                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




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

                            Submitted August 16, 2006*
                             Decided August 17, 2006

                                       Before

                  Hon. RICHARD A. POSNER, Circuit Judge

                  Hon. MICHAEL S. KANNE, Circuit Judge

                  Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 05-1149

COURTNEY ARMSTEAD,                            Appeal from the United States District
    Plaintiff-Appellant,                      Court for the Southern District of
                                              Indiana, Terre Haute Division
      v.
                                              No. TH 02-40-C-M/F
PAUL CLARK,
    Defendant-Appellee.                       Larry J. McKinney,
                                              Chief Judge.

                                     ORDER

        Courtney Armstead, an inmate at Wabash Valley Correctional Center, sued
Correctional Officer Paul Clark under 42 U.S.C. § 1983, claiming that Clark
violated his First Amendment right to free speech by retaliating against him for
filing a grievance. Following a bench trial, the district court entered judgment for
Clark. Armstead appeals the court’s final judgment as well as several underlying
orders. We affirm.




      *
       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).
No. 05-1149                                                                     Page 2

        The events surrounding this lawsuit are undisputed. On April 2, 2001,
Armstead created a disturbance at the prison’s “medical pass window.” Officer
Clark, who was assigned to patrol the area, approached Armstead, ordered him to
return to his cell house, and filed a disciplinary report charging him with disorderly
conduct. Armstead was found guilty and sanctioned. Armstead then filed a
grievance against Clark, complaining that during their confrontation Clark had
been “arrogant,” “belligerent,” and “disrespect[ful].” He also requested that Clark
receive “sensitivity training.” Several days later, Armstead filed a second grievance
against Clark arising from the same event, stating: “Clearly this officer has a bad
problem connecting or talking to prisoners. His poor unprofessional behavior, his
attitude, will sooner or later make a prisoner strike back with aggression of his own
if this officer isn’t corrected at this stage.” Clark received a copy of Armstead’s
second grievance on May 12 and immediately filed a disciplinary charge against
him because, Clark reported, the grievance “contained a threatening statement.”
Following a hearing to determine whether Armstead made a threat against Clark,
Armstead was found not guilty.

       In February 2002, Armstead filed this pro se lawsuit, alleging that Officer
Clark filed the May 12 conduct report in retaliation for the grievances he filed.
According to Armstead, the conduct report was “fabricated,” as reflected by the
conduct adjustment board’s determination that he had not threatened Clark. And,
he claimed, Clark had no authority to file the conduct report because only a
grievance specialist could report a prisoner for filing a grievance that included a
threat. Because the grievance specialist who reviewed his grievance did not file a
conduct report, Armstead reasoned, Clark took it upon himself to file the report in
retaliation for Armstead’s complaining about him.

       During the litigation Armstead filed several motions, which the district court
denied. In October 2003 Armstead moved to amend his complaint to add a certain
“Official Brown” as a defendant, alleging that Brown conspired with Clark to
“cover-up [Clark’s] retaliatory disciplinary infraction.” The district court denied the
motion, reasoning that any amendment to the complaint would be futile because the
two-year statute of limitations had run on Armstead’s claim. Armstead also
requested appointment of counsel on two separate occasions. In rejecting
Armstead’s requests, the district court observed that Armstead had not attempted
to recruit counsel himself and that “[t]he plaintiff has proceeded with vigor in this
action, and in doing so he has consistently shown his familiarity with the factual
basis of his claim, with the law applicable to the claim, and with the court’s
process.” The district court subsequently denied Armstead’s motion for summary
judgment as well as Clark’s cross-motion, explaining that a disputed issue of fact
existed concerning Clark’s motivation for filing the May 12 conduct report.
No. 05-1149                                                                     Page 3

       The case proceeded to trial. Officer Clark, testifying as Armstead’s witness,
denied acting with retaliatory intent when he filed the May 12 conduct report. He
admitted receiving a copy of Armstead’s grievance and writing a conduct report
“stemming from the grievance.” But, he explained, he construed the language in
the grievance—“his poor unprofessional behavior, his attitude, will sooner or later
make a prisoner strike back with aggressions of his own”—as a threat. He testified
that he believed he had authority to initiate a conduct report because any threat
against a staff member violated the prison’s Disciplinary Code. Armstead disagreed
and pointed to a provision in the prison’s grievance policy that he claimed
authorized only grievance specialists to file conduct reports arising from threats
contained in grievances: “[a]ny offender found to have filed a complaint/grievance
that contains a threat towards staff . . . shall have a conduct report filed by the
grievance specialist for that threat.” But the grievance specialist who reviewed
Armstead’s grievance testified that, even though the grievance policy mandated
that he file a conduct report if he independently believed Armstead’s grievance
contained a threat (and he did not), nothing prohibited Clark himself from filing a
conduct report if he believed the grievance contained a threat. The prison’s
superintendent of programs confirmed that any prison official may initiate a
conduct report whenever an inmate threatens staff.

