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Tatum v. Lucas

United States District Court, E.D. Wisconsin

February 15, 2019

ROBERT L. TATUM, Plaintiff,
v.
EARNELL R. LUCAS, [1] et al., Defendants.

          DECISION AND ORDER

          LYNN ADELMAN DISTRICT JUDGE

         Robert L. Tatum, proceeding pro se, commenced this action in 2011, alleging claims under 42 U.S.C. § 1983, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and state law. His claims arise out of his approximately one-year period of confinement at the Milwaukee County Jail. The case was originally assigned to Judge Rudolph T. Randa, who presided over the case until he stopped hearing cases in June 2016. A short time later, the case was reassigned to me. At the time of reassignment, the case was supposedly ready for a jury trial. However, upon reviewing the file, I realized immediately that the case was not ready for trial. The complaint alleged dozens of claims against more than 30 defendants. Judge Randa, in a series of orders, had granted summary judgment on some claims but found that others should proceed to trial. However, he did not identify with precision the claims that survived summary judgment and did not identify which defendants were parties to the surviving claims and which defendants were parties only to claims that had been dismissed. Like me, the defendants were confused by Judge Randa's summary-judgment orders and offered to file a motion for reconsideration of those orders to enable me to better identify the claims that should proceed to trial, if any. I agreed with the defendants' proposal and granted them leave to file the motion for reconsideration, which they have done. The plaintiff has filed a response to the motion. I address that motion in this order, along with the plaintiff's latest motion for sanctions (ECF No. 459).

         I. Background

         In early June 2010, Tatum was arrested on two charges of first-degree intentional homicide. At that time, he entered the Milwaukee County Jail as a pretrial detainee. Tatum was found guilty of both homicides on April 7, 2011, and he was sentenced to two consecutive life terms on June 10, 2011. Tatum continued to be detained at the jail until June 15, 2011, when he was transferred to state prison.

         On December 13, 2011, Tatum filed the complaint in this action. The complaint narrates a series of mostly unrelated grievances against more than 30 individuals at the Milwaukee County Jail, including correctional officers, healthcare providers, county detectives, and the Sheriff himself. The grievances relate to a variety of issues, including denial of a religious diet, improper medical care, use of excessive force, denial of procedural due process during disciplinary hearings, use of improper bodily restraints, denial of access to the courts, and retaliation for engaging in protected activity. The complaint also alleges state-law claims, including intentional infliction of emotional distress and invasion of privacy. The complaint does not reveal any overarching theory that connects all claims (although the plaintiff tried to supply such a theory after filing the complaint). Instead, the complaint is an attempt to bring every grievance that arose during his time at the jail in a single suit. Thus, an initial question is whether the plaintiff's disparate claims were properly joined in a single action. If they were not, then the next question is what to do about the misjoinder at this late stage of the proceedings. I address these questions below.

         II. Joinder/Misjoinder

         Federal Rules of Civil Procedure 18 through 21 govern joinder of claims and parties. In the present case, the rules that matter are Rules 18(a) and 20(a)(2). Rule 18(a) allows a party to assert as many claims as it has against an opposing party, regardless of whether they are related. However, before applying Rule 18(a), a court must ensure that all defendants are properly joined under Rule 20(a)(2). See UWM Student Ass'n v. Lovell, 888 F.3d 854, 863 (7th Cir. 2018) (“the Rule 20 inquiry comes first”). Under Rule 20, multiple defendants may be joined if “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences” and “any question of law or fact common to all defendants will arise in the action.” Fed.R.Civ.P. 20(a)(2). These rules are broad, giving district courts considerable flexibility in managing and structuring civil litigation for fair and efficient resolution of complex disputes. UWM Student Ass'n, 888 F.3d at 863. Still, there are limits. “Unrelated claims against different defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

