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Williams v. Brown

United States District Court, W.D. Wisconsin

February 28, 2017



          BARBARA B. CRABB, District Judge

         Pro se plaintiff and prisoner Anthony Williams has filed a complaint under 42 U.S.C. § 1983 in which he challenges a conduct report that he received for “inciting a disturbance.” I understand plaintiff to be raising the following claims: (1) defendants Brown, Kartman, Hanfeld and Boughton disciplined him for failing to provide information regarding an assault by another prisoner, in violation of the First Amendment; (2) defendant Cichanowiz refused his request to review evidence before his disciplinary hearing, in violation of the due process clause; and (3) defendant Primmer found him guilty without sufficient evidence, in violation of the due process clause.

         Plaintiff has made an initial partial payment of the filing fee in accordance with 28 U.S.C. § 1915(b)(1), so his complaint is ready for screening under 28 U.S.C. §§ 1915(e)(2) and 1915A. The crux of plaintiff's claim is that he believes that defendants concluded incorrectly that he was involved in the assault of another prisoner. However, even if it is true that plaintiff simply was in the wrong place at the wrong time when the assault occurred, I cannot allow him to proceed because he points to no constitutional error that defendants made in reaching their conclusion. Accordingly, I conclude that plaintiff has failed to state a claim upon which relief may be granted.

         Plaintiff fairly alleges the following facts in his complaint. I note that plaintiff cites a number of exhibits in his complaint, but he did not file those with the court. This did not prejudice plaintiff because, even without exhibits, I am required to accept as true all the allegations in this complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).


         Plaintiff Anthony Williams is a prisoner at the Wisconsin Secure Program Facility, which is in Boscobel, Wisconsin. On May 18, 2016, plaintiff was getting his hair cut at the prison barber shop. While there, he saw another prisoner he knew named Wells. Plaintiff shook Wells's hand and asked him how he was doing. Immediately after walking away, Wells attacked a third prisoner named Johnson. Plaintiff had nothing to do with that attack and did not speak to Wells about it.

         Defendant Brown, a correctional officer, investigated the incident and spoke to plaintiff. When plaintiff did not provide any information, Brown stated, “Since you don't want to tell me, you'll pay.” Brown gave plaintiff a conduct report for “Inciting a Disturbance and Assault” in which Brown alleged that a video recording showed plaintiff and Wells speaking just before the assault. Brown wrote that plaintiff “must have given an order to Mr. Wells to attack Mr. Johnson.” Defendant Hanfeld reviewed the conduct report and concluded that plaintiff Wells received directions from plaintiff to attack Johnson. However, Hanfeld did not point to any evidence supporting that conclusion. Defendant M. Kartman, the security director, “signed off” on the conduct report.

         In preparation of his disciplinary hearing, plaintiff asked to review the video tape, but defendant Cichanowicz denied plaintiff's request. At the hearing, plaintiff relied on a statement from Wells, who denied that plaintiff had told him to attack Johnson. After the hearing, defendant Primmer found plaintiff guilty, writing that “the fact that inmate Wells assaults another inmate as soon as inmate Williams steps away after saying something to him makes it more likely than not that inmate Williams directed inmate Wells to assault inmate Johnson.” Plaintiff received a sentence of 180 days in segregation. Defendant Gary Boughton, the warden, affirmed the decision.


         A. Retaliation

         I understand plaintiff's primary claim to be that defendant Brown “retaliated” against him because Brown “wanted answers” when Brown interviewed him about the prisoner assault, but he “didn't know anything.” Cpt. ¶ 18, dkt. #1. To prevail on a retaliation claim, a plaintiff must prove three things: (1) he was engaging in activity protected by the Constitution; (2) the defendant's conduct was sufficiently adverse to deter a person of "ordinary firmness" from engaging in the protected activity in the future; and (3) the defendant subjected the plaintiff to adverse treatment because of the plaintiff's constitutionally protected activity. Gomez v. Randle, 680 F.3d 859, 866-67 (7th Cir. 2012); Bridges v. Gilbert, 557 F.3d 541, 555-56 (7th Cir. 2009).

         It is not clear what plaintiff believes his protected activity was, but the only plausible theory is that he believes he had a First Amendment right not to speak when defendant Brown asked him questions about the assault on inmate Johnson. There is authority for that view outside the prison context, e.g., Wooley v. Maynard, 430 U.S. 705 (1977); West Virginia State Bd of Education v. Barnette, 319 U.S. 624 (1943), but courts have expressed skepticism that prisoners have a right against compelled speech, particularly in the context of a legitimate investigation. E.g., Clark v. Gipson, No. 13-CV-3012, 2015 WL 328966, at *6 (C.D. Ill. Jan. 26, 2015); Wilcher v. Raemisch, No. 12-CV-803-JDP, 2014 WL 3509395, at *5 (W.D. Wis. July 15, 2014).

         Even if I assume that prisoners might have a right under the First Amendment to remain silent in some circumstances, this is not one of them. Although plaintiff does not provide much factual context in his complaint, he seems to be alleging that defendant Brown gave him a conduct report for one of two reasons: (1) Brown believed that plaintiff was involved in the assault but was refusing to admit it; or (2) Brown believed that plaintiff had some other information about the assault but was refusing to share it. Under either of these scenarios, plaintiff's allegations do not state a claim upon which relief may be granted under the First Amendment.

         If defendant Brown gave plaintiff a conduct report out of a belief that plaintiff was involved in the assault, that is not a violation of plaintiff's right to free speech, even if Brown's belief was mistaken. Heffernan v. City of Paterson, New Jersey, 136 S.Ct. 1412, 1418 (2016) (adverse act because of “mistaken belief” does not violate First Amendment). The fact that Brown gave plaintiff a conduct report despite the lack of a confession simply ...

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