Mathews v. Brown et al

Filing 77

ORDER denying 31 Motion for Preliminary Injunction; denying 54 Motion for Sanctions; denying 52 67 70 Motions for Assistance in Recruiting Counsel. Signed by Magistrate Judge Stephen L. Crocker on 7/17/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DION MATHEWS,
OPINION AND ORDER

Plaintiff,
v.

16-cv-650-slc

CAPTAIN LEBBEUS BROWN, et al.,
Defendants.

Pro se plaintiff Dion Mathews

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is proceeding in this matter on Due Process and First

Amendment claims against employees at the Wisconsin Secure Program Facility (WSPF). Those
defendants were responsible for issuing him a conduct report and punishing him with 50 days
of disciplinary separation status because he violated Wis. Admin. Code § DOC 303.24(2), which
prohibits joining or soliciting others to join in any group petition or statement. Matthews has
filed a Motion for Preliminary Injunction (dkt. 31), Motion for Sanctions (dkt. 54), and three
motions for assistance in recruiting counsel (dkts. 52, 67, 70).
After reviewing the parties’ submissions, I conclude that there are no material facts in
dispute that would warrant a hearing. I am denying Mathews’ motions because he has not
submitted sufficient evidence that would entitle him to any of the relief he seeks.

UNDISPUTED FACTS
Mathews’ claims in this lawsuit arise from one conduct report and punishment he
received related to various letters that were found in his and another inmate’s cell at WSPF.

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M athews spells his last name “M athews” in all of his filings. W hile DOC records indicate that
his last name is spelled “M atthews,” and defendants are using that spelling, because DOC rules regarding
name spelling do not apply to this court, I will continue using the spelling M athews uses for purposes of
this lawsuit.

I.

Conduct Report #2732167
In 2015, WSPF staff found two letters in Mathews’ cell. One letter, dated November

28, 2015, was directed to defendant Warden Gary Boughton. In it, Mathews wrote Boughton
about “serious concerns” he had, such as his mattress being thin and old. He also asked
Boughton to consider starting a weekly or monthly meeting for prison staff to address inmate
concerns. Boughton responded in a letter on December 9, 2015, in which he stated that the
standards at WSPF are consistent with other institutions and that WSPF meets basic needs and
provides a safe environment to inmates.
The second letter staff found in Mathews’ cell was dated September 27, 2015, in
Mathews’ handwriting and stated that the proposal was “being brought forth by the prisoners
of WSPF.” (DPFOF, dkt. 35, ¶ 15.) Apparently this letter has been destroyed, but defendants
state that the letter used “demanding” language. (Id., ¶ 28).2
In the course of another investigation, staff also found three letters drafted by Mathews
in the cell of another inmate, Oscar Garner, a known jailhouse lawyer. One was a copy of the
November 28, 2015, letter, and the second was what appeared to be a draft of the September
27, 2015, letter. The third letter was typed and dated December 21, 2015, addressed to
2

M athews recently submitted a letter in which he states that defendants’ attorney informed him
that defendants do not have a copy of the letter that was the subject of Conduct Report #2732167
because it was “accidentally destroyed.” (Dkt. 66.) He accuses them of destroying the letter because they
believed it would hurt their case and requests that I enter judgment in his favor. If a party destroys
evidence in a bad faith effort to hide adverse information, a plaintiff may be entitled to sanctions or an
inference that the recording contained evidence supporting the plaintiff’s claim. See Bracey v. Grondin, 712
F.3d 1012, 1019-20 (7th Cir. 2013). M athews has not submitted any evidence that would suggest that
this is the case here, and defendants submitted declarations from DOC staff supporting the conclusion that
the letters were accidentally destroyed pursuant to DOC policy. (See dkt. 69.) If M athews has any
evidence beyond his personal belief that the letter was not accidentally destroyed, then he may submit a
motion for sanctions or for an adverse inference.