         Here, there is no doubt that the complaint asserts unrelated claims against different defendants. Here is just one example. The plaintiff alleges a claim under the Free Exercise Clause of the First Amendment against a correctional officer named James Koscielak, in which he accuses Koscielak of mocking his religious beliefs. Compl. ¶¶ 188, 247. The plaintiff also alleges a claim for inadequate medical care against a nurse at the jail named Tina Watts, in which he accuses her of failing to properly treat a head injury that he suffered during a use-of-force incident involving other correctional officers. Id. ¶¶ 36, 248. Obviously, these claims are completely unrelated, and no question of law or fact common to both claims will arise in the action. The plaintiff attempts to connect his unrelated claims by asserting that every defendant's unlawful conduct was motivated by a conspiracy to retaliate against him for practicing his religion. See ECF No. 9 at 1-2. But the complaint itself does not plead that a retaliatory conspiracy involving every defendant existed. Moreover, while the claim against Koscielak at least involves the plaintiff's religion, the claim against Watts does not. And the complaint does not give rise to a reasonable inference that Watts decided to improperly treat the plaintiff's head injury in order to retaliate against him for practicing his religion.

         Nonetheless, Judge Randa allowed the plaintiff to proceed with his misjoined claims under the retaliatory-conspiracy theory, finding that “Tatum's claims all flow from the initial denial of a religious diet.” See ECF No. 3 at 3.[2] I disagree with this ruling, but I cannot turn the clock back to 2011 and correct the error. Although the defendants ask me to dismiss the entire complaint for misjoinder, that would never have been a proper remedy, even in 2011, because “[m]isjoinder is not a ground for dismissing an action.” Fed.R.Civ.P. 21. What would have been a proper remedy in 2011 is an order dismissing the misjoined claims without prejudice. See UWM Student Ass'n, 888 F.3d at 864. But dismissing the misjoined claims without prejudice is no longer an available remedy. The Seventh Circuit has stated that a district court should not dismiss a misjoined claim when the statute of limitations would prevent the plaintiff from refiling the claim in a separate suit. See Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000). All of Tatum's claims accrued in 2011 or earlier, but the statute of limitations for civil-rights claims in Wisconsin is six years. See Malone v. Corrections Corp. of America, 553 F.3d 540, 542 (7th Cir. 2009). Thus, Tatum's misjoined claims could not be re-filed in separate suits at this time.

         The one remedy for misjoinder that remains available is severance. See Fed. R. Civ. P. 21; UWM Student Ass'n, 888 F.3d at 864; Elmore, 227 F.3d at 1012. However, judicial efficiency would not be served by an order severing all claims in the complaint into separate suits at this late stage of the case. Judge Randa already adjudicated many of the claims on the merits. Moreover, because the defendants have filed a motion for reconsideration that essentially serves as a motion for summary judgment on the remaining claims, it makes sense to decide that motion before severing claims. If any claims survive the defendants' motion, and those claims involve defendants who are not properly joined under Rule 20, then I will consider severing the surviving claims.

         III. Identification of Claims Adjudicated by Judge Randa

          To identify the claims that remain in this suit, I begin by identifying those claims that Judge Randa disposed of in his two opinions on the defendants' prior motions for summary judgment. In his first opinion, Judge Randa granted summary judgment to the defendants on all claims for denial of access to the courts and all claims for retaliation. See ECF No. 192 at 16-20. The plaintiff agrees that Judge Randa granted summary judgment on all access-to-courts claims and on the overarching retaliatory-conspiracy claim that formed the basis for Judge Randa's joinder decision. See ECF No. 449 at 6. However, he disputes that Judge Randa granted summary judgment on any other retaliation claim, including a retaliation claim that relates to an excessive-force incident alleged to have occurred on October 21, 2010. But Judge Randa granted summary judgment on all retaliation claims, and he expressly identified the retaliation claim involving the October 21 incident as one of the claims he disposed of. ECF No. 192 at 20. Thus, I understand Judge Randa to have granted summary judgment on each and every retaliation claim in this case.

         In his opinion on the defendants' second motion for summary judgment, Judge Randa dismissed additional claims. First, he granted summary judgment on all claims that were labelled “substantive due process.” ECF No. 240 at 28-29. He identified these claims as follows: (1) a claim that, on April 7, 2011, the date on which Tatum was found guilty of the two homicides, defendant Kevin Nyklewicz unlawfully placed him on suicide watch; (2) a claim that, on January 19, 2011, defendant Peter Jaskulski unlawfully placed Tatum on “PC status, ” id. at 28; and (3) a claim that, on some unidentified date, some unidentified defendant unlawfully placed Tatum on an “RIP restraint bed, ” id.[3] However, with respect to the RIP bed, Judge Randa wrote that he was not granting summary judgment on that claim to the extent Tatum was alleging that it amounted to a use of excessive force. Id. at 29.

