Beamon v. Wilke

Filing 75

ORDER signed by Judge J P Stadtmueller on 9/14/16: granting 44 Defendants' MOTION for Summary Judgment; DISMISSING this action; and, denying 69 Plaintiff's MOTION for Reconsideration. See Order. (cc: Plaintiff, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EARNEST D. BEAMON, JR.,
Plaintiff,

Case No. 14-CV-136-JPS

v.
MICHAEL A. DITTMANN,
CAPTAIN WILKE,
CAPTAIN REYES,
LT. WESNER,
UNKNOWN Sued as Deputy Warden,
CAPTAIN TETZLAFF,
MICHELLE SMITH, and
C.O. HEFT,

ORDER

Defendants.

In this action, filed under 42 U.S.C. § 1983, Plaintiff Earnest D. Beamon
(“Beamon”), a state prisoner, claims the defendants violated his First and
Fourteenth Amendment rights. On August 2, 2016, this case was reassigned
to this branch of the Court due to the unavailability of Judge Rudolph T.
Randa. (See Docket #72). Judge Randa previously denied Beamon’s motion
for summary judgment. (See Docket #35, #60).
Presently before the Court is the defendants’ October 26, 2015 motion
for summary judgment (Docket #44) and Beamon’s April 4, 2016 motion for
reconsideration (Docket #69). These matters are fully briefed (Docket #45,
#58, #63, #69, #70), and ready for disposition. For the reasons detailed herein,
the Court will grant the defendants’ motion for summary judgment, deny
Beamon’s motion for reconsideration, and this action will be dismissed in its
entirety.

1.

FACTUAL BACKGROUND1
In short, Beamon alleges that the defendants burdened his religious

practices in violation of the Free Exercise Clause and retaliated against him
because of his Muslim faith. Beamon further alleges that he did not receive
due process in his disciplinary hearings for conduct violations. Although the
parties dispute several of the specific facts, the Court finds that none are
material to preclude summary judgment. When disputed, the Court views
all facts in the light most favorable to Beamon as the non-moving party.
1.1

The Parties

Beamon is currently housed at Waupun Correctional Institution. At
all times material to this action, he was housed at Redgranite Correctional
Institution (“RGCI”). (DPFF ¶ 1).2

1

The facts are taken from the defendants’ proposed finding of fact (“DPFF”)
or Beamon’s proposed finding of fact (“PPFF”) unless otherwise noted. (Docket #26,
#47).
2

Beamon has failed to provide a response to the defendants’ proposed
findings of fact in violation of Civil Local Rule 56(b)(2)(B). (See Docket #57). Civil
Local Rule 56(b)(4) provides that the Court “will deem uncontroverted statements
of material fact admitted solely for purpose of deciding summary judgment.”
Beamon verified his complaint and affidavits, however, and the Court may
consider them to the extent that his allegations are based on personal knowledge.
Fed. R. Civ. P. 56(e); Ford v. Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996). In construing
pro se filings liberally, the Court has made its best efforts to identify genuinely
disputed facts based on Beamon’s sworn statements. Beamon has submitted a
voluminous amount of evidence, however, and it is not the Court’s role to make
Beamon’s case for him and scour every inch of the record. See United Sates v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991) (“[j]udges are not like pigs, hunting for truffles
buried in [the record].”; see also Corely v. Rosewood Care Ctr., Inc. of Peoria, 388 F.3d
990, 1001 (7th Cir. 2004) (“[W]e will not root through the hundreds of documents
and thousands of pages that make up the record here to make his case for him.”).

Page 2 of 40

Defendant Michael Dittmann (“Dittmann”) is currently employed by
the Wisconsin Department of Corrections (“DOC”) as the Warden of
Columbia Correctional Institution (“CCI”). Dittmann has been the warden
at CCI since March 22, 2014. Prior to that, Dittmann was the warden at RGCI.
(DPFF ¶ 2). Defendant Scott Eckstein (“Eckstein”) is currently employed by
the DOC as the Deputy Warden of the RGCI. (DPFF ¶ 3). Defendant Corey
Heft (“Heft”) is employed by the DOC as a Correctional Officer at the RGCI.
(DPFF ¶ 4).Defendant Michael Reigh (“Reigh”)3 was previously employed
by the DOC as a Supervising Officer 2 (Captain) at RGCI. (DPFF ¶ 5).
Defendant Michelle Smith (Smith) is employed by the DOC as an Institution
Complaint Examiner (“ICE”) at the RGCI. (DPFF ¶ 6). Defendant Andrew
Wesner (“Wesner”) is currently employed by the DOC as a Supervising
Officer 2 (Captain) at RGCI. Wesner was previously employed by the DOC
as a Supervising Officer 1 (Lieutenant) at the RGCI. (DPFF ¶ 7). Defendant
Edwin Tetzlaff (Tetzlaff) is employed by the DOC as a Supervising Officer 2
(Captain) at RGCI. (DPFF ¶ 8).
Defendant Jason Wilke (“Wilke”) is employed by the DOC as a
Supervising Officer 2 (Captain) at RGCI. Wilke is also a Certified Security
Threat Group (“STG”) Coordinator for the State of Wisconsin. (DPFF ¶ 9).
Wilke has been the STG Coordinator at RGCI since April 18, 2012. Wilke’s
responsibilities as the STG Coordinator include: tracking Security Threat
Groups and their members in the institution and documenting their

3

Although not entirely clear, it appears to the Court that Defendant Scott
Eckstein was initially listed on the docket as “Unknown sued as Deputy Warden” and
that Defendant Michael Reigh was listed as “Captain Reyes.” (See Docket #16 at 2)
(Defendants’ answer detailing parties in this action). In the end, this distinction
matters little because, as described in detail below, the Court finds that Beamon’s
claims fail on the merits

Page 3 of 40

activities, reviewing incoming and outgoing mail and property for
STG-related content, preparing reports regarding Security Threat Groups for
security staff and STG Coordinators at other DOC institutions, instructing
RGCI staff regarding gang identification and gang management strategies,
meeting on a regular basis to exchange information with the RGCI STG
intelligence unit and STG Coordinators from other DOC institutions, and
assessing ongoing STG activity with the institution and documenting their
activities, reviewing incoming and outgoing mail and property for
STG-related content, preparing reports regarding Security Threat Groups for
security staff and STG Coordinators at other DOC institutions, instructing
RGCI staff regarding gang identification and gang management strategies,
meeting on a regular basis to exchange information with the RGCI STG
intelligence unit and STG Coordinators from other DOC institutions, and
assessing ongoing STG activity with the institution. (DPFF ¶ 10).
1.2

Religious Policies at RGCI

The religious practices afforded to inmates in DOC custody are set
forth in the policies and procedures developed by the DOC Division of Adult
Institutions (“DAI”). “Religious Beliefs and Practices,” effective April 30,
2015, was implemented to ensure that incarcerated offenders have uniform
opportunities to pursue lawful religious practices of the religion of
their choice. (DPFF ¶ 12). DAI policies administer religious programming
through the Umbrella Religion Group (“URG”) structure, identifying
eight categories to accommodate religious groups with similar beliefs and
practices. The eight identified URGs include: Catholic, Eastern Religions,
Humanist/Atheist/Agnostic, Islam, Judaism, Native American/American
Indian, Pagan, and Protestant/Other Christian. DAI policies do not cite
specific denominations or sub-groups, as it would be impossible to maintain
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an all-inclusive list within the ever-changing American society and religious
views. DAI does not expect that every inmate identifying with a URG will
hold identical beliefs and practices. (DPFF ¶ 13).
Inmates have a right to declare any religious preference while
incarcerated in a DAI facility. They do so via intake interview or by filing a
DOC-1090, “Religious Preference” form. They are encouraged to identify a
URG, “Other” or “No Preference” which will most closely match their beliefs
and practices. URG designation dictates which services or studies they may
attend and which religious property and diets they may be eligible to receive.
Inmates may engage in individual practice or study in their cell related to
any faith, regardless of URG designation. They may also change their
religious preference designation every six months, if desired. (DPFF ¶ 14).
Inmates may generally exercise their religious beliefs and practices in any of
the following ways: (1) congregate URG services and study groups; (2)
request for religious diet accommodation; (3) individual study; (4) personal
meditation, prayer, and/or other spiritual practices; (5) utilization of religious
books and/or property; (6) observance of religious holidays in a URG service,
study, or congregate meal; (7) individual religious observances/rituals in
their living quarters; (8) correspondence with fellow believers; (9) pastoral
visits; and (10) requesting to abstain from work or program on religious days
of observance. (DPFF ¶ 16).
Individual inmates may submit a DOC-2075, “Request for New
Religious Practice” form, when seeking a new religious accommodation, such
as an activity or practice that is not already offered at the institution, a
religious property item that is not included on the DAI Religious Property
Chart, or a dietary accommodation not offered under DAI Policy #309.61.03.
(DPFF ¶ 17).
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During the relevant time period, Beamon identified his religious
preference as the Islamic URG. (DPFF ¶ 15).4 Pursuant to DAI Policy
#301.61.02, dated February 22, 2015, and the Religious Property Chart dated
July 21, 2015, male DOC inmates who designated a religion that fell under
the Islam umbrella group could possess the following religious property for
their personal use, consistent with the restrictions set forth in DAI #309.61.02:
(1) One Specified Emblem; (2) A religious calendar; (3) Religious Books and
Publications; (4) Religious Art; (5) Kufi-Cap (black only); (6) Miswak
(Toothstick); (7) Oil for Religious Purposes; (8) Prayer Beads (Thikr Beads);
(9) Prayer Robe, Thawb, Kurda, or Jalabiya; (10) Prayer Rug; and (11) Turban
or Kufiyya (white only). Religious publications and books are not restricted
to an inmate’s identified religious preference. (DPFF ¶ 19).
1.3