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Captains Gardner and Brown and WSPF Administration, used the terms “we propose” and “we
ask,” and appeared to be drafted based on the September 27 letter. (DPFOF, dkt. 35, ¶¶ 15-16.)
Defendant Captain Brown investigated these letters and submitted a declaration about them.
(Brown decl., dkt. 36.) When Brown asked Mathews about it, Mathews explained that Garner
was helping him craft the letter. Also during Brown’s investigation of Garner, Brown found
communication between the leader of the Gangster Disciples gang and Garner. (Id. ¶ 11.)
Based on his investigation, Brown decided that the September 27 and December 21
letters constituted unlawful group petitions because they were not written on inmate complaint
forms, were not addressed to the Inmate Complaint Examiner, contained multiple issues, used
demanding language, involved other inmates and had been passed between cells from Mathews
to Garner. Brown also believed that the letters presented the security risk of Gangster Disciple
activity because he believes that Mathews is an active member of the Gangster Disciples who has
been appointed to a position to make decisions for the Gangster Disciples in general population
at WSPF.
Mathews denies gang membership but he has not submitted other evidence on this point
(which is unsurprising since this would involve proving a negative). For his part, Brown
describes in detail how his experience brought him to his conclusion. Beyond working as a unit
manager at WSPF, he has worked as WSPF’s Security Threat Groups (STG) coordinator since
2003. His position involves numerous responsibilities, and as is relevant here includes:
“tracking disruptive groups and their members in the institution
and documenting their activities . . . Preparing reports regarding
group and gang activities for WSPF security staff and Security
Threat Group Coordinators at other DOC institutions, instructing
WSPF staff regarding gang identification and gang management

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strategies . . ., and assessing ongoing gang activity within the
institution.”
(Id. ¶ 3.)
In addition, since 1987 Brown has attended over 40 training sessions or meetings related to
gang identification and investigations. (Brown decl, dkt. 36, ¶ 4.)
With respect to the Gangster Disciples specifically, Brown states that this group has a history
of coercion, intimidation, threats, and starting disturbances. In the past, demands made by gangs
presented the risk of staff and inmate assaults. Brown also states his understanding that Mathews

had previously be found guilty of participating in group petitions and resistance with a leader
of the Gangster Disciples, and that Mathews appeared to be continuing that type of gang
activity. With that backdrop in mind, on January 13, 2016, Brown issued Mathews Conduct
Report #2732167, for violating Wis. Admin. Code. §§ DOC 303.24(2) “Group Resistance and
Petitions,” 303.31 “Lying,” and 303.47 “Possession of Contraband - Miscellaneous.”
On January 19, 2016, a disciplinary hearing was held. Mathews appeared and denied
being a member of the Gangster Disciples and denied the charges in the conduct report.
Defendant Lieutenant Cichanowicz concluded that Brown was credible but Mathews was not.
(Ray decl., Ex. 102., dkt. 37-3, at 16-18.) Lt. Cichanowicz found Mathews guilty of violating
Wis. Stat. § 303.24(2), Group Resistence and Petitions. Cichanowicz sentenced Mathews to
120 days of disciplinary segregation.

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II.

Mathews’ Punishment for Conduct Report #2732167
Inmates on disciplinary separation status progress through a step program, with step 1

allowing the fewest privileges, step 2 in the middle and step 3, allowing the most privileges.
Although he had been sentenced to 120 days, Mathews only stayed on disciplinary separation
status for 50 days, from January 19, until March 9. He was on step 1 from January 19 to
February 2, step 2 from February 3 to February 21, and step 3 from February 22 to March 9.
On March 9 Mathews had an administrative confinement hearing and he was placed on
administrative confinement status.
From March 9, 2016, to the present, Mathews has been housed on administrative
confinement status, where he has the same privileges as inmates on step 3 disciplinary separation
status. Since then, Matthew’s administrative confinement status has been reviewed a total of
three times, and each time the administrative confinement committee has decided to continue
that status.

Following Mathews’s March 2016 review, the committee unanimously

recommended Mathews’ placement on administrative confinement based on: (1) a February 29,
2016, recommendation by Captain Primmer concluding that Mathews’ presented a threat to
staff, other inmates, and the security of the institution; (2) Mathews’s conduct record; (3) his
history of homicidal, assaultive, or other violent behavior; (4) that his presence in general
population poses a substantial risk; and (5) his active gang affiliation.
The second review of his placement occurred in August of 2016. The committee again
agreed that administrative confinement was necessary because: (1) Mathews’s conduct record
and history of violent behavior warranted placement; (2) staff had identified Mathews as being

