Ajala, Mustafa-El v. Swiekatowski, William et al

Filing 75

ORDER that:1. The motion for summary judgment filed by defendants William Swiekatowski, Gary Boughton, Patrick Brandt, Michael Delvaux and William Pollard, dkt. 33 , is DENIED as to the claim of plaintiff Mustafa-El K.A. Ajala (formerly known as Dennis Jones-El) that defendant Swiektowski issued a conduct report against plaintiff because of his race and religion. 2. Defendants' motion for summary judgment is GRANTED in all other respects. 3. Because of a conflict in the court' ;s schedule, the trial in this case is RESCHEDULED for August 24, 2015 at 9:00 a.m. with a final pretrial conference at 8:30 a.m. the same morning. Rule 26(a)(3) Disclosures and all motions in limine are due July 23, 2015 and objections are due August 7, 2015. Signed by District Judge Barbara B. Crabb on 4/10/2015. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MUSTAFA-EL K.A. AJALA
formerly known as Dennis E. Jones-El,
OPINION and ORDER
Plaintiff,
13-cv-638-bbc
v.
WILLIAM SWIEKATOWSKI, GARY BOUGHTON,
PATRICK BRANDT, MICHAEL DELVAUX
and WILLIAM POLLARD,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In 2007, pro se prisoner Mustafa-El K.A. Ajala was transferred from the Green Bay
Correctional Institution to the Wisconsin Secure Program Facility and placed in segregation
after prison officials found that plaintiff had circulated a memorandum in which prisoners
were threatening to “strike” from their prison jobs, classes and programs if officials did not
meet a long list of demands about improving prison conditions. In addition, officials found
that plaintiff’s memorandum was related to a conspiracy to start a riot at the prison.
Although no riot occurred, officials placed the Green Bay prison on lockdown for at least
three months in response to the threat.
In this case, plaintiff is proceeding on claims that defendants disciplined him in
retaliation for complaining about prison conditions and because he is a Muslim and an
African American. In addition, plaintiff says that the hearing officers at his disciplinary
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hearing were biased. Defendants have moved for summary judgment on all of plaintiff’s
claims. Dkt. #33.
I conclude that plaintiff has raised a genuine issue of material fact with respect to his
claim that defendant William Swiekatowski issued him a conduct report because of his race
and religion. Accordingly, I am denying the motion for summary judgment as to that claim.
However, I am granting the motion in all other respects. First, I agree with defendants that
the memorandum plaintiff circulated is not protected speech under the First Amendment in
the prison context, so even if plaintiff is correct that the memorandum was a motivating
factor in defendants’ decision to discipline him, he cannot prevail on his retaliation claim.
In addition, I agree with defendants that plaintiff’s due process claim is barred by a state
court decision that resolved the same claim and that, even if the claim is not barred
procedurally, plaintiff has failed to adduce evidence from which a reasonable jury could find
that the hearing officers (defendants Michael Delvaux and Patrick Brandt) were biased
against him.
From the parties’ proposed findings of fact and the record, I find that the following
facts are undisputed.

UNDISPUTED FACTS
On February 5, 2007, prison staff at the Green Bay Correctional Institution
confiscated a document that plaintiff Mustafa-El K.A. Ajala wrote that he titled “Prisoner
Legal Memorandum.”

Plaintiff used prison grievance forms to prepare much of the

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document, typing the words “group complaint” at the top of each page. In the document,
plaintiff complained about numerous prison conditions, including medical and mental health
treatment, sanitation, disciplinary policies, recreation and visitation.

He demanded

improvements on each of these matters, such as new protocols for emergency medical
problems, more out-of-cell time, reduced double-celling, less-restrictive segregation
conditions, appointment of an oversight committee for disciplinary decisions and an increase
in pay for prisoner work. In addition, he requested a number of expanded privileges, such
as smoking, cable television, exercise equipment and free stamped envelopes. Plaintiff stated
that, if these demands were not met, “it is Our request to be exempted from DOC 303.61-62
(or have them nullified), so that We may STRIKE FROM ALL WORK AND/OR
SCHOOL/PROGRAM ASSIGNMENTS” for one month. If prison officials still refused to
meet the demands, “then it is our desire to STRIKE again for a period of 90 days.” The end
of the document included several pages of lines for prisoners to sign. More than 100
prisoners of different races, including Caucasian, Latino, Asian American, Native American
and African American, signed the petition.
After confiscating this document, prison staff conducted an investigation.