         Second, Judge Randa purported to grant summary judgment on some claims that were labelled “procedural due process.” Id. at 29-31. Judge Randa understood Tatum to be claiming that his right to due process in jail disciplinary proceedings was violated because jail officials (whom Judge Randa did not identify by name) refused his requests to call witnesses at certain disciplinary hearings. Judge Randa wrote that he was granting summary judgment on this claim to the extent it involved disciplinary hearings on January 27, 2010, March 18, 2011, April 25, 2011, and May 25, 2011. Id. at 30. However, as far as I can tell, the complaint contains no allegations relating to disciplinary hearings that occurred on these dates. Indeed, Tatum was not even in the jail on January 27, 2010-he was not arrested until early June 2010-so obviously no hearing could have occurred on that date. In any event, I do not understand the plaintiff to be pressing any claims relating to hearings on these dates. I do understand the plaintiff to be pressing due-process claims relating to hearings that occurred on September 29, 2010, February 23, 2011, and March 29, 2011, but Judge Randa expressly did not grant summary judgment on any procedural-due-process claims involving these hearings. ECF No. 240 at 31.[4] I will address Tatum's procedural-due-process claims relating to these hearings later in this order.

         Finally, Judge Randa dismissed the plaintiff's state-law invasion of privacy claims. ECF No. 240 at 35. Judge Randa identified these claims as involving incidents in which correctional officers forced him to strip in front of others. He wrote that these incidents occurred on March 11, 2011 and May 4, 2011. Id. Judge Randa did not identify the person or persons he deemed to be defendants to these claims. However, based on the allegations of the complaint, I believe that the defendants to the March 11 incident were Deshawn McKinley and Matt Leete, Compl. ¶¶ 110, 117, and that the defendant to the May 4 incident was a Doe defendant who has since been identified as Calvin Smith, id. ¶¶ 152, 160.

         In sum, I consider Judge Randa to have granted summary judgment on the following claims: (1) all access-to-courts claims; (2) all retaliation claims; (3) a claim that, on April 7, 2011, defendant Kevin Nyklewicz unlawfully placed Tatum on suicide watch[5]; (4) a claim that, on January 19, 2011, defendant Peter Jaskulski unlawfully placed Tatum on “PC status”; (5) a claim involving the “RIP restraint bed, ” but only to the extent it is asserted as a substantive-due-process claim and not an excessive-force claim; (6) a state-law invasion-of-privacy claim against defendants Deshawn McKinley and Matt Leete arising out of events that occurred on March 11, 2011; and (7) a state-law invasion-of-privacy claim against defendant Calvin Smith arising out of events that occurred on May 4, 2011.

         IV. Identification of Claims that Survived Summary Judgment

         I next identify the claims that Judge Randa did not dispose of in his rulings on the defendants' two motions for summary judgment. I also identify the defendants to each surviving claim. Finally, I identify two claims that Judge Randa identified as having survived summary judgment but which do not appear to ever have been a part of this case.

         First, the plaintiff survived summary judgment on his official-capacity claim for damages under RLUIPA involving the denial of a religious diet. Because, under RLUIPA, governmental officials are not liable for damages in their personal capacities, the only proper defendant to this claim is the Sheriff in his official capacity. See Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012); Nelson v. Miller, 570 F.3d 868, 885-89 (7th Cir. 2009).[6]

         Second, the plaintiff has individual-capacity claims for damages under the Free Exercise Clause against correctional officers who allegedly mocked his religious beliefs. The defendants to these claims are James Koscielak and Sean Henderson. See Pl. Br. in Opp. to Mot. for Reconsideration at 14, ECF No. 449.

