Judges: PerCuriam
Filed: May 23, 2014
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 May 23, 2014* Decided May 23, 2014 Before ANN CLAIRE WILLIAMS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 13-2459 ANDREW M. OBRIECHT, Appeal from the United States Plaintiff-Appellant, District Court for the Eastern District of Wisconsin. v. No. 10-CV-221-JPS RICK RAEMISCH, et al., D
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 May 23, 2014* Decided May 23, 2014 Before ANN CLAIRE WILLIAMS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 13-2459 ANDREW M. OBRIECHT, Appeal from the United States Plaintiff-Appellant, District Court for the Eastern District of Wisconsin. v. No. 10-CV-221-JPS RICK RAEMISCH, et al., De..
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NONPRECEDENTIAL DISPOSITION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 May 23, 2014*
Decided May 23, 2014
Before
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐2459
ANDREW M. OBRIECHT, Appeal from the United States
Plaintiff‐Appellant, District Court for the Eastern District
of Wisconsin.
v.
No. 10‐CV‐221‐JPS
RICK RAEMISCH, et al.,
Defendants‐Appellees. J.P. Stadtmueller,
Judge.
O R D E R
Andrew Obriecht, a Wisconsin inmate, was disciplined for misconduct. He filed
this action under 42 U.S.C. § 1983 claiming that he was disciplined without due process
and in retaliation for submitting grievances about prison conditions. The district court
granted summary judgment for the defendants. We affirm that decision.
*
After examining the parties’ 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)(C).
No. 13‐2459 Page 2
Obriecht was convicted of six counts of sexual assault for, among other things,
barging in on a high school girl while she was in a bathroom stall and touching her leg,
and for entering a high school girls’ locker room. While in prison he obtained the names
and addresses of several recent high school graduates from the community and wrote
them letters. The young women and their families were distressed by the unsolicited
letters. Several complained and requested that Obriecht not contact them.
When a prison employee discovered that Obriecht had written the letters while
working at his job in the library, the employee drafted a disciplinary report accusing
Obriecht of using a library typewriter without authorization while on the job, misusing
the mail to send intimidating letters, and possessing contraband (a memo addressed
only to prison personnel). In June 2007 Obriecht received a copy of the disciplinary
report, was advised of his right to a disciplinary hearing, and was assigned a staff
member to serve as his advocate. At the hearing he did not deny writing the young
women or using library time and equipment. The hearing officer found Obriecht guilty
and imposed 180 days of disciplinary segregation as punishment (though he served
only 78 days before being transferred to a higher‐security facility). Obriecht also lost his
job. His administrative appeals were denied, and later that year he was denied parole.
In May 2011 Obriecht filed a second amended complaint naming more than a
dozen defendants, including two members of the state’s parole commission and
everyone connected with the disciplinary process and its aftermath. Essentially he
claimed—relying on several overlapping theories—that the defendants had fabricated
the disciplinary charge, punished him with segregation, taken away his job, transferred
him to a higher‐security prison, and denied him parole, all in retaliation for three
grievances about prison conditions he had submitted in March and May 2007. The
submission of those grievances, he asserted, was protected by the First Amendment.
Obriecht had asked the district court to enlist counsel when he filed his original
complaint, but the court denied that motion without prejudice after concluding that the
complaint must be amended to comply with Federal Rule of Civil Procedure 8(a).
Obriecht renewed his request for counsel the following month when he filed his first
amended complaint. But Obriecht’s new complaint had grown longer and now included
more than 40 defendants instead of the original 7. Again the court concluded that the
complaint must be amended and denied without prejudice Obriecht’s request for
counsel. The court explained that a decision about the need for counsel would be
premature until Obriecht had filed a “focused complaint that is short and plain rather
than an encyclopedia of all the various, but unrelated, wrongs he has suffered.”
No. 13‐2459 Page 3
Obriecht then filed his second amended complaint, but he did not request counsel again
after the court screened that complaint and allowed it to proceed.
