United States District Court, Northern District of Illinois, E.D
December 21, 1983
WILLIAM JACKSON, PLAINTIFF,
ILLINOIS DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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
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
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
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)
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 determine what process is due Jackson:
1. Jackson's private interest;
2. the risk of erroneous deprivation of Jackson's
interest through the procedure used and the probable
value (if any) of additional or different procedures
to reduce such risk; and
3. the government's interest, which includes the
fiscal and administrative burdens different or
additional procedures would pose.
Accord, Brown v. Brienen, 722 F.2d 360
at 364-67 (7th Cir.
1983); id. at 367-68 (Flaum, J., concurring).
As Judge Posner pointed out just two weeks ago in Brown (at
365), the first factor in the Mathews analysis looks back to
the nature of the liberty or property interest of which a
plaintiff has been deprived. Jackson's interest in his visiting
privileges, though not de minimis, surely does not reach the
level of importance of the permanent loss of good time considered
in Wolff v. McDonnell, 418 U.S. 539, 560-61, 571-72 n. 19, 94
S.Ct. 2963, 2976-77, 2982 n. 19, 41 L.Ed.2d 935 (1974).*fn8
Moreover the Court in Hewitt, 103 S.Ct. at 872 responded to the
Mathews formulation by giving appropriate deference to the
prison administrators' interests in order, discipline and
Plainly, these governmental interests are of great
importance. The safety of the institution's guards
and inmates is perhaps the most fundamental
responsibility of the prison administration.
Thus the Mathews balancing process calls for a determination
of what procedures should be required to reduce the risk of
erroneous deprivation of visiting privileges without unduly
burdening the state's interest in security, order and discipline.
Certainly that balancing entitles Jackson to (1) notice of why
his visiting privileges with Spencer were suspended, (2) an
investigation of the reasons for suspension (including the
opportunity for Jackson to submit any statement or relevant
evidence he wishes to) and (3) a final decision by the prison
officials, made and communicated within a reasonable time after
the suspension. But on perhaps the most critical issue here, this
Court determines due process does not mandate a
pre-suspension hearing for Jackson.
On that last score, it is a familiar truism that
pre-deprivation hearings are not required if post-deprivation
procedures satisfy due process concerns. Thus courts have
consistently held pre-deprivation hearings are not required for
the temporary suspension (pending final determination) of private
interests substantially weightier than Jackson's here. See cases
discussed in Brown, at 365-66. In view of (1) the state's
strong interest in prison security, (2) the lower place in the
lists occupied by Jackson's interest in Spencer's visits, (3) the
facial reasonableness of the state's concern about the
circumstances of Spencer's visit that triggered the Order and (4)
the fact the Order was not a final deprivation, a pre-deprivation
hearing was not integral to due process.
That leaves for examination Jackson's two other contentions:
1. adequacy of the notice and
2. whether the prison officials took final action
within a reasonable time.
Jackson fails on those matters as well.
Notice is required for at least two reasons: to identify the
charges and to allow the charged party to prepare a defense.
Wolff, 418 U.S. at 564, 94 S.Ct. at 2978. Jackson was present
at the time of the incident and was given notice of the Order
just two days after Spencer's visit. As already stated, the Order
identified both Jackson and Spencer and stated "Inappropriate
conduct" as its rationale. Of course such a cryptic label is not
always going to satisfy the constitutional minimum, but under the
circumstances of this case the notice provided enough information
to meet the constitutional standard.
As for the "reasonable time" factor, Jackson points to the
lapse of some three months between the Order's issuance and its
rescission. Once more the process is one of balancing Jackson's
interests against those of the prison (including the
administrative burden a shorter time period would pose). And once
more the prison's interests include the critical element of
security. Thus three related areas converged to affect the time
required: investigation of employee misconduct, investigation of
visitor and inmate misconduct and investigation of an inmate
How did those multiple needs impact here? On the evidence
presented, Jackson was able to tell his account of the incident
to the investigator within one month. However the entire ongoing
investigation, with its periodic reports and various actions,
extended over the full three-month period. Prison administrators
were confronted not only with Jackson's accusations of Mathis'
impropriety but with Spencer's doubtful account of the
occurrence. Their investigation necessarily had to inquire into
the roles of all three participants: Mathis, Spencer and Jackson.
Defendants can scarcely be faulted for suspending Spencer's
visiting privileges in the interim. True enough, the whole
process might have been conducted with more speed, but under all
the circumstances this Court cannot characterize the time
differential as rising to constitutional dimensions in due
No genuine issue of material fact exists. There has been no
infringement of Jackson's due process rights. Defendants are
entitled to a judgment as a matter of law. This action is
dismissed with prejudice.