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United States District Court, Northern District of Illinois, E. D

July 13, 1981


The opinion of the court was delivered by: Shadur, District Judge.


Plaintiff Cleve Heidelberg, Jr. ("Shango," the name by which plaintiff is known in the prison community) initially filed a pro se motion for injunctive relief against various officials of the Illinois correctional system.*fn1 At the Court's request George Casson, Jr., the volunteer counsel acting for the plaintiff class in the consolidated action, agreed to represent Shango in the injunction proceedings and filed a supplemental complaint in his behalf against Gayle Franzen as Director of the Illinois Department of Corrections (the "Department") and Richard DeRobertis as Stateville's Warden, focusing Shango's claims in relation to currently applicable legal standards.*fn2

That supplemental complaint claims essentially that (1) disciplinary charges against Shango were initiated because Shango refused to reveal confidential information as to other Stateville residents, given to Shango in the course of his activities as a resident legal clerk and as a "jailhouse lawyer," (2) the disciplinary proceedings stemming from those charges violated Shango's rights to due process, (3) Shango was transferred to the segregation unit at Menard for the same reasons referred to earlier in this sentence and (4) the conditions of Shango's imprisonment at Menard and the seizure of Shango's personal property there constitute cruel and unusual punishment.

This Court denied Shango's initial motion for a temporary restraining order but scheduled and conducted a two-day evidentiary hearing on Shango's motion for preliminary injunctive relief. Both pre-hearing and post-hearing briefs have been filed by the parties. Although they differ sharply on the proper result, there is no disagreement as to the standards that Shango must meet, as recently reiterated by our Court of Appeals in O'Connor v. Board of Education, 645 F.2d 578, 580 (7th Cir. 1981):

    1. Shango has no adequate remedy at law and
  will be irreparably harmed if the injunction does
  not issue.

    2. Threatened injury to Shango outweighs the
  threatened harm the injunction may inflict on

    3. Shango has at least a reasonable likelihood
  of success on the merits.

    4. Granting a preliminary injunction will not
  disserve the public interest.

For the reasons stated in this memorandum opinion and order, the Court finds that Shango has sustained his burden only in limited respects and is entitled to some but not all of the preliminary injunctive relief he seeks.


In July 1980 Shango was serving a long-term sentence at Stateville. For a number of years Shango has served as a "jailhouse lawyer," assisting other Stateville residents with a large number of civil rights actions, internal grievance proceedings, criminal appears and habeas corpus petitions (Tr. 20-37, 67-69, 263-64).*fn3 During portions of that period, including several months immediately before the events triggering the current motion, Shango also worked as a clerk in the Stateville law library (Tr. 20-21).

On July 14, 1980 another Stateville resident, Stephen Edwards, came to the office of Lt. Ulsey Price, a Stateville internal investigator, and charged that at some time during the month of June 1980 Shango had engaged in homosexual activity with Edwards, having paid another resident to force Edwards to do so (Tr. 266-72). At Lt. Price's request, Edwards took a polygraph examination (Tr. 272), and upon being advised of the results of that examination Lt. Price caused Shango to be placed on investigative status (Tr. 272-73) (this caused Shango to be transferred to confinement in the Stateville Investigation Segregation Unit).

Although Shango charges that the entire episode stemmed from defendants' desire to harass Shango for his jailhouse lawyer and resident legal clerk activities, the Court finds the evidence insufficient to establish that claim at this stage of the proceedings. Lt. Price knew Shango by that name as having carried out such functions, but Lt. Price, Warden DeRobertis and Edwards all testified that no correctional authority had initiated Edwards' coming forward to Lt. Price (Tr. 189-90, 267, 342). Lt. Price and the Warden testified that Lt. Price was not ordered to investigate Shango by the correctional authorities (Tr. 189, 274). Equally significantly, Lt. Price testified that he simply did not know the person charged as "Cleve Heidelberg, Jr." to be the same as the person he had heard of but did not know as "Shango" (Tr. 319). Investigator Alfred Faro of the Department's Internal Affairs division, who was the officer actively involved in the investigation, testified that he too was then unaware of Shango's activities as a jailhouse lawyer or legal clerk (Tr. 324-25).