On

February 9, 2007, the prison was placed on lockdown status after staff concluded that
prisoners were placing staff names on a “hit list” and planning to take hostages. The same
day, defendant William Pollard (the warden) transferred plaintiff to the Wisconsin Secure
Program Facility as part of the group involved in circulating the “Prisoner Legal
Memorandum.”

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The lockdown lasted “three to four months.” Dfts.’ PFOF ¶ 15, dkt. #74.
On February 19, 2007, defendant William Swiekatowaski (a supervising officer)
interviewed plaintiff. During that interview, Swiekatowski made the following statements:
(1) plaintiff’s memorandum “has nothing to do with why we’re on lockdown”; (2) “nobody’s
in trouble for signing” the memorandum; (3) plaintiff had a “right” to sign the
memorandum; (4) the problem was that plaintiff gave the memorandum to the “wrong
people”; and (5) other prisoners were “redoing” the memorandum.
On May 22, 2007, defendant Swiekatowaski issued a seven-page conduct report to
plaintiff, alleging that plaintiff was involved in conspiring to commit a battery (in violation
of Wis. Admin. Code § DOC 303.12), conspiring to incite a riot (in violation of Wis.
Admin. Code § DOC 303.18) and engaging in group resistance and petitions (in violation
of Wis. Admin. Code § DOC 303.20). In the conduct report, Swiekatowski described the
content of the “Prisoner Legal Memorandum” and stated that it was “contrary to the
Administrative Code.”

In addition, he stated that interviews with various prisoner

confidential informants led him to conclude that plaintiff was “acting in concert with other
inmates in an attempt to organize a riot at this institution.” In the report, Swiekatowski
accused many prisoners of different races of engaging in the same type of conduct.
Defendant Swiekatowski issued seven prisoners conduct reports for activity related
to the memorandum. Six of the prisoners were African-American; one was Caucasian.
(Plaintiff says that the Caucasian prisoner and all the other accused prisoners were Muslims.
Plt.’s Aff. ¶ 7, dkt. #68.)

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Defendant Gary Boughton, the security director, reviewed the conduct report and
determined that it should be allowed to proceed as a major offense to a disciplinary hearing.
On June 27, 2007, a disciplinary hearing was held before defendants Patrick Brant
and Michael Delvaux. In a 9-page decision dated June 27, 2007, Delvaux and Brandt
explained their reasons for finding plaintiff guilty of violating Wis. Admin. Code §§ DOC
303.12(c) and 303.18(c) and for giving plaintiff 360 days’ disciplinary separation as
discipline. Dkt. #38-1. (Delvaux and Brandt found plaintiff not guilty of violating the rule
against unauthorized group petitions, § DOC 303.20, even though they found that the
memorandum “cannot be considered an inmate group complaint.” They did not explain this
discrepancy or otherwise explain why they found him not guilty of that charge.)
Delvaux and Brandt relied on a number of confidential informant statements to
conclude that the memorandum was “a major component of a larger, planned disturbance
in which the taking of hostages and assaults on staff and inmates were going to be carried
out.” In particular, they discussed the following informant statements:
•

some prisoners circulating the petition were talking about “getting” the
security director;

•

members of security threat groups who had signed the petition were talking
about fighting with the police;

•

prisoners signing the petition were waiting to “whoop” the security director;

•

if prison officials did not agree to the demands, Muslim prisoners were
prepared to “role-out” against security staff.

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According to Delvaux’s and Brandt’s decision, various other confidential informants
spoke about assaulting staff and taking hostages and three of the informants identified
plaintiff as being part of the conspiracy. Delvaux and Brandt found the statements credible
because they were sworn and because the prisoners had nothing to gain by making the
statements and put themselves at risk in doing so. (I have considered the summaries of the
confidential informant statements because those summaries were part of the disciplinary
decision provided to plaintiff, but I did not consider the statements themselves because those
have not been provided to plaintiff.

