*

 After an examination of 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).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 26, 2006*

Decided June 23, 2006

Before

Hon. JOHN L. COFFEY, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 05-2773

AUSTIN C. SZYMANKIEWICZ,

Plaintiff-Appellant,

v.

DENICE DOYING,

Defendant-Appellee.

Appeal from the United States District

Court for the Western District of

Wisconsin

No. 04-C-186-C

Barbara B. Crabb, 

Chief Judge.

O R D E R

Austin Szymankiewicz, an inmate in the Wisconsin prison system, brought

suit under 42 U.S.C. § 1983 claiming that prison employees retaliated against him

in violation of the First and Fourteenth Amendments because he filed inmate

complaints against several of them. He also asserted several state-law claims over

which the district court exercised supplemental jurisdiction. The district court

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-2773 Page 2

granted summary judgment for the defendants on the state claims and all but one

of the federal claims. The remaining claim against guard Denice Doying was tried

to a jury, but the district court granted Doying’s motion for a judgment as a matter

of law. We affirm the judgment.

For the most part, the facts are undisputed. Szymankiewicz was confined at

the Kettle Moraine Correctional Institution in Plymouth, Wisconsin, where since

2001 he worked as a clerk in the prison law library. In 2003, Szymankiewicz filed

an inmate complaint alleging that defendant Conrad Reedy, the prison librarian,

was permitting inmates without court deadlines to use the law library in the

evenings in violation of prison policy. The complaint was dismissed as lacking

merit. Several weeks later, Szymankiewicz filed another inmate complaint alleging

that defendant Hayley Hermann, an inmate complaint examiner, violated policy by

divulging to Reedy that Szymankiewicz was the complainant against him. That

complaint also was dismissed as unfounded.

 

Meanwhile, in June 2003, the prison had conducted a routine lockdown to

search the prison for contraband. Defendant David Picard found documents in the

library addressed to Szymankiewicz indicating that he was violating prison rules by

performing legal work for inmates during his paid work time and accepting

compensation for his legal assistance. Picard issued a conduct report for the

violation, which was approved by defendant Mike Dittman, the prison security

director. Pending a hearing, Szymankiewicz was suspended with pay from his

library clerk job. Szymankiewicz eventually was found not guilty, and the conduct

report was dismissed. But in the interim Reedy hired another inmate to take

Szymankiewicz’s library clerk position. Szymankiewicz wrote to defendant David

Tarr, prison administrative captain, asking that his position be restored, but Tarr

upheld the termination. Szymankiewicz then filed a formal complaint challenging

his termination, and in July 2003 he was ordered returned to his position at a

reduced pay scale but given back pay. That order took effect in August after his

replacement was transferred to another facility.

While Szymankiewicz was suspended from his library clerk job, defendant

Doying assigned him to mow lawns at the prison. Szymankiewicz complied for one

day, but the next day claimed illness and sought to be excused. Doying denied his

request for a medical excuse with the explanation that it was not made before 6:00

a.m. as required by prison policy. Szymankiewicz again complied with Doying’s

order, but two days later he received a two-week “no work restriction” from the

prison’s Health Services Unit and during that period was restored to his library

clerk position. Szymankiewicz filed a complaint against Doying for forcing him to

mow lawns, but the complaint was dismissed on the ground that she had discretion

to assign him to another job because he was still in pay status while suspended

from his library job.
No. 05-2773 Page 3

Before the summer ended, Doying also searched Szymankiewicz’s cell twice

during routine random searches by prison staff. In July 2003 she removed what she

identified as excess property from his cell, including legal documents belonging to

other inmates, and wrote up a conduct report. Szymankiewicz filed a complaint

challenging the confiscation of the legal documents. The complaint initially was

denied on the ground that challenges to conduct reports are outside the scope of the

inmate complaint review process. That ruling was reversed when Szymankiewicz

appealed; the legal documents belonging to other inmates were then returned to

Szymankiewicz, and others of his own that he says Doying also confiscated were to

be replaced with copies available from the court where they had been filed. In

September 2003 Doying confiscated highlighters from Szymankiewicz’s cell and

issued a conduct report. Szymankiewicz filed a complaint alleging that legal

documents were confiscated. That complaint was dismissed after reviewers

concluded that Doying had not confiscated anything but the highlighters.

