NONPRECEDENTIAL DISPOSITION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 29, 2018*
Decided May 29, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 16‐1897
NATHAN ANTOINE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 3:07‐cv‐453‐DGW
ROBERT M. ROBERTSON, Donald G. Wilkerson,
Defendant‐Appellee. Magistrate Judge.
O R D E R
While imprisoned at Menard Correctional Center in Illinois, Nathan Antoine
sued prison employees under 42 U.S.C. § 1983 for violating his First Amendment rights.
He contends that the defendants retaliated against him for filing grievances about the
sanitary conditions at Menard. An earlier appeal to this court resulted in a remand for a
trial on the question whether one defendant, Robert Robertson, issued a disciplinary
report to retaliate against Antoine. At a bench trial, a magistrate judge presiding by
* We have agreed to decide the 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. See FED. R. APP. P. 34(a)(2)(C).
No. 16‐1897 Page 2
consent found that Robertson issued the report for a legitimate reason. Because Antoine
does not demonstrate on appeal that the judge clearly erred in his factual finding about
Robertson’s permissible motive, we affirm.
The relevant events took place in 2005. Between March and September, Antoine
filed grievances about dirt, dust, and insects in the gallery where he was housed.
He said that the conditions aggravated his lung condition, causing him to cough up
blood. During this period, Robertson was the officer responsible for the cleanliness of
the gallery. On September 7, Robertson and another guard searched Antoine’s cell for
contraband, confiscating some items. After the search, according to Antoine, Robertson
approached him and said, “I finally got your grievance‐filing ass.” Robertson issued
Antoine a disciplinary ticket, which is not at issue on appeal, for possessing contraband.
Antoine pleaded guilty and received 60 days of segregation.
The next morning, Robertson came to Antoine’s cell to take him to segregation.
What happened next was disputed at trial. Robertson testified that Antoine threatened
him: When Robertson approached Antoine, Antoine warned that, for putting him in
segregation, Robertson was going to “read all about it” in federal court. When
Robertson asked Antoine if he was threatening to sue Robertson, Antoine replied, “You
and the rest of the people behind this.” Robertson testified that because of this threat, he
issued a disciplinary ticket for the offense of intimidation. (This is the ticket challenged
on appeal.) Antoine told a different story, denying that he made any threat. He asserted
that he simply told Robertson that he wanted to speak with Menard’s office of internal
affairs. According to Antoine, Robertson refused the request, handcuffed him and
replied, “You’re going to die in prison.” Antoine was found guilty of insolence and
ordered to serve an additional 30 days in segregation.
Three other inmates also testified at the trial: James Brimmer, Eric Reid, and
Randy Brown. Brimmer corroborated Antoine’s story that, after the cell search,
Robertson said that he “finally got [Antoine’s] grievance‐filing ass.” Reid corroborated
that Antoine told Robertson that he wanted to speak with internal affairs and that
Robertson denied his request and said that Antoine would “die here.” Brown testified
about another incident with a different inmate. When that inmate warned Robertson
that he planned to file a grievance against Robertson, the latter replied, “[Y]ou file a
grievance, your ass will end up in segregation.”
The trial judge found Robertson not liable for violating the First Amendment.
The judge observed that Antoine had made a prima facie case allowing a reasonable
inference that Robertson issued the second disciplinary ticket because of Antoine’s past
No. 16‐1897 Page 3
grievances. But, the judge continued, Robertson rebutted that case. The judge believed,
as Robertson had testified, that Antoine publically threatened to sue Robertson, and
Robertson issued the disciplinary ticket because of that open threat. The judge noted
(and Antoine does not dispute) that under our case law, an inmate’s voluble threat to
sue a prison official (as distinct from suing itself) is not protected speech because such
threats are confrontational and inconsistent with prison security. See Watkins v. Kasper,
599 F.3d 791, 798 (7th Cir. 2010). The judge acknowledged that Reid’s testimony
supported Antoine’s account, but found Reid not credible because he and Antoine are
both housed at the same prison and have seen each other since the 2005 incident.
Antoine argues on appeal that the judge impermissibly found that Robertson’s
proffered reason for issuing the second disciplinary ticket—to punish Antoine’s threat
to sue—was credible. He argues that the judge’s finding is subject to de novo review
because, in his view, it is a question of law. He is incorrect. The judge’s finding about
why Robertson wrote the disciplinary ticket was a factual one. See Thompson v. Keohane,
516 U.S. 99, 109–110 (1995) (explaining that issues of fact refer to the narration of
external events and the narrators’ credibility). Factual findings by the district court
“must not be set aside unless clearly erroneous.” FED. R. CIV. P. 52(a)(6). Review under
this standard requires that we “giv[e] due deference to the district court’s better
opportunity to see and hear the witnesses,” Wilborn v. Ealey, 881 F.3d 998, 1006 (7th Cir.
2018), reversing only if the district court relied on testimony that was “facially
implausible” or “contradicted by extrinsic evidence” that cannot be disputed. Ortiz v.
Martinez, 789 F.3d 722, 729 (7th Cir. 2015) (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 575 (1985)). Antoine’s contention that his testimony was more credible
because he has always denied threatening Robertson does not show that Robertson’s
testimony was “facially implausible.” Therefore the judge did not clearly err.
Antoine also argues that the judge wrongly reasoned that, because Reid and
Antoine have seen each other in the same prison, Reid’s corroborating testimony was
not believable. (Antoine adds that Reid testified consistently with his own deposition
testimony, thereby buttressing his credibility.) But even if a judge may not discount an
inmate’s testimony solely because the inmate and the plaintiff are together in prison, the
judge provided another, valid reason for crediting Robertson’s testimony over
Antoine’s and Reid’s. The independent disciplinary committee, whose fairness Antoine
has not challenged, found Antoine guilty of insolence for threatening Robertson.
The judge could consider the committee’s finding at trial because it came from a legally
authorized investigation. See FED. R. EVID. 803(8)(A)(iii), (B). Furthermore, as we have
already observed, to prevail on appeal Antoine must show that Robertson’s version was
No. 16‐1897 Page 4
implausible, and he has not done so. Therefore the finding of the trial court “must
govern.” Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017).
Accordingly, the judgment is AFFIRMED.