Appeals from the United States District Court for the Northern District of Illinois, Eastern Division - Nos. 66 C 609, 69 C 761 and 70 C 21 Richard B. Austin, Judge.
Fairchild, Chief Judge, Kilkenny, Senior Circuit Judge,*fn* and Stevens, Circuit Judge. Kilkenny, Senior Circuit Judge, dissenting.
ON REMAND FROM THE SUPREME COURT
Our opinion in this cause, reported at 493 F.2d 151 (7th Cir. 1974), was issued January 10, 1974. The United States Supreme Court granted certiorari on October 15, 1974, vacated the judgment, and remanded the case "for further consideration in light of Wolff v. McDonnell, 418 U.S. 539, [94 S. Ct. 2963, 41 L. Ed. 2d 935] (1974)." 419 U.S. 813, 95 S. Ct. 288, 42 L. Ed. 2d 39 (1974).
The parties to the dispute have been invited to brief the issues presented by the Supreme Court's order. Upon careful consideration of the matter, we conclude that the rationale of Wolff can affect only part 4(d) of the original opinion, titled "Due Process in Disciplinary Proceedings," and set forth at 493 F.2d 160-161.*fn1
In that part we summarized Thomas' allegations of denial of procedural due process in disciplinary proceedings and concluded that the district court erred in dismissing them. We relied on the specific due process requirements set out in Miller v. Twomey, 479 F.2d 701, 718 (7th Cir. 1973) in determining that Thomas' complaint adequately alleged deficiencies in the disciplinary proceedings against him.
Upon consideration in the light of Wolff, we conclude that the specifications in Miller are sufficiently detailed to be deemed "new procedural rules affecting inquiries into infractions of prison discipline" and therefore not to be retroactively applied. See Chapman v. Kleindeinst, 507 F.2d 1246, (7th Cir. 1974).
Thus we are now called upon to consider the substance of Thomas' allegations in the light of more general and pre-Miller principles of due process as applied to disciplinary proceedings in state penal institutions.
The events described by Thomas occurred in 1963 and 1964 and had dismissal of his complaint been tested in this circuit at that time, dismissal would undoubtedly have been affirmed.
In United States ex rel. Knight v. Ragen, 337 F.2d 425, 426 (7th Cir. 1964), this court held that a complaint alleging arbitrary placement by prison officials of an inmate in isolation or confinement did not state a federal cause of action under the Civil Rights statutes. It was further asserted that "except under exceptional circumstances [such as Cooper v. Pate, 378 U.S. 546, 12 L. Ed. 2d 1030, 84 S. Ct. 1733 (1964), where the Supreme Court held that a complaint which alleged petitioner was being denied privileges enjoyed by other inmates due to his religious beliefs stated a cause of action under the Civil Rights Act.], internal matters in state penitentiaries are the sole concern of the states and federal courts will not inquire concerning them. [Citations omitted.]" See also, United States ex rel. Atterbury v. Ragen, 237 F.2d 953 (7th Cir. 1956); United States ex rel. Morris v. Radio Station WENR, 209 F.2d 105 (7th Cir. 1953).
In a case in which the facts doubtless occurred before 1970, we made a decision similar to that in Knight, Haines v. Kerner, 427 F.2d 71 (7th Cir. 1970). On review, however, the Supreme Court held that Haines' complaint alleging in part denial of due process in the steps leading to disciplinary confinement should not have been dismissed. Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). We are aware of no suggestion that the retroactivity of Haines is limited. Indeed in the portion of the Court's opinion in Wolff where the state's argument "is not included in that 'liberty' protected by the Fourteenth Amendment" was rejected, Haines was cited for the sufficiency of a § 1983 complaint where "the state prisoner asserted a 'denial of due process in the steps leading to [disciplinary] confinement'." 418 U.S. at 557, 42 U.S.L.W. at 5196.
Testing Thomas' allegations by the more general due process principles reflected in Haines, we conclude that although the procedures implied in 1963 and 1964 with respect to Thomas are not to be held to the standards of Miller v. Twomey, his complaint should not have been dismissed.*fn2
Accordingly, the judgment appealed from is reversed and the causes are remanded for further proceedings consistent with our opinion filed January 10, 1974, except for the ...