Security Threat Groups

The DOC identifies an STG as a group of individuals which threatens,
intimidates, coerces or harasses others, or engages in activities which violates
or encourages the violation of statutes, administrative rules, departmental
policies or institution procedures. Examples of STGs include street gangs and
hate groups. (DPFF ¶ 22). STGs are prohibited within the DOC because they
threaten the safety of staff and other inmates which would include but not
be limited to: assaults, riots, battery and intimidation, as well as introduction
4

During Beamon’s prior incarceration from May 23, 2007, to July 11, 2007,
he identified religious preference for the Protestant URG. Upon readmission on
February 16, 2010, he continued Protestant URG religious preference. Shortly after
transferring to RGCI on March 31, 2010, he changed to the Islamic URG on April 27,
2010. After a subsequent transfer to the Waupun Correctional Institution on
October 2, 2013, Beamon reaffirmed Islamic religious preference with a DOC-1090
form on October 8, 2013. Beamon later changed religious preference to the Jewish
URG on November 17, 2014, with an electronic DOC-1090 in WICS. Most recently,
he changed his religious preference back to the Islamic URG via DOC-1090 on
April 9, 2015. (DPFF ¶ 15).

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of contraband into the institution. (DPFF ¶ 24). STGs also undermine prison
authority by providing a support system for those taking an oppositional
stance to the prison administration. (DPFF ¶ 25).
Suppressing STGs activity in DOC institutions is imperative to
maintaining a safe and secure environment for staff, inmates, and visitors.
(DPFF ¶ 27). DOC suppresses STG activity by educating staff, interviewing
STG members, searching inmates’ property and living areas for contraband,
monitoring telephone conversations and monitoring incoming and outgoing
mail for STG related materials. (DPFF ¶ 28). STG information is shared
within and between institutions, centers, DCC and law enforcement agencies.
Networking and cooperation within the DOC and information sharing with
outside law enforcement, and the Departments of Corrections in other
jurisdictions, are essential elements for effective management of an STG.
(DPFF ¶ 29).
Most, if not all, Supremacist STGs utilize religion in some form or
fashion to hide their activity from security detection and further their
agendas. Religion is a very powerful control measure and is easily used to
manipulate and control subservient members along with circumventing
security measures. Inmates know religious rights are protected. So religion
is widely used to hide STG activity and express affiliation. Most STGs will
follow religions that are loosely based historically on what is believed to be
racial alliances such as White Supremacist STGs using Paganism, Asatru or
Odinism. The Latin Kings are a well-known nationwide STG and are
well-documented as practicing the Native American faith while incarcerated.
Some may follow the religious doctrine, but many use the religious services
as a means to hold gang meetings and pass contraband. STGs that are

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predominantly African American are well-known to follow the Islamic faith.
(DPFF ¶ 30).
1.4

Nations of Gods and Earths and Security Threat Designation

The Nation of Gods and Earths (“NGE”), is a designated STG in the
Wisconsin DOC. (DPFF ¶ 37). NGE, or the Five Percent Nation (“Five
Percenters”), originated in New York City in the 1960s after its leader,
Clarence Smith (also known as Clarence 13X and Father Allah), broke away
from the Nation of Islam (“NOI”). (DPFF ¶ 31). The name Five Percent
Nation stems from the group’s belief in “Supreme Mathematics,” which
breaks down the population of the world into three groups: the Ten Percent,
the Eighty Five Percent, and the Five Percent. The Ten Percent are those who
have subjugated most of the world. They include Caucasian people and
others who create and spread the myth of a nonexistent mystery God. They
are described as rich, blood suckers, and slave makers of the poor. The
Eighty Five Percent are those who are subjugated and deceived. They are
easily led in the wrong direction, and are hard to lead in the right direction.
Finally, the Five Percent are African Americans who have achieved
self-knowledge. They know the African American man’s true nature and that
God is within the Black Man himself. NGE followers believe that the Black
Man is a living, breathing God. Male members of the group are referred to
as “Gods,” female members are referred to as “Earths.” As a result, the group
often also refers to itself as “The Nation of Gods and Earths.” (DPFF ¶ 32).
The teachings of NGE are located in part in the “120 Lessons.” The 120
lessons are a revised version of the Supreme Wisdom Lessons of the Nation
of Islam, originally written by Wallace Fard Muhammad and Elijah
Muhammad, and a large portion of the ideology between NGE and NOI is
similar. (DPFF ¶ 33). The NGE ideology states that the “White Man” was
Page 8 of 40

created by an evil scientist named “Yucab,” 6,000 years ago using a process
called “Grafting.” The NGE preaches that Caucasians were created using
genetics of the Devil, therefore all White People are inherently evil. The NGE
teach and believe that the “White Man” is the “Devil” and is not to be
trusted. (DPFF ¶ 34). NGE teaches as ideology that the Original Man is the
Asiatic Black Man, who is “the maker the owner the cream of the Planet
Earth. Father of civilization and God of the Universe.” The ideology teaches
that the African American Males have the power to “Build and Destroy.”
“Build is to add on or to elevate positivity. Destroy is to take away
negativity.” It teaches to “build a righteous nation and destroy the devil’s
civilization.” The “Devil’s Civilization” is the Caucasian civilization.(DPFF
¶ 35).
NGE uses a specialized coded language known as the Supreme
Mathematics and Supreme Alphabet. Supreme Mathematics is a system of
understanding numerals as representations of concepts. For example: 1 is
Knowledge, 2 is Wisdom, and 3 is Understanding. The Supreme Alphabet is
a system of assigning meaning to letters in the alphabet. For example A
stands for Allah, and the M stands for Master. Interpreting NGE’s coded
language can be quite difficult and requires expertise and time not usually
possessed by most correctional staff. Most correctional staff are not trained
in the specifics of all STGs. The literature used by the NGE can be easily
overlooked by staff that do not specialize in STG activity or investigation.
(DPFF ¶ 36).
The most significant factor in the DOC’s decision to designate NGE an
STG was the multiple incidents of STG activity and violence caused by NGE
members in prisons in other jurisdictions. (DPFF ¶ 38). The South Carolina
Department of Corrections identified the NGE as an STG around 1996. In
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1995, A group of NGE inmates attacked three correctional officers, beating
the officers with their own batons and assaulting them with their own pepper
spray. An incident report for the attack stated that the inmates acted as a
group, they felt that they were acting in a manner acceptable to their
religious beliefs, and that they spoke of more violence to come. Later that
year, a group of NGE inmates were responsible for a prison riot in which
several staff members were assaulted with baseball bats, stabbed, and had
scalding water poured on them. Two females were held hostage in the
cafeteria for almost twelve hours before finally giving up. The South Carolina
Department of Corrections identified the NGE as a moving force to unite the
street gangs together. See In re Long Term Administrative Segregation of Inmates,
174 F.3d 464, 466 (4th Cir. 1999). Several years ago, the South Carolina
Department of Corrections worked an operation that apprehended
twenty-two individuals attempting to introduce contraband into a facility.
Eighteen of the twenty-two were former inmates and all were believed to be
NGE. (DPFF ¶ 39).
In 1998, New Jersey designated NGE as a prohibited STG. NGE
groups became active in New Jersey prisons in the 1980s and at various
points were the largest STG group in the New Jersey prison system. In 1993,
30 NGE inmates in New Jersey participated in a group demonstration in the
gymnasium during recreation. A subsequent investigation revealed that the
group was planning on assaulting prison staff and to take at least one officer
hostage. In 1996, 50-60 inmates belonging to NGE and a rival gang conducted
an unauthorized meeting during recreation. That same year, between 25 and
30 inmates were involved in a fight between NGE inmates and a rival gang.
In 1997, an NGE inmate stabbed an officer with a homemade knife causing
serious injuries. After the attack, four other NGE inmates barricaded
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themselves in the gymnasium, set fires, and damaged prison property. The
state also experienced numerous instances of violent attacks by NGE inmates
prior to labeling the group an STG. See Fraise v. Terhune, 283 F.3d 506, 512-13
(3rd Cir. 2002); (DPFF ¶ 40). Information provided to Wisconsin by other
states indicates that NGE groups in prison in North Carolina, South Carolina,
and Virginia have engaged in various activities that have created institutional
disturbances including assaults, extortion, and drug trafficking.
The Black Supremacist teachings and ideology of the NGE did
contribute in part to the DOC’s decision to identify the group as an STG.
Materials and speech which promote racial hatred and supremacy, including
purported religious materials, are prohibited due to the risk they create of
violence and disruption in prison. The inmates in Wisconsin prisons are
racially diverse. Allowing inmates to openly align themselves with racial
supremacist groups would dramatically increase the chances of conflict and
violence between inmates of different races. (DPFF ¶ 42). Additionally,
NGE’s message that Caucasian people are devils who attempt to subjugate
African Americans makes it more likely that NGE members would commit
acts of violence towards staff or work to undermine their authority. (DPFF
¶ 42).
In order to maintain security and discipline within the institution, it
is necessary for prison staff to maintain authority and control over the inmate
population. The majority of staff at RGCI are Caucasian. NGE inmates are
likely to believe and advocate that the authority held by Caucasian staff
members over them is illegitimate as part of the “The Devil’s” subjugation
of African Americans. Allowing inmates to spread this racist and
inflammatory message would increase the chance of disruption in the

