Riggins, Cortez v. Walter, Andrew

In the
United States Court of Appeals
For the Seventh Circuit
No. 93-3124
CORTEZ RIGGINS,
Plaintiff-Appellant,
v.
ANDREW WALTER, RUSSELL TICER,
T. THOMAS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 90 C 3162--Gerald B. Cohn, Magistrate Judge.
Submitted January 5, 1995/*--Decided May 5, 1995
Before BAUER, RIPPLE and ROVNER, Circuit
Judges.
PER CURIAM. Cortez Riggins, an inmate
formerly at Menard Correctional Center,
appeals the judgment in favor of the
defendants, who are prison officials, in
his suit filed pursuant to 42 U.S.C. sec.
1983 for violations of the Fifth, Eighth
and Fourteenth Amendments. After an
administrative proceeding, the prison’s
Adjustment Committee found that Riggins
had violated 20 Ill. Admin. Code sec. 504
Table A Nos. 601 ("Aiding and Abetting,
Attempt, Solicitation or Conspiracy") and
203 ("Drugs and Drug Paraphernalia").
Riggins claims that the magistrate judge
erred by: (1) dismissing his due process
claims concerning his initial segregation
for failure to state a claim, (2)
granting summary judgment on his Eighth
Amendment claim, (3) denying his motion
for judgment on the pleadings as
untimely, (4) rejecting two more
procedural due process claims after the
bench trial and (5) failing entirely to
address his claim that he was punished in
retaliation for the exercise of his Fifth
Amendment rights. We affirm.
On September 16, 1989, Acie McLaurin was
found with a balloon filled with drugs in
his mouth after associating with Riggins
and his family on visitation day.
McLaurin told Andrew Walter, a
correctional officer, that Riggins had
his visitors bring in the drugs. Mrs.
Gray, McLaurin’s mother, told Walter that
Riggins had approached her son, that her
son went to join Riggins and his family,
and that he had abruptly terminated their
visit after returning from the group with
something in his mouth. Riggins was
placed in segregation and subsequently
received a copy of Walter’s internal
disciplinary report, which referred to
McLaurin and his mother only as
confidential sources. Mildred DeWitt, a
hearing investigator for the Adjustment
Committee, later filed a hearing
investigator’s report.
On September 20, 1989, the Adjustment
Committee convened and then granted
Riggins a continuance so that he could
obtain McLaurin as a witness. On October
2, 1989, the committee, which was now
made up of Theodore Thomas, Larry Phipps
and chairman Russell Ticer, reconvened.
Riggins refused to take a polygraph in
response to Ticer’s request. The
committee found that Riggins had violated
the regulations, and he received ninety
days loss of good time credit, ninety
days placement in "C" grade and ninety
days segregation. However, he only served
two additional weeks of segregation due
to crowding. Riggins subsequently filed a
grievance concerning these proceedings,
which was dismissed. He then filed this
suit in the district court, and the
parties agreed to a trial by a magistrate
judge pursuant to 28 U.S.C. sec.
636(c)(1).
Riggins appeals the dismissal of two of
his claims under Federal Rule of Civil
Procedure 12(b)(6). First, Riggins claims
that Walter violated his due process
rights by improperly placing him in
segregation without a predeprivation
hearing. Riggins’ amended complaint
states that Walter "punished the
plaintiff by placing him . . . into
segregation." (R. at 4.) However, one of
the exhibits that he submitted to support
his claim states that "I was put in
segregation under investigative status."
See Schnell v. City of Chicago, 407 F.2d
1084, 1085 (7th Cir. 1969) (holding that
under Fed. R. Civ. P. 10(c), "affidavits
and exhibits attached to the complaint
are a part thereof for all purposes.").
Temporary confinement pursuant to 20 Ill.
Admin. Code sec. 504.40, which permits
the shift supervisor to place the
prisoner "in investigative status or in
temporary confinement pending a
disciplinary hearing," constitutes
administrative, not punitive detention.
