United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 9, 2012

*

Decided July 12, 2012

Before

JOEL M. FLAUM, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 11-3217

JOHN W. PEROTTI,

Plaintiff-Appellant,

v.

DIANA QUINONES, et al.,

Defendants-Appellees.

Appeal from the United States District

Court for the Southern District of Indiana,

Terre Haute Division.

No. 2:10-cv-86-JMS-MJD

Jane E. Magnus-Stinson,

Judge.

O R D E R

John Perotti brieflyworkedas a clerk in the prison law library while incarcerated at the

federal penitentiary in Terre Haute, Indiana. In this lawsuit under Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), he alleges that twice he was fired

from his clerk position. The first time, he says, two prison employees took away his job in

retaliation for filing grievances. And when he succeeded in getting that action reversed,

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

After examining the briefs and the record, we have concluded that oral argument is

*

unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P.

34(a)(2)(C).
No. 11-3217 Page 2

Perotti continues, a third prison employee got him fired permanently in retaliation for

providing legal assistance to otherinmates. Thedistrict court grantedsummary judgment for

the defendants, reasoning that Perotti lacks evidence of their personal involvement in the

decisions to terminate his employment.

We review the admissible evidence at summary judgment in the light most favorable

to Perotti. See Smeigh v. Johns Manville, Inc., 643 F.3d 554, 560 (7th Cir. 2011). Perotti had been

working in the law library as an orderly for several months during 2008 when Billie

Kelsheimer, aBureauof Prisons teacher assignedtothe library, offeredhimapromotion to the

position of clerk. He accepted, but on September 5, afterjust two weeks on the job, Kelsheimer

told himthat the clerk position no longer was his. According toPerotti, Kelsheimer explained

that DianaQuinones,theprison’s supervisorof education,hadtoldKelsheimer she wouldnot

approve the promotion because he filed too many administrative grievances against the

prison’s education department.

At times during this litigation, Quinones and Kelsheimer, both of them defendants,

have said that Perotti was not even promoted until September 17, but that is their view of the

evidence, not his. Perotti contends that hewaspromotedinAugust,firedonSeptember 5, and

reinstated on September 29. Quinones and Kelsheimerrest theirlitigation position on hearsay

in the declaration of Perotti’s correctional counselor, who purportedly reviewed an

undisclosed computer record “indicating,” she says, that Perotti worked in the Education

Department (whichincludes the lawlibrary)fromApril 2008 until September 17. Onthe other

hand, Kelsheimer answered an interrogatory by saying that she could not even recall

recommending Perotti for a promotion, and she has never denied that he was fired and

reinstated shortly after he was promoted. Neither has Quinones herself denied that Perotti

was fired and rehired. She did respond to one of his interrogatories by flatly denying that she

told Kelsheimer he must lose his clerk job because he filed too many grievances. This denial

came, however, many months after Quinones had ignored – and as far as the record shows,

never did answer – Perotti’s written request to admit that she “refused to change” his job

classification from orderly to clerk and told Kelsheimer that the reason for this decision was

Perotti’s filing of “too many” grievances against her department. In their motions for

summary judgment, Quinones and Kelsheimer did not introduce evidence suggesting, let

alone proving beyond reasonable dispute, that someone otherthan the two of themhad made

the decisions to promote Perotti in August and then fire him on September 5.

Perotti reacted to losing his promotion by complaining that he was being retaliated

against for utilizing the grievance system. Three weeks later – on September 29 – an associate

warden met with Quinones and Kelsheimer in Perotti’s presence and directed them to

reinstate him to his clerk position. For purposes of summary judgment, we must assume this

meeting occurredas plaintiff says. Perotti avers that duringthismeetingthe associatewarden
No. 11-3217 Page 3

instructed these two defendants to give him back pay, and a payrollrecord introduced by the

defendants corroborates his account.

Perotti was reinstated on September 29, but his success was fleeting. On October 1,

2008,he was helping anotherinmateprepare an administrative appeal andtriedtophotocopy

some documents. Laura Wheeler, another teacher working in the law library, demanded to

see those documents, with the explanation that Perotti could not use the copier without proof

of animpendinglegal deadline. Wheelerlookedat thedocuments,toldPerottithat he was not

permitted to assist other inmates in filing “liens,” and told him to take the documents and

leave the copy room. Perotti did so and sent the papers back to their owner, who was

challenging a disciplinary sanction for threatening to file a lien against a prison employee.

Fifteen minutes later, Wheeler and a guard confronted Perotti and demanded the papers.

