# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 12, 2018 *

Decided April 17, 2018

Before

J OEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 17

‐ 1709

BENARD McKINLEY,

Plaintiff

‐ Appellant

,

v

.

J OSHUA SCHOENBECK, et al.

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 14

‐ CV

‐ 1137

Nancy J. Rosenstengel

, J udge

.

O R D E R

According to plaintiff Benard McKinley, an inmate at Menard Correctional

Center, he spent over three years in administrative detention in a cell without heat or

hot water and littered with rodent feces and dust. He sued various Menard officials in

the prison’s Internal Affairs and Intelligence units under 42 U.S.C. § 1983, asserting that

they retaliated against him for honestly answering questions about gang activity at the

prison and for filing a lawsuit. He also brought an Eighth Amendment conditions

‐ of

‐

* 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. 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 NONPRECEDENTIAL DISPOSITION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. 17

‐ 1709 Page 2

confinement claim against two defendants for ignoring his complaints about the

conditions of his cell. We conclude that three of the four defendants were not entitled to

summary judgment, so we vacate the judgment in their favor. With regard to the fourth

defendant, we affirm. 1

Because the defendants moved for summary judgment, we view the facts in the

light most favorable to McKinley and draw reasonable inferences in his favor. Groesch v.

City of Springfield

, 635 F.3d 1020, 1022 (7th Cir. 2011). We do not vouch for the objective

truth of the facts we assume for purposes of this appeal. McKinley contends that

Menard officials placed him in investigative segregation and later administrative

detention after interviewing him about gang activity because they did not like his

responses. The first interview was conducted by correctional officers Chad Hasemeyer,

Lance Phelps, Joshua Schoenbeck, and Warden Jaqueline Lashbrook in July 2012. Two

more interviews occurred in July and August with all but Lashbrook present. In each

interview, Hasemeyer asked McKinley whether he knew anyone with a leadership role

in a gang, or in the prison’s lexicon, a “Security Threat Group,” and McKinley replied

that he had no relevant information responsive to the questions. In the third interview,

Phelps and Schoenbeck told McKinley that he “better give them something to go off of”

and that they could be his “best friend or wors[t] nightmare.” McKinley was placed in

investigative segregation for 13 days after his second interview, and for a month after

the third interview. During McKinley’s second stint in segregation, Lashbrook told him

that inmates who did not give officers the information they want could be placed in

segregation at the officer’s discretion.

McKinley was placed in administrative detention nine days after a fourth

interview. The Administrative Detention Review Report filed after McKinley’s first

90 days in segregation notes that McKinley was put there for the “safety and security”

of the prison, as there was reason to believe McKinley was a gang member and had

been involved in promoting assaults against prison staff. The report also cites

McKinley’s disciplinary history and behavior as a reason. McKinley was never charged

1 The plaintiff spells his first name without an “r” before the “n” in his

handwritten submissions, including his signatures. He also spelled out his name as “B

‐

e

‐ n

‐ a

‐ r

‐ d” in his deposition. His Illinois offender profile, however, lists him as

“Bernard,” and this is how the defendants refer to him. Our clerk’s office captioned this

appeal with “Bernard” as plaintiff’s first name, although his notice of appeal was

captioned “Benard” and signed “Benard.” We cannot account for the discrepancies, so

we refer to the plaintiff as he refers to himself, as we did in a previous appeal, No. 14

‐

1944, Benard McKinley v. Pfister

. We have re

‐ captioned the case accordingly.No. 17

‐ 1709 Page 3

with or found guilty of gang activity, planning assaults, or being dishonest in the course

of the investigation. He remained in segregation for three years.

Throughout that time, we must assume, McKinley lived in a cell that did not

have heat or hot water in the winter. The cell had a broken window that was covered

with a plastic bag. The resulting cold temperatures, as well as dust in the cell,

exacerbated McKinley’s asthma. There were rodent feces and urine on the floor, and

McKinley was not given cleaning supplies. McKinley complained about these

conditions to both Schoenbeck and Phelps on multiple occasions and also filed

grievances, to no avail. Phelps once replied to a complaint by saying, “So I guess you do

not like my administrative detention cells huh? You gonna have to just deal with it.”

