Paul Eichwedel v. Brad Curry , 696 F.3d 660 ( 2012 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 09-1031
    P AUL N. E ICHWEDEL,
    Petitioner-Appellant,
    v.
    N EDRA C HANDLER, Warden,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Northern District of Illinois, Western Division.
    No. 3:08-cv-50077—Philip G. Reinhard, Judge.
    A RGUED S EPTEMBER 29, 2011—D ECIDED A UGUST 29, 2012
    Before R IPPLE, M ANION and SYKES, Circuit Judges.
    R IPPLE, Circuit Judge. Paul Eichwedel is an inmate in
    the Dixon Correctional Center (“DCC”), a prison operated
    by the Illinois Department of Corrections (“IDOC”)
    in Dixon, Illinois. During the course of unrelated civil
    litigation in federal court against various IDOC officials,
    Mr. Eichwedel, who was proceeding pro se, filed two
    motions for sanctions that the district court denied as
    “frivolous.” Thereafter, the State sought to revoke some
    2                                                  No. 09-1031
    of Mr. Eichwedel’s good-conduct credits under a provi-
    sion of Illinois law that provides for penalties for pris-
    oners who file frivolous motions in litigation against the
    State. See 730 ILCS 5/3-6-3(d). After the State revoked
    six months of Mr. Eichwedel’s good-conduct credits,
    he challenged the revocation in state court; the state
    trial court denied relief, and the Appellate Court of
    Illinois concluded that it lacked jurisdiction to hear
    Mr. Eichwedel’s appeal because of an error attributable
    to Mr. Eichwedel in filing his appeal.
    After unsuccessfully seeking relief in state court for a
    second time, Mr. Eichwedel filed this petition for a writ
    of habeas corpus in the United States District Court for
    the Northern District of Illinois under 
    28 U.S.C. § 2254
    .
    The district court concluded that the Supreme Court
    never has recognized a First Amendment right to
    file frivolous motions and that the revocation of
    Mr. Eichwedel’s good-conduct credits was supported by
    “some evidence in the record.” See Superintendent, Massa-
    chusetts Corr. Inst., Walpole v. Hill, 
    472 U.S. 445
    , 454 (1985).
    The district court addressed several other issues as
    well, but Mr. Eichwedel appeals only those two conclu-
    sions.
    The district court correctly disposed of the right-of-
    access claim. Because Mr. Eichwedel’s sufficiency of the
    evidence claim turns on an unresolved question of state
    law, specifically, the interpretation of 730 ILCS 5/3-6-3(d),
    and because that question is likely to reoccur frequently
    and affects the administration of justice in both
    the state and federal courts, we respectfully seek the
    No. 09-1031                                             3
    assistance of the Supreme Court of Illinois by certifying
    this controlling question of law.
    I
    BACKGROUND
    A. Facts
    1.
    On February 12, 2001, Mr. Eichwedel, proceeding in
    forma pauperis, brought a pro se civil rights action
    under 
    42 U.S.C. § 1983
     in the United States District
    Court for the Central District of Illinois against twenty-
    three IDOC officials. Several months later, the defendants
    moved to dismiss Mr. Eichwedel’s complaint for failure
    to state a claim upon which relief could be granted.
    Mr. Eichwedel, however, believed that, because
    the court had not dismissed his complaint under the
    screening provisions of the Prison Litigation Reform
    Act, the district court already had concluded that his
    complaint stated a claim upon which relief could be
    granted. See 28 U.S.C. § 1915A. Mr. Eichwedel arrived
    at this conclusion after reviewing a “MEMORANDUM
    TO ALL INMATE LITIGANTS RE: PRISON LITIGA-
    TION REFORM ACT,” 1 which had been prepared by the
    chief judge of the federal district and which had been
    posted in the DCC library. This memorandum instructed
    that “federal Courts must deny leave to proceed in forma
    1
    Pet’r App. at 51; accord R.1 at 16.
    4                                                  No. 09-1031
    pauperis if the complaint fails to state a claim upon
    which relief may be granted.” 2 After reading this memo-
    randum, Mr. Eichwedel concluded that the district
    court must have determined earlier that his complaint
    stated a claim upon which relief could be granted
    because he had been allowed to proceed in forma
    pauperis. Therefore, on September 4, 2001, Mr. Eichwedel
    filed a motion to sanction the defendants and their
    attorney under Rule 11 of the Federal Rules of Civil
    Procedure, asserting that their motion to dismiss was
    frivolous. Mr. Eichwedel filed a second motion for sanc-
    tions on September 22, 2001, in which he asserted that
    the defendants had mischaracterized the facts and the
    law in their response to his first motion for sanctions.
    The district court denied Mr. Eichwedel’s first motion
    for sanctions “as frivolous” on October 9, 2001, stating:
    The plaintiff essentially argues that the defen-
    dants should be sanctioned because this
    court’s granting of in forma pauperis status to the
    plaintiff amounts to a favorable screening under
    28 U.S.C. § 1915A. This argument is frivolous. The
    court has not yet conducted a merit review of
    the plaintiff’s complaint under 28 U.S.C. § 1915A.
    Such a review may be conducted before dock-
    eting, “if feasible,” or “as soon as practicable after
    docketing.” 28 U.S.C. § 1915A(a). Given the
    court’s heavy caseload, a merit review of this case
    will not likely be practicable until the court rules
    2
    Pet’r App. at 53; accord R.1 at 13.
    No. 09-1031                                                   5
    on the defendants’ motion to dismiss. The fact
    that the plaintiff has been granted leave to
    proceed in forma pauperis and the defendants
    have been served means nothing with regard to
    the merit of the plaintiff’s claims.[ 3 ]
    The district court denied Mr. Eichwedel’s second motion
    for sanctions “as frivolous” by minute entry on October 29,
    2001.4
    On October 23, 2001, Mr. Eichwedel filed a motion in
    the district court to alter or amend its ruling on his first
    motion for sanctions. The court denied the motion on
    November 8, 2001. It reasoned:
    The plaintiff maintains that he had reasonable
    grounds, albeit mistaken, to file his motion for
    sanctions, making it non-frivolous. The court does
    not doubt that the plaintiff believed he had
    grounds for his motion, but his subjective beliefs
    do not determine whether his motion was legally
    frivolous. A filing is legally frivolous if it “lacks
    an arguable basis either in law or in fact.” Neitzke
    v. Williams, 
    490 U.S. 319
    , 325 (1989). Finding
    that the plaintiff’s motions for sanctions were
    frivolous has no bearing on the ultimate merit of
    the plaintiff’s claims in this case.[ 5 ]
    3
    R.7-5.
    4
    R.7-6.
    5
    R.7-7 (emphasis in original).
    6                                                      No. 09-1031
    Certain of Mr. Eichwedel’s claims ultimately survived
    the defendants’ motion to dismiss, and the case subse-
    quently was settled.
    2.
    On November 1, 2001, IDOC issued two disciplinary
    reports against Mr. Eichwedel, which alleged that each
    of Mr. Eichwedel’s motions for sanctions constituted a
    separate violation of 730 ILCS 5/3-6-3(d). Simply put,
    that statute authorizes IDOC to revoke up to 180 days of
    a prisoner’s good-conduct credit if, during the course
    of litigation brought against the prison, “the court
    makes a specific finding that a pleading, motion, or
    other paper filed by the prisoner is frivolous.” 6 On
    6
    At the time that the Prisoner Review Board revoked
    Mr. Eichwedel’s good-conduct credits, the statute provided
    in pertinent part:
    If a lawsuit is filed by a prisoner in an Illinois or federal
    court against the State, the Department of Corrections,
    or the Prisoner Review Board, or against any of their
    officers or employees, and the court makes a specific
    finding that a pleading, motion, or other paper filed by
    the prisoner is frivolous, the Department of Corrections
    shall conduct a hearing to revoke up to 180 days of
    good conduct credit by bringing charges against the
    prisoner sought to be deprived of the good conduct
    credits before the Prisoner Review Board as provided
    in subparagraph (a)(8) of Section 3-3-2 of this Code. If
    (continued...)
    No. 09-1031                                                      7
    6
    (...continued)
    the prisoner has not accumulated 180 days of good
    conduct credit at the time of the finding, then the
    Prisoner Review Board may revoke all good conduct
    credit accumulated by the prisoner.
    For purposes of this subsection (d):
    (1) “Frivolous” means that a pleading, motion, or other
    filing which purports to be a legal document filed by
    a prisoner in his or her lawsuit meets any or all of the
    following criteria:
    (A) it lacks an arguable basis either in law or
    in fact;
    (B) it is being presented for any improper
    purpose, such as to harass or to cause unneces-
    sary delay or needless increase in the cost of
    litigation;
    (C) the claims, defenses, and other legal con-
    tentions therein are not warranted by existing
    law or by a nonfrivolous argument for
    the extension, modification, or reversal of
    existing law or the establishment of new law;
    (D) the allegations and other factual conten-
    tions do not have evidentiary support or, if
    specifically so identified, are not likely to have
    evidentiary support after a reasonable oppor-
    tunity for further investigation or discovery; or
    (E) the denials of factual contentions are not
    warranted on the evidence, or if specifically so
    identified, are not reasonably based on a lack
    (continued...)
    8                                                    No. 09-1031
    November 4, 2001, Mr. Eichwedel sent a letter to the
    district court, inquiring as to whether the court intended
    its use of the word “frivolous” to be the same as the
    definition of “frivolous” set forth in 730 ILCS 5/3-6-3(d).
    The Adjustment Committee held a hearing regarding
    these disciplinary reports on November 14, 2001. The
    only witnesses were Mr. Eichwedel and Carolyn Zee, a
    prison librarian. According to the Adjustment Com-
    mittee’s Final Summary Reports, Zee testified that she
    had posted Judge Mihm’s memorandum about the Prison
    Litigation Reform Act in the prison library. The Final
    Summary Reports also state that Mr. Eichwedel testified
    that “he relied on a memorandum posted on [sic] July
    6
    (...continued)
    of information or belief.
    730 ILCS 5/3-6-3(d). To invoke this statute, 730 ILCS 5/3-3-2(a)(8)
    provided that the Prisoner Review Board shall
    hear by at least one member and, through a panel of at
    least 3 members, decide cases brought by the Depart-
    ment of Corrections against a prisoner in the custody of
    the Department for court dismissal of a frivolous
    lawsuit pursuant to Section 3-6-3(d) of this Code in
    which the Department seeks to revoke up to 180 days of
    good conduct credit, and if the prisoner has not accu-
    mulated 180 days of good conduct credit at the time of
    the dismissal, then all good conduct credit accumulated
    by the prisoner shall be revoked[.]
    A later amendment changed each occurrence of “good conduct”
    in these statutes to “sentence.” This change is irrelevant to our
    analysis, and we therefore do not consider it further.
    No. 09-1031                                                   9
    of 1996 by Chief U.S. District Judge Michael Mihm
    entitled: Memorandum to all Inmate Litigants Re; [sic]
    Prison Litigation Reform Act” in filing his motions for
    sanctions.7 Mr. Eichwedel also noted that the district court
    did not sanction him for filing these motions. The Final
    Summary Reports further provide that Mr. Eichwedel
    sought the testimony of the district judge who had em-
    ployed the word “frivolous” in denying Mr. Eichwedel’s
    motions for sanctions. The committee did not allow
    Mr. Eichwedel to call Judge Baker to testify because
    the “[t]estimony would be cumulative.” 8
    Following this hearing, the Adjustment Committee
    found that each of Mr. Eichwedel’s motions for sanctions
    constituted a violation of 730 ILCS 5/3-6-3(d). The Com-
    mittee’s stated basis for finding that the first motion
    for sanctions was a violation of this statute was:
    7
    R.7-10 at 1; see also R.7-9 at 1.
    8
    R.7-10 at 1; R.7-9 at 1. It may be that Mr. Eichwedel did not
    seek to have Judge Baker testify, but rather to have the ques-
    tions that he sent to Judge Baker admitted as evidence. Pet’r
    Br. 7. However, the Adjustment Committee’s Final Summary
    Reports list “BAKER, JUDGE HAROLD” as a witness that
    was “[r]equsted [b]y [the] [i]nmate,” but whose “[t]estimony
    would be cumulative.” R.7-10 at 1; R.7-9 at 1. This apparent
    discrepancy is not material to the issues before us, so we do
    not attempt to resolve it. Nor do we suggest that Judge Baker
    could have been compelled to testify in such a proceeding.
    Cf. United States v. Morgan, 
    313 U.S. 409
    , 422 (1941) (“Such
    an examination of a judge would be destructive of judicial
    responsibility.”).
    10                                                No. 09-1031
    Evidence in [the disciplinary report 9 ] that inmate is
    in violation of 730 ILCS 5/3-6-3(d) as Judge Harold A.
    Baker of the United States District Court for the
    Central District of Illinois has denied motion 01-CV-
    3044 filed by above named inmate as frivolous and
    the physical evidence of the order issued by Judge
    Baker the committee finds him guilty.[1 0 ]
    The Committee’s stated basis for finding that the second
    motion for sanctions was a violation of the statute
    was substantially the same, relying on “the physical
    evidence of the minute entry by Judge Baker.” 1 1 Based
    on these findings, the Adjustment Committee recom-
    mended that six months of Mr. Eichwedel’s good-conduct
    credit be revoked: two months for his first motion
    for sanctions and four months for the second. The
    Prisoner Review Board approved these recommenda-
    tions on appeal.
    On January 23, 2002, the district court took up
    Mr. Eichwedel’s November 4 letter requesting that the
    court clarify its findings of frivolousness, which the
    court denominated “as a motion to reconsider the court’s
    description of the plaintiff’s motions for sanctions as
    9
    The disciplinary reports contained no additional informa-
    tion about Mr. Eichwedel’s alleged violations. Each is based
    on a prison employee’s review of the same orders cited by
    the Adjustment Committee.
    10
    R.7-10 at 1.
    11
    R.7-9 at 1. The Final Summary Reports make no mention of
    the district court’s order from November 8, 2001.
    No. 09-1031                                                 11
    frivolous.” 12 “The court s[tood] by its use of the word
    frivolous to describe the motions, because they had no
    basis in law or fact, as explained in the October 9, 2001
    order.”13 It continued:
    As to the revocation of the plaintiff’s good
    time credit under 730 ILCS 5/3-6-3(d), the court
    has made no finding its characterization of the
    plaintiff’s motions as frivolous means the same as
    the term frivolous under 730 ILCS 5/3-6-3(d). The
    court cannot control the defendants’ response to
    the court’s use of the word frivolous, and the
    plaintiff cannot challenge the application of 730
    ILCS 5/3-6-3(d) to him in these proceedings.[1 4 ]
    B. State Court Proceedings
    After exhausting his administrative appeals of the
    disciplinary action, Mr. Eichwedel filed a pro se com-
    plaint in Illinois state court on August 19, 2002, seeking
    a writ of mandamus, declaratory judgment and a writ
    of certiorari to restore his good-conduct credits based
    on alleged violations of state law, denials of due process
    and violations of the First Amendment, including
    the right of access to the courts. As relevant here,
    Mr. Eichwedel asserted that 730 ILCS 5/3-6-3(d) denies
    12
    R.7-8 at 1.
    13
    
