Phelps, Charles v. McCoy, Patrick , 189 F. App'x 528 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 14, 2006*
Decided July 17, 2006
Before
Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Nos. 05-4046
CHARLES PHELPS Appeal from the United States
Plaintiff-Appellant, District Court for the Northern
District of Indiana, South Bend
v. Division
PATRICK McCOY, et al., No. 3:04-CV-006 AS
Defendants-Appellees.
Allen Sharp,
Judge.
ORDER
Indiana prisoner Charles Phelps was charged with two disciplinary violations
after contraband was discovered in the trash can in his cell. A prison conduct
adjustment board (CAB) found him guilty, but both convictions were eventually set
aside in an administrative appeal. Phelps sued the members of the CAB under 42
U.S.C. § 1983, alleging that it had wrongfully denied him the opportunity to
introduce certain evidence at his hearings. The district court granted summary
judgment to the defendants. Phelps appeals, and we affirm.
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 05-4046 Page 2
After his hearing before the CAB, Phelps was convicted of possessing tobacco
and pills of uncertain origin and effect; the first charge led to a sentence that
included a loss of 90 days of earned good-time credits, and the second, a loss of 30
days. Phelps appealed to the superintendent of the prison, who remanded both
cases for new hearings because of an unspecified “due process error”—presumably
that Phelps had asked the CAB to present as evidence the surveillance video of his
cell, and this request was rejected. The CAB held new hearings and again adjudged
Phelps guilty and revoked his credits without allowing him to present the
videotape. Again Phelps appealed; this time his appeals were granted outright
based on the exclusion of the videotape and the two disciplinary charges were
dismissed. But even though he prevailed and received no punishment, Phelps
believed he was still aggrieved and so he sued. The district court, relying on the
defendants’ mistaken concession that even after the second round of appeals was
granted Phelps had still been deprived of credit time, denied summary judgment to
the defendants and granted partial summary judgment to Phelps. But when
alerted to the mistake over a month after entering judgment the court granted the
defendants’ motion for reconsideration.
Phelps faces a double bind in his challenge to the CAB’s ruling about the
videotape. He could not file this civil rights suit until his CAB convictions were set
aside because a judgment in his favor would have necessarily implied the
convictions’ invalidity. See Heck v. Humphrey, 512 U.S. 477 (1994). But now that
the convictions have been reversed and his good-time credits restored, he has no
basis for a federal suit. The protections of the due process clause do not attach
unless Phelps was deprived of a liberty interest. See Lekas v. Briley, 405 F.3d 602,
607 (7th Cir. 2005). Since his good-time credits were never revoked, he cannot
claim a right to due process under Wolff v. McDonnell, 418 U.S. 539, 558 (1974).
And he was not punished, so he cannot claim that he has a protected interest in
avoiding other sanctions short of credit deprivation, which themselves do not even
rise to the type of “atypical and significant hardship” that is protected by the due
process clause. See Sandin v. Connor, 515 U.S. 472, 486 (1995) (itself an action
under § 1983).
Phelps also attacks the district court’s decision to grant post-judgment relief
to the defendants after mistakenly granting Phelps partial summary judgment. He
says that the defendants’ motion to reconsider was untimely, pointing to the 10-day
limit in Federal Rule of Civil Procedure 50. But a motion for reconsideration that is
filed beyond ten days after entry of judgment is automatically considered a motion
under Rule 60(b), which has a longer time limit. Talano v. Northwestern Medical
Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001). Here, we see no basis for
finding that the district judge abused his discretion in granting relief: he relied on
the defendants’ mistaken reading of the evidence, and when the mistake was
pointed out, corrected the error. Rule 60(b)(1) encompasses mistakes by judicial
officers as well as others. See Brandon v. Chi. Bd. of Educ., 143 F.3d 293, 295 (7th
No. 05-4046 Page 3
Cir. 1998); Wesco Products Co. v. Alloy Automotive Co., 880 F.2d 981, 984–85 (7th
Cir. 1989). And Phelps’s argument that the district court was collaterally estopped
by its original decision from granting post-judgment relief is so clearly meritless
that it does not warrant discussion.
AFFIRMED.