Thomas Ames v. Morgan Hudson ( 2020 )


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  •                         NONPRECEDENTIAL DISPOSITION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 January 21, 2020 *
    Decided January 23, 2020
    Before
    FRANK H. EASTERBROOK, Circuit Judge
    MICHAEL B. BRENNAN, Circuit Judge
    MICHAEL Y. SCUDDER, Circuit Judge
    No. 19-1035
    THOMAS R. AMES,                                    Appeal from the United States District
    Plaintiff-Appellant,                           Court for the Northern District of Illinois,
    Eastern Division.
    v.                                          No. 16 C 9213
    MORGAN HUDSON and JOEL SHAW,                       Rubén Castillo,
    Defendants-Appellees.                          Judge.
    ORDER
    Thomas Ames, an inmate, was abruptly discharged from his job in the kitchen at
    Stateville Correctional Center in Crest Hill, Illinois, after he filed a grievance against a
    corrections officer. Ames brought a First Amendment action against that officer (and
    another officer), asserting that they dismissed him in retaliation for his grievance. The
    district court granted summary judgment for the defendants, concluding that Ames had
    *
    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. FED. R. APP. P. 34(a)(2)(C).
    No. 19-1035                                                                        Page 2
    not produced any evidence that would allow a jury to return a judgment in his favor.
    We affirm.
    Ames was interviewed in September 2015 by corrections officer Joel Shaw for an
    investigation into excess food trays found in housing units around the facility. Later
    that day, Ames, who had worked for years in the kitchen without incident, filed a
    grievance complaining that Shaw tried to extract information from him through
    “threatening and coercive tactics.” Ames maintains that Shaw persisted in such
    conduct, even after he denied having any information and made clear that his job in the
    kitchen did not involve preparing food trays. He placed this grievance between the bars
    of his cell, and it was picked up by an unidentified guard.
    Ames’s correctional counselor, Morgan Hudson, was responsible for initially
    reviewing and responding to Ames’s grievance. Hudson testified that he had a practice
    of dating the grievances he received and recording the responses that he sent. It is
    uncontested that Hudson never marked Ames’s grievance as having been received, and
    that no response to the grievance was recorded. Accordingly, Hudson testified that he
    did not receive Ames’s grievance.
    A week later Shaw emailed another officer, directing her to remove Ames and
    five other inmates from their positions in Stateville’s kitchen. The next day, Ames
    received a letter stating that he was being removed from his kitchen job “based on staff
    recommendation, and security or administrative reasons.”
    On the day of his discharge, Ames filed a second grievance, this time accusing
    Shaw of terminating his kitchen assignment in retaliation for the prior grievance.
    Hudson received Ames’s second grievance and denied it, replying that job assignments
    are a privilege.
    Ames then sued Shaw and Hudson under 
    42 U.S.C. § 1983
     for removing him
    from his kitchen assignment in retaliation for his first grievance. (Ames also sued other
    prison employees, but they were dismissed because he failed to allege that they had
    participated in his discharge. He does not challenge that dismissal on appeal.)
    The district court ultimately granted Shaw and Hudson’s motion for summary
    judgment. The court concluded that Ames could not establish a prima facie case for
    First Amendment retaliation against Shaw because he presented no evidence that Shaw
    No. 19-1035                                                                        Page 3
    knew about—let alone was motivated by—the first grievance. Regarding Hudson, the
    court determined that Ames failed to present any evidence that Hudson was even
    involved in his discharge. The court then rejected a new argument raised by Ames for
    the first time in his summary judgment response: Hudson was liable because he turned
    a blind eye to Shaw’s retaliatory conduct by failing to investigate and respond
    adequately to Ames’s grievances, not because he participated personally in Ames’s
    termination. It was too late, the court concluded, for Ames to amend his theory of the
    case.
    On appeal, Ames primarily challenges the district court’s conclusion that he did
    not present evidence sufficient to show that Shaw retaliated against him for filing his
    first grievance. But to show that a plaintiff’s protected activity motivated a defendant’s
    decision to retaliate, the plaintiff first must “produce evidence that the defendant knew
    about the protected speech.” Consolino v. Towne, 
    872 F.3d 825
    , 830 (7th Cir. 2017). Ames
    invokes a post-discharge conversation he allegedly had with Hudson in which Hudson
    told him that he had spoken with Shaw about the grievance. But Ames conceded in the
    district court—in his response to defendants’ statement of undisputed facts—that
    Hudson never spoke with Shaw about the first grievance, and he is “bound to his
    admission.” Milwaukee Ctr. for Indep., Inc. v. Milwaukee Health Care, LLC, 
    929 F.3d 489
    ,
    493 (7th Cir. 2019). Regardless, the evidence shows that Hudson never received Ames’s
    first grievance and did not even become aware of that grievance until he reviewed
    Ames’s second grievance complaining of retaliation. Ames speculates that Hudson
    received the first grievance and simply refused to date it or respond to it, but
    speculation is not enough to create a genuine fact question for the purpose of summary
    judgment. See Consolino, 872 F.3d at 830.
    Next, Ames generally challenges the district court’s decision to grant summary
    judgment on his retaliation claim against Hudson. But we decline to consider this claim
    because Ames explicitly abandoned it in his summary judgment response; in that
    response, he clarified that he sought to hold Hudson liable not for committing any
    retaliatory act, but for failing to investigate and respond to his grievances. When a
    litigant intentionally chooses to pursue one argument over another, he waives his right
    to make the abandoned argument on appeal. See Hamer v. Neighborhood Hous. Servs. of
    Chicago, 
    897 F.3d 835
    , 840 (7th Cir. 2018); Williams v. REP Corp., 
    302 F.3d 660
    , 666 (7th
    Cir. 2002).
    No. 19-1035                                                                              Page 4
    Finally, Ames asserts for the first time that he proffered evidence from which a
    jury could find that Hudson and Shaw conspired to retaliate against him. But Ames
    forfeited this claim by failing to present it in the district court. See Milligan v. Bd. of Trs.
    of Southern Ill. Univ., 
    686 F.3d 378
    , 386 (7th Cir. 2012). Though his initial complaint did
    allege a conspiracy claim, that complaint was superseded by his second amended
    complaint (“the governing document in this case,” Anderson v. Donahoe, 
    699 F.3d 989
    ,
    997 (7th Cir. 2012)), which alleged only retaliation, and Ames did not otherwise press a
    conspiracy claim at summary judgment.
    AFFIRMED
    

Document Info

Docket Number: 19-1035

Judges: Per Curiam

Filed Date: 1/23/2020

Precedential Status: Non-Precedential

Modified Date: 1/23/2020