Ronald Levi v. Brian Thomas , 429 F. App'x 611 ( 2011 )

NONPRECEDENTIAL DISPOSITION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 July 20, 2011*
Decided July 20, 2011
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10-3854
RONALD LEVI, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 07-3304
BRIAN THOMAS, Harold A. Baker,
Defendant-Appellee. Judge.
ORDER
Ronald Levi, a civilly committed sex offender at an Illinois state institution, appeals
the grant of summary judgment for the institution’s staff members in his suit under 42
U.S.C. § 1983, claiming retaliation and violations of due process. We affirm.
Levi is confined at the Rushville Treatment and Detention Facility under the Sexually
Violent Persons Commitment Act, 725 ILCS 207/1. Defendant Brian Thomas was the acting
*
After examining 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)(C).
No. 10-3854 Page 2
security director at Rushville from April 2007 to October 2007. In July 2007 Levi was found
guilty by a prison disciplinary committee of “staff manipulation”—a so-called “major
violation”—by lying to a security officer over his need for larger ankle cuffs used for side-
by-side restraint. Levi’s punishment was a drop in “management status,” which reduced
the amount of personal property he was allowed to possess. Another consequence of the
violation was that Levi became subject to a facility policy requiring that he wear “black box”
handcuffs on all trips outside the institution. The “black box” is a plastic rectangular device
placed over the chain that connects the handcuffs, thereby restricting hand movement and
reducing access to the handcuffs’ keyholes. Miller v. Dobier, 634 F.3d 412, 414 (7th Cir. 2011).
Levi’s grievance appealing the committee’s decision was later rejected by Thomas. Over the
next year, Levi claims that he had to wear the black box for at least 12 off-site trips to the
courthouse, with each trip lasting about 10 to 12 hours.
In November 2007 Levi sued Thomas and seven other Rushville employees. He
claimed that the disciplinary committee did not provide adequate procedural protections
before disciplining him, that the discipline was really retaliation for two previous lawsuits
he had filed against other Rushville staff members, and that the black box restraint violated
his substantive due process rights.
After further proceedings (in which one defendant was dismissed and discovery
undertaken), the district court granted summary judgment for defendants in part, finding
that Levi had proffered no evidence that defendants were motivated by retaliation and that
the discipline imposed was not severe enough to trigger procedural due process protections.
The court did not, however, grant summary judgment to Thomas on Levi’s substantive due
process claim on the theory that Thomas may have failed to exercise professional judgment
in applying the black box policy to Levi, given that Levi’s “major violation” was simply
dishonesty. The court directed Thomas to file a supplementary motion for summary
judgment, which the court later granted on grounds of qualified immunity. While still
concluding that Thomas’ professional judgment in applying the black box policy to Levi
was questionable, the court found that Levi had not shown that a detainee’s right to be
transported outside a facility without a black box restraint was clearly established; as such
Thomas did not “knowingly violate the law.”
On appeal Levi challenges the district court’s rulings on both his substantive and
procedural due process claims. Levi contends that the scope of his constitutional rights is
defined by 59 Ill. Admin. Code § 299, which regulates civil commitment facilities for
sexually violent persons. He argues that Rushville staff did not comply with § 299 when
they imposed the black box discipline without observing several procedural and
substantive protections; among them, that the disciplinary committee did not afford him
adequate opportunity to present exculpatory evidence, that the committee erroneously
No. 10-3854 Page 3
determined that his offense of lying was a “major rule violation,” and that Thomas
disregarded grievance procedures in handling his appeal.
Neither Levi’s procedural due process claim nor his substantive due process has
merit because he cannot establish a protected liberty interest. Johnson v. Rancho Santiago
Cmty. Coll. Dist., 623 F.3d 1011, 1029-30 (9th Cir. 2010); Omosegbon v. Wells, 335 F.3d 668, 674-
75 (7th Cir. 2003). As an initial matter, Levi may not rely on state rules and regulations to
define the scope of his federal due process rights. See Boyd v. Owen, 481 F.3d 520, 524 (7th
Cir. 2007); Allison v. Snyder, 332 F.3d 1076, 1078-79 (7th Cir. 2003). More significantly, in
Miller, we decided on similar facts that imposing the black box restraint did not trigger
procedural due process protection. Miller, 634 F.3d at 414-15. Miller involved another
Rushville civil detainee who brought a procedural due process challenge to the disciplinary
process that resulted in the reduction of his management status and the imposition of the
same black box policy. Id. at 413-14. We stated there that “[d]isciplinary measures that do
not substantially worsen the conditions of confinement of a lawfully confined person are
not actionable under the due process clause . . . and this regardless of whether the
confinement is criminal or civil.” Id. at 414-15; see also Sandin v. Conner, 515 U.S. 472, 485-86
(1995); Wilson-El v. Finnan, 544 F.3d 762, 764 (7th Cir. 2008) (“liberty interests are implicated
only if the state imposes an ‘atypical, significant deprivation’”); Allison, 332 F.3d at 1079.
Consistent with Miller, we conclude that the black box restraint as applied to
Levi—imposed only on detainees who were found to have committed major rule violations
and when transported off-site—does not pose an atypical or significant hardship; rather it
constitutes an “additional restriction[] . . . too limited to amount to a deprivation of
constitutional liberty.” Miller, 634 F.3d at 414-15; see also Thielman v. Leean, 282 F.3d 478, 484
(7th Cir. 2002).
Levi’s substantive due process claim derives from the same alleged deprivation of
freedom as his procedural due process claim, namely the use of the black box restraint as a
form of discipline. But as discussed above, the black box restraint does not affect any
protected liberty interest; Levi’s substantive due process claim must therefore likewise fail.
See Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997); Idris v. City of Chicago, Ill., 552 F.3d
564, 565-66 (7th Cir. 2009); Grinter v. Knight, 532 F.3d 567, 573-75 (6th Cir. 2008). Even
though the district court reasoned that qualified immunity protected Thomas against Levi’s
substantive due process claim, resort to immunity is unnecessary where as here no liberty
interest was affected. See Allison, 332 F.3d at 1079.
AFFIRMED.