To the extent defendants wish to rely on the

confidential informant statements at trial, they will need to file a motion in limine on that
issue.)
In addition to the statements, Delvaux relied on the pass list for the law library, which
he said “clearly indicates that [plaintiff] and other inmates that have been identified and
charged with being leaders of the planned disturbance were frequently in the library at the
same time.”
On September 7, 2007, defendant Pollard affirmed the decision in relevant respects.

OPINION
A. Retaliation
Plaintiff’s first claim is that defendants punished him, not because they believed he
was involved in a conspiracy to start a riot, but because of the memorandum he filed about
prison conditions. To prevail on a retaliation claim, a plaintiff must prove three things: (1)

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he was engaging in activity protected by the Constitution; (2) the defendant’s conduct was
sufficiently adverse to deter a person of "ordinary firmness" from engaging in the protected
activity in the future; and (3) the defendant subjected the plaintiff to adverse treatment
because of the plaintiff’s constitutionally protected activity. Gomez v. Randle, 680 F.3d
859, 866-67 (7th Cir. 2012); Bridges v. Gilbert, 557 F.3d 541, 555-56 (7th Cir. 2009). In
their motion for summary judgment, defendants’ sole argument with respect to this claim
is that plaintiff’s memorandum is not protected by the Constitution. Accordingly, I will not
consider the other two elements in this order.
In his brief, plaintiff cites a number of cases for the proposition that a prisoner has
a First Amendment right to complaint about prison conditions in a grievance. E.g., Hoskins
v. Lenear, 395 F.3d 372 (7th Cir. 2005); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000).
Those cases are not instructive because the defendants do not deny that plaintiff had a right
to file a grievance. The question in this case is whether the content of the grievance is
protected as well as the way in which plaintiff complained about his prison conditions.
Watkins v. Kasper, 599 F.3d 791 (7th Cir. 2010) (prisoner has “a general First Amendment
right to criticize [prison] policies,” but “he must do so in a manner consistent with his status
as a prisoner”). In particular, the question is whether plaintiff had a First Amendment right
to encourage all Green Bay prisoners to stop working, going to classes and participating in
programs for up to three months unless prison officials complied with a long list of demands.
If the answer is no, then plaintiff cannot immunize himself from discipline simply by putting
the speech in a prison grievance. E.g., Hasan v. United States Dept. of Labor, 400 F.3d

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1001, 1005 (7th Cir. 2005) (false allegations not protected simply because they are part of
grievance); Hale v. Scott, 371 F.3d 917 (7th Cir. 2004) (same).
Outside the prison context, there are many situations in which a threat to strike
would be protected by the First Amendment or other federal law. Lyng v. International
Union, United Auto., Aerospace & Agriculture Implement Workers of America, UAW, 485
U.S. 360, 366 (1988) (“[O]ne of the foundations of our society is the right of individuals
to combine with other persons in pursuit of a common goal by lawful means, and our
recognition of this right encompasses the combination of individual workers together in
order better to assert their lawful rights.”) (internal quotations and citations omitted); Board
of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 385 (1969)(“State courts
may not enjoin a peaceful strike by covered railway employees, no matter how economically
harmful the consequences may be.”); Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 475
(1955) (“Congress ha[s] guaranteed under s 7 of the Taft-Hartley Act—the right to strike
peacefully to enforce union demands for wages, hours and working conditions.”); Aurora
Education Association v. Board of Education of Aurora Public School District No. 131 of
Kane County, Illinois, 490 F.2d 431, 434 (7th Cir. 1973) (striking down policy prohibiting
support for right to strike).
However, it is well established that speech restrictions in prison are not subject to the
same standard of review as other speech restrictions because courts must give more deference
to the judgment of prison officials. In particular, a restriction on speech in prison may be
upheld under the First Amendment if the restriction is reasonably related to a legitimate

