Lockett v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

JEREMY LOCKETT,

Plaintiff,

v. OPINION and ORDER

LEBBEUS BROWN, LT TAYLOR, CAPT TOM, 20-cv-339-jdp

and GARY BOUGHTON,

Defendants.

Plaintiff Jeremy Lockett, appearing pro se, alleges that when he was incarcerated at

Wisconsin Secure Program Facility, defendant prison officials disciplined him for working with

another inmate on a lawsuit about religious discrimination at the prison. I granted Lockett

leave to proceed on First Amendment retaliation claims against defendants for retaliating

against him by issuing him a conduct report and convicting him of those charges and on

Fourteenth Amendment claims for being convicted on less than “some evidence.” Dkt. 14. I

also discussed, but did not allow Lockett to proceed on, potential religion-based claims under

the Religious Land Use and Institutionalized Persons Act or the Free Exercise Clause of the

First Amendment. Id. at 4–6. Lockett did not raise all of these theories in his complaint, but I

considered them anyway because pro se plaintiffs are generally not required to plead legal

theories in their complaints. Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005).

Lockett responds with a motion asking me to reconsider my screening order. Dkt. 15.

He says that he does not wish to bring claims under most of the theories that I discussed in

that order. He wants to keep his First Amendment retaliation claims, but he says that the only

other claim he wishes to bring is a due process claim for being convicted of unconstitutionally

vague administrative regulations. I’ve already concluded that his punishment in long-term

segregation is enough to implicate a liberty interest protected by the Due Process Clause.

Because Lockett says that he was punished for completely legitimate activities in preparing a

religious discrimination lawsuit, I construed his due process claim as one for being convicted

without “some evidence” of guilt. Lockett does not want to proceed on that theory. Instead, he

says that Wisconsin Administrative Code §§ DOC 303.24(3) (“Group resistance and

petitions”) and DOC 303.47(2)(a) (“Possession of contraband–miscellaneous”) did not put

him on notice that his litigation activities were infractions. Section DOC 303.24(3) prohibits

inmates from “[p]articipat[ing] in any activity associated with any security threat group or

possess[ing] any written materials, symbols or symbolism related to a security threat group”

and § DOC 303.47(2)(a) prohibits possession of “[i]tems which are not allowed.”

Courts have allowed prisoners to bring due process claims about their discipline under

the similarly worded predecessor to § DOC 303.24 for failing to properly alert inmates that

their conduct was prohibited. See Toston v. Thurmer, 689 F.3d 828, 831–32 (7th Cir. 2012)

(gang-activity regulation didn’t give fair warning that prisoner was forbidden from copying

information from books that could be possessed in prison); Jones v. Russell, 149 F. Supp. 3d

1095, 1105 (W.D. Wis. 2015) (entering summary judgment in prisoner’s favor on due process

claim for being disciplined for preparing and sending an affidavit that prison staff called gang-

related). So I will allow Lockett to proceed on due process claims against defendant Lebbeus

Brown for issuing him the conduct report, defendants Lieutenant Taylor and Captain Tom for

convicting him, and defendant Warden Boughton for affirming the conviction.

ORDER

IT IS ORDERED that:

1. Plaintiff Jeremy Lockett’s motion for reconsideration of the court’s screening order,

Dkt. 15, is GRANTED.

2. Plaintiff is GRANTED leave to proceed with the following claims:

• Fourteenth Amendment due process claims against defendants Brown, Taylor,

Tom, and Boughton.

• First Amendment retaliation claims against defendants Brown, Taylor, Tom, and

Boughton.

Entered November 9, 2020.

BY THE COURT:

/s/

________________________________________

JAMES D. PETERSON

District Judge