NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 21, 2017*
Decided December 21, 2017
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16‐3545
EARNEST D. BEAMON JR., Appeal from the United States
Plaintiff‐Appellant, District Court for the Eastern District of
Wisconsin.
v.
No. 14‐CV‐136‐JPS
MICHAEL A. DITTMANN, et al.,
Defendants‐Appellees. J.P. Stadtmueller,
Judge.
O R D E R
Earnest Beamon, an inmate in Wisconsin, filed this suit under 42 U.S.C. § 1983,
claiming that prison officials disciplined him because of a grievance that he filed. The
district court granted summary judgment for the defendants, and Beamon has now
appealed. We conclude that a reasonable jury could find that one defendant violated
* 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. See FED. R. APP. P. 34(a)(2)(C).
No. 16‐3545 Page 2
Beamon’s right under the First Amendment to pursue a grievance. We therefore vacate
the judgment and remand for further proceedings against that defendant only.
Most of the facts underlying this appeal are undisputed. They arise from
interactions that Beamon had at Wisconsin’s Redgranite Correctional Institution with
Jason Wilke, a prison official. (We briefly discuss the other defendants at the end of this
order.) The main factual dispute concerns why Wilke wrote a conduct report against
Beamon: Wilke says that he wrote it because he wanted to punish Beamon for writing a
letter supporting a prohibited group, while Beamon insists that Wilke issued the
conduct report in retaliation for a grievance that Beamon had filed about Wilke.
As the facility’s Security Threat Group Coordinator, Wilke monitors prison
gangs and groups that threaten security. One such group is the “Five Percent Nation”
(a reference to blessed black men). The Department of Corrections considers it a hate
group. The Five Percent Nation (also known as the Nation of Gods and Earths) was
founded after its leader, “Father Allah,” broke away from the Nation of Islam. Some of
Father Allah’s teachings are based on something called the “120 lessons.” The
Department bans prisoners from possessing any materials about the Five Percent
Nation for three reasons. First, “Five Percenters” promote black racial supremacy by
teaching, among other things, that white people are evil and black men are divine.
Second, they use codes—known as “Supreme Mathematics” and the “Supreme
Alphabet”—that obscure from untrained staff problematic content. And third, in other
states some prisoners who identified as Five Percenters engaged in violence and
unlawful activity years ago.
Wilke and Beamon clashed four times in 2013. The first time was in April, when
prison staff searched Beamon’s cell and discovered written materials related to
Supreme Mathematics. (The parties offer no specifics about their content.) Wilke met
with Beamon, explained that Five Percenter materials are contraband, but did not issue
a conduct report. About three weeks later, Beamon was found a second time to possess
unspecified Five Percenter materials. Again Wilke counseled him but did not issue a
conduct report.
The third clash was in June, when prison staff intercepted a letter that Beamon
had written to another inmate. In this letter Beamon mentioned the “120 lessons,”
identified the other inmate as “God,” and signed the letter “Born Prophet Allah.” Wilke
construed these as references to the Five Percenter ideology. Another search of
Beamon’s cell revealed documents that, in Wilke’s view, related to the Five Percent
No. 16‐3545 Page 3
Nation “or groups with very similar ideology.” Wilke charged Beamon with violating
rules against group resistance and petitions, using false names and titles, employing
unauthorized forms of communication, and disobeying orders. A disciplinary officer
found Beamon guilty of the first two charges only. Beamon received 90 days of
disciplinary separation.
A fourth interaction the following month precipitated this lawsuit. Beamon
wrote a letter to his niece, and Wilkes intercepted it. Here is a representative excerpt:
Hey, lil bad ass. I got you[r] letter yesterday. I’m glad you [are] doing
alright. That really brings a smile to my face . … I’m glad you been going
to the gym wit[h] your granny, cause you got to take care of yourself and
your body that’s very important. Where do you go to vacation Bible
school at? That’s real nice it gives you something to do, something
positive. I’m real proud of you. Keep up the good work . … If you don’t
remember nothing else remember that your uncle loves you dearly . …
The letter also includes a chart that translates into English some Chinese words for
black people. Beamon signed the letter “Uncle Junior B. A.K.A. The Prophet,” though he
wrote his full name and inmate number on the envelope. When he tried to send the
letter, Wilke returned it to him because Beamon had enclosed stamps. Inmates may not
mail stamps outside the prison. Wilke did not issue Beamon a conduct report, either for
the contents of the letter or for the stamps.
The next day Beamon filed a grievance against Wilke for not permitting him to
mail stamps to his niece. He also tried to resend the letter. He left out the stamps but
added a postscript to his niece. The postscript criticizes the prison’s refusal to allow him
to mail her stamps, proposes litigation over it, and advises good behavior for her:
[T]ell your papa to get in touch with the federal authorities and inform
them of the violations of my first amendment and 14th amendment
rights and my privacy to write family members . … Tell him the dumb
capt here misinterpreted everything from his own unintelligent
understanding. Just let him read this part and you better stay out of
trouble. I was trying to send you some more stamps but these dumb
people all of sudden say I can’t . … Also lil queen you better be staying
away from the gang bull . … Tell your papa these got to be the dumbest
people I ever came across. They ain’t even that dumb back home.
