Appeal from the United States District Court for the Central District of Illinois, Peoria Division, No. 85 C 1185 -- Michael M. Mihm, Judge.
Flaum, Easterbrook and Kanne, Circuit Judges. Easterbrook, Circuit Judge, concurring.
Plaintiffs-appellants ("plaintiffs"), four white inmates at Illinois' Pontiac Correctional Center ("Pontiac"),*fn1 instituted this class action on behalf of themselves and all other present and future white inmates housed in the maximum security units of Pontiac. On March 16, 1985, plaintiffs filed a motion for a preliminary injunction to compel defendants-appellees, Illinois Department of Corrections and Pontiac Correctional Center administrators, (collectively "administration"), to adhere to and enforce Illinois Department of Corrections ("IDOC") regulations prohibiting gang activities at Pontiac. Plaintiffs alleged that the administration's failure to enforce those IDOC regulations violated their 14th Amendment right to equal protection and certain federal regulations. After implementing a limited protective order for the safety of the inmates who were scheduled to testify, the court heard evidence on the motion for a preliminary injunction. In a thorough opinion, the district court denied plaintiffs' motion for a preliminary injunction finding that plaintiffs had failed to show a reasonable likelihood of success on the merits of their 14th Amendment claim and their federal regulatory claim. Specifically, the court found that plaintiffs had failed to present evidence that the administration's policies were intentionally discriminatory or that a nexus existed between the administration's allegedly discriminatory policies and the federally funded program. Because we agree with the district court's assessment that the appellants are not reasonably likely to succeed on the merits of their claims and because we find no error in the court's conduct of the hearing, we affirm.
Although we do not intend to reiterate the district court's lengthy factual findings, a brief exposition of the facts is necessary.
Pontiac Correctional Center, located in Pontiac, Illinois, is one of four maximum security facilities in Illinois. On the average, Pontiac houses 2000 inmates. At the time the district court made its findings, there were approximately 1800 inmates in Pontiac's general population and 260 inmates in the Pontiac protective custody unit. The protective custody unit is designed "to ensure the safety of inmates determined to be vulnerable to attack and intimidation." Inmates in the protective custody unit are separated from the galleries housing all other Pontiac inmates, collectively referred to as the "general population." Generally, an inmate in protective custody is entitled to most of the privileges to which an inmate in the general population is entitled although an inmate in protective custody is usually confined more hours per day, has less opportunity to obtain certain prison jobs, and receives privileges at different times than the general population. All these measures are necessary for the inmate's own protection.
An inmate may request a transfer to protective custody but is usually somewhat reluctant to do so because of the stigma attached to such a request. For example, an inmate seeking protective custody may often be branded as a "stoolie", "wimp" or homosexual by the general population. Although a request for protective custody is immediately honored by the prison administration, that request is subject to an initial evaluation and reevaluation every 30 days thereafter. If an inmate is not able to justify his initial or any subsequent request for protective custody, he is returned to the general population.
Only 12% of the total inmate population at Pontiac is white, yet forty percent of the total white inmate population is in protective custody while only 9% of the total black population and 13% of the hispanic population are in protective custody. The inordinately*fn2 high number of white inmates in protective custody is directly related to the predominately black gang-activity at Pontiac.
At the hearing on the motion for a preliminary injunction, it was estimated that anywhere from 75% to 99.5% of the total inmate population at Pontiac are gang members. Although the district court found that the number was probably closer to 75%, defendant-appellee, Michael Lane, the director of the Illinois Department of Corrections, testified that about 90% of all Pontiac inmates are gang members or are gang-affiliated. A portion of the inmates entering Pontiac, who are not gang members, ultimately "choose" to affiliate or, in the vernacular, "ride" with or "aid and assist" a gang. Inmates, who ride with gangs are offered protection by the gang but must pay for that protection literally and figuratively by performing any number of deeds, ranging from carrying weapons to performing a "hit" for gang members.
