Michael R. Carrico v. Frank Vanihel

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 24, 2023 *
Decided October 25, 2023
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-1381
MICHAEL R. CARRICO,
Plaintiff-Appellant,
v.
FRANK VANIHEL, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 2:20-cv-00472-JPH-MG
James Patrick Hanlon,
Judge.
O R D E R
Michael Carrico, an Indiana prisoner, appeals the entry of summary judgment
rejecting his claims that prison officials violated his constitutional rights in connection
* 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. A PP. P. 34(a)(2)(C). We have substituted Frank
Vanihel, the current warden of Wabash Valley Correctional Facility, for Richard Brown.
FED. R. A PP. P. 43(c)(2).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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with his placement in disciplinary and administrative segregation. See 42 U.S.C. § 1983.
We affirm in part, and remand and vacate in part.
We recount the facts in the light most favorable to Carrico, the non-moving party
at summary judgment. Smallwood v. Williams, 59 F.4th 306, 310 (7th Cir. 2023). Carrico,
while imprisoned at Wabash Valley Correctional Facility, was found guilty by a prison
disciplinary committee of possessing a cell phone, possessing a weapon, and inciting a
riot. He was sentenced to two years in disciplinary segregation. After completing that
term, he was moved to administrative segregation until he could be transferred to
general population. (Both kinds of segregation amounted to solitary confinement, with
limited visitation and recreation time.) He spent a couple months in administrative
segregation and then was moved to a restricted unit with limited privileges, G Cell
House. He stayed there for about a year before moving to general population housing.
Carrico then sued the prison officials (the warden, assistant wardens, case-work
supervisors, and case workers) who he believed were responsible for violating his
constitutional rights. According to his amended complaint, (1) the presiding official at
his disciplinary hearing on the rioting charge, Jennifer Rinehart, violated his right to
procedural due process when she refused to allow him to present exculpatory evidence
and did not provide a written statement of reasons for the disciplinary action; (2) all the
defendants violated his right to procedural due process by not periodically reviewing
his disciplinary or administrative segregation status; (3) several defendants (those
responsible for housing status) placed him in G Cell House, in retaliation for filing this
suit; (4) several defendants (those responsible for updating prisoners on facility
conditions) violated his rights under the Eighth Amendment when they failed to notify
him of a “boil order” that deemed the water unsafe to drink; and (5) all the defendants
violated the Eighth Amendment when they placed him in solitary confinement for an
excessive length of time. Carrico sought injunctive and declaratory relief as well as
damages.
The district court entered summary judgment for the defendants. The court
accepted as undisputed the defendants’ statement of facts because Carrico did not
support his factual statement with citations to the record. See S.D. IND. LOCAL R. 56-1. As
for the merits, the court concluded first that issue preclusion barred Carrico from
litigating his due process claims because he had asserted the same claims in an earlier
unsuccessful habeas petition. Second, the court, despite acknowledging that Carrico
had a liberty interest in avoiding segregation, determined that the defendants were
entitled to qualified immunity on his due process claim because there was no clearly

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No. 23-1381 Page 3
established right to meaningful periodic review of his solitary confinement. Third,
regarding his claim of retaliatory transfer, the court determined that the designated
evidence would not allow a jury to find that he suffered a constitutionally significant
deprivation or that his transfer was motivated even in part by retaliation. Fourth,
regarding the failure to be notified of the boil order, the court ruled that no jury could
conclude that the defendants were deliberately indifferent to his need for safe drinking
water. (Carrico does not challenge this ruling, so we say nothing further about it.) And
fifth, the court determined that Carrico had not presented evidence from which a
factfinder could conclude that his cumulative 28 months in disciplinary and
administrative segregation violated the Eighth Amendment.
On appeal, Carrico first argues that the district court should have excused his
failure to support his statement of facts with citations because he is proceeding pro se
and has little access to legal materials in his prison. Although pro se filings should be
construed liberally, see Grant v. Trs. of Ind. Univ., 870 F.3d 562, 569 (7th Cir. 2017),
Carrico is not exempt from procedural rules or the consequences of failing to comply
with them. See Hinterberger v. City of Indianapolis, 966 F.3d 523, 528 (7th Cir. 2020). The
district court here did not abuse its discretion in requiring strict compliance with the
local rules.
Next, Carrico challenges the district court’s determination that issue preclusion
bars his claim that Rinehart violated his due process rights at the disciplinary hearing
for rioting. He asserts that the court wrongly applied issue preclusion—an affirmative
defense that he says the defendants waived by failing to plead it in their answer. He
adds that the habeas court denied this claim in his earlier petition for failure to exhaust
administrative remedies and thus never reached the merits of his due process claim at
issue in this action.
Issue preclusion bars successive litigation of an issue that was actually litigated
and essential to the prior judgment. Herrera v. Wyoming, 139 S. Ct. 1686, 1697 (2019). An
issue is essential if it is necessary to support the prior judgment. 18 Charles Alan
Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4421
(3d ed. 2023). If the court in the first case determines that it cannot reach the merits, then
any conclusions on the merits are not essential to its judgment. Id. Similarly, the failure
to exhaust under 42 U.S.C. § 1997e(a) operates to prevent adjudication on the merits.
Fluker v. County of Kankakee, 741 F.3d 787, 791–92 (7th Cir. 2013). Put another way, the
preclusive effect of a dismissal for failure to exhaust precludes relitigation of only the
exhaustion issue. See Hill v. Potter, 352 F.3d 1142, 1146–47 (7th Cir. 2003).

