# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 18, 2017 *

Decided October 12, 2017

Before

FRANK H. EASTERBROOK, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 17

‐ 1223

TERRANCE J. SHAW,

Plaintiff

‐ Appellant

,

v

.

J ON E. LITSCHER, et al.,

Defendants

‐ Appellees

. Appeal from the

United States District Court for the

Western District of Wisconsin.

No. 15

‐ cv

‐ 511

‐ wmc

William M. Conley,

J udge

.

O R D E R

Terrance Shaw, a Wisconsin prisoner, sued prison officials under 42 U.S.C. § 1983

alleging that they violated his rights under the First Amendment by retaliating against

him for filing a lawsuit. He complains of three retaliatory acts: prison officials ordered

him to discard some legal papers; transferred him to another prison; and tampered with

his outgoing mail. The district judge entered summary judgment for the defendants. We

affirm the judgment. A reasonable fact finder could not conclude that the defendants

* We have agreed to decide this 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 NONPRECEDENTIAL DISPOSITION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. 17

‐ 1223 Page 2

had a retaliatory motive or that their actions would deter an ordinary person from

exercising his First Amendment rights.

We review a summary judgment de novo and recount the facts in the light most

favorable to Shaw, the nonmoving party. See Chaib v. GEO Grp., Inc

., 819 F.3d 337, 340

(7th Cir. 2016). In 2012 Shaw sued staff at Oshkosh Correctional Institution for disability

discrimination. See Shaw v. Wall

, No. 12

‐ cv

‐ 497

‐ wmc, 2014 WL 4926185 (W.D. Wis. Sept.

30, 2014). Two years later, while that suit was ongoing, Shaw’s cellmate complained that

Shaw had too much personal property—including legal documents—in their cell. In

response prison staff and Shaw’s social worker met with Shaw and ordered him to

comply with Oshkosh’s property policy, which requires inmates to dispose of excess

property or request temporary storage. Shaw disposed of his excess property, including

36,000 pages of legal documents.

In July 2015 the prison’s program review committee met to consider Shaw’s

custody classification and institutional placement. Before the meeting the committee

received a report from Shaw’s social worker, who recommended a transfer. The social

worker was aware of Shaw’s disability suit, having learned of it about seven months

earlier. Shaw told the committee that he thought the transfer recommendation was

linked to his lawsuit. The committee accepted the social worker’s recommendation.

Shaw was eventually transferred to a different prison.

The disability suit was settled later in 2015. Shaw attempted to mail a copy of the

settlement agreement to an inmate at another prison. He placed a copy of the document

in an envelope and deposited it in the prison’s mailbox. Sergeant Keith Cook inspected

the envelope and saw that it contained the settlement agreement. Cook thought that

prison rules prohibited inmates from exchanging legal mail with inmates at different

institutions. But when Shaw showed Cook that the rules permit the exchange, Cook

acknowledged that he was mistaken. Cook swears that he sealed the envelope with the

settlement agreement inside and placed it with other outgoing mail. But when the

envelope reached the other inmate, the document was missing.

Shaw sued Cook and other prison officials who were involved in these three

incidents. He claims that the defendants retaliated against him for filing the

disability

‐ discrimination lawsuit, thus violating his rights under the First Amendment.

The district judge entered summary judgment for the defendants, explaining that the

evidence did not support an inference that the defendants were motivated to retaliate

against Shaw when they ordered him to destroy his excess property and recommended a

transfer. As for the mailroom encounter, the judge explained that there was no evidenceNo. 17

‐ 1223 Page 3

that Sergeant Cook had removed the copy of the settlement agreement from Shaw’s

envelope. Even if he had, the judge added, that alone was too inconsequential to deter an

ordinary prisoner from exercising his speech rights.

On appeal Shaw contends that he presented enough evidence to survive

summary judgment. Shaw can prevail only if a reasonable fact finder could conclude

from this record that the defendants intended to deter protected speech. See Herron v.

Meyer

, 820 F.3d 860, 863 (7th Cir. 2016); Dobbey v. Ill. Dep’t of Corr.

, 574 F.3d 443, 446 (7th

Cir. 2009); Hasan v. U.S. Dep’t of Labor

, 400 F.3d 1001, 1005 (7th Cir. 2005). We accept for

present purposes that Shaw’s disability lawsuit was protected speech.

Shaw argues first that the district judge should have excluded the evidence that

his cellmate had complained about excess property in their cell. One of the defendants

had attested to this in an affidavit; Shaw objects to that statement as hearsay. The

statement is not hearsay. It was not offered for the truth of the cellmate’s assertion that

Shaw had too much property in the cell. Rather, it was offered as evidence of the

defendants’ reason for investigating whether Shaw had too much property. See Simpson

v. Beaver Dam Cmty. Hosps.

, 780 F.3d 784, 796 (7th Cir. 2015); United States v. Leonard–

Allen

, 739 F.3d 948, 954 (7th Cir. 2013) (“A witness’s statement is not hearsay if the

witness is reporting what he heard someone else tell him for the purpose of explaining

what the witness was thinking, at the time or what motivated him to do something.”).

And because this was the only evidence of why Shaw was ordered to remove legal

papers from his cell, the judge rightly concluded that the record could not support a

finding that the order was retaliatory.

Shaw next argues that his social worker’s knowledge of his lawsuit was sufficient

to show that her transfer recommendation was retaliatory. As we’ve explained in other

retaliation cases, mere knowledge that someone has engaged in protected speech does

not permit an inference that an adverse action occurred because of this knowledge.

See Healy v. City of Chicago

, 450 F.3d 732, 741 (7th Cir. 2006).

Shaw replies that the timing of the transfer recommendation is suspicious; the

social worker made the recommendation about seven months after learning of his

lawsuit. But we’ve held in other cases that a time lag of seven months is too long to

permit a reasonable inference of retaliation. See Feldman v. Olin Corp.

, 692 F.3d 748, 757

(7th Cir. 2012) (eight months between protected activity and adverse action insufficient);

Kidwell v. Eisenhauer

, 679 F.3d 957, 966–67 (7th Cir. 2012) (more than five weeks between

protected activity and adverse action insufficient); Wallscetti v. Fox

, 258 F.3d 662, 669 (7th

Cir. 2001) (same for four

‐ month interval).No. 17

‐ 1223 Page 4

Finally, Shaw argues that the judge overlooked a factual dispute about whether

Sergeant Cook tampered with his outgoing mail. But even if we assume that Cook

interfered with Shaw’s mail, and assume further that he did so to punish Shaw for his

disability suit, Shaw could not win on a retaliation claim at trial. To prevail Shaw must

show that the interference was serious enough to deter an ordinary prisoner from

exercising his speech rights. See Novoselsky v. Brown

, 822 F.3d 342, 354 (7th Cir.

2016); Herron

, 820 F.3d at 863–64; Bridges v. Gilbert

, 557 F.3d 541, 546 (7th Cir. 2009). It

wasn’t. This single, minor instance of mail tampering, if it occurred, was not enough to

deter an ordinary prisoner from exercising his First Amendment rights.

We have considered Shaw’s other contentions, but none merits discussion. The

district court’s judgment is AFFIRMED

.