                        NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with
                                  Fed. R. App. P. 32.1



                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                              Submitted November 4, 2014*
                               Decided November 4, 2014

                                          Before

                        RICHARD D. CUDAHY, Circuit Judge

                        MICHAEL S. KANNE, Circuit Judge

                        ANN CLAIRE WILLIAMS, Circuit Judge

No. 14-1438

ARNOLD CASTILLO,                                   Appeal from the United States District
    Plaintiff-Appellant,                           Court for the Southern District of Illinois.


       v.                                          No. 13-cv-460-JPG


YOLANDA JOHNSON, et al.,                           J. Phil Gilbert,
    Defendants-Appellees.                          Judge.

                                         ORDER

       Arnold Castillo, an Illinois prisoner, appeals from the dismissal of his civil-rights
suit challenging, on Fifth Amendment and due-process grounds, the discipline and
prison transfer that he received after he stabbed a guard. Because the discipline and
transfer did not offend those constitutional principles, we affirm the judgment.



       *
        The defendants were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that the case is appropriate for summary disposition. See FED. R. APP. P.
34(a)(2)(C).
No. 14-1438                                                                          Page 2

       Castillo attacked a guard by stabbing him 25 times with a sharp object at
Stateville Correctional Center in 2010. When Castillo was interviewed about the
incident, an investigator advised him that he had the right to remain silent, and Castillo
invoked that right. An internal affairs officer, defendant Ricardo Tejeda, charged
Castillo with six offenses arising from the incident. One charge was for “impeding or
interfering with an investigation” because Castillo refused to give a statement; the other
five were for the stabbing itself. Two months before his hearing, Castillo was
transferred to Tamms Correctional Center, Illinois’s former supermax facility, which
kept all prisoners in segregation nearly 23 hours each day. At the hearing at Tamms,
Castillo asked for more time to present witnesses, but the prison refused the request
because he did not properly identify the witnesses. It also denied his request for staff
assistance.

        After the hearing, Castillo was found guilty on all charges. The chair of the
disciplinary committee, David Mitchell, and Tamms’s warden Yolanda Johnson (both
named as defendants), punished Castillo with the loss of one years’ good-conduct
credit, “indeterminate segregation,” a demotion in prisoner status, and restrictions on
commissary use, yard access, and visitors. The punishments are not allocated to
particular charges. Castillo remained at Tamms until it closed in 2013; he is now
incarcerated at Pontiac Correctional Center.

        Castillo sued under 42 U.S.C. § 1983, alleging three constitutional violations:
First, the defendants violated the Fifth Amendment by punishing Castillo for invoking
his right against self-incrimination; second, they violated his right to due process by
transferring him to Tamms two months before his disciplinary hearing and doing so to
retaliate for his silence; third, Johnson and Mitchell violated due process again by
preventing Castillo from presenting improperly identified witnesses at his hearing and
refusing to give him staff assistance. Castillo asked that the court vacate the charge for
impeding or interfering with an investigation and award him compensatory and
punitive damages.

       The district court screened the complaint, see 28 U.S.C. § 1915A, and dismissed it
with prejudice. The court first concluded that the charge for impeding the investigation
did not violate the privilege against self-incrimination. It reasoned that the prison could
use Castillo’s silence to draw an adverse inference in its non-criminal, administrative
proceeding. Second, his transfer to Tamms did not offend due process because it was
“clearly for the purpose of administrative or investigative segregation,” so Castillo had
No. 14-1438                                                                             Page 3

no liberty interest in the transfer. Finally, the court ruled that Castillo’s disciplinary
hearing complied with due process.

        Castillo moved for postjudgment relief, see FED. R. CIV. P. 59(e), and sought to file
an amended complaint. He elaborated on his claim that the decision to transfer him to
the supermax facility was made without due process. The district court denied both
motions, concluding that Castillo’s transfer claim was precluded by an earlier
class-action lawsuit, Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012). In Westefer, the court
said, the class represented all inmates transferred to Tamms since 1998. The court
therefore concluded that Castillo was a member of the class and bound by the earlier
judgment.

        On appeal Castillo first argues that he sufficiently pleaded a claim under the
Fifth Amendment. The Fifth Amendment privileges a person to refuse to answer a
question if the answer has “some tendency to subject the person being asked the
question to criminal liability.” Evans v. City of Chicago, 513 F.3d 735, 743 (7th Cir. 2008)
(internal quotation marks, italics, and citation omitted); see Minnesota v. Murphy, 465
U.S. 420, 426 (1984); Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). Incarceration limits but
does not extinguish this right. McKune v. Lile, 536 U.S. 24, 36 (2002) (plurality opinion);
Roman v. DiGuglielmo, 675 F.3d 204, 210 (3d Cir. 2012). The privilege does not prevent
prison administrators from drawing adverse inferences from a prisoner’s silence. Baxter
v. Palmigiano, 425 U.S. 308, 317 (1976). But prison staff may violate the Fifth Amendment
if they punish “an inmate’s silence in and of itself” without some other evidence of
guilt, id., and the punishment is severe, such as the loss of an earned release date, see
McKune, 536 U.S. at 52 (opinion of O’Connor, J., concurring with the plurality on
narrowest grounds).