         Third, in his brief in opposition to the defendants' motion for reconsideration, the plaintiff claims that he did not receive adequate medical care after he refused to eat the food served to him by the jail and embarked on a hunger strike in which he also refused to drink fluids. See ECF No. 449 at 15-16; see also Compl. ¶¶ 170-75, 179, 182, 185- 86, 195, 201-02. The plaintiff does not, either in his complaint or in his latest brief, identify the medical providers who might be defendants to this claim. See Compl. ¶¶ 226-50 (identifying causes of action); ECF No. 449 at 15-16. The complaint does contain allegations against individuals identified only as unknown nurses, but the plaintiff did not identify these nurses during discovery, and Judge Randa denied the plaintiff's untimely request to identify them just before trial. See ECF No. 291 at 1-2. Thus, they are not currently defendants. It seems that, at this point, the plaintiff asserts this claim against the Sheriff in his official capacity, arguing that the provision of inadequate medical care during his hunger strike and refusal to eat the food served to him in disciplinary housing was the result of an official policy or practice, thus rendering the Sheriff liable under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978). In any event, I do not need to identify the defendants to this claim because, for the reasons explained in the analysis section below, the plaintiff has not produced evidence that would allow a reasonable trier of fact to find that the plaintiff did not receive proper medical care for the effects of his hunger strike and refusal to eat prison food.

         Fourth, the plaintiff has a claim for improper medical care against Tina Watts, a nurse at the jail, relating to her alleged failure to properly treat a head injury that the plaintiff suffered on October 21, 2010, when correctional officers used force on him.

         Fifth, the plaintiff has claims for denial of procedural due process at disciplinary hearings that occurred on September 29, 2010, February 23, 2011, and March 29, 2011. In each claim, the plaintiff alleges that he was denied due process because the hearing officer did not allow him to call witnesses that he requested. I consider the plaintiff to be asserting personal-capacity claims against the hearing officers who denied the requests and an official-capacity claim against the Sheriff on the theory that he maintained a policy of denying witnesses in all disciplinary hearings. The hearing officer for the September 29 and February 23 hearings was Melissa Elliott, and the hearing officer for the March 29 hearing was Tricia Carlson.

         Sixth, in his brief in opposition to the defendants' motion for reconsideration, the plaintiff contends that Judge Randa overlooked a different claim for denial of procedural due process. ECF No. 449 at 19. In this claim, the plaintiff contends that the jail had a policy of punishing pretrial detainees for disciplinary violations prior to their disciplinary hearings. That is, he contends that, as soon as jail staff issued an inmate a conduct report, staff would transfer that inmate to disciplinary housing; a hearing on the conduct report would not be held until after the inmate was already in disciplinary housing. The plaintiff contends that this policy violated procedural due process. I consider this claim below, with the understanding that because it is a policy claim the only defendant is the Sheriff in his official capacity. (Also, the plaintiff does not identify any potential defendants to this claim other than the Sheriff. See Compl. ¶ 234.)

         Seventh, Judge Randa did not grant summary judgment on the plaintiff's claim involving the “RIP restraint bed” to the extent that it was asserted as an excessive-force claim. However, as discussed below, I think this claim is better characterized as one for denial of due process. In any event, the claim survives in some form. The incident involving the restraint bed occurred on February 18, 2011, and, according to the plaintiff, the person who made the decision to place the plaintiff on the restraint bed was Thomas Trettin. Compl. ¶¶ 81-82, 236. Accordingly, he is a defendant to this claim in his personal capacity. Moreover, the plaintiff contends that the Sheriff had a policy of using the restraint bed as punishment, and thus the Sheriff in his official capacity is also a defendant.

         Eighth, the plaintiff has a claim involving an alleged incident in which two correctional officers, Decorie Smith and Deshawn McKinley, placed a urine-soaked restraint belt on the plaintiff's bare skin. Smith and McKinley are the only defendants to this claim. (The plaintiff alleges that James Novotny refused to investigate this incident, but that, by itself, would not have violated the plaintiff's constitutional rights. Thus, Novotny is not a defendant to this claim.)

         Ninth, the plaintiff has a claim for use of excessive force against correctional officers who were involved with an incident on October 21, 2010, in which the plaintiff was punched in the face and had his head slammed into an elevator wall. The defendants to this claim are Sean Henderson, Michael Leeman, Fatrena Hale, and Sarah Wronski.

         Tenth, the plaintiff has a claim for use of excessive force against correctional officers who forcibly removed the plaintiff's clothing and changed him into a gown that inmates on suicide watch must wear. The plaintiff alleges that the officers used excessive force by punching him during this incident. The incident occurred on March 11, 2011, and the defendants to this claim are Deshawn McKinley and Matt Leete.

