United States District Court, E.D. Wisconsin
EARNEST D. BEAMON, Jr ., Plaintiff,
WILLIAM POLLARD, et al., Defendants.
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
Beamon, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. § 1983
alleging that the defendants violated his civil rights at the
Waupun Correctional Institution (“Waupun”). Judge
Rudolph Randa, who was assigned to the case at the time,
screened Beamon's complaint and allowed him to proceed
with First and Fourteenth Amendment claims against William
Pollard, Tony Meli, John O'Donovan, and Jason Rosenthal.
(ECF No. 12.) The case was subsequently reassigned to this
court upon the consent of the parties.
parties have filed cross-motions for summary judgment. (ECF
Nos. 35, 45.) Beamon also filed a motion to appoint counsel.
(ECF No. 53.) And the defendants also filed a motion for
leave to file additional supplemental proposed findings of
fact. (ECF No. 62.) The motions have been fully briefed and
are ready for resolution.
DEFENDANTS' MOTION FOR LEAVE TO FILE SUPPLEMENTAL
PROPOSED FINDINGS OF FACTS
September 30, 2016, the defendants filed a motion for leave
to file supplemental proposed findings of fact. (ECF No. 62.)
They explain that Beamon filed a brief in
“response” (ECF No. 58) to their reply brief in
support of their motion for summary judgment. (ECF No. 62 at
1.) Beamon's “response” discusses
correspondence between him and Kelli R. Willard West, the
religious practices coordinator for the Department of
Corrections. (Id.) The defendants ask to supplement
their proposed findings of fact with information from West.
(Id. at 2.) Beamon opposes the motion, stating that
there is nothing new about his correspondence with West. (ECF
local rules of this district provide that briefing on summary
judgment motions consists of one brief in support of the
motion, one brief in response, and one brief in reply.
See Civ. L. R. 56 (E.D. Wis.). A party that seeks to
file a “response” to a reply brief,
i.e., a sur-reply, must request permission from the
court. See id. Beamon did not request permission to
file his sur-reply. Nevertheless, the court will consider the
sur-reply. As a result, it will also consider the
defendants' supplemental proposed findings of fact.
Accordingly, the court will grant the defendants' motion
for leave to file supplemental proposed findings of fact.
court primarily takes the facts from the defendants'
reply to the plaintiff's response to the defendants'
proposed findings of fact (ECF No. 55) and from Beamon's
sworn complaint (ECF No. 1), which the court construes as an
affidavit at the summary judgment stage. Ford v.
Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996). Where in
disputing the defendants' proposed findings of fact
Beamon fails to cite evidentiary material, the fact is deemed
admitted for purposes of summary judgment. See Civ.
L. R. 56(b)(2)(B) and (b)(4) (E.D. Wis.).
“proposed findings of fact” (ECF No. 47) does not
actually state, or propose, any facts. Instead, it is a list
of the evidence he contends supports his motion for sum m ary
judgm ent, in c lu d in g B e am o n ' s “statem en
t” (E C F No . 4 7 -1 at 7 -10), three of his own
affidavits (id. at 12-13, 38-49, 61-64), the
affidavit of Sherry Thompson (Beamon's sister)
(id. at 14-15), and the affidavit of Ager Nell
Beamon (Beamon's mother) (id. at 16-17). Beamon
also provides two more of his own affidavits (ECF Nos. 57,
67), three of his own sworn declarations (ECF Nos. 50, 68,
72), the sworn declaration of fellow inmate Kajuan Barksdale
(ECF No. 51), and the affidavit of fellow inmate Elbert
Compton (ECF No. 52). The court cites directly to these
documents where used.
Correctional Institution is a maximum-security institution
located in Waupun, Wisconsin. (ECF No. 55, ¶ 2.) The
defendants were staff members at Waupun at all times
relevant. (Id., ¶¶ 3-10.) William Pollard
was the Warden (id., ¶ 4), Anthony Meli was the
Security Director (id. ¶ 6), Jason Rosenthal
was a Correctional Officer (id., ¶ 9), and John
O'Donovan was a Captain (id., ¶ 3).
Radtke (not a defendant) is employed at Waupun as a
Supervising Officer 2 (Captain). (Id., ¶ 11.)