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We agree with Carrico that issue preclusion does not apply. The habeas court
dismissed his claim on exhaustion grounds and never reached the merits. Carrico v.
Zatecky, No. 19-cv-00078, 2020 WL 95040, at *3 (S.D. Ind. Jan. 8, 2020). Because
exhaustion is a threshold issue, that judgment has no preclusive effect on Carrico’s
claim here seeking redress for Rinehart’s alleged violation of his due process rights.
The defendants counter with two arguments supporting summary judgment on
this issue. The defendants argue, first, that Carrico’s due process claim was actually
litigated, given that the deadline to exhaust administrative remedies in the habeas
proceedings has passed. But a defendant can waive reliance on an affirmative defense
by failing to raise it in the district court, see Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 536
(7th Cir. 1999), and the defendants here did not pursue such a defense. Second, the
defendants now propose for the first time that Carrico’s due process claim is barred
under Heck v. Humphrey, 512 U.S. 477 (1994), because his challenge would necessarily
imply the invalidity of disciplinary sanctions. See Edwards v. Balisok, 520 U.S. 641, 646–48
(1997). But Heck too is a waivable affirmative defense, Courtney v. Butler, 66 F.4th 1043,
1049 n.1 (7th Cir. 2023), and the defendants here waived a Heck defense by failing to
raise it in the district court.
But the question remains whether there was some ground to relieve the
defendants from the consequence of their waiver. See Granberry v. Greer, 481 U.S. 129,
134–35 (1987); Carr v. O’Leary, 167 F.3d 1124, 1126–27 (7th Cir. 1999). We believe a
remand is necessary so that the district court can evaluate whether to exercise its
discretion and forgive the defendants’ waiver of either argument based on grounds
rooted in state sovereignty. See Carr, 167 F.3d at 1126 (“[A] party's unreasonable delay
in advancing a good ground for a change in a previous ruling is normally a compelling
ground for deeming even a good ground waived.”).
Carrico also challenges the district court’s ruling that the defendants were
entitled to qualified immunity for his claim that they did not provide meaningful,
periodic review of his segregation status. Relying on a pair of out-of-circuit cases,
see Sims v. Artuz, 230 F.3d 14, 23–24 (2d Cir. 2000); Sealey v. Giltner, 197 F.3d 578, 587–88
(2d Cir. 1999), Carrico contends that there was clearly established law that his time in
administrative segregation should be aggregated with his time in disciplinary
segregation to afford him meaningful periodic review.
The district court properly concluded that the defendants were entitled to
qualified immunity on this claim. To defeat qualified immunity, Carrico needed to
show that the law was clearly established such that “every reasonable official” would

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understand that his conduct violated Carrico’s rights. Leiser v. Kloth, 933 F.3d 696, 702
(7th Cir. 2019). For qualified immunity purposes, we look first to decisions of the
Supreme Court, or our court. Doe v. Gray, 75 F.4th 710, 717 (7th Cir. 2023). Our cases
have staked out different approaches to “stacking” or aggregating terms of punishment
in different contexts. Compare Kervin v. Barnes, 787 F.3d 833, 836 (7th Cir. 2015) (favoring
aggregation in due process analysis) with Pearson v. Ramos, 237 F.3d 881, 885–86 (7th Cir.
2001) (rejecting stacking in Eighth Amendment context). Although Kervin might
support the notion that sentences can be aggregated to prove a liberty interest, the case
does not constitute clearly established law that aggregation entitles Carrico to periodic
review during his relatively short two-month stint in administrative segregation.
Carrico next turns to the court’s ruling on his retaliation claim and argues that he
did plead a viable claim that several of the defendants retaliated against him for filing
this suit. He asserts that, had he not filed this lawsuit, he would have been placed in less
restrictive housing than G Cell House. He also argues that the court overlooked
circumstantial evidence of causality—including the direct transfer to general population
of a prisoner who allegedly had a more dangerous disciplinary record.
We agree with the district court that Carrico did not introduce sufficient
evidence from which a reasonable jury could find for him on his retaliation claim. To
establish retaliation, a plaintiff must show (1) that he engaged in activity protected by
the First Amendment; (2) that the defendants took an adverse action against him; and
(3) that the protected conduct was “at least a motivating factor of the adverse action.”
Holleman v. Zatecky, 951 F.3d 873, 878 (7th Cir. 2020). The district court rightly explained
that Carrico—by conceding that he had greater privileges in G Cell House than in
administrative segregation—failed to introduce evidence from which a jury may infer
that he suffered an adverse action.
Lastly, Carrico contends that the district court, in evaluating his Eighth
Amendment claim that the defendants detained him in unconstitutionally harsh
conditions, considered only the length and not the fact-specific conditions of his
confinement. He highlights that he had little visual or human stimuli and faced
unsanitary conditions in both the shower and recreation areas, amounting to an
“atypical and significant hardship” that he endured for approximately two years.
Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013).
The district court correctly dismissed Carrico’s Eighth Amendment claim. The
court did acknowledge the actual conditions of Carrico’s confinement by citing his
deposition statement that the conditions in disciplinary segregation mirrored those of

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administrative segregation. And the court properly considered both the length and
conditions of his confinement by comparing his 28 months in solitary confinement to
the plaintiff in Isby, who lived in administrative segregation for 10 years. Isby v. Brown,
856 F.3d 508, 521–24 (7th Cir. 2017).
We have reviewed Carrico’s remaining arguments; none merits discussion.
We AFFIRM the entry of summary judgment to each issue except for Carrico’s
individualized due process claim against Defendant Rinehart. We VACATE the district
court’s judgment on that claim and REMAND for consideration of whether the
defendants’ waiver of affirmative defenses should be forgiven.

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