Bill O. McClain, Jr. v. D. Leisure

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 23, 2006*
Decided August 28, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-3996
BILL O. MCCLAIN, JR.,
Plaintiff-Appellant,
v.
D. LEISURE, et al.,
Defendants-Appellees.
Appeal from the United States
District Court for the
Southern District of Indiana,
Indianapolis Division
No. 1:03-CV-703-RLY-TAB
Richard L. Young, Judge.
O R D E R
Bill McClain, Jr., an inmate at Wabash Valley Correctional Facility in Carlisle,
Indiana, filed suit under 42 U.S.C. § 1983 against fourteen defendants who he claimed
violated his constitutional rights by retaliating against him for filing a grievance
against a prison employee and by confiscating two paintings that depicted Nazi
imagery. The district court dismissed several of his claims under 28 U.S.C. § 1915A
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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and granted summary judgment for the defendants on the remaining claims. McClain
appeals, and we affirm.
In December 2002, McClain filed an inmate grievance against David Leisure, a
“Recreation Leader” at the prison. McClain asserted that he asked Leisure when the
arts and crafts area would be open and Leisure replied that he didn’t care about arts
and crafts. McClain also disparaged Leisure’s “cognitive skills.” In response to the
grievance, Leisure stated that McClain was lying. McLain’s grievance was denied.
The grievance specialist explained that arts and crafts is the least popular recreational
activity at the facility, and that it is therefore the first to close when staffing is
insufficient.
In the meantime, Leisure wrote up a conduct report accusing McClain of making
“fictitious and libelous” statements about him. McClain was found guilty of making
false statements and given a written reprimand. The outcome was reversed for
insufficient evidence, however, based on a provision in the Operational Procedures of
the Indiana Department of Corrections stating: “Conduct reports shall not be written
for lying to staff based upon what the complaint/grievance contains, unless it can be
proven that the offender intentionally provided false information in an attempt to
harm staff, impair the operation of the facility, or overload the grievance process.” The
conviction was expunged from McClain’s record.
In a separate incident, in January 2003, a conduct report was filed against
McClain after he painted a picture that contained symbols affiliated with a “security
threat group.” The painting, which depicted Adolph Hitler and three SS officers
wearing swastikas, was confiscated, and McClain was penalized with the revocation
of 60 days of good-credit time upon his conviction for possessing security threat group
materials. Then, in March 2003, recreation staff reported to corrections officer Rob
Marshall that McClain was completing another painting that contained imagery with
a security threat group affiliation. Marshall, whose responsibilities included
monitoring gang activity within the prison, inspected the painting and confirmed that
it contained symbols associated with white supremacy but also with the Asatru
religion, of which McClain is an adherent. Marshall confiscated the painting because
of the white supremacist imagery but noted that McClain would not be disciplined
because the painting also depicted a religious symbol. Marshall advised McClain in
a letter that “any time you draw, paint, display, or possess security group threat items
you are violating Executive Directive 96-25,” the zero-tolerance policy against gangs
and gang symbols. Marshall warned that future violations would result in disciplinary
action. McClain had been warned previously by recreation staff that if he did not
paint over the symbols, his painting would be confiscated. Ultimately, McClain was
permitted to mail both of the offending paintings outside the prison.

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No. 05-3996 Page 3
In May 2003 McClain sued Leisure, Marshall, and a host of other defendants
claiming that they violated his rights to due process, free exercise of his religion, and
freedom of speech in connection with the confiscation of his paintings, the disciplinary
proceedings, and his grievance against Leisure. In November, the district court
entered an initial order dismissing on the basis of Heck v. Humphrey, 512 U.S. 477
(1994), and Edwards v. Balisok, 520 U.S. 641 (1997), “any claim which is based on an
assertedly invalid prison disciplinary proceeding which resulted in the loss of earned
good time credit.” Though the district court did not refer specifically to any of
McClain’s claims, under the terms of the order any claim implicating the disciplinary
proceedings that accompanied the confiscation of McClain’s first painting was
dismissed (he was not charged with a violation for the second painting). However,
when the court revisited McClain’s complaint at the screening stage, it addressed all
his claims without mentioning its previous order dismissing some on the ground that
they were Heck-barred. The court concluded that McClain failed to state a claim on
which relief could be granted with respect to the majority of his contentions. See 28
U.S.C. § 1915A(b)(1).
The district court allowed McClain to proceed on three claims. The first accused
Leisure of denying McClain access to the courts by filing a conduct report in response
to his grievance about the lack of arts and crafts time. McClain also claimed that
Leisure violated his right to free speech by retaliating against him for filing a
grievance. Finally, McClain claimed that Marshall violated his rights to free speech
and free exercise of his religion when he confiscated the second painting depicting
white supremacist and Asatru imagery.
McClain and the defendants both moved for summary judgment. The district
court granted the defendants’ motion. First, the court held that McClain’s claim about
denial of access to the courts failed because, having never attempted to bring a lawsuit
based on his lack of access to the arts and crafts area, he could establish no actual
injury as a result of Leisure’s conduct. The Court next rejected McClain’s retaliation
claim, concluding that the undisputed evidence demonstrated that Leisure filed the
conduct report based on his belief that McClain’s statements about him in the
grievance were considered false statements in violation of the disciplinary procedures.
Though the conduct report was ultimately deemed to be a violation of policy, the court
held, Leisure nevertheless did not possess a retaliatory motive in filing it. Finally the
court granted summary judgment for the defendants on McClain’s claim that
Marshall’s confiscation of his second painting violated the First Amendment, holding
that McClain’s rights had to yield to the prison’s legitimate regulations designed to
prevent hostility and violence among inmates.
Before we address McClain’s arguments on appeal, we note that in its order of
September 21, 2004, the district court denied McClain’s request to proceed in forma

