David Shelby v. M. Gelios

*The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief and the record. See FED. R. A PP. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2008 *
Decided June 11, 2008
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐3113
DAVID SHELBY,
Plaintiff‐Appellant,
v.
M. GELIOS, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 05‐589‐MJR
Michael J. Reagan,
Judge.
O R D E R
David Shelby, a federal inmate previously housed at the Federal Correctional
Institution in Greenville, Illinois, received a disciplinary report after a guard found
marijuana and barbiturates in his cell. Shelby received a hearing, and the Disciplinary
Hearing Officer found that Shelby had violated the prison’s rule prohibiting possession of
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 5 --

No. 07‐3113 Page 2
drugs because the drugs were in his cell and thus he was responsible for them. Shelby was
disciplined with the loss of good‐time credits and visitation privileges, segregation, and a
transfer to another facility. He eventually was moved to a federal prison in Colorado, and
from there he petitioned for a writ of habeas corpus, see 28 U.S.C. § 2241, claiming that his
right to due process had been violated because, he asserted, there was not sufficient
evidence to support the DHO’s finding. The district court for the District of Colorado
agreed, granted his petition, and ordered the Bureau of Prisons to expunge the violation
from Shelby’s record and reinstate his good‐time credits. Shelby v. United States, No. 03‐cv‐
1336 (D. Colo. Aug. 4, 2004) (unpublished order). Relying on the Colorado district court’s
decision, Shelby then filed this action under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), seeking damages from the guard who filed the
disciplinary report, another guard who participated in the investigation, and the DHO who
conducted the disciplinary hearing. The district court for the Southern District of Illinois
screened Shelby’s complaint prior to service, see 28 U.S.C. § 1915A, and dismissed it on the
ground that it fails to state a claim.
We review de novo a dismissal under § 1915A for failure to state a claim. Westefer v.
Snyder, 422 F.3d 570, 574 (7th Cir. 2005). Shelby’s allegations are sparse, but his complaint
turns on the decision of the Colorado district court, and he has attached the court’s order to
his appellate brief. Thus he has incorporated that decision into his complaint. See Levenstein
v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998); Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248
(7th Cir. 1994). So, in setting out the facts, we rely on the factual findings in the Colorado
district court’s order and accept as true the additional allegations in Shelby’s complaint. See
Westefer, 422 F.3d at 574.
In November 2002, while Shelby was working at his job in the kitchen at Greenville,
guards searched his cell, which he shared with four other inmates, and which he could not
lock to exclude other uninvited inmates. During the search the guards found four packets
of marijuana under a cellmate’s bunk, a Chapstick cap containing barbiturates in a bag next
to a cellmate’s bunk, four packets of marijuana on a cellmate’s bunk, a balled‐up sock
containing twenty packets of marijuana on an unassigned bunk (which had been “claimed”
by another inmate whose authority to be in the cell is unclear), and a red balloon and ten
packets of marijuana inside a tennis shoe on top of the unassigned bunk. Four inmates were
present during the search, although we cannot tell if all of them were Shelby’s cellmates. At
that time Shelby and his cellmates all denied knowing anything about the drugs.
In January 2003 one of the guards who conducted the search wrote a disciplinary
report charging Shelby with possessing drugs. Afterward another guard interviewed
Shelby and concluded that “the incident report supports the charge.” At the hearing before

-- 2 of 5 --

No. 07‐3113 Page 3
the DHO, Shelby testified that he did not own the drugs and had not known that they were
in his cell. Another inmate (we do not know whether he was one of Shelby’s cellmates)
testified that he, not Shelby, was the owner of the drugs and that Shelby “[a]in’t seen
nothing and didn’t know nothing about it.” The DHO issued written findings discounting
that witness’s testimony, finding it “highly unlikely” that Shelby was unaware of the drugs
given the number of hiding places, and concluding that Shelby was thus responsible for
possessing the drugs.
The district court construed Shelby’s civil‐rights complaint as challenging only the
disciplinary transfer and revocation of visitation privileges, and then dismissed it, reasoning
that because inmates do not have a liberty interest in being housed at a particular facility,
see Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005); Whitford v. Boglino, 63 F.3d 527, 532
(7th Cir. 1995), or in having ready access to visitors, see Ky. Dep’t of Corr. v. Thompson, 490
U.S. 454, 460 (1989); see also DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir. 2000), they are not
entitled to due process before they are transferred or lose visitation privileges. So, the
dismissal of those theories was correct.
However, construing Shelby’s pro se complaint liberally, as we must, see Kaba v.
Stepp, 458 F.3d 678, 681 (7th Cir. 2006), we conclude that he also seeks damages for the
temporary loss of his good‐time credits. A prisoner is entitled to nominal damages if a due‐
process violation resulted in the loss of good‐time credits, even if they were later restored.
See Carey v. Piphus, 435 U.S. 247, 266‐67 (1978); Gates v. Towery, 430 F.3d 429, 431 (7th Cir.
2005). Punitive damages may also be available if the prisoner can prove that the defendants
acted with an “evil motive” or “callous indifference” to his due‐process rights. Smith v.
Wade, 461 U.S. 30, 56 (1983); see Marshall ex rel. Gossens v. Teske, 248 F.3d 765, 772 (7th Cir.
2002).
So we must decide whether Shelby has stated a civil‐rights claim for a due‐process
violation that resulted in the temporary loss of his good‐time credits. To satisfy the
notice‐pleading requirements of Federal Rule of Civil Procedure 8(a)(2), a complaint need
include only ”a short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2); see Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007). For a
plaintiff attempting to make out a claim under Bivens, this standard is satisfied if the
plaintiff alleges that he was deprived of a constitutionally protected right by a person acting
under color of federal authority. See Bivens, 403 U.S. at 389‐92; Case v. Milewski, 327 F.3d
564, 568 (7th Cir. 2003); see also Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th
Cir. 2004). Shelby has stated a claim because he has alleged that the defendants—two
correctional officers and a DHO involved in his disciplinary proceedings—acted under
color of federal authority in depriving him of his right to due process when he was found to
have possessed drugs without any evidence.

