any losing litigant, to raise his concerns with the court's decision. But after considering his motions, the parties' briefing on those motions, and the parties' other related filings discussed further below, I will deny his both of his postjudgment motions.

         A. Motion to alter or amend judgment

         Balele has filed a motion titled “motion for reconsideration to amend opinion and order, ” Dkt. 78, which I will construe as a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). To prevail on a motion for reconsideration under Rule 59, a petitioner must present newly discovered material evidence or establish a manifest error of law or fact. Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). “Rule 59 is not a vehicle for rearguing previously rejected motions . . . .” Id.

         Balele organizes his brief-in-chief by listing more than 20 passages from the summary judgment order that he believes contain errors. Many of his arguments miss the point of the reasoning in the summary judgment order or misunderstand the Rule 59 standard of review. Ultimately, none of them persuade me that the judgment should be amended. I will not address each of Balele's points in detail below, but I will address what seem to be the main issues in his motion.

         1. DOC's attempt to get a state court injunction prohibiting Balele from applying for DOC jobs

         Balele brought claims against defendant Andrea Olmanson, former assistant legal counsel for the DOC, for her role in attempting to enjoin him from applying for DOC jobs in the future. I summarized the facts regarding that litigation as follows:

On July 22, 2011, defendant Olmanson, working as assistant legal counsel for DOC, filed a “Petition for Restraining Order and/or Petition and Motion for Injunction Hearing” against plaintiff in the Dane County Circuit Court. In the petition, Olmanson alleged that plaintiff had brought repeated vexatious litigation and harassed DOC staff during the job selection process. She also alleged that plaintiff had made public comments indicating that he was not seriously seeking a job with the DOC. Several days prior, Olmanson had observed a series of comments by plaintiff on the website The Huffington Post and attached a “screen shot” of the posting to an affidavit that she filed in support of the petition. In the comments, plaintiff suggested that he was not sincerely looking for a job and stated that he was “too old to work for somebody else.” Dkt. 49-2, at 2. On July 22, 2011, a court commissioner entered a temporary restraining order barring plaintiff from applying for DOC jobs or otherwise harassing DOC employees. However, on July 29, 2011, following a hearing, the presiding judge dismissed the case after determining that DOC had not met its burden of proof.

Dkt. 74, at 9.

         In the summary judgment order, I discussed Olmanson's alleged harassing litigation in considering Balele's employment discrimination claims, stating that “[p]laintiff argues that defendant Olmanson's decision to seek a court order enjoining plaintiff from applying for DOC jobs shows the DOC's discriminatory animus, ” and that “[h]is main argument is that defendants are foreclosed from raising their non-discriminatory rationale under the Rooker-Feldman doctrine, because the state court heard Olmanson's rationale and dismissed the petition.” Id. at 24.

         One of the major thrusts of Balele's Rule 59 motion is that defendants were involved in “coll[u]sion of fraud” in the hiring decisions, id. at 16, which I take to mean that defendants' stated qualification-based rationale for not hiring Balele was a pretext for racial discrimination. Balele explained his theory in his brief opposing summary judgment:

Indeed Defendants' stereotype attitude came to life during the hearing in [the state court case]. Olmanson representing Walker, Van Hollen, Hamblin and other Defendants, argued that Balele was not qualified for the positions for which he had applied. This was while Olmanson was holding DOC papers showing that Balele had taken DOC exams, certified and indeed interviewed for the positions. The judge confronted Olmanson by asking her if the documents the court had were the same as those Olmanson was holding. Olmanson said yes. The Court then said that the documents the court had showed clearly that Balele had been certified as qualified for the positions. Olmanson turned red with anger. The state Court stopped her from arguing any further. There is no way to interpret Olmanson's arguments other than she and other Defendants held stereotype that Blacks were intellectually inferior and therefore however qualified, they deserved not be appointed for DOC positions at HDQs.

Dkt. 60, at 18-19.

         In his Rule 59 motion, Balele reiterates his belief that the state court judge's denial of the injunction was based on a conclusive finding that Balele was qualified for DOC employment. Dkt. 79, at 16. (“[This court] should ...


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