Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.
These cases, all presenting questions relating to the internal administration of state prisons, require us to consider the implications of Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484, which was decided while these appeals were pending. In all cases, prisoners allege violations of federal rights protected by 42 U.S.C. § 1983; conversely, the prison officials all contend that their conduct was within an area of discretion which is not properly reviewable by a federal court.
In Miller, Green, and Thomas, three different district judges dismissed without any hearing pro se complaints challenging the Illinois procedures for denying "good time" credits. In Krause, the court held that due process must be afforded before the state can punish inmates by segregation or revocation of good time credits: the Wisconsin authorities appeal from the issuance of a preliminary injunction which, they contend, improperly limits their power over prisoners. In Armstrong, a group of prisoners claim that, without adequate procedural safeguards, they were placed in a "Special Program Unit" because they were allegedly more dangerous than the general prison population; on appeal, the prisoners argue that the relief granted by the district court was insufficient. Finally, in Gutierrez, a prisoner who was severely injured by a fellow inmate sued the warden for damages because he failed to segregate the violence-prone assailant from the general prison population; the district court dismissed the action.
At the outset, we are confronted with the impact of Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). For it is now clear that to the extent these prisoners seek the restoration of good time credits, their remedy is by way of habeas corpus rather than by § 1983. It is also clear that a pleading filed under § 1983 may be read to claim habeas corpus relief. Cf. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418. However, neither in the district courts nor in this court did any defendant raise any objection to jurisdiction prior to the decision in Preiser. Unlike the situation in Preiser where both the existence of a New York remedy and the failure to invoke it were perfectly clear, neither the briefs nor the records shed any light on the availability of possible state remedies in either Illinois or Wisconsin. Compare Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439, with Marino v. Ragen, 332 U.S. 561, 567-570, 68 S. Ct. 240, 92 L. Ed. 170 (Mr. Justice Rutledge, concurring). We are therefore not in a position to determine whether an unargued defect in jurisdiction is present. For that reason, our disposition of these cases will not foreclose a fresh examination of the jurisdictional issue in the district courts after remand. We express no opinion on the legal questions relating to the existence of state remedies nor on any factual determination that may be necessary on the exhaustion issue. Nor do we express any opinion on the possible significance of Preiser on questions relating to punitive segregation.
Because our consideration of the various questions presented must take into account the manifold problems that recur in a prison society, we shall first summarize the facts of these cases; we shall then consider the impact of Morrissey before ruling on the specific legal issues presented.
A. Miller, Green and Thomas.
Each of these pro se complaints, fairly read, alleged that a revocation of statutory good time constituted a deprivation of liberty without due process of law. By statute an Illinois prisoner is entitled to receive good time credits for good behavior;*fn1 such credits reduce the maximum sentence he must serve and also may accelerate the date on which he becomes eligible for parole.*fn2 If prison rules are violated, good time credits may be revoked or withheld as punishment.
Miller's complaint alleged that on May 12, 1969, 90 days of statutory good time was revoked on the ground that he had "indirectly" called an officer a foul name; his next appearance before the Parole Board was therefore delayed and he also suffered a loss of other privileges. He alleged that the discipline was imposed pursuant to prison rules promulgated approximately 19 years ago; and that the proceedings "were held 'ex parte' with petitioner having no representation, nor defense." The day after the complaint was filed, the district judge, on his own motion, dismissed the complaint as "frivolous."*fn3
Green's complaint included several different claims; the issues on appeal, however, relate only to the dismissal of the allegations relating to the revocation of 21 months of statutory good time. Green alleged generally that the due process clause was violated by the manner in which the "Merit Staff" took away good time on the recommendation of three penal officers*fn4 without permitting him to appear in defense.