Virtually all gangs are black or hispanic.*fn3 White inmates do not normally become members of the black or hispanic gangs but may only "ride" the non-white gangs. All inmates, who are not gang members, are "strongly urged" and, more often than not, physically coerced to affiliate with a gang. Although a number of both black and white inmates refused to affiliate with a gang, "very few white inmates in general population were not gang affiliated." That is to say, the white inmates, who decline to accept an invitation to become gang-affiliated, normally may be found in the Pontiac protective custody unit.
Gang activity, including extortion, possession of contraband, intimidation, and physical and sexual abuse, is expressly prohibited by Pontiac prison rules. Further, the administration, as a matter of departmental policy, does not officially recognize the existence of various prison gangs. The fact is, however, that the existence of those gangs is a reality with which the administration is confronted daily. In an attempt to realistically deal with gang-related problems, prison officials discipline gang "activity" but do not discipline non-violent displays of gang "membership." However, these non-violent exhibitions of gang membership create an environment in which the gangs flourish and as a consequence, an environment in which prohibited gang activities can and do take place with alarming intensity and frequency. It is not an overstatement that the gang "situation in Illinois prisons" has reached "the crisis stage."
B. The District Court's Decision
Plaintiffs filed a motion for a preliminary injunction to enjoin the administration's failure to enforce the rules against gang activities in Pontiac. Plaintiffs argued the administration predominantly favored black and hispanic gang members by adopting a policy of least resistance to gang activity. Thus, plaintiffs say that the administration purposefully and intentionally discriminated against white inmates, who generally were not gang members, in violation of plaintiffs' 14th Amendment right to equal protection. Additionally, plaintiffs claim that the administration's discriminatory practices violated 28 C.F.R. § 42.101 et seq., prohibiting discrimination in any program receiving federal funds.
After hearing the evidence in support of the motion for a preliminary injunction, the district court, relying on our decisions in Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380 (7th Cir. 1984) and Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429 (7th Cir. 1986), initially outlined the legal requirements to which any motion for a preliminary injunction is subject. The court found that before a preliminary injunction will issue, the movant must show (1) that he has no adequate remedy at law and that the movant faces irreparable harm if the preliminary injunction is not granted; (2) the movant has some likelihood of success on the merits of his claims; (3) the benefit to the movant of granting the preliminary injunction outweighs any harm the non-movant might suffer and (4) the public interest will not be disserved by the issuance of the injunction. The district court then noted that if plaintiffs could show, by some evidence, that they had been deprived of a constitutional right they would, as a matter of law, also satisfy the burden of showing irreparable harm. Thus, the keystone to plaintiffs' motion for a preliminary injunction was whether plaintiffs might reasonably be expected to succeed on the merits of the claim that the administration deprived them of their 14th Amendment right to equal protection.
To prevail on their 14th Amendment claim, the district court ruled that plaintiffs were required to show that the administration's actions not only had a disparate impact on them as a class, but that those actions were purposefully undertaken. Based on the evidence adduced at the hearing on plaintiffs' motion, the district court found that plaintiffs had failed in both regards. First, plaintiffs failed to make a "threshold showing that there is an invidious classification as they have claimed." The court based this finding on the fact that plaintiffs presented no evidence of the treatment received by black or white inmates who, though not gang members, continued to live in general population. Nor did the plaintiffs show that all white inmates in protective custody were there because of pressure to become gang members. Finally, plaintiffs failed to present evidence that black inmates in protective custody were not forced into protective custody by gang members. In short, while the white inmates, who testified that they had been forced into protective custody, were credible, no evidence by other inmates, black or white, was offered and the court simply could not find that only one group -- namely white non-gang member inmates in protective custody -- were in protective custody because of gang activity.
Second, the court found that even if defendants' actions resulted in an invidious classification of inmates, there was no evidence that defendants acted with the intent to discriminate. In so holding, the district court rejected plaintiffs' argument that a 14th Amendment equal protection claim can be based on something less than purposeful discrimination. Plaintiffs argued that the administration had several alternative means of dealing with gang-related activities. According to plaintiffs, the administration chose an alternative in reckless disregard of the impact that alternative would have on white non-gang member inmates. Because the impact on white inmates was clearly foreseeable, the administration must have intended the impact and therefore must have been discriminatorily motivated. The administration, on the other hand, argued that an intent to discriminate cannot be inferred from the decision to adopt a certain policy despite the fact that the resulting racially disparate impact might have been foreseeable. Without conceding that reckless disregard is the appropriate standard, the administration also argued that they made their policy decisions in good faith.
