United States District Court, Northern District of Illinois, E.D
December 29, 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"), a prisoner at Stateville
("Stateville"), brings this 42 U.S.C. § 1983 ("Section 1983")
and habeas corpus (28 U.S.C. § 2254) action against Stateville
Warden Richard DeRobertis ("DeRobertis"), Sheridan Correctional
Center ("Sheridan") Warden Neal MacDonald ("MacDonald"),*fn1
Illinois Department of Corrections ("IDOC") Director Michael
Lane ("Lane") and three other state officials who were members
of the Sheridan Adjustment Committee (the "Committee") that
presided over Harris' disciplinary hearing. Harris asserts
defendants committed both substantive and procedural
constitutional infractions in first disciplining him and then
transferring him from medium security prison Sheridan to
maximum security facility Stateville.
Three motions are now pending:
1. defendants' motion to dismiss Harris' Third
(and current) Amended Complaint (the
2 and 3. cross-motions for summary judgment
brought in connection with the Second Amended
For the reasons stated in this memorandum opinion and order,
both defendants' motions are granted in part and Harris' is
denied in its entirety.
On October 17, 1980 William Hiser, the head of Sheridan's
Internal Affairs unit, summoned Harris into his 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
Convinced of Harris' complicity in the drug transaction, on
December 9, 1980 prison officials served a disciplinary
"ticket" on Harris charging him with violations of several
sections of Administrative Regulation ("A.R.") 804. Next day
the Committee*fn3 called Harris in to consider the charges.
On his motion it granted a 20-day continuance to December 30.
However, on the continued hearing date the Committee refused
to allow Harris to make either an oral or written presentation
of his defense. After Harris left the hearing two other
inmates testified. One of the two, inmate Wembley, executed
two affidavits that same day claiming he had testified as to
Harris' innocence. At no point did the Committee ever disclose
to Harris the existence of such exculpatory evidence.
After the hearing the Committee found Harris guilty of
violating 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 to Stateville.
Though the pleadings and supporting affidavits are somewhat
unclear, it appears Harris received "segregation status"
immediately after the Committee's December 30 decision.
Because Sheridan lacks separate segregation facilities,
segregation is typically accomplished by locking the prisoner
in his own cell and thus depriving him of general population
privileges (principally his access to various institutional
facilities). Anderson Aff. ¶ 3. Apparently Harris was so kept
in his own cell until January 12,
1981, when Sheridan officials moved him to another cell (C.L.
On January 29, 1981 — his scheduled "out-date" — Harris was
taken off segregation status and his cell was unlocked.*fn5
Though he remained in the same cell for another five days, his
living conditions did not materially diverge from those of his
fellow prisoners in the general population. Each cell at
Sheridan (including C.L. # 3) at that time was "substantially
the same in terms of size, condition, and fixtures" and had
"substantially the same access to institutional facilities
available to prisoners in the general population." Anderson
Aff. ¶¶ 4, 5.
On February 3 Sheridan authorities returned Harris to his
old cell. His stay was short-lived however, for he was
transferred to Stateville on February 8. Though the parties
dispute this issue, for present purposes it will be assumed
Harris was not accorded any pre-transfer hearing.
On February 27 Sheridan's Inquiry Board rejected Harris'
grievance. But on May 13 Lane informed Harris:
1. His December 9 disciplinary ticket would be
"expunged" from his record because he had not
been given 24 hours to prepare his defense, as
required by A.R. 804.II.G.2.
2. His good time and "A" grade status would be
restored and state pay would be given him for 30
days' time spent in segregation.
Harris was neither returned to Sheridan nor compensated for
the loss of his prison industry job.
Opinion I addressed the legal sufficiency of Harris' First
Amended Complaint. Only three allegations in Harris' Section
1983 claim survived constitutional scrutiny:
1. Defendants' refusal to permit Harris to
present his defense — a violation of A.R.
804.II.G.7 and 9 — deprived Harris of a
fundamental procedural right.
2. Defendants' failure to accord Harris a
hearing before subjecting him to an additional
five days' segregation*fn6 contravened the Due
Process Clause under Wolff v. McDonnell,
418 U.S. 539, 556-58, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935
3. Defendants' failure to comply with A.R.
819's requirement of a pre-transfer hearing
implicated the Due Process Clause.
Although Opinion I found no liberty deprivation flowed from
the Committee's refusal to credit Wembley's testimony, it said
(532 F. Supp. at 39 n. 5):
This holding would not apply if Harris' claim
were that he had not been apprised of Wembley's
favorable testimony (the Complaint is really not
clear on that subject). In that event Chavis, 643
F.2d  at 1285-86, holds a due process
violation under Brady v. Maryland principles.
Finally, constrained by the teachings of Wilwording v. Swenson,
404 U.S. 249
, 251, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971) and
Johnson v. Avery, 393 U.S. 483
, 484, 89 S.Ct. 747, 748, 21
L.Ed.2d 718 (1969), Opinion I also upheld Harris' habeas corpus
count even though that claim challenged the conditions of his
confinement rather than his custody under state law.
After both sides had filed summary judgment motions as to
Harris' Second Amended Complaint, our Court of Appeals in
Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982) reversed this
Court's decision at 521 F. Supp. 1196 (N.D.Ill. 1981) — a
decision that had heavily influenced Opinion I's disposition of
the pre-transfer issues. That appellate opinion in turn spawned
the present Complaint.
