Brookins v. Kolb, 91-3709

• Decision Date: 11 May 1993
• Docket Number: No. 91-3709,91-3709
• Citation: 990 F.2d 308
• Parties: William H. BROOKINS, Plaintiff-Appellant, v. Darrell A. KOLB, Kenneth Sondalle, and Glen Link, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 308

990 F.2d 308

William H. BROOKINS, Plaintiff-Appellant, v. Darrell A. KOLB, Kenneth Sondalle, and Glen Link,

Defendants-Appellees.

No. 91-3709.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 22, 1992.

Decided March 31, 1993.

Rehearing Denied May 11, 1993.

Michael J. Collard, Michael J. Lund (argued), Frisch Dudek, Ltd., Milwaukee, WI, for plaintiff-appellant.

Peter C. Anderson, Asst. Atty. Gen. (argued), James E. Doyle, Atty. Gen., Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, for defendants-appellees.

Before COFFEY and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

MANION, Circuit Judge.

William H. Brookins, a prisoner at the Waupun Correctional Institution in Wisconsin, was the co-chairman of an approved prisoners' committee, which gave legal assistance to other inmates. In a letter written to the director of prisons, Brookins suggested that polygraph tests be administered in an investigation of another prisoner. He also stated that the committee would pay for the tests. Prison officials concluded he violated prison regulations and transferred him to another prison. Brookins sued, claiming retaliation. The district court determined that no constitutional rights were violated. Brookins appeals and we affirm.

I. Background

A. Facts

Brookins was an inmate in the Waupun Correctional Institution (Waupun), a maximum security prison in Wisconsin. He was a member and co-chairman of the Waupun Paralegal Base Committee (PBC), a prison-approved activity group, ¹ that assisted inmates with their legal research and with preparing their legal documents. Ben Sanders, another inmate, sought legal assistance from Brookins. Sanders had received two conduct reports for battery, attempted battery, disobeying orders, and disruptive conduct against members of the security staff. On behalf of Sanders, Brookins, in his official capacity as co-chairman of the PBC, wrote a letter on PBC letterhead to Phil Kingston, the Director of the Wisconsin Bureau of Adult Institutions. Before sending the letter, Brookins neither sought nor received the required approval of Kathy Dayton, a state employee who served as the PBC's Group Advisor. In the letter, Brookins requested that before the disciplinary hearing took place all parties involved in the alleged incident be given polygraph tests to help determine whether the allegations were true. Brookins also stated in the letter that the PBC was willing to pay the cost of the testing from its own funds. Brookins sent copies to various prison officials, including Darrell Kolb, the Acting Superintendent of Waupun, and Glen Link, the Group/Public Services Coordinator at Waupun.

After receiving the letter, Kolb determined that Brookins had violated two prison regulations. The first regulation provided for the Group Advisor to approve or disapprove all committee correspondence before sending the correspondence to the Group Coordinator. The second regulation provided that the Group Advisor co-sign all requests for the disbursement of committee funds and that the Group Coordinator then approve the request for funds. Because of the violations, Kolb instructed Link to inform Brookins that he was being removed both as a member and as the co-chairman of the PBC. Link sent Brookins a memorandum informing him of Kolb's decision.

Thereafter, Kenneth Sondalle, a Treatment Director at Waupun, sent a memorandum to Brookins's social worker. Sondalle's memorandum was fairly complimentary of Brookins, noting the good adjustment he had made to prison life. The memorandum, though, exhibited Sondalle's concern that Brookins may eventually find

                himself in disciplinary trouble because he had "developed an overinflated opinion of his role as a Paralegal Base Committee member and his inmate status" and had "recently overstepped his role avoiding set process for authorizing committee funds and group correspondence."   Sondalle pointed out to the social worker "that most leaders of the Paralegal [B]ase Committee are currently experiencing institution disciplinary concerns and for a variety of serious reasons."   Sondalle thought Brookins should be transferred to another prison before he found himself in disciplinary problems, and, therefore, he recommended that the Program Review Committee give Brookins an early review.   The Program Review Committee met and recommended transfer.   Brookins was sent to the Columbia Correctional Institution, another maximum security prison in Wisconsin.   The PBC was later disbanded
                

