Robert Holleman v. Dushan Zatecky

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-1326

ROBERT LEE HOLLEMAN,

Plaintiff-Appellant,

v.

DUSHAN ZATECKY, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 2:16-cv-00305 — James R. Sweeney, II, Judge.

____________________

ARGUED NOVEMBER 6, 2019 — DECIDED MARCH 6, 2020

____________________

Before EASTERBROOK, MANION, and BARRETT, Circuit

Judges.

MANION, Circuit Judge. Robert Holleman is the quintessen-

tial jailhouse lawyer, and he has achieved notable success in

that role. Through prior lawsuits he has been awarded thou-

sands of dollars in damages. In late 2015, in response to Hol-

leman’s multitudinous lawsuits, grievances, and an interview

he provided to a local newspaper, the superintendent of

Pendleton Correctional Facility transferred Holleman to

2 No. 19-1326

another prison. The question for us today is whether that

transfer violated Holleman’s clearly established right to be

free from retaliation for protected First Amendment activity,

such that his suit can overcome qualified immunity. We hold

it did not.

I. Background

Holleman was a prisoner at Pendleton Correctional Facil-

ity near Anderson, Indiana, from 2012 until November 2015.

He alleges he had approximately seven hours of access to the

law library weekly and was housed alone rather than sharing

space with a cellmate. He also worked as a law clerk for a time

while at Pendleton, helping other prisoners file lawsuits and

pursue legal remedies. He was highly effective in this role. He

has also pursued litigation of his own over the years, gener-

ally claiming constitutionally inadequate conditions of con-

finement. Some of his lawsuits have been successful and at

least one resulted in a substantial monetary award.

Holleman recounts a troubled history between himself

and the officials at Pendleton—specifically Dushan Zatecky,

the superintendent at Pendleton. Holleman alleges multiple

instances of retaliation against him spearheaded by Zatecky,

including being terminated from his law clerk position, re-

moved from preferential housing, placed in segregation, and

subjected to a sham investigation. None of these alleged in-

stances of retaliation forms the basis of the current retaliation

suit, but Holleman contends this history is necessary context

for his current claim.

Regarding the current lawsuit, the Defendants concede

Holleman engaged in protected First Amendment activity on

three separate occasions in 2015. The first occurred in March

No. 19-1326 3

when Holleman filed a lawsuit against the Defendants and

others due to cold conditions at Pendleton. Next, on October

11, Holleman contributed statements to a local newspaper for

an article about allegedly poor medical care provided to in-

mates at Pendleton. Finally, on October 14, Holleman filed a

grievance alleging the nutritional value of the lunches pro-

vided at Pendleton was inadequate.

Apparently Zatecky had heard enough from Holleman at

this point. On the same day Holleman filed his grievance

about the lunch program, Zatecky sent an email to Defendant

Dick Brown, the superintendent at Wabash Valley Correc-

tional Facility, 1 asking if Brown would be willing to transfer

a prisoner to Pendleton in exchange for Holleman. According

to Zatecky’s own admission, the reason for the transfer was

because

Holleman had written letters to various entities

complaining of the conditions at Pendleton Cor-

rectional Facility. With the multitude of com-

plaints and grievances it became apparent, due

to the age of the facility, 2 the only viable solu-

tion was to transfer Offender Holleman to a

more modern facility.3

1 Wabash Valley is located 30 miles south of Terra Haute, Indiana, and

is over 100 miles southwest of Pendleton.

2 Pendleton was built circa 1922; Wabash Valley was built circa 1990.

At least two cell houses at Pendleton, however, were rebuilt after 1996.

3 (Appendix of Plaintiff-Appellant at 31.)

4 No. 19-1326

Zatecky claims to have believed Holleman would benefit

from a change of scenery and that the transfer would be in

Holleman’s best interest.

Brown agreed to transfer a prisoner from Wabash Valley

to Pendleton in exchange for Holleman. After being approved

by Defendant Michael Osburn, the Indiana Department of

Correction (“IDOC”) Regional Director, the transfer was com-

pleted and Holleman was transported to Wabash Valley on

November 20, 2015.

