Monwell Douglas v. Faith Reeves ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2588
MONWELL DOUGLAS,
Plaintiff‐Appellant,
v.
FAITH REEVES,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:16‐cv‐00368‐JMS‐DLP — Jane Magnus‐Stinson, Chief Judge.
____________________
ARGUED MAY 13, 2020 — DECIDED JULY 7, 2020
____________________
Before FLAUM, HAMILTON, and ST. EVE, Circuit Judges.
HAMILTON, Circuit Judge. In this suit under 42 U.S.C.
§ 1983, plaintiff Monwell Douglas, an Indiana prisoner,
claims that defendant Faith Reeves, his casework manager, re‐
taliated against him for activity protected by the First Amend‐
ment. Douglas asserts that after he successfully appealed a
prison disciplinary sanction, Reeves punished him for taking
the appeal by refusing to restore benefits he had lost as a re‐
2 No. 18‐2588
sult of discipline. The district court granted summary judg‐
ment to Reeves. We affirm because no reasonable jury could
conclude that Reeves inflicted deprivations on Douglas likely
to deter a person of ordinary firmness from engaging in First
Amendment activity.
I. Factual and Procedural Background
We review the grant of summary judgment de novo and
construe all facts and reasonable inferences in favor of Doug‐
las, the non‐moving party. Daugherty v. Page, 906 F.3d 606, 609
(7th Cir. 2018). The events leading up to this lawsuit began on
February 16, 2016, when a nurse accused Douglas of threaten‐
ing her during a trip to the infirmary.1 Based on this accusa‐
tion, Douglas was convicted of a disciplinary offense on Feb‐
ruary 24. But Douglas appealed, and on March 14, the prison’s
superintendent overturned the conviction for lack of evi‐
dence. In the meantime, the conviction had affected Douglas
adversely in several ways. He was placed in “segregation”
housing, losing the cell he was used to. He also lost his job as
a “wheelchair pusher” and stopped receiving wages.
1 Our account of the facts draws on all of Douglas’s pro se filings at
summary judgment. Douglas concedes on appeal that the district court
could have disregarded portions of his summary judgment submissions
that were not supported by his affidavit or other admissible evidence. Ap‐
pellant’s Br. at 3 n.2; see Fed. R. Civ. P. 56(c). Reeves did not object to any
of his factual assertions in the district court, however, and she cites them
at several points on appeal. We will assume that all of Douglas’s filings
could be supported by admissible evidence. See Cehovic‐Dixneuf v. Wong,
895 F.3d 927, 932 (7th Cir. 2018) (“Neither the rules of evidence nor the
rules of civil procedure require lawyers or judges to raise all available ev‐
identiary objections.”).
No. 18‐2588 3
After his successful appeal, Douglas was returned to the
normal cell block on March 23, though not to his original cell.
That day, he wrote to Reeves asking to get back what he had
forfeited due to the overturned sanction. He followed his re‐
quest with an “informal grievance” on March 28 and a “for‐
mal grievance” on April 6. With some variations, these docu‐
ments demanded three remedies: (1) return to his old cell; (2)
reinstatement to his old job or a better one; and (3) backpay
from his suspension through his return from segregation.
Although Douglas eventually received a new job and
backpay, prison officials did not make Douglas whole to his
full satisfaction. (We discuss his specific complaints in more
detail below.) After lodging several more grievances against
various officials, he filed this lawsuit against nine defendants
alleging violations of the First, Fourth, Fifth, and Sixth
Amendments. The district court screened the complaint un‐
der 28 U.S.C. § 1915A(b) and allowed only the First Amend‐
ment claim against Reeves to go forward. Later, the district
court granted summary judgment on this remaining claim.
Douglas appeals the grant of summary judgment. He does not
challenge any aspect of the screening order.