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affiliated with an inmate or street gang; and (3) the committee concluded that Mathews’s
presence in general population posed a risk to others. (Ex. 101 to Ray Decl, dkt. 37-1, at 5.)
On February 22, 2017 the committee again reviewed Mathews’s placement on
administrative confinement. The committee concluded that administrative confinement was
necessary for the reasons previously stated, but this time one committee member dissented
because Mathews had not been found guilty of a “gang related offense” since 2011. (Dkt. 50-1,
at 1.) As a result, Warden Boughton had to review the committee’s finding. He concluded that
continued administrative confinement was appropriate because Conduct Report #2732167 was
a “gang related offense” and the “pattern of negative behavior coupled with the recent incident
of possessing materials containing demands intended to be sent to the Warden warrants
placement.” (See dkt. 50-2.)
Defendants have described the conditions and privileges available in restrictive housing.
Mathews disputes some of defendants’ descriptions based on his and other inmates’ experiences.
Here is an overview, including Mathews’ points of dispute (set out in italics):
! Inmates in restrictive housing receive 5-10 hours of out of cell activity per
week. Staff encourage indoor and outdoor recreation when it’s available and the
weather permits.
Mathews disputes this, claiming that he receives at most five hours of out-of-cell
activity per week, that often he loses one 75-minute period for miscellaneous reasons, and
that staff members don’t encourage recreation.
!
Inmates on restrictive status have contact with prison personnel on a daily
basis.
Mathews doesn’t directly dispute this, but claims that these interactions are
combative and/or argumentative He does not provide evidence of any specific examples of
these interactions.
! Showers are available three times a week for 20-minute periods of time.

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! Temperature in all housing units stays between 68 and 72 degrees during
cold weather months.
! Inmates on restrictive housing receive limited periods of time for phone
calls and the opportunity for visitation through a television monitor with audio
capabilities.
! Inmates on restrictive housing status receive one pair of socks, underwear,
pants and shoes; one t-shirt, over shirt, and long-sleeve shirt, washcloth, towel,
and pillow; and two sheets, blankets, and writing pens.
! Inmates in administrative confinement and step 3 disciplinary separation
may purchase a television. Mathews owns a television and has it in his cell.
! Inmates are allowed to complete a canteen order once a week.
! Access to legal materials is obtained by scheduling time in the electronic
law libraries, and inmates are allowed one hour and fifteen minutes per week
unless they have a pending court deadline, which makes them eligible for an
additional one hour and fifteen minutes per week.
! Inmates may participate in high school equivalency diploma programs and
correspondence courses.
Mathews disputes the availability of the correspondence courses because he does not
have the funding.

OPINION
I.

Motion for Preliminary Injunction (dkt. 31)
Mathews asks this court to order him removed from administrative confinement status,

which he claims is the result of the challenged conduct report.

To obtain a preliminary

injunction, Mathews must show that his case has some likelihood of success on the merits, that
he has no adequate remedy at law and that he will suffer irreparable harm if a preliminary
injunction is denied. Stuller, Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012)
(quoting Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011)). Additionally, when the

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preliminary injunction is requested under the Prison Litigation Reform Act, 18 U.S.C. § 3626
(PLRA),
[t]he court shall not grant or approve any prospective relief unless
the court finds that such relief is narrowly drawn, extends no
further than necessary to correct the violation of the Federal right
and is the least intrusive means necessary to correct the violation
of the Federal right.
18 U.S.C. § 3626(a)(1).
In this case, I am denying Mathews’ request for a preliminary injunction because the
undisputed evidence currently before the court does not show that Mathews has some likelihood
of success on his claims.3

A.

First Amendment
Mathews claims that defendants retaliated against him by punishing him for preparing

his grievance. To prevail on a retaliation claim, a plaintiff must prove three things: (1) He was
engaging in activity protected by the Constitution; (2) The defendants’ conduct was sufficiently
adverse to deter a person of “ordinary firmness” from engaging in the protected activity in the
future; and (3) The defendants 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). Although it is clear that the

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Defendants also argue that in this case, M athews cannot obtain injunctive relief under the PLRA
because the administrative confinement committee members are not named defendants. But W arden
Boughton is a defendant and he had a hand in M athews’ most recent administrative confinement status,
apparently reaching his conclusion primarily based on Conduct Report #2732167. Thus, it appears that
PLRA would permit the injunctive relief M athews seeks here if he were to qualify for it.

