NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 October 21, 2010 * Decided November 4, 2010



### Before

F RANK H. E ASTERBROOK , Chief Judge
J OEL M. F LAUM , Circuit Judge

M ICHAEL S. K ANNE , Circuit Judge

No. 10

- 1419

D AVID S HELBY , Plaintiff

- Appellant
,

v

. B OB W HITEHOUSE , et al
., Defendants

- Appellees

. Appeal from the United States District Court for the Southern District of Illinois.

No. 05

- cv

- 589

- MJR Michael J. Reagan, Judge

.

Order While David Shelby w as a prisoner at the Federal Correctional Institution in Greenville, Illinois, a guard found marijuana and barbiturates in a cell that Shelby shared with four other prisoners. Acting under the prison’s rules, which make each i nmate responsible for all cont raband found within his cell, a hearing officer found Shelby guilty of possessing contraband and revoked 40 days of his good

- time credits and o rdered him to serve 30 days in discipl i nary confinement. Shelby later was transferred to a federal prison in Col orado. While there, he filed a petition for a writ of habeas corpus. A district judge issued the writ, ruling that because the evidence did not reliably establish which of the five prisoners was respo n sible for bringing the drugs into the cell

— or whether a ny of the other four knew about their presence

— the Constitution disallows punishment. Shelby v. United States , No. 03

- F

- 1336 (OES) (D. Colo. Aug 1, 2004). Another prisoner had admi t ted that the drugs were his; the judge thought that the disciplinary office r should have acted on that co n fession rather than insisting on collective responsibility. The court ordered the Bureau of Pri sons to restore the good

- time credits. Shelby then filed this Bivens action against three

* After examining the briefs and the record, we have concluded that oral argument is unnece s sary. See Fed. R. App. P. 34(a); Cir. R. 34(f).No. 10

- 1419 Page 2

persons who had played roles in the impo sition of the disciplinary sanctions in Illinois. After a remand for additional pr o ceedings, Shelby v. Gelios , No. 07

- 3113 (7th Cir. June 11, 2008) (nonprecedential disposition), the district judge concluded that the defe n dants are entitled to qualified im munity, because they acted before it was settled that holding prisoners jointly responsible for contraband violates the Constitution. Until the d e cision in Colorado, the judge concluded, the d e fendants were entitled to follow the regulation of the prison i n Illinois providing for co l lective responsibility. We affirm on a different ground: it has not been established to this day that colle ctive responsibility among prisoners is unconstitutional. We suggested in Ustrak v. Fai rman , 781 F.2d 573, 575

– 76 (7th C ir. 1986), and held in Hamilton v. O’Leary , 976 F.2d 341 (7th Cir. 1992), that the Constitution allows collective culpability. No later decision in the ci r cuit has held otherwise. The district judge in Colorado had a different view, but none of the defenda nts was a party to the Colorado litigation, so none is bound by pri nciples of issue or claim preclusion. A decision of a district judge in Col o rado does not make law for the Seventh Circuit; indeed, a district judge’s decision is not authorit a tive even wit hin the rendering district, for other judges are free to disagree with it. Qualified i m munity would block any effort to esta b lish, as a new principle of law in this circuit, a rule that the Constitution forbids prisoners’ joint responsibility for co n traban d found in shared spaces. Accordingly, the judgment of the district court is a f firmed.