Both Pendleton and Wabash Valley are maximum-security

facilities. Holleman was housed in the general population at

both prisons and subject to a similar level of restriction at

both. Even so, Holleman alleges four adverse consequences of

his transfer. First, he claims he witnessed more violence at

Wabash Valley than at Pendleton, though he alleges only 25

percent of incidents of violence are reported at Wabash Valley,

because the inmates fear retribution from the offenders for

“snitching.” Holleman claims to have been the victim of vio-

lence himself from his new cellmate at Wabash Valley, leaving

him with a scar and bruises; however, he did not report this

incident. Second, he claims he only had access to the law li-

brary at Wabash Valley for four hours per week, as opposed

to the seven hours per week he enjoyed at Pendleton. Third,

Holleman was housed with a cellmate at Wabash Valley,

whereas at Pendleton he had an individual cell. Finally, Hol-

leman alleges that even in the absence of any worsened con-

ditions, a transfer from one prison to another is adverse in and

of itself because it disrupts the prisoner’s lifestyle and re-

moves him from his accustomed home.

Soon after he arrived at Wabash Valley, Holleman sent a

letter to Superintendent Brown. In this letter, he complained

No. 19-1326 5

about the retaliatory nature of the transfer and indicated his

intention to file this lawsuit. He also described a laundry list

of conditions at Wabash Valley that he contended were viola-

tions of the inmates’ constitutional rights. He said he intended

to continue sending letters to newspapers and filing lawsuits

at Wabash Valley. He concluded: “I hope that you enjoy my

stay here at Wabash as much as I do. I am looking forward to

all of the fun times/memories.” Despite sending this letter,

Holleman ultimately did not file any more grievances or law-

suits while at Wabash Valley (other than initiating this suit).

Viewing the evidence in the light most favorable to Hol-

leman, the district court concluded Holleman had engaged in

protected speech and his protected speech had been “a moti-

vating factor in Defendants’ decision to take steps to transfer

him.” Holleman v. Zatecky, 2019 WL 285333, at *4 (S.D. Ind. Jan.

18, 2019). However, citing the broad deference owed to prison

officials when making administrative decisions and respond-

ing to grievances, the district court held “[i]t was not clearly

established that transferring Holleman from a facility that he

persistently complained about to another facility with the

same security level would violate Holleman’s constitutional

rights.” Id. at *5. The court noted there were no Supreme

Court or Seventh Circuit cases establishing “the right to re-

main placed in a particular prison or housing unit after com-

plaining that the conditions in that prison violate your consti-

tutional rights.” Id. Accordingly, the court granted summary

judgment in favor of the Defendants. Holleman appeals.

II. Discussion

We review a district court’s summary judgment decision

based on qualified immunity de novo. Estate of Clark v. Walker,

865 F.3d 544, 549 (7th Cir. 2017). Qualified immunity is an

6 No. 19-1326

affirmative defense, but once it is raised the burden shifts to

the plaintiff to defeat it. Sparing v. Vill. of Olympia Fields, 266

F.3d 684, 688 (7th Cir. 2001). To overcome qualified immunity,

the facts viewed in the light most favorable to Holleman must

“show that the defendant[s] violated a constitutional right”

and that “the right was clearly established at [that] time.” Es-

tate of Clark, 865 F.3d at 550.

Holleman asserts his transfer to Wabash Valley violated

his First Amendment right to speak to the media and access

the courts without facing retaliation. He argues the district

court erred by focusing on the lack of precedent establishing

a right to a particular prison placement. Holleman has a

strong argument here; after all, the First Amendment protects

against retaliation even if the retaliatory action itself does not

amount to an independent constitutional violation. In Babcock

v. White, 102 F.3d 267, 275 (7th Cir. 1996), we held that a pris-

oner alleging a retaliatory transfer “need not establish an in-

dependent constitutional interest in either assignment to a

given prison or placement in a single cell, because the crux of

his claim is that state officials violated his First Amendment

rights by retaliating against him for his protected speech ac-

tivities.” Furthermore, “[c]onduct that does not inde-

pendently violate the Constitution can form the basis for a re-

taliation claim, if that conduct is done with an improper, re-

taliatory motive.” Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir.

2005). Thus, the fact that a prisoner does not have a constitu-

tional right to a particular prison placement does not doom

Holleman’s case. If the transfer was indeed retaliatory, then

the violation of Holleman’s First Amendment right is suffi-

cient to satisfy this first prong of our qualified immunity anal-

ysis. We turn, therefore, to the question of whether the evi-

dence viewed in the light most favorable to Holleman can

No. 19-1326 7

support a finding that the transfer constituted First Amend-

ment retaliation.

