Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.gene Vontell Graham, Plaintiff-appellant, v. Robert Deutscher, et al., Defendants-appellees, 106 F.3d 403 (7th Cir. 1997)

ORDER

On May 24, 1989, pro se plaintiff Gene Vontell Graham filed suit under 42 U.S. § 1983 against 28 employees of Indiana's Westville Correctional Center alleging various violations of his civil rights.¹  In June 1991, while this case was pending, Graham filed a motion for a preliminary injunction to prevent prison officials from entering evidence of disciplinary actions taken by the prison in his prison records. The district court judge referred this case to Magistrate Judge Robin D. Pierce, who appointed counsel for Graham and held a bench trial on November 1, 1995. At trial, Magistrate Judge Pierce heard evidence on Graham's procedural due process claims.²  He issued his Report and Recommendation ("the Report") on Nov. 21, 1995.³  Graham filed pro se objections to the Report. On December 15, 1996, the district court entered judgment in favor of the defendants. We affirm.

FACTS

In 1989, Westville's internal disciplinary body--the Conduct Adjustment Board ("CAB")--found Graham guilty of refusing to obey an order. Graham appealed the CAB verdict through the prison appeals system, but at each level his appeal was denied. In district court, Graham argued that the CAB verdict violated his procedural due process rights in that there was insufficient evidence to find him guilty.

Graham also claimed his procedural due process rights were violated in February of 1990.⁴  On February 7, 1990, Graham was involved in an incident with a prison officer in the dining hall. The officer immediately put Graham in segregation. Graham remained in segregation until February 15, 1990 when CAB held a hearing on the February 7th incident. In the district court, Graham argued that this violated his right to be free from punishment without due process because prison regulations limit segregation to five days without a hearing. See Indiana Department of Corrections Adult Authority Disciplinary Policy Procedures § 11(B) (1) (1984 ed.) ("AADP").

The magistrate judge found that the 1989 CAB hearing complied with the requirements of procedural due process. He also found that the 1990 segregation incident (mistakenly referring to the incident as occurring in 1989) was outside the scope of the issues presented in this case because "no such claim was raised in Graham's pretrial contentions." (Report at 9.) Nevertheless, the magistrate judge went on to address the merits, holding that "the failure to comply with the five-day requirement would not amount to a due process violation." (Id.) Over Graham's objections, the district court adopted the magistrate judge's recommendations.

On appeal, Graham argues that the district court failed to conduct a de novo review of the issues raised in his Objections. Graham also argues that the magistrate judge erred in finding that the 1990 segregation incident was outside the scope of this case, and that the district court erred in concluding that Graham had not alleged a liberty interest sufficient to state a claim.

ANALYSIS

When a party makes objections to a magistrate judge's recommendations, " [t]he district court is required to conduct a de novo determination of those portions of the magistrate judge's report and recommendations to which objections have been filed." Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). However, this does not mean the district court must conduct a de novo hearing, " [r]ather the district court has discretion to 'accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate [judge].' " Id. (quoting 28 U.S.C. § 636(b) (1)).

Here, the district court made the necessary de novo review of Graham's objections. First, it explicitly rejected Graham's objections concerning his appointed counsel. Then, it ruled on Graham's objections to the magistrate judge's conclusions regarding the 1990 incidents as evinced by the fact that the district court ruled on grounds not even mentioned in the Report (i.e. that Graham had no liberty interest in being free from segregation after five days). The fact that the district court ruled without the benefit of the trial transcript is irrelevant, as is the district court's silence regarding the magistrate judge's mistake about the dates of Graham's segregation, because it ruled as a matter of law that Graham did not have a protectible liberty interest. The Report accurately reported the substance of Graham's claim, if not the date; thus the district court had the information necessary to rule on this claim.

Graham next argues that the district court erroneously concluded he had no liberty interest in being free from segregation after five days under Sandin because Sandin left open the possibility of a prisoner having a liberty interest in being free from punishment that "will inevitably affect the duration of his sentence." Sandin v. Conner, 115 S. Ct. 2293, 2302 (1995). Graham argues first that he falls within this exception because the February 15, 1990 disciplinary hearing report should have been expunged from his file after the procedural violation and second that, had the report been expunged, he would have been granted parole in April 1990 because he was denied parole solely on the basis of this disciplinary report.

This claim has no merit. Our decision in Miller v. Indiana Dep't of Corrections, 75 F.3d 330 (7th Cir. 1996), bars a prisoner from obtaining damages through a § 1983 action when the alleged violation has been rejected in a habeas corpus proceeding. Id. at 331 (holding that Heck v. Humphrey applies to prison administrative proceedings); see also Heck v. Humphrey, 114 S. Ct. 2364, 2372 (1994) ("We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment ... a § 1983 plaintiff must prove that the conviction or sentence has been reversed ... or called into question by a federal court's issuance of a writ of habeas corpus.") (footnote omitted). Graham's petition for a writ of habeas corpus on this exact claim was denied.⁵  Graham v. McBride, No. 93-2261, 1994 WL 198782 (7th Cir. May 20, 1994) (unpublished order). Thus, he cannot recover damages on this claim.

Similarly, under Sandin, Graham's claim of having a liberty interest in being free from segregation after five days--absent any allegation that the outcome would affect the duration of his sentence--fails. At most, Graham was held in segregation 3 days longer than permitted under AADP § 11(B) (1). In Sandin, the Supreme Court held that a prisoner improperly held in segregation for 30 days did not implicate a due process liberty interest. Sandin v. Conner, 115 S. Ct. at 2302. Graham has failed to point to anything unusual or atypical about his confinement in segregation. See Sandin, 115 S. Ct. at 2300. Therefore, this claim fails.

Graham's only remaining claim is that the magistrate judge erred in finding that his 1990 claims were outside the scope of the case. However, both the magistrate judge and the district court judge addressed these claims on the merits. Thus, even if the magistrate judge was wrong on that point, any alleged error caused no harm to Graham.

For these reasons, the district court's judgment is AFFIRMED.