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institution and acts of violence against staff and or other inmates. (DPFF ¶
43).
NGE’s use of code language, in the form of the Supreme Mathematics
and the Supreme Alphabet, also contributed to the DOC’s decision to identify
the group as an STG. Many inmates have used Supreme Mathematics and
Supreme Alphabet to create complicated coded messages that are hard for
trained staff to decipher. Inmates’ use of codes, symbols or language that
cannot be interpreted by security staff is a security risk because secret means
of communication amongst inmates allows inmates to organize and plan
conspiracies, assaults, and escapes. Conspiracies amongst inmates can
include groups of inmates who collectively decide to conduct disruptive
activities, such as a group refusal to work, conspiracies to assault staff or
other inmates, and conspiracies to conduct fraudulent activities. (DPFF ¶ 45).
The DOC has designated a number of purported religious groups as
STGs in part due to their racial supremacist teachings. For example, the DOC
has designated World of Church of the Creator (Creativity Movement) and
Wootinism as STGs in part because of their white supremacy ideology. The
DOC has designated Black Hebrew Israelites and Milanics as STGs in part
because of their black supremacy ideology. Currently, the DOC does not
consider Nation of Islam (“NOI”) an STG, but does carefully review all NOI
material for prohibited racial supremacy and anti-Semitic content. NOI
publications are closely monitored for either racial supremacy literature or
calls to violence by this group or groups that are very similar in nature and
ideology. Although many NOI publications are allowed, many are
prohibited within the DOC. The DOC has designated Fruits of Islam, an NOI
militant branch, as an STG due to its military style structure. (DPFF ¶ 44).

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Numerous other state correctional agencies consider NGE an STG, and
as a result prohibit NGE activity in prison. As of 2010, Minnesota, South
Carolina, North Carolina, Georgia, Florida, Kentucky, Tennessee, New
Hampshire, Virginia, and New Jersey listed NGE as an STG. To the best of
Wilke’s knowledge these state correctional agencies still classify the NGE as
an STG. (DPFF ¶ 46).
Because NGE is a designated STG, inmates within the DOC are
prohibited from possessing NGE literature and symbolism, showing
affiliation or allegiance to NGE, or engaging in NGE related activities.
Inmates who violate this prohibition are subject to discipline under Wis.
Admin. Code § DOC 303.20.1. (DPFF ¶ 47).5 Specifically, inmates are not
allowed to possess documents related to the 120 Lessons, Supreme
Mathematics, or the Supreme Alphabet, as these teachings and ideology
promote racial supremacy. They also are not allowed to posses NOI’s
Supreme Wisdom Lessons. (DPFF ¶ 47).
NGE has been a prohibited STG during the entire time Wilke has
worked for the DOC. Wilke played no role in the decision to designate NGE
as an STG. The STG Coordinator at Dodge Correctional Institution is
responsible for determining whether a group constitutes an STG. As the STG
Coordinator at RGCI, it is Wilke’s duty to enforce the DOC’s ban on all STG
activity, including activity related to NGE. (DPFF ¶ 48).

5

In December 2014, Wis. Admin. Code ch. DOC 303 was revised. Though
most provisions remain substantively the same, many have been renumbered. For
purposes of this order, any reference to the Wis. Admin. Code ch. DOC 303 will be
to the Register, December 2006 version unless otherwise noted.

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1.5

RGCI Mail Policies

With the exception of legal and other specified mail, staff inspect all
incoming and outgoing mail by opening and visually inspecting it. Incoming
mail is read if there is a justifiable belief that contents constitute a risk to the
safety and security of the facility, specific individuals or the general public,
or when there is reason to believe that the inmate or the sender is involved
in criminal activity. Mail may be randomly read in addition to being
inspected. Incoming packages are opened, inspected, and processed. Mail
may not be delivered if it violates DOC regulations. (DPFF ¶ 49). If approved
by the Security Director, inmates may be placed on a mail monitoring status.
Under this status, all of the inmate’s incoming and outgoing mail will be
closely read by a designated security supervisor instead of regular mail room
staff. (DPFF ¶ 51).
The same prohibitions that apply to inmate mail also apply to
publications. Additionally, inmates may not receive publications that: (1)
teach or advocate violence or hatred and present a danger to institutional
security and order; or (2) teach and advocate behavior that violates the law
of the state or the United States or the rules of the department. (DPFF ¶ 52).
The DOC cannot prohibit a publication solely because of its appeal to a
particular ethnic, racial, or religious audience, or because of the political
beliefs expressed therein. The fine line between these two rules can be very
challenging for mail room and security staff to implement when reviewing
publications. As a general rule, publications are prohibited if they contain
calls for violence, uprising against authority, or express hatred towards, or
inferiority of, other racial, ethnic, or religious groups. (DPFF ¶ 53). The DAI
Security Chief reviews all publications that are denied for prohibited content,
and makes the final call on whether the denial was correct. If a publication
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received at an institution is deemed to have prohibited content, or is
questionable for prohibited content, it is forwarded to the DAI Security Chief
for a final determination of whether it is allowed. If the Security Chief deems
that the publication is prohibited, it is added to a list of denied publications
maintained by the DOC. (DPFF ¶ 55).
1.6

