Greybuffalo v. Kingston

• Decision Date: 18 September 2007
• Docket Number: No. 06-C-504-C.,06-C-504-C.
• Citation: 581 F.Supp.2d 1034
• Parties: Johnson W. GREYBUFFALO, Plaintiff, v. Phil KINGSTON, in his individual and official capacities as Warden of Waupun Correctional Institution; Bruce Muraski, in his individual and official capacities; Cynthia Clough, in her individual and official capacities;<SMALL><SUP>1</SUP></SMALL> Correctional Officer Bret Mierzejewski, in his individual and official capacities; and William Schultz, in his individual and official capacities, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

Page 1034

581 F.Supp.2d 1034

Johnson W. GREYBUFFALO, Plaintiff, v. Phil KINGSTON, in his individual and official capacities as Warden of Waupun Correctional Institution; Bruce Muraski, in his individual and official capacities; Cynthia Clough, in her individual and official capacities;¹ Correctional Officer Bret Mierzejewski, in his individual and official capacities; and William Schultz, in his individual and official capacities, Defendants.

No. 06-C-504-C.

United States District Court, W.D. Wisconsin.

September 18, 2007.

Order Amending Opinion September 25, 2007.

COPYRIGHT MATERIAL OMITTED

Johnson W. Greybuffalo, pro se.

David Hoel, David Hoel, Wisconsin Department of Justice, Madison, WI, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

This case tests the limits of prison officials' ability to restrict a prisoner's right to free speech in the name of security. Put more specifically, it requires the court to consider the question how tenuous the connection between security and a restriction may be before a court must conclude that the restriction has no logical connection to the asserted interest or is an exaggerated response to that interest, making it invalid under the First Amendment.

At the center of the case are two documents confiscated from plaintiff Johnson Greybuffalo, a prisoner in the custody of the Wisconsin Department of Corrections. One document contains a 1775 quotation about freedom from a Native American chief and the initials "A.I.M.," which the parties agree stands for "American Indian Movement." The other document is a code of ethics of the Warrior's Society. Defendants confiscated both of these documents from plaintiff and placed him in segregation for 180 days as discipline for possessing them, after concluding that both documents were "gang literature" under Wis. Admin. Code § DOC 303.20(3).

Plaintiff filed this lawsuit for declaratory and injunctive relief under 42 U.S.C. § 1983, challenging defendants' confiscation of these documents and their discipline of him on the ground that both actions violated his First Amendment right to free speech. (Because the discipline plaintiff received did not affect the duration of his confinement, plaintiff correctly chose to raise his First Amendment challenge in a civil action under § 1983 rather than in a petition for a writ of habeas corpus. DeWalt v. Carter, 224 F.3d 607, 617 (7th Cir.2000).) The case is before the court on defendants' motion for summary judgment.

The question raised in defendants' motion is whether the censorship of plaintiffs documents was reasonably related to defendants' interest in prison security. I conclude that such a reasonable relationship exists with respect to the "Warrior's Society" document, but that defendants' censorship of the "A.I.M" document is an exaggerated response to any legitimate security concerns. These contrasting conclusions are required by the differences between the nature of the groups at issue and the nature of the information in the documents. The Warrior's Society is a prisoner group created for the purpose of enabling the "self-protection" of Native American prisoners, a purpose that is directly conducive to violent confrontations with other prisoners; the American Indian Movement is a non-prisoner civil rights organization dedicated to obtaining equality for Native Americans. Although defendants point to a few controversial actions of some members of the Movement, these actions occurred more than 30 years ago.

More important, the Warrior's Society document, which is a code of ethics, suggests allegiance to the Society and endorsement of its actions. In sharp contrast, the A.I.M. document suggests no allegiance to the group. The quotation in the document, which simply advocates fair treatment, does not come from the American Indian Movement or one of its members.

Defendants point to no record evidence supporting the reasonableness of a belief that simply writing the initials "A.I.M." on a document can in any way undermine prison security. Their bare assertion that it does is contradicted by their own prison library, which includes books containing favorable discussions of the American Indian Movement. Thus, to accept defendants' censorship of this document as consistent with the First Amendment would go far beyond giving prison officials the deference they are due; it would be an abdication of the court's obligation to review a restriction on a prisoner's First Amendment rights. Accordingly, I will grant defendants' motion for summary judgment with respect to the censorship of the Warrior's Society document, but I will deny the motion with respect to the A.I.M. document and grant summary judgment to plaintiff.

