Appeal from the United States District Court for the Southern District of Illinois, Benton Division. Nos. 82 C 4144, 83 C 4017 - James L. Foreman, Judge.
Before WOOD and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge. The primary questions presented in this appeal are (1) whether officials*fn1 of the United States Penitentiary at Marion, Illinois ("Marion"), may impound the plaintiff inmate's commissary account pending his compliance with a restitution order imposed for destroying government property in violation of prison regulations, and (2) whether the combined effect of attorney visitation and law-library use restrictions on the plaintiff, who is housed in the Control Unit at Marion, impermissibly burdens his right of access to counsel and to the courts. The plaintiff brought a Bivens action*fn2 challenging the impoundment of his inmate account and the adequacy of the Control Unit legal access program. The district court entered summary judgment against the plaintiff on the impoundment claim, and, following a trial, entered judgment against him on the access claim. For the reasons stated below, we will affirm.
The plaintiff, John Stanley Campbell, is a federal inmate housed in the Control Unit of Marion. Marion is the highest level maximum security prison in the federal penitentiary system. The Control Unit is designated for those inmates deemed unfit for the general population at Marion because they pose a threat to others or to the orderly operation of the institution. See, e.g., McCollum v. Miller, 695 F.2d 1044 (7th Cir. 1982); Garza v. Miller, 688 F.2d 480 (7th Cir. 1982), cert. denied, 459 U.S. 1150, 103 S. Ct. 796, 74 L. Ed. 2d 1000 (1983); Bono v. Saxbe, 620 F.2d 609 (7th Cir. 1980).
Campbell, acting pro se, brought two civil rights suits, in May of 1982 and January of 1983 respectively, alleging various violations of his constitutional rights arising out of the conditions of his incarceration at Marion, and his treatment by corrections personnel in a number of incidents. In January of 1984, counsel was appointed by the district court to represent Campbell.*fn3 In February of 1984, Campbell filed an amended complaint alleging four causes of action, only two of which, Counts II and III, are pursued on appeal. In Count II, Campbell alleged that he was deprived of property without due process of law when, as part of disciplinary actions taken against him, his inmate commissary account was impounded pending his compliance with a restitution order. In Count III, Campbell claims that the Control Unit restrictions imposed upon his access to counsel and to legal materials impermissibly burden his right of access. The district court entered summary judgment against Campbell on Count II. Following a trial, the court entered judgment against Campbell on Count III. Campbell appeals from both rulings.
A. PROCEDURAL DUE PROCESS CLAIM
At an Institution Discipline Committee hearing on October 11, 1982, Campbell confessed to destroying government property in violation of prison regulations. The Discipline Committee ordered Campbell to make restitution in the amount of $1,445.68, and ordered Campbell's inmate commissary account, which contained approximately $60.00, impounded pending Campbell's compliance with the restitution order.
Campbell claims that the impoundment of his inmate account violated his right to procedural due process under the Fifth Amendment. Campbell concedes that Marion officials have authority, under 18 U.S.C. § 4042(3), to discipline federal inmates,*fn4 and that federal prison regulations allow both for monetary restitution and the loss of commissary privileges as disciplinary sanctions for the destruction of government property. 28 C.F.R. § 541.13 (Table 3) (1985). Campbell argues, nonetheless, that prison authorities should have either prosecuted him for damage to government property and obtained an order of restitution under 18 U.S.C. § 3579,*fn5 or commenced a civil tort action under 28 U.S.C. § 1345.*fn6 He concludes that "by foregoing the established procedures of either restitution in a criminal case or in a civil action in tort, the [prison authorities] denied [him] his rights to due process of law." We disagree.
It would appear that Campbell is not arguing that the Federal Bureau of Prisons ("Bureau") exceeded its statutory authority in promulgating 28 C.F.R. § 541.13,*fn7 nor does he argue that the regulation itself is unconstitutional. Moreover, it is unclear whether Campbell argues that it is the combined effect of the restitution and the impoundment orders which violates due process, or whether either order standing alone does so. Because, as we explain below, the disciplinary proceedings prior to the impoundment order afforded Campbell due process, we need not discuss the alternative constructions of Campbell's argument.
