WILLIAM M. CONLEY, District Judge.
In this civil action brought pursuant to 42 U.S.C. § 1983, inmate Jackie Carter alleges that employees of the Wisconsin Department of Corrections violated his First Amendment rights by screening his mail, censoring or blocking certain outgoing mail, and disciplining him based on the content of this same mail in retaliation for the exercise of his First Amendment rights. Defendants have moved for summary judgment on several grounds. (Dkt. #68.) For the reasons that follow, the court will deny defendants' motion with respect to Carter's First Amendment claims against defendant Radtke for (1) allegedly subjecting Carter's mail to special screening because of his complaints about mail tampering filed in a separate lawsuit, and (2) censoring or blocking Carter's outgoing mail based on inflammatory or factually inaccurate statements. The court will also deny defendants' motion with respect to Carter's First Amendment retaliation claim against defendants Radtke and Nickel premised on Conduct Report Nos. 2085718, 2085714, and 2085710. With respect to each of these claims, the remaining defendants will be given an opportunity to address why judgment should not be entered against them as a matter of law pursuant to Fed. R. Civ. P. 56(f). In all other respects, the court will grant defendants' motion and dismiss defendants Grams, Raemisch, Lane, Leiser and Rogers from this lawsuit.
Plaintiff Jackie Carter is, and was for all times relevant to this action, an inmate incarcerated at Columbia Correctional Institution ("CCI"). Defendants are or were employees of the Wisconsin Department of Corrections ("DOC"), working at CCI for all times relevant to this action, unless otherwise noted. Defendant Dylan Radtke was an Administrative Captain. Alice Rogers is a Financial Specialist 2. Janel Nickel was the Security Director. Joanne Lane was an Institution Complaint Examiner ("ICE") from May 23, 2010, to November 3, 2012. Mary Leiser is a Program Assistant Advanced Confidential. Gregory Grams was the Warden from December 26, 2004 to April 30, 2011. Rich Raemisch was the Secretary of the DOC from September 2007 to January 2011.
Inmates are issued adult conduct reports when they violate Wisconsin Administrative Code provisions. When an inmate is issued a conduct report, the security director or her designee reviews and signs off on that report. As part of that review, the security director determines whether the violation constitutes a major or minor offense. A "major offense" is a violation of a disciplinary rule for which a major penalty may be imposed, including (1) a violation designated as a major offense under Wis. Admin. Code § DOC 303.68(3), (2) an offense for which the inmate has previously been warned or disciplined, (3) a violation that creates a risk of serious disruption or injury, or (4) a violation where the value of the property involved was high. As part of her review, the security director does not determine the substantive merits of the report.
Carter's First Amendment retaliation claim concerns five adult conduct reports, which the court will address in turn below.
On November 17, 2008, Radtke issued Carter report #1925435 for violations of Wis. Admin. Code § DOC 303.27 (lying) and § DOC 303.271 (lying about staff), which provides in pertinent part:
(Affidavit of Dylan Radtke ("Radtke Aff."), Ex. A (dkt. #72-1) 1.) Carter's correspondence at issue in the conduct report was attached to the conduct report and purports to be a letter from Carter to Security Director (and defendant) Janel Nickel regarding his "legal mail being held and investigation abuse." (Id. at 4.) Radtke contends that he did not issue the report "under false pretenses." (Defs.' PFOFs (dkt. #70) ¶ 23.)
After reviewing the report, Nickel allowed it to proceed, concluding that the alleged violations constituted a major offense because: (1) Carter was already warned about the same or similar conduct; and (2) the alleged violation created a risk of serious disruption at the institution or in the community. While Carter was given notice of a disciplinary hearing proceeding, he refused to attend, choosing to submit a written statement instead, which claimed that he was not guilty. (Radtke Aff., Ex. A (dkt. #72-1) 6.) The hearing was held on December 1, 2008. Among other findings, the committee concluded that "the event, more likely than not, unfolded as recorded" in the conduct report. (Id. at 2.) As a result, Carter was given 90 days disciplinary separation and 10 days loss of recreation. (Id. at 1.) Carter did not appeal that disposition to the Warden.
On January 19, 2009, Correctional Officer Cornelius issued Carter conduct report #1793523 for violating 303.271 (lying about staff), which provides in pertinent part:
(Affidavit of Kenneth S. Cornelius ("Cornelius Aff."), Ex. A (dkt. #76-1) 1.) Cornelius contends that he did not issue this report under false pretenses, but Carter maintains that the reports were fabricated.
Captain Ashworth reviewed the report and found that the alleged violation constituted a major offense. Carter was given a copy of the report and notice of a hearing and his rights, which he refused to acknowledge. Carter also refused to attend the hearing, again submitting a written response, which claimed that he was not guilty. (Id. at 6-14.) During a hearing was held on January 30, 2009, the committee concluded that "the event, more likely than not, unfolded as recorded" in the conduct report. (Id. at 2.) As a result, Carter was given 120 days disciplinary separation and 10 days loss of recreation. (Id. at 1.) Carter did not appeal this disposition to the Warden.
On July 12, 2010, Sergeant Bass issued adult conduct report #2085714 for violations of 303.271 (lying about staff) and 303.163 (threats). The conduct report concerned an outgoing letter sent by Carter that contained the following statements:
(Affidavit of Brian T. Franson ("Franson Aff."), Ex. B (dkt. #71-2) 1-2.)
