Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 83 C 372-Allen Sharp, Judge.
Walter J. Cummings, Richard D. Cudahy and John L. Coffey, Circuit Judges. Coffey, Circuit Judge, concurring in the result in part and dissenting in part.
Lokmar Yazid Abdul-Wadood, a state prisoner, brought an action pursuant to 42 U.S.C. § 1983 against certain state prison officials. Abdul-Wadood claims that the prison officials violated his right to due process by holding his administrative classification hearing in the absence of his lay advocate and, later, by confining him to disciplinary segregation without charging him with a rule violation or providing him with a hearing. Abdul-Wadood appeals a grant of summary judgment in favor of the defendants on both issues. He contends also that the district court improperly dismissed his damage claim and that it abused its discretion in denying him court-appointed counsel.
We agree that the damage claim should not have been dismissed at this stage. We reverse the grant of summary judgment in part and vacate and remand with respect to the damage claim.
Abdul-Wadood, serving a sentence for murder and robbery, was transferred from the Indiana Reformatory to the Indiana State Prison on December 29, 1982, for classification reasons. Abdul-Wadood received notice stating that he had been placed in administrative segregation and that a hearing would follow. A classification hearing was held on January 7, 1983. Abdul-Wadood designated a lay advocate to represent him at the hearing. Abdul-Wadood appeared at the hearing, but his lay advocate allegedly did not. Despite his protests, the administrative segregation committee proceeded with the hearing and formally recommended that he be placed in administrative segregation in the New Service Building Segregation Unit (the "NSB Unit"), to which he already had been assigned.
On January 25, 1983, there was an attempted escape from the NSB Unit. Abdul-Wadood did not participate in the escape attempt. In response to the incident, the wardens imposed upon all inmates in the NSB Unit restrictions on visitation, reading material, clothing and use of the commissary and the telephone. Abdul-Wadood claims that these restrictions are the same as those imposed on inmates in disciplinary segregation.*fn1 He claims further that these restrictions continued until June. According to Duckworth, the prison superintendent, and Cohn, the assistant superintendent, the inmates were restored full visitation rights one week after the escape attempt.
In August 1983, Abdul-Wadood brought a pro se action under 42 U.S.C. § 1983 against Duckworth and Cohn, alleging that they violated his due process rights both by placing him in disciplinary segregation for several months without charging him as a rule violator and by conducting his administrative segregation reclassification hearing without the presence of his lay advocate. He sought damages for emotional distress and mental anguish.*fn2
Abdul-Wadood requested court-appointed counsel. The district court responded by giving him sixty days to demonstrate to the court that he had attempted to obtain counsel on his own. More than ten months later, the district court denied Abdul-Wadood's request for counsel.
Meanwhile, Abdul-Wadood was attempting to take discovery on his own. In October 1983, he wrote a letter to the court, requesting a copy of the guidelines that govern the handling by prison officials of disciplinary matters. The court did not respond. In January 1984, Abdul-Wadood filed a document request, seeking production of his central file, prison reports, internal memoranda relating to his status and copies of Indiana prison rules, regulations and policy statements. The defendants objected to producing the documents, claiming that Abdul-Wadood had access to his institutional packet via his prison counselor, a method less burdensome to the defendants, and that many of the documents in his institutional packet were unnecessary or irrelevant to his case.
Abdul-Wadood moved to compel production of the documents and later moved to depose Duckworth, Cohn and other prison officials. Three months later, the court denied his motion to depose, ruling that he had the "ability to utilize other discovery tools available to him." Abdul-Wadood v. Duckworth, No. S 83-0372, order at 1 (N.D. Ind. Dec. 6, 1984). The court apparently never ruled on the motion to compel. Abdul-Wadood's only successful attempt at discovery was Duckworth's response to the first set of interrogatories.
In May 1985, the district judge conducted a hearing during which he asked Abdul-Wadood several questions relating to his claims against Duckworth and Cohn. Concerning damages, the judge asked, "You do have claims for money damages against Jack Duckworth and Edward Cohen [sic] in their official capacities?" Abdul-Wadood answered, "Yes." Hearing Transcript at 18-19. The court then dismissed the damage claim against Duckworth and Cohn in their official capacities.
Abdul-Wadood moved to reconsider the dismissal of his damage claim, asking the court to consider his pro se complaint more liberally and again requesting appointment of counsel. The court denied the motion because Abdul-Wadood had not "indicated to [the] court nor has he served defendants with a complaint in any capacity other than their official capacity." Abdul-Wadood v. Duckworth, No. S 83-0372, order at 1 (N.D. Ind. June 22, 1985).
The court ultimately granted summary judgment for Duckworth and Cohn on all of Abdul-Wadood's claims, finding no basis for relief for Abdul-Wadood under section 1983.
