Michael Scott Fiorito v. M. SEGAL, Warden

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 16, 2022*
Decided October 3, 2022
Before
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-1559
MICHAEL SCOTT FIORITO,
Plaintiff-Appellant,
v.
M. SEGAL, Warden, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Central District of Illinois.
No. 1:18-cv-01198-JES
James E. Shadid,
Judge.
O R D E R
Michael Fiorito, a federal inmate, sued his prison’s warden and several
correctional officers for allegedly filing a false incident report against him and
subjecting him to abject conditions of confinement. Fiorito previously brought a similar
suit, which was dismissed, and the Bureau of Prisons expunged the disciplinary
conviction after an administrative review. The district court dismissed Fiorito’s
* 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. Fed. R. App. P. 34(a)(2)(C). Circuit Judge Kanne was on the
panel to which the case was submitted but died on June 16, 2022. The case is being
resolved under 28 U.S.C. § 46(d) by a quorum of that panel.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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complaint as barred by claim preclusion and the statute of limitations. It then declined
to reconsider, ruling that the prison gave Fiorito all the process he was due. On appeal,
Fiorito argues that he could not have brought his due-process claim earlier. We agree
with him, but we nevertheless affirm the dismissal on other grounds.
Because we are considering a grant of a motion to dismiss Fiorito’s complaint, we
recount the allegations in the light most favorable to him and make all reasonable
inferences on his behalf. Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). In 2015, while
incarcerated at FCI Pekin, Fiorito alleges, he saw a female guard hand an inmate some
blank tax forms. That inmate asked Fiorito to help him file false returns. Officer Gregory
Kursock became aware of what Fiorito saw, asked him to implicate another guard, and
threatened to send Fiorito to “the hole” if he refused. Fiorito did not comply. One week
later, he was transferred to restrictive housing and was placed in a cell with a violent
inmate who sexually assaulted and beat him the next day.
Fiorito sued the prison’s warden and several correctional officers for violating his
rights under the First and Eighth Amendments and state tort law. Fiorito v. Samuels, No.
16-1064, 2016 WL 3636968 (C.D. Ill. June 30, 2016). He alleged that the defendants
retaliated against him for refusing to implicate the wrong officer in the tax-fraud
scheme and subjected him to cruel conditions of confinement. But Fiorito repeatedly
refused to respond to discovery requests, lied in sworn filings, and did not respond to
court orders. The district court eventually dismissed his case with prejudice as a
sanction for these failures. Id., 2018 11307319 (C.D. Ill. Apr. 16, 2018). The dismissal
operated as a final dismissal on the merits. Fed. R. Civ. P. 41(b); Tartt v. Northwest
Community Hospital, 453 F.3d 817, 822 (7th Cir. 2006).
Fiorito also reported his assault through the prison’s grievance system. Fiorito
alleges that when Kursock found out, he threatened to file a false conduct report against
Fiorito if he did not recant his claims about his assault. Fiorito recanted but was still
written up the next week for illegal use of the mail. At his disciplinary hearing, Fiorito
alleges, he was not allowed to present witnesses, and potentially exculpatory video
evidence was destroyed.
Fiorito was found guilty. He lost 41 days of good-time credits and was fined 50
dollars. He was held in restrictive housing for five months without a functioning toilet
or daily shower, near an inmate who assaulted him. The disciplinary conviction also
increased his security score, resulting in his transfer to FCI Gilmore, a higher-security
prison.

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No. 20-1559 Page 3
At FCI Gilmore, Fiorito sought to expunge the allegedly false report through the
Bureau of Prison’s review process. See 28 C.F.R. § 542.10–19. The Bureau’s regional
director sent the report back to FCI Pekin to be reinvestigated. Over six months passed
with no action from the prison, so Fiorito filed a petition for writ of habeas corpus to
restore his credits. Fiorito v. Saad, No. 2:16cv36, 2017 WL 3712913 (N.D. W. Va. July 10,
2017). Three weeks later, the report was expunged. The Bureau restored his credits and
refunded his fine, and the court then dismissed his habeas petition as moot. 2017 WL
3711815 (N.D. W. Va. Aug. 28, 2017).
In May 2018, just under two years after the expungement, Fiorito brought this
action against the same defendants he named in his 2015 suit. He re-alleged his 2015
claims and added a claim under Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), alleging that he was deprived of due process in the disciplinary proceedings. At
screening under 28 U.S.C. § 1915A, the district court dismissed Fiorito’s complaint in its
entirety. It ruled that res judicata (claim preclusion) barred the claims Fiorito repeated
from the Samuels litigation, and that Illinois’s two-year statute of limitations barred the
rest.
Fiorito moved to alter the judgment under Federal Rule of Civil Procedure 59(e).
He argued only that his due-process claim was not time-barred or precluded because,
under Heck v. Humphrey, 512 U.S. 477, 487 (1994), his claim did not accrue until the
report was expunged. See also Edwards v. Balisok, 520 U.S. 641, 648 (1997) (applying Heck
to prison disciplinary proceedings); Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997)
(applying Heck to Bivens actions). He could not have brought it in his 2015 action, and
he filed this suit within two years of the expungement.
Sidestepping the Heck issue, the district court ruled this time that Fiorito’s due-
process claim was meritless because his conviction had been expunged: His successful
administrative appeal gave him all the process he was due. The court therefore denied
Fiorito’s motion to reconsider, and he appealed two weeks later.
We first establish the scope of this appeal. Fiorito contends that his due-process
claim was wrongly dismissed. But the appellees argue that because Fiorito’s Notice of

