Appeal from the United States District Court for the Western District of Wisconsin. No. 93 C 551 Barbara B. Crabb, Judge.
Before CUMMINGS, BAUER, and KANNE, Circuit Judges.
DECIDED SEPTEMBER 9, 1996
Arty Larnell Hamlin filed a pro se civil rights lawsuit pursuant to 42 U.S.C. sec. 1983 alleging that prison officials failed to abide by state administrative procedures during his prison disciplinary hearing. The district court dismissed Hamlin's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). We affirm.
Hamlin, an inmate at the Green Bay Correctional Institute in Wisconsin, was found guilty, after a disciplinary hearing, of a variety of prison rule violations. Hamlin's punishment included serving eight days of adjustment segregation and 360 days of program segregation which, he asserts, deprived him of 75 days of good time credit. When reaching their decision, the Adjustment Committee ("Committee") relied on confidential witness reports concerning the incident. Hamlin filed suit under 42 U.S.C. sec. 1983, claiming that the defendants, who are Committee members, never made the required finding that confidentiality of the witnesses' identities was necessary to protect them from a significant threat of bodily harm if their identities were known. *fn1 He also claimed that the confidential witness information was unreliable and false. Hamlin's complaint alleged that the defendants' acts were in total disregard of the United States Constitution, the Wisconsin Constitution, and the Wisconsin Administrative Code ("Code").
The district court construed Hamlin's pro se complaint as raising only a procedural due process claim that the defendants deprived him of liberty by failing to comply with state procedures. Specifically noting that Hamlin did not "contend that the state regulation is constitutionally infirm," the court found that the defendants had violated state law, but that their actions were "random and unauthorized" and did not give rise to a sec. 1983 action because Wisconsin provided Hamlin with adequate post-deprivation state remedies.
We review de novo the district court's 12(b)(6) dismissal, and we construe pro se complaints liberally. This does not mean that we will fill in all of the blanks in a pro se complaint. Where, as in this case, a pro se plaintiff is represented by counsel on appeal, we will not permit "creative appellate advocacy" to rewrite a faulty complaint. Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 378-79 (7th Cir. 1988).
As construed by the district court, Hamlin's case was a simple attack on the prison officials' failure to comply with Wisconsin regulations. This failure allegedly deprived Hamlin of liberty without due process of law. On appeal, Hamlin's appointed counsel has pressed a variety of arguments seeking to shift our focus away from the wording of Hamlin's pro se complaint. Hamlin's counsel conceded at oral argument that Hamlin "made a poor allegation" in his complaint. Nevertheless, Hamlin now argues that instead of accepting his factual allegations, the district court should have examined them more closely to see if rejecting them would result in denying the defendants' 12(b)(6) motion. We reject counsel's efforts, even while admiring the zeal of his advocacy.
A district court should not dismiss a complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The district court believed that Hamlin's "claim" was that the state officials failed to follow the applicable Wisconsin regulations. The relevant sections of Hamlin's complaint stated:
The defendants relied upon confidential statements without the required finding of significant threat of bodily harm to the witnesses if they wore [sic] to testify contrary to DOC sec. 303.86(4) of the Wis. Admin.Code. The defendants failed to establish the confidential informant(s) reliability or credibility on the written record. . . . The identity of confidential informant(s) was not made known to the plaintiff and the information supplied by the informant(s) was unreliable and false.
The defendants as herein alleged have violated plaintiff's due process rights guaranteed by the fifth and fourteenth amendments to the U.S. ...