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December 21, 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 when he was barred from receiving visits from his friend Sharon Sue Spencer ("Spencer") at Stateville. This Court's July 1, 1983 memorandum opinion and order (the "Opinion," 567 F. Supp. 1021, 1025) denied defendants' Fed.R.Civ.P. ("Rule") 12(b)(6) motion to dismiss because Ill.Rev.Stat. ch. 38, § 1003-8-7(b)(2) "confers on Jackson a state-created liberty interest (akin to that given constitutional protection in Hewitt [v. Helms, ___ U.S. ___, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)] in preserving his visiting privileges against imposition of excessive restraint."

Defendants now move under Rule 56 for summary judgment, contending alternatively (1) Jackson received all the process that was constitutionally required or (2) even were the process accorded him constitutionally inadequate, (a) the individual defendants are immune from Section 1983 liability under the qualified immunity doctrine and (b) Department is not a "person" subject to suit under Section 1983. For the first of those reasons, defendants' motion is granted.*fn2


Jackson alleges*fn3 Mathis told Jackson on January 24, 1982*fn4 that he would arrange a visit with Spencer outside the designated visiting area in return for a $20 payment. When Spencer arrived at Stateville later that day to visit Jackson, Mathis escorted her to a room outside the designated area. Lt. Rodriguez observed Mathis doing so and filed a report of the incident.

On January 26 O'Leary issued a Stop Order (the "Order") prohibiting Spencer from visiting Jackson. Both Jackson and Spencer were notified of the Order (Jackson by delivery of a copy and Spencer by transmittal of a letter stating its terms). In addition to identifying both Jackson and Spencer, the Order provided:

  Rationale for Stop: Inappropriate Conduct. This Stop
  Order will remain in effect until further notice.

On January 29 Jackson filed a grievance with the Stateville Institutional Inquiry Board ("Stateville's Board") challenging the Order. On February 4 Jackson asked for a polygraph exam in a letter to O'Leary, a request Jackson renewed on February 17 when interviewed about the incident by Price for Internal Investigations (March 4 Internal Investigations Preliminary Report).

Jackson then attempted to assert his grievance before Department's Administrative Review Board ("Department's Board"). On March 8 Department Director Michael Lane wrote Jackson Department's Board would not consider his grievance until the matter had been processed by Stateville's Board.*fn5 On March 11 Jackson spoke with DeRobertis about Stateville's Board's failure to conduct a hearing on the grievance. DeRobertis responded they were going to await polygraph results.

On March 19 T. McWilliams from Internal Investigations asked O'Leary to order a polygraph exam. On March 23 Allen told Jackson his grievance before Stateville's Board could not be processed until Internal Investigations finished its investigation. On March 25 DeRobertis asked for the administration of a polygraph exam, and that test was finally conducted March 30. On April 29*fn6 the polygraph results were transmitted to DeRobertis, and on May 5 O'Leary rescinded the Order. Internal Investigations submitted its final report on June 11, a week after the Employee Review Board dismissed the improper conduct charges against Mathis.

Procedural Due Process

Jackson argues the process was defective because he was not given a hearing before the Order issued, the Order did not state an adequate rationale, and the investigation was not conducted within a reasonable time. All those claims, viewed against a backdrop of undisputed facts,*fn7 pose the question of what process — what procedure — was due Jackson in depriving him of the liberty or property interest represented by visiting privileges. On that score Shango v. Jurich, 681 F.2d 1091, 1097-98 (7th Cir. 1982) teaches:

  Although the existence of a liberty or property
  interest may be ascertained by reference to state
  law, once such an interest is identified, the task of
  defining the procedural protections which attach to
  that interest is wholly a matter of federal
  constitutional law and is accomplished through
  application of the balancing analysis of Mathews v.
  Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18
  (1976). See, e.g., United States Labor Party v.
  Oremus, 619 F.2d 683, 689 (7th Cir. 1980). See
  generally Arnett v. Kennedy, 416 U.S. 134, 164, 94
  S.Ct. 1633, 1649, 40 L.Ed.2d 15 (1974) (Powell, J.,
  concurring) [416 U.S. at] 177, 94 S.Ct. at 1655
  (White, J., concurring and dissenting in part) [416
  U.S. at] 206, 94 S.Ct. at 1669 (Marshall, J.,
  dissenting). To be sure, state procedural protections
  are not ignored. Rather, once it is determined what
  process is due to the individual before he can be
  deprived of the specific liberty or property interest
  by the state, state procedures are scrutinized to see
  if they comport with the federal procedural due
  process requirements. However, state procedural
  protections cannot define what process is due. The
  Fourteenth Amendment's limitation on state action
  would be illusory indeed if state practices were
  synonymous with due process.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976) requires this Court to consider three factors to ...

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