Kenneth Daugherty v. Richard Harrington

In the

United States Court of Appeals

For the Seventh Circuit

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No. 17-3224

KENNETH JAMES DAUGHERTY,

Plaintiff-Appellant,

v.

RICHARD HARRINGTON AND KEVIN PAGE,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Illinois, East St. Louis Division.

No. 3:14-cv-00876 — Donald G. Wilkerson, Magistrate Judge.

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ARGUED SEPTEMBER 5, 2018 — DECIDED OCTOBER 12, 2018

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Before KANNE, SYKES, and ST. EVE, Circuit Judges.

ST. EVE, Circuit Judge. Kenneth James Daugherty, an Illi-

nois state prisoner, claims under 42 U.S.C. § 1983 that prison

officials Richard Harrington and Kevin Page conspired to and

did violate his First and Eighth Amendment rights while he

was incarcerated at the Menard Correctional Center. The dis-

trict court granted the defendants’ motion for summary judg-

ment in its entirety. We affirm in part and reverse in part.

2 No. 17-3224

I. BACKGROUND

Daugherty was incarcerated at Menard from 1999 to 2013.

During the relevant time period, Harrington was Menard’s

Assistant Warden of Operations responsible for security, and

Page was a Correctional Lieutenant. Harrington and Page fre-

quently made rounds to check on staff and the facility, and, in

doing so, sometimes spoke with inmates and took complaints.

They submitted any complaints about the facility to the

maintenance department, which reported directly to

Menard’s Warden.

Daugherty was housed in Menard’s North-1 cell house

from March to May 2012. He claims that the conditions of this

general-population unit were beset by clogged air ventilation,

rust, obstructed light, spiders, roaches, mice, filthy showers,

raw sewage in the sink, and refusals by prison staff to provide

cleaning supplies to combat these conditions. From the begin-

ning of his placement in the North-1 cell house, Daugherty

complained about the conditions he endured in formal griev-

ances and orally to correctional officers and other inmates.

According to Daugherty, in early May 2012, Page de-

manded that he stop voicing his concerns about prison condi-

tions and threatened Daugherty with segregation if he contin-

ued. Later that day, while he was drafting a grievance, Page

told him to stop writing grievances.

In mid-May 2012, Daugherty was in line returning from

the gym. Based on incendiary statements that Daugherty al-

legedly made while in line, Page removed him, and, with Har-

rington’s approval, placed Daugherty in segregation. Page

also issued Daugherty a disciplinary ticket, which formed the

No. 17-3224 3

basis of two prison-rule violations brought against Daugh-

erty.

Following the administrative adjudication of the rule vio-

lations, the adjustment committee found Daugherty guilty of

“insolence,” which resulted in reduced privileges and com-

missary restrictions, along with a month of disciplinary seg-

regation in the North-2 cell house. There, Daugherty experi-

enced similarly objectionable conditions, including hot tem-

peratures and no cold water. Daugherty complained about

the lack of cold water to Page, and also questioned Page about

why he drafted a false disciplinary ticket, to which Page re-

sponded that “things could get much worse.” Shortly there-

after, officials transferred Daugherty to a segregation cell with

a steel door (rather than bars), a move typically reserved for

inmates of a higher security risk than Daugherty. Neither

Harrington nor Page has an independent recollection of

Daugherty, the incident, or his complaints.

On June 26, 2014, Daugherty sued Harrington, Page, and

others under 42 U.S.C. § 1983. After initially screening Daugh-

erty’s pro se complaint, the district court dismissed it under 28

U.S.C. § 1915A. Daugherty then filed an amended complaint.

Three claims against Harrington and Page ultimately pro-

ceeded to summary judgment, including a First Amendment

retaliation claim based on Daugherty’s prison condition com-

plaints, an Eighth Amendment conditions of confinement

claim, and a constitutional conspiracy claim. The district court

granted the defendants’ motion for summary judgment in its

entirety and further concluded that qualified immunity

shielded them from liability.

