Mark Davenport v. J. Szczepanski
Filed Nonprecedential Disposition PER CURIAM. Davenport must now pay the full filing fee, and for all future cases, he has "struck out" under 28 U.S.C. 1915(g). AFFIRMED. Michael S. Kanne, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6888557-1]  [17-1807]
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 December 6, 2017*
Decided December 6, 2017
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
Appeal from the United States District
Court for the Southern District of Illinois.
Nancy J. Rosenstengel,
O R D E R
Mark Davenport, an Illinois inmate, contends that a staff member at
Pinckneyville Correctional Center refused to give him an extra pair of gym shoes. In
this suit under 42 U.S.C. § 1983, Davenport alleges that this denial violated the First and
Eighth Amendments. The district court dismissed Davenport’s complaint at screening,
see 28 U.S.C. § 1915A. Based on Davenport’s allegations, the staff member did not refuse
* The appellees were not served with process in the district court and have not
participated in this appeal. 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).
to provide the shoes in retaliation for protected speech or in disregard of a known risk
of serious injury. Therefore we affirm.
Because the lawsuit was dismissed at screening, we accept Davenport’s factual
allegations as true for the purposes of this appeal. See Turley v. Rednour, 729 F.3d 645,
649 (7th Cir. 2013). Davenport went to Pinckneyville’s clothing room in May 2014 to
make his biannual clothing exchange. J. Szczepanski, the corrections officer who
supervised the clothing room, refused to give Davenport a free pair of new gym shoes.
(Szczepanski’s first name is not in the record.) Davenport showed Szczepanski letters
from the Illinois Department of Corrections, which Davenport believes say that Illinois
prisons may never charge residents for replacement shoes. Relying on the letters,
Davenport threatened Szczepanski with a grievance. Szczepanski replied that she did
not care about the letters and ordered him to leave.
Davenport attached to his complaint his letters from the Department of
Corrections, the two most pertinent of which we now describe. The first is the prison’s
response to Davenport’s grievance from June 2013 about the cost of a pair of gym shoes.
The letter authorized the prison to reimburse Davenport for that pair, explaining that
“the policy of charging offenders for state‐issued gym shoes has been discontinued.”
The second is the prison’s response to the grievance that he filed after Szczepanski
refused to give him the free pair of shoes that Davenport demanded in May 2014. The
prison explained that it had issued Davenport gym shoes in February 2014, that it issues
to inmates a new, free pair every six months, and that if Davenport wanted a new pair
before August, he would have to pay $4.53.
The district court evaluated Davenport’s complaint at screening. In the
complaint, he contends that by refusing to give him new shoes Szczepanski violated
two constitutional provisions. She violated the First Amendment right to petition,
Davenport argues, because she refused to provide the free shoes after Davenport
threatened to file a grievance. And she violated the Eighth Amendment, Davenport
continues, because without the shoes Davenport suffered cruel and unusual
punishment. (Davenport alleges that for the next three months his shoes became
waterlogged in the rain, they had holes that produced painful contact with rocks and
other debris entering the shoes, and the shoes aggravated a jaw condition.) The district
judge ruled that Szczepanski violated neither provision because Szczepanski did not
deny Davenport shoes for threating to file a grievance, and Davenport did not suffer an
objectively serious deprivation. The judge then dismissed the suit with prejudice.
On appeal Davenport argues that the district court should not have dismissed his
suit and should have given him a chance to amend his complaint. We review each of his
Three fatal flaws doom Davenport’s contention that Szczepanski violated the
First Amendment. The First Amendment protects Davenport if he was engaged in
protected activity, the activity motivated the alleged adverse action (no free shoes), and
the adverse action would likely deter future protected activity. Archer v. Chisholm, 870
F.3d 603, 618 (7th Cir. 2017). Although “[a] prisoner has a First Amendment right to
make grievances about conditions of confinement,” Watkins v. Kasper, 599 F.3d 791, 798
(7th Cir. 2010), merely threatening to file a grievance against someone is not protected
activity. Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir. 2009). And even if Davenport’s
threatened grievance was protected activity, the threat did not motivate Szczepanski’s
refusal to give him the free shoes. Davenport alleges that Szczepanski had already
denied the shoe request before Davenport made this threat. Finally, the denial of the
shoes would not likely deter future grievances; to the contrary, Davenport alleges that
he responded to the denial by filing more grievances against Szczepanski in 2014.
Davenport replies that he told the district judge that he wanted to amend the
complaint to clarify that Szczepanski retaliated against him for filing a grievance in 2013
about having to pay for shoes. But for two reasons this allegation does not cure the
defects in his complaint, so the judge was not required to grant him leave to amend.
See Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013); Christopher v. Buss, 384 F.3d 879,
881 (7th Cir. 2004.) First, as the judge correctly observed, Davenport did not allege that
Szczepanski knew about this earlier grievance. And on appeal Davenport still makes no
such allegation. If Szczepanski did not know of the earlier grievance, that grievance
could not have motivated her to refuse to give the free shoes. Second, Davenport alleges
that Szczepanski has a “policy” of denying inmates extra free shoes. It is thus this
supposed policy, not Davenport’s grievance, that allegedly motivated the denial.
Davenport’s First Amendment contention therefore fails.
That brings us to Davenport’s contention that Szczepanski violated the Eighth
Amendment by denying Davenport an extra pair of free shoes. An Eighth Amendment
claim based on prison conditions requires that the conditions “deprive inmates of the
minimal civilized measure of life’s necessities,” Rhodes v. Chapman, 452 U.S. 337, 347
(1981), and that the defendant knows about but ignores those conditions, Isby v. Brown,
856 F.3d 508, 521 (7th Cir. 2017). It appears that the prison supplies complimentary
shoes to inmates twice a year; an inmate who believes that he needs shoes more
frequently must pay about $5 for them. Even if we generously assume for the sake of
argument that, in light of the worn condition of his gym shoes, Davenport needed a
third, free pair of shoes to receive the minimum of life’s necessities, this claim still fails.
Davenport does not contend that Szczepanski knew that without a third, free pair, the
holes in Davenport’s current shoes and their tendency to become waterlogged in the
rain, would cause Davenport’s feet and jaw severe pain. Without knowledge of a
significant risk of severe injury from a prison condition, Szczepanski cannot be held
liable for that condition. Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015).
One final note: the district court recognized that its dismissal resulted in
Davenport’s third “strike.” Therefore it was wrong for the judge to grant Davenport
leave to appeal without prepayment of the appellate filing fee. See 28 U.S.C. § 1915(g);
Robinson v. Powell, 297 F.3d 540, 541 (7th Cir. 2002). But we need not postpone resolving
this appeal and demand that Davenport first prepay that fee. For even though the
district court should have denied leave to appeal, we will assume that Davenport
would have asked us for leave to appeal from his third strike. Robinson, 297 F.3d at 541.
And because we are not treating this appeal as frivolous (though it is meritless), we
could have granted him leave to appeal without prepaying fees. Id. Davenport,
however, must now pay the full filing fee, and for all future cases he has “struck out”
under 28 U.S.C. § 1915(g).
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