Winfred Oliver v. Randy Pfister , 655 F. App'x 497 ( 2016 )

NONPRECEDENTIAL DISPOSITION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 23, 2016 *
Decided June 17, 2016
Before
DIANE P. WOOD, Chief Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 15-2886
WINFRED OLIVER, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 13-1457
RANDY PFISTER, et al., James E. Shadid,
Defendants-Appellees. Chief Judge.
ORDER
Winfred Oliver, an Illinois prisoner, challenges the dismissal of his complaint
under 42 U.S.C. § 1983, alleging that his disciplinary proceeding on child pornography
charges did not provide the process that he was due, and that his request for leave to
amend his complaint was wrongly denied. We affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP.
P. 34(a)(2)(C).
No. 15-2886 Page 2
In April 2011, while Oliver was incarcerated in the protective-custody unit at
Pontiac Correctional Center, prison officials found in his cell two pornography
magazines with children’s faces pasted on the bodies of naked adults, loose
photographs of young nude men, and an album with images of children cut from
magazines. A reporting officer wrote a disciplinary report about the incident, and
Oliver was charged with breaking a prison rule against violating federal or state law,
specifically the Illinois child pornography statute, see 720 ILCS 5/11-20.1. Oliver
submitted a written defense and pleaded not guilty during an Adjustment Committee
hearing. The committee found Oliver guilty and issued a final report, which
summarized Oliver’s defenses, stated (incorrectly, according to Oliver) that no
witnesses were requested, and concluded that Oliver’s admitted conduct of putting
actual children’s faces on photos of adult bodies violated the Illinois child pornography
statute. Among the punishments Oliver received were a one-year term of disciplinary
segregation and a one-year loss of good-time credit.
Oliver brought this suit against ten prison employees, asserting due process
violations in connection with his disciplinary proceeding. He alleged that the
defendants mistakenly applied the state child pornography law to his conduct when
they (1) punished him for having images of children’s faces pasted onto naked adult
bodies, (2) did not allow him to present documentary evidence that the naked male
images found in his cell were of legal-aged adults, and (3) did not allow him to question
the reporting officer, either in person or through a written interrogatory he had
submitted. Oliver also alleged that the conditions of his disciplinary segregation
constituted cruel and unusual punishment and violated his right to equal protection,
but he has since abandoned those contentions and we do not address them further.
At screening, see 28 U.S.C. § 1915A, the district court dismissed Oliver’s due
process challenge, which related to the procedures that were followed in his prison
disciplinary hearing, for failure to state a claim. With respect to Oliver’s claim that he
was denied his right to call witnesses, the court found “no possibility” based on its
review of Oliver’s interrogatory that the reporting officer’s testimony would have
assisted Oliver’s defense. As for Oliver’s claim that the disciplinary officers failed to
produce sufficient documentary evidence of his guilt or overlooked his own “relevant”
evidence, the court found that he had received all the procedural protections he was
due under Wolff v. McDonnell, and that there was “some evidence” in the record—
namely in his own allegations and documents attached to his complaint—that
supported a finding of guilt. The court allowed Oliver to proceed on his claim that he
No. 15-2886 Page 3
was deprived of a protected liberty interest by being placed in disciplinary segregation
for an extended period of time.
Oliver then moved to amend his complaint by adding information justifying his
need to question the witness (the reporting officer) and by pointing to documents
showing that the male images were legal. The district court denied this motion on
grounds that amendment would be futile because the additional information did not
cure the defects noted in the screening order. Oliver responded with two more motions.
First, in a “motion for clarification,” he asked the court to clarify what relief remained
available to him based on his claim that the prison conditions deprived him of a liberty
interest. He argued, as defendants had in their submissions, that no relief appeared
available even if a liberty interest had been implicated by his placement in segregation
because the court found that the disciplinary procedures that landed him there were
sufficient. Second, one week later, he filed a motion to reconsider the denial of his
motion to amend; in that motion he argued that he had sufficiently stated a due process
claim based on the defendants’ failure to call the reporting officer as a witness and their
refusal to allow him to obtain and submit evidence of the legality of the male images.
He also urged that there was no evidence of his guilt.
