Kafi v. Eckstein et al

Filing 46

DECISION AND ORDER granting 22 Motion for Summary Judgment. The Clerk of Court shall enter judgment. Signed by Judge Lynn Adelman on 9/29/2017. (cc: all counsel, plaintiff) (gc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAMALI MUDINA KAFI,
Plaintiff,
v.

Case No. 15-CV-334

SCOTT ECKSTEIN,
Defendant.
______________________________________________________________________
DECISION AND ORDER
Plaintiff, a Wisconsin state prisoner proceeding pro se and in forma pauperis,
brings this action under 42 U.S.C. § 1983 alleging that defendant, a state correctional
official, retaliated against him for exercising his rights under the First Amendment.
Defendant moves for summary judgment.
I. BACKGROUND
I present the following facts in the light most favorable to plaintiff, as the nonmoving party. Plaintiff has been in custody at Redgranite Correctional Institution since
September 2013, when he was transferred from Green Bay Correctional Institution. At
all relevant times, defendant was deputy warden at Redgranite.
In April 2013, while plaintiff was still in custody at Green Bay, a civilian advocate
named Peg Swan wrote to him on behalf of her organization, Forum for Understanding
Prisons (FFUP), and asked if he was interested in helping to bring a class action lawsuit
against officials at Waupun Correctional Institution on behalf of inmates housed in
segregation there. Plaintiff agreed to help.
In May 2014, Swan told plaintiff that she had brought FFUP’s concerns about the
conditions in Waupun’s segregation unit to the attention of an investigative journalist

who had expressed interest in publishing a story on the issue. Plaintiff agreed to
summarize accounts of inmates’ treatment at Waupun that he had received.
Between July 20, 2014, and July 22, 2014, the journalist, Bill Lueders, published
a series of articles about allegations of physical and psychological abuse by correctional
officers against inmates in Waupun’s segregation unit dating back to 2011. Lueders
disclosed sources for the allegations, including letters from inmates to Swan, and
quoted her throughout his articles. As part of the series, he also profiled her and FFUP.
On August 14, 2014, Swan received a letter from the Wisconsin Department of
Corrections (DOC) suspending her visiting privileges pending an investigation into
alleged violations of a DOC executive directive on the proper procedure for surveying
inmates and a DOC rule prohibiting her from charging inmates for legal services or
supplies. Around that time, defendant started investigating plaintiff’s activities with FFUP
and a group known as the “Legal Assistance Network,” his relationship with Swan and
other inmates associated with those organizations, and whether he or others were
compensated for providing legal assistance to other inmates.
On September 8, 2014, defendant ordered that plaintiff’s personal belongings
and documents be confiscated from his cell and searched and that he be placed in
temporary lockup (or “TLU”)—”a temporary non-punitive segregated status,” Wis.
Admin. Code DOC § 303.20(22)1—pending an investigation into whether he had
charged other inmates for legal assistance in violation of a DOC rule prohibiting
“enterprises and fraud.” See Docket No. 26-1, at 1 (citing Wis. Admin. Code DOC
§ 303.32). Notice of the order states that plaintiff was placed in TLU because defendant
1

Unless otherwise noted, citations are to the 2014 version of the Wisconsin
Administrative Code. Many DOC Code provisions have since been renumbered.
2

