Elijah Manuel v. Nick Nalley

                              In the

    United States Court of Appeals
                For the Seventh Circuit
No. 18-3380

ELIJAH MANUEL,
                                                Plaintiff-Appellant,

                                v.


NICK NALLEY, et al.,
                                             Defendants-Appellees.


        Appeal from the United States District Court for the
                    Southern District of Illinois.
       No. 3:15-cv-00783-SMY-RJD — Staci M. Yandle, Judge.



    ARGUED FEBRUARY 20, 2020 — DECIDED JULY 20, 2020


   Before BAUER, EASTERBROOK, and MANION, Circuit Judges.
    BAUER, Circuit Judge. Elijah Manuel sued prison personnel
under 

, claiming First Amendment violation
when his cell was searched following a disagreement over a
grievance procedure. The district court allowed Manuel to
proceed on these claims, eventually granting summary
2                                                 No. 18-3380

judgment in favor of the prison personnel. For the following
reasons, we affirm.
                     I. BACKGROUND
    While serving his prison sentence, Manuel assisted his
disabled cellmate. The cellmate requested a change of rooms
and became hostile toward Manuel. Manuel reported this but
no action was taken. The cellmate soon thereafter beat Manuel
into unconsciousness with his wheelchair’s foot.
    Officer Nick Nalley investigated the attack. Manuel
submitted a grievance to Counselor Cindy Miller, alleging that
the prison failed to protect him from a known and foreseeable
attack. Manuel filed several more grievances and requested
status updates from Miller. Miller failed to respond. Manuel
filed a civil complaint against the warden and others.
    Later, an inmate informed prison personnel that Manuel
approached him and another inmate and asked them to file
fraudulent petition paperwork regarding the altercation with
the disabled cellmate. Neither of the men approached were
present for the altercation nor had personal knowledge of the
incident and refused to participate in the petition. The prison
filed an incident report and shakedown slip.
    About two weeks later, Manuel again sought a status
update concerning his grievances from Miller. They disagreed
on the amount of time necessary to respond. The conversation
ended when Miller asked Manuel if he was going to file a
grievance against her, to which he responded “maybe.” Nine
minutes later, Nalley searched Manuel’s cell following the
shakedown slip and confiscated a handwritten note describing
No. 18-3380                                                   3

trading and trafficking, two forged handwritten letters
describing the incident with the disabled cellmate, two typed
letters addressed to the court, and a contraband cassette tape.
The prison Adjustment Committee held a hearing, finding
Manuel guilty of forging documents and possessing contra-
band.
    The district court parsed through Manuel’s complaint and
extracted three legal claims: a First Amendment retaliation
claim against Miller and Nalley, a claim to invoke prosecution
of the cellmate who assaulted Manuel, and a claim of harass-
ment by unidentified prison employees. The court dismissed
the second and third claims and allowed the first to proceed.
Manuel amended his complaint to include a constitutional
violation against other prison personnel for Eighth and
Fourteenth Amendment violations. The district court dis-
missed the additional claims with prejudice and granted Miller
and Nalley’s motion for summary judgment.
                      II. DISCUSSION
    We review the district court’s grant of summary judgment
de novo in the light most favorable to the non-movant. Castetter
v. Dolgencorp, LLC, 

 (7th Cir. 2020). Summary
judgment may be granted only if there is “no genuine dispute
as to any material fact and the movant is entitled to summary
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
   A prison official may not retaliate against an inmate
because he filed grievances under the First Amendment.
Antoine v. Ramos, 

 (7th Cir. 2012). First
Amendment retaliation cases require the petitioner to show
that the speech or activity was constitutionally protected, a
4                                                     No. 18-3380

deprivation occurred to deter the protected speech or activity,
and the speech or activity was at least a motivating factor in
the decision to take retaliatory action. Kidwell v. Eisenhauer, 

 (7th Cir. 2012). The ‘motivating factor’ amounts
to a causal link between the activity and the unlawful retalia-
tion. 

. “Circumstantial evidence may include suspi-
cious timing, ambiguous statements, behavior, or comments
directed at other[s] … in the protected group.” Long v. Teachers’
Ret. Sys. of Ill., 

 (7th Cir. 2009). Once a prima
facie case is established, the burden shifts to the defendant to
rebut the claim, that the activity would have occurred regard-
less of the protected activity. Kidwell, 

. Once
established, the petitioner must demonstrate the proffered
reason is pretextual or dishonest. 

.
    The parties agree that Manuel was engaged in activity
protected by the First Amendment when he filed grievances
and a deprivation in the form of a shakedown occurred that
would likely deter future activity. However, the parties
disagree that the protected activity was a motivating factor in
the decision to take retaliatory action. Manuel claims the
timing of his heated conversation with Miller occurring only
minutes before Nalley came to Manuel’s cell for a shakedown
is enough circumstantial evidence to show Nalley’s conduct
was “at least a motivating factor.”
    Suspicious timing alone will rarely be sufficient to create a
triable issue because “[s]uspicious timing may be just
that—suspicious—and a suspicion is not enough to get past a
motion for summary judgment.” Loudermilk v. Best Pallet Co.,

 (7th Cir. 2011).
No. 18-3380                                                 5

    The proximity between Manuel and Miller’s conversation
and the shakedown does not create an inference that Nalley
knew of the protected activity. Other, non-retaliatory motive
for the shakedown exists here. Nalley conducted the search
based on contraband in the disciplinary report filed two weeks
earlier that was found in his cell.
   In order to succeed, Manuel needed to furnish evidence
that would allow a reasonable jury to find that his protected
speech was at least a motivating factor for Nalley’s response.
The suspicious timing of the shakedown shortly after the
conversation with Miller is not enough to prove that Nalley
was motivated by the protected activity and the shakedown
was retaliation. Manuel fails to establish a prima facie case.
    Manuel presents no evidence that a reasonable jury could
infer Nalley searched his cell due to a retaliatory motive.
Therefore, he fails to establish a prima facie case of First
Amendment retaliation.
                    III. CONCLUSION
  We AFFIRM the district court’s grant of summary judg-
ment in favor of Officer Nalley and Counselor Miller.