Thus, the magistrate judge properly
dismissed the claim against Walter
because even if sec. 504.40 did create
aprotectible interest, which it does not,
Woods v. Thieret, 903 F.2d 1080, 1083
(7th Cir. 1990), the
postdeprivationhearing sufficed to meet
the demands of due process, Gilbert v.
Frazier, 931 F.2d 1581, 1582 (7th Cir.
1991) (dicta)./1 Second, Riggins also
claims that the magistrate judge erred by
dismissing DeWitt from the suit. However,
Riggins’ amended complaint makes no
reference to DeWitt in relation to any
constitutional violation./2 Thus, the
magistrate judge properly dismissed the
claims against her.
Riggins claims that the magistrate judge
erred by granting summary judgment in
favor of Ticer, Thomas, Phipps and
Walter/3 on Riggins’ Eighth Amendment
claim concerning the conditions of his
segregation unit cell. The defendants
supported their motion for summary
judgment with a deposition of Riggins, in
which he admitted that, to his knowledge,
none of them worked in the segregation
wing. In his response to the motion for
summary judgment, Riggins failed to
generate a factual dispute concerning
their knowledge of the conditions with
any affidavits or evidence of his own
with respect to that point. Tobey v.
EXTEL/ JWP, Inc., 985 F.2d 330, 333 (7th
Cir. 1993) (holding that mere denials are
not sufficient to create factual
controversy in the face of motion
supported by evidentiary materials).
Instead, he based his claim on the fact
that their abuse of the system had
resulted in his placement in that cell.
Although a claim under the Eighth
Amendment may be based on a deprivation
that occurs at the prison official’s
direction or with his or her knowledge or
consent, Crowder v. Lash, 687 F.2d 996,
1006 (7th Cir. 1982), Riggins has failed
to link these defendants to the alleged
constitutional deprivation, which
involves the conditions of the cell and
not the institutional process that placed
him in it. Even construing the facts
before the court in a light most
favorable to Riggins, the record contains
no evidence that these defendants acted
with "deliberate indifference" toward or
even knew of the conditions of the cell.
Del Raine v. Williford, 32 F.3d 1024,
1038 (7th Cir. 1994) (quoting Jackson v.
Duckworth, 780 F.2d 645, 653 (7th Cir.
1985) (citation omitted)) ("The minimum
intent required is "’actual knowledge of
impending harm easily preventable.’").
Thus, the magistrate judge properly
granted summary judgment.
More than twenty-six months after the
close of pleadings, twenty months after
the dispositive motions deadline and two
weeks after the final pretrial order,
Riggins moved for judgment on the
pleadings under Federal Rule of
CivilProcedure 12(c)./4 A flurry of
motions ensued. The magistrate judge
dismissed all of the motions as untimely.
Under Fed. R. Civ. P. 16(b), a magistrate
judge, when authorized by district court
rule, may enter a scheduling order that
limits the time to file motions./5 Rule
16(b) states that "[a] schedule shall not
be modified except upon a showing of good
cause and by leave of the . . .
magistrate judge." We review the denial
of the Rule 12(c) motion that was filed
after the motions deadline set in the
scheduling order for an abuse of
discretion. See Jones v. Coleman Co.,
Inc., 39 F.3d 749, 753-54 (7th Cir. 1994)
(holding that magistrate judge did not
abuse his discretion by permitting
summary judgment motion after deadline
for good cause, despite district court’s
prior denial of motion as untimely under
Rule 16(b)); see also Charles A. Wright &
Arthur R. Miller, Federal Practice and
Procedure sec. 1367 at 514 (1990)
(stating that judge has discretion to
deny Rule 12(c) motion filed after
excessive delay).
