Beamon v. Pollard et al

Filing 73

ORDER signed by Magistrate Judge William E Duffin on 1/30/2017 GRANTING 35 Defendants Motion for Summary Judgment on Plaintiffs First and Fourteenth Amendment claims; DENYING 45 Plaintiffs Motion for Summary Judgment; DENYING AS MOOT 53 Plaintiffs Motion to Appoint Counsel; and GRANTING 62 Defendants Motion for Leave to File Supplemental Proposed Findings of Fact. Judgment to be entered. (cc: all counsel - via US Mail to Plaintiff) (lz)

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

Case No. 15-CV-560

WILLIAM POLLARD, et al.,
Defendants.
ORDER
Earnest Beamon, a Wisconsin state prisoner who is representing himself, filed a
complaint under 42 U.S.C. § 1983 alleging that the defendants violated his civil rights at
the Waupun Correctional Institution (“Waupun”). Judge Rudolph Randa, who was
assigned to the case at the time, screened Beamon’s complaint and allowed him to
proceed with First and Fourteenth Amendment claims against William Pollard, Tony
Meli, John O’Donovan, and Jason Rosenthal. (ECF No. 12.) The case was subsequently
reassigned to this court upon the consent of the parties.
The parties have filed cross-motions for summary judgment. (ECF Nos. 35, 45.)
Beamon also filed a motion to appoint counsel. (ECF No. 53.) And the defendants also

filed a motion for leave to file additional supplemental proposed findings of fact. (ECF
No. 62.) The motions have been fully briefed and are ready for resolution.
THE DEFENDANTS’ MOTION FOR LEAVE TO FILE
SUPPLEMENTAL PROPOSED FINDINGS OF FACTS
On September 30, 2016, the defendants filed a motion for leave to file
supplemental proposed findings of fact. (ECF No. 62.) They explain that Beamon filed a
brief in “response” (ECF No. 58) to their reply brief in support of their motion for
summary judgment. (ECF No. 62 at 1.) Beamon’s “response” discusses correspondence
between him and Kelli R. Willard West, the religious practices coordinator for the
Department of Corrections. (Id.) The defendants ask to supplement their proposed
findings of fact with information from West. (Id. at 2.) Beamon opposes the motion,
stating that there is nothing new about his correspondence with West. (ECF No. 70.)
The local rules of this district provide that briefing on summary judgment
motions consists of one brief in support of the motion, one brief in response, and one
brief in reply. See Civ. L. R. 56 (E.D. Wis.). A party that seeks to file a “response” to a
reply brief, i.e., a sur-reply, must request permission from the court. See id. Beamon did
not request permission to file his sur-reply. Nevertheless, the court will consider the
sur-reply. As a result, it will also consider the defendants’ supplemental proposed
findings of fact. Accordingly, the court will grant the defendants’ motion for leave to
file supplemental proposed findings of fact.

2

RELEVANT FACTS
The court primarily takes the facts from the defendants’ reply to the plaintiff’s
response to the defendants’ proposed findings of fact (ECF No. 55) and from Beamon’s
sworn complaint (ECF No. 1), which the court construes as an affidavit at the summary
judgment stage. Ford v. Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996). Where in disputing
the defendants’ proposed findings of fact Beamon fails to cite evidentiary material, the
fact is deemed admitted for purposes of summary judgment. See Civ. L. R. 56(b)(2)(B)
and (b)(4) (E.D. Wis.).
Beamon’s “proposed findings of fact” (ECF No. 47) does not actually state, or
propose, any facts. Instead, it is a list of the evidence he contends supports his motion
for summary judgment, including Beamon’s “statement” (ECF No. 47-1 at 7-10), three of
his own affidavits (id. at 12-13, 38-49, 61-64), the affidavit of Sherry Thompson
(Beamon’s sister) (id. at 14-15), and the affidavit of Ager Nell Beamon (Beamon’s
mother) (id. at 16-17). Beamon also provides two more of his own affidavits (ECF Nos.
57, 67), three of his own sworn declarations (ECF Nos. 50, 68, 72), the sworn declaration
of fellow inmate Kajuan Barksdale (ECF No. 51), and the affidavit of fellow inmate
Elbert Compton (ECF No. 52). The court cites directly to these documents where used.
Waupun Correctional Institution is a maximum-security institution located in
Waupun, Wisconsin. (ECF No. 55, ¶ 2.) The defendants were staff members at Waupun
at all times relevant. (Id., ¶¶ 3-10.) William Pollard was the Warden (id., ¶ 4), Anthony

3

Meli was the Security Director (id. ¶ 6), Jason Rosenthal was a Correctional Officer (id.,
¶ 9), and John O’Donovan was a Captain (id., ¶ 3).
Cynthia Radtke (not a defendant) is employed at Waupun as a Supervising
Officer 2 (Captain). (Id., ¶ 11.)

