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

unnecessary. Accordingly, the appeal is submitted on the briefs and the record. See F ED

. R.

A PP

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 NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1



# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 1, 2009 *

Decided May 11, 2009

Before

RICHARD A. POSNER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 08

‐ 3341

CHAD D. BOUMAN

, Plaintiff

‐ Appellant

,

v.

STEVE ROBINSON, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Western District of

Wisconsin.

No. 07

‐ cv

‐ 367

‐ bbc

Barbara B. Crabb,

Chief Judge

.

O R D E R

Chad Bouman, an inmate at the Federal Correctional Institution in Oxford,

Wisconsin, filed a complaint under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971), claiming that prison officials twice violated his FirstNo. 08

‐ 3341 Page 2

Amendment rights. First, Warden Ricardo Martinez placed Bouman in segregation after

the warden heard about a speech that Bouman gave in which he labeled various prison staff

as Free Masons. The second time occurred when prison officials, who Bouman claims were

still resentful of the speech, searched his cell and punished him excessively for possessing

contraband. We conclude that summary judgment was proper on both claims because he

failed to exhaust his administrative remedies on the segregation claim and he presented no

evidence of retaliation on the contraband claim.

We begin with two procedural matters. First, after filing his original complaint,

Bouman moved to file a “supplemental complaint” with additional allegations, but the

court denied the motion, explaining that if Bouman wished to file an amended complaint,

he should highlight the new allegations. Bouman submitted an amended complaint, but he

failed to highlight his new allegations. The court denied the motion without prejudice and

informed Bouman that it would accept an amended complaint with the highlighted

additions, but Bouman never submitted one. Second, during discovery, Bouman moved to

compel the defendants to produce a copy of all sanctions that the prison imposed between

2004 and 2007 on all inmates who received an incident report for possessing contraband.

About ten days later the defendants answered, arguing that Bouman’s motion was moot

because they had provided Bouman a week earlier with all of the documents he had

requested. Bouman did not dispute the defendants’ explanation, and a magistrate judge

denied as moot Bouman’s motion to compel.

The record contains the following evidence, which we construe in Bouman’s favor.

In April 2006, a correctional officer confiscated a speech that Bouman wrote about Free

Masonry. He delivered a similar version of the speech to a prison class. The speech, a

lengthy exposition about Free Masons and their plans to transform governments and

religions, briefly alleges that some people, including certain prison officials, belonged to the

group. Bouman later approached the “[w]arden and his associates” about retrieving the

written copy, but upon learning of its contents, Warden Martinez placed Bouman in

segregation for “insolence.”

Four months later, Correctional Officer Michael Jacobs told Bouman that an

“unknown staff member” had ordered him to search Bouman’s cell. Upon discovering food

in the cell, which is not permitted, Jacobs then cited Bouman for possessing contraband.

Acting on the citation, the prison disciplinary committee suspended Bouman’s prison

employment for 720 days, a punishment that Bouman believes far exceeded the norm for

similar violations. Bouman submitted an affidavit from David Dahler, another inmate, who

asserted that since Dahler’s incarceration in 1989, he had received incident reports for

possessing contraband but had never lost more than 30 days’ commissary or telephoneNo. 08

‐ 3341 Page 3

privileges and that he had never heard of anyone losing institutional jobs for more than 30

days for possessing contraband. But a disciplinary report, the authenticity of

which is not disputed, from Bouman’s cellmate showed that the cellmate had received the

same punishment as Bouman for possessing contraband.

The defendants moved for summary judgment, arguing that Bouman had failed to

exhaust his administrative remedies. The prison’s record keeper asserted that Bouman had

filed five administrative complaints, including one challenging his suspended

‐ employment

punishment for possessing the food, but none of them mentioned segregation or the Free

Masons speech. Bouman’s appeal of the denial of his suspended

‐ employment grievance

also did not mention the segregation order. The appeal asserted only that he had been

“singled out” and mistreated because he is Jewish and had criticized the government. The

prison appeal board concluded that the disciplinary committee’s decision “met the

standards of fairness [and] impartiality.” Bouman argued that he had exhausted. Although

he admitted that he failed to grieve the segregation punishment, he sought to excuse that

failure because he was afraid of “being further detained.” He also asserted that his later

grievance of the punishment for possessing contraband covered his claim about the

segregation because it referred to retaliation.

The district court ruled that the defendants had not proved that Bouman failed to

exhaust his administrative remedies. It relied on Bouman’s appeal of the grievance

regarding the suspended employment, where he said that he had been “singled out”

because of his beliefs. It also cited the prison appeal board’s handling of the suspended

‐ employment grievance as a “waiver” of the exhaustion defense because the board remarked

that the disciplinary committee’s decision met standards of fairness and impartiality.

Finally, the court reasoned that the defendants never attested that Bouman had failed to file

any grievances about retaliation. The court also rejected an alternative defense that

Bouman’s speech did not address a matter of public concern. Nevertheless the court

concluded that Bouman had not produced evidence sufficient to show that the speech

motivated the defendants’ decision to punish him with segregation and suspended

employment.

On appeal Bouman briefly argues that the district court erred by failing to give him

enough time to submit an amended complaint. We review for abuse of discretion the

district court’s decision to deny a motion to amend a complaint. See Dewitt v. Proctor Hosp.

