The opinion of the court was delivered by: Crowley, District Judge.
MEMORANDUM OPINION AND ORDER
This amended complaint alleges a violation of 42 U.S.C. § 1983
and jurisdiction is properly invoked under 28 U.S.C. § 1343(3).
Plaintiff is a prisoner incarcerated in the Stateville
Correctional Center in Joliet, Illinois (Stateville). Originally,
plaintiff proceeded pro se, but this amended complaint was
filed with the aid of court appointed counsel. Plaintiff alleges
that he was arbitrarily transferred from his cell under 24-hour
protective custody to the Segregation Unit on or about June 30,
1978. Plaintiff claims he has a due process right to notice and
an opportunity to be heard concerning such a transfer but that he
has yet to be informed of the reason for the transfer and he is
still in the Segregation Unit. As a result, plaintiff claims he
has been denied access to facilities to which he is entitled and
has been unreasonably restrained. Plaintiff is seeking both
injunctive relief of reassignment and provision of reasons for
his transfer, and monetary damages.
Defendants Franzen (Director, Illinois Department of
Corrections), Hall (Assistant Warden, Stateville), and Mellas
(Assistant Warden, Stateville)*fn1 have moved to dismiss and
alternatively for summary judgment. They argue first that the
doctrine of respondeat superior does not apply where monetary
damages are sought in civil rights suits under 42 U.S.C. § 1983,
and that none of the defendants is alleged to have been
personally involved in the alleged constitutional violation nor
that the violation occurred with their knowledge or consent.
Second, defendants claim that the affidavit of a correctional
officer and disciplinary records establish that plaintiff was
placed in the Segregation Unit for cause and, thus, not
arbitrarily. However, a supplemental exhibit*fn2 reveals that in
a letter to plaintiff,
defendant Franzen explained to plaintiff that he was transferred
on June 29, 1978 from Cellhouse "E" 24-hour safekeeping status to
Cellhouse "B" temporarily because of a lack of facilities.
Franzen further related that plaintiff was returned to Cellhouse
"E" as space became available in November, 1978. Also, during
this period, plaintiff was not denied compensatory good time.
Finally, the letter claims that any subsequent denial of
compensatory good time was in accordance with regulations.
With respect to the respondeat superior issue, it is clear
that the plaintiff must allege "personal involvement or
knowledge" on the part of the defendants to state a claim for
monetary damages against supervisory personnel under § 1983.
McDonald v. Illinois, 557 F.2d 596 (7th Cir. 1977); Adams v.
Pate, 445 F.2d 105, 107 (7th Cir. 1971). Plaintiff argues that
he has sufficiently alleged personal involvement for two reasons;
the Complaint charges both that "one or more of the Defendants"
ordered plaintiff's reassignment and each defendant had
responsibility for the supervision of inmates at Stateville. The
latter reason is clearly insufficient because it merely alleges
general supervisory responsibilities and does not claim specific
involvement in this alleged constitutional deprivation. On the
other hand, the allegation that plaintiff was arbitrarily
transferred on the order of one or more of the defendants does
allege personal involvement, but it does not specifically
identify any one defendant as responsible. Furthermore, defendant
Franzen has been substituted as a party pursuant to Fed.R.Civ.P.
25(d)(1), but he did not become Director of the Illinois
Department of Corrections until December, 1978, six months after
plaintiff claims he was transferred to the Segregation Unit.
Thus, Franzen could not have ordered plaintiff transferred. Since
plaintiff has not alleged that any specific defendant ordered,
had knowledge of the order, or acquiesced in the order of
transfer nor that any defendant had knowledge and acquiesced in
plaintiff's continued assignment to segregation in violation of
his rights, plaintiff has failed to state a cause of action for
monetary damages under 42 U.S.C. § 1983 against defendants
Franzen, Hall and Mellas.
With respect to defendants' motion for summary judgment on the
remainder of plaintiff's claims for relief, defendants' arguments
are misplaced. They apparently claim that the corrections
officer's affidavit and the Franzen letter establish that
plaintiff was not arbitrarily assigned to segregation and that he
was not denied good time credit when transferred because of
overcrowding. However, plaintiff's claim is based on a denial of
the due process rights of notice and opportunity to be heard, not
the wrongful deprivation of good time.
The fundamental issue in this case, not addressed by
defendants, is whether prisoners are entitled to any due process
rights when transferred to segregation. In his memorandum in
opposition to defendants' motion, plaintiff argues that prolonged
segregated confinement is a grievous loss which triggers due
process rights. However, the Seventh Circuit has expressly ruled
that since the Supreme Court cases of 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), the
"grievous loss" analysis is not appropriate. Arsberry v.
Sielaff, 586 F.2d 37, 44-46 (7th Cir. 1978). In Arsberry, the
court held that procedural protections are not triggered unless a
prisoner has "some justifiable expectation rooted in state law
that the challenged action will not be taken absent the
occurrence of a specified factual predicate." 586 F.2d at 45. In
Stringer v. Rowe, 616 F.2d 993, 996 (7th Cir. 1980), the court
re-established this principle.
In Stringer, the trial court had held that the plaintiff had
failed to state a due process claim because he had not challenged
the prison disciplinary procedures. The Seventh Circuit,
following Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30
L.Ed.2d 652 (1972), gave the complaint a liberal reading and held
that it stated a due process claim based upon a liberty interest
created by prison regulations. Specifically, Stringer argued on
appeal that Administrative Regulation 804(II)(A)(3) and (4),
804(II)(K), and 804(II)(B) of the Department of Corrections
create an expectancy that prisoners will not be placed in
segregation absent a finding of major misconduct. As the
Stringer opinion indicates, these regulations establish a
two-tier system of disciplining prisoners similar to the Nebraska
system reviewed in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct.
2963, 41 L.Ed.2d 935 (1974). The Wolff court held that the
prisoner had a protectible property interest in statutory good
time credit because the prison authorities' discretion to revoke
it was limited by statute and regulation. In addition, the type
of liberty interest claimed in this case has been recognized by
other courts. See Wolff v. McDonnell, 418 U.S. 539, 571 n. 19,
94 S.Ct. 2963, 2982, 41 L.Ed.2d 935 (1974) (Nebraska regulation);
Walker v. Hughes, 558 F.2d 1247, 1255-56 (6th Cir. 1977)
(federal regulation); Bills v. Henderson, 446 F. Supp. 967, 973
(E.D.Tenn. 1978) (Tennessee regulation). Since the Supreme Court
has noted that a liberty interest may be created by a state
regulation, Meachum v. Fano, 427 U.S. 215, 229, 96 S.Ct. 2532,
2540, 49 L.Ed.2d 451 (1976), this Court concludes that Illinois
prisoners have a protectible liberty interest in not being placed
in disciplinary segregation absent a finding of major misconduct.
Since plaintiff has specifically claimed that his due process
rights were violated, his complaint alleges a valid due process
cause of action.
Accordingly, the motion of defendants Franzen, Hall and Mellas
to dismiss this complaint is granted as to plaintiff's claim for
monetary damages, but is denied as to the other relief sought. In