Derek Williams v. Rick Raemisch, et al

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6529044-1] [6529044] [13-1727]

Case: 13-1727 NONPRECEDENTIAL DISPOSITION
Document: 26
Filed: 11/06/2013
To be cited only in accordance with
Fed. R. App. P. 32.1

Pages: 6

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 25, 2013*
Decided November 6, 2013
Before
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No.13-1727
DEREK WILLIAMS,
Plaintiff–Appellant,

Appeal from the United States District
Court for the Western District of
Wisconsin.

v.
No. 11-cv-411-slc
RICK RAEMISCH, et al.,
Defendants–Appellees.

Stephen L. Crocker,
Magistrate Judge.
ORDER

Derek Williams, an inmate at the Green Bay Correctional Institution, sued the
prison’s warden and several members of its security staff, as well as the secretary of the
Department of Corrections, under 42 U.S.C. § 1983, for First and Eighth Amendment
violations. He contends on appeal that some of the defendants retaliated against him for

*

After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and record.
See FED. R. APP. P. 34(a)(2).

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an earlier suit by issuing trumped-up conduct reports that landed him in administrative
segregation. He also maintains that other defendants were deliberately indifferent to the
cold temperatures in his cell during segregation. A magistrate judge, presiding by
consent, see 28 U.S.C. § 636(c), entered summary judgment for the defendants. Although
Williams presented evidence of a retaliatory motive, he did not rebut the defendants’
evidence that they issued valid conduct reports independent of any retaliatory animus.
He also lacked sufficient evidence that the named defendants were deliberately
indifferent to the cold temperatures in his cell. Therefore, we affirm the judgment.
Williams asserts that William Swiekatowski and Robin Lindmeier, members of
the prison’s security staff, issued two conduct reports in 2010 as retaliation for
Williams’s then-ongoing prison-rights lawsuit against other officials. The first conduct
report concerned an envelope that was returned to the prison as undeliverable. An
unnamed mailroom worker received the envelope and forwarded it to Swiekatowski.
The envelope bore Williams’s return address and, according to Swiekatowski,
contained two documents, one of which was a letter Williams had signed. The other
document, unsigned, set forth a plan to create online accounts to sell clothing and split
the proceeds with another person. Two weeks after receiving the mailing, Swiekatowski
issued a conduct report to Williams for violating Wisconsin Administrative Code DOC
§ 303.32, which bars prison inmates from engaging in a business or enterprise. At the
disciplinary hearing, Williams admitted writing, signing, and mailing the letter but
denied writing and including the unsigned document that laid out the business plan.
The hearing officer found Williams guilty and sentenced him to 90 days of
administrative segregation. Williams unsuccessfully challenged the decision by
appealing and filing a grievance.
About two months later, Lindmeier issued the second conduct report, accusing
Williams of participating in a conspiracy to possess drugs. See WIS. ADMIN. CODE DOC
§§ 303.43, 303.05. A confidential informant had told Lindmeier that Williams was
offering to sell him drugs, that the drugs were being smuggled into the prison by
Williams’s fiancée during visits, and that another prisoner was holding the drugs in his
cell and dealing them to inmates. This information was corroborated by a second
confidential informant. Other evidence of the drug-smuggling operation included
letters and recordings of phone conversations between Williams’s fiancée and prisoners
discussing unspecified payments, “orders,” and a transaction with a prisoner that was
“on hold.” Based on this evidence, a hearing officer found Williams guilty and
sentenced him to 360 days of administrative segregation. Because of security concerns,

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Williams was not allowed to view the informants’ two statements at the hearing, but he
did receive summaries of the statements.
In the district court, Williams pursued his claims that Swiekatowski and
Lindmeier were motivated to retaliate against him for his earlier suit. His evidence of
their retaliatatory motive comes from two statements. First, a few months after Williams
filed his earlier suit (and weeks before the two conduct reports were issued), Williams
was in temporary lockup on suspicion of drug trafficking. Williams says that when he
asked Swiekatowski why he was in lockup, the officer replied, “[w]hen you challenge
the administration, bad things happen.” Second, another prisoner swears in a
declaration that Lindmeier told him that Williams’s earlier lawsuit was “a big mistake.”
Swiekatowski and Lindmeier deny making these statements, and they are arguably
ambiguous, but in reviewing the grant of summary judgment, we construe all facts and
inferences in Williams’s favor. Gruenberg v. Gempeler, 697 F.3d 573, 578 (7th Cir. 2012).
We therefore assume that these statements imply that both Swiekatowski and
Lindmeier were resentful because of Williams’s earlier suit.
Williams also contended to the district court that Swiekatowski and Lindmeier
acted on their resentment by trumping up the two conduct reports. First, he suggested
that Swiekatwoski planted the business-plan document in Williams’s returned
envelope. To support this assertion, Williams cited the affidavit of a fellow prisoner,
with whom Williams admits that he discussed the plan to sell clothing online. The
prisoner swore that he, not Williams, created the document later found in the mailing.
And Williams stated that he (Williams) did not insert the document in the envelope.
Therefore, Williams concluded, Swiekatowski must have planted it. Second, Williams
argued that Lindmeier acted on her retaliatory motive by falsely stating in her conduct
report that two confidential informants had implicated Williams in the illegal trade. In
discovery, Williams sought in-camera production of the statements of the confidential
informants. The defendants did not produce them, explaining that after the disciplinary
proceeding ended, prison administrative personnel misplaced the two statements and
could no longer find them. The defendants also produced a statement from the hearing
officer of the disciplinary hearing. That officer recalls seeing and reading the two
informants’ statements, their signatures, and their notary seals.
Williams also pursued his prison-conditions claim. He contended that, during
the winter months that he spent in segregation, the temperatures in his cell were
freezing. Williams filed a grievance about the cold temperatures, but the grievance was
denied after a reading was taken and the temperature on his wing was found to be 74