II. Analysis
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Whether a factual dispute is genuine turns on
whether “the evidence is such that a reasonable jury could re‐
turn a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). To establish a prima facie
case of unlawful retaliation, a plaintiff must show “(1) he en‐
gaged in activity protected by the First Amendment; (2) he
4 No. 18‐2588
suffered a deprivation that would likely deter First Amend‐
ment activity in the future; and (3) the First Amendment ac‐
tivity was ‘at least a motivating factor’ in the Defendants’ de‐
cision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d
541, 546 (7th Cir. 2009). These basic elements are the same
whether the plaintiff is a prisoner, a public employee, or any
other person alleging that a government official targeted pro‐
tected activity. See Bridges, 557 F.3d at 546 (prisoner); Massey
v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006) (public employee);
Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008) (healthcare
corporation). As we will see, however, the specific contours of
each element can vary depending on the context.
There is no question that Douglas engaged in activity pro‐
tected by the First Amendment. Reeves concedes that he did
so three times: his February 25 administrative appeal of his
disciplinary sanction, his March 28 informal grievance, and
his April 6 formal grievance. Appellee’s Br. at 13. We agree
with the parties that administrative appeals of prison disci‐
pline, like grievances against prison officials, fall within the
First Amendment’s protections. “A prisoner has a First
Amendment right to make grievances about conditions of
confinement.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir.
2012), quoting Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir.
2010); see also Babcock v. White, 102 F.3d 267, 276 (7th Cir.
1996) (“The federal courts have long recognized a prisoner’s
right to seek administrative or judicial remedy of conditions
of confinement, as well as the right to be free from retaliation
for exercising this right.” (citation omitted)).
Douglas also presented enough evidence in the district
court to create a dispute of material fact on the causal link be‐
No. 18‐2588 5
tween his protected activity and alleged deprivations. Doug‐
las averred that, on March 25, Reeves bluntly denied his re‐
quests to be made whole after his successful appeal. She told
Douglas, “just because your sanction was overturned doesn’t
mean [you’re] not guilty,” and then told him, “your job has
been filled; I’m not moving you to any other cell; [you’re] not
getting any back pay.” Reeves admitted in an interrogatory
response that she was “generally aware” of the charge that
Douglas had threatened a nurse by mid‐March, before the al‐
leged deprivations. Drawing reasonable inferences in Doug‐
las’s favor, a jury could conclude that Reeves still believed he
was guilty and desired to punish Douglas for exercising his
right to appeal.
But even if Reeves was harboring a grudge, none of the
deprivations Douglas identified in the district court would
likely deter First Amendment activity. “We apply an objective
test: whether the alleged conduct by the defendants would
likely deter a person of ordinary firmness from continuing to
engage in protected activity.” Surita v. Hyde, 665 F.3d 860, 878
(7th Cir. 2011). As Douglas correctly points out, the district
court relied in part on the irrelevant circumstance that Doug‐
las “continued to file additional grievances,” so “his First
Amendment activity was not, in fact, deterred.” Douglas v.
Reeves, No. 2:16‐cv‐00368‐JMS‐DLP, 2018 WL 3219399, at *4
(S.D. Ind. July 2, 2018). The standard is objective, so a specific
plaintiff’s persistence does not undermine his claim. Cf. Hol‐
leman v. Zatecky, 951 F.3d 873, 880 (7th Cir. 2020) (observing
that the standard “does not hinge on the personal experience
of the plaintiff”). In fact, a contrary rule would stymie every
First Amendment retaliation suit: Only plaintiffs who refuse
to be silenced make their way to federal court. See Van De
6 No. 18‐2588
Yacht v. City of Wausau, 661 F. Supp. 2d 1026, 1034 (W.D. Wis.
2009) (explaining this potential Catch‐22).
Despite this misstep, the district court ultimately held cor‐
rectly that “no reasonable jury could find that any of Ms.
Reeves’ conduct would deter a person of ordinary firmness
from filing future grievances.” Douglas, 2018 WL 3219399, at
*4. On this basis, we affirm the grant of summary judgment.
Whether retaliatory conduct is sufficiently severe to deter is
generally a question of fact, but when the asserted injury is
truly minimal, we can resolve the issue as a matter of law. See
Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) (“It would triv‐
ialize the First Amendment to hold that harassment for exer‐
cising the right of free speech was always actionable no matter
how unlikely to deter a person of ordinary firmness from that
exercise … .”). Douglas did not provide evidence of any dep‐
rivation inflicted by Reeves that can clear this hurdle in the
prison context.
