West v. Kingsland

Filing 45

ORDER signed by Judge J P Stadtmueller on 11/17/15 granting 24 Defendant's Motion for Summary Judgment and DISMISSING this case. (cc: Plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RUFUS WEST,
Plaintiff,

Case No. 14-CV-1146-JPS

v.
SGT. DUSTIN KINGSLAND,

ORDER

Defendant.
In this action, filed under 42 U.S.C. § 1983, Plaintiff Rufus West
(“West”), a/k/a “the Muslim,” a state prisoner, claims the defendant, Sgt.
Dustin Kingsland (“Kingsland”) violated his First and Fourteenth
Amendment rights. Presently before the Court is Kingsland’s motion for
summary judgment (Docket #24). The matter is now full briefed (Docket #25,
#36, #40) and ready for disposition. For the reasons detailed herein, the Court
will grant the motion for summary judgment and this action will be
dismissed in its entirety.
1.

FACTUAL BACKGROUND1
In short, West alleges that Kingsland discriminated against him

because he is a Muslim fasting for Ramadan and that Kingsland later
retaliated against West for filing complaints. Although the parties dispute
many of the specific facts, the Court finds that none are material to preclude
summary judgment. When disputed, the Court views all facts in the light
most favorable to West as the non-moving party.

1

The facts are taken from Kingsland’s proposed finding of fact (“DPFF”) or
West’s proposed finding of fact (“PPFF”) unless otherwise noted. (Docket #41, #42).

1.1

The Parties

West was housed at Columbia Correctional Institution (“CCI”)
between July 3, 2007, and April 10, 2014. (DPFF ¶ 1). West was housed on
unit 9 at CCI between February 14, 2013, and August 23, 2013. (DPFF ¶ 2).
Kingsland is employed by the Wisconsin Department of Corrections
(“DOC”) as a Correctional Sergeant at CCI. He has held that position since
July 15, 2012, and has been employed by the DOC since October 17, 2005.
(DPFF ¶ 3). At all times relevant, Kingsland was assigned to unit 9 at CCI
where West was housed. He generally worked first shift between 6:00 a.m.
and 2:00 p.m. (DPFF ¶ 4).
1.2

Ramadan 2013

DOC allows inmates who have chosen Islam as their religious
preference to participate in the traditional Ramadan fast, which is an annual
Islamic religious observance period wherein adherents practice fasting for
approximately one month. (DPFF ¶ 9). Ramadan in 2013, as recognized by
DOC, started at dawn on Tuesday, July 9, 2013, and continued for 30 days
until sunset on Wednesday, August 7, 2013. Observing Muslims celebrated
Ramadan on the sunset of Monday, July 8, 2013. (DPFF ¶ 10). Beginning
July 8, 2013, meals and milk for that evening and the following morning were
available for staff pick-up each evening in the kitchen. Staff were to deliver
evening meals by 8:00 p.m. and morning meals and milk by 3:00 a.m. (DPFF
¶ 11). Each year, the chaplain emails a memorandum to all CCI staff
informing them of the dates Ramadan will be observed and he provides
instruction for meal pick-up and delivery. (DPFF ¶ 12).
In 2013, West participated in the Ramadan fast. (DPFF ¶ 13). On
February 14, 2013, West was transferred from housing unit 1, to housing
unit 9. (DPFF ¶ 14). Inmates housed on unit 9 sign-up for daily recreation,
Page 2 of 18

dayroom and/or showers during the morning meal time when they are let
out of their cell for breakfast. Inmates who refuse meals or are fasting for
religious beliefs are typically let out of their cell at this same time, but only
long enough to sign-up and to return to their cell. (DPFF ¶ 15).
All inmate movement in the institution is closely monitored. On unit 9,
inmates are kept in their cells unless they are out for meals, work, dayroom,
recreation, or showers. (DPFF ¶ 16). The unit sergeant has the discretion to
not let out an inmate who is not participating in meal time, if they are
disruptive, misbehave, not following directives, or loiter. This is to help
ensure a safe and secure unit. (DPFF ¶ 17).
Recreation, dayroom and showers occur in the afternoons except on
weekends when there is also an opportunity for morning dayroom. On
Sundays, there is also an opportunity for morning shower. Inmates have the
choice of which activity they would like to participate in each day the
activities are offered. These activities are a privilege; not a right. Inmates
may lose their privileges if they misbehave, fail to follow directives, are
disruptive, or as a result of a disciplinary disposition. (DPFF ¶ 19 and
Response).
1.3

