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Lusz v. Scott

October 7, 1997

DAVID P. LUSZ, JR., PLAINTIFF-APPELLANT,

v.

AUGUSTUS SCOTT, JR., WARDEN, LINCOLN CORRECTIONAL CENTER, MICHAEL T. MONTCALM, LIEUTENANT, INTERNAL AFFAIRS, FRANK BRAMWELL, HEARING OFFICER, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Central District of Illinois.

No. 93 C 3038 -- Richard Mills, Judge.

Before POSNER, Chief Judge, BAUER, and RIPPLE, Circuit Judges.

BAUER, Circuit Judge.

ARGUED: APRIL 15, 1997

DECIDED: OCTOBER 7, 1997

David P. Lusz, Jr. is no longer imprisoned, but while imprisoned at the Lincoln Correctional Center, he filed this sec. 1983 action. Lusz alleged that various prison officials, including Warden Augustus Scott, Jr., Internal Affairs Lieutenant Michael T. Montcalm, and Hearing Officer Frank Bramwell, violated his procedural due process rights in connection with a prison disciplinary hearing. In response, the defendant prison officials filed a motion for summary judgment, which the district court granted. Lusz appealed. We appointed counsel for Lusz to brief how Heck v. Humphrey, 512 U.S. 477 (1994), affects his sec. 1983 action, and any other issues which his counsel wished to raise. Because Lusz cannot maintain this suit under sec. 1983 in view of the limitations outlined in Heck v. Humphrey, 512 U.S. 477 (1994), we dismiss.

Background

Lusz was serving a six-year term for forgery at the Lincoln Correctional Center. On October 25, 1992, Lusz was placed under investigation for smoking marijuana. Lieutenant Michael Montcalm, an internal affairs investigator at Lincoln, conducted that investigation. On November 5, 1992, Montcalm turned in a disciplinary report charging Lusz with violations of prison rules 203, pertaining to drugs, and 601, pertaining to conspiracy.

On November 6, 1992, the prison Adjustment Committee held a hearing on the charges against Lusz. The Committee summarized the evidence against Lusz as follows:

Denies smoking any marijuana but admits that he knew that others were smoking marijuana and he was 'attempting to block the view of the tower' so he guesses he is guilty of conspiracy. States he refused to consent to a polygraph because they are inconclusive.

At least five credible confidential inmate sources (names withheld for security reasons) verify Lusz smoked marijuana on the patio of HU #1 on 11-25-92.

The Committee found Lusz guilty, revoked thirty days of Lusz's good time credit, and demoted Lusz to "B" grade for thirty days. Lusz filed a grievance with the Illinois Department of Corrections Administrative Review Board. Lusz's grievance concerned the Committee's refusal of his request to take a urinalysis test to prove that he did not smoke marijuana on the day in question. Lusz also denied that he ever admitted to attempting to block the tower guards' view of his fellow inmates' smoking marijuana on the patio below. On December 15, 1992, the Board affirmed the Committee's decision.

Pursuant to 42 U.S.C. sec. 1983, Lusz brought a pro se civil rights suit. Lusz alleged that the Adjustment Committee violated his Fifth and Fourteenth Amendment rights by denying him due process in connection with its guilty finding on the charges of drug use and conspiracy. Specifically, he alleged that he was not afforded witnesses to testify on his behalf, was not allowed to examine the confidential sources, and was not given a written statement describing what the confidential sources said. He also alleged that the disciplinary hearing violated due process because the presiding hearing officer, Capt. Frank Bramwell, was biased against Lusz because Lusz was a known homosexual. Lusz sought nominal compensatory damages, $5,000 in punitive damages, and attorney's fees and costs.

The prison officials filed a motion for summary judgment. In response, Lusz argued for the first time (in the district court) that he should have been allowed to take a urinalysis test to prove that he did not smoke marijuana on the day in question. He also alleged that the other inmates accused of smoking marijuana with him were given the chance to submit to a urinalysis test to prove their innocence. The district court reached the merits of Lusz's claim and found that the disciplinary proceedings comported with due process. Specifically, the court inspected the disciplinary report which contained the confidential statements of other prisoners and concluded that the evidence against Lusz was reliable. The court also found that Lusz did not request that any witnesses testify before the ...


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