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pauperis on appeal because he was attempting to challenge the court’s dismissal of his
“legally insufficient claims” at screening though no final appealable order had yet been
entered. The court reasoned that an interlocutory appeal of the dismissals was
brought in “bad faith,” because no reasonable person could believe the appeal had
merit. See Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). We understand the
district court to have deemed the appeal frivolous only because it was brought
prematurely; a number of claims were still pending. In general, appealing from the
dismissal of claims under § 1915A(b) is akin to appealing from a dismissal under
Federal Rule of Civil Procedure 12(b)(6), and nothing is inherently frivolous about such
an appeal.
On appeal, McClain challenges the district court’s dismissal of seven of his
claims for failure to state a claim upon which relief can be granted and its grant of
summary judgment for the defendants on the remaining three claims. We review de
novo the dismissal of McClain’s claims under § 1915A, see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004), as well as the grant of summary judgment in favor of the
defendants, see Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006).
The district court had it right when it initially dismissed a handful of McClain’s
claims under Heck. The claims he labels as Claims IV, V, VI, VII, and VIII all
challenge the confiscation of the first painting, the conduct report filed on January 22,
2003, and disciplinary proceedings that followed. In Edwards, the Supreme Court
extended the rule of Heck to bar claims that, if established, would necessarily imply the
invalidity of a disciplinary conviction that was the basis for the deprivation of an
inmate’s good-time credits. 520 U.S. at 646-47; see DeWalt v. Carter, 224 F.3d 607, 615
(7th Cir. 2000); Lusz v. Scott, 126 F.3d 1018, 1021-22 (7th Cir. 1997). McClain stands
convicted of violating the prison’s Adult Disciplinary Procedures, ¶ B-246, pertaining
to the possession of security threat group materials. As a result he lost 60 days of
earned credit time. If McClain were granted relief on his claims that the confiscation
of the painting and the procedures under which he was disciplined violated his rights
to due process and free speech, the validity of his conviction and the attendant
sanctions would be undermined. See Edwards, 520 U.S. at 646-47; Lusz, 126 F.3d at
1021. His claims are not cognizable under § 1983 unless the conviction is invalidated.
We do not know why the district later revisited these claims, and effectively dismissed
them for a second time, but we affirm the dismissal of claims IV through VIII on the
ground that they are barred by Heck.
Despite the affirmance on Heck grounds, we note that the district court’s
subsequent analysis of at least one of those claims was not entirely accurate. The
district court dismissed (again) Claim IV, holding that McClain did not state a claim
for relief under the First Amendment because he had adequate post-deprivation
remedies available. We assume, though the district court did not elaborate, that it was