Schoenbeck generally ignored McKinley’s complaints, but once told him that he

“should not have decided to come to administrative detention.”

Meanwhile, the interviews continued. Phelps questioned McKinley alone in

November 2013, and McKinley explained that he was not a gang leader. Phelps then

asked McKinley about a lawsuit he had filed, and told McKinley that “lawsuits will

only make you stay in administrative detention longer.” After this incident, McKinley

filed a grievance in which he complained that he was “continuously put into

segregation during the year of 2012, and ultimately put into administrative detention”

because he lacked knowledge about the leadership of a security threat group.

An altercation with Phelps occurred a year later. McKinley was sitting on a

bench waiting to be escorted back to his cell when Phelps approached him and began

pushing him in the back. While repeatedly hitting him, Phelps told McKinley “you filed

your lawsuit,” and “you thought that was gonna [sic] get you out of administrative

detention.” McKinley did not respond and Phelps left, commenting to another officer

that McKinley was a “bitch.”

After McKinley was released from administrative detention in November 2015,

he filed this civil

‐ rights lawsuit. The district judge ultimately entered summary

judgment in favor of the defendants.

To avoid summary judgment on his retaliation claims, McKinley must offer

evidence tending to show that “(1) he engaged in activity protected by the First

Amendment; (2) he suffered a deprivation that would likely deter First Amendment

activity in the future; and (3) the First Amendment activity was ‘at least a motivating

factor’ in the Defendants’ decision to take the retaliatory action.” Bridges v. Gilbert

, 557

F.3d 541, 546 (7th Cir. 2009) (quoting Woodruff v. Mason

, 542 F.3d 545, 551 (7th Cir.

2008)). We address each claim in turn.No. 17

‐ 1709 Page 4

McKinley argues that Hasemeyer, Lashbrook, Phelps, and Schoenbeck retaliated

against him for truthfully answering during interviews that he was not a gang member

and had no information to provide. The district judge concluded that this claim failed

“at the outset” because McKinley’s “refusal to become a confidential informant and

provide information about other inmates

... is not protected speech.” In support of this

proposition, the judge cited Caffey v. Maue

, 679 Fed. Appx. 487 (7th Cir. 2016), a

nonprecedential decision in which we ruled that a prisoner who “refused to talk” could

be “compelled to disclose information.” But there is an important distinction between

Caffey and this case: McKinley did not refuse to cooperate with the defendants. We must

assume, because it is a disputed fact, that he truthfully answered their questions in

saying he did not know about gang leadership. See Carson v. ALL Erection & Crane Rental

Corp.

, 811 F.3d 993, 994 (7th Cir. 2016).

McKinley had a right to tell the officers his account of events. See Bridges

,

557 F.3d at 551. He, like other prisoners, “retains those First Amendment rights that are

not inconsistent with his status as a prisoner or with the legitimate penological

objectives of the corrections system.” Pell v. Procunier

, 417 U.S. 817, 822 (1974).

Truthfully answering questions during an investigation, even if those answers are not

what the officers want to hear, is consistent with a prison’s penological objectives. See

Cornell v. Woods

, 69 F.3d 1383, 1388 (8th Cir. 1995).

We have said that placement in administrative detention for periods much

shorter than three years satisfies the burden to prove an adverse action likely to deter

future First Amendment activity, Babcock v. White

, 102 F.3d 267, 270, 275 (7th Cir. 1996),

so McKinley established that element. And he also raised a genuine issue of material

fact about whether there is “a causal link between the protected act and the alleged

retaliation.” Roger Whitmore’s Automotive Servs., Inc. v. Lake Cty. Illinois

, 424 F.3d 659, 669

(7th Cir. 2004). Temporal proximity is ordinarily not sufficient to establish causation, s ee

Gracia v. SigmaTron Int’l, Inc.

, 842 F.3d 1010, 1021 (7th Cir. 2016), but McKinley does not

rely on timing alone. He also has identified at least one statement by each of three

defendants linking his interview responses and his placement in segregation.