In addition to those statements, the conduct report also indicated that Carter requested personal information about Dr. Suliene in this correspondence. The two-page letter at issue was attached to the conduct report and is addressed to a Ms. Jane Eichwald in Darien, Connecticut. (Id. at 13-15.) In the letter, Carter seeks assistance in investigating the issues described. (Id.)
Nickel reviewed the conduct report and classified these alleged violations as major offenses. Carter received a copy of the report, notice of the hearing and his rights, which he refused to acknowledge. Nevertheless, Carter submitted a written response to the report, claiming that he was not guilty of the offense. (Id. at 11.)
For again violating 303.271 (lying about staff), Sergeant Bass issued a second conduct report on July 12, 2010. Conduct report #2085718 also concerns an outgoing correspondence in which Carter allegedly makes the following statements:
(Franson Aff., Ex. A (dkt. #71-1) 1-2.) The conduct report goes on to describe Carter's representations about his attempts to procure shoes from his family. (Id. at 2.) Unlike the other conduct reports, the correspondence at issue does not appear to be attached to the report, or otherwise included in the record.
Nickel reviewed the conduct report, and classified the alleged violations as major offenses for the same reasons she relied on in classifying the other reports described above. Carter received a copy of the report and the typical notice, which he refused to acknowledge. Carter refused to attend the disciplinary hearing but did submit a written statement in which he denied guilt. (Id. at 6-7, 13-14.) A hearing was held on July 29, 2010, which Carter refused to attend, and at which the committee found that: the report writer, Sergeant Bass, was credible; Carter was not credible; and the events more likely than not unfolded as described. (Id. at 3.) Carter claims that this report was also fabricated, though when pressed at his deposition, Carter again failed to provide any specific facts in support of the broad allegations of inmate abuse described above. (Defs.' Reply to Defs.' PFOFs (dkt. #87) ¶ 74.) Defendants also contend that the individuals named as defendant in this action lack the necessary personal involvement with respect to the conduct report. (Id.) Carter received 210 days disciplinary separation. (Franson Aff., Ex. A (dkt. #71-1) 1.) He appealed this disposition to the Warden, but it was affirmed by the Warden's designee. (Id. at 16.)
On July 16, 2010, Sergeant Bass issued a third conduct report for violating 303.271 (lying about staff) and 303.25 (disrespect). Conduct report #2085710 also concerns an outgoing correspondence containing many of the same or similar statements as in the letters described above, in particular:
(Franson Aff., Ex. C (dkt. #71-3) 1-2.) According to the report, the letter also stated that "DOC employees are a clan of White racist, and that the staff have destroyed his property and denied him shoes and that staff are abusing him." (Id. at 2.) The letter at issue is addressed to E.P. Legal Services and is consistent with the description in the conduct report. (Radtke Aff., Ex. E (dkt. #72-5).)
Nickel reviewed the conduct report, and classified the alleged violations as major offenses for the same reasons she relied on in classifying the other reports described above. Carter received a copy of the report and the typical notice, which he similarly refused to acknowledge. Carter also refused to attend the disciplinary hearing but did submit a written statement denying his guilt. (Franson Aff., Ex. C (dkt. #71-3) 5-6.) During a hearing held on July 29, 2010, which Carter again refused to attend, the committee found that: the report writer, Sergeant Bass, was credible; Carter was not credible; and the events more likely than not unfolded as described. (Id. at 9.) Carter claims that this report was also fabricated, though when pressed at his deposition, Carter again failed to provide any specific facts in support of the broad allegations of inmate abuse described above. (Defs.' Reply to Defs.' PFOFs (dkt. #87) ¶ 92.) Defendants also maintain that the individuals named as defendants in this action lack the necessary personal involvement with respect to the conduct report. (Id.) Carter received 300 days disciplinary separation. (Franson Aff., Ex. C (dkt. #71-3) 1.) He also appealed this disposition to the Warden, but it was affirmed by the Warden's designee. (Id. at 10.)
The total penalties imposed in Conduct Report Nos. 2085718, 2085714, and 2085710 (collectively referred to as the "208 conduct reports") amounted to 670 days of disciplinary separation. Under Wis. Admin. Code § 303.70(9)(c), however, disciplinary separation runs concurrently and, therefore, the practical consequence was 300 days in disciplinary separation. (Defs.' PFOFs (dkt. #70) ¶ 95.)
With respect to the 208 conduct reports, defendant Radtke neither issued any reports nor did he preside as the hearing officer for those reports. Defendant Radtke's only involvement is that he may have given Carter's letters (referenced in the 208 conduct reports) to Sergeant Bass for investigation. Defendant Nickel did not author any of the conduct reports at issue. Her involvement was limited to reviewing the reports to determine whether the allegations constituted a major offense. Defendant Leiser did not issue or decide any of the relevant adult conduct reports issued to Carter. Her only involvement was acting as Carter's advocate to ensure he was provided with due process.
Defendant Warden Grams had general supervisory authority over CCI operations, but he did not directly supervise the day-to-day decisions of security personnel or the daily activities of security staff within CCI. In particular, Grams exercised no day-to-day supervisory authority over decisions by security staff as to whether to issue conduct reports or the disposition of those reports. Specific to Carter's claims here, Grams did not issue or make decisions relevant to his conduct reports. While Carter appealed the dispositions of three of those conduct reports as described above, Grams was not personally involved in the review of those appeals. Rather, Deputy Warden Douma, as the warden's designee, was involved.
Former Secretary of the Department of Corrections Raemisch was even more removed from the other defendants' actions here, having no knowledge of, or personally involvement in, any decision relating to issuing Carter conduct reports, the disciplinary hearing or appeals concerning those reports.