To prevail on a First Amendment retaliation claim, a plain-

tiff must establish three elements. First, he must show he en-

gaged in protected First Amendment activity. Second, he

must show an adverse action was taken against him. Third,

he must show his protected conduct was at least a motivating

factor of the adverse action. Bridges v. Gilbert, 557 F.3d 541, 546

(7th Cir. 2009).

The Defendants concede Holleman engaged in protected

activity by speaking to the media, filing complaints, and initi-

ating lawsuits. This concession is prudent, since we have held

that inmates have a right under the First Amendment “to seek

administrative or judicial remedies of conditions of confine-

ment.” Babcock, 102 F.3d at 276. Thus, the protected activity

element is met. That leaves two elements for our considera-

tion: whether his protected conduct was at least a motivating

factor in the decision to transfer him, and whether that trans-

fer was adverse.

1. Transfer Motivated by Protected Conduct

Holleman contends Zatecky’s admissions reveal the trans-

fer was motivated by his protected conduct. Indeed, the dis-

trict court also concluded “the evidence taken in the light

most favorable to Holleman … reflects that his First Amend-

ment activities were a motivating factor in Defendants’ deci-

sion to take steps to transfer him.” Holleman, 2019 WL 285333,

at *4. Even the Defendants do not contest the causation ele-

ment with respect to Zatecky, stating simply “Holleman may

8 No. 19-1326

have had enough evidence to proceed on the [protected activ-

ity and causation] elements” against Zatecky. 4

We are not convinced that the causation element should

be so easily brushed aside, however. It is true: Zatecky plainly

stated the reason for the transfer was Holleman’s multiple

grievances, complaints, and letters. Thus, it can be said that

the transfer was caused by Holleman’s protected activity. But,

as the Eighth Circuit has recognized, there is a difference be-

tween a transfer “motivated by the fact that the inmate sued”

and one motivated by “the nature of the dispute underlying

the lawsuit,” even though both would be directly caused by

the prisoner’s protected activity. Sisneros v. Nix, 95 F.3d 749,

752 (8th Cir. 1996); see also Ward v. Dyke, 58 F.3d 271, 272, 275

(6th Cir. 1995) (holding a lateral transfer to another prison

purposed to “give [the prisoner] a fresh start” and relieve the

prison staff from dealing with the prisoner’s excessive griev-

ances was not retaliatory). In other words, a transfer initiated

to punish a prisoner for engaging in protected activity would

satisfy the causation element of retaliation, but a transfer ini-

tiated as a rational, justifiable response to the substance of the

prisoner’s complaint would not.

Sisneros is instructive. In that case, the plaintiff prisoner

filed numerous grievances and lawsuits following his transfer

from a prison in Arizona to one in Iowa. His grievances fo-

cused primarily on the Iowa prison’s failure to accommodate

his language and religious needs. After he filed his grievances

and commenced litigation against the prison, he was trans-

ferred back to the Arizona prison, which apparently was

4(Br. of Appellee at 11.) The Defendants contend, however, that the

evidence fails to establish causation for all other Defendants. (Id. at 23.)

No. 19-1326 9

willing to accommodate his language and religious needs.

The plaintiff filed suit claiming that second transfer, indisput-

ably a result of his grievances and lawsuits, was retaliatory.

The Eighth Circuit rejected that argument. The transfer “was

motivated by rational penological concerns” (i.e., the fact that

the transfer could remedy the issues of which he complained),

“not by the fact that he had filed two lawsuits.” Id. at 752–53.

It was not the prisoner’s engagement in protected activity that

motivated his transfer; rather, the transfer was in response to

the substance of his complaints and motivated by the possi-

bility of remedying those complaints by returning him to Ar-

izona.

We agree with the Eighth Circuit’s reasoning. Establishing

the causation element of retaliation requires a showing that

the fact of the plaintiff’s engagement in protected activity was

a motivating factor of the alleged adverse action, not merely

that the substance of the plaintiff’s complaint motivated a re-

sponse the plaintiff did not particularly like. To hold other-

wise would absurdly result in requiring prison officials to re-

spond to every grievance by enacting the prisoner’s preferred

solution, rather than allowing officials to exercise their own

judgment. Holleman must show a reasonable factfinder could

conclude his transfer was motivated by the fact that he en-

gaged in protected activity, and not merely motivated by the

substance of his complaint.

