Gregory Perkins v. James Koehler

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 20, 2024*
Decided November 20, 2024
Before
FRANK H. EASTERBOOK, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 24-1508
GREGORY PERKINS,
Plaintiff-Appellant,
v.
JAMES KOEHLER, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 22-CV-1125
William E. Duffin,
Magistrate Judge.
* 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. F ED. R. A PP . P. 34(a)(2) (C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1508 Page 2
O R D E R
Gregory Perkins, an inmate at the Green Bay Correctional Institution, sued
several prison officials, alleging that they violated his rights under the Eighth and First
Amendments when one harassed him about his sexual orientation, and they all
retaliated against him for filing a complaint about the sexual harassment of another
prisoner at another institution. See 42 U.S.C. § 1983. A magistrate judge, presiding by
consent, see 28 U.S.C. § 636(c), entered summary judgment for the defendants because
Perkins did not identify a genuine dispute of material fact. Because Perkins fails to
present sufficient evidence to support either claim, we affirm.
We construe all facts and reasonable inferences in favor of Perkins, the non-
moving party. Douglas v. Reeves, 964 F.3d 643, 645 (7th Cir. 2020). While incarcerated at
Oshkosh Correctional Institution, Perkins called a hotline to report a violation of the
Prison Rape Elimination Act, 42 U.S.C. §§ 15601–15609 (the “Act”), on behalf of another
inmate, Tim Behrensprung. An investigation resulted, and Perkins was a third-party
witness. Later, both inmates were transferred (a few weeks apart) to Green Bay. But the
investigation of the complaint was conducted and concluded at Oshkosh.
Not long after the inmates’ transfer, a member of the Green Bay security staff
found emails that suggested a romantic relationship between Perkins and
Behrensprung and flagged the issue for James Koehler, the Corrections Program
Supervisor. (The Wisconsin Department of Correction prohibits consensual sexual
activities or relationships between prisoners.) The report prompted an email discussion
among Koehler, Daniel Cushing (a correctional Captain), and John Kind (the Security
Director), regarding whether Perkins and Behrensprung should be separated, and how
to best accomplish that. Eventually, with Cushing’s and Kind’s agreement, Koehler
placed a special handling note in Perkins’s profile in the electronic inmate population
management system. The note stated that Perkins and Behrensprung should be
separated by housing unit because they “had a suspected inappropriate relationship.”
None of the communications among the defendants about the suspected relationship
and the separation requirement mentioned Perkins’s complaint at Oshkosh.
A few months later, a conversation—the exact content of which is in dispute—
occurred between Perkins and Captain Cushing. At summary judgment, Perkins filed
multiple documents under penalty of perjury. In these he attested that Cushing yelled,
amid or within earshot of other inmates, that Perkins was gay and was trying to be
housed with Behrensprung, and other remarks to that effect. Perkins asserts that this

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No. 24-1508 Page 3
exchange caused severe psychological damage, including suicidal ideation, and put him
at risk of harm from other inmates. Cushing, on the other hand, attested that Perkins
initiated the interaction when he asked to be housed with Behrensprung, and Cushing
informed him that there was a note in his profile requiring that he and Behrensprung be
separated because of a suspected inappropriate relationship. According to Cushing,
only one other inmate passed by during the interaction. Not long after, Perkins received
a conduct report from Cushing and then a disciplinary conviction and sentence to
segregation for forging notes to the prison social worker asking to lift the separation
order for Perkins and Behrensprung. Perkins asserts that this was also part of a
campaign of retaliation against him.
Perkins sued Koehler, Cushing, and Kind, alleging that, by labeling him a
homosexual, restricting his housing options, and putting him in segregation, they
intended to punish him for speech protected by the First Amendment: filing the
complaint about a violation of the Act while at Oshkosh. He also alleged that Cushing
violated his rights under the Eighth Amendment by openly harassing him about his
sexual orientation and placing him in danger. The defendants eventually moved for
summary judgment. The district court granted the motion, concluding that Perkins had
only speculation that there was a retaliatory motive for the special handling note, given
the legitimate rationale provided by the defendants. The court also determined that,
even if Cushing had harassed Perkins in the manner alleged, that harassment was not
enough to constitute cruel and unusual punishment under the Eighth Amendment.
On appeal, Perkins argues that the district court overlooked factual
inconsistencies in the defendants’ accounts and failed to properly weigh Perkins’s
evidence. We review the summary judgment decision de novo. Douglas 964 F.3d at 645.
Where the evidence raises factual disputes, we accept Perkins’s version of events.
As to the First Amendment claim, the district court appropriately entered
judgment for the defendants based on the absence of evidence that they restricted
Perkins’s housing placement to punish him for protected activity. Prisons cannot attach
penalties to prisoners’ protected speech. Herron v. Meyer, 820 F.3d 860, 863 (7th Cir.
2016); see also Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 742
(2011). For his claim to survive summary judgment, Perkins required evidence
sufficient to allow a reasonable jury to conclude that he engaged in activity protected by
the First Amendment, that he suffered a deprivation that would likely deter future First
Amendment activity, and that the First Amendment activity was a motivating factor in
the defendants’ decision to take the retaliatory action. Jones v. Van Lanen, 27 F.4th 1280,

