Christopher S. Streckenbach v. Michael Meisner

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 22, 2019 *
Decided April 23, 2019
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 18‐3052
CHRISTOPHER S. STRECKENBACH,
Plaintiff‐Appellant,
v.
MICHAEL MEISNER, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 17‐C‐412
Lynn Adelman,
Judge.
O R D E R
Christopher Streckenbach, a Wisconsin inmate formerly housed at Redgranite
Correctional Institution, sued several prison officials for retaliation under the First
Amendment when they subjected him to a cell search and otherwise harassed him after
he filed a lawsuit against a prison employee. The district court entered summary
judgment for the defendants, concluding that Streckenbach did not exhaust his
administrative remedies for his claims against several defendants and that he presented
* We 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. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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insufficient evidence of constitutional violations committed by the remaining
defendants. We affirm.
This is Streckenbach’s second suit against officers at Redgranite. In 2015 he sued
the warden and a sergeant relating to the destruction of his personal property and lost
at summary judgment; we affirmed. Streckenbach v. VanDensen, 868 F.3d 594 (7th Cir.
2017). Streckenbach traces the beginning of his difficulties with several officers to this
2015 suit.
Because Streckenbach did not respond to the defendants’ motion for summary
judgment in the manner required by the local rules, the district court adopted the
defendants’ proposed findings of fact, and we do the same. E.D. WIS . C IV. L.R. 56(b)(4);
Salvadori v. Franklin Sch. Dist., 293 F.3d 989, 992 (7th Cir. 2002). As mentioned,
Streckenbach believes that the 2015 lawsuit led to the retaliatory acts that are the subject
of this suit. He describes a subsequent mailroom encounter when he allegedly was
mocked by Officers Scott Kosminskas and Michael Crump (Kosminskas supposedly
told Streckenbach that he heard Streckenbach was suing him and he wanted to know
whether he needed to hire a good defense attorney). And two years later Kosminskas
and Crump—still rankled by the 2015 lawsuit, according to Streckenbach—threatened
to send him to solitary confinement after he refused to be strip‐searched. Streckenbach
filed a grievance over the strip‐search incident against both officers, but the grievance
was dismissed. Streckenbach did not appeal the dismissal.
Streckenbach had run‐ins with other officers as well. While the 2015 suit was
pending, Officer Greg Radtke conducted a routine, monthly cell search and, according
to Streckenbach, turned his room upside down. Around this same time, Sergeant Jon
LaFontaine said that it was a joke for Streckenbach to think he would prevail in his
lawsuit, summoned him over the loudspeaker with an announcement that “attorney
Streckenbach” should go to the sergeant’s desk, rubber‐stamped “LEGAL MAIL OPEN
IN PRESENCE OF INMATE” on his correspondence more times than necessary, and
threatened to send him to solitary confinement for no reason. According to
Streckenbach, Officer Eric Podoski—for no reason—also threatened to send him to
solitary confinement, kicked his cell door on occasion, and once called him “RGCI’s
biggest jailhouse snitch” in front of other inmates.
Believing that all these attacks were retaliation for his 2015 suit, Streckenbach
filed multiple grievances complaining as much, and he formally asked several times to
be separated from these officers. These complaints were reviewed by Security Director

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No. 18‐3052 Page 3
David Tarr and Unit Supervisor Joli Grenier, who either denied the grievances or left
them unresolved by the time Streckenbach filed this suit. Streckenbach in turn filed a
grievance against Officer Grenier, complaining that she had taken too long to address
his grievances. This grievance was dismissed, and he did not appeal it.
Streckenbach also says that he sought help from certain prison officials to
intervene and curb the abuse, but no one stepped up. Among those officials whom he
named were prison Warden Michael Meisner, Deputy Warden Sandra Hautamaki,
Administrative Captain Andrew Wesner, Captain Chad Keller, Psychologist Supervisor
Nikolaus Werner, and Institution Complaint Examiner Michelle Smith.
Streckenbach then filed this suit, bringing First Amendment retaliation claims
against five defendants (LaFontaine, Podoski, Crump, Kosminskas, and Radtke) and
failure‐to‐intervene claims against eight others (Meisner, Hautamaki, Tarr, Wesner,
Grenier, Keller, Werner, and Smith).
The judge entered summary judgment for all defendants. He determined that
Streckenbach did not exhaust his administrative remedies regarding claims against six
defendants (Meisner, Hautamaki, Wesner, Keller, Werner, and Smith—whose conduct
he never challenged in an inmate complaint), as well as Crump and Kosminskas (he did
not appeal the dismissal of his complaint over the strip‐search incident, nor had he
received a decision on one then‐pending separation request against them). As for
LaFontaine, Podoski, and Radtke, the judge ruled that no jury could conclude that their
allegedly retaliatory acts were serious enough to deter a reasonable person from
engaging in future First Amendment activity. Lastly, regarding Streckenbach’s claim
that Tarr failed to intervene to stop the defendants’ retaliatory behavior, the judge
determined that their behavior was not unconstitutional, so there was no reason for
Tarr to do anything about it. 1
On appeal Streckenbach maintains generally that he fully exhausted his
administrative remedies for all his claims. But the exhaustion requirement is strict,
requiring a prisoner to complete the administrative review process in accordance with
the applicable procedural rules, including deadlines. Woodford v. Ngo, 548 U.S. 81, 85
(2006); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). As the district court
properly determined, Streckenbach failed to exhaust his remedies against Meisner,
1 The judge’s order puzzlingly omitted any analysis of Streckenbach’s claim
against Unit Supervisor Joli Grenier.