    Id.
     (citation omitted).
    14
    Id. at 1-2.
    12                                                 No. 09-1031
    prisoners their right of access to the courts because, in
    his view, the average prisoner will be unwilling to risk
    the loss of good-conduct credits and therefore will
    refrain from bringing actions subject to the statute. He
    also contended that the Adjustment Committee had
    before it no evidence that he had violated 730 ILCS 5/3-6-
    3(d) because that statute may only be invoked where
    there is a “specific finding” by the court that a motion is
    “frivolous,” which is a defined term. Because the Ad-
    justment Committee considered only the orders of
    October 9 and October 29, which used the word “frivo-
    lous” without invoking any particular standard,
    Mr. Eichwedel asserted that the Adjustment Committee’s
    finding of guilt was predicated solely upon the Com-
    mittee’s interpretation of those orders. Mr. Eichwedel also
    invited to the state trial court’s attention the January 23
    order to show that the district court expressly had de-
    clined to invoke 730 ILCS 5/3-6-3(d).
    The state trial court dismissed his complaint. It noted
    that “plaintiff wishes to retry issues already ruled upon
    by Judge Baker” and reasoned that Mr. Eichwedel had
    not established a right to the relief he sought. 1 5 It
    further stated:
    Statutes bear a strong presumption of constitu-
    tionality. These statutes clearly define their terms
    and lay out the procedure and penalties which
    are available to the Department of Corrections.
    15
    R.7-21 at 3.
    No. 09-1031                                              13
    These statutes are not unconstitutionally vague
    or broad.[16 ]
    The state trial court delivered this opinion on March 10,
    2003, and instructed the defendants’ counsel to prepare
    an appropriate order. That order, which dismissed
    all claims against all defendants, was entered on April 17,
    2003.
    Mr. Eichwedel filed his notice of appeal on April 15,
    2003, two days before the state trial court entered its
    final order. Upon realizing that this sequence might
    pose problems for his appeal, Mr. Eichwedel filed a
    motion in the state trial court seeking either entry of
    the “dismissal order nunc pro tunc” or clarification as to
    whether he must file another notice of appeal in order
    to preserve his right to appeal.1 7 The state trial court
    dismissed the motion, stating: “The Court believes
    that plaintiff’s appeal has been placed on the Appellate
    Court’s calendar. The plaintiff’s rights have not been
    prejudiced in any manner.” 1 8
    Despite these assurances by the trial court, the Appel-
    late Court of Illinois dismissed Mr. Eichwedel’s appeal.
    Although it “agree[d] with [Mr.] Eichwedel that the
    trial court [misled] him about the jurisdictional prere-
    16
    Id.
    17
    R.7-22 at 1.
    18
    R.7-23.
    14                                             No. 09-1031
    quisites to an appeal,” 1 9 the Appellate Court concluded
    that it lacked jurisdiction because Mr. Eichwedel’s notice
    of appeal was filed before the final judgment
    was entered. The Supreme Court of Illinois denied
    Mr. Eichwedel’s petition for leave to appeal. Mr. Eichwedel
    then attempted to pursue these claims for a second time
    by filing another state court complaint, which was dis-
    missed on the ground of res judicata. That judgment
    was affirmed by the Appellate Court of Illinois, and the
    Supreme Court of Illinois denied Mr. Eichwedel’s peti-
    tion for leave to appeal.
    C. Petition for Writ of Habeas Corpus
    Mr. Eichwedel filed a pro se petition for a writ of
    habeas corpus under 
    28 U.S.C. § 2254
     in the United
    States District Court for the Northern District of Illinois
    on May 5, 2008. In his petition, Mr. Eichwedel asserted:
    (1) that 730 ILCS 5/3-6-3(d) is unconstitutionally vague
    and overbroad in violation of the First and Fourteenth
    Amendments; (2) that, as applied to him, 730 ILCS
    5/3-6-3(d) and 730 ILCS 5/3-3-2(a)(8) violate the First
    and Fourteenth Amendments; and (3) that the revoca-
    tion of his good-conduct credits deprived him of
    liberty without due process in violation of the Fourteenth
    Amendment.
    The district court determined that the state trial
    court’s opinion was the relevant opinion on habeas re-
    19
    R.7-4 at 6.
    No. 09-1031                                               15
    view because it was the last state court to address
    Mr. Eichwedel’s claims on the merits. Although it noted
    that the state trial court’s opinion “was terse at best,” 2 0
    and that “[i]t is hard to imagine a more threadbare analy-
    sis,” 21 the district court concluded that the state
    trial court’s resolution of the vagueness, overbreadth and
    as-applied challenges was neither contrary to, nor an
    unreasonable application of, clearly established Federal
    law as determined by the Supreme Court of the United
    States. See 
    28 U.S.C. § 2254
    (d)(1).
    The district court then turned to Mr. Eichwedel’s due
    process claims. Mr. Eichwedel’s habeas petition asserted
    that IDOC’s revocation of his good-conduct credits vio-
    lated his right to due process in various respects: by
    not giving him fair notice of an internal IDOC rule
    change; by failing to follow IDOC’s internal hearing
    procedures; and by revoking his good-conduct credits
    without some evidence in the record that he had
    violated 730 ILCS 5/3-6-3(d). He also asserted that his
    right to due process and equal protection were violated
    because the courts of Illinois had treated a similarly
    situated inmate differently in a previous case. With
    respect to Mr. Eichwedel’s due process claims premised
    upon IDOC’s failure to give him fair notice of the rule
    change and upon IDOC’s failure to follow its own
    hearing procedures, the State asserted that he failed to
    present properly these claims during his appeal of the
    20
    R.11 at 3.
    21
    