Rule 12(c) states that "[a]fter the
pleadings are closed but within such time
as not to delay the trial, any party may
move for judgment on the pleadings." Two
courts have relied on this language to
avoid denying a Rule 12(c) motion as
untimely./6 However, Rule 12(c) does not
restrict the court’s discretion under
Rule 16(b). Just as we have applied Rule
16(b) to a motion pursuant to Rule 56,
which states that the motion may be
brought "at any time" after certain
criteria are met, Fed. R. Civ. P. 56;
Jones, 39 F.3d at 753-54, we now hold
that a Rule 12(c) motion may be brought
after the dispositive motions deadline if
the moving party complies with the
requirements of Rule 16(b) and if it will
not delay trial. See Johnson v. Mammoth
Recreations, Inc., 975 F.2d 604, 607-08
(9th Cir. 1992) (holding that in
reviewing an attempt to amend pleading
after scheduling order deadline, court
must first find good cause for amendment
under Rule 16(b) before considering
propriety of amendment under Fed. R. Civ.
P. 15). Both cases permitting Rule 12(c)
motions on the eve of trial do not
dissuade us from this interpretation.
Both courts referred to changed
circumstances, which they in effect
interpreted as good cause for the delayed
filing./7
In this case, Riggins never filed for
leave to amend the schedule. However,
assuming arguendo that his filing of the
motion may be construed as filing for
leave to modify the schedule, see
Johnson, 975 F.2d at 609 (discussing
split of authority concerning need of
formal motion to amend), he completely
fails to show cause for why the schedule
could not "reasonably be met despite the
diligence of the party seeking the
extension."/8 Fed. R. Civ. P. 16
commentary to the 1983 Amendment. Since
Riggins has failed to offer any reason
why he could not have filed his
motionbefore the deadline, we affirm the
magistrate judge’s denial of the motion.
After the bench trial, the magistrate
judge held that the members of the
Adjustment Committee did not violate due
process because he found "some evidence"
to support their decision./9 Riggins
claims that not enough evidence exists to
comport with due process. "Following a
bench trial, we review the district
court’s factual determinations for clear
error and its legal conclusions de novo."
Market St. Assocs. Ltd. Partnership v.
Frey, 21 F.3d 782, 785 (7th Cir. 1994).
"[T]he relevant question is whether
there is any evidence in the record that
could support the conclusion reached by
the disciplinary board." Superintendent,
Massachusetts Correctional Inst. v. Hill,
472 U.S. 445, 455-56 (1985). Before we
proceed, we note that the magistrate
judge erred by using testimony after the
fact to supplement the administrative
record. Hayes v. Thompson, 637 F.2d 483,
489 (1980) ("It is not adequate to review
the Committee’s guilty finding on the
basis of subsequent testimony."). But see
Ponte v. Real, 471 U.S. 491, 496 (1985)
(effectively overruling Hayes in part on
other grounds by holding that court may
use subsequent testimony to review
refusal of committee to call witnesses).
"Support in the administrative record is
necessary to protect the prisoner from
arbitrary official action," Hayes, 637
F.2d at 488, and we shall therefore
confine our review to the facts in the
administrative record. The Adjustment
Committee Summary states that the
committee based its decision on facts
found in the internal disciplinary report
and the hearing investigator’s report.
However, only the Adjustment Committee
Summary and the disciplinary report
appear in the record before us./10
The disciplinary report, which provided
in part the basis for the committee’s
decision, stated that confidential
sources had informed Walter that Riggins
had his visitors bring in drugs./11
Although McLaurin later recanted his
statement, under some circumstances a
recanted statement made with
corroboration of its reliability may even
suffice to convict a defendant beyond a
reasonable doubt. Ticey v. Peters, 8 F.3d
498, 501 (7th Cir. 1993) (using five
factor test for sufficiency of victim’s
recanted out-of-court statements alone to
uphold rape conviction). We find the
evidence given to the committee by these
confidential sources constitutes "some
evidence," which "obviously ranks below
what would be sufficient in a criminal or
civil trial. . . ." Lenea v. Lane, 882
F.2d 1171, 1175 (7th Cir. 1989). Thus the
disciplinary committee did not violate
Riggins’ procedural due process rights.
Riggins also contends that Walter wrote
a false disciplinary ticket based on the
lies of an inmate who had just been
caught with drugs. However, given that
the adjustment committee decided upon the
basis of "some evidence" after meeting
the procedural requirements of Wolff, 418
U.S. at 564-66, the magistrate judge
properly rejected Riggins’ claim against
Walter, even assuming arguendo that
Walter had written a false disciplinary
ticket based on false evidence. Hanrahan
v. Lane, 747 F.2d 1137, 1141 (7th Cir.
