United States District Court, W.D. Wisconsin
ROBERT TATUM, and all similarly situated DOC/CCI Inmates, Plaintiff,
MICHAEL MEISNER and CATHY JESS, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE.
entered judgment in this case in plaintiff Robert Tatum's
favor and an amended judgment reflecting an award of costs,
plaintiff has filed yet another motion for reconsideration
and related motions seeking modification of the court's
injunction requiring defendants to provide a Nation of Islam
compliant diet. For the reasons that follow, the court denies
Tatum's most-recent motions. No further relief
will be provided in this lawsuit.
described in the court's last order, Tatum was released
from the Wisconsin Department of Corrections to the Racine
County Jail. As such, the court summarily denied as moot all
of his post-judgment motions seeking modifications of
prospective relief. (1/5/18 Order (dkt. #168).) After Tatum
was “re-convicted, ” he filed a motion for
reconsideration on the basis that his motions for prospective
relief are no longer moot since he will be returned to state
custody. (Dkt. #172.) In an even more recent filing, Tatum
specifically represents that he was returned to DOC
custody and moved to Dodge Correctional Institution as of May
17, 2018. (Dkt. #173.)
initial matter, Tatum's claims for relief still may be
moot, since his release from DOC custody arguably restarted
the administrative process for Tatum to seek an accommodation
for his religious practices, although to the extent they are
unchanged, the court's prior rulings are obviously a set
of guidelines DOC may be well advised to follow. Regardless,
it appears from Tatum's own filings that he was
“immediately put back on their diet scheme for NOI
compliance without even requesting it.” (5/21/18 Mot.
(dkt. #173).) As evidenced from his most recent motions and
from past motions for reconsideration, Tatum is now
dissatisfied with the court-ordered diet, urging the court to
conduct a hearing to ensure that it satisfies his rights
under the Eighth Amendment and RLUIPA. Assuming these
arguments are not moot, all of Tatum's current challenges
are either: (1) forfeited because he failed to raise those
issues timely in his earlier challenges to the DOC proposed
diets; or (2) unrelated to the requirement that he be
provided a nutritionally-adequate, NOI-compliant, instead
raising issues with respect to the blandness and
repetitiveness of the food offered, that should be the
subject of a new lawsuit.
Tatum now complains about the repetition of the diet plan and
the amount of certain items (e.g., beans, rice and bread).
(Dkt. #160.) As the court previously pointed out, Tatum
presented a moving target as to his particular dietary
requests, shifting positions throughout the administrative
process, into this litigation and even during trial. (9/26/17
Op. & Order (dkt. #155) 7.) In its opinion and order
granting injunctive relief, the court explained why the diets
described in Exhibits 503a and 503b, modified by excluding
peanut butter, pinto beans and skim milk, met his religious
needs and were nutritionally adequate. (Id. at
12-14.) The fact that these meals are provided on a 7-day,
rather than a 28-day loop, does not undermine the adequacy of
these meal plans to meet Tatum's religious needs.
Moreover, as the court explained in rejecting defendants'
argument that Tatum should “self-select” from the
vegan or Halal menus, the NOI diet itself is extremely
limited in terms of acceptable foods. (1/26/16 Op. &
Order (dkt. #75) 18-19.) As such, Tatum's complaints
about repetitiveness of food has as much to do with the
limitations in the NOI-diet, or at least Tatum's
restrictive interpretation of that diet, than to lack of
creativity or variety in the DOC's menu plan.
also complains about receiving MF/LS bread, canned fruits and
vegetables, milk-free margarine and an assorted flavor fruit
drink. (Dkt. #162.) However, all of these items were on
Exhibits 503a and 503b, and Tatum did not object to
them at trial or in his post-trial, pre-judgment briefing.
Indeed, he argued that the DOC should be required to
adopt a diet “similar to 503a.” (9/26/17 Op.
& Order (dkt. #155) 13 (quoting Pl.'s Post-Trial Br.
(dkt. #126) 5).) Accordingly, the time for voicing concerns
about particular items not being NOI-compliant has long since
in his post-trial briefing, Tatum primarily argued that the
DOC should be required to replace the Halal diet with an
NOI-compliant diet, an argument which the court rejected. For
whatever reason, Tatum chose to focus his attention on this
argument rather than raising any additional concerns with
respect to the diet contained in Exhibits 503a and 503b.
Having relied on the objections Tatum made during the course
of trial in crafting the permanent injunction, the court sees
no reason to amend the injunction further, especially on the
basis of objections Tatum already waived. Finally, in light
of the fact that the meal plans provide approximately 3500
calories per day (see dkt. #159-2), there is some
wiggle room for Tatum to “self-select” and not
eat items he now deems overly repetitive or simply
addition, Tatum now lodges complaints entirely unrelated to
the religious accommodation at issue in this case. For
example, Tatum complains that the DOC only provides one can
of Boost, which is not enough to cover his cereal and
requires him to eat dry cereal. Tatum also complains that the
beans are bland. Neither of these complaints rise to the
level of “torture” as Tatum dramatizes, nor do
they violate the letter or the spirit of the injunction, nor
otherwise provide a cause of action under RLUIPA, much less
reopen final judgment in this case.
also seeks reconsideration of the court's award of costs
and sanctions against defendants for misrepresenting cost
payments. As for the reconsideration, Tatum seeks
reimbursement for various legal loans, but as far as the
court can surmise these costs are duplicative of the
reimbursement already ordered for his paper costs, typewriter
ribbons, writing materials and postage -- or at least Tatum
has not explained how the legal loans covered other items, or
if so, what the legal loans covered. Tatum next reasserts his
argument for $200.00 for legal assistance for Linda Muhammad
for compensation for the time that he personally spent on
this lawsuit. As the court previously explained, neither are
taxable costs allowed under 28 U.S.C. § 1920. Even if
they were permitted, the request is too vague to support an
award. See Wahl v. Carrier Mfg. Co., 511 F.2d 209,
217 (7th Cir. 1975).
and perhaps more meritorious, it appears that Tatum's
trust account statement shows a balance due for the filing
fee in this case. (Dkt. #176-1.) To the extent that the court
is reading this document correctly, it received the balance
of the filing fee from defendants. Therefore, defendants
should adjust Tatum's trust account statement to show a
$0 balance for this filing fee. While the court will require
defendants to file proof of the adjustment, the court will
neither sanction defendants for this apparent oversight nor
grant plaintiff any further relief on this record.
Plaintiff Robert L. Tatum's motion for reconsideration
(dkt. #172), declaration and request for evidentiary hearing
(dkt. #173) and motion for the court to expedite / timely
hear and decide PI motions (dkt. #175) are DENIED.
Plaintiff's motion for sanctions against defendants for
misrepresenting cost payments and for recalculation of costs
based on new information and evidence (dkt. #176) is GRANTED
IN PART AND DENIED IN PART. The motion is granted as to
requiring defendants to file proof of an adjustment in
Tatum's trust account to reflect a $0 balance for the