# 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,

Plaintiff

‐ Appellant

,

v

.

ROBERT M. ROBERTSON,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 3:07

‐ cv

‐ 453

‐ DGW

Donald G. Wilkerson,

M agistrate 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 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 NONPRECEDENTIAL DISPOSITION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. 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 pastNo. 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.” F ED

. R. C IV

. 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 F ED

. R. E VID

. 803(8)(A)(iii), (B). Furthermore, as we have

already observed, to prevail on appeal Antoine must show that Robertson’s version wasNo. 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.