Respondents' affidavits contain a more detailed description of the customary procedure. The affidavit of the Warden of the Illinois State Penitentiary at Joliet, where Green is confined, states:
"It is my understanding that prior to November 1970, the following procedure was used in revoking a prisoner's Statutory Good Time: The prisoner was called to the Isolation Building on a call ticket, the disciplinary charge was read to the prisoner, and he was asked whether it was true or false. On major violations of the rules, the two captains would decide what action was to be taken against the prisoner. If the charge was serious enough, they would also refer his case to the Merit Staff for further action. If the prisoner emphatically denied the charge, the captains would investigate the incident. When his case was referred to the Merit Staff, the charges would be read by the captain to the full committee, the case would be discussed, and they would recommend the penalties to be given to the prisoner. If the penalty was the loss of Statutory Good Time, the recommendation would have to be approved by the Warden and then sent to the General Office in Springfield, Illinois, for the final approval of the Director of the Department of Corrections."*fn5
Respondent states that under the rules of the Department of Corrections then in effect, good time was not revoked until after the prisoner had committed at least four rule infractions.*fn6 According to his disciplinary report, Green committed four such offenses between October 9, 1965, and February 17, 1966, and thereafter was eligible for deprivation of any part or all of the good time he had earned, or might thereafter earn.*fn7 In five separate disciplinary actions between March 7, 1967, and January 8, 1970, Green lost a total of 21 months of good time.*fn8
The district court found petitioner's allegations insufficient. The court held that the Constitution requires only that "the facts be rationally determined" and that the inmate "be afforded a reasonable opportunity to explain his actions." The court decided that Green's allegations did not establish a failure to satisfy those requirements.*fn9
Thomas's complaint alleges that without an adequate hearing he was placed in solitary confinement for 15 days for sending a letter to an ex-inmate in an illegal way.*fn10 The record also reveals that one month of his statutory good time was revoked. The district court dismissed his complaint on the authority of Walker v. Pate, 356 F.2d 502 (7th Cir. 1966), cert. denied 384 U.S. 966, 86 S. Ct. 1598, 16 L. Ed. 2d 678.*fn11 On appeal, he seeks restitution of this good time.
Counsel for Green, Miller and Thomas have limited their contentions in this court to the issues concerning their loss of statutory good time. In each of these cases the challenged action took place before the change in disciplinary procedures which became effective on December 1, 1970.*fn12 The specific procedural defects which they challenge are summarized in their brief as follows:
"Plaintiff-Appellants urge this Court to find the rules and procedures under which they were deprived of their accrued good time and of the opportunity to earn additional good time to be null, void, and without effect for these reasons:
"a. They were not provided with sufficient prior notice of the charges against them.
"b. They were not provided with an opportunity to confront and cross-examine their accusers or call witnesses in their own defense.
"c. They were not provided with counsel or a counsel-substitute.
"d. There was no written record kept of the proceedings with a consequent denial of opportunity to appeal on any kind of objective record."
This case arises out of an incident which occurred at the Wisconsin State Reformatory in Green Bay on November 12, 1971. As a result of a disturbance in the dining hall, windows were broken, fires were set, reformatory personnel were assaulted, and guards as well as inmates were injured. Various disciplinary hearings ensued and Krause and Moore were both placed in "indefinite lower segregation." They filed this class action on behalf of all inmates at Green Bay "who have been denied the right to due process in disciplinary proceedings," and promptly moved for preliminary injunctive relief. For the purposes of that motion, the court made the following findings:
"The Wisconsin Division of Corrections has promulgated a set of procedures to govern the operation of intra-institutional disciplinary hearings. Manual of Adult Institutions Procedures, §§ 5.9, 5.10 (Revised October, 1967; August, 1971). At all times material to this action, such procedures were in effect at the Green Bay Reformatory. The procedures provide that all inmates 'cited for other than minor breaches of discipline', will be brought before a disciplinary committee. The committee is to be composed of three members, the Associate Warden of Security, the Associate Warden of Treatment, and a rotating member from the general staff. Sec. 5.9(a). Proceedings before the committee may be instituted only by the filing of a written complaint with a member of the committee by either a corrections officer or a staff member. Sec. 5.9(c). Committee sessions are held at such intervals 'as will assure prompt disposition of all cases.' Sec. 5.9(b). No form of punishment is to be administered prior to committee action 'except for proper restraining measures in unusually serious incidents.' Sec. 6.9(b). The committee considers only written reports signed by the staff member or officer bringing the complaint. The written report presented to the committee is given to the inmate, 'if at all possible,' several hours prior to his appearance before the committee (Modification # 1, revision of August, 1971); the accused inmate is given the opportunity to appear before the committee, to present statements to the committee, answer any questions of committee members, and provide any information sought by the committee. Sec. 5.9(c). After taking the evidence, the committee may deliberate privately and announce its decision to the inmate immediately thereafter. Sec. 5.9(d). The action of the committee is documented in a prescribed space on the original conduct report 'with a concisely written statement (one or two sentences) giving justification for the action taken.' Modification # 4, revision of August, 1971.) Should the inmate wish to appeal the committee's action, the committee is to submit its findings to the Warden or Superintendent for final decision. Sec. 5.9(a).
