United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted September 2, 2020*

Decided September 15, 2020 

Before 

DAVID F. HAMILTON, Circuit Judge 

MICHAEL B. BRENNAN, Circuit Judge 

AMY J. ST. EVE, Circuit Judge 

No. 20-1728 

ERIC CONNER, 

Plaintiff-Appellant, 

v. 

HEATHER SCHWENN, et al., 

 Defendants-Appellees.

 Appeal from the United States District 

Court for the Western District of Wisconsin. 

No. 19-cv-921-bbc 

Barbara B. Crabb, 

Judge. 

O R D E R 

Eric Conner sued officials at the Wisconsin Secure Program Facility in Boscobel 

to challenge his assignment to administrative confinement. He raises claims about due 

process, retaliation, conditions of confinement, and equal protection. The district court 

correctly ruled that Conner failed to state a claim under these theories, and it reasonably 

severed an unrelated claim about his medical care, so we affirm. 

*

 We have agreed to decide the case without oral argument because the brief and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. See FED. R. APP. P. 34(a)(2)(C). 

NONPRECEDENTIAL DISPOSITION 

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 20-1728 Page 2 

 Conner alleges that he first went to administrative confinement in 2015, when 

officials discovered him with a weapon. Administrative confinement is an involuntary, 

“non-punitive” status that isolates inmates who pose a serious threat to themselves, 

other inmates, staff, property, or the institution. WIS. STAT. § DOC 308.04(1). In this 

status, Conner may leave his cell to exercise one hour each day. When out of his cell, he 

and other inmates share a communal pull-up bar and outdoor clothing. He does not 

receive sanitizer or weightlifting gloves to cleanse contact with the exercise equipment 

or shared clothing. Because he has open scars on his head and neck, Conner fears that 

this situation puts him at risk of serious illness, but he has contracted none. In 2016, he 

returned to the general population briefly, but he committed another infraction, and 

prison officials placed him back in segregation. Conner does not challenge either of 

these decisions to transfer him to segregation. He remains there now, where he is 

participating in a multi-step program that, over time, will reduce restrictions on his 

interactions with other inmates. 

About every six months, the prison decides whether it should exercise its 

discretion to release Conner from segregation; Conner contests a decision in 2019 to 

keep him there. In April, a lieutenant recommended that, based on a misconduct report, 

Conner stay in segregation. A few days earlier, Conner had filed a grievance alleging 

that Heather Schwenn, a psychologist, threatened to demote him in the multi-step 

program if he refused to talk about his mental health. The warden, who Conner alleges 

knew that he had filed this grievance, appointed Schwenn and two others to the panel 

that would decide whether Conner stayed in segregation. Conner objected to the 

warden’s inclusion of Schwenn on the panel because, he feared, she would bias the 

panel against him. But another panel member decided that Schwenn would remain on 

it. At the hearing, the panel received the misconduct report; it did not hear from Conner 

or his witnesses. Afterward, it voted to use its discretion to keep him in segregation for 

another six months, a decision he unsuccessfully appealed internally. 

In this suit, Conner raises four claims (other than the one that the district court 

severed). First, he alleges, the “perfunctory” procedure that officials used to keep him in 

administrative confinement—no witnesses and Schwenn on the panel—denied him due 

process. Second, he alleges that Schwenn and the panel retaliated against him for filing 

a grievance by voting to keep him in segregation. Third, Conner alleges, the committee 

violated his right to equal protection under the “class-of-one” theory by keeping him in 

segregation longer than inmates with more serious infractions. Fourth, Conner alleges 

that his conditions of segregation—the risk of infection to his open wounds from using 

uncleaned, shared equipment and clothing—violate the Eighth Amendment. 
No. 20-1728 Page 3 

The district court screened the suit under 28 U.S.C. § 1915A and dismissed it. It 

ruled that, by deciding merely to retain Conner’s status in administrative confinement, 

the defendants committed no due process violations. The retaliation and equalprotection claims failed, the court reasoned, because the alleged causal link between 

Conner’s grievance and the panel’s adverse vote was “speculation.” Finally, the court 

ruled that the conditions of segregation did not violate the Eighth Amendment because 

Conner alleged only mere discomfort about clothing and sanitation. 