1984).
Riggins claims that the magistrate judge
erred by failing to address his claim
that the Disciplinary Committee punished
him for refusing to take a polygraph,
thereby violating his right against
self-incrimination./12 According to
Riggins, Ticer asked him to take a
polygraph, which he declined because he
felt that he did not have to take one and
because he had not done anything wrong.
With the implied assent of the other
committee members, Ticer then allegedly
verbally abused him and sent him to
segregation because he refused. The
defendants assert that Riggins never
raised a Fifth Amendment claim or
alternatively that the court properly
dismissed it as meritless. As shown by
the complaint and by the second Final
Pretrial Order,/13 Riggins properly
raised this issue before the magistrate
judge, who failed to address this claim
in his final order. However, since this
claim lacks merit as a matter of law, we
need not remand this issue to the
district court.
"[G]overnment cannot penalize assertion
of the constitutional privilege against
compelled self-incrimination by imposing
sanctions to compel testimony which has
not been immunized." Lefkowitz v.
Cunningham, 431 U.S. 801, 806 (1977). The
Supreme Court has said that this
protection applies to the prison
disciplinary hearing context. Baxter v.
Palmigiano, 425 U.S. 308, 318 (1976)
("[I]f inmates are compelled in those
proceedings to furnish testimonial
evidence that might incriminate them in
later criminal proceedings, they must be
offered ’whatever immunity is required to
supplant the privilege’ and may not be
required to ’waive such immunity.’").
However, whatever other infirmities
punishing a general refusal to appear and
testify may or may not have, punishment
alone does not necessarily violate the
Fifth Amendment./14 "In each of the
so-called ’penalty’ cases, the State not
only compelled an individual to appear
and testify, but also sought to induce
him to forgo the Fifth Amendment
privilege by threatening to impose
economic or other sanctions ’capable of
forcing the self-incrimination which the
Amendment forbids.’" Murphy, 465 U.S. at
434 (quoting Lefkowitz v. Cunningham, 431
U.S. 801, 806 (1977)). Although Riggins
is a prisoner rather than an employee,
the State maintains a certain
authoritarian relationship with him that
brings to bear these principles. See
Baxter, 425 U.S. at 316-17 (1976)
(drawing on public employee cases to
establish general principles of right
against self-incrimination in prison
disciplinary setting).
Riggins has not alleged that the
committee members said that he would not
be free to decline to answer particular
questions or that they asked him to
expressly waive his Fifth Amendment
rights. See id. at 437. In Gulden v.
McCorkle, 680 F.2d 1070, 1071, 1075-76
(5th Cir. 1982), cert. denied, 459 U.S.
1206 (1983), the Fifth Circuit held that
the failure to tender an offer of
immunity when compelling an employee to
testify was not the equivalent of an
impermissible compelled waiver of
immunity because Garrity v. New Jersey,
385 U.S. 493 (1967), requires compelled
statements to be excluded. Thus, it would
be the same as if the employee was
granted immunity. In contrast, this
circuit requires that before taking
disciplinary action, a public employer
must inform the employee that any
compelled statements could not be used in
criminal proceedings. United States v.
Devitt, 499 F.2d 135, 141 (7th Cir.
1974), cert. denied, 421 U.S. 975 (1975).
However, the Gulden court also held that
even if such an affirmative grant of
immunity might at some point be required,
it would need to be made "in the context
of a particular proceeding after proper
invocation of the fifth amendment."
Gulden, 680 F.2d at 1076 n.11. Thus the
Gulden court distinguished the Seventh
Circuit penalty cases that required an
affirmative offer of immunity on the
grounds that the public employer had
failed to tender immunity "at the time of
a grand jury appearance . . . or at an
interdepartmental interrogation," id. at
1075 (citations omitted) (emphasis
modified).
