# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 2, 2020 *

Decided September 4, 2020

Before

DAVID F. HAMILTON, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 19

‐ 2764

ARTHUR BEATTY, SR.,

Plaintiff

‐ Appellant

,

v

.

HENSHAW and HOOLEY,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1:19

‐ cv

‐ 00622

‐ JRS

‐ DML

J ames R. Sweeney II,

J udge

. O R D E R

After another inmate tried to frame him as a snitch to get him attacked, Arthur

Beatty, Sr., asked prison officials to investigate and remove that inmate from his

dormitory. Not only did the officials refuse, he alleges, they also threatened that if he

* The defendants were not served with process and are not participating in this

appeal. 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 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 NONPRECEDENTIAL DISPOSITION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. 19

‐ 2764 Page 2

continued to press the issue, they would transfer him out of his favorable housing

assignment and write him up for unfounded disciplinary violations. Beatty filed suit,

alleging that the officials were threatening him to deter protected speech and that they

were deliberately indifferent to the risk of violent attacks. The district court ruled that

Beatty failed to state a claim and dismissed the case. Because Beatty adequately alleged

a violation of his First Amendment rights, we vacate the judgment in part and remand

for further proceedings. We affirm the judgment in all other respects.

We set forth the allegations in Beatty’s amended complaint and take them to be

true for purposes of our review. O’Brien v. Vill. of Lincolnshire

, 955 F.3d 616, 618 (7th Cir.

2020). Beatty lives in his prison’s, the Correctional Industrial Facility, “Faith Dorm,”

which, according to a brochure attached to the pleadings, see Amin Ijbara Equity Corp. v.

Vill. of Oak Lawn

, 860 F.3d 489, 493 n.2 (7th Cir. 2017), “offers a different and better way

to do time” by providing “a safe, peaceful life in prison” focused on one’s faith and

positive life change. In late 2018, he was having “minor problems” with his cellmates.

He confided in his close friend, inmate Utah Dockery. But their friendship deteriorated

when Beatty tried to intervene in an argument between Dockery and another inmate,

and Dockery incorrectly believed that Beatty sided with his adversary. Meanwhile,

prison officials moved Beatty into a different cell with Michael Miller. Beatty and Miller

had previously shared a cell and had a contentious relationship.

The next day, another inmate found a note on the floor in a common area of the

dormitory. It read: “My cellmate Michael Miller is gone off of his medication and I am

afraid he may do something to hurt me. I want him moved immediately!!!” The inmate

gave the note to Hooley, 1 a prison counselor, who turned it over to Internal Affairs. All

the inmates in the Faith Dorm found out about the note, and Miller assumed that Beatty

had written it. But, Beatty says, Dockery was responsible for the note, though it was

written by another inmate because Dockery could not write legibly himself. Beatty told

Hooley and a prison chaplain, Henshaw, that Dockery had planted the note, putting

Beatty at risk of being attacked by Miller for being a “snitch.” He also said that other

inmates were discussing how to retaliate against him for the note.

Concerned for his safety, Beatty “began to continually contact” Hooley and

Henshaw “about the status of the investigation [into the note] and what may be done

1 Neither defendant’s first name is in the record.No. 19

‐ 2764 Page 3

about removing Dockery from the ‘Faith Dorm.’” They promised to “investigate the

matter” if they could talk to the inmate who wrote the note for Dockery. The scribe then

went to them and explained that he had written the note and that he thought that

Dockery had given it to prison officials “a long time ago.”

Instead of proceeding with the investigation, however, Hooley and Henshaw

began to “thwart and impede” it. They told Beatty that pursuing the matter “is not

gonna turn out good for [him],” and that “he should not be ‘talking about this anymore

or something would happen.’” They also laughed when Beatty reiterated his concerns

about potential violence by other inmates, leaving Beatty anxious and with the

impression that they would “do nothing” to stop any future attacks. Hooley and

Henshaw told Beatty that if he filed a grievance or talked about the note “too much,”

they would remove him from the Faith Dorm, write disciplinary reports about him, or

move him to another unit under the pretense of his “safety concerns.”

Because he did not want to lose the benefits of the Faith Dorm program, Beatty

refused protective custody and instead “hope[d] that no one would hurt him over the

‘note.’” In fact, “[n]o one has hurt him yet.” But Hooley and Henshaw allowed Dockery

to stay in the Faith Dorm, Beatty says, so that Beatty would either be attacked or

incentivized to independently “move off the dorm (and leave his most beneficial

programming).” As shown by exhibits to the complaint, Beatty filed grievances about

Hooley and Henshaw’s failure to investigate the note and their threats against him for

speaking up, but his grievances were rejected. Beatty alleged that Hooley and

Henshaw’s threats have caused him psychological trauma and anxiety, and on appeal

he adds that he has lost sleep, lost weight, and “lost faith” in going to prison officials for

help. 2

Based on these allegations, Beatty sued Hooley and Henshaw. In his amended

complaint, he alleged that they threatened to retaliate against him in violation of the

First Amendment and failed to protect him from potential attacks in violation of the

Eighth Amendment. See 42 U.S.C. § 1983. (He also sued Dockery but later voluntarily

dismissed him from the suit.) The district court dismissed the amended complaint

2 We may consider allegations first raised on appeal if they are consistent with

the amended complaint. W. Bend Mut. Ins. Co. v. Schumacher

, 844 F.3d 670, 678 n. 21

(7th Cir. 2016).No. 19

‐ 2764 Page 4

under 28 U.S.C. § 1915A(b)(1) for failure to state a claim, concluding that Beatty failed to

allege a deprivation likely to deter First Amendment activity. It reasoned that Beatty

did not have a right to “continually contact” the officials to persuade them to “take [his

preferred] remedial action (removal of Dockery from the dorm)” and that Dockery’s

attempt to label Beatty a snitch did not create a constitutional obligation for officials to

investigate. The court further concluded that Beatty did not state an Eighth Amendment

claim because the defendants “took reasonable measures to guarantee Beatty’s safety.”

