# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 28, 2019 *

Decided June 28, 2019

Before

J OEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 18

‐ 2120

RAMON CLARK,

Plaintiff

‐ Appellant

,

v

.

J ODY REED, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Central District of Illinois.

No. 15

‐ CV

‐ 1318

Colin S. Bruce,

J udge

.

O R D E R

Ramon Clark, an Illinois inmate, was working in his prison’s bakery when an

instructor, Jody Reed, found a latex glove under uncooked bread. Reed fired Clark.

After Clark threatened to file a grievance for the firing, Reed brought disciplinary

charges against Clark for the glove infraction. A lieutenant later advised Clark that he

would not face discipline if he informed the lieutenant of other inmates’ misconduct,

but Clark declined and discipline about the glove followed. Clark now sues Reed for

* 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. 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 NONPRECEDENTIAL DISPOSITION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. 18

‐ 2120 Page 2

firing him, which he says violated his right to equal protection under a class

‐ of

‐ one

theory, and for disciplining him, which he says violated his right under the First

Amendment to threaten to file a grievance. He also sues the lieutenant for violating the

First Amendment by disciplining him in retaliation for refusing to be an informant.

See 42 U.S.C. § 1983. The district court entered summary judgment for the defendants.

Because Clark cannot succeed on his equal

‐ protection claim in the employment context,

and because it was not clearly established that he engaged in protected speech (thereby

entitling the defendants to qualified immunity), we affirm.

Clark worked in the prison bakery at Illinois River Correctional Center. Baked

goods from there are sent to state

‐ supported schools, hospitals, and prisons. During a

shift in October 2014, Clark was responsible for loading clean pans into a machine that

filled them with dough. Reed noticed part of a latex glove on a pan under uncooked

dough. This was the third time in about one month that a glove was found in a bread

pan, and Reed had warned Clark and other workers to “keep watch.” Reed fired Clark

“to send a message.” Clark responded by threatening to file a grievance “on this

situation,” and Reed replied, “you go on and file your grievance and then I’ll do what I

need to.” Reed then issued Clark a disciplinary ticket for committing a health, smoking,

or safety violation, disobeying a direct order, and breaking the law. Clark’s grievance

about his discharge came two days later.

At the warden’s instruction, Lieutenant Brad Johnson investigated the glove

incident, and Clark eventually was disciplined for it. Johnson was also investigating the

production of alcohol in the bakery, and he promised to make the ticket “go away” if

Clark became an informant in both investigations. Though not authorized to expunge

disciplinary tickets, Johnson told Clark that he could help Clark avert punishment.

Clark declined, denying that he had any information and saying that he did not want to

“put himself at risk.” Later, the prison’s disciplinary committee found Clark guilty of

the charged rule violations, put him on C grade status for a month (limiting his out

‐ of

‐

cell privileges), and transferred him to a unit where he could not have a job.

Clark filed this suit, stating three claims relevant to this appeal. First, he brings a

“class

‐ of

‐ one” claim under the Equal Protection clause against Reed for firing him from

the bakery without a rational basis. Second, Clark asserts that Reed violated the First

Amendment right by disciplining him in retaliation for threatening to file a grievance.

Third, he sues Johnson for violating the First Amendment by not shielding him from

discipline because he refused to become an informant.No. 18

‐ 2120 Page 3

Reed and Johnson moved for summary judgment, and the district judge granted

their motion. The district court first rejected Clark’s class

‐ of

‐ one claim because Engquist

v. Oregon Department of Agriculture

, 553 U.S. 591 (2008), forecloses such claims for public

employees challenging employment decisions. Second, he ruled that Reed was entitled

to qualified immunity on Clark’s retaliation claim because it was not clearly established

that a threat to file a grievance was protected speech. Finally, the judge ruled, even if a

refusal to be an informant was protected speech, a jury could not find that Johnson

violated the First Amendment because Johnson could not affect the disciplinary charge.

