NONPRECEDENTIAL DISPOSITION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 February 21, 2013
Decided February 22, 2013*
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐1794
ROBERT L. HOLLEMAN, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:09‐cv‐1510‐TWP‐DKL
CHARLES PENFOLD, et al.,
Defendants‐Appellees. Tanya Walton Pratt,
Judge.
O R D E R
Robert Holleman, an Indiana prisoner, appeals the grant of summary judgment in
favor of guards and employees of the Wabash Valley Correctional Facility in this suit under
42 U.S.C. § 1983 claiming retaliation in violation of the First Amendment. Because Holleman
failed to make out a prima facie case of retaliation, we affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 12‐1794 Page 2
At the outset we note that the district court was within its discretion to adopt the
defendants’ version of the facts, because Holleman failed to comply with the court’s local
rules by not supporting his “statement of material facts in dispute” with appropriate
citations to admissible evidence. See S.D. Ind. L.R. 56.1 (b), (e); Patterson v. Ind. Newspapers,
Inc.,
589 F.3d 357, 359–60 (7th Cir. 2009). Accordingly, our version of the facts mirrors the
one adopted by the district court.
In March 2008, Holleman was assigned to the G‐House unit at Wabash. He noticed
that, despite a Wabash policy allowing prisoners to leave their cells for up to twenty
minutes to finish their meals, guards in G‐House gave prisoners between only six and
eleven minutes to eat. Holleman decided during several meals to remain out of his cell for
the full twenty minutes—even after guards ordered prisoners to lock up. When one guard,
Amanda Pirtle, saw Holleman outside his cell, she accused him of holding up “her chow
line” and told him he would be would be eating last from then on. Pirtle and another guard
then searched Holleman’s cell and, during one lunch, did not allow him to eat with the
other prisoners in the common room. Holleman twice sent written complaints about Pirtle’s
actions to Marty Hale, a case manager in G‐House. Holleman believes that, in retaliation for
these letters as well as his refusals to lock up, the defendants denied him a job as the G‐
House barber (despite his barber’s license); caused several of his library passes, commissary
orders, and grievances to “disappear”; and charged him with—and found him guilty
of—disorderly conduct.
The district court concluded that Holleman did not present sufficient evidence to
make out a prima facie case of retaliation under the First Amendment. See Kidwell v.
Eisenhauer,
679 F.3d 957, 964 (7th Cir. 2012). The court determined that, though Holleman’s
letters to Hale were protected by the First Amendment, see Gomez v. Randle,
680 F.3d 859,
866–67 (7th Cir. 2012); Hasan v. U.S. Depʹt of Labor,
400 F.3d 1001, 1005 (7th Cir. 2005), his
actions in remaining outside his cell to eat after being told to lock up were not. The court
concluded that Holleman provided no evidence to establish that his protected conduct
caused the defendants to retaliate against him.
On appeal, Holleman denies that his remaining outside his cell to finish meals was
not activity protected by the First Amendment; in his view he was opposing his conditions
of confinement and merely following the policy that allotted prisoners up to twenty minutes
to eat. But Holleman may not use § 1983 to challenge a violation of state law or prison rules;
§ 1983 protects plaintiffs only from constitutional violations. See Scott v. Edinburg,
346 F.3d
752, 760 (7th Cir. 2003); see also Hernandez ex rel. Hernandez v. Foster,
657 F.3d 463, 485 n.1
(7th Cir. 2011). Holleman did, however, have a First Amendment right to complain about
his conditions of his confinement. See Gomez,
680 F.3d at 866–67; Hasan,
400 F.3d at 1005. But
his confrontational approach in opposing the guards’ actions and disobeying orders to lock
up was inconsistent with the guards’ legitimate penological interests in maintaining order
No. 12‐1794 Page 3
and discipline, and thus unprotected by the First Amendment. See Watkins v. Kasper,
599
F.3d 791, 797–98 (7th Cir. 2010); Pearson v. Welborn,
471 F.3d 732, 741 (7th Cir. 2006).
Holleman next challenges the district court’s conclusion that he provided no
evidence that his protected activity motivated the defendants to retaliate against him. He
contends that he provided such evidence in the form of testimony from a hearing under
Pavey v. Conley,
544 F.3d 739, 742 (7th Cir. 2008), and that the district court erred when it
adopted the defendants’ version of the facts rather than considering that testimony. At the
Pavey hearing his former cellmate, Ray Milano, testified to being told by one officer at
Wabash that he had not received a job in G‐House because he was sharing a cell with
Holleman. Also at that hearing, Holleman’s classification supervisor, Mathew Loehr,
testified that retaliation by Wabash staff had occurred “at times.” Holleman asserts that he
was unable, through no fault of his own, to cite this information in his statement of material
facts because the district court, during the relevant period, made the transcript available
only via its Case Management/Electronic Case Filing system, which Holleman could not
access.
Because Holleman received notice that failing to provide proper citations could lead
to the admission of the defendants’ version of the facts, see Outlaw v. Newkirk,
259 F.3d 833,
841–42 (7th Cir. 2001); Houston v. Sidley & Austin,
185 F.3d 837, 838 n.1 (7th Cir. 1999), the
district court was entitled to require strict compliance with its local rules, see, e.g., McNeil v.
United States,
508 U.S. 106, 113 (1993); Schmidt v. Eagle Waste & Recycling, Inc.,
599 F.3d 626,
630–31 (7th Cir. 2010); Cady v. Sheahan,
467 F.3d 1057, 1061 (7th Cir. 2006). Holleman did not
even try to provide citations to the materials that were available to him (his affidavit or the
defendants’ discovery responses), nor did he file an appropriate motion under Federal Rule
of Civil Procedure 56(d), supported by an affidavit, to explain his need for the transcript to
the court and request further time to respond to the defendants’ submission. See Deere & Co.
v. Ohio Gear,
462 F.3d 701, 706 (7th Cir.2006); Edgenet, Inc. v. Home Depot U.S.A., Inc.,
658
F.3d 662, 665 (7th Cir. 2011). And even if we take into account the testimony of Milano and
Loehr, or for that matter Holleman’s affidavit, he still cannot establish that the defendants
took any actions because of his protected activities. See Kidwell,
679 F.3d at 964; Greene v.
Doruff,
660 F.3d 975, 978–80 (7th Cir. 2011). Holleman’s statements in his affidavit and
Milano’s testimony about what officers at Wabash told them are inadmissible hearsay.
See Cortezano v. Salin Bank & Trust Co.,
680 F.3d 936, 942 (7th Cir. 2012); Gordon v. FedEx
Freight, Inc.,
674 F.3d 769, 774–75 (7th Cir. 2012). And Loehr’s testimony that retaliation has
occurred at Wabash tells us nothing about what motivated these particular defendants in
their interactions with Holleman.
AFFIRMED.
