Schacht v. Wisconsin Dept. of Corrections

• Decision Date: 16 April 1999
• Docket Number: No. 96-3633,96-3633
• Citation: 175 F.3d 497
• Parties: Keith D. SCHACHT, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF CORRECTIONS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 497

175 F.3d 497

Keith D. SCHACHT, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF CORRECTIONS, et al., Defendants-Appellees.

No. 96-3633.

United States Court of Appeals Seventh Circuit.

Decided April 16, 1999.

David E. Lasker, Madison, WI, for Plaintiff-Appellant.

Richard Briles Moriarty, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before BAUER, CUDAHY, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

This case is about two pounds of butter, two garbage bags, six pens, and a three-ounce tube of toothpaste, but its paltry material basis has not kept it from occasioning the loss of one man's livelihood, the attentions of state and federal trial judges, two separate rounds of intermediate appellate review and even a trip to the Supreme Court. With this opinion, we hope to write the final stanzas of the epic.

I

Keith Schacht began his 11-year career with the Wisconsin Department of Corrections in 1982. For more than a decade, he received uniformly favorable performance reviews, but that changed abruptly in January 1993, when he was discharged from the Oakhill Correctional Center ("Oakhill") on charges of stealing from his employer.

As Schacht relates the tale, his problems began with the innocuous fact that he occasionally sold frozen food products, such as pizzas and seafood, from his home. When he could, Schacht also provided his seafood customers with free butter. This largesse was possible because his daughter, who was responsible for disposing of excess government commodity butter stored in a Green Bay facility, was often able to pass some of the butter along to him. (We do not know why this is so, but as no one has raised any questions about it, we inquire no further into this peripheral aspect of the case.)

On January 20, 1993, Schacht arrived at Oakhill to begin his overnight shift. At that time, according to Schacht, he brought with him two pounds of his daughter's government-issue butter to give to a co-worker, Arden Wilson, who earlier had purchased some frozen seafood. Because Schacht missed Wilson on the way in but planned to see him when his shift ended at 6:00 a.m., he stored the butter in a prison freezer overnight. When he removed it from the freezer, he wrapped it in two prison-issue garbage bags (because the butter would become "sweaty" out of the freezer) and placed it in his backpack as he was leaving.

Unbeknownst to Schacht, Oakhill Warden Catherine Farrey, one of the defendants here, had authorized a search of his belongings after the end of his shift that day. She did so based on a written report she received from Sergeant B.J. Mikkelson, who had passed along his suspicions that Schacht was stealing items such as juice and honey from the prison for his personal use. Following Farrey's orders, defendant Captain Thomas Laliberte stopped Schacht as he was leaving the prison the morning of January 21, 1993 and asked him to empty his backpack. Schacht's union representative accompanied Laliberte.

The ensuing search revealed the two pounds of bagged butter, as well as six pens and a small tube of toothpaste similar to the types of pens and toothpaste in use at Oakhill. Laliberte, believing that all of these items had been stolen from the prison, suspended Schacht without pay pending an investigation of his suspected thefts.

On February 4 and 12, 1993, Schacht attended investigatory interviews run by Laliberte and defendant Randall Hepp, another Oakhill employee. Schacht regarded these interviews as a sham designed solely to build a false case against him. He believed that Laliberte and Hepp harbored animosity toward him because he always acted "by the book" and confronted those of his fellow officers who failed to adhere to official prison policy. This resentment, according to Schacht, was what motivated the set-up over the trivial items in his backpack, which in turn laid the groundwork for Laliberte, Hepp, and other prison officials to prevent him from becoming first-shift officer at Cottage 8, where he worked. The remaining two defendants, Cynthia O'Donnell (security director) and Rita Smick (personnel manager), were allegedly aware of the animosity between Schacht and some of the other officers and failed to inform Warden Farrey of the problem.

