Daryl K. Burnett, Jr. v. Keith Butts

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 16, 2023*
Decided August 16, 2023
Before
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-1198
DARYL K. BURNETT, JR.,
Plaintiff-Appellant,
v.
KEITH BUTTS, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 2:21-cv-00201-JRS-MJD
James R. Sweeney II,
Judge.
O R D E R
A district court granted the habeas petition of Daryl Burnett, an Indiana prisoner,
to restore some good-time credits, ruling that the prison had removed them without
due process. Burnett has now sued the prison’s staff, alleging that they violated his due-
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 22-1198 Page 2
process rights when removing those credits. The district court dismissed the complaint
at screening. Because Burnett has adequately alleged that a hearing officer deprived
Burnett of those credits without due process, we affirm in part and vacate in part.
At the pleading stage, we take as true Burnett’s allegations in his complaint and
any consistent, additional allegations in his appellate brief. See Schillinger v. Kiley,
954 F.3d 990, 993–94 (7th Cir. 2020); Echols v. Craig, 855 F.3d 807, 811 (7th Cir. 2017).
When Burnett was incarcerated at the New Castle Correctional Facility in 2018, he was
charged with violating prison rules by possessing something that resembled a
controlled substance. At the disciplinary hearing, a hearing officer (referred to as “T.
Thompson”) did not allow Burnett to present evidence, told him that he will be
convicted “with or with[ou]t evidence,” and then convicted Burnett of the infraction
without any evidence. Burnett’s administrative appeals were initially unsuccessful.
Burnett faced several consequences because of his conviction. First, he lost good-
time credits. In addition, he lost his prison jobs and some wages associated with them;
he was transferred to segregation for an unspecified time in another prison; and he lost
various privileges (phone time, visitation, commissary, and prison programming).
Burnett litigated this discipline in two steps. First, he successfully petitioned for a
writ of habeas corpus. The district court reasoned that the record did not contain “some
evidence” that Burnett had violated the prison rules; therefore, discipline was
unwarranted. See Burnett v. Warden, No. 1:18-cv-04078-RLY-DLP (S.D. Ind. Dec. 12,
2019). As a result, the prison restored Burnett’s good-time credits just over a year after
having taken them away.
Second, Burnett sued Thompson and two others under 42 U.S.C. § 1983 for
violating his due-process rights under the Fourteenth Amendment, seeking damages.
The district court screened and dismissed his complaint under 28 U.S.C. § 1915A but
allowed him to amend it. Burnett did so, adding new defendants and allegations about
inhumane conditions at his new prison. The court dismissed without prejudice the new
claims and defendants as misjoined with the due-process claims, and it again dismissed
the due-process claims, this time with prejudice. It reasoned that his job and wage
losses, segregation, and reduced privileges did not involve any interests that his right to
due process protected. The court did not address Burnett’s loss of good-time credits.
On appeal, Burnett maintains that the defendants deprived him of liberty and
property interests without due process. We review the screening order dismissing that
claim de novo, using the same standard for reviewing a motion to dismiss under

