The opinion
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 27, 2019*
Decided April 11, 2019
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 18‐1679
DION MATHEWS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Western District of Wisconsin.
v. No. 16‐cv‐650‐slc
LEBBEUS BROWN, et al., Stephen L. Crocker,
Defendants‐Appellees. Magistrate Judge.
O R D E R
Correctional officers at a Wisconsin prison placed inmate Dion Mathews in
isolated housing for writing a “group petition,” in violation of a Department of
Corrections regulation. Mathews sued several officers, asserting violations of his First
and Fourteenth Amendment rights. See 42 U.S.C. § 1983. The district court entered
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18‐1679 Page 2
summary judgment for the defendants. Because the correctional officers are entitled to
qualified immunity, we affirm the judgment.
Correctional officers suspected Mathews of gang activity and searched his cell.
They found a letter with proposals “brought forth by the prisoners of WSPF”; according
to Mathews, he wanted to present prison administrators with ideas for improving
inmate–administration communication. The officers also found two similar letters in
inmate Oscar Garner’s cell. The letters introduced suggestions with phrases like “we
propose” and “we ask.” According to Officer Lebbeus Brown, a letter from anonymous
inmates can lead to intimidation, coercion, and violent confrontations among prisoners.
Based on these letters, Brown issued conduct reports accusing Mathews and
Garner of “join[ing] in or solicit[ing] another to join [a] group petition or statement.”
WIS. ADMIN. CODE DOC § 303.24(2); see also Garner v. Brown, No. 18‐1524, 2018 WL
5778386, at *2–3 (7th Cir. Nov. 2, 2018) (nonprecedential). The Department, however,
permitted inmates to file “group complaints” (i.e., grievances). WIS. ADMIN. CODE DOC
§ 310.10(7) (2014). A complaint examiner explained that inmates must try to resolve
informally “all” grievances before filing a complaint. See id. §§ 310.09(4), 310.10(1). (The
prison has disciplined Mathews for circulating a letter to the warden from
“A[dministrative] C[onfinement] prisoners,” but Mathews also has submitted group
complaints without consequence.) Mathews insists that his letters were to be his
attempts at informal resolution. Moreover, Mathews shared the letters with Garner, he
says, because Garner was his jailhouse lawyer; inmates may seek legal advice from each
other. See id. § 309.155(5).
After the conduct report was sustained, correctional officers placed Mathews in
restricted housing for 18 months: 33 days in disciplinary separation, 17 days in
less‐restrictive disciplinary separation, and the remainder in administrative detention.
Inmates in disciplinary separation get five to ten hours of outside‐cell activity
(including two hours of outdoor recreation), three showers, and one hour of video
visitation per week and one or two phone calls per month. Those in less‐restrictive
separation and administrative detention face similar limits, but they may keep more
personal property, including a television, and may make three phone calls per month.
Mathews sued Brown and other correctional officers for punishing him under a
vague regulation and in retaliation for attempting to informally resolve a grievance. A
magistrate judge, presiding by consent, see 28 U.S.C. § 636(c), screened Mathews’s
complaint under 18 U.S.C. § 1915A and, after reconsidering, allowed him to proceed on
First Amendment retaliation and a Fourteenth Amendment due‐process claims.
No. 18‐1679 Page 3
Mathews learned during discovery that a non‐defendant officer threw out his
letters while cleaning the evidence room. That officer learned of this lawsuit two
months later. Mathews moved for sanctions, but the court denied the motion because it
concluded that the defendants had not destroyed the letters in bad faith.
The magistrate judge later granted the defendants’ motion for summary
judgment. On Mathews’s due process claim, he ruled that there was a factual dispute
whether the defendants deprived Mathews of a liberty interest, but the regulation was
not vague as applied to him. On his First Amendment claim, the judge determined that
the letters were not protected speech. Alternatively, he concluded, the defendants were
entitled to qualified immunity on both claims.
We review the entry of summary judgment de novo, casting the record in the in
the light most favorable to Mathews, the nonmovant. See Singer v. Raemisch, 593 F.3d
529, 533 (7th Cir. 2010). We may affirm on any basis presented in the record. See Figgs v.
Dawson, 829 F.3d 895, 902 (7th Cir. 2016).
On appeal, Mathews first renews his argument that the regulation banning
group petitions was unconstitutionally vague. He asserts that he had no notice of what
distinguished a permissible, informal attempt at resolving a group grievance from a
prohibited group petition. A regulation violates due process when it is so vague that it
is necessarily applied arbitrarily. Rios v. Lane, 812 F.2d 1032, 1038 (7th Cir. 1987).
We agree with Mathews that the Department’s since‐revised prohibition on
group petitions was at least confusing when read together with its rules on group
complaints. In Toston v. Thurmer, 689 F.3d 828 (7th Cir. 2012), we ruled that a prison’s
ban on the possession of “gang literature” did not adequately notify prisoners that they
were not permitted to copy information about gangs from available books. Id. at 831–32.