Almost immediately after Shango's transfer to the segregation unit Shango objected to the Stateville Adjustment Committee in accordance with the Department's Administrative Regulations (cited "AR"). Also purportedly in accordance with the ARs, the Adjustment Committee conducted a "hearing," which in fact consisted only of reading the Resident Disciplinary Report (colloquially "ticket") written up by Lt. Price (Tr. 54-59). It rejected Shango's demands for a filing of specific charges, polygraph examinations and release from segregation "as per Lt. Price's request," and it upheld Shango's placement in disciplinary status (Pl. Ex. 3). Because AR 804.II.J.1 provides that a resident's confinement in segregation pending investigation requires the same procedural safeguards as a resident's disciplinary placement in segregation, that "hearing" violated the Administrative Regulations in at least the following respects:

    (1) Lt. Price's ticket did not "provide
  [Shango] with as much information as possible
  regarding the incident" with Edwards (as required
  by AR 804.II.J.2). It did not adequately inform
  Shango of the nature of the charge or the date,
  time and place of the alleged incident,
  effectively depriving Shango of the opportunity
  to meet the charge.*fn4

    (2) There was no real hearing of any kind
  before the Adjustment Committee, which (in a
  two-minute proceeding) simply read Lt. Price's
  ticket and, despite Shango's objections and
  attempted defense, upheld the segregation on
  investigative status without any stated reason
  except to refer to Lt. Price's ticket.

On July 23, 1980 Lt. Price interviewed Shango for the first time, informed him of the Edwards charges and offered him the opportunity to take a polygraph examination to rebut the claims (Tr. 62-64, 277-81). Though the parties agree that Shango refused to take the polygraph examination, there is a total conflict in the testimony as to whether — as Shango claims and Lt. Price denies — the offer was linked to proposed questioning as to other inmates Shango was assisting and as to other resident legal clerks and jailhouse lawyers (Tr. 66-69, 282). That dispute in testimony also exists as to whether the same subject matter was discussed during the July 24 interview of Shango by Investigator Alfred Faro of the Internal Affairs Office of the Department of Corrections (Tr. 74-75, 324-26). Because the Court has resolved the "hearing" issues on due process grounds, it is not called on to make findings of fact as to that contested area of testimony.

On July 25, 1980 Shango was served with a new ticket prepared by Lt. Price (Pl. Ex. 6), this one charging him with violations of ARs against "engaging with others in or pressuring others to engage in any unnatural sexual activity" and "violating the general laws of the State or Federal government" (the latter charge referring to the state statute prohibiting "deviate sexual assault"). It charged (a literal transcription):

  On July 24, 1980 a copy of a polygraph
  examination taken by resident Stephen Edwards
  indicated, he was telling the truth, when he
  stated that during the month of June 1980 on at
  least one occasion you paid another resident to
  force Edwards to have a unnatural sex act with
  you. . . . You were given an opportunity to take
  a polygraph examination on these charges. You
  Heidelberg decline therefore you are so charged.

Lt. Price did not state either in his report or his interview with Shango (and therefore Shango was not advised) that (1) Lt. Price's check of inmate Edwards' trust fund records did not implicate Shango in any way (Tr. 305) or (2) Lt. Price's interviews of other inmates also did not implicate Shango in any way (Tr. 306-7).

Shango promptly exercised his right to appear before the Adjustment Committee, where he was asked to and did waive the 24-hour notice requirement (Tr. 84-85). At the "hearing" the ticket was read to him, with no witnesses and no evidence being offered (Tr. 85-86). Shango asked for specifies (such as the date, time, who the other resident allegedly was and where the alleged incident occurred) to permit him to offer a defense, explaining that his movements within the institution are always controlled and that such particulars could enable him to provide facts in contradiction to the charge (Tr. 86-87). Shango stated that he was not a homosexual and had had no sexual relationships with Edwards or any other man, so that the charges were untrue (Tr. 87-88). His requests for access to the polygraph examination and statements of witnesses were refused, the Administrative Committee stating that they had nothing before them except the ticket itself — neither the "investigation" nor the "official results of the polygraph examination" referred to in the ticket (Tr. 88-93).

After its session, which occupied 20-25 minutes (Tr. 90), the Adjustment Committee excused Shango, then called him back within three minutes (Tr. 94) and provided him with the Adjustment Committee Summary (Pl. Ex. 7). It stated as the "Record of Proceedings":

  Resident states that he is not guilty, denies any
  homosexual activities, questions when and where
  incident allegedly occurred. Refused to take
  polygraph test

  because he was not supplied with specific detail
  concerned alleged incident.