Kingsland’s Alleged Refusal to Allow West Out of Cell

On July 14, 2013, West alleges that Kingsland refused to allow him out
of his cell during the breakfast meal to sign up for activities. (DPFF Response
¶ 21). Kingsland maintains that he did allow West out of his cell that day and
that West loitered in the dayroom and went from table to table socializing
with other inmates, in violation of prison policy. (DPFF ¶ 21). Other Muslim
inmates who were fasting for Ramadan on unit 9 were let out of their cell to

Page 3 of 18

sign up for activities during meal times2 (DPFF ¶ 23). It is also undisputed
that non-Muslim inmates that were not accepting meals that also misbehaved
when they were let out of their cells to sign up for activities would not be
permitted out of their cells. (DPFF ¶ 24).
On July 20, 2013, West did not make a request to Kingsland or any
other staff member to be signed up for any activities during the 6:10 a.m.
count. (DPFF ¶ 25). West alleges that Kingsland refused to open his door at
breakfast to sign up for dayroom because he was a Muslim fasting for
Ramadan. West alleges that at lunch time, while out of his cell, he asked
Kingsland for two complaint forms. Kingsland asked if West was going to
write him up again, and West replied, “Absolutely.” Kingsland handed West
a stack of 13 complaint forms and told West that he was going to need them.
West filed a complaint about the July 20, 2013 incident.3 (PPFF ¶ 15).
On July 21, 2013, July 27, 2013, July 28, 2013, and August 3, 2013, West
alleges basically the same allegations that Kingsland refused to let him out
of his cell because he was a Muslim fasting for Ramadan and in retaliation for
his complaints. Kingsland maintains West was not allowed out of his cell due
to his prior misbehavior on July 14, 2013. West filed complaints against
Kingsland in each instance. (PPFF ¶¶ 16, 17, 18, 19, 20). On each of those
occasions, West did not make a request to Kingsland or any other staff
member to be signed up for any activities during the 6:10 a.m. count. (DPFF
¶¶ 26, 27, 28).

2

West disputes that other Muslim inmates who were fasting for Ramadan
were let out of their cells. (DPFF Response ¶ 23). However, the dispute is not
proper because it is not based upon any personal knowledge and West has not cited
to any evidentiary material to support his dispute.
3

The record is unclear as to the date West filed a complaint for this incident.

Page 4 of 18

On August 3, 2013, Kingsland allowed West out of his cell at
lunchtime. West told Kingsland to sign him up for library and recreation, to
which Kingsland responded sarcastically, “I’m not a religious person. That’s
not my problem!” (PPFF ¶ 21). On August 4, 2013, Kingsland allegedly
refused to let West out of his cell at breakfast time and discriminated against
West for fasting for Ramadan as a Muslim. West filed a complaint regarding
this incident. (PPFF ¶ 24).
1.4

Cell Searches

Pursuant to Division of Adult Institutions Policy & Procedure
#309.20.03(I)(B)(5), personal property of an inmate is required to fit into a box
measuring 32” x 16” x 16” or 8,192 cubic inches. Canteen items are
considered personal property and count towards the cubic inch limit. (DPFF
¶ 36). Pursuant to Wis. Admin. Code DOC § 306.16(1), staff may conduct a
search of the living quarters of any inmate at any time. (DPFF ¶ 37).
Cell searches are conducted on a minimum of a monthly basis and
may be conducted more often if necessary. Cell searches are typically
alternated between shifts. For example, if a round of cell searches was
conducted by second shift staff, the next round might be conducted by first
shift staff. This is done to split up the work among staff. (DPFF ¶ 38). Cell
searches are done throughout the month and documented in the housing
unit search log book documenting the date, name of the inmate, DOC #, cell
location, contraband located, staff involved, type of search and the shift
during which the search occurred. (DPFF ¶ 39).
It is important to institution security and stability for staff to know
what items are in the institution, and to be able to identify and remove
non-approved items. Further, having excessive property in a cell over the
institution limits gives an inmate more opportunity to hide potentially
Page 5 of 18

