Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 76-C-3941 -- Joel M. Flaum, Judge.
Before Swygert, Cummings, and Sprecher, Circuit Judges.
Plaintiff, an inmate at Stateville Correctional Center, appeals from the district court's order granting defendants' motions for summary judgment in a suit under 42 U.S.C. § 1983, alleging that certain officials of the Illinois Department of Corrections violated plaintiff's constitutional rights during the course of and following the disposition of a disciplinary report filed against him. We affirm in part and reverse in part.
According to his pro se complaint, Stringer was incarcerated at the Pontiac Correctional Center in Pontiac, Illinois, following his 1967 conviction for murder and armed robbery. On June 10, 1976 Stringer received a disciplinary report for pressuring three inmates to join an organization. The report, filed by defendant Donald Polizzi, a correctional lieutenant and internal affairs investigator at Pontiac, was based solely on interviews with the three inmates involved in the incident. As a result of the disciplinary report plaintiff was placed on deadlock in his cell. Three days later, he appeared before the Institutional Adjustment Committee (the "Committee"), which was chaired by defendant Thaddeus Pinkney, assistant warden. The Committee decided to further investigate and to place plaintiff in segregation pending completion of the investigation. Before this time plaintiff had been employed at the Pontiac law library.
On June 25, 1976 Stringer was removed from his cell. Handcuffed and wearing a security belt, he was brought before the Committee for a hearing on the charge filed against him. During his interview Stringer gave the Committee a list of witnesses who would testify on his behalf; however, plaintiff was informed that there was sufficient evidence to support the allegation of pressuring the inmates. In response to his questions, the Committee informed Stringer that in reaching the decision they relied on a phone call from defendant Fred Finkbeiner, the warden, stating he had additional information to support the charge against plaintiff. The Committee admitted that it did not know the substance of the information. Stringer was then assigned to the segregation unit of the prison.
Following his disciplinary hearing, Stringer was returned to his cell in the segregation unit by defendant Jack Conkle, a correctional officer at Pontiac, and four other prison guards. Shortly thereafter, defendant Polizzi approached plaintiff's cell and informed him that he was to be placed in a "control" cell of the segregation unit. Plaintiff, handcuffed and locked in his cell, alleges that he was talking with Polizzi about the manner in which he conducted the investigation of the charge when Conkle, without provocation, sprayed plaintiff in the face and on his back with mace. Plaintiff then was taken to the control cell and, approximately thirty minutes later, he was told that he was to be transferred to Menard Correctional Center, Menard, Illinois. He arrived at Menard later the same day and was placed in segregation, where he remained until September 8, 1976. Following the transfer, several of Stringer's personal papers, including his trial transcript and a habeas corpus petition, never arrived at the Menard prison.
One week after his transfer from Pontiac to Menard, plaintiff contacted defendant Richard Gramley, transfer coordinator for the Department of Corrections, to complain about his transfer. In response, Gramley told Stringer that he approved plaintiff's transfer because of his failure to adjust to the programming at Pontiac. (In his complaint, plaintiff alleged that the transfer was approved by defendant Finkbeiner to cover the errors of other prison officials in the investigation and disposition of the June 10, 1976 disciplinary report.)
Stringer grieved the disciplinary report, his transfer to Menard, and loss of property through the Department of Corrections grievance procedures. On August 5, 1976 the Administrative Review Board (the "Board") met with Stringer. It found that there had been "no violations of Administrative Regulation 804 in the disposition of this (disciplinary) report."*fn1 It further found that the transfer from Pontiac to Menard "was properly ordered and administered." The Board recommended that the warden of Menard prison have his staff contact Pontiac prison and "ensure that all of Mr. Stringer's personal property is delivered to him as expeditiously as possible." Defendant Charles Rowe, director of the Department of Corrections, concurred in these findings and recommendations. A copy of the decision was sent both to defendant Finkbeiner and to defendant Gramley. Stringer requested a rehearing with the Board. The request was granted on September 2, 1976. At the rehearing, the Board found that the Committee had failed to take "final action" on the disciplinary report and that "AR 804 has indeed been violated." The Board ordered the report be expunged from Stringer's record. Additionally, Stringer was released from segregation and his good-time credit restored. The Board again found that the transfer "was properly carried out." Defendant Rowe concurred in the findings and recommendations.
On October 27, 1976 Stringer filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 seeking monetary, declaratory, and injunctive relief against certain officials of the Department of Corrections.*fn2 The complaint charged numerous constitutional violations. In essence plaintiff alleged that: (1) he was convicted of a disciplinary violation and placed in segregation in violation of his due process and equal protection rights; (2) he was denied due process and equal protection of the laws by being transferred from the Pontiac prison to the Menard prison; (3) he was maced without provocation in violation of the Eighth Amendment; and (4) he was deprived of his personal property in violation of the Due Process Clause.