Radtke also served as the Security Threat Groups Coordinator
at Waupun. (Id., ¶ 12.) A security threat group
is a group of individuals which threatens, intimidates,
coerces or harasses others, or engages in activities which
violate or encourage the violation of statutes,
administrative rules, departmental policies or institution
procedures. (Id., ¶ 16.) As the Security Threat
Groups Coordinator, Radtke is responsible for tracking
disruptive groups and their members in the institution and
documenting their activities, reviewing incoming and outgoing
mail and property for gang-related content, instructing
Waupun staff regarding gang identification and gang
management strategies, and assessing ongoing gang activity
within the institution. (Id., ¶ 13.)
at Waupun are prohibited from engaging in any activity or
behavior associated with a security threat group.
(Id., ¶ 19.) Security threat groups are
prohibited within correctional institutions because they
threaten the safety of staff and other inmates in ways which
include assaults, riots, battery and intimidation, and
introduction of contraband into the institution.
(Id., ¶ 20.) Security threat groups also
undermine prison authority by providing a support system for
those taking an oppositional stance to the prison
administration. (Id., ¶ 21.)
Radtke's experience most security threat groups use
religion to hide their activity from security detection.
(Id.) Inmates know that religious rights are
protected, so religion is widely used to hide security threat
group activity and to express affiliation. (Id.,
Nation of Gods and Earths (NGE), or the Five Percent Nation,
broke away from the Nation of Islam in the 1960s.
(Id., ¶ 25.) 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. (Id., ¶ 26.) The Ten Percent
are those who have subjugated most of the world.
(Id.) They include Caucasian people and others who
create and spread the myth of a nonexistent mystery God.
(Id.) They are described as rich, blood suckers, and
slave makers of the poor. (Id.) The Eighty Five
Percent are those who are subjugated and deceived.
(Id.) They are easily led in the wrong direction and
are hard to lead in the right direction. (Id.)
Finally, the Five Percent are African Americans who have
achieved self-knowledge. (Id.) They know the African
American man's true nature and that God is within the
black man himself. (Id.) Followers believe that the
black man is a living, breathing God. (Id.) Male
members of the group are referred to as “Gods”
and female members are referred to as “Earths.”
(Id.) As a result, the group often refers to itself
as “The Nation of Gods and Earths.”
(Id.) Members communicate through the “Supreme
Alphabet, ” a system in which numbers correlate to
certain letters. (Id., ¶ 35.)
preaches that Caucasians were created using genetics of the
devil, therefore all white people are inherently evil.
(Id., ¶ 28.) The Department of Corrections has
identified NGE as a security threat group. (Id.,
¶ 30) As a result, inmates are prohibited from
possessing NGE literature and symbolism, showing affiliation
or allegiance to NGE, or engaging in activities related to
NGE. (Id.) Inmates who violate this prohibition are
subject to discipline. (Id.)
is an African American inmate who says he follows the
teachings of the Nation of Islam and the Moorish Science
Temple of America. (ECF No. 1, ¶ 11.) Beamon's
“Religious Preference Form” identifies
“Islam” as the faith he prefers. (ECF No. 39-6.)
The Department of Corrections does not consider Islam, the
Nation of Islam, or the Moorish Science Temple of America a
security threat group. (See ECF No. 55, ¶ 34.)
October 2, 2013, the Department of Corrections transferred
Beamon from Redgranite Correctional Institution
(“Redgranite”) to Waupun. (ECF No. 1, ¶ 11.)
Upon arriving at Waupun prison staff took Beamon's
personal belongings and screened them for contraband, as is
standard practice during inmate transfers. (Id.)
According to Beamon, he arrived straight from the segregation
unit at Redgranite, where staff had already been reviewing
his belongings for months. (Id., ¶ 12; see
a l so ECF No. 68, ¶ 3.) Waupun staff completed
their review of Beamon's belongings in about two days and
returned the items to him on October 4, 2013. (ECF No. 1,
November 12, 2013, Waupun Correctional Officer Beasley (not a
defendant) again took Beamon's “property.”
(Id.) Beamon does not explicitly describe what items
comprised his “property” but his other filings
make reference to books and different types of written
materials, including poems, letters, notepads, and
“sovereign citizenship papers.” (Beam on
“statement, ” EC F No. 4 7 -1 at 7; Beamon Dec.,
ECF No. 68, ¶¶ 4-5.) Beamon asked Beasley why she
was taking his property. (ECF No. 1, ¶ 11.) According to
Beamon, Beasley responded that someone from Redgranite had
called to inform Security Director Meli that they had
intercepted a letter from Beamon to a Redgranite inmate using
words such as “God” and “peace, ”
both of which are associated with NGE. (Id.; ECF No.