Radtke also served as the Security Threat Groups

Coordinator at Waupun. (Id., ¶ 12.) A security threat group is a group of individuals
which threatens, intimidates, coerces or harasses others, or engages in activities which
violate or encourage the violation of statutes, administrative rules, departmental
policies or institution procedures. (Id., ¶ 16.)

As the Security Threat Groups

Coordinator, Radtke is responsible for tracking disruptive groups and their members in
the institution and documenting their activities, reviewing incoming and outgoing mail
and property for gang-related content, instructing Waupun staff regarding gang
identification and gang management strategies, and assessing ongoing gang activity
within the institution. (Id., ¶ 13.)
Inmates at Waupun are prohibited from engaging in any activity or behavior
associated with a security threat group. (Id., ¶ 19.) Security threat groups are prohibited
within correctional institutions because they threaten the safety of staff and other
inmates in ways which include assaults, riots, battery and intimidation, and
introduction of contraband into the institution. (Id., ¶ 20.) Security threat groups also
undermine prison authority by providing a support system for those taking an
oppositional stance to the prison administration. (Id., ¶ 21.)

4

In Radtke’s experience most security threat groups use religion to hide their
activity from security detection. (Id.) Inmates know that religious rights are protected,
so religion is widely used to hide security threat group activity and to express
affiliation. (Id., ¶ 24.)
The Nation of Gods and Earths (NGE), or the Five Percent Nation, broke away
from the Nation of Islam in the 1960s. (Id., ¶ 25.) 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. (Id., ¶ 26.) The Ten Percent are those who have subjugated most of the world.
(Id.) They include Caucasian people and others who create and spread the myth of a
nonexistent mystery God. (Id.) They are described as rich, blood suckers, and slave
makers of the poor. (Id.) The Eighty Five Percent are those who are subjugated and
deceived. (Id.) They are easily led in the wrong direction and are hard to lead in the
right direction. (Id.) Finally, the Five Percent are African Americans who have achieved
self-knowledge. (Id.) They know the African American man’s true nature and that God
is within the black man himself. (Id.) Followers believe that the black man is a living,
breathing God. (Id.) Male members of the group are referred to as “Gods” and female
members are referred to as “Earths.” (Id.) As a result, the group often refers to itself as
“The Nation of Gods and Earths.” (Id.) Members communicate through the “Supreme
Alphabet,” a system in which numbers correlate to certain letters. (Id., ¶ 35.)

5

NGE preaches that Caucasians were created using genetics of the devil, therefore
all white people are inherently evil. (Id., ¶ 28.) The Department of Corrections has
identified NGE as a security threat group. (Id., ¶ 30) As a result, inmates are prohibited
from possessing NGE literature and symbolism, showing affiliation or allegiance to
NGE, or engaging in activities related to NGE. (Id.) Inmates who violate this prohibition
are subject to discipline. (Id.)
Beamon is an African American inmate who says he follows the teachings of the
Nation of Islam and the Moorish Science Temple of America. (ECF No. 1, ¶ 11.)
Beamon’s “Religious Preference Form” identifies “Islam” as the faith he prefers. (ECF
No. 39-6.) The Department of Corrections does not consider Islam, the Nation of Islam,
or the Moorish Science Temple of America a security threat group. (See ECF No. 55, ¶
34.)
On October 2, 2013, the Department of Corrections transferred Beamon from
Redgranite Correctional Institution (“Redgranite”) to Waupun. (ECF No. 1, ¶ 11.) Upon
arriving at Waupun prison staff took Beamon’s personal belongings and screened them
for contraband, as is standard practice during inmate transfers. (Id.) According to
Beamon, he arrived straight from the segregation unit at Redgranite, where staff had
already been reviewing his belongings for months. (Id., ¶ 12; see also ECF No. 68, ¶ 3.)
Waupun staff completed their review of Beamon’s belongings in about two days and
returned the items to him on October 4, 2013. (ECF No. 1, ¶ 11.)

6

On November 12, 2013, Waupun Correctional Officer Beasley (not a defendant)
again took Beamon’s “property.” (Id.) Beamon does not explicitly describe what items
comprised his “property” but his other filings make reference to books and different
types of written materials, including poems, letters, notepads, and “sovereign
citizenship papers.” (Beamon “statement,” ECF No. 47-1 at 7; Beamon Dec., ECF No. 68,
¶¶ 4-5.) Beamon asked Beasley why she was taking his property. (ECF No. 1, ¶ 11.)
According to Beamon, Beasley responded that someone from Redgranite had called to
inform Security Director Meli that they had intercepted a letter from Beamon to a
Redgranite inmate using words such as “God” and “peace,” both of which are
associated with NGE. (Id.; ECF No. 68, ¶ 3.)
The next day, November 13, 2013, Beasley returned some of Beamon’s
“property.” (ECF No. 1, ¶ 11.) Although the record is not clear what items Beasley
returned, the defendants state that Beasley returned all materials “that were not related
to NGE.” (ECF No. 55, ¶ 37.) Beamon appears to dispute this fact, claiming that Beasley
gave him all of his property back, not withholding any. (See id.) However, he also states
that Beasley told him that she was still reviewing the rest of his “property.” (ECF No. 1,
¶ 11.)
A short time later Beamon filled out an interview request slip asking Meli about
the rest of his “property.” (ECF No. 47-1 at 7.) Radtke, as the Security Threat Groups
Coordinator, went to speak with Beamon. (ECF No. 1, ¶ 12.) Beamon told Radtke that