4 No. 17-3224

II. DISCUSSION

We review the district court’s grant of summary judgment

de novo and construe all facts and reasonable inferences in fa-

vor of Daugherty, the nonmoving party. Wilson v. Adams, 901

F.3d 816, 820 (7th Cir. 2018). Under Rule 56, summary judg-

ment is appropriate “if the movant shows that there is no gen-

uine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(a). A genu-

ine dispute as to any material fact exists if “the evidence is

such that a reasonable jury could return a verdict for the non-

moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

A.

We first consider Daugherty’s argument that the district

court erred in granting summary judgment for Harrington

and Page on his claim that they retaliated against him because

he complained about the conditions of his confinement in vi-

olation of the First Amendment.

To prevail on a First Amendment retaliation claim,

Daugherty must show: (1) he engaged in protected activity;

(2) he suffered a deprivation likely to deter future protected

activity; and (3) his protected activity was a motivating factor

in the defendants’ decision to retaliate. Perez v. Fenoglio, 792

F.3d 768, 783 (7th Cir. 2015). Under the first element, the filing

of a prison grievance is a constitutionally protected activity

supporting a First Amendment retaliation claim, see id., as are

oral complaints about prison conditions. Pearson v. Welborn,

471 F.3d 732, 740 (7th Cir. 2006).

On appeal, Page concedes that the district court erred in

granting summary judgment in his favor as to Daugherty’s

No. 17-3224 5

First Amendment retaliation claim. We accept this concession

and limit our discussion to whether Harrington retaliated

against Daugherty for the protected activity of filing prison

grievances and making oral complaints concerning the condi-

tions of his confinement. 1

Daugherty bases his retaliation claim on the May 2012 dis-

ciplinary ticket, which led to his segregation. Harrington’s

only involvement with the disciplinary ticket was Page’s re-

quest for permission to place Daugherty in segregation imme-

diately after the incident. Although Harrington may have wit-

nessed the incident, Daugherty has failed to identify any evi-

dence suggesting that Harrington’s conduct in relation to the

incident and disciplinary ticket was motivated by a desire to

chill Daugherty’s speech or otherwise dissuade him from

complaining about the conditions of his confinement.

The only evidence Daugherty points to is vague and con-

fusing testimony that Daugherty, at some point, named Har-

rington in a grievance, but there is no evidence about what

the grievance said or whether Harrington even saw or knew

about it. Likewise, Daugherty’s conclusory statement that “I

have been basically warned” to stop writing grievances does

not raise a reasonable inference that Harrington made any

such statement, especially because Daugherty admits that he

never spoke to Harrington about his concerns regarding the

conditions of his confinement.

1 In conceding that the district court erred in granting summary judg-

ment in his favor on Daugherty’s First Amendment retaliation claim, Page

implicitly concedes that the court erred in granting him qualified immun-

ity on that claim. So, to be clear, in accepting Page’s concession, we neces-

sarily and additionally reverse the district court’s grant of qualified im-

munity as to Page on Daugherty’s First Amendment retaliation claim.

6 No. 17-3224

Nonetheless, Daugherty asserts that a jury could impute

Page’s retaliatory motive to Harrington. Daugherty has

waived this argument because he presents it for the first time

in his reply brief. E.g., United States ex rel. Berkowitz v. Automa-

tion Aids, Inc., 896 F.3d 834, 843 (7th Cir. 2018).

Viewing the record and all reasonable inferences in

Daugherty’s favor, no reasonable jury could conclude that his

grievances and complaints about the conditions of his con-

finement were a motivating factor in—or even factored into—

Harrington’s approval of placing him in segregation after the

May 2012 incident.

B.

Daugherty also challenges the district court’s grant of

summary judgment on his claim that Harrington and Page

subjected him to unconstitutional conditions of confinement

in violation of the Eighth Amendment. Inmates have the right

to “humane conditions of confinement,” and “prison officials

must ensure that inmates receive adequate food, clothing,

shelter, and medical care, and must ‘take reasonable measures

to guarantee the safety of the inmates.’” Farmer v. Brennan, 511

U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517,

526–27 (1984)). An Eighth Amendment violation has both an

objective and subjective component. “First, the deprivation al-

leged must be objectively, sufficiently serious. Second, the

mental state of the prison official must have been one of de-

liberate indifference to inmate health and safety.” Haywood v.

Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016) (per curiam).

