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United States District Court, Northern District of Illinois, Eastern Division

July 1, 1983


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


William Jackson ("Jackson") sues the Illinois Department of Corrections ("Department") and six of its officials*fn1 under 42 U.S.C. § 1983 ("Section 1983"), alleging he was deprived of due process of law*fn2 when, without a hearing before or after the decision, he was barred from receiving visits from his friend Sharon Sue Spencer ("Spencer") at Stateville.*fn3 Defendants have moved to dismiss for failure to state a claim upon which relief may be granted. For the reasons stated in this memorandum opinion and order defendants' motion is denied.


As a Stateville inmate, Jackson had been receiving visits from Spencer for about a year. About January 24, 1982*fn5 Mathis told Jackson that for a $20 payment Mathis would arrange that a visit take place outside the designated visiting area. On January 24 Spencer visited Jackson, and Mathis escorted her to a room outside the designated area. Correctional officer Lt. Rodriguez observed Mathis doing so and later reported the incident.

On January 26 O'Leary issued a Stop Order (the "Order," Complaint Ex. A) barring Spencer from visiting Jackson. In addition to identifying Spencer and Jackson the Order said:

Rationale for Stop: Inappropriate Conduct

   This Stop Order will remain in effect until further

On January 29 Jackson petitioned (Complaint Ex. B) for a grievance hearing before Stateville's Board to challenge the Order. Stateville's Board has taken no action on Jackson's petition.

Jackson then sought review of his grievance before Department's Administrative Review Board ("Department's Board"). On March 8 Department Director Michael Lane wrote Jackson (Complaint Ex. C), informing him Department's Board would not consider his grievance petition until the matter had been processed by Stateville's Board.

Jackson then talked to Manar, who advised Jackson to write O'Leary and tell him Spencer's going to the private room was occasioned by a sudden illness. Jackson also spoke to DeRobertis about Stateville Board's failure to hear his grievance. DeRobertis told Jackson he was awaiting Jackson's lie detector test. Jackson took that test March 30 but was repeatedly told by Allen the results were unavailable. Jackson received the results in June and tendered them to Allen, who promised Jackson a hearing. None has been held.

Jackson asserts three Fourteenth Amendment due process violations:

     1. O'Leary's issuance of the Order without a

     2. O'Leary's failure to advise Jackson of the basis
   for the Order; and

     3. defendants*fn6 failure to investigate and
   conduct a hearing on Jackson's resulting grievance.

Defendants argue (Motion ¶ 2) (1) Jackson has no property or liberty interest in his visitation privileges and (2) suspension of those privileges does not require observance of any "special" procedural guaranties.

Liberty Interests and Due Process

Jackson's Section 1983 action implicates the familiar teaching reiterated by our Court of Appeals in Shango v. Jurich, 681 F.2d 1091, 1097 (7th Cir. 1982):

   The Fourteenth Amendment prohibits a state from
   depriving, a person of life, liberty, or property
   without due process of law. In order to ascertain
   Whether state action affecting an individual is
   violative of this prohibition, two inquiries are
   made: first, a life, liberty, or property interest
   within the meaning of the clause must be identified;
   and, second, the degree of process due to the
   individual before he can be deprived of that interest
   must be ascertained.

But the second inquiry is not relevant at this stage of this action, for Jackson alleges he was afforded no process at all and that is conceded at least for purposes of defendants' motion.*fn7 Thus if Jackson's allegations (taken as true) show he has an implicated liberty interest*fn8 the Complaint must stand, and Jackson become9s entitled to the opportunity to prove he is entitled to relief because defendants deprived him of that interest without due process of law.

Defendants' motion may be focused more narrowly in another regard too. As the Supreme Court recently repeated in Hewitt v. Helms, — U.S. —, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983):

   Liberty interests protected by the Fourteenth
   Amendment may arise from two sources — the Due
   Process Clause itself and the laws of the States.

Brief analysis confirms Jackson invokes the latter, not the forpier. He does not assert the Due Process Clause confers any substantive visitation rights upon him.*fn9 Indeed his general "visitation rights" are not really in issue — the Order bars only Spencer, and Jackson's, Complaint attacks only the Order and the alleged procedural defaults surrounding it. Without minimizing Jackson's friendship with Spencer, it can hardly be said his attachment to her rises to the level of a basic constitutional liberty interest or the Order inflicted a "grievous loss" beyond the ramifications of his incarceration. See id. 103 S.Ct. at 869-70.

Jackson relies rather (Ans. Mem. 1-2) on a liberty interest he says was created by Illinois law. Jackson contends he was deprived of that interest by defendants' disciplinary action against him.*fn10 That brings a rather complex area into play.

[1] Just two months ago, in Olim v. Wakinekona, — U.S. —, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) the Supreme Court surveyed its prior decisions on state-created liberty interests and concluded (id. 103 S.Ct. at 1747, citations omitted):

   These cases demonstrate that a State creates a
   protected liberty interest by placing substantive
   limitations on official discretion. An inmate must
   show "that particularized standards or criteria guide
   the State's decisionmakers" . . . If the
   decisionmaker is not "required to base its decisions
   on objective and defined criteria," but instead "can
   deny the requested relief for any constitutionally
   permissible reason or for no reason at all," . . .
   the State has not created a constitutionally
   protected liberty interest.

