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Kafi v. Eckstein

United States District Court, E.D. Wisconsin

September 29, 2017




         Plaintiff, a Wisconsin state prisoner proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983 alleging that defendant, a state correctional official, retaliated against him for exercising his rights under the First Amendment. Defendant moves for summary judgment.

         I. BACKGROUND

         I present the following facts in the light most favorable to plaintiff, as the non-moving party. Plaintiff has been in custody at Redgranite Correctional Institution since September 2013, when he was transferred from Green Bay Correctional Institution. At all relevant times, defendant was deputy warden at Redgranite.

         In April 2013, while plaintiff was still in custody at Green Bay, a civilian advocate named Peg Swan wrote to him on behalf of her organization, Forum for Understanding Prisons (FFUP), and asked if he was interested in helping to bring a class action lawsuit against officials at Waupun Correctional Institution on behalf of inmates housed in segregation there. Plaintiff agreed to help.

         In May 2014, Swan told plaintiff that she had brought FFUP's concerns about the conditions in Waupun's segregation unit to the attention of an investigative journalist who had expressed interest in publishing a story on the issue. Plaintiff agreed to summarize accounts of inmates' treatment at Waupun that he had received.

         Between July 20, 2014, and July 22, 2014, the journalist, Bill Lueders, published a series of articles about allegations of physical and psychological abuse by correctional officers against inmates in Waupun's segregation unit dating back to 2011. Lueders disclosed sources for the allegations, including letters from inmates to Swan, and quoted her throughout his articles. As part of the series, he also profiled her and FFUP.

         On August 14, 2014, Swan received a letter from the Wisconsin Department of Corrections (DOC) suspending her visiting privileges pending an investigation into alleged violations of a DOC executive directive on the proper procedure for surveying inmates and a DOC rule prohibiting her from charging inmates for legal services or supplies. Around that time, defendant started investigating plaintiffs activities with FFUP and a group known as the “Legal Assistance Network, ” his relationship with Swan and other inmates associated with those organizations, and whether he or others were compensated for providing legal assistance to other inmates.

         On September 8, 2014, defendant ordered that plaintiffs personal belongings and documents be confiscated from his cell and searched and that he be placed in temporary lockup (or “TLU”)-”a temporary non-punitive segregated status, ” Wis. Admin. Code DOC § 303.20(22)[1]-pending an investigation into whether he had charged other inmates for legal assistance in violation of a DOC rule prohibiting “enterprises and fraud.” See Docket No. 26-1, at 1 (citing Wis. Admin. Code DOC § 303.32). Notice of the order states that plaintiff was placed in TLU because defendant thought he might “impede a pending investigation” or that allowing him to remain in general population might “be disruptive to the operation of the institution.” Docket No. 26-1, at 1; see also Wis. Admin. Code DOC § 303.11 (4)(a), (b)).

         On October 1, 2014, defendant issued a conduct report charging plaintiff with (1) ”group resistance and petitions, ” (2) ”unauthorized use of the mail, ” (3) ”unauthorized transfer of property, ” and (4) ”unauthorized forms of communication.” See Docket No. 26-2 (citing Wis. Admin. Code DOC §§ 303.20, .30, .40, .48). The report stated that plaintiff had “been identified in a leadership role within a non-sanctioned group of inmates and a civilian (Mrs. Peggy Swan) who refer to themselves as the ‘Legal Assistance Network, '”[2] described how Swan directed inmates seeking legal assistance to complete an application that appeared to be from FFUP and then sent completed applications to plaintiff for approval or denial, quoted correspondence suggesting that plaintiff had “a leadership and advisory role within the FFUP” and was “attempting to recruit other inmates, ” and claimed that plaintiff “intentionally utilized Mrs. Swan as a conduit to pass mail regarding the FFUP between inmates in the Wisconsin prison system. . . . with the intention of circumventing security staff from monitoring any and all co[r]respondence[] involving the FFUP.” Id.

         On October 23, 2014, plaintiff appeared at a major (“full due process”) disciplinary hearing. See Docket No. 26-3. He pleaded not guilty to each of the charges. The hearing officer found it more likely than not that plaintiff participated in FFUP's “organizational structure” without written permission from the warden, as required by DOC rules, and that he provided legal advice to other inmates by mail through Swan, in circumvention of DOC rules. See Id. The hearing officer found plaintiff guilty of “group resistance and petitions” and “unauthorized use of the mail” (he dismissed the other two charges as redundant) and sentenced him to 120 days in “disciplinary separation.”

         Plaintiff appealed, and on November 12, 2014, Redgranite's warden reversed the hearing officer's decision stating only that the evidence did not support the charges. Plaintiff was released from disciplinary separation, the conduct report was expunged from his record, and he received back pay for the more than two months he was unable to work in the prison laundry because he was in TLU and disciplinary separation.


         A party is entitled to summary judgment if it shows that there is no genuine dispute as to any material fact and it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). To survive a motion for summary judgment, a non-moving party must show that sufficient evidence exists to allow a jury to return a ...

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