UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 26, 2006*
Decided June 23, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-2773
AUSTIN C. SZYMANKIEWICZ, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin
v.
No. 04-C-186-C
DENICE DOYING,
Defendant-Appellee. Barbara B. Crabb,
Chief Judge.
ORDER
Austin Szymankiewicz, an inmate in the Wisconsin prison system, brought
suit under 42 U.S.C. § 1983 claiming that prison employees retaliated against him
in violation of the First and Fourteenth Amendments because he filed inmate
complaints against several of them. He also asserted several state-law claims over
which the district court exercised supplemental jurisdiction. The district court
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-2773 Page 2
granted summary judgment for the defendants on the state claims and all but one
of the federal claims. The remaining claim against guard Denice Doying was tried
to a jury, but the district court granted Doying’s motion for a judgment as a matter
of law. We affirm the judgment.
For the most part, the facts are undisputed. Szymankiewicz was confined at
the Kettle Moraine Correctional Institution in Plymouth, Wisconsin, where since
2001 he worked as a clerk in the prison law library. In 2003, Szymankiewicz filed
an inmate complaint alleging that defendant Conrad Reedy, the prison librarian,
was permitting inmates without court deadlines to use the law library in the
evenings in violation of prison policy. The complaint was dismissed as lacking
merit. Several weeks later, Szymankiewicz filed another inmate complaint alleging
that defendant Hayley Hermann, an inmate complaint examiner, violated policy by
divulging to Reedy that Szymankiewicz was the complainant against him. That
complaint also was dismissed as unfounded.
Meanwhile, in June 2003, the prison had conducted a routine lockdown to
search the prison for contraband. Defendant David Picard found documents in the
library addressed to Szymankiewicz indicating that he was violating prison rules by
performing legal work for inmates during his paid work time and accepting
compensation for his legal assistance. Picard issued a conduct report for the
violation, which was approved by defendant Mike Dittman, the prison security
director. Pending a hearing, Szymankiewicz was suspended with pay from his
library clerk job. Szymankiewicz eventually was found not guilty, and the conduct
report was dismissed. But in the interim Reedy hired another inmate to take
Szymankiewicz’s library clerk position. Szymankiewicz wrote to defendant David
Tarr, prison administrative captain, asking that his position be restored, but Tarr
upheld the termination. Szymankiewicz then filed a formal complaint challenging
his termination, and in July 2003 he was ordered returned to his position at a
reduced pay scale but given back pay. That order took effect in August after his
replacement was transferred to another facility.
While Szymankiewicz was suspended from his library clerk job, defendant
Doying assigned him to mow lawns at the prison. Szymankiewicz complied for one
day, but the next day claimed illness and sought to be excused. Doying denied his
request for a medical excuse with the explanation that it was not made before 6:00
a.m. as required by prison policy. Szymankiewicz again complied with Doying’s
order, but two days later he received a two-week “no work restriction” from the
prison’s Health Services Unit and during that period was restored to his library
clerk position. Szymankiewicz filed a complaint against Doying for forcing him to
mow lawns, but the complaint was dismissed on the ground that she had discretion
to assign him to another job because he was still in pay status while suspended
from his library job.
No. 05-2773 Page 3
Before the summer ended, Doying also searched Szymankiewicz’s cell twice
during routine random searches by prison staff. In July 2003 she removed what she
identified as excess property from his cell, including legal documents belonging to
other inmates, and wrote up a conduct report. Szymankiewicz filed a complaint
challenging the confiscation of the legal documents. The complaint initially was
denied on the ground that challenges to conduct reports are outside the scope of the
inmate complaint review process. That ruling was reversed when Szymankiewicz
appealed; the legal documents belonging to other inmates were then returned to
Szymankiewicz, and others of his own that he says Doying also confiscated were to
be replaced with copies available from the court where they had been filed. In
September 2003 Doying confiscated highlighters from Szymankiewicz’s cell and
issued a conduct report. Szymankiewicz filed a complaint alleging that legal
documents were confiscated. That complaint was dismissed after reviewers
concluded that Doying had not confiscated anything but the highlighters.
