Robert Tatum v. Earnell Lucas

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with FED. R. APP. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 9, 2022 *

Decided November 10, 2022

Before

FRANK H. EASTERBROOK, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

THOMAS L. KIRSCH II, Circuit Judge

No. 22-1069

ROBERT L. TATUM, Appeal from the United States District

Plaintiff-Appellant, Court for the Eastern District of

Wisconsin.

v.

No. 11-C-1131

EARNELL LUCAS, et al.,

Defendants-Appellees. Lynn Adelman,

Judge.

ORDER

Robert Tatum, now serving a criminal sentence in Wisconsin, filed an expansive

complaint against dozens of Milwaukee County officials, asserting that each violated

*

We have agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. FED. R. APP. P. 34(a)(2)(C).

No. 22-1069 Page 2

his rights in some way while he was a pretrial detainee. He appeals numerous rulings

from this nearly 11-year-long litigation. Seeing no error in any of them, we affirm.

I.

While awaiting trial on homicide charges from June 2010 to June 2011, Tatum

was held at the Milwaukee County Jail. He amassed 85 disciplinary violations while

there and believes that all or many were based on religious persecution. After his initial

criminal conviction and transfer to the custody of the Wisconsin Department of

Corrections, 1 he filed a complaint asserting at least 25 claims—ranging from excessive

force to inadequate medical care to the lack of a religious diet—against over 30

individuals who worked for Milwaukee County.

What came next is difficult to follow: a decade’s worth of litigation before two

district judges, involving screening, three motions for summary judgment, and a jury

trial—in addition to contentious discovery and scores of motions for reconsideration,

judicial recusal, and sanctions. At screening, Judge Randa (who presided for the first

five years) dismissed a handful of the claims. See 28 U.S.C. § 1915A. But he allowed

Tatum to proceed with the rest all in one lawsuit. The judge accepted Tatum’s theory

that his claims were all related because each defendant’s unlawful conduct—in

otherwise unrelated incidents—stemmed from an alleged conspiracy to “retaliate”

against him because of his membership in the Nation of Islam.

In the next two years, the defendants filed two collective motions for summary

judgment. In its orders partially granting and partially denying the motions, the district

court did not specify which claims survived against which defendants. It stated that

broad categories of claims could continue. For example, the court allowed Tatum to

proceed on his “deliberate indifference to medical needs” claims—without making clear

which of many incidents and defendants those claims involved.

As the November 2015 trial date loomed, the defendants asked the court to

clarify which claims, and against which defendants, they should be prepared to address

1

In 2017 this court reversed the denial of Tatum’s petition for a writ of habeas

corpus under 28 U.S.C. § 2254(d)(1), concluding that the denial of his motion to

represent himself in his criminal trial was contrary to, and an unreasonable application

of, established Supreme Court precedent. Tatum v. Foster, 847 F.3d 459 (7th Cir. 2017).

Tatum was later tried again and convicted.

No. 22-1069 Page 3

at trial. They also asked the court to dismiss (and remove from the case caption) the

defendants against whom no claims remained. The court clarified broadly that Tatum

could not litigate certain claims at trial, but it declined to alter the list of defendants.

Then it moved the trial date to May 2016.

Around that time, the case was reassigned to Judge Adelman. After a status

hearing in May 2018 (in the interim, pretrial proceedings before a magistrate judge had

stalled), the court noted in a minute entry that the case was in an “undesirable state”

because it was unclear “which claims against which parties [were] supposed to proceed

to trial.” The court granted the defendants’ request to file a motion “that will serve as a

vehicle through which the court can identify the claims that should proceed to trial.”

The defendants then moved for summary judgment and for reconsideration of the

initial screening orders.

The court declined to reconsider the screening orders—even though it

determined that the case involved unrelated claims that were improperly joined—

because many claims had already been adjudicated, and the statute of limitations would

preclude Tatum from refiling others. Instead, the court identified the claims that had

survived previous proceedings and considered each on the merits, entering judgment

for defendants on all but four claims.

Because those claims were unrelated for purposes of Federal Rule of Civil

Procedure 20(a)(2), the court gave notice that it would sever them under Rule 21. And

the court allowed Tatum to choose which claim would remain under the primary case

number and proceed to trial first. When Tatum’s response did not identify a claim—he

later attributed this omission to a missing page—the court picked a claim. It retained in

this case Tatum’s claim that Earnell Lucas, Tricia Carlson, and Melissa Elliot—all jail

employees—violated his procedural due process rights by refusing to allow him live

witnesses during three disciplinary hearings. The other claims migrated to separate

cases, all of which have been resolved.

In 2022, Tatum took the due-process claims to trial, representing himself

although the court had recruited counsel for him after the summary judgment

proceedings. The jury returned a verdict in favor of the defendants.

No. 22-1069 Page 4

II.

