                            NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                      Fed. R. App. P. 32.1



              United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604

                                    Submitted May 9, 2012*
                                     Decided July 12, 2012

                                             Before

                            JOEL M. FLAUM, Circuit Judge

                            ILANA DIAMOND ROVNER, Circuit Judge

                            DAVID F. HAMILTON, Circuit Judge


No. 11-3217

JOHN W. PEROTTI,                                   Appeal from the United States District
     Plaintiff-Appellant,                          Court for the Southern District of Indiana,
                                                   Terre Haute Division.
       v.
                                                   No. 2:10-cv-86-JMS-MJD
DIANA QUINONES, et al.,
     Defendants-Appellees.                         Jane E. Magnus-Stinson,
                                                   Judge.

                                           ORDER
        John Perotti briefly worked as a clerk in the prison law library while incarcerated at the
federal penitentiary in Terre Haute, Indiana. In this lawsuit under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), he alleges that twice he was fired
from his clerk position. The first time, he says, two prison employees took away his job in
retaliation for filing grievances. And when he succeeded in getting that action reversed,


       *
        After examining 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)(C).
No. 11-3217                                                                                Page 2

Perotti continues, a third prison employee got him fired permanently in retaliation for
providing legal assistance to other inmates. The district court granted summary judgment for
the defendants, reasoning that Perotti lacks evidence of their personal involvement in the
decisions to terminate his employment.

       We review the admissible evidence at summary judgment in the light most favorable
to Perotti. See Smeigh v. Johns Manville, Inc., 643 F.3d 554, 560 (7th Cir. 2011). Perotti had been
working in the law library as an orderly for several months during 2008 when Billie
Kelsheimer, a Bureau of Prisons teacher assigned to the library, offered him a promotion to the
position of clerk. He accepted, but on September 5, after just two weeks on the job, Kelsheimer
told him that the clerk position no longer was his. According to Perotti, Kelsheimer explained
that Diana Quinones, the prison’s supervisor of education, had told Kelsheimer she would not
approve the promotion because he filed too many administrative grievances against the
prison’s education department.

        At times during this litigation, Quinones and Kelsheimer, both of them defendants,
have said that Perotti was not even promoted until September 17, but that is their view of the
evidence, not his. Perotti contends that he was promoted in August, fired on September 5, and
reinstated on September 29. Quinones and Kelsheimer rest their litigation position on hearsay
in the declaration of Perotti’s correctional counselor, who purportedly reviewed an
undisclosed computer record “indicating,” she says, that Perotti worked in the Education
Department (which includes the law library) from April 2008 until September 17. On the other
hand, Kelsheimer answered an interrogatory by saying that she could not even recall
recommending Perotti for a promotion, and she has never denied that he was fired and
reinstated shortly after he was promoted. Neither has Quinones herself denied that Perotti
was fired and rehired. She did respond to one of his interrogatories by flatly denying that she
told Kelsheimer he must lose his clerk job because he filed too many grievances. This denial
came, however, many months after Quinones had ignored – and as far as the record shows,
never did answer – Perotti’s written request to admit that she “refused to change” his job
classification from orderly to clerk and told Kelsheimer that the reason for this decision was
Perotti’s filing of “too many” grievances against her department. In their motions for
summary judgment, Quinones and Kelsheimer did not introduce evidence suggesting, let
alone proving beyond reasonable dispute, that someone other than the two of them had made
the decisions to promote Perotti in August and then fire him on September 5.

       Perotti reacted to losing his promotion by complaining that he was being retaliated
against for utilizing the grievance system. Three weeks later – on September 29 – an associate
warden met with Quinones and Kelsheimer in Perotti’s presence and directed them to
reinstate him to his clerk position. For purposes of summary judgment, we must assume this
meeting occurred as plaintiff says. Perotti avers that during this meeting the associate warden
No. 11-3217                                                                               Page 3

instructed these two defendants to give him back pay, and a payroll record introduced by the
defendants corroborates his account.

        Perotti was reinstated on September 29, but his success was fleeting. On October 1,
2008, he was helping another inmate prepare an administrative appeal and tried to photocopy
some documents. Laura Wheeler, another teacher working in the law library, demanded to
see those documents, with the explanation that Perotti could not use the copier without proof
of an impending legal deadline. Wheeler looked at the documents, told Perotti that he was not
permitted to assist other inmates in filing “liens,” and told him to take the documents and
leave the copy room. Perotti did so and sent the papers back to their owner, who was
challenging a disciplinary sanction for threatening to file a lien against a prison employee.
Fifteen minutes later, Wheeler and a guard confronted Perotti and demanded the papers.
When Perotti said he no longer had them, Wheeler searched his bag and confiscated copies
belonging to Perotti of unrelated public records. Wheeler then filed a misconduct report
accusing Perotti of lying about having an impending deadline and violating a policy
forbidding prisoners from possessing another inmate’s legal materials outside the library.
Wheeler, the third defendant in this lawsuit, promptly recommended to Perotti’s correctional
counselor that he be fired from his library position.