By February 17, 1993, prison officials had completed their investigation. They held a pre-disciplinary meeting with Schacht and his union representative at which he was told that the investigation had revealed that he had violated two work rules: theft of state property and failure to provide complete and accurate information during the investigation. He was warned that the disciplinary consequences could include discharge. Schacht declined to make a statement in his own defense. Schacht was in fact discharged the next day at a meeting at which he again declined to make a statement.

Schacht began grievance proceedings through his union, but the union declined to take the case to arbitration. Schacht then commenced this action under 42 U.S.C. § 1983 against all of the defendants in state court, alleging violations of his constitutional rights to substantive and procedural due process. The defendants removed the case to the District Court for the Western District of Wisconsin. That court granted summary judgment for the defendants in their individual capacities, and it dismissed Schacht's claims against the Wisconsin Department of Corrections and the individual defendants in their official capacities as barred by the Eleventh Amendment.

This appeal, in which Schacht challenges only the summary judgment on the individual capacity claims, followed. Following our earlier decision in Frances J. v. Wright, 19 F.3d 337 (7th Cir.1994), we held that we lacked jurisdiction to hear the appeal because a case that included both proper federal claims and claims barred by the Eleventh Amendment could not be removed to federal court. See Schacht v. Wisconsin Dep't of Corrections, 116 F.3d 1151 (7th Cir.1997). The state, however, successfully persuaded the Supreme Court to review that holding. In an opinion emphasizing the fact that the Eleventh Amendment gives a state the power to assert an immunity defense, but does not compel it to do so, the Court ruled that a federal court must not raise a potential Eleventh Amendment issue sua sponte. It reversed our jurisdictional ruling and remanded the case for further proceedings. Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). Because the merits of Schacht's appeal were fully developed prior to our first opinion, both in the briefs and at oral argument, we are now ready to reach the merits of the appeal.

II

We review the district court's order granting summary judgment for the defendants de novo, viewing the facts in the record and any inferences to be drawn from them in the light most favorable to Schacht, the non-moving party. Reid v. Norfolk & Western Ry. Co., 157 F.3d 1106, 1110 (7th Cir.1998). Summary judgment is appropriate only if the movant demonstrates that no genuine issue of material fact exists which would warrant requiring a judge or jury to make a factual determination, and the movant under that view of the record is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Schacht here raises two related but distinct claims. First, he contends that prison officials engaged in such arbitrary and utterly unreasonable governmental decisionmaking in regard to his property right to his state employment that they violated his rights under the substantive aspect of the Due Process Clause. Second, he alleges that his procedural due process rights were violated when the procedural protections he received before being deprived of his state employment were nothing more than a sham cooked up by conspirators trying to oust him from his job. This, he claims, amounts to no procedural protections at all.

As a threshold matter, the defendants argue that Schacht has waived any substantive due process claim by failing to argue the point to the district court. It is true that Schacht's complaint, as well as his brief in opposition to the defendants' motions, does not clearly identify the exact due process theory he is pressing. Nonetheless, the district court was willing to assume that Schacht was presenting, however inartfully, both substantive and procedural due process claims, and it proceeded to discuss each. We insist that an appellant have presented her argument to the trial court to be certain that the court below has had the first opportunity to consider and pass on the appellant's theory. United States v. Payne, 102 F.3d 289, 293 (7th Cir.1996). Because the trial court discussed Schacht's substantive due process claim and it has been fully briefed here, we are satisfied that we too should address it on the merits.

Our willingness to consider this argument will be of only fleeting comfort to Schacht, however, because we find his substantive due process claim to be fatally flawed on several fronts. This follows from two of the Supreme Court's most recent decisions that considered substantive due process arguments, County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), and Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). As we explained in our own decision in Dunn v. Fairfield Community High School Dist. No. 225, 158 F.3d 962 (7th Cir.1998), substantive due process does not come into play when a particular part of the Constitution "provides an explicit textual source of constitutional protection against a particular sort of government behavior," id. at 965, quoting Lewis, 118 S.Ct. at 1714, 118 S.Ct. 1708. In addition, an executive abuse of power violates substantive due process rights only if the executive action is so egregious as to shock the...