"The rules recited above constitute the entire set of written procedures governing the conduct of disciplinary hearings at the Reformatory. Neither the Manual of Adult Institutions Procedures nor any of the amendments thereto provide any further procedures.
"Section 5.10 of the Manual of Adult Institutions Procedures empowers the disciplinary committee to impose sanctions on an inmate adjudged guilty of a misconduct charge. The Manual of Procedures does not list the range of possible punishments, but in practice, two of the more serious sanctions imposed are confinement in 'lower segregation' and confinement in 'upper segregation.'
"An inmate in the general population rooms in a cell of 'adequate' size and sleeps on a bed of 'some comfort.' He is permitted to retain certain personal toiletries, such as soap, a shaving kit, toilet paper, towels, a toothbrush, toothpaste and shampoo. He may either attend school at the reformatory or participate in a reformatory work program. If he chooses to work, he earns money for the work performed. He is allowed to leave his cell for various portions of the day (either for school or work) and, in addition, is permitted to engage in recreation on certain weekdays and weekends. He is allowed to talk with other inmates and, if he remains in the general population, he may accumulate 'good time' which will hasten his mandatory release date.
"The prisoner confined in 'lower segregation' is not permitted to work and thus can earn no money with which to purchase articles sold in the canteen, such as soap, toothpaste and cigarettes. He must sleep on a 'hard' bed with just one sheet, a pillow and pillowcase. He is permitted no personal toiletries except a face towel and soap. He may leave his cell for a total of thirty minutes each week. And he may not earn 'good time,' a factor which delays his mandatory release date. If he is sentenced to 'indefinite idle' status in lower segregation, he may be confined there for a period ranging from two to four months.
"'Upper segregation' is called 'the hole' by administration and inmates alike. The cell size is 12 footX5 foot; there is a cot with a mattress that is four inches thick; neither sheets nor pillow is provided for the cot. In the cell there is a bare light bulb that is always turned on, thus making it difficult to sleep. No toiletries are allowed: inmates must ask the guard on duty for soap and for toilet paper. The only reading matter permitted in the cell is the Bible, and no radios are allowed. The prisoner is not permitted to exercise; nor is he allowed to leave his cell. He may talk with no one (if he is caught speaking, he is penalized with another day in 'the hole'). No money can be earned and no good time may be accumulated.
"Misconduct 'convictions,' no matter what the sanction imposed for them, are referred to the parole board and affect adversely the inmate's application for parole.
"On November 12, 1971, plaintiffs were reported to the disciplinary committee for alleged infractions arising out of a disturbance that occurred at the Reformatory on the evening of November 12. The charges against the plaintiffs were heard by the disciplinary committee on November 19, 1971. The members of the committee were Donald Clusen, Associate Warden Security, Kenneth Mathys, Associate Warden Treatment, and Robert Rosera, a corrections officer. On the morning of November 19, two or three hours in advance of their hearings, plaintiffs were given copies of the conduct reports filed against them. Each plaintiff had a private hearing before the committee, at which the conduct report was read to him. Each was given an opportunity to explain his actions and was asked questions by members of the committee. After hearing the plaintiffs and deliberating privately, the committee found plaintiff Krause guilty and sentenced him to indefinite idle in the lower segregation unit and found plaintiff Moore guilty and sentenced him to ten days in the upper segregation unit, followed by confinement in the lower segregation unit under indefinite idle status." 341 F. Supp. 1001.
Relying largely on the rationale of his earlier decision in Morales v. Schmidt, 340 F. Supp. 544 (W.D.Wis.1972), rev'd, (7th Cir. 1973), the district court concluded that preliminary relief was warranted and entered an order which, as amended, enjoined defendants "from conducting any further disciplinary hearings with respect to the named plaintiffs which may result in either forfeiture of 'good time' or confinement in either upper or lower segregation, unless and until such disciplinary hearings shall include the following procedures: timely and adequate notice of the charge and of the hearing on the charge; an opportunity for the accused to confront and to cross-examine adverse witnesses; an opportunity to retain counsel or some reasonable substitute for counsel; an impartial ...