Battites Wesley v. Thomas Borgen and Dean Fuller

953 F.2d 646 NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within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. Battites WESLEY, Plaintiff-Appellant, v. Thomas BORGEN and Dean Fuller, Defendants-Appellees. No. 90-2904. United States Court of Appeals, Seventh Circuit. Submitted Jan. 30, 1992.* Decided Feb. 3, 1992. Before POSNER, FLAUM and EASTERBROOK, Circuit Judges. Order [1] Battites Wesley brought this action under 42 U.S.C. § 1983, alleging that prison officials at Waupun Correctional Institution deprived him of due process when they took him off his assigned job in the kitchen and placed him in temporary lock-up status without notice or a hearing in violation of Wis.Admin.Code HSS § 303.11. The district court granted summary judgment for the defendants in reliance on Russ v. Young, 895 F.2d 1149 (7th Cir.1990), which held that § 303.11 did not give Wisconsin prisoners a liberty interest in remaining out of temporary lock-up. [2] On appeal Wesley asked us to reexamine Russ, but he advances no new or compelling reason for doing so. Although a recent opinion expresses some skepticism about Russ's emphasis on mandatory language as a "hallmark of a liberty-creating statute," see Smith v. Shettle, 946 F.2d 1250, 1252-53 (7th Cir.1991), we adhere to its result. See Lomax v. McCaughtry, 731 F.Supp. 1388, 1392 (E.D.Wis.1990), aff'd, 949 F.2d 398 (7th Cir.1991); cf. Gilbert v. Frazier, 931 F.2d 1581, 1582 (7th Cir.1991). [3] AFFIRMED. Footnotes [-s] * After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a), Circuit Rule 34(f). No such statement has been filed, so the appeal is submitted for decision on the briefs and record