    Id.
    16                                               No. 09-1031
    state trial court’s order. The State addressed the “some
    evidence” challenge on its merits. It also addressed
    Mr. Eichwedel’s hybrid equal protection and due
    process challenge on its merits in the interest of efficiency,
    although the State maintained that the claim was unex-
    hausted. The State did not assert that Mr. Eichwedel’s
    claims were procedurally defaulted in their entirety
    based on his failure to appeal properly the state trial
    court’s determination. On appeal, the State has repre-
    sented that it “declined to assert the default in the
    district court” because “the trial court’s advice to [Mr.
    Eichwedel] . . . might arguably amount to cause to
    excuse the default of the claims in this appeal.” 2 2
    The district court determined that Mr. Eichwedel
    had procedurally defaulted his due process claims pre-
    mised upon IDOC’s failure to give him fair notice of a
    rule change and to follow its own hearing procedures.
    Mr. Eichwedel’s hybrid due process and equal protec-
    tion claim was rejected because the district court deter-
    mined that the circumstances surrounding the revoca-
    tion of Mr. Eichwedel’s good-conduct credit were
    factually distinguishable from those of the inmate who
    Mr. Eichwedel had alleged was similarly situated. The
    district court also rejected, on the merits, Mr. Eichwedel’s
    assertion that his good-conduct credits had been
    revoked without “some evidence in the record.” It con-
    cluded that the two orders in which Judge Baker
    denied Mr. Eichwedel’s motions for sanctions as
    22
    Resp’t Br. 4 n.4.
    No. 09-1031                                              17
    frivolous were “ample evidence . . . that petitioner had in
    fact violated § 5/3-6-3(d).” 2 3
    Mr. Eichwedel appeals the district court’s judgment.
    We have appointed counsel to represent him before
    this court.
    II
    DISCUSSION
    On appeal, Mr. Eichwedel asserts that 730 ILCS 5/3-6-3(d)
    deprives him of his right of access to the courts and that
    IDOC denied him due process by revoking his good-
    conduct credits by reference to a record that did not
    contain “some evidence” of his guilt. Before we may
    proceed, we must consider whether Mr. Eichwedel
    has preserved properly these issues and whether our
    review is constrained by the Antiterrorism and Effective
    Death Penalty Act (“AEDPA”), 
    28 U.S.C. § 2254
    (d).
    A. Procedural Default
    We first consider whether Mr. Eichwedel has procedur-
    ally defaulted his claims. See Smith v. McKee, 
    598 F.3d 374
    , 382 (7th Cir. 2010). In a footnote in the statement of
    the case of its appellate brief, the State notes that “peti-
    tioner’s present claims are procedurally defaulted
    because the appellate court declined to reach the merits
    23
    R.11 at 5.
    18                                                No. 09-1031
    of petitioner’s claims based on an independent and ade-
    quate state law ground.” 2 4 It continues: “Because peti-
    tioner did not file another notice of appeal, and the first
    notice was premature, the appellate court dismissed
    petitioner’s appeal for lack of jurisdiction.” 2 5 The State
    further explains, however, that, “because of the trial
    court’s advice to [Mr. Eichwedel], which might arguably
    amount to cause to excuse the default of the claims in
    this appeal, [the State] declined to assert the default in
    the district court.” 2 6 The State is correct in concluding
    that Mr. Eichwedel procedurally defaulted the claims
    now before us. “[W]hen a state refuses to adjudicate
    a petitioner’s federal claims because they were not
    raised in accord with the state’s procedural rules, that
    will normally qualify as an independent and adequate
    state ground for denying federal review.” Woods v.
    Schwartz, 
    589 F.3d 368
    , 373 (7th Cir. 2009).
    However, “[t]he procedural default doctrine does not
    impose an absolute bar to federal relief.” Perruquet v.
    Briley, 
    390 F.3d 505
    , 514 (7th Cir. 2004). “[I]t is an affirma-
    tive defense that the State is obligated to raise and pre-
    serve, and consequently one that it can waive.” 
    Id. at 515
    .
    The State therefore may forfeit this affirmative defense
    by not asserting it before the district court. 
    Id. at 517
    .
    There is no question that the State has forfeited the proce-
    dural default defense by not raising it before the
    24
    Resp’t Br. 4 n.4.
    25
    
    Id.
    26
    
    Id.
    No. 09-1031                                                  19
    district court. See 
    id.
     Furthermore, it also has waived
    this defense, as evidenced by its various litigation deci-
    sions in the district court and on appeal. First, the State’s
    decision to address the merits of Mr. Eichwedel’s due
    process claim during the district court proceedings, while
    arguing that Mr. Eichwedel had procedurally defaulted
    other claims not at issue here, is evidence of the State’s
    intent to waive this defense, at least as to that claim. See 
    id. at 516-17
    . Furthermore, the State’s discussion of the
    procedural default issue in this court is limited to one
    footnote. See Long v. Teachers’ Ret. Sys. of Illinois, 
    585 F.3d 344
    , 349 (7th Cir. 2009) (“A party may waive an
    argument by disputing a district court’s ruling in a foot-
    note or a one-sentence assertion that lacks citation to
    record evidence.”). That this footnote is in the State’s
    “Statement of the Case” and not its “Argument” is further
    evidence of waiver. See Fed. R. App. P. 28(a)(9)(A), (b)
    (requiring appellee’s brief to contain the appellee’s
    “contentions and the reasons for them”). 2 7 Most signifi-
    cantly, the State concedes in its brief that it deliberately
    27
    See also Martinez-Serrano v. INS, 
    94 F.3d 1256
    , 1259 (9th Cir.
    1996) (“[A]n issue referred to in the appellant’s statement of
    the case but not discussed in the body of the opening brief is
    deemed waived.”); cf. Wehrs v. Wells, No. 11-3369, ___ F.3d ___,
    