dangerous or disruptive items. It also requires more staff time to conduct a
thorough search. Accordingly, regular cell searches occur to help address all
of these concerns. (DPFF ¶ 43). If an inmate is found to have contraband, they
may receive a conduct report for violating Wis. Admin. Code § 303.47 or
other contraband offenses. Conduct reports are written at the discretion of
the staff involved. (DPFF ¶ 44).
On August 3, 2013, Kingsland, along with other housing unit 8 and
9 staff, conducted cell searches. (See DPFF ¶ 41 and Response). If Kingsland
notices an inmate’s cell door is open during recreation and they have not had
a cell search done yet for the month, Kingsland typically commences a cell
search at that time. (DPFF ¶ 46). On August 3, 2013, West’s cell door was
open while West was at the law library, so Kingsland commenced a search
in accordance with Wis. Admin. Code DOC § 306.16(1).4 (DPFF ¶ 47) The
parties dispute whether the search revealed that West’s cell was over the
allowable property limits; West maintains he was not in violation of the
property limits, whereas Kingsland maintains West did violate the property
allowances. (DPFF ¶ 49 and Response). Kingsland documented his cell search
in the unit 9 cell search logbook. (DPFF ¶ 50).
Rather than issuing West a ticket and taking his property at that time,
as a courtesy, Kingsland allowed West two days to get within property
limits. (DPFF ¶ 51) Upon West’s return to his cell, Sergeant Goodwin told
West that Kingsland had searched his cell and that he had two days to get
within the property limits. (PPFF ¶ 23).

4

West disputes that his cell door was open. However, the record is clear that
West was located in a different part of the building at that time and has submitted
evidence or personal knowledge to contradict this fact.

Page 6 of 18

On August 5, 2013, Kingsland wrote and issued conduct report
#1960091 for West’s disrespect toward housing unit staff and disobeying
directives to bring his property into compliance. West was placed into
temporary lockup status (“TLU”) pending the conduct report hearing. (DPFF
¶ 56). TLU is a temporary, nonpunitive segregated status allowing an inmate
to be separated from the general population pending further administrative
action. (DPFF ¶ 57). West was not let out of his cell during lunch to sign up
for activities on August 5, 2013, because he was on TLU status. (DPFF ¶ 31).
Kingsland conducted another cell search of two non-Muslim inmates on
August 6, 2013. (DPFF ¶ 60).
1.5

West’s Unit Transfer

In August 2013, the regular first shift Sergeant was Kingsland. With
this authority, Kingsland was responsible for the movement of inmates on
and off the unit on a daily basis. This included taking new inmates recently
released from segregation, taking newly hired inmate workers, moving
inmates to other units as needed, and dealing with problematic inmates.
(DPFF ¶ 62). If Kingsland wanted an inmate to be moved off the unit, he
would discuss the transfer with the unit manager, Anthony Ashworth
(“Ashworth”), for approval. (DPFF ¶ 63). Inmates are often moved to another
housing unit if they change status, have conflicts with staff or inmates on
their current unit, if they require special assignment for education or work,
or if they have medical needs. Moving an inmate to another housing unit
with the same status is not punitive. (DPFF ¶ 66).
On August 23, 2013, Kingsland spoke to Ashworth about the
possibility of moving West to another housing unit at CCI. (DPFF ¶ 64). West
was an unassigned inmate, meaning he did not need to be assigned to any
specific unit within the institution. (DPFF ¶ 34). West was moved to unit 1 on
Page 7 of 18

August 23, 2013, but was returned to unit 9. (DPFF ¶ 72). The same day, West
was transferred to housing unit 8, which is also a working complex, and, at
the time, was also under Ashworth’s supervision as unit manager. West had
the same privileges on housing unit 8 as he had on housing unit 9. (DPFF
¶ 74). According to West’s housing unit assignments, while at CCI, he has
been housed on units 1, 4, 5, 8 and 9. (DPFF ¶ 75).
1.6

West’s Complaints Against Kingsland

West has filed nine offender complaints regarding his claims in this
lawsuit. All of the offender complaints were rejected except for
CCI-2013-13692, which was dismissed. (DPFF ¶ 82). Captain Wogernese, who
was the interim unit manager prior to Ashworth, did not discuss any of
West’s offender complaints with Kingsland. (DPFF ¶ 77).
2.