When Perotti said he no longer had them, Wheeler searched his bag and confiscated copies

belonging to Perotti of unrelated public records. Wheeler then filed a misconduct report

accusing Perotti of lying about having an impending deadline and violating a policy

forbidding prisoners from possessing another inmate’s legal materials outside the library.

Wheeler, the third defendant in this lawsuit, promptly recommended toPerotti’s correctional

counselor that he be fired from his library position.

Based on the misconduct report and Wheeler’s recommendation, Perotti’s counselor,

who is not a defendant,removed hima second time from his library position. He complained

tothe assistant wardenthat his counselorhadviolatedBOPpolicybyremovinghimbefore the

misconduct report hadbeenadjudicated. Theassistant wardenagreedandonceagainordered

him reinstated, but two hours later his counselor presided over a disciplinary hearing and

declared him guilty of both charges. As part of his punishment, his counselor then

permanently removed him from his position in the law library. He appealed the findings of

guilt, and both eventually were reversed – the charge for possessing anotherinmate’s papers

because it was unfounded and the charge forlying due to an undisclosed “procedural error.”

By that point five months had passed; Perotti was again awarded back pay, but he was not

returned to his job in the law library or given any otherjob at Terre Haute. He was transferred

to a different facility in April 2010.

Perotti then filed this suit in state court. The three defendants removed the case to

federal court, and after screening Perotti’s complaint, see 28 U.S.C. § 1915A, the district court

allowed his retaliation claims toproceed. At summary judgment, however,the court credited

thedefendants’ denialsofpersonalinvolvement intheallegedretaliation. Likethedefendants,

the district judge did not appreciate that Perotti claims he was fired twice, not once. The

district court reasoned that Perotti had only hearsay to support his contention that Quinones
No. 11-3217 Page 4

ordered Kelsheimer to rescind his promotion. And Kelsheimer and Wheeler, the court

continued, were not the employees who decided to fire him.

On appeal, Perotti first contends that the district court should have excluded the

declarations of the defendants and other BOP employees because the authors do not say

explicitly that they are speaking from personal knowledge. The absence of such a

representation, however, is not a valid objection to the declarations. To the extent that the

authors are speaking about their duties or the events they purportedly witnessed, personal

knowledge reasonably can be inferred from the content of the declarations. See DirecTV, Inc.

v. Budden, 420 F.3d 521, 529–30 (5th Cir. 2005); Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999,

1018 (9th Cir. 1990). Perhaps instead Perotti criticizes the declarations because they also

include some representations of fact that plainly are not based on personal knowledge, but

since our review is de novo, Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir. 2011), we may cure

any possible error by considering only the portions that are admissible, see Buie v.

Quad/Graphics, Inc., 366 F.3d 496, 506 (7th Cir. 2004).

Perotti also contends that the district court erroneously concluded that he did not

present sufficient evidence to survive summary judgment. As to Quinones and Kelsheimer,

we agree with him.

As noted, Kelsheimer has not denied recommending Perotti for a promotion, nor has

she denied that he was fired and then reinstated soon after he was promoted. Her position

seems tobe that someone elsemade thedecisiontoendhis tenure as a clerk, but inmakingthis

argument Kelsheimerfocuses on the second termination, not the first. What is clear about the

first termination is that, when the assistant warden overturned that decision, she did so in a

meeting at which Quinones and Kelsheimer were the only staff members in attendance, and

from this a jury reasonably can infer that the assistant warden was addressing them because

they were the employees being overruled. Perotti says that it was Kelsheimer who told him

on September 5 that he no longer had a job, so it is unlikely that she did not participate in

taking away his promotion.

Kelsheimer might argue that she made the announcement thoughnot thedecision, but

a jury could find otherwise. Perotti avers in his verified complaint and later affidavit that

Kelsheimer called himintoher office and told himhe was being fired “because Quinones said

he ‘filed too many administrative remedies.’” Perotti’s account of Kelsheimer’s statement is

admissible against Kelsheimer as a nonhearsay party admission. See Fed. R. Evid.

801(d)(2)(A); United States v. Penaloza, 648 F.3d 539, 545 (7th Cir. 2011). Read in the light most

favorable toPerotti, it shows not onlyawareness that he was beingfiredinretaliationforusing

the grievance process but alsosuggests that Kelsheimerhada voice in thedecision andat least
No. 11-3217 Page 5

acquiesced. Perotti avers that Kelsheimer gave him the job, and a jury could infer that,

although her boss Quinones was the impetus, she made the decision to take it away. This

inference is only made stronger by the failure of both Quinones and Kelsheimer to explain

who, if not they, rescinded Perotti’s promotion before the assistant warden reinstated him.

