Fairly W. Earls v. KARI BUSKE and JOY MERBACH

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 31, 2022*
Decided August 31, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-1193
FAIRLY W. EARLS,
Plaintiff-Appellant,
v.
KARI BUSKE and JOY MERBACH,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 20-cv-816-wmc
William M. Conley,
Judge.
O R D E R
Fairly Earls, a Wisconsin prisoner, sued two prison officials who he says are
responsible for misclassifying his security status. He alleged that the officials incorrectly
added an “escape history” notation in his prison file, causing him wrongly to remain in
maximum-security custody. The district court screened and dismissed his amended
* The appellees were not served with process and are not participating in this
appeal. We have agreed to decide the case without oral argument because the brief 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NONPRECEDENTIAL DISPOSITION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. 22-1193 Page 2
complaint, determining that it failed to state a claim. See 28 U.S.C. § 1915A. We affirm in
part and vacate and remand in part.
Earls, who was incarcerated at Columbia Correctional Institution, a maximum-
security facility, alleged that Kari Buske, an offender-classification specialist at a
different prison, overrode the recommendation of Columbia’s classification review
committee to reduce his classification to medium security. He said that Buske
erroneously added a notation to his file that he had an escape history and refused to
modify his status. Earls alleged that Buske’s supervisor, Joy Merbach, affirmed Buske’s
decision. He asserted that the erroneous notation deprived him of “more liberties” that
are available in medium security. Earls was transferred to Jackson Correctional
Institution, a medium-security prison, while this appeal was pending.
Earls sued, arguing that inserting the erroneous information into his prison file
violated his rights under the Eighth and Fourteenth Amendments. He sought damages
and injunctive relief. The district court screened Earls’s initial complaint, explained why
it failed to state a claim, and invited Earls to submit an amended complaint that
remedied the deficiencies. But Earls’s amended complaint still failed to state a claim
under the Eighth Amendment because he did not allege facts suggesting that his
maximum-security status deprived him of “the minimal civilized measure of life’s
necessities” or that the defendants acted with subjective culpability. Rhodes v. Chapman,
452 U.S. 337, 347 (1981); see Gillis v. Litscher, 468 F.3d 488, 494 (7th Cir. 2006). Earls also
failed to state a due-process claim because he had no liberty interest in his security
classification. See DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992). So, the court
dismissed Earls’s complaint.
We begin by noting that our jurisdiction is secure. Neither the order nor the
judgment tell us whether the court dismissed Earls’s complaint with prejudice. But the
language of the order, and the court’s imposition of a “strike” under 28 U.S.C. § 1915(g),
assure us that the court was finished with the case. See Lauderdale-El v. Ind. Parole Bd.,
35 F.4th 572, 575 (7th Cir. 2022). Earls has, therefore, appealed from a final judgment.
See Gleason v. Jansen, 888 F.3d 847, 852 (7th Cir. 2018).
On appeal, Earls argues that he has a Fourteenth Amendment due-process right
to have the escape notation expunged from his file so that he can be transferred to a
medium-security prison. But after Earls filed his notice of appeal, he was transferred to
a medium-security facility. Because he has already been transferred, and there is no
indication that he is likely to be retransferred, this request for injunctive relief is moot.

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No. 22-1193 Page 3
See Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996); Moore v. Thieret, 862 F.2d 148, 150
(7th Cir. 1988).
Earls also seeks damages for the extra time he spent in the maximum-security
facility. A prisoner has “a liberty interest in avoiding placement in more restrictive
conditions, such as segregation, when those conditions pose an atypical and significant
hardship when compared to the ordinary incidents of prison life.” Townsend v. Fuchs,
522 F.3d 765, 771 (7th Cir. 2008) (citing Sandin v. Conner, 515 U.S. 472, 483–85 (1995)). But
Earls’s time spent in the maximum-security prison was not so atypical or difficult that
he had a liberty interest in his transfer to medium-security custody. Indeed, Earls
alleges only generally that remaining at the maximum-security prison deprived him of
“more liberties” that are available to prisoners in medium-security facilities. Earls
points to several cases that he says support his claim for damages, e.g., Montgomery v.
Anderson, 262 F.3d 641, 644–45 (7th Cir. 2001), but they are inapplicable. Those cases
concern changes in credit-earning class or opportunities for early release that impact the
duration rather than the severity of custody. For state prisoners, claims along those lines
must be raised under 28 U.S.C. § 2254, and, in any event, Earls has not alleged that his
erroneous security classification lengthened his custody.
For completeness, we note that Earls has waived several arguments. He does not
argue that the district court erred in its analysis of his Eighth Amendment claim.
See Rhodes, 452 U.S. at 347. Nor does he challenge the court’s decision to relinquish
supplemental jurisdiction over his state-law negligence claims. See Burritt v. Ditlefsen,
807 F.3d 239, 252 (7th Cir. 2015). Finally, Earls does not challenge the court’s decision
declining to appoint counsel. See Pruitt v. Mote, 503 F.3d 647, 654–55 (7th Cir. 2007)
(en banc).
We AFFIRM the district court’s judgment as to Earls’s claim for damages. We
VACATE its judgment as to Earls’s request for injunctive and declaratory relief and
REMAND with instructions to dismiss the claim as moot. See Alvarez v. Smith, 558 U.S.
87, 93–94 (2009); United States v. Munsingwear, Inc., 340 U.S. 36, 39–41 (1950).

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