NONPRECEDENTIAL DISPOSITION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 June 16, 2010*
Decided July 27, 2010
Before
RICHARD D. CUDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐3294
GEORGE BROWN, JR., Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Illinois.
v. No. 08‐cv‐095‐WDS
WILESKA LIRIOS and MARTA William D. Stiehl,
SANTIAGO, Judge.
Defendants‐Appellees.
O R D E R
*
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. 08‐3294 Page 2
In this appeal federal prisoner George Brown Jr. asserts that prison officials violated
various constitutional rights. See
42 U.S.C. § 1983. The district court dismissed the
complaint at screening, see 28 U.S.C. § 1915A, and we affirm.
We draw the following account from Brown’s complaint and his appellate brief. See
Holman v. Indiana,
211 F.3d 399, 405‐06 (7th Cir. 2000). Brown had been convicted on drug
charges, and as part of his sentence he was ordered to pay a felony assessment of $100.
Under the Inmate Financial Responsibility Plan (IFRP), his unit team at the prison was
responsible for devising a plan for him to pay the $100 assessment. See
28 C.F.R. §§ 545.10‐
.11. Wileska Lirios, Brown’s unit counselor, told him that he was to pay the $100 as a lump
sum. Brown protested that he could not pay the $100 and countered with a proposal to pay
$25 each quarter. Lirios rejected the proposal. When Brown did not comply with the lump‐
sum plan, Lirios limited his monthly purchases and put him in “restricted living quarters.”
See
28 C.F.R. § 545.11. In his complaint, Brown alleges that Lirios imposed those restrictions
“in retaliation” for his refusal to agree with her plan, and without a hearing in violation of
his right to due process. Brown’s unit manager later had Lirios amend the plan to allow for
$25 installments and lift the restrictions. According to the appellees, the reason for the
change was that Brown had spent most of his funds and could no longer make a lump‐sum
payment.
Brown alleges that a second due‐process violation occurred when his unit
counselors, Lirios and Marta Santiago, conducted a hearing for a disciplinary proceeding,
but did not allow him to call a witness. Lirios and Santiago conducted the hearing to
resolve a charge that Brown had an unexcused absence from his prison job. Brown alleged
that Lirios and Santiago did not allow him to call as a witness his work supervisor, who he
said would confirm that he was not scheduled to work that day. Lirios and Santiago
concluded that Brown’s absence was unexcused, and as punishment they restricted his
spending. But within the month Brown’s unit manager realized that there had been a
mistake about his work schedule, expunged the report, and lifted the restriction.
Brown sued Lirios and Santiago in Illinois state court, alleging that Lirios retaliated
against him for his noncompliance with his payment plan, that Lirios denied him due process
by not holding a hearing about his payment plan, and that both counselors denied him due
process in the later disciplinary hearing. Lirios and Santiago removed the case to federal
court. Brown then moved to remand the case to state court on grounds that the notice of
removal was defective. The district court denied his motion, explaining that the removal had
been timely filed within 30 days of service, and that Brown’s other arguments were baseless.
The district court also dismissed Brown’s complaint as frivolous. See 28 U.S.C. § 1915A. It
concluded that Brown failed to state a claim for retaliation because his complaint about his
payment plan was a “personal gripe” rather than a matter of public concern. As for the due
process claim, the district court explained that Brown did not allege that he was deprived of
any constitutionally protected interest.
No. 08‐3294 Page 3
On appeal Brown first contests the district court’s denial of his motion to remand the
case to state court. Brown had argued in the district court that the notice of removal was
untimely because it was filed more than 30 days after his complaint. But as the district court
correctly noted, when service occurs after the complaint is filed, a defendant has thirty days
from the date of proper service to remove.
28 U.S.C. § 1446(b); Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc.,
526 U.S. 344, 354 (1999). The defendants were served on January 15, 2008,
so their notice of February 8, 2008 was timely.
Brown also challenges the district court’s rejection of his argument that the notice of
removal was “void.” He contends that the notice was void because it had been filed before the
defendants had entered an appearance in the case, in violation of a local rule. S.D. Ill. Local R.