Here, even if Daugherty could satisfy the objective ele-

ment of his claim, he cannot satisfy the subjective element—

deliberate indifference—as to either defendant. Simply put,

No. 17-3224 7

no reasonable jury could find that either defendant was delib-

erately indifferent to Daugherty’s alleged plight.

Under the subjective component, Daugherty must present

evidence raising a triable issue of fact that Page and Harring-

ton knew of and consciously disregarded an excessive risk to

his health and safety. See Cesal v. Moats, 851 F.3d 714, 722 (7th

Cir. 2017). Daugherty identifies no evidence suggesting either

defendant knew of and disregarded any excessive risk to his

health or safety insofar as it relates to the conditions of his

confinement. Daugherty never complained to Harrington,

and in fact shied away from talking to him, and Daugherty’s

contention that Page told him to stop complaining about the

conditions of his confinement, without more, is too vague to

meet the deliberate indifference standard under the circum-

stances. Moreover, it is undisputed that standard procedure

at Menard was for staff to refer any inmate complaints about

the facility to the maintenance department, which reported to

Menard’s Warden. There is likewise no genuine factual dis-

pute that Page, as he explained, would routinely attempt to

resolve maintenance issues by submitting work orders or tak-

ing other remedial measures like providing supplies or direct-

ing inmate workers to attend to issues.

More fundamentally, although Harrington and Page may

have made rounds through the prison and talked to inmates

about their complaints, there is no evidence that either of

them was specifically aware of the particular conditions form-

ing the basis of Daugherty’s Eighth Amendment claim. As

such, Daugherty’s conclusory assertions that the defendants

“did nothing” cannot create a genuine issue of material fact,

particularly without any evidence about what either defend-

ant may have done or not done. “Summary judgment is not a

8 No. 17-3224

time to be coy: ‘[c]onclusory statements not grounded in spe-

cific facts’ are not enough.” Sommerfield v. City of Chicago, 863

F.3d 645, 649 (7th Cir. 2017) (quoting Bordelon v. Bd. of Educ. of

the City of Chicago, 811 F.3d 984, 989 (7th Cir. 2016)).

Construing the record in the light most favorable to

Daugherty, no reasonable jury could find that Harrington or

Page acted with deliberate indifference towards Daugherty or

otherwise disregarded or failed to act on knowledge of a sub-

stantial risk to Daugherty’s health and safety.

C.

Daugherty additionally attacks the district court’s grant of

summary judgment on his claim that Harrington and Page

conspired to violate his First and Eighth Amendment rights.

To prevail on a conspiracy claim, “the plaintiff must show

that (1) the individuals reached an agreement to deprive him

of his constitutional rights, and (2) overt acts in furtherance

actually deprived him of those rights.” Beaman v. Freesmeyer,

776 F.3d 500, 510 (7th Cir. 2015). Put differently, Daugherty

must “show an underlying constitutional violation” and

“demonstrate that the defendants agreed to inflict the consti-

tutional harm.” Hurt v. Wise, 880 F.3d 831, 842 (7th Cir. 2018).

“Because conspiracies are often carried out clandestinely and

direct evidence is rarely available, plaintiffs can use circum-

stantial evidence to establish a conspiracy, but such evidence

cannot be speculative.” Beaman, 776 F.3d at 511.

Even if, as Daugherty contends, Harrington and Page

knew that he never made the remarks alleged in the discipli-

nary report, these facts do not support the existence of an

agreement between them to violate Daugherty’s constitu-

tional rights. See Owens v. Evans, 878 F.3d 559, 565 (7th Cir.

No. 17-3224 9

2017) (affirming summary judgment for defendant on § 1983

conspiracy claim, where prisoner “did not adduce evidence”

that officials “agreed expressly or tacitly to interfere with his

pursuit of grievances and lawsuits”). Daugherty’s assertion

that Harrington and Page actively and jointly concealed the

truth that he did not make incendiary remarks is based on

mere speculation. In sum, Daugherty has failed to identify

any evidence, circumstantial or otherwise, of an agreement to

deprive him of his constitutional rights.

III. CONCLUSION

We therefore AFFIRM in part and REVERSE and

REMAND in part for further proceedings consistent with this

opinion.