Here, not only could inmates attempt to resolve their concerns informally, but they had
to before filing a permissible group complaint. The regulations, however, do not
articulate what an attempt at informal resolution might look like. Mathews maintains
that he intended his group letter to serve as the required, informal precursor to his group
complaint. He could not have known that he might be punished for following a prison
policy. See Maben v. Thelen, 887 F.3d 252, 265–66 (6th Cir. 2018). Mathews also did not
have notice that sharing his letters with his jailhouse lawyer, as the rules permit, could
subject him to discipline.
The defendants contend that the regulation was not vague as applied to
Mathews because he had experience with group complaints and petitions. To be
No. 18‐1679 Page 4
disciplined under a regulation, an inmate must have warning that his conduct is
prohibited. See Rios, 812 F.2d at 1038. True, Mathews had been disciplined for trying to
circulate a letter from an anonymous group of inmates. But that is different from
drafting a letter and sharing it with only his jailhouse lawyer. And the group complaint
he submitted previously did not give him notice of what conduct was prohibited.
Still, Mathews cannot succeed on his due‐process claim because he has not
shown that the defendants deprived him of a clearly defined liberty interest. Qualified
immunity shields government officials from damages if they did not violate a clearly
established, specific federal right. See City of Escondido v. Emmons, 139 S. Ct. 500, 503
(2019). The Fourteenth Amendment protects inmates’ interests in avoiding conditions
which impose an “atypical and significant hardship.” Sandin v. Conner, 515 U.S. 472,
483–84 (1995). We consider the duration and conditions of the confinement. Marion v.
Columbia Corr. Inst., 559 F.3d 693, 698 (7th Cir. 2009). Prisoners do not have a liberty
interest in avoiding transfer from the general prison population to discretionary
segregation, and even “extremely harsh prison conditions” may not be so “atypical” as
to create a liberty interest. Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir. 2008) (collecting
cases). In Hardaway v. Meyerhoff, 734 F.3d 740 (7th Cir. 2013), we concluded that six
months and a day in a cell with a confrontational cellmate, suffering psychologically,
and with only weekly access to showers and the prison yard was not clearly significant
and atypical. Id. at 744–45. Mathews had a longer term in restricted housing than we
considered in Hardaway, but he had greater access to the yard and showers, weekly
visits, and three phone calls per month. He was not devoid indefinitely of human
contact or sensory stimuli. Cf. Wilkinson v. Austin, 545 U.S. 209, 214 (2005). We cannot
say on this record that Mathews had a “clearly established” right to avoid segregation.
Mathews next challenges the magistrate judge’s resolution of his First
Amendment retaliation claim, arguing that the defendants could not have reasonably
believed that the letters, which used permissive language like “we propose” and “we
ask,” were dangerous. We agree with the judge, however, that the defendants are
entitled to qualified immunity on this claim, too. A restriction is valid under the First
Amendment if it is reasonably related to a legitimate government interest, considering
(1) its connection to the prison’s interests, (2) other available means of speech, (3) the
impact of the accommodation, and (4) alternative measures to advance the interest.
Turner v. Safley, 482 U.S. 78, 89–90 (1987); Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir.
2009). Here, the defendants would not have known that letters from “the prisoners”
with language like “we propose” and “we ask” were protected: the phrasing shows
collective action, which threatens prison security. See Van den Bosch v. Raemisch, 658 F.3d
No. 18‐1679 Page 5
778, 788 (7th Cir. 2011) (“The essential question is not whether the threats were
eventually carried out, but whether plaintiff has shown that it was not reasonable for
defendants to perceive the [letters] as a potential threat to rehabilitation and security.”).
According to the correctional officers, Mathews could have met the informal resolution
requirement by signing a letter on his own behalf and, the officers submit, permitting
him to write and share these letters would disrupt regular prison operations. Finally,
Mathews has not shown that the officers had reasonable alternatives to confiscating
them. Altogether, Mathews did not show that the defendants violated a clearly
established First Amendment right. See Kemp v. Liebel, 877 F.3d 346, 354 (7th Cir. 2017).
Mathews raises two more issues, but both are meritless. First, he says that the
magistrate judge should have sanctioned the defendants for spoliation because the
letters at issue were thrown out. But sanctions would be appropriate only if the
defendants destroyed the evidence in bad faith, see United States v. Funds in the Amount
of $100,120.00, 901 F.3d 758, 766 (7th Cir. 2018), and here, a non‐defendant threw out the
letters by mistake. In addition, the parties agree on the letters’ contents, so Mathews has
not been prejudiced by their absence. Second, Mathews incorrectly contends that the
judge erroneously denied his motion for recruited counsel based on his ability to litigate
with a jailhouse lawyer’s help. The judge noted that another inmate was helping, but he
determined that Mathews could navigate the case’s complexity because the submissions
that he authored were “clear and well‐written with citations to relevant authority,” and
he successfully had moved the court to reconsider its initial screening order. The
judge’s assessment was reasonable. See Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007)
(en banc).
The judgment is AFFIRMED.