Count I asserts under Section 1983:
1. Various of the defendants*fn7 impinged upon
Harris' constitutionally protected "liberty"
without due process by:
(a) precluding Harris from presenting his
defense at the Committee hearing;
(b) refusing to divulge to Harris before the
Committee hearing the exculpatory testimony of
(c) retaining Harris in segregation for an
excessive period (the alleged five days); and
(d) transferring him to Stateville without
the hearing prescribed by A.R. 819.
2. Defendants (except for Lane) violated
Harris' due process rights by arbitrarily and
capriciously refusing to return him to Sheridan
once the basis for his initial transfer was
3. Lane deprived Harris of equal protection by
committing the liberty intrusions just enumerated
in paragraph 1, "intentional[ly], in bad faith
and in reckless disregard of plaintiff's
constitutionally and administratively secured
rights and privileges. . . ."
Count I seeks damages and injunctive relief requiring Harris'
retransfer to Sheridan and his reinstatement to his former
prison industry job.*fn8
Predicated on the same asserted due
process and equal protection violations, Count II seeks habeas
relief tantamount to the injunctive relief sought in Count I.
This opinion turns at last to the current cross-motions for
summary judgment and the motion to dismiss. Though the former
were filed during the pendency of the Second Amended
Complaint, they (as well as the dismissal motion) will be
treated as though directed to the current Complaint.
Defendants do not attack the sufficiency of the two aspects
of Harris' liberty deprivation claim that charge the
1. alleged refusal to allow Harris to present
his defense and
2. alleged failure to reveal inmate Wembley's
Those Section 1983 contentions consequently remain intact.
But the other two components of Harris' liberty claim cannot
survive. As Harris himself concedes, Shango (681 F.2d at
1097-1103) has taught the denial of a pre-transfer hearing —
even in violation of A.R. 819 — does not implicate Harris'
interest.*fn9 As for the charge of excessive segregation,
defendants are entitled to summary judgment. Harris simply did
not suffer the deprivations represented by segregation status
for more than 30 days. On the uncontroverted affidavits his
general population privileges were suspended for only 30 days.
This is so because Sheridan has no separate category of
segregation cells — all cells have comparable physical
dimensions and amenities. Thus "segregation" involves barring
access to privileges, and Harris' mere retention in the
unlocked C.L. # 3 during the five day period after January 29
cannot be branded as segregation.
As for Harris' claim that Lane arbitrarily and capriciously
refused to return him to Sheridan, it too must be rejected in
light of Shango. Because Illinois law does not place
substantive limitations on their authority to transfer
prisoners, prison officials are free to act as they will
(indeed, they need not even purport to apply the discretion
their own procedural regulations mandate that they exercise)
without implicating the Due Process Clause. 681 F.2d at
Finally Harris has failed to substantiate any equal
protection basis for his Section 1983 claim. As already noted,
he attempts to convert asserted liberty deprivations into
equal protection violations by imputing bad faith and
willfulness to defendants. But that conclusory allegation as
to defendants' motivations does not establish the gravamen of
an equal protection violation: intentional or purposeful
discrimination. Shango, 681 F.2d at 1104. No discriminatory
animus on defendants' part (as the basis for Harris' disparate
treatment) has been identified. At most, the charge of bad
faith illustrates the arbitrariness of defendants' wrongdoing
— but not invidious discrimination. Id.
Harris' habeas corpus claim must be dismissed because he has
not exhausted available state remedies, as required by
28 U.S.C. § 2254(b) and (c). As Judge Will recently recognized in
United States ex rel. Isaac v. Franzen, 531 F. Supp. 1086,
1091-94 (N.D.Ill. 1982), Illinois courts are now willing to
issue writs of mandamus to compel state correctional officials
to redress infringements of prisoners' constitutional rights.
For example, in Farnham v. Pinckney, No. 77-MR-19 (11th
Judicial Cir., Livingston Cty., May 15, 1978), an Illinois
Circuit Court (1) condemned as a due process violation the
Committee's refusal to allow the petitioner to call witnesses
at his disciplinary hearing and (2) issued a writ of mandamus
rescinding all of the sanctions that ensued from the
Committee's determination. Moreover, Tedder v. Fairman, 93 Ill. App.3d 948,
958, 49 Ill.Dec. 447, 455-456, 418 N.E.2d 91, 98-99
(4th Dist. 1981) acknowledged the possibility of compelling
inter-institutional transfers (or other remedial action) under
mandamus if the inmate's confinement to a particular prison
violated the Eighth Amendment's stricture against cruel and
There is surely enough here to demonstrate the likelihood
Harris could press his constitutional claims in a state
mandamus action and, if successful, obtain relief comparable
to that afforded in a federal habeas proceeding. Harris is not
persuasive in arguing that none of the handful of Illinois
mandamus cases involved both the same constitutional claims and
the same proposed relief as this action. On the contrary, the
surprisingly close parallels between Farnham and Tedder and
various aspects (both substantive and remedial) of this case
reinforce the opposite conclusion.
Defendants' motion for summary judgment is granted as to
Harris' excessive segregation claim (Complaint Count I ¶
1-3(a)). Their motion to dismiss is granted as to Count II and
all remaining claims in Count I except for the two liberty
deprivation claims set forth in Complaint Count I ¶ 1-2.
Harris' motion for summary judgment is denied.