In effect, the Gulden court held that
even in light of the relevant Seventh
Circuit precedent, it would be premature
to find that punishing a refusal to
attend a polygraph examination violated
the privilege against self-incrimination
because the witness, upon showing up at
the examination and being asked
potentially incriminating questions,
still had the right to claim the
privilege and to be informed of the
availability of immunity. Therefore, we
hold that, whatever other infirmities the
disciplinary committee’s response might
have had, punishing him for refusing to
participate at all in a polygraph
examination, without more, did not
violate his Fifth Amendment right against
self-incrimination.
AFFIRMED.
FOOTNOTES
/* After preliminary examination of the briefs, the
court notified the parties that it had
tentatively concluded that oral argument would
not be helpful to the court in this case. The
notice provided that any party might file a
"Statement as to Need of Oral Argument." See Fed.
R. App. P. 34(a); Cir. R. 34(f). Appellant has
filed a statement requesting oral argument. Upon
consideration of that statement, the briefs and
the record, the request for oral argument is
denied, and the appeal is submitted on the briefs
and record.
/1 Riggins argues that filing a "disciplinary re-
port" instead of an "investigative disciplinary
report" (also known as an "investigative report")
proves that the confinement was punishment.
However, the decision to file a disciplinary
report or an investigative report merely turns on
the amount of evidence received by the employee.
20 Ill. Admin. Code sec. 504.30(b),(d). Filing a
disciplinary report does not render punitive the
temporary confinement for investigative purposes.
/2 Although the facts alleged in his initial com-
plaint do mention her, it makes no difference
because "an amended pleading supersedes the
original." Hal Roach Studios, Inc. v. Richard
Feiner & Co., 896 F.2d 1542, 1546 (9th Cir.
1989).
/3 Phipps was referred to as "Phillips" by Riggins
in his complaint and by the defendants in their
motion for summary judgment. However, both Rig-
gins in his deposition and the magistrate judge
in his final order defined "Phillips" as the
person who wrote the disciplinary ticket, who was
Walter.
/4 In the conclusion of his brief, Riggins asserts
that he made an oral motion for judgment on the
pleadings prior to the filing of the written
motion. However, he does not state when he made
it, and the record contains no evidence of any
such motion.
/5 In this case, the magistrate judge was authorized
under U.S. Dist. Ct. R. 25(h) (S.D. Ill.) (per-
mitting magistrate judge to rule on all disposi-
tive motions pursuant to agreement under 28
U.S.C. sec. 636(c)).
/6 See General Elec. Co. v. Sargent & Lundy, 916
F.2d 1119, 1131 (6th Cir. 1990) (holding that
trial court erred by denying as untimely a motion
to amend that it construed as Rule 12(c) motion,
because the motion was well-supported and the
non-moving party failed to articulate any preju-
dice caused by the delay of trial); Kishwaukee
Community Health Serv. Ctr. v. Hospital Bldg. &
Equip. Co., 638 F. Supp. 1492, 1494-95 (N.D. Ill.
1986) (rejecting plaintiff’s claim that motion
was untimely, because trial date had been struck
without setting a new date and because it found
no evidence that the defendants filed the motion
for the purpose of delay); Wright & Miller,
supra, sec. 1367 ("If a party indulges in exces-
sive delay before moving under Rule 12(c), the
court may refuse to hear the motion on the ground
that its consideration will delay or interfere
with the commencement of the trial. The determi-
nation of whether the motion constitutes a delay
of trial is within the sound discretion of the
judge.").
/7 General Elec. Co., 916 F.2d at 1130 n.5 (finding
no prejudice because non-moving party "dramati-
cally changed the nature of this suit" nine
months before motion was filed by adding a new
theory more than three years after it filed its
original cross-claim motion); Kishwaukee Communi-
ty Health Serv. Ctr., 638 F. Supp. at 1495
(noting that subject of motion involved "a con-
tinually evolving doctrine, . . . which also
excuses somewhat a delayed filing of the mo-
tion.").
/8 See Sea-Land Services, Inc. v. D.I.C., Inc., 102
F.R.D. 252, 253-54 (S.D. Tex. 1984) (denying
defendant’s Rule 12(c) motion filed seven months
after motion cut-off date because "[t]he Defen-
dant offers the Court no explanation or showing
of ’good cause’ why on the eve of trial the
motion should be considered.").
