Swygert, Chief Judge, Reynolds,*fn* District Judge, and Grant,*fn** Senior District Judge.
Appellants are inmates of the federal penitentiary at Marion, Illinois. Approximately ten months ago they instituted a class action*fn1 against Norman Carlson, Director of the Federal Bureau of Prisons, and various officers of the Marion penitentiary. Their complaint alleged that each member of the class was in segregated confinement at Marion,*fn2 that placement in that status by prison authorities was not attended by procedural safeguards guaranteed by the due process clause of the Fifth Amendment, and that the segregated confinement at issue was in violation of the prohibition by the Eighth Amendment of cruel and unusual punishment. Also claimed was the imposition by Marion officials of undue restrictions on the prisoners' rights of access to courts and counsel. With these allegations before him, and after a hearing on the matter, the district judge denied plaintiffs' motion for a preliminary injunction. Adams v. Carlson, 352 F. Supp. 882 (E.D. Ill. 1973). This appeal followed.
Appellants were segregated after a general work stoppage on July 17, 1972. The disruption was in violation of prison rules requiring labor of all able-bodied inmates. To thwart the stoppage, Marion officials first confined the entire prison population to their cells. Most inmates were released six days later, on July 24, after seven inmates suspected to be prominent instigators of the mutiny were relegated to segregation, along with ten supporters insistent upon accompanying them. Work apparently resumed as normal for only a short time thereafter. On the afternoon of July 25, a disturbance again put a halt to regular prison activity. Taking no chances with simply isolating the ringleaders, the Marion administration undertook widespread segregation of inmates suspected of insubordination; approximately eighty-six more prisoners were removed from the general population.
Marion authorities then convened an Adjustment Committee for the purpose of finalizing placements in segregation,*fn3 Assistant Warden Fenton being designated chairman. Each suspect appeared before the Committee in person and was orally confronted with the charges against him. He was allowed to comment on these accusations and was informed of the identity of the officer who had gathered the information upon which Committee suspicion was based.*fn4 The source of the information was not revealed, nor was the inmate allowed to peruse the report of the investigating officer. The Adjustment Committee then rendered its judgment on evidence comprised solely of the officer's report and the inmate's justifications. Where guilt was found, the Committee imposed punishment by indefinite placement in segregation.
It is less clear whether appellants received notice of the charges against them in advance of their respective appearances before the Adjustment Committee.*fn5 On the whole, the evidence strongly supports a finding that many of them did not. The administrative guidelines in force at Marion during the period in question did not mandate advance notice,*fn6 and several inmates testified to a dearth of prior notice.*fn7 Assistant Warden Fenton himself admitted that no advance written notice was given the inmates.*fn8 Also manifest on the record is the fact that Marion inmates had no written book of rules or regulations prior to the July work stoppage.
Trouble at Marion was not abated by the segregation of rebellious inmates. Sometime in the early hours of August 18, 1972, inmates in one of the two Marion segregation units ignited their mattresses and threw them into the range hallway. They also succeeded in flooding cells and hallways by blocking sinks and toilets while running the water. After or during the time that order was restored, guards stripped the cells of each inmate in segregation of whatever property was thought to constitute a combustible fire hazard. This included, of course, books and papers without limitation, as well as clothes and mattresses. Some of the clothing was returned to the inmates immediately after its thorough search for contraband. Mattresses or their replacements were back in the possession of inmates no later than August 26 or 27. Yet many of the inmates had not been able, upon request, to secure the return of their legal materials by the time evidence was taken on their motion for preliminary relief;*fn9 the trial judge found that "some of the material apparently has been returned, and some has not."*fn10 352 F. Supp. at 890. The same description pertained at the time we heard the argument of this case.*fn11
Segregation cells were again searched on October 16, 1972, after inmates had refused to return their plastic food trays and utensils to attending guards. In one cell guards discovered a loaded gun. There was nothing particularly unusual about the weapon itself; being crudely made of household items, authorities concluded that the inmate in possession had assembled it in his cell. The explosive powder which charged the apparatus caused more consternation, however. Assistant Warden Fenton testified to his belief that this material was of a commercial variety and that it had been brought in from beyond the prison walls. On this basis, substantial modification was made to the attorney visiting room at Marion.
The room originally had been fitted with a table and chairs. Prior to a meeting with his attorney, an inmate had been thoroughly strip-searched. The meeting occurred under close visual surveillance by a prison guard, and the prisoner was again searched upon leaving the room. In fear after the gunpowder incident that the post-meeting search of an inmate was inadequate to reveal his possession of small and durable objects or contraband surreptitiously passed to the inmate by his attorney during a moment of inattention by the guard, prison authorities divided the room with a soundproof glass barrier. Phones were provided for communication between inmate and lawyer. In order to pass written information, an attorney must now present the material to a guard, who takes it out of the room and around through the entry door on the prisoner's side of the room.
Suit was brought by inmates in segregation on September 11, 1972, some time before the revamped attorney visitation system was put into operation. Alleging irreparable injury, the inmates sought, by motion for a preliminary injunction, immediate relief from their indefinite segregation without due process, their restricted access to attorneys, and the retention of their legal materials earlier confiscated by prison authorities. The district judge denied their motion in its entirety. With respect to the due process claim, the judge found that appellants had not "made a strong showing of complete lack of due process in the past, of probability of success on the merits, or of irreparable harm," 352 F. Supp. at 893, since Marion officials had instituted hearing procedures in full accord with our decision in Adams v. Pate, 445 F.2d 105 (7th Cir. 1971), only a few days prior to the hearing on appellants' motion for a preliminary injunction. Nor did the judge agree that cruel and unusual punishment had been shown. He likewise denied the request of appellants for a mandatory return of their legal materials, finding that the implementation of a newly adopted prison directive requiring inmate access to legal materials disposed of the claim. Lastly, he refused to order the slightest modification to the bisected attorney visiting room. The new system, he felt, was "not ideal, but . . . [did] permit minimal access of inmates to their attorneys." 352 F. Supp. at 890.
This appeal was subsequently taken pursuant to 28 U.S.C. § 1292(a) (1).
When the trial judge issued his memorandum opinion denying appellants a preliminary injunction, his sole guide to the stance of this Circuit on due process in the prison disciplinary context was Adams v. Pate, 445 F.2d 105, 108 (7th Cir. 1971). Were he to redecide the issue today, he would have available our recent and directly relevant decision in United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973), where we spoke to the requirements of the due process clause when prisoners are placed in punitive segregation. Our ultimate holding was that candidates for segregation sufficiently severe to impose a "grievous loss" of liberty were entitled to "an adequate and timely written notice of the charges, a fair opportunity to explain and to request that witnesses be called or interviewed, and an impartial decision maker." Miller, at 718. These were the bare minima. Each case in Miller involving segregation was remanded to its respective district court for an additional finding, namely, the extent to which other of the due process maxima embodied in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), were essential to the discipline of prisoners in conformity with the due process clause.
Whether Miller would have made a difference to the district judge in this case is open to question, since he did not conclude that the hearings held at Marion in July and August of 1972 were in compliance with Pate. He found, instead, that procedures which satisfied Pate had been instituted after those hearings. Unless, however, the newly instituted procedures provide some means for correcting what were arguably old errors, we fail to perceive how the new methods moot a claim based on the old. The Government has produced not a whit of evidence to prove its provision of an effective ...