Whitford v. Boglino

• Decision Date: 29 June 1995
• Docket Number: No. 93-2660,93-2660
• Citation: 63 F.3d 527
• Parties: Larry WHITFORD, Plaintiff-Appellant, v. Captain BOGLINO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 527

63 F.3d 527

Larry WHITFORD, Plaintiff-Appellant, v. Captain BOGLINO, et al., Defendants-Appellees.

No. 93-2660.

United States Court of Appeals Seventh Circuit.

Submitted June 29, 1995. ^*

Decided Aug. 4, 1995.

Rehearing Denied Aug. 30, 1995.

Larry Whitford, pro se.

Brian F. Barov, Office of Atty. Gen., Crim. Appeals Div., Chicago, IL, Thomas S. Gray, Office of Atty. Gen., Springfield, IL, Agather McKeel, Asst. Atty. Gen., Office of Atty. Gen., East St. Louis, IL, for defendants-appellees.

Before CUMMINGS, COFFEY and ROVNER, Circuit Judges.

PER CURIAM.

Larry Whitford brought suit under 42 U.S.C. Sec. 1983 against several officers of the Illinois Department of Corrections alleging a number of violations of his due process rights in a prison disciplinary proceeding. In 1989, when Whitford was an inmate at the Shawnee Correctional Center, ¹ an adjustment committee composed of defendants Boglino, Chaney, and Green convicted him of assault ² and sentenced him to six months of segregation, six months of loss of good time credits, demotion to C grade for six months, and transfer to a maximum security institution. ³ Whitford has consistently maintained his innocence; he contends that he witnessed a fight between two other inmates (Gardner and Wilson) but did not participate in any way. Gardner and Wilson signed affidavits stating that Whitford was not involved in the fight. Whitford sued the members of the disciplinary committee, the investigating officers and their supervisors, claiming that the defendants violated his due process rights by not conducting an impartial investigation, not considering Gardner and Wilson's affidavits, failing to provide him with an impartial adjustment committee, and not providing a sufficient explanation of the basis for his conviction. The district court granted summary judgment to the defendants. Whitford appeals, disputing the merits of the district court's decision. Whitford also argues that the court erred by allowing the defendants to submit successive motions for summary judgment.

I. Successive Summary Judgment Motions

On the defendants' first motion for summary judgment, the district court granted the motion as to some of the defendants but denied it as to others. At a later point in the proceedings, the defendants filed another summary judgment motion offering a new legal theory and arguing that summary judgment should be granted to the remaining defendants. The district court granted this motion. Whitford argues that the denial of summary judgment to some of the defendants on the first motion precluded them from filing a later motion for summary judgment. We believe, however, that the court had the discretion to accept the renewed motion.

The doctrine of res judicata bars parties or their privies from relitigating a final judgment on the merits where the issues were or could have been raised in the first action. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427-28, 69 L.Ed.2d 103 (1981); Hawxhurst v. Pettibone Corp., 40 F.3d 175, 180 (7th Cir.1994). The denial of summary judgment is not a final judgment; rather, it is an interlocutory order. R.R. Donnelley & Sons Co. v. FTC, 931 F.2d 430, 431 (7th Cir.1991); Matterhorn, Inc. v. NCR Corp., 727 F.2d 629, 632 (7th Cir.1984). Thus, the denial of summary judgment has no res judicata effect, and the district court may, in its discretion, allow a party to renew a previously denied summary judgment motion or file successive motions, particularly if good reasons exist. Kirby v. P.R. Mallory & Co., Inc., 489 F.2d 904, 913 (7th Cir.1973), cert. denied, 417 U.S. 911, 94 S.Ct. 2610, 41 L.Ed.2d 215 (1974); Fernandez v. Bankers National Life Ins. Co., 906 F.2d 559, 569 (11th Cir.1990); see also Enlow v. Tishomingo County, Mississippi, 962 F.2d 501, 507 (5th Cir.1992); James W. Moore, et al., Moore's Federal Practice p 56.20 (2d ed. 1994). A renewed or successive summary judgment motion is appropriate especially if one of the following grounds exists: "(1) an intervening change in controlling law; (2) the availability of new evidence or an expanded factual record; and (3) need to correct a clear error or prevent manifest injustice." Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.1986), aff'd in part, rev'd in part on other grounds, 828 F.2d 514 (9th Cir.1987), cert. denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988).

