and an injunction ordering the MCC to accommodate the needs of wheel-chair bound inmates and to insure that the medical and rehabilitative needs of handicapped prisoners are met.
Defendants moved to dismiss on various grounds. First, they argued that the Constitutional claims are inadequate as a matter of law or that qualified immunity bars Crowder from proceeding on them. Further, they argued that the ADA claim is invalid because the ADA does not apply to the federal government. Finally, they argued that the Rehabilitation Act and Architectural Barriers Act claims must fail as well due to failure to exhaust administrative remedies, naming the improper parties, the unavailability of monetary damages and mootness.
We agreed with most of the Defendants' arguments and dismissed the Eighth Amendment claim, the Rehabilitation Act claim, and the Architectural Barriers Act claim without prejudice. We dismissed the ADA claim with prejudice. However, we left Mr. Crowder's due process claim stand and failed to reach the issue of immunity.
I. Due Process
Mr. Crowder's Fifth Amendment claim, which we felt was misunderstood by both parties, essentially asked whether placement of Mr. Crowder in segregation without a hearing and without periodic review violated a liberty interest cognizable under the Due Process Clause. The Defendants simply argued, citing 28 C.F.R. § 541.22, that prison officials clearly have the authority to place an inmate in segregation, but did not even mention Crowder's allegations that he was denied a hearing. Plaintiff's counsel, on the other hand, argued that prison officials' authority is curtailed by a prisoner's disability.
We found that the Administrative Detention regulation entitles the inmate to a hearing before the Segregation Review Official every thirty days, 28 C.F.R. § 541.22(c)(1). We also found that the Defendants had failed to persuade us that § 541.22(c)(1) does not give rise to an entitlement to due process.
Defendants now argue that denial of the hearing under § 541.22 does not give rise to a due process violation. Thus, the question before us once again is whether keeping Mr. Crowder in segregation without the hearings required by 541.22(c) violated his rights to due process of law.
The Fifth Amendment prohibits the federal government from depriving a person of life, liberty, or property without due process of law. Caldwell v. Miller, 790 F.2d 589, 602 (7th Cir. 1986). Protected liberty interests may originate in the Constitution or in state and federal laws and binding regulations. Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983); Caldwell, 790 F.2d at 602. In order to determine whether a violation has occurred the analysis is two part: first, a determination must be made that a "protected liberty interest" exists; second, it is necessary to determine what process is due.
Lawfully incarcerated persons retain only a narrow range of protected liberty interests. Hewitt, 459 U.S. at 467. Thus, the Supreme Court has held that administrative segregation itself does not involve a liberty interest independently protected by the Due Process Clause. Id. Therefore, if a protected liberty interest exists at all relative to administrative segregation, it is only through the enactment of certain statutory or regulatory measures. Id. at 469.
The adoption of mere procedural guidelines, however, does not give rise to a protected liberty interest. Culbert v. Young, 834 F.2d 624, 628 (7th Cir. 1987), cert. denied, 485 U.S. 990, 99 L. Ed. 2d 506, 108 S. Ct. 1296 (1988). Rather, it is the two-part test enunciated in Hewitt that determines whether a particular statute or regulation provides a protected liberty interest. Id. The regulation must use "language of unmistakable mandatory character, requiring that certain procedures 'shall,' 'will' or 'must' be employed." Hewitt, 459 U.S. at 471-72. In addition to mandatory language, the statute or regulation must also provide that the action in question will not occur absent "specified substantive predicates," e.g. a finding of a "need for control" or to "maintain order." Id.; Mathews v. Fairman, 779 F.2d 409, 413 (7th Cir. 1985). In Hewitt, the Supreme Court found sufficient "mandatory language" and "substantive predicates" in a Pennsylvania statute governing administrative segregation so as to provide a protected liberty interest. 459 U.S. at 471-72.
The question of whether section 541.22(c)'s hearing requirement gives rise to a protected liberty interest is an interesting one. Several cases have addressed the issue but few, if any, have actually resolved it. Most cases on this topic involved prisoner complaints about their results of the review of their assignment in segregation rather than the lack of review itself. Thus, the question of a liberty interest in a review of segregation status under 541.22(c) is not reached because the section 541.22 requirements were complied with. See, e.g., Moore v. Shreve, 986 F.2d 1428 (Table), 1993 WL 5874 (10th Cir. 1993) (prisoner's status was reviewed as required by § 541.22 so no due process violation); Cook v. Henman, 1993 U.S. Dist. LEXIS 4782, No. 90-3469, 1993 WL 100297, *1 (D. Kan. Feb. 25, 1993) (no due process violation where reviews under 541.22 performed); Hunter v. Henman, 1992 U.S. Dist. LEXIS 8782, No. 91-3058, 1992 WL 131875, *3 (D. Kan. June 1, 1992) (prisoner received reviews under 541.22(c)). Vallina v. Meese, 704 F. Supp. 769, 773-74 (E.D. Mich. 1989) (prisoner received review). Typical of these case is the following result:
In this case, however, it is not necessary to decide whether the regulation governing administrative detention provides Woods with a protected liberty interest. Assuming arguendo, that Section 541.22 provides all federal prisoners with a protected liberty interest as the court found in Hewitt, Woods received all of the "process" which was due.
Woods v. Jenkins, 1989 U.S. Dist. LEXIS 5286, No. 85 C 8917, 1989 WL 51413, *6 (N.D. Ill. May 10, 1989).
Thus, these cases are of little value to us today. However, Defendants cite Eggleton v. Gluch, 916 F.2d 712, 1990 WL 155316 (6th Cir. 1990) (unpublished disposition) for the proposition that § 541.22 does not give rise to a liberty interest. In Eggleton the court found that failure to conduct proper reviews of a prisoner's status under § 541.22(c) did not constitute a due process violation. 1990 WL 1555316, at *1. The basis for the court's decision was that "even assuming that the regulations were not followed, plaintiff cannot show any harm that resulted from that deviation," and thus, there was no due process violation. Id. at *2. See also Awalt v. Whalen, 809 F. Supp. 414, 415-16 (E.D. Va. 1992) (§ 541.22 does not create a due process liberty interest from detention which a hearing would protect.)
On the other hand, there is precedent for the opposite position. In Kimberlin v. Quinlan, 774 F. Supp. 1 (D.D.C. 1991), cited by neither party, the court stated:
With regard to the procedural due process claim, the mandatory language in the Federal Bureau of prisons regulations on administrative detention (28 C.F.R. § 541.22) grant [plaintiff] a liberty interest in remaining free from an administrative detention without compliance with these regulations.