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defendants punished Mathews because of the letters, Mathews has not sufficiently established
that the letters constitute protected speech.
A prison’s restriction on an inmate’s speech may be upheld under the First Amendment
if the restriction is reasonably related to a legitimate 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. While a prisoner has a “general First Amendment
right to criticize [prison] policies,” “he must do so in a manner consistent with his status as a
prisoner.” Watkins v. Kasper, 599 F.3d 791, 797 (7th Cir. 2010).
On the record before me, and based on the first two Turner factors, it does not appear
that Mathews’ letters constitute protected speech. Mathews does not contend that the letters
were permissible “group complaints,” that were going to be submitted through the ICRS.
Instead, Mathews argues that the letters constitute protected speech because they did not
contain demands and because he was drafting them in an attempt to prepare a permissible group
complaint. Mathews claims that he intended to submit a letter to the warden first because other
inmates had done so without punishment. Mathews further avers that he is not a member of
the Gangster Disciples and points out that he was never actually accused of planning or engaging
in violent or disruptive behavior on behalf of the Gangster Disciples.

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Mathews’s arguments do not establish that the conduct report was not logically tied to
a WSPF security concern.

Mathews has not submitted any evidence that objectively or

persuasively rebuts Brown’s belief that Mathews was a member of the Gangster Disciples and
that the letters were an attempt to make demands on behalf of the Gangster Disciples, which
together led Brown to conclude that the letters created a serious security risk. Brown’s affidavit,
summarized above, establish that he has sufficient experience, training and institutional
knowledge to reach these conclusions. Moreover, Mathews has not submitted any evidence
beyond his own denial that would call into question Cichanowicz’s conclusion at Mathews’s
hearing that Brown was more credible than Mathews regarding Mathews’s involvement with the
Gangster Disciples. (Ray decl., Ex. 102., dkt. 37-3, at 16-18.) In sum, the evidence related to
Brown’s opinions and conclusions sufficiently establish that the conduct report and punishment
bear a logical connection to WSPF’s security concerns.
Further, Mathews has an alternative method to raise the concerns voiced in the letters.
Mathews could have followed the procedures for submitting a proper group complaint as he had
done in the past. Mathews chose not to do so. Mathews has not explained why he did not
follow that procedure. Instead, he has submitted evidence that another inmate, Nate Lindell,
has previously submitted a similar letter to prison staff prior to submitting a group complaint
but was not punished for it. (Lindell decl., dkt. 51.) Lindell states that he has not been
punished for the letters he has submitted to Warden Boughton that included multiple issues,
made requests on behalf of multiple inmates about cell assignment, and included objections
about property restrictions. While Lindell’s declaration supports Mathews’s position, it is not
enough to establish that Mathews is entitled to a preliminary injunction. First nothing in the

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court’s record suggests that Lindell’s letters included language of the sort Mathews used that
Brown found “demanding.”

More importantly, the fact that another inmate’s acts went

unpunished does not establish that the group complaint procedure was not available to Mathews
himself. Just because Lindell might have managed to skate across thin ice without falling
through doesn’t mean that Mathews was excused from using the bridge to cross the pond.
Mathews cites Jones v. Russell, 149 F. Supp. 3d 1095, 1101-02 (W.D. Wis. 2015), as
support for his position, but that decision does not convince me that Mathews’ letters are
protected speech. In Jones, the plaintiff challenged the punishment he received after prison staff
confiscated an affidavit that described gang activity; plaintiff had drafted this affidavit to assist
another inmate with his lawsuit. Id. at 1099. The court concluded that even though the
affidavit contained gang-related information, the defendants could not explain how helping
another inmate with a lawsuit created any sort of a security risk. Id. Here, however, the
defendants’ security concern is not so unthinkingly Pavlovian. To the contrary, the evidence
suggests that Brown, by virtue of being WSPF’s STG Coordinator, had learned that Mathews
was actively affiliated with the Gangster Disciples, and had reason to believe that Mathews was
submitting a group demand on the gang’s behalf.
A more relevant case, also from this district, is Carter v. Ziegler, No. 14-cv-512-wmc, 2016
WL 7383754, at *8 (W.D. Wis. Dec. 20, 2016). At summary judgment, the court rejected the
plaintiff’s argument that a group petition sent to the warden constituted protected speech. Id.
The court upheld the prison policy requiring that group petitions be submitted through the
ICRS, reasoning that while some of the defendants’ stated concerns “ring hollow,” the
requirement provides “oversight and structure, thereby dampening concerns about gang-like