On appeal, Tatum challenges myriad decisions made during his decade-long

litigation. We address only the arguments pertaining to the due-process claims he lost

at trial and the claims resolved before severance. The proper place to raise arguments

related to the severed claims was in the severed cases.

A.

Tatum first contests the district court’s entry of summary judgment for the

defendants on a series of claims in 2013, 2014, and 2019. 2 We review the decisions

de novo, considering the evidence in the light most favorable to Tatum. See Stockton v.

Milwaukee County, 44 F.4th 605, 614 (7th Cir. 2022).

1.

As for the 2013 summary judgment decision, Tatum contests the district court’s

ruling for the defendants on his claims that he was deprived of meaningful access to the

courts during his (first) criminal trial. Tatum alleged that guards confiscated a manual

on self-representation and did not provide him with forms needed to file an appeal. The

court concluded, however, that he did not lack access to the courts because he was

represented by counsel at the time. See Campbell v. Clarke, 481 F.3d 967, 968 (7th Cir.

2007) (citing Bounds v. Smith, 430 U.S. 817, 830–32 (1977)). Tatum cites a footnote from

Casteel v. Pieschek to argue otherwise. 3 F.3d 1050, 1054 n.4 (7th Cir. 1993). But there, we

merely clarified that a litigant lacks meaningful access to the courts if his criminal

defense attorney is “unable or unwilling” to assist with habeas or civil filings. Id. Here,

2 As an initial matter, Tatum argues that each time the defendants moved for

summary judgment, the district court should have considered his response brief as a

cross-motion for summary judgment and found in his favor on all claims. True, courts

may grant summary judgment for the non-moving party if all the requirements for a

judgment are met. See FED. R. CIV. P. 56(f)(1); Jones v. Union Pac. R. Co., 302 F.3d 735, 740

(7th Cir. 2002). But Tatum’s argument fails because no authority requires courts to do so.

No. 22-1069 Page 5

Tatum alleged only that he lacked the resources to file pro se motions in the criminal

case, in which he was represented. See Campbell, 481 F.3d at 967.

Tatum also challenges the court’s decision on his claim that guards retaliated

against him because he requested a vegetarian diet for religious reasons. According to

Tatum, the defendants submitted “no evidence” contradicting his attestations that they

disciplined him because he requested a religious diet. But, as the district court

explained, the defendants attested that they disciplined Tatum because he broke the

prison’s rules, not because of his religion. And Tatum admitted to breaking those rules.

Thus, his statement about their subjective intent was speculation unfit to stave off

summary judgment. Tatum’s cursory argument fails to engage with the reason the court

ruled in the defendants’ favor and is therefore waived. See Klein v. O'Brien, 884 F.3d 754,

757 (7th Cir. 2018).

2.

As for the 2014 decision, Tatum challenges the district court’s ruling on his state-

law privacy claim, which was based on an alleged strip search. Again, Tatum’s

argument fails because he does not engage with the reasons he lost. See Klein, 884 F.3d

754, 757. The district court determined that the defendants were covered by Wisconsin’s

governmental tort immunity statute, WIS. STAT. § 893.80(4), because their actions

involved the exercise of their discretion and judgment, see Lodl v. Progressive N. Ins. Co.,

646 N.W.2d 314, 320 (Wis. 2002). Tatum says nothing to cast doubt on that conclusion.

3.

With respect to the 2019 decision on the defendants’ third and final summary

judgment motion, Tatum argues that Judge Adelman contravened the law of the case

when he revisited several of Judge Randa’s rulings. (In actuality, Judge Randa never

considered many of the claims on which Judge Adelman later ruled.) But a district court

may always reconsider interlocutory rulings under Federal Rule of Civil Procedure

54(b). See Galvan v. Norberg, 678 F.3d 581, 587 (7th Cir. 2012). And the law-of-the-case

doctrine allows a second district judge to reconsider the rulings of a first judge when

those rulings were incorrect. See Gilbert v. Ill. State Bd. of Educ., 591 F.3d 896, 902 (7th Cir.

2010). We thus turn to whether Judge Adleman’s rulings were correct.

Tatum first argues that Judge Adelman erred by ruling for the defendants on his

claim under the Religious Land Use and Institutionalized Persons Act regarding the

No. 22-1069 Page 6

need for a vegetarian diet. Tatum attested that he once saw meat in the nutraloaf he was

served (exclusively) when in disciplinary housing. See Prude v. Clarke, 675 F.3d 732, 733

(7th Cir. 2012). He argues that summary judgment was improper because there is a

genuine dispute over whether the nutraloaf contained meat. But he ignores the district

court’s conclusion that the jail provided Tatum a vegetarian diet and that even if Tatum

somehow received meat one time, this was not a “substantial burden” on the exercise of

his religion under the Act. See Klein, 884 F.3d 754, 757.