         Castillo’s Fifth Amendment claim, however, faces several insuperable obstacles.
First, if he believes that his conviction for impeding the investigation cost him credit
toward an early release, the relief he seeks is unavailable in a § 1983 suit. Vacating that
conviction would shorten his confinement, see Montgomery v. Anderson, 262 F.3d 641,
644–45 (7th Cir. 2001), and a challenge to the length of confinement must be presented
in a petition for a writ of habeas corpus under 28 U.S.C. § 2254(b)(1)(A), see Preiser v.
Rodriguez, 411 U.S. 475, 488–90 (1973). In addition, we could not award damages for his
lost credit because that relief would necessarily imply that his lost credit is invalid.
Under Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997),
Castillo may not use a § 1983 suit to seek relief that is inconsistent with a still-intact
order of confinement. See Muhammad v. Close, 540 U.S. 749, 750–51 (2004); Burd v. Sessler,
No. 14-1438                                                                               Page 4

702 F.3d 429, 432 (7th Cir. 2012); Miller v. Ind. Dep’t. of Corr., 75 F.3d 330, 331 (7th Cir.
1996).

        But even if Castillo challenged only his indeterminate segregation on the belief
that, as punishment for his silence, its severity violates the Fifth Amendment, the claim
would still fail. For Castillo’s segregation to violate the Fifth Amendment, it had to be
based solely on his silence. See Baxter, 425 U.S. at 317. But Castillo did not argue to the
district court, allege in his original or proposed amended complaint, or maintain here
that his segregation is solely attributable to his silence. Nor can he. Only one of the six
charges against Castillo (interfering with an investigation) was based on his silence; the
other five convictions, which he does not contest, were for the more serious offenses of
violently stabbing the guard. Moreover, the maximum penalty for interfering with an
investigation is just one year of segregation; the maximum penalty for violent assault is
indeterminate segregation. See ILL. ADMIN. CODE tit. 20, § 504, tbl. A. Given that Castillo
does not dispute the violent offenses for which he faced and received indeterminate
segregation, he cannot plausibly contend that his segregation is based solely on his
silence. Accordingly, the complaint does not assert a valid Fifth Amendment claim.

        Castillo next contests the dismissal of his claim that the defendants violated his
right to due process by transferring him to Tamms before holding a disciplinary
hearing. The district court believed that the class-action lawsuit brought by Tamms
prisoners in Westefer precludes his individual due-process challenge. Claim preclusion
is an affirmative defense, see Walczak v. Chi. Bd. of Educ., 739 F.3d 1013, 1016 n.2 (7th Cir.
2014), but the district court may raise it if it is “so plain from the face of the complaint
that the suit can be regarded as frivolous,” Best v. City of Portland, 554 F.3d 698, 700 (7th
Cir. 2009) (internal quotation marks and citation omitted). We need not decide whether
the preclusion defense applies because Castillo’s claim is defective on the ground that
his pre-hearing time at Tamms was too short to deny him a liberty interest. Castillo was
at Tamms for only two months before his hearing was held and he was convicted of
stabbing the prison guard. We will assume, as the defendants did in Westefer, 682 F.3d
at 682, that the conditions in Tamms were harsh enough to require a hearing before a
lengthy transfer, see Sandin v. Conner, 515 U.S. 472, 484 (1995). But two months in that
prison environment without a pre-transfer hearing was too brief to affect a liberty
interest, so due process was not violated here. See Marion v. Columbia Corr. Inst., 559
F.3d 693, 697 (7th Cir. 2009); Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir. 2008).

       That brings us to Castillo’s final claim—that his two-year incarceration in Tamms
after his hearing denied him a liberty interest without due process because he did not
No. 14-1438                                                                          Page 5

receive extra time to present witnesses or receive staff assistance. But we agree with the
district court that Castillo has not stated a claim for relief on this claim. To satisfy due
process, a prison must give inmates advance, written notice of charges before a hearing
and a written statement by the factfinder explaining the evidence relied on and reasons
justifying any disciplinary action. See Wolff v. McDonnell, 418 U.S. 539, 563–64 (1974);
Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011). All of that occurred here. Prisoners are
also entitled to call witnesses but only if so doing will not interfere with institutional
safety. See Wolff, 418 U.S. at 566; Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007).
Castillo did not properly identify the witnesses he wanted the extra time to present, so
the prison had no way to determine if his request threatened prison safety. It therefore
reasonably denied him his request for more time. See Pannell v. McBride, 306 F.3d 499,
503 (7th Cir. 2002); Forbes v. Trigg, 976 F.2d 308, 317–18 (7th Cir. 1992). Likewise,
prisoners do not have the right to staff assistance, Wolff, 418 U.S. at 570; Jackson v.
Carlson, 707 F.2d 943, 948–49 (7th Cir. 1983), so Castillo was not entitled to a continuance
on that ground either. Thus the defendants’ refusal to postpone the hearing did not
violate due process.

       Accordingly, we AFFIRM the judgment of the district court.
