NONPRECEDENTIAL DISPOSITION
To cited only accordance Fed. R. App. P. 32.1 United States Court of Appeals
For Seventh Circuit
Chicago, Illinois
Submitted October [*]
Decided November
Before
DIANE P. WOOD, Chief Judge JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge No. ‐
ISRAEL COBIAN, Appeal
Plaintiff Appellant United States District Court Central District Illinois.
v . cv
CHRISTOPHER McLAUGHLIN
WAYNE STEELE, Sue E. Myerscough,
Defendants Appellees . Judge .
O R D E R
Israel Cobian, Hill Correctional Center Illinois, sued officials under U.S.C. § alleging failed violence posed and, complained about it, issued unfounded report segregated month human feces. At concluded stated two state based upon him or any other theory of relief. The court later granted the defendants’ motion retaliation claim. Because we conclude states deliberate indifference unsanitary of cell, we vacate district court’s in respect; otherwise, we affirm judgment. A. Initial Screening Complaint
In our review court’s order, accept true in draw reasonable inferences favor. Gonzalez Feinerman sued Major Christopher McLaughlin Major Wayne among defendants (the warden, Director Department Corrections, member Illinois Administrative Review Board). He sometime he told Steele he feared violent three gang members against whom he had testified criminal trial who were housed somewhere within Illinois Department Corrections but nothing. June asked McLaughlin help obtain records showing had testified against gang members so officials place anywhere within Department Corrections where could be seen by them. When McLaughlin refused, asked proof been this could “get ordered injunction obligating administration investigate” request “to verify [his] safety danger.” McLaughlin immediately “retaliat[ed] him” issuing disciplinary report charging intimidating threatening signed report. opened investigation into threats said made cellmate, never investigated anything. disciplinary report resulted months segregation. Within first
week, correctional officer tell write “truthful” report “get [Cobian] off bogus investigation.” next day prior occupant own feces—under bed, window screen, hole through food passed into cell. Correctional officers gave cleaning supplies hours inadequate. remained month despite sending letters grievances warden, Director Corrections, member Administrative Review Board. None these took action respect protective measures
The judge screened Cobian’s complaint U.S.C. § 1915A. She allowed proceed First Amendment against and concluded defendants, having simply received letters ruled grievances, could be liable. The judge further concluded did state Eighth Amendment for inadequate protection had alleged communicated specific, credible made against him; instead, alleged “nothing more than generalized fear harm future some unidentified prisoners.” The judge consider whether Cobian’s segregation could violate Amendment proscription cruel unusual punishment.
Weeks later moved leave file amended complaint. proposed amended provided more detailed allegations Steele’s McLaughlin’s responses requests help obtaining protective order, Steele’s role keeping filthy actions dismissed defendants. motion, however, saying only it would futile reallege warden, Director Corrections, Administrative Review Board member had any role B. Motion Summary Judgment
After discovery closed, remaining defendants, Steele McLaughlin, summary against sole remaining claim—retaliation. They argued reasonable jury could conclude punished activity “threatened [d]efendant civil suit” demanded halt investigation alter report. They further argued lacked any protection were motivating factor deprivations endured. recount undisputed summary record light
most favorable Cobian, opponent judgment. Carson ALL Erection & Crane Rental Corp. met Steele seek safe transfer prison where complete associate’s degree. said wanted ensure transferred housed any gang members whom previously testified against. Steele searched found reflect testified anyone. then find out why names missing remedy oversight. agreed do never did. ‐
About year later, Cobian again sought transfer to another prison, this time by meeting with then Lieutenant McLaughlin and sharing same he gave to Steele. After McLaughlin searched Cobian’s and, like informed he found nothing, asked McLaughlin to search Corrections’ database for gang members, saying “life can danger” he belonged to rival gang. McLaughlin, becoming impatient, searched two gang members and found those two were incarcerated at same facility Cobian. McLaughlin refused to look third, saying he had better things to do. McLaughlin also refused to call Cook County State’s Attorney’s Office to verify had testified against these inmates. According to Cobian, he then asked “Can you give me proof I came to your office this issue so I can get injunction obligating you to call States Attorney’s Office and ask them information?” says McLaughlin then took to segregation—a fact McLaughlin disputes by asserting adjustment committee sole authority do this.