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activity.” Id. The court further emphasized the significant difference between a group petition
submitted through ICRS and a group petition submitted directly to one prison employee, in the
sense that the latter “has the potential of undermining the delicate power dynamic at play in
correctional institutions.” Id. at 9.
Mathews’ letter in this lawsuit was directed to multiple WSPF officials and
administration rather than a single prison employee. However, Mathews acknowledges that he
was writing it with the help of another inmate, and it was drafted to be from the prisoners at
WSPF generally. As a result, the distinction still exists between directing letters to individuals
versus the ICRS system. Regardless, I agree with the court’s observation in Carter that the
requirement that group petitions adhere to stricter standards bears a logical relationship to the
prison’s interest in curbing gang activity. Perhaps later in this lawsuit Mathews might discover
evidence that impeaches Brown’s bases for writing the conduct report, but at this point,
Mathews has not established that he is likely to succeed on his First Amendment claim.

B.

Due Process Claim

Mathews’ Fourteenth Amendment due process claim requires him to prove that: (1) he
has a liberty or property interest with which the state interfered; and (2) the procedures he was
afforded upon that interference were constitutionally deficient. Ky. Dep’t of Corr. v. Thompson,
490 U.S. 454, 460 (1989); Marion v. Columbia Corr. Inst., 559 F.3d 693, 697 (7th Cir. 2009);
Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007). In the prison context, regulations must be
sufficiently definite to give prisoners of ordinary intelligence reasonable notice of what conduct
is prohibited. Rios v. Lane, 812 F.2d 1032, 1038 (7th Cir. 1987) (“a statute which either forbids

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or requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first essential of due
process law”); Toston v. Thurmer, 689 F.3d 828, 832 (7th Cir. 2012) (“A deprivation of liberty
without fair notice of the acts that would give rise to such a deprivation violates the due process
clause[.]”); see also Jones v. Russell, 149 F. Supp. 3d 1095, 1105 (W.D. Wis. Dec. 9, 2015)
(granting summary judgment in prisoner’s favor after finding that policy prohibiting a similar
type of petition violated due process as applied to that prisoner); Wesley v. Grams, No. 10-cv459-slc, dkt. #18 (May 25, 2011) (acknowledging that where a prison policy is too vague to
provide proper notice of prohibited behavior, it violates due process).
Mathews has not shown a likelihood of success on this claim because the evidence does
not suggest that his continued time on administrative confinement implicates a liberty interest.
In the Seventh Circuit, “a liberty interest may arise if the length of segregated confinement is
substantial and the record reveals that the conditions of confinement are unusually harsh.”
Marion v. Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009). Courts in this circuit have
generally concluded that short-term placements in segregation–-typically less than six months-–
do not involve a liberty interest. Longer periods of segregation do require inquiry into the
conditions to determine if they impose an “atypical, significant” hardship. Id. at 697 (citing
Wilkinson v. Austin, 545 U.S. 209, 214, 224 (2005) (prisoners’ liberty interests implicated when
placed in segregation depriving them of virtually all sensory stimuli or human contact for an
indefinite period of time).
As defendants point out, Mathews was placed in disciplinary separation for 50 days,
which is not long enough to implicate a constitutional liberty interest. Mathews, however, does

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not distinguish between his time in disciplinary separation and his time in administrative
confinement, which has been continuous since March of 2016. If Mathews’s elision is justified,
then he is entitled to a review.
In describing his current confinement, Mathews characterizes it as “noxious, toxic, surreal
in a Hieronymous-Boschian sense.”

(Dkt. 47, at 7.)