Douglas’s first complaint was that Reeves refused to re‐
turn him to the cell where he lived before being moved to seg‐
regation. His original cell was on the left wing of “P Unit”;
after his return, he was assigned to a cell on P Unit’s right
wing. Douglas has not identified any material difference be‐
tween these cells or wings. His complaints to prison officials
focused instead on the dignitary harm of being forced to move
even though he was innocent. His chagrin is understandable
but not enough to launch and sustain a First Amendment
claim. In Holleman, 951 F.3d 873, decided after briefing in
Douglas’s appeal, we explained that a transfer from one
prison to another, on its own, “[w]ithout some additional ag‐
gravating factor, such as relocation to a much more restrictive
or dangerous environment,” is not likely to deter protected
No. 18‐2588 7
activity. Id. at 882. The same logic applies to a move from one
cell to another, which can happen for many reasons outside
the control of the prisoner. In a supplemental authority letter,
Douglas concedes that his claim based on the cell transfer is
not viable after Holleman.
Douglas also complained that, having lost his prison job
as a wheelchair pusher, he was denied an adequate replace‐
ment position. Douglas expressed his desire to resume paid
work immediately on his return, asking “to be reclassed into
my old job or a higher paying position.” Reeves told him that
the wheelchair job had been filled in his absence. She then as‐
signed him to an “in‐dorm recreation box” job, starting on
April 20, that paid the same wage as the wheelchair job.
Douglas told the district court he would have preferred a
third position, in the prison laundry, which also paid the same
and became available in mid‐April. Douglas asserted that the
wheelchair and laundry jobs had intangible advantages over
the recreation job. Although he did not explain what any of
the jobs entailed, he claimed that the recreation job came with
“no factual responsibility,” that it was “remedial,” and that its
prior holder was “mentally impaired.” More generally, in an
April 21 grievance, Douglas complained that he was “over
qualified for all available possible, and current positions” in
light of his academic and vocational credentials.
As with the different cell assignments, Douglas has failed
to show any disparities among these three positions sufficient
to deter a prisoner of ordinary firmness. It is not enough that
Douglas felt slighted by the recreation placement. He needed
to point to a deprivation with some significant deterrent effect
in the prison context. We acknowledge that, for public em‐
ployees, even relatively minor personnel actions can chill First
8 No. 18‐2588
Amendment activity. See Hobgood v. Illinois Gaming Bd., 731
F.3d 635, 643 (7th Cir. 2013) (“The First Amendment requires
a deprivation ‘likely’ to deter free speech, a standard consid‐
ered more lenient than the Title VII counterpart of adverse ac‐
tion.”); see also Power v. Summers, 226 F.3d 815, 820–21 (7th
Cir. 2000) (same). But prison work assignments are not the
same as ordinary public employment. The Indiana Depart‐
ment of Correction policy on work assignments explains that
prison work is meant “to complement the security and oper‐
ation of a facility” as well as to “assist in the offender’s transi‐
tion to the community.” In other words, the purposes of these
programs remain penological, even if prisoners also draw
very modest wages.
For that reason, not every deprivation sufficient to deter a
public employee, whose career and livelihood are at stake,
would necessarily deter a prisoner on work assignment.
“Prisoners may be required to tolerate more than public em‐
ployees, who may be required to tolerate more than average
citizens, before an action taken against them is considered ad‐
verse.” Holleman, 951 F.3d at 880–81, quoting Thaddeus‐X v.
Blatter, 175 F.3d 378, 398 (6th Cir. 1999). Here, Douglas needed
to provide evidence of something more than subjective dis‐
content with his assigned job. A public employee might base
a First Amendment claim on “a transfer to a less desirable po‐
sition” even if the advantages of the original position were
largely intangible. Gustafson v. Jones, 117 F.3d 1015, 1021 (7th
Cir. 1997); see Spiegla v. Hull, 371 F.3d 928, 941 (7th Cir. 2004)
(holding “transfer to a more physically demanding and less
skilled post and an unfavorable change in schedule” could de‐
ter). But a prisoner needs to show a more concrete difference
between the positions, whether in pay, working conditions,
No. 18‐2588 9
or side benefits. Douglas has not explained what about the as‐
signment to the recreation job would chill protected activity.