Lashbrook told McKinley that inmates who refused to cooperate could be “put under

investigation at any time [the officers] felt like it.” Phelps and Schoenbeck threatened

McKinley during his interview that they could be his “best friend or wors[t] nightmare”

and that he “better give them something to go off of.” The timing of McKinley’s

placement in segregation coupled with these comments could allow a reasonable jury to

infer that McKinley’s protected speech was a motivating factor for his placement in

segregation. See id. The same is not true of defendant Hasemeyer, however; although heNo. 17

‐ 1709 Page 5

was involved in placing McKinley in segregation, McKinley presents no evidence other

than timing that Hasemeyer had a retaliatory motive.

Phelps, Schoenbeck, and Lashbrook therefore must show that they would have

punished McKinley regardless of his statements in these interviews. Zellner v. Herrick

,

639 F.3d 371, 379 (7th Cir. 2011). To support their motion for summary judgment, the

defendants submitted evidence that McKinley was placed in segregation for the “safety

and security” of the prison; confidential informants reported that McKinley had been

involved in promoting assaults against prison staff. The Administrative Detention

Review Report filed after also cites “Behavior/Disciplinary History” (which is not

specified) as a reason.

That evidence would be enough to justify the segregation if it were not disputed,

but McKinley has offered evidence tending to show that the defendants’ rationale was a

pretext and that the real reason he was placed in segregation was retaliatory animus.

See Zellner

, 639 F.3d at 379

. “[T]his means a plaintiff must produce evidence upon which

a rational finder of fact could infer that the defendant[s’] proffered reason is a lie.” Id.

McKinley has met this burden. McKinley argues, and we agree, that his disciplinary

history could be viewed as a suspect reason because he had not been found guilty of a

disciplinary infraction since 2008 when he was placed in segregation in 2012. And

McKinley was never found guilty or disciplined for any conduct tied to gang activity,

staff assaults, or failure to cooperate with investigators, so a jury could infer that

“safety” was never imperiled by plaintiff McKinley. Further circumstantial evidence is

the length of time McKinley was held in segregation and the number of times officers

interviewed him, as though they expected his answers to the same questions to change

to ones they liked.

McKinley next challenges the district court’s rejection of his claim that Phelps

used excessive force against him in retaliation for filing a lawsuit against Menard

officers other than Phelps. It is well

‐ established that filing lawsuits is protected First

Amendment activity, see Babcock

, 102 F.3d at 276, so we focus our analysis on the second

and third elements of a retaliation claim.

The district judge determined that McKinley “produced no evidence that these

events were spurred by a retaliatory motive.” But that finding did not account for

McKinley’s sworn statement that, as Phelps was hitting him, Phelps said, “So you filed

your lawsuit

. . . you thought that was gonna get you out of administrative detention.”

If Phelps referred to McKinley’s lawsuit while assaulting him, a jury could easily infer

that the lawsuit was a motivating factor. See Gracia

, 842 F.3d at 1021.No. 17

‐ 1709 Page 6

A beating would also deter an ordinary person from exercising his or her First

Amendment rights. The defendants argue otherwise, pointing to the fact that McKinley

continued to file lawsuits after the harassment occurred. But a retaliatory action need

not actually deter the plaintiff from persisting with First Amendment activity; an

objective test determines whether retaliatory actions would deter a person of “ordinary

firmness” from engaging in the protected activity. See Surita v. Hyde

, 665 F.3d 860, 878–

79 (7th Cir. 2011). And “since there is no justification for harassing people for exercising

their constitutional rights,” the effect of Phelps’s conduct on McKinley’s speech need

not be great in order to be actionable. Bart v. Telford

, 677 F.2d 622, 625 (7th Cir. 1982). We

cannot say as a matter of law that Phelps’s physical harassment of McKinley cannot

satisfy the second element of a retaliation claim.

