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SHANGO v. JURICH

April 10, 1985

SHANGO (CLEVE HEIDELBERG, JR.), PLAINTIFF,
v.
MARY JURICH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

  MEMORANDUM OPINION AND ORDER

Cleve Heidelberg, Jr. ("Shango," the name by which he is known in the prison community) filed suit under 42 U.S.C. § 1983 ("Section 1983") against various officials of the Illinois correctional system, seeking injunctive relief and damages stemming from (1) the prosecution of disciplinary charges against Shango and (2) his transfer from Stateville Correctional Center ("Stateville") to Menard Correctional Center ("Menard").*fn1 Shango and defendants have filed cross-motions for summary judgment under Fed.R.Civ.P. ("Rule") 56 on Counts IV and VII of the supplemental complaint. Each count asserts due process deprivations: Count IV in connection with Shango's placement on investigative status and his consequent discipline on charges of deviate sexual assault on another Stateville resident, and Count VII in connection with Shango's placement on investigative status on false charges of assault on a Menard resident. For the reasons stated in this memorandum opinion and order, each party's motion is granted in part and denied in part.

Facts*fn2

Count IV

On July 14, 1980 Stateville resident Stephen Edwards ("Edwards") complained to Stateville Internal Affairs Officer Ulsey Price ("U. Price") that Edwards had been the victim of extortion and "sexual assault and trafficking" at the hands of Shango and other Stateville residents. U. Price arranged for Edwards to take a polygraph examination. When the results indicated Edwards had been telling the truth, U. Price issued Resident Disciplinary Reports (RDRs) to Shango and the other residents Edwards had named, placing them all on investigative status.*fn3 Accordingly Shango was transferred to segregation pending the outcome of U. Price's investigation.

As required by Administrative Regulation ("A.R.") 804(II)(J), the July 14 RDR issued to Shango came before the Adjustment Committee ("AC") for review July 16. According to the AC summary of proceedings, Shango denied the charges under investigation and objected to having been placed on investigative status. Neither U. Price nor any other witnesses appeared before the AC. Nonetheless the AC decided Shango should be placed on investigative status on the basis of the July 14 RDR. Under the heading "BASIS FOR DECISION/EVIDENCE RELIED UPON," the AC stated only: "As per Int. Affairs Lt. Price."

On July 14 U. Price also prepared a preliminary investigative report outlining Edwards' accusations, the results of Edwards' polygraph examination and the results of an examination of prisoner trust fund records consistent with Edwards' charges of extortion. Thereafter U. Price interviewed various residents as to Edwards' allegations, but he discovered nothing — beyond Edwards' statement and the confirming polygraph results — bearing on the allegations of sexual assault against Shango. On July 23 and 24 U. Price and Special Investigator Al Faro ("Faro," who had become involved in the investigation after U. Price's July 14 request for an emergency polygraph examination of Edwards*fn4) met with Shango to discuss the investigation. Shango denied involvement in any sexual assault on Edwards and demanded to see the results of Edwards' polygraph examination. His demand was denied on confidentiality grounds, and no other information about the alleged assault was provided to Shango. Shango refused to take a polygraph examination himself until he had been given more specific information about the circumstances of the alleged assault.

On July 25 U. Price issued a second RDR charging Shango in these terms:

  Based on the results of an investigation
  conducted by the office of Internal Affairs, and
  the official results of a polygraph examination,
  Resident Cleve Heidelberg # C01521] is being
  charged, with being in Violation of A.R. 804
  Rules No. 24, and 28.
  On July 24, 1980*fn5 a copy of a polygraph
  examination taken by resident Stephen Edwards
  indicated, he was telling the truth, when he
  stated that during the month of June 1980 on at
  least one occasion you paid another resident to
  force Edwards to have an unnatural sex act with
  you. This action was clearly in violation of Rule
  24. Engaging with others in or pressuring others
  to engage in any unnatural sexual activity, and
  Rule No. 28 violating the general laws of the
  State or Federal Government to wit: Criminal Law
  and Procedure 38-11-3. Deviate Sexual Assault.
  Any person of the age of 14 years and upwards who
  by force or threat of force, compels any other
  person to perform or submit to any act of deviate
  sexual conduct commits Deviate Sexual Assault.
  (Definition 11-2 Deviate Sexual Conduct) "Deviate
  sexual conduct" for the purpose of this article
  means any act of Sexual gratification involving
  the sex organs of one person and the mouth or
  anus of another. You were given an opportunity to
  take a pol[y]graph examination on these charges.
  You Heidelberg C01521] decline therefore you are
  so charged.

Shango was served with the RDR at approximately 12:15 p.m. July 25. He waived his right to 24 hours' notice and came before the AC the morning of July 26.

Not surprisingly, the AC found Shango guilty of the charge and recommended his demotion to C grade, confinement to segregation for one year and deprivation of one year of statutory good time. Its summary described the AC's reasons as follows:

  Interview with resident. Adjustment Committee is
  relying on accuracy of polygraph examination and
  Internal Affairs investigation.

Stateville Warden Richard DeRobertis ("DeRobertis") approved the AC decision.

Shango then appealed the decision, first to the Institutional Inquiry Board ("IIB") and then to the Administrative Review Board ("ARB"). Both bodies affirmed the AC decision, rejecting as insubstantial Shango's claim that he had been denied due process. Accordingly Shango remained in segregation (both at Stateville and later at Menard) from July 14, 1980 to July 13, 1981, when this Court entered a preliminary injunction ordering defendants to remove Shango from segregation, to restore to him the one year of good time that had been forfeited and to credit him with the good time he had lost ...


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