United States District Court, Northern District of Illinois, E.D
January 14, 1982
SANFORD NORMAN HARRIS, PLAINTIFF,
NEAL D. MACDONALD, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Sanford Norman Harris ("Harris") is a prisoner at Stateville
Correctional Center ("Stateville") who sues a number of state
officials based on incidents surrounding Harris' February 1981
transfer from Sheridan Correctional Center ("Sheridan") to
Stateville. Harris' claims sound in both 42 U.S.C. § 1983
("Section 1983") and habeas corpus (28 U.S.C. § 2254) and
employ a three-step analysis:
(1) Harris was disciplined at Sheridan and then
transferred to Stateville in violation of numerous
regulations of the Illinois Department of
Corrections (the "Department").
(2) Those regulations create justifiable
expectations on the part of prison inmates,
establishing a "liberty" interest under the Due
Process Clause. See Meachum v. Fano, 427 U.S. 215,
226 [96 S.Ct. 2532, 2539, 49 L.Ed.2d 451] (1976);
Shango v. Jurich, 521 F. Supp. 1196, 1202 (N.D.Ill.
(3) Because the state-created procedures were
not followed in Harris' case, the treatment
afforded him by defendants amounts to a
deprivation of that liberty interest.
Defendants move to dismiss chiefly on the ground that Harris
has not stated a cause of action against them either
individually or collectively. For the reasons stated in this
memorandum opinion and order, defendants' motion is granted in
part and denied in part as to Count I of Harris' First Amended
Complaint (the "Complaint"), granted as to Count II and denied
as to Count III.
On October 17, 1980 defendant William Hiser ("Hiser") was the
head of Sheridan's Internal Affairs unit. Hiser summoned Harris
to Hiser's office for questioning by an Illinois Department of
Law Enforcement ("IDLE") investigator as to Harris' alleged
delivery of illegal drugs to another inmate. Harris denied the
allegations and also declined the IDLE agent's request to
submit to a polygraph test. Harris was not presented with a
Miranda-rights waiver form at the investigation, nor was he
otherwise informed of such rights.
On December 9, 1980 the prison officials served a
disciplinary "ticket" upon Harris charging him with violations
of several sections of Administrative Regulation ("A.R.") 804.
Those charges related to the same alleged delivery of drugs.
Next day the Sheridan Adjustment Committee (the "Committee")
called Harris to consider the charges against him. On his
motion it granted a 20-day continuance to December 30. On the
continued hearing date Harris attempted to make both oral and
written presentations of his defense to the Committee but was
prevented from doing so.*fn2 Committee member Partak told
Harris the inmate to whom Harris had assertedly delivered the
drugs had taken two polygraph tests. Two other inmates also
testified at the hearing, one of whom (inmate Wembley) executed
two affidavits that same day claiming he had offered testimony
that Harris was not guilty.
After the hearing the Committee found Harris guilty of four
sections of A.R. 804. Three of the violations involved drug
use, possession or delivery, while the fourth was for
"[d]isobeying . . . any prison rule." A.R. 804.II.A.1(1).
Harris was penalized with 30 days' segregation, the loss of 30
days' good time, demotion to "C" grade (from which grade Harris
could not earn good time) for 90 days and transfer from
Sheridan (less than a maximum security prison) to Stateville (a
maximum security prison).
Harris pursued internal grievances in accordance with A.R.
845, but no action was immediately forthcoming. Harris served
35 days in segregation rather than the scheduled 30 and was
released from segregation February 3, 1981. On February 8 the
prison officials transferred Harris to Stateville. Sheridan's
Inquiry Board rejected Harris' grievance February 27.
On May 13, though, the Department's Director informed Harris
that the December 9 disciplinary ticket was being "expunged"
from his record because prison records showed Harris had not
been given 24 hours to prepare his defense, as guaranteed by
A.R. 804.II.G.2. Harris' good time and "A" grade status were
therefore restored to him and he received state pay for time
spent in segregation. Harris however remains at Stateville.
Prison disciplinary proceedings involving 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,
2974-75, 41 L.Ed.2d 935 (1974). Accordingly a prisoner is
constitutionally guaranteed certain procedural protections,
including advance written notice of the charges and a written
statement of the factfinders as to the evidence relied upon and
the reasons for disciplinary action. Id. at 563-66, 94 S.Ct. at
2978-79; Chavis v. Rowe, 643 F.2d 1281, 1286-87 (7th Cir.
1981); Hayes v. Walker, 555 F.2d 625, 631-33 (7th Cir. 1977).
See also Chavis, 643 F.2d at 1285-86 (disclosure of exculpatory
evidence must be made to the inmate). Because the Committee's
proceedings indeed resulted in loss of statutory
good time and in segregation, those proceedings had to comport
with due process under Wolff.*fn3
What process was due Harris? Certainly compliance with the
A.R.s' procedures would have satisfied the Due Process Clause.
Meachum, 427 U.S. at 226-29, 96 S.Ct. at 2539-40. Count I
however asserts substantial noncompliance:
(1) In violation of A.R. 804.II.G.1, the
December 9 disciplinary ticket was issued more
than 72 hours after the chargeable offense was
(2) In violation of A.R. 17, no Miranda warnings
were given to Harris during his October 17
(3) In violation of A.R. 804.II.G.2, Harris was
not served with the disciplinary ticket more than
24 hours before the initial December 10 Committee
(4) In violation of A.R. 804.II.G.7, the
Committee refused Harris permission to present
evidence and call witnesses.