The case proceeded against 13 defendants. (The defendants and the district judge
count 17, but Obriecht’s second amended complaint names only 14 defendants, one of
whom the district court dismissed at screening. Whether the number is 13 or 17 makes
no difference on appeal.) In granting summary judgment for the defendants, the district
court reasoned that all but four of them had submitted undisputed evidence that they
knew nothing about Obriecht’s three grievances when they participated in the events he
characterizes as retaliatory. And the four defendants who did know about the
grievances, the court continued, were not involved directly in lodging or investigating
the disciplinary report, conducting the disciplinary hearing, taking away Obriecht’s job,
transferring him to a more‐secure facility, or denying him parole. Thus, the court noted,
none of them had participated in any adverse action that could lead to liability. In
addition, the court concluded, Obriecht could not establish that he was deprived of due
process because he did not offer sufficient evidence of a protected liberty interest.
On appeal Obriecht first challenges the district court’s determination that, except
for a few defendants, he cannot even establish knowledge of the grievances underlying
his theory of retaliation. This knowledge, Obriecht maintains, is shown by the affidavits
he submitted from several inmates who attest that information about inmate grievances
spreads rapidly among prison staff. A genuine issue of material fact exists, he argues,
because prison staff could have known that he submitted the grievances. He also argues
that the defendants’ affidavits denying knowledge should be discounted because those
denials are “self serving.”
The district court correctly ruled for these defendants on the retaliation claim.
Obriecht engaged in protected First Amendment activity when he submitted his three
grievances about prison conditions. See Gomez v. Randle, 680 F.3d 859, 866 (7th Cir.
2012); Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir. 2010). But as the district court
explained, he could not prevail on a retaliation claim without evidence that a particular
defendant knew about those grievances. See Hobbs v. City of Chicago, 573 F.3d 454, 463
(7th Cir. 2009); Tomanovich v. City of Indianapolis, 457 F.3d 656, 668 (7th Cir. 2006).
Obriecht offered inmates’ opinions that word about grievances travels quickly
through the prison, but none of his inmate witnesses has personal knowledge that any
of the defendants actually knew about the grievances. See Payne v. Pauley, 337 F.3d 767,
772 (7th Cir. 2003) (noting that affidavits must be based on personal knowledge, not
No. 13‐2459 Page 4
speculation or rumors); Drake v. Minnesota Min. & Mfg. Co., 134 F.3d 878, 887 (7th Cir.
1998) (noting that affidavits must be based on specific facts). In contrast, the defendants
submitted affidavits denying knowledge about the grievances. Those affidavits,
although “self serving” as many affidavits are, rest on personal knowledge and thus
were admissible at summary judgment. See Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504
(7th Cir. 2004).
Obriecht also challenges the grant of summary judgment in favor of the four
remaining defendants who did know about the grievances. As the district court said,
these four administrators were not involved directly in sanctioning Obriecht, but each of
them did participate in ruling against him when he used the administrative process to
appeal the discipline. In Obriecht’s view, these defendants were authorized to address
his accusation that he was being disciplined unfairly and thus retaliated against him by
not correcting perceived errors at his disciplinary hearing. The timing of their adverse
decisions, he insists, combined with their knowledge of his three grievances was
enough to shift the burden to them to show that they would have ruled the same way
had he not filed those grievances.
At summary judgment, however, Obriecht offered no direct evidence that any of
the four harbored a retaliatory motive, and instead he inferred retaliation entirely from
the “suspicious timing” of their actions. But these defendants were responsible for
processing Obriecht’s administrative appeal from the finding of misconduct and
resulting punishment, so there was nothing at all suspicious about the timing of their
actions vis‐a‐vis his three grievances about prison conditions. Their involvement, as
well as the timing of their decisions, followed from Obriecht’s choice to seek review of
the discipline. See WIS. ADMIN. CODE §§ DOC 303.76(7), 310.08(3), 310.11–310.14; State
ex rel. Grzelak v. Bertrand, 665 N.W.2d 244, 253 (Wis. 2003). That they did not reverse the
hearing officer’s verdict does not make them responsible for defects—even
unconstitutional defects—in the underlying proceedings. See McGee v. Adams, 721 F.3d
474, 485 (7th Cir. 2013); George v. Smith, 507 F.3d 605, 609–10 (7th Cir. 2007).
