Da Vang v. Heidi Mellenberger

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 20, 2026*
Decided May 21, 2026
Before
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
REBECCA TAIBLESON, Circuit Judge
No. 25-2197
DA VANG,
Plaintiff-Appellant,
v.
HEIDI MELLENBERGER,
Defendant-Appellee.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 23-cv-828-jdp
James D. Peterson,
Chief Judge.
O R D E R
Da Vang, a Wisconsin prisoner, appeals the district court’s grant of summary
judgment rejecting his First Amendment claim. He asserted that a prison official
retaliated against him for corresponding with the governor of Wisconsin about a social
* 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NONPRECEDENTIAL DISPOSITION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

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No. 25-2197 Page 2
worker’s alleged misconduct. The district court concluded that Vang’s claim was barred
by qualified immunity. We affirm.
I.
In 2023, Vang wrote to the governor of Wisconsin to complain about misconduct
by a social worker at Stanley Correctional Institution. In the message, Vang accused the
social worker, first, of having a sexual relationship with another prisoner and, second,
of denying him—an Asian man—the preferential treatment she gave black prisoners.
He asked the governor to intervene to remedy these issues. Vang had raised these
allegations the previous year in an internal grievance, which led to him being punished
with 15 days in disciplinary segregation for lying and disrespect.
The governor’s office forwarded Vang’s message to the Wisconsin Department of
Corrections. Heidi Mellenberger, a unit supervisor, was asked to investigate the
allegations as a possible concern under the Prison Rape Elimination Act, 42 U.S.C.
§§ 30301–30309. Mellenberger’s investigation turned up discrepancies in Vang’s version
of events, so she wrote a conduct report that accused him of lying, disparaging the
social worker’s integrity, and putting the social worker at risk of harm from other
prisoners. A prison disciplinary committee found Vang guilty of lying about an
employee, WIS . A DMIN. C ODE DOC § 303.32, and punished him with 30 days in
disciplinary segregation.
Ten months later, Vang sued Mellenberger for retaliating against him, in
violation of the First Amendment, because of the message he sent to the governor’s
office. See 42 U.S.C. § 1983. Further proceedings ensued, and Mellenberger moved for
summary judgment, arguing (1) that Vang had not identified any evidence that would
permit a reasonable jury to find that his protected speech was a motivating factor in her
decision to issue a conduct report and (2) that she was entitled to qualified immunity.
The district court granted Mellenberger’s motion. The court first indicated that
Vang likely made out a prima facie case of retaliation. Mellenberger conceded the first
two elements of retaliation—that Vang’s communication with the governor is protected
conduct and that a person of ordinary firmness could be deterred by the deprivation in
question, here a 30-day segregation sentence. And the third element was met, the court
determined, because Vang’s communication with the governor was a motivating factor
in Mellenberger’s decision to take retaliatory action. See Bridges v. Gilbert, 557 F.3d 541,
546 (7th Cir. 2009). But the court went on to conclude that Mellenberger’s actions were
protected by qualified immunity because Vang’s rights were not clearly established by

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No. 25-2197 Page 3
law. The court determined that “an officer in Mellenberger’s position wouldn’t have
clearly understood that punishing Vang for an investigation-seeking complaint to the
governor’s office violated Vang’s First Amendment’s rights . . . .”
II.
Whether qualified immunity applies to a government official’s actions is often a
question of law that we review de novo. Nielsen v. Sexton, 168 F.4th 968, 989 (7th Cir.
2026). Qualified immunity shields a government official performing discretionary
functions from liability for civil damages insofar as her conduct “does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). There are two parts to
a qualified-immunity analysis that may be considered in any order. First, do the alleged
facts show that the officer’s conduct violated a constitutional right? Second, is that right
clearly established? District of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018). We start our
analysis with the second step to avoid unnecessarily deciding the constitutional
question. See Reichle v. Howards, 566 U.S. 658, 663–64 (2012). To show that a law is
clearly established, Vang must identify a case that every reasonable official would
interpret to establish the particular rule, except in the rare case of an obvious
constitutional violation. Wesby, 583 U.S. at 63–64.
Vang argues that Supreme Court precedent has clearly established that the First
Amendment prohibits prison staff from retaliating for the content of prisoners’
outgoing mail, such as his message to the governor. He cites Procunier v. Martinez,
which struck down a California regulation that allowed prison staff to censor prisoners’
correspondence if it unduly complained, magnified grievances, or defamed others,
among other restrictions. 416 U.S. 396, 399–400, 415 (1974). “Prison officials may not
censor inmate correspondence simply to eliminate unflattering or unwelcome opinions
or factually inaccurate statements.” Id. at 413.
Mellenberger counters that Martinez does not apply here. She invokes our
decision in Hale v. Scott, 371 F.3d 917 (7th Cir. 2004), in which we held, without any
discussion of Martinez, that a prisoner’s libelous allegation in a prison grievance about a
prison guard’s sexual misconduct was unprotected by the First Amendment. Hale,
however, involved an internal prison grievance rather than outgoing correspondence
like Vang’s. Indeed, the Supreme Court later limited Martinez to apply only to outgoing
mail. See Felton v. Brown, 129 F.4th 999, 1011 (7th Cir. 2025) (citing Thornburgh v. Abbott,
490 U.S. 401, 413–14 (1989)).

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No. 25-2197 Page 4
Hale, though, not only casts doubt on the applicability of Martinez to this case but
also reflects that the law in this area is unsettled so as to make qualified immunity
available. In light of Hale, not every reasonable officer would interpret Martinez to
prohibit an official from disciplining Vang for his message to the governor. A
reasonable officer in Mellenberger’s position could have viewed Vang’s message to
resemble more closely the internal grievance in Hale than the outgoing mail in Martinez.
For instance, the message sought relief similar to what a prisoner could seek in an
internal grievance, and Vang sent it to the head of the executive branch, who is
responsible for prison operations. Granted, other reasonable officers could reach the
opposite conclusion, such as the prison’s disciplinary committee here that described
sending the message to the governor as “clearly outside of the normal complaint review
system.” But because not “every reasonable official” would see it that way, Wesby,
583 U.S. at 63, we conclude that Mellenberger’s actions were protected by qualified
immunity. We therefore do not reach the ultimate constitutional question in this case.
AFFIRMED

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