Thomas v. Mccaughtry

Decision Date26 January 2000
Docket NumberNo. 99-1246,99-1246
Citation201 F.3d 995
Parties(7th Cir. 2000) BRIAN THOMAS, Petitioner-Appellant, v. GARY R. MCCAUGHTRY, Warden, Waupun Correctional Institution, Respondent-Appellee
CourtU.S. Court of Appeals — Seventh Circuit

Page 995

201 F.3d 995 (7th Cir. 2000)
BRIAN THOMAS, Petitioner-Appellant,
GARY R. MCCAUGHTRY, Warden, Waupun Correctional Institution, Respondent-Appellee.
No. 99-1246
In the United States Court of Appeals For the Seventh Circuit
Argued November 1, 1999
Decided January 26, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98 C 1191--J.P. Stadtmueller, Chief Judge.

Page 996

Before EASTERBROOK, RIPPLE and DIANE P. WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Brian Thomas, a Wisconsin state prisoner, received a conduct report alleging that he had engaged in "Sexual Conduct" in violation of sec. DOC 303.15 of the Wisconsin Administrative Code. He appealed the disciplinary committee's finding of guilty to the warden of the institution; the warden remanded it to the disciplinary committee for further action. After the disciplinary committee acted for the second time and found him guilty, Mr. Thomas sought review in the Wisconsin state courts through that state's certiorari proceeding. The state courts held that relief was barred because Mr. Thomas had not exhausted available administrative remedies. Mr. Thomas then sought a writ of habeas corpus in the district court. See 28 U.S.C. sec. 2254. After the court denied the petition, he took this appeal to this court. For the reasons set forth in the following opinion, we affirm the judgment of the district court because Mr. Thomas has procedurally defaulted.

Page 997


A. Facts

Brian Thomas is a state prisoner at the Waupun Correctional Institution ("WCI"), a maximum security facility in Waupun, Wisconsin. On April 3, 1997, Mr. Thomas received a conduct report alleging that he had engaged in "Sexual Conduct" in violation of sec. DOC 303.15 of the Wisconsin Administrative Code.1 The conduct report accused Mr. Thomas of washing another inmate's back with a soapy towel while both men were naked in the same shower stall. The conduct report also included these facts: (1) Mr. Thomas admitted to being bisexual and to leading this lifestyle before his incarceration; (2) the other inmate, Timothy Harrison, stated that, on a previous occasion, Mr. Thomas had tried to kiss him while they were working in the dishroom; and (3) Mr. Thomas admitted that the dishroom incident occurred but also stated that he was only "joking around." R.18 at 3.

As a result of this conduct report, WCI's adjustment committee, the committee charged with reviewing violations such as this, conducted a disciplinary hearing for Mr. Thomas on April 24, 1997. At the hearing, Mr. Thomas admitted to being in the shower with Harrison but denied any sexual intent on his part. Harrison testified that Mr. Thomas never touched him.

The committee, however, found the 2 prisoners to be incredible and instead credited the statement of the officer who had filed the conduct report.

According to the form that memorialized the committee's decision, the adjustment committee found Mr. Thomas guilty of "Sexual Conduct" as defined by sec. DOC 303.15. The committee did not indicate the subsection that Mr. Thomas had violated. As indicated by the decision form, the committee relied on the conduct report and Mr. Thomas' "DOC 120," or identification card, as evidence for its decision. The committee explained the reasons for its decision with these notes: "We find the witness not credible states inmate Thomas did not wash back while Thomas stated he did. We find Capt Strahota credible in his report of the incident. Inmate knowingly was in a shower stall with another inmate. Inmate admitted to washing the other inmates back." R.18 at 18.

A violation of the rules prohibiting "Sexual Conduct" is a major violation as defined by DOC regulations, and as such, the procedure to be followed by the corrections officials and Mr. Thomas during the course of the disciplinary proceedings was governed by sec. DOC 303.76,2 which requires inmates to appeal the decision of the adjustment committee to the superintendent, or warden, within 10 days of the committee's decision. See Wis. Admin.

