Stanley Felton v. Lebbeus Brown

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-1635

STANLEY L. FELTON, also known as G’ESA KALAFI,

Plaintiff-Appellant,

v.

LEBBEUS BROWN, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:19-cv-00319 — Stephen L. Crocker, Magistrate Judge.

____________________

ARGUED APRIL 11, 2023 — DECIDED FEBRUARY 25, 2025

____________________

Before SCUDDER, ST. EVE, and LEE, Circuit Judges.

LEE, Circuit Judge. Stanley Felton was incarcerated at the

Wisconsin Secure Program Facility from 2007 until 2015. He

filed a pro se complaint asserting numerous 42 U.S.C. § 1983

claims against several prison employees. Felton brought

Eighth and Fourteenth Amendment claims against Warden

Tim Haines and Gary Boughton (who, Felton alleges, suc-

ceeded Haines), based on Felton’s continued detention in sol-

itary confinement. He also alleged First Amendment claims

2 No. 21-1635

against three other prison officials—Lebbeus Brown, Joseph

Cichanowicz, and Daniel Winkleski—claiming that they had

illegally confiscated his outgoing mail. 1 The district court dis-

missed Felton’s Eighth and Fourteenth Amendment claims af-

ter screening the complaint pursuant to 28 U.S.C. § 1915A and

later denied his motion to file an amended complaint. Then,

after discovery, the court entered summary judgment against

him on the First Amendment claims. Felton appeals the dis-

trict court’s orders denying his motion to amend and granting

summary judgment. For the reasons discussed below, we af-

firm.

I. Background

A. Administrative Confinement

The facts concerning Felton’s time in administrative con-

finement are taken from his proposed amended complaint,

which (for purposes of our decision) we take to be true. See

infra at 9. At some point on or before July 10, 2013, Felton was

placed in administrative confinement, a form of segregated

confinement imposed for non-disciplinary purposes. See

Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir. 2008). The con-

ditions of his confinement were severe. Among other things,

he had “no free movement,” “no human contact,” and “lim-

ited personal property.”

Under Wisconsin law, an inmate’s continued detention in

administrative confinement “shall be reviewed” by the Ad-

ministrative Confinement Review Committee every six

1 Felton also brought Fourteenth Amendment claims against these in-

dividuals for their role in his disciplinary proceedings, but he has not pur-

sued those claims on appeal.

No. 21-1635 3

months. Wis. Admin. Code § DOC 308.04(10). Pursuant to this

regulation, Felton was entitled to a six-month review on Jan-

uary 10, 2014. But he did not receive a hearing until five days

later, on January 15, 2014. Based on this hearing, the commit-

tee issued an order keeping Felton in administrative segrega-

tion.

Felton appealed the order through Wisconsin’s certiorari

appeal process. On June 1, 2015, a judge in the Wisconsin

Dane County Circuit Court granted relief and ordered a new

administrative confinement hearing. The rehearing occurred

on June 10, 2015. Meanwhile, Felton moved for reconsidera-

tion before the state court, asking that the confinement order

be nullified. On August 28, 2015, the state court granted his

motion and vacated the administrative confinement order

from the January 2014 hearing, stating that “[t]he remedy for

an untimely hearing is not another untimely hearing.”

Shortly thereafter, Felton, who was still in segregation,

filed an internal prison grievance, contending that his contin-

ued administrative confinement was illegal in light of the

state court order. Boughton (who was the warden at this time)

responded that he was in the process of seeking guidance

from the Wisconsin Assistant Attorney General regarding the

applicability of the state court’s decision. Furthermore,

Boughton explained, Felton was not placed in administrative

confinement based on the January 2014 hearing or the June

2015 rehearing, but due to a separate hearing held on August

5, 2015 (the record contains no further information about this

August 5 hearing).

On September 17, 2015, Boughton, writing for the Admin-

istrative Confinement Review Committee, informed Felton

that he would remain in administrative confinement until his

4 No. 21-1635

planned transfer to a different institution. But this plan would

soon change.

