Williams, Anthony v. Brown et al

Filing 13

Transmission of Notice of Appeal, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 11 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Docket Sheet) (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ANTHONY A. WILLIAMS, JR.,
OPINION AND ORDER
Plaintiff,
17-cv-11-bbc
v.
CAPT. BROWN, M. KARTMAN, LT.
CICHANOWICZ, CAPT. HANFELD,
CAPT. PRIMMER and GARY BOUGHTON,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff and prisoner Anthony Williams has filed a complaint under 42 U.S.C.
§ 1983 in which he challenges a conduct report that he received for “inciting a disturbance.”
I understand plaintiff to be raising the following claims: (1) defendants Brown, Kartman,
Hanfeld and Boughton disciplined him for failing to provide information regarding an
assault by another prisoner, in violation of the First Amendment; (2) defendant Cichanowiz
refused his request to review evidence before his disciplinary hearing, in violation of the due
process clause; and (3) defendant Primmer found him guilty without sufficient evidence, in
violation of the due process clause.
Plaintiff has made an initial partial payment of the filing fee in accordance with 28
U.S.C. § 1915(b)(1), so his complaint is ready for screening under 28 U.S.C. §§ 1915(e)(2)
and 1915A. The crux of plaintiff’s claim is that he believes that defendants concluded

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incorrectly that he was involved in the assault of another prisoner. However, even if it is
true that plaintiff simply was in the wrong place at the wrong time when the assault
occurred, I cannot allow him to proceed because he points to no constitutional error that
defendants made in reaching their conclusion. Accordingly, I conclude that plaintiff has
failed to state a claim upon which relief may be granted.
Plaintiff fairly alleges the following facts in his complaint. I note that plaintiff cites
a number of exhibits in his complaint, but he did not file those with the court. This did not
prejudice plaintiff because, even without exhibits, I am required to accept as true all the
allegations in this complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

ALLEGATIONS OF FACT
Plaintiff Anthony Williams is a prisoner at the Wisconsin Secure Program Facility,
which is in Boscobel, Wisconsin. On May 18, 2016, plaintiff was getting his hair cut at the
prison barber shop. While there, he saw another prisoner he knew named Wells. Plaintiff
shook Wells’s hand and asked him how he was doing. Immediately after walking away,
Wells attacked a third prisoner named Johnson. Plaintiff had nothing to do with that attack
and did not speak to Wells about it.
Defendant Brown, a correctional officer, investigated the incident and spoke to
plaintiff. When plaintiff did not provide any information, Brown stated, “Since you don’t
want to tell me, you’ll pay.”

Brown gave plaintiff a conduct report for “Inciting a

Disturbance and Assault” in which Brown alleged that a video recording showed plaintiff and

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Wells speaking just before the assault. Brown wrote that plaintiff “must have given an order
to Mr. Wells to attack Mr. Johnson.”
Defendant Hanfeld reviewed the conduct report and concluded that plaintiff Wells
received directions from plaintiff to attack Johnson. However, Hanfeld did not point to any
evidence supporting that conclusion. Defendant M. Kartman, the security director, “signed
off” on the conduct report.
In preparation of his disciplinary hearing, plaintiff asked to review the video tape, but
defendant Cichanowicz denied plaintiff’s request. At the hearing, plaintiff relied on a
statement from Wells, who denied that plaintiff had told him to attack Johnson. After the
hearing, defendant Primmer found plaintiff guilty, writing that “the fact that inmate Wells
assaults another inmate as soon as inmate Williams steps away after saying something to
him makes it more likely than not that inmate Williams directed inmate Wells to assault
inmate Johnson.” Plaintiff received a sentence of 180 days in segregation. Defendant Gary
Boughton, the warden, affirmed the decision.

