NONPRECEDENTIAL DISPOSITION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 May 6, 2009*
Decided May 6, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐2540
Appeal from the United States District
JOSE SOTO, Court for the Eastern District of
Plaintiff‐Appellant, Wisconsin.
v. No. 07‐C‐75
DAN BERTRAND, et al., William C. Griesbach,
Defendants‐Appellees. Judge.
O R D E R
Jose Soto, an inmate at Green Bay Correctional Institution, appeals the grant of
summary judgment for the defendants in his action under 42 U.S.C. § 1983, alleging that
prison officials retaliated against him for filing a grievance. We affirm.
*
After examining 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. 08‐2540 Page 2
After an altercation with another inmate, Soto was found guilty before a disciplinary
board of fighting, and placed in segregation for 180 days. Soto later learned that the official
in charge of his discipline, Security Officer Ericksen, was characterizing the incident as a
stabbing (the other inmate required six stitches); Soto considered this an exaggeration and
so—to clear his record—he filed a grievance against Ericksen.
After Soto completed his time in segregation, prison officials sought to move him to
administrative confinement. Under prison regulations, inmates may be placed in
administrative confinement if they pose a threat to the safety of themselves or others, or if
there are reasonable grounds to believe that the inmates are actively affiliated with a gang.
WIS. ADMIN. CODE DOC § 308.04. At the hearing to determine his placement, Soto protested
that Ericksen had misrepresented his fight as a stabbing. His protestations
notwithstanding, he was assigned to administrative confinement based on his serious
criminal history, gang membership, and prison disciplinary record, including harassing
guards and inmates. One result of this placement was that Soto, like all inmates in
administrative confinement, was not allowed access to newspapers.
While in administrative confinement, Soto was caught “fishing,” that is, casting a
string between cells to pass along notes or other items. Under prison policy, Soto was
disciplined by being forced to wear a “paper gown” for five days. According to Soto,
others also caught fishing at the time were not required to wear paper gowns; Soto believed
that his being singled out was retribution by Ericksen for filing the grievance.
Soto then sued for retaliation, pointing to his placement into administrative
confinement and his punishment of having to wear a paper gown. He also added claims
that having to wear a paper gown was cruel and unusual punishment and that the prison
was improperly denying him newspapers.
The district court granted summary judgment for the prison officials. The court
concluded that Soto could not make out a claim of retaliation because he presented no
evidence that prison officials knew of or were motivated by his grievance when they
moved him to administrative confinement or ordered him to wear a paper gown. The court
also noted that the paper gown was a common punishment and did not violate the Eighth
Amendment. Finally, the court found nothing unconstitutional about the prison’s ban on
newspapers for inmates in administrative confinement.
On appeal, Soto renews his argument that his placement in administrative
confinement was based on retaliatory motive. He contends that Ericksen held a grudge
against him for filing the grievance, and ever since has been finding ways to punish him.
Ericksen, Soto argues, was responsible for having him placed unjustly in administrative
No. 08‐2540 Page 3
confinement, and singled him out for more severe punishment when he was caught fishing.
In support, Soto points to an affidavit from another inmate who claims to have overheard
Ericksen admitting that he was holding Soto in administrative confinement because he
believed the incident actually was a stabbing. Soto also suggests that the timing of his
punishment presents an inference of retaliatory motive: his placement in administrative
confinement occurred only weeks after he filed the grievance.
To prove retaliation, Soto must show that a protected activity (in this case filing a
grievance) was “at least a motivating factor” in any retaliatory action taken by the prison.
See Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). If he can show that retaliatory
animus was a factor, then the burden shifts to the defendants to prove that the same actions
would have occurred in the absence of the protected conduct. Spiegla v. Hull, 371 F.3d 928,
943 (7th Cir. 2004) (citing Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Soto’s evidence that prison officials were motivated by his grievance is weak. He
speculates that his punishment was based on retaliation, but mere speculation is not
sufficient to stave off summary judgment. Rockwell Automation, Inc. v. Nat’l Union Fire Ins.
Co. of Pittsburgh, Pa., 544 F.3d 752, 757 (7th Cir. 2008). His only evidence is the affidavit of
another inmate, but that affidavit shows that Ericksen was motivated not by Soto’s
grievance, but by his dangerousness. And although the close timing of the grievance and
the placement in administrative confinement is suspicious, at summary judgment “mere
temporal proximity is not enough to establish a genuine issue of material fact.”
Andonissamy v. Hewlett‐Packard Co., 547 F.3d 841, 851 (7th Cir. 2008) (internal quotation
omitted).
Even if Soto had shown the prison officials were motivated by retaliatory purpose,
the defendants amply demonstrate that they would have taken the same actions even if
Soto never filed the grievance. As the district court noted, Soto was punished for admitted,
legitimate infractions. The record shows that Soto’s placement in administrative
confinement was based on his long history of abusive, violent behavior, and gang
affiliation; moreover, the prison’s written policies specifically authorize a sanction of the
paper gown when an inmate is caught fishing.
Soto next contests the district court’s conclusion that the paper‐gown attire did not
violate the Eighth Amendment. He argues that being deprived his regular prison clothing
for five days was cruel and unusual punishment because he was cold and humiliated. But
here too, as the district court noted, Soto presented no evidence that he was subjected to
extreme cold or that prison officials knew of and disregarded risks to his health due to
harmful conditions in his cell. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Johnson v.
Snyder, 444 F.3d 579, 584 (7th Cir. 2006).
No. 08‐2540 Page 4
Finally, Soto challenges the district court’s conclusion that being denied newspapers
in administrative confinement did not violate the First Amendment. He is mistaken;
withholding periodicals from prisoners in administrative segregation is a permissible
policy choice for prison officials seeking to achieve legitimate penological goals. Beard v.
Banks, 548 U.S. 521, 530 (2006); George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007).
AFFIRMED.