United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 21, 2020*

Decided January 23, 2020

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 19-1035

THOMAS R. AMES,

Plaintiff-Appellant,

v.

MORGAN HUDSON and JOEL SHAW,

Defendants-Appellees.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division.

No. 16 C 9213

Rubén 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 filed a grievance against a 

corrections officer. Ames brought a First Amendment action against that officer (and 

another officer), asserting that they dismissed him in retaliation for his grievance. The 

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. FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 19-1035 Page 2

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

We affirm. 

Ames 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 information 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 his job in the

kitchen did not involve preparing food trays. He placed this grievance between the bars 

of his cell, and it was picked up by an 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 dating 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 the grievance was recorded. Accordingly, Hudson testified that he 

did not receive Ames’s grievance. 

A week later Shaw emailed 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 removed from his kitchen job “based on staff 

recommendation, and security or administrative reasons.”

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

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

Hudson received Ames’s second grievance and denied it, replying that job assignments 

are a privilege. 

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

from his kitchen assignment in retaliation for his first grievance. (Ames also sued 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. The court concluded that Ames could not establish a prima facie case for 

First Amendment retaliation against Shaw because he presented no evidence that Shaw 
No. 19-1035 Page 3

knew about—let alone was motivated by—the first grievance. Regarding Hudson, the 

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 response: Hudson was liable because he turned 

a blind eye to Shaw’s retaliatory conduct by failing to investigate and respond 

adequately to Ames’s grievances, not because he participated personally in Ames’s 

termination. 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 retaliated against him for filing his 

first grievance. But to show that a plaintiff’s protected activity motivated a defendant’s 

decision to retaliate, 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-discharge conversation he allegedly had with Hudson in which Hudson 

told him that he had spoken with Shaw about the grievance. But Ames conceded in the 

district court—in his response to defendants’ statement of undisputed facts—that 

Hudson never spoke with Shaw about the first grievance, and he is “bound to his 

admission.” Milwaukee Ctr. for Indep., Inc. v. Milwaukee Health Care, LLC, 929 F.3d 489, 

493 (7th Cir. 2019). Regardless, the evidence shows that Hudson never received Ames’s 

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

Ames’s second grievance complaining of retaliation. Ames speculates that Hudson 

received the first grievance and simply refused 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 830.

Next, Ames generally challenges the district court’s decision to grant summary 

judgment on his retaliation claim against Hudson. But we decline to consider this claim 

because Ames explicitly abandoned it in his summary judgment response; in that 

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

retaliatory 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. See Hamer v. Neighborhood Hous. Servs. of 

Chicago, 897 F.3d 835, 840 (7th Cir. 2018); Williams v. REP Corp., 302 F.3d 660, 666 (7th 

Cir. 2002).
No. 19-1035 Page 4

Finally, Ames asserts 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. 

of Southern Ill. Univ., 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, and Ames did not otherwise press a 

conspiracy claim at summary judgment. 

AFFIRMED