With the exception of Finkbeiner, all the defendants moved to dismiss the complaint or, in the alternative, for summary judgment. On July 21, 1977 the district court granted defendants' motions for summary judgment. As to the first two claims, the district court held that plaintiff failed to state a section 1983 cause of action because he had not challenged the disciplinary procedures employed in processing the charge against him and had not offered authority for the position that Illinois law establishes a liberty interest in being placed in a particular prison. The court further held that summary judgment was proper on the third claim because the "undisputed affidavits" showed that plaintiff had been maced because he was belligerent and threatening to prison officials. Lastly, the district court concluded that the fourth claim failed to state a cause of action under 42 U.S.C. § 1983 because plaintiff had not alleged that the confiscation of his property by the prison officials was intentional. This appeal followed.
Count I: Disposition of Disciplinary Report
In granting defendants' summary judgment motions, the district court held that plaintiff failed to state a claim that he was denied due process in connection with the disposition of the disciplinary report filed against him. The decision was grounded on plaintiff's failure in his complaint to "in any way challenge the disciplinary procedures employed in processing his June 10, 1976 charge," citing Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Plaintiff maintains that he has stated a due process claim on the basis of his allegations that Finkbeiner improperly interfered with the Committee proceedings and that Polizzi failed to conduct a reasonable investigation of the charge against him.
Before we can test plaintiff's complaint on this issue, a threshold question, which the district court failed to address, must be resolved: whether the placement of Stringer in disciplinary segregation infringed a liberty interest protected by the Due Process Clause. Following the decisions in Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) and Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976), this court has held that a prisoner is not constitutionally entitled to procedural protections unless ". . . he has some justifiable expectation rooted in state law that the challenged action will not be taken absent the occurrence of a specified factual predicate." Arsberry v. Sielaff, 586 F.2d 37, 45 (7th Cir. 1978). In Meachum v. Fano, supra, 427 U.S. at 229, 96 S. Ct. at 2540, the Supreme Court held that the state could create a liberty interest "by statute, by rule or regulation." This court has recognized that a prisoner may have due process rights as a result of entitlements created by prison regulations and by official policies or practices. Arsberry v. Sielaff, supra, 586 F.2d at 47; Durso v. Rowe, 579 F.2d 1365, 1369 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S. Ct. 1033, 59 L. Ed. 2d 82 (1979).
Plaintiff argues that by virtue both of Illinois statute and of prison regulation, he had a justifiable expectation that he would not be placed in segregation absent proof of a serious violation. Both section 3-8-7 of the Illinois Unified Code of Correction, Ill.Rev.Stat. ch. 38, § 1003-8-7(d) and (e)*fn3 and Administrative Regulation 804(II)(A)(3) and (4)*fn4 of the Department of Corrections distinguish between minor and serious disciplinary violations. According to AR 804, minor violations are handled informally by a Program Team, which may impose less stringent sanctions such as the loss of special privileges. AR 804(II)(K).*fn5 Serious violations, such as in this case, are referred to the Committee. The regulation further provides that in the latter case a hearing must be held and sanctions such as placement in disciplinary segregation and revocation of good time credit may be imposed. AR 804(II)(B).*fn6
To support the argument that his segregation constituted infringement of a protectible liberty interest, plaintiff analogizes AR 804's two-tier system for disciplining prisoners to the facts in Wolff v. McDonnell, supra. There a state statute provided that the right to good time credit could be forfeited only for serious misconduct, whereas privileges could be revoked for lesser misconduct. The Supreme Court held that the prisoner had a protectible liberty interest because the statute restricted the discretion of prison authorities. The Court commented:
(T)he State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment "liberty" to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated.
Id. 418 U.S. at 557, 94 S. Ct. at 2975. In further support of his position, plaintiff points to the decisions of other courts which have held that prisoners have a liberty interest in not being placed in disciplinary segregation absent proof of a serious rule violation. See Walker v. Hughes, 558 F.2d 1247 (6th Cir. 1977); Bills v. Henderson, 446 F. Supp. 967 (E.D.Tenn.1978).
When plaintiff's complaint is given a liberal reading, Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), we conclude that plaintiff alleged that Illinois prison regulation 804 creates the right to be free from disciplinary segregation except upon a finding of major misconduct by the Committee. In responding to the complaint, defendants, did not state why this regulation does not create a right which conditions the placement of plaintiff in disciplinary segregation upon proof of serious misconduct. Additionally, it appears that the district court did not recognize that AR 804 may be the basis for a claim of entitlement for relief under the Due Process Clause. Accordingly, we reverse the summary judgment order on this issue, and we remand the matter to the district court for further proceedings. In light of our holding, we need not now consider what process was due plaintiff and whether the minimum procedures required by the Due Process Clause were afforded to Stringer. These questions are left for the district court to resolve.