B. Confiscated Mail

The facts concerning Felton’s claim for improper confisca-

tion of mail are taken from the summary judgment record and

are construed in his favor. FKFJ, Inc. v. Vill. of Worth, 11 F.4th

574, 584 (7th Cir. 2021). Shortly after the state court vacated

his administrative confinement order, Felton made plans to

publicize his victory. Specifically, he wanted his mother to

make copies of the decision so that he could distribute it to

other inmates to instruct them how to get out of segregation.

On September 20, 2015, Felton set his plan into motion. He

wrote his mother a letter enclosing the state court decision

and asked her to make copies. On the other side of the letter,

Felton wrote a note to his brother. The note said: “This chump

Michael Ray owe[s] [me] $2700…. He [is] trying to pull a

move on me…. This is what I’ll do for you[.] I need you to

stand on this dude Gangsta Mentality and you can have

$1200, sending me $1500. If I was out there[,] his mama a be-

ing missin’ another son.”

At the prison, all outgoing mail from inmates in adminis-

trative confinement (except for legal mail) was picked up and

reviewed by staff to check for contraband and illegal commu-

nication. See Wis. Admin. Code § DOC 309.04(4)(a) (except for

legal mail, “[i]ncoming and outgoing mail may be opened and

inspected for contraband”). Suspicious mail was “regularly”

routed to Brown, whose duties included investigating un-

sanctioned activity within the prison, for further review.

No. 21-1635 5

After receiving Felton’s outgoing mail, 2 Brown deter-

mined that Felton’s note to his brother contained threatening

language, thereby violating Wisconsin prison regulations

proscribing the unauthorized use of mail and the making of

threats. See Wis. Admin. Code §§ DOC 303.49(9), 303.18(1).

Brown issued a conduct report against Felton and submitted

the entire contents of the envelope (both the letter with the

threatening note and the state court decision) as evidence. The

conduct report triggered disciplinary proceedings, in which

Brown had no further involvement.

Felton’s disciplinary hearing occurred on October 8, 2015;

Cichanowicz served as the hearing officer. Cichanowicz, too,

concluded that the letter contained threatening language and

found Felton guilty of violating Wisconsin prison regulations.

Cichanowicz ordered that Felton spend sixty days in discipli-

nary segregation and that all evidence (the letter and decision)

be retained. Felton submitted an internal appeal.

The appeal went to Winkelski, the Deputy Warden. He re-

viewed Felton’s letter and agreed with Cichanowicz’s conclu-

sion that it contained threatening language. Winkelski there-

fore affirmed Cichanowicz’s decision.

Throughout the proceedings, the prison retained both the

letter and the state court order that accompanied it. According

to the defendants, when a prisoner is charged with “unau-

thorized mail,” all contents in the mailing are kept in a single

2 Felton contends that Brown targeted and personally picked up his

outgoing mail, but he offers no evidence of this. Felton only notes that his

envelope lacked any initials, despite a prison policy requiring third shift

staff to initial and date any mail that was picked up. Even so, this lapse in

policy does not suggest that Brown personally intercepted Felton’s mail.

6 No. 21-1635

“contraband unit” for at least 120 days after the hearing, in

the event the prisoner appeals.

After these proceedings, Felton’s segregated status

changed from administrative to disciplinary. He remained

confined until November 10, 2015, when he was transferred

to a different prison.

In April 2019, Felton filed a pro se complaint underlying

this appeal. In it, he alleged that Boughton had violated the

Fourteenth and Eighth Amendments by not “honoring the

[state] court’s order and leaving [him] in excessive confine-

ment.” Felton also alleged that Brown, Cichanowicz, and

Winkelski had violated the First Amendment by confiscating

his outgoing mailing and issuing “retaliator[y]” discipline.

The district court screened the complaint pursuant to

28 U.S.C. § 1915A. The court permitted Felton’s First Amend-

ment interference and retaliation claims to proceed but dis-

missed all claims Felton had asserted against Boughton due

to his lack of personal involvement. Felton then sought leave

to file an amended complaint, adding Haines as a defendant

with respect to the Eighth and Fourteenth Amendment

claims. The district court denied Felton’s request, concluding

that neither Boughton nor Haines were personally involved

in any administrative confinement decisions. See Kalafi v.

Brown, No. 19-cv-319-slc, 2020 WL 5411321 (W.D. Wis. Sept. 9,

2020).