7

he was trying to better himself through reading and writing from the Nation of Islam
and that the items he possessed were not NGE-related material. (Id.) Radtke responded
to Beamon’s interview request by stating that “he had been returned all of the property
permitted by Officer Beasley.” (ECF No. 55, ¶ 37.)
Beamon contends that sometime in January 2014 Beasley returned more of the
“property” that she had taken in November 2013. (ECF No. 1, ¶ 12.) Again it is unclear
what Beasley returned. In some statements Beamon states that Beasley returned “all” of
his property. (ECF No. 67, ¶ 2; ECF No. 50, ¶ 2.) In another he states that Beasley
returned all of his books but that she threw away the “sovereign citizenship papers.”
(ECF No. 68, ¶¶ 4-5.) In yet another statement Beamon states that Beasley returned
everything that she had taken in November 2013 except “78 pieces of paper, 3 books,
one legal note pad, and one big green pad,” which were never returned. (ECF No. 47-1
at 7.)
Beamon also states that Beasley came to North Cell Hall at that time and “told
me what I could have and what I couldn’t and I destroyed it right their [sic] torn in
pieces and thrown in the trash.” (ECF No. 47-1 at 7.) Beamon further states that “CO
Beasley told me that I didn’t have to do it then but as long as I got rid of it [the
unapproved material] and I stated that I just wanted to get it out of the way and I don’t
have to worry about it anymore.” (Id.) Radtke similarly recalls that Beasley gave

8

Beamon a “warning” on NGE material but did not issue a conduct report at that time.
(ECF No. 55, ¶ 38.)
Several months later, on July 25, 2014, Waupun staff again searched Beamon’s
cell and, according to Beamon, took the “same papers” that Beasley had returned in
November 2013 and January 2014. (ECF No. 47-1 at 7.) Waupun staff sent the
documents to the Waupun Gang Task Force for review. (ECF No. 55, ¶44.) Correctional
Officer Jason Rosenthal, a member of the Gang Task Force, reviewed the materials. (Id.,
¶ 45.) He found eight letters, one of which was drafted by an inmate at Waupun
thanking Beamon for dropping “science” on him. (Id., ¶ 46.) Dropping science is a term
used to describe and reference NGE beliefs. (Id.) Rosenthal found several pages which
used the words “god,” “earth,” “Crackers,” the ”Devil,” “Supreme Mathematics,” and
“Albinos.” (Id., ¶¶ 45, 47, 49, 51-52.) Some of these documents expressed the view that
white people, i.e., “Crackers,” the “Devil,” and “Albinos,” are oppressing black people.
(Id., ¶ 47, 49-50, 52.)
Rosenthal also found a lined legal pad with writing by Beamon in which he
expressed a manifesto on his views of white people oppressing black people. (ECF No.
55, ¶ 47.) The writing also referenced NGE. (Id.) It also referred to “Crackers,” a term
used to refer to Caucasians and meant as a disrespectful and derogatory term. (Id.)
Rosenthal also reviewed several pages that included a poem in which Beamon
espoused that the white man is the devil and makes an argument that white people are

9

the reason that black people are incarcerated or dead due to violence. (Id., ¶ 50.) In
another poem Beamon stated that when he has a male child he will indoctrinate him to
be a member of the NGE. (Id.) Additional papers included definitions for “Supreme
Mathematics,” which is a fundamental lesson taught to all members of the NGE. (Id., ¶
51.)
Rosenthal also reviewed a green legal pad with a handwritten manifesto wherein
Beamon referred to “Albinos” as a reference to Jews and white people. (Id., ¶ 52.) The
writing included arguments for black superiority meshed with NGE beliefs. (Id.)
Beamon wrote about albino mutants, a teaching of NGE that white people are deemed a
lesser race. (Id.) Finally, Rosenthal found a page of white lined paper with handwritten
letters and numbers. (Id., ¶ 53.) The document included a coded cipher where each
letter of the alphabet corresponded to a different number. (Id.)
Based on the content of the literature, the manifesto, the letters, and the code
sheet, Rosenthal believed that Beamon was distributing NGE materials to other inmates
at Waupun. (Id., ¶ 54.) As a result, on July 29, 2014, Waupun staff placed Beamon in
temporary lock-up pending a further investigation. (Id., ¶ 55.)
Sometime after July 29, 2014, Beamon filed Inmate Grievance #WCI-2014-15953
stating that the July 25, 2014 cell search was “harassment.” (ECF No. 1, ¶ 13.) Waupun
staff returned the grievance to Beamon with instructions to speak with Meli to resolve
the issue. (Id.) Beamon wrote to Meli, who stated that he could not comment on the

