Jay F. Vermillion v. Tom Francum

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 4, 2025*
Decided November 5, 2025
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 24-2797
JAY F. VERMILLION,
Plaintiff-Appellant,
v.
TOM FRANCUM, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:20-cv-01674-JPH-KMB
James Patrick Hanlon,
Judge.
O R D E R
Jay Vermillion, a prisoner at Pendleton Correctional Facility in Indiana, appeals
from the summary judgment rejecting his claims that prison officials dismissed him
from his job in the prison’s law library in retaliation for prior lawsuits. The district court
concluded that Vermillion failed to present evidence from which a reasonable jury
* 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NONPRECEDENTIAL DISPOSITION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. 24-2797 Page 2
could find that any defendant was personally involved in his discharge or had a motive
to retaliate. We affirm.
This suit arises from Vermillion’s discharge from his position in Pendleton’s law
library in July 2018. The prison states that it fired him because he was a person of
interest in an investigation—conducted by prison investigator Brock Turney under the
supervision of lead investigator Charles Houchins—into whether drugs were smuggled
into the prison through library mail. According to the investigators’ report,
drug-sniffing dogs located paperwork traced with drugs in the work areas of multiple
prisoners, including Vermillion. He maintains that this investigation was a pretext to
retaliate against him for lawsuits he brought against prison officials. See Vermillion v.
Levenhagen, No. 1:15-cv-00605-RLY-TAB (S.D. Ind. 2011); Vermillion v. Corizon Health,
Inc., No. 1:16-cv-1723-JMS-DLP (S.D. Ind. 2016); Vermillion v. Corizon Health, Inc.,
No. 1:17-cv-00961-RLY-MPB (S.D. Ind. 2017). Vermillion also contends that the
investigation was ordered by Houchins’s predecessor, Tom Francum, because
Vermillion previously sued Francum’s wife. After he was fired, Vermillion complained
to multiple prison officials, including superintendent Dushan Zatecky and assistant
superintendent Duane Alsip, but neither responded.
Vermillion sued Francum, Houchins, and Turney for instigating a pretextual
investigation in retaliation for his prior lawsuits. See 42 U.S.C. § 1983. He also sued
Zatecky and Alsip for turning a blind eye to the investigators’ misconduct.
The district court entered summary judgment for the defendants. The court first
determined that Vermillion provided no evidence that Francum was involved in the
discharge or that Houchins or Turney knew about—let alone were motivated by—the
prior suits. As to Zatecky and Alsip, the court concluded that Vermillion failed to
provide evidence of any wrongdoing to which these defendants could turn a blind eye.
On appeal, Vermillion raises a threefold challenge to the district court’s ruling in
favor of Francum. Vermillion argues, first, that circumstantial evidence could permit a
jury to conclude that Francum had both the motive and authority to retaliate. This
includes evidence that Francum worked in the Indiana Department of Correction’s
central office at the time of the investigation; that Vermillion had sued Francum’s wife;
and that Francum had been sued by another prisoner for fabricating evidence to fire
that prisoner from Pendleton’s law library in retaliation for protected speech, Holleman
v. Zatecky, No. 1:14-cv-00671-TWP-DML (S.D. Ind. 2014). But Vermillion presented no
evidence that Francum was personally involved in his discharge. Whitfield v. Spiller,
76 F.4th 698, 706 (7th Cir. 2023).

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No. 24-2797 Page 3
Vermillion also argues that the district court should have struck—as
impermissibly speculative—affidavits from investigators, including Houchins and
Turney, stating that Francum was not involved in the investigation. But as the district
court recognized, the affiants were directly involved in the investigation, so they knew
and could testify to whether Francum had any part in it. See F ED R. C IV. P. 56(C)(1)(A)
(procedures for supporting factual positions).
And Vermillion proposes that Francum—by failing to deny an allegation in the
defendants’ answer to his complaint—effectively admitted his personal involvement in
the investigation. See FED. R. C IV. P. 8(b)(6). But the defendants’ answer generally denied
all allegations not specifically admitted. See FED. R. C IV. P. 8(b)(3).
As for his retaliation claims against investigators Houchins and Turney,
Vermillion argues that he presented evidence of pretext in their decision to fire him—
namely, inconsistencies, contradictions, or lack of evidence in their investigation report.
However, to demonstrate that Houchins and Turney violated his First Amendment
rights, Vermillion needed to—but did not—submit evidence that the investigators were
aware of his prior suits. Consolino v. Towne, 872 F.3d 825, 829–30 (7th Cir. 2017).
Finally, Vermillion maintains that his evidence shows that Zatecky and Alsip are
liable under § 1983 because they ignored his complaints of the investigators’ retaliation
against him. True, an official can be held liable for a constitutional violation that he did
not directly participate in, so long as he knew “about the conduct, facilitated it,
approved it, condoned it, or turned a blind eye” to it. Rasho v. Elyea, 856 F.3d 469, 478
(7th Cir. 2017) (cleaned up). But this assumes that some underlying constitutional
violation occurred, see Cielak v. Nicolet Union High Sch. Dist., 112 F.4th 472, 481 (7th Cir.
2024), and Vermillion presented no evidence of an underlying violation that Zatecky or
Alsip could have ignored.
AFFIRMED

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