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Mathews v. Brown

United States District Court, W.D. Wisconsin

March 5, 2018

DION MATHEWS, Plaintiff,
CAPTAIN LEBBEUS BROWN, et al., Defendants.



         Pro se plaintiff Dion Mathews is proceeding in this lawsuit with claims of First Amendment retaliation and Fourteenth Amendment due process violations against employees at the Wisconsin Secure Program Facility (WSPF). Mathews's claims arise out of a WSPF conduct report charging him with violating Wis. Admin. Code § DOC 303.24(2), which prohibits joining or soliciting others to join in any group petition or statement. Defendants have filed a motion for summary judgment (dkt. 91) and a motion to strike certain filings (dkt. 110). Mathews has filed nine motions related to the summary judgment filings (dkts. 73, 129, 130, 132, 134, 135, 136, 142, 146.)

         In this three-part order I first will rule on the parties' non-dispositive motions, then grant defendants' motion for summary judgment and finally address defendants' claim of qualified immunity. Here's the bottom line: the defendants are entitled to judgment on Mathews's First Amendment retaliation claim because their decision to issue a conduct report and punish Mathews for drafting the letters was a reasonable restriction on his speech under the standard set forth in Turner v. Safely, 482 U.S. 78 (1987). Defendants are entitled to judgment on Mathews's due process claim because, on this record, Mathews had sufficient notice that the letters he was drafting were prohibited by Wis. Admin. Code § DOC 303.24(2).


         I. Defendants' motion to strike (dkt. 110.)

         Defendants seek to strike from the record the filings submitted by Nate Lindell in Case No. 17-cv-767. Lindell is an inmate who has been assisting Mathews in this lawsuit. Lindell has prepared the bulk of the submissions that Mathews signed. Lindell and Mathews used to be housed close to each other, but now they are in different sections of WSPF. As a result, now they have to send each other letters related to this lawsuit. At one point, Lindell submitted a filing that he intended to be filed in this case, but because Lindell asserted his own (non-existent) right to act as a jailhouse lawyer on Mathews's behalf, the Clerk of Court opened a new case to account for Lindell's claim on his own behalf. When Lindell clarified that he had intended that filing to be part of the record in this case, the clerk administratively closed Case. No. 17-cv-767, and re-filed Lindell's materials in this lawsuit. This seems to moot defendants' request, but I am granting the request in order to make clear to Mathews and Lindell that I have considered only materials filed in this lawsuit that are related to the claims outlined in Mathew's First Amended Complaint. I am not considering Lindell's claimed right to appear in this lawsuit on behalf of Mathews.

         To the extent that Lindell and Mathews still might take issue with WSPF staff's limitations on Lindell's involvement, that would be a non-starter in this lawsuit. First, Lindell has no right to submit filings on Mathews's behalf because Lindell is not a licensed attorney. Any filings actually signed by Lindell in Mathews's lawsuit would violate Wis.Stat. § 757.30. Second, even if Mathews is asking merely to have access to Lindell's assistance, inmates have no right to have access to a particular jailhouse lawyer. Gometz v. Henman, 807 F.2d 113, 116 (7thCir. 1986); see Shango v. Jurich, 965 F.2d 289, 293 (7th Cir. 1992).

         II. Mathews's motions (dkts. 129, 130, 132, 134, 135, 136, 142, 146)

         Mathews has filed two motions in which he asks the court to consider his late-filed summary judgment materials. (Dkts. 136, 142.) Out of fairness to Mathews's pro se status and consistent with my previous rulings that have accommodated him for that reason, I am GRANTING these motions. However, I am DENYING Mathews's remaining motions. Here's why:

         A. Motions for Sanctions (dkts. 73, 130, 132, 134, 135)

         Mathews has filed five sanctions motions, but it appears that dkts. 130 and 134 duplicate one another, and dkts. 132 and 135 duplicate one another. Here is the overview:

• Mathews seeks judgment against defendants pursuant to Federal Rule of Civil Procedures 56(f) because defendants cannot provide evidence that is essential to their case. (Dkt. 73.) In particular, he argues that because the letters that were the subject of the conduct report were accidentally destroyed, I should enter judgment in his favor. Mathews essentially is rearguing a previous sanction request that I denied because Mathews had not submitted evidence suggesting that the letters were destroyed in a purposeful attempt to avoid any adverse effects from the letters. (Dkt. 107, at 4-6.)
• Mathews argues that defendants have pursued a frivolous defense related to defendants' justification for placing Mathews in administrative confinement, and submitted misrepresentations to the court in their statements about Lindell's filings in this lawsuit. (Dkts. 130, 134.)
• Mathews claims that in defendants' summary judgment brief, AAG Paulson submitted numerous misrepresentations related to the basis of Mathews's conduct report and Boughton's involvement in the conduct report, and has submitted frivolous arguments related to the security risk posed by group petitions. (Dkt. 132, 135.)