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No. 22-1198 Page 3
Rule 12(b)(6) of the Federal Rules of Civil Procedure. Schillinger, 954 F.3d at 993–94. We
begin with his loss of good-time credits. The defendants argue—in a single, citation-free
sentence—that Burnett’s loss of good-time credits did not deprive him of liberty
because the prison returned his credits after he successfully petitioned the court.
Burnett is correct that his loss of good-time credits deprived him of a protected
liberty interest during the period that the prison withheld them. Indiana prisoners have
a liberty interest in good-time credits, and state officials may not revoke them without
due process. Ellison v. Zatecky, 820 F.3d 271, 274 (7th Cir. 2016). The subsequent return
of his credits does not negate his claim because prisoners may not seek damages for
procedurally flawed hearings that deprive them of their liberty in good-time credits
unless and until the deprivation is overturned. See Edwards v. Balisok, 520 U.S. 641, 646,
648 (1997); Savory v. Cannon, 947 F.3d 409, 415, 426 (7th Cir. 2020) (en banc). But once
that has occurred, prisoners may seek damages under § 1983 for the period during
which they were deprived of liberty. See Edwards, 520 U.S. at 646, 648; Morgan v. Schott,
914 F.3d 1115, 1122 (7th Cir. 2019). Burnett’s successful habeas petition and the return of
good-time credits—rather than preventing this suit—was its prerequisite.
Because Burnett has alleged that the defendants deprived him of his liberty in
good-time credits, we ask whether he alleged that they did so without due process.
See Lisle v. Welborn, 933 F.3d 705, 720–21 (7th Cir. 2019). State officials deny a prisoner
due process if, before depriving the prisoner of liberty, they do not provide (1) an
impartial decisionmaker, (2) “some evidence” for the conviction, and (3) a limited
chance to present a defense. See Superintendent v. Hill, 472 U.S. 445, 454 (1985); Chambers
v. Ciolli, 19 F.4th 984, 986 (7th Cir. 2021); Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011).
Burnett has alleged that Thompson denied him these procedures: Thompson was not
impartial, promising to find Burnett guilty no matter what. Cf. Prude v. Meli, No. 21-
1320, 2023 WL 5010780, at *5 (7th Cir. Aug. 7, 2023) (vacating judgment for prison
investigator because his statement that property would not be returned “no matter
what happened during the hearing” required trial on § 1983 suit about unfair hearing).
In addition, Thompson did not allow Burnett to challenge the evidence against him, and
Thompson convicted Burnett with no evidence of a violation. We thus must remand the
case for further proceedings on the claim against Thompson. But Burnett has not stated
a similar claim against the two other defendants (the warden and an “appeal review
officer”). He states only that they “denied him due process,” but he does not supply, in
his complaint or appellate brief, the required factual details of what they did wrong.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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No. 22-1198 Page 4
We pause to observe that, on remand, the damages available from Thompson are
limited. The defendants may argue that Burnett did not spend more time in prison as a
result of his temporary loss of good-time credits. But beyond that, as a prisoner Burnett
is barred from recovering emotional damages without a physical injury, see 42 U.S.C.
§ 1997e(e), and he alleges none. He may, however, seek nominal damages. Manley v.
Law, 889 F.3d 885, 890 (7th Cir. 2018) (citing Carey v. Piphus, 435 U.S. 247, 263–64, 266
(1978)). Burnett may also seek punitive damages, because, as he states in his appellate
brief, Thompson promised to convict Burnett “with or with[ou]t evidence,” and this
allegation, if true, could allow a jury to find that Thompson acted with an “evil motive”
or “reckless or callous indifference” to Burnett’s procedural rights, a condition of
punitive damages. Green v. Howser, 942 F.3d 772, 781 (7th Cir. 2019).
The rest of Burnett’s alleged losses do not involve interests protected by due-
process rights. First, he alleges that after his disciplinary conviction he was put in
segregation. Segregation affects a liberty interest only when it “imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life,”
Sandin v. Conner, 515 U.S. 472, 484 (1995), which depends on the duration and
conditions of the segregation, Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013).
But Burnett alleges no details about his segregation, despite receiving an opportunity to
amend his complaint; without those facts, his claim fails. See Lisle, 933 F.3d at 720–21.
Second, Burnett appears to allege that, after the prison restored his credits, it
never paid him wages for prison work he completed before his disciplinary conviction.
He contends that a policy of the Indiana Department of Corrections mandates that, once
the prison restored his credits, the Department had to pay those wages. But this is a
substantive claim against the Department, not a procedural claim about due process
against the three individual defendants he has sued. See Taake v. County of Monroe,
530 F.3d 538, 543 (7th Cir. 2008). And because he has not sued the Department for
money—nor could he in this court, see Wynn v. Southward, 251 F.3d 588, 592 (7th Cir.
2001) (Indiana Department of Corrections entitled to sovereign immunity)—the claim
fails.
Finally, we quickly dispatch Burnett’s other allegations. He does not have a
liberty interest in (1) attending prison programming, Zimmerman v. Tribble, 226 F.3d 568,
571–72 (7th Cir. 2000); (2) avoiding transfer to another prison, Lekas v. Briley, 405 F.3d
602, 609 (7th Cir. 2005); (3) phone, visitation, or commissary privileges, id. at 610–12;
Thomas v. Ramos, 130 F.3d 754, 762 n.8 (7th Cir. 1997); or (4) his prison job, DeWalt v.
Carter, 224 F.3d 607, 613 (7th Cir. 2000), abrogated on other grounds by Savory, 947 F.3d

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at 422–23. Therefore, the prison could withhold these aspects of prison life from Burnett
without offending his right to due process.
We thus AFFIRM the judgment in all respects, except that we VACATE the
judgment as to Thompson on Burnett’s due-process claim and REMAND for further
proceedings consistent with this order. Given the narrow scope of the remand, we
encourage the parties to resolve this matter expeditiously.

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