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PARDO v. HOSIER

June 14, 1985

ENRIQUE PARDO, PLAINTIFF,
v.
PAUL HOSIER, DON POLIZZI, LOUIS LOWERY, KENT MILLS, AND LT. R. FOSTER, DEFENDANTS. LA CARTTLE JONES, PLAINTIFF, V. GAYLE M. FRANZEN, JAMES W. FAIRMAN, L.O. LOWERY, EUGENE ROBINSON, LT. DENGE DENNIS AND J.A. DAVIS, DEFENDANTS.



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

  ORDER GRANTING AND DENYING SUMMARY JUDGMENT IN PART

This case is before the court on cross-motions for summary judgment. For the reasons stated below, summary judgment is granted for the plaintiffs in part and for the defendants in part.

In these consolidated cases, two inmates from the Pontiac Correctional Center raise five due process claims. First, the plaintiff Enrique Pardo alleges that on two separate occasions he was placed in administrative segregation improperly pursuant to Administrative Regulation 804(II)(J). Second, the plaintiff LaCarttle Jones alleges that on four separate occasions he was placed in administrative segregation improperly pursuant to Ad.Reg. 804(II)(C). Third, the plaintiff Jones alleges that he received three disciplinary tickets for violations of administrative regulations in September, 1980, and that the report of the hearing on each ticket failed to state an adequate summary of the evidence relied upon by the Adjustment Committee in finding the plaintiff guilty and failed to state reasons supporting the specific disciplinary action taken against him. Fourth, the plaintiff Jones alleges that the Adjustment Committee improperly refused to call a witness he requested at his Committee hearing on September 29, 1980. Finally, the plaintiff Jones alleges that he was denied his right to an impartial decision maker on April 5, 1981, when the defendant Lowery refused to disqualify himself from serving on the committee after being notified of this pending lawsuit.

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether summary judgment is proper, a court ordinarily must view the record in the light most favorable to the party opposing the motion, drawing all inferences most favorable to that party. Rose v. Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir. 1973).

I. ENRIQUE PARDO

A. Segregation Pending Investigation

The plaintiff Pardo alleges that on two occasions, first in May, 1980, and again in June, 1981, he was segregated on investigative status without explanation and without notice of the charges or allegations which were under investigation. When Pardo was confined to the holding unit, he was told only that he was being placed on investigative status and that the investigation would last no more than thirty days. This issue is identical to the issue raised in Hewitt v. Helms, 459 U.S. 460[, 103 S.Ct. 864, 74 L.Ed.2d 675] (1983): what limit does the Due Process Clause of the Fourteenth Amendment place on the authority of prison administrators to remove inmates from the general population and to confine them to a less desirable location for administrative reasons?

In Hewitt, the Court first noted the limits on the interests protected by the Fourteenth Amendment:

  While no State may `deprive any person of life,
  liberty or property without due process of law'
  it is well settled that only a limited range of
  interests fall within this provision. Liberty
  interests protected by the Fourteenth Amendment
  may arise from two sources — the Due Process
  Clause itself and the laws of the States. Meachum
  v. Fano, 427 U.S. 215, 223-227 [96 S.Ct. 2532,
  2537-2539, 49 L.Ed.2d 451] (1976).

Hewitt, 459 U.S. at 466[, 103 S.Ct. at 869]. The Court further concluded that administrative segregation is the sort of confinement inmates should reasonably anticipate receiving at some point in their incarceration, and that sort of confinement does not invoke an interest independently protected by the Due Process Clause:

  [A]s long as the conditions or degree of
  confinement to which the prisoner is subject is
  within the sentence imposed upon him and is not
  otherwise violative of the Constitution, the Due
  Process Clause does not in itself subject an
  inmate's treatment by prison authorities to
  judicial oversight. Montanye v. Haymes,
  427 U.S. 236, 242 [96 S.Ct. 2543, 2547, 49 L.Ed.2d 466]
  (1976). See also Vitek v. Jones, 445 U.S. 480, 493
  [100 S.Ct. 1254, 1263, 63 L.Ed.2d 552] (1980).

459 U.S. at 468[, 103 S.Ct. at 869]. Further, "[i]t is plain that the transfer of an inmate to less amenable and more restrictive quarters for non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence." Id.

However, the Court observed a state may create a liberty interest protected by the Due Process Clause through its enactment of certain statutory or regulatory measures. Hewitt, 459 U.S. at 469[, 103 S.Ct. at 870]. The Court concluded that the repeated use of "explicitly mandatory language" by Pennsylvania in connection with requiring "specific substantive predicates" indicated that Pennsylvania had created a protected liberty interest for an inmate in continuing to reside in the general prison population:

    Nonetheless, in this case the Commonwealth has
  gone beyond simple procedural guidelines. It has
  used language of an unmistakably mandatory
  character, requiring that certain procedures
  "shall," "will," or "must" be employed . . . and
  that administrative segregation will not occur
  absent specified substantive predicates — viz.,
  "the need for control," or "the threat of a serious
  disturbance." . . . [W]e are persuaded that the
  repeated use of explicitly mandatory language in
  connection with requiring specific substantive
  predicates demands a conclusion that the State has
  created a protected liberty interest.

Hewitt, 459 U.S. at 471-72[, 103 S.Ct. at 871].

In the present case, Pardo was twice confined to a segregation holding unit pending investigation pursuant to Ad.Reg. 804(II)(J). Ad.Reg. 804(II)(J) provides in relevant part that:

    2. A resident disciplinary report must be
  prepared and the appropriate hearing before the
  institutional Adjustment Committee must be held
  within the 72-hour guideline. The report and
  hearing should provide the resident with as much
  information as possible regarding the incident
  which resulted in his/her placement in a holding
  unit. It is not necessary that information
  which would be a detriment to the investigative
  process be provided to the resident; however,
  sufficient evidence must be provided so that the
  resident understands the reason for placement on
  investigative status and the general nature of the
  allegations or charges under investigation.
  (Emphasis added.)

Ad.Reg. 804(II)(J) uses similar "mandatory language" in connection with requiring "specific substantive predicates" as did the Pennsylvania regulations at issue in Hewitt. The Illinois regulation uses mandatory language requiring that certain procedures "must" be employed, and that administrative segregation will not occur absent a specified substantive predicate — viz., "in the interest of institutional security and safety." Consequently, the court concludes that Ad.Reg. 804(II)(J) creates a liberty interest in continuing to reside in the prison's general population.*fn1

This conclusion is consistent with the Seventh Circuit's approach in Arsberry v. Sielaff, 586 F.2d 37 (7th Cir. 1978):

    Meachum [v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49
  L.Ed.2d 451 (1976) and Montanye v. Haymes,
  427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976)] make it
  clear that the Supreme Court looks primarily to
  state law as the source of prisoners' liberty
  interests. Essentially a plaintiff must demonstrate
  a justifiable expectation that he will not be
  deprived of a benefit absent the occurrence of
  specified events. Meachum, 427 U.S. at 226-27 [96
  S.Ct. at 2539]; Montanye, 427 U.S. at 242 [96 S.Ct.
  at 2547].
    The question then is what is sufficient to
  create the necessary justifiable
  expectation . . . . In essence, prisoners must
  show some restriction upon the prison officials'
  discretion to remove the benefit sought.
  Lombardo v. Meachum, 548 F.2d 13 (1st Cir. 1977).
  In Meachum and Montanye, the court indicated that
  the states could create the necessary entitlements
  "by statute, by rule or regulation, or by
  interpretation of their own constitutions".
  Meachum, 427 U.S. at 229 [96 S.Ct. at 2540].

Id. at 46.

"Explicitly mandatory language" is but one way of showing "some restriction upon the prison officials' discretion to remove the benefit sought." A justifiable expectation that a benefit will not be withheld "absent the occurrence of specified events" is another way of stating that the benefit will not be denied "absent specified substantive predicates." Consequently, under either approach, Ad.Reg. 804(II)(J) creates a protected liberty interest for an inmate in continuing to reside in the general population.

Once the existence of a liberty interest is ascertained by reference to state law, the task of defining the procedural protections which attach to that interest is wholly a matter of federal constitutional law. Shango v. Jurich, 681 F.2d 1091, 1097-98 (7th Cir. 1982). Consequently, the procedures set out in the administrative regulations do not state the federal constitutional requirements of due process as the plaintiff insists. In order to meet the minimum requirements of procedural due process, the defendants "were obligated to engage only in an informal, non-adversary review of the information supporting [the plaintiff's] administrative confinement, including whatever statement [the plaintiff] wished to submit, within a reasonable time after confining him to administrative segregation." Hewitt v. Helms, 459 U.S. at 472[, 103 S.Ct. at 872]. "An inmate must merely receive some notice of the charges against him and an opportunity to present his view to the prison official charged with deciding whether to transfer him to administrative segregation." Id. at 476[, 103 S.Ct. at 874] (emphasis added).

On May 26, 1980, Pardo was placed on investigative status. He received a disciplinary report which read: "A.R. Sec J. I am reporting the above resident under Sec J which will be investigate [sic] thru inter[nal] affairs office." On May 28, 1980, the plaintiff was brought before the Adjustment Committee. The Committee Summary states in its entirety, "A.R. 804II-Section J. Resident is assigned to holding unit pending by internal affairs to be completed within 30 days."

Similar reports and summaries were issued to the plaintiff in June, 1981. On June 11, 1981, the plaintiff was placed on investigative status and received a disciplinary report, which read: "A.R. Sec II J. The above resident is pending investigation and invest[igation] thru internal affair[s] office. This will last for [a] period of thirty days or RDR will be written." Also on June 11, 1981, the plaintiff was brought before the Adjustment Committee. The Committee Summary states: "Section J. Assigned to segregation under provision of AR 804 Sec[tion] J. To be investigated by internal affairs. Investigation not to exceed 30 days."

Clearly, the defendants failed to provide the plaintiff with the minimum requirements of due process. The defendants failed to provide the plaintiff with any notice of either the charges against him or the matter under investigation and thereby deprived him of an opportunity to present his views. Moreover, the court need not consider what specific process was due prior to Hewitt, since the defendants should have known that some process was due pursuant to Meachum v. Fano, 427 U.S. 215[, 96 S.Ct. ...


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