The case proceeded, and the district court eventually

granted summary judgment in favor of Brown, Cichanowicz,

and Winkelski. In its order, the district court concluded that

the prison’s confiscation of Felton’s mailing did not violate his

First Amendment rights, and in any event, the defendants

No. 21-1635 7

were entitled to qualified immunity. Additionally, the court

explained, the defendants did not discipline Felton in retalia-

tion for his attempt to send the state court decision to other

inmates but for sending a letter containing threatening lan-

guage. See Kalafi v. Brown, No. 19-cv-319-slc, 2021 WL 877757

(W.D. Wis. Mar. 9, 2021).

Felton appealed. After reviewing Felton’s pro se opening

brief, we recruited counsel to address whether Felton had al-

leged a Fourteenth Amendment procedural due process

claim. Eventually, counsel withdrew, citing irreconcilable dif-

ferences with Felton, but filed an amicus curiae brief. We there-

fore consider the issues raised by Felton’s pro se briefs as sup-

plemented by amicus curiae. See McCoy v. Atherton, 818 F.

App’x 538, 541 (7th Cir. 2020).

II. Appellate Jurisdiction

Before proceeding further, we must ensure that our juris-

diction is secure. The defendants claim that Felton’s notice of

appeal was untimely, which would preclude appellate re-

view. See Bowles v. Russell, 551 U.S. 205, 214 (2007). Felton was

required to file his notice of appeal by April 8, 2021, which

was 30 days after the district court’s entry of final judgment.

See Fed. R. App. P. 4(a)(1)(A). Because Felton’s notice was not

docketed until April 12, 2021, his appeal is considered timely

only if he can benefit from the prison mailbox rule.

The prison mailbox rule provides that “a prisoner’s notice

of appeal is deemed filed at the moment the prisoner places it

in the prison mail system, rather than when it reaches the

court.” Hurlow v. United States, 726 F.3d 958, 962 (7th Cir.

2013); see Houston v. Lack, 487 U.S. 266, 275–76 (1988). This rule

was codified in Federal Rule of Appellate Procedure 4(c),

8 No. 21-1635

which requires the prisoner to provide proof of timely de-

posit. Such proof includes “evidence (such as a postmark or

date stamp) showing that the notice was so deposited and that

postage was prepaid.” Fed. R. App. P. 4(c)(1)(A)(ii).

The envelope containing Felton’s notice of appeal bears

two stamps. One simply states “Milwaukee, WI” and is dated

April 9, 2021. The other is a postage stamp for twenty cents

dated April 8, 2021, from the zip code “53073.” At the time

Felton sent the notice, he was incarcerated at Kettle Moraine

Correctional Institution, which is located in Plymouth, Wis-

consin.

The facts here satisfy the prison mailbox rule. Although

the envelope bears two dates—April 8 and April 9 (the latter

of which would render this appeal untimely)—the April 8

postage stamp came from 53073, an area that includes Plym-

outh, Wisconsin, but not Milwaukee. The only “logical infer-

ence” is that Felton’s envelope was deposited into the prison’s

mailing system on April 8 and then sent to Milwaukee on

April 9 for delivery to the district court. See Ingram v. Jones,

507 F.3d 640, 644 (7th Cir. 2007) (relying on “logical infer-

ence[s]” to establish the prison mailbox rule’s factual predi-

cates). Thus, this appeal is timely, and we proceed to the mer-

its.

III. Denial of Leave to Amend

We first consider the district court’s decision to deny Fel-

ton leave to amend his complaint to bring Fourteenth and

Eighth Amendment claims against Haines and Boughton. The

district court concluded that amendment would be futile be-

cause the proposed complaint failed to allege that Haines and

Boughton were personally involved in the decision to keep

No. 21-1635 9

Felton in administrative confinement. See Childress v. Walker,

787 F.3d 433, 439 (7th Cir. 2015) (a prison official is only per-

sonally liable under § 1983 if they were “personally responsi-

ble for a constitutional deprivation”).