(5) Though no A.R. is identified in this
respect, the Committee ignored the exculpatory
(6) In violation of A.R. 17, the Committee
relied on the results of polygraph tests
administered by IDLE investigators to two
(7) Again without reference to an A.R., Harris
was retained in segregation past his outdate.
(8) In violation of A.R. 819, Harris was
transferred to Stateville without a pre-transfer
Not all those deficiencies create valid federal claims.*fn4
Surely the Committee was free to credit or not to credit
Wembley's testimony. There can be no "justifiable expectation"
on Harris' part as to the weight to be given such testimony,
and thus no deprivation of a liberty interest.*fn5
In a like vein, not every violation of administrative
procedure in connection with major discipline automatically
equates with a due process violation. It does not matter
whether that conclusion follows from the premise that minor
procedural rules do not confer a liberty interest on the
prisoner, or the premise that the process taken as a whole
— albeit technically faulty — comports with due process. See
United States ex rel. Houston v. Warden, Stateville
Correctional Center, 635 F.2d 656, 658-59 (7th Cir. 1980) (the
Under either locution, it is plain that not all of the
regulation-violative claims reach constitutional stature.
Id. at 659.
For precisely the reason stated in Houston, Harris' first three
contentions fail here:
(1) Harris claims no harm or prejudice from the
over 72-hour delay from discovery of the offense
to issuance of the December 9 ticket.
(2) No Harris statement was used against him, so
that the absence of Miranda warnings was of no
(3) Absence of a 24-hour notice of hearing was
rendered harmless by the 20-day continuance
granted December 10.
Finally the Committee's use of polygraph evidence does not, as
Harris claims, impinge upon A.R. 17. That A.R. is simply silent
on that score.
Three Count I allegations survive (it must be remembered that
a motion to dismiss is not the occasion, as defendants have
urged, to decide whether the facts conform to the allegations):
(1) A.R. 804.II.G.7 and 9 are breached by the
refusal to permit a defense (the Complaint says,
"Plaintiff attempted to make oral and written
presentations in his defense, but was cut off by
defendant PARTAK") — in derogation of a truly
fundamental procedural right.*fn6
(2) Segregation may not be imposed as a
disciplinary measure without a hearing before the
Committee (see A.R.804.II.D.1). Wolff v. McDonnell
so holds. As to the excessive segregation time —
even a "mere" five days — no hearing was accorded
(3) A.R. 819 promises a wholly separate hearing
as to transfers. None took place. Due process is
thus involved here as well. Shango, 521 F. Supp. at
As severely limited by the foregoing discussion (and subject to
the possible inclusion of the Wembley-related claim), Count I
withstands defendants' motion to dismiss.*fn7
Count II states as its gravamen defendants' violations of the
Department's A.R.s. To the extent constitutional violations are
involved, it adds nothing to Count I. To the extent they are
not, Harris has adduced no authority supporting such a cause of
action. Count II is therefore dismissed.
In his final claim Harris seeks retransfer from Stateville to
Sheridan under federal habeas corpus. Defendants respond by
invoking Holland v. Ciccone, 386 F.2d 825, 827 (8th Cir. 1967).
But that case is clearly inapposite, for it involved a denial
of habeas where no federal claim was stated, id. at 826. Here
the due process right to compliance with applicable state
administrative regulations, not present in Holland, insures the
prima facie vitality of federal issues.
Count III poses a different issue: Should federal habeas be
available where a prisoner claims, not that any state detention
is contrary to the Constitution, but only that he is being held
in the wrong prison? So characterized, the claim relates to the
conditions of the prisoner's confinement rather than his
custody under state law.
On that score the Advisory Committee on the Rules Governing
Cases Under 28 U.S.C. § 2254 states (Note to Rule 1):
It is . . . the view of the Advisory Committee
that claims of improper conditions of custody or
confinement (not related to the propriety of the
custody itself), can better be handled by other
means such as 42 U.S.C. § 1983 and other related
It goes on to point out that in Wilwording v. Swenson,
404 U.S. 249
, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), the Court treated the
habeas petition by a state prisoner challenging the conditions
of confinement as a claim for relief under Section 1983. But
Wilwording said (id. at 251, 92 S.Ct. at 409) that the claim
was "cognizable in federal habeas corpus" as well. Moreover,
Wilwording cited to Johnson v. Avery, 393 U.S. 483
, 484, 89
S.Ct. 747, 748, 21 L.Ed.2d 718 (1969), where the Court had
ruled favorably on a prisoner's habeas petition based on his
disciplinary confinement for having assisted fellow prisoners
in preparing legal papers.
It might be "better," as the Advisory Committee puts it, to
utilize Section 1983 complaints and habeas petitions in
discrete — and complementary — realms. But Wilwording and
Johnson are still good law. This Court is constrained to hold
that a habeas petition challenging conditions of confinement
may still be brought, even though Section 1983 will also
invariably be available in such cases. Harris' habeas claim
grounded in his transfer to Stateville is valid, and
defendants' motion to dismiss Count III must be denied.
Defendants' motion to dismiss is granted in part and denied
in part as to Complaint Count I, granted as to Count II and
denied as to Count III. Hiser is dismissed from the action in
its entirety. All other defendants are ordered to answer on or
before January 27, 1982 and a status report is set for March 3,
1982 at 9:15 a.m.