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referring to the Indiana Tort Claims Act, see Indiana Code § 34-13-3-1 et seq. And it
is true that the unauthorized intentional taking of a prisoner’s property does not
violate due process so long as there are meaningful postdeprivation remedies for the
loss. See Hudson v. Palmer, 486 U.S. 517, 533 (1984); Wynn v. Southward, 251 F.3d
588, 592-93 (7th Cir. 2001). But McClain attacks the confiscation on First Amendment
grounds—he argues that his painting constitutes protected speech and that by ordering
him to alter the painting or lose it, the defendants (three recreation leaders) violated
his right to free speech—so Hudson is inapposite. The existence of post-deprivation
remedies is relevant only to due process claims; Hudson and its predecessor, Parratt
v. Taylor, 451 U.S. 527 (1981), do not reach “a challenge to policy.” Caldwell v. Miller,
790 F.2d 589, 608 (7th Cir. 1986); see Labov v. Lalley, 809 F.2d 220, 223 (3d. Cir. 1987).
Moreover, we are not persuaded that Hudson provided a sound basis on which to reject
the related due process claim. McClain alleged that he was deprived of property
pursuant to a formal policy, not that the deprivation was “unauthorized.” See Hudson,
468 U.S. at 532-33; Stewart v. McGinnis, 5 F.3d 1031, 1035-36 (7th Cir. 1993)
(explaining that Hudson applies when the confiscation of inmate property is “random
and unauthorized” but not when it occurs pursuant to state procedures).
We turn now to the claims that survived to summary judgment. McClain claims
that Marshall’s confiscation of the second painting violated his rights to free speech
and freedom of religion. Restrictions on an inmate’s freedom of expression are valid
only if reasonably related to legitimate penological interests. Turner v. Safley, 482
U.S. 78, 89 (1987); Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004). In considering
whether a given prison regulation is constitutional, we analyze four factors: whether
the regulation is rationally related to a legitimate and neutral governmental objective;
whether alternative means of exercising the right remain open to the inmate; what
impact an accommodation of the asserted right will have on guards and other inmates;
and whether obvious alternatives to the regulation exist that show the regulation is an
exaggerated response to prison concerns. Turner, 482 U.S. at 89-91; Lindell, 377 F.3d
at 657. The district court addressed only McClain’s free-exercise claim, perhaps
overlooking the free-speech claim, but we note that Turner’s framework applies equally
to both. See Kaufman v. McCaughtrey, 419 F.3d 678, 682-83 (7th Cir. 2005) (free-
exercise claim); Lindell, 377 F.3d at 657 (free-speech claim).
Summary judgment was properly granted. McClain did not counter, with
admissible evidence, Marshall’s affidavit in which he attests that inmates are not
permitted to possess or display items depicting a “security threat group affiliation” in
order to prevent them from proclaiming affiliations with gangs and to decrease
hostility and violence “among groups of offenders.” The policy in question, Executive
Directive 96-25, espouses “zero tolerance” for the gang-related activities and forbids the
possession of symbols associated with gangs. Gang suppression is a legitimate
penological interest. See Wilkinson v. Austin, 125 S. Ct. 2384, 2396-97 (2005); Westefar

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v. Snyder, 422 F.3d 570, 575 (7th Cir. 2005) (“The decision of prison administrators as
to the detrimental effect of such groups is a decision to which we owe great
deference.”). As the prison’s Security Group Threat Coordinator, Marshall determined
that the imagery in McClain’s painting violated the regulation and had the potential
to incite hostility or violence. Given the importance of the security objective at stake
and the absence of plausible way in which to accommodate McClain’s desire to create
potentially incendiary artwork, the restrictions on his rights comport with the
requirements of Turner.
McClain also argues that Executive Directive 96-25 itself casts “an enormous
net” and is “an end run” around the Constitution. To the extent that McClain
challenges the policy as overbroad, his argument is unavailing given the encroachment
permitted on a prisoner’s First Amendment rights. As we have recently noted,
“[w]hatever scope overbreadth analysis has in criminal prosecutions . . . it has little or
none in civil litigation dealing with prisons’ internal operations.” Borzych v. Frank,
439 F.3d 388, 391-92 (7th Cir. 2006); see Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir.
1986) (rejecting challenge to regulation against “indecent language” because “the
concepts of ‘overbreadth’ and ‘vagueness’ in the jurisprudence of the First Amendment
were devised in order to prevent the slightest discouragement of free speech, and
therefore have only limited relevance to a sphere where the right of free speech is
limited”).
Turning to McClain’s retaliation claim against David Leisure, McClain next
argues that the district court improperly granted summary judgment for Leisure based
on “semantics” when it concluded that Leisure filed a conduct report not because
McClain exercised his right to file a grievance, but because of the untrue assertions he
made. A prisoner is entitled to use grievance procedures without fear of recrimination,
and if a prison official retaliates, he violates the inmate’s First Amendment rights.
Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005); Babcock v. White, 102 F.3d 267,
275 (7th Cir. 1996). To succeed on his claim, McClain was required to prove that his
protected conduct—filing the grievance—was a motivating factor behind Leisure’s
conduct report. Hasan v. Dep’t of Labor, 400 F.3d 1001, 1005 (7th Cir. 2005); Babcock,
102 F.3d at 275. In Hasan, a prisoner filed a grievance against a guard, and after the
accusation was found to be groundless, the prisoner was punished for “lying about
staff.” Hasan, 400 F.3d at 1005. We rejected the retaliation claim because the prisoner
was punished for making false accusations, not for his exercise of a First Amendment
right. Id. In this case too we have uncontradicted evidence in the form of Leisure’s
affidavit that the conduct report was filed because of McClain’s false statements. That
Leisure failed to recognize that a conduct report was not an appropriate response
under DOC policy does not detract from the conclusion. Moreover, no harm ultimately
came to McClain because the conviction for lying and the written reprimand were

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expunged from his record. Filing the conduct report was a mistake but it was not a
constitutional tort.
McClain’s remaining arguments do not merit discussion. The judgment of the
district court is A FFIRMED.

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