Carter also alleges that the following outgoing letters were tampered with and/or CCI staff unlawfully refused to mail them in violation of Carter's First Amendment rights: (1) letters that were found in the washing machine at CCI; (2) letters at issue in the 208 conduct reports; (3) letters tied to disbursement request and envelopes found at dkt. ##47-1 to 47-4; and (4) letters tied to the disbursement request and envelopes found at dkt. #42-1 at pp.44-53 and dkt. ##47-1 to 47-4.
Except for mail being sent to another inmate, outgoing mail is not normally opened or inspected by staff unless a mail monitor is in place. If mail is being sent out using a legal loan, it must meet the legal loan policy (DAI Policy #30951.01) and the inmate must provide a disbursement request for approval.
Under the legal loan policy, "[p]ostage covered under legal loans includes first class mail to courts, sheriff[] departments for purposes of requesting service of pleadings, clerk of courts, witnesses, authorized attorneys, parties in litigation, the inmate complaint review system, the parole board and DAI Director of the Bureau of Classification and Movement for PRC appeals only." (Radtke Aff., Ex. C (dkt. #72-3) 6 at § V.C.) The policy also provides that "[i]nmates may use legal loan funds for postage by attaching a Disbursement Request (DOC-184) to the unsealed envelope. The Disbursement Request must contain the complete mailing address and case and/or complaint number, if applicable." (Id. at § V.C.1.)
For the time period relevant to this lawsuit, Carter was approved for a legal loan on April 1, 2010, and he was over his legal loan limit on July 29, 2010.
All mail not subject to the legal loan policy must be mailed out by stamped envelope. Inmates may purchase stamped envelopes at the canteen. If an inmate lacks funds, inmates are also provided with one stamped envelope per week.
Carter's mail was being monitored from June 18 until August 7, 2010, to assist the
Wisconsin Department of Justice with one of Carter's lawsuits, which claimed that members of CCI staff were stealing his mail. During this period, therefore, CCI was monitoring his mail to refute Carter's allegations. When an inmate's mail is being monitored, all incoming and outgoing mail is forwarded to the Captain's office for review and possible opening.
During the period of mail monitoring, the business office was instructed to forward Carter's mail to Captain Radtke. Defendant Radtke does not remember whether he opened or reviewed Carter's incoming or outgoing mail during this period.
In July of 2010, Carter attempted to have mail that did not qualify for use of legal loan, sent with disbursement requests rather than with stamped envelopes. Carter acknowledges that these attempts were contrary to the legal loan policy. On July 7, 2010, Carter submitted a disbursement request for postage for a letter to be mailed to the E.P. Legal Services. On July 8, 2010, Carter submitted a disbursement request for postage for a letter to be mailed to The Legal Foundation.
On July 12, 2010, Radtke disapproved these disbursement requests because the letters were addressed to entities defendants maintain are not approved for legal loan use. Plaintiff disputes this, pointing to language in the policy allowing legal loans for postage for correspondence addressed to attorneys. As defendants point out, however, the policy language limits correspondence to "authorized attorneys," without explaining what "authorized" means. (Defs.' Reply to Defs.' PFOFs (dkt. #87) ¶¶ 145-146.) Defendants maintain that Carter could have sent these letters out via stamped envelopes if the content of the letters were "truthful." (Defs.' PFOFS (dkt. #70) ¶ 147.) Plaintiff claims that defendants violated his First Amendment rights by "censoring" these letters based on "what they deemed to be insulting or inaccurate statements." (Pl.'s Resp. to Defs.' PFOFs (dkt. #84) ¶ 147.)
Radtke forwarded the E.P. Legal Services letter to Sergeant Bass for investigation and likely forwarded The Legal Foundation letter as well. The E.P. Legal Services letter later formed the basis for Sergeant Bass's issuance of Conduct Report No. 2085710, and it appears that The Legal Foundation letter formed the basis for Conduct Report No. 2085718.
On July 20, 2010, Carter submitted a disbursement request for postage for an envelope addressed to Assistant Attorney General Monica Burkert-Brist.
On July 21, 2010, Carter submitted two disbursement requests for postage for mail addressed to F.B.I. personnel. Rogers did not approve these requests because Carter's envelopes were not addressed to a person or entity covered by the legal loan policy. Carter could have sent these letters using stamped envelopes.
In late July 2010, Carter submitted at least one disbursement request for postage for an envelope addressed to Raemisch. Carey did not approve this disbursement request because Carter did not provide a case number and because the letter was not addressed to a person or entity covered by the legal loan policy. Rogers had no involvement in this decision. Carter had the ability to send this letter by means of a stamped envelope, though, he contends, that if he had done so defendants would have censored his mail in violation of the First Amendment rights. (Pl.'s Resp. to Defs.' PFOFs (dkt. #84) ¶ 165.)
On July 25, 2010, Carter submitted a disbursement request for postage for an envelope addressed to Magistrate Judge Crocker, in this court at the Western District of Wisconsin. This request was denied by Carey because Carter did not provide a case number. Rogers had no involvement in this decision. Carter could have added the case number to the July 250, 2010, request and resubmitted it for processing, or could have sent the correspondence using a stamped envelope.
Defendant Raemisch exercised no day-to-day supervisory control over decisions concerning inmate mail, and specifically lacked any knowledge or personal involvement in any decisions regarding whether to allow Carter to send outgoing mail.