LEGAL STANDARD
“The court shall grant summary judgment 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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law
that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A
dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: “(A) citing to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials; or
Page 8 of 18

(B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4).
3.

DISCUSSION
Kingsland’s motion for summary judgment argues that: (1) he is

entitled to summary judgment on the Fourteenth Amendment claim because
West was not discriminated against on the basis of his religion; (2) he is
entitled to summary judgment on the First Amendment retaliation claim; (3)
West is not entitled to compensatory or punitive damages; and (4) he is
entitled to qualified immunity. As discussed below, the Court finds that
Kingsland is entitled to summary judgment on both the Fourteenth and First
Amendment claims.
3.1

Fourteenth Amendment—Equal Protection

The purpose of the equal protection clause of the Fourteenth
Amendment is to “secure every person within the State's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by express
terms of a statute or by its improper execution through duly constituted
agents.” Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (citing Sioux City
Bridge Co. v. Dakota Cnty., 260 U.S. 441 (1923); Sunday Lake Iron Co. v. Township
of Wakefield, 247 U.S. 340, 352 (1918)).
To comply with equal protection, governmental entities are generally
required to treat all similarly-situated persons in a similar manner. City of
Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). “To show a violation
Page 9 of 18

of the Equal Protection Clause, plaintiffs must prove that the defendants'
actions had a discriminatory effect and were motivated by a discriminatory
purpose.” Chavez v. Illinois State Police, 251 F.3d 612, 635-36 (7th Cir. 2001).
The Court will analyze each element in turn.
3.1.1

Discriminatory Effect

To prove discriminatory effect, plaintiffs are required to show that
they are members of a protected class, that they are otherwise similarly
situated to members of the unprotected class, and that plaintiffs were treated
differently from members of the unprotected class. See Greer v. Amesqua, 212
F.3d 358, 370 (7th Cir. 2000), cert. denied, 531 U.S. 1012 (2000); Johnson v. City
of Fort Wayne, Ind., 91 F.3d 922, 944–45 (7th Cir. 1996). Here, Kingsland
concedes that West, as a Muslim, is a member of a protected class. (Def’s
Opening Br. at 9).
A person is similarly situated to the plaintiff if the person is
“comparable to the plaintiff in all material respects.” Crawford v. Indiana
Harbor Belt R.R. Co., 461 F.3d 844 (7th Cir. 2006) (balancing the need for
lenience in a broadly representative sample and frowning upon plaintiff's
tendency to “cherry-pick” the best persons for comparison) (emphasis in
original). It is not necessary that individuals be similar in all respect so as to
define the requirement of similarly too narrowly. See Chavez, 251 F.3d at 636.
“[T]he purpose of the similarly situated requirement is to eliminate
confounding variables, such as differing roles, performance histories, or
decision-making personnel, which helps isolate the critical independent
variable…” Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007).
Here, West has provided no evidence of any similarly situated nonMuslim inmates who were treated differently than him. As to Kingsland’s
refusal to let West out of his cell, it is undisputed that non-Muslim inmates
Page 10 of 18

that were not accepting meals that also misbehaved when they were let out
of their cells to sign up for activities would not be permitted out of their cells.
(DPFF ¶ 24). Moreover, other Muslim inmates that were observing Ramadan
were still permitted out of their cells by Kingsland to sign up for activities.
(DPFF ¶ 25).
As to Kingsland search of West’s cell, it is undisputed that one day
after the search, Kingsland searched the cells of two non-Muslim white
inmates. (DPFF ¶ 60). Finally, as to Kingsland issuing West a conduct report
and transferring him to another unit, West fails to identify any similarly
situated non-Muslim inmate who was treated differently than him.
Thus, West is unable to demonstrate any discriminatory effect to
prove an equal protection violation. For completeness, however, the Court
will turn to analyze whether Kingsland’s actions were motivated by
discriminatory intent.
3.1.2