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No. 24-1508 Page 4
1284 (7th Cir. 2022). Even then, the defendants can prevail if they can show that the
harm Perkins complains of would have occurred anyway. Greene v. Doruff, 660 F.3d 975,
980 (7th Cir. 2011). Like the district court, we jump to the question of whether Perkins
supplied evidence that his protected activity was a motivating factor for the housing
restriction that Perkins views as a reprisal.† He did not.
Here, the record shows that the defendants created or approved the special
handling note in Perkins’s file because his emails alerted security staff to a possible
relationship with Behrensprung, which would violate the policies of the Department of
Corrections. The defendants’ attestations and records sufficiently supported this
legitimate reason for their conduct. Therefore, Perkins required some evidence that
places their rationale in dispute—and that his protected activity motivated the decision.
Manuel v. Nalley, 966 F.3d 678, 680 (7th Cir. 2020); Greene, 660 F.3d at 980. He has no
basis in personal knowledge of the reasons they acted, so he gets nowhere by swearing
to their motives. See F ED. R. C IV. P. 56(c)(4). Thus, as the district court explained, all
Perkins did was speculate about their motives based on their (admitted) knowledge that
Perkins was involved, at least as a witness, in an investigation at his previous
institution. But the mere knowledge that a prisoner engaged in protected activity is not
enough to show improper motivation in the face of legitimate reason for the action. See
Jones, 27 F.4th at 1284. The defendants made this decision over email; their emails made
no mention of Perkins’s prior complaint. Moreover, the defendants were not targets of
or involved in the investigation of Perkins’s complaint, which did not affect or pertain
to anyone at Green Bay. Thus, there is no circumstantial evidence allowing a reasonable
inference of an improper motive.
The district court also properly granted summary judgment on Perkins’s Eighth
Amendment claim because the interaction with Cushing was too fleeting to rise to the
level of cruel and unusual punishment. Verbal harassment by jail or prison guards
generally does not rise to the level of cruel and unusual punishment. See Beal v. Foster,
803 F.3d 356, 358 (7th Cir. 2015). Although we have acknowledged that harassment so
† The defendants do not dispute that the filing a complaint about a violation of
the Prison Rape Elimination Act is activity presented by the First Amendment, so we
need not decide. See Zimmerman v. Bornick, 25 F.4th 491, 493 (7th Cir. 2022) (“Our case
law has not resolved where the First Amendment draws the line for prisoners between
protected and unprotected speech.”).

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No. 24-1508 Page 5
cruel as to inflict significant psychological harm can violate the Eighth Amendment,
harassment that is “fleeting” or “simple” does not rise to that level. Id. at 457–58. Here,
Perkins cites one interaction with Cushing that did not involve especially “severe” or
“devasting” content. See id. Furthermore, the only harm Perkins alleges is the worsening
of his psychological conditions and his fear that other inmates will target him. But
prisoners cannot bring suit based on mental or emotional injury alone. 42 U.S.C.
§ 1997e(e); Gray v. Hardy, 826 F.3d 1000, 1007 (7th Cir. 2016). Therefore, no reasonable
jury could conclude that Cushing’s actions violated the Eighth Amendment.
AFFIRMED

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