McLaughlin wrote disciplinary report against Cobian, stating he threatened fight cellmate returned same cell threatened McLaughlin taking security precautions. McLaughlin opened investigation into cellmate. Days after incident filed grievance which denied threatening cellmate. About week after incident hearing held prison’s adjustment committee issue report, threatening admitted asking proof visit take civil action. committee found guilty threatening civil action sentenced months’ segregation. first day time segregation, asked correctional officer tell end “bogus” investigation; next day feces previous smeared bed, window screen next bed, around port through received food items. requested eventually received cleaning supplies—two cups bleach two cups another disinfectant—which used clean underneath bed. But these supplies inadequate remove feces screen next bed caged off area just above food port. says day feces covered move him, refused, saying “you shouldn’t threatening my Lieutenant.” remained feces one month. ‐
Defendants moved for summary judgment, and sought extension time to respond until after defendants filed outstanding response to previous discovery request production documents. But defendants refused to provide discovery, saying they had received Cobian’s request two weeks after discovery closed. judge granted additional time to respond to motion, but she did not order to answer any discovery requests. She said without motion to compel, she lacked enough to evaluate parties’ discovery dispute. then moved court reopen discovery because, said, never received scheduling order or became aware discovery deadline. But judge motion, reasoning Cobian’s explanation did warrant reopening discovery six months after it closed. substantively responded summary judgment motion also sought reconsideration decision deny reopening discovery, also compel discovery; each request denied. Despite representation did receive scheduling order, judge noted been referenced another order, should spoken up when received order. Further, court said, waited two months summary motion ask reopen discovery. judge entered summary concluding engaging speech threatened action. Further, lacked evidence retaliatory motive putting him
segregation, writing false report, keeping him befouled cell. contradict defendants’ they decide sentence segregation select cells segregation, show they directly responsible stint C. Appeal
On appeal argues erroneously precluded proceeding past stage Eighth Amendment claims deliberate indifference segregation. contests denial leave amended warden, Director Corrections, Administrative Review Board member, contending each defendant personally involved deprivation constitutional rights knew failed correct McLaughlin’s Steele’s violations. Lastly, challenges entry 16 ‐ 3141 6 Amendment claim because he presented that he engaged in speech that speech was motivation a trip to segregation, a phony report, placement a filthy begin with challenges to judge’s initial order, expressly foreclosed a failure ‐ to ‐ protect claim did not address a potential claim about unconstitutional of confinement. he stated a failure protect claim because prison staff did not take steps necessary to protect him members rival gang who, like him, were imprisoned Illinois Corrections. requires prison officials “to protect prisoners violence at hands other prisoners.” Farmer v. Brennan , 511 U.S. 825, (1994) (quotation marks omitted); Gevas v. McLaughlin, F.3d 475, (7th Cir. 2015). To adequately plead a protect claim, a prisoner must allege officials were subjectively aware disregarded an objectively serious risk harm prisoner. Dale v. Poston 563, (7th Cir. does state a relief because he allege any
suggesting faced a substantial risk being attacked other inmates. Although being branded “snitch” can pose substantial risk harm inmates, see id. inmate’s cooperation authorities poses risk unless fellow prisoners believe is snitch. has alleged any prisoner who viewed him as aid authorities actually housed same prison was being held circumstances where danger encountering rival gang members testified against. allege they even aware likely become aware presence Illinois prison system. possibility their transfer prison where housed—or vice versa—is speculative does constitute substantial risk harm triggered duty Brown Budz 2005) (suggesting substantial risk means “risks great are almost certain materialize if nothing done”); Brooks Warden (concluding who faced possible implausible riot failed allege substantial risk). fear may justified abstract, does allege faced risk “almost certain materialize” staff failed update about gang members. argues next stated unconstitutional McLaughlin, fecal matter left there alerted 16 3141 7
them the conditions by way a grievance or letter. that the judge precluded from proceeding on theory by narrowly reading complaint at the screening stage without ever considering claim (or puts it, when she “changed [his] claim into a Amendment claim”). agree judge’s reading was too narrow. alleged that was in cell feces a previous occupant “splashed . .
everywhere”—under bed, on window screen near bed, around food port—and was unable completely clean up fecal matter entire month held in See McBride v. Deer , 240 F.3d 1287, 1291–92 (10th Cir. 2001) (holding day period cell covered in human waste without cleaning supplies sufficient state an Eighth claim). Prison officials violate their constitutional responsibility provide with minimal necessities life disregard over significant period an inmate’s request relieved exposure human feces. See Vinning El v. Long , F.3d 923, 923–24 (7th Cir. 2007) (reversing entry summary prison guards where spent six days cell blood feces walls without running water sanitation supplies); Johnson v. Pelker , F.2d 136, 139–40 (7th Cir. (reversing entry guard who prisoner’s cleaning supplies spent days cell feces smeared walls); see Willey v. Kirkpatrick (2d Cir. 2015); DeSpain v. Uphoff , 965, 974–75 2001).