thought he might “impede a pending investigation” or that allowing him to remain in
general population might “be disruptive to the operation of the institution.” Docket No.
26-1, at 1; see also Wis. Admin. Code DOC § 303.11(4)(a), (b)).
On October 1, 2014, defendant issued a conduct report charging plaintiff with
(1) ”group resistance and petitions,” (2) ”unauthorized use of the mail,” (3) ”unauthorized
transfer of property,” and (4) ”unauthorized forms of communication.” See Docket No.
26-2 (citing Wis. Admin. Code DOC §§ 303.20, .30, .40, .48). The report stated that
plaintiff had “been identified in a leadership role within a non-sanctioned group of
inmates and a civilian (Mrs. Peggy Swan) who refer to themselves as the ‘Legal
Assistance Network,’”2 described how Swan directed inmates seeking legal assistance
to complete an application that appeared to be from FFUP and then sent completed
applications to plaintiff for approval or denial, quoted correspondence suggesting that
plaintiff had “a leadership and advisory role within the FFUP” and was “attempting to
recruit other inmates,” and claimed that plaintiff “intentionally utilized Mrs. Swan as a
conduit to pass mail regarding the FFUP between inmates in the Wisconsin prison
system. . . . with the intention of circumventing security staff from monitoring any and all
co[r]respondence[] involving the FFUP.” Id.
On October 23, 2014, plaintiff appeared at a major (“full due process”)
disciplinary hearing. See Docket No. 26-3. He pleaded not guilty to each of the charges.
The hearing officer found it more likely than not that plaintiff participated in FFUP’s
“organizational structure” without written permission from the warden, as required by
2

In his conduct report, defendant seems to conflate FFUP, Swan’s external non-profit,
with the Legal Assistance Network, an unsanctioned prison group that worked with
FFUP or for which FFUP may have acted as a front, in certain respects. He clarifies the
distinction between these groups in his reply brief.
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DOC rules, and that he provided legal advice to other inmates by mail through Swan, in
circumvention of DOC rules. See id. The hearing officer found plaintiff guilty of “group
resistance and petitions” and “unauthorized use of the mail” (he dismissed the other two
charges as redundant) and sentenced him to 120 days in “disciplinary separation.”
Plaintiff appealed, and on November 12, 2014, Redgranite’s warden reversed the
hearing officer’s decision stating only that the evidence did not support the charges.
Plaintiff was released from disciplinary separation, the conduct report was expunged
from his record, and he received back pay for the more than two months he was unable
to work in the prison laundry because he was in TLU and disciplinary separation.
II. DISCUSSION
A party is entitled to summary judgment if it shows that there is no genuine
dispute as to any material fact and it is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). To survive a motion for summary judgment, a non-moving party must
show that sufficient evidence exists to allow a jury to return a verdict in its favor.
Brummett v. Sinclair Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005).
To prevail on a First Amendment retaliation claim, a plaintiff must show that
“(1) he engaged in activity protected by the First Amendment,” “(2) he suffered a
deprivation that would likely deter First Amendment activity in the future,” and “(3) a
causal connection between the two.” Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir.
2010) (quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)).
Plaintiff argues that defendant placed in him TLU with limited access to his
personal, legal, and religious property and issued a false conduct report because of his
“jailhouse lawyering,” contributions to Lueders’s articles about Waupun, and

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correspondence with Swan. Defendant argues that he conducted a reasonable
investigation into credible allegations of misconduct and charged plaintiff with rules
violations consistent with and supported by his findings.
A. Protected Activity
Plaintiff has shown that at least “some of his conduct was protected by the First
Amendment.” See Harris v. Walls, 604 F. App’x 518, 521 (7th Cir. 2015). In general, “a
prison inmate retains those First Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological objectives of the corrections
system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). Accordingly, plaintiff has the right
to help other inmates with their legal issues, see Johnson v. Avery, 393 U.S. 483, 487
(1969), and communicate with “persons outside of prison,” including journalists, see
Pell, 417 U.S. at 828, subject to restrictions “reasonably related to legitimate penological
interests,” Shaw v. Murphy, 532 U.S. 223, 225 (2001) (quoting Turner v. Safley, 482
U.S. 78, 89 (1987)).
B. Deterrent Deprivation
Plaintiff has also shown that he suffered deprivations that could deter future First
Amendment activity. See Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000).
Defendant placed plaintiff in TLU for weeks, where he had limited access to personal,
legal, and religious property. See Herron v. Harrison, 203 F.3d 410, 416 (6th Cir. 2000).
He then filed “major misconduct charge[s]” against plaintiff, subjecting him to “the risk of
significant sanctions.” Brown v. Crowley, 312 F.3d 782, 789 (6th Cir. 2002). Indeed,
plaintiff spent nearly three weeks in disciplinary separation after the hearing officer
found him guilty on two of those charges before the warden dismissed them.