        Based on the misconduct report and Wheeler’s recommendation, Perotti’s counselor,
who is not a defendant, removed him a second time from his library position. He complained
to the assistant warden that his counselor had violated BOP policy by removing him before the
misconduct report had been adjudicated. The assistant warden agreed and once again ordered
him reinstated, but two hours later his counselor presided over a disciplinary hearing and
declared him guilty of both charges. As part of his punishment, his counselor then
permanently removed him from his position in the law library. He appealed the findings of
guilt, and both eventually were reversed – the charge for possessing another inmate’s papers
because it was unfounded and the charge for lying due to an undisclosed “procedural error.”
By that point five months had passed; Perotti was again awarded back pay, but he was not
returned to his job in the law library or given any other job at Terre Haute. He was transferred
to a different facility in April 2010.

        Perotti then filed this suit in state court. The three defendants removed the case to
federal court, and after screening Perotti’s complaint, see 28 U.S.C. § 1915A, the district court
allowed his retaliation claims to proceed. At summary judgment, however, the court credited
the defendants’ denials of personal involvement in the alleged retaliation. Like the defendants,
the district judge did not appreciate that Perotti claims he was fired twice, not once. The
district court reasoned that Perotti had only hearsay to support his contention that Quinones
No. 11-3217                                                                                 Page 4

ordered Kelsheimer to rescind his promotion. And Kelsheimer and Wheeler, the court
continued, were not the employees who decided to fire him.

        On appeal, Perotti first contends that the district court should have excluded the
declarations of the defendants and other BOP employees because the authors do not say
explicitly that they are speaking from personal knowledge. The absence of such a
representation, however, is not a valid objection to the declarations. To the extent that the
authors are speaking about their duties or the events they purportedly witnessed, personal
knowledge reasonably can be inferred from the content of the declarations. See DirecTV, Inc.
v. Budden, 420 F.3d 521, 529–30 (5th Cir. 2005); Barthelemy v. Air Lines Pilots Ass’n, 897 F.2d 999,
1018 (9th Cir. 1990). Perhaps instead Perotti criticizes the declarations because they also
include some representations of fact that plainly are not based on personal knowledge, but
since our review is de novo, Draper v. Martin, 664 F.3d 1110, 1113 (7th Cir. 2011), we may cure
any possible error by considering only the portions that are admissible, see Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 506 (7th Cir. 2004).

      Perotti also contends that the district court erroneously concluded that he did not
present sufficient evidence to survive summary judgment. As to Quinones and Kelsheimer,
we agree with him.

         As noted, Kelsheimer has not denied recommending Perotti for a promotion, nor has
she denied that he was fired and then reinstated soon after he was promoted. Her position
seems to be that someone else made the decision to end his tenure as a clerk, but in making this
argument Kelsheimer focuses on the second termination, not the first. What is clear about the
first termination is that, when the assistant warden overturned that decision, she did so in a
meeting at which Quinones and Kelsheimer were the only staff members in attendance, and
from this a jury reasonably can infer that the assistant warden was addressing them because
they were the employees being overruled. Perotti says that it was Kelsheimer who told him
on September 5 that he no longer had a job, so it is unlikely that she did not participate in
taking away his promotion.

        Kelsheimer might argue that she made the announcement though not the decision, but
a jury could find otherwise. Perotti avers in his verified complaint and later affidavit that
Kelsheimer called him into her office and told him he was being fired “because Quinones said
he ‘filed too many administrative remedies.’” Perotti’s account of Kelsheimer’s statement is
admissible against Kelsheimer as a nonhearsay party admission.                 See Fed. R. Evid.
801(d)(2)(A); United States v. Penaloza, 648 F.3d 539, 545 (7th Cir. 2011). Read in the light most
favorable to Perotti, it shows not only awareness that he was being fired in retaliation for using
the grievance process but also suggests that Kelsheimer had a voice in the decision and at least
No. 11-3217                                                                                 Page 5

acquiesced. Perotti avers that Kelsheimer gave him the job, and a jury could infer that,
although her boss Quinones was the impetus, she made the decision to take it away. This
inference is only made stronger by the failure of both Quinones and Kelsheimer to explain
who, if not they, rescinded Perotti’s promotion before the assistant warden reinstated him.