Holleman argues the contentious history between himself

and the officials at Pendleton (principally Zatecky) demon-

strates his transfer was motivated by a desire to exact revenge

rather than a rational response calculated to remedy his griev-

ances. According to Holleman, Zatecky’s justification for the

transfer—that a change of scenery and newer facility would

10 No. 19-1326

benefit Holleman—was pretextual. To prove this justification

was pretextual, he argues that the transfer to Wabash Valley

could not have remedied his complaints about Pendleton: he

complained about the inadequacies of medical care at Pend-

leton, but the IDOC uses a single medical care provider across

all its facilities. Therefore, in Holleman’s view, a move to Wa-

bash Valley could not improve this condition, so Zatecky’s

justification for the transfer was pretextual on its face.

This pretext argument, however, falls short of supporting

a finding that the transfer was based on a retaliatory motive.

The fact that the same medical provider is responsible for

medical care at both facilities does not mean there could be no

improvement in care at a different facility over 100 miles

away, presumably with different medical personnel on staff.5

Although it was Holleman’s opinion that the source of his

problems was the medical provider and that a transfer would

not help matters, the Defendants were entitled to disagree.

Furthermore, Holleman had also complained about cold con-

ditions and the lunch program at Pendleton—he offers no ev-

idence or argument that those conditions could not be im-

proved by a transfer to the newer Wabash Valley facility.

For these reasons, Holleman’s arguments fail to overcome

the significant deference owed to the Defendant’s non-retali-

atory justification for the transfer. We have recognized the Su-

preme Court’s express “disapproval of excessive judicial in-

volvement in day-to-day prison management,” Babcock, 102

5 Holleman only alleges that the same medical provider operates at all

IDOC facilities: he does not allege or provide evidence that both facilities

are served by the same medical personnel. We also note the vast distance

between the two facilities makes it likely that each has a separate staff.

No. 19-1326 11

F.3d at 275 (quoting Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.

1995)), which “often squander[s] judicial resources with little

offsetting benefit to anyone,” Sandin v. Connor, 515 U.S. 472,

482 (1995). Accordingly, we owe deference to prison officials’

decisions when responding to grievances and maintaining or-

der in a volatile environment, and to the justifications offered

for those decisions. Bell v. Wolfish, 441 U.S. 520, 547 (1979)

(“[T]he problems that arise in the day-to-day operation of a

corrections facility are not susceptible of easy solutions.

Prison administrators therefore should be accorded wide-

ranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional se-

curity.”); Babcock, 102 F.3d at 275 (“We should afford appro-

priate deference and flexibility to prison officials in the evalu-

ation of proffered legitimate penological reasons for conduct

alleged to be retaliatory.”) (quoting Pratt, 65 F.3d at 807) (in-

ternal quotation marks omitted). We are not super-wardens

who sit to critique the efficacy or wisdom of prison manage-

ment choices.

Holleman complained about several inadequate condi-

tions at Pendleton, and the Defendants responded by trans-

ferring him to Wabash Valley. Even taking the facts in the light

most favorable to Holleman, they do not support a finding

that the transfer was motivated by the fact that he engaged in

protected activity rather than the substance of his complaints.

This alone is enough to doom his claim because it means he

cannot establish the causation element of retaliation.

12 No. 19-1326

2. Adverse Action

Independent of whether his engagement in protected ac-

tivity motivated the transfer, Holleman’s claim also fails to es-

tablish the transfer was adverse.

The standard for determining whether an action is suffi-

ciently adverse to constitute retaliation is well established: it

must be “likely [to] deter a person of ordinary firmness from

continuing to engage in protected activity.” Surita v. Hyde, 665

F.3d 860, 878 (7th Cir. 2011). This is an objective standard; it

does not hinge on the personal experience of the plaintiff. Fur-

thermore, the harsh realities of a prison environment affect

our consideration of what actions are sufficiently adverse.

“Prisoners may be required to tolerate more than public em-

ployees, who may be required to tolerate more than average

citizens, before an action taken against them is considered ad-

verse.” Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999).

In Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996), we

stated “[i]f a prisoner is transferred for exercising his own

right of access to the courts, or for assisting others in exercis-

ing their right of access to the courts, he has a claim under

§ 1983.” Common sense, however, tells us this statement can-

not support a blanket rule that any transfer motivated by the

plaintiff’s First Amendment activity is sufficiently adverse to

constitute retaliation. A transfer that objectively improves the

prisoner’s condition, for example, would not deter a person

of ordinary firmness from engaging in protected activity. Our

question today is whether the transfer in this case—from one

maximum-security facility to another maximum-security fa-

cility—was sufficiently adverse. We must look further than

the quoted statement from Higgason to answer it.

No. 19-1326 13

A brief examination of other cases in which a transfer de-

cision was held to be retaliatory demonstrates why Hol-

leman’s transfer does not rise to that level. In Babcock v. White,

we held a transfer decision made with a retaliatory motive

could be a violation of the prisoner’s First Amendment right

even if the transfer decision itself did not independently vio-

late the Constitution. 102 F.3d at 275. However, that case in-

volved a retaliatory decision to delay transferring the plaintiff

out of a life-threatening housing situation where he was ex-

posed to members of a group who had sworn to kill him. Id.

at 268–70. In Higgason, the plaintiff alleged he was transferred

out of the prison’s general population into a segregated hous-

ing unit which placed significantly more restrictions on his

freedom. 83 F.3d at 808-09. And in Buise v. Hudkins, we held a

prisoner’s transfer from a minimum-security facility to a max-

imum-security facility could amount to retaliation. 584 F.2d

223, 226, 229–30 (7th Cir. 1978), abrogated in part on other

grounds by Abdul-Wadood v. Duckworth, 860 F.2d 280, 285 (7th

Cir. 1988). These cases all present serious changes of circum-

stance that would likely deter a person of ordinary firmness

from continuing to engage in protected activity.

By contrast, Holleman was transferred from the general

population of one maximum-security facility to the general

population of another maximum-security facility. The De-

fendants did not transfer him into, or delay transferring him

out of, a life-threatening situation. Holleman alleges no in-

crease in restrictions imposed on him at Wabash Valley, other

than minor differences in the policies and conditions of the

facilities. The changes in circumstance he does allege—less

law library time, being made to share a cell, and having to

witness more violence—do not transform the transfer into an

adverse action because there is no evidence the Defendants

14 No. 19-1326

knew the transfer would result in these incidental changed

conditions. Regarding increased violence, Holleman alleges

only 25 percent of the violence at Wabash Valley is reported.

He also provides no evidence of the amount or kind of re-

ported violence at Pendleton for us to be able to compare the

two.

Besides those changed conditions, Holeman presents one

other argument. Although a prisoner does not have a consti-

tutionally protected interest in his assignment to a particular

prison, Meachum v. Fano, 427 U.S. 215, 225 (1976), Holleman

asserts he nevertheless suffered a severe deprivation when he

was moved from his “home” at Pendleton to Wabash Valley.

He argues such a move upsets a prisoner’s accustomed life-

style and deprives him of human connections, job stability,

and a familiar environment. That is undoubtedly all true.

However, as we have said, prisoners are subjected to

harsher conditions and environments than ordinary citizens.

No prison is an ideal home, and it is unlikely to be a home of

anyone’s choice. See Giles v. Godinez, 914 F.3d 1040, 1054 (7th

Cir. 2019) (“Prison is, by its very nature, an unpleasant place

to be.”). The difficulty of living under the strict regimen of a

prison includes by definition a loss of choice in one’s home.

See Meachum, 427 U.S. at 224. Thus, the disruption inherent in

a transfer to a different facility does not by itself make the

transfer adverse. Without some additional aggravating factor,

such as relocation to a much more restrictive or dangerous

environment, a transfer is not likely to deter a person of ordi-

nary firmness from continuing to engage in protected con-

duct.

Because Holleman has failed to meet his burden of proof

to show the transfer was motivated by his engagement in

No. 19-1326 15

protected activity and sufficiently adverse, we hold his First

Amendment right to be free from retaliation was not violated.

Since his right was not violated, there is no need to analyze

whether it was clearly established.

III. Conclusion

Holleman lodged multiple and continued grievances and

spoke out to the media regarding conditions at Pendleton. He

likely desired the Defendants to respond by adjusting those

conditions, or perhaps he hoped for another monetary award

in court. Instead, the Defendants responded by moving him

to a different prison. Although it was not the response Hol-

leman sought, it was not retaliation either. Accordingly, we

AFFIRM the decision of the district court.