Beamon’s Conduct Report #2329927

About two months prior to June 16, 2013, correctional staff found
information regarding Supreme Mathematics in Beamon’s cell during a
search. Wilke had a meeting with Beamon and educated him that NGE is
considered an STG by the DOC and that he is not allowed to possess NGE
material, show NGE affiliation, or engage in any NGE activities. Wilke did
not issue him a conduct report for possessing contraband STG materials
because it was the first time he was found with NGE material, it was a small
amount, and his behavior was not overt. Wilke informed him that he could
receive a conduct report for any further NGE related activity. (DPFF ¶ 61).
About three weeks later, Wilke had a second meeting with Beamon for
continued NGE activity. Wilke does not recall the specifics of the NGE
materials Beamon was in possession of, but Wilke did reiterate that NGE
materials are considered STG materials by the Wisconsin DOC. Wilke did not
issue Beamon a conduct report for this incident. At that time, Wilke felt that
the best way to deter Beamon from continuing to violate the rules by
engaging in NGE activity was education. Wilke conveyed that he could be
disciplined for further violations. (DPFF ¶ 62).
On June 16, 2013, Lieutenant Toney from the Oshkosh Correctional
Institution contacted Wilke and informed him that he had intercepted a letter
written by Beamon to another inmate. Beamon’s letter contained numerous
references to and literature utilized by the 5% NGE or the Nation of Gods
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and Earths. (DPFF ¶ 63). In the letter, Beamon began with “Peace God,” and
refers to Inmate Morse as a “God” numerous times throughout the letter. He
also referred to the mother of his children and his daughter as “Earths.”
(DPFF ¶ 64). On page one of the letter Beamon admits that he was going by
the name “Supreme Understanding,” but states that “with growth” he took
the name “Born Prophet,” and signs off the letter as “Born Prophet Allah.”
(DPFF ¶ 65). In the letter he indicated that he is trying to start a website
called “G.O.D.S. TEMPLE,” which he described as being “about reaching out
to Black famil[ies] and our youth.” (DPFF ¶ 68). Beamon further stated in the
letter that:
I have plenty of the Gods books. I stay in the 120 lessons daily
to keep my mind free and open in order to save others I had to
save SELF. I build with a few of the Gods here they go by the
names Cee-Allah and Divine Allah they some alright brothers
B.U.T. you know like all brothers they get side tracked trying
to mix different things with the lessons.
(DPFF ¶ 69). Beamon’s letter also used Supreme Mathematics and the
Supreme Alphabet at various points. For example, he wrote “1+2+3=6 which
equals (equality), meaning knowledge your knowledge you will deal with
everything in your cipher” and “1=2=3=6=Equality=means equals in all
reflection of life.” (DPFF ¶ 71). Following the interception of the letter,
Beamon’s cell was searched and found to contain a folder with multiple
pages of handwritten, typewritten, and computer print off materials all
related to the NGE or groups with very similar ideology. (DPFF ¶ 72).
Wilke completed Adult conduct report number 2329927 on June 18,
2013 as a result of this incident. The conduct report charged Beamon
with violating Wis. Admin. Code §§ DOC 303.20, Group Resistance and
Petitions, 303.31 False Names and Titles, 303.24 Unauthorized Forms of

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Communication, and 303.24, Disobeying Orders. (DPFF ¶ 74). On June 18,
2013, Wilke also completed a Review of Conduct Report/Evidence Related
to Security Threat Groups, form DOC-2366. Wilke noted that Beamon was
found to be in possession of and sending 5% NGE literature. The DOC
recognizes the 5% NGE as an STG. (DPFF ¶ 75).
On June 19, 2013, Reigh reviewed Beamon’s Conduct Report #2329927
pursuant to Wis. Admin. Code § DOC 303.67 (2006). He approved the
conduct report for further processing. (DPFF ¶ 77). On June 24, 2013, Beamon
was provided a Notice of Major Disciplinary Hearing Rights and Waiver of
Major Hearing and Waiver of Time (for Major or Minor Disciplinary
Hearings) form for conduct report #2329927. (DPFF ¶ 78). On June 20, 2013,
Heft was appointed as Beamon’s staff advocate for Conduct Report #2329927.
(DPFF ¶ 79).
On June 24, 2013, Heft submitted Beamon’s Request for Attendance
of Witness. Beamon requested that Chaplain Barwis attend the disciplinary
hearing. That same day, Capt. Reigh reviewed the request and approved the
request for the witness to attend the hearing. (DPFF ¶ 80). On June 24, 2013,
Heft sent a Memo to the Adjustment Committee. Heft noted that he had
contacted Beamon regarding the disciplinary hearing. Heft also noted that
Beamon was provided the opportunity to ask questions, provide comments,
and request assistance. Heft responded to his questions and requests for
assistance. Beamon was informed that, if he had any further questions or
requests, he could contact this office. Lastly, Heft noted that he had checked
for procedural errors and none were found. (DPFF ¶ 81).
On July 11, 2013, Tetzlaff held the disciplinary hearing for Beamon’s
Conduct Report #2329927. Heft was present for the disciplinary hearing and

Page 17 of 40

had nothing to add to Beamon’s testimony. No known conflicts of interest
were noted to exist. (DPFF ¶ 82). At the hearing, Tetzlaff verified that
Beamon received a copy of his due process rights. Tetzlaff read the conduct
report out loud to the inmate and witness. The witness was escorted out of
the hearing room. Beamon plead not guilty. Beamon submitted a written
statement which Tetzlaff read and included in the conduct report record. In
addition to the written statement, Beamon said at the hearing that he studied
all religions to better himself, not spread to anybody else. Beamon said that,
“The thing that says the white race is a genetic mutation, I didn’t say that.
That’s what I spend my time doing, studying everything. I’m trying to direct
my kids the correct way.” (DPFF ¶ 83).
The physical evidence that Tetzlaff reviewed for the hearing included
a copy of the letter, a folder, and papers. The folder contained a large
amount of handwritten, typewritten, and computer print off materials, all
related to the NGE or groups with very similar ideology. These items were
examined in front of Beamon at the disciplinary hearing. (DPFF ¶ 85).
Tetzlaff found Beamon guilty of 303.20(3), finding it more likely than not that
Beamon was in possession of materials related to an STG. Tetzlaff also found
Beamon guilty of 303.31 for using a name different than his own. Tetzlaff
found Beamon not guilty of 303.30 because the charge was duplicative and
not guilty of 303.24 because the charge was not supported. (DPFF ¶ 86). As
a result of the guilty charges, Tetzlaff imposed a 90-day disciplinary
separation penalty and ordered that all contraband from the conduct report
be destroyed. Beamon did not ask for copies of physical evidence nor did he
complain that he was not able to confront evidence. (DPFF ¶ 88).
On July 11, 2013, Beamon appealed the decision to the warden,
Dittmann. In his appeal, Beamon did not make any claims of procedural
Page 18 of 40

error in his disciplinary hearing. (DPFF ¶ 89). Dittmann affirmed the hearing
officer’s decision and the sentence on Adult Conduct Report #2329927. (DPFF
¶ 90). In a June 18, 2013 letter to Congress Woman Gwen Moore complaining
about conduct report #2329927, Beamon stated “I study Moorish Science,
Christianity, Nation of Islam, Nation of Gods and Earths, and Jewish
Religion.” (DPFF ¶ 91).
1.7

Beamon’s Conduct Report #2328188

On June 17, 2013, the Security Director approved placing Beamon on
mail monitoring status due to his activity that resulted in conduct report
#2329927. (DPFF ¶ 92). On or about July 9, 2013, Wilke opened a letter
Beamon had written to a family member. Upon opening the letter, Wilke saw
that Beamon had enclosed stamps with his letter for mailing, in violation of
DAI Policy 309.04.01 (IV)(F)8. (DPFF ¶ 93). Wilke gave Beamon’s letter and
the stamps to Officer Fischer to return to Beamon. Wilke directed Officer
Fischer to inform Beamon that, per DAI policy, 309.04.01 (IV)(F)8, inmates are
not allowed to send stamps through the mail, and that he could receive a
conduct report for doing so in the future. Wilke did not give Beamon a
conduct report for this incident because, to Wilke’s knowledge, it was the
first time he had been caught sending stamps through the mail. As a result,
Wilke believed that a warning was the best way to handle the situation.
(DPFF ¶ 94). Wilke believes he read the letter Beamon tried to send with
stamps before having it returned to Beamon with the stamps. To Wilke’s
knowledge, the letter did not contain NGE related material. If Wilke had
noticed NGE related material in the letter, he would have issued him a
conduct report. (DPFF ¶ 95).
On July 10, 2013, Wilke reviewed a letter written by Beamon to a
family member in Mississippi, who he believed was Beamon’s daughter. The
Page 19 of 40

letter contained the following word graph: Hala – The Black, Orang Asli –
Original People, Nakhi – Blackman, Hei Miao – Blackman, Litzu – Blackson,
sag gig ga – Blackheads. These terms are commonly used by black
supremacy groups, including NGE. (DPFF ¶ 96). Beamon also wrote “Tell my
mother “Earth” to make sure daddy get on it and I’m cool tell her a thinking
man remains unswayed at all times.” By referring to his mother as an
“Earth,” Wilke believed that Beamon was openly displaying his allegiance
to the 5% NGE, along with attempting to spread the 5% NGE ideology.
(DPFF ¶ 97). The letter further stated “Tell him [your father] the dumb capt
here misinterpertated everything from his own unintelligent understanding,”
“I was trying to send you some more stamps but these dumb people all of a
sudden say I can’t,” “Tell your papa these got to be the dumbest people I
ever came across they ain’t even that dumb back home, everybody but these
idiots know I haven’t dealt with a dumb ass gang since Keanya been in the
world 18 years.” “At least Baby-girl if they racist there they let you know up
front but you know who cares.” On this portion of the letter there is a
drawing of a face with a tongue sticking out. (DPFF ¶ 98). Beamon signed the
letter Junior B, AKA “The Prophet,” which was the same unauthorized NGE
name Beamon used in his letter that resulted in conduct report #2329927.
(DPFF ¶ 99).
That same day, Beamon was issued a Notice of Non-Delivery of
Mail/Publication for a letter that contained 5% NGE literature and ideology
along with disrespectful comments about RGCI staff. The reason for the
non-delivery of the mail item was that the item posed a threat to the security,
orderly operation, discipline or safety to the institution. (DPFF ¶ 100). Wilke
completed Conduct Report number 2328188 on July 10, 2013, as a result of
this incident. The conduct report charged Beamon with violating Wis.
Page 20 of 40