    2012 WL 3194243
    , at *4 n.2 (Aug. 8, 2012) (deeming an argu-
    ment waived where it was raised in one sentence in the sum-
    mary of argument and once again in the conclusion of the
    brief); Bob Willow Motors, Inc. v. Gen. Motors Corp., 
    872 F.2d 788
    , 795 (7th Cir. 1989) (concluding that an argument that
    was raised summarily and only in the text of the Summary
    of Argument was waived).
    20                                                   No. 09-1031
    chose not to raise this procedural default defense in the
    district court proceedings. See Perruquet, 
    390 F.3d at 516
    (explaining that a party waives a procedural default
    defense by “intentionally relinquishing its right to assert
    that defense”); see also Broaddus v. Shields, 
    665 F.3d 846
    ,
    853 (7th Cir. 2011) (relying on party’s concession that
    he did not raise an argument in the district court in
    concluding that the party waived the argument); cf.
    United States v. Jaimes-Jaimes, 
    406 F.3d 845
    , 848 (7th Cir.
    2005) (explaining that a party’s tactical decision not to
    raise an argument before the district court constitutes
    waiver of that argument). When these litigation deci-
    sions are considered in the aggregate, it is clear that
    the State has waived its procedural default defense to the
    claims Mr. Eichwedel now raises on appeal.
    The State does not contend that Mr. Eichwedel has failed
    to exhaust the remedies available to him in the courts of
    Illinois. AEDPA, however, provides that “[a] State shall
    not be deemed to have waived the exhaustion require-
    ment or be estopped from reliance upon the require-
    ment unless the State, through counsel, expressly waives
    the requirement.” 
    28 U.S.C. § 2254
    (b)(3). Some courts
    have held that § 2254(b)(3) extends to certain procedural
    defaults, while others have declined to do so.2 8 We
    28
    Compare Franklin v. Johnson, 
    290 F.3d 1223
    , 1231 (9th Cir. 2002)
    (concluding “that 
    28 U.S.C. § 2254
    (b)(3)’s reference to exhaus-
    tion has no bearing on procedural default defenses”), and
    Jackson v. Johnson, 
    194 F.3d 641
    , 651-52 & n.35 (5th Cir. 1999)
    (distinguishing procedural default from exhaustion and declin-
    (continued...)
    No. 09-1031                                                   21
    have not yet taken a position on this question,2 9 and
    we need not do so in this case. Because we reject the
    merits of Mr. Eichwedel’s right-of-access claim, we need
    not consider whether § 2254(b)(3) applies to his pro-
    cedural default of that claim.3 0 Furthermore, because
    the State represented to the district court that the “some
    evidence” challenge “was properly exhausted during
    mandamus proceedings in state court,” 3 1 it has expressly
    waived any independent exhaustion argument, 3 2 as well
    as any exhaustion argument included within the doc-
    28
    (...continued)
    ing to apply § 2254(b)(3) to a procedural default), with McNair
    v. Campbell, 
    416 F.3d 1291
    , 1305 (11th Cir. 2005) (“Because
    § 2254(b)(3) provides that the State can waive McNair’s
    failure to properly exhaust his claim only by expressly doing
    so, it logically follows that the resulting procedural bar, which
    arises from and is dependent upon the failure to properly
    exhaust, can only be waived expressly.” (citing Franklin, 
    290 F.3d at 1238
     (O’Scannlain, J., concurring in part and con-
    curring in the judgment))).
    29
    See Cheeks v. Gaetz, 
    571 F.3d 680
    , 686 n.1 (7th Cir. 2009);
    Perruquet v. Briley, 
    390 F.3d 505
    , 515-16 (7th Cir. 2004).
    30
    See 
    28 U.S.C. § 2254
    (b)(2) (“An application for a writ of
    habeas corpus may be denied on the merits, notwithstanding
    the failure of the applicant to exhaust the remedies available
    in the courts of the State.”).
    31
    R.7 at 26.
    32
    See Thomas v. Indiana, 
    910 F.2d 1413
    , 1415 (7th Cir. 1990)
    (holding, pre-AEDPA, that a State “expressly waived” an
    argument during habeas proceedings by “expressly con-
    ced[ing]” the point in its brief (emphasis omitted)).
    22                                                      No. 09-1031
    trine of procedural default. As our sister circuits have
    held, a State expressly waives exhaustion for purposes
    of § 2254(b)(3) where, as here, it concedes clearly and
    expressly that the claim has been exhausted, regardless
    of whether that concession is correct.3 3
    B. Applicable Standards
    Having determined that the procedural default noted
    by the State is no obstacle to the claims raised in this
    appeal, we now turn to the applicable standards of
    review. If a “claim . . . was adjudicated on the merits in
    State court proceedings,” our review of the state court’s
    judgment is limited by AEDPA. 
    28 U.S.C. § 2254
    (d); see
    also Harrington v. Richter, 
    131 S. Ct. 770
    , 780 (2011).
    AEDPA dictates that a federal court may not issue the
    33
    See Cornell v. Kirkpatrick, 
    665 F.3d 369
    , 376 (2d Cir. 2011); Carty
    v. Thaler, 
    583 F.3d 244
    , 256-57 (5th Cir. 2009) (citing Bledsue v.
    Johnson, 
    188 F.3d 250
    , 254 (5th Cir. 1999)); Sharrieff v. Cathel,
    
    574 F.3d 225
    , 228-29 (3d Cir. 2009); Pike v. Guarino, 
    492 F.3d 61
    ,
    71-72 (1st Cir. 2007); Kerns v. Ault, 
    408 F.3d 447
    , 449 n.3 (8th
    Cir. 2005); Gonzales v. McKune, 
    279 F.3d 922
    , 926 & n.8 (10th Cir.
    2002) (en banc); Dorsey v. Chapman, 
    262 F.3d 1181
    , 1187 (11th
    Cir. 2001); see also D’Ambrosio v. Bagley, 
    527 F.3d 489
    , 496-97 (6th
    Cir. 2008) (holding that State’s attorney’s conduct during
    district court proceedings was sufficient to expressly waive
    exhaustion under § 2254(b)(3)); id. at 500 (Boggs, C.J., dissenting)
    (stating that the majority was “quite correct that no ‘magic
    words’ are needed” for there to be an express waiver under
    § 2254(b)(3)).
    No. 09-1031                                                  23
    writ unless the state court adjudication “resulted in a
    decision that was contrary to, or involved an unrea-
    sonable application of, clearly established Federal law,
    as determined by the Supreme Court of the United
    States.” 
    28 U.S.C. § 2254
    (d)(1). “The relevant decision
    for purposes of our assessment under AEDPA is the
    decision of the last state court to rule on the merits of
    the petitioner’s claim[] . . . .” Morgan v. Hardy, 
    662 F.3d 790
    ,
    797 (7th Cir. 2011). If, however, a claim was not adjudi-
    cated on the merits by a state court, we must “dispose of
    the matter as law and justice require,” 
    28 U.S.C. § 2243
    ,
    which is essentially de novo review, Morales v. Johnson,
    
    659 F.3d 588
    , 599 (7th Cir. 2011). In any event, our
    review of the district court’s denial of habeas relief is
    de novo. See Morgan, 
    662 F.3d at 797
    .
    The parties agree that the state trial court adjudicated
    Mr. Eichwedel’s habeas claims on the merits,3 4 and we
    see no reason to disagree with that assessment. Section
    “2254(d) does not require a state court to give reasons
    before its decision can be deemed to have been ‘adjudi-
    cated on the merits.’ ” Richter, 
    131 S. Ct. at 785
    . “When a
    federal claim has been presented to a state court and
    the state court has denied relief, it may be presumed
    that the state court adjudicated the claim on the merits
    34
    Pet’r Br. 10 n.7 (“The last state court decision to address
    the claims on the merits is the trial court’s decision in
    Eichwedel’s first mandamus action.”); Resp’t Br. 17 (“The
    last state court to rule on the merits of petitioner’s claims
    was the state trial court in petitioner’s first round of
    mandamus review.”).
    24                                                No. 09-1031
    in the absence of any indication or state-law procedural
    principles to the contrary.” 
    Id. at 784-85
    . This “presumption
    may be overcome when there is reason to think some
    other explanation for the state court’s decision is more
    likely.” 
    Id. at 785
    . For instance, “[w]here there has been
    one reasoned state judgment rejecting a federal claim,
    later unexplained orders upholding that judgment or
    rejecting the same claim rest upon the same ground.”
    Ylst v. Nunnemaker, 
    501 U.S. 797
    , 803 (1991), cited with
    approval in Richter, 
    131 S. Ct. at 785
    . When the presumption
    does apply, AEDPA requires us to “determine what
    arguments or theories . . . could have supported[] the
    state court’s decision.” Richter, 
    131 S. Ct. at 786
    . Next, we
    “must ask whether it is possible fairminded jurists
    could disagree that those arguments or theories are
    inconsistent with the holding in a prior decision of th[e
    Supreme] Court.” Id.; see also Cullen v. Pinholster, 
    131 S. Ct. 1388
    , 1403 (2011) (describing this review as a
    “high threshold”).
    Although the state trial court’s opinion “was terse at
    best,” 35 it indicated that the court was “fully advised in the
    premises” 3 6 and that Mr. Eichwedel did not establish any
    constitutional violation. The state trial court dismissed Mr.
    Eichwedel’s action under 735 ILCS 5/2-619, which the
    Illinois courts treat as a merits determination. See Rein v.
    David A. Noyes & Co., 
    665 N.E.2d 1199
    , 1204 (Ill. 1996).
    Therefore, Mr. Eichwedel “has failed to show that the
    35
    R.11 at 3.
    36
    R.7-21 at 3.
    No. 09-1031                                                  25
    [Illinois trial court’s] decision did not involve a deter-
    mination of the merits of his claim,” and “[s]ection 2254(d)
    applies to his petition.” 3 7 Richter, 
    131 S. Ct. at 785
    ; see
    also Price v. Thurmer, 
    637 F.3d 831
    , 839 (7th Cir. 2011)
    (concluding that Richter “precludes our inferring error
    from the [state] court’s failure to discuss particular
    pieces of evidence”).
    Despite Mr. Eichwedel’s failure to perfect his appeal
    in state court, we have before us a merits determination
    from the state trial court for purposes of AEDPA. A claim
    is “adjudicated on the merits,” as that term is used in
    § 2254(d), if there is “’a decision finally resolving the
    parties’ claims, with res judicata effect, that is based on
    the substance of the claim advanced, rather than on a
    procedural, or other, ground.’ ” Muth v. Frank, 
    412 F.3d 808
    , 815 (7th Cir. 2005) (quoting Sellan v. Kuhlman, 
    261 F.3d 303
    , 311 (2d Cir. 2001)). In this case, the state trial
    court’s dismissal of Mr. Eichwedel’s claims has claim-
    preclusive effect. “It makes no difference that an appeal
    was attempted but was thwarted by failure to satisfy
    procedural requirements.” 18A Charles Alan Wright,
    Arthur R. Miller & Edward H. Cooper, Federal Practice &
    Procedure § 4433 (2d ed. 2002).3 8 If the state appellate
    37
    Indeed, as noted above, Mr. Eichwedel has conceded that
    AEDPA applies in this case.
    38
    See also Thomas v. Horn, 
    570 F.3d 105
    , 116 (3d Cir. 2009)
    (discussing Fahy v. Horn, 
    516 F.3d 169
     (3d Cir. 2008), in which
    the petitioner voluntarily abandoned his state court appeal,
    (continued...)
    26                                                 No. 09-1031
    court had heard the appeal and decided to affirm the
    trial court based on a procedural ground, such as a
    waiver or forfeiture of the claim, then the state court’s
    determination would not be “on the merits” for purposes
    of § 2254(d). See Liegakos v. Cooke, 
    106 F.3d 1381
    , 1385 (7th
    Cir. 1997).39 Because the state appellate court did not hear
    the case at all, however, the state trial court’s opinion
    retains its claim-preclusive effect and is therefore
    entitled to deference under § 2254(d). We therefore turn
    to the merits.
    C. Right of Access to the Courts
    Mr. Eichwedel asserts that 730 ILCS 5/3-6-3(d) “directly
    contradict[s] clear Supreme Court precedent estab-
    lishing the right of prisoners to pursue meritorious civil
    rights actions in the courts.” Pet’r Br. 11 (citing Lewis v.
    Casey, 
    518 U.S. 343
    , 351 (1996), and Bounds v. Smith, 
    430 U.S. 817
    , 821 (1977)). However, an inmate may prevail
    on a right-of-access claim only if the official actions at
    issue “hindered his efforts to pursue a legal claim.” Lewis,
    