On appeal, Clark first challenges the district court’s entry of summary judgment

for Reed on the class

‐ of

‐ one claim. Such a claim ordinarily requires a plaintiff to show

that a state actor intentionally treated him differently from others without a rational

basis. See Vill. of Willowbrook v. Olech

, 528 U.S. 562, 564 (2000). Clark argues that Reed’s

desire to “send a message” to inmates was not a rational basis for firing him, and, he

contends, we have never in a precedential decision applied Engquist to the prison

‐ employment context. The district judge, however, rightly concluded that Clark cannot

succeed on his class

‐ of

‐ one claim. The Supreme Court has held that “the class

‐ of

‐ one

theory of equal protection does not apply in the public employment context.” Engquist

,

553 U.S. at 598. That is because a class

‐ of

‐ one theory “presupposes that like individuals

should be treated alike,” but “[t]o treat employees differently is

... simply to exercise

the broad discretion that typically characterizes the employer

‐ employee relationship.”

Id. at 605; see also Katz

‐ Crank v. Haskett

, 843 F.3d 641, 649 (7th Cir. 2016) (“[A] class

‐ of

‐

one claim cannot be used to challenge discretionary governmental action....”). This

rationale, which covers civilians in public employment, applies with at least as much

force in the prisoner

‐ employment context, because courts defer to the discretion of

prison officials to operate their institutions. See Kingsley v. Hendrickson

, 135 S. Ct. 2466,

2473 (2015).

Clark next argues that the court erroneously rejected his First Amendment claim

against Reed. To succeed on this claim, Clark needed to put forth evidence from which

a jury could conclude that Reed punished him because of his protected speech.

See Nieves v. Bartlett

, 139 S. Ct. 1715, 1722 (2019). Clark asserts that, because oral

grievances are protected, his oral threat to file a grievance was protected, too. We agree

with Reed and the district judge, though, that qualified immunity covers this claim.

Qualified immunity insulates government officials from suits for damages when their

conduct did not violate specifically defined federal rights that were clearly established

at the time of the alleged violation. See City of Escondido v. Emmons

, 139 S. Ct. 500, 503

(2019); Taylor v. Barkes

, 135 S. Ct. 2042, 2044 (2015). It is Clark’s burden to overcome thisNo. 18

‐ 2120 Page 4

defense. See Lovett v. Herbert

, 907 F.3d 986, 991 (7th Cir. 2018). Even if an oral grievance

is protected speech, see Pearson v. Welborn

, 471 F.3d 732, 741 (7th Cir. 2006), Clark has

not shown that a threat to file a grievance was protected. To the contrary, “it seems

implausible that a threat to file a grievance would itself constitute a First Amendment

‐ protected grievance.” Bridges v. Gilbert

, 557 F.3d 541, 555 (7th Cir. 2009) (emphasis in

original). Though at least one other circuit has since concluded otherwise, see Watson v.

Rozum

, 834 F.3d 417, 422–23 (3d Cir. 2016), the right was not clearly established in 2014,

when Clark made his threat.

It was also not clearly established that Clark’s refusal to be an informant, which

Clark contends led Johnson to allow the discipline, was protected speech. Truthful

speech may be protected, see Bridges

, 557 F.3d at 551–52, but Clark’s rebuff was different

from truthful speech. Rather, he refused to cooperate in an investigation, rejecting

Johnson’s request that he say what he has heard from others, partly because he did not

want to “risk” the consequences. Yet prisons may punish inmates for declining to

participate in investigations through polygraph exams, even when they assert a right

against self

‐ incrimination. See Riggins v. Walter

, 279 F.3d 422, 431 (7th Cir. 1995). Thus,

Clark’s refusal to cooperate might not be protected. This ambiguity entitles Johnson to

qualified immunity. See Pearson v. Callahan

, 555 U.S. 223, 236 (2009).

The district court’s judgment is AFFIRMED.