68, ¶ 3.)
next day, November 13, 2013, Beasley returned some of
Beamon's “property.” (ECF No. 1, ¶ 11.)
Although the record is not clear what items Beasley returned,
the defendants state that Beasley returned all materials
“that were not related to NGE.” (ECF No. 55,
¶ 37.) Beamon appears to dispute this fact, claiming
that Beasley gave him all of his property back, not
withholding any. (See id.) However, he also states
that Beasley told him that she was still reviewing the rest
of his “property.” (ECF No. 1, ¶ 11.)
time later Beamon filled out an interview request slip asking
Meli about the rest of his “property.” (ECF No.
47-1 at 7.) Radtke, as the Security Threat Groups
Coordinator, went to speak with Beamon. (ECF No. 1, ¶
12.) Beamon told Radtke that he was trying to better himself
through reading and writing from the Nation of Islam and that
the items he possessed were not NGE-related material.
(Id.) Radtke responded to Beamon's interview
request by stating that “he had been returned all of
the property permitted by Officer Beasley.” (ECF No.
55, ¶ 37.)
contends that sometime in January 2014 Beasley returned more
of the “property” that she had taken in November
2013. (ECF No. 1, ¶ 12.) Again it is unclear what
Beasley returned. In some statements Beamon states that
Beasley returned “all” of his property. (ECF No.
67, ¶ 2; ECF No. 50, ¶ 2.) In another he states
that Beasley returned all of his books but that she threw
away the “sovereign citizenship papers.” (ECF No.
68, ¶¶ 4-5.) In yet another statement Beamon states
that Beasley returned everything that she had taken in
November 2013 except “78 pieces of paper, 3 books, one
legal note pad, and one big green pad, ” which were
never returned. (ECF No. 47-1 at 7.)
also states that Beasley came to North Cell Hall at that time
and “told me what I could have and what I couldn't
and I destroyed it right their [sic] torn in pieces and
thrown in the trash.” (ECF No. 47-1 at 7.) Beamon
further states that “CO Beasley told me that I
didn't have to do it then but as long as I got rid of it
[the unapproved material] and I stated that I just wanted to
get it out of the way and I don't have to worry about it
anymore.” (Id.) Radtke similarly recalls that
Beasley gave Beamon a “warning” on NGE material
but did not issue a conduct report at that time. (ECF No. 55,
months later, on July 25, 2014, Waupun staff again searched
Beamon's cell and, according to Beamon, took the
“same papers” that Beasley had returned in
November 2013 and January 2014. (ECF No. 47-1 at 7.) Waupun
staff sent the documents to the Waupun Gang Task Force for
review. (ECF No. 55, ¶44.) Correctional Officer Jason
Rosenthal, a member of the Gang Task Force, reviewed the
materials. (Id., ¶ 45.) He found eight letters,
one of which was drafted by an inmate at Waupun thanking
Beamon for dropping “science” on him.
(Id., ¶ 46.) Dropping science is a term used to
describe and reference NGE beliefs. (Id.) Rosenthal
found several pages which used the words “god, ”
“earth, ” “Crackers, ” the
”Devil, ” “S upreme Mathematics, ”
and “Albinos.” (Id., ¶¶ 45,
47, 49, 51-52.) Some of these documents expressed the view
that white people, i.e., “Crackers, ”
the “Devil, ” and “Albinos, ” are
oppressing black people. (Id., ¶ 47, 49-50,
also found a lined legal pad with writing by Beamon in which
he expressed a manifesto on his views of white people
oppressing black people. (ECF No. 55, ¶ 47.) The writing
also referenced NGE. (Id.) It also referred to
“Crackers, ” a term used to refer to Caucasians
and meant as a disrespectful and derogatory term.
also reviewed several pages that included a poem in which
Beamon espoused that the white man is the devil and makes an
argument that white people are the reason that black people
are incarcerated or dead due to violence. (Id.,
¶ 50.) In another poem Beamon stated that when he has a
male child he will indoctrinate him to be a member of the
NGE. (Id.) Additional papers included definitions