Johnny Gibson v. William Pollard

NONPRECEDENTIAL DISPOSITION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 April 14, 2015 *
Decided April 15, 2015
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 14-3140
JOHNNY M. GIBSON, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 14-C-45
WILLIAM POLLARD, et al., William C. Griesbach,
Defendants-Appellees. Chief Judge.
ORDER
Johnny Gibson, a Wisconsin prisoner, appeals from the dismissal of his
civil-rights suit claiming that his right to due process under the Fourteenth Amendment
was violated when he twice was placed in administrative confinement. Because Gibson
received adequate process, we affirm.
*
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 14-3140 Page 2
In early 2000, Gibson began serving a 20-year sentence for first-degree sexual
assault of a child. See WIS. STAT. § 948.02(1). Over the next 12 years, while housed at
Green Bay Correctional Institution and Racine Correctional Institution, he was
disciplined 6 times for engaging in sexual conduct with other inmates. See WIS. ADMIN.
CODE DOC § 303.15 (banning sexual contact and intercourse among inmates regardless
of consent). He was transferred to Waupun Correctional Institution in July 2012 after his
security classification was elevated to maximum based on his latest sex offense and
history of predatory behavior.
After six months at Waupun the correctional program supervisor, Officer B. Greff,
wanted Gibson placed in administrative confinement. See WIS. ADMIN. CODE DOC
§ 308.04. Greff asserted that Gibson’s presence in the general population posed
“a substantial risk to staff, inmates, and institutional integrity.” Greff completed a form
“Recommendation for Administrative Confinement” that details Gibson’s many sex
offenses while incarcerated. A copy of this form was given to Gibson a week before his
appearance in front of the prison’s Administrative Confinement Review Committee.
Gibson disputed being dangerous because, he said, the sexual encounters had been
consensual. After reviewing Gibson’s history of sex offenses, including demanding
sexual favors from inmates after sharing canteen items or assisting with legal work, the
Review Committee issued a written decision finding that administrative confinement
was necessary.
That decision was in March 2013. Gibson’s administrative appeals were denied,
and he remained in administrative confinement until July 2013, when a disciplinary
violation led to a 2-month term in disciplinary segregation. Before that punishment
ended, Officer Greff drafted another recommendation that Gibson be returned to
administrative confinement upon his release from segregation, referring to the same
history of sexual misconduct during Gibson’s tenure in state prison. After receiving this
recommendation, Gibson sought to question the security director, whose concerns about
Gibson had prompted Greff’s recommendations for administrative confinement. That
request was denied. After another hearing attended by Gibson, the Administrative
Confinement Review Committee concluded again in August 2013 that placing Gibson in
the general population would create a security risk. The Review Committee highlighted
statements given by two inmates that Gibson had forced them to engage in sexual acts.
Gibson’s administrative appeals were denied.
Gibson then filed this suit under 42 U.S.C. § 1983. According to Gibson, he was
not given adequate notice of the proposed placements, Officer Greff’s recommendations
No. 14-3140 Page 3
for administrative confinement included false information, he should have been allowed
to call the security director as a witness at the second hearing, and the Review
Committee’s decisions are not supported by sufficient evidence.
The defendants moved to dismiss. They argued that the attachments to Gibson’s
complaint—Officer Greff’s recommendations for administrative confinement, the
Review Committee’s decisions, and conduct reports detailing Gibson’s sexual
misconduct—establish that the prison provided Gibson constitutionally adequate
process. The district judge, although assuming that Gibson had a liberty interest in
avoiding placement in administrative confinement, agreed with the defendants that
Gibson had pleaded himself out of court. The judge noted that Officer Greff’s two
written recommendations had alerted Gibson to the reasons for the proposed
placements—that his presence in the general population presented a substantial risk to
others and institutional security, see WIS. ADMIN. CODE DOC § 308.04(2)—and that
Gibson had an opportunity to present a defense at the hearings. No more process was
due a prisoner facing transfer to more-restrictive conditions, the judge concluded, and so
Gibson’s complaint does not state a claim for relief.
On appeal Gibson maintains that he was denied adequate process. In his view,
because new incidents of sexual misconduct had not been substantiated since his
transfer to Waupun, Officer Greff’s written recommendations did not adequately notify
him of a reason for the proposed placements in administrative confinement at that
institution, and the Review Committee had lacked sufficient evidence that he posed a
danger to the general prison population.
We first note two hurdles for Gibson. One, he has not plausibly alleged that he
has a liberty interest in avoiding administrative confinement. That inquiry requires
knowing the duration and conditions of Gibson’s administrative confinement—details
he has not divulged. See Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013). And
second, Gibson already was in administrative confinement when he was sent to
disciplinary segregation for two months, so his return to administrative confinement in
August 2013 could not have raised additional due-process concerns. See Lagerstrom v.
Kingston, 463 F.3d 621, 623 (7th Cir. 2006). Thus, only the initial placement in March 2013
is relevant.
Yet even assuming that Gibson had a protected liberty interest in both March and
August 2013, the Fourteenth Amendment does not require the amount of process that
Gibson assumes. In Westefer v. Neal, 682 F.3d 679, 684–86 (7th Cir. 2012), we clarified that
No. 14-3140 Page 4
an inmate, like Gibson, facing transfer to a more-restrictive prison setting is not entitled
to the same level of process as an inmate facing a longer prison stay through the loss of
good time. Inmates in the latter class are entitled to the safeguards set forth in Wolff v.
McDonnell, 418 U.S. 539 (1974); for inmates in Gibson’s situation, however, only
informal, nonadversarial procedures are necessary. See Wilkinson v. Austin, 545 U.S. 209,
228–29 (2005); Westefer v. Snyder, 422 F.3d 570, 590 (7th Cir. 2005). So Waupun only was
constitutionally required to give Gibson notice of its rationale for placing him in
administrative confinement and an opportunity to present his views, see Westefer, 682
F.3d at 684–85; Bistrian v. Levi, 696 F.3d 352, 375 (3d Cir. 2012); Stevenson v. Carroll, 495
F.3d 62, 70 (3d Cir. 2007); Senty-Haugen v. Goodno, 462 F.3d 876, 888 (8th Cir. 2006), both
of which the prison supplied. Each time Gibson was placed in administrative
confinement, the prison—at least a week before his hearing—notified him about the
pending recommendation and recounted in great detail his history of sexual misconduct.
He was present at each hearing and allowed to rebut the recommendation. And he did
not have a constitutional right to call witnesses. See Westefer, 682 F.3d at 679. The prison
did all that it was required to do and then some.
Finally, before this appeal Gibson had incurred two strikes under the Prison
Litigation Reform Act, so with this latest dismissal and appeal he has struck out. Now he
must prepay all filing fees for his future civil litigation unless he demonstrates at the
time of the suit's commencement that he “is under imminent danger of serious physical
injury.” See 28 U.S.C. § 1915(g); Kalinowski v. Bond, 358 F.3d 978, 979 (7th Cir. 2004).
AFFIRMED.