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Beamon v. Pollard

United States District Court, E.D. Wisconsin

January 30, 2017

EARNEST D. BEAMON, Jr ., Plaintiff,
v.
WILLIAM POLLARD, et al., Defendants.

          ORDER

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         Earnest 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.

         The 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.

         THE DEFENDANTS' MOTION FOR LEAVE TO FILE SUPPLEMENTAL PROPOSED FINDINGS OF FACTS

         On 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 No. 70.)

         The 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.

         RELEVANT FACTS

         The 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.).

         Beamon's “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.

         Waupun 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).

         Cynthia 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.)

         Inmates 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.)

         In 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., ¶ 24.)

         The 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.)

         NGE 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.)

         Beamon 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.)

         On 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, ¶ 11.)

         On 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.)

         The 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.)

         A short 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.)

         Beamon 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.)

         Beamon 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, ¶ 38.)

         Several 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, 52.)

         Rosenthal 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. (Id.)

         Rosenthal 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 for ...


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