*

After an examination of 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).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 14, 2006*

Decided July 17, 2006

Before

Hon. THOMAS E. FAIRCHILD, Circuit Judge

Hon. RICHARD D. CUDAHY, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

Nos. 05-4046

CHARLES PHELPS

Plaintiff-Appellant,

v.

PATRICK McCOY, et al.,

Defendants-Appellees.

Appeal from the United States

District Court for the Northern

District of Indiana, South Bend

Division

No. 3:04-CV-006 AS

Allen Sharp, 

Judge.

O R D E R

Indiana prisoner Charles Phelps was charged with two disciplinary violations

after contraband was discovered in the trash can in his cell. A prison conduct

adjustment board (CAB) found him guilty, but both convictions were eventually set

aside in an administrative appeal. Phelps sued the members of the CAB under 42

U.S.C. § 1983, alleging that it had wrongfully denied him the opportunity to

introduce certain evidence at his hearings. The district court granted summary

judgment to the defendants. Phelps appeals, and we affirm.

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-4046 Page 2

After his hearing before the CAB, Phelps was convicted of possessing tobacco

and pills of uncertain origin and effect; the first charge led to a sentence that

included a loss of 90 days of earned good-time credits, and the second, a loss of 30

days. Phelps appealed to the superintendent of the prison, who remanded both

cases for new hearings because of an unspecified “due process error”—presumably

that Phelps had asked the CAB to present as evidence the surveillance video of his

cell, and this request was rejected. The CAB held new hearings and again adjudged

Phelps guilty and revoked his credits without allowing him to present the

videotape. Again Phelps appealed; this time his appeals were granted outright

based on the exclusion of the videotape and the two disciplinary charges were

dismissed. But even though he prevailed and received no punishment, Phelps

believed he was still aggrieved and so he sued. The district court, relying on the

defendants’ mistaken concession that even after the second round of appeals was

granted Phelps had still been deprived of credit time, denied summary judgment to

the defendants and granted partial summary judgment to Phelps. But when

alerted to the mistake over a month after entering judgment the court granted the

defendants’ motion for reconsideration. 

Phelps faces a double bind in his challenge to the CAB’s ruling about the

videotape. He could not file this civil rights suit until his CAB convictions were set

aside because a judgment in his favor would have necessarily implied the

convictions’ invalidity. See Heck v. Humphrey, 512 U.S. 477 (1994). But now that

the convictions have been reversed and his good-time credits restored, he has no

basis for a federal suit. The protections of the due process clause do not attach

unless Phelps was deprived of a liberty interest. See Lekas v. Briley, 405 F.3d 602,

607 (7th Cir. 2005). Since his good-time credits were never revoked, he cannot

claim a right to due process under Wolff v. McDonnell, 418 U.S. 539, 558 (1974). 

And he was not punished, so he cannot claim that he has a protected interest in

avoiding other sanctions short of credit deprivation, which themselves do not even

rise to the type of “atypical and significant hardship” that is protected by the due

process clause. See Sandin v. Connor, 515 U.S. 472, 486 (1995) (itself an action

under § 1983). 

Phelps also attacks the district court’s decision to grant post-judgment relief

to the defendants after mistakenly granting Phelps partial summary judgment. He

says that the defendants’ motion to reconsider was untimely, pointing to the 10-day

limit in Federal Rule of Civil Procedure 50. But a motion for reconsideration that is

filed beyond ten days after entry of judgment is automatically considered a motion

under Rule 60(b), which has a longer time limit. Talano v. Northwestern Medical

Faculty Found., Inc., 273 F.3d 757, 762 (7th Cir. 2001). Here, we see no basis for

finding that the district judge abused his discretion in granting relief: he relied on

the defendants’ mistaken reading of the evidence, and when the mistake was

pointed out, corrected the error. Rule 60(b)(1) encompasses mistakes by judicial

officers as well as others. See Brandon v. Chi. Bd. of Educ., 143 F.3d 293, 295 (7th
No. 05-4046 Page 3

Cir. 1998); Wesco Products Co. v. Alloy Automotive Co., 880 F.2d 981, 984–85 (7th

Cir. 1989). And Phelps’s argument that the district court was collaterally estopped

by its original decision from granting post-judgment relief is so clearly meritless

that it does not warrant discussion.

AFFIRMED.