10

issue at that time. (Id.) Beamon re-submitted his inmate grievance on August 12, 2014.
(Id.)
Two days later, on August 14, 2014, Rosenthal prepared Conduct Report
#2423051 against Beamon for group resistance and petitions, disrespect, possession of
contraband, and violations of policies and procedures. (ECF No. 55, ¶ 56.) The next day,
Security Threat Group Specialist Bret Mierzejewski (not a defendant) conducted a
preliminary review of the conduct report. (Id., ¶ 57.) He noted that the material in
Beamon’s cell included racist ideologies, including terms such as “Devil” and “Albino”
in reference to white people. (Id.) Mierzejewski also noted that information from
interviews with several inmates at Waupun implicated Beamon in disseminating NGE
literature for recruitment. (Id.) Mierzejewski concluded that the conduct report was
supported by evidence. (Id.)
On August 18, 2014, Captain Thomas Core (not a defendant) approved the
conduct report for further processing. (Id., ¶¶ 62-64.) Beamon received a copy of the
conduct report and requested Radtke, Rosenthal, and inmate Bizzle to serve as
witnesses at his disciplinary hearing relating to the conduct report. (Id., ¶¶ 63, 66-67.)
On September 2, 2014, defendant John O’Donovan held a disciplinary hearing
relating to Conduct Report #2423051. (Id., ¶ 70.) Rosenthal and Bizzle appeared at the
hearing. (Id., ¶ 67.) Radtke did not appear but provided a written statement answering a
question posed by Beamon. (Id., ¶¶ 67-68.) Beamon states that prior to the disciplinary

11

hearing O’Donovan and Rosenthal “were cracking jokes and laughing with each other”
and that O’Donovan stated to Rosenthal that “he should make SGT for this one.” (ECF
No. 48 at 1.)
At the hearing Beamon asked Rosenthal questions which sought to distinguish
NGE beliefs from Nation of Islam beliefs. (ECF No. 39-1 at 28.) Rosenthal answered the
questions and stated that he did not confuse NGE beliefs with the beliefs of the Nation
of Islam. (ECF No. 55, ¶ 73.) Beamon asked Radtke to answer the following question:
“[d]id you know that the NOI and NGE have the same teachings? Yes or No.” (ECF No.
39-1 at 33.) Radtke submitted a statement by email indicating that NGE and Nation of
Islam are not the same organization, do not have similar teachings, and that Beamon
was attempting to confuse the two by claiming that NGE is an “off-shoot” of the Nation
of Islam. (Id.)
Beamon submitted a statement from inmate Bizzle which indicated that Beamon
usually kept to himself. (ECF No. 55, ¶ 76; ECF No. 39-1 at 27.) Finally, Beamon
provided his own statement swearing that the documents from his cell had “nothing to
do with NGE.” (ECF No. 55, ¶ 71.) He further stated that he was writing a book and that
Rosenthal had “misconstrued” all of the words from those documents. (Id.)
O’Donovan reviewed Rosenthal’s statement in the conduct report, the testimony
of the staff members, Beamon’s testimony, Bizzle’s testimony, and the physical evidence
found in Beamon’s cell. (Id., ¶ 79.) O’Donovan found that Rosenthal’s statement in the

12

conduct report, and the testimony of the staff members, were credible because
Rosenthal and Radtke had no vested interest in the outcome of the hearing. (Id., ¶ 77.)
Further, there was no physical evidence corroborating Beamon’s statement that he was
writing a book and, to the contrary, all the physical evidence found in his cell clearly
referred to “5%” and the “Nation of Gods and Earths.” (Id.) O’Donovan noted that
Beamon was charged with possessing gang related material and that he could not
justify possessing gang related material by stating that the Nation of Islam uses the
same terminology. (Id.) As a result, O’Donovan concluded that it was more likely than
not that Beamon possessed gang-related NGE materials, and found Beamon guilty of
the charges in the conduct report. (Id., ¶¶ 77, 86.) Beamon received 270 days of
disciplinary segregation, 135 of which he served. (ECF No. 55, ¶ 86; ECF No. 49, ¶¶ 8687.)
Beamon appealed O’Donovan’s decision to Pollard. (ECF No. 1, ¶ 19.) Pollard
affirmed O’Donovan’s decision, concluding that Beamon’s 2013 conduct report from
Redgranite for possession of NGE-related materials justified the punishment. (Id.)

