Dion Mathews v. Lebbeus Brown
Opinion
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604
Submitted March 27, 2019* Decided April 11, 2019
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 18‐1679
DION MATHEWS, Appeal from the United States District Plaintiff‐Appellant, Court for the Western District of Wisconsin.
v. No. 16‐cv‐650‐slc
LEBBEUS BROWN, et al., Stephen L. Crocker, Defendants‐Appellees. Magistrate Judge.
O R D E R
Correctional officers at a Wisconsin prison placed inmate Dion Mathews in isolated housing for writing a “group petition,” in violation of a Department of Corrections regulation. Mathews sued several officers, asserting violations of his First and Fourteenth Amendment rights. See 42 U.S.C. § 1983. The district court entered
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
summary judgment for the defendants. Because the correctional officers are entitled to qualified immunity, we affirm the judgment.
Correctional officers suspected Mathews of gang activity and searched his cell.
They found a letter with proposals “brought forth by the prisoners of WSPF”; according to Mathews, he wanted to present prison administrators with ideas for improving inmate–administration communication. The officers also found two similar letters in inmate Oscar Garner’s cell. The letters introduced suggestions with phrases like “we propose” and “we ask.” According to Officer Lebbeus Brown, a letter from anonymous inmates can lead to intimidation, coercion, and violent confrontations among prisoners.
Based on these letters, Brown issued conduct reports accusing Mathews and Garner of “join[ing] in or solicit[ing] another to join [a] group petition or statement.” WIS. ADMIN. CODE DOC § 303.24(2); see also Garner v. Brown, No. 18‐1524, 2018 WL 5778386, at *2–3 (7th Cir. Nov. 2, 2018) (nonprecedential). The Department, however, permitted inmates to file “group complaints” (i.e., grievances). WIS. ADMIN. CODE DOC § 310.10(7) (2014). A complaint examiner explained that inmates must try to resolve informally “all” grievances before filing a complaint. See id. §§ 310.09(4), 310.10(1). (The prison has disciplined Mathews for circulating a letter to the warden from “A[dministrative] C[onfinement] prisoners,” but Mathews also has submitted group complaints without consequence.) Mathews insists that his letters were to be his attempts at informal resolution. Moreover, Mathews shared the letters with Garner, he says, because Garner was his jailhouse lawyer; inmates may seek legal advice from each other. See id. § 309.155(5).
After the conduct report was sustained, correctional officers placed Mathews in restricted housing for 18 months: 33 days in disciplinary separation, 17 days in less‐restrictive disciplinary separation, and the remainder in administrative detention. Inmates in disciplinary separation get five to ten hours of outside‐cell activity (including two hours of outdoor recreation), three showers, and one hour of video visitation per week and one or two phone calls per month. Those in less‐restrictive separation and administrative detention face similar limits, but they may keep more personal property, including a television, and may make three phone calls per month.
Mathews sued Brown and other correctional officers for punishing him under a vague regulation and in retaliation for attempting to informally resolve a grievance. A magistrate judge, presiding by consent, see 28 U.S.C. § 636(c), screened Mathews’s complaint under 18 U.S.C. § 1915A and, after reconsidering, allowed him to proceed on First Amendment retaliation and a Fourteenth Amendment due‐process claims.
No. 18‐1679 Page 3
Mathews learned during discovery that a non‐defendant officer threw out his letters while cleaning the evidence room. That officer learned of this lawsuit two months later. Mathews moved for sanctions, but the court denied the motion because it concluded that the defendants had not destroyed the letters in bad faith.
The magistrate judge later granted the defendants’ motion for summary judgment. On Mathews’s due process claim, he ruled that there was a factual dispute whether the defendants deprived Mathews of a liberty interest, but the regulation was not vague as applied to him. On his First Amendment claim, the judge determined that the letters were not protected speech. Alternatively, he concluded, the defendants were entitled to qualified immunity on both claims.
We review the entry of summary judgment de novo, casting the record in the in the light most favorable to Mathews, the nonmovant. See Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). We may affirm on any basis presented in the record. See Figgs v. Dawson, 829 F.3d 895, 902 (7th Cir. 2016).
On appeal, Mathews first renews his argument that the regulation banning group petitions was unconstitutionally vague. He asserts that he had no notice of what distinguished a permissible, informal attempt at resolving a group grievance from a prohibited group petition. A regulation violates due process when it is so vague that it is necessarily applied arbitrarily. Rios v. Lane, 812 F.2d 1032, 1038 (7th Cir. 1987).
We agree with Mathews that the Department’s since‐revised prohibition on group petitions was at least confusing when read together with its rules on group complaints. In Toston v. Thurmer, 689 F.3d 828 (7th Cir. 2012), we ruled that a prison’s ban on the possession of “gang literature” did not adequately notify prisoners that they were not permitted to copy information about gangs from available books. Id. at 831–32. Here, not only could inmates attempt to resolve their concerns informally, but they had to before filing a permissible group complaint. The regulations, however, do not articulate what an attempt at informal resolution might look like. Mathews maintains that he intended his group letter to serve as the required, informal precursor to his group complaint. He could not have known that he might be punished for following a prison policy. See Maben v. Thelen, 887 F.3d 252, 265–66 (6th Cir. 2018). Mathews also did not have notice that sharing his letters with his jailhouse lawyer, as the rules permit, could subject him to discipline.
The defendants contend that the regulation was not vague as applied to Mathews because he had experience with group complaints and petitions. To be disciplined under a regulation, an inmate must have warning that his conduct is prohibited. See Rios, 812 F.2d at 1038. True, Mathews had been disciplined for trying to circulate a letter from an anonymous group of inmates. But that is different from drafting a letter and sharing it with only his jailhouse lawyer. And the group complaint he submitted previously did not give him notice of what conduct was prohibited.
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