Szymankiewicz then filed suit in federal court essentially claiming that all of
the disciplinary action taken against him and undesirable work assignments given
to him during this five-month period of time were an attempt by the defendants to
retaliate against him, both individually and as part of a conspiracy, for filing inmate
complaints against them. The district court granted summary judgment for
defendants Reedy, Hermann, Picard, Dittman, and Tarr, as well as partial
summary judgment for defendant Doying on the lawn-mowing and September 2003
cell search claims, after concluding that the evidence submitted by Szymankiewicz
did not support an inference that the defendants retaliated or conspired to retaliate
against him for filing inmate complaints. The court also dismissed the state-law
claims for failure to file a notice of claim with the Attorney General under Wis. Stat.
§ 893.82. But the court allowed one claim against Doying to proceed to trial because
in her summary judgment response she did not deny that she removed legal
documents from Szymankiewicz’s cell during the July 2003 search to retaliate
against him for filing an inmate complaint against her for assigning him to mow
lawns. At the close of Szymankiewicz’s case-in-chief, however, the district court
granted Doying’s motion for judgment as a matter of law, see Fed. R. Civ. P. 50(a),
because Szymankiewicz failed to present any evidence that Doying was aware that
he had filed a complaint against her for the lawn-mowing assignment, and therefore
no reasonable juror could find that she retaliated against him by confiscating legal
documents from his cell.
On appeal Szymankiewicz challenges both the grant of summary judgment
on his federal claims as well as the decision to remove his case against Doying from
the jury. We review a grant of summary judgment de novo, construing all facts and
drawing all reasonable inferences in favor of Szymankiewicz as the non-moving
party. Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005). Summary
No. 05-2773 Page 4
judgment is appropriate if the moving party demonstrates “there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c).
Szymankiewicz argues that he presented sufficient evidence to preclude
summary judgment for the defendants. To prevail on a retaliation claim, a prisoner
must show that state officials took action to punish him for engaging in
constitutionally protected conduct, such as speech or exercising his right of access to
the courts. See Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996). Otherwise
permissible actions by prison officials can become impermissible if done for
retaliatory reasons. Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000). But
the burden on the prisoner is high as he must show that his protected conduct was
a motivating factor for the retaliation and that events would have transpired
differently had there been no retaliatory motive. Babcock, 102 F.3d at 275.
Here, Szymankiewicz claims that the defendants retaliated against him for
exercising his right to use the prison grievance process. His brief refers generally to
conduct reports, negative performance evaluations, and an undesirable work
assignment that, he contends, are evidence in support of that claim. But the mere
fact that prison officials disciplined Szymankiewicz or assigned him to mow lawns is
not evidence of retaliation. Nor does his unsupported speculation and conjecture
about the defendants’ motives constitute evidence. He points to no evidence
indicating that the defendants’ actions were motivated by a desire to retaliate
against him for filing inmate complaints or that the defendants would not have
disciplined him or assigned him to mow lawns absent any retaliatory motive. Thus,
the district court properly concluded that Szymankiewicz raised no issues of
material fact precluding summary judgment on his retaliation claims. Moreover,
this lack of evidence also doomed his conspiracy claim.
Szymankiewicz also argues that the district court erred in refusing to
consider as evidence certain exhibits that were annexed to either the complaint or
the affidavit he submitted in opposition to the defendants’ summary judgment
motion. We review for abuse of discretion a district court’s decision to disregard
portions of a plaintiff’s affidavit. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504
(7th Cir. 2004). The plaintiff must demonstrate both that the district court erred
and that exclusion of the evidence prejudiced his “substantial rights.” Id. In
evaluating a summary judgment motion, the court may consider as evidence
properly authenticated and admissible documents or exhibits. Scott v. Edinburg,
346 F.3d 752, 760 n.7 (7th Cir. 2003); Woods v. City of Chicago, 234 F.3d 979, 988
(7th Cir. 2001). To be admissible, documents must be authenticated by an affiant
through whom the exhibits could be admitted into evidence. Article II Gun Shop,
Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir. 2006); Scott, 346 F.3d at 760 n.7.