On appeal, Beatty contends that he adequately alleged a First Amendment claim

based on “anticipatory retaliation” because the officials’ as

‐ yet

‐ unexecuted threats of

unfounded disciplinary charges and moving him out of the Faith Dorm were severe

enough to deter an inmate from filing grievances or lawsuits. We have cautioned that

referring to “retaliation” in the First Amendment context “divert[s] attention from the

rule that both threats designed to deter future speech and penalties for past speech are

forbidden.” Fairley v. Andrews

, 578 F.3d 518, 525 (7th Cir. 2009). Here, too, the

characterization of the claim as backward

‐ looking retaliation distracts from the

principle that “the first amendment protects speakers from threats of punishment that

are designed to discourage future speech.” Id. Beatty’s claim is no more than a

“chilling” claim: that he is being threatened with reprisals to keep him quiet about the

defendants’ inaction. See Surita v. Hyde

, 665 F.3d 860, 878 (7th Cir. 2011). Beatty had to

allege only that the “conduct by the defendants would likely deter a person of ordinary

firmness from continuing to engage in protected activity” and that his potential speech

was “at least a motivating cause” of the defendants’ threat of punishment. Id. at 878– 79.

We conclude that Beatty stated such a claim by alleging that Hooley and

Henshaw threatened to punish him if he continued to ask for protective measures or

complained about their alleged refusal to investigate and their threats. Raising concerns

about safety or other prison conditions is a “constitutionally protected activity.”

Daugherty v. Page

, 906 F.3d 606, 610 (7th Cir. 2018) (complaints and grievances);

Holleman v. Zatecky

, 951 F.3d 873, 878 (7th Cir. 2020) (lawsuits). And Beatty sufficiently

alleged causation by asserting that Hooley and Henshaw told him they would punish

him for complaining or filing a grievance or lawsuit. See Surita

, 665 F.3d at 879; Dobbey

v. Ill. Dep ʹ t of Corr.

, 574 F.3d 443, 446 (7th Cir. 2009) (accepting as true plaintiff’s

allegation of causal connection).No. 19

‐ 2764 Page 5

Further, Beatty alleged a sufficiently serious threat. The district court focused

solely on the defendants’ refusal to enact Beatty’s “preferred solution” (removing

Dockery from his orbit). That would indeed be inadequate, see Holleman

, 951 F.3d at 879,

but Beatty alleged more: He was threatened with trumped

‐ up discipline and with an

unfavorable transfer if he didn’t keep quiet. And “not only actual harms but also threats

of harm can deter First Amendment activity.” Douglas v. Reeves

, 964 F.3d 643, 649

(7th Cir. 2020). For example, we have recognized “the coercive nature of threats to

withhold even small sums [of money] from prisoners.” Id.

Although not any threat will meet the threshold, the alleged threats here suffice

to support a chilling claim at the pleadings stage. Threats of a transfer that would

present a “serious change[] of circumstance,” like depriving Beatty of the beneficial

Faith Dorm program, could deter an inmate from complaining. Cf. Holleman

, 951 F.3d

at 881 (collecting cases in which transfer constituted adequate adverse action). Likewise,

threats to manufacture disciplinary charges could be severe enough to discourage

speech. Cf. Dobbey

, 574 F.3d at 445–47; Hughes v. Farris

, 809 F.3d 330, 333–34 (7th Cir.

2015). And because the test is objective, it does not matter for purposes of the First

Amendment claim whether the threats deterred Beatty’s speech. See Douglas

, 964 F.3d at

646–47.

Beatty further argues that he stated an Eighth Amendment claim because the

defendants deliberately refused to protect him from potential attacks. To state a claim,

Beatty had to allege that Hooley and Henshaw knew of and disregarded a substantial

risk of serious harm. Farmer v. Brennan

, 511 U.S. 825, 834 (1994). Potential attacks from

other inmates may constitute a substantial risk of harm. S ee Helling v. McKinney

,

509 U.S. 25, 33 (1993) (Eighth Amendment protects against future harm to inmates). But,

even assuming there was sufficiently definite risk here, Beatty failed to allege that the

defendants recklessly disregarded that risk. Refusing his demand to transfer Dockery is

not indicative of deliberate indifference. “Prison officials do not violate the Eight

Amendment because the mode of protection they offer does not sit well with a

prisoner.” Dale v. Poston

, 548 F.3d 563, 570 (7th Cir. 2008). Further, Beatty alleges that he

was offered, but refused, protective custody. This suggests that, rather than deliberately

ignoring the risk, the defendants took “reasonable measures to guarantee [Beatty’s]

safety.” Sinn v. Lemmon

, 911 F.3d 412, 419 (7th Cir. 2018).No. 19

‐ 2764 Page 6

The judgment of the district court is AFFIRMED as to the Eighth Amendment

claim and VACATED as to the First Amendment claim, and the case is REMANDED as

to the First Amendment claim for further proceedings consistent with this order.