In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-3224

KENNETH JAMES DAUGHERTY,

Plaintiff-Appellant,

v.

RICHARD HARRINGTON AND KEVIN PAGE,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Illinois, East St. Louis Division.

No. 3:14-cv-00876 — Donald G. Wilkerson, Magistrate Judge.

____________________

ARGUED SEPTEMBER 5, 2018 — DECIDED OCTOBER 12, 2018

____________________

Before KANNE, SYKES, and ST. EVE, Circuit Judges.

ST. EVE, Circuit Judge. Kenneth James Daugherty, an Illinois state prisoner, claims under 42 U.S.C. § 1983 that prison 

officials Richard Harrington and Kevin Page conspired to and 

did violate his First and Eighth Amendment rights while he 

was incarcerated at the Menard Correctional Center. The district court granted the defendants’ motion for summary judgment in its entirety. We affirm in part and reverse in part.
2 No. 17-3224

I. BACKGROUND

Daugherty was incarcerated at Menard from 1999 to 2013.

During the relevant time period, Harrington was Menard’s 

Assistant Warden of Operations responsible for security, and 

Page was a Correctional Lieutenant. Harrington and Page frequently made rounds to check on staff and the facility, and, in 

doing so, sometimes spoke with inmates and took complaints. 

They submitted any complaints about the facility to the 

maintenance department, which reported directly to 

Menard’s Warden.

Daugherty was housed in Menard’s North-1 cell house 

from March to May 2012. He claims that the conditions of this 

general-population unit were beset by clogged air ventilation, 

rust, obstructed light, spiders, roaches, mice, filthy showers, 

raw sewage in the sink, and refusals by prison staff to provide 

cleaning supplies to combat these conditions. From the beginning of his placement in the North-1 cell house, Daugherty 

complained about the conditions he endured in formal grievances and orally to correctional officers and other inmates. 

According to Daugherty, in early May 2012, Page demanded that he stop voicing his concerns about prison conditions and threatened Daugherty with segregation if he continued. Later that day, while he was drafting a grievance, Page

told him to stop writing grievances.

In mid-May 2012, Daugherty was in line returning from 

the gym. Based on incendiary statements that Daugherty allegedly made while in line, Page removed him, and, with Harrington’s approval, placed Daugherty in segregation. Page 

also issued Daugherty a disciplinary ticket, which formed the 
No. 17-3224 3

basis of two prison-rule violations brought against Daugherty.

Following the administrative adjudication of the rule violations, the adjustment committee found Daugherty guilty of 

“insolence,” which resulted in reduced privileges and commissary restrictions, along with a month of disciplinary segregation in the North-2 cell house. There, Daugherty experienced similarly objectionable conditions, including hot temperatures and no cold water. Daugherty complained about 

the lack of cold water to Page, and also questioned Page about 

why he drafted a false disciplinary ticket, to which Page responded that “things could get much worse.” Shortly thereafter, officials transferred Daugherty to a segregation cell with 

a steel door (rather than bars), a move typically reserved for 

inmates of a higher security risk than Daugherty. Neither 

Harrington nor Page has an independent recollection of 

Daugherty, the incident, or his complaints.

On June 26, 2014, Daugherty sued Harrington, Page, and 

others under 42 U.S.C. § 1983. After initially screening Daugherty’s pro se complaint, the district court dismissed it under 28 

U.S.C. § 1915A. Daugherty then filed an amended complaint.

Three claims against Harrington and Page ultimately proceeded to summary judgment, including a First Amendment 

retaliation claim based on Daugherty’s prison condition complaints, an Eighth Amendment conditions of confinement 

claim, and a constitutional conspiracy claim. The district court 

granted the defendants’ motion for summary judgment in its 

entirety and further concluded that qualified immunity 

shielded them from liability.
4 No. 17-3224

II. DISCUSSION

We review the district court’s grant of summary judgment 

de novo and construe all facts and reasonable inferences in favor of Daugherty, the nonmoving party. Wilson v. Adams, 901 

F.3d 816, 820 (7th Cir. 2018). Under Rule 56, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” FED. R. CIV. P. 56(a). A genuine dispute as to any material fact exists if “the evidence is 

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986).