Although we typically review a district court’s decision to

deny a motion to amend for abuse of discretion, when the rea-

son is futility, we review it de novo. See Runnion ex rel. Runnion

v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510, 524 (7th

Cir. 2015). Thus, we ask whether the proposed complaint

plausibly alleges that Haines and Boughton violated Felton’s

Eighth and Fourteenth Amendment rights. See id. We con-

clude that it does not, although for slightly different reasons

than the district court. As we will explain, Felton’s Fourteenth

Amendment claim fails because he has not adequately alleged

a constitutional violation, and he has waived his Eighth

Amendment claim on appeal.

A. Fourteenth Amendment Claim

The Fourteenth Amendment prohibits the states from de-

priving “any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, § 1. To establish a

procedural due process claim, Felton must demonstrate: “(1)

the deprivation of a liberty interest; and (2) the procedures he

was afforded were constitutionally deficient.” Lisle v. Welborn,

933 F.3d 705, 720 (7th Cir. 2019).

It is well-established that prisoners have a protected lib-

erty interest in avoiding segregated confinement when it “im-

poses atypical and significant hardship on the inmate in rela-

tion to the ordinary incidents of prison life.” Wilkinson v. Aus-

tin, 545 U.S. 209, 222–23 (2005) (quoting Sandin v. Conner,

515 U.S. 472, 484 (1995), overruled on other grounds by Edwards

10 No. 21-1635

v. Balisok, 520 U.S. 641 (1997)). This turns on “the duration of

the segregation and the conditions endured.” Lisle, 933 F.3d at

721. Here, Felton was held in administrative confinement

from at least July 2013 until October 2015—a period of over

two years. 3 During this time, Felton was in almost complete

solitude, with no human contact or free movement. See Marion

v. Columbia Corr. Inst., 559 F.3d 693, 697–99 (7th Cir. 2009)

(segregation lasting over six months, with atypically harsh

conditions, triggers a liberty interest).

The defendants ask us to ignore Felton’s lengthy time in

segregation and the harsh conditions therein. As they see it,

Felton categorically cannot state a liberty interest because he

was in discretionary confinement—that is, “segregation im-

posed for administrative, protective, or investigative pur-

poses,” as opposed to segregation imposed for disciplinary

purposes. Townsend, 522 F.3d at 771; see also Lekas v. Briley,

405 F.3d 602, 608–09 (7th Cir. 2005). We are skeptical of this

argument, especially as applied to a confinement as lengthy

and severe as Felton’s. In such cases, there is a significant risk

that the purported administrative purpose is merely “a pre-

text for indefinite confinement.” Isby v. Brown, 856 F.3d 508,

524 (7th Cir. 2017) (citing cases and concluding that the pris-

oner had a liberty interest given the “extraordinary length” of

his confinement in administrative segregation); Earl v. Racine

Cnty. Jail, 718 F.3d 689, 691 (7th Cir. 2013) (explaining that an

inmate has a liberty interest when he is confined “for a signif-

icantly long time” or his conditions “are particularly harsh

3As noted, Felton’s segregation status changed from administrative to

disciplinary in October 2015, and he remained in disciplinary confinement

until his transfer to another prison in November 2015.

No. 21-1635 11

compared to ordinary prison life”); see also Marion, 559 F.3d at

697, 697 n.2 (distinguishing Townsend, which found no liberty

interest in transfer to administrative confinement, and other

cases as “involv[ing] relatively short periods of segregation”).

We need not decide this issue, however, or delve into the

defendants’ various arguments against Felton’s asserted lib-

erty interest. Even assuming Felton’s liberty was implicated

by his prolonged administrative segregation, he has not al-

leged that the process afforded to him was constitutionally

deficient.

Notably, Felton does not take issue with the procedures

surrounding his initial placement in administrative confine-

ment. Instead, he challenges the procedures used to keep him

in segregation after his arrival. Specifically, Felton claims that

his detention was unlawful after January 10, 2014, because

Wisconsin state law entitled him to a six-month committee re-

view on that date, see Wis. Admin. Code § DOC 308.04(10),

but the review did not take place until five days later. Further-

more, he remained in segregation for several months beyond

that date even though he had appealed the confinement order

and a state court judge had vacated it in August 2015.