OPINION
A. Retaliation
I understand plaintiff’s primary claim to be that defendant Brown “retaliated” against
him because Brown “wanted answers” when Brown interviewed him about the prisoner
assault, but he “didn’t know anything.” Cpt. ¶ 18, dkt. #1. To prevail on a retaliation
claim, a plaintiff must prove three things: (1) he was engaging in activity protected by the

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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).
It is not clear what plaintiff believes his protected activity was, but the only plausible
theory is that he believes he had a First Amendment right not to speak when defendant
Brown asked him questions about the assault on inmate Johnson. There is authority for that
view outside the prison context, e.g., Wooley v. Maynard, 430 U.S. 705 (1977); West
Virginia State Bd of Education v. Barnette, 319 U.S. 624 (1943), but courts have expressed
skepticism that prisoners have a right against compelled speech, particularly in the context
of a legitimate investigation. E.g., Clark v. Gipson, No. 13-CV-3012, 2015 WL 328966, at
*6 (C.D. Ill. Jan. 26, 2015); Wilcher v. Raemisch, No. 12-CV-803-JDP, 2014 WL 3509395,
at *5 (W.D. Wis. July 15, 2014).
Even if I assume that prisoners might have a right under the First Amendment to
remain silent in some circumstances, this is not one of them. Although plaintiff does not
provide much factual context in his complaint, he seems to be alleging that defendant Brown
gave him a conduct report for one of two reasons: (1) Brown believed that plaintiff was
involved in the assault but was refusing to admit it; or (2) Brown believed that plaintiff had
some other information about the assault but was refusing to share it. Under either of these
scenarios, plaintiff’s allegations do not state a claim upon which relief may be granted under

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the First Amendment.
If defendant Brown gave plaintiff a conduct report out of a belief that plaintiff was
involved in the assault, that is not a violation of plaintiff’s right to free speech, even if
Brown’s belief was mistaken. Heffernan v. City of Paterson, New Jersey, 136 S. Ct. 1412,
1418 (2016) (adverse act because of “mistaken belief” does not violate First Amendment).
The fact that Brown gave plaintiff a conduct report despite the lack of a confession simply
means that Brown had less evidence to support his belief; it does not mean that plaintiff was
“punished” for not speaking.
Under the second scenario, defendant Brown did not necessarily believe that plaintiff
was involved in the assault, but suspected that plaintiff had some relevant information that
could assist the investigation. Under those circumstances, plaintiff would not have a right
to keep quiet. A prison official’s actions survive scrutiny under the First Amendment if they
are reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89
(1987). In this case, plaintiff acknowledges in his complaint that defendant Brown was
conducting an investigation into an assault of another prisoner. Because Brown had a
legitimate need to investigate the assault, requiring plaintiff to provide any information he
had about the assault would be reasonable under Turner. Again, even if it is true that
plaintiff had no information to give and Brown believed mistakenly that plaintiff was lying,
a mistake is not a First Amendment violation.
It is true that defendant Brown gave plaintiff a conduct report for inciting the attack
and not for refusing to provide information. That might be a violation of prison rules, but

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it would not be a First Amendment violation. As noted above, the first element of a
retaliation claim is that the prisoner was engaging in conduct protected by the Constitution.
Because I have concluded that plaintiff did not have a right under the First Amendment to
remain silent, he can not challenge his conduct report under the First Amendment, even if
he was disciplined for the wrong reason.
Plaintiff’s retaliation claim against defendants Kartman, Hanfeld and Boughton is
even weaker. He does not allege that any of them disciplined him because of anything he
said or did not say. Rather, he seems to blame them for concluding that the evidence against
him was sufficient, but that has nothing to do with the First Amendment. I consider
plaintiff’s sufficiency of the evidence claim below.

B. Due Process
I understand plaintiff to be raising two claims under the due process clause: (1)
defendant Cichanowiz refused his request to review evidence before his disciplinary hearing;
and (2) defendants Primmer, Kartman, Hanfeld and Boughton found him guilty without
sufficient evidence. Plaintiff has not stated a claim upon which relief may be granted under
either theory.
Plaintiff’s claim against defendant Cichanowicz has two elements: (1) the disciplinary
hearing deprived plaintiff of a “liberty interest” or “property interest”; and (2) plaintiff did not
receive all the process that he was due. Abcarian v. McDonald, 617 F.3d 931, 941 (7th Cir.
2010).