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C. Causal Connection
The issue, then, is whether a reasonable jury could find a causal link between
plaintiff’s protected activity and defendant’s adverse conduct. In First Amendment
cases, “the burden of proof relating to causation is divided between the parties.” Mays v.
Springborn, 719 F.3d 631, 634 (7th Cir. 2013) (quoting Greene v. Doruff, 660 F.3d 975,
980 (7th Cir. 2011)). First, the plaintiff must show “that his . . . protected activity was a
motivating factor in the defendant’s retaliatory action,” Spiegla v. Hull, 371 F.3d 928,
942 (7th Cir. 2004), meaning that it was “a factor that weigh[ed] in the defendant’s
decision to take the action complained of” or that it was “a consideration present to his
mind that favor[ed]” or “pushe[d] him toward[] the action.” Hasan v. U.S. Dep’t of Labor,
400 F.3d 1001, 1006 (7th Cir. 2005). “The defendant can rebut . . . by showing that . . .
the harm would have occurred anyway.” Greene, 660 F.3d at 980.
1. Jailhouse Lawyering
Plaintiff speculates that defendant was motivated by his general jailhouse
lawyering, but “mere speculation or conjecture will not defeat a summary judgment
motion.” Rockwell Automation, Inc. v. Nat’l Union Fire Ins. Co., 544 F.3d 752, 757 (7th
Cir. 2008) (quoting McCoy v. Harrison, 341 F.3d 600, 604 (7th Cir. 2003)). Plaintiff’s
only evidence is that he “has been a litigious inmate” for years, “he has had a reputation
for assisting inmates with legal matters” throughout his time in prison, and his “legal
activities have been well known to [Redgranite] and [DOC] staff.” Docket No. 18, ¶ 7.
Even if this implies that defendant knew about plaintiff’s legal activities, it does not
suggest that he cared about them or that they pushed him to act.

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2. Contributions to Lueders’s Articles
Plaintiff also speculates that defendant was motivated by his contributions to
Lueders’s articles about alleged abuse at Waupun. But, nothing in the record suggests
that defendant knew or cared about those articles. And, even assuming he did, nothing
in the record suggests that he knew or cared that plaintiff contributed to them.
Plaintiff further speculates that Lueders’s articles caused the DOC to investigate
Swan (and revoke her visiting privileges), which caused defendant to investigate plaintiff
(and punish him). In other words, plaintiff argues that the DOC’s investigation of Swan
was retaliatory, so defendant’s related investigation of him was also retaliatory. While
the record does show that DOC revoked Swan’s visiting privileges and started
investigating her a few weeks after Lueders’s articles were published, mere
“[s]uspicious timing” or “temporal proximity” is rarely sufficient to establish causation for
the purpose of demonstrating retaliation. Andonissamy v. Hewlett-Packard Co., 547
F.3d 841, 851 (7th Cir. 2008) (alteration in original) (quoting Tomanovich v. City of
Indianapolis, 457 F.3d 656, 665 (7th Cir. 2006); Wyninger v. New Venture Gear, Inc.,
361 F.3d 965, 981 (7th Cir. 2004)).
Also, even if the DOC’s investigation of Swan was retaliatory, the motive of
whoever instigated it cannot be imputed to defendant to show that his separate, if
related, investigation of plaintiff was also retaliatory. Cf. Reichle v. Howards, 132 S. Ct.
2088, 2096 (2012) (citing Hartman v. Moore, 547 U.S. 250, 262 (2006)) (noting that “the
causal connection in retaliatory prosecution cases is attenuated because those cases
necessarily involve the animus of one person and the injurious action of another”).
“Section 1983 creates a cause of action based on personal liability and predicated upon

