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Beamon v. Dittman

United States District Court, E.D. Wisconsin

September 14, 2016

EARNEST D. BEAMON, JR., Plaintiff,


          J.P. Stadtmueller U.S. District Judge

         In this action, filed under 42 U.S.C. § 1983, Plaintiff Earnest D. Beamon (“Beamon”), a state prisoner, claims the defendants violated his First and Fourteenth Amendment rights. On August 2, 2016, this case was reassigned to this branch of the Court due to the unavailability of Judge Rudolph T. Randa. (See Docket #72). Judge Randa previously denied Beamon's motion for summary judgment. (See Docket #35, #60).

         Presently before the Court is the defendants' October 26, 2015 motion for summary judgment (Docket #44) and Beamon's April 4, 2016 motion for reconsideration (Docket #69). These matters are fully briefed (Docket #45, #58, #63, #69, #70), and ready for disposition. For the reasons detailed herein, the Court will grant the defendants' motion for summary judgment, deny Beamon's motion for reconsideration, and this action will be dismissed in its entirety.


         In short, Beamon alleges that the defendants burdened his religious practices in violation of the Free Exercise Clause and retaliated against him because of his Muslim faith. Beamon further alleges that he did not receive due process in his disciplinary hearings for conduct violations. Although the parties dispute several of the specific facts, the Court finds that none are material to preclude summary judgment. When disputed, the Court views all facts in the light most favorable to Beamon as the non-moving party.

         1.1 The Parties

         Beamon is currently housed at Waupun Correctional Institution. At all times material to this action, he was housed at Redgranite Correctional Institution (“RGCI”). (DPFF ¶ 1).[2]

         Defendant Michael Dittmann (“Dittmann”) is currently employed by the Wisconsin Department of Corrections (“DOC”) as the Warden of Columbia Correctional Institution (“CCI”). Dittmann has been the warden at CCI since March 22, 2014. Prior to that, Dittmann was the warden at RGCI. (DPFF ¶ 2). Defendant Scott Eckstein (“Eckstein”) is currently employed by the DOC as the Deputy Warden of the RGCI. (DPFF ¶ 3). Defendant Corey Heft (“Heft”) is employed by the DOC as a Correctional Officer at the RGCI. (DPFF ¶ 4).Defendant Michael Reigh (“Reigh”)[3] was previously employed by the DOC as a Supervising Officer 2 (Captain) at RGCI. (DPFF ¶ 5). Defendant Michelle Smith (Smith) is employed by the DOC as an Institution Complaint Examiner (“ICE”) at the RGCI. (DPFF ¶ 6). Defendant Andrew Wesner (“Wesner”) is currently employed by the DOC as a Supervising Officer 2 (Captain) at RGCI. Wesner was previously employed by the DOC as a Supervising Officer 1 (Lieutenant) at the RGCI. (DPFF ¶ 7). Defendant Edwin Tetzlaff (Tetzlaff) is employed by the DOC as a Supervising Officer 2 (Captain) at RGCI. (DPFF ¶ 8).

         Defendant Jason Wilke (“Wilke”) is employed by the DOC as a Supervising Officer 2 (Captain) at RGCI. Wilke is also a Certified Security Threat Group (“STG”) Coordinator for the State of Wisconsin. (DPFF ¶ 9). Wilke has been the STG Coordinator at RGCI since April 18, 2012. Wilke's responsibilities as the STG Coordinator include: tracking Security Threat Groups and their members in the institution and documenting their activities, reviewing incoming and outgoing mail and property for STG-related content, preparing reports regarding Security Threat Groups for security staff and STG Coordinators at other DOC institutions, instructing RGCI staff regarding gang identification and gang management strategies, meeting on a regular basis to exchange information with the RGCI STG intelligence unit and STG Coordinators from other DOC institutions, and assessing ongoing STG activity with the institution and documenting their activities, reviewing incoming and outgoing mail and property for STG-related content, preparing reports regarding Security Threat Groups for security staff and STG Coordinators at other DOC institutions, instructing RGCI staff regarding gang identification and gang management strategies, meeting on a regular basis to exchange information with the RGCI STG intelligence unit and STG Coordinators from other DOC institutions, and assessing ongoing STG activity with the institution. (DPFF ¶ 10).

