Leon Irby v. Bruce Siedschlag

* After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 19, 2005*
Decided December 20, 2005
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 05-2985
LEON IRBY,
Plaintiff-Appellant,
v.
BRUCE SIEDSCHLAG, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin
No. 01-C-1281
Charles N. Clevert, Jr.,
Judge.
O R D E R
Wisconsin inmate Leon Irby brought suit under 42 U.S.C. § 1983 claiming
that prison officials and several correctional officers at the Waupun Correctional
Institution (“WCI”) used trumped-up disciplinary charges to retaliate for a
grievance he lodged against prison staff. The district court granted the defendants’
motion for summary judgment after concluding that Irby lacked admissible
evidence of retaliation. We affirm.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-2985 Page 2
Irby is a self-described jailhouse lawyer and advocate for the rights of
prisoners. In January 1995 he submitted a grievance to administrators at WCI
complaining that the director of security and correctional officers Bruce Siedschlag
and Richard Russell engaged in a “maliciously deliberate deceptive scheme” to
hinder a legal matter Irby was working on for another inmate. Irby alleges that
this grievance triggered the defendants to retaliate.
One month after Irby submitted his grievance, Siedschlag lodged a conduct
report against Irby detailing a verbal argument the officer had witnessed.
Siedschlag recounted that Irby and another prisoner, Crowley, repeatedly called
each other a “homosexual bitch,” and that Irby finally threatened to kill Crowley.
Irby, who has a conviction for murdering a fellow inmate, was charged with
threatening Crowley and engaging in disruptive conduct. Wis. Admin Code §§
306.16, 306.28. Crowley was not charged. A Conduct Adjustment Committee
comprised of an associate warden and a third correctional officer found Irby guilty,
and imposed 5 days of “adjustment segregation” and 180 days of “program
segregation.” The committee rejected Irby’s contention that Siedschlag brought the
disciplinary charge to retaliate for Irby’s earlier grievance, and reasoned that
Crowley’s fate was irrelevant to Irby’s guilt. Irby appealed to the warden of WCI,
who upheld the committee’s decision. The warden concluded that Irby was not the
target of retaliation, that the committee committed no procedural error, and that
the hearing evidence supported the finding of guilt and the penalty imposed.
Eight months later Irby received another conduct report. This time Russell
charged Irby with disrespecting an officer. See Wis. Admin. Code § 303.25. Russell
wrote in his conduct report that Irby called him an “asshole” because, in Irby’s
estimation, Russell did not respond appropriately to Irby’s allegation that inmate
Torres had spit in his face. Russell did not write a conduct report against Torres
because, according to Russell, he did not witness Torres spit on Irby. A Conduct
Adjustment Committee made up of the same associate warden and a fourth
correctional officer found Irby guilty and imposed 8 days “adjustment segregation”
and 180 days “program segregation.” Once more the warden upheld the discipline,
explaining that the committee had committed no procedural error and that its
finding of guilt was supported by the evidence.
Irby then filed suit in 2001 against Siedschlag, Russell, and everyone else
involved in his two disciplinary actions. The district court held that the retaliation
claim was not time-barred by Wisconsin’s 6-year statute of limitations period for
§ 1983 claims. See Wudtke v. Davel, 128 F.3d 1057, 1061 (7th Cir. 1997). Irby
alleged that inmates Crowley and Torres both initiated disturbances at the
direction of the defendants so that the defendants could manufacture grounds for
imposing discipline. In granting summary judgment, the district court principally

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No. 05-2985 Page 3
reasoned that Irby had failed to support his retaliation theory with any evidence.
The court also concluded, based on the undisputed evidence, that Irby had
committed the charged disciplinary violations and would have been punished the
same even if the defendants were motivated by a desire to retaliate.
On appeal Irby argues that he presented sufficient evidence for a jury to find
that the defendants brought the disciplinary charges to retaliate for his January
1995 grievance. An inmate who suffers retaliation for submitting legitimate
grievances has a valid claim under § 1983. DeWalt v. Carter, 224 F.3d 607, 618 (7th
Cir. 2000). To prove such a retaliation claim, the inmate must show that his own
activity was constitutionally protected, and that his conduct was a factor motivating
the prison officials challenged actions. See Babcock v. White, 102 F.3d 267, 275 (7th
Cir. 1996).
Interpreting all facts in the light most favorable to Irby, we conclude that he
failed to demonstrate a triable issue as to whether the defendants punished him out
of a desire to retaliate. Timing alone cannot sustain a retaliation claim, Pugh v.
City of Attica, 259 F.3d 619, 630 (7th Cir. 2001); see Smith v. Campbell, 250 F.3d
1032, 1038 (6th Cir. 2001), and, here, the one-month and then nine-month span
between Irby’s grievance and the two disciplinary cases at issue does not even
amount to suspicious timing. See Benson v. Cady, 761 F.2d 335, 342 (7th Cir. 1985)
(holding that six-day period between when plaintiff contacted attorney and alleged
retaliatory conduct by defendants not sufficient from which to infer retaliatory
motive). Irby does not dispute that he violated prison regulations, but argues that
since he alone was punished, the defendants must have been retaliating for the
grievance he filed in January 1995. But such conjecture cannot sustain Irby’s
burden at summary judgment. See Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir.
1999). Every defendant involved in the disciplinary process submitted an affidavit
denouncing any retaliatory motive, and neither inmate Crowley nor inmate Torres
testified in support of Irby’s theory. No jury reasonably could find on this evidence
that Irby was the victim of retaliation by any defendant.
AFFIRMED.

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