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fault,” Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017) (quoting Wolf-Lillie
v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)), so “each Government official . . . is only
liable for his . . . own misconduct,” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).
3. Correspondence with Swan
Finally, plaintiff argues that defendant was motivated by his association and
correspondence with Swan. As a general matter, this is undisputed. Defendant
concedes that a primary focus of his investigation into plaintiff’s alleged misconduct was
the nature of his relationship with Swan and that he scrutinized plaintiff’s
correspondence. However, plaintiff still must show that defendant was improperly
motivated by his protected activity, and nothing in the record suggests that he was.
Indeed, the record shows that defendant was motivated not by plaintiff’s exercise of his
right to communicate with Swan but by his belief that plaintiff was exceeding that right in
ways that threatened legitimate penological interests of institutional security and order.
4. Defendant’s Rebuttal
Even if defendant did act from an improper motive of some sort, “he is not liable
despite his impure heart” if he had a legitimate and compelling reason for acting that
“would have caused him to take the same action even if he had not harbored the
improper motive.” Hasan, 400 F.3d at 1006.
The record shows that defendant initially investigated whether plaintiff was
compensated for providing legal assistance to other inmates and whether he was
soliciting other inmates to join a non-sanctioned group. DOC rules clearly prohibit
“[c]ompensation of any kind for . . . inmate to inmate legal services,” businesses and
enterprises “whether or not for profit,” and participation “in any group activity which is

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not approved by the warden.” Wis. Admin. Code DOC §§ 303.20(1), 303.32,
309.155(5), 309.365(2). Plaintiff does not dispute that these rules, to the extent they
restrict inmates’ First Amendment rights, are reasonably related to legitimate
penological interests of institutional security and order. See Turner, 482 U.S. at 89.
The record also reflects that defendant placed plaintiff in TLU because he
believed that plaintiff’s continued presence in general population would impede the
investigation or otherwise be disruptive to prison operations. This conduct is expressly
permitted by DOC rules, see Wis. Admin. Code DOC § 303.11, and plaintiff does not
dispute that it, in general, this practice furthers legitimate penological interests. Plaintiff
argues that he could not have impeded the investigation because he did not know about
it until after he was placed in TLU. But, the record shows that an investigator
interviewed plaintiff about his alleged misconduct the day after he was placed in TLU,
which suggests that defendant did not place him there until the investigation warranted
interviewing him about it (thereby disclosing the investigation to him).
The record shows that defendant issued misconduct charges that reasonably
reflected the findings of his investigation. Though he seems not to have found evidence
of improper compensation, he found correspondence in which Swan repeatedly referred
to an in-prison legal assistance network and implied that plaintiff influenced (if not
outright decided) whether and which of his fellow inmates received assistance from
FFUP. He found correspondence in which another inmate expressed interest in “joining
in [plaintiff’s] cause with FFUP.” And, he found what he believed to be a pattern of
plaintiff communicating with other inmates about group activities through Swan in order
to avoid detection by security staff, who normally only monitored inmate-to-inmate mail.

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Plaintiff cannot meaningfully dispute that unsanctioned group activities, inmate-led
groups, one inmate controlling other inmates’ access to a scarce resource like outside
legal assistance, and covert communications present institutional risks and that prison
officials can reasonably restrict such activities in light of legitimate penological interests.
Plaintiff disputes the accuracy of defendant’s conclusions—arguing, for example,
that he never held a formal leadership role in either FFUP or the Legal Assistance
Network and that he never used Swan as an intermediary to send covert mail to other
inmates—but he misses the point. Whether defendant arrived at accurate conclusions
based on the information that he had, the record shows that he acted on reasonable
inferences drawn from that information and was motivated by legitimate penological
interests, rather than or regardless of any retaliatory animus he may have harbored.
III. CONCLUSION
For the reasons provided, IT IS ORDERED that defendant’s motion for summary
judgment (Docket No. 22) is GRANTED. The Clerk of Court shall enter judgment.
The court expects the parties to closely review all applicable rules and determine
what, if any, further action is appropriate in this case.
Dated at Milwaukee, Wisconsin, this 29th day of September, 2017.

/s Lynn Adelman
LYNN ADELMAN
District Judge

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