Oscar Garner v. Lebbeus Brown

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 2, 2018*
Decided November 2, 2018
Before
DIANE P. WOOD, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18-1524
OSCAR GARNER,
Plaintiff-Appellant,
v.
LEBBEUS BROWN, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District
of Wisconsin.
No. 16-C-1675
Lynn Adelman,
Judge.
O R D E R
Oscar Garner, an inmate at the Wisconsin Secure Program Facility, sued four
correctional officers under 42 U.S.C. § 1983 for violating the First Amendment by
penalizing his protected speech, which he says was a letter informally raising many
inmates’ complaints about prison conditions. The district court denied Garner’s motion
* 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. F ED. R. C IV. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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for summary judgment and granted the defendants’ cross-motion. Because the prison
has a legitimate interest in safety, we affirm the district court’s judgment.
We review de novo a district court’s decision on cross-motions for summary
judgment, construing all facts and drawing all reasonable inferences in favor of the
party against whom the motion under consideration was filed. Kemp v. Liebel, 877 F.3d
346, 350 (7th Cir. 2017). Here we recount the facts in the light most favorable to Garner.
In December 2015 Captain Lebbeus Brown was investigating possible gang
activity by the Gangster Disciples at the prison. Brown discovered that Garner (not a
suspected gang member) was communicating with the gang’s leader at the prison
through a liaison, so he searched Garner’s cell and discovered three letters: copies of
two letters that had been found in another inmate’s cell and a letter dated December
2015 and addressed to Brown, another captain, and the prison’s administration. The
third letter appeared to Brown to be similar to one of the other letters. It was from “the
prisoners of WSPF” and used the phrases “we propose” and “we ask” to express
concerns about prison conditions. This third letter is the basis of Garner’s suit.1
Brown was concerned that the Gangster Disciples were coordinating an
organized disturbance. He continued his investigation by interviewing Garner about
the letter. Garner told Brown that another inmate (a high-ranking gang member) had
written a letter and then asked Garner, a jailhouse lawyer, to make it “sound better.”
Garner maintained that the letter’s purpose was an attempt to resolve issues informally
before writing a legitimate group complaint through the prison’s grievance system. The
Wisconsin Department of Corrections’ Inmate Complaint Review System requires a
prisoner to attempt to informally resolve any complaint before submitting a formal
grievance to a complaint examiner. But Brown doubted Garner’s intent. Garner then
was placed in temporary lockup so the investigation could continue.
After his investigation, Brown issued Garner a conduct report for authoring and
possessing a “group petition” in violation of WDOC regulations that forbid “group
resistance and petitions” other than “group complaints” filed through the formal
inmate grievance system. Correctional Officer Shelly Hill, another defendant, wrote up
1 The letter was inadvertently destroyed by a prison official who is not part of
this suit. Garner has provided what he says is another copy of the letter, but the
defendants do not agree that it is authentic. The defendants do not say how the copy
differs from their recollection of the original. Our decision does not turn on any dispute
about the letter’s contents, however, so its authenticity is immaterial.

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No. 18-1524 Page 3
the report, and Brown signed his name. Brown concluded that the letter was not a
permitted group complaint because it was not written on an inmate complaint form,
was not addressed to the prison’s complaint examiner, used demanding language, and
had been shared among inmates.
While in lockup, Garner requested that Brown attend and bring evidence to his
disciplinary hearing. Lieutenant Joseph Cichanowicz, the hearing officer, approved that
request. On the last day Garner could stay in temporary segregation before a
disciplinary hearing, Mark Kartman, the prison’s Security Director, ordered
Cichanowicz to convene the hearing. Unbeknownst to Kartman, Brown was not
working that day and was unavailable. Garner asked to delay the hearing, but
Cichanowicz refused. After the hearing, Cichanowicz found that Garner had violated
the prohibition on possessing group petitions and gave Garner 120 days in disciplinary
separation.
The next day Garner wrote the warden, stating that Brown had not attended the
hearing despite Garner’s request. The warden believed that this violated Garner’s
due-process rights because inmates may have the reporting staff member testify as a
witness at disciplinary hearings. The warden then dismissed the conduct report and
transferred Garner out of segregation and back into the general prison population.
Garner spent a total of 2 days in disciplinary segregation.
Garner then filed this suit for damages against Brown, Hill, Cichanowicz and
Kartman. (Garner does not challenge the dismissal of his official-capacity claims against
these defendants.) He alleged that Brown violated his right to free speech by
confiscating the letter and that Brown and Hill retaliated against him by writing the
conduct report that landed him in disciplinary segregation. And, Garner claimed,
Cichanowicz and Kartman knew about the retaliation but failed to intervene.
Garner moved for summary judgment and asked the district judge to recruit
counsel for him. The judge denied the motion for counsel because Garner demonstrated
that he could “coherently present his case.” The defendants then filed their own motion
for summary judgment, which the district judge granted. The judge explained that
Garner’s letter was not protected speech because, as the defendants had argued, it was
inconsistent with the prison’s legitimate penological interests. Even though the
defendants’ reasons for concluding that the letter could lead to unrest or violence were
“tenuous,” the judge stated, that conclusion was “not so implausible” as to be
“groundless.” The judge noted, however, that the prison’s prohibition on “group