The DOC maintains an Inmate Complaint Review System ("ICRS") in Wisconsin adult correctional facilities. An inmate begins the ICRS process by filing a complaint with the Inmate Complaint Examiner ("ICE") as his or her respective institution, consistent with the provisions of Wis. Admin. Code DOC Ch. 310. After receiving a complaint, ICE decides whether the complaint should be accepted for filing or returned to the inmate under Wis. Admin. Code § DOC 310.09. A complaint may be returned for a number of reasons, including the complaint was submitted after an inmate has already filed two offender complaints for the week, pursuant to § DOC 310.09(2).
If the complaint is not returned, ICE processes it, and ultimately recommends that the so-called "reviewing authority" either reject, dismiss or affirm the complaint.
Subsection 6 provides that "[a]n inmate may appeal a rejected complaint within 10 calendar days only to the appropriate reviewing authority who shall only review the basis for the rejection of the complaint. The reviewing authority's decision is final." Wis. Admin. Code § DOC 310.11(6).
Lane was the Inmate Complaint Examiner at CCI from May 23, 2010, to November 3, 2012. As a result, all of the complaints that could form the basis for Carter's claims based on the ICRS process are limited to the time period from her start date of March 23, 2010, to the date plaintiff mailed his complaint in September 2010. During this time period, Carter submitted eight offender complaints which were repeatedly not accepted and returned to him. (Affidavit of Mary Leiser ("Leiser Aff."), Exs. F-G, J-M, P-Q (dkt. ##74-6 to 74-7, 74-10 to 74-13, 74-16 to 74-17).)
During the same period of time that each of the above complaints were returned, ICE accepted a large number of Carter's complaints for filing. Indeed, in the eight month period before Carter filed this lawsuit in September 2010, the CCI intake personnel accepted over 80 of Carter's ICRS complaints for filing. Still, Carter contends that the administrative regulations provide that the ICE could have waived the limitation "for good cause," and that, in particular, "ICE shall exclude complaints that raise health and personal safety issues from this limit." (Pl.'s Resp. to Defs.' PFOFs (dkt. #80) ¶ 190 (quoting Wis. Admin. Code § DOC 310.09(2)).) Carter further contends that he had "good cause" for filing each of his complaints in excess of the two-per-week limitation, although he fails to explain or offer evidence in support of that contention. (See, e.g., Pl.'s Resp. to Defs.' PFOFs (dkt. #80) ¶ 199.)
In addition, Examiner Lane actually participated in decisions on four accepted offender complaints relating to mail issues during this same period of time.
Defendants contend that Lane rejected each of these complaints because Carter failed to follow ICRS procedures and rules. Carter disputes this, asserting that he "followed the same practice whenever he attempted to file complaints and Lane's rejection of these four offender complaints was arbitrary." (Pl.'s Resp. to Defs.' PFOFs (dkt. #80) ¶ 196.)
Carter was allowed to proceed on First Amendment claims against defendants Rogers and Radtke for blocking his outgoing mail and against defendants Radtke, Grams, Nickel and Leiser for issuing conduct reports in response to his attempts to communicate with the outside world about alleged mistreatment at Wisconsin prisons; a claim against defendant Lane and Leiser for failing to process grievances with respect to his conduct report and outgoing mail; and a deliberate indifference claim against defendant Raemisch based on his knowledge of this wrongdoing and failure to do anything about it. (6/7/13 Op. & Order (dkt. #30).) The court will address defendants' challenges to these claims in turn.
Plaintiff alleges a First Amendment claim against defendants Rogers and Radtke for blocking his outgoing mail, and a First Amendment retaliation claim against defendants Radtke, Grams, Nickel and Leiser based on Carter's allegation that these defendants issued false conduct reports in response to his attempts to communicate with the outside world about alleged mistreatment at Wisconsin prisons.
The court understands Carter's First Amendment claims to challenge three, related actions: (a) screening of his mail, including reading outgoing legal mail; (b) censoring of outgoing mail by refusing to allow him to send it out; and (c) issuing of conduct reports based on lying in outgoing correspondence. Because defendants challenge whether Carter engaged in protected activity, the court considers his First Amendment and First Amendment retaliation claims together.
Defendants' decision to censor or block certain mail began with the decision to subject his mail to special screening. There is no dispute that Carter's mail was subjected to special screening for approximately two months during the summer of 2010. In his declaration, Radtke explains,
(Radtke Decl. (dkt. #72) ¶ 23.) Rogers also explains that "[p]ursuant to an email from Captain Radtke dated June 2, 2010, the business office was instructed to forward mail to Captain Radtke prior to the business office sending a response to Carter." (Rogers Decl. (dkt. #75) ¶ 18.) While not entirely clear due to Radtke's use of the passive voice, it would certainly appear that Radtke initiated this mail monitoring, though perhaps he did so under the direction of the Wisconsin Department of Justice. In any event, there is no dispute that defendant Radtke screened Carter's mail in response to Carter's complaints about mail tampering filed in a different lawsuit.
While inmates retain the right under the First Amendment to send mail, searches of inmates' mail is permissible for security purposes, such as searching for contraband, escape plans, and the like. Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999) ("[P]rison security is a sufficiently important governmental interest to justify limitations on a prisoner's first amendment rights." (internal quotation marks and citation omitted)); Gaines v. Lane, 790 F.2d 1299, 1304 (7th Cir. 1986) ("[P]rovisions of this type do not impermissibly intrude on first amendment rights."). Consistent with this, courts have held that subjecting inmates to targeted mail monitoring or screening does not implicate the First Amendment so long as the basis for special screening is reasonably related to a legitimate state interest. See, e.g., Duamutef v. Hollins, 297 F.3d 108, 113 (2d Cir. 2002) (holding that a 30-day watch placed on plaintiff's mail was reasonably related to legitimate penological interests where plaintiff had history of disciplinary actions relating to his involvement in a revolutionary group and had a book entitled Blood in the Streets mailed to him).
