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).
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
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].
"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. ...