# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted January 21 , 20 20 *

Decided January 23 , 20 20

Before

FRANK H. EASTERBROOK

, Circuit Judge

MICHAEL B. BRENNAN

, Circuit Judge

MICHAEL Y. SCUDDER

, Circuit Judge

No. 1 9

- 1035

THOMAS R

. AMES

, Plaintiff

- Appellant

,

v

.

MORGAN HUDSON and JOEL SHAW, Defendant s

- Appellees

. Appeal from the United States District

Court for the Northern District of Illinois

, Eastern Division

.

No. 16 C 921 3

Rub é n Castillo

, Judge

.

O R D E R

Thomas Ames , an inmate, was abruptly discharged from his job in the kitchen at

Stateville Correctional Center in Crest Hill, Illinois, after he fil ed a grievance against a

corrections office r

. Ames brought a First Amendment action against that officer (and another officer), asserting that the y dismiss ed him in retaliation for his grievance

. Th e district court granted summary judgment for the defendants, concluding that Ames had

* We have agreed to decide the 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 NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1No. 19

- 1 035 Page 2

not produced any evidence that would allow a jury to return a judgment in his favor

. We a ffirm

.

A mes was interviewed in September 2015 by corrections officer Joel Shaw for an investigation into excess food trays found in housing units around the facility

. Later that day

, Ames , who had worked for years in the kitchen without incident, filed a grievance complaining that Shaw tried to extract i nformation from him through “threatening and coercive tactics

. ” Ames maintains that Shaw persisted in such
conduct, even after he denied having any information and made clear that h is job in the

kitchen did not involve preparing food trays

. He placed th is grievance between the bars

of his cell

, and it was picked up by a n unidentified guard.

Ames’s correctional counselor, Morgan Hudson, was responsible for initially reviewing and responding to Ames’s grievance. Hudson testified that he had a practice

of d ating the grievances he received and recording the responses that he sent

. It is

uncontested that Hudson never marked Ames’s grievance as having been received , and

that no response to th e grievance was recorded. Accordingly, Hudson testified that he

did no t receive Ames’s grievance.

A week later Shaw email ed another officer

, directing her to remove Ames and five other inmates from their positions in Stateville’s kitchen. The next day, Ames

received a letter stating that he was being remov ed from his kitchen job “based on staff

recommendation

, and security or administrative reasons.”

On t he day of his discharge, Ames filed a second grievance, this time accusing

Shaw of terminating his kitchen assignment in retaliation for the prior grievance.

Hu dson rece ived Ames’s second grievance and denied it, replying that job assignments are a privilege.

Ames then sued Shaw and Hudso n under 42 U.S.C. § 1983 for removing him

from his kitchen assignment in retaliation for his first grievance. ( Ames also s ued other prison employees , but they were dismissed because he failed to allege that they had participated in his discharge . He does not challenge that dismissal on appeal .)

The district court ultimately granted Shaw and Hudson ’s motion for summary judgment. T he court concluded that Ames could not establish a prima facie case for First Amendment retaliation against Shaw because he presented no evidence that ShawNo. 19

- 1 035 Page 3

k new about

— let alone was motivated by

— the first grievance

. Regarding Hudson, t he

court determined that Ames failed to present any evidence that Hudson was even involved in his discharge

. The court then rejected a new argument raised by Ames for the first time in his summary judgment respons e: Hudson was liable because he turned a blind eye to Shaw’s retaliatory conduct by fail ing to investigate and respond adequately to Ames’s grievances , not because he participated personally in Ames’s

term ination. It was too late , the court concluded, for Ames to amend his theory of the

case

.

On appeal, Ames primarily challenges the district court ’s conclusion that he did not present evidence sufficient to show that Shaw retaliate d against him for filing his first grievance

. But t o show that a plaintiff’s protected activity motivated a defendant ’s

decision to retaliat e , the plaintiff first must “ produce evidence that the defendant knew about the protected speech. ” Consolino v. Towne , 872 F.3d 825, 830 (7th Cir. 2017 ). Ames invokes a post

- dis charge conversation he allegedly had with Hudson in which Hudson

told him that he had spoke n with Shaw about the grievance

. But Ames conceded in the

district court

— in his response to defendants’ statement of undisput ed facts

— that

Hudson never spoke with Shaw about the first grievance

, and he is “bound to his

admission

. ” Milwaukee Ctr. f or Indep., Inc. v. Milwaukee Health Care, LLC , 929 F.3d 489, 493 (7th Cir. 2019). Regardless, th e evidence shows that Hudson never received Ames’s

first grievance and did not even become aware of th at grievance until he reviewed

Ames’s second grievance complaining of retaliation

. Ames speculates that Hudson

receive d the first grievance and simply refu sed to date it or respond to it , but speculation is not enough to create a genuine fact question for the purpose of summary judgment

. See Consolino , 872 F.3d at 83 0

.

Next, Ames generally challenges the district court ’s decision to grant summary judgment on his retaliation claim against Hudson

. Bu t we decline to consider this claim

because Ames exp licitly abandoned it in his summary judgment response ; in that

response, he clarif ied that he sought to hold Hudson liable not for committing any

retali atory act

, but for failing to investigate and respond to his grievances

. When a litigant intentionally chooses to pursue one argument over another, he waives his right to make the abandoned argument on appeal. S ee Hamer v. Neighborhood Hous

. Serv s. of Chicago , 897 F.3d 835, 840 (7th Cir. 201 8 ); Williams v. REP Corp. , 302 F.3d 660, 666 (7th Cir. 2002)

.No. 19

- 1 035 Page 4

Finally, Ame s a sserts for the first time that he proffered evidence from which a jury could find that Hudson and Shaw conspired to retaliate against him. But Ames forfeited this claim by failing to present it in the district court. See Milligan v. Bd

. of Trs

.

o f S outhern Ill. U niv. , 686 F.3d 378, 386 ( 7th Cir. 2012)

. Though his initial complaint did allege a conspiracy claim

, that complaint was superseded by his second amended complaint ( “the governing document in this case

, ” Anderson v. Donahoe , 699 F.3d 989, 997 (7th Cir. 2012) ), which alleged only retaliation , a nd Ames did not otherwise press a conspiracy claim at summary ju dgment.

AFFIRMED