NONPRECEDENTIAL DISPOSITION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 March 17, 2017*
Decided March 17, 2017
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 16‐1565
RICHARD SMEGO, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 13‐CV‐3154
JOSEPH HANKINS and Colin S. Bruce,
SANDRA SIMPSON, Judge.
Defendants‐Appellees.
O R D E R
Richard Smego, a civil detainee at the Rushville Treatment and Detention Facility
in Illinois, appeals from the grant of summary judgment for two members of the staff
who, he claims, violated the First Amendment by ignoring his grievances as punishment
for past grievances and lawsuits. See 42 U.S.C. § 1983. We agree with the district court
* 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. See FED. R. APP. P. 34(a)(2)(C).
No. 16‐1565 Page 2
that a reasonable jury could not find for Smego on this record, and thus we affirm the
judgment.
We recount the facts in the light most favorable to Smego, the opponent of
summary judgment. See Gekas v. Vasiliades, 814 F.3d 890, 893 (7th Cir. 2016). At the center
of this lawsuit are five grievances submitted at Rushville during the eight years Smego
was litigating a claim of deliberate indifference to his dental needs. See Smego v. Mitchell,
645 F. App’x 523 (7th Cir. 2016) (upholding jury verdict for defendant dentist).
Three of those grievances, all concerning Smego’s dental records, were submitted
in April and May 2011. The first two were submitted together and accused healthcare
aides of doctoring Smego’s medical records to make it appear they were present the
entire time for a March 2011 dental appointment and during that visit Smego never
complained of dental pain. Smego wanted the two aides to meet with him and explain
their statements. The facility’s Grievance Examiner, defendant Sandra Simpson, knew
about Smego’s pending lawsuit and surmised that these grievances were a ploy to
interview the two aides as potential witnesses for the suit. She deemed the two
grievances to be “not grievable” and passed them to defendant Joseph Hankins, another
administrator who sometimes handles grievances. He told Smego that the grievances
would not be heard or the aides interviewed. Smego replied that he wanted this
exchange documented so he could “go somewhere with this thing,” prompting Hankins
to toss the grievances at Smego and say he wouldn’t let him “drag us into your
litigation.”
The third grievance, submitted in May 2011, was intended for Rushville’s
director. Smego said the dentist he was suing had altered his medical records and
written false affidavits to support those changes. He demanded that this dentist and
anyone associated with her not be allowed to treat him in the future. Once again
Simpson, the Grievance Examiner, deemed Smego’s submission “not grievable.” She
reasoned that, while Smego could refuse medical care, she could not recommend that the
facility’s only dentist be precluded from treating him if necessary. Hankins spoke to
Smego again and repeated that he would not let Smego “drag them into” his litigation.
Over a year later, in October 2012, Smego submitted the fourth grievance after a
staff member confiscated a Netflix DVD and returned it to the company. This time
Simpson addressed Smego’s complaint, explaining in writing that the staff member had
thought the show—Star Trek: Deep Space Nine—was not allowed. In the future,
Simpson added, staff members would alert residents before returning DVDs. At some
No. 16‐1565 Page 3
point, Smego also spoke with Hankins, who said he would not accept Smego’s
paperwork about the issue and tossed it toward a trash bin. But Hankins did promise to
tell the staff member to let Smego have the Star Trek series. He did that, but months later
when Smego wrote him complaining of similar confiscations, Hankins returned the
certified letter unopened. Afterward when the two passed in a hall, Hankins said he did
not care if the issue was resolved.
Finally, in December 2012, Smego submitted a grievance opposing a proposed
roommate assignment. He said the resident, who was large and intimidating, was
sexually aggressive and previously had propositioned him for sex. Simpson labeled this
submission “not grievable,” recommending in writing that Smego consult his therapist
because “future” room assignments are not grievable. Simpson, mirroring Hankins, also
told Smego later that she would not allow him “to drag us into this litigation.” In the
end, the other resident was never placed with Smego.
In his complaint Smego contended that the responses he received from Simpson
and Hankins to these five grievances were retaliatory and infringed his First
Amendment right to file lawsuits and other grievances. But to prevail on this claim,
Smego would have to show, at a minimum, that the defendants’ actions were serious
enough to deter future protected speech. See Santana v. Cook Cty. Bd. of Review, 679 F.3d
614, 622 (7th Cir. 2012); Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009). The district
court reasoned that Smego’s evidence misses this threshold, and we agree.
Contrary to Smego’s assertion, Simpson and Hankins did not ignore his
grievances; they simply responded differently than he wished. Cf. Burks v. Raemisch,
555 F.3d 592, 595 (7th Cir. 2009) (positing that grievance examiner might face liability for
routinely shredding grievances without reading them). And the defendants’ responses
did not injure Smego. See Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) (explaining that
injury is necessary for tort to be actionable, and that it “would trivialize the
First Amendment to hold that harassment for exercising the right of free speech was
always actionable no matter how unlikely to deter a person of ordinary firmness from
that exercise”). Indeed, the defendants did nothing to deter his future grievances and
lawsuits—since the events in this case, Smego has filed seven lawsuits in the
Central District of Illinois (Nos. 13‐cv‐3068, 13‐cv‐3167, 15‐cv‐3159, 15‐cv‐4057,
15‐cv‐4097, 16‐cv‐4058, and 16‐cv‐4261). See Antonelli v. Sheahan, 81 F.3d 1422, 1430
(7th Cir. 1996) (noting that inmate’s “invocation of the judicial process indicates that the
prison has not infringed his First Amendment right to petition the government for a
redress of grievances”).
No. 16‐1565 Page 4
Smego contends, however, that the defendants’ actions endangered his health
and his litigation. He contends that their handling of the grievances related to his dental
records caused him years of unnecessary pain. But in those grievances he did not
complain about pain or a lack of medical care; he wished only to confront staff about
alleged falsifications in his medical records. Smego also argues that, because three of the
five grievances were handled informally rather than logged, he was prevented from
exhausting his administrative remedies and creating a record for his lawsuits. But
Smego’s dental lawsuit was not barred for failure to exhaust—that case went to trial.
See Smego, 645 F. App’x at 524. And, regardless, if exhaustion is necessary for Rushville
detainees, see Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir. 2004), that requirement would
be excused if a prisoner is prevented from using a facility’s grievance system, Kervin v.
Barnes, 787 F.3d 833, 835 (7th Cir. 2015). The defendants were not required to help Smego
strengthen his lawsuits. See Burks, 555 F.3d at 595 (observing that a grievance examiner is
not an ombudsman).
Finally, Smego argues that his speech is more easily chilled because he is a civil
detainee suffering from a mental disorder. He cites Hughes v. Scott, 816 F.3d 955 (7th Cir.
2016), for the proposition that he should not be required to show adverse action that
would deter a person of “ordinary firmness.” But even if that is true in the abstract, in
this case Smego did not suffer any adverse action. As we have said, he simply complains
that he did not receive the relief he demanded in his grievances.
We have reviewed Smego’s remaining contentions, and none requires further
discussion. In particular, Smego’s assertions about other incidents and Rushville policies
that do not involve Simpson and Hankins are irrelevant to this appeal. Accordingly, the
judgment is AFFIRMED.
Richard Smego v. Joseph Hankins
Combined Opinion