Tatum also argues that the district court erred by ruling against him on his

Fourteenth Amendment claim, which was based on the medical care he was given

when he refused to eat nutraloaf, once for as long as 25 days. Because Tatum was a

pretrial detainee, we ask whether the care he received on hunger strike was objectively

unreasonable. See Miranda v. County of Lake, 900 F.3d 335, 352 (7th Cir. 2018). Tatum

asserts that medical staff should have sought a court order to forcibly feed him and that

a jury could infer unreasonableness from the obvious risk of “just watching long

periods of starvation.” Though the medical staff did not try to forcibly feed Tatum, they

did not just watch: staff evaluated Tatum twice a week, closely monitored his weight

(which never fell more than seven pounds below his weight at the start of his pretrial

detention), and devised a plan to increase his weight that appears to have worked and

taken him back to his normal weight within a month. This care was not objectively

unreasonable. Moreover, Tatum has not, as he must, shown any harm resulting from

this care. See Gabb v. Wexford Health Sources Inc., 945 F.3d 1027, 1032 (7th Cir. 2019).

Next, Tatum contests the district court’s ruling on his claim that a nurse “ordered

no medical safeguards to avoid concussion or sudden death” after he injured his head.

The court concluded that he did not receive objectively unreasonable care because his

medical records showed that other staff attended to the injury and performed “neuro

checks.” On appeal, Tatum argues that the court erroneously relied on those records,

which he says were authenticated through an expert that the defendants had not

properly disclosed. But he is mistaken. The medical records were introduced through a

nursing supervisor’s declaration—to which Tatum never objected.

Tatum responds that even if the records were properly introduced, he

contradicted them by attesting that “nothing was done.” But Tatum’s verified complaint

stated only that a single nurse failed to order certain measures, not that he received no

treatment for the head injury. We must “focus on the totality of facts and circumstances

faced by the individual alleged to have provided inadequate medical care.” See McCann

v. Ogle County, 909 F.3d 881, 886 (7th Cir. 2018). It is undisputed that other staff

No. 22-1069 Page 7

attended to Tatum and performed “neuro checks.” And no evidence clarifies the nurse’s

role or suggests that she bore sole responsibility for Tatum’s care. In any event, Tatum

did not identify any harm he suffered because of this supposed lack of treatment.

See Gabb, 945 F.3d at 1032.

Tatum next challenges the district court’s conclusion that he failed to develop

any argument for his due-process claim that the defendants punished him by

transferring him to disciplinary housing before disciplinary hearings were held. Tatum

argues that he developed his argument in earlier summary judgment filings. But we

cannot expect the court to have sifted through years of litigation to try to understand an

argument that Tatum had the opportunity set forth in response to the final motion for

summary judgment. See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir. 2003)

(“[D]istrict courts … are not required to scour every inch of the record for evidence that

is potentially relevant to the summary judgment motion before them.”).

Similarly, Tatum contests the court’s conclusion that he put forth no evidence

that the jail had a practice of using a “restraint bed” as punishment. Tatum points us to

the defendants’ statement of proposed facts and to a 174-paragraph declaration but

does not tell us what the evidence is. Such broad citations do not allow us to determine

if there was any genuine dispute of material fact. Tatum cannot meet his burden to cite

the parts on the record on which he relies, FED. R. APP. P. 28(a)(8)(a), by asking us to

find support for him in nearly a hundred pages of material, see Jeffers v. Comm'r of

Internal Revenue, 992 F.3d 649, 653 (7th Cir. 2021).

Tatum next argues that the court was wrong to enter judgment for the

defendants on his state-law claims based on its determination that he failed to

demonstrate his compliance with Wisconsin’s notice-of-claim statute, WIS. STAT.

§ 893.80(1d) (requiring timely notice to the Milwaukee County Clerk). Tatum responds

that he gave notice. But county officials attested that they could not locate any notice.

Tatum produced no evidence in response, and he had the burden of proving that he

gave notice. See E-Z Roll Off, LLC v. County of Oneida, 800 N.W.2d 421, 427 (Wis. 2011).

Tatum’s last arguments about the third summary judgment decision—regarding

free-exercise claims and two excessive-force claims (one about an incident that caused

him a claustrophobic panic and the other about a guard’s use of pepper spray)—are

waived. The district court concluded that the defendants did not violate Tatum’s rights

in these instances and that, even if they did, they were entitled to qualified immunity

because they did not violate clearly established law. Tatum does not challenge the

No. 22-1069 Page 8

qualified-immunity rulings on appeal. When a district court provides two independent

grounds for a holding, an appellant’s failure to address one ground results in a waiver

with respect to the entire issue. Maher v. City of Chicago, 547 F.3d 817, 821 (7th Cir. 2008).

B.