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penological interest. Turner v. Safley, 482 U.S. 78 (1987). In determining whether a
reasonable relationship exists, the Supreme Court usually considers four factors: whether
there is a “valid, rational connection” between the restriction and a legitimate governmental
interest; whether alternatives for exercising the right remain to the prisoner; what impact
accommodation of the right will have on prison administration; and whether there are other
ways that prison officials can achieve the same goals without encroaching on the right. Id.
at 89.
In debating whether plaintiff’s memorandum is protected speech under the Turner
standard, the parties get off on the wrong foot by focusing on the question whether the
memorandum qualified as a group inmate complaint under Wis. Admin. Code ch. DOC 310.
That issue was important during the disciplinary process because plaintiff was charged with
violating the rule against “group resistance and petitions” and group inmate complaints that
comply with chapter 310 do not violate that rule. Wis. Admin. Code § DOC 303.24(2)(c).
(Since 2007, the rule on group resistance and petitions has been renumbered from § DOC
303.20 to § DOC 303.24.) However, the issue is not important in the context of this
lawsuit because the question is not whether plaintiff’s discipline was consistent with state
regulations but rather whether the discipline was consistent with the First Amendment. As
plaintiff points out, prison officials may not retaliate against a prisoner simply for failing to
follow the procedural rules for submitting a grievance, Walker v. Thompson, 288 F.3d 1005,
1009 (7th Cir. 2002), so the focus of this opinion is on the content of the grievance rather
than its form.

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Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977), is the
leading case on the First Amendment rights of prisoners to engage in group speech. In that
case, the Court considered rules restricting the prisoners’ ability to form a union, including
prohibitions on union meetings and soliciting members. In upholding these rules, the Court
stated that the right of association is “necessarily curtailed” in the prison context, both
because the nature of prison is to limit an individual’s association with others and because
“the operational realities of a prison dictate restrictions on the associational rights among
inmates.” Id. at 125-26. A prisoner union “would rank high on anyone's list of potential
trouble spots,” the Court stated, because “the focus [of a union] is on the presentation of
grievances to, and encouragement of adversary relations with institution officials.” Id. at
133.
The Court credited the testimony of prison officials that “the concept of a prisoners'
labor union was itself fraught with potential dangers” and “will naturally result in increasing
the existing friction” between prisoners and staff as well as union prisoners and nonunion
prisoners. Id. at 126. Among the potential problems predicted by officials were “[w]ork
stoppages” and “[r]iots.” Id. at 127. Although officials did not cite any evidence to support
their fears beyond their own testimony, the Court concluded that it was “not irrational” for
officials to believe that “concerted group activity, or solicitation therefor, would pose
additional and unwarranted problems and frictions in the operation of the State's penal
institutions.” Id. at 129.
Jones forecloses plaintiff’s First Amendment claim. If it is permissible for prison

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officials to ban group activity because of a risk of a work stoppage at some point in the
future, then it is also permissible for officials to discipline prisoners for threatening not only
a prison-wide work stoppage for several months, but also a boycott of classes and
programming. This conclusion is consistent with other cases decided since Jones. Pilgrim
v. Luther, 571 F.3d 201, 205 (2d Cir. 2009) (“Work stoppages are deliberate disruptions
of the regular order of the prison environment and are a species of ‘organized union activity.’
They are plainly inconsistent with legitimate objectives of prison organization. Entreaties to
such activity, like petitions protesting prison conditions, are not entitled to First
Amendment protection where other less disruptive means of airing grievances are
available.”); Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (“[A prisoner] has no
constitutional right to organize a prison work slowdown.”).
Although defendants rely on Jones in their brief, plaintiff ignores that case in his
response. Further, he does not argue that he has a right to threaten a work stoppage in the
prison. Instead, he says that the memorandum did not include a threat to stop working;
rather, he says that the memorandum simply “requested relief from work.” That is not a
persuasive distinction. Although it is true that plaintiff used the word “request” in the
memorandum, he also stated in all capital letters that the prisoners may “STRIKE FROM
ALL WORK AND/OR SCHOOL/PROGRAM ASSIG[N]MENTS.”

Dkt. #38-2.

