422 F.3d 570 (7th Cir. 2005), 03-3318, Westefer v. Snyder

Docket Nº:03-3318.
Citation:422 F.3d 570
Party Name:Robert WESTEFER, Mark Vonperbandt, Allejandro Villazana, et al., Plaintiffs-Appellants, v. Donald SNYDER, Odie Washington, Michael V. Neal, et al., Defendants-Appellees.
Case Date:September 06, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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422 F.3d 570 (7th Cir. 2005)

Robert WESTEFER, Mark Vonperbandt, Allejandro Villazana, et al., Plaintiffs-Appellants,


Donald SNYDER, Odie Washington, Michael V. Neal, et al., Defendants-Appellees.

No. 03-3318.

United States Court of Appeals, Seventh Circuit.

Sept. 6, 2005

        Argued Sept. 29, 2004.

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        Alan S. Mills (argued), Uptown People's Law Center, Chicago, IL, for Plaintiffs-Appellants.

        Erik G. Light (argued), Brian F. Barov, Office of Attorney General, Crim. Appeals Div., Chicago, IL, for Defendants-Appellees.

        Before CUDAHY, RIPPLE and EVANS, Circuit Judges.

        RIPPLE, Circuit Judge.

        The plaintiffs, prisoners incarcerated at Tamms Correctional Center ("Tamms") in Illinois, brought this § 1983 action against officers and employees of the Illinois Department of Corrections (collectively, "IDOC"). The prisoners alleged that their transfers to Tamms violated their rights to due process of law and freedom of association and against ex post facto punishment. The district court dismissed these counts for failure to state a claim. Another count, alleging that the transfer constituted retaliation for the exercise of First Amendment rights, survived this initial scrutiny. The parties then conducted discovery on this remaining count. Following discovery, the district court granted summary judgment to IDOC. The prisoners appeal the decision of the district court with respect to all of these claims. After oral argument, we ordered the parties to file supplemental briefs addressing the administrative process by which an inmate, already incarcerated at Tamms, can challenge his assignment to that facility. After the Supreme Court decided Wilkinson v. Austin, --- U.S. ----, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), the parties filed supplemental

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briefs addressing the applicability of that decision to this case. For the reasons set forth in the following opinion, we affirm the judgment of the district court with respect to the freedom of association and ex post facto claims. With respect to the retaliation and due process claims, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.



        A. Facts

        Tamms is the highest security prison in Illinois. IDOC designed the conditions there to be harsh, so that the threat of being transferred to Tamms would deter prisoners throughout the system from disobeying prison rules. According to IDOC, all Tamms prisoners are exposed to hardships that are not experienced in segregated confinement at any other maximum security facility in Illinois. 1 IDOC transferred the plaintiffs to Tamms within a year after it opened.

        The plaintiffs 2 are organized into two categories, labeled generally the "litigation plaintiffs" and the "gang plaintiffs." The gang plaintiffs, some of whom are also litigation plaintiffs, are associated with prison gangs (in IDOC terminology, "Security Threat Groups" or "STGs"). The gang plaintiffs claim that IDOC encouraged their gang activity before 1996, but then changed policies and now transfers gang leaders to Tamms for no reason but their gang affiliation. The litigation plaintiffs submit that IDOC has a policy of transferring inmates with a history of filing actions, grievances or other complaints about IDOC and prison conditions. They claim that IDOC has a policy of transferring prisoners with litigation histories to Tamms as a means of retaliating for the trouble they cause the department through their litigation activities. Each of these prisoners asserts that his disciplinary history does not warrant an assignment to Tamms.

        B. District Court Proceedings

        In a four-count § 1983 complaint, only three counts of which are now before this court, the gang plaintiffs alleged violations of the First Amendment right of association and of the right to be free from ex post facto punishment. The litigation plaintiffs sought money damages and injunctive relief for retaliatory interference with their First Amendment right to petition the courts. All prisoners asserted violations of their right to due process.