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Appeal mentions only the denial of his Rule 59(e) motion, we are limited to reviewing
only that order, not the underlying judgment.1
The appellees are mistaken. Fiorito’s timely appeal from the denial of his Rule
59(e) motion brought up that ruling and the underlying judgment: “the ruling on the
Rule 59(e) motion merges with the prior determination, so that the reviewing court
takes up only one judgment.” Banister v. Davis, 140 S. Ct. 1698, 1703 (2020); Fed. R. App.
P. 4(a)(4)(iv).
Reviewing the dismissal de novo, meaning we decide the legal issues without
deference to the district court’s decision, we conclude that neither claim preclusion nor
the statute of limitations bars Fiorito’s due-process claim. Fiorito did not bring a due-
process challenge in 2015, and he correctly points out that he could not have done so.
His claim did not accrue until the report was expunged. See Balisock, 520 U.S. at 648;
Savory v. Cannon, 947 F.3d 409, 417–18 (7th Cir. 2020) (en banc). Claim preclusion
applies only to claims that were or could have been brought in a previous case, and
Fiorito’s due-process claim could not have been brought then. See Lucky Brand
Dungarees, Inc. v. Marcel Fashions Grp. Inc., 140 S. Ct. 1589, 1594–95 (2020). Because
Fiorito brought this action within two years of the expungement, the two-year statute of
limitations for Bivens claims in Illinois also does not apply. See Savory, 947 F.3d at 413.
Nor does the administrative process that Fiorito received amount to adequate
process as a matter of law. An administrative appeal satisfies due process if it cures a
procedural defect and safeguards a prisoner’s protected interest. Morissette v. Peters,
45 F.3d 1119, 1121–22 (7th Cir. 1995). But the appeal must correct the defect before the
punishment is carried out. Id. at 1122 n.4. The district court cited Sanchez v. Godinez,
2014 WL 1097435 (S.D. Ill. Mar. 20, 2014), for the proposition that an expungement
demonstrates sufficient process and therefore bars a due-process claim. Sanchez’s
problem, however, was that no liberty interest was implicated by his 30 days in
segregation without a complaint about the conditions. Fiorito’s five-month confinement
and the conditions he alleges warranted a closer look. See Hardaway v. Meyerhoff, 734
F.3d 740, 743–44 (7th Cir. 2013).
Still, we affirm the dismissal for a different reason. The district court did not
have to decide that Fiorito received due process because he did not have a claim to
1 The appellees were not served in the district court, but after receiving notice of
the appeal, the Office of the United States Attorney appeared for all the appellees. Docs.
3, 4, 37.

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begin with. There is no statutory remedy for violations of constitutional rights by
federal officials, so Fiorito must proceed under Bivens. But Bivens allows redress for only
a narrow set of constitutional claims. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (calling
the expansion of Bivens beyond three well-established circumstances a “disfavored
judicial activity”). We have not recognized a remedy under Bivens for procedural due-
process violations, and the Supreme Court has four times declined to do so. Id.
(collecting cases).
We decline to expand Bivens here because federal prisoners typically have
alternate remedies for procedural violations in disciplinary proceedings. The existence
of another remedy, even if incomplete, weighs against courts creating new ones. Id. at
1862, 1865. The Bureau of Prisons allows prisoners to challenge faulty disciplinary
proceedings under 28 C.F.R. § 542.10–19. Fiorito pursued that remedy and won some
relief. He also brought various state-law claims in prior litigation. The fact that his
claims were ultimately dismissed because of his litigation misconduct does not affect
whether that remedy was available to him. See Minneci v. Pollard, 565 U.S. 118, 129
(2012). Fiorito failed to state a federal claim because Congress has not provided a
remedy for this kind of alleged constitutional violation by federal officers, and we
cannot contradict the Supreme Court to fill that gap.
AFFIRMED.

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