It stated as its "Basis for Decision/Evidence Relied upon":

  Interview with resident. Adjustment Committee is
  relying on accuracy of polygraph examination and
  Internal Affairs investigation.

As a result of that decision Shango was placed in "C" grade for one year (involving a loss of status and the ability to earn good time during that period), forfeited one year of good time and was committed to one year's segregation effective July 14, 1980. Shango exhausted his internal administrative remedies from that decision, including challenging its procedural deficiencies, without success (Tr. 96-111; the final decision of the Administrative Review Board, Pl. Ex. 12, was rendered September 11, 1980). Shango has in fact been confined in segregation status since July 14, 1980 except during the preliminary injunction hearing in this action (Tr. 95-96).

In the meantime, on August 8, 1980 Investigator Faro testified that he confronted Shango with a charge that he had been in possession of a zip gun in his cell in 1978, based on information received from inmate Edwards (Tr. 326-27). According to Shango, the claim was that he had been in a conspiracy with others to bring weapons into the institution (Tr. 124). In any event, each of them agreed that Faro asked and Shango refused a polygraph examination on the subject of weapons (Tr. 124, 327). Shango, claimed that he didn't know what Faro was talking about regarding Shango's own activities, and that his refusal to respond or to take a polygraph examination was on the basis that if he had any knowledge about weapons involving other inmates it had been gained through his legal work and was therefore confidential (essentially claiming a kind of "lawyer-client" privilege) (Tr. 124). Shango claimed that defendants DeRobertis (in September 1980) (Tr. 125) and Lane (in October 1980) (Tr. 126) had continued to press for the same information, offering to make things easier if he cooperated. Assistant Director Lane did not testify at the hearing, but Warden DeRobertis testified (Tr. 155) that he had exchanged a few minutes' conversation with Shango during which the Warden stated his concern regarding manufacturing weapons and Shango had responded that:

  no matter what I [DeRobertis] do I would not be
  able to prove that he [Shango] was involved in
  the manufacturing of weapons . . . to know is one
  thing, to show is another.

Warden DeRobertis also testified (Tr. 159, 164-66) that in his opinion Shango was a threat to the safety of the institution, based on information that DeRobertis had received in the spring of the year about Shango's membership in an organization that DeRobertis characterized as mercenary and anarchist in nature, manufacturing homemade weapons for sale to street gang members for a price. Based on that opinion DeRobertis decided to recommend transferring Shango out of Stateville (Tr. 169). Transfer was approved by Assistant Director Lane (Tr. 232), and at 4:30 or 5 a. m. October 30, 1980 Shango was transferred to Menard (Tr. 135-36), where he was placed in segregation. No notice or hearing in accordance with AR 819 or 820 (copies of which are attached) was provided Shango either before or after that transfer (Tr. 138, 220).

While at Menard, where Shango has since been confined except for the brief period of the hearing in this action, the living conditions to which he was subjected were originally intolerable (Tr. 221-22). After Shango moved for a temporary restraining order in this action the conditions were improved to some extent (Tr. 222-23), but then Shango was transferred to another cell with uninhabitable conditions (Tr. 223). Because of the Court's decision as to the invalidity of the transfer to Menard, it is unnecessary for purposes of this motion to decide Shango's claim that the conditions of his confinement violate the Eighth Amendment's prohibition against cruel and unusual punishment — but the uncontradicted record on that score gives an appalling picture of those conditions.*fn5

In connection with Shango's transfer to Menard substantial amounts of his personal property were taken from him (Tr. 138-39, 209-10; Pl. Ex. 19) and have never been returned (Tr. 139-40, 210-18). That unreturned property consists substantially though not entirely of law books and papers, personal writings, political material, clothing and personal effects and other property that could not conceivably be characterized as posing a threat to institutional safety (Tr. 211-15). No explanation or justification for this conduct was given by defendants at the hearing, and the strong inference is that no attention was paid to Shango's rights in this respect (Tr. 216-18). It appears highly likely that the material may have been lost or destroyed.

Resident Legal Clerk and Jailhouse Lawyer Issues

In substantive terms Shango's principal complaint has been that defendants' actions against him have constituted harassment or retaliation because he has refused to reveal information confided to him as resident legal clerk or jailhouse lawyer for other Stateville residents. Were that the case he might claim the protection of such cases as Buise v. Hudkins, 584 F.2d 223, 227-31 (7th Cir. 1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466.