Count II: Inter-prison Transfer
Plaintiff next claims that he was not afforded equal protection of the laws when he was not given a pre-transfer hearing which all Illinois prisoners are entitled to under AR 819.*fn7 Defendants do not dispute plaintiff's assertion that he was not accorded a pre-transfer hearing. Instead, they contend that plaintiff did not allege an equal protection violation in his complaint but rather, a due process one for which there can be no recovery, citing Meachum v. Fano, supra.
We hold that Stringer has stated a claim that his right to equal protection was violated, and accordingly we reverse the summary judgment order on this issue. Our holding is based on the decision in Durso v. Rowe, 579 F.2d 1365 (7th Cir. 1978). The plaintiff in Durso argued that prison officials violated the Equal Protection Clause by removing him from the work release program without according him the same type of hearing that was given to other participants before they were removed from the program. The district court dismissed the claim because it considered the allegations as conclusory and also on the belief that the inconsistency in prison management, absent the presence of a suspect class, was insufficient to state an equal protection claim. We reversed and remanded, holding that:
A state prisoner need not allege the presence of a suspect classification or the infringement of a fundamental right in order to state a claim under the Equal Protection Clause. The lack of a fundamental constitutional right or the absence of a suspect class merely affects the court's standard of review; it does not destroy the cause of action.
Id. at 1372. This court recognized that an inconsistency in the operation of a prison may not in itself constitute an equal protection claim, but found that the prisoner's claims were more than allegations revealing merely that he was the victim of erroneous decisionmaking by prison officials. Rather, he alleged that these officials "purposefully denied him a hearing before terminating his work release status even though hearings were customarily afforded to other inmates similarly situated." Id.
In his complaint, plaintiff here did not allege that he was treated differently from other inmates, much less specifically allege that AR 819 was violated by defendants. He did allege, however, that he was not given a hearing prior to his transfer from Pontiac to Menard. He further alleged that his transfer was approved by Finkbeiner to mask the errors of other prison officials in the investigation and the disposition of the June, 1976 disciplinary report. Defendants submitted no evidence to the district court explaining why Stringer was not given a hearing prior to his transfer. Taking his allegations as true, we conclude that they are sufficient under the Durso rationale to state a claim that plaintiff was denied equal protection in connection with his inter-prison transfer.
According to his complaint, plaintiff, while locked in his cell and talking to defendant Polizzi about his investigation of the disciplinary charge, was sprayed in the face with mace by defendant Conkle, who acted without provocation. Defendants paint a different picture. In support of their motions for summary judgment, defendants submitted affidavits of the Pontiac warden and an officer who was present when the incident occurred. These documents do not deny that plaintiff was maced. Rather, they claim that it was necessary to subdue Stringer with the chemical agent because he refused to give up the security belt and handcuffs which he was wearing. According to the affidavits, Stringer also threatened the five officers who were present at his cell. The district court granted summary judgment to defendants on the basis of Stringer's failure to present material contradicting defendants' showing that force was necessary to subdue him.
In order to establish a violation of the Eighth Amendment, a plaintiff must show that prison officials intentionally inflicted excessive or grossly severe punishment on him or that the officials knowingly maintained conditions so harsh as to shock the general conscience. United States ex rel. Miller v. Twomey, 479 F.2d 701, 719-20 (7th Cir. 1973), cert. denied, Gutierrez v. Dept. of Public Safety, 414 U.S. 1146, 94 S. Ct. 900, 39 L. Ed. 2d 102 (1974). Courts have sanctioned the use of tear gas "when reasonably necessary . . . to subdue recalcitrant prisoners." Clemmons v. Greggs, 509 F.2d 1338, 1340 (5th Cir. 1975). Recent decisions, however, have emphasized that use of chemical agents such as tear gas and mace by prison officials to subdue individual prisoners, rather than to quell large disturbances, should be more restricted. See, e. g., Spain v. Procunier, 600 F.2d 189, 196 (9th Cir. 1979) ("use of potentially dangerous quantities of the substance is justified only under narrowly defined circumstances . . . ."; McCargo v. Mister, 462 F. Supp. 813, 819 (D.Md.1978) ("use of (tear gas and mace) should be strictly limited to circumstances presenting the utmost degree of danger and loss of control").
The essential question on appeal is whether Stringer's claim that the use of mace constituted cruel and unusual punishment was ripe for summary judgment. In Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973), the court remarked:
In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.
Id. at 1033. Additionally, it is well-settled that:
Before summary judgment is granted, the moving party must show that there is no genuine issue as to any material fact, and all pleadings and supporting papers must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176; Fed.R.Civ.P. 56(c). This principle is applicable even though the pro se complaint and ...