Walter Pegues v. Gregg Scott, et al
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Frank H. Easterbrook, Circuit Judge; Ann Claire Williams, Circuit Judge and David F. Hamilton, Circuit Judge. [6811272-1]  [16-1396]
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 January 11, 2017*
Decided January 12, 2017
FRANK H. EASTERBROOK, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
GREGG SCOTT, et al.,
Appeal from the United States District
Court for the Central District of Illinois
Sue E. Myerscough,
O R D E R
Walter Pegues, a civil detainee at Rushville Treatment and Detention Facility,
appeals the grant of summary judgment in his suit under 42 U.S.C. § 1983, asserting that
the facility’s procedure for storing and distributing shaving razors violated his
constitutional rights. He argues, first, that facility officials were aware of but
consciously disregarded the risk that he would be infected from a razor contaminated
by another detainee with a blood‐borne disease and, second, that officials retaliated
against him for filing grievances, in violation of his First Amendment rights. We affirm.
* We have unanimously 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. Rule 34(a)(2)(C).
Rushville residents receive a new disposable razor, and dispose of used razors,
each week on Sunday. During the week, residents’ razors are stored separately in small
plastic drawers of the housing unit’s control center, where each razor and drawer is
individually labeled with the resident’s name. When taking out a razor for use, a
resident exchanges his ID badge for the razor, and then gets his ID returned when he
brings the razor back to the control center.
Pegues testified in his deposition that sometime in 2013, Shan Orrill, a Security
Therapy Aide (a facility employee who maintains the safety and security of the facility,
residents and other staff), handed him a razor belonging to another resident—a resident
who Pegues believes was HIV positive. Pegues realized it was the wrong razor and told
Orrill, who took back the razor and handed Pegues the correct one. According to
Pegues, Orrill then remarked, “You know what, you should be like some of these other
individuals around here, get you a case of MRSA,”1 drawing laughter from two other
Rushville employees, Investigator Clayton and STA Kerr. Orill, Clayton, and Kerr
testified that they did not recall Pegues ever receiving the wrong razor, and denied
joking in such a manner.
Pegues also testified that on several prior occasions he had been handed the
wrong razor. Rushville, however, had record of only a single incident in which he filed
a razor‐related grievance—the grievance he filed in May 2013 challenging the safety of
Rushville’s procedure for storing and handling razors. Any time he was given a razor
labeled with someone else’s name, Pegues added, he did not use it.
In response to Pegues’s 2013 grievance as well as concerns raised by other
residents about the facility’s razor procedures, Rushville’s Program Director Greg Scott
asked the facility’s nursing director, Danielle Walker, to investigate whether Rushville’s
procedures for storing and distributing razors raised any medical concerns. Walker
undertook an investigation and concluded that the procedure appropriately limited the
likelihood that a resident could receive the wrong razor, or that fluids or bacteria could
be transmitted between razors. She testified that she was not aware of any resident ever
contracting a disease from the improper storage and distribution of razors.
Pegues also asserted that Rushville staff retaliated against him for filing his
grievance. He asserted that in April 2015, Orrill wrote a false incident report accusing
him of behaving in a threatening manner. The behavior committee found him not guilty
1 MRSA (Methicillin‐resistant Staphylococcus aureus) is a strain of staph
of this charge, but it did find him guilty of insolence, a minor rule violation. Pegues also
asserted that Orrill, Kerr, and Clayton harassed him by speaking to him in a manner
that made him feel threatened.
Eleven days before the close of discovery, Pegues moved to file supplemental
pleadings, see FED. R. CIV. P. 15(d), detailing additional alleged retaliation by Scott,
Orrill, and Clayton. A magistrate judge denied the motion, agreeing with the
defendants that the request was unduly prejudicial since it was so close to the discovery
The district court eventually granted summary judgment to the defendants. The
court concluded that Pegues failed to create a reasonable inference that Rushville’s
procedure for storing and distributing razors exposed him to a substantial risk of
serious harm, or that any defendant was deliberately indifferent to any such risk.
Pegues’s fears, the court explained, were based merely on speculation and conjecture
and were not admissible evidence. Moreover, Pegues could not point to any evidence
that any resident had contracted an illness from a razor. As for his retaliation claim,
which the district court characterized as “conclusory and undeveloped,” the court
determined that Pegues provided no evidence that Orrill retaliated against him by
making inappropriate remarks about the razor or fabricating the April 2015 incident
report. The court concluded further that the retaliatory acts Pegues complained of were
not adverse enough to deter a person of ordinary firmness from speaking out, and
therefore did not support a retaliation claim.
On appeal Pegues challenges the court’s conclusion that Rushville’s
razor‐distribution policy does not pose a serious risk of harm to residents. He points to
the website of the Center for Disease Control and Prevention, which states that
Hepatitis C can be “infrequently” transmitted through the sharing of razors. Pegues
also asserts that he should not have to contract a disease before he brings a claim of
Pegues of course need not contract an illness before he can seek relief, but he
does have to prove that the current policy poses a substantial risk of harm to his health
that the defendants consciously disregarded. Rosario v. Brawn, 670 F.3d 816, 821 (7th Cir.
2012). As the district court concluded, Pegues cannot meet that standard because the
defendants responded reasonably to Pegues’ concerns about the razor policy: they had
the nursing director conduct an investigation into the policy’s safety, and that
investigation concluded that Rushville’s procedure for storing and labeling razors
removed any substantial risk of harm.
Pegues also raises two challenges to the district court’s ruling on his retaliation
claim. First he asserts that the court overlooked certain evidence, which he understands
to include acts of retaliation that he alleged in his response to the Defendants’ Motion
for Summary Judgment. But the court denied his earlier motion to file supplemental
pleadings and therefore declined to consider those additional acts of retaliation. And he
cannot point to anything in the record to suggest that the court abused its discretion by
denying his motion, Chicago Regʹl Council of Carpenters v. Vill. of Schaumburg, 644 F.3d
353, 356 (7th Cir. 2011).
Second, Pegues relies on a case of this court’s that postdates the district court’s
order, Hughes v. Scott, which concludes that a Rushville detainee who “must be suffering
from some mental disorder” to be committed there, would not necessarily be
considered a person of “ordinary firmness”. 816 F.3d 955, 956–57 (7th Cir. 2016).
Because he too is a Rushville detainee, he argues that he is more vulnerable to
retaliatory acts than a person of ordinary firmness and that the district court erred by
analyzing his claim under the conventional First Amendment retaliation standard.
But even if we assume that Pegues should not be considered a person of ordinary
firmness for purposes of a retaliation analysis, he has not provided enough evidence to
support his retaliation claim. Pegues has not provided evidence to convince a
reasonable juror that defendants acted with a retaliatory motive. He testified at his
deposition, for instance, that he didn’t know why Orrill issued the April 2015 incident
report. In addition, the disciplinary board found him guilty of part of the charge,
demonstrating that some legitimate reason existed to support the disciplinary ticket. See
Mays v. Springborn, 719 F.3d 631, 634 (7th Cir. 2013) (defendants in a retaliation claim
can prevail if they show it was “more likely than not” that the events would have taken
place even if there had been no retaliatory motive). Finally, Orrill did not file his
incident report until nine months after Pegues initiated this suit, and nine months is not
suspicious enough “in and of itself to create a triable issue” on the question of
causation. Kidwell v. Eisenhauer, 679 F.3d 957, 966–67 (7th Cir. 2012) (two‐month interval
between protected speech and alleged retaliatory act too removed in time to infer
We also have considered Pegues’s remaining arguments, and none has merit.
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