-- 3 of 5 --

No. 07‐3113 Page 4
And, although Shelby did not have to plead facts under the liberal notice‐pleading
rule, the facts he did include in his complaint and its attachments do not undercut his claim.
Cf. Henderson v. Sheehan, 196 F.3d 839, 846 (7th Cir. 1999) (observing that pro se plaintiffs can
plead themselves out of court if they plead facts that undermine their allegations). The
district court in Colorado tells us that numerous stashes of drugs were found throughout
Shelby’s cell, but that the drugs were not found among Shelby’s possessions, the cell was
not locked, many inmates may have had access to the cell, and another inmate came
forward to claim the drugs, asserting that Shelby knew nothing about them. A decision to
discipline an inmate comports with due process if it is supported by “some evidence,” see
Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985), and evidence of
constructive possession is sufficient to meet this standard when drugs are found where only
a handful of inmates have access, see Hamilton v. O’Leary, 976 F.2d 341, 345‐46 (7th Cir.
1992); see also Mason v. Sargent, 898 F.2d 679, 679‐80 (8th Cir. 1990) (holding that “some
evidence” supported disciplinary charge against inmate where he and another inmate
shared a locker and the other inmate admitted to putting contraband in the locker). But the
inference of constructive possession is too weak to satisfy the “some evidence” standard
where the plaintiff was just one of many inmates who shared access to an area where
contraband was found. See Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir. 2001) (holding
“some evidence” standard not met where more than 100 inmates had access); Hamilton, 976
F.3d at 347‐48 (Posner, J., dissenting) (noting that a one‐in‐eight chance contraband
belonged to a prisoner is “not my idea of ‘some evidence’” and observing that a one‐in‐
thirty‐two chance would not satisfy “some evidence” standard). Because Shelby may be
able to prove, consistently with the facts he has alleged, that too many inmates had access to
his cell to hold him accountable for the drugs on a theory of constructive possession, he is
entitled to proceed with his case.
Shelby, though, is wrong in thinking that the district court will be compelled to
accept the Colorado district court’s conclusion that his right to due process was violated.
That decision is not preclusive. Shelby’s victory on his § 2241 petition means only that he is
not barred from bringing his Bivens claim by the doctrine, announced in Heck v. Humphrey,
512 U.S. 477 (1994), that if a plaintiff’s success in a civil‐rights suit for damages would
invalidate a conviction or sentence, the plaintiff must first have the conviction or sentence,
as relevant here, “called into question by a federal court’s issuance of a writ of habeas
corpus.” Id. at 486‐87; see also Edwards v. Balisok, 520 U.S. 641, 648 (1997) (holding that Heck
doctrine applies to civil‐rights suits challenging prison disciplinary proceedings); Case, 327
F.3d at 569 (noting that Heck doctrine applies to Bivens claims). Nothing compels the district
court to adopt the Colorado district court’s reasoning or to follow its rationale. See Garza v.
Henderson, 779 F.2d 390, 392‐94 (7th Cir. 1985) (district court’s issuance of writ of habeas
corpus did not have preclusive effect in inmate’s subsequent civil‐rights claim for damages).

-- 4 of 5 --

No. 07‐3113 Page 5
Thus, on remand after the record has been developed and the issues of fact have been
resolved, the court may be required to undertake its own analysis to determine whether,
consistent with the law of this circuit, the defendants’ actions violated due process.
VACATED and REMANDED.

-- 5 of 5 --