Applying the Seventh Circuit's rationale in Cain, this directive does not appear to employ the necessary mandatory language to create a liberty interest, although the court observes that the directive seems clearly intended to allow continued investigative confinement only in the event of an "institutional emergency."
In any event, the relevant liberty-interest inquiry prescribed by Sandin is whether the prison regulation "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 63 U.S.L.W. at 4605. Despite obvious difficulties associated with investigative segregation -- including the virtually unchecked power it bestows on prison officials to confine an inmate in conditions more severe than those accorded the general prison population -- the Supreme Court and the Seventh Circuit have both held that such conduct does not ordinarily violate a prisoner's due process rights.
"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Sandin (quoting Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 125, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977), quoting Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948) (internal quotations omitted). "Discipline by prison officials in responding to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law." Sandin, 63 U.S.L.W. at 4605. Courts have accorded prison officials wide latitude and deference in executing policies and practices that in their judgment are needed to preserve internal order, discipline and security. Pardo v. Hosier, 946 F.2d 1278, 1280 (7th Cir. 1991).
The warden's extension continued an approved practice of investigative confinement. Administrative confinement is unpleasant and difficult for the inmates for whom it is prescribed. Yet, plaintiff's pro se complaint fails to demonstrate that his extended confinement was characterized by atypicality or significant hardship, at least in relation to the type of treatment normally reserved for prisoners under investigation for alleged participation in schemes of escape.
Because plaintiff has failed to state a claim regarding defendant Godinez's extension of investigative confinement status, that part of his complaint is dismissed without prejudice.
II. Investigative Delay
Plaintiff alleges that defendant Schonauer violated his due process rights by failing to complete his investigation of plaintiff's role in the possible escape attempt until more than three months after the event occurred.
A delay occurring between an incident and subsequent disciplinary proceedings does not violate a prisoner's civil rights. United States v. Warden, Stateville Correctional Ctr., 635 F.2d 656, 659 (7th Cir. 1980), cert. denied, 454 U.S. 843, 70 L. Ed. 2d 128, 102 S. Ct. 156 (1981). A justified time lapse likewise does not deprive a plaintiff of due process. See Wolff V. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Caruth v. Pinkney, 683 F.2d 1044, 1052 (7th Cir. 1982) (per curiam), cert. denied, 459 U.S. 1214, 75 L. Ed. 2d 451, 103 S. Ct. 1212 (1983).
In the instant case, the investigation into plaintiff's role in a possible escape attempt was not concluded until more than three months after the inquiry began. While this would appear to be a long time given the easy availability of witnesses to the event in question, such a delay does not necessarily rise to the level of constitutional violation because prison disciplinary proceedings are not criminal prosecutions. Wolff, 418 U.S. at 556. The "full panoply of rights due a defendant in such proceedings does not apply." Id. Without such rights upon which to rely, plaintiff is unable to claim a violation of due process as protected by the Constitution.
Accordingly, plaintiff's complaint against defendant Schonauer is dismissed for failure to state a claim.
III. Adjustment Committee Hearing
The due process requirements for prison disciplinary hearings are set forth in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). They are: (1) written notice of the charge against the prisoner, given at least twenty-four hours prior to the hearing; (2) the right to appear in person before an impartial hearing body; (3) the right to call witnesses and to present documentary evidence, when to do so will not unduly jeopardize institutional safety or correctional goals; (4) a written statement of reasons for the disciplinary action taken. Id. at 563-67; Cain, 857 F.2d at 1145.
Plaintiff was accorded adequate written notice of the charges against him. He received a copy of the Disciplinary Report on July 8, 1993 and his hearing was not held until July 14, 1993, thus satisfying the requirement that he be given written notice of the charges against him at least twenty-four hours before his hearing. The Disciplinary Report stated that plaintiff had been charged with three offenses: Escape, Conspiracy to Attempt Escape and Damage/Misuse of property. The Disciplinary Report further identified the time, date and place where the alleged offenses occurred. The notice requirement in Wolff is designed to allow "the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact." Wolff, 418 U.S. at 564. The record indicates that plaintiff was able to present a defense to the charges against him. The clarity with which the Disciplinary Report sets out the relevant information meets the appropriate constitutional standard.
Plaintiff was likewise allowed to appear in person before an impartial hearing body. On July 14, 1993, plaintiff appeared before the prison Adjustment Committee. At that time he was allowed to speak in his own behalf, call witnesses and present documentary evidence. The proceedings therefore comported with the second requirement outlined by Wolff.
Plaintiff contends that his due process rights were violated because he was not allowed to call all his proposed witnesses and because his documentary evidence was accepted by defendant Johnson of the Adjustment Committee only with great reluctance and then later ignored.