Discriminatory Intent

In order to show discriminatory intent, plaintiffs must show that the
“decisionmakers in [their] case acted with discriminatory purpose.”
McCleskey v. Kemp, 481 U.S. 279, 292 (1987); accord Chavez v. Illinois State
Police, 251 F.3d 612, 645 (7th Cir. 2001) “‘Discriminatory purpose’…implies
more than…intent as awareness of consequences. It implies that the
decisionmaker…selected or reaffirmed a particular course of action at least
in part ‘because of’ ... its adverse effects upon an identifiable group.'”
McCleskey, 481 U.S. at 298 (quoting Pers. Adm'r of Mass. v. Feeney, 442 U.S.
256, 279 (1979)); Hearne v. Bd. of Educ. of City of Chi., 185 F.3d 770, 776 (7th Cir.
1999) (same).
Here, the Court finds that West fails to provide any evidence to show
Kingsland’s actions were acted with a discriminatory purpose. West
Page 11 of 18

repeatedly states that Kingsland discriminated against him because he is a
Muslim fasting for Ramadan. However, these conclusory allegations are
simply insufficient to defeat a motion for summary judgment, Mills v. First
Fed. Sav. & Loan Ass’n of Belvidere, 83 F.3d 833, 840 (7th Cir. 1996.), and there
is nothing else in the record that points to a discriminatory purpose. The
Court recognizes that significant factual disputes exist in this case,
particularly as to Kingsland’s motivations for how he treated West; however,
even when looking at all facts in the light most favorable to the plaintiff,
there is simply nothing in the record to suggest religious discrimination other
than West’s conclusory allegations. For example, even if West’s version of
events is true—that West never loitered or broke the rules—there is still
nothing in the record that indicates Kingsland’s decision not to let West out
of his cell were motivated in any way by West’s religion. As such, the Court
finds that West fails to meet the discriminatory intent prong required to
prove an equal protection violation.
3.1.3

Equal Protection—Class of One

Finally, the Court will briefly address the defendant’s argument
related to class-of-one equal protection claim.5 In Engquist v. Oregon Dept. of
Agriculture, 553 U.S. 591 (2008), the Supreme Court held that a public
employee could not maintain a class of one equal protection claim based on
allegations that she was arbitrarily treated differently from similarly-situated
employees. The Court explained that cases in which class of one claims exist
in the equal protection context involve “the existence of a clear standard
against which departures, even for a single plaintiff, could be readily

5

West does not make a class-of-one claim, nor did the Court allow such a
claim in its screening order (Docket #10); however, for clarity, the Court will
address the issue.

Page 12 of 18

assessed.” Id., 553 U.S. at 602. The Court found that allowing claims in such
discretionary circumstances would mean that “governments will be forced
to defend a multitude of such claims in the first place, and courts will be
obliged to sort through them in a search for the proverbial needle in a
haystack.” Id. at 608.
Courts have extended the reasoning of Engquist to include other types
of discretionary decisions, including a prosecutor's decision to bring a case
in federal, rather than state, court, United States v. Moore, 543 F.3d 891, 90–101
(7th Cir. 2008), and decisions made in the prison disciplinary context. See
Glover v. Dickey, No. 14-C-0087, 2015 WL 5521858, at *6 (E.D. Wis. Sept. 18,
2015); Grant v. Laufenberg, No. 12-C-668, 2015 WL 1246065, at *8 (E.D. Wis.
Mar. 18, 2015); Knowlin v. Gray, No. 12–cv–926–bbc, 2013 WL 541525, at *2–3
(W.D. Wis. Feb.13, 2013); Jackson v. Flieger, No. 12–cv–220–bbc, 2012 WL
5247275, at *4 (W.D. Wis. Oct. 23, 2012).
Here, the Court finds that Kingsland’s discretionary decisions,
regarding West being allowed out of his cell, the search of West’s cell, West’s
conduct report, and West’s transfer to another unit, are exactly the types of
decisions where allowing prisoners to bring claims for the arbitrary singling
out of a particular prisoner would undermine the discretion correctional
officers are entrusted to exercise. See Engquist, 553 U.S. at 603. As such, the
Court finds that West may not prevail on a class-of-one equal protection
claim.
In sum, West cannot prove a discrimination claim on the basis of his
religion, nor does he meet the standard for a class-of-one equal protection
claim. Thus, the Court will grant Kingsland’s motion for summary judgment
on the equal protection claim.