         1.2 Religious Policies at RGCI

         The religious practices afforded to inmates in DOC custody are set forth in the policies and procedures developed by the DOC Division of Adult Institutions (“DAI”). “Religious Beliefs and Practices, ” effective April 30, 2015, was implemented to ensure that incarcerated offenders have uniform opportunities to pursue lawful religious practices of the religion of their choice. (DPFF ¶ 12). DAI policies administer religious programming through the Umbrella Religion Group (“URG”) structure, identifying eight categories to accommodate religious groups with similar beliefs and practices. The eight identified URGs include: Catholic, Eastern Religions, Humanist/Atheist/Agnostic, Islam, Judaism, Native American/American Indian, Pagan, and Protestant/Other Christian. DAI policies do not cite specific denominations or sub-groups, as it would be impossible to maintain an all-inclusive list within the ever-changing American society and religious views. DAI does not expect that every inmate identifying with a URG will hold identical beliefs and practices. (DPFF ¶ 13).

         Inmates have a right to declare any religious preference while incarcerated in a DAI facility. They do so via intake interview or by filing a DOC-1090, “Religious Preference” form. They are encouraged to identify a URG, “Other” or “No Preference” which will most closely match their beliefs and practices. URG designation dictates which services or studies they may attend and which religious property and diets they may be eligible to receive. Inmates may engage in individual practice or study in their cell related to any faith, regardless of URG designation. They may also change their religious preference designation every six months, if desired. (DPFF ¶ 14). Inmates may generally exercise their religious beliefs and practices in any of the following ways: (1) congregate URG services and study groups; (2) request for religious diet accommodation; (3) individual study; (4) personal meditation, prayer, and/or other spiritual practices; (5) utilization of religious books and/or property; (6) observance of religious holidays in a URG service, study, or congregate meal; (7) individual religious observances/rituals in their living quarters; (8) correspondence with fellow believers; (9) pastoral visits; and (10) requesting to abstain from work or program on religious days of observance. (DPFF ¶ 16).

         Individual inmates may submit a DOC-2075, “Request for New Religious Practice” form, when seeking a new religious accommodation, such as an activity or practice that is not already offered at the institution, a religious property item that is not included on the DAI Religious Property Chart, or a dietary accommodation not offered under DAI Policy #309.61.03. (DPFF ¶ 17).

         During the relevant time period, Beamon identified his religious preference as the Islamic URG. (DPFF ¶ 15).[4] Pursuant to DAI Policy #301.61.02, dated February 22, 2015, and the Religious Property Chart dated July 21, 2015, male DOC inmates who designated a religion that fell under the Islam umbrella group could possess the following religious property for their personal use, consistent with the restrictions set forth in DAI #309.61.02: (1) One Specified Emblem; (2) A religious calendar; (3) Religious Books and Publications; (4) Religious Art; (5) Kufi-Cap (black only); (6) Miswak (Toothstick); (7) Oil for Religious Purposes; (8) Prayer Beads (Thikr Beads); (9) Prayer Robe, Thawb, Kurda, or Jalabiya; (10) Prayer Rug; and (11) Turban or Kufiyya (white only). Religious publications and books are not restricted to an inmate's identified religious preference. (DPFF ¶ 19).

         1.3 Security Threat Groups

         The DOC identifies an STG as a group of individuals which threatens, intimidates, coerces or harasses others, or engages in activities which violates or encourages the violation of statutes, administrative rules, departmental policies or institution procedures. Examples of STGs include street gangs and hate groups. (DPFF ¶ 22). STGs are prohibited within the DOC because they threaten the safety of staff and other inmates which would include but not be limited to: assaults, riots, battery and intimidation, as well as introduction of contraband into the institution. (DPFF ¶ 24). STGs also undermine prison authority by providing a support system for those taking an oppositional stance to the prison administration. (DPFF ¶ 25).

         Suppressing STGs activity in DOC institutions is imperative to maintaining a safe and secure environment for staff, inmates, and visitors. (DPFF ¶ 27). DOC suppresses STG activity by educating staff, interviewing STG members, searching inmates' property and living areas for contraband, monitoring telephone conversations and monitoring incoming and outgoing mail for STG related materials. (DPFF ¶ 28). STG information is shared within and between institutions, centers, DCC and law enforcement agencies. Networking and cooperation within the DOC and information sharing with outside law enforcement, and the Departments of Corrections in other jurisdictions, are essential elements for effective management of an STG. (DPFF ¶ 29).