The requirements of the Due Process Clause are “flexible

and variable dependent upon the particular situation being

examined.” Hewitt v. Helms, 459 U.S. 460, 472 (1983), super-

seded by statute on other grounds. In the context of continued

administrative confinement, inmates are entitled to “periodic

review,” which—like the initial placement decision—may be

“an informal and nonadversary” process. Westefer v. Neal,

682 F.3d 679, 686 (7th Cir. 2012) (cleaned up). The frequency

of this periodic review is generally committed to the discre-

tion of prison officials, but the reviews must “be sufficiently

12 No. 21-1635

frequent that administrative segregation does not become ‘a

pretext for indefinite confinement of an inmate.’” Id. (quoting

Hewitt, 459 U.S. at 477 n.9); see Isby, 856 F.3d at 527 (the basic

question is whether the periodic review is “meaningful and

non-pretextual”).

Felton’s only challenge to the untimely January 2014 hear-

ing is that it was unlawful under Wisconsin law. Violations of

state law, however, do not automatically establish a federal

constitutional claim. See, e.g., Bradley v. Village of University

Park, 929 F.3d 875, 883, 883 n.3 (7th Cir. 2019). That means Fel-

ton must provide some reason why the prison’s actions—

providing a committee review six months and five days after

the prior committee review—did not provide sufficient pro-

cess.

On appeal, amicus curiae offers several reasons, but none

are persuasive. Amicus first argues that the untimely January

2014 hearing was akin to a court without “competent jurisdic-

tion” depriving someone of their liberty. See Frank v. Mangum,

237 U.S. 309, 326 (1915). But Felton has not alleged that the

committee was incompetent, just that its hearing was five

days late. We are mindful that due process—particularly in

the prison context—is “flexible,” Hewitt, 459 U.S. at 472, and

should not entail a hypertechnical inquiry dependent on any

one state statute or regulation. Cf. Sandin, 515 U.S. at 482 (ex-

plaining that making liberty interests overly contingent on

prison regulations disincentivizes states from “codify[ing]

No. 21-1635 13

prison management procedures” and involves “federal courts

in the day-to-day management of prisons”). 4

Amicus curiae also argues that Felton’s due process rights

were violated because he did not receive another review be-

tween his January 15, 2014 hearing and the June 10, 2015 re-

hearing. We assume that a seventeen-month gap between

“periodic review[s]” of Felton’s administrative confinement

would be unconstitutional. See Westefer, 682 F.3d at 686 (citing

cases holding a 120-day and a 30-day interval constitutionally

sufficient). But nowhere does the proposed amended com-

plaint allege that the prison either unreasonably delayed or

completely deprived Felton of any required hearings between

January 2014 and June 2015. Instead, he alleges rather crypti-

cally that “[a]ny hearing done after the Jan. 15, 2014[] hearing

was untimely.” Furthermore, the proposed amended com-

plaint mentions other hearings in passing (one on December

27, 2014, and another on August 5, 2015), although the reason

for these hearings is unclear. What is more, Wisconsin law

provides another procedural safeguard, which Felton ig-

nores—the warden must conduct his own progress review at

4 Given our conclusion, we do not reach the defendants’ alternative

argument that, because this violation of Wisconsin state law was “random

and unauthorized,” Felton could receive sufficient process through post-

deprivation state remedies. See, e.g., Parratt v. Taylor, 451 U.S. 527, 541

(1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986);

Hamlin v. Vaudenberg, 95 F.3d 580, 584–85 (7th Cir. 1996).

14 No. 21-1635

least every 30 days. Wis. Admin. Code §§ DOC 308.04(10);

303.73(13). 5

To state a due process claim, Felton must plausibly allege

that the prison’s procedures involving inmates in administra-

tive confinement were constitutionally inadequate. Although

we acknowledge that a pro se prisoner’s complaint must be

liberally construed, the gravamen of the proposed amended

complaint was the delayed January 2014 hearing by which

time, according to Felton, the review committee “lost compe-

tency.” It cannot be read as broadly as amicus proposes.

