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Singer v. Raemisch

January 25, 2010


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05-C-1040-J.P. Stadtmueller, Judge.

The opinion of the court was delivered by: Tinder, Circuit Judge.


Before EASTERBROOK, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.

After concluding that the popular role-playing game Dungeons and Dragons ("D&D") represented a threat to prison security, officials at Wisconsin's Waupun Correctional Institution took action to eradicate D&D within the prison's walls. Inmate Kevin T. Singer found himself on the front lines of Waupun's war on D&D when prison officials confiscated a large quantity of D&D-related publications from his cell. Singer sought relief from the prison's new regulations-and the return of his D&D materials-through the prison's complaint system, a pursuit which ultimately proved fruitless. Singer then brought this action against a variety of prison officials pursuant to 42 U.S.C. § 1983. He alleged that Waupun's confiscation of his D&D materials and imposition of a ban on D&D play violated his First Amendment right to free speech and his Fourteenth Amendment rights to due process and equal protection. The prison officials moved for summary judgment on all of Singer's claims, and the district court granted their motion in full. Singer appeals the grant of summary judgment with respect to his First Amendment claims, and we affirm.

I. Background

Kevin T. Singer is an inmate at Wisconsin's Waupun Correctional Institution. He is also a devoted player of D&D, a fantasy role-playing game in which players collectively develop a story around characters whose personae they adopt. Singer has been a D&D enthusiast since childhood and over time has acquired numerous D&D-related publications. His enthusiasm for D&D is such that he has handwritten a ninety-six page manuscript outlining the specific details of a "campaign setting" he developed for use in D&D gameplay.*fn2

Singer's devotion to D&D was unwavering during his incarceration at Waupun. He frequently ordered D&D publications and game materials by mail and had them delivered to his cell. Singer was able to order and possess his D&D materials without incident from June 2002 until November 2004. This all changed on or about November 14, 2004, when Waupun's long-serving Disruptive Group Coordinator, Captain Bruce Muraski, received an anonymous letter from an inmate. The letter expressed concern that Singer and three other inmates were forming a D&D gang and were trying to recruit others to join by passing around their D&D publications and touting the "rush" they got from playing the game. Muraski, Waupun's expert on gang activity, decided to heed the letter's advice and "check into this gang before it gets out of hand."

On November 15, 2004, Muraski ordered Waupun staff to search the cells of the inmates named in the letter. The search of Singer's cell turned up twenty-one books, fourteen magazines, and Singer's handwritten D&D manuscript, all of which were confiscated. Muraski examined the confiscated materials and determined that they were all D&D related. In a December 6, 2004 letter to Singer, Muraski informed Singer that "inmates are not allowed to engage in or possess written material that details rules, codes, dogma of games/activities such as 'Dungeons and Dragons' because it promotes fantasy role playing, competitive hostility, violence, addictive escape behaviors, and possible gambling." This prohibition was later reiterated in a daily bulletin that was posted throughout the prison. It was also incorporated into a broader policy prohibiting inmates from engaging in all types of fantasy games.

On December 14, 2004, Singer and the three other inmates fingered in the anonymous letter to Muraski filed a complaint under Waupun's Inmate Complaint Review System. The complaint concerned the seizure of D&D materials from the inmates' cells. Waupun's inmate complaint examiner investigated the complaint and on December 23, 2004, issued a report recommending its dismissal. The complaint was dismissed shortly thereafter.

After the prison dismissed the internal complaint he had spearheaded, Singer lodged a pro se civil rights complaint in federal court pursuant to 42 U.S.C. § 1983. (He was eventually provided with counsel pursuant to 28 U.S.C. § 1915(e)(1).) He alleged that his free speech and due process rights were violated when Waupun officials confiscated his D&D materials and enacted a categorical ban against D&D. Singer named Muraski, several other Waupun officials, and the Secretary of the Wisconsin Department of Corrections as defendants (collectively "prison officials"). Singer sought a panoply of relief from the court, including a declaratory judgment that his constitutional rights were violated and an injunction ordering the prison officials to return his confiscated publications.

Singer collected fifteen affidavits-from other inmates, his brother, and three role-playing game experts. He contends that the affidavits demonstrate that there is no connection between D&D and gang activity. Several of Singer's affiants indeed asserted the opposite: that D&D helps rehabilitate inmates and prevents them from joining gangs and engaging in other undesirable activities. The prison officials countered Singer's affidavit evidence by submitting an affidavit from Captain Bruce Muraski, who has spent nearly twenty years as Waupun's Disruptive Group Coordinator and Security Supervisor and belongs to both the Midwest Gang Investigators Association and the Great Lakes International Gang Investigators Coalition. Muraski also has extensive training in illicit groups ranging from nationwide street and prison gangs to small occult groups and has been certified as a gang specialist by the National Gang Crime Research Center. Muraski testified that it is his responsibility to "prevent the grouping of inmates into new gangs or other groups that are not organized to promote educational, social, cultural, religious, recreational, or other lawful leisure activities." He further testified that fantasy role-playing games like D&D have "been found to promote competitive hostility, violence, and addictive escape behavior, which can compromise not only the inmate's rehabilitation and effects of positive programming, but endanger the public and jeopardize the safety and security of the institution."

The prison officials moved for summary judgment on all of Singer's claims. The district court granted the motion in full, but Singer limits his appeal to the foreclo-sure of his First Amendment claims. In its evaluation of those claims, the district court applied the four-factor test announced in Turner v. Safley, 482 U.S. 78 (1987). It concluded that Singer failed to demonstrate that there was a genuine issue of material fact as to whether the D&D policy was reasonably related to Waupun's legitimate penological interests of maintaining safety and security and curbing gang activity.

II. Discussion

We review a district court's grant of summary judgment de novo. E.g., Chaklos v. Stevens, 560 F.3d 705, 710 (7th Cir. 2009). In doing so, we construe all facts and reasonable inferences in favor of the nonmoving party. Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d 1046, 1051 (7th Cir. 2008). However, our favor toward the nonmoving party does not extend to drawing "[i]nferences that are supported by only speculation or conjecture." See Fischer v. Avanade, Inc., 519 F.3d 393, 401 (7th Cir. 2008) (quoting McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004)). Thus, to succeed on appeal, Singer "must do more than raise some metaphysical doubt as to the material facts; [he] must come forward with specific facts showing that ...

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