Page 13 of 18

3.2

Retaliation

Under the First Amendment, inmates have a constitutional right to file
grievances and lawsuits without the threat of retaliation. Hoskins v. Lenear,
395 F.3d 372, 375 (7th Cir. 2005); Babcock v. White, 102 F.3d 267, 274–75 (7th
Cir. 1996). Any “act taken in retaliation for the exercise of a constitutionally
protected right violates the Constitution.” DeWalt v. Carter, 224 F.3d 607, 618
(7th Cir. 2000) (citations omitted); see also Pearson v. Welborn, 471 F.3d 732, 738
(7th Cir. 2006) (holding same). Even conduct that otherwise does not violate
the Constitution can form the basis for a retaliation claim if that conduct is
done with an improper, retaliatory motive. See DeWalt, 224 F.3d at 618
(unconstitutional to transfer inmate for filing grievances); Babcock, 102 F.3d
at 275 (unconstitutional to place inmate in administrative detention for filing
grievances); Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996)
To establish a prima facie case of retaliation, an inmate must produce
evidence that: (1) he engaged in constitutionally protected speech; (2) he
suffered a deprivation likely to deter protected speech; and (3) his protected
speech was a motivating factor in the defendants' actions. Kidwell v.
Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012) (clarifying allocation of
evidentiary burdens at summary judgment in light of Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167 (2009)); Greene v. Doruff, 660 F.3d 975, 977 (7th Cir. 2011)
(same). If the inmate satisfies these elements, the burden shifts to the
defendants to rebut the causal inference with evidence showing that they
would have taken the same action even without any retaliatory motive. See
Kidwell, 679 F.3d at 965; Greene, 660 F.3d at 979.
Here, West has satisfied the first element. Kingsland appropriately
concedes that West has the right under the First Amendment to file his own
truthful grievances and federal lawsuits. See Hasan v. U.S. Dep't of Labor,
Page 14 of 18

400 F.3d 1001, 1005 (7th Cir. 2005). As to the second question, the Court has
serious reservations regarding whether the alleged retaliatory actions—
Kingsland searching West’s cell and his subsequent transfer to another
housing unit—is a deprivation that would likely deter protected speech.
Indeed, West continued to file grievances during this time period, nine
grievances all in a short time. As the Seventh Circuit noted in Bart v. Telford,
677 F.2d 622 (7th Cir. 1982), “[i]t would trivialize the First Amendment to
hold that harassment for exercising the right of free speech was always
actionable no matter how unlikely to deter a person of ordinary firmness
from that exercise.” Id. at 625. However, the Court need not definitively
decide this issue as the main analysis and the parties’ arguments center
around the third prong, which the Court now turns to discuss.
West must show a causal connection between his First Amendment
activity and the deprivations he suffered. Hence, the Court will analyze
whether plaintiff's constitutionally protected conduct was a motivating factor
in each defendant's alleged retaliatory action. See Greene, 660 F.3d at 979. The
Court recognizes that direct evidence of retaliation is difficult to obtain.
Defendants rarely admit that they want to retaliate against someone. It is,
however, well established that a plaintiff cannot establish retaliation simply
by showing that the protected activity happened before the defendants took
their action, see, e.g., Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 728 (7th Cir.
2003) (noting that one event’s following closely upon another is not
dispositive in proving that the first act caused the second); see also Stone v.
City of Indianapolis Public Utils. Div., 281 F.3d 640, 642 (7th Cir. 2002) (‘’mere
temporal proximity between the filing of the charge of discrimination and the
action alleged to have been taken in retaliation for that filing will rarely be
sufficient in and of itself to create a triable issue’‘). West argues that
Page 15 of 18