         Most, if not all, Supremacist STGs utilize religion in some form or fashion to hide their activity from security detection and further their agendas. Religion is a very powerful control measure and is easily used to manipulate and control subservient members along with circumventing security measures. Inmates know religious rights are protected. So religion is widely used to hide STG activity and express affiliation. Most STGs will follow religions that are loosely based historically on what is believed to be racial alliances such as White Supremacist STGs using Paganism, Asatru or Odinism. The Latin Kings are a well-known nationwide STG and are well-documented as practicing the Native American faith while incarcerated. Some may follow the religious doctrine, but many use the religious services as a means to hold gang meetings and pass contraband. STGs that are predominantly African American are well-known to follow the Islamic faith. (DPFF ¶ 30).

         1.4 Nations of Gods and Earths and Security Threat Designation

         The Nation of Gods and Earths (“NGE”), is a designated STG in the Wisconsin DOC. (DPFF ¶ 37). NGE, or the Five Percent Nation (“Five Percenters”), originated in New York City in the 1960s after its leader, Clarence Smith (also known as Clarence 13X and Father Allah), broke away from the Nation of Islam (“NOI”). (DPFF ¶ 31). The name Five Percent Nation stems from the group's belief in “Supreme Mathematics, ” which breaks down the population of the world into three groups: the Ten Percent, the Eighty Five Percent, and the Five Percent. The Ten Percent are those who have subjugated most of the world. They include Caucasian people and others who create and spread the myth of a nonexistent mystery God. They are described as rich, blood suckers, and slave makers of the poor. The Eighty Five Percent are those who are subjugated and deceived. They are easily led in the wrong direction, and are hard to lead in the right direction. Finally, the Five Percent are African Americans who have achieved self-knowledge. They kno w the African American man's true nature and that God is within the Black Man himself. NGE followers believe that the Black Man is a living, breathing God. Male members of the group are referred to as “Gods, ” female members are referred to as “Earths.” As a result, the group often also refers to itself as “The Nation of Gods and Earths.” (DPFF ¶ 32).

         The teachings of NGE are located in part in the “120 Lessons.” The 120 lessons are a revised version of the Supreme Wisdom Lessons of the Nation of Islam, originally written by Wallace Fard Muhammad and Elijah Muhammad, and a large portion of the ideology between NGE and NOI is similar. (DPFF ¶ 33). The NGE ideology states that the “White Man” was created by an evil scientist named “Yucab, ” 6, 000 years ago using a process called “Grafting.” The NGE preaches that Caucasians were created using genetics of the Devil, therefore all White People are inherently evil. The NGE teach and believe that the “White Man” is the “Devil” and is not to be trusted. (DPFF ¶ 34). NGE teaches as ideology that the Original Man is the Asiatic Black Man, who is “the maker the owner the cream of the Planet Earth. Father of civilization and God of the Universe.” The ideology teaches that the African American Males have the power to “Build and Destroy.” “Build is to add on or to elevate positivity. Destroy is to take away negativity.” It teaches to “build a righteous nation and destroy the devil's civilization.” The “Devil's Civilization” is the Caucasian civilization. (DPFF ¶ 35).

         NGE uses a specialized coded language known as the Supreme Mathematics and Supreme Alphabet. Supreme Mathematics is a system of understanding numerals as representations of concepts. For example: 1 is Knowledge, 2 is Wisdom, and 3 is Understanding. The Supreme Alphabet is a system of assigning meaning to letters in the alphabet. For example A stands for Allah, and the M stands for Master. Interpreting NGE's coded language can be quite difficult and requires expertise and time not usually possessed by most correctional staff. Most correctional staff are not trained in the specifics of all STGs. The literature used by the NGE can be easily overlooked by staff that do not specialize in STG activity or investigation. (DPFF ¶ 36).

