Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Nos. 72 C 1749, 72 C 1706 and 72 C 1686 Abraham L. Marovitz and Richard B. Austin, Judges.
Fairchild, Pell and Tone, Circuit Judges.
FAIRCHILD, Circuit Judge.
Plaintiffs, all inmates incarcerated in the Illinois State Penitentiary, Joliet -- Stateville Branch, appeal from judgments entered in favor of defendant prison officials. The three actions were brought under 42 U.S.C. § 1983, seeking injunctive and monetary relief for alleged violations of plaintiffs' civil rights. The suits all concern a "restricted status" institutional dead-lock imposed at the Stateville Prison on July 2, 1972. Following an altercation of disputed character and magnitude, defendant Warden Twomey placed the entire prison population on restricted status, confining them to their cells. The restriction continued for nine days. This procedure, taken pursuant to § 809 of the Administrative Regulations of the Illinois Department of Corrections,*fn1 resulted in full 24 hour confinement and attendant restrictions on exercise, association, and normal vocational and educational activity. On July 11, 1972, the restricted status was rescinded and the general inmate population returned to its normal routine. Each appeal presents distinct issues concerning these occurrences.
I. LUCIEN AND BLACK, ET AL.
These two actions were commenced separately by plaintiffs Rudolph L. Lucien and Holice P. Black and were consolidated in the district court on motion of the defendant.*fn2 Each of the pro se complaints, fairly read, attacked the institutional dead-lock, claiming that the procedures were invoked without the benefit of procedural due process; that the facts did not justify the measures taken; that the measures were continued arbitrarily; that the conditions resulting from the challenged confinement constituted cruel and unusual punishment; and that defendants violated the equal protection clause through arbitrarily selective enforcement of the dead-lock. In addition, Lucien asserted that defendants had denied him necessary medical treatment during this period; and Black that he and his fellow plaintiffs were discriminatorily excluded from early release from the dead-lock as punishment for expression of First Amendment-protected criticism of prison administration.
The district court, after considering affidavits submitted by defendants and plaintiff Black, and the factual allegations contained within plaintiff Lucien's verified complaint, granted summary judgment to the defendants on every claim presented. On appeal, plaintiffs argue that this grant of summary judgment was erroneous in view of the existence of genuine issues of material fact and the policy considerations against summary judgments in pro se prisoner civil rights actions such as the present.
A. Procedural Due Process.
We confront, at the outset, the novel issue of the applicability of procedural due process protections to actions allegedly taken in response to extraordinary emergency situations by prison authorities. Both Lucien and Black argue that they were denied due process of law through defendants' imposition of the "restricted status" dead-lock without affording some sort of prior hearing wherein they could be informed of the reasons for the action contemplated and provided reasonable opportunity to speak in their own behalf.
It is no longer open to argument that, while lawful imprisonment necessarily limits many rights and privileges available to the ordinary citizen, Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948), "there is no iron curtain drawn between the Constitution and the prisoners of this country." Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935, 42 U.S.L.W. 5190, 5195 (1974). The question of whether any procedural protections are due depends upon "the extent to which an individual will be 'condemned to suffer grievous loss.'" Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). We have previously held that a prison disciplinary proceeding which inflicts "additional punishment" upon an inmate may be "sufficiently severe, and may represent a sufficiently drastic change from the custodial status theretofore enjoyed, that it must be classified as 'grievous loss.'" United States ex rel. Miller v. Twomey, 479 F.2d 701, 717 (7th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S. Ct. 900, 39 L. Ed. 2d 102 (1974). See also, Thomas v. Pate, 493 F.2d 151, 161 (7th Cir. 1974), judgment vacated on other grounds, 419 U.S. 813, 42 L. Ed. 2d 39, 95 S. Ct. 288 (1974); Adams v. Pate, 445 F.2d 105, 108 (7th Cir. 1971). The deprivations associated with an institutional dead-lock, including twenty-four hour confinement, and curtailment of all association, exercise and normal vocational and educational activity, persuade us that when such status is sufficiently prolonged, such dislocation of the prisoner's normal condition constitutes a "grievous loss," as is true of the "segregated confinement" dealt with in Miller and Thomas.*fn3
Determining that a sufficiently prolonged institutional dead-lock requires procedural protection under the due process clause does not, however, establish the nature of the protection required. The due process clause provides an elastic, flexible standard which varies with the attendant circumstances. "Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961). In situations such as the present, where prison authorities are allegedly reacting to emergency situations in an effort to preserve the safety and integrity of the institution, the state's interest in decisive action clearly outweighs the inmates' interest in a prior procedural safeguard. "The possibility of widespread violence is a continuous condition of prison life. A good faith determination that immediate action is necessary to forestall a riot outweighs the interest in accurate determination of individual culpability before taking precautionary steps." United States ex rel. Miller v. Twomey, supra, 479 F.2d at 717. See also, Gomes v. Travisono, 490 F.2d 1209, 1215 (1st Cir. 1973).
While it has been suggested that, at a minimum, due process requires an opportunity for some kind of hearing before a person is deprived of a protected interest, cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 342, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (Harlan, J., concurring), there exists a clear exception in "extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event." Boddie v. Connecticut, 401 U.S. 371, 379, 28 L. Ed. 2d 113, 91 S. Ct. 780 (1971). We find that a good faith response to apprehended emergency conditions within a prison clearly falls within the ambit of this exception.
Accordingly, where a sufficiently extended deprivation of prisoners' rights occurs, notice of the cause of the deprivation, the reasons for its continuance, and an opportunity to respond must be provided within a reasonable period of time after the emergency decision has been effectuated and while its extraordinary effects continue.*fn4 See, Gray v. Creamer, supra, 465 F.2d at 185, note 6. "In cases . . . for which the punishment is severe, after the immediate crisis is past, the relative importance of the inmate's interest in a fair evaluation of the facts increases and the state's interest in summary disposition lessens; indeed, in such cases, in the long run the state's interest in a just result is the same as the individual's. For in those cases neither the state nor the inmate has any valid interest in treating the innocent as though he were guilty." United States ex rel. Miller v. Twomey, supra, 479 F.2d at 717-18. This procedure enables prison authorities to take emergency action unfettered by any requirement of providing an entire prison population with a prior hearing. However, when these actions extend over a sufficiently prolonged period of time, those inmates confined by the institutional dead-lock must be granted an opportunity to vindicate their right to be informed of the reasons justifying their continuing state of confinement and afforded a reasonable opportunity to respond thereto.*fn5
The deprivation caused by defendants' imposition of the dead-lock in the present case extended over a period of nine days. Plaintiffs allege that, while numerous attempts were made to communicate with defendants during the dead-lock, no response was ever received and, further, that they were never informed as to its nature and cause. The district court, in granting summary judgment to the defendants, concluded that the dislocation of the prisoners' normal status engendered by this procedure was not sufficiently severe to require provision of adequate notice and opportunity to respond. Necessarily, the determination of when emergency action, by its severity or prolongation, reaches a point requiring due process protection must be made on a case-by-case analysis of the diverse and unique factual situations presented. Accordingly, while we cannot with particularity establish uniform standards for all such future emergency actions, we conclude that conditions, no more severe than those disclosed by the present record, invoked pursuant to administrative procedure requiring immediate notification of appropriate state authorities and ...