As for Quinones, the district court reasoned that she is off the hook because Perotti

wouldencounterahearsayobjectionifhe triedtotestifyabout what Quinones toldKelsheimer

(and he cannot call Kelsheimer because she has said she cannot recall the conversation). The

district court, however, did not fully consider other evidence linking Quinones to the

statement attributed to her by Kelsheimer. In his affidavit Perotti says that, after he was told

by Kelsheimer that his promotion had been rescinded, he confronted Quinones, who did not

deny that she had put the kibosh on his promotion due to his past grievances. Thus there is

evidence that Quinones failed to deny retaliatory conduct when accused, which is admissible

as an adoptive admission if a reasonable person would have been expected to deny the

accusation if it was false. See Fed. R. Evid. 801(d)(2)(B); United States v. Ward, 377 F.3d 671,

675–76 (7th Cir. 2004); Rahn v. Hawkins, 464 F.3d 813, 820–21 (8th Cir. 2006). Further, based on

the record before us, we cannot determine whether Quinones ever answered Perotti’s request

that she admit having refused to upgrade his job classification from orderly to clerk and said

the reason was his grievances against her department. If she did not answer this request for

admission,thedistrict court wasobligatedtodeemthat contentionadmitted,notwithstanding

that Quinones elsewhere denied personal involvement in firing Perotti, see Fed. R. Civ. P.

36(a)(3), unless the court grants relief from the admission under Rule 36(b). See McCann v.

Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003); United States v. Kasuboski, 834 F.2d 1345, 1349 (7th

Cir. 1987).

Accordingly,the retaliationclaimagainst Quinones andKelsheimermust be remanded

for trial. Summary judgment was appropriate, however, on Perotti’s claim that Wheeler

retaliated against him for providing legal assistance to other inmates – though not for the

reason that the district court stated. The court discerned no evidence that Wheeler was

personally involved in the decision to terminate Perotti’s library employment; that is a

puzzling conclusion given the admissioninthedefendants’ answertoPerotti’s complaint that

he “was fired from his library job by Individual Defendant Wheeler.” Regardless, the

conclusion is untenable since the only reason Perotti was fired the second time is that his

counselorfound him guilty of the misconduct charges lodged byWheeler. It may be true that

Perotti’s counselor made the final decision topermanently remove himfromhis job as a clerk,

but to say that Wheeler did not participate in the chain of events leading to his termination is

inaccurate.

Yet Perotti’s claim still lacks merit. He accuses Wheeler of lodging false misconduct
No. 11-3217 Page 6

charges, an action that could support a claim for retaliation. See Black v. Lane, 22 F.3d 1395,

1402–03 (7th Cir. 1994). Falsifying a disciplinary charge, however, will not give rise to liability

for unconstitutional retaliation unless the motive for the fabrication was to retaliate for the

exercise of a constitutional right. See Lagerstrom v. Kingston, 463 F.3d 621, 625 (7th Cir. 2006);

Black, 22 F.3d at 1402. And inmates do not have a constitutional right to provide legal

assistance to other prisoners. See Shaw v. Murphy, 532 U.S. 223, 231 (2001) (declining “to cloak

the provision of legal assistance with any First Amendment protection above and beyond the

protection normally accorded prisoners’ speech”); Watkins v. Kasper, 599 F.3d 791, 797 (7th Cir.

2010). Perotti tries to ground such a right in BOP program statements authorizing inmates to

assist each other with legal work, see U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program

Statements 1315.07(10)(f), 1330.13(10), but these statementsdonot create constitutionalrights,

see United States v. Caceres, 440 U.S. 741, 751–52 (1979); Robinson v. Sherrod, 631 F.3d 839, 842

(7th Cir. 2011); Miller v. Henman, 804 F2d 421, 424–25 (7th Cir. 1986). Thus, even if a jury might

conclude that Wheeler’s accusation of misconduct was intentional rather than simply hasty,

and even if the evidence points to a conclusion that she was motivated to fabricate the charges

because of disdain for Perotti’s assistance to otherprisoners, his claimof actionable retaliation

fails as a matter of law.

The order granting summary judgment for Quinones and Kelsheimer is VACATED,

and the case is remanded for further proceedings as to those defendants. As to Wheeler the

judgment is AFFIRMED.