         The most significant factor in the DOC's decision to designate NGE an STG was the multiple incidents of STG activity and violence caused by NGE members in prisons in other jurisdictions. (DPFF ¶ 38). The South Carolina Department of Corrections identified the NGE as an STG around 1996. In 1995, A group of NGE inmates attacked three correctional officers, beating the officers with their own batons and assaulting them with their own pepper spray. An incident report for the attack stated that the inmates acted as a group, they felt that they were acting in a manner acceptable to their religious beliefs, and that they spoke of more violence to come. Later that year, a group of NGE inmates were responsible for a prison riot in which several staff members were assaulted with baseball bats, stabbed, and had scalding water poured on them. Two females were held hostage in the cafeteria for almost twelve hours before finally giving up. The South Carolina Department of Corrections identified the NGE as a moving force to unite the street gangs together. See In re Long Term Administrative Segregation of Inmates, 174 F.3d 464, 466 (4th Cir. 1999). Several years ago, the South Carolina Department of Corrections worked an operation that apprehended twenty-two individuals attempting to introduce contraband into a facility. Eighteen of the twenty-two were former inmates and all were believed to be NGE. (DPFF ¶ 39).

         In 1998, New Jersey designated NGE as a prohibited STG. NGE groups became active in New Jersey prisons in the 1980s and at various points were the largest STG group in the New Jersey prison system. In 1993, 30 NGE inmates in New Jersey participated in a group demonstration in the gymnasium during recreation. A subsequent investigation revealed that the group was planning on assaulting prison staff and to take at least one officer hostage. In 1996, 50-60 inmates belonging to NGE and a rival gang conducted an unauthorized meeting during recreation. That same year, between 25 and 30 inmates were involved in a fight between NGE inmates and a rival gang. In 1997, an NGE inmate stabbed an officer with a homemade knife causing serious injuries. After the attack, four other NGE inmates barricaded themselves in the gymnasium, set fires, and damaged prison property. The state also experienced numerous instances of violent attacks by NGE inmates prior to labeling the group an STG. See Fraise v. Terhune, 283 F.3d 506, 512-13 (3rd Cir. 2002); (DPFF ¶ 40). Information provided to Wisconsin by other states indicates that NGE groups in prison in North Carolina, South Carolina, and Virginia have engaged in various activities that have created institutional disturbances including assaults, extortion, and drug trafficking.

         The Black Supremacist teachings and ideology of the NGE did contribute in part to the DOC's decision to identify the group as an STG. Materials and speech which promote racial hatred and supremacy, including purported religious materials, are prohibited due to the risk they create of violence and disruption in prison. The inmates in Wisconsin prisons are racially diverse. Allowing inmates to openly align themselves with racial supremacist groups would dramatically increase the chances of conflict and violence between inmates of different races. (DPFF ¶ 42). Additionally, NGE's message that Caucasian people are devils who attempt to subjugate African Americans makes it more likely that NGE members would commit acts of violence towards staff or work to undermine their authority. (DPFF ¶ 42).

         In order to maintain security and discipline within the institution, it is necessary for prison staff to maintain authority and control over the inmate population. The majority of staff at RGCI are Caucasian. NGE inmates are likely to believe and advocate that the authority held by Caucasian staff members over them is illegitimate as part of the “The Devil's” subjugation of African Americans. Allowing inmates to spread this racist and inflammatory message would increase the chance of disruption in the institution and acts of violence against staff and or other inmates. (DPFF ¶ 43).

         NGE's use of code language, in the form of the Supreme Mathematics and the Supreme Alphabet, also contributed to the DOC's decision to identify the group as an STG. Many inmates have used Supreme Mathematics and Supreme Alphabet to create complicated coded messages that are hard for trained staff to decipher. Inmates' use of codes, symbols or language that cannot be interpreted by security staff is a security risk because secret means of communication amongst inmates allows inmates to organize and plan conspiracies, assaults, and escapes. Conspiracies amongst inmates can include groups of inmates who collectively decide to conduct disruptive activities, such as a group refusal to work, conspiracies to assault staff or other inmates, and conspiracies to conduct fraudulent activities. (DPFF ¶ 45).