No. 16‐3545 Page 4
Everybody but these idiots know I haven’t dealt with a dumb ass gang
since Keana been in the world 18 years. Tell my Mother Earth to make
sure daddy get on it and I’m cool. Tell her a thinking man remains
unswayed at all times. Tell her she know what she raise me to be no
matter what a black or white person has to say . … I don’t have the
energy to hate. We wasn’t raised that way.
This time Wilke objected to the letter and issued a conduct report. Beamon
swears that Wilke told him he let Beamon “slide the first time” he tried to mail the
letter, but once Wilke learned that Beamon had written a grievance about him Wilke
“figured [he]’d write [Beamon] up since [Beamon] wrote [Wilke] up.” (Wilke denies
knowing about Beamon’s grievance, but at this juncture we must accept Beamon’s
version.) Wilke asserted that the letter attempted to spread Five Percenter ideology.
He objected to two features that were in the original letter: the translations of terms for
black people and the signature “Uncle Junior B. A.K.A. The Prophet.” He also objected
that the postscript referred to Beamon’s mother as “Mother Earth.” Wilke charged
Beamon with violating rules against group resistance and petitions, using false names
and titles, disrespect, and disobeying orders. A disciplinary officer found Beamon
guilty of all rule violations except for disobeying orders. Beamon was punished with six
more months in disciplinary separation.
Invoking 42 U.S.C. § 1983, Beamon sued Wilke and various prison officials who
had participated in the disciplinary process. He asserted that the defendants had
violated the First Amendment by burdening his religious practice and retaliating
against him for filing a grievance. The district court concluded that a reasonable jury
could not find in Beamon’s favor and entered summary judgment for the defendants.
In this court Beamon focuses on the retaliation claim against Wilke. To survive
summary judgment, Beamon must produce evidence that (1) he engaged in protected
First Amendment activity, (2) he suffered a deprivation sufficient to deter future First
Amendment activity, and (3) the protected activity was at least a motivating factor for
the deprivation. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012); Greene v. Doruff,
660 F.3d 975, 979–80 (7th Cir. 2011). The parties assume that Beamon’s grievance was
protected and that his punishment would deter protected activity. They focus on the
last prong—whether Beamon’s grievance motivated the conduct report. We do the
same.
No. 16‐3545 Page 5
Construing the evidence in the light most favorable to Beamon, a reasonable jury
could conclude that Wilke wrote the second conduct report because Beamon filed a
grievance about him. According to Beamon’s testimony, Wilke essentially admitted his
retaliatory motive for writing the conduct report. This admission by itself is enough for
a trial, but even without it a jury could infer retaliatory animus from the chronology of
events that the evidence supports. See Mays v. Springborn, 575 F.3d 643, 650 (7th Cir.
2009). Wilke opened the letter, examined it, and found nothing objectionable about it
other than the stamps. Only after Beamon had filed his grievance against Wilke for
confiscating the stamps and only after Beamon had stated in his postscript his plan to
litigate that issue did Wilke consider the same contents objectionable.
This same evidence would permit a reasonable jury to conclude that if Wilke had
no retaliatory motive, he would not have written the conduct report and therefore
Beamon would not have been punished. Because Beamon offered evidence that Wilke
had a retaliatory motive for writing the conduct report, the burden shifted to Wilke to
show that he would have written the conduct report anyway, without the forbidden
motive. See Mays v. Springborn, 719 F.3d 631, 634 (7th Cir. 2013). Wilke swears that the
reason he issued the conduct report after Beamon tried to re‐mail the letter was that he
only then noticed the letter’s objectionable content. But a jury would not be bound to
believe this assertion. A jury could instead credit Beamon’s testimony that Wilke
admitted his actions were driven by retaliatory animus—that Wilke “figured [he]’d
write [Beamon] up since [Beamon] wrote [Wilke] up.”
We can quickly dispatch the two remaining issues. First Beamon also argues on
appeal that a reasonable jury could find that Wilke issued the conduct report because
Beamon identifies as a Black Muslim. But Beamon produced no admissible evidence to
support his contention that “Wilke has a personal prejudice against Black Muslims” and
“has explicitly expressed those feelings.” A jury would have to speculate about this
claim, and a reasonable jury does not base its decision on speculation. See Muhammad v.
Caterpillar, 767 F.3d 694, 700 (7th Cir. 2014). Second, as for the remaining defendants,
Beamon forfeited any appellate challenge to their dismissal by failing to articulate any
argument for our review. See FED. R. APP. P. 28(a)(8)(A); Ewell v. Toney, 853 F.3d 911, 918
(7th Cir. 2017). In any event, Beamon principally faults these defendants for not
preventing Wilke’s violation of Beamon’s rights, yet government officials are liable for
their own misconduct only. See Perez v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015).
We close with an observation about this case on remand. As a prisoner, Beamon
may not recover compensatory damages unless he proves that he suffered a physical
No. 16‐3545 Page 6
injury, see 42 U.S.C. § 1997e(e). But if the trier of fact believes his assertions, he may be
awarded nominal damages, and if the trier finds that Wilke’s conduct was willful and
wanton, Beamon may recover punitive damages. See Gray v. Hardy, 826 F.3d 1000, 1007
(7th Cir. 2016); Smith v. Peters, 631 F.3d 418, 421 (7th Cir. 2011).
Accordingly, we VACATE the judgment and REMAND for further proceedings
on Beamon’s retaliation claim against Wilke. In all other respects we AFFIRM.