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Hautamaki, Wesner, Keller, Werner, and Smith because he did not file any inmate
complaints against them challenging their failure to intervene on his behalf.
WIS . A DMIN. C ODE DOC § 310.01(2)(a). He also failed to exhaust his remedies against
Crump, Kosminskas, and Grenier because he did not appeal the dismissals of his
complaints against them. Id. §§ 310.05, 310.09.
As for Streckenbach’s First Amendment retaliation claims (which he did exhaust)
against Podoski, Radtke, and LaFontaine, he generally challenges the entry of summary
judgment on grounds that the judge downplayed the seriousness of the alleged
misconduct. But to survive summary judgment, he needed to provide enough evidence
to allow a reasonable jury to conclude that (1) he engaged in activity protected by the
First Amendment; (2) he suffered a deprivation likely to deter future protected activity;
and (3) his protected activity at least partially motivated the deprivation suffered.
Walker v. Groot, 867 F.3d 799, 803 (7th Cir. 2017).
The judge concluded that Streckenbach’s claim against Podoski faltered on the
second prong—that a reasonable jury could not find that Podoski’s behavior was likely
to deter future protected activity. But Streckenbach could point to evidence that
Podoski called him a snitch in front of other inmates, and the First Amendment
prohibits conduct that would likely deter a person of “ordinary firmness” from
continuing to engage in protected activity. Surita v. Hyde, 665 F.3d 860, 878 (7th Cir.
2011). It is “common knowledge that snitches face unique risks in prison,” Dale v.
Poston, 548 F.3d 563, 570 (7th Cir. 2008), and we think that a reasonable juror could infer
that being labeled a snitch would likely deter a person of “ordinary firmness” from
exercising his First Amendment rights. As for Podoski’s other conduct—threatening to
send him to solitary confinement for no reason and occasionally kicking his cell door—a
reasonable jury could conclude that those actions, too, could deter protected conduct.
The adverse actions “need not be extreme,ʺ Massey v. Johnson, 457 F.3d 711, 720 (7th Cir.
2006), nor need they independently violate the constitution, Bridges v. Gilbert, 557 F.3d
541 (7th Cir. 2009); Hoskins v. Lenear, 395 F.3d 372 (7th Cir. 2005). And we have explicitly
said before that kicking a cell door could, if done with a retaliatory motive, be
actionable. Bridges, 557 F.3d at 541.
The judge, however, appropriately concluded that even if Streckenbach satisfied
the second prong, summary judgment was still proper under the third prong because
there was no record evidence of a retaliatory motive. Streckenbach cannot point to any
evidence suggesting that Podoski was even aware of the 2015 lawsuit at the time of any
of this conduct, let alone that he was motivated by it. (Podoski in fact says that he did

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not learn of the lawsuit until December 12, 2016, when Chad Keller, his supervising
officer, discussed Streckenbach’s complaints with him.) Streckenbach speculates that
Podoski must have learned about his lawsuit because the prison is a small place and
word gets around, but neither speculation nor suspicious timing—without more—is
enough to survive summary judgment. Herzog v. Graphic Packaging Intʹl, Inc., 742 F.3d
802, 806 (7th Cir. 2014).
Summary judgment was properly entered for LaFontaine, as well. The judge was
correct that Streckenbach could not satisfy the second prong of the prima facie case. No
rational jury could conclude that much of LaFontaine’s conduct—poking fun at the
amount of money Streckenbach sought in damages, mocking him for thinking he could
prevail in his lawsuit, summoning him to the sergeant’s desk over the loudspeaker with
references to “attorney Streckenbach,” or excessively rubber‐stamping “LEGAL MAIL”
on correspondence addressed to Streckenbach—would deter a person of “ordinary
firmness” from future protected activity. True, we have noted that a “campaign of petty
harassments” that included reprimands and ridicule could be enough to deter free
expression, see, e.g., Massey, 457 F.3d at 720–21, but we believe on this record that the
judge accurately assessed the situation.
Streckenbach also complained that LaFontaine threatened to send him to solitary
confinement—a threat that, as we already have said, could deter a person of ordinary
firmness from exercising future speech. But this does not justify reversal because
Streckenbach cannot satisfy the third prong of the prima facie test. The record here
(effectively the defendants’ uncontested version of the facts) permits no inference to
allow a jury to find that any such threat was motivated by the 2015 suit.
The judge also correctly concluded that Streckenbach’s claim against Radtke
faltered on the second prong of the prima facie test. No reasonable jury could conclude
that Radtke’s monthly search of his cell would deter a person of ordinary firmness from
exercising future speech. Not only was the cell search Streckenbach complains of
routine, but there is no evidence that the search was conducted improperly.
Lastly, Streckenbach’s claim against Tarr—that he failed to intervene to prevent
violations of Streckenbach’s First Amendment rights—also fails. The judge was correct
that to prevail, Streckenbach would need to show that Tarr had knowledge of those
violations, see Gill v. City of Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017), and
Streckenbach did not provide evidence that any occurred at all.
AFFIRMED

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