        As for Quinones, the district court reasoned that she is off the hook because Perotti
would encounter a hearsay objection if he tried to testify about what Quinones told Kelsheimer
(and he cannot call Kelsheimer because she has said she cannot recall the conversation). The
district court, however, did not fully consider other evidence linking Quinones to the
statement attributed to her by Kelsheimer. In his affidavit Perotti says that, after he was told
by Kelsheimer that his promotion had been rescinded, he confronted Quinones, who did not
deny that she had put the kibosh on his promotion due to his past grievances. Thus there is
evidence that Quinones failed to deny retaliatory conduct when accused, which is admissible
as an adoptive admission if a reasonable person would have been expected to deny the
accusation if it was false. See Fed. R. Evid. 801(d)(2)(B); United States v. Ward, 377 F.3d 671,
675–76 (7th Cir. 2004); Rahn v. Hawkins, 464 F.3d 813, 820–21 (8th Cir. 2006). Further, based on
the record before us, we cannot determine whether Quinones ever answered Perotti’s request
that she admit having refused to upgrade his job classification from orderly to clerk and said
the reason was his grievances against her department. If she did not answer this request for
admission, the district court was obligated to deem that contention admitted, notwithstanding
that Quinones elsewhere denied personal involvement in firing Perotti, see Fed. R. Civ. P.
36(a)(3), unless the court grants relief from the admission under Rule 36(b). See McCann v.
Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003); United States v. Kasuboski, 834 F.2d 1345, 1349 (7th
Cir. 1987).

        Accordingly, the retaliation claim against Quinones and Kelsheimer must be remanded
for trial. Summary judgment was appropriate, however, on Perotti’s claim that Wheeler
retaliated against him for providing legal assistance to other inmates – though not for the
reason that the district court stated. The court discerned no evidence that Wheeler was
personally involved in the decision to terminate Perotti’s library employment; that is a
puzzling conclusion given the admission in the defendants’ answer to Perotti’s complaint that
he “was fired from his library job by Individual Defendant Wheeler.” Regardless, the
conclusion is untenable since the only reason Perotti was fired the second time is that his
counselor found him guilty of the misconduct charges lodged by Wheeler. It may be true that
Perotti’s counselor made the final decision to permanently remove him from his job as a clerk,
but to say that Wheeler did not participate in the chain of events leading to his termination is
inaccurate.

        Yet Perotti’s claim still lacks merit. He accuses Wheeler of lodging false misconduct
No. 11-3217                                                                                Page 6

charges, an action that could support a claim for retaliation. See Black v. Lane, 22 F.3d 1395,
1402–03 (7th Cir. 1994). Falsifying a disciplinary charge, however, will not give rise to liability
for unconstitutional retaliation unless the motive for the fabrication was to retaliate for the
exercise of a constitutional right. See Lagerstrom v. Kingston, 463 F.3d 621, 625 (7th Cir. 2006);
Black, 22 F.3d at 1402. And inmates do not have a constitutional right to provide legal
assistance to other prisoners. See Shaw v. Murphy, 532 U.S. 223, 231 (2001) (declining “to cloak
the provision of legal assistance with any First Amendment protection above and beyond the
protection normally accorded prisoners’ speech”); Watkins v. Kasper, 599 F.3d 791, 797 (7th Cir.
2010). Perotti tries to ground such a right in BOP program statements authorizing inmates to
assist each other with legal work, see U.S. Dep’t of Justice, Fed. Bureau of Prisons, Program
Statements 1315.07(10)(f), 1330.13(10), but these statements do not create constitutional rights,
see United States v. Caceres, 440 U.S. 741, 751–52 (1979); Robinson v. Sherrod, 631 F.3d 839, 842
(7th Cir. 2011); Miller v. Henman, 804 F2d 421, 424–25 (7th Cir. 1986). Thus, even if a jury might
conclude that Wheeler’s accusation of misconduct was intentional rather than simply hasty,
and even if the evidence points to a conclusion that she was motivated to fabricate the charges
because of disdain for Perotti’s assistance to other prisoners, his claim of actionable retaliation
fails as a matter of law.

       The order granting summary judgment for Quinones and Kelsheimer is VACATED,
and the case is remanded for further proceedings as to those defendants. As to Wheeler the
judgment is AFFIRMED.