Although Felton cannot proceed on his due process claim,

we are concerned by his assertion that prison officials ignored

a state court decision vacating his administrative confinement

order. That said, it is not clear whether the state court’s vaca-

tur meant that Felton had to be immediately released from

administrative confinement. Prison officials seemed confused

as well: according to Boughton, he thought it necessary to

seek guidance from the Wisconsin Attorney General’s Office,

which in turn filed a motion for clarification with the state

court. Although it would be troubling if prison officials ig-

nored a clear mandate issued by a court, this was not the basis

of the proposed due process claim (nor was it sufficiently al-

leged), and we offer no view given the state of this record. As

presented to us, the district court did not err when concluding

that Felton did not state a Fourteenth Amendment due pro-

cess claim.

5 Significantly, neither Felton nor amicus challenges Wisconsin’s re-

view procedures themselves—that is, that due process requires something

more than six-month committee reviews or monthly progress reviews. Be-

cause this issue was not briefed, we cast no judgment either way.

No. 21-1635 15

B. Eighth Amendment Claim

Felton also asserted an Eighth Amendment claim against

Boughton and Haines based on the same conduct that formed

the basis of the due process claim. While a due process claim

challenges the procedures used to place an inmate in atypi-

cally harsh conditions, an Eighth Amendment claim alleges

that the conditions themselves “amount[] to cruel and unu-

sual punishment.” Giles v. Godinez, 914 F.3d 1040, 1051 (7th

Cir. 2019) (citation omitted). To establish an Eighth Amend-

ment conditions-of-confinement claim, the prisoner must

make “an objective showing that the conditions are suffi-

ciently serious” and “a subjective showing of a defendant’s

culpable state of mind.” Isby, 856 F.3d at 521 (citations omit-

ted).

Here, the district court rejected the Eighth Amendment

claim, concluding that Boughton and Haines were not in-

volved in the committee’s decision to prolong Felton’s con-

finement. It does not appear, however, that the district court

considered whether Boughton and Haines, as the warden at

various points, possessed the requisite knowledge to trigger

an Eighth Amendment claim. See, e.g., Antonelli v. Sheahan,

81 F.3d 1422, 1429 (7th Cir. 1996) (at the pleadings stage, high-

ranking prison officials “can be expected to know of or partic-

ipate in creating systemic, as opposed to localized, situa-

tions”). This is understandable—Felton’s complaint focused

almost exclusively on the untimeliness of his January 2014

hearing and only briefly mentioned the conditions of his con-

finement.

We will assume, for present purposes, that Felton in-

tended to bring an Eighth Amendment conditions-of-confine-

ment claim before the district court and that his proposed

16 No. 21-1635

amended complaint plausibly alleges such a claim. The prob-

lem is that neither he nor amicus contest the district court’s

rejection of this claim to any meaningful degree on appeal.

Felton notes in his pro se brief that, as warden, Boughton had

the legal authority to release him from administrative confine-

ment. But he offers no argument as to how this is sufficient to

support an Eighth Amendment conditions-of-confinement

claim, nor does he offer any supportive authority. See Batson

v. Live Nation Ent., Inc., 746 F.3d 827, 833 (7th Cir. 2014) (“per-

functory and underdeveloped” arguments are forfeited). As

for amicus’s opening brief, it only mentions a constitutional

violation that “occurred” on January 10, 2014; does not dis-

cuss the alleged prison conditions (or Boughton’s and

Haines’s supposed knowledge of these conditions); and cites

a single case that only involves a procedural due process

claim. Thus, any argument that the district court erred in re-

jecting the Eighth Amendment claim against Boughton and

Haines was so underdeveloped as to be forfeited, if not

waived. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir.

2012).

IV. First Amendment Claim

Next, we consider the summary judgment against Felton

as to his First Amendment claims against Brown, Cichan-

owicz, and Winkleski for confiscating his letter and the state

court decision, which we review de novo. See FKFJ, 11 F.4th at

584. “Summary judgment is proper when there is no genuine

dispute of material fact, and the moving party is entitled to

judgment as a matter of law.” Id. On this record, the district

court properly granted summary judgment to the defendants.

The First Amendment protects a prisoner’s interest in his

incoming and outgoing mail correspondence. Van den Bosch v.

No. 21-1635 17

Raemisch, 658 F.3d 778, 785 (7th Cir. 2011). Incoming mail is

governed by the test announced in Turner v. Safley, 482 U.S. 78

(1987), which asks whether the prison’s censorship is “reason-

ably related to legitimate penological interests.” Id. at 89. Out-

going mail, however, receives greater constitutional protec-

tion and is governed by the test established in Procunier v.