From the parties' proposed findings of fact and the record, I find the following facts to be undisputed.

UNDISPUTED FACTS

At the time of the events relevant to this lawsuit, plaintiff Johnson Greybuffalo was a prisoner at the Waupun Correctional Institution in Waupun, Wisconsin. Plaintiff is a Native American and a member of the Sisseton-Wahpeton Oyate tribe.

A. Plaintiffs Study of the American Indian Movement

While plaintiff has been incarcerated, he has studied Native American history. Included in the topics he studied is the American Indian Movement, which is discussed in several books in the Waupun prison library. The following description of the American Indian Movement may be found in the prison library's copy of the World Book Encyclopedia:

American Indian Movement (AIM) is a civil rights organization in the United States and Canada. It works for equal rights for American Indians and improvement of their living conditions. . . .

AIM was founded in Minneapolis in 1968. . . . Its original goals were to help improve the lives of the city's Indians and to protect them from police actions that AIM considered brutality. . . . AIM has carried out several protests to call national attention to the problems of Indians. In 1972, members occupied the headquarters of the Bureau of Indian Affairs in Washington, D.C., for seven days. The following year, AIM members and other Indians seized the village of Wounded Knee, S. Dak., where the U.S. Cavalry massacred more than 200 Sioux in 1890.

During the 1970's, AIM also established and operated a number of organizations to help Indians develop a sense of self-determination. . . . Since 1974, AIM has attempted to unite Native Americans throughout the Western Hemisphere.

Also included in the prison library is Wasi'chu: The Continuing Indian Wars, which includes the following history of the American Indian Movement:

AIM ... began in Minneapolis-St. Paul during 1968. . . . During its early years AIM was an urban-Indian group, which concentrated on such projects as a street patrol in Minneapolis to reduce police harassment of Indian people. AIM also assisted Indians in difficulties with the welfare bureaucracy and slumlords. During this early period AIM members studied their history and culture ... and realized that they had been indoctrinated with ideas that alienated them both from their spiritual heritage and their relationship to the land. Gradually, they returned to reservations . . . AIM was invited to the Pine Ridge Reservation by the Oglala Sioux Civil Rights Organization to aid in its fight against the corrupt trial government.

The new unity of purpose was displayed in the Trail of Broken Treaties, an automobile caravan across the United States. . . . The caravan itself did not get much official attention, nor did the Indians. When they arrived in Washington, D.C., President Nixon . . . ignored the Indian visitors. The lack of media attention ended when the group occupied the head office of the Bureau of Indian Affairs in order to get a hearing for the twenty-point bill of particulars they had brought.

The occupation was not intended; the Indians had first approached the BIA looking for a place to stay, which would replace a rat-infested church where they were housed while seeking appointments with government officials. A group of Indians entered the BIA headquarters asking to meet with officials. Police, who had surrounded the building, panicked and called the entry an occupation, The Indians, in turn, broke off a few table legs to defend themselves. And so the "occupation" began.

.... The Indians' bill of grievances called for a renewal of treaty making, relief from past treaty-rights violations, a Congressional investigation into the Bureau of Indian Affairs and related components of the colonial system, abrogation of the multinationals' leases for Indian land and resources, repeal of termination acts carried out in the 1950s, repeal of Public Law 53-280, establishment of an Indian grand jury at the national level, recognition of Indian jurisdiction over non-Indians on treaty land, improved treatment of prisoners, and financial aid to get Indians started on a path toward economic self-determination.

Their demands unanswered, many of the Indians involved in the BIA occupation reassembled at Wounded Knee four months later, on the site where more than three hundred Lakota men, women and children had been massacred by the United States Army in 1890. Many of the grievances were raised again. Again, the government responded with a deaf ear and a strong arm; after the seventy-one day occupation, the physical repression of Indian resistance intensified.

. . . .

[I]nstead of addressing the fundamental causes of disorder, the response [from the government] was one of armed force. During the seventy-one day occupation, two people at Wounded Knee were killed in a government exercise in encirclement, which was later revealed to have been a test of a nationwide military plan, known as "Operation Cablesplicer," for suppressing civilian disorders.

While plaintiff was incarcerated at the Green Bay Correctional Institution in Green Bay, Wisconsin, he checked out one book from the prison's chapel called ...