However, Carter's mail was monitored not because of any concern with prison security or order, but rather to collect evidence to refute his claims of mail tampering. Even if one were inclined to look past the irony of such a justification, subjecting an inmate's mail to special screening because of protected activity implicates the First Amendment. See Hall v. Curran, 818 F.2d 1040, 1044-45 (2d Cir. 1987) (finding fact issue as to whether 60-day mail watch was because of concern about "militant activities" as reflected in the official memoranda or because of "Hall's criticisms of prison administration and his political statements"). Given that Carter's mail was not just being logged and copied for the claimed purpose of responding in another lawsuit, but actually read and acted upon when critical of the prison and its personnel, there is at least room for the trier of fact to doubt the defendants' stated purpose even if legitimate.
In addition to targeting Carter's mail for special screening, defendant Radtke acknowledges that he read Carter's outgoing mail addressed to legal organizations, this court, an Assistant Attorney General with the State, the F.B.I., and perhaps other entities subjected to special administrative rules. Wis. Admin. Code § DOC 309.04(3) governs outgoing mail to such individuals, providing in pertinent part:
(emphasis added.)
Since defendant Radtke's stated reason for screening plaintiff's mail had nothing to do with a concern about contraband, or other security interest, any review of Carter's addressed mail to the outgoing entities listed above appears to violate § DOC 309.04(3). Still, the fact that defendants' conduct violated an administrative rule does not give rise to a constitutional violation. See Guarjardo-Palma v. Martinson, 622 F.3d 801, 806 (7th Cir. 2010) (finding violation of Wis. Admin. Code § DOC 309.04(3) "is not a ground for a federal civil rights suit"); see generally Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (explaining that § 1983 provides a remedy for constitutional violation, not violations of state statutes and regulations).
The Seventh Circuit has recognized that an inmate's "legal mail" is "entitled to greater protections because of the potential for interference with his right of access to the courts." Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005). As such, mail to and from attorneys representing inmates or attorneys from whom inmates are seeking representation is privileged, while the administrative provision described above sweeps more broadly, reaching beyond documents subject to the attorney-client privilege. Perhaps, Carter's letters to the E.P. Fund and The Legal Foundation could be deemed requests for counsel, and therefore subject to greater protection, but the court need not resolve this issue, since any claim arising out of Radtke's actual reading of these letters is subsumed by Carter's broader claim for the censoring of his letters as discussed below.
As for the more narrow decision to target Carter for additional screening in response to his complaints about mail tampering, Carter has established a prima facie case for retaliation under the First Amendment on the undisputed facts. To state a claim for retaliation under the First Amendment, Carter must prove that: (1) he was engaged in a constitutionally protected activity; (2) he suffered a deprivation that would likely deter a person from engaging in the protected activity in the future; and (3) the protected activity was a motivating factor in defendants' decision to take retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)). If Carter makes this initial showing, then the burden shifts to defendants to demonstrate that they would have taken the same actions "even in the absence of protected conduct." Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011).
Here, Carter meets all three elements of a prima facie case. As an initial matter, it is well-established that accessing the courts to complain about prison conditions constitutes protected activity. See, e.g., Bridges, 557 F.3d at 551-52 (finding protected activity where prisoner filed affidavit in support of another inmate's lawsuit against prison). Moreover, having mail subjected to special screening, including reading of the mail, would likely deter a reasonably person from engaging in protected activity in the future. Finally, defendant concedes — indeed offer as proposed facts — that Radtke subjected Carter's mail to special screening and directed Rogers to forward Carter's mail to him during the summer of 2010 because of Carter's filing of complaints concerning mail tampering in a different lawsuit. On this record, judgment in favor of plaintiff appears appropriate, but, as contemplated by Federal Rule of Civil Procedure 56(f), the court will provide defendant an opportunity to describe any remaining issues of fact or law as detailed below in the last section of this opinion.
Carter also asserts a claim based on defendants' decision to censor or block his outgoing mail. As far as the court can discern, this claim concerns two general categories or groups of letters.
With respect to the first group of letters, Carter was not blocked from sending these letters. Rather, his requests for disbursement from his legal loan were rejected for various reasons, most notably that Carter failed to provide a case number. In response to defendants' proposed findings of fact, Carter does not dispute that his "attempts to have mail, which did not qualify for use of legal loan, sent under disbursement request instead of stamped envelopes is contrary to policies and procedures." (Pl.'s Resp. to Defs.' PFOFs (dkt. #84) ¶ 140). Putting aside the issue of whether a misapplication of the legal loan policy could rise to the level of a constitutional violation, the undisputed facts demonstrate that defendants appropriately denied Carter's disbursement requests for these pieces of mail.