We turn next to McKinley’s claim that Phelps and Schoenbeck violated the

Eighth Amendment by being deliberately indifferent to the conditions in his cell. To

succeed, McKinley must show that (1) conditions were sufficiently serious to deprive

him of the minimal civilized measures of life’s necessities, and (2) the officers “knew of

a substantial risk of serious injury to the detainee but nevertheless failed to take

reasonable measures to prevent that harm from occurring.” Henderson v. Sheahan

,

196 F.3d 839, 845 (7th Cir. 1999).

We agree with the district judge that the alleged conditions of McKinley’s cell

were sufficient to trigger Eighth Amendment protections. The cell lacked heat or hot

water in the winter and had rodent feces and urine on the floor. McKinley was not

given cleaning supplies to deal with this filth or with the dust exacerbating his asthma.

These conditions persisted for months, and “[a]n adverse condition of confinement, if

endured over a significant time, can become an Eighth Amendment violation even if it

would not be impermissible if it were only a short

‐ term problem.” Gray v. Hardy

, 826

F.3d 1000, 1005 (7th Cir. 2016). A reasonable jury could find that these conditions were

sufficiently serious to deprive McKinley of the minimal civilized measure of life’s

necessities—as we have said before about the segregation cells at Menard, Vinning

‐ El v.

Long

, 482 F.3d 923, 925 (7th Cir. 2007), and about similar conditions, such as extreme

cold and exposure to feces, see Gillis v. Litscher

, 468 F.3d 488, 493 (7th Cir. 2006)

(collecting cases describing conditions that are arguably unconstitutional); see also

Jackson v. Duckworth

, 955 F.2d 21, 22 (7th Cir. 1992).

As for the defendants’ state of mind, there is a factual dispute about whether

Phelps and Schoenbeck were deliberately indifferent. The district judge said that

McKinley had not explained what exactly he said in his grievances and in which cells he

faced these problems. But McKinley’s theory is different: he states that he complainedNo. 17

‐ 1709 Page 7

directly to both Phelps and Schoenbeck and also that they visited his cell routinely and

must have noticed the cold, the broken window, and the general filth McKinley

describes. See Duckworth

, 955 F.3d at 22 (finding defendants’ state of mind a triable issue

when plaintiff attested that defendants routinely observed living conditions); see also

Haywood v. Hathaway

, 842 F.3d 1026, 1031 (7th Cir. 2016); Vinning

‐ El, 482 F.3d at 925.

McKinley also produced an affidavit from another prisoner corroborating that he heard

McKinley tell both Phelps and Schoenbeck about mice in the area, a lack of heat in

winter, unavailability of cleaning supplies, and the adverse effect of these conditions on

McKinley’s health. Further, McKinley attested that Schoenbeck and Phelps responded

to these complaints by telling him that he “should not have decided to come to

administrative detention” and that he would have to “just deal with it.” When weighed

against the defendants’ testimony that they noticed only clean and orderly cells,

McKinley’s evidence creates a material factual dispute.

As a final matter, the defendants are not protected by qualified immunity, which

protects officials from suits about discretionary conduct that “does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Babcock

, 102 F.3d at 276 (quoting Harlow v. Fitzgerald

, 457 U.S. 800, 818 (1982)).

With regard to the retaliation claims, McKinley’s rights to provide a truthful account of

events during an investigation and to file a lawsuit have been clearly established. See

Bridges

, 557 F.3d at 551; Babcock

, 102 F.3d at 276. And a reasonable officer would know

that segregation and beatings were not legal responses to a prisoner exercising a

constitutional right. See Babcock

, 102 F.3d at 270; Black v. Lane

, 22 F.3d 1395, 1399 (7th Cir.

1994). (Anyway, it is questionable whether these defendants raised the defense of

qualified immunity with regard to McKinley’s three years in administrative detention—

they limit their discussion to his placements in investigative segregation, something

that we too see as lawfully imposed.) As for the Eighth Amendment claim, the

defendants were also on notice that they could not ignore the cold, feces, and filth in

McKinley’s cell. See Haywood

, 842 F.3d at 1031; Vinning

‐ El

, 482 F.3d at 925.

Accordingly, we AFFIRM the entry of summary judgment for defendant

Hasemeyer, and in all other respects, we VACATE the judgment and REMAND for

further proceedings consistent with this order. We suggest that on remand, the district

court consider whether it would be appropriate to recruit counsel to represent

McKinley in further proceedings.