/9 In the order granting summary judgment in part,
the magistrate judge denied summary judgment on
the due process claims against the Adjustment
Committee and said that, although it agreed that
the defendants had provided the required proce-
dural safeguards, see Wolff v. McDonnell, 418
U.S. 539, 564-66 (1974), "[t]he finding of the
Adjustment Committee is not based upon some
evidence as required by Hill." (R. at 33.) Rig-
gins claims that this statement established the
lack of even "some evidence" as fact. See Fed. R.
Civ. P. 56(d). We disagree. The court did not
specify this fact as not in controversy pursuant
to Rule 56(d). Hartmann v. American News Co., 171
F.2d 581, 584 (7th Cir. 1948), cert. denied, 337
U.S. 907 (1949). Instead, the court only stated
that the Adjustment Committee "may have violated
his constitutional rights." (R. at 33 (emphasis
added).)
/10 Although both final pretrial orders list the
internal affairs report and the hearing investi-
gator’s report as exhibits, neither document was
submitted at trial.
/11 Riggins protests that the committee failed to
demonstrate the reliability of these sources.
Although the review for "some evidence" is limit-
ed to the administrative record, the district
court may make findings of reliability of confi-
dential sources in a subsequent in camera review.
Wagner v. Williford, 804 F.2d 1012, 1016 n.3 (7th
Cir. 1986) (distinguishing use of subsequent tes-
timony to support reliability of sources from use
of such testimony to support decision itself).
After the bench trial in which Riggins had the
opportunity to cross-examine Andrew Walter on the
identity, testimony and demeanor of these former-
ly confidential sources, the magistrate judge
implicitly found the sources sufficiently reli-
able enough to base factual findings on some of
the hearsay statements as facts and to find no
constitutional violation. After reviewing the
trial transcript, we find no abuse of discretion.
Henderson v. United States Parole Comm’n, 13 F.3d
1073, 1078-79 (7th Cir. 1994) (finding no abuse
of discretion where district court implicitly
found in camera information reliable by holding
that, upon reviewing record as a whole, no con-
stitutional violation had occurred), cert. de-
nied, 115 S. Ct. 314 (1994). Furthermore, Rig-
gins’ claim that he was denied the right to
cross-examine the witnesses against him at the
committee hearing lacks merit. Id. at 1078 (hold-
ing that in prison disciplinary proceedings,
"[p]risoners . . . do not possess Sixth Amendment
rights to confront and cross-examine witness-
es.").
/12 Although Riggins claims on appeal that his Fifth
Amendment rights were violated when Walter pun-
ished him with segregation for refusing to take
a polygraph and that the first disciplinary
committee likewise punished him with segregation
for the same reason, he failed to properly raise
these claims before the magistrate judge. "We
consistently hold that arguments not made in the
district court are waived." Lac Du Flambeau Band
of Lake Superior Chippewa Indians v. Stop Treaty
Abuse-Wisconsin, Inc., 991 F.2d 1249, 1258 (7th
Cir. 1993).
/13 The second Final Pretrial Order contains "Con-
tested Issue of Law" No. 4: "Whether defendants
violated plaintiff’s rights when they placed him
back in disciplinary segregation after plaintiff
refused to submit to a polygraph." (R. at 47).
/14 See, e.g., Minnesota v. Murphy, 465 U.S. 420, 435
n.2 (1984) (noting that if the State recognizes
that required answers may not be used in criminal
proceedings, "nothing in the Federal Constitution
would prevent a State from revoking probation for
a refusal to answer that violated an express
condition of probation or from using the proba-
tioner’s silence as ’one of a number of factors
to be considered by the finder of fact’ in
deciding whether other conditions of probation
have been violated."); Lefkowitz, 431 U.S. at 806
("Public employees may constitutionally be dis-
charged for refusing to answer potentially in-
criminating questions concerning their official
duties if they have not been required to surren-
der their constitutional immunity.").