        The district court conducted a preliminary screening of the prisoners' complaints. See 28 U.S.C. § 1915A. This review resulted in the dismissal for failure to state a claim of the due process claim of all the prisoners as well as the associational rights claim and the ex post facto claim of the gang plaintiffs.

        With respect to the retaliation claim, the district court held that the litigation plaintiffs met the threshold requirements of

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§ 1915A because retaliation for exercising one's right to access to the courts is a cognizable constitutional claim, and the prisoners had pleaded sufficiently such a claim. However, the district court struck, as a discovery sanction, a good deal of the evidence submitted by the prisoners on the issue of retaliation. Subsequently, it granted the state officials summary judgment on the retaliation claim.

        A more detailed rendition of the district court's rationale is set forth in our discussion of each claim on appeal.



        A. The Gang Plaintiffs' Claims

        The gang plaintiffs asserted that their transfer to Tamms, on account of gang membership, violated their First Amendment right to freedom of association and the Ex Post Facto Clause. The district court rejected the associational rights claim on the grounds that the prisoners had no First Amendment right to belong to a gang and that regulating gang activity served legitimate penological goals. The court rejected the ex post facto argument because the change in prison conditions constituted a reasonable regulation and not additional punishment. Therefore, reasoned the district court, even if IDOC transferred them to Tamms in retaliation for their gang activities, the gang plaintiffs had no cognizable claim.

         We review these § 1915A dismissals de novo. Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir.2003). In undertaking such a review, we must construe all allegations as true and in the light most favorable to the prisoners. Id.

        1. Freedom of Association

         The gang plaintiffs submit that IDOC's policy of transferring STG members to Tamms violates their First Amendment right of association. They allege that IDOC's policy prior to 1996 encouraged gang membership; current policy, by contrast, restricts prisoners' rights to associate with prison gangs. 3 The gang plaintiffs challenge IDOC's regulations that allow officials to transfer prisoners who are gang members or "who may be planning to engage" in gang activity, Ill. Admin. Code tit. 20, § 505.40(b), as unconstitutionally overbroad.

        IDOC contends that the prisoners' transfers to Tamms implicate neither expressive nor intimate rights to association. In its view, regardless of whether IDOC once had a policy of cooperating with prison gangs, prisoners have no First Amendment right to associate with gangs.

        We agree with IDOC on this point. "Prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). "When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights." Procunier v. Martinez, 416 U.S. 396, 405-06, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Although we have not so held expressly, we have opined that "gang membership seems not to implicate the right of association." Fuller ex rel. Fuller v. Decatur Pub. Sch. Bd. of Educ., 251 F.3d 662, 667 (7th Cir.2001) (citing City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)). But cf. Fuller v. Johnson, 114 F.3d 491, 498 (5th Cir.1997) (assuming protection but holding

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no constitutional error in admitting evidence of membership in a gang that had committed brutal acts, as evidence of future dangerousness, with citation to Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992)).

        We see no basis for maintaining that those who have been incarcerated as a result of a criminal conviction and consequently deprived of some of the most basic of associational opportunities during their imprisonment somehow retain the right to belong to a gang within the prison walls when prison officials have determined that such a group is detrimental to the achievement of the prison's legitimate penological goals. The decision of prison administrators as to the detrimental effect of such groups is a decision to which we owe great deference. See Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 132, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). Moreover, just recently, the Supreme Court spelled out, in no uncertain terms, the incompatibility of prison gangs with any penological system:

Prison security, imperiled by the brutal reality of prison gangs, provides the backdrop of the State's interest. Clandestine, organized, fueled by race-based hostility, and committed to fear and violence as a means of disciplining their own members and their rivals, gangs seek nothing less than to control prison life and to extend their power outside prison walls. See Brief for State of California et al. as Amici Curiae 6. Murder of an inmate, a guard, or one of their family members on the outside is a common form of gang discipline and control, as well as a condition for membership in some gangs. See, e.g., United States v. Santiago, 46 F.3d 885, 888 (C.A.9 1995); United States v. Silverstein, 732 F.2d 1338, 1341 (C.A.7 1984). Testifying against,...

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