War N. Marion v. DYLON RADTKE, JANEL NICKEL, and CHAD KELLER

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2446
WAR N. MARION,
Plaintiff-Appellant,
v.
DYLON RADTKE, JANEL NICKEL, and
CHAD KELLER,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07-cv-243-bbc—Barbara B. Crabb, Judge.
SUBMITTED MAY 11, 2011—DECIDED JUNE 2, 2011
Before EASTERBROOK, Chief Judge, and COFFEY and
RIPPLE, Circuit Judges.
PER CURIAM. While imprisoned at the Columbia Cor-
rectional Institution in Wisconsin, War N. Marion was
placed in the prison’s most restrictive disciplinary seg-
regation, which it calls DS-1, because he had com-
mitted misconduct while in DS-2, a less restrictive en-
vironment. Marion’s term in DS-1 was 240 days, and
he complained about the procedures that the prison
had used to find that he violated the prison’s rules.

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2 No. 10-2446
The due process clause of the fourteenth amendment,
on which Marion relied, applies only to deprivations of
life, liberty, and property. Otherwise states are free
to act summarily. Defendants contended that 240 days
in DS-1 segregation at Columbia did not deprive Marion
of liberty or property under the approach of Sandin v.
Conner, 515 U.S. 472 (1995), and Wilkinson v. Austin, 545
U.S. 209 (2005), the most recent opinions in which the
Supreme Court has considered how the due process
clause applies to prisoners’ living conditions. See also,
e.g., Meachum v. Fano, 427 U.S. 215 (1976). We held that
240 days in conditions materially more onerous than
“the ordinary incidents of prison life” (Sandin, 515 U.S.
at 484), could deprive a person of a “liberty.” Marion v.
Columbia Correctional Institution, 559 F.3d 693 (7th Cir.
2009). We added that evaluation depends on “the
actual conditions of confinement and not simply . . . a
review of state regulations.” Id. at 699 (emphasis in origi-
nal). With that observation we remanded so that the
district court could compare the conditions of DS-1 status
at Columbia with those at a high-security prison in Wis-
consin, the sort of institution to which a prisoner may
be assigned, Meachum holds, without any opportunity
for a hearing.
Wilkinson shows that a comparison to a “supermax”
prison (the comparison defendants propose) is not appro-
priate. Comparison with the sort of secure institution
that a judge would have considered when sentencing
a prisoner is more apt. Anticipated prison conditions
affect the length of sentences: The more onerous a prison
system’s norm, the shorter a sentence can be and still

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No. 10-2446 3
achieve a desired amount of deterrence and punishment.
The due process clause requires hearings when a prisoner
loses more liberty than what was taken away by the
conviction and original sentence. That’s why the right
comparison is between the ordinary conditions of a high-
security prison in the state, and the conditions under
which a prisoner is actually held. See also Lekas v. Briley,
405 F.3d 602, 608–09 (7th Cir. 2005).
On remand, the district judge dismissed all defendants
other than the three responsible for deciding to place
Marion in DS-1 segregation without the additional proce-
dures that Marion wanted. These defendants moved for
summary judgment. That was the time for Marion to
supply some evidence about how the conditions of DS-1
confinement differ from those of the general population
in one of Wisconsin’s high-security prisons. What he
showed was: Nothing. Having won from this court the
right to support his claim with evidence, Marion chose
not to use that right. Instead he contended that the
burden of production (and presumably the burden of
persuasion) should be borne by the state, which has
the best access to such information. The district judge
was not persuaded and granted summary judgment to
the defendants. 2010 U.S. Dist. LEXIS 57806 (W.D. Wis.
June 11, 2010). We are not persuaded either.
This is a civil suit. The burden of production and the
risk of non-persuasion rest with the plaintiff in civil
litigation. Director, OWCP v. Greenwich Collieries, 512 U.S.
267 (1994). Statutes, and the common law, assign affirma-
tive defenses to defendants, but whether a prison has

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4 No. 10-2446
reduced a prisoner’s liberty is an element of his claim,
not an affirmative defense. Sometimes judges require
defendants to raise particular issues that otherwise
could be bypassed. In employment-discrimination suits,
for example, an employer that wants to contend that
some reason other than race, sex, or another protected
characteristic accounts for its decision, must offer an
explanation for the adverse employment action; the
employee need not anticipate what the employer may
have to say for itself. But once an employer explains
its action, the plaintiff bears the burden of producing
evidence to show that the explanation is a pretext for
discrimination. See, e.g., Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143–44 (2000); Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). So
too in prison litigation. Once the custodian contends
that the difference between one cell and another does not
affect liberty, the prisoner must reply with evidence.
When answering Marion’s complaint, defendants
denied that conditions in DS-1 confinement deprived
him of liberty or property. Marion had to come up with
evidence to demonstrate otherwise. His status as an
inmate does not change that burden. He could have
used discovery to gather information bearing on the
“liberty” question but did not try the procedures
of Fed. R. Civ. P. 26. When a plaintiff fails to produce
evidence, the defendant is entitled to judgment; a de-
fendant moving for summary judgment need not
produce evidence of its own. Celotex Corp. v. Catrett, 477
U.S. 317 (1986). Marion failed to meet his burden of
production. The answer to the question “does 240 days

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No. 10-2446 5
of DS-1 confinement at Columbia Correctional Center
deprive a prisoner of a liberty interest?” must await
another day.
AFFIRMED
6-2-11

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