         None of Mathews's previous motions for sanctions in this lawsuit has established sanctionable conduct by AAG Paulson or the defendants. That hasn't changed in Mathews's pending motions. While Mathews may take issue with the arguments that defendants are making, or the conclusory nature of some of their arguments, he has not pointed to a clear misrepresentation or frivolous argument that warrants sanctions here. As such, I'm denying each of these motions.

         B. Objection to Stay (dkt. 129)

         Mathews objects to my order granting defendants' request for a stay of the deadlines and trial date in this lawsuit, and also requests appointment of counsel. I granted defendants' request for a stay because defendants' lawyers have reported that, because AAG Paulson needed to take an early medical leave related to her family leave, she would be unavailable for the previously scheduled February 22, 2018, trial. Now Mathews claims that this accommodation was unfair, pointing to my previous denial of his request for an extension and various alleged failures of defendants to accommodate him.

         Mathews is incorrect. First, I have repeatedly accommodated Mathews's scheduling requests in this lawsuit, I just did so again with respect to his summary judgment filings. (See dkts. 44, 59, 88.) While I pared down one of Mathews's requested extensions-from three weeks to one week- I did this because I previously had granted Mathews a three week extension of the same deadline. (Dkt. 88, at 7-8.) Next, Mathews's complaint that defendants have not accommodated him is not directly relevant to any court scheduling decision in this case and it is completely irrelevant to the factual basis for granting defendants' request for a stay. I granted defendants' request because the DOJ is understaffed and AAG Paulson has been actively involved in this lawsuit since January of 2017. Mathews has not provided me a persuasive reason to reconsider that decision.

         As to Mathews's request for counsel, his filings continue to be drafted by Lindell, who continues to craft thought-out and reasoned motions that Mathews has signed and submitted. Moreover, as explained above, I have considered the filings that Lindell prepared for Mathews in response to defendants' motion for summary judgment. Mathews has not explained how the circumstances have changed since I first denied his request for the assistance of a volunteer attorney. Accordingly, I am denying this motion.

         C. Motion for Leave to File Sur-Reply (dkt. 146)

         Mathews claims that defendants presented new factual issues in their reply brief to which he needs to respond. That is not an accurate characterization of the situation. Mathews is complaining about defendants' arguments related to Lindell's involvement in this lawsuit and timely-proposed findings of fact that defendants re-emphasized in their reply brief. Mathews has not pointed to an instance where defendants tried to introduce new evidence in their reply brief. I am denying this motion.


         I. The Parties

         Dion Mathews is incarcerated at WSPF, a maximum security Wisconsin Department of Corrections (DOC) facility, where the events at issue in this lawsuit took place. All of the defendants were employed by the DOC and worked there during the relevant time period. They are:

         Lebbeus Brown was a Captain and WSPF's Security Threat Groups Coordinator during the relevant time period. Brown has extensive training on the identification and operation of prison and street gangs. Beyond working as a unit manager at WSPF, Brown has worked as WSPF's Security Threat Groups (STG) coordinator since 2003. This position involves numerous responsibilities, including

tracking disruptive groups and their members in the institution and documenting their activities . . . Preparing reports regarding group and gang activities for WSPF security staff and Security Threat Group Coordinators at other DOC institutions, instructing WSPF staff regarding gang identification and gang management strategies . . ., and assessing ongoing gang activity within the institution.

         (Brown decl (dkt. 36) ¶ 3.) Since 1987 Brown has attended over 40 training sessions or meetings related to gang identification and investigations. (Id. ¶ 4.)

         Joseph Cichanowicz was a Lieutenant at WSPF from September 2013 to May 2017.

         Michael Hanfield is a Captain and STG Specialist at WSPF.

         Gary Boughton is WSPF's warden, and has held this position since March 23, 2014. Boughton has been a DOC warden since July 2010.

         Mark Kartman is WSPF's Security Director.

         Ellen Ray is WSPF's Institution Complaint Examiner (ICE).