SUMMARY JUDGMENT 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. 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.,

13

Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those that “might affect the
outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over a “material fact” is
“genuine” if “the evidence is such that a reasonable jury could return a verdict for the
non-moving party.” Id.
A party asserting that a fact is genuinely disputed, or not 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).
ANALYSIS

A. First Amendment
Beamon’s First Amendment claims arise from three specific incidents at
Waupun. Beamon’s free speech and free exercise claims stem from Beasley confiscating
written materials from Beamon’s cell on November 12, 2013 and July 25, 2014. His

14

retaliation claim stems from Rosenthal issuing a conduct report shortly after Beamon
filed an inmate grievance.
Beamon also attempts to assert new allegations of “retaliation” from Redgranite
staff. The court will not address those claims here as Redgranite staff are not defendants
in this case and Beamon was not allowed to proceed with such claims at screening. (See
ECF No. 12). The court also will not address issues related to the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”) as Beamon at screening also was not
allowed to proceed with such a claim.
1. Free Speech and Free Exercise
The First Amendment of the United States Constitution protects an individual’s
right to free speech and to the free exercise of religion. U.S. Const. amend. I. Freedom of
speech implies the freedom to read, and inmates have a right to access the “marketplace
of ideas and opinions that it is the purpose of the free-speech clause to protect.” Toston
v. Thurmer, 689 F.3d 828, 831 (7th Cir. 2012) (quoting King v. Federal Bureau of Prisons, 415
F.3d 634, 638 (7th Cir. 2005)). Free exercise of religion allows inmates to follow their
faith and “prohibits the state from imposing a ‘substantial burden’ on a ‘central
religious belief or practice.’’’ Kaufman v. Pugh, 733 F.3d 692, 696 (7th Cir. 2013) (quoting
Hernandez v. Comm’n of Internal Revenue, 490 U.S. 680, 699 (1989)).
Lawful incarceration, however, “brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction justified by the considerations

15

underlying our penal system.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)
(quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). As a result, an inmate’s First
Amendment rights are sharply circumscribed by restrictions that are reasonably related
to legitimate penological interests. Tarply v. Allen Cnty., Ind., 312 F.3d 895, 898 (7th Cir.
2002); Turner v. Safley, 482 U.S. 78, 89-91 (1987). In deciding whether restrictions are
reasonably related to legitimate penological interests, the court considers four factors:
(1) whether a valid, rational connection exists between the policy and a legitimate
government interest behind the rule; (2) whether there are alternative means of
exercising the right in question that remain available to prisoners; (3) whether
accommodation of the asserted constitutional right would have a negative impact on
guards, other inmates, and the allocation of prison resources; and (4) whether obvious,
easy alternatives exist as evidence that the regulation is not reasonable. Turner, 482 U.S.
at 89-91.
Beamon states that he was “engaged in protected speech” and was using
“religious jargon” when he used terms such as “god,” “earth,” “Crackers,” the ”Devil,”
“Supreme Mathematics,” and “Albinos” in the written materials found in his cell. (See
ECF No. 46 at 2, 9.) He explains that he copied these words from a prison library book
as “research” for his own book, and the terms are “slang terms used in every urban
community across the world” to express black identity. (Id. at 9; ECF No. 1, ¶ 14.) He

16

also explains that he follows the teachings of the Nation of Islam, a religion that uses
terminology similar to but “is not NGE.” (ECF No. 46 at 6-7.)

a. The Government’s Legitimate Interest in Prison Safety and Security
The Department of Corrections prohibits inmates from possessing gang-related
material. See Wis. Admin. Code § DOC 303.24. It has identified NGE as a gang under §
DOC 303.24 due to the violence this group has caused in other prisons around the
country through its racially motivated teachings. (ECF No. 55, ¶¶ 30-32.) Defendants
concluded that the materials found in Beamon’s cell were “NGE-related” because of the
words, phrases, and symbols it referenced, and they punished him with 270 days
disciplinary segregation, 135 of which he served. (Id., ¶ 54.)
The court will assume that the Department of Correction’s policy prohibiting
inmates from possessing NGE-related material implicated Beamon’s First Amendment
right to free speech and religion. Nevertheless, defendants have met their burden and
shown that the restriction on the possession of NGE-related material is reasonably
related to the prison’s legitimate penological interests. Defendants provide evidence
showing that materials that include the use of words such as “god,” “earth,” “crackers,”
the ”devil,” “supreme mathematics,” and “albinos,” when used in the context of a
discussion about different races, are associated with NGE. (ECF No. 55, ¶¶ 25-29.)
Some of these terms are derogatory and intended to be disrespectful towards
Caucasians. (Id., ¶ 47.) In Wisconsin’s racially diverse prison system, such teachings