Admin. Code §§ DOC 303.20, Group Resistance and Petitions, 303.31 False
Names and Titles, 303.25, Disrespect, and 303.24, Disobeying Orders. (DPFF
¶ 101).Wilke also completed a Review of Conduct Report/Evidence Related
to Security Threat Groups, form DOC 2366. Wilke noted that the DOC
recognizes the 5% NGE as a Security Threat Group. Beamon was found to be
in possession of or spreading literature or ideology of the 5% Nations of
Gods and Earths in violation of Wis. Admin. Code § DOC 303.20. Wilke also
advised that the letter written by Beamon contained clear messages and
ideology of the 5% Nations of Gods and Earths. He noted that he had
reviewed Conduct Report #2328188 and, based on his training and
experience as the institution’s Security Threat Groups Coordinator, Wilke
concluded that the alleged violation of the Wis. Admin. Code § DOC 303.20
Group Resistance and Petitions is supported by the evidence and/or his
testimony. (DPFF ¶ 102).
On July 11, 2013, Reigh reviewed Beamon’s Conduct Report #2328188
as the security director’s designee pursuant to Wis. Admin. Code § DOC
303.67. He approved the conduct report for further processing. (DPFF ¶ 103).
On July 12, 2013, Beamon was provided a Notice of Major Disciplinary
Hearing Rights and Waiver of Major Hearing and Waiter of Time (for Major
or Minor Disciplinary Hearings) form. ( (DPFF ¶ 104). On July 12, 2013, Heft
was appointed as Beamon’s staff advocate for Conduct Report #2328188 and
Beamon received a copy of the report. (DPFF ¶ 105).
On July 16, 2013, Reigh reviewed Beamon’s request for the attendance
of witnesses. The only witness Beamon requested to attend the hearing was
Correctional Officer Fischer. Reigh noted that Officer Fischer was unable to
attend the hearing due to a scheduling conflict. He approved Officer Fischer
to give a statement in advance of the hearing in lieu of attending. (DPFF
Page 21 of 40

¶ 106). On August 1, 2013, Heft sent a Memo to the Adjustment Committee.
Heft noted that he had contacted Beamon regarding the disciplinary hearing.
Heft also noted that Beamon was provided the opportunity to ask questions,
provide comments, and request assistance. Heft responded to his questions
and requests for assistance. Beamon was informed that, if he had any further
questions or requests, he could contact this office. Heft noted that he had
checked for procedural errors and none were found. (DPFF ¶ 107).
On August 1, 2013, Wesner held the disciplinary hearing for Beamon’s
Conduct Report #2328188 and Heft was present as the staff advocate. (DPFF
¶ 107). At the hearing, Wesner verified that Beamon received a copy of his
due process rights. Wesner read the conduct report out loud to Beamon and
the witness statement was put into evidence. Beamon pleaded not guilty.
(DPFF ¶ 109).
Wesner found Beamon guilty of 303.20(3), and found it more likely
than not that Beamon was attempting to spread information on the 5%ers
and is actively practicing this literature. This is supported by the body of the
report, physical evidence. Wenser found Beamon guilty of 303.25 for
showing disrespect to staff. Wesner also found Beamon guilty of 303.31 for
using a name different than his own. Wesner found Beamon not guilty of
303.24 because the charge was not supported. (DPFF ¶ 111). As a result of the
guilty charges, Wesner imposed a 180 days in disciplinary separation and a
referral to the Program Review Committee. (DPFF ¶ 114). Wesner believed
that because Beamon committed a similar offense just weeks prior, a more
severe penalty was appropriate to prevent him from continuing the behavior.
(DPFF ¶ 114).
On August 1, 2013, Beamon appealed the disciplinary hearing
officer’s decision on Conduct Report #2328188 to the warden’s office. The
Page 22 of 40

appeal did not allege any procedural errors during the disciplinary hearing.
Specifically, it did not allege that he was unable to view and confront
physical evidence against him. Warden Dittmann affirmed Wesner’s finding
and sentence stating “conduct report and hearing results support findings of
guild and disposition.” (DPFF ¶ 115).
1.8

Allegations and Inmate Complaints

Beamon submitted fifteen offender complaints with the ICE relating
to the issues that are the subject matter of this lawsuit. The fifteen offender
complaints filed relating to the issues that are the subject matter of this
lawsuit include: Offender Complaint RGCI-2013-11886, RGCI-2013-13537,
RGCI-2013- 13559, RGCI-2013-13626, RGCI-2013-13624, RGCI-2013-14491,
RGCI-2013-15586, RGCI-2013-15592, RGCI-2013-16511, RGCI-2013-16795,
RGCI-2013-16897, RGCI- 2013-17112, RGCI-2013-17117, RGCI-2013-17828,
and RGCI-2013-18160, which were accepted by the ICE office and processed.
(DPFF ¶ 130).
Beamon maintains that he is not part of the NGE and that the
defendants have misunderstood his use of religious language. (See, e.g.,
Docket #26-1 at 33-36). He believes the defendants’ security concerns related
to NGE are exaggerated because he does not hold racist beliefs. (Docket #26-1
at 39). Beamon generally alleges that defendants Wilke, Dittman, Wesner,
Reyes, Tetzlaff, Smith, and Heft retaliated against him for practicing his faith
and that defendant Wilke further retaliated against him for filing an inmate
complaint. (See Docket #26-1 at 37, 42).
2.

LEGAL STANDARD
“The court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Page 23 of 40

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law
that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A
dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: “(A) citing to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4).
3.

DISCUSSION
The defendants’ motion for summary judgment argues they are

entitled to judgment as a matter of law on Beamon’s: (1) free exercise claim;
(2) retaliation claims; (3) procedural due process claims; and (4) in the
alternative, they are entitled to qualified immunity.6 As discussed below, the

6

The Court notes that Beamon was not allowed to proceed on a separate
First Amendment claim regarding Wilke’s opening up his mail. (Docket #11 at 5-6).

Page 24 of 40

Court finds that the defendants are entitled to summary judgment on all
claims as a matter of law.
3.1

First Amendment—Free Exercise

The Court allowed Beamon to proceed on a First Amendment free
exercise claim against defendants Wilke, Dittmann, Wesner, Reyes, Tetzlaff,
Smith, and Heft. (Docket #11 at 5). Beamon generally alleges that he is being
“harassed and targeted for my rights to practice and study religion.” (Docket
#1 at 6). Although all the specifics of the alleged harassment are not entirely
clear, Beamon’s complaints appear to revolve around the fact that his religion
is burdened by not being able to use his “religious name” and “religious
jargon” to express himself. (See Docket #25 at 4).
The First Amendment’s free exercise clause protects an inmate’s right
to exercise his religious beliefs in prison. Tarpley v. Allen Cnty., Indiana 312
F.3d 895, 898 (7th Cir. 2002). However, lawful incarceration “brings about the
necessary withdrawal or limitation of many privileges and rights, a retraction
justified by the considerations underlying our penal system.” O'Lone v. Estate
of Shabazz, 482 U.S. 342, 348 (1987). Thus, a prison regulation that impinges
on an inmate's constitutional rights will be considered valid “if it is
reasonably related to legitimate penological interests.” Id. at 349 (quoting
Turner v. Safley, 482 U.S. 78, 89 (1987)). “In the context of the Free Exercise
Clause, the plaintiff must first establish that his right to practice his religion
was burdened in a significant way.” Kaufman v. McCaughtry, 419 F.3d 678, 683
(7th Cir. 2005) (citing Hernandez v. Comm'n of Internal Revenue, 490 U.S. 680,
699 (1989)). The Seventh Circuit has held that a substantial burden is “one
that necessarily bears a direct, primary, and fundamental responsibility for
rendering religious exercise…effectively impracticable.” Civil Liberties for
Urban Believers v. City of Chi., 342 F.3d 752, 761 (7th Cir. 2003).
Page 25 of 40