Martinez, 416 U.S. 396 (1974), partially overruled by Thornburgh

v. Abbott, 490 U.S. 401, 413–14 (1989); see Koutnik v. Brown,

456 F.3d 777, 784 (7th Cir. 2006) (recognizing that Martinez no

longer applies to incoming mail, but still applies to outgoing

mail). Here, of course, we are dealing with outgoing mail.

The Martinez test asks two questions: (1) whether the reg-

ulation or practice furthers “an important or substantial gov-

ernmental interest unrelated to the suppression of expres-

sion,” such as the government’s interest in “security, order,

and rehabilitation”; and (2) whether the challenged action is

“no greater than is necessary” to protect that governmental

interest. Martinez, 416 U.S. at 413. Although this “no greater

than necessary” language does not impose a “strict least re-

strictive means test,” it still requires “a close fit” between the

challenged action and purported interest. Thornburgh,

490 U.S. at 411 (cleaned up). Furthermore, when considering

prison regulations, we must accord substantial deference to

professional judgments and expertise of prison officials. See

Koutnik, 456 F.3d at 785; see also Overton v. Bazzetta, 539 U.S.

126, 132 (2003) (“We must accord substantial deference to the

professional judgment of prison administrators, who bear a

significant responsibility for defining the legitimate goals of a

corrections system and for determining the most appropriate

means to accomplish them.”); Martinez, 416 U.S. at 404–05 (ex-

plaining that “the problems of prisons in America are

18 No. 21-1635

complex and intractable” and “require expertise, comprehen-

sive planning, and the commitment of resources”).

Turning first to Felton’s letter, we easily conclude that Fel-

ton’s First Amendment rights were not violated by its confis-

cation. Each defendant reasonably interpreted Felton’s letter

as threatening physical harm to a person named Michael Ray.

This was based on Felton’s statements that Ray owed him

$2,700, that Felton would pay his brother $1,200 to “stand on

[Ray] Gangsta Mentality,” and that if Felton was “out there,”

Ray’s mother would be “missin[g] another son.” As such, they

properly concluded that Felton’s letter violated Wisconsin’s

prison regulations prohibiting such mail. 6 See Wis. Admin.

Code §§ DOC 303.49(9), 303.18(1). And the confiscation of the

letter was not “greater than necessary” to protect the state’s

interest in ensuring public safety and preventing crime. See

Martinez, 416 U.S. at 413 (“Perhaps the most obvious example

of justifiable censorship of prisoner mail would be refusal to

send or deliver letters concerning … proposed criminal activ-

ity, whether within or without the prison.”).

Felton’s primary argument is that his letter was not a “true

threat” under First Amendment jurisprudence. See United

States v. Parr, 545 F.3d 491, 496–97 (7th Cir. 2008) (explaining

that the First Amendment does not protect “certain categories

of speech having little or no social value,” such as true threats)

(citing Virginia v. Black, 538 U.S. 343, 358–59 (2003)). This

6 To resist this conclusion, Felton offers several declarations from in-

dividuals who opine that the “stand on” statement is not threatening in

“black culture.” But Felton offers no explanation for the other threatening

statements in his letter—namely, that Ray’s mother would be “missin[g]”

a son.

No. 21-1635 19

argument is misplaced. When determining whether the First

Amendment protects an incarcerated individual’s speech, we

look to the tests the Supreme Court established for prisons.

See Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010) (“the

question of whether a prisoner’s speech is protected is gov-

erned by” the Turner standard); Bridges v. Gilbert, 557 F.3d 541,

551 (7th Cir. 2009) (same). Thus, what matters is not whether

Felton’s letter was a “true threat,” but whether the letter was

protected under the Martinez test.

The defendants’ retention of the state court order that ac-

companied the letter is a harder question. The district court

concluded that, even if their actions violated the First Amend-

ment, the defendants were entitled to qualified immunity.

Given the facts of this case, we agree.

“Qualified immunity ‘protects government officials from

liability for civil damages insofar as their conduct does not vi-

olate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Hobgood v.