Carter also complains — and defendants do not dispute — that defendants blocked a second group of letters to the E.P. Legal Services and the Legal Foundation because the content of the letters was not "truthful." (Defs.' Reply to Defs.' PFOFs (dkt. #70) ¶ 147.) In Procunier v. Martinez, 416 U.S. 396 (1974), the Supreme Court considered the First Amendment rights of prisoners with regard to mail, holding:
Id. at 413-14. In Thornburgh v. Abbott, 490 U.S. 401, 413 (1989), the Supreme Court limited the holding in Procunier to outgoing mail, and applied the more relaxed standard set forth in Turner v. Safely, 482 U.S. 78 (1987) — that First Amendment restrictions on prisoners must be "reasonably related to legitimate penological interests" — to incoming mail. See Koutnik v. Brown, 456 F.3d 777, 784 & n.4 (7th Cir. 2006) (reaffirming application of Procunier in outgoing mail claims).
Defendants now argue that the court should apply the more lenient Turner standard to outgoing mail claims, like Carter's, because of the Seventh Circuit's use of the Turner standard to address both incoming and outgoing mail claims in Woods v. Commissioner of the Indiana Department of Corrections, 652 F.3d 745 (7th Cir. 2011). In support of their argument, defendants contend that "the holding of Koutnik [applying Procunier to outgoing mail claims and Turner to incoming] has either been overruled sub silentio or it has been limited." (Defs.' Br. (dkt. #69) 30.) The problem with defendants' argument, however, is that the Supreme Court in Thornburgh — not the Seventh Circuit in Koutnik — announced the holding that outgoing mail should be treated differently than incoming mail, applying the Procunier standard to the former, and Turner to the latter. Regardless of the reason for the Woods court's application of Turner to both types of mail, neither the Seventh Circuit nor this court can overrule Supreme Court precedent. See United States v. Pearce, No. 07-2046, 2008 WL 356787, at *1 (7th Cir. Feb. 11, 2008) ("Only the Supreme Court is entitled to overrule one of its decisions[.]"). In any event, defendants have not only failed to direct this court to any Supreme Court cases calling into question the holding of Procunier as it applies to outgoing mail, but have failed to point to any Seventh Circuit decision explicitly questioning its application.
With that challenge aside, the court now turns to Procunier's application to this case. In Procunier, the court struck down a regulation which barred letters that "unduly complain," "magnify grievances," or express "inflammatory political, racial, religious or other views" of "defamatory material," finding that this censorship was not justified by a legitimate government interest, like prison security and order. 416 U.S. at 413-16. Applying Procunier, courts have found the censorship of similar outgoing letters, or punishment based on those letters, violates a prisoner's First Amendment rights. See, e.g., Loggins v. Delo, 999 F.2d 364 (8th Cir. 1993) (affirming district court's finding that disciplinary action premised on letter to prisoner's describing a "beetled eye'd bit— back here who enjoys reading people's mail" and "[w]as hoping to read a letter someone wrote to their wife talking dirty sh—, so she could go in the bathroom and masturbate" violated prisoner's First Amendment rights); Todaro v. Bowman, 872 F.2d 43, 49 (3d Cir. 1989) (vacating district court's entry of summary judgment to defendant, finding fact issue as to whether prison retaliated against inmate for sending letters to the ACLU criticizing prison conditions); Hall v. Curran, 818 F.2d 1040, 1042, 1045 (2d Cir. 1987) (finding genuine issue of material fact as to whether prison censored and retaliated against inmate based on letter to Amnesty International in which plaintiff "described physical abuse of prisoners"); McNamara v. Moody, 606 F.2d 621 (5th Cir. 1979) (finding refusal to mail prisoner's letter to his girlfriend in which he described a prison employee "while reading mail, engaged in masturbation and `had sex' with a cat" in violation of the First Amendment); Gee v. Ruettgers, 872 F.Supp. 915, 919 (D. Wyo. 1994) (denying defendant's motion for summary judgment where prison officials censored plaintiff's outgoing communication containing false information about prison conditions sent to his family, because prison officials failed to explain how the letter threatened security or order).
In the face of this case law, defendants nevertheless argue that their decision to block Carter's mail, and to punish him for these letters, was legal because Carter was lying, rendering the content of his letter without First Amendment protection. (Defs.' Opening Br. (dkt. #69) 23-24, 29 n.4.)
Though defendants fail to acknowledge it, context matters. While the statements in Carter's letters to the two legal organizations may not be protected if made internally (whether to another inmate, in a letter to a prison official, in an internal grievance, or even if spoken to a prison guard), they are protected when sent in outgoing correspondence to a third party. Indeed, Procunier instructs that the content is protected even if it contains "unflattering or unwelcome opinions or factually inaccurate statements." 416 U.S. 396, 413-14; see also Carroll v. Tucker, No. 00-2455, 2001 WL 690822, at *2 (7th Cir. June 18, 2001) (unpublished) (discussing distinction between situations where prisoner intends for letter to be read by prisoner official as compared to instances where the outgoing correspondence was solely for the letter's addressee, and finding First Amendment violation with respect to the latter, but not the former); Loggins, 999 F.2d at 367-68 (discussing McNamara, 600 F.2d at 624) (explaining that if inflammatory remarks had been made directly to the prison staff instead of communicated in mail to a third party, may be properly subject to disciplinary action). In censoring these letters and punishing Carter, defendants relied on Wis. Admin. Code § DOC 303.27, which provides: "Any inmate who makes a false written or oral statement which may affect the integrity, safety or security of the institution is guilty of an offense." (Emphasis added.)
The reason for the differential treatment between incoming and outgoing mail makes sense: the relationship between inmates' speech outside of prison and the protection of prison security, order, and perhaps to a lesser extent, rehabilitation, is far more attenuated than speech occurring within the prison. Certainly, there are instances where speech outside of the prison walls could implicate these legitimate government interests, but defendants do not even attempt to justify their actions in this lawsuit on one of those bases.