By

definition, a “strike” is an action that takes place without the employer’s permission.
Regardless whether plaintiff used more cautious language elsewhere in the memorandum, it
would be reasonable for officials and other prisoners to construe the memorandum as an

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attempt to encourage other prisoners to participate in a work stoppage. Van den Bosch v.
Raemisch, 658 F.3d 778, 787 (7th Cir. 2011) (“The essential question is not whether the
threats were eventually carried out, but whether plaintiff has shown that it was not
reasonable for defendants to perceive the [speech] as a potential threat to rehabilitation and
security.”).
Alternatively, plaintiff points to statements that defendant Swiekatowski made to
plaintiff during the investigation of the conduct report. In particular, Swiekatowski stated
that plaintiff was not “in trouble for signing” the memorandum and that he had a “right” to
sign the memorandum. Even if I construe Swiekatowski’s statements as expressing an
opinion that plaintiff had a right to include language about a strike in his memorandum,
Swiekatowski’s opinion on that issue is irrelvant. Under Hammer v. Ashcroft, 570 F.3d 798,
803 (7th Cir. 2009), the question whether a prisoner’s speech or conduct is protected by the
First Amendment is “an objective inquiry.” Thus, an individual defendant’s subjective views
have no bearing on the case.
Finally, plaintiff says that he had no alternative means of exercising his right to
complain about prison conditions, but that is obviously incorrect. Plaintiff could have
complained about the same prison conditions without threatening to stop all prisoner work
and programming.
In sum, I conclude that plaintiff’s memorandum is not protected by the First
Amendment. Thus, even if the charges against plaintiff are a pretext for retaliating against
plaintiff for writing the memorandum, plaintiff cannot prevail on this claim.

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B. Discrimination
Plaintiff’s second claim is that defendants targeted him for discipline because of his
race (African American) and religion (Muslim). Both sides assume that the Constitution
would prohibit discrimination in this context. Johnson v. California, 543 U.S. 499, 515
(2005)(strict scrutiny applies to race discrimination in prison); Maddox v. Love, 655 F.3d
709, 719-20 (7th Cir. 2011) (“Prisons cannot discriminate against a particular religion
except to the extent required by the exigencies of prison administration.”). The question
raised by defendants’ motion for summary judgment is whether plaintiff has adduced
sufficient evidence to allow a reasonable jury to find that defendants were motivated by
plaintiff’s race or religion.
Plaintiff’s primary argument on this claim is that all of the seven prisoners charged
with misconduct related to the memorandum and alleged riot are Muslims and all but one
of them are African American, even though, in plaintiff’s conduct report, defendant
Swiekatowski accused a number of prisoners of different races of misconduct similar to
plaintiff’s. It is well established that different treatment of similarly situated individuals is
probative evidence of discriminatory intent. Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 80 (1998)(“The critical issue [in a discrimination case] is whether members
of one [protected group] are exposed to disadvantageous terms or conditions . . . to which
members of [an]other [group] are not exposed.”); Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 258–59 (1980) (“[T]he plaintiff's task [in a discrimination case] is
to demonstrate that similarly situated [individuals] were not treated equally.”); Baker v.

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Macon Resources, Inc., 750 F.3d 674, 677-78 (7th Cir. 2014) (defendant’s failure to
investigate allegations of similar misconduct by others supports finding that defendant’s
discipline of plaintiff was discriminatory); Filar v. Board of Education of City of Chicago,
526 F.3d 1054, 1061 (7th Cir. 2008) (“All things being equal, if an employer takes an action
against one employee in a protected class but not another outside that class, one can infer
discrimination.”).
Defendants do not deny that many prisoners of different races were implicated by
Swiekatowski in plaintiff’s conduct report and that those prisoners were accused of
misconduct similar to plaintiff’s alleged misconduct. In addition, defendants do not deny
that Swiekatowaki chose not to even interview many of the prisoners alleged to be involved
in the conspiracy. Dfts.’ Resp. to Plt.’s PFOF ¶ 141, dkt. #74. The only difference that
defendants identify between plaintiff and these other prisoners is that the evidence against
the other prisoners was weaker than the evidence against plaintiff. Dfts.’ PFOF ¶¶ 62 and
65-66, dkt. #74. However, defendants do not describe the evidence Swiekatowski had
against the other prisoners; they do not explain why Swiekatowski believed that the evidence
against plaintiff was stronger; and they do not respond to plaintiff’s argument that the
evidence against both him and the other prisoners was similar in that it consisted primarily
of statements by confidential informants. Further, even if I assume that Swiekatowski
gathered more evidence against plaintiff, that would not explain why defendant
Swiekatowski did not even interview the other prisoners while he was investigating the
allegations.