    518 U.S. at 351
    . Indeed, “the very point of recognizing
    38
    (...continued)
    and concluding that Fahy properly applied § 2254(d) because
    “the lower court’s decision on the merits was the decision
    that finally resolved the claims”).
    39
    See also Thomas, 
    570 F.3d at 115
     (noting that an appellate
    court’s rejection of a petitioner’s claims on procedural grounds
    “stripped the [trial] court’s substantive determination . . .
    of preclusive effect”).
    No. 09-1031                                                         27
    any access claim is to provide some effective vindica-
    tion for a separate and distinct right to seek judicial
    relief for some wrong.” Christopher v. Harbury, 
    536 U.S. 403
    ,
    414-15 (2002).
    The record before us establishes that the underlying
    action was resolved by settlement on terms favorable to
    Mr. Eichwedel.40 Mr. Eichwedel does not claim that his
    discipline under 730 ILCS 5/3-6-3(d) “hindered his efforts
    to pursue a legal claim” in the underlying litigation,
    Lewis, 
    518 U.S. at 351
    , as would be the case, for instance,
    if the discipline he received under 730 ILCS 5/3-6-3(d)
    “caused the . . . inadequate settlement of a meritorious
    case,” Harbury, 
    536 U.S. at 414
    .
    Mr. Eichwedel does assert that 730 ILCS 5/3-6-3(d) has
    a “strong chilling effect” that “impermissibly dis-
    courages prisoners from seeking to pursue valid claims
    by heightening the risk of filing lawsuits.” Pet’r Br. 12; see
    also id. at 17 (asserting that 730 ILCS 5/3-6-3(d) “takes a
    major step toward causing . . . prisoners to be shut out
    of court” (alteration omitted) (internal quotation marks
    omitted)). He has failed to establish, however, that the
    State’s invocation of 730 ILCS 5/3-6-3(d) has interfered,
    or is interfering, in any way with his pursuit of any litiga-
    40
    See Pet’r Br. 3; R.1 at 25; see also Pet’r Br. 2 (characterizing “the
    underlying litigation []as meritorious” in presenting the issues
    on appeal); R.7-14 at 12 (describing the dismissal of certain
    claims in the underlying action as “a Pyrrhic victory” for
    the defendants in that case); id. (referencing “the sheer magni-
    tude of the . . . defendants’ defeat” in the underlying action).
    28                                               No. 09-1031
    tion. Because Mr. Eichwedel has failed to identify any
    “’nonfrivolous,’ ‘arguable’ underlying claim” that 730
    ILCS 5/3-6-3(d) is preventing him from bringing, this
    argument fails. See Harbury, 
    536 U.S. at 415
     (quoting
    Lewis, 
    518 U.S. at
    353 & n.3).
    Moreover, Mr. Eichwedel asserts that the motions at
    issue in this case resulted from “a single mistaken argu-
    ment made in good faith,” which, in his view, he had
    a constitutional right to file. Pet’r Br. 15. As a pre-
    liminary matter, this argument does not characterize
    accurately the statutory scheme. Section 5/3-6-3(d) does not
    authorize punishment for “a mistaken argument”—only
    for “a pleading, motion, or other paper” after a court has
    made a “specific finding” that the filing is “frivolous.”
    Regardless, the Supreme Court has held that the Con-
    stitution does not protect a person’s right to file
    frivolous lawsuits. See Bill Johnson’s Rests. v. N.L.R.B., 
    461 U.S. 731
    , 743 (1983) (“[B]aseless litigation is not im-
    munized by the First Amendment right to petition.”); see
    also Lewis, 
    518 U.S. at
    353 n.3 (“Depriving someone of a
    frivolous claim[] . . . deprives him of nothing at all, except
    perhaps the punishment of Federal Rule of Civil
    Procedure 11 sanctions.”). Mr. Eichwedel seeks to dis-
    tinguish the principle announced in Bill Johnson’s Restau-
    rants from the case at hand by asserting: (1) that the
    principle is limited “to frivolous suits that are filed know-
    ingly, or at least negligently, or that involve intentional
    falsehoods”; and (2) that the principle is limited to frivo-
    lous litigation and does not reach frivolous motions
    filed during meritorious litigation. Pet’r Br. 15.
    No. 09-1031                                                  29
    We previously have rejected Mr. Eichwedel’s first
    contention.
    [Bill Johnson’s Restaurants] lists “intentional false-
    hoods” and “knowingly frivolous claims” merely
    as two examples, and not as an exhaustive list, of
    types of claims that have no protection under the
    First Amendment. The Court’s subsequent discus-
    sion makes clear that[] . . . claims which present
    no material questions of fact or law have no First
    Amendment protection.
    Geske & Sons, Inc. v. N.L.R.B., 
    103 F.3d 1366
    , 1372 n.9 (7th
    Cir. 1997).
    As to Mr. Eichwedel’s second point, the discussion
    in Bill Johnson’s Restaurants indeed was focused on frivo-
    lous litigation and not frivolous motions. Mr. Eichwedel
    places heavy emphasis on this point, asserting that
    “punish[ing] prisoners for filing a frivolous argument
    in one single motion, rather than an entire frivolous suit
    or action[,] . . . . goes too far beyond the plain language
    of [Bill Johnson’s Restaurants].” Pet’r Br. 15. The baseline,
    in Mr. Eichwedel’s view, appears to be that the right of
    access to the courts grants him a right to make any
    filing, whether frivolous or not, that he subjectively
    believes to be appropriate in litigation against his jailers
    as long as there is some merit to that underlying litiga-
    tion. He interprets Bill Johnson’s Restaurants as a
    narrow exception to this broad, general rule.
    According to Mr. Eichwedel, the holding in Bill
    Johnson’s Restaurants—that frivolous litigation is not
    constitutionally protected—supports the conclusion that
    30                                                  No. 09-1031
    frivolous motions filed in pursuit of a nonfrivolous
    claim are protected. AEDPA, however, limits our review
    to “clearly established Federal law, as determined by
    the Supreme Court of the United States.” 
    28 U.S.C. § 2254
    (d)(1). The principle espoused by Mr. Eichwedel
    is not established by Supreme Court precedents, and
    “[e]xtrapolation from Supreme Court authority is not
    enough to overcome the deference to state-court deci-
    sion-making built into § 2254(d).” Sweeney v. Carter, 
    361 F.3d 327
    , 334 (7th Cir. 2004).
    In conclusion, we note that the statute at issue does
    more than vindicate the burden imposed on the judiciary
    by the filing of frivolous suits on motions in state or
    federal court. It provides prison officials with a tool to
    curb behavior that is inimical to rehabilitative efforts
    and to good order and discipline within the institu-
    tion. Mr. Eichwedel has failed to establish that no
    fairminded jurist could conclude that the right of
    access to the courts, as it has been interpreted by the
    Supreme Court of the United States, prevents a state from
    punishing the behavior regulated by 730 ILCS 5/3-6-3(d).4 1
    41
    On appeal, Mr. Eichwedel has not argued that any prison
    official invoked 730 ILCS 5/3-6-3(d) in retaliation for
    Mr. Eichwedel’s bringing the underlying action. Cf. DeWalt v.
    Carter, 
    224 F.3d 607
    , 618 (7th Cir. 2000) (“Prisoners have a
    constitutional right of access to the courts that, by necessity,
    includes the right to pursue the administrative remedies that
    must be exhausted before a prisoner can seek relief in court.
    Thus, a prison official may not retaliate against a prisoner
    (continued...)
    No. 09-1031                                                     31
    We therefore turn to Mr. Eichwedel’s due process claim.
    D. The “Some Evidence” Requirement
    The State of Illinois has created a statutory right to good-
    conduct credit for the inmates in its prisons. See Hamilton
    v. O’Leary, 
    976 F.2d 341
    , 344 (7th Cir. 1992) (citing 730 ILCS
    5/3-6-3). Illinois inmates, therefore, have a liberty
    interest in their good-conduct credits that entitles them
    “to those minimum procedures appropriate under the
    circumstances and required by the Due Process Clause
    to insure that the state-created right is not arbitrarily
    abrogated.” Wolff v. McDonnell, 
    418 U.S. 539
    , 557 (1974). A
    revocation of good-conduct credits complies with due
    process if the inmate receives:
    (1) advance written notice of the disciplinary
    charges; (2) an opportunity, when consistent with
    institutional safety and correctional goals, to
    call witnesses and present documentary evidence
    in his defense; and (3) a written statement by
    41
    (...continued)
    because that prisoner filed a grievance [or filed a lawsuit].”).
    Mr. Eichwedel raised this argument in the state court, but he
    no longer advances it, and it therefore is not before us.
    Instead of focusing on the motives of the prison officials
    who invoked 730 ILCS 5/3-6-3(d), see Spiegla v. Hull, 
    371 F.3d 928
    ,
    942 (7th Cir. 2004), Mr. Eichwedel now focuses on the gen-
    eral effect of that statute. As we have explained, however,
    Mr. Eichwedel has not demonstrated that he is entitled to
    habeas relief on that theory.
    32                                                No. 09-1031
    the factfinder of the evidence relied on and the
    reasons for the disciplinary action.
    Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 
    472 U.S. 445
    , 454 (1985) (citing Wolff, 
    418 U.S. at 563-67
    ). Due
    process also requires that “the findings of the prison
    disciplinary board [be] supported by some evidence in
    the record.” 
    Id.
    The “some evidence” standard of Hill is satisfied if
    “there is any evidence in the record that could support
    the conclusion reached by the disciplinary board.” Id. at
    455-56. Stated differently, “[t]his standard is met if ‘there
    was some evidence from which the conclusion of the
    administrative tribunal could be deduced.’ ” Id. at 455
    (quoting United States ex rel. Vajtauer v. Comm’r of Im-
    migration, 
    273 U.S. 103
    , 106 (1927)). “Ascertaining whether
    this standard is satisfied does not require examination
    of the entire record, independent assessment of the credi-
    bility of witnesses, or weighing of the evidence.” 
    Id.
     “The
    Federal Constitution does not require evidence that
    logically precludes any conclusion but the one reached
    by the disciplinary board.” Id. at 457. “[O]nly evidence
    that was presented to the Adjustment Committee is
    relevant to this analysis.” Hamilton, 
    976 F.2d at 346
    .
    The Final Summary Reports indicate that Mr. Eichwedel
    was charged with “Violating State or Federal Laws” and
    that he was “in violation of 730 ILCS 5/3-6-3(d).” 4 2 That
    statute authorizes IDOC “to revoke up to 180 days” of a
    42
    R.7-10 at 1; accord R.7-9 at 1.
    No. 09-1031                                                     33
    prisoner’s good-conduct credit if that prisoner files
    a lawsuit against the State “and the court makes a
    specific finding that a pleading, motion, or other paper
    filed by the prisoner is frivolous.” 730 ILCS 5/3-6-3(d). “For
    purposes of this subsection . . ., ‘[f]rivolous’ means that
    a pleading, motion, or other filing which purports to be
    a legal document filed by a prisoner in his or her law-
    suit meets any or all of [five listed] criteria[] . . . .” 
    Id.
    § 5/3-6-3(d)(1).
    To determine if there was “some evidence” that
    Mr. Eichwedel violated this statute, we must ascertain
    the elements of 730 ILCS 5/3-6-3(d). See Gamble v. Calbone,
    