B. District Court Proceedings

Brookins filed a pro se civil rights action against the prison officials pursuant to 42 U.S.C. § 1983. The thrust of his complaint was that the prison officials had retaliated against him by removing him from the PBC and by transferring him to another prison, because he had attempted to give Sanders legal assistance and because he had written the letter to Kingston on Sanders's behalf. Brookins requested injunctive relief, a declaratory judgment, monetary damages, and punitive damages. Brookins moved for leave to proceed as a pauper. The district court granted the leave on the single ground that Brookins had arguably stated a claim that the prison officials retaliated against him for providing legal assistance to other inmates.

The prison officials moved for summary judgment, with supporting affidavits. Given the reason the district court had permitted Brookins to proceed as a pauper, the prison officials treated the lawsuit as a claim that they had retaliated against Brookins solely for providing legal assistance to Sanders. Put another way, the officials viewed the lawsuit as challenging their alleged infringement of Brookins's right to associate with Sanders within the realm of the PBC. In response to the prison officials' motion for summary judgment, Brookins did not submit any evidence and chose to rely on his pleadings. He argued, in part, that the prison officials wrongly analyzed the lawsuit as one involving associational rights instead of one involving the right to free speech and the right to petition the government for the redress of grievances.

A magistrate judge reviewed the prison officials' motion for summary judgment and issued a report and recommendation. The magistrate judge found that although the district court had granted Brookins pauper status on his associational claim, the district court did not dismiss Brookins's other claim that the prison officials had retaliated against him for writing the letter. Focusing only on this latter claim, the magistrate judge determined that the lawsuit involved free speech rights. He applied Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), and placed the burden on the prison officials to show that the regulations were generally necessary to advance legitimate governmental interests. The magistrate judge found that the officials had failed to meet their burden. The magistrate judge also ruled that the regulations on their face failed to impose an obligation on Brookins to get prior approval before either sending the letter or offering to pay for the polygraph tests. Accordingly, the magistrate judge recommended that the district court deny the prison officials' motion for summary judgment.

The prison officials objected to the report and recommendation, and after a de novo review, the district court declined to adopt the magistrate judge's conclusions. Aware of the parties' conflicting interpretations of the lawsuit, the district court ruled that if Brookins was alleging a violation of his right to associate with Sanders in giving him legal assistance, then the burden of proof did not rest with the prison officials, as the magistrate judge had held, but with Brookins. Based on Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629

                (1977), the district court placed the burden on Brookins to show that the regulations were an exaggerated response to legitimate penological objectives.   The court found that Brookins, who had relied only on his pleadings, had not satisfied this burden of proof.   The court also considered Brookins's contention that the prison officials had retaliated against him for writing to Kingston.   The court found no implication of free speech rights and determined that the record evidence showed that the prison officials removed Brookins from the PBC and transferred him to the Columbia Correctional Institution only because he had failed to obey the regulations governing the operation of the PBC
                

II. Analysis

We have jurisdiction, 28 U.S.C. § 1291, to consider the three points Brookins raises on appeal: (1) that the district court erred in considering the case as one dealing with the right to associate rather than one involving the right to free speech and the right to petition the government for the redress of grievances; (2) that the district court erred in ruling as a matter of law that he violated the prison regulations; and (3) that the prison officials are not entitled to qualified immunity, an alternative argument the prison officials raise on appeal to support the affirmance of the district court.

A. Standard of Review

We review de novo a district court's order granting summary judgment, viewing the facts and drawing all reasonable inferences therefrom in favor of the nonmoving party. Prince v. Zazove, 959 F.2d 1395, 1398 (7th Cir.1992). Summary judgment is authorized "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is appropriate only in circumstances where "the evidence is such that a reasonable jury could [not] return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct....