NONPRECEDENTIAL DISPOSITION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 October 31, 2017*
Decided November 20, 2017
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 16‐3141
ISRAEL COBIAN, Appeal from the
Plaintiff‐Appellant, United States District Court for the
Central District of Illinois.
v.
No. 14‐cv‐1218
CHRISTOPHER McLAUGHLIN and
WAYNE STEELE, Sue E. Myerscough,
Defendants‐Appellees. Judge.
O R D E R
Israel Cobian, a prisoner at Hill Correctional Center in Illinois, sued prison
officials under 42 U.S.C. § 1983, alleging that they failed to protect him from a threat of
violence posed by other inmates and, after he complained about it, issued an unfounded
disciplinary report and segregated him for a month in a cell covered with human feces.
At screening the district court concluded that Cobian stated a retaliation claim against
two defendants under the First Amendment but that he did not state a claim based upon
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 16‐3141 Page 2
a failure to protect him or any other theory of relief. The court later granted the
defendants’ motion for summary judgment on the retaliation claim. Because we
conclude that Cobian states a claim under the Eighth Amendment for deliberate
indifference to the unsanitary conditions of his cell, we vacate the district court’s
judgment in that respect; otherwise, we affirm the judgment.
A. Initial Screening of the Complaint
In our review of the district court’s screening order, we accept as true the facts in
Cobian’s complaint and draw reasonable inferences in his favor. See Gonzalez v.
Feinerman, 663 F.3d 311, 313 (7th Cir. 2011). Cobian sued Major Christopher McLaughlin
and Major Wayne Steele, among other defendants (the warden, the Director of the
Department of Corrections, and a member of the Illinois Administrative Review Board).
He alleged that sometime in 2011 he told Steele that he feared violent retaliation from
three gang members against whom he had testified at a criminal trial and who were
housed somewhere within the Illinois Department of Corrections but Steele did nothing.
In June 2012 he asked McLaughlin to help him obtain records showing that he had
testified against the three gang members so that prison officials would not place him
anywhere within the Department of Corrections where he could be seen by them. When
McLaughlin refused, Cobian asked him for proof that he had been denied this
information so that he could “get a court ordered injunction obligating this
administration to investigate” his request “to verify that [his] safety could be in danger.”
McLaughlin immediately “retaliat[ed] on him” by issuing a disciplinary report charging
Cobian with intimidating or threatening him. Steele signed that report. McLaughlin also
opened an investigation into threats he said Cobian made against his cellmate, but he
never investigated anything.
The disciplinary report resulted in three months of segregation. Within the first
week, Cobian asked a correctional officer to tell McLaughlin to write a “truthful”
disciplinary report and to “get [Cobian] off this bogus investigation.” The next day
McLaughlin ordered that Cobian be moved to a segregation cell that the prior occupant
had covered in his own feces—under the bed, on the window screen, and in the hole
through which food was passed into the cell. Correctional officers gave Cobian cleaning
supplies hours after he was placed in the cell, but they were inadequate. He remained in
the cell for a month despite sending letters or grievances to the warden, the Director of
the Department of Corrections, and a member of the Administrative Review Board.
None of these defendants took action with respect to Cobian’s requests for protective
measures or the conditions of his cell.
No. 16‐3141 Page 3
The judge screened Cobian’s complaint under 28 U.S.C. § 1915A. She allowed
Cobian to proceed on a First Amendment claim of retaliation against McLaughlin and
Steele, but concluded that the other defendants, having simply received letters or ruled
on grievances, could not be liable. The judge further concluded that Cobian did not state
an Eighth Amendment claim for inadequate protection because Cobian had not alleged
that he communicated a specific, credible threat made against him; instead, he alleged
“nothing more than a generalized fear of harm in the future from some unidentified
prisoners.” The judge did not consider whether the conditions of Cobian’s confinement
in segregation could violate the Eighth Amendment proscription of cruel and unusual
punishment.
Weeks later Cobian moved for leave to file an amended complaint. The proposed
amended complaint provided more detailed allegations of Steele’s and McLaughlin’s
responses to his requests for help obtaining a protective order, of Steele’s role in keeping
him in the filthy segregation cell, and of the actions of the dismissed defendants. The
judge denied Cobian’s motion, however, saying only that it would be futile to reallege
that the warden, the Director of the Department of Corrections, and an Administrative
Review Board member had any role in the alleged failure to protect him.
B. Motion for Summary Judgment
After discovery closed, the remaining defendants, Steele and McLaughlin, moved
for summary judgment against Cobian on the sole remaining claim—retaliation. They
argued that no reasonable jury could conclude that they punished him for activity
protected by the First Amendment when he “threatened [d]efendant McLaughlin with a
civil suit” or demanded that McLaughlin halt his investigation and alter his disciplinary
report. They further argued that Cobian lacked evidence that any of his requests for
protection were a motivating factor in the deprivations he endured.
We recount the undisputed facts in the summary‐judgment record in the light
most favorable to Cobian, the opponent of summary judgment. See Carson v. ALL Erection
& Crane Rental Corp., 811 F.3d 993, 994 (7th Cir. 2016). In 2011 Cobian met with Steele to
seek a safe transfer to a prison where he could complete his associate’s degree. Cobian
said he wanted to ensure that he would not be transferred to a prison that housed any of
three gang members whom he had previously testified against. Steele searched Cobian’s
file and found that it did not reflect that Cobian had testified against anyone. Cobian
then asked Steele to find out why the names were missing and remedy the oversight.
Steele agreed to do so but never did.
No. 16‐3141 Page 4
About a year later, Cobian again sought transfer to another prison, this time by
meeting with then‐Lieutenant McLaughlin and sharing the same information that he
gave to Steele. After McLaughlin searched Cobian’s file and, like Steele, informed
Cobian that he found nothing, Cobian asked McLaughlin to search the Department of
Corrections’ database for the gang members, saying his “life can be in danger” because
he belonged to a rival gang. McLaughlin, becoming impatient, searched for two of the
three gang members and found those two were not incarcerated at the same facility as
Cobian. McLaughlin refused to look for the third, saying he had better things to do.
McLaughlin also refused to call the Cook County State’s Attorney’s Office to verify that
Cobian had testified against these inmates. According to Cobian, he then asked “Can
you give me proof that I came to your office with this issue so that I can get a court
ordered injunction obligating you to call the States Attorney’s Office and ask them for
this information?” Cobian says that McLaughlin then took him to segregation—a fact
McLaughlin disputes by asserting that the adjustment committee had sole authority to
do this.
McLaughlin wrote a disciplinary report against Cobian, stating that he threatened
to fight his cellmate if he was returned to the same cell and threatened McLaughlin for
not taking security precautions. McLaughlin also opened an investigation into Cobian’s
threat against his cellmate. Days after the incident Cobian filed a grievance in which he
denied threatening his cellmate. About a week after the incident at a hearing that was
held by the prison’s adjustment committee on the issue of the disciplinary report, Cobian
denied threatening McLaughlin but admitted asking him for proof of the visit so that he
could take civil action. The committee found Cobian guilty of threatening McLaughlin
with civil action and sentenced him to three months’ segregation.
The first day of Cobian’s time in segregation, he asked a correctional officer to tell
McLaughlin to end the “bogus” investigation; the next day Cobian was moved to a
segregation cell that had feces from the previous inmate smeared under the bed, on a
window and screen next to the bed, and around the port through which he received food
and other items. He requested and eventually received cleaning supplies—two cups of
bleach and two cups of another disinfectant—which he used to clean underneath the
bed. But these supplies were inadequate to remove feces from the screen next to his bed
and a caged‐off area just above the food port. Cobian says the day after he was placed in
this feces‐covered cell, he asked Steele to move him, but Steele refused, saying “you
shouldn’t be threatening my Lieutenant.” Cobian remained in the feces‐covered cell for
one month.
No. 16‐3141 Page 5
Defendants McLaughlin and Steele moved for summary judgment, and Cobian
sought an extension of time to respond until after the defendants filed an outstanding
response to his previous discovery request for production of documents. But the
defendants refused to provide the discovery, saying they had received Cobian’s request
two weeks after discovery closed. The judge granted Cobian additional time to respond
to the motion, but she did not order the defendants to answer any discovery requests.
She said that without a motion to compel, she lacked enough information to evaluate the
parties’ discovery dispute. Cobian then moved the district court to reopen discovery
because, he said, he never received the scheduling order or became aware of a discovery
deadline. But the judge denied his motion, reasoning that Cobian’s explanation did not
warrant reopening discovery six months after it had closed. Cobian substantively
responded to the summary‐judgment motion but also sought reconsideration of the
decision to deny reopening discovery, and he also moved to compel discovery; each
request was denied. Despite Cobian’s representation that he did not receive the
scheduling order, the judge noted that it had been referenced in another order, and
Cobian should have spoken up when he received that order. Further, the court said,
Cobian waited two months after the summary‐judgment motion to ask to reopen
discovery.
The judge entered summary judgment for McLaughlin and Steele, concluding
that Cobian was not engaging in protected speech when he threatened McLaughlin with
court action. Further, Cobian lacked evidence of a retaliatory motive for putting him in
segregation, writing a false disciplinary report, or keeping him in the befouled cell.
Cobian did not contradict the defendants’ evidence that they did not decide to sentence
him to segregation or select cells for inmates in segregation, and so he could not show
that they were directly responsible for his stint in segregation or the conditions of his
cell.
C. Cobian’s Appeal
On appeal Cobian argues that the judge erroneously precluded him from
proceeding past the screening stage on Eighth Amendment claims for failure‐to‐protect
him and deliberate indifference to the conditions of his confinement in segregation. He
also contests the denial of leave to file his amended complaint against the warden, the
Director of the Department of Corrections, and an Administrative Review Board
member, contending that each defendant was personally involved in the deprivation of
his constitutional rights because they knew of but failed to correct McLaughlin’s and
Steele’s Eighth Amendment violations. Lastly, he challenges the entry of summary
No. 16‐3141 Page 6
judgment on his First Amendment claim because he presented evidence that he engaged
in protected speech and that his speech was the motivation for a trip to segregation, a
phony disciplinary report, and his placement in a filthy segregation cell.
We begin with Cobian’s challenges to the judge’s initial screening order, which
expressly foreclosed a failure‐to‐protect claim and did not address a potential claim
about unconstitutional conditions of confinement. Cobian contends that he stated a
failure‐to‐protect claim because prison staff did not take steps necessary to protect him
from three members of his rival gang who, like him, were imprisoned in the Illinois
Department of Corrections. The Eighth Amendment requires prison officials “to protect
prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825,
833 (1994) (quotation marks omitted); Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir.
2015). To adequately plead a failure‐to‐protect claim, a prisoner must allege that officials
were subjectively aware of and disregarded an objectively serious risk of harm to the
prisoner. Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008).
Cobian does not state a claim for relief because he did not allege any facts
suggesting that he faced a substantial risk of being attacked by other inmates. Although
being branded a “snitch” can pose a substantial risk of harm to inmates, see id. at 570, an
inmate’s cooperation with authorities poses no risk unless fellow prisoners believe the
prisoner is a snitch. Cobian has not alleged that any prisoner who viewed him as an aid
to authorities was actually housed in the same prison as him or that he was being held
under circumstances where he was in danger of encountering the rival gang members he
testified against. He did not allege that they were even aware or likely to become aware
of his presence in the Illinois prison system. The possibility of their transfer to the prison
where Cobian was housed—or vice versa—is speculative and does not constitute a
substantial risk of harm that triggered a duty to protect him. See Brown v. Budz, 398 F.3d
904, 911 (7th Cir. 2005) (suggesting that substantial risk means “risks so great that they
are almost certain to materialize if nothing is done”); Brooks v. Warden, 800 F.3d 1295,
1301 (11th Cir. 2015) (concluding that an inmate who faced a threat of a possible but
implausible prison riot failed to allege a substantial risk). Cobian’s fear may be justified
in the abstract, but he does not allege that he faced a risk that was “almost certain to
materialize” if staff failed to update his file with information about the three gang
members.
Cobian argues next that his complaint stated a claim for unconstitutional
conditions of confinement because he alleged that McLaughlin, Steele, and the other
defendants placed him in a cell covered in fecal matter or left him there after he alerted
No. 16‐3141 Page 7
them to the conditions by way of a grievance or letter. He contends that the judge
precluded him from proceeding on this theory by narrowly reading the complaint at the
screening stage without ever considering this claim (or as Cobian puts it, when she
“changed [his] claim into a First Amendment claim”).
We agree that the judge’s reading was too narrow. Cobian alleged that he was
placed in a segregation cell that had feces from a previous occupant “splashed . . .
everywhere”—under the bed, on the window screen near his bed, and around the food
port—and that he was unable to completely clean up the fecal matter for the entire
month he was held in that cell. See McBride v. Deer, 240 F.3d 1287, 1291–92 (10th Cir. 2001)
(holding that the three‐day period in the cell covered in human waste without cleaning
supplies was sufficient to state an Eighth Amendment claim). Prison officials violate
their constitutional responsibility to provide inmates with the minimal necessities of life
when they disregard over a significant period an inmate’s request to be relieved from
exposure to human feces. See Vinning‐El v. Long, 482 F.3d 923, 923–24 (7th Cir. 2007)
(reversing an entry of summary judgment for prison guards where the inmate spent six
days in a cell with blood and feces on the walls without running water or sanitation
supplies); Johnson v. Pelker, 891 F.2d 136, 139–40 (7th Cir. 1989) (reversing an entry of
summary judgment for a prison guard who denied the prisoner’s requests for cleaning
supplies and the prisoner spent three days in a cell with feces smeared on the walls);
see also Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015); DeSpain v. Uphoff, 264 F.3d 965,
974–75 (10th Cir. 2001).
Furthermore, Cobian sufficiently alleged that McLaughlin ordered or knew of his
placement in the cell and that Steele and the others were aware of the conditions and did
nothing to ameliorate them. So the judge should not have excluded a conditions‐of‐
confinement claim by allowing only the retaliation claim to proceed past the screening
stage. True, Cobian did not expressly assert in his complaint that his conditions of
confinement violated the Eighth Amendment. But a complaint should not be dismissed
based upon the failure to plead a legal theory, or the pleading of an inapt one, if the facts
afford some basis for relief in law. See Johnson v. City of Shelby, 135 S. Ct. 346, 347 (2014);
Small v. Chao, 398 F.3d 894, 898 (7th Cir. 2005). Cobian alleged that the defendants knew
that he was living in a cell covered in feces for a month and did nothing, and at the
pleading stage, that was enough.
The defendants respond that even if Cobian stated a claim based on their alleged
deliberate indifference to his cell conditions, he did not exhaust his administrative
remedies related to that claim. In reply Cobian points to his deposition testimony that he
No. 16‐3141 Page 8
sent the warden a timely emergency grievance about the feces in his cell, and before
Cobian sued, the warden returned the grievance, saying the conditions presented no
emergency because Cobian’s life was not in danger. When a warden has denied an
Illinois prisoner’s request to consider his grievance on an emergency basis, the prisoner
has satisfied Illinois’s rules for exhausting emergency grievances. See Thornton v. Snyder,
428 F.3d 690, 694 (7th Cir. 2005) (citing ILL. ADMIN. CODE tit. 20, § 504.840, and noting
that Illinois’s regulatory text lacks a requirement that an inmate file a new grievance
after learning that it will not be considered on an emergency basis). There is no evidence
to dispute Cobian’s testimony, see Pyles v. Nwaobasi, 829 F.3d 860, 869 (7th Cir. 2016), and
this affirmative defense is not unmistakable from the complaint, see Walker v. Thompson,
288 F.3d 1005, 1009–10 (7th Cir. 2002). So we leave for the district court to decide whether
Cobian exhausted his administrative remedies, if the defense is raised.
Cobian also appeals the denial of leave to file his amended complaint against the
warden, the Director of the Department of Corrections, and an Administrative Review
Board member, contending that each official became personally involved in the
deprivation of his rights when he notified them that he was placed in an unsanitary cell
and they failed to help him. Liability under § 1983 “depends on each defendantʹs
knowledge and actions, not on the knowledge or actions of persons they supervise.”
Burks v. Raemisch, 555 F.3d 592, 5944 (7th Cir. 2009). “A warden is not liable for an
isolated failure of his subordinates to carry out prison policies, however—unless the
subordinates are acting (or failing to act) on the warden’s instructions.” Steidl v. Gramley,
151 F.3d 739, 741 (7th Cir. 1998). So to survive a motion to dismiss, Cobian needed to
allege that the three other defendants directly contributed to his injury and were not
simply vicariously liable for the alleged actions or inactions of Steele or McLaughlin. But
because we are remanding the case for consideration of a conditions‐of‐confinement
claim that the district court has not yet addressed, we need not decide in the first
instance whether Cobian can sufficiently plead a basis of liability for those three
defendants.
Moving on from the pleadings to the district court’s decision to enter summary
judgment for McLaughlin and Steele on the retaliation claim, Cobian contends that he
presented a triable issue of fact about whether they punished him for engaging in
protected speech. To survive summary judgment, Cobian needed evidence from which a
reasonable jury could conclude that (1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter First Amendment
activity in the future; and (3) the protected activity caused the deprivation. See Watkins v.
Kasper, 599 F.3d 791, 794 (7th Cir. 2010); Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
No. 16‐3141 Page 9
Cobian argues that he engaged in protected speech when he told McLaughlin that
“if [he] didn’t take protective measures[,] [Cobian] would be obligated to get a court
ordered injunction ordering him to take the necessary measures,” after which
McLaughlin wrote Cobian a disciplinary report for threatening him and Cobian was
sentenced to segregation. Cobian further asserts that he made protected statements
when he told McLaughlin, through an intermediary correctional officer, to end the
“bogus investigation” of his threat against his cellmate, after which Cobian was placed
in the sordid segregation cell and Steele refused to help him.
The statements that Cobian cites as the basis for his retaliation claim were not
protected by the First Amendment. First, Cobian’s threat to go to court if McLaughlin
did not do what he asked was not protected. Cobian gave McLaughlin—a prison staff
member—an ultimatum (i.e., “research my enemies and update my file or I will sue
you”), and punishing Cobian’s attempt to coerce McLaughlin was reasonably related to
a legitimate penological interest in promoting order and obedience. See Bridges, 557 F.3d
at 551; see also Kervin v. Barnes, 787 F.3d 833, 835 (7th Cir. 2015) (“[B]acktalk by prison
inmates to guards, like other speech that violates prison discipline, is not constitutionally
protected.”). Further, Cobian did not engage in protected speech when he told
McLaughlin through an intermediary to end the “bogus” investigation. This demand
was insubordinate, and Cobian could (and later did) raise this concern in a less
confrontational way by filing a grievance. See Kervin, 787 F.3d at 835; Watkins, 599 F.3d at
797–99 (concluding that the prisoner’s complaint was not protected because it was made
in an unnecessarily confrontational manner that was inconsistent with the legitimate
penological interests of prison discipline and order).
Even accepting Cobian’s argument that he was punished simply because he
requested safety measures, which we assume is protected activity, Cobian has not
offered evidence that his requests caused the deprivations he complains about. At a
hearing on the disciplinary report, the adjustment committee sentenced Cobian to
three months’ segregation for his undisputed threat of legal action against McLaughlin.
Because this unprotected threat was the sole reason Cobian received segregation time, it
does not matter that Cobian denies the disciplinary report’s specific charges that he
threatened his cellmate and denied telling McLaughlin he “was going down” for not
protecting him. See Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011) (noting that no First
Amendment violation occurs if, regardless of the retaliatory motive, the defendants
would have punished a prisoner for violating legitimate prison rules). Cobian also
contends that the judge erroneously discounted an affidavit from another inmate who
said that McLaughlin placed Cobian in the segregation cell because of his requests for
No. 16‐3141 Page 10
protection, but Cobian has not articulated a basis for overturning the judge’s conclusion
that this statement was not based on the inmate’s personal knowledge. See FED. R. CIV. P.
56(c)(4); Ani‐Deng v. Jeffboat, LLC, 777 F.3d 452, 454 (7th Cir. 2015).
In a further effort to show a causal connection between his speech and the alleged
retaliation, Cobian attempts, unsuccessfully, to dispute McLaughlin’s and Steele’s
attestations that they neither ordered his segregation nor determined which cell to place
him in. Cobian offers only his own affidavit in which he attested that another
correctional officer told him that the “only way I was going to be moved was if a
Lieutenant signed off on the move.” At most this statement suggests that Steele or
McLaughlin could have removed him from the filthy cell. Cobian asked Steele to move
him, and if, as Cobian says, Steele replied, “you shouldnʹt threaten my Lieutenant,” that
only underscores the defendants’ position that Steele and McLaughlin believed that
Cobian had threatened McLaughlin. If a threat against McLaughlin motivated Steele’s
inaction in the face of Cobian’s complaint, then it was not a response to protected speech,
although Steele knowingly leaving Cobian in a feces‐coated cell might implicate the
Eighth Amendment, as discussed above.
Cobian also contends that causation can be inferred from the timing of his
conversation with McLaughlin and his placement in the dirty cell, but on its own the one
day between these events is insufficient evidence to establish a genuine issue on his
retaliation claim. See Tibbs v. Admin. Office of the Ill. Courts, 860 F.3d 502, 505 (7th Cir.
2017) (concluding that a suspension immediately upon returning from FMLA leave was
insufficient to support evidence of unlawful intent).
Finally, Cobian challenges the judge’s denial of his requests for additional time to
complete discovery on his First Amendment claim (the only one that survived
screening), arguing that the judge should have accepted his excuse that he missed the
discovery deadline because he was unaware of it. We cannot call the judge’s rejection of
this excuse an abuse of discretion. Further, we will not disturb a district court’s
limitation on the extent of discovery without a showing of actual and substantial
prejudice. See Stevo v. Frasor, 662 F.3d 880, 886 (7th Cir. 2011). Cobian has not
meaningfully explained how his retaliation claim can be salvaged by the evidence he
sought from the defendants—logbooks of his movement between cells for the relevant
period, copies of policies regarding the cleaning of cells and which officers had authority
to move inmates between segregation cells, and materials related to the prior occupant
of the dirty cell. We have no reason to believe that this requested information could have
No. 16‐3141 Page 11
led to evidence of unlawful retaliation because none of these materials relate to whether
the defendants acted with a retaliatory motive.
Because Cobian’s allegations could plausibly lead to relief on a theory that
McLaughlin’s and Steele’s actions related to the filthy conditions of his cell violated the
Eighth Amendment, we REVERSE the judgment of dismissal and REMAND for further
proceedings. In all other respects, the judgment is AFFIRMED.