A.

We first consider Daugherty’s argument that the district 

court erred in granting summary judgment for Harrington 

and Page on his claim that they retaliated against him because 

he complained about the conditions of his confinement in violation of the First Amendment. 

To prevail on a First Amendment retaliation claim, 

Daugherty must show: (1) he engaged in protected activity; 

(2) he suffered a deprivation likely to deter future protected 

activity; and (3) his protected activity was a motivating factor 

in the defendants’ decision to retaliate. Perez v. Fenoglio, 792 

F.3d 768, 783 (7th Cir. 2015). Under the first element, the filing 

of a prison grievance is a constitutionally protected activity

supporting a First Amendment retaliation claim, see id., as are

oral complaints about prison conditions. Pearson v. Welborn, 

471 F.3d 732, 740 (7th Cir. 2006).

On appeal, Page concedes that the district court erred in 

granting summary judgment in his favor as to Daugherty’s 
No. 17-3224 5

First Amendment retaliation claim. We accept this concession 

and limit our discussion to whether Harrington retaliated 

against Daugherty for the protected activity of filing prison 

grievances and making oral complaints concerning the conditions of his confinement.1

Daugherty bases his retaliation claim on the May 2012 disciplinary ticket, which led to his segregation. Harrington’s

only involvement with the disciplinary ticket was Page’s request for permission to place Daugherty in segregation immediately after the incident. Although Harrington may have witnessed the incident, Daugherty has failed to identify any evidence suggesting that Harrington’s conduct in relation to the 

incident and disciplinary ticket was motivated by a desire to 

chill Daugherty’s speech or otherwise dissuade him from 

complaining about the conditions of his confinement. 

The only evidence Daugherty points to is vague and confusing testimony that Daugherty, at some point, named Harrington in a grievance, but there is no evidence about what 

the grievance said or whether Harrington even saw or knew 

about it. Likewise, Daugherty’s conclusory statement that “I 

have been basically warned” to stop writing grievances does 

not raise a reasonable inference that Harrington made any 

such statement, especially because Daugherty admits that he 

never spoke to Harrington about his concerns regarding the 

conditions of his confinement.

 1 In conceding that the district court erred in granting summary judgment in his favor on Daugherty’s First Amendment retaliation claim, Page 

implicitly concedes that the court erred in granting him qualified immunity on that claim. So, to be clear, in accepting Page’s concession, we necessarily and additionally reverse the district court’s grant of qualified immunity as to Page on Daugherty’s First Amendment retaliation claim. 
6 No. 17-3224

Nonetheless, Daugherty asserts that a jury could impute 

Page’s retaliatory motive to Harrington. Daugherty has 

waived this argument because he presents it for the first time 

in his reply brief. E.g., United States ex rel. Berkowitz v. Automation Aids, Inc., 896 F.3d 834, 843 (7th Cir. 2018).

Viewing the record and all reasonable inferences in

Daugherty’s favor, no reasonable jury could conclude that his 

grievances and complaints about the conditions of his confinement were a motivating factor in—or even factored into—

Harrington’s approval of placing him in segregation after the 

May 2012 incident.

B.

Daugherty also challenges the district court’s grant of 

summary judgment on his claim that Harrington and Page 

subjected him to unconstitutional conditions of confinement 

in violation of the Eighth Amendment. Inmates have the right 

to “humane conditions of confinement,” and “prison officials 

must ensure that inmates receive adequate food, clothing, 

shelter, and medical care, and must ‘take reasonable measures

to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 

U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 

526–27 (1984)). An Eighth Amendment violation has both an 

objective and subjective component. “First, the deprivation alleged must be objectively, sufficiently serious. Second, the 

mental state of the prison official must have been one of deliberate indifference to inmate health and safety.” Haywood v. 

Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016) (per curiam). 

Here, even if Daugherty could satisfy the objective element of his claim, he cannot satisfy the subjective element—

deliberate indifference—as to either defendant. Simply put, 
No. 17-3224 7

no reasonable jury could find that either defendant was deliberately indifferent to Daugherty’s alleged plight. 