This characterization is admirably

evocative, and if the fantastical images so conjured were accurate indicators of what Mathews
actually has endured at WSPF, then I would agree that Mathews has established at least a
constitutional liberty interest, if not a solid claim for intercession by Saint Anthony.
However, the evidence related to the actual conditions of Mathews’s confinement does
not implicate due process concerns. Mathews does deal with more limitations than inmates in
general population with respect to his recreational time and access to visitors, canteen, and legal
and educational materials, but those limitations do not deprive him of human interaction or
sensory stimuli to the extent that he has lost a liberty interest. See Hardaway v. Meyerhoff, 734
F.3d 740, 742 (7th Cir. 2013) (finding no liberty interest where inmate was placed with a
confrontational inmate, faced psychological problems, and had only weekly access to the shower
and prison yard). Rather, the evidence shows that Mathews is able to leave his cell for at least
a few hours every week; he interacts with WSPF staff every day; the clothing he receives and the
temperature of his cell appear adequate; he owns and has a television in his cell; and he has at
least some access to the library and legal materials. Mathews avers that he “was denied visits,
phone calls, and certain publications” and suffers from severe depression and physical pain, but
his submissions indicate that he has received responses from both the health and psychological
services units. It thus appears that Mathews has been dealing with mental and physical health

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issues, but also that he has received responses from prison staff. In sum, Mathews has not
submitted sufficient evidence to suggest that his due process claim is likely to succeed.

II.

Motion for Sanctions (dkt. 54)
Mathews also asks that I sanction defendants under Fed. R. Civ. P. 11 on the ground that

defendants’ representations to the court have not been made in good faith. Under Rule 11(c),
the court may sanction violations of Rule 11(b):
By presenting to the court a pleading, written motion, or other paper—whether
by signing, filing, submitting, or later advocating it—an attorney or unrepresented
party certifies that to the best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of
litigation;
(2) the claims, defenses, and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on
belief or a lack of information.
In imposing such sanctions courts should take care to do so only to protect the court and
parties against “callous disregard for governing law or the procedures of the court.” Allison v.
Dugan, 951 F.2d 828, 834 (7th Cir. 1992).
Mathews cites several paragraphs of defendants’ Answer to the Amended Complaint (dkt.
34), the Declaration of Ellen Ray (dkt. 37), and defendants’ Proposed Findings of Fact (dkt. 35),
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in which defendants responded that they lacked knowledge about certain of Mathews’ factual
allegations. Mathews has not shown that defendants’ representations were either made in bad
faith or outright false.

A.

Answer to Amended Complaint

Mathews challenges defendants’ denials to paragraphs 15, 34, 37, 38, 40, 41, 56, 57, but
none of these denials warrant sanctions. Defendants responded that they denied some or all of
the allegations in these paragraphs because the allegations were vague, the defendants lacked
personal knowledge, or the allegations contained incorrect information or a legal conclusion.
Mathews has not submitted facts to the contrary. Rather, it appears that Mathews is frustrated
by the defendants’ responses, which he deems evasive at best, if not deliberately false. To
persuade the court that the defendants are playing fast and loose with the truth, Mathews will
need to develop evidence to establish this. He does not have that evidence at this time.

B.

Preliminary Injunction Response

Finally, Matthews claims that defendants’ response to his motion for preliminary
injunction violates Rule 11 in two ways. First, he attacks counsel’s argument that Mathews’s
desired preliminary injunction is not related to his claim, but Mathews has not submitted any
evidence that would suggest that defendants’ argument was either made in bad faith or based
on false evidence.
Second, Mathews claims that defendants’ violated Rule 11 in the their proposed findings
of fact (dkt. 35, ¶¶ 6, 60, 61) and the Declaration of Ellen Ray (dkt. 37, ¶¶ 9, 23, 46, 48). He
submitted evidence that he contends contradicts Ray’s statements that WSPF makes available
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5-10 hours of out of cell activity per week for inmates in restrictive housing, and that inmates
on administrative confinement and step 3 disciplinary separation receive state-issued televisions.
(Ray decl., dkt. 37 ¶ 23; DPFOF, dkt. 35, ¶ 42.) To establish that Ray’s statement was false,
Mathews avers that he doesn’t always receive that amount of out-of-cell activity per week. This
dispute alone does not establish that Ray or the defendants submitted a misrepresentation that
would warrant sanctions.
As to the availability of televisions, it appears that Mathews did point out an inaccuracy
because defendants submitted Ray’s supplemental declaration admitting that her initial
declaration was incorrect. In fact, inmates may purchase television sets themselves but WSPF
does not provide them. Ray further states that Mathews owns a television set and keeps it in
his cell. (Ray Supp. Decl., dkt. 53, at 1.) While defendants should have gotten their facts right,
it does not appear that this mistake was intentional and I will not sanction them for correcting
the record.

