# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 22, 2019 *

Decided April 23, 2019

Before

DIANE P. WOOD, Chief Judge

WILLIAM J. BAUER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 18

‐ 3052

CHRISTOPHER S. STRECKENBACH,

Plaintiff

‐ Appellant

,

v

.

MICHAEL MEISNER, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 17

‐ C

‐ 412

Lynn Adelman,

J udge

.

O R D E R

Christopher Streckenbach, a Wisconsin inmate formerly housed at Redgranite

Correctional Institution, sued several prison officials for retaliation under the First

Amendment when they subjected him to a cell search and otherwise harassed him after

he filed a lawsuit against a prison employee. The district court entered summary

judgment for the defendants, concluding that Streckenbach did not exhaust his

administrative remedies for his claims against several defendants and that he presented

* We 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. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 18

‐ 3052 Page 2

insufficient evidence of constitutional violations committed by the remaining

defendants. We affirm.

This is Streckenbach’s second suit against officers at Redgranite. In 2015 he sued

the warden and a sergeant relating to the destruction of his personal property and lost

at summary judgment; we affirmed. Streckenbach v. VanDensen

, 868 F.3d 594 (7th Cir.

2017). Streckenbach traces the beginning of his difficulties with several officers to this

2015 suit.

Because Streckenbach did not respond to the defendants’ motion for summary

judgment in the manner required by the local rules, the district court adopted the

defendants’ proposed findings of fact, and we do the same. E.D. W IS

. C IV

. L.R. 56(b)(4);

Salvadori v. Franklin Sch. Dist

., 293 F.3d 989, 992 (7th Cir. 2002). As mentioned,

Streckenbach believes that the 2015 lawsuit led to the retaliatory acts that are the subject

of this suit. He describes a subsequent mailroom encounter when he allegedly was

mocked by Officers Scott Kosminskas and Michael Crump (Kosminskas supposedly

told Streckenbach that he heard Streckenbach was suing him and he wanted to know

whether he needed to hire a good defense attorney). And two years later Kosminskas

and Crump—still rankled by the 2015 lawsuit, according to Streckenbach—threatened

to send him to solitary confinement after he refused to be strip

‐ searched. Streckenbach

filed a grievance over the strip

‐ search incident against both officers, but the grievance

was dismissed. Streckenbach did not appeal the dismissal.

Streckenbach had run

‐ ins with other officers as well. While the 2015 suit was

pending, Officer Greg Radtke conducted a routine, monthly cell search and, according

to Streckenbach, turned his room upside down. Around this same time, Sergeant Jon

LaFontaine said that it was a joke for Streckenbach to think he would prevail in his

lawsuit, summoned him over the loudspeaker with an announcement that “attorney

Streckenbach” should go to the sergeant’s desk, rubber

‐ stamped “LEGAL MAIL OPEN

IN PRESENCE OF INMATE” on his correspondence more times than necessary, and

threatened to send him to solitary confinement for no reason. According to

Streckenbach, Officer Eric Podoski—for no reason—also threatened to send him to

solitary confinement, kicked his cell door on occasion, and once called him “RGCI’s

biggest jailhouse snitch” in front of other inmates.

Believing that all these attacks were retaliation for his 2015 suit, Streckenbach

filed multiple grievances complaining as much, and he formally asked several times to

be separated from these officers. These complaints were reviewed by Security DirectorNo. 18

‐ 3052 Page 3

David Tarr and Unit Supervisor Joli Grenier, who either denied the grievances or left

them unresolved by the time Streckenbach filed this suit. Streckenbach in turn filed a

grievance against Officer Grenier, complaining that she had taken too long to address

his grievances. This grievance was dismissed, and he did not appeal it.

Streckenbach also says that he sought help from certain prison officials to

intervene and curb the abuse, but no one stepped up. Among those officials whom he

named were prison Warden Michael Meisner, Deputy Warden Sandra Hautamaki,

Administrative Captain Andrew Wesner, Captain Chad Keller, Psychologist Supervisor

Nikolaus Werner, and Institution Complaint Examiner Michelle Smith.

Streckenbach then filed this suit, bringing First Amendment retaliation claims

against five defendants (LaFontaine, Podoski, Crump, Kosminskas, and Radtke) and

failure

‐ to

‐ intervene claims against eight others (Meisner, Hautamaki, Tarr, Wesner,

Grenier, Keller, Werner, and Smith).

The judge entered summary judgment for all defendants. He determined that

Streckenbach did not exhaust his administrative remedies regarding claims against six

defendants (Meisner, Hautamaki, Wesner, Keller, Werner, and Smith—whose conduct

he never challenged in an inmate complaint), as well as Crump and Kosminskas (he did

not appeal the dismissal of his complaint over the strip

‐ search incident, nor had he

received a decision on one then

‐ pending separation request against them). As for

LaFontaine, Podoski, and Radtke, the judge ruled that no jury could conclude that their

allegedly retaliatory acts were serious enough to deter a reasonable person from

engaging in future First Amendment activity. Lastly, regarding Streckenbach’s claim

that Tarr failed to intervene to stop the defendants’ retaliatory behavior, the judge

determined that their behavior was not unconstitutional, so there was no reason for

Tarr to do anything about it. 1

On appeal Streckenbach maintains generally that he fully exhausted his

administrative remedies for all his claims. But the exhaustion requirement is strict,

requiring a prisoner to complete the administrative review process in accordance with

the applicable procedural rules, including deadlines. Woodford v. Ngo, 548 U.S. 81, 85

(2006); Pozo v. McCaughtry

, 286 F.3d 1022, 1025 (7th Cir. 2002). As the district court

properly determined, Streckenbach failed to exhaust his remedies against Meisner,

1 The judge’s order puzzlingly omitted any analysis of Streckenbach’s claim

against Unit Supervisor Joli Grenier.No. 18

‐ 3052 Page 4

Hautamaki, Wesner, Keller, Werner, and Smith because he did not file any inmate

complaints against them challenging their failure to intervene on his behalf.