Szymankiewicz then filed suit in federal court essentially claiming that all of

the disciplinary action taken against him and undesirable work assignments given

to him during this five-month period of time were an attempt by the defendants to

retaliate against him, both individually and as part of a conspiracy, for filing inmate

complaints against them. The district court granted summary judgment for

defendants Reedy, Hermann, Picard, Dittman, and Tarr, as well as partial

summary judgment for defendant Doying on the lawn-mowing and September 2003

cell search claims, after concluding that the evidence submitted by Szymankiewicz

did not support an inference that the defendants retaliated or conspired to retaliate

against him for filing inmate complaints. The court also dismissed the state-law

claims for failure to file a notice of claim with the Attorney General under Wis. Stat.

§ 893.82. But the court allowed one claim against Doying to proceed to trial because

in her summary judgment response she did not deny that she removed legal

documents from Szymankiewicz’s cell during the July 2003 search to retaliate

against him for filing an inmate complaint against her for assigning him to mow

lawns. At the close of Szymankiewicz’s case-in-chief, however, the district court

granted Doying’s motion for judgment as a matter of law, see Fed. R. Civ. P. 50(a),

because Szymankiewicz failed to present any evidence that Doying was aware that

he had filed a complaint against her for the lawn-mowing assignment, and therefore

no reasonable juror could find that she retaliated against him by confiscating legal

documents from his cell.

On appeal Szymankiewicz challenges both the grant of summary judgment

on his federal claims as well as the decision to remove his case against Doying from

the jury. We review a grant of summary judgment de novo, construing all facts and

drawing all reasonable inferences in favor of Szymankiewicz as the non-moving

party. Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005). Summary
No. 05-2773 Page 4

judgment is appropriate if the moving party demonstrates “there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). 

Szymankiewicz argues that he presented sufficient evidence to preclude

summary judgment for the defendants. To prevail on a retaliation claim, a prisoner

must show that state officials took action to punish him for engaging in

constitutionally protected conduct, such as speech or exercising his right of access to

the courts. See Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996). Otherwise

permissible actions by prison officials can become impermissible if done for

retaliatory reasons. Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000). But

the burden on the prisoner is high as he must show that his protected conduct was

a motivating factor for the retaliation and that events would have transpired

differently had there been no retaliatory motive. Babcock, 102 F.3d at 275.

Here, Szymankiewicz claims that the defendants retaliated against him for

exercising his right to use the prison grievance process. His brief refers generally to

conduct reports, negative performance evaluations, and an undesirable work

assignment that, he contends, are evidence in support of that claim. But the mere

fact that prison officials disciplined Szymankiewicz or assigned him to mow lawns is

not evidence of retaliation. Nor does his unsupported speculation and conjecture

about the defendants’ motives constitute evidence. He points to no evidence

indicating that the defendants’ actions were motivated by a desire to retaliate

against him for filing inmate complaints or that the defendants would not have

disciplined him or assigned him to mow lawns absent any retaliatory motive. Thus,

the district court properly concluded that Szymankiewicz raised no issues of

material fact precluding summary judgment on his retaliation claims. Moreover,

this lack of evidence also doomed his conspiracy claim. 

