Toni Toston v. Michael Thurmer

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 21, 2013
Decided December 5, 2013
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 13-1709
TONI TOSTON ,
Plaintiff-Appellant,
v.
MICHAEL THURMER , et al.,
Defendants-Appellees.
Appeal from the United States
District Court for the Eastern
District of Wisconsin.
No. 2:10-cv-00288-JPS
J. P. Stadtmueller, Judge.
O R D E R
The appellant, a Wisconsin prison inmate, brought suit against prison officials
under 42 U.S.C. § 1983, challenging a disciplinary sanction of 90 days in segregation for
violation of prison rules. His suit claimed that his punishment violated his
constitutional right of free speech and also deprived him of his liberty without due
process of law. The district court granted summary judgment on both claims in favor of
the defendants. We affirmed with respect to the district court's free-speech ruling but
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 2 --

Page 2 No. 13-1709
remanded the due process claim for a determination whether the 90-day segregation
was a deprivation of liberty, given that the plaintiff was already deprived of liberty by
being a prison inmate--in other words was there an incremental deprivation of liberty?
That presumably would depend on the conditions of confinement in segregation.
On remand the district judge found, not clearly erroneously, that the plaintiff had
been released from segregation back into the general prison population after only 44
days and that conditions in segregation were not sufficiently harsh to make so relatively
short a period of segregation an incremental deprivation of liberty sufficient to sustain a
claim a due process claim by a prison inmate complaining only about the increment,
and not about being a prison inmate. And so the judge again granted summary
judgment in favor of the defendants, precipitating this second appeal.
Finding no error, we affirm the judgment in favor of the defendants.

-- 2 of 2 --