         II. The DOC Group Complaint Process versus Prohibited Group Petitions

         The DOC has written procedures that govern how inmates may submit group complaints through the Inmate Complaint Review System (ICRS). Pursuant to Wis. Admin. Code § DOC 310.09, one inmate or a group of inmates may file a complaint if the complaint:

(a) Is typed or written legibly on forms supplied for that purpose.
(b) Is signed by the inmate.
(c) Does not contain language that is obscene, profane, abusive, or threatens others, unless that language is necessary to describe the factual basis of the substance of the complaint.
(d) Is filed only under the name by which the inmate was committed to the DOC or the legal name is an inmate had a name change.
(e) Contains only one issue per complaint, and clearly identifies the issue.

         Under § DOC 310.10, inmates who have a common complaint may file as a group by using one complaint form. All complainants must sign the form, and the inmates must designate a spokesperson. If a spokesperson is not identified, the first name signed on the complaint is considered the spokesperson for the group. WSPF makes complaint forms accessible to all inmates.

         In accordance with Wis. Admin. Code § DOC 310.09(4), ICE may respond to a complaint by directing an inmate to attempt to resolve the issue with the appropriate staff member before proceeding with a complaint. According to Ray, when an inmate is attempting informal resolution of an issue, he may only attempt to resolve the issue on his own behalf, even if the concern is raised in a group complaint with other inmates. Ray does not cite to a specific policy as to this latter requirement, and Mathews claims that this informal resolution requirement was unclear. Once ICE receives a complaint that satisfies all the filing requirements, the ICE sends the inmate a receipt acknowledgment. When ICE receives a group complaint, the spokesperson receives the receipt.

         Previously, Mathews had served as the spokesperson for a group complaint submitted on March 3, 2011, and assigned number WSPF-2011-4467. In this complaint, the inmates complained about not being allowed to go outside for recreation because the recreation yard was not shoveled. Since August of 2016, Mathews has participated in four other group complaints. The parties have not provided details about Mathews's level of involvement in those complaints, but Mathews did not receive any conduct reports for his involvement in any of these five group complaints.

         Mathews previously has been found guilty of violating § DOC 303.24, which prohibits “Group resistance and petitions.” This policy provides that:

         An inmate who does any of the following is guilty of group resistence and petitions:

(1) Participates in any group activity which is not approved by the warden or is contrary to provisions of this chapter.
(2) Joins in or solicits another to join in any group petition or statement. The following activities are not prohibited:
(a) Authorized activity by groups approved by the warden.
(b) Group petitions to the courts.
(c) Complaints properly prepared under ch. DOC 310.
(3) Participates in any activity associated with any security threat group or possesses any written materials, symbols or symbolism related to a security threat group.

         In 2010, Mathews received a conduct report for engaging in group resistance, in violation of a prior iteration of this policy, Wis. Admin. Code § DOC 303.20(2), which also prohibited inmates from joining or soliciting other to join in a group petition or statement. Mathews had been caught trying to make copies of a letter that was signed by another inmate, directed to the warden, and included requests made by “AC prisoners” (prisoners on administrative confinement) that asked the warden to allow inmates to possess more property items while in administrative confinement. Mathews's defended against the conduct report by claiming that he was attempting to resolve the issues informally. Mathews was found guilty of engaging in group resistance and petitions because there was evidence that Mathews was working with other inmates to make demands outside the requirements of the ICRS process. (See Ex. 104 to Ray decl. (dkt. 37-5) at 4.)

         III. The Gangster Disciples

         In his declarations, Lebbeus Brown provides background information about the Gangster Disciples (a/k/a GD and GDN), a violent and organized gang that has been in existence since the 1970s.[2] According to Brown, the national chairman is Larry Hoover, who currently is imprisoned in a federal prison in Colorado. Gangster Disciples are involved in a variety of criminal activities (including drug sales and murder) that often are the target of investigations by the FBI as well as federal and state prison security officers.

         According to Brown, there are 95 known Gangster Disciples housed at WSPF, out of an average daily inmate population of 437.[3] Gangster Disciples present a high safety risk due to their history of coercion, intimidation, threats, and starting disturbances within the prison. Specifically, Gangster Disciples violate DOC policies through extortion, fighting, gambling, and disciplining their own members with fines and physical confrontations.

         Brown's understanding is that Glenn Turner is WSPF's known Gangster Disciples leader. Staff at WSPF know that Turner is in contact with Hoover's immediate subordinates in the federal prison system. According to Brown, Turner communicates with federal prisoners by using a woman in Colorado (whom he names) who believes that she is helping Turner's mission to end solitary confinement. Yet, also according to Brown, Turner has duped this woman and is using her to pass letters to other Gangster Disciples.

         IV. WSPF's View of Mathews's Involvement with the Gangster Disciples

         Mathews denies membership or involvement with the Gangster Disciples. The evidence he cites in support are his own statements and those of Turner, whose affidavit Mathews submitted along with his ...

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