83.1(f) requires counsel to file a notice of appearance before “address[ing] the Court.” Even if
a tardy notice of appearance were a violation, though, it would not necessarily void previous
filings. The local rule does not specify what consequences follow from such a violation, so the
district court could not have erred in declining to void the previous filings. See Kovilic
Construction Co. v. Missbrenner,
106 F.3d 768, 771‐74 (7th Cir. 1995). And contrary to Brown’s
argument that the rule violation stripped the court of jurisdiction, “noncompliance with a
court’s local rules does not create a jurisdictional bar for the district court.” Brengettcy v.
Horton,
423 F.3d 674, 681 (7th Cir. 2005).
Brown also argues that the district court erred in dismissing his retaliation claim. The
district court had concluded that he failed to state a claim because his complaint about his
payment plan was not a matter of public concern. Indeed, after the district court’s decision we
decided to “jettison the public concern test from our prisoner free speech jurisprudence.” See
Watkins v. Kasper,
599 F.3d 791, 795 (7th Cir. 2010); Bridges v. Gilbert,
557 F.3d 541, 546 (7th Cir.
2009).
But a retaliation claim must still be premised on conduct that is protected by the First
Amendment, and an inmate’s conduct is not protected when he refuses to comply with a
legitimate prison regulation. See Watkins,
599 F.3d at 799; Lockett v. Suardini,
526 F.3d 866, 874
(6th Cir. 2008); Smith v. Mosley,
532 F.3d 1270, 1277 (11th Cir. 2008). By his own description, he
was refusing to comply with his payment plan under the IFRP, a regulation. And the IFRP, we
have recognized, is a legitimate regulation that “has been uniformly upheld against
constitutional attack.” McGhee v. Clark,
166 F.3d 884, 886 (7th Cir. 1999); accord United States v.
Lemoine,
546 F.3d 1042, 1046 (9th Cir. 2008); Johnpoll v. Thornburgh,
898 F.2d 849, 851 (2d Cir.
1990); James v. Quinlan,
866 F.2d 627, 630 (3d Cir. 1989). Specifically, its restrictions relate to
the legitimate interest of rehabilitation because they promote financial responsibility. McGhee,
166 F.3d at 886; Lemoine,
546 F.3d at 1046; James,
866 F.2d at 630. In addition, the IFRP specifies
consequences for an inmate’s refusal “to comply with the provisions of his financial plan,”
28
C.F.R. § 545.11(d), and these consequences are the ones that Lirios imposed: the inmate “shall
be subject to a monthly commissary spending limitation” and “will be quartered in the lowest
No. 08‐3294 Page 4
housing status.”
Id. § 545.11(d)(6), (7). Accordingly, Brown cannot state a claim for retaliation
based on his refusal to comply with his payment plan.
Next, Brown challenges the district court’s rejection of his due process claims. He
asserts, first, that the district court erred in concluding that he was not entitled to due process
in his hearing for the disciplinary charge. Relatedly, he asserts that the district court failed to
acknowledge that he was denied due process when he did not receive a hearing before his
spending was restricted under the IFRP. But he was entitled to due process only if the
sanctions he faced deprived him of life, liberty, or property. Lekas v. Briley,
405 F.3d 602, 607
(7th Cir. 2005). He faced only a temporary restriction on spending and a temporary
reassignment of housing quarters; neither rose to the level of a due process violation. See
Sandin v. Conner,
515 U.S. 472, 486 (1995) (prisoner’s 30‐day segregation does not trigger due
process protections); Thomas v. Ramos,
130 F.3d 754, 762 n.8 (7th Cir. 1997) (no protected
interest in commissary privileges).
Finally, Brown complains that the district court erred by failing to address a claim he
presented in an amended complaint—that Lirios assigned a third occupant to his cell,
presumably in violation of the Eighth Amendment. But Brown never served this amended
complaint on the defendants or filed it in the district court. He apparently filed it in the state
court, but did not submit it to the federal court until he filed his notice of appeal. By not filing
his amended complaint in the district court or notifying the defendants of its existence, Brown
waived any issue raised in the amended complaint. See Hicks v. Midwest Transit, Inc.,
500 F.3d
647, 652 (7th Cir. 2007).
Accordingly, we AFFIRM the judgment of the district court.