Under the subjective component, Daugherty must present 

evidence raising a triable issue of fact that Page and Harrington knew of and consciously disregarded an excessive risk to 

his health and safety. See Cesal v. Moats, 851 F.3d 714, 722 (7th

Cir. 2017). Daugherty identifies no evidence suggesting either 

defendant knew of and disregarded any excessive risk to his 

health or safety insofar as it relates to the conditions of his 

confinement. Daugherty never complained to Harrington,

and in fact shied away from talking to him, and Daugherty’s 

contention that Page told him to stop complaining about the 

conditions of his confinement, without more, is too vague to 

meet the deliberate indifference standard under the circumstances. Moreover, it is undisputed that standard procedure 

at Menard was for staff to refer any inmate complaints about 

the facility to the maintenance department, which reported to 

Menard’s Warden. There is likewise no genuine factual dispute that Page, as he explained, would routinely attempt to 

resolve maintenance issues by submitting work orders or taking other remedial measures like providing supplies or directing inmate workers to attend to issues.

More fundamentally, although Harrington and Page may 

have made rounds through the prison and talked to inmates 

about their complaints, there is no evidence that either of 

them was specifically aware of the particular conditions forming the basis of Daugherty’s Eighth Amendment claim. As 

such, Daugherty’s conclusory assertions that the defendants 

“did nothing” cannot create a genuine issue of material fact, 

particularly without any evidence about what either defendant may have done or not done. “Summary judgment is not a 
8 No. 17-3224

time to be coy: ‘[c]onclusory statements not grounded in specific facts’ are not enough.” Sommerfield v. City of Chicago, 863 

F.3d 645, 649 (7th Cir. 2017) (quoting Bordelon v. Bd. of Educ. of 

the City of Chicago, 811 F.3d 984, 989 (7th Cir. 2016)).

Construing the record in the light most favorable to 

Daugherty, no reasonable jury could find that Harrington or 

Page acted with deliberate indifference towards Daugherty or 

otherwise disregarded or failed to act on knowledge of a substantial risk to Daugherty’s health and safety. 

C.

Daugherty additionally attacks the district court’s grant of 

summary judgment on his claim that Harrington and Page 

conspired to violate his First and Eighth Amendment rights. 

To prevail on a conspiracy claim, “the plaintiff must show 

that (1) the individuals reached an agreement to deprive him 

of his constitutional rights, and (2) overt acts in furtherance 

actually deprived him of those rights.” Beaman v. Freesmeyer, 

776 F.3d 500, 510 (7th Cir. 2015). Put differently, Daugherty 

must “show an underlying constitutional violation” and 

“demonstrate that the defendants agreed to inflict the constitutional harm.” Hurt v. Wise, 880 F.3d 831, 842 (7th Cir. 2018). 

“Because conspiracies are often carried out clandestinely and 

direct evidence is rarely available, plaintiffs can use circumstantial evidence to establish a conspiracy, but such evidence 

cannot be speculative.” Beaman, 776 F.3d at 511.

Even if, as Daugherty contends, Harrington and Page 

knew that he never made the remarks alleged in the disciplinary report, these facts do not support the existence of an 

agreement between them to violate Daugherty’s constitutional rights. See Owens v. Evans, 878 F.3d 559, 565 (7th Cir. 
No. 17-3224 9

2017) (affirming summary judgment for defendant on § 1983 

conspiracy claim, where prisoner “did not adduce evidence” 

that officials “agreed expressly or tacitly to interfere with his 

pursuit of grievances and lawsuits”). Daugherty’s assertion 

that Harrington and Page actively and jointly concealed the 

truth that he did not make incendiary remarks is based on 

mere speculation. In sum, Daugherty has failed to identify 

any evidence, circumstantial or otherwise, of an agreement to 

deprive him of his constitutional rights.

III. CONCLUSION

We therefore AFFIRM in part and REVERSE and 

REMAND in part for further proceedings consistent with this 

opinion.