No. 05-2773 Page 5
Szymankiewicz focuses primarily on three exhibits that are annexed to the
verified complaint and to his affidavit. He argues that the district court improperly
refused to consider the exhibits on the ground that they were inadmissible. The
first two exhibits are documents generated by the prison: an inmate work/program
assignment form (Exhibit J of the complaint) and an offender performance
evaluation (Exhibit E of the complaint). But there is no affidavit from the author or
custodian of the documents concerning their authenticity; accordingly the
documents are not admissible. See Article II Gun Shop, 441 F.3d at 496; Scott, 346
F.3d at 760 n.7. The third exhibit identified by Szymankiewicz is a list of questions
with handwritten notes entitled “Due Process Witness Questions for C/O Mr. J.
Russell” (Exhibit F of the complaint and affidavit). Based on Szymankiewicz’s
statements in his affidavit, it appears that this document is a list of the questions
he posed to a guard at a disciplinary hearing and Szymankiewicz’s handwritten
notes of the guard’s testimony. His notes of the hearsay statements are not
authenticated by an affidavit from Russell and therefore the notes are inadmissible.
See Article II Gun Shop, 441 F.3d at 496; Scott, 346 F.3d at 760 n.7. Even if the
documents had been admissible, they do not raise any material issues of fact to
support a retaliation claim. Thus, it was not an abuse of discretion for the district
court to decline to consider the documents in evaluating the summary judgment
motion.
Finally, Szymankiewicz argues that the district court erred by granting
Doying’s motion for judgment as a matter of law on the remaining claim that she
retaliated against him when she searched his cell and seized legal documents in
July 2003. He argues generally that he presented sufficient evidence to allow his
claim to go to the jury. He also asserts that he was improperly denied permission to
introduce a document that would have further bolstered his retaliation claim.
We review the district court’s decision to grant judgment as a matter of law
de novo, viewing the evidence in the light most favorable to the non-moving party.
Harper v. Albert, 400 F.3d 1052, 1061 (7th Cir. 2005). Judgment as a matter of law
is proper when “a party has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on that
issue.” Fed. R. Civ. P. 50(a)(1); see also Harper, 400 F.3d at 1061.
Here, as the district court noted, the only reason Doying was not granted
summary judgment on this claim is that she failed to assert in her affidavit at
summary judgment that she thought inmates were not allowed to possess the legal
work of other inmates in their cells, and thus she had a basis for believing it proper
to confiscate the documents she found in Szymankiewicz’s cell. But as the district
court noted, Szymankiewicz presented no evidence at trial that Doying knew he had
filed an inmate complaint against her for the lawn-mowing assignment, and
therefore no reasonable jury could conclude that her confiscation of legal documents
No. 05-2773 Page 6
from his cell during the random search was a retaliatory act in response to that
complaint. Indeed, Szymankiewicz conceded that he presented no evidence that
Doying had knowledge that he filed a complaint against her. Szymankiewicz
argues that he was denied the right to present evidence because the district court
did not allow him to introduce a prison policy that, he contends, shows that Doying
was not allowed to order him to mow lawns. But the policy is irrelevant since it has
no bearing on whether Doying knew Szymankiewicz filed a complaint against her,
which is what Szymankiewicz needed to establish in order to show that it was this
exercise of protected conduct that motivated Doying to retaliate against him.
Babcock, 102 F.3d at 275. Thus, the district court properly granted Doying’s motion
for judgment as a matter of law.
AFFIRMED.