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February 25, 1985


The opinion of the court was delivered by: Baker, Chief Judge.


The plaintiff, Walter L. McCalvin, Jr., currently a resident of the Menard Correctional Center, brought this action under 42 U.S.C. § 1983 for the alleged deprivation of his constitutional rights. On August 29, 1984, the defendant moved this court for summary judgment. On September 27, 1984, the plaintiff responded to the defendant's motion for summary judgment, stating in an affidavit that there remained in the case genuine issues of material fact. On October 16, 1984, the defendant replied to the plaintiff's response to the defendant's motion for summary judgment; on October 19, 1984, the plaintiff, by affidavit, responded to the defendant's reply of October 16, 1984.


McCalvin, a resident of the maximum security facility at the Pontiac Correctional Center at the time in question, sought transfer to the MSU pursuant to Administrative Directive (A.D.) 6.51k of the Illinois Department of Corrections, which provides the procedure and criteria for the transferring of residents to the MSU. (See Appendix.) Under the directive, if an inmate is eligible for placement in the MSU he may apply for such placement to the Institutional Assignment Committee. If the Assignment Committee approves the inmate's request, the application must be reviewed and approved by either the Warden of Pontiac Correctional Center for inmates or the Transfer Coordinator for inmates residing in institutions other than Pontiac.

On June 3, 1980, McCalvin was considered for placement in the MSU at Pontiac by the Assignment Committee, pursuant to McCalvin's request for transfer.*fn1 His transfer was denied by the Assignment Committee because of the length of his maximum sentence and because of his "escape history"; Warden Fairman concurred in the disapproval of his request for transfer. On December 9, 1980, McCalvin was again considered for transfer to the MSU by the Assignment Committee, and his request was denied because of the length of his maximum sentence; Warden Fairman concurred in the denial. On April 6, 1981, McCalvin's renewed application for transfer to the MSU was again considered by the Assignment Committee, and was again rejected because of the length of McCalvin's maximum sentence; Warden Fairman again concurred in the disapproval on April 21, 1981.

McCalvin has alleged that he was denied transfer to the MSU at Pontiac in violation of his Fourteenth Amendment rights to equal protection and due process because other prisoners with longer sentences than his have been transferred to the SMU, and that his requests for transfer were arbitrarily and capriciously decided. McCalvin further alleges that the defendant denied his transfer request in retaliation for his legal activities; and that while the plaintiff has met all the requirements for transfer to the MSU, his requests have been consistently denied for erroneous reasons.*fn2


The Fourteenth Amendment prohibits a state from depriving a person of life, liberty, or property without due process of law. In order to determine if a state has violated a person's due process liberty right, two inquiries must be made: a liberty interest within the meaning of the clause must be identified, and the degree of process due a person before their liberty interest may be deprived must be ascertained. See Shango v. Jurich, 681 F.2d 1091, 1097 (7th Cir. 1982).

When a person has been subject to a constitutionally valid criminal conviction, his right to liberty is sufficiently extinguished so that a state may confine him in any one of its prison facilities. Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). See Harris v. McDonald, 737 F.2d 662, 664 (7th Cir. 1984). The Court in Meachum stated that

  [c]onfinement in any of the State's institutions is
  within the normal limits or range of custody which
  the conviction has authorized the State to impose.
  That life in one prison is more disagreeable than in
  another does not in itself signify that a Fourteenth
  Amendment liberty interest is implicated when a
  prisoner is transferred to the institution with the
  more severe rules.

Meachum, 427 U.S. at 225, 96 S.Ct. at 2538. The constitution, therefore, does not mandate any form of procedural formalities that must accompany decisions by a state to place a prisoner in any particular facility, or to transfer a prisoner from one institution to another. See Harris, 737 F.2d at 664.

State statutes, practices or duly promulgated prison regulations, however, may create liberty interests which come under the protection of the Due Process Clause of the Fourteenth Amendment. See Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980); Shango, 681 F.2d at 1097; Harris, 737 F.2d at 664. If state statutes or prison regulations condition transfer on the occurrence of specific events, a liberty interest is created. Meachum, 427 U.S. at 226-27, 96 S.Ct. at 2539-40; Harris, 737 F.2d at 664. A regulation providing a procedural right, however, does not create any protectible liberty interest where there is discretion granted to the prison officials implementing the procedure which is not substantially restricted. See Shango, 681 F.2d at 1101; Chavis v. Rowe, 643 F.2d 1281, 1290 (7th Cir. 1981), cert. denied 454 U.S. 907, 102 S.Ct. 415, 70 L.Ed.2d 225 (1981).*fn3

In Chavis v. Rowe, the Seventh Circuit held that Administrative Regulation (A.R.) 819 of the Illinois Department of Corrections, the transfer regulation at issue in that case, created no justifiable expectation that a resident will not be transferred absent the occurrence of specified events. Chavis, 643 F.2d at 1290. In Shango, the Court of Appeals stated again that the transfer regulation A.R. 819 placed no limitations on prison officials' imfettered discretion to transfer a resident "for whatever reason or for no reason at all." Shango, 681 F.2d at 1100. In Harris v. McDonald, the Seventh Circuit examined the affect of the Supreme Court decision in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), upon the circuit's interpretation of the transfer regulation A.R. 819. In Hewitt, the Court found that a prison regulation governing transfer from the general prison population to administrative segregation could create a protected liberty interest where there was explicit, mandatory language in the regulation requiring that certain procedures be employed and that administrative segregation should not occur absent specified substantive ...

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