        The district court entered judgment for Clark, setting forth three factors it
considered critical to its decision. First, the court found that Clark had authority to
file the May 12 conduct report. Second, the court determined that Armstead failed
to establish by a preponderance of the evidence that his filing a grievance, rather
than his making a threat, was the substantial or motivating factor for Clark’s filing
the conduct report. Third, the court found that Armstead failed to establish that he
suffered anything more than “subsequent adverse administrative action” as a result
of Clark’s action.

      On appeal Armstead challenges the district court’s determination that Clark
did not act with a retaliatory motive when he filed the May 12 conduct report. He
argues that Clark’s actions were retaliatory because his “grievance was used as the
only basis of [Clark’s] disciplinary report.” And because the conduct adjustment
board cleared him of making a threat in his grievance, Armstead claims, Clark’s
conduct report was necessarily false.

       To succeed on his retaliation claim, Armstead was required to prove that
Clark filed the May 12 conduct report to punish him for filing a grievance. See
Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996). Otherwise permissible actions
by prison officials can become impermissible if done with a retaliatory motive.
Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000). But the prisoner bears
the burden of proving that his protected conduct was a motivating factor for the
retaliation and that events would have transpired differently absent the retaliatory
No. 05-1149                                                                    Page 4

motive. Babcock, 102 F.3d at 275. Whether a defendant acted in retaliation is a
question of fact, Ustrak v. Fairman, 781 F.2d 573, 578 (7th Cir. 1986), that we
review for clear error, Levenstein v. Salafsky, 414 F.3d 767, 773 (7th Cir. 2005).

       The district court’s finding that Armstead failed to establish Clark’s
retaliatory motive is not clearly erroneous. Armstead insists that the conduct
adjustment board’s determination that his grievance did not contain a threat proves
that Clark retaliated against him, but that determination is only some evidence
that Clark’s motive may have been retaliatory. See Hale v. Scott, 371 F.3d 917, 920
(7th Cir. 2004) (“[i]f the prisoner can show that he did not violate the regulation,
then he may have” a retaliation claim). And Armstead presented little else but his
own conjecture in support of his claim. Although an inmate has a constitutional
right to file a grievance, DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000),
language that is otherwise punishable is not shielded from disciplinary action
merely because it appears in a grievance, Hale, 371 F.3d at 919-20. On this record
the district court could have concluded that Clark filed the grievance because he
believed Armstead violated prison policy. See Anderson v. City of Bessemer, 470
U.S. 564, 573-74 (1985) (instructing that when reviewing for clear error appellate
courts must affirm “[i]f the district court’s account of the evidence is plausible in
light of the record viewed in its entirety”).

       We also find no fault with district court’s decisions to deny Armstead’s
underlying motions. District courts may deny a motion to amend a complaint
where the proposed amendment is barred by the statute of limitations. Rodriguez
v. United States, 286 F.3d 972, 980 (7th Cir. 2002). Armstead’s request to add his
claim against Official Brown came more than two and a half years after these
events and therefore fell outside Indiana’s two-year statute of limitations for
personal injury claims. See Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir.
1997). District courts must also deny a motion to appoint counsel where plaintiff
made no attempt to secure counsel of his own, Jackson v. County of McLean, 953
F.2d 1070, 1072-73 (7th Cir. 1992), and the record reveals that Armstead did not
attempt to retain counsel before asking the court to appoint counsel. Finally, we
will not address the district court’s denial of Armstead’s motion for summary
judgment because this case already proceeded to a trial on the merits and our focus
now is on the evidence that emerged from that trial. See Chemetall GMBH v. ZR
Energy, Inc., 320 F.3d 714, 718-19 (7th Cir. 2003).

                                                                        AFFIRMED.