W IS

. A DMIN

. C ODE DOC § 310.01(2)(a). He also failed to exhaust his remedies against

Crump, Kosminskas, and Grenier because he did not appeal the dismissals of his

complaints against them. Id. §§ 310.05, 310.09.

As for Streckenbach’s First Amendment retaliation claims (which he did exhaust)

against Podoski, Radtke, and LaFontaine, he generally challenges the entry of summary

judgment on grounds that the judge downplayed the seriousness of the alleged

misconduct. But to survive summary judgment, he needed to provide enough evidence

to allow a reasonable jury to conclude that (1) he engaged in activity protected by the

First Amendment; (2) he suffered a deprivation likely to deter future protected activity;

and (3) his protected activity at least partially motivated the deprivation suffered.

Walker v. Groot

, 867 F.3d 799, 803 (7th Cir. 2017).

The judge concluded that Streckenbach’s claim against Podoski faltered on the

second prong—that a reasonable jury could not find that Podoski’s behavior was likely

to deter future protected activity. But Streckenbach could point to evidence that

Podoski called him a snitch in front of other inmates, and the First Amendment

prohibits conduct that would likely deter a person of “ordinary firmness” from

continuing to engage in protected activity. Surita v. Hyde

, 665 F.3d 860, 878 (7th Cir.

2011). It is “common knowledge that snitches face unique risks in prison,” Dale v.

Poston

, 548 F.3d 563, 570 (7th Cir. 2008), and we think that a reasonable juror could infer

that being labeled a snitch would likely deter a person of “ordinary firmness” from

exercising his First Amendment rights. As for Podoski’s other conduct—threatening to

send him to solitary confinement for no reason and occasionally kicking his cell door—a

reasonable jury could conclude that those actions, too, could deter protected conduct.

The adverse actions “need not be extreme, ʺ Massey v. Johnson

, 457 F.3d 711, 720 (7th Cir.

2006), nor need they independently violate the constitution, Bridges v. Gilbert

, 557 F.3d

541 (7th Cir. 2009); Hoskins v. Lenear

, 395 F.3d 372 (7th Cir. 2005). And we have explicitly

said before that kicking a cell door could, if done with a retaliatory motive, be

actionable. Bridges

, 557 F.3d at 541.

The judge, however, appropriately concluded that even if Streckenbach satisfied

the second prong, summary judgment was still proper under the third prong because

there was no record evidence of a retaliatory motive. Streckenbach cannot point to any

evidence suggesting that Podoski was even aware of the 2015 lawsuit at the time of any

of this conduct, let alone that he was motivated by it. (Podoski in fact says that he didNo. 18

‐ 3052 Page 5

not learn of the lawsuit until December 12, 2016, when Chad Keller, his supervising

officer, discussed Streckenbach’s complaints with him.) Streckenbach speculates that

Podoski must have learned about his lawsuit because the prison is a small place and

word gets around, but neither speculation nor suspicious timing—without more—is

enough to survive summary judgment. Herzog v. Graphic Packaging Int ʹ l, Inc.

, 742 F.3d

802, 806 (7th Cir. 2014).

Summary judgment was properly entered for LaFontaine, as well. The judge was

correct that Streckenbach could not satisfy the second prong of the prima facie case. No

rational jury could conclude that much of LaFontaine’s conduct—poking fun at the

amount of money Streckenbach sought in damages, mocking him for thinking he could

prevail in his lawsuit, summoning him to the sergeant’s desk over the loudspeaker with

references to “attorney Streckenbach,” or excessively rubber

‐ stamping “LEGAL MAIL”

on correspondence addressed to Streckenbach—would deter a person of “ordinary

firmness” from future protected activity. True, we have noted that a “campaign of petty

harassments” that included reprimands and ridicule could be enough to deter free

expression, see, e.g.

, Massey

, 457 F.3d at 720–21, but we believe on this record that the

judge accurately assessed the situation.

Streckenbach also complained that LaFontaine threatened to send him to solitary

confinement—a threat that, as we already have said, could deter a person of ordinary

firmness from exercising future speech. But this does not justify reversal because

Streckenbach cannot satisfy the third prong of the prima facie test. The record here

(effectively the defendants’ uncontested version of the facts) permits no inference to

allow a jury to find that any such threat was motivated by the 2015 suit.

The judge also correctly concluded that Streckenbach’s claim against Radtke

faltered on the second prong of the prima facie test. No reasonable jury could conclude

that Radtke’s monthly search of his cell would deter a person of ordinary firmness from

exercising future speech. Not only was the cell search Streckenbach complains of

routine, but there is no evidence that the search was conducted improperly.

Lastly, Streckenbach’s claim against Tarr—that he failed to intervene to prevent

violations of Streckenbach’s First Amendment rights—also fails. The judge was correct

that to prevail, Streckenbach would need to show that Tarr had knowledge of those

violations, see Gill v. City of Milwaukee

, 850 F.3d 335, 342 (7th Cir. 2017), and

Streckenbach did not provide evidence that any occurred at all.

AFFIRMED