Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, Nos. 74-C-1918 and 74-C-1951 consolidated Alfred Y. Kirkland, Judge.
Before Cummings and Pell, Circuit Judges, and East,*fn* Senior District Judge.
This 42 U.S.C. § 1983 civil rights case involves 18 named plaintiffs at four Illinois state prisons who were allegedly removed from the general population and placed in segregation or its equivalent for periods ranging from two to eight months without procedural due process. The defendants are various officers and employees of the Illinois Department of Corrections (Department).
The two actions of Arsberry, et al. v. Sielaff, et al., No. 74-C-1918, and Longstreet, et al. v. Sielaff, et al., No. 74-C-1951, were consolidated in the District Court. In Arsberry, nine prisoners challenged the constitutionality of their removal from the general population to segregation at Stateville and Joliet, or transfer from one of these prisons to segregation at another prison. In Longstreet, nine other prisoners challenged the constitutionality of their removal from the general population at Pontiac and Menard prisons and transfer to segregated confinement at Stateville.
The District Court granted plaintiffs' motion to certify the cases as class actions under Fed.R.Civ.P. 23,*fn1 and entered summary judgment in favor of the Department on December 30, 1976. We note jurisdiction under 28 U.S.C. § 1291, reverse the summary judgment and remand the causes for further proceedings.
Longstreet, Hall, Birdsong, Jackson, Moore and Weaver were summarily transferred to Stateville on March 27, 1974. All were previously in the general population at Pontiac except Weaver who was assigned to the Hospital. The plaintiffs alleged that the transfer was to "segregation" and that as a result thereof, they were deprived of their "rights" to associate with other inmates (First Amendment), attend religious services (First Amendment), visit the law library (Sixth Amendment), earn compensatory good time (state created entitlement), get adequate exercise and recreation, and participate in vocational and rehabilitational programs.
Affidavits filed by Warden Cannon and his special assistant, Revis, refer to the nature of the plaintiffs' confinement as 6 Gallery Cell House "B" or 6 Gallery or 6 Gallery in "B" House or the like. While the Department does not use the term "segregation," the description of the conditions of confinement differ only slightly from those alleged by the plaintiffs. Revis acknowledges that inmates in 6 Gallery were not in the general population of Cell House "B." He further states that materials from the law library were available upon request and that chaplains were also available. The only major departure from the complaint's allegations was his statement that inmates in 6 Gallery had the same opportunity to earn compensatory credit and statutory good time as those in the general population.
The plaintiffs' complaint does not specify the circumstances precipitating the transfers but the Simpkins affidavit, submitted by the Department in support of its motion for summary judgment, states that there was a series of disturbances in the inmates' dining room on March 26 and 27, that a "subsequent investigation" revealed that the disturbances were ordered by gang leaders, and that transfers of the plaintiffs were necessary to avoid further disruptions. The affidavit also states that transfers were resorted to because "stronger measures" than disciplinary actions were necessary to quell the turmoil. The parties agree that no Wolff-type*fn2 hearing was afforded before or after the transfers were effected.
The plaintiffs were kept in segregation at Stateville pending reclassification from March 27 until May 29. The two month delay in arranging "personal interview(s)" with the Institutional Assignment Committee was caused by the unexplained failure of the Pontiac officials to forward "the minimum information about the incident at Pontiac necessary to make a proper decision . . . ." The Pontiac plaintiffs submitted no affidavits.
It is agreed that there was a disturbance at Menard on May 17, 1974, in which guards were seized as hostages. Plaintiffs Brown, Bell and Bosveld were immediately placed in segregation. Four days later, on May 21, they were brought before the Menard Assignment Committee, told they were accused of participating in the takeover, and assigned to segregation.
The next day they were transferred to Stateville and appeared before the Stateville Assignment Committee on May 27 or 28. They were told that they were assigned to segregation for 90 days upon the recommendation of the Menard Assignment Committee. They were still in segregation on September 4, 1974, when the Longstreet complaint was amended to include them as plaintiffs.
Brown, Bell and Bosveld alleged the same deprivations as did the Pontiac plaintiffs. The Department did not answer the complaint after it was amended to include the Menard plaintiffs nor did it submit any affidavits in support of the motion for summary judgment with respect to the Menard plaintiffs. In its brief to this Court, the Department acknowledges that the Menard plaintiffs did not receive compensatory good time "for the period in segregation." No affidavits were submitted by the Menard plaintiffs.
1. Stateville Plaintiffs.
The Stateville plaintiffs, Arsberry, McLemore, and Frazier, alleged that in May and June of 1974, they were summarily removed from the general population. Arsberry was initially transferred to the Hospital Detention Unit, while McLemore and Frazier first went to the Transit Unit. Shortly thereafter, Arsberry and McLemore were moved to segregation where they remained until late August or early September, at which time Arsberry was released to the general population at Joliet and McLemore was released to the general population at Pontiac. Shortly after his transfer to the Transit Unit, Frazier was moved to the Behavioral Adjustment Gallery where he remained until his transfer in early October to the general population at Menard. Each of the plaintiffs filed affidavits which state in part that after their initial removal from the general population, the conditions of their confinement amounted to segregation. The affidavits also state that in each case their eventual release to the general population was ordered by the Administrative Review Board which found no basis for the assignments to segregation. The Stateville plaintiffs alleged the same deprivations as did the Pontiac and Menard plaintiffs.
Warden Cannon's affidavit detailed a number of disruptive incidents occurring prior to the organization of a boycott of the prison commissary in May, 1974. He further stated that "reliable information" established that Arsberry, McLemore and Frazier were responsible for enforcing the boycott through "threat and intimidation." He and his staff decided that immediate action had to be taken to protect the security of the institution and so decided to remove the plaintiffs from the general population pending investigation pursuant to Administrative Regulation (A.R.) 809.
"Shortly" after the removal of the plaintiffs from the general population each received a written statement to the effect that the action was taken because it was necessary "for the safety and security of the institution," that he was being held pending "investigation of (his) recent role in creating disturbances and other disruptive activities," and that he would "be scheduled for a hearing by the Institutional Assignment Committee as soon as the investigation is completed." This information was in the form of admissions by the Department and is relied upon by the Department.
Warden Cannon's affidavit indicates that each of the Stateville plaintiffs got a "hearing" before the Assignment Committee by the beginning of the second week in July. He states the 30-45 day delay was "because of the delay in reaching the conclusion of our investigation and (the Assignment Committee's) heavy caseload." Nothing in the record clearly establishes the nature of these "hearings." In fact, the only items in the record tending to reveal the nature of the hearings are responses to plaintiffs' requests for the production of records and therefore, do not come within the purview of Fed.R.Civ.P. 56(c). In addition, they apply to Arsberry and McLemore but not to Frazier. Furthermore, the Department often ...