In the instant case, the district court apparently allowed the defendants to submit a second summary judgment motion because they presented a new and (in the eyes of the district court) more convincing legal argument. Although it is desirable for defendants to present their strongest arguments in their initial summary judgment motion, the trial judge, in the exercise of his discretion, saw fit to receive the revised summary judgment motion. The district court did not abuse its discretion by allowing the defendants to submit a successive motion for summary judgment. Cf. Kirby, 489 F.2d at 913; Enlow, 962 F.2d at 507 n. 16 ("In fact, the district court may reconsider a previously denied summary judgment motion even in the absence of new material presented."); Fernandez, 906 F.2d at 569.

II. Liability of Supervisory Officials

Whitford alleges that defendants McGinnis (director of the Illinois Department of Corrections), Sandahl (then-warden of the Shawnee Correctional Center), and Welborn (then-warden of the Menard Correctional Center) are liable for failing to oversee and correct the alleged violations of their subordinates. To state a claim under Sec. 1983, however, Whitford must allege that McGinnis, Sandahl, and Welborn were personally involved in the deprivation of his due process rights. Rascon v. Hardiman, 803 F.2d 269, 273-74 (7th Cir.1986). Whitford does not argue that McGinnis, Sandahl, or Welborn ordered, had knowledge of, or consented to the alleged violations. Thus, we agree that the district court's grant of summary judgment to McGinnis, Sandahl, and Welborn was proper.

III. Prehearing Investigation

Whitford argues that Groaning violated his due process rights during the prehearing investigation by failing to submit the exculpatory affidavits to the committee. Illinois administrative regulations require an investigating officer to submit exculpatory evidence "of a convincing nature" to the adjustment committee. 20 Ill.Admin.Code. ch. 1 Sec. 504.60(e). Whitford presented the affidavits to Groaning, and he argues that Groaning's failure to submit them to the committee, in violation Sec. 504.60(e), constituted a deprivation of his due process rights.

The Supreme Court has held that state administrative regulations create federally enforceable liberty interests if they contain "mandatory language" and "specific substantive predicates." Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 462-63, 109 S.Ct. 1904, 1909-10, 104 L.Ed.2d 506 (1989); Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983). However, in the recent case of Sandin v. Conner, --- U.S. ----, 115 S.Ct. 2293, 132 L.Ed.2d 418 (U.S.1995), the Court stated that state prison regulations will create federally enforceable liberty interests in limited situations only. In Sandin, the Court noted that most prison regulations are not intended to create liberty interests. Sandin, --- U.S. at ---- - ----, 115 S.Ct. at 2298-99, Thompson and Hewitt, however, "encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges." Id. In addition, the Thompson and Hewitt method discouraged states from adopting prison regulations, because they could "avoid [the] creation of 'liberty' interests by having scarcely any regulations, or by conferring standardless discretion on correctional personnel." Id. at ----, 115 S.Ct. at 2299.

Consequently, the Sandin Court held that state prison regulations will not ordinarily create federally enforceable liberty interests. ⁴ The Court realized, however, that certain states have in the past granted certain rights to inmates in limited circumstances. For instance, a state may possibly relieve inmates from severe disciplinary actions until such time as they have been convicted of an offense. Thus, the Sandin Court held that states may still create liberty interests through prison regulations, "[b]ut these [liberty] interests will be generally limited to freedom from restraint which ... imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, --- U.S. at ----, 115 S.Ct. at 2300. ⁵

Groaning's failure to submit the affidavits to the committee did not, in and of itself, cause any "significant hardship" to be imposed on Whitford, so the adoption of Sec. 504.60(e) by the state of Illinois does not rise to the level of creating a liberty interest. Even if Whitford had a right, enforceable in state court under Sec. 504.60(e), to have the investigating officer submit the affidavits to the committee, Groaning's alleged violation of the regulation did not affect Whitford's ultimate conviction. Section 504.60(e) is a procedural regulation that governs the conduct of the investigating officer. If Whitford believed that the committee should consider the affidavits, he retained the right to submit them himself, which he did. Thus, Whitford cannot claim that the violation of Sec. 504.60(e) prevented him from presenting a defense or otherwise caused him to be improperly convicted. Groaning's actions did not cause Whitford to lose freedom from restraint or place a significant hardship on him. Thus, under Sandin, Sec. 504.60(e) does not grant Whitford a federally enforceable liberty interest.

In addition, Whitford may not claim that Groaning's failure to submit the affidavits was an independent violation of his federal due process rights. Whitford has no federal due process right to...