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February 15, 1994



The opinion of the court was delivered by: PAUL E. PLUNKETT

This case involves the claims of a handicapped federal prisoner against his jailers and others concerning the conditions of his confinement at the MCC. This matter was before us recently upon the Defendants' motion to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) on a varied basis including failure to state a claim, failure to exhaust administrative remedies, and qualified immunity. We granted the motion in part and denied it in part, dismissing all claims except the Plaintiff's due process claim. The Defendants have now moved for reconsideration or clarification, arguing that we misconstrued the law as to the due process claim and that we failed to rule on the Defendants' immunity. For the reasons stated below, the Defendants' motion is granted in part and denied in part and this case is dismissed.


 Mr. Crowder, a paraplegic "general" in the El Rukn street gang currently serving a life term in federal prison, alleges that he was denied proper medical care when he was placed in administrative detention at the Metropolitan Correctional Center in Chicago, Illinois while awaiting trial and that his segregation status was not reviewed as required by Bureau of Prison regulations. Crowder alleges that he was not allowed use of his wheel chair to move around in his cell, which resulted in bedsores and muscular discomfort. Mr. Crowder filed his original complaint on November 19, 1991. We ordered service held in abeyance.

 Mr. Crowder's first lawyer was relieved by this court, and new counsel was appointed. Mr. Crowder's new counsel filed a two count Third Amended Complaint. Count I alleges that denying Plaintiff's request for physical therapy, denying Plaintiff the use of his wheelchair, and placing Crowder in segregated detention without a hearing constituted a violation of Plaintiff's rights under the Fifth and Eighth Amendments. Count I is directed against Defendants Page True, Lt. Earl Mayfield, and Lt. J.A. Seiman in their official and individual capacities.

 Count II, leveled at Warden True, the United States, and the Bureau of Prisons, claims that the fact that the MCC is not handicap accessible violates several federal statutes including the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Architectural Barriers Act of 1968, 42 U.S.C. § 4151, and the Americans with Disabilities Act, 42 U.S.C. § 12101. Crowder seeks compensatory and punitive damages, attorneys fees and costs, 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 ...

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