    375 F.3d 1021
    , 1027 (10th Cir. 2004).4 3 The parties
    dispute whether 730 ILCS 5/3-6-3(d) may be invoked
    properly where a court uses the term “frivolous” to
    describe a filing but provides no indication of what
    definition, if any, it is using to reach that conclusion.
    Mr. Eichwedel asserts that the court must indicate that it
    is using the term “frivolous” in the manner contemplated
    by the statute before a petitioner’s good-conduct credit
    may be revoked. See Pet’r Br. 22.4 4 The State responds
    43
    Superceded by state statute on other grounds as recognized in
    Magar v. Parker, 
    490 F.3d 816
    , 819 (10th Cir. 2007).
    44
    In his state court complaint, Mr. Eichwedel argued that the
    State
    refused to follow the requirements mandated by 730
    ILCS 5/3-6-3(d) which authorizes the IDOC to bring
    charges against a prisoner for filing a frivolous motion
    (continued...)
    34                                                       No. 09-1031
    that “[t]he long-standing and commonly understood
    meaning of a frivolous claim is one that ‘lacks an arguable
    basis either in law or in fact,’ ” 4 5 that “[t]his well-estab-
    lished definition is consistent with the definition of frivo-
    lous in 730 ILCS 5/3-6-3(d)(1)(A)” 4 6 and that “[t]here can be
    no doubt that the district court employed precisely that
    definition when it found the motions frivolous.” 4 7
    To resolve this dispute, we begin by looking to the
    opinion of the state trial court in the matter before us. See
    Bates v. McCaughtry, 
    934 F.2d 99
    , 102 (7th Cir. 1991). As
    44
    (...continued)
    ONLY AFTER ‘the court makes a SPECIFIC FINDING
    that a motion filed by the prisoner is frivolous’ . . . as
    that term is defined by the statute.
    R.7-14 at 42 (alterations omitted) (emphasis in original). He
    asserted that “the Adjustment Committee’s finding of guilt[] . . .
    was predicated solely upon ITS INTERPRETATION of
    Judge Baker’s October 9, 2001 and October 29, 2001 Orders.”
    Id. at 35 (emphasis in original).
    45
    Resp’t Br. 34 (quoting, e.g., Neitzke v. Williams, 
    490 U.S. 319
    ,
    325 (1989)).
    46
    Id. at 35. 730 ILCS 5/3-6-3(d)(1)(A) provides that a filing
    is frivolous if “it lacks an arguable basis either in law or in fact.”
    47
    Resp’t Br. 35. The State supports this last point by citing the
    order of November 8. As the State acknowledges, however, that
    order was not before the prison disciplinary board at the time it
    made its decision. See id. at 35; see also Hamilton v. O’Leary,
    
