Shelby v. Gelios

287 F. App'x 526
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 11, 2008
DocketNo. 07-3113
StatusPublished

This text of 287 F. App'x 526 (Shelby v. Gelios) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shelby v. Gelios, 287 F. App'x 526 (7th Cir. 2008).

Opinion

ORDER

David Shelby, a federal inmate previously housed at the Federal Correctional Institution in Greenville, Illinois, received a disciplinary report after a guard found marijuana and barbiturates in his cell. Shelby received a hearing, and the Disciplinary Hearing Officer found that Shelby had violated the prison’s rule prohibiting possession of drugs because the drugs were in his cell and thus he was responsible for them. Shelby was disciplined with the loss of good-time credits and visitation privileges, segregation, and a transfer to another facility. He eventually was moved to a federal prison in Colorado, and from there he petitioned for a writ of habeas corpus, see 28 U.S.C. § 2241, claiming that his right to due process had been violated because, he asserted, there was not sufficient evidence to support the DHO’s finding. The district court for the District of Colorado agreed, granted his petition, and ordered the Bureau of Prisons to expunge the violation from Shelby’s record and reinstate his good-time credits. Shelby v. United States, No. 03-cv-1336 (D.Colo. Aug. 4, 2004) (unpublished order). Relying on the Colorado district court’s decision, Shelby then filed this action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), seeking damages from the guard who filed the disciplinary report, another guard who participated in the investigation, and the DHO who conducted the disciplinary hearing. The district court for the Southern District of Illinois screened Shelby’s complaint prior to service, see 28 U.S.C. § 1915A, and dismissed it on the ground that it fails to state a claim.

We review de novo a dismissal under § 1915A for failure to state a claim. Westefer v. Snyder, 422 F.3d 570, 574 (7th Cir.2005). Shelby’s allegations are sparse, but his complaint turns on the decision of the Colorado district court, and he has attached the court’s order to his appellate brief. Thus he has incorporated that decision into his complaint. See Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir.1998); Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir.1994). So, in setting out the facts, we rely on the factual findings in the Colorado district court’s order and accept as true the additional allegations in Shelby’s complaint. See Westefer, 422 F.3d at 574.

In November 2002, while Shelby was working at his job in the kitchen at Green-ville, guards searched his cell, which he [528]*528shared with four other inmates, and which he could not lock to exclude other uninvited inmates. During the search the guards found four packets of marijuana under a cellmate’s bunk, a Chapstick cap containing barbiturates in a bag next to a cellmate’s bunk, four packets of marijuana on a cellmate’s bunk, a balled-up sock containing twenty packets of marijuana on an unassigned bunk (which had been “claimed” by another inmate whose authority to be in the cell is unclear), and a red balloon and ten packets of marijuana inside a tennis shoe on top of the unassigned bunk. Four inmates were present during the search, although we cannot tell if all of them were Shelby’s cellmates. At that time Shelby and his cellmates all denied knowing anything about the drugs.

In January 2003 one of the guards who conducted the search wrote a disciplinary report charging Shelby with possessing drugs. Afterward another guard interviewed Shelby and concluded that “the incident report supports the charge.” At the hearing before the DHO, Shelby testified that he did not own the drugs and had not known that they were in his cell. Another inmate (we do not know whether he was one of Shelby’s cellmates) testified that he, not Shelby, was the owner of the drugs and that Shelby “[ajin’t seen nothing and didn’t know nothing about it.” The DHO issued written findings discounting that witness’s testimony, finding it “highly unlikely” that Shelby was unaware of the drugs given the number of hiding places, and concluding that Shelby was thus responsible for possessing the drugs.

The district court construed Shelby’s civil-rights complaint as challenging only the disciplinary transfer and revocation of visitation privileges, and then dismissed it, reasoning that because inmates do not have a liberty interest in being housed at a particular facility, see Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir.2005); Whitford v. Boglino, 63 F.3d 527, 532 (7th Cir.1995), or in having ready access to visitors, see Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); see also DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir.2000), they are not entitled to due process before they are transferred or lose visitation privileges. So, the dismissal of those theories was correct.

However, construing Shelby’s pro se complaint liberally, as we must, see Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir.2006), we conclude that he also seeks damages for the temporary loss of his good-time credits. A prisoner is entitled to nominal damages if a due-process violation resulted in the loss of good-time credits, even if they were later restored. See Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Gates v. Towery, 430 F.3d 429, 431 (7th Cir.2005). Punitive damages may also be available if the prisoner can prove that the defendants acted with an “evil motive” or “callous indifference” to his due-process rights. Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); see Marshall ex rel. Gossens v. Teske, 284 F.3d 765, 772 (7th Cir.2002).

So we must decide whether Shelby has stated a civil-rights claim for a due-process violation that resulted in the temporary loss of his good-time credits. To satisfy the notice-pleading requirements of Federal Rule of Civil Procedure 8(a)(2), a complaint need include only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2); see Bell Atl. Corp. v. Twombly, — U.S. —, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007). For a plaintiff attempting to make out a claim under Bivens,

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Related

Broussard v. Johnson
253 F.3d 874 (Fifth Circuit, 2001)
Carey v. Piphus
435 U.S. 247 (Supreme Court, 1978)
Smith v. Wade
461 U.S. 30 (Supreme Court, 1983)
Kentucky Department of Corrections v. Thompson
490 U.S. 454 (Supreme Court, 1989)
Heck v. Humphrey
512 U.S. 477 (Supreme Court, 1994)
Edwards v. Balisok
520 U.S. 641 (Supreme Court, 1997)
Bell Atlantic Corp. v. Twombly
550 U.S. 544 (Supreme Court, 2007)
Larry Whitford v. Captain Boglino
63 F.3d 527 (Seventh Circuit, 1995)
Ellis Henderson v. Michael F. Sheahan and J.W. Fairman
196 F.3d 839 (Seventh Circuit, 2000)
Robert Hoskins v. Connie Lenear
395 F.3d 372 (Seventh Circuit, 2005)

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Bluebook (online)
287 F. App'x 526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelby-v-gelios-ca7-2008.