United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF'S MOTION TO ALTER
JUDGMENT (DKT. NO. 61)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
Toni Toston filed a complaint on August 18, 2016, alleging
that the defendants retaliated against him for filing an
inmate complaint when they issued him a conduct report that
resulted in his spending time in segregation. On August 27,
2018, the court granted the defendants' motion for
summary judgment. Dkt. No. 59. The plaintiff has asked the
court to alter that judgment. Dkt. No. 61.
plaintiff filed his motion under Federal Rule of Civil
Procedure 59(e), which allows a court to alter a judgment
only if the movant can demonstrate “a manifest error of
law or present newly discovered evidence.” Obriecht
v. Raemisch, 517 F.3d 486, 494 (7th Cir. 2008) (citing
Sigsworth v. City of Aurora, 487 F.3d 506, 511-12
(7th Cir. 2007)). A manifest error of law is “not
demonstrated by the disappointment of the losing party. It is
the ‘wholesale disregard, misapplication, or failure to
recognize controlling precedent.'” Oto v.
Metropolitan Life Ins. Co., 224, F.3d 601, 606 (7th Cir.
2000) (citation omitted).
plaintiff's motion does not identify any newly discovered
evidence. Instead, it asserts that the court committed
several manifest errors of law when it found that defendant
Pamela Zank did not retaliate against him for filing an
inmate complaint. The plaintiff first argues that the court
did not cite the controlling precedent for a retaliation
claim; he says that the court should have cited Babcock
v. White, 102 F.3d 267 (7th Cir. 1996) and Mt.
Healthy City Sch. Dist. Bd. Educ. v. Doyle, 429 U.S.
274, 97 (1977)). Dkt. No. 61 at 1. The plaintiff concedes
that under these cases, he had the burden of proving by a
preponderance of the evidence that he was engaging in an
activity protected by the First Amendment and that that
activity was one of the reasons the defendants acted against
him. Id. at 2. He states that if he made such a
showing, the burden of persuasion would shift to the
defendants to show that they would have taken the same
actions absent protected activity. Id. The plaintiff
assumes that he met his burden, and argues that once the
burden of persuasion shifted to the defendants, they did not
meet it-they did not show that they would have written the
conduct report even if he had not filed an inmate complaint.
plaintiff is correct that the court did not rely on
Babcock or Mt. Healthy in citing the
standard for evaluating a retaliation claim. That is because
those cases are twenty-three and forty-two years old,
respectively. There are many more recent cases that state the
standard (which is what the plaintiff says it is); the court
just used more recent cases, to make sure it was citing the
most current law. See Dkt. No. 59 at 14-15. The fact
that the court cited more recent cases describing the same
standard articulated in Babcock and Mt.
Healthy does not constitute manifest error.
the plaintiff argues that the court improperly applied the
standard. He asserts that the court should have placed the
burden on the defendants to show that the conduct report and
resulting segregation time were not punishment for his
engaging in the protected activity. But that isn't the
standard. As the plaintiff notes and as the standard states,
the burden shifts to the defendants only if the plaintiff has
satisfied all the elements required to state a prima
facie claim of retaliation. The court found that the
plaintiff had not satisfied all the elements of a
prima facie claim, because he had not shown a causal
connection between Zank issuing him the conduct report and
his engaging in the protected activity of writing an inmate
plaintiff cites Tate v. Jenkins, No. 09-CV-169, 2010
WL 3809765 (E.D. Wis. Sept. 24, 2010), which also relies on
the legal standard used by this court; that case is
distinguishable. In Tate, the plaintiff received a
conduct report for lying about staff after an investigation
rendered unfounded his allegation that the prison staff were
racially discriminating against African Americans' inmate
complaints and several officers had unjustly taken his
property. Id. at *4-5. The parties presented
conflicting evidence on whether the allegations were in fact
unfounded. The plaintiff in Tate alleged that the
defendant who wrote the conduct report had told the plaintiff
that the defendant was going to put “a target on [the
plaintiff's] back” because of the plaintiff's
allegations. Id. at *2, 9. The Tate court
found that there was a dispute as to a material issue of
fact-whether the plaintiff should have received a conduct
report and whether the conduct report had been issued in
retaliation for the plaintiff engaging in the protected
activity of free speech. Id., *9.
the plaintiff disagrees with Zank's finding that he lied
about staff, the only evidence he provided the court in the
way of a dispute of material fact is his assertion that the
conduct report Zank issued was dismissed. The plaintiff
argues that because the report was dismissed (albeit years
later, and by a different warden), the only possibly
explanation for why Zank issued it was because she was trying
to retaliate against him. This ignores the undisputed facts:
Zank received a report that something had happened (something
she didn't observe herself, and wasn't involved in).
She investigated, and concluded based on the evidence she
found that the plaintiff had been untruthful. The reviewing
authorities found otherwise, but that does not mean that Zank
did not believe the plaintiff had lied when she issued the
report. The issue is Zank's intent, and the plaintiff has
not presented any evidence to support his argument Zank
intended to get back at him for filing an inmate complaint.
the plaintiff disagrees with the court's characterization
that he relies on circumstantial evidence-what the court
characterized as the “suspicious timing” of the
conduct report-to defeat the defendants' summary judgment
argument. The plaintiff says that he isn't relying on the
“suspicious timing” alone. He says he submitted
direct evidence-the defendants' admission in discovery
that Warden Foster dismissed the conduct report in September
2016 (dkt. no. 47-1 at 32)-showing that retaliation was a
motivating factor for Zank to issue the conduct report. As
the court explained in its order, that argument assumes that
Zank had no evidence to support her belief that the plaintiff
had lied about the alleged assault. The court pointed out
that there is no record evidence to show why Foster dismissed
the conduct report years later, and significant evidence to
show why Zank believed the plaintiff had lied. The issue is
not whether the plaintiff lied; it is whether Zank had reason
to believe the plaintiff had lied when she issued the conduct
report. The plaintiff insists that she issued the report to
punish him for complaining, but the evidence indicates that
she issued the report to punish him for what Zank believed
was falsely complaining.
remainder of the plaintiff's motion rehashes his
arguments regarding the significance of the conduct report
being dismissed four years later. The court discussed this
argument at length in its decision. It will not do so again
here. While plaintiff disagrees with the court's
decision, his disagreement does not constitute manifest error
under Rule 59(e). See Oto v. Metropolitan Life Ins.
Co., 224 F.3d 601, 606 (7th Cir. 2000).
the plaintiff admits that he has no retaliation claim against
Pollard and O'Donovan.
court DENIES the plaintiffs motion to alter