Although it may be that a fuller record will show that Swiekatowski had

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nondiscriminatory reasons for his actions, on the current record, defendant Swiekatowski
is not entitled to summary judgment on this claim.
Alternatively, defendants argue that plaintiff cannot prove discriminatory intent
because one of the charged prisoners was Caucasian and some African Americans were not
charged even though they were “on the original list of subjects identified as potentially
having substantial involvement with circulating the petition.” Dfts.’ PFOF ¶ 63, dkt. #74.
However, this argument is not persuasive for multiple reasons. To begin with, it applies only
to the race discrimination claim. Second, defendants provide no details about the African
Americans who were not charged, such as the nature of the allegations against them or the
specific reasons why they were not charged, so it is impossible to tell whether those prisoners
are similarly situated to plaintiff. In fact, defendants did not submit a copy of the list or
even identify the names of the prisoners.

A conclusory statement that defendant

Swiekatowaski did not charge all African American prisoners who could have been charged
is not enough to defeat a discrimination claim at the summary judgment stage. Finally, the
Court of Appeals for the Seventh Circuit has stated on a number of occasions that a
defendant cannot defeat a discrimination claim simply by pointing to isolated incidents in
which discrimination did not occur. Whitfield v. International Truck & Engine Corp., 755
F.3d 438, 444 (7th Cir. 2014) (“[A] singular instance of [the defendant] hiring a black
electrician . . . does not entitle [the defendant] to immunity from subsequent discrimination
allegations.”); Diaz v. Kraft Foods Global, Inc., 653 F.3d 582, 587-88 (7th Cir. 2011)
(rejecting argument that “the evidence did not support an inference of discrimination

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because at least one Hispanic employee was not discriminated against in the same way” as
plaintiff alleged). See also Connecticut v. Teal, 457 U.S. 440, 455 (1982) ("Congress never
intended to give an employer license to discriminate against some employees on the basis
of race or sex merely because he favorably treats other members of the employees' group.").
Defendants raise a qualified immunity defense for plaintiff’s retaliation claim and his
due process claim, but they do not deny that it is clearly established that prison officials may
not discriminate against prisoners on the basis of race or religion. Johnson, 543 U.S. at 515;
Maddox, 655 F.3d at 719-20.

Accordingly, plaintiff’s discrimination claim against

defendant Swiekatowski may proceed to trial.
Although plaintiff alleges that all of the defendants discriminated against him, it is
undisputed that defendant Swiekatowski was the only person who was involved in the
decision to issue plaintiff’s conduct report. Although defendant Boughton reviewed the
conduct report and allowed it to go forward, plaintiff cites no evidence that Boughton was
involved in deciding whether other prisoners should receive conduct reports or that
Boughton had any reason to believe that the conduct report against plaintiff was
discriminatory.

Further, plaintiff does not develop an argument or cite any evidence

showing that the other defendants acted with discriminatory intent. Accordingly, I am
dismissing this claim as to all defendants other than Swiekatowski.

