Avon Twitty v. Charles Lockett

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Joel M. Flaum, Circuit Judge and Frank H. Easterbrook, Circuit Judge. [6577383-1] [6577383] [14-1065]

Case: 14-1065 NONPRECEDENTIAL DISPOSITION
Document: 12
Filed: 05/21/2014
To be cited only in accordance with
Fed. R. App. P. 32.1

Pages: 3

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2014*
Decided May 21, 2014
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
No. 14-1065
AVON TWITTY,
Plaintiff–Appellant,

Appeal from the United States District
Court for the Southern District of Indiana,
Terre Haute Division.

v.
No. 2:11-cv-299-WTL-WGH
CHARLES L. LOCKETT,
Defendant–Appellee.

William T. Lawrence,
Judge.
ORDER

Avon Twitty served 27 years in prison for crimes he committed in
Washington, D.C., in 1982. In 2007, while Twitty still was confined at the federal
penitentiary in Terre Haute, Indiana, he submitted the first of at least five grievances

*

After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).

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seeking credit for 731 days of good time that he said was wrongly withheld. An
administrator at the prison answered Twitty’s first grievance and explained that the
calculation of his good time was accurate. The later grievances were rejected as
repetitive, and Twitty’s administrative appeals were denied. He was paroled in
January 2011, and ten months later he filed this damages action under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Twitty claimed
that not giving him the good time he sought had denied him due process and pushed
back his parole date in violation of the Eighth Amendment. He named as defendant
Charles Lockett, who in 2011 was the warden at the Federal Correctional Complex in
Terre Haute.
Previously, in March 2010, Twitty had petitioned for a writ of habeas corpus,
see 28 U.S.C. § 2241, asserting that the Bureau of Prisons had miscalculated his good
time (including by not awarding the 731 days at issue in this case). The district court
understood Twitty to be challenging the denial of parole in 2009, not the miscalculation
of good time that delayed his release. The § 2241 petition still was pending in 2011 when
Twitty was paroled, so the court reasoned that the petition was moot and dismissed it.
Twitty did not appeal that ruling.
Twitty’s Bivens action fared no better. In granting summary judgment for
Lockett, the district court concluded that Twitty had sued beyond the two-year statute
of limitations governing personal-injury suits in Indiana, which applies to Bivens actions
arising in the state. See King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir.
2000). Twitty moved for reconsideration, see FED. R. CIV. P. 59(e), arguing, in part, that
his final grievance concerning the 731 days of good time had not been denied by Lockett
until April 2010, less than two years before he filed his Bivens suit. The district court
rejected that argument, explaining that Twitty’s repetitive grievances did not toll the
statute of limitations after his first grievance was fully resolved in 2009.
On appeal Twitty disputes that his final grievance was repetitive, but he is
wrong. As early as 2007, Twitty had complained about being shorted 731 days of good
time, and the final appeal of that grievance was resolved by May 2009. Even if the
statute of limitations was tolled during the administrative process, see Walker v. Sheahan,
526 F.3d 973, 978 (7th Cir. 2008), Twitty did not file this suit against Lockett until
November 2011, more than two years later. Twitty cites no authority, and we have not
found any, suggesting that repetitive grievances about the same underlying matter will
toll a statute of limitations.

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More importantly, the statute of limitations is the least of Twitty’s problems.
Federal inmates have a liberty interest in earned good time. Jones v. Cross, 637 F.3d 841,
845 (7th Cir. 2011). But Twitty has never contended that 731 days were revoked without
due process. Rather, he claims that the BOP botched the award of good time. Yet prison
administrators do not violate the Constitution simply by miscalculating good time.
See Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998); Wottlin v. Fleming, 136 F.3d
1032, 1036–37 (5th Cir. 1998). Twitty’s complaint does not state a constitutional claim,
and even if it did, that claim would not be against Lockett, who was not involved in the
computation of Twitty’s good time. Indeed, Lockett did not work at the prison complex
in Terre Haute when the BOP computed Twitty’s good time.
What’s more, a Bivens suit was not the proper avenue for relief. Twitty’s claim
that his good time was miscalculated belongs in a petition under 28 U.S.C. § 2241.
See Romandine v. United States, 206 F.3d 731, 736 (7th Cir. 2000); Rogers v. United States,
180 F.3d 349, 358 (1st Cir. 1999); McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th Cir.
1993). A remedy under Bivens is not a panacea for every wrong asserted against federal
officials. See Minneci v. Pollard, 132 S. Ct. 617, 621–23 (2012); Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 68–70 (2001). Twitty filed a § 2241 petition, and though the district court
may have misinterpreted that petition, his recourse was to file an appeal, not a Bivens
suit. The suit against Lockett was without merit, as is this appeal.
AFFIRMED.