To affirm the district court's summary disposition of the case, we must find that the pleadings, affidavits and answers to interrogatories reveal "no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Caldwell v. Miller, 790 F.2d 589, 597 (7th Cir. 1986). Any reasonable inferences must be drawn in favor of Abdul-Wadood, the non-moving party. Id.
We consider first whether Abdul-Wadood was confined to administrative segregation in violation of the fourteenth amendment because his January 7, 1983 classification hearing was conducted in the absence of his lay advocate. To invoke the protections of procedural due process, Abdul-Wadood must demonstrate that he had at stake a protected liberty interest. Morrissey v. Brewer, 408 U.S. 471, 481-82, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Although the due process clause itself does not give rise to a liberty interest in remaining in the general prison population, Hewitt v. Helms, 459 U.S. 460, 466-67, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983); Meriwether v. Faulkner, 821 F.2d 408, 414-15 (7th Cir.), cert. denied, 484 U.S. 935, 108 S. Ct. 311, 98 L. Ed. 2d 269 (1987), Indiana statutes and regulations may provide Abdul-Wadood with a protected liberty interest in remaining free from the restrictions of administrative segregation. Helms, 459 U.S. at 470-71.
It is not clear to us that Indiana has created for Abdul-Wadood the prerequisite liberty interest.*fn3 In any event, we need not decide this issue, for, even if triggered, the procedural guarantees of the due process clause, as interpreted in Helms, do not entitle him to a lay advocate at his classification hearing. Helms requires only "an informal, nonadversary evidentiary review," which includes advance notice of the reason for placement in administrative segregation and an opportunity for the prisoner to present his views to the decisionmaker. Id. at 476. The procedural safeguards required for confinement in administrative segregation were satisfied in the case before us.
Thus, we hold that Abdul-Wadood's assignment to administrative segregation, following a hearing in which the lay advocate was not present, did not violate his right to procedural due process.
We next examine whether, after the attempted prison escape by other prisoners in the NSB Unit on January 25, 1983, restrictions were imposed upon Abdul-Wadood in violation of the due process clause. Abdul-Wadood concedes that immediately following the incident, prison officials had the authority to take any necessary emergency action, "including temporarily restricting the rights of inmates like plaintiff who were not charged with disciplinary violations."*fn4 Plaintiff's Supplemental Brief at 19. Abdul-Wadood claims, however, that once the state of emergency ended, the conditions -- which were identical to those imposed upon prisoners relegated to disciplinary segregation -- could be continued in effect only if Abdul-Wadood were found guilty of a rule violation after notice and a hearing sufficient to satisfy the procedural due process requirements set forth in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974).*fn5
Duckworth and Cohn respond that the restrictions were placed on Abdul-Wadood pursuant to a "lockdown" of the entire unit following the attempted escape. As such, Abdul-Wadood's administrative segregation status remained unchanged, presumably until June. Because the removal of various privileges was not carried out as a punishment for misconduct on Abdul-Wadood's part, these deprivations cannot fairly be said to involve disciplinary segregation. Hence, according to the defendants, Abdul-Wadood was not entitled to the procedural safeguards associated with disciplinary action when restrictions were imposed at the time of the attempted prison escape. The district court, in granting summary judgment for Duckworth and Cohn, held simply that the due process requirements of McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963, and Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864, had been satisfied.*fn6
The parties do not dispute that, if Abdul-Wadood had been in fact subjected to disciplinary action, he would have had at stake a liberty interest sufficient to invoke the protection of the due process clause.*fn7 In that connection, we cannot accept the defendants' position that because Abdul-Wadood's segregation status was never officially changed in connection with the January through June restrictions, he could not have been deprived of a protected liberty interest during that long period. The label prison officials attach to their actions is not alone determinative of the nature of a prisoner's deprivation. See McKinnon v. Patterson, 568 F.2d 930, 938 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978); Carlo v. Gunter, 520 F.2d 1293, 1295 (1st Cir. 1975).
On the other hand, merely because Abdul-Wadood's loss of privileges was qualitatively equivalent to that experienced by prisoners segregated for disciplinary reasons does not entitle him to the full range of procedural safeguards set forth in McDonnell, 418 U.S. at 563-72.*fn8 If the restrictions were imposed upon the unit as a whole, as a measured response to an emergency, and were continued in force until June to ensure the security of the unit, the restraints on Abdul-Wadood's liberty do not implicate due process guarantees. Cf. Caldwell, 790 F.2d at 602 (unless state statutes or regulations create liberty interest, lock-down restrictions do not trigger procedural safeguards of due process clause).
Thus, the issue becomes whether the restrictions placed on Abdul-Wadood were for the purpose of punishing him -- for being a troublemaker generally or for committing as yet unidentified bad acts -- or, alternatively, served to secure the NSB Unit from further escape attempts. If the former, Abdul-Wadood was presumably ...