While not argued in their brief in support of summary judgment, the record suggests that defendants arguably had a legitimate basis for censoring the letters to E.P. Legal Services and to Ms. Jane Eichwald in Darien, Connecticut.
Accordingly, the court will deny defendants' motion with respect to Carter's claim that defendants blocked or censored his outgoing mail in violation of his First Amendment rights. At the screening stage, Carter was granted leave to proceed on these claims against Radtke and Rogers. Because the undisputed record demonstrates that Rogers' role was limited to denying disbursement requests, she will be dismissed from this action. On the current record, Radtke appears to concede that he made the decision not to send these letters. (Radtke Aff. (dkt. #72) ¶ 23 (acknowledging that he likely "opened and reviewed Carter's incoming and/or outgoing mail during the period of mail monitoring").)
Entry of judgment in plaintiff's favor and against defendant Radtke appears appropriate on Carter's First Amendment claim based on the censoring of at least his letter addressed to The Legal Foundation. As contemplated by Rule 56(f), however, the court will provide defendant an opportunity to describe any remaining issues of fact or law before doing so.
Carter next contends that defendants Radtke, Nickel, Leiser and Grams violated his First Amendment rights by issuing conduct reports for complaining about prison conditions. Because there are five conduct reports at issue, the court will consider defendants' motion with respect to each report.
Correctional Officer Cornelius issued conduct report #1793523 for violating 303.271 (lying about staff) based on Carter's oral statement to Cornelius that Correctional Officer Vetter called him a "nigger." ("Cornelius Aff."), Ex. A (dkt. #76-1) 1.) This speech in no way involves outgoing mail, and therefore is not subject to the additional protections described in Procunier. Putting aside the issue of whether this speech is protected, none of the individuals involved in this conduct report are named as defendants. As such, the court need not consider whether plaintiff has established a prima facie case for retaliation under the First Amendment, because defendants Radtke, Nickel, Leiser and Grams were not involved in the decision to issue the report, the screening of the report, the disciplinary hearing, or the appeal (or, rather, lack thereof).
This conduct report concerns a letter to Security Director Nickel in which Carter states that he complained to Radtke and another C.O. about his lack of shoes and Radtke's response in that conversation. (Radtke Aff., Ex. A (dkt. #72-1) 1.) Radtke issued the conduct report for violating § DOC 303.27 (lying) and § DOC 303.271 (lying about staff). Unlike the letters underlying the 208 conduct report, this letter involves an internal prison communication, not outgoing correspondence. As such, the heightened standard in Procunier does not apply. See Carroll, 2001 WL 690822, at *2. Still, the court need not reach the merits of this claim, because the undisputed facts demonstrate that Carter failed to exhaust any retaliation claim based on this conduct report — a substantive challenge, rather than a procedural one — by failing to appeal the disposition to the warden. See Lindell v. Frank, No. 05-C-003-C, 2005 WL 2339145, at *27-28 (W.D. Wis. Sept. 23, 2005) ("If the issue is related to a conduct report, the inmate must raise it at the time of his disciplinary hearing and again on appeal to the warden, assuming the matter is not resolved at the disciplinary hearing stage.").
With respect to the 208 conduct reports, defendants' core argument is that Carter was not engaging in protected activity, because the correspondence underlying the conduct reports contains lies. The court has already addressed this issue above in its discussion of Carter's claim that defendants blocked his mail in violation of his First Amendment rights.
The more interesting question is whether the defendants named in this claim were sufficiently personally involved in the conduct reports and subsequent punishment to be held liable for retaliation. In the face of defendants' argument that they were not, plaintiff now moves for leave to amend his complaint to add Sergeant Bass, the individual who issued all three conduct reports, as a defendant pursuant to Fed. R. Civ. P. 20. (Dkt. #85.) No doubt Rule 20 permits Bass to be added, but plaintiff's request to amend his complaint is governed by Fed. R. Civ. P. 15(a)(2). Under Rule 15, "leave is inappropriate where there is undue delay, bad faith, dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment." Villa v. City of Chi., 924 F.2d 629, 632 (7th Cir. 1991) (citing Foman v. Davis, 371 U.S. 178, 183 (1962)). Plaintiff contends that he has only learned of Bass's involvement through the discovery process, but the record does not support his contention. To the contrary, Sergeant Bass's involvement was known to Carter at the time the conduct reports themselves were issued. Defendants oppose the motion, and for good reason — it is simply too late to insert another defendant in this action. Accordingly, the court will deny plaintiff's motion for leave to amend his complaint to add Bass as a defendant.
Still, the question remains whether any of the current named defendants — Radtke, Nickel, Leiser and Grams — were sufficiently involved in the decision to discipline Carter for the content of the letters underlying the 208 conduct reports to be held liable under § 1983. While Radtke did not issue the reports, it is undisputed that he forwarded the letters to Bass for investigation, thus initiating the disciplinary actions. And while Nickel did not serve as the hearing officer, she screened the reports, classified all three as constituting major offenses, and allowed them to go forward. Based on these actions, the court finds that a reasonable jury could find Radtke and Nickel personally involved in the disciplinary actions under § 1983. In contrast, Carter fails to put forth any evidence of Leiser's involvement, other than as his advocate. Similarly, while Carter appealed the disposition of these conduct reports to Grams' office, the evidence at summary judgment neither shows that Grams knew of the reports or their dispositions, nor of his other involvement, as to implicate him personally. Accordingly, the court will grant summary judgment to Leiser and Grams and dismiss them from the lawsuit, but will allow Carter to proceed on his First Amendment retaliation claim premised on the 208 conduct reports against Radtke and Nickel.