But this Court has found that the evidence is simply insufficient to establish that charge. In preliminary injunction terms Shango has not demonstrated a reasonable likelihood of success on the merits of that claim. Though Shango claims attempted intimidation of other jailhouse lawyers and resident legal clerks as well, no evidence supports that charge, and Shango's failure of proof on his own claim would in any case pose standing problems for his attempted assertion of the rights of other jailhouse lawyers and legal clerks. Contrast Buise, 584 F.2d at 227 and Johnson v. Avery, 393 U.S. 483, 487, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969) (granting relief to the jailhouse lawyer himself because his activities protected the rights of his fellow inmates to receive his services).

In summary Shango has not met the burden of demonstrating a right to relief on the issues dealing with the rights of legal clerks and jailhouse lawyers. It is therefore unnecessary to deal with the related questions Shango seeks to raise in this area, such as the availability of a "lawyer-client" type privilege for communications to and from a resident legal clerk or jailhouse lawyer.

Due Process Claims

1. Disciplinary Proceedings

Prison disciplinary proceedings that can result in assignment to segregation and the loss of statutory good-time credit implicate the deprivation of "liberty" in Fourteenth Amendment terms. Wolff v. McDonnell, 418 U.S. 539, 556-58, 94 S.Ct. 2963, 2974-2975,41 L.Ed.2d 935 (1974). Accordingly that Amendment's Due Process Clause guarantees a prisoner certain procedural protections. Those include advance written notice of the charges and a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action. Id. at 563-66, 94 S.Ct. at 2978-2979; Hayes v. Walker, 555 F.2d 625, 631-33 (7th Cir. 1977), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977); Chavis v. Rowe, 643 F.2d 1281, 1286-87 (7th Cir. 1981). They also require Brady v. Maryland type disclosure of exculpatory evidence to the inmate. Chavis, 643 F.2d at 1285-86. It is not enough for the panel simply to have the exculpatory material before it, nor is it enough for the panel to state simply that its decision was based on the investigative report or disciplinary report. Id. at 1285-87.

Here Shango was subjected to two such disciplinary proceedings, one placing him in segregation on investigative status and the other imposing substantial discipline. In each instance defendants purported to provide him with a hearing in accordance with AR 804, a regulation that — had it been followed in compliance with the cases cited in this section — would have comported with due process requirements. But because of the substantial deficiencies referred to in the "Facts" section of this opinion as to each "hearing," Shango's rights to due process were violated in each proceeding.

2. Transfer to Menard

This Court's determination that plaintiff has not established a reasonable probability of success on his harassment-retaliation claim also extends to his transfer to Menard. Shango therefore cannot derive comfort from the decisions like Buise, 584 F.2d at 227-32, that include interprison transfers among the prohibited punitive or retaliatory measures in response to the exercise of protected rights. Accordingly the case must be considered at this stage on the basis that Warden DeRobertis had a good faith belief that Shango posed a threat to the safety of Stateville.

Nonetheless due process is Shango's due in connection with the transfer to Menard if there exists a Fourteenth Amendment liberty interest that has "its roots in state law," under the principles of Meachum v. Fano, 427 U.S. 215, 226, 96 S.Ct. 2532, 2539, 49 L.Ed.2d 451 (1976). Prison regulations can thus create justifiable expectations on the part of inmates, establishing a liberty interest in remaining at one prison. True enough Chavis, 643 F.2d at 1290, stated that the Department's "regulations do not recognize any right on the part of the prisoner to serve in a particular institution." However, justifiable expectations and the requisite liberty interest can equally well be established by an inmate's being entitled to remain at one prison unless the State follows its own procedural requirements of a hearing.*fn6 Indeed, if the State's regulations do require a hearing as a condition of a transfer, its failure to provide one to Shango would also violate his rights under the Fourteenth Amendment's Equal Protection Clause. Stringer v. Rowe, 616 F.2d 993, 998 (7th Cir. 1980).

To comply with the Illinois Correctional Code (Ill.Rev.Stat. ch. 38, § 1003) the ARs include two sections, AR 819 and 820, dealing respectively with Institutional Transfers and Emergency Transfers. AR 819.II.A specifically requires that a pre-transfer hearing be provided an inmate before the Institutional Assignment Committee. AR 820.II.C recognizes the obvious fact that emergencies (affecting either the institution or the inmate) may preclude a pre-transfer hearing:

  When a transfer must be effected on an emergency
  basis in order to maintain the security of the
  institution or for the safety of the resident,
  the resident may be transferred to the receiving
  institution as soon as verbal or written
  permission is obtained.

