Frankie Walker, Sr. v. James Clayton, et al

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Kenneth F. Ripple, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Amy C. Barrett, Circuit Judge. [6913119-1] [6913119] [16-2898]

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NONPRECEDENTIAL DISPOSITION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 March 23, 2018 *
Decided March 26, 2018
Before
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 16-2898
FRANKIE N. WALKER, SR.,
Plaintiff-Appellant,
v.
JAMES C. CLAYTON, et al.,
Defendants-Appellees.

Appeal from the United States District
Court for the Central District of Illinois.
No. 13-CV-3358
Colin S. Bruce,
Judge.
ORDER

Frankie Walker is a civil detainee at Rushville Treatment and Detention Facility.
Rushville officials restricted his access to the general population for nine days while the
police investigated whether he had tampered with a witness. In this civil-rights suit
Walker asserts that, in restricting him, Rushville retaliated against him for his past
litigation and denied him liberty without due process. He also contends that two staff

We have agreed to decide this 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).
*

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members later ordered a search of his room in retaliation for litigation. The district court
entered summary judgment in favor of the defendants, and we affirm. Rushville’s belief
that Walker had tampered with a witness was sincere and justified the brief assignment
to restricted status to facilitate an investigation; the assignment was not punitive, so it
did not deny Walker liberty; and no evidence supports the assertion that the search of
Walker’s room was retaliatory. Walker also challenges some procedural rulings, but
those arguments are baseless.
This case begins with a document that Walker wrote for Troy Curtner, a fellow
resident. Curtner had been attacked by a Rushville detainee and was scheduled to
testify against that detainee in a criminal prosecution. While helping Curtner prepare a
related civil suit against Rushville, Walker also drafted a document that Curtner signed
stating that he would no longer testify or otherwise participate in prosecuting his
attacker. The document was intercepted in October 2011 by Chris Clayton, a Rushville
investigator, who suspected that Curtner did not compose it himself.
Clayton reports that he interviewed Curtner who told him the following: Walker
wrote the document; Walker “advised” Curtner “that it was in his best interest not to
testify against the other resident”; and Walker, along with several other residents,
“advised” Curtner to sign the document. Based on this interview Clayton believed that
Walker and the other residents had tampered with Curtner. He called the Illinois State
Police to investigate possible witness tampering. Curtner later told the district court that
Walker did not intimidate or tamper with him, but he did not dispute Clayton’s
description of the interview.
During the police investigation, Rushville briefly placed Walker and the other
residents in a unit with restricted access to the general population. The transfer
facilitated the investigation into the residents’ possible misconduct by isolating them
until the police interviewed them. See ILL. ADMIN. CODE tit. 59 § 299.650(a)(3).
A committee of Rushville administrators met to discuss the assignment. Walker did not
attend their meeting, and to protect the integrity of the investigation the committee did
not tell him why he was placed in restrictive status. Walker remained there until the
police investigation ended nine days later. During those nine days, a police investigator
read the document and interviewed Curtner. He determined that Curtner had not been
tampered with and, after consulting the State’s Attorney, told Clayton that the police
would not pursue charges against Walker. The next day, Rushville told Walker about
the investigation, that it was over, and that he was released from restricted status.
Suspecting that no investigation had ever occurred, Walker asked the police (using

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Illinois’s Freedom of Information Act) for documents about the “criminal investigation
of Frankie N. Walker.” No “Walker” documents turned up; the investigation’s
documents were filed under “Curtner,” and they were eventually produced.
The next relevant event occurred two years later. Walker was in his unit’s
common area in August 2013 preparing this suit against Clayton for placing him on
restrictive status. Clayton, Ryan Kerr (a security aide), and two other aides arrived to
search a neighboring room. Clayton saw Walker’s civil complaint, glanced inside
Walker’s room, and briefly blocked Walker’s entry to it, prompting Walker to believe
that Clayton was harassing him. When the search of the neighboring room ended,
Clayton, Kerr, and the aides left. Two other aides arrived ten minutes later and
searched Walker’s room. As the search began, Kerr returned. Walker asked the reason
for the search, and Kerr said that it was random, which Walker replied he doubted.
Walker has sued under 42 U.S.C. § 1983, claiming that Clayton and other staff
unlawfully placed him on restricted status and that Clayton and Kerr unlawfully
ordered the search of his room. They did so, he contends, to retaliate against him for
assisting with and filing lawsuits, in violation of the First Amendment and due process.
Walker also added a civil-conspiracy claim and a supplemental state-law claim for
intentional infliction of emotional distress. The district court eventually entered
summary judgment in favor of all defendants, reasoning that they had behaved
lawfully.
We begin with Walker’s principal claim: that Clayton and Rushville officials put
him on restricted status in retaliation for his First Amendment activity of litigating. To
survive summary judgment, Walker must produce sufficient evidence to persuade a
rational factfinder that the defendants’ explanation for his changed status—the witnesstampering investigation—is pretextual and that the true reason was retaliatory.
See Massey v. Johnson, 457 F.3d 711, 717 (7th Cir. 2006). The undisputed evidence is that,
based on Clayton’s interview, the defendants genuinely believed that Walker had
tampered with Curtner and that they needed to isolate him briefly to facilitate a police
investigation of the matter. A sincere belief in a legitimate reason for adverse action (in
this case, restricted status to facilitate the investigation) defeats a claim of retaliation.
See Burks v. Wisc. Dep’t of Transp., 464 F.3d 744, 754 (7th Cir. 2006); Jordan v. Summers,
205 F.3d 337, 343 (7th Cir. 2000).
Walker replies with two arguments that are unpersuasive. First he contends that,
because the police investigator later determined that Clayton’s belief about tampering
was unfounded, the belief was not genuine. But an unfounded belief is not the same as

