Johnson, Ronnie v. v. Evinger, Brian

In the
United States Court of Appeals
For the Seventh Circuit
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No. 06-2103
RONNIE JOHNSON,
Plaintiff-Appellant,
v.
BRIAN EVINGER, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Central District of Illinois.
No. 04 C 2278—Harold A. Baker, Judge.
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SUBMITTED JANUARY 18, 2008—DECIDED FEBRUARY 6, 2008
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Before POSNER, FLAUM, and EVANS, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, an Illinois state
prisoner, brought this suit under 42 U.S.C. § 1983 against
several correctional officials, claiming that they retali-
ated against him because he tried to obtain evidence to
defend himself against a disciplinary charge. The district
court granted the defendants’ motion to dismiss the
complaint for failure to state a claim.
The complaint alleges the following: Defendant Evinger
confiscated a “hot pot” that he found in Johnson’s cell,
and charged him with possession of unauthorized prop-
2 No. 06-2103
erty. (The term “hot pot” has various meanings, but in the
present setting appears to refer to a vessel for heating
food or liquids, perhaps a three-dimensional version of a
hot plate.) The day after the charge was lodged, the
plaintiff submitted a questionnaire to Evinger for the
“expressed purpose” of obtaining information that the
plaintiff needed in order to defend himself against the
charge. Evinger became “infuriated,” placed Johnson
in segregation, refused to respond to the questionnaire,
confiscated it, and filed a second disciplinary charge
against Johnson, alleging intimidation, possession of
dangerous written materials, insolence, and possession of
unauthorized property. The disciplinary committee
adjudged Johnson guilty of intimidation and insolence
and by way of punishment ordered that he be placed in
segregation for 15 days and that certain privileges be
denied him. Johnson appealed to the prison’s Administra-
tive Review Board, which reversed and ordered the
disciplinary conviction expunged, though by this time
he had served some or all of the time in segregation that
the first-line disciplinary committee had ordered.
The district court understood the plaintiff to be claiming
that Evinger had retaliated against him for exercising
his First Amendment right to complain about prison
conditions, and pointed out that the questionnaire
was not a complaint but rather a quest for information
for use in the plaintiff’s “hot pot” disciplinary proceed-
ing. We understand the plaintiff’s claim differently, as a
claim that he was retaliated against for attempting to
gather evidence that he needed in order to be able to
defend himself against the disciplinary charge. Due process
has been interpreted to give a prisoner a limited right
to present evidence at a disciplinary hearing. Wolff v.
No. 06-2103 3
McDonnell, 418 U.S. 539, 566 (1974); Lagerstrom v. Kingston,
463 F.3d 621, 624 (7th Cir. 2004); Grossman v. Bruce, 447 F.3d
801, 805 (10th Cir. 2006); Sims v. Artuz, 230 F.3d 14, 24 (2d
Cir. 2000). The Illinois prison system provides, however,
a procedure, the adequacy of which the plaintiff does not
challenge, for obtaining evidence: “Prior to the hearing,
the offender may request that witnesses be interviewed.
The request shall be in writing on the space provided in
the disciplinary report and shall include an explanation
of what the witnesses would state. If the offender fails
to make the request in a timely manner before the hear-
ing, the individual may be granted a continuance for
good cause shown.” Ill. Admin. Code, tit. 20, § 504.80(f)(2).
“The offender does not have the right to confront or cross-
examine any witnesses but may submit questions for
witnesses to the [disciplinary] Committee prior to the
hearing. These questions shall be asked by the Com-
mittee or its Hearing Investigator unless found to be
cumulative, irrelevant, or a threat to the safety of individu-
als or the security of the facility.” Id., § 504.80(g)(2). This
procedure was explained to Johnson on the disciplinary
report that he signed and attached to his complaint, and
as we said he does not contend that the procedure is
constitutionally (or otherwise) inadequate. By failing
to comply with the authorized procedure, he forfeited
his claim to have been retaliated against for attempting
to present evidence to the disciplinary committee. The
conduct for which he was punished was not protected
by the due process clause.
AFFIRMED.
4 No. 06-2103
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-6-08