On appeal, Conner first challenges the conclusion that he did not sufficiently 

allege an Eighth Amendment violation. To state a valid deliberate-indifference claim, 

Conner needed to allege that that the defendants knew about, but disregarded, a 

serious medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Petties v. Carter, 

836 F.3d 722, 728 (7th Cir. 2016) (en banc). Conner contends that, because he shares 

outdoor clothing and lacks a sanitizer for cleaning, he (with his open scars) is exposed 

to possible infections. But this contention fails for three reasons. First, he asserts only 

the mere possibility of infection—he has not alleged that the risk is substantial, much 

less that he was actually injured by that risk. See Lord v. Beahm, 952 F.3d 902, 905 

(7th Cir. 2020). Second, Conner does not allege that the defendants—he sues the 

warden, deputy warden, security director, and two officers—even knew about his scars, 

much less ignored the risk of their infections. Thus, he has not alleged facts that would 

show deliberate indifference. Third, although a plaintiff might cure defects like these 

with an amended complaint, see Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1025 

(7th Cir. 2013), Conner has not asked, either in the district court or here, to add to his 

allegations. So his omissions are fatal to his claim. 

 We next consider Conner’s claim that prison officials used deficient procedures 

during the hearing that the panel used to decide not to release him from segregation. A 

prisoner is entitled to due process before he loses liberty through a transfer from the 

general population to atypically harsh confinement, like segregation. See Sandin v. 

Conner, 515 U.S. 472, 485–86 (1995). But Conner has not challenged his loss of liberty 

from either of his two transfers to segregation. Rather, he contests his failure to gain

some liberty by returning to the general population from segregation. But because that 

decision was discretionary, due process did not constrain its exercise. See Board of 

Pardons v. Allen, 482 U.S. 369, 375 (1987). 

We also affirm the dismissal of Conner’s claim of retaliation under the First 

Amendment. To state a valid claim, Conner must allege that prison officials treated him 
No. 20-1728 Page 4 

materially adversely because of his constitutionally protected speech. See Gomez v. 

Randle, 680 F.3d 859, 866–67 (7th Cir. 2012); see also Bridges v. Gilbert, 557 F.3d 541, 546 

(7th Cir. 2009). Conner fears that Schwenn biased the panel to vote to keep him in 

segregation because he had filed a grievance against her for requiring that he discuss 

his mental health. We may assume that, as the district court ruled, Conner’s grievance 

was protected speech, see Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015), and that 

significant, additional time in segregation is adverse enough to “likely deter First 

Amendment activity in the future.” Bridges, 557 F.3d at 546. This claim fails, however, 

because, as the district court also correctly ruled, Conner’s allegation that his grievance 

caused the adverse decision vote is implausibly speculative. Conner has alleged only 

that the warden knew about his grievance and that another panel member decided, 

over Conner’s objection, to retain Schwenn on the panel. But he did not allege in his 

complaint that Schwenn herself learned of his grievance before the panel voted and 

became hostile to him because of it. Thus, his fear that she pressured the panel to vote 

against his release because of his grievance is indeed speculation. (On appeal, Conner 

asserts for the first time that at some point Schwenn criticized Conner for filing his 

grievance, but he omits telling us when, in relation to the panel’s vote, she did so.) 

 We similarly reject Conner’s equal-protection claim. Conner argues that, because 

his time in segregation has been longer than inmates with worse records, the prison has 

violated his equal-protection rights under a class-of-one theory. To state a class-of-one 

claim, Conner must allege that the defendants singled him out arbitrarily, without 

rational basis, for unequal treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000). 

Some highly discretionary decisions are so individualized that the class-of-one theory 

does not apply to them. See Engquist v. Oregon Dep't of Agric., 553 U.S. 591 (2008) 

(employment decisions). Even though prison housing assignments involve discretion, 

see Hewitt v. Helms, 459 U.S. 460, 467–68 (1983), we need not decide if the segregation 

assignment here involved the kind of discretion that Engquist contemplated, because 

this claim fails for another reason. Conner alleges that the reason the defendants 

confined him longer than others was to punish him for filing a grievance. But that is 

merely a restatement of the First Amendment claim, which we have ruled is deficient. 

Because litigants should use the part of the Constitution that most directly addresses 

their concerns, Graham v. Connor, 490 U.S. 386, 395 (1989), and because that provision—

the First Amendment—does not provide relief, the more general equal-protection claim 

must likewise fail. See Vukadinovich v. Bartels, 853 F.2d 1387, 1391–92 (7th Cir. 1988) 

(dismissing equal protection claim that constituted “a mere rewording of plaintiff's First 

Amendment-retaliation claim”). 
No. 20-1728 Page 5 

Finally, we affirm the district court’s decision to sever Conner’s medical-care 

allegations. The medical care that Conner received involves a different set of facts and 

standards than his claims about his administrative confinement. Thus it was reasonable 

for the district court to sever that claim from this suit. See FED. R. CIV. P. 20, 21. 

AFFIRMED