Beamon identifies as a black Muslim and specifically not as part of
NGE. (Docket #26-2 at 33). He “takes his religious knowledge from other
religions,” such as “Nations of Islam, Judaism, Christian Science, and finally
Islamic Science.” (Docket #1 at 5). Beamon adamantly asserts that his inability
to use his religious name and “religious jargon” has substantially burdened
his ability to practice his religion. Aside from his sworn statements, however,
Beamon provides no evidence to support this argument.
The Supreme Court has held that a personal religious faith is entitled
to as much protection as one espoused by an organized group. Frazee v.
Illinois Depart. of Emp’t Security, 489 U.S. 829, 834 (1989); see also Hernandez v.
CIR, 490 U.S. 680, 699 (1989). Hierarchical religions, such as the Roman
Catholic Church, believe that only the group’s leaders can establish and
articulate the group's tenets on central issues of faith. But non-hierarchical
religions, such as most Protestant and Islamic sects, believe that every
worshiper has a direct connection to God. See Vinning-El v. Evans, 657 F.3d
591, 593 (7th Cir. 2011). In determining whether a practice burdens religion,
the Seventh Circuit has found that a prisoner’s “unreasoned say-so” is
insufficient to prove a substantial burden on their religious exercise. Borzych
v. Frank, 439 F.3d 388, 390 (7th Cir. 2006).
Given these two principals, the Court is put in somewhat of a difficult
position; on the one hand it must give Beamon’s personal religious beliefs the
same protection as an organized group, but, on the other hand, Beamon’s
“unreasoned say-so” is insufficient to overcome summary judgment. As
articulated by the Second Circuit:

Page 26 of 40

It cannot be gainsaid that the judiciary is singularly
ill-equipped to sit in judgment on the verity of an adherent's
religious beliefs. Mindful of this profound limitation, our
competence properly extends to determining “whether the
beliefs professed by a [claimant] are sincerely held and
whether they are, in his own scheme of things, religious.”
Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984) (quoting United States v.
Seeger, 380 U.S. 163, 185, (1965)). At the summary judgment stage, and in
looking at all facts in the light most favorable to the non-moving party, the
Court finds it prudent to assume for argument’s sake that Beamon’s beliefs
are sincerely held. Nonetheless, Beamon’s free exercise claim will still fail
because the defendants’ actions were reasonably relate to a legitimate
penological interest.
A prison regulation that impinges on a prisoner’s constitutional rights
is valid only if it is “reasonably related to legitimate penological interests.“
Turner, 482 U.S. at 85. The four factors relevant to the reasonableness
determination are: (1) a “valid, rational connection between the prison
regulation and the legitimate governmental interest put forward to justify it”;
(2) “whether there are alternative means of exercising the right that remain
open to prison inmates”; (3) “the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the
allocation of prison resources generally”; and (4) “the absence of ready
alternatives.” Id. at 89–90 (internal quotation marks and citations omitted).
In Turner, the Supreme Court expressly rejected any degree of “heightened
scrutiny” in order to assure that “prison administrators…and not the courts
…make the difficult judgments concerning institutional operations.” Id. at 89.
Under Turner, prison officials do not have to rely on past problems to
justify a rule. Rather, they are entitled to “anticipate security problems”

Page 27 of 40

before they occur. Id. at 89. For example, in Singer v. Raemisch, 593 F.3d 529
(7th Cir. 2010), the Seventh Circuit considered a ban on role playing games
and related publications. Prison officials justified the ban in part because role
playing games “can mimic the organization of gangs and lead to [their]
actual development.” Id. at 535. While the defendants failed to point to a
single example in which a role playing game had let to a security problem,
the court rejected the plaintiff's argument that such evidence was required.
Id. at 536. It was enough in Singer that the defendants had provided “a
plausible explanation” for the ban. Id.
The Court finds that the defendants’ prohibition of NGE materials
satisfies the Turner test. As to the first prong, the defendants have put forth
substantial evidence that NGE was designated as an STG because it holds
racial supremacist views and has been linked to violence and gang-related
activity in other prison systems. (DPFF ¶¶ 42-46). In addressing this issue,
the Third, Fourth, and Sixth Circuits have all found similar bans to be
rationally related to a legitimate penological interest. See Fraise v. Terhune, 283
F.3d 506, 516–21 (3d Cir. 2002) (applying the Turner test to conclude that the
designation of this group as a security threat was reasonable); In re Long Term
Admin. Segregation of Inmates Designated as Five Percenters, 174 F.3d 464,
469–71 (4th Cir. 1999) (same); Johnson v. Stewart, No. 08-1521, 2010 WL
8738105, at *2 (6th Cir. May 5, 2010) (same). Not being experts in prison
administration, but aware of the security problems in American prisons,
judges sensibly defer within broad limits to the judgments of prison
administrators. Florence v. Board of Chosen Freeholders of Cnty. of Burlington,
132 S. Ct. 1510, 1515-16 (2012); Beard v. Banks, 548 U.S. 521, 528 (2006); Overton
v. Bazzetta, 539 U.S. 126, 131-32 (2003) (plurality opinion); Van den Bosch v.

Page 28 of 40

Raemisch, 658 F.3d 778, 786 (7th Cir. 2011).7 As such, the Court finds the
defendants’ prohibition of NGE material is rationally related to a legitimate
security interest.8
Second, Beamon had various alternative means of exercising his
religion. Although he is prohibited from possessing religious material related
to NGE, defendants point to several general activities offered for inmates to
exercise their religion, including: (1) congregate URG services and study
groups; (2) request for religious diet accommodation; (3) individual study;
(4) personal meditation, prayer, and/or other spiritual practices; (5)
utilization of religious books and/or property; (6) observance of religious
holidays in a URG service, study, or congregate meal; (7) individual religious
observances/rituals in their living quarters; (8) correspondence with fellow
believers; (9) pastoral visits; and (10) requesting to abstain from work or
program on religious days of observance. (DPFF ¶ 16). Thus, the Court finds
that at least some alternatives exist and that the second Turner factor weighs
in the defendants’ favor.

7

The Court notes that were it to examine the defendants’ justifications for
NGE bans under a more rigorous standard than Turner, the outcome here may
likely have been different. The Court has doubts whether the defendants’ few cited
incidents of NGE violence that occurred over twenty years ago in other parts of the
country should justify a blanket ban on NGE materials in Wisconsin prisons.
However, the Court is constrained to give deference to the opinions of prison
administrators as to how best operate their facilities.
8

Beamon argues that he should be allowed to engage in NGE activity
because “all the language I’ve used came from books I’ve ordered that the prison
approved and delivered to me during mail distribution within the prison.” (Docket
#25 at 7). He cites to Rios v. Lane, 812 F.2d 1032, 1038 (7th Cir. 1987), and argues that
this factor “prevents the prison from punishing expression that they previously
approved.” (Docket #25 at 7). Beamon may have a point, however, he did not allege
and was not allowed to proceed at the screening stage for a due process vagueness
claim. (See Docket #11).