Furthermore, sufficiently alleged knew placement cell others aware conditions did nothing ameliorate them. So should excluded ‐ confinement allowing only claim proceed past stage. True, did expressly assert complaint violated Amendment. But should dismissed based upon plead legal theory, pleading inapt one, if afford some basis relief law. Johnson City Shelby S. Ct. (2014); Small Chao alleged defendants knew living feces month nothing, pleading stage, enough. respond even stated based their
deliberate indifference conditions, exhaust administrative remedies related claim. reply points deposition testimony 16 3141 8 sent the warden timely emergency grievance about the feces and before sued, warden returned grievance, saying presented no emergency because life not danger. When warden has an Illinois prisoner’s request to consider grievance on an emergency basis, has satisfied Illinois’s rules for exhausting emergency grievances. See Thornton v. Snyder , 428 F.3d 690, 694 (7th Cir. (citing I LL A DMIN . C ODE tit. 20, § 504.840, noting Illinois’s regulatory text lacks requirement an file new grievance learning will not considered on an emergency basis). There is evidence dispute testimony, see Pyles v. Nwaobasi , 829 F.3d 860, 869 (7th Cir. 2016), affirmative defense is unmistakable from complaint, see Walker v. Thompson , 288 F.3d 1005, 1009–10 (7th Cir. 2002). So we leave for district court decide whether exhausted administrative remedies, defense is raised. appeals denial leave amended warden, Director Corrections, Administrative Review Board member, contending each official became personally involved deprivation rights notified them unsanitary they failed help Liability § “depends on each defendant ʹ s knowledge actions, on knowledge actions persons they supervise.” Burks v. Raemisch , F.3d 592, (7th Cir. 2009). “A warden liable isolated subordinates carry out policies, however—unless subordinates are acting (or failing act) warden’s instructions.” Steidl v. Gramley (7th Cir. 1998). So survive motion dismiss, needed allege directly contributed injury simply vicariously liable actions inactions McLaughlin. But we are remanding case consideration district has yet addressed, need decide first instance whether can sufficiently plead basis liability those defendants.
Moving pleadings court’s decision enter summary claim, presented triable issue fact about whether punished engaging protected speech. To survive judgment, needed reasonable jury conclude (1) engaged activity protected First Amendment; (2) suffered deprivation likely deter activity future; (3) activity caused deprivation. Watkins Kasper 2010); Bridges Gilbert 9
Cobian argues he engaged protected speech when he told McLaughlin “if [he] didn’t take protective measures[,] [Cobian] would obligated get court injunction ordering take necessary measures,” after which McLaughlin wrote Cobian disciplinary report threatening Cobian was sentenced segregation. Cobian further asserts he made protected statements when told McLaughlin, through an intermediary correctional officer, end “bogus investigation” threat against cellmate, which Cobian was placed sordid segregation refused help him. statements cites basis not protected by First Amendment. First, Cobian’s threat go McLaughlin not do what was not protected. gave McLaughlin—a prison staff member—an ultimatum (i.e., “research my enemies update my I will sue you”), punishing attempt coerce McLaughlin was reasonably related legitimate penological interest promoting order obedience. See Bridges , F.3d at 551; see also Kervin Barnes , F.3d 2015) (“[B]acktalk by prison guards, like speech violates prison discipline, is constitutionally protected.”). Further, engage protected speech told through intermediary end “bogus” investigation. This demand was insubordinate, (and later did) raise concern less confrontational way filing grievance. See Kervin 835; Watkins at 797–99 (concluding prisoner’s protected because it was made unnecessarily confrontational manner inconsistent legitimate penological interests prison discipline order).
Even accepting argument punished simply because requested safety measures, assume activity, has offered requests caused deprivations complains about. At hearing disciplinary report, adjustment committee sentenced months’ segregation undisputed threat legal action McLaughlin. Because unprotected sole reason received segregation time, does matter denies report’s specific charges threatened cellmate telling “was going down” protecting Greene Doruff (noting violation occurs if, regardless retaliatory motive, punished violating legitimate rules). erroneously discounted affidavit another who said protection, has articulated basis overturning judge’s conclusion this statement was based on inmate’s personal knowledge. See F ED R. C IV . P. 56(c)(4); Ani Deng v. Jeffboat, LLC (7th Cir. 2015). further effort show causal connection between his speech
retaliation, attempts, unsuccessfully, dispute McLaughlin’s Steele’s attestations neither his segregation nor determined which place in. offers only his own affidavit which attested another correctional officer told “only way I going be was Lieutenant signed off on move.” At most this statement suggests Steele McLaughlin could have removed from filthy cell. Steele move him, if, as says, Steele replied, “you shouldn ʹ t threaten my Lieutenant,” only underscores defendants’ position believed threatened McLaughlin. If motivated Steele’s inaction face of complaint, then response speech, although knowingly leaving feces coated might implicate Amendment, discussed above. causation can inferred from timing his conversation placement dirty on its own one day between these events insufficient evidence establish genuine issue retaliation claim. See Tibbs Admin. Office Ill. Courts (concluding suspension immediately upon returning FMLA leave insufficient support evidence unlawful intent).
Finally, challenges judge’s denial additional time complete discovery (the only one survived screening), arguing should have accepted excuse missed discovery deadline unaware it. We cannot call judge’s rejection excuse abuse discretion. Further, will disturb court’s limitation extent discovery without showing actual substantial prejudice. Stevo Frasor has meaningfully explained how can salvaged sought defendants—logbooks movement between cells relevant period, copies policies regarding cleaning cells officers authority move between cells, materials related prior occupant dirty reason believe requested have led unlawful none these materials relate whether acted retaliatory motive.
Because allegations plausibly lead relief theory McLaughlin’s Steele’s actions related filthy violated Amendment, REVERSE dismissal REMAND further proceedings. all respects, AFFIRMED
[*] agreed decide case without oral argument briefs record adequately present legal arguments, oral argument significantly aid court. F ED R. A PP . P. 34(a)(2)(C).