In response to Oliver’s motion for clarification, the district court determined that
there no longer was a need to develop a factual record on whether his placement in
segregation implicated a liberty interest, because Oliver received all the process he was
due in the disciplinary proceeding. As for Oliver’s motion to reconsider, the court
construed it as being brought under Federal Rule of Civil Procedure 59(e) (which was
not correct because final judgment had not yet been entered) and denied it because it
merely rehashed arguments that previously had been made and rejected.
On appeal Oliver primarily challenges the district court’s conclusion that there
was some evidence in the record to support the Adjustment Committee’s finding that
the reported violations of the Illinois child pornography statute occurred. 1 Due process,
at a minimum, requires that the findings of a prison disciplinary committee be
1
On appeal defendants do not assert the affirmative defense that this case is
barred by Heck v. Humphrey, 512 U.S. 477, 486–87 (1994), and Edwards v. Balisok, 520 U.S.
641, 646 (1997), given the fact that Oliver seeks monetary damages for disciplinary
actions that have yet to be invalidated. See Polzin v. Gage, 636 F.3d 834, 837–38 (7th Cir.
2011); Carr v. O'Leary, 167 F.3d 1124, 1126 (7th Cir. 1999). We therefore do not address
this possibility.
No. 15-2886 Page 4
supported by “some evidence” in the record—a standard below that required to
support a criminal conviction. See Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472
U.S. 445, 454–56 (1985); Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). Oliver
concedes that he pasted children’s faces onto naked bodies of adults, but he argues that
this action merely produced “virtual child pornography,” the prohibition of which the
Illinois Supreme Court found unconstitutionally overbroad in People v. Alexander,
791 N.E.2d 506 (Ill. 2003); see also Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
(holding unconstitutional the provisions of the Child Pornography Prevention Act of
1996 that ban virtual child pornography). Because the prohibition on virtual child
pornography no longer is valid, Oliver continues, there was no evidence in the record to
support the committee’s finding that his actions violated the statute.
Oliver misapprehends the scope of Alexander’s holding. In that case, the Illinois
Supreme Court held that the criminalization of pornography consisting of computer-
generated depictions that appear to be children, or pornography that does not involve
any actual, identifiable children, was unconstitutionally overbroad. Alexander,
791 N.E.2d at 511, 513–14. The category of pornography that Oliver’s altered images fall
intopornography that “morphs” different parts of actual children’s faces with adult
bodies—is different from “virtual pornography” because it uses the faces of real
children. Id. at 513; see Ashcroft v. Free Speech Coal., 535 U.S. at 242. Based on the incident
report and Oliver’s own admission that he pasted faces from actual children onto naked
adult bodies, we agree with the district court that “some evidence” in the record
supports the disciplinary action taken by the prison.
Oliver also challenges the district court’s conclusion that his proposed amended
complaint failed to state a due process claim based on the denial of his request to call
the reporting officer as a witness at his disciplinary hearing. But, as the district court
explained, a prisoner has no right to call a witness whose testimony would be
irrelevant, repetitive, or unnecessary. See Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir.
2003); Pannell v. McBride, 306 F.3d 499, 502–03 (7th Cir. 2002); Forbes v. Trigg, 976 F.2d
308, 317–18 (7th Cir. 1992). Oliver sought the reporting officer’s testimony in order to
confirm the information already contained in the report and to reiterate the officer’s
opinion that Oliver violated the statute. But the officer’s testimony was unnecessary
because Oliver did not dispute the underlying facts of the charged misconduct. Since
the requested testimony could not have aided Oliver’s defense, the district court
properly determined that its exclusion was harmless. See Piggie, 344 F.3d at 677–78.
No. 15-2886 Page 5
Oliver also maintains relatedly that his proposed amended complaint stated a
due process claim based on the denial of his request to present documentary evidence
in his defense. He contends that he was not allowed the opportunity to verify the legal
age of the men in some of the confiscated images—a task he proposed to perform by
presenting a letter from the owner of the company that sold him the images. But Oliver
presented this information to the committee in his written defense, and so we do not see
how the proposed evidence would have helped his defense. And because the committee
found Oliver guilty based on the pornographic magazine pictures that he altered with
the children’s faces, the additional evidence involving this other set of images would
have done nothing to help his defense.
We have considered Oliver’s remaining arguments and none has merit.
AFFIRMED.