17

increase the likelihood of conflict, violence, and disruption among inmates and against
guards, who are predominately white. (Id., ¶ 32.)
Further, NGE members use coded language, i.e., the “Supreme Alphabet,” to
communicate without detection. (Id., ¶ 35.) Secret communications pose a security risk
at the prison because inmates are able to plan conspiracies, assaults, and escapes. (Id.)
Based on the organization’s propensity toward violence, and the prison staff’s
inability to detect and prevent the violence, the court can conclude that the Department
of Correction’s prohibition on NGE-related literature, terminology, and symbolism,
under § DOC 303.24, is directly and rationally related to its interest in prison safety and
security. See In re Long Term Admin. Segregation of Inmates Designated as Five Percenters,
174 F.3d 464, 469-70 (4th Cir. 1999) (concluding that a ban on NGE was reasonably
supported by incidents of violence in prisons); see Fraise v. Terhune, 283 F.3d 506, 517-18
(3rd Cir. 2002) (concluding that a ban on NGE was justified by the numerous instances
of actual or planned violence involving Five Percenters); see Johnson v. Stewart, No. 081521, 2010 WL 8738105 (6th Cir. 2010) (concluding that the ban on NGE was justified
because the group “holds racial supremacist views that has been linked to violence and
gang-related activity in other prisons.”).
To the extent that Beamon asserts that the defendants “misunderstood” or
“misconstrued” the words “albino,” “devils,” “supreme mathematics,” etc., in his
written materials, and that his use of the words mean something other than what those

18

words mean to NGE followers, courts give deference to the judgment and expertise of
prison officials in matters concerning the operation of prisons. See Cutter v. Wilkinson,
544 U.S. 709, 723 (2005); see also Bell v. Wolfish, 441 U.S. 520, 546 (1976). The court relies
on the expertise of prison officials who are more familiar with the subject matter than
the court. Id. After reviewing the evidence, and giving Beamon a chance to respond,
O’Donovan concluded that Beamon possessed gang-related material and was justifying
his possession of it by claiming that the Nation of Islam (not a security threat group)
also uses the same terminology. The court defers to O’Donovan’s expertise on the
matter and sees no reason to second-guess his conclusion.
Further, as a practical matter courts must allow prison officials to use an
objective standard in applying prison rules. Wis. Admin. Code § DOC 303.24 prohibits
inmates from possessing materials containing words, phrases, and symbols which are
closely associated with NGE. Although an inmate may claim to be using words like
those at issue here to express beliefs that have nothing to do with NGE—certainly the
words “god,” “devil,” “earth,” and “albinos” are all often used by persons that do not
espouse to be members of NGE—prison officials must be allowed to use their
experience and expertise to review the context of the language and determine if it poses
a security risk at the prison.
Thus, the first Turner factor suggests that a valid, rational connection exists
between the Department of Correction’s policy prohibiting the possession of NGE-

19

related materials and a legitimate government interest behind the policy—prison safety
and security.

b. “Alternative Means “of Exercising the Constitutional Right in Question
i.

Alternative means of practicing religion

As for the second Turner factor, Beamon has no alternative means to exercise his
right to practice religion according to principles of the NGE. But Beamon claims that he
belongs not to the NGE but to the Nation of Islam. To the extent that that is the case, he
is free to exercise his right to practice religion according to Islamic principles. The
prison has congregate services and study groups for members under the Umbrella
Religious Group (“URG”), and Islam is one of the religions in this group. As a result,
Beamon can request a religious diet and possess other religious items associated with
his faith. He may conduct individual religious observances/rituals in his living quarters
and has access to religious books and texts from the library. Beamon may practice his
Islamic faith in a variety of ways, including transcribing and memorizing passages, as
long as those passages do not reference NGE-related material.

ii.

Alternative means of practicing free speech

Beamon also has alternative means of accessing the “marketplace of ideas and
opinions.” The prison has a library with books that inmates may borrow to read and
discuss ideas and opinions. Inmates also have the option to order books and writing
materials from prison-approved catalogues. Beamon’s pleadings show that he has had

20

access to library books, and he explains in his brief that he has been using library books
to help him write his own book. Beamon has also ordered books while in prison, and he
includes receipts (see ECF No. 47-1 at 26-35) of the books he has purchased.
Beamon’s argument that he was “punished” for possessing literature that he
“copied” from prison-approved library books, is not supported by the evidence he
provides. In support of this claim, Beamon presents four pages from a prison library
book called “The Rule of Four” which generally discusses coded ciphers. (See ECF No.
47-1 at 21-25.) The excerpts make no mention of any of the words or phrases for he was
punished, nor do they discuss the “supreme alphabet,” the coded cipher for which he
was punished. (See id.) Therefore, the second Turner factor supports a finding that the
restriction on possessing NGE-related material is reasonably related to legitimate
penological interests.

c.

Accommodation of the Asserted Constitutional Right

The third Turner factor asks whether accommodation of the asserted
constitutional right would have a negative impact on guards, other inmates, and the
allocation of prison resources. Accommodating Beamon’s request to use terminology
that he calls “urban” slang and “religious jargon,” but which the prison deems NGErelated, would have a negative impact on guards and other inmates. As discussed
above, the terms Beamon seeks to use in his written materials are closely associated
with the NGE security threat group and are intended to be disrespectful and

21

derogatory. Such terminology increases the likelihood of violence and disruption in
Wisconsin’s diverse prison population. Thus, the third Turner factor also supports a
finding that the restriction on possessing NGE-related material is reasonably related to
legitimate penological interests.

d. “Easy Alternatives”
Finally, with regard to the fourth factor from Turner, the court cannot identify
any “easy alternatives” to preventing violence in prison that stems from racial tension
other than to ban NGE-related material that uses terminology offensive to certain races.
All four Turner factors support a finding that the restriction on possessing NGErelated material is reasonably related to legitimate penological interests. Accordingly,
the court will grant summary judgment in favor of the defendants on Beamon’s free
speech and free exercise claims.

