Chong Lee v. Kevin Carr ( 2022 )

NONPRECEDENTIAL DISPOSITION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 February 18, 2022*
Decided February 22, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-1309
CHONG LENG LEE, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin.
v. No. 20-CV-1637
KEVIN A. CARR, William E. Duffin,
Defendant-Appellee. Magistrate Judge.
ORDER
Chong Lee, a prisoner at Wisconsin’s Waupun Correctional Institution, owes
criminal restitution but believes that the Wisconsin Department of Corrections is
* The appellee was not served with process and is not participating in this appeal.
We have agreed to decide the case without oral argument because the appellant’s brief
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 21-1309 Page 2
deducting too much money from his prison trust account to satisfy it. He sued the
Secretary of the Department under 42 U.S.C. § 1983, arguing that the policy allowing a
50% deduction from transfers into his account violates his constitutional rights. The
district court dismissed his complaint at screening for failure to state a claim. The
dismissal was proper, and so we affirm.
A Wisconsin court entered a judgment of conviction against Lee that included an
order to pay several thousand dollars in restitution to the parents of his homicide
victim. According to Lee, the order specified that 25% of the funds in his prison account,
exclusive of wages, would be applied towards restitution. Later, the Wisconsin
legislature passed Act 355, pursuant to which the Department instituted a state-wide
policy increasing from 25% to 50% the rate at which funds may be deducted from
inmates’ trust accounts to pay their debts. Officials at Waupun then began applying
50% of the funds entering Lee’s account (money sent by family and friends as well as
the wages from his prison job) toward restitution. Lee alleges that he complained to
various officials that this violated the criminal court’s restitution order, but they told
him that the new policy superseded the order.
Lee then sued Kevin Carr, the Secretary of the Department, under 42 U.S.C.
§ 1983, urging that the Department was stealing from him and ignoring a valid court
order. He maintained that the increased deductions violated his constitutional rights
and sought a refund, punitive damages, and an order instructing the Department to
comply with the court order that his funds be deducted at a rate of 25%.
A magistrate judge presiding with the parties’ consent, see 28 U.S.C. § 636(c),1
screened Lee’s complaint under 28 U.S.C. § 1915A and dismissed it for failure to state a
claim. Analogizing Lee’s case to a recent nonprecedential order in which this court
affirmed the dismissal of a similar challenge to the deduction policy, see Olson v.
Schwochert, 783 F. App’x 614 (7th Cir. 2019), the court first noted that Secretary Carr was
not personally involved in deducting funds from Lee’s account and so was not a proper
defendant. Even if he were, the court continued, Lee could not state a due-process claim
because he was not entitled to notice and a hearing before the implementation of a
generally applicable policy.
1 The state has permissibly given limited consent to magistrate judge jurisdiction
at screening in the Eastern District of Wisconsin through a Memorandum of
Understanding with the court. See Brown v. Peters, 940 F.3d 932, 937 (7th Cir. 2019).
No. 21-1309 Page 3
On appeal, Lee first argues that he stated a due-process claim against Carr. He
maintains that because he wrote to Carr’s office to object to the policy and he received a
reply from Carr’s assistant, there was sufficient personal involvement by Carr. The
personal-involvement requirement of § 1983 can be satisfied if a defendant knew of and
consented to a constitutional violation. See Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir.
2018). But the knowledge of Carr’s staff is not automatically attributed to him. Nor does
§ 1983 allow for his liability based on what his staff did or failed to do. See Taylor v.
Ways, 999 F.3d 478, 493–94 (7th Cir. 2021). With exceptions not relevant here,
government officials are liable only for their own misconduct. Id.More importantly, Lee cannot state a federal due-process claim against any
defendant. Lee argues that because prisoners have a property interest in the funds in
their accounts, see Campbell v. Miller, 787 F.2d 217, 222 (7th Cir. 1986), due process
requires the Department to produce “some evidence” of conduct that authorizes the
deductions. Citing Superintendent, Massachusetts Corr. Inst. at Walpole v. Hill, 472 U.S.
445, 447 (1985), he contends that he was owed a chance to dispute the policy before it
was applied to him. But Hill concerned the procedural protections required when an
inmate is singled out for disciplinary measures. 472 U.S. at 447. Here, the funds were
deducted from Lee’s account under a department-wide policy, and he had no right to
individual notice and a hearing before such a policy was applied. Pro-Eco, Inc. v. Bd. of
Comm’rs of Jay Cnty., Ind., 57 F.3d 505, 513 (7th Cir. 1995).
Lee protests that the Department lacked authority to override the state court’s
valid order specifying that funds be deducted from his account at a rate of 25%. But
even if there was such an order, a state official’s failure to obey a state court decision
does not violate the federal Constitution. See Wozniak v. Adesida, 932 F.3d 1008, 1011
(7th Cir. 2019). Further, the criminal judgment on which Lee bases his argument (which
he attached to his appellate brief but was not in the record before the district court)
contradicts Lee’s allegation of its contents. The state court ordered that Lee “authorize
the [D]epartment to collect, from [his] wages and from other monies held in [his] inmate
account, an amount or a percentage which the [D]epartment determines is reasonable for
restitution to victims.” (emphasis added).
Lee also argues that increasing the rate of deductions violated the Ex Post Facto
Clause, but that theory fares no better. The Department’s decision to speed up collection
of his pre-existing debt is not a “punishment” within the meaning of the Ex Post Facto
Clause. See United States v. Newman, 144 F.3d 531, 538–39 (7th Cir. 1998); see also Quarles
v. Kane, 482 F.3d 1154, 1155 (9th Cir. 2007).
No. 21-1309 Page 4
Because we affirm the district court’s dismissal for failure to state a claim, Lee
has earned a “strike” under 28 U.S.C. § 1915(g) for this appeal.
AFFIRMED