Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, Nos. 72 C 138 and 72 C 1104 JOSEPH S. PERRY, Judge.
Fairchild, Chief Judge, Cummings, Circuit Judge, and Bryan, Senior District Judge.*fn*
This appeal presents the important and recurring question of the scope and content of the limited immunity of prison administrators from damages in suits challenging actions taken in the course of their official responsibilities.
Plaintiff Roger Knell was convicted of armed robbery and sentenced to serve three to eight years imprisonment in the Illinois State Penitentiary, Stateville Branch. During his term of incarceration, on November 17, 1971, following a hearing before the prison disciplinary committee, plaintiff was placed in disciplinary isolation for fifteen days for having written a letter to an unauthorized person and smuggling the letter out of the prison. While in isolation, plaintiff requested three habeas corpus petition forms, a typewriter, law books, and consultation with an inmate "jail house lawyer." These requests were denied pursuant to a then applicable prison regulation which barred any access to reading material and all mail and visiting privileges to inmates in isolation custody.*fn1 On December 2, 1971, plaintiff was released from isolation and returned to the general prison population. After his confinement in isolation terminated, plaintiff appeared before the institutional merit staff committee which revoked three months of his accumulated statutory good time and demoted him to a status in which his future good time credits would be computed by a less favorable formula.
On January 18, 1972 plaintiff filed a complaint in the district court pursuant to 42 U.S.C. § 1983 against defendant Peter B. Bensinger, then Director of the Illinois Department of Corrections, alleging a denial of access to the courts while confined in isolation and a denial of procedural due process in hearings before the disciplinary committee and merit staff. Injunctive relief and damages were requested. On May 3, 1972, a second complaint was filed contesting the loss of statutory good time and reduction in status.*fn2 The district court granted a motion for summary judgment in the first action and dismissed the second for failure to state a claim for which relief could be granted.
Plaintiff filed notices of appeal in both cases which were consolidated. In an opinion set forth at 489 F.2d 1014 (7th Cir. 1973), this court vacated the judgments of the district court, indicating that the enforcement of the rule during plaintiff's confinement in isolation constituted a denial of access to the courts to challenge the legality of his confinement during its pendency. The cause was remanded for further proceedings in order to determine "whether appellant can prove damages arising out of his denial of access to the courts during his 15 days in isolation." Id. at 1018. In connection with the request for injunctive relief, the court rejected defendant's argument that the implementation of a superseding regulation on April 3, 1973 which provided that inmates in isolation receive normal visiting and legal mail privileges mooted the request. On remand, the district court was further instructed to "determine whether the regulations in force at Stateville do in fact permit effective challenge of punitive isolation by inmates other than those who have retained counsel or are sufficiently learned in the law to challenge their confinement effectively without advice and without the tools of legal research." Id. Following an evidentiary hearing, the district judge entered judgment in favor of defendants and against plaintiff, decreeing that plaintiff take nothing for money damages and that the cause be dismissed on the merits. This appeal by plaintiff followed.*fn3
The district court found that "the regulations currently in force at Stateville do in fact permit effective challenge of punitive isolation by inmates other than those who have retained counsel or are sufficiently learned in the law to challenge their confinement effectively without advice and without the tools of legal research." A careful examination of the record before the district court provides sparse evidentiary support for this finding. Little if any testimony was offered concerning the reach or meaning of the superseding regulation concerning disciplinary isolation.*fn4 It is unnecessary, however, to remand this issue for further consideration by the district court. It is apparent from the record that plaintiff was released on parole from the Illinois State Penitentiary, Stateville Branch, on January 18, 1973, and discharged from the custody of the Illinois Department of Corrections on February 19, 1974. Plaintiff's action seeking injunctive relief was not brought as a class action. Thus, the question presented concerning the constitutionality of the present regulations is moot and may not be further considered in the context of the present litigation. DeFunis v. Odegaard, 416 U.S. 312, 316-320, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974).
The district court denied all money damages to plaintiff, finding that "the defendants followed the Illinois Department of Corrections policies concerning isolation during the periods of time alleged in good faith and with the honest belief that said policies conformed to announced legal principles and standards relevant to the subject matter of the department policy." In addition, the court concluded as a matter of law that defendant's good faith enforcement of the isolation policies "was not unreasonable in the light of then-existing legal standards." Plaintiff takes issue with these conclusions, asserting that under the Supreme Court decisions of Johnson v. Avery, 393 U.S. 483, 485, 21 L. Ed. 2d 718, 89 S. Ct. 747 (1969) and Ex Parte Hull, 312 U.S. 546, 549, 85 L. Ed. 1034, 61 S. Ct. 640 (1941), the requirements of free and effective access to the courts by prison inmates were clearly enunciated and that defendant, as the state officer with primary responsibility for the operation of the Illinois penal system, must be held responsible in damages for their abridgment.
At the outset of our consideration of this matter, we note that it is clear that, unlike judges or members of the legislature, state executive officials do not enjoy an absolute immunity from personal liability as to all acts performed within the scope of their official duties. Compare, Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951) and Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967) with Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Rather, "in varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief coupled with good faith belief formed at the time and in light of all the circumstances, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." Scheuer v. Rhodes, supra, 416 U.S. at 247-48. The policy consideration underlying the concept of immunity, absolute or qualified, for public officials is the necessity of insuring principled and conscientious governmental decision making by affording some measure of freedom from fear of personal liability for the official exercise of discretion and the performance of required duties.*fn5 The concept reflects recognition that government officials may err in their official actions, but that "it is better to risk some error and possible injury from such error than not to decide or act at all." Id. at 242. See also, Hampton v. City of Chicago, Cook County, Ill., supra, 484 F.2d at 607.
The Supreme Court's most recent consideration of the concept of the qualified immunity of state executive officers is set forth in Wood v. Strickland, 420 U.S. 308, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975). In that case, two high school students who had been expelled from school for violation of a school regulation brought suit under 42 U.S.C. § 1983 against local school officials seeking damages and injunctive and declaratory relief, claiming the expulsions infringed upon their constitutional rights to procedural due process. In articulating the appropriate standard to apply in determining whether the school administrators were liable for damages, the Court held:
While the Court's formulation in Wood v. Strickland was expressly limited to "the specific context of school discipline," we conclude that the two-pronged standard therein articulated applies equally to challenges to the official conduct of correctional administrators. First, we note that the Supreme Court itself, in subsequent cases concerning the assessment of damages against state mental health officials for alleged deprivations of liberty of mental patients, vacated the judgments and remanded to the Court of Appeals for reconsideration in light of Wood. See, O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396, 43 U.S.L.W. 4929, 4933-34 (June 24, 1975); Gumanis v. Donaldson, 422 U.S. 1052, 95 S. Ct. 2673, 45 L. Ed. 2d 705, 43 U.S.L.W. 3683 (June 24, 1975). Such dispositions establish that the test is not intended to be limited to school discipline cases.*fn6 Moreover, the Court, in looking beyond subjective good motive, displayed concern over permitting ignorance of settled principles of law to justify a denial of a constitutional right by administrators "entrusted ...