upon and the reasons for the disciplinary action taken" in
order to satisfy the minimum requirements of procedural due
process. Wolff, 418 U.S. at 563, 94 S.Ct. at 2978. The reasons
for these requirements are to protect an inmate from collateral
consequences based on a misunderstanding of the original
proceeding, to insure that administrators, faced with possible
scrutiny by the public, state officials, and the court, will
act fairly, and to prevent disadvantage to an inmate in
propounding his own cause or defending himself from others. Id.
at 565, 94 S.Ct. at 2979.
The contents of the summary are not in dispute. It merely
states that the decision was based upon the ticket processed,
the statement of the witnessing officer and facts confirmed
through the June 23, 1977 investigation report. The facts
contained in these documents, however, are not included in the
The Seventh Circuit has held that written statements similar
to the one given McCall-Bey violate due process. In Hayes v.
Walker, 555 F.2d 625 (7th Cir. 1977), the Court found
unconstitutional a written statement that merely adopted the
violation report and the report of a special investigator as
the evidentiary basis for its findings. Similarly, in Chavis v.
Rowe, 643 F.2d 1281, 1287 (7th Cir. 1981), a written statement
that simply said that the inmate's statement was considered by
the Committee but that the reporting officer's charges were
accepted, was held to violate the inmate's due process rights.
The statement made no mention of what the reporting officer
relied on or why the reporting officer should be believed
rather than the inmate.
In this case, the written statement contained in the summary
is clearly unconstitutional. The summary merely referred to
the statement of the witnessing officer and the facts
confirmed through the investigation report. The Committee
failed to point out the essential facts upon which inferences
were based. No reason is given for why the reports were found
to be more credible than the denials of McCall-Bey. Such a
general finding does not ensure that prison officials will act
fairly or that McCall-Bey will be protected from collateral
consequences based on misunderstandings, the very reasons for
the written statement. See Chavis v. Rowe, 643 F.2d at 1287,
and Hayes v. Walker, 555 F.2d at 633. Thus, the summary
violates McCall-Bey's due process rights.
In his brief, Lane contends that the summary was
constitutionally sufficient in light of institutional security
needs. It has been recognized that personal and institutional
safety needs may justify the exclusion of evidence from a
constitutionally required written statement. Wolff, 418 U.S. at
565, 94 S.Ct. at 2979. However, the fact of such omission
should be included in the statement. Id. In the case at bar,
this fact was not provided.
Lane's claims regarding institutional safety are not
contained in the record. No mention of security needs is made
in the summary, in the statement of the witnessing officer, or
in the investigation report. Lane did not submit an affidavit
supporting his motion. Thus, even if a valid security need did
exist, the summary should include mention of the security need
and the fact of omission of evidence.
Lane also contends that he is entitled to immunity. In his
brief, Lane claims that he acted in good faith and therefore
is immune from money damages liability under 42 U.S.C. § 1983.
The Supreme Court has recognized a qualified good faith
immunity for state prison officials acting within the scope of
their official duties when money damages are sought for
violations under 42 U.S.C. § 1983. Procunier v. Navarette,
434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978). The test for
immunity in Procunier contained a subjective and objective
prong. The subjective prong had been considered by some courts
to be a question of fact; an issue to be resolved at trial.
Thus, the issue of an official's subjective good faith could
prevent granting of a motion for summary judgment.
In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982), the Supreme Court eliminated the subjective
prong of the immunity test. Now, the standard to be applied by
the court is only objective. The Court set out the procedure
for determining whether an official is entitled to immunity:
On summary judgment, the judge appropriately may
determine, not only the currently applicable law,
but whether that law was clearly established at
the time an action occurred. If the law at that
time was not clearly established, an official
could not reasonably be expected to anticipate
subsequent legal developments, nor could he
fairly be said to "know" that the law forbade
conduct not previously identified as unlawful.
Until this threshold immunity question is
resolved, discovery should not be allowed. If the
law was clearly established, the immunity defense
ordinarily should fail, since a reasonably
competent public official should know the law
governing his conduct. Nevertheless, if the
official pleading the defense claims
extraordinary circumstances and can prove that he
neither knew nor should have known of the
relevant legal standard, the defense should be
sustained. But again, the defense would turn
primarily on objective factors.