The Fifth Amendment prohibits the federal government from depriving a person of life, liberty, or property without due process of law. The constitutional protections encompassed by the Due Process Clause do not abate at the time of imprisonment. Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 3206, 82 L. Ed. 2d 393 (1984) (O'Connor, J., concurring). To analyze Campbell's claim, we must determine (1) whether the requirements of due process apply to his inmate account; and (2) if so, what process is due. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 1491-93, 84 L. Ed. 2d 494 (1985); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972); Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982).
It is beyond dispute that Campbell has a property interest in the funds on deposit in his prison account. See, e.g., Quick v. Jones, 754 F.2d 1521 (9th Cir. 1984); Jensen v. Klecker, 648 F.2d 1179, 1183 (8th Cir. 1981); Sell v. Parratt, 548 F.2d 753, 757 (8th Cir.), cert. denied, 434 U.S. 873, 98 S. Ct. 220, 54 L. Ed. 2d 152 (1977). Yet, Campbell does not argue, nor could he, that the government has caused him to forfeit these funds or to pay them over to it. He complains, rather, that he may no longer use in a particular way property that is his. It is difficult to say whether Campbell's claim, so characterized, implicates a property interest or a liberty interest. In any event, his due process claim must be supported by a protected interest in the use of his commissary account. Loudermill, 470 U.S. at , 105 S. Ct. at 1491; Shango, 681 F.2d at 1097.
For the purposes of the Due Process Clause, property interests must be found in state or federal law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972); Shango, 681 F.2d at 1097. Liberty interests, however, may originate in the Constitution as well. Hewitt v. Helms, 459 U.S. 460, 466, 103 S. Ct. 864, 869, 74 L. Ed. 2d 675 (1983); Mathews v. Fairman, 779 F.2d 409, 412 (7th Cir. 1985); Shango, 681 F.2d at 1097. Campbell does not point to, nor do we see, a liberty interest arising out of the Constitution itself to support his due process claim. Thus, whatever interest is implicated by Campbell's claim must be created by state or federal law. Because the analysis for property and liberty interests created by state or federal enactments is the same, Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974); Shango, 681 F.2d at 1097, the ambiguity in Campbell's argument as to whether he is asserting a property or a liberty interest in the use of his inmate account is inconsequential to the disposition of his claim. Since Campbell is a federal inmate, we confine our inquiry to federal law (here, federal prison regulations) involving inmate commissary accounts.
Although a protected interest may be created through the enactment of regulatory measures, see, e.g., Wolff, 418 U.S. at 557, 94 S. Ct. at 2975 (good-time credits); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979) (parole); Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980) (transfer to mental institution), the regulation must support a claim of entitlement to the benefit in question.*fn8 We do not look to the weight or importance of that benefit to the individual,*fn9 but rather to the manner in which it was conferred. Greenholtz, 442 U.S. at 7, 99 S. Ct. at 2103; Jago v. Van Curen, 454 U.S. 14, 17, 102 S. Ct. 31, 34, 70 L. Ed. 2d 13 (1981). Unless the regulation limits an official's discretion in denying the benefit to "objective and defined" criteria, no protected interest has been created.*fn10 Olim v. Wakinekona, 461 U.S. 238, 249, 103 S. Ct. 1741, 1747, 75 L. Ed. 2d 813 (1983) (quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S. Ct. 2460, 2465, 69 L. Ed. 2d 158 (1981) (Brennan, J., concurring); Hewitt, 459 U.S. at 471-72, 103 S. Ct. at 871; Mathews, 779 F.2d at 413; Achacoso-Sanchez v. INS, 779 F.2d 1260, 1264-65 (7th Cir. 1985). Of course, once it is determined that a protected interest exists, it is no longer the prerogative of the promulgating agency to define the procedures to be followed in protecting that interest; that is a matter of constitutional law. Loudermill, 470 U.S. at , 105 S. Ct. at 1487; Logan v. Zimmerman Brush Co., 455 U.S. 422, 432, 102 ...