NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2007*
Decided November 30, 2007
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
Nos. 05-1473 & 05-1647
FLOYD MAY, Appeals from the United States
Plaintiff-Appellant, District Court for the Central District
of Illinois
v.
No. 01-1520
JACK LIBBY et al.,
Defendants-Appellees. Harold A. Baker,
Judge
ORDER
Floyd May, an Illinois prisoner, sued several prison officials at Pontiac
Correctional Center under 42 U.S.C. § 1983, claiming that they violated his right to
free speech, retaliated against him for filing an internal grievance, and denied him
access to the courts. After May presented his case-in-chief to a jury, the district
court granted the defendants’ motion for judgment as a matter of law. May appeals,
and we affirm.
*
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).
Nos. 05-1473 & 05-1647 Page 2
The facts underlying May’s free speech claim are undisputed. In February
2001 May sent a letter to a state court clerk asking how to pursue both criminal and
federal charges against one of the defendants, corrections officer Jack Libby. May
sent a copy of the letter to the internal affairs unit of the prison, where Libby was
assigned. Libby interpreted copying the letter to internal affairs as a threat against
him that violated prison regulations. See 20 ILL. ADMIN. CODE § 504, App. A. R.
206. Following a hearing to determine whether May indeed made a threat against
Libby, May was found guilty. The prison accordingly disciplined him by confining
him in segregation, but the Administrative Review Board (ARB) later reversed the
guilty finding and expunged it from May’s record.
A separate incident prompted May’s retaliation and access-to-courts claims.
In March 2001 internal affairs received ten grievances about prison conditions,
ostensibly from ten different inmates, but that were written in the same
handwriting and contained nearly identical content. Each grievance requested that
May act as the undersigned inmate’s representative. Internal affairs interpreted
the grievances to be a petition that violated prison regulations and the request that
May serve as a representative to be an improper creation of a hierarchy among
inmates. See 20 ILL. ADMIN. CODE § 504, App. A, R. 309. Investigating the matter
by searching May’s cell, Libby found and confiscated the five-page grievance form.
According to May, however, Libby also removed several legal documents relating to
his impending lawsuit against Libby.
In September 2002 May filed his pro se amended complaint, claiming that
disciplining him for copying his letter to internal affairs violated his right to free
speech, that confiscating the form constituted retaliation for using the grievance
process, and that confiscating legal materials from his cell deprived him of access to
the courts. May moved for summary judgment on his free speech and retaliation
claims, which the district court denied.
The case proceeded to trial. Libby testified that he disciplined May solely
because he copied his letter to internal affairs, not because he sent the original to
the clerk. He admitted that he did not investigate May’s motives before disciplining
him but explained that he reasonably believed a credible threat had been made
against him. He further explained that, given that prisoners knew that he worked
in the internal affairs unit, he could think of no reason why May would send a copy
of it there except to threaten him. As to later confiscating the grievance form, Libby
explained that petitions and hierarchies among inmates are forbidden because they
pose a threat to the safety and security of the prison. And lastly, one of May’s
fellow prisoners testified that he saw Libby remove a “thick” envelope containing
more than the five-page grievance form from May’s cell. But the inmate conceded
that he viewed the search through an opening just two inches wide in his cell, which
was many down from May’s on the same side of the aisle.
Nos. 05-1473 & 05-1647 Page 3
The defendants then moved for judgment as a matter of law. See FED. R. CIV.
P. 50(a). In opposition May argued that he had more evidence to present, namely
the expungement of the disciplinary charge from his record and his own testimony
that he sent the letter to internal affairs because he believed the prison was
tampering with his mail. The district court nonetheless granted the motion,
concluding that the defendants’ actions—in response to both incidents—were
reasonably related to penological interests. That conclusion, said the court, could
not be refuted by the additional evidence that May sought to introduce.
On appeal May first argues that summary judgment should have been
granted in his favor on his free speech and retaliation claims. But when there has
been a trial on the merits, we will not review the district court’s denial of a motion
for summary judgment, which, like May’s, was based on the sufficiency of the
evidence rather than being a purely legal claim. See Chemetall GMBH v. ZR
Energy, Inc., 320 F.3d 714, 718-19 (7th Cir. 2003).
May then argues that the Rule 50 motion was improperly granted as to each
of his claims. Under Rule 50, a court should grant judgment as a matter of law
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.” Winters
v. Fru-Con Inc., 498 F.3d 734, 746 (7th Cir. 2007). Our review of a mid-trial grant
of a Rule 50 motion is “essentially identical” to our review of a grant of summary
judgment. See Harper v. Albert, 400 F.3d 1052, 1066 n.19 (7th Cir. 2005).
We turn first to May’s free speech claim. Prisoners have a protected First
Amendment interest in both sending and receiving mail. See Thornburgh v. Abbott,
490 U.S. 401, 406-07 (1989); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999). But
restrictions on mail sent within the prison are valid so long as they are reasonably
related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987);
Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004). May argues that in applying
this standard the district court erred. He contends that it was unreasonable for the
defendants to perceive his letter as a threat that they could censor.
We think that the issue is closer than the district court did, but we agree that
the Rule 50 motion was properly granted. May, as the defendants concede, had a
right to pursue legal action against them. See Lekas v. Briley, 405 F.3d 602, 614
(7th Cir. 2005); Higgason v. Farley, 83 F.3d 807, 810 (7th Cir. 1996). He need not
do so covertly. See Hargis v. Foster, 312 F.3d 404, 408-11 (9th Cir. 2002) (holding
that there were genuine factual issues regarding whether statement by prisoner
that guard’s comments might be admissible in future litigation could be viewed, in
context of their entire conversation, as coercion). But on these facts we cannot
conclude that it was unreasonable for the defendants to view the seemingly utterly
Nos. 05-1473 & 05-1647 Page 4
gratuitous copy of May’s letter as a veiled threat. See generally Koutnik v. Brown,
456 F.3d 777, 785 (7th Cir. 2006) (explaining that we owe substantial deference to
the professional judgments of prison administrators). At trial May introduced no
evidence that Libby was aware of May’s purported difficulties with his mail. Thus,
the defendants were entitled to judgment as a matter of law.
May makes several arguments to the contrary, but none are availing. May
emphasizes that the content of his letter—a solicitation for legal advice—entitled it
to heightened protection. But the Supreme Court has squarely rejected this
argument. See Shaw v. Murphy, 532 U.S. 223, 230-32 (2001). And the argument
misses the point because May was not disciplined for writing to the clerk about his
lawsuit; rather, he was disciplined for sending an unnecessary copy of his letter to
internal affairs. May also points out that the defendants initiated disciplinary
proceedings before learning that he sent the copy of the letter not to threaten the
defendants, but because his mail had been going missing. This misses the mark as
well: the issue was whether it was reasonable for the defendants to view the letter
as a potential threat. See generally Lindell, 377 F.3d at 658. May also emphasizes
that the ARB ultimately determined that he had not intended to threaten the
defendants. But this too fails to bear on whether the defendants’ perception was
reasonable.
May next contends that the court granted the defendants’ motion before he
had been “fully heard” on his free speech claim as Rule 50 requires. FED R. CIV. P.
50(a); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000);
Alexander v. Mount Sinai Hosp. Med. Ctr., 484 F.3d 889, 902 (7th Cir. 2007). He
argues that he was not permitted to testify why he copied internal affairs on his
letter nor had he yet introduced into evidence the expungement of the disciplinary
action from his record. But, as discussed above, neither May’s actual intent nor the
ARB’s ultimate finding bear on whether the defendants acted reasonably in
restricting May’s speech to promote legitimate penological interests.
This brings us to May’s retaliation claim. A prisoner is entitled to avail
himself of the prison grievance process without fear of recrimination, and if prison
officials retaliate, they violate the First Amendment. See Lekas, 405 F.3d at 614;
Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996). To succeed on such a claim, a
prisoner must establish that his constitutionally protected conduct—here filing a
grievance—was a substantial or motivating factor in the challenged action by the
defendant. See Babcock, 102 F.3d at 275. May asserts without elaboration that he
made this showing at trial. But the undisputed evidence—that the so-called
grievances were in the same handwriting, worded identically, and designated May
as a representative—substantiated the defendants’ explanation that they searched
May’s cell not because he had grieved prison conditions, but because he had
circulated a petition. Banning petitions to maintain control over group activity by
Nos. 05-1473 & 05-1647 Page 5
prisoners is a reasonable response to a legitimate penological concern. See
Duamutef v. O’Keefe, 98 F.3d 22, 24 (2d Cir. 1996) (explaining that as long as
individual grievance procedures are available prisons may bar circulation of
petitions); Wolfel v. Morris, 972 F.2d 712, 716 (6th Cir. 1992) (“[I]t seems clear that
a prison does not violate a prisoner’s rights by refusing to allow circulation of
petitions.”); see also Westefer v. Snyder, 422 F.3d 570, 575 (7th Cir. 2005) (“The
decision of prison administrators as to the detrimental effect of [group activity] is a
decision to which we owe great deference.”). Thus, May’s retaliation claim fails as a
matter of law and the defendant’s Rule 50 motion was properly granted as to this
claim as well.
As to his access to court claim, May makes just one argument. He says that
he had not yet presented evidence on this claim, so the Rule 50 motion was
premature. But when the court permitted May to explain what evidence he still
desired to put on, May did not mention the legal documents that he contends were
removed from his cell resulting in the denial of meaningful access to the courts nor
did he mention what evidence he would introduce to demonstrate actual harm to his
pending litigation, as was also required. See Lewis v. Casey, 518 U.S. 343, 351-52
(1996); Tarpley v. Allen County, 312 F.3d 895, 899 (7th Cir. 2002).
The judgment is AFFIRMED.