Todd A. Lagerstrom v. Phil Kingston

ΠThe appellees have notified us that they will not be partici-
pating in this appeal because of a lack of service in the district
court. The appeal is thus submitted for decision without the fil-
ing of a brief by the appellees. After an examination of the
appellant’s brief and the record, we have concluded that oral
argument is unnecessary. Thus, this appeal is submitted on the
appellant’s brief and the record. See F ED . R. A PP . P. 34(a)(2).
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1521
T ODD A. L AGERSTROM ,
Plaintiff-Appellant,
v.
P HIL K INGSTON , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-C-718-C—Barbara B. Crabb, Chief Judge.
____________
S UBMITTED A UGUST 23, 2006Œ—D ECIDED S EPTEMBER 7, 2006
____________
Before B AUER , P OSNER , and W OOD , Circuit Judges.
W OOD , Circuit Judge. Wisconsin prisoner Todd
Lagerstrom sued the defendants under 42 U.S.C. § 1983,
claiming that they violated his constitutional rights by
transferring him to a “Supermax” facility without due

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2 No. 06-1521
process and retaining him there as punishment for a
fabricated disciplinary charge. Upon screening the com-
plaint, see 28 U.S.C. § 1915A, the district court dismissed
all claims except the one relating to the initial transfer.
Inexplicably, Lagerstrom elected not to pursue that claim,
and so the district court dismissed the entire suit. Lager-
strom now challenges the dismissal of his other claims, and
we affirm the judgment.
We accept as true the facts alleged in Lagerstrom’s
complaint. On April 30, 2004, Lagerstrom, then incarcer-
ated in the general population at the Columbia Correctional
Institution (“CCI”) in Portage, Wisconsin, was transferred
without warning to the Wisconsin Secure Program Facility
(“WSPF”) in Boscobel. In the words of the district court,
WSPF is the “harshest and most restrictive prison in
Wisconsin.” Lagerstrom was told only that his transfer had
to do with “security concerns.” On May 21, 2004,
Lagerstrom received a conduct report, written by Lieuten-
ant Morris, a CCI guard, that charged him with “possession
of intoxicants” in violation of Wisconsin Administrative
Code § DOC 303.43. The report was short on details but
stated that four anonymous inmates said that they had
seen him with marijuana at CCI. The report listed May 18,
2004, as the date on which the investigation had been
completed.
The day he received the conduct report, Lagerstrom
completed the necessary paperwork to request that Morris
and the four confidential informants attend his disciplinary
hearing so that he could question them. He requested copies
of the evidence against him, including the statements of the
confidential informants. Lagerstrom also submitted a
written statement in his defense, asserting that he had
been seen with loose tobacco from the prison canteen, not
marijuana.
A disciplinary hearing was held on June 6 at WSPF. The
hearing officers, who traveled from CCI, presented Lager-

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No. 06-1521 3
strom with a written denial of his request to have witnesses
present. The only evidence submitted against Lagerstrom
was some version of the conduct report and the informants’
statements; it is not clear whether the hearing officers
reviewed the informants’ original statements or just the
summaries provided by Morris in the conduct report.
Lagerstrom was never provided with copies of the state-
ments. He was found guilty of possessing intoxicants and
sentenced to 8 days’ adjustment segregation and 360 days’
program segregation. Phil Kingston, the (now former)
warden of CCI denied his appeal. Lagerstrom’s efforts to
challenge the disciplinary proceeding through the inmate
grievance system were likewise unsuccessful.
Lagerstrom then petitioned for a writ of certiorari in
Wisconsin state court. That court reversed the disciplinary
conviction and ordered Lagerstrom’s release from program
segregation and the expungement from his record of the
charge and finding of guilt. The court noted that the
hearing officers had provided the court with a record that
was “neither complete nor persuasive.” State ex rel.
Lagerstrom v. Kingston, No. 04-CV-3469, slip op. at 7
(Wis. Cir. Ct., Branch 2, Apr. 29, 2005). Moreover, the court
found, the conduct report—Lagerstrom’s only notice of the
substance of the confidential informants’ state-
ments—included mere “approximations” of the statements
and “left out or significantly altered critical factual details.”
Id. at 10-11. In June 2005, after 396 days in WSPF,
Lagerstrom was sent to Waupun Correctional Institution
and placed in the general population.
Lagerstrom then brought suit against Warden Kingston,
Lieutenant Morris, and the hearing officers, alleging that
the transfer, the conduct report, and the disciplinary
hearing all took place in violation of his constitutional right
to due process. In screening the complaint, the district court
first took up Lagerstrom’s claim that he was transferred
from CCI’s general population to WSPF without adequate

