United States District Court, W.D. Wisconsin
PASTORI M. BALELE, Plaintiff,
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
D. PETERSON District Judge
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.
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
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.
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.
Motion to alter or amend judgment
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 . . .
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.
DOC's attempt to get a state court injunction prohibiting
Balele from applying for DOC jobs
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
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.
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.
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.
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