Matthew Richard v. WILLIAM SWIEKATOWSKI and ANDREW WICKMAN

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 17, 2022 *
Decided November 21, 2022
Before
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1443
MATTHEW RICHARD,
Plaintiff-Appellant,
v.
WILLIAM SWIEKATOWSKI and
ANDREW WICKMAN,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 20-CV-876
William E. Duffin,
Magistrate Judge.
O R D E R
Matthew Richard, a Wisconsin prisoner, sued officials and correctional officers at
the Green Bay Correctional Institution, claiming that they violated his constitutional
rights by punishing him for writing letters. See 42 U.S.C. § 1983. After dismissing some
of his claims at the screening stage, see 28 U.S.C. § 1915A, the district court entered
* We have agreed to decide the 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. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

-- 1 of 5 --

No. 22-1443 Page 2
summary judgment for the defendants on the remaining claims. It concluded that
Richard lacked sufficient evidence that correctional officers acted with retaliatory
motives in violation of the First Amendment when imposing discipline for the two
letters or that Richard’s disciplinary hearing was procedurally unfair. We affirm.
We construe the undisputed facts in the light most favorable to the plaintiff and
draw all reasonable inferences in his favor. Douglas v. Reeves, 964 F.3d 643, 645 (7th Cir.
2020). At Waupun Correctional Institution, where he was housed before his transfer to
Green Bay in 2015, Richard was sanctioned for involvement with the Almighty Vice
Lord Nation, but he asserts that he left the gang in 2012. In the first letter at issue,
addressed to fellow Green Bay prisoner Frederick Jones in September 2018, Richard
congratulated Jones on his impending release and promised to connect Jones with
Kamallah Brelove, someone outside the prison. Richard then wrote to Brelove, his
friend. In this letter, Richard encouraged Brelove to contact Jones and requested
Brelove’s help contacting two other “brothers” about a “revenue stream” that he and
these men were “trying to tap into.” Richard signed both letters, “Mateen Wasi El-
Shabazz.”
Green Bay’s Security Threat Group Coordinator, William Swiekatowski,
reviewed the letters and issued a conduct report to Richard. Swiekatowski consulted
various sources, including a scholarly article, prison databases, and officials at Waupun.
He concluded that Richard, Brelove, Jones, and the two other men named in Richard’s
letters were members of the Vice Lords gang. Swiekatowski also considered an earlier
letter written by Michael Johnson, another Green Bay prisoner, that laid out plans to
start businesses to support the Vice Lords. Johnson had written about meeting with
Mateen Wasi-El Shabazz—Richard, Swiekatowski believed—and discussing business
plans and communications channels. Swiekatowski concluded that Richard’s letters
evinced his involvement in gang activity and in business, both of which violated prison
regulations. See WIS . ADMIN. C ODE DOC §§ 303.24, 303.36 (2018).
Richard responded to the charges by denying any gang involvement and arguing
that he was merely communicating with old friends; he maintained that Swiekatowski
took his letters out of context. Richard was found guilty at his first disciplinary hearing,
but he successfully appealed because he had not been afforded sufficient opportunity to
present evidence. After a second hearing, Andrew Wickman, the hearing officer, found
Richard guilty of both charges, and the warden affirmed.

