Stanton, Thomas D. v. Pausma, Phil

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted March 28, 2006*
Decided March 29, 2006

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 05-2794

THOMAS D. STANTON, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin

v. No. 05-C-053-S

PHIL PAUSMA, et al., John C. Shabaz,
Defendants-Appellees. Judge.

ORDER

Thomas Stanton, a Wisconsin prisoner, appeals from the district court’s grant
of summary judgment in favor of prison officials, whom he accused of retaliating
against him after he reported witnessing an officer attack an inmate. We affirm.

In December 2002, Stanton, while housed at the Oregon Correctional Center,
reported to the superintendent that he saw correctional officer Phil Pausma shout
at, grab, and shake inmate Brian Burkheimer. Stanton also reported that Pausma

*
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. 05-2794 Page 2

had previously abused inmates Tim Hunt and Sebastian Bootz. Supervising officer
Harlan Buwalda investigated Stanton’s allegations. Hunt and Bootz denied that
Pausma had abused them, and Pausma denied having physical contact with
Stanton. Buwalda learned that two confidential informants overheard Stanton and
Burkheimer scheming ways to get Pausma disciplined or fired. Ultimately
Buwulda found no evidence to support Stanton’s allegations, and issued conduct
reports to both Stanton and Burkheimer for lying about staff in violation of Wis.
Admin. Code § 303.271.

Stanton made several requests in preparation for his disciplinary hearing.
He first requested that nine prisoners be allowed to testify on his behalf. Captain
Todd Johnson reviewed the request but permitted Stanton to call only
two—Burkheimer and Bootz—after concluding that Stanton did not show good
cause to call the others as required under Wis. Admin. Code § 303.81(1). Stanton
also requested that Jeff Karns, in his role as staff advocate, retrieve property and
information from Buwalda, monitor inmate phone calls, and obtain polygraphic
tests of those involved in the abuse he reported. Karns did not obtain these
materials because he believed he was neither responsible nor authorized to perform
these tasks on Stanton’s behalf.

By the time of the hearing, Bootz had already been transferred to another
facility, but he provided a statement denying that he saw any altercation between
Pausma and Burkheimer. Burkheimer was not permitted to attend the hearing due
to the lack of available staff, but he did provide a written statement in which he
corroborated Stanton’s allegations. John Richards, the presiding officer at the
disciplinary hearing, considered testimony from Buwalda, Karns, and Stanton, and
written statements from Stanton, Bootz, Burkheimer, and the confidential
informants, and concluded that Stanton fabricated the assault claim. Richards
imposed 8 days’ adjustment segregation and 180 days’ program segregation.

Stanton appealed and a new hearing was ordered after Secretary Cindy
O’Donnell determined that Burkheimer should have been made available at the
hearing. But by June 2003 when Stanton’s new hearing took place, Burkheimer
had been released from custody. Anthony Ashworth, the new presiding officer,
considered all the information presented at the previous hearing in addition to
written supplemental testimony from Burkheimer, and agreed that Stanton was
guilty of lying about staff. Based on his assessment of the seriousness of the
charge, Ashworth sentenced Stanton to an additional 90 days in program
segregation.

Stanton appealed again, and the warden reduced the punishment to the
original 180 days’ program segregation. Secretary O’Donnell then ordered the
No. 05-2794 Page 3

punishment expunged from Stanton’s record because Burkheimer was never made
available at either disciplinary hearing as a witness.

Less than six months after final resolution of Stanton’s disciplinary appeals,
Lynn Nicolai, an offender classification specialist, denied Stanton a transfer to a
minimum security facility based on her evaluation of Stanton’s attitude and her
mistaken belief that he had six minor conduct reports. Stanton successfully
appealed this review by proving that he did not have six prior conduct reports. But
because Stanton had “special placement needs,” the minimum security prison
refused his transfer.

Stanton filed suit against 14 corrections officials under 42 U.S.C. § 1983,
alleging that he was retaliated against during his disciplinary proceedings for
reporting Pausma for the alleged assault. He also alleged that the administration
of the disciplinary proceedings violated due process because the defendants
suppressed exculpatory evidence and lied at his hearings.

The district court screened Stanton’s complaint under 28 U.S.C. § 1915A and
dismissed seven defendants, all Wisconsin DOC administrators responsible for
reviewing inmate complaints and prisoner discipline, who were not involved in
Stanton’s investigation or disciplinary hearings. The court also dismissed his “due
process” claims, reasoning on the basis of Zinermon v. Burch, 439 U.S. 113 (1990),
that adequate post-deprivation remedies were available, and in fact successful
because his conduct report was eventually expunged. The court, however,
permitted Stanton to proceed on his retaliation claims against Pausma, Buwalda,
Richards, Johnson, Ashworth, Karns, and Nicolai. The court subsequently denied
Stanton’s request for appointed counsel.

