Jay M. Bartley v. Wisconsin Department of Corrections

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 7, 2007
Decided December 6, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 07-2059
JAY M. BARTLEY,
Plaintiff-Appellant,
v.
WISCONSIN DEPARTMENT OF
CORRECTIONS, et al.,
Defendants-Appellees.
Appeal from the United States
District Court for the Western
District of Wisconsin.
No. 07 C 143
Barbara B. Crabb,
Chief Judge.
O R D E R
Wisconsin prisoner Jay Bartley is a sex offender who recently became eligible
for parole, but Wisconsin has adopted an informal policy not to parole sex offenders
until they have completed a sex offender treatment program. Bartley sued the
Wisconsin Department of Corrections and others under 42 U.S.C. § 1983,
contending that they have arbitrarily kept him from completing his sex offender
treatment. The district court screened the suit under 28 U.S.C. § 1915A and
dismissed it for failure to state a claim. Bartley, who is assisted by counsel,
appeals. We affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07-2059 Page 2
In 1990 Bartley began serving a 57-year sentence for two counts of first-
degree sexual assault. Under Wisconsin law, he became eligible for parole in
January 2004 (at the completion of 1/4 of his sentence, Wis. Stat. § 304.06(1)(b)),
and his mandatory release date, assuming good behavior, is November 2027 (at the
completion of 2/3 of his sentence, id. § 302.11(1)). Bartley says in his complaint that
he completed a sex offender treatment program in 1996. After that, he says he
voluntarily continued to participate in the program for some months but was forced
out in 1997 after angering the program’s directors by asking to leave. Bartley
contends that the notation that he had completed the sex offender program was
then removed from his record. The complaint contains no attachments or other
details about this spat.
Now Bartley can’t get a parole hearing, even though he is eligible for it. He
was transferred to another prison that only offers sex offender treatment to inmates
who are near their mandatory release date—and, as noted, Bartley’s is 20 years
away. The parole commission “strongly recommended,” in Bartley’s words, that he
be enrolled in the treatment program, but the prison refused to make an exception.
To make matters worse, he was recently notified that he will be transferred to
another prison that does not offer a sex offender treatment program.
We review de novo the district court’s § 1915A dismissal, taking all facts in
the complaint as true—the same way we review a dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). Lagerstrom v. Kingston, 463
F.3d 621, 624 (7th Cir. 2006).
As an initial matter, the district court mistakenly stated that Bartley’s
challenge to the parole system is not cognizable in a suit under 42 U.S.C. § 1983 but
must proceed instead under the federal habeas corpus statutes. It is true that the
general principle of Heck v. Humphrey, 512 U.S. 477 (1994), which prohibits the use
of civil rights lawsuits to collaterally attack the fact of confinement or its duration,
can bar certain prisoner suits. A prisoner cannot, for example, use § 1983 to
challenge the revocation of good time credits which, if restored, would lead directly
to a shorter sentence. Preiser v. Rodriguez, 411 U.S. 475 (1973). But Wilkinson v.
Dotson, 544 U.S. 74, 81–82 (2005), makes clear that an inmate may challenge state
parole procedures in an action under § 1983 when success would merely mean
becoming eligible for a discretionary grant of parole, as opposed to being released
immediately from prison or having one’s release date bumped up. See also Grennier
v. Frank, 453 F.3d 442, 444 (7th Cir. 2006).
Although the suit is cognizable under § 1983, that does not mean it has any
merit. Bartley contends that he was deprived of due process when the Department
of Corrections required him to complete a sex offender treatment program before
considering him for parole and then put him in a position where he was unable to

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No. 07-2059 Page 3
do that. But in order to make out a due process claim, Bartley must show that he
has a liberty interest at stake, and the Supreme Court has held that there is no
general constitutional right to parole. Greenholz v. Inmates, 442 U.S. 1, 7 (1979). A
state may, but need not, create a liberty interest by establishing an entitlement to
parole based on specific criteria—e.g., an inmate shall be paroled if after serving X
amount of his sentence he has done Y and Z. Id.; Heidelberg v. Ill. Prisoner Review
Bd., 163 F.3d 1025, 1026 (7th Cir. 1998) (per curiam). But as this court has noted,
Grennier, 453 F.3d at 444, Wisconsin has adopted a completely discretionary parole
regime. See Wis. Stat. § 304.06(1)(b) (“the parole commission may parole an
inmate” who has completed 1/4 of his sentence); Wis. Admin. Code § DOC 302.21(2)
(inmate “shall be eligible for parole when 25% of the sentence imposed” has been
served) (emphases added). A Wisconsin inmate can never be guaranteed parole by
meeting set criteria; he must always rely on the discretion of the parole board.
Grennier, 453 F.3d at 444. Thus Bartley has no liberty interest in parole and
cannot make out a due process claim.
Bartley argues that he may nevertheless have a substantive due process
claim. The district court dismissed this claim on the rationale that since there is a
specific framework of procedural due process in this context, courts should not
explore the murkier depths of substantive due process law. Nevertheless, we note
that several courts have rejected the notion that there is a substantive due process
right to a certain parole procedure in the absence of a protected liberty interest. See
Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997); Bailey v. Gardebring, 940
F.2d 1150, 1157 (8th Cir. 1991).
Bartley believes that the program directors’ behavior was egregious official
conduct that “shocks the conscience,” thereby implicating the substantive due
process clause. Cf. Coleman v. Dretke, 395 F.3d 216, 224–25 (5th Cir. 2004) (no
substantive due process violation where prison required sex offender treatment for
inmate who was not convicted of a sex offense). Perhaps if the program directors
maliciously stripped Bartley of his treatment certification in order to keep him in
prison, or because he belonged to a protected racial or ethnic group, his substantive
due process claim could have a chance of succeeding. But Bartley’s complaint
merely says that the program directors removed the certification because he
angered them by asking to leave the program. And that does not shock the
conscience or violate the Constitution. A complaint must do more than leave open
the possibility that the plaintiff might later plead some set of undisclosed facts that
would warrant relief. See Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1968–69
(2007).
AFFIRMED

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