Michael Oliver v. Douglas Lyerla ( 2022 )

NONPRECEDENTIAL DISPOSITION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 February 18, 2022*
Decided February 22, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20‐2487
MICHAEL OLIVER, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 17‐CV‐00206‐NJR
DOUGLAS LYERLA & MINH SCOTT, Nancy J. Rosenstengel,
Defendants‐Appellees. Chief Judge.
ORDER
Michael Oliver, an Illinois prisoner, sued correctional officers at two prisons for
violating his constitutional rights. The district court severed his action, separating the
allegations between the different prisons. In this case, the court allowed Oliver to
proceed on a First Amendment claim against two officers from the Menard Correctional
* We have agreed to decide the 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. FED. R. APP. P. 34(a)(2)(C).
No. 20‐2487 Page 2
Center and ultimately entered summary judgment in their favor. On appeal, Oliver
challenges that decision as well as the severance. We affirm.
Oliver was transferred from Pinckneyville Correctional Center to Menard and
initially placed in a medium‐security unit. Some correctional officers at Menard had
family members who worked at Pinckneyville. We recount the events at Menard in the
light most favorable to Oliver and draw reasonable inferences in his favor. Flexible Steel
Lacing Co. v. Conveyor Accessories, Inc., 955 F.3d 632, 643 (7th Cir. 2020).
Oliver uses the honorific “King” before his name. After doing so on his visitor
list at Menard, Sergeant Minh Scott verbally harassed him about it. When Oliver asked
another officer for grievance forms, Scott brought them instead, saying: “I double dog
dare you to file those grievances.” Oliver filed a grievance a short time later
complaining that Scott “expressed hostility” toward him because he used “King.”
When Oliver went to Major Douglas Lyerla’s office to discuss the grievance,
Lyerla threatened to move Oliver to a maximum‐security unit if he did not stop
referring to himself as “King Michael Oliver.” Oliver was eligible for placement in
either a medium‐ or maximum‐security unit, and he was in fact transferred to
maximum security the next day. Menard’s Placement Office Supervisor at the time
attested that Oliver’s transfer appeared to be routine. Oliver suffered various
restrictions after the transfer: loss of a daily shower, telephone access, recreation time,
job opportunities, and more. It is unclear if these restrictions were incidental to Oliver’s
maximum‐security placement or if any were specially directed at Oliver.
Oliver brought this suit under 42 U.S.C. § 1983. His complaint divided the
officer‐defendants by prison and alleged constitutional violations stemming from his
time at Pinckneyville and Menard. He asserted that his mistreatment at each facility
was related because the officers knew each other and were conspiring against him. At
screening under 28 U.S.C. § 1915A, the district court concluded that his claims against
the groups of defendants were distinct and severed the claims against Scott, Lyerla, and
Butler, Menard’s warden, into this case. The court allowed Oliver to proceed on a First
Amendment retaliation claim against Lyerla and Scott. After discovery, the court
entered summary judgment for the defendants. It ruled that Oliver lacked evidence that
he was punished for protected speech and that he did not dispute the evidence that his
transfer was routine and, therefore, not retaliatory.
Oliver first challenges the district court’s decision to sever his lawsuit into two
cases. He argues that the claims against the Pinckneyville defendants should have
No. 20‐2487 Page 3
remained with those against the Menard defendants because of a conspiracy between
the two and, further, that the Pinckneyville case should not have been dismissed. The
latter issue is not properly before us, however: the Pinckneyville claims were dismissed
after being severed, so any appeal must be filed in that separate case.
As for the severance, which we review for an abuse of discretion, the district
court permissibly severed Oliver’s complaint. See Gaffney v. Riverboat Servs., 451 F.3d
424, 442 (7th Cir. 2006). Defendants can be joined in one action if they were all involved
in the same transaction or occurrence. FED. R. CIV. P. 20(a)(2)(A). We have instructed
courts to dismiss improperly joined defendants or sever complaints like Oliver’s,
particularly when the plaintiff is subject to the Prison Litigation Reform Act. See
28 U.S.C. § 1915(b); see also Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011).
Oliver’s allegations against the Pinckneyville defendants do not involve the
Menard defendants, and vice versa. Oliver argues that he alleged a conspiracy that
spanned the prisons. But his bald speculation based on purported familial relationships
among the prisons’ staff members does not plausibly connect the two sets of defendants
with respect to the conduct at issue. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Severance, then, was proper. Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009).