    976 F.2d 341
    , 346 (7th Cir. 1992) (“[O]nly evidence that was
    presented to the Adjustment Committee is relevant to
    this analysis.”).
    No. 09-1031                                                    35
    relevant here, the state trial court found the following
    facts to be uncontroverted: that “[o]n October 9, 2001,
    U.S. District Judge Harold Baker denied plaintiff’s
    motion for sanctions as frivolous” and that “[o]n October
    29, 2001, Judge Baker ruled that plaintiff’s second
    motion for sanctions was frivolous.” 4 8 In the course of its
    analysis, that court indicated that it would not allow
    Mr. Eichwedel “to retry issues already ruled upon by
    Judge Baker.” 49 Then, after stating that 730 ILCS 5/3-6-3(d)
    “clearly define[s its] terms and lay[s] out the procedure
    and penalties which are available to the Department of
    Corrections,” the state court denied Mr. Eichwedel’s
    claim on its merits. 5 0 This passage suggests that the state
    trial court concluded that the district court’s use of
    the term “frivolous” constituted the requisite “specific
    finding[s]” of frivolousness within the meaning of 730
    ILCS 5/3-6-3(d).51 To the extent that there is any doubt as
    to whether the state court construed the statute in
    this manner, we “must determine what arguments or
    theories . . . could have supported[] the state court’s
    48
    R.7-21 at 2.
    49
    Id. at 3.
    50
    Id.
    51
    Indeed, in concluding that Mr. Eichwedel’s second state
    action was barred by res judicata, the Appellate Court of Illinois
    stated: “In dismissing plaintiff’s complaint, the [state trial
    court] found that section 3-6-3(d) of the Code was applicable
    because the federal court had specifically found that plaintiff’s
    motions for sanctions were frivolous.” R.37 at 8.
    36                                                    No. 09-1031
    decision” to deny Mr. Eichwedel’s petition. Richter, 131
    S. Ct. at 786. In addressing a constitutional challenge to
    the sufficiency of the evidence, we must assume that
    the state court “engag[ed] in a two-step process: first,
    it clarifie[d] the meaning of the uncertain term by
    deciding what historical facts suffice or are not necessary
    to establish the element, and second, it decide[d] that
    the evidence at [the hearing] support[ed] an inference
    that the necessary historical facts were present.” Anderson-
    Bey v. Zavaras, 
    641 F.3d 445
    , 449 (10th Cir. 2011) (discuss-
    ing, e.g., Bates, 
    934 F.2d 99
    ).5 2
    Here, the language in the operative state trial court
    order, when read in light of the Richter presumption,
    requires us to conclude that the state trial court did not
    read 730 ILCS 5/3-6-3(d) to require any specific invoca-
    tion of that statute or of any of the five definitions of
    frivolousness contained therein before a prison dis-
    ciplinary board may invoke the statute. Nevertheless,
    we have significant doubts about the state trial court’s
    apparent rendition of the elements. First, the plain lan-
    52
    See also Evans v. McBride, 
    94 F.3d 1062
    , 1064 (7th Cir. 1996)
    (noting, in the context of a “some evidence” challenge, that “[i]t
    may be hard in practice to separate evidentiary insufficiency
    from a mistaken interpretation of the [state] law’s substantive
    requirements”), disapproved of on other grounds by White v.
    Indiana Parole Bd., 
    266 F.3d 759
    , 765-66 (7th Cir. 2001); cf. Gamble
    v. Calbone, 
    375 F.3d 1021
    , 1027 (10th Cir. 2004) (determining
    elements of state offense to address a “some evidence” chal-
    lenge to the revocation of good-conduct credits where no
    state court had done so in the matter before the court).
    No. 09-1031                                               37
    guage of the statute requires that the court make a “specific
    finding that a [filing] is frivolous.” 730 ILCS 5/3-6-3(d).
    Furthermore, the statute provides:
    “Frivolous” means that a pleading, motion, or other
    filing which purports to be a legal document filed by a
    prisoner in his or her lawsuit meets any or all of
    the following criteria:
    (A) it lacks an arguable basis either in law or
    in fact;
    (B) it is being presented for any improper
    purpose, such as to harass or to cause unneces-
    sary delay or needless increase in the cost
    of litigation;
    (C) the claims, defenses, and other legal con-
    tentions therein are not warranted by existing
    law or by a nonfrivolous argument for the
    extension, modification, or reversal of existing
    law or the establishment of new law;
    (D) the allegations and other factual conten-
    tions do not have evidentiary support or, if
    specifically so identified, are not likely to
    have evidentiary support after a reasonable op-
    portunity for further investigation or discov-
    ery; or
    (E) the denials of factual contentions are not
    warranted on the evidence, or if specifically
    so identified, are not reasonably based on a
    lack of information or belief.
    38                                                No. 09-1031
    730 ILCS 5/3-6-3(d)(1). Therefore, the statute defines
    frivolous to mean five particular things and explicitly
    provides that a court must make a specific finding that one
    of those definitions has been satisfied before IDOC may
    seek to revoke good-conduct credit under 730 ILCS 5/3-6-
    3(d). See Duncan v. Walker, 
    533 U.S. 167
    , 174 (2001) (“It is
    our duty to give effect, if possible, to every clause and
    word of a statute.” (internal quotation marks omitted));
    People ex rel. Illinois Dep’t of Corr. v. Hawkins, 
    952 N.E.2d 624
    , 631-32 (Ill. 2011) (“The statute should be
    read as a whole and construed so as to give effect to
    every word, clause, and sentence; we must not
    read a statute so as to render any part superfluous or
    meaningless.”).
    Our unease about the correctness of the state trial
    court’s interpretation of the elements of the offense is
    heightened by intervening decisions of the Appellate
    Court of Illinois that support the alternate textual read-
    ing. For instance, in People v. Collier, 
    900 N.E.2d 396
    , 406
    (Ill. App. Ct. 2008), the court found a trial court’s order
    revoking a prisoner’s good-conduct credits “disquieting”
    where its order contained “none of” the “five separate
    criteria” listed in 730 ILCS 5/3-6-3(d)(1) in addition to other
    flaws not relevant for present purposes. Collier suggests,
    therefore, that a court must indicate which of the five
    statutory definitions of frivolousness it is invoking in
    order for 730 ILCS 5/3-6-3(d) to be satisfied. Other cases
    from that court suggest a little flexibility as long as the
    No. 09-1031                                                        39
    court makes clear its intent to invoke 730 ILCS 5/3-6-3(d).5 3
    Notably, the regulation implementing 730 ILCS 5/3-6-3(d)
    53
    For instance, in People v. Shaw, 
    898 N.E.2d 755
    , 758 (Ill. App.
    Ct. 2008), the state trial court “f[ound] that [a prisoner’s filing]
    was frivolous and patently without merit” within the meaning
    of the Illinois Post-Conviction Hearing Act, and it “directed
    the circuit clerk to mail a copy of its written order to de-
    fendant’s prison warden so that a hearing could be conducted,
    pursuant to section 3-6-3(d) . . ., to determine whether some of
    defendant’s good-conduct credit should be revoked because
    he filed a frivolous pleading.” The appellate court noted that
    the plain language of section 3-6-3(d) of the Code . . .
    directs the procedure that must take place after a trial
    court finds a defendant’s postconviction petition is
    frivolous under the [Post-Conviction Hearing] Act. Specifi-
    cally, DOC is required to hold a hearing to determine
    if defendant violated [the regulation implementing
    730 ILCS 5/3-6-3(d)] before DOC can revoke any
    good-conduct credit.
    
    898 N.E.2d at 766
     (emphasis added) (citation omitted). The
    Supreme Court of Illinois has held that a petition is “frivolous,”
    as that term is used in the Post-Conviction Hearing Act, “only
    if [it] has no arguable basis either in law or in fact.” People v.
    Hodges, 
    912 N.E.2d 1204
    , 1209 (Ill. 2009). Section 3-6-3(d)(1)(A)
    includes within its definition of “frivolous” any filing that
    “lacks an arguable basis either in law or in fact.” Therefore, it
    would seem that a finding that an item is “frivolous” within
    the meaning of the Post-Conviction Hearing Act would be
    sufficient to satisfy the plain meaning of 730 ILCS 5/3-6-3(d),
    particularly where the court then forwards its finding to IDOC
    so that proceedings under 730 ILCS 5/3-6-3(d) may be held,
    as occurred in Shaw and in People v. Shevock, 
    818 N.E.2d 921
    , 922-
    23 (Ill. App. Ct. 2004).
    40                                                No. 09-1031
    sets out the following offense: “A pleading, motion, or
    other paper filed by the offender for which the court, in
    accordance with 730 ILCS 5/3-6-3, has found to be frivolous.”
    
    Ill. Admin. Code tit. 20, § 504
     app. A (emphasis added).
    The “in accordance with” clause comes in the middle of
    “the court . . . has found,” which suggests, at the very least,
    that the court must invoke and apply one of the definitions
    in 730 ILCS 5/3-6-3(d) before a prisoner may be punished
    for violating this disciplinary rule.5 4 However, in this case,
    the disciplinary board had before it only a pair of
    orders using the word “frivolous”—one of them in a
    single-sentence minute entry. The disciplinary board
    simply did not have before it evidence of a “specific
    finding” that one of the five statutory definitions of
    “frivolous[ness]” had been made “in accordance with
    730 ILCS 5/3-6-3(d).”
    We also are concerned that the broad interpreta-
    tion given the statute by the state trial court in the case
    before us might frustrate the intended purpose of
    730 ILCS 5/3-6-3(d). The legislature crafted a detailed
    statute that gives very specific meaning and content to
    the term “frivolous.” The legislature may well have
    been concerned that such meticulous crafting of the
    statute was necessary because, in the common parlance
    54
    Indeed, at oral argument, Mr. Eichwedel’s counsel conceded
    that 730 ILCS 5/3-6-3(d) could be invoked properly, in
    his view, where a court states expressly that a filing was
    frivolous because it lacked an arguable basis in law or fact,
    even if the court does not cite 730 ILCS 5/3-6-3(d).
    No. 09-1031                                                    41
    of the legal profession, the term “frivolous” is often
    employed in a broader sense as a synonym for “meritless,”
    when that distinction has no immediate legal significance.5 5
    The use of the general term “frivolous” does not
    apply expressly any precise definition of frivolous-
    ness—let alone one of the definitions in 730 ILCS 5/3-6-
    3(d). Under these circumstances, it would seem inappro-
    priate to presume that the court has considered the
    precise meaning given that term by the legislature. The
    statute requires a “specific finding” of frivolousness by
    the deciding judge, not a guess by an administrative
    body as to whether the judge made such a finding based
    on an interpretation of the court’s dicta. Indeed, even
    when courts are called on to consider expressly whether
    a filing is frivolous, they often struggle to draw the line
    between frivolous filings and meritless filings. See United
    States v. Eggen, 
    984 F.2d 848
    , 850 (7th Cir. 1993) (“A more
    difficult question is whether, although Eggen’s appeal
    plainly lacks merit, it can be pronounced frivolous.”).
    Given the significant possibility that the state trial court
    did not take into account appropriately the legislative
    concerns in crafting 730 ILCS 5/3-6-3(d), we are reluctant
    to employ its interpretation of the statute in deter-
    mining whether there was evidence to support a deter-
    mination of a violation of the statute in the subsequent
    prison disciplinary proceeding.
    55
    For instance, Black’s Law Dictionary defines “frivolous” as:
    “Lacking a legal basis or legal merit; not serious; not reasonably
    purposeful .” Black’s Law Dictionary 739
    (9th ed. 2009).
    42                                                     No. 09-1031
    We also note that the construction of 730 ILCS 5/3-6-3(d)
    upon which the state trial court apparently settled at-
    tributes to the Illinois General Assembly an intention
    that strains significantly the usual relationship of the
    judiciary to administrative bodies by allowing admin-
    istrative bodies to second-guess judicial judgments. When,
    as in this case, it is the judgment of federal courts that
    state administrative bodies are interpreting, the strain
    is especially significant, given the comity inherent in our
    federal system. We certainly do not mean to say that any
    revocation of good-conduct credits based on a finding
    of frivolousness made by a federal court is exempt from
    730 ILCS 5/3-6-3(d). To the contrary, federal judges in
    the State of Illinois—including the district judge who
    used the word “frivolous” in denying Mr. Eichwedel’s
    motions—repeatedly have invoked the statute.5 6 In doing
    so, however, they have made their intention clear to
    State authorities that the underlying litigation position
    of the prisoner was frivolous within the terms of the state
    56
    See Hibberd v. Jennings, No. 07-3131, 
    2011 WL 1232149
    , at *13
    (C.D. Ill. Mar. 30, 2011) (Baker, J.); Cook v. Standley, No. 10-3183,
    