Harlow, 457 U.S. at 819, 102 S.Ct. at 2739 (footnote
In the case at bar, the currently applicable law is set out
in Wolff v. McDonnell, noted above. This law was in effect at
the time of McCall-Bey's disciplinary hearing and at the time
Lane approved the Committee's actions. Wolff was decided in
1974, while the Committee conducted McCall-Bey's disciplinary
hearing on July 14, 1977 and Lane approved the Committee's
actions on July 15, 1977. The Seventh Circuit applied the Wolff
standard in several cases decided prior to the Committee's
hearing regarding McCall-Bey. See e.g., Hayes v. Walker,
555 F.2d 625 (7th Cir. 1977), United States ex rel. Richerson v.
Wolff, 525 F.2d 797 (7th Cir. 1975); Aikens v. Lash,
514 F.2d 55 (7th Cir. 1975).
In addition, the Illinois Department of Corrections issued
regulations in response to Wolff. See Hayes v. Thompson,
637 F.2d 483, 491 (7th Cir. 1980). One of these regulations is
Administrative Regulation 804 (A.R. 804) which was effective
June 18, 1976. A.R. 804 was in effect at the time McCall-Bey's
disciplinary hearing was held. Moreover, the Committee cited
A.R. 804 in its Summary, stating the hearing was held in
compliance with A.R. 804. Thus it appears that the law was
clearly established on the date of the Committee's and Lane's
actions. Since Lane has not pleaded any extraordinary
circumstances or submitted an affidavit detailing extraordinary
circumstances, the objective standard applies. A reasonably
competent prison official should have known the law governing
disciplinary hearings and due process requirements. Therefore,
Lane is not entitled to qualified immunity and may be liable
for money damages under 42 U.S.C. § 1983.
In regard to Count III of the Second Amended Complaint, this
Court finds that McCall-Bey's constitutional right to due
process was violated by Lane and that Lane can be liable for
monetary damages. The amount of money damages, if any, must be
determined at a hearing, and will be considered with the
remainder of this case.
McCall-Bey also requests that records and documents relating
to his discipline be expunged. The Seventh Circuit has
expunged violations from an inmate's records when a violation
contrary to due process guarantees. See Hayes v. Thompson,
637 F.2d 483 (7th Cir. 1980); Ware v. Heyne, 575 F.2d 593 (7th Cir.
1978). However, violations resulting in harmless error do not
require expunction. Hayes, 637 F.2d at 493.
In the case at bar, the unconstitutional conduct of Lane
justifies expunction of the guilty finding from McCall-Bey's
prison records. Given the adverse collateral consequences to
plaintiff, the Court cannot find that the constitutional
violation was harmless error. Thus, McCall-Bey's prison
records should be expunged of the guilty finding and any
adverse collateral consequences on the record should be
neutralized by expunction, explanation or other appropriate
Both McCall-Bey and Lane seek summary judgment on Count IV
of the Second Amended Complaint. Count IV is identical to
Count III except that Count IV alleges a constitutional
violation by Lane stemming from the failure to follow Illinois
Department of Corrections Administrative Regulation
804(II)(B)(9). The basis for recovery in both counts is the
deprivation of McCall-Bey's right to procedural due process
under the fourteenth amendment.
Count IV is duplicative of Count III. The same basis for
recovery exists in both Counts. The conduct alleged in both
counts, failure to provide an adequate statement of reasons
for disciplinary action, is the same. In fact, as McCall-Bey
admits in his brief, A.R. 804 was enacted to implement
Wolff A.R. 804(II)(B)(9) requires a written statement,
complying with Wolff, to be provided to an inmate at
disciplinary hearings. While state regulations can create
liberty interests, Hewitt v. Helms, 459 U.S. 460, 103 S.Ct.
864, 869, 74 L.Ed.2d 675 (1983), A.R. 804(II)(B)(9) does not
seem to create a liberty interest different from the one
recognized in Wolff. Thus, regarding constitutional violations,
Count IV adds nothing to Count III. See Harris v. McDonald,
532 F. Supp. 36, 40 (N.D.Ill. 1982). This bars recovery by
McCall-Bey and justifies summary judgment for Lane on Count IV
of the Second Amended Complaint.
For the reasons set out herein, McCall-Bey's motion for
partial summary judgment on Count III of the Second Amended
Complaint is granted and Lane's cross-motion for summary
judgment on Count III is denied. The prison records of
McCall-Bey shall be expunged of the disciplinary action and
any collateral consequences of the disciplinary action shall
be neutralized. A hearing shall be held regarding defendant
Lane's liability monetary damages, if any. This issue will be
considered at the trial of the remaining Counts in this case.
For the reasons set out herein, McCall-Bey's motion for
summary judgment on Count IV of the Second Amended Complaint
is denied and Lane's cross-motion for summary judgment on
Count IV is granted.
IT IS SO ORDERED.