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an insincere one. See Jordan, 205 F.3d at 344 (“Pretext is a lie, not merely a mistake.”);
see also Massey, 457 F.3d at 719 (plaintiff’s after-the-fact explanation did not undermine
sincerity of defendant’s previous belief). Walker is left with only speculation that
Clayton did not believe that Walker had tampered with Curtner. (He also speculates
that the absence of police reports under “Walker” means that the later-produced reports
under “Curtner” are fabricated.) But speculation is not evidence. See Devbrow v. Gallegos,
735 F.3d 584, 588 (7th Cir. 2013) (speculation cannot overcome contrary evidence of
defendant’s benign motive); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008)
(speculating witnesses are lying does not create genuine issue of material fact). Finally
Walker observes that Rushville never conducted an internal investigation, but this is not
evidence of insincerity because Clayton had turned the matter over to the police.
We next address the due-process claim. The district court was correct that no
reasonable jury could conclude that Walker’s transfer to restricted status violated due
process. No deprivation of liberty occurs when a restriction is imposed for managerial,
nonpunitive reasons. See Bell v. Wolfish, 441 U.S. 520, 535–39 (1979); Higgs v. Carver,
286 F.3d 437, 438 (7th Cir. 2002). Walker’s changed status was not punitive. He was
briefly separated from the general population to facilitate a police investigation.
We turn now to Walker’s claims that Clayton and Kerr retaliated against him for
his litigation activities by ordering his room searched in August 2013. Walker has
supplied no evidence that Kerr even knew that Walker was preparing this or any other
lawsuit. Without that knowledge, the timing of the search is not sufficient for a
factfinder to infer that Walker’s litigation motivated Kerr to initiate a search. Cf. Pugh v.
City of Attica, 259 F.3d 619, 630 (7th Cir. 2001) (deciding that timing, without evidence
discharge was retaliatory, was insufficient to establish protected activity as motivating
factor). And there is no evidence that Kerr ordered the search. Nor is there sufficient
evidence to present to a jury the claim against Clayton. True, Clayton may have known
about Walker’s civil complaint against him. But Clayton was not present for the search,
and Walker has offered no evidence that he ordered, instigated, or even knew about it
in advance. Without evidence of his involvement, a factfinder could not reasonably
conclude that Clayton is culpably responsible for the search. Cf. Massey, 457 F.3d at 717
(observing that it is plaintiff’s burden to persuade factfinder that defendant’s proffered
reason is pretextual and true reason is retaliatory).
The district court correctly entered judgment on the remaining claims. In the
absence of any constitutional violations, Walker cannot prove a conspiracy to commit
such a violation. See Hurt v. Wise, 880 F.3d 831, 842 (7th Cir. 2018); Sow v. Fortville Police

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Dep’t, 636 F.3d 293, 305 (7th Cir. 2011). Nor has Walker presented a triable case that the
defendants intentionally inflicted emotional distress. No reasonable jury could find
from this record that restricted status for nine days pending a police investigation or a
search of Walker’s room was “[e]xtreme and outrageous conduct” going “beyond all
bounds of decency.” Lopez v. City of Chicago, 464 F.3d 711, 720 (7th Cir. 2006).
We conclude by addressing Walker’s procedural challenges. First, he argues that
the district court should have disqualified the Illinois Attorney General from acting as
defense counsel because the Attorney General’s office also administers Walker’s
detention. But the dual capacities present no ethical conflict, and the Attorney General
is authorized to represent state employees in civil proceedings arising out of their
employment, 5 ILCS 350/2(a). So it was not an abuse of discretion for the district court
to deny Walker’s motion. Walker next argues that the district court should have
sanctioned the defendants for responding late to some interrogatories. The defendants
explained that they accidentally had overlooked the requests when their case was
assigned to a new attorney. The district court could permissibly accept that explanation,
given that the interrogatories eventually were answered at no prejudice to Walker.
Cooney v. Casady, 735 F.3d 514, 518 (7th Cir. 2013). Finally, Walker appeals the district
court’s refusal to compel responses to interrogatories that the court ruled were
argumentative, already answered, or irrelevant. Walker’s perfunctory argument that
this ruling was wrong is insufficient to establish any abuse of discretion or prejudice.
See Patterson v. Avery Dennison Corp., 281 F.3d 676, 679 (7th Cir. 2002).
Accordingly, the district court judgment is AFFIRMED.