III.

Motion for Assistance in Recruiting Counsel (dkt. 52)
I previously denied Mathews’ request for assistance in recruiting counsel because his

filings indicated that he is capable of representing himself in this matter, but I informed him that
he could renew his request if he discovered that the requirements of this case exceed his
capabilities. Mathews has renewed his request, reporting that: another prisoner had prepared
his previous filings for him but has been moved to a different location; Mathews suffers from
attention deficient disorder, which makes reading and preparing filings incredibly difficult; and
Mathews has to appear for a deposition and does not understand his rights. Mathews has

17

submitted letters from two attorneys who have declined to represent him at this point in the
proceedings. (Dkts. 52-1, 67-1.)
The starting point of the court’s analysis is that there is no right to counsel in civil cases.
Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). Rather, a party who wants court assistance
recruiting counsel must meet several requirements. Santiago v. Walls, 599 F.3d 749, 760-61 (7th
Cir. 2010). Mathews has met the first requirement by establishing that he is unable to afford
counsel because he is proceeding in this matter in forma pauperis.
The second requirement pro se litigants must fulfill is making a showing that he has made
reasonable but unsuccessful efforts on his own to find a lawyer to represent him. While this
court typically requires litigants to submit the names and addresses of at least three attorneys
who have declined to represent them, I will accept Mathews’ unsuccessful attempts with two.
Nonetheless, at this point I am declining to recruit a volunteer attorney to assist Mathews
because I am not persuaded that this is one of those relatively few cases in which it appears from
the record that the legal and factual difficulty of the case exceeds the plaintiff’s ability to
prosecute it. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). The operative question is
not whether a lawyer will do a better job than a prisoner plaintiff because that is true by
definition.4 While I am sympathetic to Mathews’ report that he has difficulty studying the law,
this is a frequent complaint from pro se litigants and it usually can be addressed without finding
a volunteer attorney.

4

As I routinely explain to inmate litigants during our telephonic preliminary pretrial conferences,
the judges in this court would gladly provide a volunteer attorney to every inmate litigant if we had enough
attorneys to do this, but we don’t. This court gets between 250 - 300 new pro se civil lawsuits every year,
most from state prisoners, against a pool of about 30 attorneys who will volunteer to take one case a year.

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More to the point, Mathews has made no showing that he is unable to litigate his claims
without an attorney. The only matters currently before the court are motions filed by Mathews
himself. Dispositive motions are not due until September 2017, so the only task at hand is the
discovery process. Following my preliminary pretrial conference with the parties, Mathews
received a packet of materials that explains the discovery process. (See Prelim. Pretrial Conf.
Order, dkt. 46). He has not explained how or why this informational packet, the Federal Rules
of Civil Procedure, and the other resources available at WSPF, are not sufficient to guide him
through the discovery process without an attorney. Instead, he focuses on his reliance on
another inmate to prepare his submissions, but his reliance on another inmate militates against
recruitment because it indicates that Mathews is using the resources available to him.
More importantly, Mathews seems more than capable of litigating this matter at this
stage without an attorney. His submissions in this case have been clear and well-written with
citations to relevant authority. Mathews has effectively advocated for himself without the help
of an attorney, as demonstrated by his successful motion for reconsideration of my opinion with
respect to his due process claim, as well as his thoroughly researched brief in support of his
motion for a preliminary injunction. Finally, while Mathews may be relying on another inmate
to prepare his filings, he has not explained why he cannot proceed without him, beyond
reporting that he has to pay for postage in exchange for this assistance. While Mathews may be
nervous about the discovery process, I am confident that he can review the federal rules of
procedure and evidence to prepare and advocate for himself. As a result, I will not recruit a
volunteer attorney to assist Mathews at this stage.

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ORDER
IT IS ORDERED that Plaintiff Dion Mathews’ Motion for Preliminary Injunction (dkt.
31), Motion for Sanctions (dkt. 54) and motions for assistance in recruiting counsel (dkts. 52,
67, 70) all are DENIED.

Entered this 17th day of July, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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