Page 29 of 40

The third and fourth Turner factors ask whether accommodation of the
asserted constitutional right would have a negative impact on guards, other
inmates and the allocation of prison resources; and, whether obvious, easy
alternatives exist as evidence that the regulation is not reasonable. See Turner,
482 U.S. at 90. “[W]hen accommodation of an asserted right will have a
significant ‘ripple effect’ on fellow inmates or on prison staff, courts should
be particularly deferential to the informed discretion of corrections officials.”
Turner, 482 U.S. at 90. Here, the defendants maintain that allowing NGE
materials would have a negative impact on the safety of other inmates and
guards. Specifically, defendants maintain that allowing inmates to openly
align themselves with racial supremacist groups would dramatically increase
the chances of conflict and violence between inmates of different races. (DPFF
¶ 42). Additionally, because the majority of staff at RGCI is Caucasian,
defendants maintain that allowing racist and inflammatory messages would
increase the chance of disruption in the institution and acts of violence
against staff (DPFF ¶ 43).
In sum, the Court finds that, based upon the undisputed material
facts, and after applying the Turner factors, Beamon has failed to demonstrate
that there is a genuine issue of material fact as to whether the policies at issue
in this case are reasonably related to the legitimate penological interests of
maintaining security and protecting staff and inmates. Accordingly, the
defendants are entitled to summary judgment as a matter of law on
Beamon’s free exercise claim.
3.2

First Amendment—Retaliation

The Court allowed Beamon to proceed on a retaliation claim against
Wilke, Dittmann, Wesner, Reyes, Tetzlaff, Smith, and Heft. Specially, Beamon
alleges that they harassed and intimidated him and spread the word that he
Page 30 of 40

was a Nation of Islam Five Percenter, in retaliation for practicing his faith.
Beamon also alleges that Wilke retaliated against him by writing a conduct
report after Beamon filed an inmate complaint regarding the opened letter.
The Court will begin its discussion with a general overview of First
Amendment law regarding retaliation, and will then address each retaliation
allegation separately.
Any “act taken in retaliation for the exercise of a constitutionally
protected right violates the Constitution.” DeWalt v. Carter, 224 F.3d 607, 618
(7th Cir. 2000) (citations omitted); see also Pearson v. Welborn, 471 F.3d 732, 738
(7th Cir. 2006) (holding same). Even conduct that otherwise does not violate
the Constitution can form the basis for a retaliation claim if that conduct is
done with an improper, retaliatory motive. See DeWalt, 224 F.3d at 618
(unconstitutional to transfer inmate for filing grievances); Babcock, 102 F.3d
at 275 (unconstitutional to place inmate in administrative detention for filing
grievances); Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996)
To establish a prima facie case of retaliation, an inmate must produce
evidence that: (1) he engaged in constitutionally protected speech; (2) he
suffered a deprivation likely to deter protected speech; and (3) his protected
speech was a motivating factor in the defendants' actions. Kidwell v.
Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012) (clarifying allocation of
evidentiary burdens at summary judgment in light of Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167 (2009)); Greene v. Doruff, 660 F.3d 975, 977 (7th Cir. 2011)
(same). If the inmate satisfies these elements, the burden shifts to the
defendants to rebut the causal inference with evidence showing that they
would have taken the same action even without any retaliatory motive. See
Kidwell, 679 F.3d at 965; Greene, 660 F.3d at 979.

Page 31 of 40

3.2.1 Retaliation for Religion
Beamon vaguely asserts that the defendants intimidated and harassed
him “because of his religion.” (Docket #1 at 5). He maintains that Wilke has
a personal prejudice against Black Muslims and that Wilke has explicitly
expressed these feelings. (Docket #25 at 3). Quite candidly, it is not entirely
clear to the Court which specific acts of “practicing his faith” are the basis for
Beamon’s retaliation claims. However, it appears that Beamon alleges
retaliation for using his religious language in the letters for which he received
conduct reports. (See Docket #25 at 4 (“my letter is/was constitutionally
protected activity of the 1st Amendment”)).
The defendants maintain that Beamon’s claim must fail at the outset
because his activity is not protected by the First Amendment because the
NGE regulations are related to a legitimate penological interest. (Docket #45
at 25). In doing so, the defendants appear to argue that because certain
regulations are permissible under the Turner test, Beamon’s expression of his
religion is not First Amendment protected activity. The Court disagrees.
Certainly, Beamon has a First Amendment right to be Muslim and practice
his faith. See Tarpley, F.3d at 898.
Beamon’s retaliation claims fail, however, to prove that his religious
activity was the motivating cause for the defendants’ actions. Beamon
submits conclusory arguments that, because the defendants have a personal
prejudice against Black Muslims, they seek to punish him. (See Docket #25 at
4). The Court recognizes that direct evidence of retaliation is difficult to
obtain. However, at the summary judgment stage, a prisoner must submit
evidence that his grievances were “a substantial or motivating factor in the
prison official's conduct. Brookins v. Kolb, 990 F.2d 308, 315 (7th Cir. 1993).
Conclusory and speculative allegations of retaliation are simply insufficient
Page 32 of 40

to overcome summary judgment. See Springer v. Durflinger, 518 F.3d 479, 484
(7th Cir. 2008) (speculation concerning retaliatory motives cannot create a
genuine issue of material fact); Borcky v. Maytag Corp., 248 F.3d 691, 695 (7th
Cir. 2001).
In light of the foregoing, the Court finds that no reasonable juror
could find a causal connection between Beamon’s First Amendment activity
and the deprivations he suffered. As such, the Court will grant the
defendants’ motion for summary judgment as to the general retaliation
claims against defendants Wilke, Dittmann, Wesner, Reyes, Tetzlaff, Smith,
and Heft.
3.2.2

Retaliation for Filing Inmate Complaint

Under the First Amendment, inmates have a constitutional right to
file grievances and lawsuits without the threat of retaliation. Hoskins v.
Lenear, 395 F.3d 372, 375 (7th Cir. 2005); Babcock v. White, 102 F.3d 267, 274–75
(7th Cir. 1996). Here, Beamon has satisfied the first element. Defendants
appropriately concede that Beamon has the right under the First Amendment
to file his own truthful grievances and federal lawsuits. See Hasan v. U.S.
Dep't of Labor, 400 F.3d 1001, 1005 (7th Cir. 2005).
As to the second prong, the Seventh Circuit noted in Bart v. Telford,
677 F.2d 622 (7th Cir. 1982) that “[i]t would trivialize the First Amendment
to hold that harassment for exercising the right of free speech was always
actionable no matter how unlikely to deter a person of ordinary firmness
from that exercise.” Id. at 625. Here, the Court is satisfied that the alleged
retaliatory actions—Wilke filing conduct reports that resulted in disciplinary
segregation—is a deprivation that would likely deter protected speech. The
Court notes, however, that Beamon continued to file grievances during this
time period, fifteen grievances in a relatively short time.
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Third, Beamon must show a causal connection between his First
Amendment activity and the deprivations he suffered. Hence, the Court will
analyze whether Beamon’s constitutionally protected conduct was a
motivating factor in Wilke’s alleged retaliatory action. See Greene, 660 F.3d at
979. The Court again recognizes that direct evidence of retaliation is difficult
to obtain. Defendants rarely admit that they want to retaliate against
someone. It is, however, well established that a plaintiff cannot establish
retaliation simply by showing that the protected activity happened before the
defendants took their action, see, e.g., Sitar v. Indiana Dept. of Transp., 344 F.3d
720, 728 (7th Cir. 2003) (noting that one event’s following closely upon
another is not dispositive in proving that the first act caused the second); see
also Stone v. City of Indianapolis Public Utils. Div., 281 F.3d 640, 642 (7th Cir.
2002) (‘’mere temporal proximity between the filing of the charge of
discrimination and the action alleged to have been taken in retaliation for
that filing will rarely be sufficient in and of itself to create a triable issue’‘).
The defendants argue that Beamon’s retaliation claim must fail
because there is no evidence that Wilke had any knowledge of the
complaints. Indeed, “protected conduct cannot be proven to motivate
retaliation if there is no evidence that the defendants knew of the protected
activity.” Morfin v. City of E. Chi., 349 F.3d 989, 1005 (7th Cir. 2003) (internal
quotation marks and brackets omitted) (quoting Stagman v. Ryan, 176 F.3d
986, 1000–01 (7th Cir. 1999)); accord Tomanovich v. City of Indianapolis, 457 F.3d
656, 668 (7th Cir. 2006). On July 10, 2013, Smith received the inmate
complaint from Beamon. (DPFF ¶ 132). That same day, Wilke completed the
conduct report based on Beamon’s second letter showing NGE allegiance.
(DPFF ¶ 101). Smith maintains that she never informed Wilke that the
complaint had been filed. (DPFF ¶¶ 132, 135). Based on the same day filing,
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defendants argue that it is not even clear whether the conduct report or the
inmate complaint was filed first, and further argue that because Wilke did
not know about the complaint, it could not have been a motivating factor in
issuing the conduct report. (Docket #45 at 26).
In contrast, Beamon maintains that Wilke issued the conduct report
in retaliation for filing his inmate complaint. In his affidavit, he submits that
Wilke told Beamon he let him “slide the first time [he] tried to send [the
letter] out but when I found out you wrote me up about not letting you send
the stamps out and then when you tried to re-mail the letter again I figured
I’d write you up since you wrote me up.” (Docket #26-1 at 40). Beamon
argues this statement establishes that Beamon’s protected activity was the
motivating factor in Wilke issuing him a conduct report.
Although somewhat of a close question, when taking all facts in the
light most favorable to Beamon, the Court finds that he has met his burden
to establish a prima facie claim for retaliation. The Court is skeptical whether
the evidence shows that Wilke knew of the inmate complaint filed against
him when he issued Beamon the conduct report; indeed, both were issued on
the same day and it is not even clear which incident occurred first. However,
if Beamon’s allegations are true, and Wilke told Beamon he issued the
conduct report because of the inmate complaint, a reasonable jury may find
a prima facie case of retaliation. As such, the burden switches to the
defendants to provide evidence showing that they would have taken the
same action even without any retaliatory motive. See Kidwell, 679 F.3d at 965.
Beamon argues Wilke’s actions show retaliation because Wilke did not
write him a conduct report the first time he wrote the letter; Wilke only
issued a report after knowledge of the complaint filed against him. (Docket
#25 at 6). The Court, however, is unconvinced. The undisputed facts show
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that Beamon’s letter contained clear messages and ideology and that
spreading literature or ideology of NGE is a violation of Wis. Admin. Code
§ DOC 303.20. (DPFF ¶ 102). The fact that Wilke did not issue a conduct
report in the first instance is insufficient to suggest retaliation because there
is no evidence that Beamon was aware of the NGE material at that time.
Additionally, Beamon was in restrictive housing at the time for previous
violations related to NGE activity (DPFF ¶ 95), and it is, therefore, reasonable
to infer that Wilke would discipline him for the additional violations.
In sum, the Court concludes that Beamon has failed to show that
Wilke would not have taken the same action absent a retaliatory motive.
Beamon may well feel he was treated unfairly, but the First Amendment does
not provide a remedy for any and all unfair treatment. See Shaw v. Metzen,
No. 13-CV-847-WMC, 2015 WL 5123677, at *9 (W.D. Wis. Sept. 1, 2015). As
such, the Court will grant the defendants’ motion for summary judgment as
to the retaliation claim against defendant Wilke for filing an inmate
complaint.
3.3