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degrees Fahrenheit. The warden affirmed the denial of Williams’s grievance. Williams
also sent two letters complaining about the cold—one to the warden and one to the
secretary of the Department of Corrections—but received no response. He maintains
that the warden, the secretary, and three staff members of the prison violated the Eighth
Amendment by failing to remedy the temperature problems in his cell.
The defendants moved for summary judgment, which the district court granted.
On the two First Amendment claims for retaliation, the court concluded that
Swiekatowski’s and Lindmeier’s comments supported an inference of a retaliatory
motive. See Gomez v. Randle, 680 F.3d 859, 866–67 (7th Cir. 2012); Greene v. Doruff, 660
F.3d 975, 980 (7th Cir. 2011); Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010). But the
court found that Williams offered no evidence to rebut the defendants’ showing that the
conduct reports were legitimate and would have been issued even without a retaliatory
motive. See Zellner v. Herrick, 693, F.3d 371, 379 (7th Cir. 2011). On the cell-temperature
claim, the court ruled that Williams offered no evidence that the three staff members
knew about the cold temperatures; and the warden was not liable because he knew that
Williams’s grievance had been investigated and found to be baseless. Finally, the
secretary of the Department of Corrections was not responsible for the temperatures in
Williams’s cell and therefore was not liable for deliberate indifference to a known risk to
Williams’s health or safety.
On appeal, Williams argues that he produced evidence from which a rational
jury could infer that Swiekatowski and Lindmeier fabricated the two conduct reports to
retaliate against him. We turn first to his claim about Swiekatowski’s report. Williams
argues that this report is retaliatory because Swiekatowski was annoyed with Williams
for his earlier suit and therefore he planted the business plan. A rational jury could find
that Swiekatowski planted the plan, Williams explains, because Williams himself did
not insert it in his envelope, the conduct report does not provide (and Swiekatowski
cannot recall) the name of the mail room worker who forwarded the envelope, and a
fellow prisoner wrote the plan.
Although this evidence could persuade a rational jury that the earlier suit
irritated Swiekatowski and that Williams did not insert the plan into his envelope, a
jury would have no basis to find that Swiekatowski inserted it. Williams has no
evidence that, like both Williams and the plan’s author, Swiekatowski knew—before
reading the mailing—that this business plan even existed, where it was located, or how
to obtain it. Without any direct evidence that Swiekatowski planted the document or
how he might have done so, a jury would be left to speculate about it, and “speculation

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may not be used to manufacture a genuine issue of fact.” Springer v. Durflinger, 518 F.3d
479, 484 (7th Cir. 2008); see also Heft v. Moore, 351 F.3d 278, 283 (7th Cir. 2003) (observing
that, to survive summary judgment, a plaintiff must show both why and how law
enforcement could have planted adverse evidence). Accordingly, summary judgment
on this claim was proper.
This brings us to the retaliation claim about Lindmeier’s conduct report.
Williams contends that, because of her retaliatory animus, Lindmeier falsely stated in
the conduct report that two confidential informants had given statements implicating
Williams in drug trafficking. But there is no evidence from which a rational jury could
draw the conclusion that the statements never existed. The officer who presided over
the disciplinary hearing attests that he received, saw, and read the two informants’
statements, and Williams offers no direct evidence to contradict the officer’s attestation.
Williams’s only response is that, because prison personnel have misplaced the
confidential informants’ statements, he is entitled to an inference that the statements
never existed. But whatever adverse inference can be drawn from the loss of the
statements, Williams offers no legitimate reason to draw it against Lindmeier or
Swiekatowski because he furnishes no evidence that either of them played any role in
the misplacement of the documents. Williams’s bare suspicion that the statements never
existed is insufficient to create a genuine issue of material fact, see Springer, 518 F.3d at
484–85, and therefore summary judgment was proper.
Finally, we turn to Williams’s Eighth Amendment conditions-of-confinement
claim. He contends that the warden, the secretary of the Department of Corrections, and
three members of the prison staff were deliberately indifferent to the freezing
temperatures in his cell. The district court correctly granted summary judgment on this
claim. First, Williams offers no evidence that the three staff members Williams sued
knew about the temperatures in his cell, so these defendants cannot be liable. See
Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001). Williams’s grievance was
investigated by a different staff member, who concluded that the grievance was
unfounded because the temperature in Williams’s wing was 74 degrees Fahrenheit and
there was no problem with the heating system. Second, the claim against the warden is
also deficient. Although Williams wrote the warden complaining about the temperature
in his cell, this letter is not enough to demonstrate deliberate indifference. The warden
knew that Williams’s grievance had been investigated and found to be without merit, so
he was entitled to rely on that determination. See Vance v. Rumsfeld, 701 F.3d 193, 204
(7th Cir. 2012) (en banc); Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 678–79 (7th
Cir. 2012). Finally, the claim against the secretary of the Department of Corrections,

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based on a letter that Williams sent to the secretary, also fails. The secretary did not
supervise the day-to-day operations of the prison, so his receipt of Williams’s letter is
insufficient to establish liability for deliberate indifference. See Burks v. Raemisch, 555
F.3d 592, 595–96 (7th Cir. 2009).
AFFIRMED.