After reviewing evidence presented by the parties' expert witnesses, the court concluded that there had been egregious lapses in Pontiac's security measures and in the administration's exercise of judgment. However, the court held that the decision to implement a policy which curtailed only gang "activity", as opposed to gang "membership," was not made in intentional disregard of the impact that decision would have on white inmates. Although the district court did not view non-violent displays of gang membership at Pontiac "with the same measure of tolerance that the Department of Corrections evinces," the court concluded that the administration's chosen policy of limiting overt gang activity was probably the best option available to the administration. Thus, plaintiffs' equal protection claim was substantially without merit.
Then, based on Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979), the district court held that a policy's disproportionate impact on a suspect class (assuming a class existed) coupled with evidence of the foreseeability of that impact is not sufficient to prove discriminatory intent where the policy selected is a legitimate one. Relying on Feeny, the district court said:
The district court ruled that the administration's policy, relating to gang activity at Pontiac, was a legitimate one. The court found that although plaintiffs' expert would not have selected the particular policy implemented by the Pontiac administration, even plaintiffs' expert agreed that the chosen policy was legitimate and, as the court found, adopted in good faith to control violent gang behavior.
As a final matter, the district court also found that given the legitimacy of the defendants' policy and the crisis state of the gang situation at the Illinois prison, the plaintiffs' equal protection claim lacked merit because the state had a compelling interest in implementing and ensuring the viability of its present policies.
Based on all these factors, the district court concluded there was only a "remote possibility, not a reasonable likelihood, that plaintiffs [could] succeed in their equal protection claim."
The district court next ruled that there was only a slight possibility that plaintiffs' federal regulatory claim would succeed since plaintiffs failed to submit any evidence of a nexus between the administration's allegedly discriminatory actions and the program under which Pontiac received federal funds.
Having found that there was little likelihood plaintiffs could prevail on the merits of their claims, the court very briefly addressed the balance of equities in issuing a preliminary injunction, finding that the state's compelling interest in controlling gangs would be hindered if an injunction were issued. The court also ruled that the issuance of a preliminary injunction would disservice the public.
On appeal, plaintiffs contend the administration's reckless disregard of their well-being in adopting certain policies, is tantamount to intentional discriminatory behavior. Plaintiffs claim that they need not show a nexus between the administration's actions and the federal funds received by Pontiac in order to prevail on their federal regulatory claim. Plaintiffs also appeal from a limited protective order entered by the district court which allegedly hampered their ability to present their case.
A. The Fourteenth Amendment Claim
Plaintiffs argue that they presented evidence that the administration's policy of suppressing only gang "violence" and not gang "membership" in effect, created a class of white non-gang members which was forced into protective custody. This class, they allege, was based on race and was therefore a suspect class*fn4 as a matter of law. Plaintiffs maintain that the district court erred in requiring them to show that black non-gang members, in or out of protective custody, were excluded from the effect of the administration's policy or that white non-gang members in protective custody were all in protective custody because of the administration's policies. Additionally, plaintiffs contend they proved that the administration was discriminatorily motivated in selecting a policy of tacit acceptance, by establishing that it did not select the least segregative policy from a number of alternative policies. In other words, plaintiffs argue intent may be inferred where the disparate consequences of the policy were obvious to the administration from the start.
Plaintiffs acknowledge the Feeny decision and the district court's finding that the administration's method of dealing with the gang problem at Pontiac was legitimate. However, plaintiffs argue that although the administration's express policy may have been legitimate, the policy actually implemented was not legitimate and therefore was not subject to the Feeny limitations. Put another way, plaintiffs contend that proof of the obviously discriminatory consequences of ...