Fourteenth Amendment—Procedural Due Process

The Court allowed Beamon to proceed on a procedural due process
claim against defendant John Doe or Jane Doe, who was sued as Deputy
Warden, and Tetzlaff. (Docket #11). Defendants argue that Beamon’s due
process claim must fail because: (1) he failed to exhaust his administrative
remedies on the claim; and (2) the claims fail on the merits because Beamon
received all the process he was due. As discussed below, the Court finds that
Beamon failed to exhaust his remedies as to his due process case and, as such,
the Court will grant the defendants’ motion for summary judgment on this
claim.

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The Prison Litigation Reform Act mandates that an inmate exhaust
“such administrative remedies as are available” before bringing suit to
challenge prison conditions. 42 U.S.C. § 1997e(a). Courts have adopted a
“strict compliance approach” to the exhaustion requirement. See Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006); Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002) (“To exhaust remedies, a prisoner must file complaints
and appeals in the place, and at the time, the prison's administrative rules
require.”). “Proper exhaustion demands compliance with an agency's
deadlines and other critical procedural rules because no adjudicative system
can function effectively without imposing some orderly structure on the
course of its proceedings.” Woodford v. Ngo, 126 S. Ct. 2378, 2386 (2006).
In Wisconsin prisons, the Inmate Complaint Review System (“ICRS”)
is the administrative remedy available to inmates with complaints about
prison conditions or the actions of prison officials. Wis. Admin. Code § DOC
310.01(2)(a). The Wisconsin Administrative Code specifically provides that
before an inmate may commence a civil action, the inmate shall exhaust all
administrative remedies that the DOC has promulgated by rule. Wis. Admin.
Code § DOC 310.05. The ICRS is available for inmates to “raise significant
issues regarding rules, living conditions, staff actions affecting institution
environment, and civil rights complaints.” Wis. Admin. Code § DOC
310.08(1). In order to use the ICRS, an inmate must file a complaint with the
inmate complaint examiner at his or her institution within fourteen days after
the occurrence giving rise to the complaint. Wis. Admin. Code §§ DOC
310.07(1) & 310.09(6). Additionally, inmates challenging procedural errors in
conduct reports may challenge them in a direct appeal to the warden. Wis.
Admin. Code § DOC 303.76(7).

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The defendants maintain that Beamon never exhausted his due
process claim because neither his appeal to the warden nor any of his inmate
complaints ever raised the issue of not being able to confront evidence.
(Docket #45 at 28). Beamon makes no attempt to argue that he did in fact
exhaust his administrative remedies. (See generally Docket #25, #59). In his
own words, Beamon does not even appear to be alleging a procedural due
process violation, stating, “I raise 1st Amendment claims about: (1) Religion;
(2) Retaliation; (3) Protected Speech.” (Docket #59 at 2). Defendants readily
acknowledge that Beamon filed fifteen offender complaints with the ICE
relating to the issues that are the subject matter of this lawsuit (DPFF ¶ 130),
however, none of these complaints raise the issue of procedural due process.
As such, the Court is obliged to grant the defendants’ motion for summary
judgment as to the due process claims for the failure to exhaust
administrative remedies.
4.

RECONSIDERATION
Finally, Beamon seeks the Court’s reconsideration of Judge Randa’s

previous denial of his motion for summary judgment. (Docket #69). Beamon
seeks reconsideration because he argues that he submitted “evidence to
support a ruling that would grant him a trial, at the least. (Docket #69 at 1)
(emphasis added). Beamon further argues that Judge Randa erred in failing
to consider his admissible affidavit evidence.
Motions for reconsideration “serve a limited function: to correct
manifest errors of law or fact or to present newly discovered evidence.” Keene
Corp. v. Int’l Fidelity Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1982), aff’d, 736
F.2d 388 (7th Cir. 1984); Caisse Nationale de Credit Agricole v. CBI Indus., Inc.,
90 F.3d 1264, 1269 (7th Cir. 1996); see also Rothwell Cotton Co. v. Rosenthal Co.,
827 F.2d 246, 251 (7th Cir. 1987) (quoting language in Keene). A party moving
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for reconsideration “must demonstrate that newly discovered facts exist that
require consideration, that there has been an intervening change in the law,
or that the court has overlooked and thus failed to consider an aspect of the
law presented by the [moving party] which, if left unredressed, would result
in a clear error or cause manifest injustice.” Metro. Entm’t Co., Inc. v. Koplik,
25 F. Supp. 2d 367, 368 (D. Conn. 1998) (citing Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
The Court will deny Beamon’s motion for reconsideration. As to his
first argument, Beamon misunderstands the significance of a denial for
summary judgment. Judge Randa’s order did not preclude a trial as Beamon
suggests. On the contrary, the denial of Beamon’s motion for summary
judgment simply concluded that he had failed to submit evidence that
established he was entitled to judgment as a matter of law. As to his second
argument, Beamon’s argument is without merit. As noted above, the Court
has gone to great lengths to consider Beamon’s submitted evidence in the
form of lengthy affidavits. Beamon failed to respond to any of the defendants’
150 proposed findings of fact (see Docket #47), however, the Court has made
its best effort to acknowledge disputed factual issues based on Beamon’s
evidence. As discussed above, the Court finds that, when considering all the
evidence, the undisputed facts entitle the defendants to summary judgment
on all claims. As such, the Court will deny Beamon’s motion for
reconsideration.

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5.

CONCLUSION9
In sum, the Court will grant summary judgment for the defendants

and finds that: (1) Beamon fails to prove a free exercise violation on the
merits; (2) Beamon fails to prove both retaliation claims on the merits; and (3)
Beamon’s procedural due process claim fails because he failed to exhaust his
administrative remedies as to that claim. Additionally, the Court will deny
Beamon’s motion for reconsideration because summary judgment is
appropriate for the defendants. As such, no claims remain, and the Court will
dismiss this action in its entirety.
Accordingly,
IT IS ORDERED that the defendants’ motion for summary judgment
(Docket #44) be and the same is hereby GRANTED, as more fully described
in detail above, and that this action be and the same is hereby DISMISSED;
and
IT IS ORDERED that Beamon’s motion for reconsideration (Docket
#69) be and the same is hereby DENIED.
The Clerk is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 14th day of September, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge
9

The Court need not address the defendants’ remaining arguments related
to personal involvement and qualified immunity because it finds no constitutional
violations as a matter of law. See Estate of Phillips v. City of Milwaukee, 123 F.3d 586,
597 (7th Cir. 1997) (finding that when a court determines in a § 1983 case that no
constitutional violation occurred, it is unnecessary to consider whether defendants
are entitled to qualified immunity).

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