         Eleventh, the plaintiff has a claim for use of excessive force against a correctional officer who, on April 19, 2011, restrained the plaintiff in a manner that caused him to suffer a claustrophobic panic. The defendant is Abie Douglas.

         Twelfth, the plaintiff has a claim for use of excessive force during an incident that occurred on May 4, 2011, in which the plaintiff was sprayed with oleoresin capsicum spray (“OC spray”). Although the plaintiff does not identify the defendant who sprayed him with OC spray, I construe this claim as being against defendant Calvin Smith, who was the team leader of the cell-extraction team that sprayed OC spray into the plaintiff's cell.

         The plaintiff also asserts state-law claims for assault and battery and intentional and negligent infliction of emotional distress that Judge Randa did not dismiss. See ECF No. 40 at 34-35. However, I will not attempt to identify the underlying facts and defendants for these claims because, as discussed in more detail below, all of the plaintiff's state-law claims must be dismissed because the plaintiff failed to comply with Wisconsin's notice-of-claim statute before commencing this action.

         Finally, Judge Randa identified certain claims as surviving summary judgment that, as far as I can tell, have never been a part of this case. First, Judge Randa wrote that the plaintiff could proceed with an excessive-force claim involving an incident that occurred on September 22, 2010. See ECF No. 240 at 33. But there are no allegations in the complaint alleging that any defendant used excessive force against the plaintiff on this date. Moreover, in their motion for reconsideration, the defendants note that the plaintiff alleged no facts concerning an excessive-force incident on September 22, 2010, and they ask me to clarify what specific acts form the basis for this claim. ECF No. 437, at 64. In his response brief, the plaintiff does not identify any acts that might form the basis for this claim, and I am not aware of any. For these reasons, I conclude that the plaintiff has not asserted a claim for excessive force that occurred on September 22, 2010.

         Second, Judge Randa wrote that the plaintiff could proceed with a claim for use of excessive force involving the placement of the plaintiff on “RIP restraint watch” for over 48 hours on May 26, 2011.[7] See ECF No. 240 at 33. However, no allegations relating to this claim appear in the complaint. Moreover, the plaintiff has not identified any potential defendant to this claim. Although the plaintiff describes an incident involving RIP restraint watch in one of his declarations, see ECF No. 177 ¶ 12, he does not identify the person or persons involved in the incident. Thus, I conclude that the plaintiff cannot proceed on a claim involving RIP restraint watch.

         V. Analysis of Surviving Claims

          I next consider whether summary judgment should be granted on the surviving claims. Summary judgment is required where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When considering a motion for summary judgment, I view the evidence in the light most favorable to the non-moving party and must grant the motion if no reasonable juror could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986).

         Because the individual defendants have asserted qualified immunity from personal-capacity damages claims, I briefly summarize the legal standards governing this defense. Qualified immunity “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). It operates “to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.” Saucier v. Katz, 533 U.S. 194, 206 (2001). For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

         A. RLUIPA Claim for Denial of Religious Diet

         RLUIPA provides that no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc-1(a). In general, an institution's refusing to provide an inmate with a nutritious diet that complies with restrictions associated with his or her religious beliefs will be found to substantially burden the inmate's religious exercise. See Nelson, 570 F.3d at 879 (“We have held that a prisoner's religious dietary practice is substantially burdened when the prison forces him to choose between his religious practice and adequate nutrition.”).

         In the present case, the plaintiff alleges that, as soon as he arrived at the jail in early June, he requested a meatless diet for religious reasons. Compl. ¶¶ 165, 167.[8] He contends that, despite his request, the jail did not provide him with a nutritious diet that met his religious restrictions during the many times that he was confined in disciplinary housing (which the plaintiff identifies as “4D”). Instead, he contends, the jail provided him only with a food known as Prison Nutraloaf, which, he believes, contained meat.

         The Sheriff contends that the plaintiff was provided with a nutritious meat-free diet while he was in disciplinary housing. Specifically, he contends that the plaintiff received meatless Nutraloaf. The plaintiff, however, believed that the Nutraloaf he received contained meat, and for this reason he refused to eat it while he was in disciplinary housing. Because the jail would not serve the plaintiff anything other than Nutraloaf while he was in ...


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