Szymankiewicz also argues that the district court erred in refusing to

consider as evidence certain exhibits that were annexed to either the complaint or

the affidavit he submitted in opposition to the defendants’ summary judgment

motion. We review for abuse of discretion a district court’s decision to disregard

portions of a plaintiff’s affidavit. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504

(7th Cir. 2004). The plaintiff must demonstrate both that the district court erred

and that exclusion of the evidence prejudiced his “substantial rights.” Id. In

evaluating a summary judgment motion, the court may consider as evidence

properly authenticated and admissible documents or exhibits. Scott v. Edinburg,

346 F.3d 752, 760 n.7 (7th Cir. 2003); Woods v. City of Chicago, 234 F.3d 979, 988

(7th Cir. 2001). To be admissible, documents must be authenticated by an affiant

through whom the exhibits could be admitted into evidence. Article II Gun Shop,

Inc. v. Gonzales, 441 F.3d 492, 496 (7th Cir. 2006); Scott, 346 F.3d at 760 n.7. 
No. 05-2773 Page 5

Szymankiewicz focuses primarily on three exhibits that are annexed to the

verified complaint and to his affidavit. He argues that the district court improperly

refused to consider the exhibits on the ground that they were inadmissible. The

first two exhibits are documents generated by the prison: an inmate work/program

assignment form (Exhibit J of the complaint) and an offender performance

evaluation (Exhibit E of the complaint). But there is no affidavit from the author or

custodian of the documents concerning their authenticity; accordingly the

documents are not admissible. See Article II Gun Shop, 441 F.3d at 496; Scott, 346

F.3d at 760 n.7. The third exhibit identified by Szymankiewicz is a list of questions

with handwritten notes entitled “Due Process Witness Questions for C/O Mr. J.

Russell” (Exhibit F of the complaint and affidavit). Based on Szymankiewicz’s

statements in his affidavit, it appears that this document is a list of the questions

he posed to a guard at a disciplinary hearing and Szymankiewicz’s handwritten

notes of the guard’s testimony. His notes of the hearsay statements are not

authenticated by an affidavit from Russell and therefore the notes are inadmissible. 

See Article II Gun Shop, 441 F.3d at 496; Scott, 346 F.3d at 760 n.7. Even if the

documents had been admissible, they do not raise any material issues of fact to

support a retaliation claim. Thus, it was not an abuse of discretion for the district

court to decline to consider the documents in evaluating the summary judgment

motion. 

Finally, Szymankiewicz argues that the district court erred by granting

Doying’s motion for judgment as a matter of law on the remaining claim that she

retaliated against him when she searched his cell and seized legal documents in

July 2003. He argues generally that he presented sufficient evidence to allow his

claim to go to the jury. He also asserts that he was improperly denied permission to

introduce a document that would have further bolstered his retaliation claim.

We review the district court’s decision to grant judgment as a matter of law

de novo, viewing the evidence in the light most favorable to the non-moving party. 

Harper v. Albert, 400 F.3d 1052, 1061 (7th Cir. 2005). Judgment as a matter of law

is proper when “a party has been fully heard on an issue and there is no legally

sufficient evidentiary basis for a reasonable jury to find for that party on that

issue.” Fed. R. Civ. P. 50(a)(1); see also Harper, 400 F.3d at 1061.

Here, as the district court noted, the only reason Doying was not granted

summary judgment on this claim is that she failed to assert in her affidavit at

summary judgment that she thought inmates were not allowed to possess the legal

work of other inmates in their cells, and thus she had a basis for believing it proper

to confiscate the documents she found in Szymankiewicz’s cell. But as the district

court noted, Szymankiewicz presented no evidence at trial that Doying knew he had

filed an inmate complaint against her for the lawn-mowing assignment, and

therefore no reasonable jury could conclude that her confiscation of legal documents
No. 05-2773 Page 6

from his cell during the random search was a retaliatory act in response to that

complaint. Indeed, Szymankiewicz conceded that he presented no evidence that

Doying had knowledge that he filed a complaint against her. Szymankiewicz

argues that he was denied the right to present evidence because the district court

did not allow him to introduce a prison policy that, he contends, shows that Doying

was not allowed to order him to mow lawns. But the policy is irrelevant since it has

no bearing on whether Doying knew Szymankiewicz filed a complaint against her,

which is what Szymankiewicz needed to establish in order to show that it was this

exercise of protected conduct that motivated Doying to retaliate against him. 

Babcock, 102 F.3d at 275. Thus, the district court properly granted Doying’s motion

for judgment as a matter of law.

AFFIRMED.