But in that event AR 820.II.C mandates a prompt post-transfer hearing (emphasis added):

  If time permits, the resident should receive a
  hearing with the sending institution Assignment
  Committee before the transfer is effected.
  However, if this cannot be accomplished, the
  resident must receive a hearing by the
  Institutional Assignment Committee at the receiving
  institution within 10 days of his arrival at that

Indeed the hearing is viewed of such importance that (id.):

  If the resident is transferred to other than a
  state correctional center, the sending

  institution's Assignment Committee will travel to
  the place of custody to hold the hearing within
  the 10-day limit.

In response defendants can only point to a saving clause in Paragraph II.F of each of ARs 819 and 820:

  Nothing in this regulation should be construed to
  mean that a non-disciplinary transfer may not be
  made without a hearing when it is in the best
  interest of a resident or the Department of

They characterize Shango's transfer to Menard by a term unknown to their own regulations — an "administrative transfer" as to which no hearing whatever is required.

That reading is impermissible. It typifies the kind of unwillingness to turn square corners on the part of the State's correctional officials that has produced and continues to produce such cases as Carroll, Hayes, Buise, Stringer and most recently Chavis. If the saving clause were given the meaning defendants assert,*fn7 the exception would swallow up the rule. Residents would be entitled to hearings under AR 820 in the case of transfers "on an emergency basis in order to maintain the security of the institution"*fn8 but would not be entitled to hearings under AR 819 for non-emergency transfers for precisely the same security reasons.*fn9 That absurd construction would do violence to common sense and to the plain meaning of the ARs.

Accordingly the Court concludes that AR 819 applies to non-emergency interprison transfers such as Shango's in this case and requires a hearing before such a transfer may be made (if the transfer were somehow viewed as "emergency" a post-transfer hearing would have been required by AR 820, and that was not done either). That regulation brings into play the principles stated in the second paragraph of this section. Consequently the failure to have given Shango the hearing to which he was entitled violated his Fourteenth Amendment rights on two ground — due process and equal protection.

3. Seizure of Shango's Property

Both the preceding sections have dealt with the infringement of Shango's liberty without due process of law. Seizure of and failure to return his personal effects have unconstitutionally deprived him of property without due process. Carroll v. Sielaff, 514 F.2d 415, 417 (7th Cir. 1975). That is so whether or not the seizure was, as Shango charges but as this Court has not found, motivated by the desire to harass and frustrate his activities in assisting other inmates in their desired access to the Courts.

Defendants have filed extensive memoranda, both pre- and post-hearing, in this ease. Yet they have not even addressed themselves briefly to this issue, just as they failed to adduce any evidence on the subject at the hearing. It apparently does not strike defendants as serious to have taken perfectly innocuous personal property from an individual without a shadow of justification. This Court need scarcely state its views on such an attitude and such conduct.*fn10

Shango's Remedy

All of the foregoing discussion demonstrates that Shango has substantially more than the necessary "reasonable likelihood of success on the merits." Shango's continued confinement at Menard represents irreparable harm on the facts in the record, and his remedy at law is certainly inadequate. Where as here defendants' actions are unconstitutional, the injury to Shango must by definition outweigh any harm the undoing of those actions may inflict on defendants. Finally it is a contradiction in terms to say that vindicating due process rights will "disserve the public interest."

Accordingly Shango has met the requirements for preliminary injunctive relief. Defendants are ordered forthwith:

    (1) to return Shango to Stateville Correctional
  Center and place him in non-segregation status

    (2) to restore to Shango the forfeited one year
  of good time and to credit to Shango the good
  time that would have been earned during the year
  that he has been placed in "C" grade without due
  process of law; and

    (3) to return to Shango all his personal
  property taken from him at Menard.

Because Shango has already suffered the segregated status to which he was wrongfully committed by defendants, defendants will not be permitted to institute new proceedings based on the same claimed conduct that served as the alleged grounds for such discipline.
*fn11 Inasmuch as Shango has brought this action in forma pauperis, this Court issues the foregoing preliminary injunction without requiring that Shango give any security under Fed.R.Civ.P. 65(c).

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