Douglas did point to one instance where, he argues,
Reeves prevented him from obtaining an objectively better
job. On March 30, the supervisor of the prison sanitation pro‐
gram told Douglas that a recycling apprenticeship was avail‐
able there. The supervisor instructed Douglas to have Reeves
contact the supervisor so that Douglas could be “reclassed to
his program job status.” Reeves then refused to do so, stating,
“I’m not contacting nobody. I’m going to give you the job I
want you to have.” Douglas asserted that the recycling ap‐
prenticeship would have entitled him to a higher wage and a
six‐month credit toward his sentence. The denial of a prison
job that would impart such palpable benefits could certainly
deter First Amendment activity. See McElroy v. Lopac, 403 F.3d
855, 858 (7th Cir. 2005) (assuming that taking away a pris‐
oner’s job could amount to a constitutional deprivation);
DeWalt v. Carter, 224 F.3d 607, 618–19 (7th Cir. 2000) (holding
job removal stated retaliation claim), abrogated on other
grounds by Savory v. Cannon, 947 F.3d 409 (7th Cir. 2020) (en
banc).
But Douglas’s own account of these events shows that
Reeves did not deny him the recycling apprenticeship. Reeves
had authority over the assignment of only nine positions, all
located in the right wing of P Unit. They did not include the
recycling apprenticeship, which according to Douglas be‐
longed to the prison’s sanitation program. In fact, prison offi‐
cials explained Reeves’s limited authority in response to a
May 6 grievance: “You are not entitled to [a higher‐paid] po‐
sition. You may apply for a high paying position by contacting
the shop supervisor after you are eligible to re‐class to a new
10 No. 18‐2588
position.” (Emphasis added.) Thus, with respect to the recy‐
cling apprenticeship, Reeves’s statement that she would “give
you the job I want you to have” was, at worst, bluster. Under
§ 1983, “a public employee’s liability is premised on her own
knowledge and actions.” Aguilar v. Gaston‐Camara, 861 F.3d
626, 630 (7th Cir. 2017). Reeves—the only remaining defend‐
ant in this lawsuit—cannot be liable for denying Douglas a
benefit she had no power to confer.
Finally, Douglas asserted that Reeves denied his request
for backpay for the days he was unjustly furloughed. In his
prison grievances and before the district court, Douglas ar‐
gued that Reeves withheld money he was owed under the
prison’s policy on overturned sanctions. His initial com‐
plaints to prison officials sought wages from the date of his
suspension through the date he returned to the cell block. On
April 19, the prison credited his account with payments of
$2.03 and $9.45, which Reeves asserted were the requested
backpay. At summary judgment, Douglas disputed that as‐
sertion, suggesting that the payments came from some other
source. He also declared that Reeves told him on March 25
that he would not be getting any backpay.
On appeal, Douglas presents a different version of the al‐
leged backpay deprivation. No longer disputing that he re‐
ceived what he was owed, he reframes the deprivation as a
March 25 threat by Reeves to withhold his backpay. Appel‐
lant’s Br. at 23–24. Douglas is correct, as a general matter, that
not only actual harms but also threats of harm can deter First
Amendment activity. See Novoselsky v. Brown, 822 F.3d 342,
356 (7th Cir. 2016). And we do not minimize the coercive na‐
ture of threats to withhold even small sums from prisoners,
No. 18‐2588 11
who are usually paid very little.2 But Douglas simply did not
present a threat theory to the district court. His consistent
view was that Reeves denied him money he deserved. Even
though we construe his pro se filings generously, they did not
raise the deprivation he now describes on appeal. See Snyder
v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004) (“As a general prop‐
osition, pro se litigants are subject to the same waiver rules as
litigants represented by counsel.”); Provident Sav. Bank v. Po‐
povich, 71 F.3d 696, 699–700 (7th Cir. 1995) (same).
The judgment of the district court is AFFIRMED.
2 The record reflects that inmate‐workers in Douglas’s job tier make
15 cents an hour, with the best‐paid prisoners making 25 cents.