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4 No. 06-1521
procedures. Citing the recent case of Wilkinson v. Austin,
125 S.Ct. 2384 (2005), the court concluded that a prisoner
has a liberty interest in avoiding the conditions of confine-
ment at a facility such as WSPF because of the “atypical
and significant hardship” imposed by incarceration there.
Id. at 2394 (applying standard announced in Sandin v.
Conner, 515 U.S. 472 (1995)). In Wilkinson, the Supreme
Court, having recognized a protectable liberty interest
under the circumstances of that case, went on to analyze
whether the inmates in question had been afforded ade-
quate process by applying the factors set forth in Mathews
v. Eldridge, 424 U.S. 319 (1976). Wilkinson, 125 S.Ct. at
2395.
We do not understand the district court to have adopted
a per se rule that every inmate in Wisconsin’s custody has
a liberty interest in avoiding incarceration at WSPF.
Rather, the liberty interest recognized in Wilkinson is
derived from the drastic change in the conditions of confine-
ment. That kind of change might not be present if, for
example, the inmate was already confined to segregation.
Here, however, Lagerstrom was moved from CCI’s general
population to the draconian conditions of WSPF. This
occurred without any process at all. Although Lagerstrom
eventually received a disciplinary hearing on the conduct
report alleging drug possession, the district court noted that
there was no evidence that the hearing addressed
Lagerstrom’s initial transfer to WSPF. Accordingly, the
district court held that Lagerstrom had stated a claim
against Kingston for the denial of his due process rights
based on his transfer from general-population conditions at
CCI to WSPF’s much more restrictive conditions.
Lagerstrom also claimed that the hearing officers violated
his due process rights when they found him guilty of
possessing marijuana based on fabricated evidence. The
district court assumed that Lagerstrom had a protected
liberty interest in the outcome of his disciplinary hearing

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No. 06-1521 5
and proceeded to analyze whether he had been afforded the
minimum procedures to which he was entitled. It concluded
that the facts alleged in Lagerstrom’s complaint demon-
strated that he had received all the process he was due. See
Wolff v. McDonnell, 418 U.S. 539 (1974). Accordingly, the
district court held that Lagerstrom failed to state a claim
for a denial of due process against the two hearing officers.
The district court also dismissed Lagerstrom’s claim that
Lieutenant Morris violated his due process rights by
falsifying the disciplinary report. Accepting as true
Lagerstrom’s allegation that Morris fabricated the evidence
that led to his disciplinary conviction, the district court held
that Lagerstrom nevertheless failed to state a claim,
because a prison official’s use of false evidence is not a per
se violation of procedural due process. So long as
Lagerstrom was afforded the necessary procedural safe-
guards, the court reasoned, the process in itself is a consti-
tutionally adequate safeguard against the arbitrary actions
of prison officials. McPherson v. McBride, 188 F.3d 784, 787
(7th Cir. 1999).
Lagerstrom then filed what the district court construed as
a motion for reconsideration. He requested that “the claim
regarding transfer to WSPF be withdrawn” because he
“simply elects not to pursue” it. By so doing, he voluntarily
dropped the one claim that the district court had allowed
him to pursue. He asked the court to reconsider its dis-
missal of his other claims. The district court reaffirmed its
conclusion that he failed to state a claim for the denial of
procedural due process based on the use of fabricated
evidence. Citing Leslie v. Doyle, 125 F.3d 1132 (7th Cir.
1997), the court also considered whether he had stated a
claim based on substantive due process but concluded that
the wrong he alleged was not severe enough to amount to a
constitutional violation. Finally, the court cautioned
Lagerstrom that his entire lawsuit would be dismissed if he
withdrew his claim that he was transferred without due

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6 No. 06-1521
process and ordered him to advise the court in writing
whether he intended to pursue that claim. When
Lagerstrom did not respond within the allotted time, the
case was dismissed.
On appeal, Lagerstrom challenges the dismissal of his
claims against Morris and the hearing officers regarding
the procedural fairness of his disciplinary hearing as well
as his claim that Morris violated his rights by fabricating
the conduct report. When a district court dismisses a
prisoner’s claims under § 1915A, our review is de novo.
Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). We
apply the same standard used for dismissals under Rule
12(b)(6) of the Federal Rules of Civil Procedure: dismissal
is appropriate only when it appears beyond doubt that the
plaintiff can prove no set of facts that would entitle him to
relief. See id.
Lagerstrom challenges the dismissal of his claims about
the procedural fairness of his disciplinary hearing on
several grounds, some more clearly articulated than others.
We conclude that dismissal was proper. Though the district
court assumed that Lagerstrom had a liberty interest at
stake in the disciplinary proceedings, Lagerstrom seems to
be re-fighting that battle. He now insists—as though the
district court had decided the issue against him—that he
had a protected liberty interest in not being placed in
program segregation. He notes that by statute, a 360-day
stint in segregation results in a 180-day extension of the
mandatory release date. See Wis. Stat. § 302.11(2). This
argument ignores the fact that the disciplinary conviction
underlying his sentence to segregation was reversed by the
state court and expunged from his record. When the time is
right, Lagerstrom may bring a claim if his release date is
not properly recalculated to reflect the expungement, but
we do not understand that to be his contention in this suit.
Assuming for the sake of argument that Lagerstrom had
a protectible liberty interest, the consequence that would

