eligible inmate's application; if the committee approves it, the
application must be reviewed and approved by either the Warden of
Pontiac Correctional Center for inmates residing at Pontiac, or
by the Transfer Coordinator for inmates residing in institutions
other than Pontiac.
A.D. 6.51k does contain explicit, mandatory language which
would compel the employment of the hearing procedures for an
eligible resident; the directive, however, does not mandate that
a transfer will occur where there are specific substantive
predicates. There is no restriction on the Assignment Committee's
discretion nor on the Warden's or Transfer Coordinator's
discretion in approving or disapproving an inmates transfer
application. Hewitt and Harris, therefore, require the finding
that A.D. 6.51k does not create a liberty interest protected by
the Due Process Clause.*fn4
As the plaintiff McCalvin has no protected liberty interest
under the Constitution nor under A.D. 6.51k in being placed in
the MSU at Pontiac, the defendant is granted summary judgment as
to the plaintiff's procedural due process claim.*fn5
McCalvin alleges that he was denied his transfer requests while
other inmates with similar institutional backgrounds were allowed
to transfer to the MSU. The plaintiff also avers that the
defendant has consistently denied the plaintiff placement in the
MSU in retaliation for his legal activities on behalf of other
inmates and himself and the defendant thereby violated his right
to equal protection of the laws. The defendant claims that the
plaintiff has not pled any facts which raise an inference of
retaliation argument, and, therefore, summary judgment should be
entered in favor of the defendant and against the plaintiff.
Equal protection does not require absolute equality or
precisely equal advantages. French v. Heyne, 547 F.2d 994, 997
(7th Cir. 1976) citing Ross v. Moffitt, 417 U.S. 600, 94 S.Ct.
2437, 41 L.Ed.2d 341 (1974). Equal protection does require,
however, that the state not purposely discriminate against those
who are entitled to be treated in the same manner as other
similarly situated persons. See Snowden v. Hughes, 321 U.S. 1, 8,
64 S.Ct. 397, 401, 88 L.Ed. 497 (1944); Shango, 681 F.2d at 1104.
In order to prove such a violation of equal protection, a
plaintiff must show an intentional or purposeful discrimination
in the administration of the state classification. See Snowden,
321 U.S. at 8, 64 S.Ct. at 401; Bloomenthal v. Lavelle,
614 F.2d 1139, 1141 (7th Cir. 1980).
A mere inconsistency in prison management does not in itself
constitute a cognizable equal protection claim. Durso v. Rowe,
579 F.2d 1365, 1372 (7th Cir. 1978), cert. denied 439 U.S. 1121,
99 S.Ct. 1033, 59 L.Ed.2d 82 (1979); Stringer v. Rowe,
616 F.2d 993, 998 (7th Cir. 1980). The plaintiff McCalvin, however, has
alleged that the disparate treatment between himself and those
who were granted transfers to the MSU at Pontiac was a result of
his activities as a jailhouse lawyer. It is impermissible to deny
a transfer request in retaliation for a prisoner's exercise of a
protected right even if the denial, when done for another reason,
would have been proper. See Shango, 681 F.2d at 1103; Buise v.
Hudkins, 584 F.2d 223, 229 (7th
Cir. 1978), cert. denied 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d
This court has already found that McCalvin did not have a due
process interest in transferring to the MSU at Pontiac. The
plaintiff, however, while he may not have a due process interest
in the transfer, does have a constitutional interest or
expectation in not being punished for the exercise of activity
protected under the constitution. See Buise, 584 F.2d at 230. See
also Mount Healthy City Board of Education v. Doyle,
429 U.S. 274, 283-84, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977) ("Even
though he [the school teacher] could have been discharged for no
reason whatever, and had no constitutional right to a hearing
prior to the decision not to rehire him, . . . he may nonetheless
establish a claim to reinstatement if the decision not to rehire
him was made by reason of his exercise of constitutionally
protected First Amendment freedoms.")
The question whether a denial of transfer based on plaintiff's
legal activities is actionable depends upon whether such
jailhouse lawyering is a constitutionally protected activity.
McCalvin has alleged that the denial of his transfer was based on
his legal activities on behalf of himself and others. While
jailhouse activities on behalf of others may be a protected
activity, depending upon the circumstances in each case, see
Buise, 584 F.2d at 230-31 and authorities cited, it is
well-established that McCalvin's right to participate in legal
activities for himself is a protected activity. See Johnson v.
Avery, 393 U.S. 483, 485, 89 S.Ct. 747, 748, 21 L.Ed.2d 718
(1969); Crowder v. Lash, 687 F.2d 996, 1004 (7th Cir. 1982);
Bonner v. Coughlin, 517 F.2d 1311, 1320 (7th Cir. 1975), cert.
denied 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978); Adams
v. Carlson, 488 F.2d 619, 632-34 (7th Cir. 1973); Sigafus v.
Brown, 416 F.2d 105, 107 (7th Cir. 1969).
In order to create a question of fact, an adverse party
responding to a summary judgment motion must set forth specific
facts showing that there is a genuine issue for trial.