-- 2 of 5 --

No. 22-1443 Page 3
Richard then sued Swiekatowski, Wickman, and four prison officials. The
magistrate judge, presiding with consent from all parties, 28 U.S.C. § 636(c), screened
the complaint and permitted Richard to proceed with a First Amendment retaliation
claim against Swiekatowski and a due-process claim against Wickman for denying him
access to evidence (a gang-member database) at the second hearing. The court
dismissed Richard’s claims against the remaining officials because he did not plausibly
allege their personal participation in the events or their involvement in a conspiracy
with the other defendants. Swiekatowski and Wickman later moved for summary
judgment. The district court granted the motion, concluding that Richard lacked
evidence that Swiekatowski issued the conduct report to retaliate against Richard or
that Wickman deprived him of due process. Richard appeals.
We review the decisions entering summary judgment and screening the
complaint de novo. Crouch v. Brown, 27 F.4th 1315, 1319 (7th Cir. 2022); Schillinger v.
Kiley, 954 F.3d 990, 994 (7th Cir. 2020).
In challenging the summary-judgment ruling, Richard first contends that
Swiekatowski violated his rights under the First Amendment by punishing him for
writing letters to friends. To bring his case to trial, Richard needed evidence that his
protected speech was a motivating factor in Swiekatowski’s decision to take a
retaliatory action against him. Douglas, 964 F.3d at 646. Assuming the letters were
protected speech, Richard has not mustered sufficient evidence of retaliatory motive to
raise a disputed question of fact. Swiekatowski submitted evidence that he would have
issued the conduct report irrespective of any protected speech. See Jones v. Van Lanen,
27 F.4th 1280, 1284 (7th Cir. 2022). He attested that he wrote up Richard because he
believed “the letters were communications to gang members plotting ways to raise
money and start businesses for the Vice Lords.” Richard suggests that the timing of the
conduct report—just days before Richard’s administrative segregation status was up for
a regularly scheduled review—is suspect. He infers that Swiekatowski’s true motive
was to keep him in segregation, and that Swiekatowski misinterpreted the letters as a
pretext. Swiekatowski maintains that he issued the conduct report to prevent gang
activity and ensure the safety of the prison.
This is a disagreement, but it is not a genuine dispute of material fact. Even if
Swiekatowski was wrong about what the letters meant, there is no evidence that he
issued the conduct report to punish Richard for communicating with his friends. The
timing of the conduct report relative to Richard’s regularly scheduled administrative
review is not relevant to the question of whether there is a causal connection between

-- 3 of 5 --

No. 22-1443 Page 4
the report and the letters. See Holleman v. Zatecky, 951 F.3d 873, 879 (7th Cir. 2020)
(explaining that causation requires a showing that the fact of plaintiff’s protected
activity, not the substance, motivated the alleged adverse action). Thus, the First
Amendment claim fails because Richard has no evidence to dispute Swiekatowski’s
account of his non-retaliatory reason for issuing the conduct report.
Richard adds that having Johnson’s letter, which Richard did not author or
receive, used as evidence against him also infringed his free speech rights. Richard fails
to explain, however, how the introduction of Johnson’s letter as evidence at his hearing
curtailed his own First Amendment rights, much less how it trumps the prison officials’
legitimate penological interests in monitoring prisoners’ nonlegal mail to promote
safety. See Van den Bosch v. Raemisch, 658 F.3d 778, 791 (7th Cir. 2011). Neither Richard’s
constitutional rights nor prison regulations, see WIS . A DMIN. C ODE DOC § 303.87(2),
prohibited the introduction of this relevant evidence at Richard’s disciplinary hearing.
The district court also properly entered summary judgment against Richard on
his procedural due-process claim. Richard asserts that Swiekatowski fabricated
information about the purported gang activity of Richard’s associates in the conduct
report, and Wickman knowingly used that information to find him guilty at the
disciplinary hearing. But Richard did not submit any evidence to back up his accusation
that anything in the report was untrue, let alone fabricated. Because Swiekatowski
submitted “some” evidence—Richard’s letters and corroborating evidence of gang
activity—to the hearing officer before discipline was imposed, Richard’s due-process
rights were protected. See Superintendent v. Hill, 472 U.S. 445, 447 (1985); McPherson v.
McBride, 188 F.3d 784, 787 (7th Cir. 1999).
Richard also appeals the decision to dismiss his civil conspiracy claim at
screening, repeating his allegations that various prison officials “turned a blind eye” to
Swiekatowski’s issuance of the conduct report. But Richard has not shown how these
officials—John Kind, William Pollard, Dylon Radtke, and Steven Schueler—were
personally involved. Some of these officials participated in various stages of the
disciplinary process after Swiekatowski issued the conduct report, but that would not
make them responsible (whether as supervisors or as administrative reviewers) for
misconduct, such as retaliation, by Swiekatowski. See Owens v. Evans, 878 F.3d 559, 563
(7th Cir. 2017); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). And Richard did
not overcome this problem with his conclusory assertion of a conspiracy. To state such a
claim, he needed to allege facts plausibly suggesting an agreement among the
defendants to achieve a common purpose of violating his rights. See Redd v. Nolan,

-- 4 of 5 --

No. 22-1443 Page 5
663 F.3d 287, 292 (7th Cir. 2011); N. Highland Inc. v. Jefferson Mach. & Tool Inc.,
898 N.W.2d 741, 747 (Wis. 2017). Nothing in the complaint makes such coordination
plausible; therefore, the magistrate judge properly dismissed the conspiracy claim.
We have considered Richard’s remaining arguments, and none has merit.
AFFIRMED

-- 5 of 5 --