Kingsland must have had a retaliatory motive in this case, “because of the
chronological history” in this case (Pl’s Opp. at 24), however, this timing
alone is insufficient to prove retaliation.
Kingsland argues that West’s retaliation claim must fail because there
is no evidence that Kingsland had any knowledge of the complaints. Indeed,
“protected conduct cannot be proven to motivate retaliation if there is no
evidence that the defendants knew of the protected activity.” Morfin v. City
of E. Chi., 349 F.3d 989, 1005 (7th Cir. 2003) (internal quotation marks and
brackets omitted) (quoting Stagman v. Ryan, 176 F.3d 986, 1000–01 (7th Cir.
1999)); accord Tomanovich v. City of Indianapolis, 457 F.3d 656, 668 (7th Cir.
2006). As Kingsland notes, West does not dispute that the complaints were
confidential, nor does he dispute that Kingsland was never contacted
regarding the complaints filed against him. (See DPFF Reply ¶¶ 76, 78, 82;).
West proffers two reasons in his opposition brief to explain how
Kingsland knew of the complaints. First, that he told Kingsland he would file
complaints against him on July 14 and July 20, 2013. However, threatening
to file a complaint and actually filing a complaint are different scenarios. “[I]t
seems implausible that a threat to file a grievance would itself constitute a
First Amendment-protected grievance.” Bridges v. Gilbert, 557 F.3d 541, 554
(7th Cir. 2009). Indeed, the Court readily acknowledges that inmates
threatening to file complaints against prison employees is a fairly common
practice. Thus, the Court finds these verbal threats do not support a finding
that Kingsland actually knew that West followed through on his threat to
file. Moreover, the fact that Kingsland already allegedly refused to let West
out of his cell on July 14, 2013, prior to any grievances, suggests something
other than retaliation motivated Kingsland’s actions in relation to West being
allowed out of his cell.
Page 16 of 18

Second, West argues that Kingsland must have seen his complaints
against Kingsland during the August 3, 2013 cell search. To begin, this
argument is relevant only to the alleged retaliatory acts that followed the cell
search and cannot show a causal link to any acts before the search. More
importantly, West’s belief that Kingsland saw his complaints during the cell
search amounts to nothing more than speculation. The undisputed facts
show that West was in a different part of the prison at the time of the search
and, therefore, has no personal knowledge or other admissible evidence to
show Kingsland saw the complaints. (See (DPFF ¶ 47 and Reply). As such,
the Court finds no evidence in the record to show that Kingsland was aware
of West’s protected activity. Thus, West fails to show a causal connection
between his First Amendment activity and the deprivations he suffered, and
cannot establish a prima facie case of retaliation.
In the end, West has produced little in the way of admissible evidence
to support his retaliation claims. The purported retaliation occurred before
Kingsland knew about the protected conduct on which West premised this
lawsuit; moreover, West has presented no evidence sufficient to show that
his protected conduct was a motivating factor in Kingsland’s actions. West
may well feel he was treated unfairly, but the First Amendment does not
provide a remedy for any and all unfair treatment. See Shaw v. Metzen, No.
13-CV-847-WMC, 2015 WL 5123677, at *9 (W.D. Wis. Sept. 1, 2015).
In light of the foregoing, the Court finds that no reasonable juror
could find a causal connection between West’s First Amendment activity and
the deprivations he suffered. As such, the Court will grant Kingsland’s
motion for summary judgment as to the retaliation claim.

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4.

CONCLUSION6
In sum, the Court will grant summary judgment for Kingsland and

finds that: (1) West fails to prove an equal protection claim, in violation of the
Fourteenth Amendment; and (2) West fails to prove a retaliation claim, in
violation of the First Amendment.
Accordingly,
IT IS ORDERED that the Kingsland’s motion for summary judgment
(Docket #24) be and the same is hereby GRANTED, as more fully described
in detail above, and that this action be and the same is hereby DISMISSED.
The Clerk is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 17th day of November, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

6

The Court need not address Kingsland’s remaining arguments related to
damages and qualified immunity because it finds no retaliation or equal protection
violations as a matter of law. See Estate of Phillips v. City of Milwaukee, 123 F.3d 586,
597 (7th Cir. 1997) (finding that when a court determines in a § 1983 case that no
constitutional violation occurred, it is unnecessary to consider whether defendants
are entitled to qualified immunity).

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