2. Retaliation
Beamon further asserts that, because he filed Inmate Complaint #WCI-2014-15953
alleging that Waupun staff “harassed” him about his written materials, Rosenthal,
O’Donovan, Pollard, and Meli retaliated against him in different ways. Rosenthal issued
Conduct Report #2423051 for group resistance and petitions, O’Donovan found him
guilty of the allegations in the conduct report, and Pollard and Meli did nothing to help
him.

22

The First Amendment right to petition the government for redress of grievances
includes the right of access to the courts. Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir.
2009). Inmates are entitled to pursue “administrative remedies that must be exhausted
before a prisoner can seek relief in court” without the threat of recrimination. DeWalt v.
Carter, 224 F.3d 607, 618 (7th Cir. 2000). Thus, a prison official may not retaliate against a
prisoner because that prisoner filed a grievance. Id.
To prove retaliation, a plaintiff 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.
See Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012). The plaintiff need not show
that retaliation was the only factor that motivated the defendants but must show that it
was one motivating factor. See Woodruff v. Mason, 542 F.3d 545, 551(7th Cir. 2008) (citing
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006)). If the plaintiff satisfies these
elements, the burden shifts to the defendants to show that they would have taken the
same action even without any retaliatory motive. Id.
Beamon presents several pieces of evidence to show that his filing of Inmate
Complaint #WCI-2014-15953 was “at least a motivating factor” in Rosenthal’s decision
to issue Conduct Report #2423051, O’Donovan’s decision to find him guilty, and
Pollard’s and Meli’s decision to do nothing to help him. Beamon presents (a) his sworn
complaint (ECF No. 1); (b) four sworn declarations—one from inmate Barksdale and

23

three of his own declarations (ECF Nos. 50, 51, 68, 72); and (c) three sworn affidavits—
one from inmate Compton and two of his own affidavits (ECF Nos. 52, 57, 67).
However, none of the declarations or affidavits are based on anything that
Beamon, Barksdale, or Compton actually witnessed. Beamon states, for example, that
“security director [Meli] is always notified” of inmate grievances that are filed (ECF No.
50 at 1), “O’Donovan and Rosenthal are friends” (id. at 5), and “Muenchow…always
tells officers what inmates complain about.” (ECF No. 57, ¶ 7). Barksdale and Compton
similarly provide statements indicating that prison staff “talk” and give each other “a
heads up” when an complaint is filed against them. (ECF Nos. 51-52). However, none of
these individuals actually saw or heard Rosenthal, Pollard, or Meli reading or
discussing Beamon’s grievance. Beamon may speculate that prison staff talk amongst
each other, are friends, and know about inmate grievances that are filed, but “mere
speculation and conjecture will not defeat a summary judgment motion.” Rockwell
Automation, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 544 F.3d 752, 757 (7th Cir.
2008) (quoting McCoy v. Harrison, 341 F3d 600, 604 (7th Cir. 2003)).
Moreover, Rosenthal and Pollard both provide statements swearing that they did
not know about Beamon’s grievance prior to issuing, and reviewing, his conduct report.
(ECF No. 42, ¶ 9 and ECF No. 43, ¶ 26.) Meli provides a declaration stating that he does
not recall the incidents giving rise to this claim because he neither issued the conduct
report nor had any role in reviewing the conduct report. (ECF No. 40, ¶ 11). Munchow,

24

the inmate complaint examiner who reviewed Beamon’s grievance, states that he did
not discuss Conduct Report #2423051 with Rosenthal, O’Donovan, or Pollard. (ECF No.
38, ¶11). Beamon’s assertion that Rosenthal, Pollard, and Meli’s declarations are all
“untrue” (ECF No 50, at 2-3, 5) is not based on credible evidence that the court can rely
on at summary judgement.
Finally, Beamon provides no other evidence, for example, through responses to
requests for admissions or interrogatories, from which the court can infer that
Rosenthal, Pollard, and Meli knew about his inmate complaint. The mere timing of the
conduct report, coming as it did shortly after Beamon filed his inmate complaint, is
insufficient evidence to survive summary judgment. See Andonissamy v. Hewlett–Packard
Co., 547 F.3d 841, 851 (7th Cir. 2008)(“[M]ere temporal proximity is not enough to
establish a genuine issue of material fact” at summary judgment.). Because Beamon
cannot show that Rosenthal, Meli, or Pollard knew about his inmate grievance prior to
their allegedly “retaliatory” conduct, he cannot establish that a retaliatory purpose was
a motivating factor in their conduct.
O’Donovan, on the other hand, did know about Beamon’s grievance prior to
Beamon’s conduct report hearing. (ECF No. 41, ¶ 21). O’Donovan states that he read the
grievance prior to the hearing because the document was attached to Beamon’s conduct
report. (Id.) O’Donovan, however, can meet his burden of showing that Beamon would
have been punished regardless of whether he filed his grievance.

