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August 9, 1995

KEITH LESLIE, Plaintiff,
WILLIAM J. DOYLE, Defendant.

The opinion of the court was delivered by: MILTON I. SHADUR


 This Court's November 23, 1994 memorandum opinion and order (the "Opinion," 868 F. Supp. 1039) *fn1" granted in principal part the motion to dismiss the 42 U.S.C. ยง 1983 ("Section 1983") action that had been brought by Keith Leslie ("Leslie") against three Illinois Department of Corrections employees, but Opinion at 1042-44 kept alive Leslie's claim that Joliet Correctional Center ("Joliet") Reception and Classification Center Superintendent William Doyle ("Doyle") had gratuitously placed Leslie in segregative confinement for no reason at all. Following the issuance of the Opinion the parties brought that surviving claim into a posture of readiness for prompt trial.

 But after the Supreme Court had then issued its end-of-Term opinion in Sandin v. Conner, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), Doyle's counsel filed a motion for summary judgment. Leslie's appointed counsel have filed a response, *fn2" and with the parties thus having joined issue the motion is ripe for decision.

 To begin with, Doyle quarrels substantively with this Court's invocation of Bell v. Wolfish, 441 U.S. 520, 558-60, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) as the predicate for finding that Leslie has a constitutionally-viable Fourth Amendment *fn3" claim against Doyle (Opinion at 1044 quoted the premise in Bell, 441 U.S. at 558 "that inmates...retain some Fourth Amendment rights upon commitment to a corrections facility"). This Court has examined the cases that Doyle cites and more (and it had done so before issuing the Opinion), and it remains of the view expressed in Opinion at 1044:


Although custody in prison is by definition an entirely reasonable "seizure" of a convicted felon (if it may be termed a "seizure" at all in that sense), it may fairly be argued that the constitutional right to be free from unreasonable seizures (the Fourth Amendment right) embraces an inmate's entitlement not to be subjected to a major further limitation on his liberty--a commitment to segregation--on the mere whim of a correctional officer (for no penological purpose at all).

  What now forces a difference in that result, however, is the decision in Sandin. As the just-quoted language from the Opinion reflects (and as is evident from the fact that the fount of any constitutional deprivation by state actors must be the Fourteenth Amendment, even though a Bill of Rights provision is cited for shorthand purposes), a necessary ingredient of Leslie's claim is Doyle's imposition of "a major further limitation on his [Leslie's] liberty--a commitment to segregation." But the 5-to-4 decision in Sandin has just announced that State-created "liberty interests which are protected by the Due Process Clause" (115 S. Ct. at 2300) are "generally limited to freedom from restraint which...imposes atypical and significant hardship on the inmate in relation to the ordinary incidence of prison life" (id.). Because "discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law" ( id. at 2301), the Supreme Court majority went on to say (id.):


This case, though concededly punitive, does not present a dramatic departure from the basic conditions of Conner's indeterminate sentence. Although Conner points to dicta in cases implying that solitary confinement automatically triggers due process protection, Wolff [v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963,] 571, n.19 [(1974)]; Baxter v. Palmigiano, 425 U.S. 308, 323, 47 L. Ed. 2d 810, 96 S. Ct. 1551 (1976) (assuming without deciding that freedom from punitive segregation for "'serious misconduct'" implicates a liberty interest, holding only that the prisoner has no right to counsel) (citation omitted), this Court has not had the opportunity to address in an argued case the question whether disciplinary confinement of inmates itself implicates constitutional liberty interests. We hold that Conner's discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. The record shows that, at the time of Conner's punishment, disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody. *fn4"

 This Court, like the four dissenting Justices, sees Sandin as having taken a near-quantum-leap from the earlier cases on which it grounds itself. In this action the consequence of taking Sandin at its word (as this Court is obliged to do) is to arm prison authorities, who have heretofore possessed uncircumscribed powers over the inmates within their custody only to a limited extent, with now-unrestrained power to punish those inmates by arbitrary reassignment to the meaningfully more restrictive environment of segregated confinement. *fn5" And it appears that can be done by a correctional official for no reason at all--even out of sheer vindictiveness--because the absence of due process means nothing in terms of a Section 1983 claim unless the inmate's liberty interest has been infringed.

 That result--which effectively treats wrongful commitment to segregation as an inherent consequence, a sort of assumed risk, of being in prison to begin with--strikes this Court as one more befitting a totalitarian regime than our own, and it is hard to credit that outcome as flowing from a principled Supreme Court decision. But this Court's duty is to take the Supreme Court at its word, and the dismissal of Leslie's claim appears to this Court to be the necessary outcome of a straightforward application (and not an extension) of Sandin. Having said that, this Court believes that appellate review of this opinion is desirable to test the accuracy of that view, and so it is to be hoped that the able counsel whom this Court has appointed to represent Leslie pro bono publico will be prepared to take that added step on his behalf. In the meantime, Doyle's motion is granted and this action is dismissed. *fn6"

 Milton I. Shadur

 Senior United States District Judge

 Date: August 9, 1995

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