C. Due Process
Plaintiff’s final claim is that defendant Delvaux was biased against him at his

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disciplinary hearing, violating his right to due process. Although plaintiff brought this claim
against both defendants Delvaux and Brandt, the arguments in plaintiff’s brief are devoted
solely to Delvaux, so I assume that he has abandoned his claim against Brandt.
The threshold question is whether plaintiff’s claim is barred by a decision on a writ
of certiorari that he filed in state court. State ex rel. Jones-El v. Raemisch, No. 08-cv-1214
(Dane Cty. Cir. Ct. Apr. 26, 2010). In that case, plaintiff raised a claim that his right to due
process was violated at the disciplinary hearing because defendant Delvaux was not an
impartial decision maker. The circuit court rejected that claim, stating that “there does not
appear to be any evidence that the members of the [disciplinary] committee were swayed by
improper considerations.” Dkt. #34-3 at 7. Defendants argue that plaintiff’s due process
claim in this case is nothing but an attempt to overturn the state court decision, which is not
something this court has the authority to do. Skinner v. Switzer, 131 S. Ct. 1289, 1297
(2011) (federal district courts lack jurisdiction over “cases brought by state-court losers
inviting district court review and rejection of the state court's judgments”) (alterations
omitted) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)); Dookeran v. County of
Cook, Illinois, 719 F.3d 570, 574-75 (7th Cir. 2013) (“[L]ower federal courts lack
subject-matter jurisdiction over actions that seek review of state-court judgments.”); Tully
v. Barada, 599 F.3d 591, 594 (7th Cir. 2010) (“[The law] denies federal jurisdiction to
plaintiffs seeking to set aside a state court's judgment.”); Hukic v. Aurora Loan Services, 588
F.3d 420, 431 (7th Cir. 2009) (“[T]he [law] prevents a party from effectively trying to

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appeal a state-court decision in a federal district or circuit court.”). Although plaintiff has
not styled his due process claim as an appeal of the state court judgment, that is not required
if the effect of plaintiff’s success on this case would require overturning that judgment.
Johnson v. Orr, 551 F.3d 564, 568 (7th Cir. 2008).
Plaintiff says that his due process claim should not be barred for two reasons, but
neither reason is compelling. First, he says that he did not appeal the state court judgment,
but that is irrelevant. The question is whether plaintiff had a reasonable opportunity to
present his claim to the state courts. Gilbert v. Illinois State Board of Education, 591 F.3d
896, 901-02 (7th Cir. 2010). Plaintiff does not allege that defendants or anyone else
prevented him from appealing the state court judgment, so his decision not to do so means
that he is stuck with that judgment. It does not give him the right to file an “appeal” in this
court.
Second, plaintiff cites the statement in Johnson v. Pushpin Holdings, LLC, 748 F.3d
769, 773 (7th Cir. 2014), that “[t]he rule [against federal district court review of a state
court judgment] does not bar a federal suit that seeks damages for a fraud that resulted in
a judgment adverse to the plaintiff.” Plaintiff says that the exception to the rule applies to
this case because he is alleging that “defendants fabricated evidence against him.” Plt.’s Br.,
dkt. #67, at 7. However, plaintiff’s argument is that defendants fabricated evidence at his
disciplinary hearing; he does not argue that defendants “misled the court into issuing the
judgment,” Johnson, 748 F.3d at 773, let alone cite any evidence supporting this view.
Although plaintiff may believe that defendants committed a fraud on the court by continuing

18

to rely on what he says is fabricated evidence, he had an opportunity to make that same
argument to the circuit court.
Even if I assumed that the state court judgment does not bar plaintiff’s due process
claim, I would conclude that the claim fails on the merits. In this circuit, “the requirement
of impartiality mandates the disqualification of an official who is directly involved in the
incident or is otherwise substantially involved in the incident but does not require the
disqualification of someone tangentially involved.” Merritt v. De Los Santos, 721 F.2d 598,
601 (7th Cir. 1983).

In his brief, plaintiff points to several reasons for questioning

defendant Delvaux’s ability to be an impartial decision maker, but none of these reasons are
persuasive.
First, plaintiff says that defendant Delvaux was the “acting security director” in
February 2007, which created a conflict of interest because one of the confidential
informants allegedly stated that some prisoners were talking about “getting” the “Security
Director.” However, it is undisputed that defendant Boughton was the security director of
the Green Bay prison between October 2000 and September 2007, Plt.’s Resp. to Dft.’s
PFOF ¶ 3, dkt. #74, which includes the time period relevant to this case. In support of his
allegation that defendant Delvaux was the “acting security director” in February 2007,
plaintiff cites an incident report that Delvaux signed under the heading “signature of security
director.” Dkt. #68-1. Delvaux says that he simply was acting as the security director’s
designee, Dft.’s PFOF ¶ 107, dkt. #74, which is supported by the fact that Delvaux wrote
that a copy of the incident report should be sent to “Sec. Dir.” Dkt. #68-1. In any event,