Tatum next challenges various discretionary decisions, unrelated to the summary

judgment motions, that Judge Adelman made in 2019 and 2020.

1.

Tatum first takes issue with the court’s decision to sever the claims that survived

the final motion for summary judgment. He says the claims were properly joined under

28 U.S.C. § 1367(a). But § 1367(a) allows a district court to exercise subject-matter

jurisdiction over state-law claims that are related to federal claims. The question here is

whether Tatum’s remaining federal claims were related to each other. In answering that

question, we ask whether those claims were “discrete and separate.” Gaffney v. Riverboat

Servs. of Ind., Inc., 451 F.3d 424, 442 (7th Cir. 2006). Severance was proper because the

claims involved entirely different incidents and defendants—the first involved an

inability to call witnesses at hearings, the second involved the use of a “restraint bed,”

the third concerned the use of a “restraint belt,” and the last asserted improper use of

force during an elevator ride. See Gaffney, 451 F.3d at 442.

Tatum alternatively contends that, to the extent severance was permissible, the

court should have granted his motion to reconsider keeping the due-process claims in

this case. The court allowed Tatum to pick which of his claims would stay in this case

(and be tried first), but because Tatum did not select a claim in his response, the court

chose (apparently at random). Tatum later moved for reconsideration and provided a

purported missing page to show he had selected a different claim. But by the time he

did so, the claims had already been severed. The court did not abuse its discretion by

avoiding yet another delay in a litigation that had already taken eight years.

2.

Next, Tatum argues that the district court again violated the law of the case—this

time by requiring him to cover the cost of subpoenaing witnesses after Judge Randa had

ruled that the court would pay that cost. But, as Judge Adelman correctly concluded,

we have said that district courts lack statutory authority to pay subpoena costs for a

No. 22-1069 Page 9

litigant proceeding in forma pauperis. See Marozsan v. United States, 90 F.3d 1284, 1290–

91 (7th Cir. 1996). Thus, nothing stopped Judge Adelman from revisiting this issue.

See Gilbert, 591 F.3d at 902.

3.

Tatum next argues that admissions by two defendants—sheriff’s deputies

Carlson and Elliot—should have prevented Sheriff Lucas from giving contrary

testimony at trial. See FED. R. CIV. P. 36. Sheriff Lucas was named in his official capacity

for the purpose of Tatum’s Monell claim against the county. Carlson and Elliot admitted

that the jail had a policy of disallowing witnesses in disciplinary hearings. Tatum

wanted to use this admission to prevent Lucas from denying the existence of such a

policy, and he cites common-law agency principles to contend that the statements of

Lucas’s employees bind him (really, the county). Agency law is beside the point.

Carlson and Elliot did not testify on behalf of the county under Rule 30(b)(6); they were

fact witnesses responding to a request for admissions under Rule 36, so they could bind

only themselves with their admissions. See Nelson v. City of Chicago, 810 F.3d 1061, 1074

n.6 (7th Cir. 2016). As the court concluded, the jury was free to weigh Lucas’s testimony

that the policy did not exist against the officers’ admissions to the contrary.

4.

Tatum further argues that the district court erred in denying his motion to “re-

add” the deputy inspector of the Sheriff’s Office and the former sheriff as defendants.

The court concluded that this motion was functionally a request for reconsideration of

summary judgment for these defendants—a motion Tatum had made twice before.

Because Tatum had not identified any manifest error of law or fact in the decisions, the

court denied the motion. See Burritt v. Ditlefsen, 807 F.3d 239, 252–53 (7th Cir. 2015).

Tatum does not attempt to untangle what place these defendants have in his claims and

does not engage with the court’s reasoning—in the underlying decision or the denials of

reconsideration—so his argument is waived. See Klein, 884 F.3d at 757.

5.

Tatum also argues that Judge Adelman should have recused himself because of

“a deep-seated favoritism or antagonism that would make fair judgment impossible.”

Liteky v. United States, 510 U.S. 540, 555 (1994). Tatum acknowledges that adverse

rulings alone almost never constitute a valid basis for recusal, but his examples are just

No. 22-1069 Page 10

that—plus his belief that the judge treated him “rudely.” Like adverse rulings,

“expressions of impatience, dissatisfaction, annoyance, and even anger” do not

establish bias. Id. at 555–56.

C.

Finally, Tatum contests several trial rulings, but he failed to order a trial

transcript, as required under Federal Rule of Appellate Procedure 10(b)(2). Tatum was

on notice that he had to order a transcript. We told him as much, see Dkt. 42, as did the

defendants in their brief. Because we cannot meaningfully review the merits of Tatum’s

trial-related arguments without the transcript, the arguments are waived. See Morisch v.

United States, 653 F.3d 522, 529 (7th Cir. 2011).

We have considered Tatum’s other arguments, and none has merit.

AFFIRMED