Obriecht next argues that the district court mistakenly concluded that, as far as
the record shows, he was not deprived of a protected interest and, thus, could not get
beyond summary judgment on a claim for denial of procedural due process. It was
enough, says Obriecht, that he spent time in segregation, lost his job in the prison
library, and was turned down for parole. (On appeal Obriecht says nothing about his
transfer to a higher‐security prison, and thus he has abandoned his contention that the
No. 13‐2459 Page 5
transfer implicated a liberty interest. See United States v. Bryant, No. 13‐1578, 2014 WL
1494102, at *7 (7th Cir. Apr. 17, 2014).)
As the district court correctly observed, Obriecht cannot prove a violation of
procedural due process without evidence that he was deprived of a protected liberty or
property interest, and that the procedures afforded him were deficient. See Thompson v.
Veach, 501 F.3d 832, 835 (7th Cir. 2007); Lekas v. Briley, 405 F.3d 602, 607 (7th Cir. 2005).
Obriecht did not have a protected interest in prison employment. See Hoskins v. Lenear,
395 F.3d 372, 374–75 (7th Cir. 2005); DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir. 2000).
Neither did he have a liberty interest in parole because he was not more than two‐thirds
of the way through his sentence, see Grennier v. Frank, 453 F.3d 442, 444 (7th Cir. 2006),
so his parole argument is a nonstarter.
As for his argument about segregation, Obriecht has asserted a liberty interest
based on the length of time he spent in segregation and the conditions of his
confinement. See Wilkinson v. Austin, 545 U.S. 209, 224 (2005); Marion v. Columbia Corr.
Inst., 559 F.3d 693, 697–98 (7th Cir. 2009). The record does not fully illuminate, and the
district court did not address, whether Obriecht’s disciplinary hearing was procedurally
sound. See Lagerstrom v. Kingston, 463 F.3d 621, 625 (7th Cir. 2006). We thus bypass the
question and assess whether the evidence at summary judgment could sustain a finding
that Obriecht’s time in segregation resulted in “atypical and significant hardship” as
compared to prison life generally. See Sandin v. Conner, 515 U.S. 472, 484 (1995);
see also Wilkinson, 545 U.S. at 223. Although Obriecht submitted a declaration recounting
deplorable conditions (in particular having to sleep on a mattress placed directly on the
wet floor), he was released from segregation after only 78 days. A confinement of that
length does not implicate a liberty interest. See Marion, 559 F.3d at 697–98; Townsend v.
Fuchs, 522 F.3d 765, 772 (7th Cir. 2008); Lekas, 405 F.3d at 612. (Obriecht might have
challenged the conditions in segregation under the Eighth Amendment, just as inmates
in the general population may challenge the conditions of their confinement.
See Townsend, 522 F.3d at 772. We do not address that question, however, because
Obriecht has chosen to frame this as a due process claim, and he did not submit
evidence establishing that any of the defendants knew about or had control over the
conditions in segregation.)
We last turn to Obriecht’s argument that the district court abused its discretion
by not recruiting a lawyer for him. Obriecht had no right to appointed counsel for this
civil suit, see Pruitt v. Mote, 503 F.3d 647, 657 (7th Cir. 2009) (en banc), and the decision
whether to enlist counsel was committed to the district court’s discretion, see Gruenberg
No. 13‐2459 Page 6
v. Gempeler, 697 F.3d 573, 581 (7th Cir. 2012). The district judge aptly noted in denying
Obriecht’s two requests for counsel that a decision on that question should wait until
the plaintiff had amended his complaint satisfactorily. Both rulings were entered
without prejudice, meaning that Obriecht could ask again after he had trimmed his
complaint to satisfy Rule 8(a). After his second amended complaint passed screening,
however, Obriecht did not renew his request for counsel. And neither did he renew his
request for an attorney as the case proceeded through discovery and to summary
judgment. And because he did not, he cannot claim error now.
We have reviewed Obriecht’s remaining arguments, and none has merit.
Accordingly, we AFFIRM district court’s judgment.