# 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,

Plaintiff

‐ Appellant

,

v

.

LEBBEUS BROWN, et al.

, Defendants

‐ Appellees

. Appeal from the United States District

Court for the Western District of Wisconsin.

No. 16

‐ cv

‐ 650

‐ slc

Stephen L. Crocker,

M agistrate 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. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 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.”

W IS

. A DMIN

. C ODE 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5778386, at *2–3 (7th Cir. Nov. 2, 2018) (nonprecedential).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). W IS

. A DMIN

. C ODE 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, s ee 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 beNo. 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.3dNo. 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.