         The DOC has designated a number of purported religious groups as STGs in part due to their racial supremacist teachings. For example, the DOC has designated World of Church of the Creator (Creativity Movement) and Wootinism as STGs in part because of their white supremacy ideology. The DOC has designated Black Hebrew Israelites and Milanics as STGs in part because of their black supremacy ideology. Currently, the DOC does not consider Nation of Islam (“NOI”) an STG, but does carefully review all NOI material for prohibited racial supremacy and anti-Semitic content. NOI publications are closely monitored for either racial supremacy literature or calls to violence by this group or groups that are very similar in nature and ideology. Although many NOI publications are allowed, many are prohibited within the DOC. The DOC has designated Fruits of Islam, an NOI militant branch, as an STG due to its military style structure. (DPFF ¶ 44).

         Numerous other state correctional agencies consider NGE an STG, and as a result prohibit NGE activity in prison. As of 2010, Minnesota, South Carolina, North Carolina, Georgia, Florida, Kentucky, Tennessee, New Hampshire, Virginia, and New Jersey listed NGE as an STG. To the best of Wilke's knowledge these state correctional agencies still classify the NGE as an STG. (DPFF ¶ 46).

         Because NGE is a designated STG, inmates within the DOC are prohibited from possessing NGE literature and symbolism, showing affiliation or allegiance to NGE, or engaging in NGE related activities. Inmates who violate this prohibition are subject to discipline under Wis. Admin. Code § DOC 303.20.1. (DPFF ¶ 47).[5] Specifically, inmates are not allowed to possess documents related to the 120 Lessons, Supreme Mathematics, or the Supreme Alphabet, as these teachings and ideology promote racial supremacy. They also are not allowed to posses NOI's Supreme Wisdom Lessons. (DPFF ¶ 47).

         NGE has been a prohibited STG during the entire time Wilke has worked for the DOC. Wilke played no role in the decision to designate NGE as an STG. The STG Coordinator at Dodge Correctional Institution is responsible for determining whether a group constitutes an STG. As the STG Coordinator at RGCI, it is Wilke's duty to enforce the DOC's ban on all STG activity, including activity related to NGE. (DPFF ¶ 48).

         1.5 RGCI Mail Policies

         With the exception of legal and other specified mail, staff inspect all incoming and outgoing mail by opening and visually inspecting it. Incoming mail is read if there is a justifiable belief that contents constitute a risk to the safety and security of the facility, specific individuals or the general public, or when there is reason to believe that the inmate or the sender is involved in criminal activity. Mail may be randomly read in addition to being inspected. Incoming packages are opened, inspected, and processed. Mail may not be delivered if it violates DOC regulations. (DPFF ¶ 49). If approved by the Security Director, inmates may be placed on a mail monitoring status. Under this status, all of the inmate's incoming and outgoing mail will be closely read by a designated security supervisor instead of regular mail room staff. (DPFF ¶ 51).

         The same prohibitions that apply to inmate mail also apply to publications. Additionally, inmates may not receive publications that: (1) teach or advocate violence or hatred and present a danger to institutional security and order; or (2) teach and advocate behavior that violates the law of the state or the United States or the rules of the department. (DPFF ¶ 52). The DOC cannot prohibit a publication solely because of its appeal to a particular ethnic, racial, or religious audience, or because of the political beliefs expressed therein. The fine line between these two rules can be very challenging for mail room and security staff to implement when reviewing publications. As a general rule, publications are prohibited if they contain calls for violence, uprising against authority, or express hatred towards, or inferiority of, other racial, ethnic, or religious groups. (DPFF ¶ 53). The DAI Security Chief reviews all publications that are denied for prohibited content, and makes the final call on whether the denial was correct. If a publication received at an institution is deemed to have prohibited content, or is questionable for prohibited content, it is forwarded to the DAI Security Chief for a final determination of whether it is allowed. If the Security Chief deems that the publication is prohibited, it is added to a list of denied publications maintained by the DOC. (DPFF ¶ 55).

         1.6 Beamon's Conduct Report #2329927

         About two months prior to June 16, 2013, correctional staff found information regarding Supreme Mathematics in Beamon's cell during a search. Wilke had a meeting with Beamon and educated him that NGE is considered an STG by the DOC and that he is not allowed to possess NGE material, show NGE affiliation, or engage in any NGE activities. Wilke did not issue him a conduct report for possessing contraband STG materials because it was the first time he was found with NGE material, it was a small amount, and his ...

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