,

517 F.3d 944, 949 (7th Cir. 2008). The district court did not reject Bouman’s amended

complaint as untimely; rather, the court rejected it without prejudice because Bouman failed

to follow a specific, reasonable instruction to highlight new allegations. It then invited

Bouman to submit a properly formatted amended complaint. The court was within itsNo. 08

‐ 3341 Page 4

discretion to conserve its resources by giving Bouman the chance to submit a properly

highlighted amendment. Bouman simply failed to take advantage of that opportunity.

Bouman also argues that the district court should have granted his motion to compel

discovery of the prison’s records regarding punishment for contraband violations. He

insists that these documents would have provided the evidence he needed to show that his

punishment for possessing contraband was unduly severe and thus retaliation for his

speech. We review a district court’s denial of a discovery request for abuse of discretion.

Walker v. Sheahan

, 526 F.3d 973, 977

‐ 78 (7th Cir. 2008); Reynolds v. Jamison

, 488 F.3d 756, 761

(7th Cir. 2007). The magistrate judge did not abuse its discretion in denying Bouman’s

motion to compel because Bouman did not refute during discovery the defendants’

assertion that they sent him the requested documents.

Bouman next asserts that the district court erred in granting summary judgment on

his claim that the defendants retaliated against him by placing him in segregation. He

argues that the court ignored his affidavit that Bouman heard Warden Martinez order him

into segregation for “insolence” shortly after the Warden heard about the speech. The

government responds, as it argued to the district court, that we should decline to reach the

merits of this claim because Bouman failed to exhaust his administrative remedies.

We agree with the government. See Perez v. Wis. Dep’t of Corr.

, 182 F.3d 532, 535

‐ 36

(7th Cir. 1999) (failure to exhaust remedies precludes decision of the merits). Bouman

cannot raise a Bivens claim in federal court if the defendants show that he did not use the

prison’s administrative procedures to alert the prison to the nature of the wrong for which

he sought redress. See Dale v. Lappin

, 376 F.3d 652, 655 (7th Cir. 2004); Riccardo v. Rausch

, 375

F.3d 521, 524 (7th Cir. 2004). Bouman admitted to the district court that he did not file a

grievance challenging Warden Martinez’s segregation order. Rather, he sought to excuse

his failure to grieve his placement in segregation by arguing that he feared “being further

detained” if he did. But he produced no evidence to support the reasonableness of his fear;

to the contrary, the fact that he soon filed a grievance about the contraband violation refutes

his fear. See Dale

, 376 F.3d at 655

‐ 56 (a prisoner’s “bald assertions” are not sufficient to

support allegations that prison officials interfered with his grievance filing). Bouman also

argued that his later grievances about his suspended

‐ employment punishment for

possessing contraband should be deemed to cover the segregation order as well. But none

of Bouman’s filings addressing the suspended

‐ employment claim even mention that he had

been placed in disciplinary segregation several months earlier, let alone that Warden

Martinez had ordered him placed there in retaliation for his speech about the Free Masons.

We are also not persuaded by the district court’s reasons for treating the later

grievances about the suspended

‐ employment punishment as covering the earlierNo. 08

‐ 3341 Page 5

segregation order. True, the later grievance did claim that the prison retaliated against

Bouman for his views by suspending his employment. But nothing in those grievance

papers reasonably alerts the prison that Bouman was seeking redress for his placement in

segregation four months earlier. Indeed, Bouman never mentions the segregation order in

his grievance. So he did not exhaust. See Dale

, 376 F.3d at 655.

That brings us to Bouman’s claim that prison staff retaliated against him for his

speech when they suspended his job for 720 days after citing him for possessing

contraband. Reviewing de novo the district court’s grant of summary judgment, see Hayes v.

Snyder

, 546 F.3d 516, 522 (7th Cir. 2008), we examine whether Bouman produced sufficient

evidence that the Free Masons speech motivated the suspension of job privileges, see Bridges

v. Gilbert

, 557 F.3d 541, 552 (7th Cir. 2009); Salas v. Wisc. Dep’t of Corr., 493 F.3d 913, 925 (7th

Cir 2007). He has not. Officer Jacobs’s statement that a “higher up” ordered the cell search

does not reflect why the search was ordered, so that statement is unhelpful to prove

retaliation. Furthermore, the timing of the search—four months after the speech—does not

itself create a triable issue. See Andonissamy v. Hewlett

‐ Packard Co.

, 547 F.3d 841, 851 (7th Cir.

2008); Adusimilli v. City of Chicago

, 164 F.3d 353, 363 (7th Cir. 1998). And inmate Dahler’s

assertion that he received more lenient punishment than Bouman for contraband violations

is unconvincing because Bouman produced no evidence that he and Dahler are similarly

situated. See Humphries v. CBOCS West, Inc.

, 474 F.3d 387, 403

‐ 06 (7th Cir. 2007) (for

purposes of a retaliation claim under 42 U.S.C. § 1981, employees are “similarly situated” if

there are “enough common features between the individuals to allow a meaningful

comparison”). Finally, Dahler’s and Bouman’s belief that no one has been punished as

severely as Bouman for a contraband violation is useless because neither has personal

knowledge about the punishments that every other prisoner has received, including

Bouman’s cell mate who, according to the cell mate’s incident report, received the same

punishment for the same violation. See F ED

. R. C IV

. P. 56(e); Haywood v. Lucent Tech., Inc.,

323 F.3d 524, 533 (7th Cir. 2003); Bombard v. Fort Wayne Newspapers, Inc.

, 92 F.3d 560, 562 (7th

Cir. 1996).

We thus AFFIRM the district court’s grant of summary judgment.