Oliver next challenges the summary judgment in favor of the officers; we review
that decision de novo. Flexible Steel Lacing Co., 955 F.3d at 643. Oliver first contends that
his First Amendment claim based on Scott’s “visiting list retaliation” should have
survived summary judgment. We need not decide whether using an honorific on prison
paperwork is protected activity because Oliver’s claim fails on other grounds. For the
claim to survive summary judgment, Oliver needed evidence that Scott’s reaction
would chill protected conduct. See Douglas v. Reeves, 964 F.3d 643, 647–48 (7th Cir. 2020).
But the only misfeasance that Oliver alleges followed his use of “King” on the
list―Scott’s “double dog dare” comment―was unlikely to do so. There was no threat of
a violent reprisal or any concrete adverse action, so we cannot say that Oliver suffered a
repercussion. Id. (“He needed to point to a deprivation with some significant deterrent
effect.”) Scott’s comment may be inappropriate, but it does not rise to a constitutional
violation. See Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982).
Oliver also argues that summary judgment was improper on the claim he calls
“the grievance retaliation”: his transfer from a medium‐ to maximum‐security area and
subsequent loss of a daily shower, telephone access, recreation time, and job
opportunities. We will assume―as the parties do―that Oliver engaged in conduct
protected by the First Amendment when he filed his grievance complaining of Scott’s
No. 20‐2487 Page 4
harassment. See Herron v. Meyer, 820 F.3d 860, 863–64 (7th Cir. 2016). Judgment for the
defendants was nevertheless proper, though not for the reasons the appellees argue.
Oliver did not provide any evidence that Scott or Lyerla initiated his transfer, let
alone that they did so to punish him for his grievances. Lyerla threatened to transfer
Oliver if he kept using “King,” and he was indeed transferred the next day. But there is
no evidence that Oliver used “King” again after the threat. Further, Scott and Lyerla
presented evidence showing that Oliver’s transfer was “routine,” and Oliver did not
show that Scott and Lyerla even had the authority to initiate a transfer. The officers’
evidence on this point is thin, and an adverse action closely following protected
conduct can be evidence of retaliation. Lavite v. Dunstan, 932 F.3d 1020, 1031 (7th Cir.
2019). But summary judgment requires moving past the pleadings, Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986), and temporal proximity alone is rarely enough to defeat
summary judgment. Cf. Abrego v. Wilkie, 907 F.3d 1004, 1015 (7th Cir. 2018).
Because there is no evidence of causation, we need not address whether the
intra‐prison transfer, if initiated in response to protected conduct, was sufficiently
punitive to violate the First Amendment. Two points merit discussion, however.
First, the appellees argue that there was no retaliation because Oliver’s transfer
was not a serious change in circumstances, especially within a prison, so it would not
deter protected activity. This conflates a First Amendment claim with a due process
challenge to a prison transfer. Although changes in conditions must be “atypical and
significant” to create a liberty interest in a prison assignment, Wilkinson v. Austin, 545
U.S. 209, 222–23 (2005), milder consequences can still deter protected speech and violate
the First Amendment. FKFJ, Inc. v. Vill. of Worth, 11 F.4th 574, 585 (7th Cir. 2021).
Second, the appellants argue that losing daily showers, recreation time,
telephone access, and more simply reflect the reality that prison is “an unpleasant place
to be,” and that prisoners must endure more before claiming a constitutional violation.
See Giles v. Godinez, 914 F.3d 1040, 1054 (7th Cir. 2019). We have held that disruptions
incidental to transfers do not, without more, make a transfer adverse. Holleman v.
Zatecky, 951 F.3d 873, 880–81 (7th Cir. 2020) (citing Thaddeus‐X v. Blatter, 175 F.3d 378,
398 (6th Cir. 1999)). But that is not to say that prisoners are subject to a heightened
standard to prove retaliation. See Thaddeus‐X, 175 F.3d at 398.
Prisoners making claims like Oliver’s must show that they were punished for
their speech; that punishment need only be as severe as necessary to chill future
conduct. See Douglas, 964 F.3d at 647–48. We ask if a prisoner suffered horrific
No. 20‐2487 Page 5
conditions beyond the expected unpleasantness of prison life when addressing claims
about prison conditions under the Eighth Amendment. Giles, 914 F.3d at 1051. The
appellees did not show that Oliver’s losses were incidental to his transfer. If they were
targeted at Oliver, they could have supported his First Amendment claim. See Holleman,
951 F.3d at 878. But his inability to demonstrate any causal link to these defendants
suffices to defeat the claim.
AFFIRMED