United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE.
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.
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.
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.
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.
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.
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
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)-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)).
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, '” 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.”
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
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.
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