United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN, DISTRICT JUDGE
Garner brings this action under 42 U.S.C. § 1983 against
four correctional officers at the Wisconsin Secure Program
Facility (“WSPF”), a maximum-security Wisconsin
prison. He claims that the defendants punished him for
engaging in activity protected by the Free Speech Clause of
the First Amendment. Before me now are the parties'
cross-motions for summary judgment.
has been an inmate at WSPF since September 2013. The events
giving rise to his claims arise out of prison
administrators' investigation into a matter relating to a
different inmate, Dion Matthews,  who is believed to be a
high-ranking member of the Gangster Disciples prison gang.
WSPF currently houses about 95 members of this gang. The
members have a history of coercion, intimidation, threats,
and starting disturbances within the prison. Def. Prop.
Finding of Fact (“PFOF”) ¶ 18. According to
prison administrators, the gang poses a high risk to the
safety of the institution, staff, and other inmates.
November 30, 2015, the warden of WSPF, Gary Boughton,
received a letter from Matthews about various conditions
within the institution. Matthews told Boughton that he
believed the conditions at WSPF were worse than at other
maximum-security institutions. He complained about thin
mattresses, the lack of higher educational opportunities, and
the conduct of staff members. He proposed forming a committee
of prisoners who would meet with WSPF staff on a regular
basis to share the inmates' concerns.
December 9, 2015, Boughton wrote a letter to Matthews.
Boughton expressed his belief that living conditions at WSPF
were similar to living conditions at other institutions. He
then tried to respond to Matthews's specific complaints,
but he did not agree to take any specific action to address
December 22, 2015, Captain Lebbeus Brown, who is the
“security threat groups coordinator” at WSPF,
observed an inmate named Zachary Hayes talking with other
inmates, including Matthews and Garner, near their cells.
Hayes, like Matthews, is believed to be a high-ranking member
of the Gangster Disciples, and he was not permitted to be in
the area where Brown observed him. Around the same time,
prison staff members observed Matthews talking to other
inmates in an area that was off-limits for him. Because Hayes
and Matthews were observed in unauthorized areas, they were
placed in “temporary lockup” until an
investigation could be completed.
a pat-down search of Hayes, prison staff members found gang
literature in his shoe. This discovery prompted Brown to
search the cells of other inmates, including Matthews. During
the search of Matthews's cell, Brown found an envelope
that suggested to him that Matthews was communicating with
members of the Gangster Disciples at other prisons. Brown
also found two letters written in Matthews's handwriting.
The first was the letter that Matthews had sent to Warden
Boughton at the end of November. The second was a letter
dated September 27, 2015, and it made reference to a
“proposal . . . being brought forth by the prisoners of
WSPF.” Def. PFOF ¶ 37.
finding the letters, Brown began to suspect that Matthews was
circulating a group petition among the inmates at WSPF. If
so, Matthews would have violated a regulation promulgated by
the Wisconsin Department of Corrections prohibiting inmates
from participating in certain forms of “group
resistance and petitions.” See Wis. Admin.
Code § DOC 303.24. Among other things, the regulation
makes it a disciplinary infraction to join in, or solicit
another to join in, any group petition or statement.
Id. § DOC 303.24(2). Captain Brown explains the
rationale for this rule as follows:
Permitting group complaints or statements outside of the
is a threat to security of the institution and can seriously
disrupt the normal operation of the institution. Group
petitions generate intimidation and coercion as inmates try
to force others to join them in their demands. These types of
group petitions have been known to create riot situations
within the institutions, disrespect for staff and institution
rules, and violent confrontations.
Def. PFOF ¶ 57.
interviewed Matthews about the letters found in his cell.
Matthews denied that the second letter, purporting to be
brought on behalf of all prisoners of WSPF, was a group
petition. Instead, Matthews claimed, it was a draft of the
letter he eventually sent to the warden at the end of
November. Matthews said that no one else was involved with
the letter, and then he attempted to walk out of the
interview. Id. ¶ 38. At this point, Brown
suspected that the Gangster Disciples were attempting to
organize some type of disturbance at WSPF. Brown knew that
the leader of the Gangster Disciples at WSPF-an inmate named
Glenn Turner-was critical of the conditions of solitary
confinement at WSPF, and he suspected that Turner was using
Matthews to organize a disturbance that would attract media
attention to their cause. Id. ¶ 39.
at this point that prison administrators turned their
attention to Garner. As Brown continued to investigate, he
discovered communications between Turner and Garner. Although
Brown did not believe that Garner was a member of the
Gangster Disciples, he decided to search his cell. The search
occurred on December 28, 2015. During the search, Brown found
three letters. The first was a copy of Matthews's letter
to Warden Boughton. The second was a copy of the letter found
in Matthews's cell that was dated September 27, 2015. The
third letter is the one that precipitated this
suit.The letter was typed and dated December 21,
2015. It was addressed to Captain Brown, to another captain
at WSPF, and to “WSPF Administration.” Def. PFOF
¶ 44. It was from “the prisoners of WSPF, ”
id., but was signed by only Matthews, id.
¶ 46. The letter used the terms “we propose”
and “we ask, ” which are terms that Brown
considered to be “demands that are given to address a
disturbance.” Id. ¶ 44.
interviewed Garner about the letters found in his cell.
Garner told Brown that he received the letters from Matthews,
and that Matthews wanted Garner to review them and make them
sound better, as Garner was a known jailhouse lawyer.
Id. ¶ 47. Garner claimed ...