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SHANGO v. JURICH

July 13, 1981

SHANGO (CLEVE HEIDELBERG, JR.), ET AL., PLAINTIFFS,
v.
MARY JURICH, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

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
  defendants.
    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.

Facts

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 ...

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