Page 998

Code sec. DOC 303.76(7)(a). The warden then must decide within 10 days whether to affirm the committee's decision and sentence, affirm the decision but reduce the sentence, reverse the decision, or remand the case back to the committee. See Wis. Admin. Code sec. DOC 303.76(7)(b) & (c). According to sec. DOC 303.76(7)(d), the warden's decision is the final decision.

After being notified of the committee's decision, Mr. Thomas properly appealed to WCI's warden, Gary McCaughtry. On April 28, 1997, the warden issued his decision, which stated: "I remand back to Adjustment Committee to address reasons for decision in record. All other matters are correct. [Evidence]3 supports findings. No technical errors." R.18 at 9.

On remand, the adjustment committee completed another decision form. The committee again indicated that Mr. Thomas had been found guilty of violating sec. DOC 303.15, but the committee also provided slightly different reasons for its decision. The committee indicated that it relied not only on the conduct report and the "DOC 120" as evidence but also on "written statements" and "303.15 (A)(1)(6)," a non-existent code section. R.18 at 5. The committee explained the reasons for its decision with this paragraph:

After review of the C.R. [Conduct Report], the inmates statement, witness testimony and the evidence, we find he intentionally attempted to have sexual contact with another inmate while they were taking a shower. Both inmates were unclothed, in the same shower stall, and inmate Thomas did admit to washing inmate Harrison's back. Because of the prison setting and being an all male institution this type of behavior is not permitted.

R.18 at 5.

Mr. Thomas did not appeal this second decision to the warden. Because Mr. Thomas was found guilty of "Sexual Conduct," he lost 90 days good time credit.

B. State Court Proceedings

Mr. Thomas later filed an action for a common law writ of certiorari in the Circuit Court of Dane County, Wisconsin. He sought review of the adjustment committee's decision on remand. The court dismissed Mr. Thomas' lawsuit because, according to the court, he had failed to exhaust his administrative remedies as required by state law. The court rejected Mr. Thomas' contention that, because the warden previously had decided his case, he was not required to file an appeal of the adjustment committee's decision on remand. Noting that the adjustment committee's decision on remand referenced a non-existent code section ("303.15(A)(1)(6)"), the court explained that Mr. Thomas could have, and should have, appealed the committee's second decision because of this discrepancy. Because the court believed Mr. Thomas should have appealed this second decision, the court held that Mr. Thomas' failure to appeal was "fatal error" and that, therefore, the court lacked subject matter jurisdiction over his petition.

The Court of Appeals of Wisconsin issued an opinion which incorporated the circuit court's decision as its own and summarily affirmed the judgment of that court. The Supreme Court of Wisconsin denied review of Mr. Thomas' case.

C. Decision of the District Court

Subsequently, Mr. Thomas commenced this federal habeas proceeding by filing his petition in the district court. He raised 2 issues in his habeas petition to the district court. First, Mr. Thomas alleged that he was mistreated while in segregation at WCI. Second, he challenged his loss of 90 days good time credit for violating sec. DOC 303.15. The district court held that Mr. Thomas had failed to exhaust any of his administrative remedies regarding his alleged mistreatment in segregation.

Page 999

The court also determined that Mr. Thomas' claim regarding the violation of sec. DOC 303.15 was barred because he had failed to appeal the second decision of the adjustment committee. The court also held that, even if Mr. Thomas had not defaulted his claim as to the DOC violation, that claim would not be cognizable under sec. 2254 because Mr. Thomas only lost statutory good time credits.4 Thus, the district court dismissed Mr. Thomas' habeas petition.

After the district court dismissed his petition, Mr. Thomas filed a notice of appeal and sought to proceed in forma pauperis. The district court refused to provide a certificate of appealability and denied Mr. Thomas' request to proceed in forma pauperis. A judge of this court granted the certificate of appealability and leave to proceed in forma pauperis.


In the district court, Mr. Thomas raised 2 claims in his habeas corpus petition. The first claim, relating to his treatment while in segregation, has been abandoned on appeal. Mr. Thomas focuses instead on his second claim-- that, because the adjustment committee had insufficient evidence to find...

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