United States District Court, E.D. Wisconsin
ROBERT L. TATUM, Plaintiff,
EARNELL R. LUCAS, et al., Defendants.
DECISION AND ORDER
ADELMAN District Judge
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. On February 15, 2019,
I entered an order deciding several matters. First, I found
that the complaint alleged many unrelated claims against
different defendants that were not properly joined in a
single suit under Federal Rule of Civil Procedure 20. Second,
I clarified and identified the claims that remained in the
suit at the time the case was transferred to me from Judge
Randa. Third, I analyzed the remaining claims under Federal
Rule of Civil Procedure 56 and granted summary judgment to
certain defendants on certain claims. I found that four of
the plaintiffs' claims survived summary judgment.
However, I noted that these four claims were not properly
joined under Rule 20 and that, for them to proceed, they
would have to be severed into separate suits. I gave the
plaintiff an opportunity to choose which of the four claims
would proceed under the case number for this suit and which
claims would proceed as new actions. Finally, I denied the
plaintiff's motion for sanctions.
entered the order, the plaintiff filed a motion for
reconsideration, which I address in this order. I also
address the plaintiff's failure to choose which of his
remaining four claims he would like to prosecute under the
case number for this suit.
plaintiff's motion for reconsideration raises nine
issues. First, he contends that I ignored reconsideration
standards. However, “a district court has the
discretion to make a different determination of any matters
that have not been taken to judgment or determined on
appeal.” Cameo Convalescent Center, Inc. v.
Percy, 800 F.2d 108, 110 (7th Cir. 1986). None of the
matters that I reconsidered in my order of February 15 had
been taken to judgment or determined on appeal. Thus, for the
reasons expressed in the order-namely, the condition of the
record at the time I inherited the case and the confusion
over which claims had survived summary judgment when the case
was pending before Judge Randa-I exercised my discretion to
reconsider various matters. No. rule of law of which I am
aware prevented me from doing so.
the plaintiff asks that I reconsider my conclusion that his
claims were not properly joined under Rule 20. The plaintiff
contends that my conclusion is inconsistent with 28 U.S.C.
§ 1367(a), which grants district courts supplemental
subject-matter jurisdiction over certain claims that would
not otherwise be within the court's original
subject-matter jurisdiction. But I did not dismiss the
plaintiff's claim for lack of subject-matter
jurisdiction, and § 1367(a) has nothing to do with
whether the plaintiff's claims were properly joined under
the plaintiff contends that I overlooked his contention that
the defendants could not rely on the declarations of Thomas
James Gable, D.O. (ECF No. 221), and Kevin Nyklewicz (ECF
Nos. 222-227). The plaintiff contends that the defendants
could not submit evidence from these witnesses because they
are expert witnesses whom the defendants did not properly
disclose under Federal Rule of Civil Procedure 26(a)(2)(B).
Although it is true that I did not discuss this issue, I did
not have to do so, for I did not rely on expert testimony
submitted by these witnesses in deciding the matters
addressed in my February order. I did not rely on Gable's
declaration to any extent, and I relied on Nyklewicz's
declaration only to the extent that it authenticated certain
disciplinary records. That part of the declaration was not
expert testimony, and therefore the defendants were allowed
to use it even if they did not properly disclose Nyklewicz as
an expert witness. Thus, the issue of whether the defendants
properly disclosed these witnesses was moot.
the plaintiff contends that the way I decided the matters
addressed in the February order shows that I am biased
against him. However, the remedy for a claim of judicial bias
is the judge's recusal from the case, not the biased
judge's reconsideration of the matters already decided.
Moreover, I do not see grounds for recusing myself from the
case. Although the plaintiff clearly disagrees with my
approach to his case, “[j]udicial rulings alone almost
never constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S.
540, 555 (1994).
the plaintiff contends that I “disregarded” the
standard for granting summary judgment in my analysis of his
claims. However, I cited the proper standards in my opinion,
see February 2019 Order at 14, and I believe that my
analysis of the plaintiffs' claims involved a proper
application of those standards. I will stand on the reasoning
I provided in my February order.
the plaintiff contends that he should be allowed to proceed
in forma pauperis on any claims that are severed from this
suit and made part of a distinct new suit despite his having
incurred three “strikes” under 28 U.S.C. §
1915(g). This issue is premature. The separate lawsuits have
not yet been created, and the plaintiff has not yet requested
leave to proceed in forma pauperis. When the plaintiff
requests such leave, the issue of whether he is subject to
§ 1915(g) can be addressed.
the plaintiff contends that David A. Clarke, Jr., the former
Sheriff of Milwaukee County, must remain in the case.
However, the plaintiff brought claims against Clarke in his
official capacity only, and therefore when he left office his
successor was automatically substituted as the defendant.
See Fed. R. Civ. P. 25(d). Accordingly, Clarke was
properly dismissed as a party.
the plaintiff contends that I abused my discretion in denying
his motion for sanctions against the defendants without
making detailed findings and explaining my rationale.
However, I stated my finding that the defendants did not
engage in sanctionable conduct, and that was enough to end
the matter. Sanctions motions like the plaintiff's, which
contend that the opposing party made frivolous arguments,
often turn on the judge's subjective assessment of the
strength of the arguments. If the judge finds that the
defendants made frivolous arguments, then the judge should
explain the basis for that finding by citing cases showing
that the defendants' position lacked reasonable support.
But when the judge concludes that the arguments were not
frivolous, little is served by writing a lengthy opinion.
the plaintiff contends that I should have granted him summary
judgment on three of his surviving claims even though he did
not file his own motion for summary judgment. It is true that
Federal Rule of Civil Procedure 56(f)(1) allows a district
court to grant summary judgment to a nonmovant. However, the
rule does not state that a district court must grant
summary judgment to a nonmovant. Moreover, to the extent the
plaintiff may be entitled to summary judgment on discrete
claims and issues, this may be explored during further
proceedings after the remaining claims are severed into their
these reasons, the plaintiff's motion for reconsideration
will be denied. The remaining matter is to implement the
severance of the plaintiff's surviving claims. In my
February order, I granted the plaintiff time to identify
which of his four claims he wished to pursue under the case
number for this action and which of those claims he wished to
pursue in severed actions. In response to my order, the
plaintiff filed a letter in which he states that he explained
how he wants to proceed in his motion for reconsideration.
See ECF No. 465. However, as far as I can tell, the
motion for reconsideration does not identify which claim he
wants to pursue under the present case number and which, if
any, of his claims he will pursue if they are severed into
different actions. The plaintiff refers me to footnote 2 on
page 14 of the motion, but there is no such footnote.
event, to facilitate the resolution of the plaintiffs'
remaining claims, I will proceed with the severance. Under
No. 11-C-1131, the plaintiff may proceed with his claim that
his right to procedural due process was denied when the
defendants refused to allow him to call witnesses during
disciplinary hearings held on September 29, 2010, February
23, 2011, and March 29, 2011. The defendants to this claim