    2010 WL 3433060
    , at *3 (C.D. Ill. Aug. 26, 2010) (Baker, J.); Arnold
    v. Williams, No. 07-1178, 
    2010 WL 2697156
    , at *5 (C.D. Ill. July 7,
    2010) (Baker, J.); Thompson v. Quinn, No. 10-1101, 
    2010 WL 1692690
    , at *1-2 (C.D. Ill. Apr. 27, 2010) (Baker, J.); cf. Gevas v.
    McLaughlin, No. 08-1379, 
    2011 WL 39721
    , at *7 (C.D. Ill. Jan. 6,
    2011) (“advis[ing]” a prisoner that the court might later find
    that certain claims are frivolous if he continues pursuing
    them and that such a finding could result in a revocation of
    good-conduct credits under 730 ILCS 5/3-6-3(d)).
    No. 09-1031                                                    43
    statute. 5 7 We find it difficult to attribute to the legislature
    an intent to permit a prison disciplinary board to give
    a meaning to the order of a federal or state judicial
    officer that was not intended.
    In this case, the normal course of state appellate
    review was truncated after the trial court—in the words
    of the Appellate Court of Illinois—“misle[d Mr. Eichwedel]
    about the jurisdictional prerequisites to an appeal.” 5 8
    Therefore, neither the Appellate Court nor the
    Supreme Court of Illinois had the opportunity to hear
    Mr. Eichwedel’s appeal and correct any error in the
    state trial court’s opinion.
    Although we are required to apply state law as inter-
    preted by the state courts, we have significant doubt as
    to whether 730 ILCS 5/3-6-3(d) means what the state
    trial court apparently concluded that it means. Because
    of the odd procedural route this case has taken and the
    intervening case law that supports what appears to be
    the plain wording of the statute, we hesitate to treat the
    57
    See Hibberd, 
    2011 WL 1232149
    , at *16 (“As discussed above, the
    court finds Plaintiff pled frivolous claims in his complaint.
    See 730 ILCS 5/3-6-3(d). The clerk of the court is directed to fax
    a copy of this order to Assistant Illinois Attorney General
    Chris Higgerson.”); Cook, 
    2010 WL 3433060
    , at *3-4 (“find[ing]”
    that the suit was frivolous, invoking 730 ILCS 5/3-6-3(d)
    and “direct[ing]” that a copy of the order be mailed to a repre-
    sentative of the State); Arnold, 
    2010 WL 2697156
    , at *5 (same);
    Thompson, 
    2010 WL 1692690
    , at *1-2 (same).
    58
    R.7-4 at 6.
    44                                               No. 09-1031
    state trial court’s opinion as a definitive statement of
    state law.59 When presented with similar situations, other
    federal courts, in the interest of comity, have elected to
    certify questions of law to the state court of last resort
    to determine what state law was on the date of the
    relevant state court opinion. See Fiore v. White, 
    528 U.S. 23
     (1999) (certifying to the Supreme Court of Pennsyl-
    vania the question of what a state statute meant on the
    date of the petitioner’s conviction where that court
    denied the petitioner leave to appeal his conviction
    directly and where that court subsequently concluded
    that the statute under which the petitioner was
    convicted did not prohibit the conduct for which he
    had been convicted); Policano v. Herbert, 
    453 F.3d 75
     (2d
    Cir. 2006) (per curiam) (certifying to New York Court of
    Appeals the question of what a state statute meant on
    the date of the petitioner’s conviction where there was
    substantial doubt on the matter); Burleson v. Saffle, 
    278 F.3d 1136
     (10th Cir. 2002) (certifying to the Oklahoma
    Court of Criminal Appeals the question of what the
    statute under which the petitioner had been convicted
    meant on the date of the petitioner’s conviction where
    that court had disposed of the petitioner’s claim
    summarily and, shortly thereafter, announced a rule
    which, if applied in the petitioner’s case, would
    59
    See Fagan v. Washington, 
    942 F.2d 1155
    , 1159 (7th Cir. 1991)
    (“When in doubt, we think it both impetuous and impolitic
    to impute to a state trial judge a misunderstanding of
    state law.”).
    No. 09-1031                                                      45
    implicate the petitioner’s rights under the Double
    Jeopardy Clause).60
    In our view, certification presents the optimal method
    of assuring respect for the decision of the state courts
    as to the elements of the offense and of assuring that
    an issue which will recur frequently in both state and
    federal courts within Illinois, but which might not
    reach appellate courts with the same frequency, is
    decided definitively. “The goal of this certification
    opinion is to obtain from [Illinois]’s highest court its
    view of the relevant principles of [Illinois] law—not to
    tell that Court how, in our view, [Illinois] law ought to be
    interpreted.” Policano, 
    453 F.3d at 76
    . Our reading of
    the statute and intervening case law, as well as our con-
    sideration of the policies underlying the statute, do not
    empower us to construe the statute; rather, these
    concerns prompt us to seek a definitive interpretation
    of Illinois law from the state court of last resort.
    60
    See also Emery v. Clark, 
    604 F.3d 1102
     (9th Cir. 2010) (certifying
    to the Supreme Court of California the question of what a state
    statute means where there were conflicting opinions from
    various courts); cf. Evanchyk v. Stewart, 
    340 F.3d 933
    , 936 (9th
    Cir. 2003) (looking to the answer to a question certified to
    the Supreme Court of Arizona by a federal district court
    on elements of an Arizona crime and granting habeas on in-
    structional error theory); Sanford v. Yukins, 
    288 F.3d 855
    , 862-63
    (6th Cir. 2002) (looking to the Supreme Court of Michigan’s
    response to a question that the federal district court had
    certified regarding the meaning of the state statute under
    which the petitioner had been convicted).
    46                                               No. 09-1031
    If the Supreme Court of Illinois agrees with the reading
    of the state trial court, we would be constrained to deter-
    mine that there was some evidence of a violation of the
    statute. On the other hand, if the Supreme Court of
    Illinois were to determine that the statute required the
    court making the finding of frivolousness to invoke one
    of the definitions in 730 ILCS 5/3-6-3(d) or otherwise to
    make its intention to invoke 730 ILCS 5/3-6-3(d) known,
    there would be no evidence in the administrative
    record that Mr. Eichwedel had in fact violated the statute.
    Conclusion
    Accordingly, in accordance with Illinois Supreme Court
    Rule 20 and Circuit Rule 52(a), we respectfully request
    that the Supreme Court of Illinois answer the following
    question, which may be determinative of this cause:
    As of the date Mr. Eichwedel’s state court chal-
    lenge to the revocation of his good-conduct credits
    became final, was the State required to establish, in
    order to revoke a prisoner’s good-conduct credit,
    either that the court making the finding of frivo-
    lousness had determined specifically that the filing
    satisfied one of the definitions of frivolousness in
    730 ILCS 5/3-6-3(d) or that the court had otherwise
    made its intent to invoke 730 ILCS 5/3-6-3(d)
    known?
    We invite reformulation of the question presented if
    necessary, and nothing in this certification should be
    read to limit the scope of inquiry to be undertaken by
    No. 09-1031                                            47
    the Supreme Court of Illinois. Further proceedings in
    this court are stayed while this matter is under consider-
    ation by the Supreme Court of Illinois.
    Q UESTION C ERTIFIED
    8-29-12
    

Document Info

Docket Number: 09-1031

Citation Numbers: 696 F.3d 660, 2012 WL 3711880, 2012 U.S. App. LEXIS 18375

Judges: Ripple, Manion, Sykes

Filed Date: 8/29/2012

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (51)

Pike v. Guarino , 492 F.3d 61 ( 2007 )

People v. Collier , 387 Ill. App. 3d 630 ( 2008 )

People v. Shevock , 353 Ill. App. 3d 361 ( 2004 )

United States Ex Rel. Vajtauer v. Commissioner of ... , 47 S. Ct. 302 ( 1927 )

Harrington v. Richter , 131 S. Ct. 770 ( 2011 )

Cullen v. Pinholster , 131 S. Ct. 1388 ( 2011 )

Annette Sanford v. Joan Yukins, Warden , 288 F.3d 855 ( 2002 )

Anderson-Bey v. Zavaras , 641 F.3d 445 ( 2011 )

Ronald W. Evans, Plaintiff/petitioner-Appellant v. Daniel R.... , 94 F.3d 1062 ( 1996 )

Anthony Dewalt v. Lamark Carter, Correctional Officer Young,... , 224 F.3d 607 ( 2000 )

Bob Willow Motors, Inc., a Wisconsin Corporation, Cross-... , 872 F.2d 788 ( 1989 )

Jon T. Liegakos v. Maryanne Cooke, Warden, Kettle Moraine ... , 106 F.3d 1381 ( 1997 )

Christopher v. Harbury , 122 S. Ct. 2179 ( 2002 )

Samuel Martinez-Serrano v. Immigration and Naturalization ... , 94 F.3d 1256 ( 1996 )

Carty v. Thaler , 583 F.3d 244 ( 2009 )

Price v. Thurmer , 637 F.3d 831 ( 2011 )

Timothy Gonzales v. David McKune Warden, Lansing ... , 279 F.3d 922 ( 2002 )

Michael John Evanchyk, Jr., Petitioner-Appellee-Cross-... , 340 F.3d 933 ( 2003 )

Morgan v. Hardy , 662 F.3d 790 ( 2011 )

Neitzke v. Williams , 109 S. Ct. 1827 ( 1989 )

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