In Olim itself the Court found Hawaii prison regulations on transfer of prisoners placed no substantive limitations on official discretion and thus created no liberty interest. Id. 103 S.Ct. at 1747-48.*fn11

But Olim, id. 103 S.Ct. at 1748 n. 10, distinguished Hewitt, where the Court found Pennsylvania had created a protected liberty interest in its laws and regulations on placing prisoners in administrative segregation (id. 103 S.Ct. at 871, citation omitted):

   Nonetheless, in this case the Commonwealth has gone
   beyond simple procedural guidelines. It has used
   language of an unmistakably mandatory character,
   requiring that certain procedures "shall," "will," or
   "must" be employed . . . and that administrative
   segregation will not occur absent specified
   substantive predicates — viz., "the need for
   control," or "the threat of a serious disturbance."
   Petitioner argues, with considerable force, that
   these terms must be read in light of the fact that
   the decision whether to confine an inmate to
   administrative segregation is largely predictive, and
   therefore that it is not likely that the State meant
   to create binding requirements. But on balance we are
   persuaded that the repeated use of explicitly
   mandatory language in connection with requiring
   specific substantive predicates demands a conclusion
   that the State has created a protected liberty

Thus Olim and Hewitt combine to emphasize the necessity for close scrutiny of the state laws or regulations asserted as creating a liberty interest.

Olim and Hewitt are paralleled by the holdings of our Court of Appeals in Shango and Johnson v. Brelje, 701 F.2d 1201 (7th Cir. 1983). In Shango (681 F.2d at 1100-02) the Court found Illinois prisoner regulations governing inmate transfers did not create a liberty interest because those regulations did not limit an official decision to transfer to any particular reason, thus leaving official discretion unfettered. But in Johnson (701 F.2d at 1205) the same Court found an Illinois statute created a liberty interest by specifying a recipient of mental health services — including a criminal defendant found unfit to stand trial and placed in the custody of mental health officials — "shall be provided with adequate and humane care and services in the least restrictive environment" (emphasis in original, quoting Ill. Rev.Stat. ch. 91 1/2, § 2-102). As in Hewitt, the Johnson statutory language was mandatory and was tied to substantive requirements.

So the question is whether Jackson's situation better fits the Hewitt-Johnson mold or that of Olim and Shango. Jackson's counsel invoke principally (Ans. Mem. 1-2) Ill.Rev.Stat. ch. 38, § 1003-8-8(a) ("Section 8(a)"):

   The Director shall establish procedures to review the
   grievances of committed persons. The Director may
   establish one or more administrative review boards
   within the Department to review grievances. A
   committed person's right to file grievances shall not
   be restricted. Such procedure shall provide for the
   review of grievances by a person or persons other
   than the person or persons directly responsible for
   the conditions or actions against which the grievance
   is made.

First, that section focuses on Jackson's claims arising after the Order was issued and thus seems irrelevant to his claim as to initial issuance of the Order without a hearing. But more importantly Section 8(a), despite its mandatory language, sets out only procedural requirements with nothing substantive attached save possibly the right to file a grievance, which is not in issue here. Although as an original matter it might seem logical a state-created procedural scheme can (or absent evidence of a contrary intention does) create an entitlement to rely on that scheme, both the Supreme Court and our Court of Appeals have decisively rejected the notion state procedural guaranties themselves create substantive federal rights — or liberty interests — protected by the Fourteenth Amendment and Section 1983. Olim, 103 S.Ct. at 1748; Hewitt, Id. 108 S.Ct. at 871; Shango, 681 F.2d at 1100-01.*fn12

But Jackson has zeroed in on the wrong part of Illinois' Unified Code of Corrections. Section 8(a) deals With "Grievances," while the preceding section (Ill.Rev.Stat. ch. 38, § 1003-8-7, "Section 7") deals with "Disciplinary Procedures.' And part of that section, Section 7(b)(2), provides:

   Disciplinary restrictions on visitations, work,
   education or program assignments, and the use of the
   prison's library shall be related as closely as
   practicable to abuse of such privileges or
   facilities. This paragraph shall not apply to
   segregation or isolation of persons for purposes of
   institutional control.

By its terms Section 7(b)(2) leaves official discretion unfettered as to disciplinary restrictions on visitation (and other privileges) when related to "segregation or isolation of persons for purposes of institutional control." But Section 7(b)(2) mandates other disciplinary restrictions on visitation "shall be related as closely as practicable to abuse of such privileges or facilities." Both by its literal language and by the necessary implication from the excepted "institutional control" situation, the statute clearly confines official discretion by requiring the punishment reasonably to fit the crime. Section 7(b)(2) plainly means an official can act improperly (for example) by restricting an inmate's visitation privileges more severely than the facts dictate.

[2] Therefore Section 7(b)(2) confers on Jackson a state-created liberty interest (akin to that given constitutional protection in Hewitt) in preserving his visiting privileges against imposition of excessive restraint. At least at this threshold level of the case, he must be viewed as possibly able to prove that interest was deprived without due process when (1) Spencer was barred by the Order without a hearing*fn14 and (2) defendants failed to hear his grievance seeking review of the Order, or both. Jackson need show no more to survive defendants' motion to dismiss. See Hewitt, 103 S.Ct. at 870 & n. 5.


Defendants' motion to dismiss is denied. Defendants are ordered to answer the Complaint on or before July 11, 1983.

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