Sean Stankowski v. Kevin Carr

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 8, 2024 *
Decided February 12, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 23-2458
SEAN STANKOWSKI,
Plaintiff-Appellant,
v.
KEVIN CARR, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 23-cv-0563-bhl
Brett H. Ludwig,
Judge.
* 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. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-2458 Page 2
O R D E R
Sean Stankowski, a prisoner at the Oshkosh Correctional Institution in
Wisconsin, appeals the dismissal of his complaint alleging that various staff members at
the prison and officials in the Wisconsin Department of Corrections (DOC) violated his
right to due process when they prevented him from presenting an audio recording at
his disciplinary hearing. Because Stankowski failed to state a claim that the defendants
deprived him of a constitutionally protected interest, we affirm.
A teacher at the prison issued a conduct report to Stankowski, accusing him of
soliciting her by telling her she was “cute.” Before his disciplinary hearing, Stankowski
completed a form asking what evidence he wished to request. Believing that “audio
monitoring” in the classrooms had captured his conversation with the teacher,
Stankowski asked for the recording. The disciplinary hearing officer informed him that
no recording existed and returned the form to him with his request crossed out.
Stankowski filed a grievance, but a counselor denied it as premature because the
hearing had not yet occurred.
At the hearing, Stankowski again requested the recording and again was
informed that none existed. He was found guilty and sentenced to 21 days in
disciplinary segregation; as a result, he lost his prison job. His administrative appeal of
his disciplinary conviction was denied.
Stankowski filed a second grievance about the supposedly withheld audio
recording. It was denied, and he appealed unsuccessfully, all the way up to the DOC
Secretary. At each stage, he was told that there was no audio recording.
Stankowski then sued the teacher, the hearing officer, and other prison staff and
DOC officials under 42 U.S.C. § 1983, alleging that they violated his due process rights
under the Fourteenth Amendment when they refused to allow him to present
exculpatory audio evidence at his disciplinary hearing or failed to remedy this alleged
violation when he filed grievances and appeals. The district court screened his
complaint under 28 U.S.C. § 1915A and dismissed it for failure to state a claim,
concluding that Stankowski did not sufficiently allege that the defendants deprived him
of a constitutionally protected liberty or property interest. He did not describe the
length or conditions of his disciplinary confinement in a way that suggested it imposed
an atypical or significant burden on his liberty. See Sandin v. Conner, 515 U.S. 472, 486
(1995); Marion v. Columbia Corr. Inst., 559 F.3d 693, 697 (7th Cir. 2009). And because

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No. 23-2458 Page 3
prisoners do not have a property interest in their employment, his job loss could not be
the basis of the claim. See DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir. 2000).
The court gave Stankowski leave to amend his complaint, and Stankowski added
that he lost $436.80 in wages and was in segregation for 21 days, but he did not include
any more details about the conditions in segregation. The district court therefore
dismissed the complaint again. Stankowski appeals, and we review the dismissal de
novo. Schillinger v. Kiley, 954 F.3d 990, 994 (7th Cir. 2020).
On appeal, Stankowski contends that, because he was denied the opportunity to
use the alleged audio recording as evidence and sent to segregation, he lost his job and
thus was deprived of a property interest without due process. (He does not argue on
appeal that he had a liberty interest.) He asserts that mandatory language in his prison’s
work policy—that “inmates shall be paid” a certain wage—created a property interest
in his income, just as mandatory language in a state’s prison policies can create a liberty
interest, see Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 462–63 (1989).
We have not adopted the view that a prison policy alone can create an
enforceable property interest. See Tenny v. Blagojevich, 659 F.3d 578, 581–82 n.3 (7th Cir.
2011) (noting circuit split after Sandin, 515 U.S. at 483–84, and declining to take a
position). But even if we accepted Stankowski’s premise, his argument fails. A protected
property interest exists “only when the state’s discretion is ‘clearly limited such that the
plaintiff cannot be denied the interest unless specific conditions are met.’” Booker-El v.
Superintendent, 668 F.3d 896, 900 (7th Cir. 2012) (quoting Brown v. City of Mich. City,
462 F.3d 720, 729 (7th Cir. 2006). Here, the prison policy states that inmates who are
“negatively removed” from work, including for being in disciplinary segregation, are
considered “voluntary unassigned” for 90 days, unless the warden waives that status.
Because the warden has the discretion to override the default policy, Stankowski cannot
argue that the state’s discretion “is so clearly limited” that the policy created a property
interest in his prison wages. See Booker-El, 668 F.3d at 900–01.
Nor would Stankowski have a plausible claim that he received insufficient
procedural protections even if there were a property interest at stake. See Orozco v. Dart,
64 F.4th 806, 814 (7th Cir. 2023). He received notice of the charge and a hearing, and he
had the opportunity in advance to request evidence to present in his defense. See Wolff
v. McDonnell, 418 U.S. 539, 564–66 (1974). Withholding exculpatory evidence can violate
due process, see Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007), but Stankowski

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No. 23-2458 Page 4
provides no reason to believe that audio surveillance occurred; he even states that it
would have been unlawful.
And to the extent that Stankowski sued supervisors, grievance counselors, and
officials involved in his appeals, these defendants cannot be liable under § 1983 for
failing to remedy the condition he complained of or supervising those who allegedly
violated his rights. To be liable under § 1983, a defendant must be personally
responsible for the violation of a constitutional right. Taylor v. Ways, 999 F.3d 478, 493
(7th Cir. 2021). Thus an official who merely reviews a grievance or appeal cannot be
liable for the conduct forming the basis of the grievance. Owens v. Evans, 878 F.3d 559,
563 (7th Cir. 2017). And supervisors cannot be held responsible for the actions of
subordinates or for failing to ensure that subordinates carry out their jobs correctly.
Horshaw v. Casper, 910 F.3d 1027, 1029–30 (7th Cir. 2018).
The district court was therefore correct to dismiss the complaint and assess a
strike under 28 U.S.C. § 1915(g), and we note for clarity of the record, see Hill v. Madison
County, 983 F.3d 904, 906 (7th Cir. 2020), that this appeal counts as another strike.
AFFIRMED

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