918 F.2d 180 (7th Cir. 1990), 89-2843, Schilling v. Goodrich

Citation918 F.2d 180
Party NameRonald S. SCHILLING, Plaintiff-Appellant, v. Patricia GOODRICH both individually and in her capacity as Secretary of Health and Social Services and State of Wisconsin, Defendants-Appellees.
Case DateOctober 15, 1990
CourtUnited States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

Page 180

918 F.2d 180 (7th Cir. 1990)

Ronald S. SCHILLING, Plaintiff-Appellant,

v.

Patricia GOODRICH both individually and in her capacity as Secretary of Health and Social Services and State of Wisconsin, Defendants-Appellees.

No. 89-2843.

United States Court of Appeals, Seventh Circuit

October 15, 1990

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Decided Oct. 25, 1990.

Appeal from the United States District Court for the Eastern District of Wisconsin, No. 89 C 576, Thomas J. Curran, Judge.

E.D.Wis.

AFFIRMED.

Before BAUER, Chief Circuit Judge, and POSNER, Circuit Judge, and PELL, Senior Circuit Judge.

ORDER

Ronald Schilling filed a complaint in the district court alleging that the Wisconsin Department of Health and Social Services (the Department) violated his constitutional rights when they refused to change his security status from medium security to minimum security. Schilling alleged that the Department failed to follow proper procedures in altering the criteria for determining security status, which resulted in the improper decision to retain his medium security rating. The district court denied leave for Schilling to proceed in forma pauperis, and denied Schilling's subsequent motion for reconsideration. The court granted, however, leave to proceed in forma pauperis on appeal. The issue on appeal is whether the district court improperly denied leave to proceed in forma pauperis in the district court.

The essence of Schilling's complaint, and the only recognizable constitutional claim, is that the Department violated his right to due process under the Fourteenth Amendment by improperly refusing to change his status. 1 In order to succeed in his due process claim, Schilling must be able to demonstrate the impairment of a liberty interest. "A liberty interest may arise from the due process clause itself ... or it may be created by statute or binding administrative regulation." Castaneda v. Henman, --- F.2d ----, No. 89-1353, slip op. at 4 (7th Cir. October 1, 1990).

In this case, Schilling essentially contends that Wisconsin Administrative Code HSS 302 provides substantive criteria governing security classification which give rise to a liberty interest. A regulation, however, only creates a liberty interest if it employs language "of an unmistakably...

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