United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE
Waldera, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. § 1983,
alleging that Barry Casetta, a correctional officer at Kettle
Moraine Correctional Institution (“KMCI”),
violated his civil rights. I screened the complaint and
allowed Waldera to proceed on a claim that Casetta issued him
a conduct report in retaliation for engaging in activity
protected by the First Amendment. Before me now is
Casetta's motion for summary judgment.
September 27, 2017, Waldera slipped and fell in a KMCI
bathroom. He came out of the bathroom holding his knee and
told Officer Randolph Merkes that he slipped on the wet
floor. Waldera claims that he also informed Merkes that the
faucets on the sinks in the bathroom were faulty and caused
water to pool on the floor.
was taken to the Health Services Unit for medical evaluation.
While Waldera was receiving treatment, Casetta collected his
belongings. In the course of doing so, Casetta discovered a
folder containing sections from the Milwaukee Journal
Sentinel, which Casetta suspected had been removed from the
institution's library. Casetta confiscated these
sections. When Waldera returned from the Health Services Unit
and discovered that his property was missing, he went to talk
to Casetta. Casetta then questioned him about his possession
of the sections of the newspaper. Waldera told Casetta that
he had the librarian's permission to take these sections,
which were from newspapers that were to be thrown away.
Waldera states in his declaration that he did not believe
Waldera and concluded that Waldera must have stolen the
newspaper sections from the library. (The librarian who
Waldera claimed granted him permission to take the newspaper
sections had left the institution and was not available for
October 2, 2017, Casetta wrote Waldera a conduct report
charging him with possession of contraband. In his complaint,
Waldera alleged that he believed Casetta wrote this conduct
report to retaliate against him for complaining to staff
about the bathroom faucets. ECF No. 1 at 4. In his materials
in opposition to Casetta's motion for summary judgment,
however, Waldera suggests that Casetta had a different reason
to retaliate against him. Specifically, Waldera states that
he heard from a teacher at the KMCI school that Casetta
believed Waldera was lying about his military service and
that Casetta was “after [his] job” as a tutor at
the school. ECF No. 32 at 5. Waldera states that, when
Casetta confronted him about the newspapers, Casetta
“went on a profane rant.” Id. at 18. At
that point, Waldera told Casetta that he intended to file
inmate complaints against him. Id.
Casetta wrote Waldera the conduct report, Officer J. McInnis
found plaintiff guilty of possession of contraband. McInnis
sentenced Waldera to 10 days without common-area privileges
and recommended that Waldera be removed from his job in the
around October 5, 2017, plaintiff filed two inmate complaints
regarding these events: one for his slip and fall and another
for Casetta's “profane language” and
“aggressive behavior.” Docket No. 1 at 3-4. These
inmate complaints did not result in relief.
judgment is proper “if the pleadings, depositions,
answers to interrogatories and admissions on file, together
with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to judgement as a matter of law.” Fed.R.Civ.P. 56(c);
Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668
(7th Cir. 2011). The movant bears the burden of establishing
that there are no genuine issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The court grants summary judgment when no reasonable jury
could find for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
claims that Casetta wrote the conduct report to retaliate
against him for engaging in activity protected by the First
Amendment. To prevail on such a claim, he must provide
evidence that would allow a reasonable jury to find that: (1)
he engaged in activity protected by the First Amendment; (2)
he suffered a deprivation that would likely deter First
Amendment activity in the future; and (3) the First Amendment
activity was “at least a motivating factor” in
the defendant's decision to take the retaliatory action.
Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir.
2009). If the plaintiff establishes these three elements,
“the burden then shifts to the defendants to show that
they would have taken the action despite the bad
motive.” Mays v. Springborn, 719 F.3d 631, 635
(7th Cir. 2013).
respect to the first of these elements, it is well
established that filing a non-frivolous prison grievance is
constitutionally protected activity. Perez v.
Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015). However,
Waldera did not file his grievances until after
Casetta wrote him the conduct report. Still, Waldera
contends, the conduct report could have been retaliatory
because Waldera told Casetta that he intended to file the
grievances during the same conversation in which Casetta
wrote him the conduct report. However, the Seventh Circuit
has observed that “it seems implausible that a
threat to file a grievance would itself constitute a
First Amendment-protected grievance.” Bridges,
557 F.3d at 555 (emphasis in original). Thus, I doubt that
Waldera's threat to file grievances against Casetta
counts as activity protected by the First Amendment.
even if Waldera's threat was protected, Waldera has not
pointed to evidence supporting his claim that it was a
motivating factor in Casetta's decision to write the
conduct report. Waldera does not claim that after he told
Casetta that he intended to file grievances, Casetta
attempted to dissuade him from doing so by threatening him
with the conduct report. Moreover, by the time Waldera told
Casetta that he intended to file grievances, Casetta had
already confiscated the newspaper sections as contraband and
questioned Waldera about them. In other words, by the time of
Waldera's threat, Casetta was already poised to write the
conduct report. Thus, his doing so shortly after Waldera made
the threat is not suspicious.
points out that immediately after he limped out of the
bathroom he complained to Merkes about the faucets. Waldera
speculates that Merkes told Casetta what he said and that
therefore Casetta was aware of his complaint about the
faucets at the time he initiated his investigation into
Waldera's possession of the newspaper sections. However,
the idea that Casetta would retaliate against Waldera for
complaining about the bathroom faucets is extremely
implausible. It is highly unlikely that a correctional
officer would take personal offense at an inmate's
complaint about a bathroom faucet, and Waldera points to no
evidence suggesting that Casetta was unusually sensitive to
complaints about prison facilities. Thus, even if
Waldera's oral complaint to Merkes was protected
activity, and ...