25

O’Donovan reviewed all of the evidence at the disciplinary hearing and
concluded that Beamon possessed gang-related NGE material because the documents
found in his cell clearly referenced “5%” and “the Nation of Earths and Gods.” He
considered O’Donovan and Radtke testimony that NGE is a more radical group than
the Nation of Islam due to its racially motivated teachings. Beamon further admitted
that Beasley had warned him about what types of written materials he could and could
not have (see ECF No. 47-1 at 7) and he acknowledges that he received a conduct report
in 2013 relating to NGE-related material. (ECF No. 1, ¶ 19). The evidence, therefore,
shows that O’Donovan punished Beamon for violating a prison rule. As a result,
Beamon has not met his burden to show that his protected speech was a motivating
factor in O’Donovan’s decision to punish him. See Tate v. Jenkins, No. 09-CV-169, 2010
WL 3809765, at *9 (E.D. Wis. Sept. 24, 2010) (concluding that the inmate had committed
a “legitimate, admitted infraction,” and, therefore, defendants met their burden to
demonstrate that the inmate would have been punished regardless of improper motive
in searching his property.). Consequently, the court will grant summary judgment in
favor of the defendants on Beamon’s First Amendment retaliation claim.

B. Fourteenth Amendment: Due Process
Beamon alleges that the defendants violated his Fourteenth Amendment right to
due process by failing to provide adequate notice of what constituted gang-related NGE
material. Beamon states that he had no way of knowing that the papers he possessed in

26

July 2014 were NGE-related because Beasley had returned the very “same” set of papers
to him earlier that year. He cites Rios v. Lane, 812 F.2d 1032, 1038 (7th Cir. 1987), in
support of his conclusion.
In Rios, the United States Court of Appeals for the Seventh Circuit concluded that
an inmate could “reasonably assume” that transcribing “previously authorized
information” onto a notecard would not later subject him to serious disciplinary
sanctions. 812 F.2d at 1038. The court noted that “[i]t [wa]s undisputed that much of
Rios’ message was gleaned from a newspaper called The Militant, a publication
explicitly authorized by prison officials,” and that “it could hardly be anticipated that
the simple transcription of previously authorized information on to a notecard” would
somehow transform the passage into contraband. Id. The court went on to state that
“Rios was given no prior warning that his conduct might be proscribed.” Id. The court
distinguished Rios’s case from two others, Meyers v. Alldridge, 492 F.2d 296 (3d Cir.
1974), and Hadden v. Howard, 713 F.2d 1003, 1008 (3d. Cir. 1983), by stating that the
plaintiffs in those cases had been warned that their conduct “could be” punished and
that they were “on notice” of potential violations. Id.
As in Meyers and Hadden, Beamon was directly warned by Beasley that he could
be punished for having literature related to NGE. Unlike Rios, who had no way of
knowing that the content of the passage, or transcription of it onto a notecard, would
convert the passage into contraband, Beamon knew that possessing material similar to

27

what was confiscated in November 2013 could result in a conduct report. As a result,
Beamon was “on notice” that possessing the type of written material that he had could
result in discipline.

Thus, the court will grant summary judgment in favor of the

defendants on Beamon’s Fourteenth Amendment due process claim.
CONCLUSION
WHEREFORE, IT IS HEREBY ORDERED that the defendants’ motion for leave
to file additional supplemental proposed findings of fact (ECF No. 62) is GRANTED.
IT IS FURTHER ORDERED that the defendants’ motion for summary judgment
(ECF No. 35) is GRANTED and the case is DISMISSED; the plaintiff’s motion
summary judgment (ECF No. 45) is DENIED.
IT IS ALSO ORDERED that the plaintiff’s motion to appoint counsel (ECF No.
53) is DENIED as moot.
IT IS ALSO ORDERED that the Clerk of Court enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may appeal
this decision to the Court of Appeals for the Seventh Circuit by filing in this court a
notice of appeal within 30 days of the entry of judgment. See Federal Rule of Appellate
Procedure 3, 4. I may extend this deadline if a party timely requests an extension and
shows good cause or excusable neglect for not being able to meet the 30-day deadline.
See Federal Rule of Appellate Procedure 4(a)(5)(A).

28

Under certain circumstances, a party may ask me to alter or amend my judgment
under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment under
Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of judgment. I cannot extend
this deadline. See Federal Rule of Civil Procedure 6(b)(2). Any motion under Federal
Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. I cannot extend this deadline. See Federal
Rule of Civil Procedure 6(b)(2).
The parties are expected to closely review all applicable rules and determine,
what, if any, further action is appropriate in a case.
Dated at Milwaukee, Wisconsin this 30th day of January, 2017.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

29