Consistent with the court's treatment of Carter's other two First Amendment claims, judgment in Carter's favor on this claim would also appear appropriate. Defendants will, however, also have an opportunity to address why this might not be so pursuant to Fed. R. Civ. P. 56(f).
Carter was also granted leave to proceed on a claim against Lane and Leiser based on their refusal to process his grievances. (6/7/13 Opinion & Order (dkt. #30) 7.) As far as the court can discern — and the parties do not indicate otherwise — there is no independent claim at issue here. Rather, Carter's claim (if he has one) must somehow implicate his First Amendment claim based on Radtke's blocking or censoring of his outgoing mail.
Even though Carter represents that he had "good cause" for exceeding the two-perweek limitation, he utterly fails to develop this argument. (Pl.'s Resp. to Defs.' PFOFs (dkt. #80) ¶ 190 (quoting Wis. Admin. Code § DOC 310.09(2)).) Even if this were so, the court sees no basis for finding Lane liable based only on her application of the twoper-week limitation rule. See Riccardo v. Rausch, 375 F.3d 521, 523 (7th Cir. 2004) ("Prisoners must follow state rules about the time and content of grievances."); see also Lindell v. O'Donnell, No. 06-1983, 2006 WL 3228601, at *1 (7th Cir. Nov. 8, 2006) (describing the two-per-week limitation in § DOC 310.09(2) in affirming district court's grant of summary judgment for failure to exhaust).
Even so, there remains one troubling aspect with Lane's record of returning complaints. Defendants offer no explanation of how ICE chooses which complaints to accept and which to return if more than two are received at the same time. For example, on August 9, 2010, the ICE received at least four complaints from Carter. Three were accepted, but the complaint alleging issues with his mail was not. (Lane Aff., Ex. A (dkt. #73-1) p.35 (describing CCI-2010-16442 concerning CCI charging co-pay to inmates in non-wage status; CCI-2010-16398 concerning Carter's allegation that his mattress needs to be replaced; and CCI-2010-16486 concerning Carter's allegation that Mrs. M Petra is obstructing his court access).) Two of the complaints were labeled "medical," which suggests those two were accepted as one complaint (and why three, rather than only two, complaints were accepted that week). But there is no explanation as to why Carter's access to courts complaint was accepted instead of his mail complaint. For prolific filers like Carter, ICE could theoretically pick and choose the complaints to accept, returning one raising more difficult issues. Ultimately, however, an inmate should be responsible for prioritizing his claims in a given week. Here, if Carter wanted his mail complaints to be accepted, he should have limited his filings to two complaints per week.
Carter also challenges Lane's rejection of four offender complaints. As detailed in the undisputed facts above, however, Lane followed ICRS procedures in rejecting these complaints (see Facts supra pp. 20-21), or, at the very least, plaintiff has failed to put forth any evidence to support his claim that ICE's review of his grievances implicated his First Amendment claims.
Accordingly, the court will grant summary judgment in favor of defendants Leiser and Lane and dismiss any claim premised on the ICRS process.
Defendants also seek summary judgment on the basis of qualified immunity. After providing an extensive discussion of the law surrounding the qualified immunity defense, however, defendants' argument is limited to the following sentence: "For Carter's constitutional claims, [C]arter must show that it was clear, to someone in defendants' positions, that defendants would violate Carter's constitutional rights by their actions and/or decisions." (Defs.' Opening Br. (dkt. #69) 41.) While it is plaintiff's burden to overcome the defense by demonstrating that the right at issue is clearly established under federal law, defendants bear some obligation in developing their defense. See Banaei v. Messing, No. 12-3516, 2013 WL 6234599, at *5 (7th Cir. Dec. 3, 2013) (finding officer defendants failed to develop qualified immunity defense in a single sentence in appellate brief). Even if developed, the First Amendment rights of prisoners to send outgoing mail was clearly established at the time Carter alleges defendants had no legitimate reason for screening his mail, censoring it, and subjecting him to disciplinary actions based on its content. Based on the record before the court at summary judgment, the court will deny defendants' motion for qualified immunity.
Finally, as to the supervisory claims asserted against former Secretary of the Department of Corrections Raemisch, the record demonstrates that he was entirely removed from the other defendants' actions here, having no knowledge of, or personal involvement in, any decision relating to issuing Carter conduct reports, the disciplinary hearing or appeals concerning those reports. Since Carter has failed to put forth any evidence that Raemisch had knowledge — let alone the necessary purpose or intent — to implicate him in the decision to screen or censor Carter's mail, or to discipline him based on the content of that mail, the court will grant defendants' motion as to all claims asserted against Raemisch. Vance v. Rumsfeld, 701 F.3d 193, 204 (7th Cir. 2011) (en banc) (holding that knowledge of a subordinate's misconduct is not enough).
As described above with respect to plaintiff's remaining First Amendment claims, the court will provide defendants an opportunity to raise any remaining issues of law or fact that would bar the entry of judgment in favor of Carter on the following claims:
Defendants may have until November 14, 2014, to file a brief and any supplementary materials. Plaintiff may have until November 28, 2014 to file a response brief. In addition to the question of liability, the parties should also address what remedy is warranted if the court enters judgment in Carter's favor.
IT IS ORDERED that:
