United States District Court, Central District of Illinois, Danville Division
June 14, 1985
ENRIQUE PARDO, PLAINTIFF,
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
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
[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
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
1. It is recognized that incidents occur which,
in the interest of institutional security and
safety, require that a resident be removed from the
population and placed in a holding unit pending
the completion of an investigation. As the
holding unit functions in the same manner as a
segregation unit (except that single celling is
not required in the holding unit), a resident
must be provided with the same procedural
safeguards and services as are required by this
regulation relative to placements, conditions and
services in a segregation unit.
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.
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.
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. 2532, 49 L.Ed.2d 451] (1976), and failed to
provide any process at all. See Hewitt v. Helms, 459 U.S. at
476[, 103 S.Ct. at 874].
B. Good Faith Immunity
The defendants advance the defense of good faith immunity.
The Supreme Court held in Harlow v. Fitzgerald, 457 U.S. 800,
818-19[, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396] (1982) that
"government officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known." 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 current 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 threshhold 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 or should have known of the relevant
legal standard, the defense should be sustained.
But again, the defense would turn primarily on
Harlow v. Fitzgerald, 457 U.S. at 819[, 102 S.Ct. at 2738]. See
also Crowder v. Lash, 687 F.2d 996 (7th Cir. 1982).
Aside from Hughes v. Rowe, 449 U.S. 5[, 101 S.Ct. 173, 66
L.Ed.2d 163] (1980) the court has not found any cases dealing
with administrative segregation or Administrative Regulation
804(II)(J).*fn2 However, the absence of a Seventh Circuit
opinion specifically holding that Ad.Reg. 804(II)(J) creates a
liberty interest requiring prison officials to provide inmates
with procedural due process, does not necessitate the
conclusion that "the law" was not "clearly established" at the
time of the events in issue.
By May, 1980, the defendants should have been aware of the
consequences of the Supreme Court's decision in Meachum v.
Fano, 427 U.S. 215[, 96 S.Ct. 2532, 49 L.Ed.2d 451] (1976) upon
which this court relies today in concluding that Administrative
Regulation 804(II)(J) created a protected Fourteenth Amendment
liberty interest.*fn3 In addition, by May, 1980, the law was
clearly established that Illinois Department of Corrections
Administrative Regulations would create a protected Fourteenth
Amendment liberty interest where the language of a specific
administrative regulation demonstrated a justifiable
expectation that a benefit granted inmates by the regulations
would not be withheld without due process. See Arsberry v.
Sielaff, 586 F.2d 37, 46 (7th Cir. 1978). Of course, not all
Illinois prison administrative regulations create protected
liberty interests. However, opinions of the Seventh Circuit
announced subsequent to Meachum v. Fano, and prior to the
incidents involved in this case, applied Meachum and concluded
that various Illinois statutes, prison regulations, or policies
did, or did not, create protected liberty interests.*fn4 The
court concludes that the defendants are not entitled to the
qualified good faith immunity defense.
Consequently, the plaintiff Pardo's motion for summary
judgment shall be granted on his administrative segregation
claim. The defendants' motion for summary judgment shall be
II. LACARTTLE JONES
A. Segregation Pending Adjustment Committee Hearing.
Plaintiff LaCarttle Jones was charged four times with
violations of Administrative Regulations, and all four times
was immediately removed to a segregation holding
unit prior to receiving a hearing on the charge. Plaintiff
Jones, like plaintiff Pardo, alleges that this form of
administrative segregation violates the due process clause of
the United States Constitution.
Administrative Regulation 804(II)(C)(2) of the Illinois
Department of Corrections states:
2. The shift supervisor shall determine whether or
not it is necessary to place the resident in
temporary confinement status pending a disciplinary
hearing. Such a decision shall be based on the
degree of aggressiveness exhibited by the resident,
the degree of threat posed to the safety and
security of the institution, and/or the resident's
need for safekeeping to protect him/her from
The state again uses "explicit mandatory language" in
combination with a "specified substantive predicate" in
prescribing the conditions under which the inmate may be
confined to a segregation holding unit pending an Adjustment
Committee hearing. Supra, p. 696-97. Consequently, the court
concludes that Ad.Reg. 804(II)(C) creates a protected liberty
interest in continuing to reside in general population. Cf.
Isaac v. Jones, 529 F. Supp. 175
, 181 (N.D.Ill. 1981) (Ad.Reg.
804-A(II)(C) provides the predicate necessary for triggering
due process by limiting the circumstances in which an inmate
may be transferred from disciplinary segregation to controlled
segregation); Williams v. Franzen, 499 F. Supp. 304
(N.D.Ill. 1980) (Illinois prisoners have a protected liberty
interest in not being placed in disciplinary segregation absent
a finding of major misconduct).
However, the plaintiff's allegation that on all four
occasions in issue the shift supervisor incorrectly placed the
plaintiff in administrative segregation pursuant to 804(II)(C),
if true, does not necessarily indicate that the plaintiff's
liberty interest was deprived without due process. Rather, as
the Court of Appeals stated in Shango v. Jurich:
Although the existence of a liberty or property
interest may be ascertained by reference to state
law, once such an interest is identified, the
task of defining the procedural protections which
attach to that interest is fully a matter of
federal constitutional law. . . . To be sure,
state procedural protections are not ignored.
Rather, once it is determined what process is due
to the individual before he can be deprived of
the specific liberty or property interest by the
state, state procedures are scrutinized to see if
they comport with the federal procedural due
process requirements. However, state procedural
protections cannot define what process is due.
The Fourteenth Amendment's limitation on state
action would be illusory indeed if state
practices were synonymous with due process.
681 F.2d 1091
, 1097-98 (7th Cir. 1982).
Furthermore, in Hewitt v. Helms, the Supreme Court noted the
intuitive nature of decisions required of prison officials
assessing the seriousness of threats to institutional security
and stated that trial type procedural safeguards would not
appreciably aid in making those decisions:
As we said in Rhodes v. Chapman, 452 U.S. 337,
349 n. 14 [101 S.Ct. 2392, 2400 n. 14, 69 L.Ed.2d
59] (1981), "a prison's internal security is
peculiarly a matter normally left to the discretion
of the prison administrators." In assessing the
seriousness of a threat to institutional security,
prison administrators necessarily draw on more than
the specific facts surrounding a particular
incident; indeed, they must consider the character
of the inmates confined in the institution, recent
and long standing relations between prisoners and
guards, prisoners inter se, and the like. In the
volatile atmosphere of a prison, an inmate easily
may constitute an unacceptable threat to the safety
of other prisoners and guards even if he himself
has committed no misconduct; rumor, reputation, and
even more imponderable factors may suffice to spark
potential disastrous incidents. The judgment of
prison officials in this context, like that of
those making parole decisions, turns largely on
evaluations and on predictions of future
behavior," Connecticut Board of Pardons v.
Dunschat, 452 U.S. 458, 464 [101 S.Ct. 2460, 2464,
69 L.Ed.2d 158] (1981); indeed, the administrators
must predict not just one inmate's future actions,
as in parole, but those of an entire institution.
Owing to the central role of these types of
intuitive judgments, a decision that an inmate or
group of inmates represents a threat to the
institution's security would not be appreciably
sponsored by the trial type procedural safeguards
suggested by the respondent.
459 U.S. at 474[, 103 S.Ct at 872] (footnote omitted). The
court concluded that "an informal, non-adversary evidentiary
review is sufficient both for the decision that an inmate
represents a security threat and the decision to confine an
inmate to administrative segregation pending completion of an
investigation into misconduct charges against him."
Id. at 476[, 103 S.Ct. at 874].
Initially, the court concludes that the plaintiff's
allegation that the supervisor "incorrectly" placed the
plaintiff in administrative segregation pursuant to Ad.Reg.
804(II)(C) is not supportive of a denial of due process.
Hewitt v. Helms clearly indicates that as long as the prison
administration "reviews the charges and then available evidence
against the prisoner [within a reasonable time], the Due
Process Clause is satisfied." 459 U.S. at 476[, 103 S.Ct. at
However, the defendants did not comply with the minimum due
process requirements of the Fourteenth Amendment as set forth
in Hewitt v. Helms. After each incident in issue, a shift
supervisor determined that the plaintiff Jones should remain in
segregation pending his disciplinary hearing. The defendants
notified the plaintiff of the charges against him and provided
him with an Adjustment Committee hearing pursuant to Ad.Reg.
804. However, based upon the general requirements of Hewitt v.
Helms and the specific language of Ad.Reg. 804(II)(C), the
shift supervisor was required to provide the plaintiff an
opportunity to present his views before the shift supervisor
made his decision on the plaintiff's continued confinement in
Unlike the Pardo situation, however, the court concludes
that the defendants are entitled to qualified good faith
immunity as to plaintiff Jones. The court first notes that the
procedural due process requirements of Ad.Reg. 804(II)(C)
apparently have never been addressed by a court of this
circuit.*fn6 Although the defendants should have known that
under Meachum v. Fano, 427 U.S. 215[, 96 S.Ct. 2532, 49 L.Ed.2d
451] (1976), Ad.Reg. 804(II)(C) creates a protected liberty
interest, the defendants provided the plaintiff with
substantially all the requirements of due process which Hewitt
requires. Compare Hewitt, 459 U.S. at 476[, 103 S.Ct. at 874]
with Ad.Reg. 804(II)(C). However, the defendants could not have
reasonably known that the failure of the shift supervisor
rather than the Adjustment Committee to provide the plaintiff
the opportunity to present his views prior to the decision to
continue the plaintiff's confinement in administrative
segregation violated the plaintiff's constitutional rights.
As the Supreme Court noted in Hewitt v. Helms:
Wolff [v. McDonnell, 418 U.S. 539, 563-572, 94
S.Ct. 2963, 2978-2982, 41 L.Ed.2d 935 (1974)]
required that inmates facing disciplinary charges
for misconduct be accorded twenty-four
hours advance notice of the charges against them;
a right to call witnesses and present documentary
evidence in defense, unless doing so would
jeopardize institutional safety or correctional
goals; the aid of a staff member or inmate in
presenting a defense, providing the inmate is
illiterate or the issues complex; an impartial
tribunal; and a written statement of reasons
relied on by the tribunal.
459 U.S. at 466, n. 3[, 103 S.Ct. at 868, n. 3]. Prior to
Hewitt v. Helms, neither Wolff v. McDonnell nor its progeny
gave any indication that any individual or individuals other
than members of the Adjustment Committee would be
constitutionally required to review the plaintiff's placement
and continued confinement in segregation. Likewise, although
Ad.Reg. 804(II)(C) gives rise to a protected liberty interest,
804(II)(C) itself does not give any indication that the
plaintiff should be allowed to provide the shift supervisor
with a statement prior to the supervisor's review of the
plaintiff's placement in administrative segregation.
Therefore, the court concludes that the law prior to
Hewitt v. Helms was not so clearly established that the
defendants could fairly be said to have known that the failure
of a shift supervisor to provide an inmate with an opportunity
to present his views before the supervisor considered the
propriety of the inmate's continued confinement in
administrative segregation, although not previously identified
as unlawful, was prohibited. Harlow v. Fitzgerald, 457 U.S. at
819[, 102 S.Ct. at 2738]. Consequently, although the plaintiff
was denied a protected Fourteenth Amendment liberty interest
without due process, the defendants are entitled to a good
faith immunity defense. The plaintiff's motion for summary
judgment shall be denied as to this claim. The defendants'
motion for summary judgment shall be granted.
B. Adequacy of Committee Summaries
1. On September 29, 1980, Jones received three Adjustment
Committee hearings for disciplinary reports issued on
September 27, 1980. The three disciplinary reports were
written by three correctional officers based upon a single
incident which occurred on February 27, 1980. The three
hearings were held consecutively and, for all practical
purposes, the three summaries that were issued are
The plaintiff alleges that the Adjustment
Committee failed to give an adequate statement of the evidence
relied upon in finding the plaintiff guilty and failed to
state reasons supporting the specific disciplinary action
taken against him. To provide an inmate with the minimum
requirements of due process, the Adjustment Committee must
provide the inmate with a "`written statement by the fact
finders as to the evidence relied upon and reasons' for the
disciplinary action." Wolff v. McDonnell, 418 U.S. 539
94 S.Ct. 2963, 2979, 41 L.Ed.2d 935] (1974), cited in Aikens v.
Lash, 514 F.2d 55
, 60 (7th Cir. 1975), vacated on other
grounds, 425 U.S. 947[, 96 S.Ct. 1721
, 48 L.Ed.2d 191],
reinstated as modified on other grounds, 547 F.2d 372
1976). See also Heyes v. Walker, 555 F.2d 625
, 631 (7th Cir.
1977); Redding v. Fairman, 717 F.2d 1105
, 1114-16 (7th Cir.
1983). As the Supreme Court stated in Wolff v. McDonnell, the
considerations underlying this requirement are the protection
for a prisoner from collateral consequences of a disciplinary
action and encouragement of fair administrative decision
Written records of proceedings will thus
protect the inmate against collateral
consequences based on a misunderstanding of the
nature of the original proceeding.
Further, as to the disciplinary action itself,
the provision for a written record helps to
insure that administrators, faced with possible
scrutiny by state officials and the public, and
perhaps even the courts, where fundamental
constitutional rights may have been averred, will
act fairly. Without written records, the inmate
will be at a severe disadvantage in propounding
his own cause to or defending himself from
418 U.S. at 565[, 94 S.Ct. at 2979]; Hayes v. Walker, 555 F.2d
at 631-32; Redding v. Fairman, 717 F.2d at 1114.
In Hayes v. Walker, the Court of Appeals rejected as
inadequate an Adjustment Committee summary which stated: "Based
on our review of the violation report and the report by the
special investigator it is our motion that we find Mr. Hayes
guilty as charged. We find that Mr. Hayes is guilty of
conspiracy to incite to riot and commit mutinous acts." The
Committee report to inmate Hayes stated: "The committee's
decision is based on the violation report as written and upon
the report by the special investigator which during your
absence was made part of the record." 555 F.2d at 631-33 and n.
1; Redding v. Fairman, 717 F.2d at 1114-15.
In Redding v. Fairman, the Court of Appeals rejected as
inadequate summaries based "on all available evidence" or "all
evidence presented." The Court stated:
"The phrases `based on all available evidence'
or `all evidence presented' are conclusory; they
do not disclose what evidence forms the bases of
the Committee rulings. The Committee apparently
gives credence to the resident disciplinary
report in almost every case, but does not admit
to doing so in its summaries. Also, no reasons
are given for discounting the inmates'
717 F.2d at 1115. The Court further stated the distinction
between constitutionally adequate and inadequate summaries:
The line between constitutional adequacy and
inadequacy is a fine, but important one. When the
Committee writes "based on all available evidence
the resident is guilty," no agency or court can
discern the basis for the Committee's rulings.
If, however, the Committee writes "resident is
lying," . . . or another statement establishing the
evidence underlying its decision, then the inmate
is protected from a mischaracterization of the
disciplinary action when it comes under review.
717 F.2d at 1116 (emphasis added).
Unlike the summaries at issue in Hayes and Redding, the three
summaries provided to plaintiff Jones reflect the evidence
relied upon by the Adjustment Committee. The summaries indicate
that the Committee concluded, as a factual matter, that the
plaintiff caused a general disturbance by cursing and making
improper and disrespectful remarks to an employee. The
summaries indicate that the Committee's conclusion was based
upon the resident's statements (which were summarized on the
summary sheets) and the officer's report (which had been read
into the record in the presence of the plaintiff). Although the
summaries provided plaintiff Jones could have been more
detailed, the plaintiff was provided with the minimum
requirements of due process. The summaries sufficiently
establish the evidence underlying the Committee's determination
of the plaintiff's guilt and thereby adequately protect the
plaintiff against collateral consequences of a subsequent
review based upon mischaracterization of the disciplinary
action taken by the Pontiac administration.
Additionally, the three summaries at issue in the present
case are procedurally adequate for the same reasons two of
eighteen summaries were found adequate in Redding:
Evaluating the form summaries as a whole by
combining the sections "Record of Proceedings"
with the sections "Basis for Decision/Evidence
Relied Upon" rescues two of the eighteen
summaries from constitutional inadequacy. In the
section "Record of Proceedings" for plaintiff
Jones, the Committee noted in part: "Resident
states he struck resident due to he owed him
money." In the section "Basis for
Decision/Evidence Relied Upon," the Committee
testimony given." Because there was no conflict
between the resident disciplinary report and
testimony at the Committee hearing, it can be
assumed that the Committee relied on plaintiff
Jones' own testimony to find him guilty.
Similarly, the "Record of Proceedings" for the
February 4, 1980, hearing on plaintiff Tedder
states in part: "resident states he was not going
to be assigned with a Black, and this is why he
refused [his housing assignment]." The plaintiff
thus admitted his infraction, and the "Basis for
Decision" notes: "Resident's testimony given." It
therefore can be assumed that the Committee
relied on plaintiff Tedder's admission to find
him guilty, though the summary does not so state.
Accordingly, the summary for plaintiff Jones and
the summary for plaintiff Tedder's February 4,
1980, hearing satisfied minimum constitutional
717 F.2d at 1115-16.
In the present case, evaluating each summary as a whole by
combining the sections "Record of Proceedings" with the
sections "Basis for Decision/Evidence Relied Upon" rescues
these summaries from constitutional inadequacy. In the section
"Record of Proceedings" on plaintiff Jones' first summary, the
Committee noted in part: "Conversation was between Roberts and
myself. I made remarks to Roberts after he made derogatory
remarks to me." In the section "Basis for Decision/ Evidence
Relied Upon," the Committee noted "based on resident's
statements." As in Redding, because there was no conflict
between the resident's disciplinary report and testimony at the
Committee hearing, it can be assumed that the Committee relied
on plaintiff Jones' own testimony to find him guilty.
Similarly, the "Record of Proceedings" on plaintiff Jones'
second summary states in part: "I only made derogatory remarks
after Robinson harrassed me. He was drunk man." The plaintiff
thus admitted his infraction, and the "Basis for Decision"
notes: "Based on resident's statements." It therefore can be
assumed that the Committee relied on the plaintiff Jones'
admission to find him guilty.
The third Summary provided to the plaintiff Jones is even
less detailed than those at issue in Redding. However, based
upon the particular facts of the present case, the court
concludes that this Summary is also adequate. The court notes
that the three resident disciplinary reports issued to the
plaintiff arose from a single incident. Although the plaintiff
received three separate disciplinary hearings, the hearings
were held consecutively on September 27, 1980, at approximately
2:00 p.m. The court further notes that the plaintiff received
three identical, concurrent sentences of fifteen days in
disciplinary segregation and thirty additional days demotion to
"C" grade status. In the section "Basis for Decision" the
Committee notes: "Based on resident's statements." The section
"Record of Proceedings" states in part: "Officer Robinson was
drunk and started making derogatory remarks to me. He was
harrassing me, spitting all over me and my cell." Although the
Summary does not indicate that the plaintiff admitted facts
constituting the infraction, the language of the third Summary
clearly indicates that the plaintiff raises the same "defense"
he raised at each hearing, namely, that his improper conduct
was provoked by, and in retaliation to, improper conduct of
Consequently, under both analyses, the Summaries at issue in
the present case are constitutionally adequate for purposes of
the Due Process Clause. The plaintiff's motion for summary
judgment shall be denied. Summary judgment for the defendants
shall be granted.
2. However, due process requires not only a written
statement by the factfinders as to the evidence relied upon,
but also "reasons for the disciplinary action." Wolff v.
McDonnell, 418 U.S. 539, 564[, 94 S.Ct. 2963, 2978, 41 L.Ed.2d
935] (1974). In Wolff, the importance of each procedural
requirement was considered in some detail, but the need for
"reasons" was simply stated, without further amplification. Id.
In Hayes v. Walker, 555 F.2d 625 (7th Cir. 1977),
the Seventh Circuit Court of Appeals addressed this
issue as follows:
In United States ex rel. Richerson v. Wolff,
525 F.2d 797 (7th Cir. 1975), cert. denied
425 U.S. 914, 96 S.Ct. 1511, 47 L.Ed.2d 764, a case
involving the adequacy of reasons for the denial of
parole, this court stated that the following test
was consistent with Mr. Justice White's analysis in
Wolff of the minimum due process requirements for
the revocation of a prisoner's good time credit:
In United States ex rel. Johnson v. Chairman of
New York State Board of Parole, 500 F.2d 925 (2nd
Cir.) vacated as moot, 419 U.S. 1015, 95 S.Ct.
488, 42 L.Ed.2d 289 (1974), the Court said at
To satisfy minimum due process requirements
a statement of reasons should be sufficient
to enable a reviewing body to determine
whether parole has been denied for an
impermissible reason or for no reason at all.
For this essential purpose, detailed findings
of fact are not required, provided the
Board's decision is based upon consideration
of all relevant factors and it furnishes to
the inmate both the grounds for the
decision . . . and the essential facts upon
which the Board's inferences are based. . . .
526 F.2d at 804.
The institutional adjustment committee failed
in the present case to give an adequate statement
as to . . . reasons for the action taken.
555 F.2d at 632-33; United States ex rel. Speller v. Lane,
509 F. Supp. 796
, 800-01 (S.D.Ill. 1981).
In the present action, the "disposition and/or disciplinary
action" section of the three summaries are essentially
identical.*fn8 Each summary indicates the committee's
determination of the plaintiff's violation of Ad.Reg.
804(II)(A)(1), (2), (4), and (8). Each summary sentences the
plaintiff to fifteen days in segregation and thirty additional
days on "C" grade status. Summaries two and three indicate
that their sentences run concurrent with that imposed in
summary one. However, each summary is devoid of reason or
explanation for the specific disciplinary action taken against
the plaintiff. Under Wolff and Hayes, the plaintiff was
deprived of his right to procedural due process. Cf. Redding v.
Fairman, 717 F.2d at 1115 n. 4 (none of eighteen summaries
stated reasons underlying the nature and amount of punishment
imposed); Smith v. Stoner, 594 F. Supp. 1091 (N.D.Ind. 1984) (no
explanation as to the severity of sanctions imposed for
findings of guilt of violations of rules); Craig v. Franke,
478 F. Supp. 19, 21 (E.D.Wis. 1979) (well justified decision based
on undisputed facts nonetheless failed to state reasons for
imposing segregation). Consequently, the plaintiff's motion for
summary judgment shall be granted.
C. The Right to Call Witnesses
Plaintiff Jones alleges that the defendants failed to call
Officer Robinson as requested by the plaintiff at his
Adjustment Committee hearing on September 29, 1980. In
Wolff v. McDonnell, the court held that "the inmate facing
disciplinary proceedings should be allowed to call witnesses to
present documentary evidence in his defense when permitting him
to do so will not be unduly hazardous to institutional safety
or correctional goals." 418 U.S. at 566[, 94 S.Ct. at 2979];
see also Baxter v. Palmigiano, 425 U.S. 308
, 321[, 96 S.Ct.
1551, 1559, 47 L.Ed.2d 810] (1976). Furthermore, "some support
for the denial of a
request for witnesses [should] appear in the record [enabling]
a court to make [a] limited inquiry into whether the broad
discretion of prison officials has been arbitrarily
exercised." Hayes v. Walker, 555 F.2d 625
, 630 (7th Cir. 1977).
The defendants claim that the plaintiff received a
disciplinary report containing the witness request form two
days before the Adjustment Committee hearing, yet the
plaintiff failed to properly request witnesses in accordance
with Administrative Regulations. However, the plaintiff claims
that he did not receive the disciplinary reports until
three hours before the Adjustment Committee hearing and
consequently did not have an opportunity to properly request
witnesses. Obviously, this is a genuine issue of material fact
and summary judgment is not appropriate at this time.
Therefore, the plaintiff's motion for summary judgment shall be
denied as to this issue.
D. Impartial Decision Maker
On April 5, 1981, the plaintiff Jones allegedly refused to
move to his assigned cell. At the Adjustment Committee hearing
on April 10, 1981, Jones requested that the defendant Lowery
remove himself from the Committee. Plaintiff Jones informed
the Committee that defendant Lowery had been named as a
defendant in this case which was pending at the time of the
committee hearing. Lowery told Jones and the committee that he
was unaware of this case, although he had been served with
process on December 5, 1980. See Plaintiff's Exhibit N. The
Committee, chaired by the defendant Lowery, found the plaintiff
guilty of rules violations and sentenced him to seven days in
The issue of disqualification of Adjustment Committee
members was addressed recently by the Court of Appeals in
Redding v. Fairman, 717 F.2d 1105 (7th Cir. 1983):
The Third Circuit has ruled, following Justice
Marshall's concurrence in Wolff [v. McDonnell,
418 U.S. 539, 592, 94 S.Ct. 2963, 2992, 41 L.Ed.2d 935
(1974)] that due process prohibits "only those
officials who have a direct personal or otherwise
substantial involvement, such as major
participation in a judgmental or decisionmaking
role, in the circumstances underlying the charge
from sitting on the disciplinary body". Rhodes v.
Robinson, 612 F.2d 766, 773 (3rd Cir. 1979). . . .
Nevertheless, we believe that circumstances other
than those arising directly out of the disciplinary
process may raise such doubts about the integrity
of the hearing procedure and the impartiality of
its participants so as to trigger due process
717 F.2d at 1113. The district court was directed "to evaluate
the circumstances involved in the lawsuits and determine
whether disqualification is required. Among other
considerations, the district court should determine the extent
of the Committee members' personal involvement in those
Summary judgment is not appropriate at this time. The
defendant Lowery was served with process in this case on
December 5, 1980, four months prior to the Adjustment
Committee hearing of April 5, 1981. See Plaintiff's Exhibit N.
However, the court notes that substitute service was made. The
Marshal's return shows he served the process on Lynette
Pharris, the secretary to the Assistant Deputy Director of the
Department of Corrections in Springfield, Illinois. The
plaintiff has not alleged, and there is no indication that the
defendant was personally aware of the pending lawsuit prior to
the Adjustment Committee hearing of April 5, 1981. Therefore,
at least one question of material fact remains concerning the
plaintiff's claim of denial of an impartial decision maker,
i.e., the extent of Lowery's personal knowledge of the pendency
of the suit. Consequently, the plaintiff's motion for summary
judgment shall be denied.
IT IS THEREFORE ORDERED that the plaintiff Pardo's motion
for summary judgment on the issue of liability on the
plaintiff's due process claim concerning placement
in administrative segregation is granted.
IT IS FURTHER ORDERED that the defendants' motion for
summary judgment on that issue is denied.
IT IS FURTHER ORDERED that the defendants' motion for
summary judgment on the plaintiff Jones' due process claim
concerning placement in administrative segregation is granted.
IT IS FURTHER ORDERED that the plaintiff Jones' motion for
summary judgment on that issue is denied.
IT IS FURTHER ORDERED that the plaintiff Jones' motion for
summary judgment on the issue of liability on the plaintiff's
due process claim concerning the adequacy of Committee
Summaries stating the evidence relied upon in finding the
plaintiff guilty is denied.
IT IS FURTHER ORDERED that summary judgment for the
defendants is granted on that issue.
IT IS FURTHER ORDERED that the plaintiff Jones' motion for
summary judgment on the issue of liability on the plaintiff's
due process claim concerning the adequacy of committee
summaries stating the reasons for the specific disciplinary
action taken against him is granted.
IT IS FURTHER ORDERED that the plaintiff Jones' motion for
summary judgment on the plaintiff's remaining claims
concerning the right to call witnesses and the right to an
Adjustment Committee composed of impartial committee members