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As to the first element, plaintiff alleges that he was placed in segregation for six
months as a result of the conduct report. I will assume for the purpose of this order that six
months in segregation is an “atypical and significant hardship” that triggers the protections
of the due process clause. Black v. Bennett, No. 15-CV-1311-JPG, 2016 WL 4733158, at
*3 (S.D. Ill. Sept. 12, 2016) (“[T]he Seventh Circuit has found that six months of
disciplinary segregation approaches a cusp where it may be necessary to create a factual
record of the actual conditions of said confinement to determine whether procedural due
process rights are implicated.”) (citing Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir.
1995), and Marion v. Columbia Correction Inst., 559 F.3d 693, 698-99 (7th Cir. 2009)).
However, any process that plaintiff was due did not include reviewing the video recording.
Rather, plaintiff’s right to process would be limited to notice of the reasons for the proposed
placement and an adequate opportunity to present his views regarding why he should not
be disciplined. Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012).
Even if I assume that a prisoner being placed in segregation might have a due process
right to review evidence in some circumstances, this would not be one of them because
plaintiff does not identify any purpose that viewing the video would serve. In particular, he
admits what the video allegedly showed, which is that he was speaking to Wells just before
he attacked Johnson. Plaintiff does not allege that any of the defendants summarized the
video in a way that did not reflect what actually happened. Rather, plaintiff takes issue with
the inferences that defendants drew from the video. Because there is no factual dispute
between plaintiff and defendants regarding what the video should show, plaintiff’s inability

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to view the video could not have had any adverse effect on his case. Clancy v. Office of
Foreign Assets Control of U.S. Dept. of Treasury, 559 F.3d 595, 601 (7th Cir. 2009)
(“Although the right to additional procedural protections does not depend on a
demonstration of certain success, the deprivation must involve arguable issues that plausibly
would have prevented an erroneous deprivation.”).
As to plaintiff’s claim against defendants Primmer, Kartman, Hanfeld and Boughton,
the standard for sufficiency of the evidence in the context of prison disciplinary proceedings
is low. "[T]he relevant question is whether there is any evidence in the record that could
support the conclusion reached by the disciplinary board." Superintendent, Massachusetts
Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455-56 (1985). This standard does
not permit the court to “weigh the evidence” to determine which side had the more
persuasive case. Eichwedel v. Chandler, 696 F.3d 660, 675 (7th Cir. 2012).
The evidence plaintiff identifies in his complaint satisfies this standard. Again,
plaintiff admits that he spoke to Wells immediately before Wells turned to attack Johnson.
That may not be the strongest evidence, but it provides some support for a finding that
plaintiff was involved in the attack. Plaintiff seems to believe that Primmer needed direct
evidence in the form of an admission from plaintiff or testimony from a witness who heard
plaintiff make an incriminating statement. However, circumstantial evidence like that cited
by defendant Primmer is sufficient to satisfy the due process clause in the context of a
disciplinary proceeding. Hill, 472 U.S. at 457 (due process is satisfied even if “no direct
evidence” exists and even if circumstantial evidence is “meager”). See also Hamilton v.

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O'Leary, 976 F.2d 341, 345–46 (7th Cir. 1992) (weapons found in cell occupied by
petitioner and three other cellmates sufficient to establish that petitioner possessed weapon).

ORDER
IT IS ORDERED that plaintiff Anthony Williams, Jr.’s complaint is DISMISSED for
failure to state a claim upon which relief may be granted. The clerk of court is directed to
enter judgment in favor of defendants and close this case. A “strike” will be recorded
pursuant to 28 U.S.C. § 1915(g).
Entered this 28th day of February, 2017.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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