Ill. Gaming Bd., 731 F.3d 635, 648 (7th Cir. 2013) (quoting Pear-

son v. Callahan, 555 U.S. 223, 231 (2009)). Thus, an official will

be protected by qualified immunity “unless the plaintiff

shows: ‘(1) that the official violated a statutory or constitu-

tional right, and (2) that the right was “clearly established” at

the time of the challenged conduct.’” Kemp v. Liebel, 877 F.3d

346, 350 (7th Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 735 (2011)).

Focusing on the second prong, once a defendant raises the

defense of qualified immunity, the plaintiff must point to “ex-

isting precedent” that “placed the … constitutional question

beyond debate.” Green v. Newport, 868 F.3d 629, 633 (7th Cir.

2017) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). In

20 No. 21-1635

determining this, “[t]he dispositive question is ‘whether the

violative nature of particular conduct is clearly established.’”

Mullenix, 577 U.S. at 12 (quoting al-Kidd, 563 U.S. at 742) (em-

phasis in original).

Citing Martinez, Felton argues that his First Amendment

right not to have his outgoing mail confiscated was clearly es-

tablished. But, given the facts of this case, his argument con-

ceptualizes the right in question at too high a level of general-

ity. See Plumhoff v. Rickard, 572 U.S. 765, 779 (2014). Instead,

the controlling question is whether it was clearly established

that the First Amendment required prison officials to separate

and return a noncontraband item that accompanied his con-

traband letter even though the two were in the same envelope.

Courts have addressed the selective confiscation of prison

mail, but only in the context of incoming mail, which is gov-

erned by Turner rather than Martinez. And, in those cases, we,

along with the Supreme Court, have rejected the proposition

Felton espouses here that the First Amendment requires

prison officials to separate and deliver non-objectionable mail

rather than retain the entire mailing. See Thornburgh, 490 U.S.

at 418–19 (prison officials reasonably believed that “tearing

out the rejected portions and admitting the rest of the publi-

cation would create more discontent than the [prison’s] cur-

rent practice”); Lindell v. McCaughtry, 115 F. App’x 872, 879

(7th Cir. 2004) (rejecting a prisoner’s proposal that his prison

“should have redacted the offending portions of the [incom-

ing] magazine and given him the rest”); see also Kalafi,

2021 WL 877757, at *12 (collecting district court cases uphold-

ing an all-or-nothing rule for incoming mail, and noting that

there is little to no caselaw concerning this rule for outgoing

mail).

No. 21-1635 21

Given the dearth of cases regarding outgoing mail and the

cases that reject the notion that prison officials have a duty to

separate out non-objectionable content in the context of in-

coming mail, we cannot say that the defendants’ obligation to

do so here was clearly established. At base, this is not the type

of “obvious” First Amendment violation, see Kemp, 877 F.3d

at 352, that would preclude qualified immunity.

Undeterred, Felton argues that the defendants are not en-

titled to qualified immunity because the prison’s policy,

which the defendants invoke, did not exist. But he offers no

evidence for this proposition. Although Felton points to vari-

ous instances in which he claims that the policy was not ap-

plied to him and other inmates, none of these situations in-

volved an inmate who faced discipline for mailing out contra-

band alongside noncontraband.

Additionally, Felton provides no evidence that the de-

fendants acted with an improper or retaliatory motive. Noth-

ing in the record indicates that Cichanowciz and Winkleski

were aware of Felton’s plan to distribute the court decision to

other inmates. See Delapaz v. Richardson, 634 F.3d 895, 900 (7th

Cir. 2011) (to have a retaliatory motive, the defendants must

have actual knowledge of the protected activity). And, alt-

hough Brown may have confiscated an earlier letter Felton

had sent to another inmate discussing his plan to disseminate

the state court decision, Brown’s role here was limited to issu-

ing the conduct report and submitting the letter and order to

Cichanowciz, the hearing officer responsible for deciding

how to handle the evidence. See Manuel v. Nalley, 966 F.3d 678,

680 (7th Cir. 2020) (to state a First Amendment retaliation

claim, there must be a “causal link” between the protected ac-

tivity and the adverse action).

22 No. 21-1635

V. Conclusion

For the foregoing reasons, we AFFIRM.