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petitions” and the requirement that prisoners attempt to informally resolve grievances
before filing permitted “group complaints” appeared to be in tension.
On appeal, Garner primarily argues that his letter is protected speech—a
requirement to prevail on his claims of both denial of free speech and retaliation for
protected activity. Turner v. Safley, 482 U.S. 78, 89 (1987), tells us whether a prisoner’s
speech is protected by the First Amendment. See Bridges v. Gilbert, 557 F.3d 541, 551
(7th Cir. 2009). We therefore must examine whether Garner engaged in speech
consistent with legitimate penological interests, whether Garner has alternative means
available to exercise his First Amendment rights, what impact an accommodation of the
right would have on guards and inmates and prison resources, and whether there are
“ready alternatives” available. See Turner, 482 U.S. at 89–90; Bridges, 557 F.3d at 551.
We conclude that Garner’s First Amendment claims fail because his letter was
not protected speech. Filing a non-frivolous grievance is activity protected by the First
Amendment. See Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015). But Garner’s letter
was not a grievance—not even he claims it was—so it cannot be protected speech on
that basis. Moreover, the defendants provided evidence that the letter was incompatible
with the legitimate penological interest of prison security. Prison security is
unquestionably a legitimate penological goal, see Overton v. Bazzetta, 539 U.S. 126, 133
(2003), and Brown attested that group petitions and gang activity have led to riots,
disrespect for staff, and violent confrontations. Brown further attested he thought the
letter could have signaled that a disruption at the prison was being planned because the
letter impliedly demanded changes. Garner contends that phrases such as “we ask” and
“we propose” could not be reasonably construed as demands or threats, but the
“we”—which suggested coordination among inmates and specifically gang members—
not the choice of verbs, was of concern. That concern was exacerbated, according to the
defendants, because they could not determine which prisoners had signed the letter
from “the prisoners of WSPF.” Therefore, we cannot conclude that there is not a rational
connection between the concern for prison security and the guards’ actions, especially
because Garner has no evidence to contradict the defendants’ view that the letter posed
a threat. See Van den Bosch v. Raemisch, 658 F.3d 778, 788 (7th Cir. 2011).
The other factors also cut in favor of determining that the letter was not
protected speech. It is undisputed that inmates may file group complaints through the
inmate grievance system. That demonstrates that Garner has acceptable alternative
means of expression. See Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 130 n.6
(1977); Jackson v. Frank, 509 F.3d 389, 392 (7th Cir. 2007). Though inmates must first

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attempt informal resolution, nothing prevents them from doing so on an individual
basis before signing a group grievance. The impact that accommodating Garner’s right
would have on prison resources also favors the defendants’ position; Garner does not
dispute that allowing group petitions could disrupt normal operations because they
“generate intimidation and coercion” among inmates. We are especially deferential to
prison administrators’ judgments about the effects on staffing and resources. Overton,
539 U.S. at 135. Finally, Garner has not suggested any “ready alternatives” to the
prison’s approach of confiscating his letter. Id. at 136.
Garner resists this conclusion by arguing that the defendants misclassified the
December letter as a forbidden group petition rather than as a permissible group
complaint. But, even if Garner were correct about how to interpret the Department of
Corrections’ regulations, that violation of state law would not give rise to a cognizable
constitutional claim under section 1983. See Lennon v. City of Carmel, 865 F.3d 503,
508–09 (7th Cir. 2017); Whitman v. Nesic, 368 F.3d 931, 935 n.1 (7th Cir. 2004).
Unable to raise a genuine issue of material fact about whether he engaged in
protected speech, Garner cannot prevail on his claims that the confiscation of the letter
violated the First Amendment, that Brown and Hill retaliated against him for protected
conduct, or that Cichanowicz and Kartman failed to intervene.
Finally, Garner argues that the district court abused its discretion by failing to
recruit counsel for him. But the district judge applied the correct legal standard,
see Pruitt v. Mote, 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc), and reasonably
concluded that, based on the quality of Garner’s filings and his ability to present his
arguments clearly, he could adequately litigate his case. We see no abuse of discretion.
AFFIRMED

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