NONPRECEDENTIAL DISPOSITION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 October 20, 2011*
Decided Ocotber 21, 2011
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 11‐1086
LARRY J. BROWN, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 09‐CV‐00519
JAYNE HACKBARTH, et al. Lynn Adelman,
Defendants‐Appellees. Judge.
O R D E R
Larry Brown, a Wisconsin inmate, appeals the dismissal of his claims under
42
U.S.C. § 1983 alleging due process violations on the part of prison officials in connection
with his prison records, as well as the grant of summary judgment for two members of the
*
The prison‐official defendants in this case were not served with process in the district
court and are not participating in this appeal. Two other defendants, the parole commissioners,
were served and have submitted a brief. After examining the submissions and the record, we
have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief, the brief of the participating appellees, and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 11‐1086 Page 2
Wisconsin Parole Commission on his claims challenging the retroactive application of
parole procedures to his case. We affirm.
Brown’s complaint alleged the following facts, which we must accept as true at this
time. See Tamyo v. Blagojevich,
526 F.3d 1074, 1081 (7th Cir. 2008). Brown is currently serving
an 80‐year prison sentence for an armed robbery and three sexual assaults he committed in
1983. In 2004 a prison psychiatrist changed Brown’s records to say that he needed to
participate in both a treatment program for severe sex offenders and an “alcohol and other
drugs of addiction program.” Brown insists that he had no genuine need for either
recommended program. He asked prison officials to correct his records, but they refused to
do so.
Brown sued, alleging that (1) the prison officials’ failure to remove the
recommendations from his records violated his due process rights, and (2) the parole
commissioners violated the Ex Post Facto Clause when denying his most recent parole
request. He requested compensatory and punitive damages from the prison officials and
prospective injunctive relief from the commissioners. At screening, the district court
dismissed the due process claim, concluding that he did not have a protected interest in
discretionary parole and therefore did not state a plausible due process claim. See 28 U.S.C.
§ 1915A(b)(1). Brown was allowed to proceed with his ex post facto claim against the parole
commissioners.
The materials Brown submitted in support of his ex post facto claim, construed in his
favor, showed how Wisconsin parole statutes were changed after 1983—the year he
committed his crimes. Ten years later, in 1993, Wisconsin modified its mandatory release
laws to explicitly allow parole commissioners to deny parole to prisoners who do not
complete recommended treatment programs. See WIS. STAT. § 302.11(1g)(b)(2) (1993–94).
That same year, Wisconsin modified its parole regulations to list a prisoner’s “institutional
records” as evidence to be considered by the parole commission when considering whether
to grant a prisoner discretionary parole. See WIS. ADMIN. CODE PAC § 1.02 (1993). No such
proviso appeared in the statutes and regulations in effect in 1983, when Brown committed
his crimes. See WIS. STAT. § 57.06(1) (1983–84); WIS. ADMIN. CODE HSS § 30.02(1) (1983). At
his most recent parole hearing in 2008, the parole commission denied parole, citing, among
other evidence, institutional records showing that he had not completed recommended
treatment programs.
The district court granted summary judgment for the parole commissioners. The
court concluded that Brown had presented no evidence that either WIS. STAT.
§ 302.11(1g)(b)(2) or WIS. ADMIN. CODE PAC § 1.02 had actually affected his eligibility for
parole. Additionally, the mandatory parole statute Brown cited did not apply to him—it
applied only to prisoners who committed their crimes after 1994, and Brown committed his
in 1983. See WIS. STAT. § 302.11(am).
No. 11‐1086 Page 3
On appeal, Brown first insists that the district court erred by ruling that he did not
plausibly allege that he had been deprived of a protected liberty interest. He appears to
argue that the he alleged a deprivation of mandatory parole (which can be a protected liberty
interest), but the court misread his complaint as alleging a deprivation of discretionary parole
(which cannot). See Grennier v. Frank,
453 F.3d 442, 444 (7th Cir. 2006). We need not address
this claim, however, because it bumps up against the rule of Heck v. Humphrey,
512 U.S. 477
(1994). Heck bars claims for damages under § 1983 that would necessarily invalidate a
confinement imposed by a legal process, such as a parole board hearing. See Edwards v.
Balisok,
520 U.S. 641, 645 (1997); Snodderly v. R.U.F.F. Drug Enforcement Task Force,
239 F.3d
892, 899–900 (7th Cir. 2001); Butterfield v. Bail,
120 F.3d 1023, 1024 (9th Cir. 1997). Here
Brown alleged that he was deprived of eligibility for mandatory parole because false
information in his record—the psychiatrist’s diagnosis that he needed to complete certain
treatment programs—disqualified him from receiving mandatory parole. See §
302.11(1g)(b)(2). Heck would bar Brown’s suit, because a finding that prison officials
deprived Brown of a protected liberty interest in mandatory parole would necessarily imply
that the board’s decision to continue his confinement was invalid.
Brown next reasserts that the commissioners violated the Ex Post Facto Clause by
applying WIS. STAT. § 302.11(1g)(b)(2) (1993–94) and WIS. ADMIN. CODE PAC § 1.02 (1993) to
his parole denial. Although the commissioners’ ruling cites neither provision, Brown
appears to believe that their consideration of his institutional records and his refusal to
complete treatment programs shows that they implicitly applied these provisions. But a
review of a prisoner’s records and participation in treatment programs was permitted by
the version of the parole statutes in effect in 1983, when Brown committed his crimes. The
operative version of that statute, WIS. STAT. § 57.06 (1983–84), leaves parole decisions to the
discretion of the parole board and does not prohibit the board from considering a prisoner’s
records in reaching its decision. Further, the parole regulation in effect in 1983, WIS. ADMIN.
CODE HSS § 30.02(1) (1983), states that one purpose of parole consideration is to ensure that
parolees receive the “optimum benefit” of available treatment programs. Brown provided
no evidence that the commissioners applied an ex post facto law to him, and the district
court thus properly granted summary judgment for the commissioners.
Finally, Brown insists that the district court failed to recognize his protected liberty
interest in “good time credits” when dismissing his due process claim and erroneously
dismissed his claim against Rick Raemish, the Secretary of the Department of Corrections.
Neither argument is sufficiently developed with citation to the record or legal authority to
permit meaningful review. See Fed R. App. P. 28(a)(9); Cole v. Comm’r,
637 F.3d 767, 772–73
(7th Cir. 2011).
AFFIRMED.