Fed.R.Civ.P. 56(e); Posey v. Skyline Corp., 702 F.2d 102, 105
(7th Cir. 1983) cert. denied, ___ U.S. ___, 104 S.Ct. 392, 78
L.Ed.2d 336 (1983). The "mere possibility" that a factual dispute
may exist, without more, is an insufficient basis upon which to
justify denial of a motion for summary judgment. Posey, 702 F.2d
McCalvin has submitted to the court two affidavits filed
September 27, 1984, and October 19, 1984, respectively, in which
the plaintiff alleges that there is a genuine issue of material
fact as to whether the defendant allowed the denial of
plaintiff's transfer requests in retaliation for the plaintiff's
In Labatt v. Twomey, 513 F.2d 641 (7th Cir. 1975), prisoner
Black made an allegation in his affidavit that he and his fellow
plaintiffs were discriminatorily excluded from the early
selective release from the deadlock because the plaintiffs had
exercised their First Amendment right to criticize the defendant
Warden and his prison administration. The Court of Appeals held
that the affidavits before the district court had raised
questions of fact as to whether such prisoner and his fellow
plaintiff prisoners were arbitrarily excluded from the selective
process of releases because of exercise of their First Amendment
right to criticize the prison's administration, and therefore
summary judgment was precluded. Id. at 649.
In Woods v. Aldworth, 561 F. Supp. 891 (N.D.Ill. 1983), the
district court held that affidavits submitted by the prisoner
plaintiff stating that his mail never reached his cell and
affidavit by chief of the mail room stating that the mail left
the mail office and that established procedures for handling mail
were not complied with, raised a genuine issue of material fact
as to the plaintiff's claim of violation of his civil rights for
non-delivery of his mail, and, therefore, precluded the granting
of summary judgment. Id. at 894.
In the case at bar, the court finds that the plaintiff in his
affidavit has sufficiently raised a genuine issue of material
fact as to his claim for denial of equal protection. The
defendant's motion for summary judgment as to the plaintiff's
claim of violation of his right to equal protection is denied.
IT IS THEREFORE ORDERED that the defendant's motion for summary
judgment as to the plaintiff's due process claim is granted.
IT IS FURTHER ORDERED that the defendant's motion for summary
judgment as to the plaintiff's equal protection claim is denied.
Defendant's motion for summary judgment is granted in part and
denied in part. IT IS SO ORDERED.
Administrative Directive 6.51k (effective November 26, 1979) of
the Illinois Department of Corrections, Adult Division: Transfer
to the Pontiac Correctional Center Medium Security Unit.
1. Residents who are in medium security, minimum security with
supervision, or minimum security classification are eligible for
transfer to this facility. Further, any resident with a history
of escape from any correctional facility within the past five
years shall not be placed at the Medium Security Unit.
2. A resident must be in "A" grade status.
3. A resident serving an indeterminate sentence shall have no
mcertore than five years remaining until his date of parole
eligibility, mandatory supervised release, or statutory parole.
A resident serving a determinate sentence shall have no more than
five years remaining until his projected release date.
4. Preference shall be given to residents from the Northern
section of the state.
5. A resident with a history of active gang membership, or gang
leadership, those who have been personally involved in any
serious institutional disturbance, and those who have a previous
history of possession of dangerous contraband, such as weapons,
drugs, or alcoholic beverages, shall normally be excluded from
transfer. Exceptions can be made to the criteria on an individual
basis when a considerable period of time has elapsed since the
resident exhibited such behavior and the resident's subsequent
institutional adjustment has indicated the unlikelihood of the
reoccurrences of any such behavior.
6. A resident with a history of pressuring other residents and
residents who have generalized protective custody needs shall not
be placed at this facility.
7. Residents with severe disabling medical problems or who
require extensive or prolonged medical treatment shall not be
considered for placement at this facility.
Residents recently admitted to a Reception and Classification
Unit who meet all of the above criteria, shall have a Program
Considerations Report prepared by a Reception and Classification
Unit counselor. This report, along with at least four copies of
the transfer order, shall be referred to the Transfer Coordinator
for final review and approval.
Residents who are already assigned to the Pontiac Correctional
Center and desire to be transferred to the Medium Security Unit
at the Pontiac Correctional Center and meet the above criteria,
shall submit an application for transfer to the Institutional
Assignment Committee. If the Committee recommends in favor of the
transfer, this application will be reviewed and approved by the
Warden at the Pontiac Correctional Center and need not be
approved by the Transfer Coordinator. Residents presently
confined to some facility other than the Pontiac Correctional
Center and desire a transfer to the Medium Security Unit at the
Pontiac Correctional Center and meet the above criteria, shall
submit an application for transfer to the Institutional
Assignment Committee. If the Committee recommends in favor of the
transfer, a Supplemental Program Considerations Report prepared
by Clinical Services personnel,
and appropriate transfer orders, shall be forwarded to the
Transfer Coordinator for final review and approval. If a resident
who is presently confined to some facility other than the Pontiac
Correctional Center desires a transfer to the Pontiac Medium
Security Unit and meets most, but not all, of the above criteria,
a request may be submitted by the Warden for an exception to be
made to the criteria. When requesting consideration for an
exception, specific reasons must be provided as to why the
resident would appear to be capable of making a satisfactory
adjustment at the Medium Security Unit. Such a document is to
accompany other transfer materials submitted to the Transfer
Coordinator for final review and approval. Please note that
transfers to the Medium Security Unit at the Pontiac Correctional
Center will normally be made from the Pontiac Correctional
Center, although transfers from other institutions will be