Nathan J. Gaustad v. JODINE DEPPISCH and MEL PULVER

* 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 29, 2007*
Decided August 30, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
No. 06-4420
NATHAN J. GAUSTAD,
Plaintiff-Appellant,
v.
JODINE DEPPISCH and
MEL PULVER,
Defendants-Appellees.
Appeal from the United States
District Court for the Western
District of Wisconsin
No. 06 C 501 S
John C. Shabaz,
Judge.
O R D E R
Nathan Gaustad, a Wisconsin prisoner, brought suit under 42 U.S.C. § 1983
claiming that he was improperly disciplined for possessing materials from an
organization associated with white-supremacist ideology. The district court, citing
our decision in Koutnik v. Brown, 456 F.3d 777 (7th Cir. 2006), dismissed his
complaint for failure to state a claim. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-4420 Page 2
In analyzing a dismissal under Fed. R. Civ. P. 12(b)(6), we accept as true the
facts alleged in the complaint. Richards v. Kiernan, 461 F.3d 880, 882 (7th Cir.
2006). According to Gaustad, a guard searching his prison cell discovered materials
from “Creativity Prison Ministries” that he suspected was “gang related.” A gang
coordinator at the prison then issued a conduct report, which is attached to the
complaint and part of it, see Fed. R. Civ. P. 10(c); Centers v. Centennial Mortg., Inc.,
398 F.3d 930, 933 (7th Cir. 2005), alleging that the organization, formerly called
World Church of the Creator, advocates white supremacy and has been identified by
administrators as a security threat. Its members believe that “white people are the
creators of all worthwhile culture and civilization” and that nonwhites are the
“natural enemies of the white race.” The prison accordingly disciplined Gaustad by
confining him in segregation for violating Wis. Admin Code DOC . § 303.20(3), which
prohibits inmates from participating in “any activity with an inmate gang” or
possessing “any gang literature, creed, symbols or symbolism.” An inmate gang is
defined as “a group of inmates which is not sanctioned by the warden.” Wis. Admin
Code D OC . § 303.02(11). The parties agree, however, that after this appeal was filed
the disciplinary action was expunged from Gaustad’s record when it was learned
that prison staff had improperly destroyed the materials before his administrative
appeals were complete.
As Gaustad has explained his complaint, he claims that his right to
“substantive due process” was violated because § 303.20(3) is too vague to give
notice that possessing materials from Creativity Prison Ministries is punishable. In
moving to dismiss, the defendants argued, and the district court agreed, that
Gaustad’s claim is foreclosed by our decision in Koutnik. In Koutnik we held that
§ 303.20(3) is not unconstitutionally vague or overbroad and also that its particular
application to a prisoner who had drafted outgoing mail espousing white-
supremacist ideology did not offend the First Amendment. See Koutnik, 456 F.3d at
783-86. Gaustad responded that Koutnik does not dispose of his complaint because
he is bringing his vagueness challenge under the Due Process Clause and not the
First Amendment. The district court rejected that argument and dismissed
Gaustad’s complaint because Koutnik holds that § 303.20(3) is not
unconstitutionally vague.
On appeal Gaustad continues to characterize his claim to be that
§ 303.20(3) is too vague to put him on notice that his conduct was punishable.
This claim is frivolous in light of our decision in Koutnik that § 303.20(3) is not
unconstitutionally vague. Koutnik 456 F.3d at 783-84. Gaustad reiterates his
theory that Koutnik is inapposite to his case because he has eschewed any reliance
on the First Amendment and instead challenges § 303.20(3) as vague under the
tenets of substantive due process. But Gaustad may challenge the constitutionality
of § 303.20(3) solely under the First Amendment. The Supreme Court has
mandated that “[w]hen a particular amendment provides an explicit textual source

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No. 06-4420 Page 3
of constitutional protection against a particular sort of government behavior, that
amendment, not the more generalized notion of substantive due process, must be
the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994)
(internal quotation marks omitted); see Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir.
2005) (“[C]onstitutional claims must be addressed under the most applicable
provision.”). Thus, in Koutnik we applied the “Albright rule” and refused to also
evaluate the prisoner’s First Amendment challenge to § 303.20(3) under his
alternative theory that the regulation violated the Due Process Clause. See
Koutnik, 456 F.3d at 781 n.2. The result here is the same except that this time
there is no First Amendment claim left to address because Gaustad has made it
abundantly clear that he does not wish to premise his suit on the First Amendment.
We note for future reference that Gaustad has incurred two “strikes” under
28 U.S.C. § 1915(g) in the course of this lawsuit: one for filing a frivolous claim in
the district court, and one for appealing that claim.
The judgment of the district court is AFFIRMED.

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