The district court then granted the remaining defendants’ motion for
summary judgment. First the district court concluded that Stanton submitted no
evidence “from which a jury could infer that [the defendants’] motives were
retaliatory.” (R. 44 at 7.) Further, citing Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 286 (1977), the court concluded that Stanton failed to show
that the disciplinary proceedings conducted by the defendants would not have
occurred without retaliatory motive.

On appeal, Stanton first argues that the district court erred when it screened
his complaint and dismissed his “due process” claims. Stanton’s argument is
difficult to discern, but he seems to suggest that his post-deprivation remedy was
inadequate because his administrative claim was resolved without meaningfully
addressing the due process violations that triggered his lawsuit.
No. 05-2794 Page 4

To state a procedural due process claim, a prisoner must allege that the state
deprived him of a constitutionally protected liberty interest. Lekas v. Briley, 405
F.3d 602, 607 (7th Cir. 2005). But prisoners have no liberty interest in remaining
in the general prison population. See Sandin v. Conner, 515 U.S. 472, 486 (1995);
Lekas, 405 F.3d at 607. Here Stanton’s punishment—8 days in adjustment
segregation and 180 days in program segregation—did not present the sort of
“atypical, significant deprivation” in which the state might create a liberty interest.
See Sandin, 515 U.S. at 486. Thus the district court properly dismissed his due
process claims.

Next Stanton argues that the district court improperly dismissed the seven
defendants from his suit. He contends that under Smith v. Rowe, 761 F.2d 360, 369
(7th Cir. 1985), he should have been permitted to proceed against these individuals
on a “failure to act” or “indirect participation” theory of liability, because these
individuals violated their duty to correct obvious due process violations. But as
noted above, Stanton cannot state a due process claim because the punishment he
received did not constitute a deprivation that implicated a protected liberty interest.
And Stanton did not allege that any of these seven individuals participated directly
in the disciplinary decisions that formed the basis for his retaliation claims. See
Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000).

Stanton also challenges the district court’s denial of his motion for appointed
counsel, a ruling that we review for abuse of discretion. See Greeno v. Daley, 414
F.3d 645, 658 (7th Cir. 2005). Stanton argues that he needed the aid of appointed
counsel because he alone could not locate and interview witnesses, find an expert to
conduct polygraph exams to resolve “conflicting testimony,” obtain legal materials,
and navigate through the legal complexity of his claims. As the district court found,
however, the actual legal issues in this case are not complex, and furthermore
Stanton’s comprehensive pleadings and discovery requests demonstrate both a
familiarity and understanding of the issues involved in this case. The district court
did not abuse its discretion in denying Stanton’s request for counsel. Zarnes v.
Rhodes, 64 F.3d 285, 289 (7th Cir. 1995).

Finally Stanton argues that the district court erred by granting summary
judgment for the defendants. He contends that the court disregarded three
significant pieces of evidence: (1) statements from two inmates, Norton and Bentle,
purportedly vouching for Stanton’s contention that Pausma beat up Burkheimer, (2)
Burkheimer’s written statements presented at Stanton’s disciplinary hearings, and
(3) Stanton’s own complaint. He contends all are evidence supporting his
allegations against Pausma, proving that he did not lie about the abuse he
witnessed.
No. 05-2794 Page 5

To survive summary judgment, Stanton had the burden of showing that he
could prove by a preponderance of the evidence that his allegations of Pausma’s
abusive treatment of prisoners motivated the prison officials’ retaliatory action.
Spiegla v. Hull, 371 F.3d 928, 942 (7th Cir. 2004). He need not show but-for
causation; he need show only that his speech was a “motivating factor” in the
retaliation. Id.

Here the district court properly found that Stanton failed to present
sufficient evidence to show that any prison official disciplined him with a retaliatory
motive. Stanton points to Norton’s statement relating what other prisoners had
told him about Pausma’s abuse of Burkheimer, but this statement was inadmissible
because it was hearsay. Smith v. Dunn, 368 F.3d 705, 709 (7th Cir. 2004). And
Bentle’s statement was irrelevant because it was not submitted to prison officials
until August 2003, after Stanton’s second disciplinary hearing. This late
submission was never considered by prison officials, and thus could not have been
withheld from Stanton out of retaliation. Stanton next points to Burkheimer’s
statements and his own complaint as evidence that they both told the truth about
Pausma’s abuse, and that the defendants must have punished him out of
retaliation. Yet a prison investigation and two disciplinary hearings uncovered no
evidence to support Stanton’s accusations against Pausma and both men were
punished for lying. Burkheimer’s and Stanton’s assertions do not identify specific
facts showing evidence of retaliatory intent and alone are insufficient to defeat
summary judgment. See Roger Whitmore’s Auto Servs., Inc. v. Lake County, Ill., 424
F.3d 659, 669 (7th Cir. 2005); Filippo v. N. Ind. Pub. Serv. Corp., Inc., 141 F.3d 744,
750 (7th Cir. 1998).

AFFIRMED