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No. 06-1521 7
follow is that he would be entitled to due process. In this
context, due process requires that he receive advance
written notice of the charges, the chance to present testi-
mony and documentary evidence to an impartial
decisionmaker, and a written explanation, supported by at
least “some evidence” in the record, for any disciplinary
action taken. See Superintendent, Mass. Corr. Inst. v. Hill,
472 U.S. 445, 454-55; Wolff, 418 U.S. at 564-66; Piggie v.
Cotton, 344 F.3d 674, 677 (7th Cir. 2003). All of these
conditions were met. The fact that the outcome was eventu-
ally overturned does not mean that the hearing failed to
satisfy minimal procedural requirements. (This court
reverses district court judgments from time to time, but the
ground for the decision is almost never the failure of the
district court proceedings to satisfy due process.) The fact (if
it were true) that the evidence against Lagerstrom had been
made up would similarly not cast doubt on the basic
procedures that were followed. See McPherson, 188 F.3d at
787; McKinney v. Meese, 831 F.2d 728, 733 (7th Cir. 1987).
The system has direct remedies for perjured testimony.
Here, Lagerstrom received all the process he was due.
Lagerstrom also argues that the district court erroneously
dismissed his claim that Morris violated his substantive due
process rights by filing a false conduct report. He contends
that the harm he suffered as a result of Morris’s ac-
tions—396 days in WSPF—was so severe that he states a
claim for relief. As the district court noted, in Leslie we
opined that a claim against a prison official for knowingly
making a false charge might best be analyzed under the
principles of substantive, rather than procedural, due
process. 125 F.3d at 1136-37. We recognized that a prison
official’s conduct might be so extreme that “no subsequent
procedural fairness could obscure or heal” it and that the
Eighth Amendment provided no protection against this type
of conduct because “a frame-up or malicious prosecution is
not an example of punishment in the sense of the Eighth

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8 No. 06-1521
Amendment.” Id. We therefore suggested that “a useful
approach is to say that a frame-up or malicious prosecution
is in and of itself an inchoate breach of substantive due
process, which matures into a viable claim if the conse-
quences are sufficiently severe.” Id. at 1137. Because all the
plaintiff in Leslie had endured was confinement in disciplin-
ary segregation for 15 days, we concluded that under
Sandin the deprivation was not “atypical and significant”
and therefore did not implicate a protectible liberty interest.
Thus, in that case, even if the proper theory was substan-
tive due process, the plaintiff’s allegations showed that
there was no violation. Id.
In considering Lagerstrom’s claim under a substantive
due process theory, the district court cited Leslie and stated
simply that Lagerstrom’s allegations are “distressing” but
do not state a claim against Morris under the Fourteenth
Amendment. We are not convinced that Leslie provides the
best framework for analyzing this claim. For one thing, the
language to which we have just referred is dictum. We had
no need to hold squarely that an independent substantive
due process claim exists; instead, we said only that even if
such a claim existed, Leslie would not be entitled to relief.
See id. at 1137.
Here too, we have no need to resolve definitively where
the line between conventional problems and a substantive
due process violation lies, because ordinarily, “even assum-
ing fraudulent conduct on the part of prison officials, the
protection from such arbitrary action is found in the
procedures mandated by due process.” McPherson, 188 F.3d
at 787; see Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir.
1984) (“We find that an allegation that a prison guard
planted false evidence which implicates an inmate in a
disciplinary infraction fails to state a claim for which relief
can be granted where the procedural due process
protections as required in Wolff v. McDonnell are pro-
vided.”). See also Newsome v. McCabe, 256 F.3d 747, 751-52

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No. 06-1521 9
(7th Cir. 2001) (holding that no federal constitutional
claim—in particular none premised on substantive due
process—exists for “malicious prosecution”). Of course, none
of these cases is relevant to situations in which an inmate
claims that a prison official trumped up a disciplinary
charge in retaliation for the exercise of a constitutionally
protected right. See Black v. Lane, 22 F.3d 1395, 1402-03
(7th Cir. 1994). But Lagerstrom does not allege any retalia-
tion, and as we have already found, his hearing met all
relevant procedural standards.
Despite the best efforts of the district court to persuade
him otherwise, Lagerstrom elected to drop his strongest
claim: that he was transferred from the general population
at CCI to WSPF without due process of law. His remaining
claims were properly dismissed, and, therefore, we A FFIRM
the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-7-06

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