19

plaintiff cites no evidence that the confidential informant was referring to Delvaux rather
than Boughton or, more important, that Delvaux believed the informant was referring to
him. Even if Delvaux did believe that, the confidential informant did not say that plaintiff
wanted to “get” the security director, so there would be no conflict of interest with respect
to plaintiff.
Second, plaintiff says that Delvaux relied on the incident report he signed in his
disciplinary decision. In the report, a correctional officer named Vandewalle alleged that a
prisoner named Edward Jackson stated, “They think they can stop it but they can’t. They
can’t send everyone to Boscobel . . . We’re still going to make this happen.” Dkt. #68-1.
Although Delvaux mentioned Jackson’s statement in the disciplinary decision, the incident
report does not indicate that Delvaux did anything other than acknowledge the report and
send it on to other officials. Vandewalle is identified as the officer who completed the report
and plaintiff cites no evidence that Delvaux was involved in investigating the report.
Merritt, 721 F.2d at 601 (no conflict of interest for officer “merely signing a report as
ranking officer with no connection to the incident”).
Third, plaintiff says that Delvaux “relabeled alleged [confidential informant]
statements from a [conduct report] other than [plaintiff’s conduct report] and wrote
[plaintiff’s] name on them and submitted against [plaintiff], but used the same circumstance
. . . as the basis to find prisoner Joseph Jordan not guilty.” Plt.’s Br. dkt. #67, at 9-10.
Plaintiff does not explain this argument in his brief, but simply cites several of his responses
to defendants’ proposed findings of fact. These responses are not much clearer than

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plaintiff’s brief, but my understanding of the argument is that Delvaux was biased because
of a change he made to the “summary of confidential informant statements” provided to
plaintiff at the disciplinary hearing.

In particular, under the heading “conduct report

number,” Delvaux crossed out “1886084” and replaced it with the number for plaintiff’s
conduct report, “1886143.” Dkt. #38-2 at 4. Defendants say that the change simply
reflects the fact that the summary was used in multiple disciplinary hearings for different
prisoners, so it was an oversight that the wrong conduct report was listed on the document
at plaintiff’s hearing. Dft.’s PFOF ¶¶ 88-90, dkt. #74. Plaintiff identifies no reason to
question Delvaux’s statement that the change was anything other than a correction of a
typographical error. Although he says that another prisoner’s conduct report was dismissed
for a similar error, the document he cites does not support that argument. Rather, it states
that Delvaux dismissed the other prisoner’s charges because of “myriad . . . errors related
to witness testimony, or lack thereof and the lack of summarized confidential informant
statements that should have been provided to the accused.” Dkt. #69-1. Because plaintiff
does not show that similar errors occurred in his case, the dismissal of the other prisoner’s
conduct report is not probative of bias.
Finally, plaintiff says that Delvaux’s bias is shown by his decision to travel from the
Green Bay prison to the Boscobel prison in order to preside over plaintiff’s disciplinary
hearing instead of allowing Boscobel staff to handle the case. However, plaintiff does not
cite any evidence that Delvaux treated plaintiff differently from any of the other transferred
prisoners in this respect and he does not identify any other reason for inferring that

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Delvaux’s decision is evidence of bias against plaintiff. Although plaintiff says that Boscobel
staff resolved other disciplinary charges against him that arose while he was at the Green Bay
prison, I cannot infer bias from that difference in the absence of any evidence of the reasons
behind those decisions and the individuals who made the decisions.

ORDER
IT IS ORDERED that
1. The motion for summary judgment filed by defendants William Swiekatowski,
Gary Boughton, Patrick Brandt, Michael Delvaux and William Pollard, dkt. #33, is
DENIED as to the claim of plaintiff Mustafa-El K.A. Ajala (formerly known as Dennis
Jones-El) that defendant Swiektowski issued a conduct report against plaintiff because of his
race and religion.
2. Defendants’ motion for summary judgment is GRANTED in all other respects.
3. Because of a conflict in the court’s schedule, the trial in this case is
RESCHEDULED for August 24, 2015 at 9:00 a.m. with a final pretrial conference at 8:30
a.m. the same morning. Rule 26(a)(3) Disclosures and all motions in limine are due July 23,

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2015 and objections are due August 7, 2015,
Entered this 10th day of April, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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