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February 13, 1981


The opinion of the court was delivered by: Foreman, Chief Judge:


Before the Court is the Report and Recommendation of the United States Magistrate for the Southern District of Illinois. Counsel for both parties agreed that the record before the Court was complete and that no evidentiary hearing was required for disposition. The Magistrate recommended that this Court grant respondent's Motion for Summary Judgment and deny petitioner's request for relief. The Court has reviewed the record, the Report and Recommendation, and petitioner's subsequent objections to the Magistrate's order. For the reasons given below, the Court declines to adopt the Magistrate's conclusions.

Petitioner is an inmate at the Menard Correctional Center. On May 28, 1976, petitioner appeared before the Prison Adjustment Committee for charges relating to his alleged participation in a yard disturbance. As a result of that hearing, two years of petitioner's statutory good time were revoked. Thereafter, petitioner filed a Petition for Habeas Corpus complaining of due process violations in connection with that hearing. On September 11, 1979, this Court granted petitioner's Motion for Summary Judgment. That order stated:

  [T]his action may be disposed of on due process
  grounds as required by Wolff v. McDonnell,
  418 U.S. 539 [94 S.Ct. 2963, 41 L.Ed.2d 935] (1974). A more
  definite statement of the charges and specification
  of evidence, as outlined in the decision, was found
  lacking in the present situation.

On December 10, 1979, exactly ninety days subsequent to this Court's rehearing, order, petitioner was summoned to appear before the Adjustment Committee. No Resident Disciplinary Report was issued with respect to this hearing and petitioner was not provided with a written statement of the charges. He was only told to appear before the Adjustment Committee in one-half hour. (Petitioner's Memorandum Supporting Petition for Rule to Show Cause, Exhibit A.) The Adjustment Committee found petitioner guilty of inciting to riot and recommended revocation of one year of good time credit. Petitioner subsequently objected that this hearing also violated his due process rights and on January 7, 1980, he filed a petition for rule to show cause why respondent should not be held in contempt of court. On February 26, 1980, petitioner was issued a Resident Disciplinary Report (ticket) for the same incident and a second rehearing was held on February 28, 1980. Once again, petitioner was found guilty of inciting to riot, which resulted in revocation of one year of good time.

This Court's order of September 11, 1979, requiring a new hearing does not specifically outline all the minimum due process requirements to which petitioner is entitled. However, it is clear from that order and the Magistrate's Report and Recommendation of August 1, 1979, which this Court adopted, that original disciplinary hearing was constitutionally defective in that it failed to meet the minimum due process standards as required by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

In his Report and Recommendation, the Magistrate expressed his opinion that petitioner seeks in his present petition consideration of the rehearings which exceeds the scope of the original order. Report and Recommendation issued July 29, 1980, at 1, n. 1. Nevertheless, the Magistrate examined the hearings within the guidelines of Wolff v. McDonnell, supra, as petitioner suggested, and this Court will proceed in the same manner. Furthermore, having found that the original hearing did not comply with Wolff in several specific respects, it would be wholly inappropriate to sustain a subsequent court ordered hearing which failed to conform to those constitutional requirements in other respects. At any rate, respondent has failed to correct several of the deficiencies specifically identified in this Court's order and in the Magistrate's order, which was adopted.

At the outset, the Court finds that it would be improper to even consider the second rehearing on February 28, 1980, as that hearing occurred over two months after the expiration of the designated ninety day period. Hence, the Court's review is limited to a determination as to whether the December 1979 rehearing was in compliance with the rehearing order.

Petitioner originally alleged that the Resident Information Report issued to him on May 27, 1976, "failed to adequately provide petitioner with written notice of the charges against him, as it failed to specify with any particularity what acts he was alleged to have done." (Petitioner's Memorandum in Support of Petition for Habeas Corpus at 5.) That "ticket" stated that petitioner had been identified by various prison employees as a participant in the disturbance in question. The rehearing order found that, inter alia, "[a] more definite statement of the charges . . . as outlined in [Wolff] was found lacking . . ."

  Part of the function of notice is to give the charged
  party a chance to marshal the facts in his defense
  and to clarify what the charges are, in fact. See, In
  re Gault, 387 U.S. 1, 33-34 and n. 54 [87 S.Ct. 1428,
  1446-1447 and n. 54, 18 L.Ed.2d 527] (1967).

Wolff v. McDonnell, 418 U.S. at 564, 94 S.Ct. at 2978. Consequently, in ordering a new hearing, the Court anticipated that respondent would correct the deficiency. Unfortunately, respondent has not even attempted to comply.

Respondent contends that petitioner was aware of the charges and had ample time to prepare a defense as a result of his participation in the original hearing. (Respondent's Memorandum in Support of Motion for Summary Judgment at 4.) Even if notice of that hearing had been constitutionally sufficient, the Court would be extremely hesitant to allow it to operate as notice of a hearing conducted over three and one-half years later. Notice and opportunity to be heard must be granted at a meaningful time and in a meaningful manner. Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). The Court holds that in addition to describing specific conduct upon which the charges are based, the notice should also give the prisoner some reasonable indication as to when he will have an opportunity to present his defense. See, e.g., Taylor v. Schmidt, 380 F. Supp. 1222, 1232 ...

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