United States District Court, W.D. Wisconsin
JAMES A. LEWIS, Plaintiff,
CHAD HENNEMAN, LORIE IVERSON, and LAURIE NEUROTH, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
plaintiff James A. Lewis, a prisoner currently incarcerated
at the Wisconsin Secure Program Facility (WSPF), filed this
lawsuit alleging that defendants, WSPF officials Chad
Henneman, Lorie Iverson, and Laurie Neuroth, harassed and
disciplined Lewis in retaliation for his complaining about
sexual harassment by Henneman. In a May 24, 2018 order, I
granted defendants' motion for summary judgment and
dismissed the case. Dkt. 100.
Lewis has moved for reconsideration of my ruling. Dkt. 102. I
construe his motion under Federal Rule of Civil Procedure
59(e). Such a motion “will be successful only where the
movant clearly establishes: (1) that the court committed a
manifest error of law or fact, or (2) that newly discovered
evidence precluded entry of judgment.” Cincinnati
Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir.
2013). Lewis moves under the first prong: he contends that
“there were errors in the court's decision.”
Dkt. 102, at 1. So he must show that I committed a manifest
error of law or fact. “A ‘manifest error' is
not demonstrated by the disappointment of the losing party.
It is the ‘wholesale disregard, misapplication, or
failure to recognize controlling precedent.'”
Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th
Cir. 2000) (quoting Sedrak v. Callahan, 987 F.Supp.
1063, 1069 (N.D. Ill. 1997)).
identifies five errors of fact. First, Lewis argues that I
should have noted that Lebbeus Brown changed the finding of
guilt on Lewis's July 30, 3015 conduct report to not
guilty. But the only evidence of that change is the altered
conduct report that was the basis for defendants' motion
for sanctions. After a hearing on the sanctions motion, I
explained that I would not consider the altered conduct
report because I was not convinced that it was authentic.
See Dkt. 99, at 3. So I did not err in that regard.
he points out that I didn't go into the specifics of the
February 16, 2016 incident; he argues that third-party
reports of the incident support his version of the events and
show that Henneman lied. And he points to Iverson's
statement that there were “half-truths in everything
[that Henneman] says” as further proof that Henneman
lied. Dkt. 102, at 3. That may be, but it doesn't save
Lewis from summary judgment. As I explained in the May 24
order, the record shows that Henneman was treating Lewis
unfairly and disciplining him for reasons that might not have
been fully legitimate. But the record does not show that
Henneman did so in retaliation for Lewis's First
Amendment activity. Without evidence linking Henneman's
bad acts to Lewis's First Amendment activity, Lewis
cannot succeed on his First Amendment retaliation claim.
“General harassment and bullying does not amount to
retaliation.” Dkt. 100, at 13.
Lewis states that the evidence indicates that a written
policy requires Iverson and Neuroth to complete work
performance evaluations every six months, but in fact, they
had an unofficial policy of only completing evaluations
“when a conduct report was written, ” which is
what happened in Lewis's case. Dkt. 102, at 3. He argues
that given these facts, “the court would have to
conclude that . . . Lewis's work performance had not
declined.” Id. But even assuming that
Lewis's work performance was good and that his poor
performance evaluations were based solely on Henneman's
illegitimate conduct reports, there is still no evidence that
any of the defendants were motivated by Lewis's First
Amendment activity when they completed his conduct reports
and evaluations. Without evidence of retaliatory intent,
Lewis's First Amendment claims fail.
Lewis points to the Wisconsin Department of Corrections'
Executive Directive #72 concerning sexual abuse and sexual
harassment in confinement, which requires the alleged
perpetrator and victim of sexual abuse to be monitored for at
least 90 days following a report of sexual abuse.
See Dkt. 48-23, at 17. He argues that as a result,
any adverse action by Henneman within 90 days of Lewis's
First Amendment activity is retaliation, and that any adverse
action by Henneman more than 90 days after Lewis's First
Amendment activity is also retaliation because
“Henneman would know Lewis was to be monitored for at
least 90 days, and therefore waited at least that long to
retaliate.” Dkt. 102, at 5. But the mere fact that the
Department of Corrections chose a 90-day timeframe to monitor
for retaliation does not mean that any bad acts that occur
within that 90-day period-or beyond-are retaliatory. There
must be some indication that that the defendant took the
adverse action because of the plaintiff's First Amendment
activity. Here, there is no evidence from which a reasonable
juror could infer that defendants completed the conduct
reports and evaluations because of Lewis's First
Lewis notes that he took time off from work in late 2015 and
early 2016. He argues that “the court must recognize
Henneman could not retaliate against Lewis during the months
Lewis was not at work.” Id. But I noted these
periods of non-work when deciding defendants' summary
judgment motion; the fact remains that none of Henneman's
adverse actions occurred close in time to Lewis's First
Amendment activity. There is no evidence of a retaliatory
has not shown that I committed a manifest error of law or
fact, so I will deny his motion for reconsideration.
ORDERED that plaintiff James A. Lewis's motion for