Thaddeus Jason KAROW, Plaintiff-Appellant, v. Larry FUCHS, et al., Defendants-Appellees, 695 F. App'x 966

Order Thaddeus Karow asked the warden of his prison in Wisconsin to recognize Asa-tru as a religion and allow meetings of adherents. After the warden declined, he placed this ad in Rune Quest, a monthly newsletter: “!! WANTED!! Help! Trying to get Asatru recognized in the WI prison system as a legitimate religion, and separate from Wicca. If you have any ideas please contact: Thaddeus J. Karow #191554 c/o Box 4000 - New Lisbon, WI 58950”. An officer confiscated this issue of the newsletter and charged Karow with misconduct.

A disciplinary proceeding was resolved in Karow’s favor after the board decided that placing the ad had not violated the rules the officer cited. A typewriter the officer had taken from Karow was returned to him. But in this suit under 42 U.S.C. § 1983 he contends that he is entitled to damages because three officers or guards have continued to threaten him with discipline if he places more ads about Asatru. Karow discontinued the advertisement and has not been charged again. The district court granted

summary judgment to the defendants, ruling that they are entitled to qualified immunity because it has not been clearly established that prisoners are entitled to place public solicitations of this kind. Wisconsin views Asatru as a racist sect and a potential front for gang activity. The officer who charged Karow with misconduct stated that other parts of the Rune Quest issue in which the ad appeared seemed to have racist overtones, and he added that the advertisement may have contained gang-related code. Karow contends that these beliefs are mistaken, and we shall assume that they are.

The Bureau of Prisons allows the practice of Asatru in federal prisons, and many states likewise treat it as a legitimate religion. But whether particular disciplinary charges are correct is a subject to be resolved by prison disciplinary boards, not by damages actions under § 1983. The board ruled in Karow’s favor.

That one officer threatened to file a new disciplinary charge if Karow placed further ads does not affect this proposition; no rule of federal law endows the decisions of prison disciplinary committees with preclusive effect and forbids a prison’s staff from asking the committee to take another look at an issue. Public officials are entitled to qualified immunity unless their acts violate clearly established law. See, e.g., White v. Pauly, — U.S. -, 137 S.Ct. 548, 196 L.Ed.2d 463 (2017).

Neither the Supreme Court nor any court of appeals has held that prisoners are entitled to place advertisements in an effort to attract support for a proposal to change a prison system’s policies. To the contrary, many decisions have held that a prisoner’s efforts to speak directly to the public at large or to the press are subject to restrictions by wardens and other officials. See, e.g., Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Hammer v. Ashcroft, 570 F.3d 798 (7th Cir. 2009) (en banc).

Karow had every right to contact lawyers who might have been willing to help him and to initiate litigation seeking an injunction requiring the prison system to recognize Asatru. By choosing a different route—one that could have entailed gang code, even if it did not in fact—Karow invited a reaction by the prison system. The district court was right to conclude that the defendants are entitled to qualified immunity from damages. Affirmed