Plaintiff called four witnesses in his behalf, but was not permitted to call others to testify. The four called were plaintiff's cellmates, the occurrence witnesses best situated to testify as to plaintiff's role in any escape scenario. He was not allowed to call character witnesses, including members of the prison staff. Because prison disciplinary hearings are not criminal trials, they do not convey to prisoners the rights enjoyed by defendants in criminal proceedings. Wolff, 418 U.S. at 556. The right to call witnesses in prison disciplinary hearings is not absolute. Baxter v. Palmigiano, 425 U.S. 308, 321, 47 L. Ed. 2d 810, 96 S. Ct. 1551 (1976). It is "circumscribed by the necessary mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." Id. (quoting Wolff, 418 U.S. at 556) (internal quotations omitted). This general prohibition means, for example, that prisoners are not entitled to cross-examine adverse witnesses, if prison officers determine such action unwise. Wolff, 418 U.S. at 568; Chavis v. Rowe, 643 F.2d 1281, 1286 (7th Cir. 1981). It also means that prisoners are not granted an unrestricted right to call witnesses from the prison population since such a move "carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution." Wolff, 418 U.S. at 566.
Given that prison officials have the necessary discretion to refuse to call witnesses in an effort to balance due process rights with correctional goals, Wolff, 418 U.S. at 566; Chavis, 643 F.2d at 1286, defendants in the instant case exercised that power properly.
Due process does require that some explanation justifying a decision not to call certain witnesses to testify be entered in the administrative record of a prisoner's disciplinary hearing. Hayes v. Thompson, 637 F.2d 483, 488 (7th Cir. 1980). This was provided in the instant case when the Adjustment Committee stated in its Disciplinary Report that it did not call plaintiff's other witnesses because they neither witnessed nor had involvement in the incident. The standard in Hayes requires only that some justification be entered into the administrative record of the hearing proceedings. Id. Defendants have met this burden.
Plaintiff contends that the Adjustment Committee at first refused to receive his documentary evidence, then accepted it only with great reluctance and finally ignored it in reaching its verdict. Plaintiff does concede that the Adjustment Committee did finally accept his documentary evidence. He offers no proof, however, that would support his claim that the Adjustment Committee ignored it in reaching its decision regarding his guilt. Plaintiff may intend to imply that his guilty verdict is proof of the Adjustment Committee's lack of consideration of his documentation. Such an attenuated claim, standing on its own, however, is insufficient to prove his allegation.
Plaintiff states that his due process rights were violated when defendants DelPriore and King did not actively participate at his hearing. Plaintiff points to no law, however, that supports his contention that lack of vocal participation constitutes a due process violation, and this court is unaware of any law upholding that principle. Accordingly, plaintiff fails to state a claim against defendants DelPriore and King on this allegation.
Plaintiff also alleges that the Adjustment Committee hearing was conducted in a biased manner. To meet the level of scrutiny imposed by courts, a charge of bias must prove that the decisionmaker has actually prejudiced the case or had direct personal involvement in the underlying charge. Merritt v. De Los Santos, 721 F.2d 598, 600 (7th Cir. 1983). Plaintiff offers no support for this claim other than the Adjustment Committee's refusal to call all his witnesses, his allegation that the Adjustment Committee ignored his documentary evidence and his claim that defendants DelPriore and King did not participate at the hearing.
The refusal of the Adjustment Committee to call all plaintiff's witnesses, as shown above, does not violate his due process rights as delineated by Wolff. The Adjustment Committee offered sufficient justification for its decision to call only four witnesses in its written report of the proceedings. These procedures meet the standards of due process. Hayes, 637 F.2d at 488.
Plaintiff's documentary evidence was accepted by the Adjustment Committee -- as required by Wolff -- and plaintiff offers no basis to suggest it was ignored, save the verdict of the Committee.
Plaintiff's contention that lack of participation by defendants DelPriore and King at his Adjustment Committee hearing violated his due process rights is without foundation in law. Even if plaintiff could muster a legal argument to support his claim, he has offered no evidence except his contention that defendants DelPriore and King did not speak at his hearing to suggest that they did not participate at his hearing. Defendants DelPriore and King were present at plaintiff's hearing. Presumably, they also participated in the Adjustment Committee's determination of guilt, since they both signed the Adjustment Committee's summary of plaintiff's proceedings.
Accordingly, plaintiffs' claim of bias fails and plaintiff fails to state a claim against defendants Johnson, DelPriore and King under the foregoing allegations.
The final requirement of Wolff is that a prisoner receive a written statement of the reasons for the disciplinary action taken. It is here that defendants' argument founders. In its summary, the Adjustment Committee stated that it had relied on plaintiff's own admissions, prison records, and the credibility of witnesses to reach the determination that plaintiff was guilty of the charges against him. In Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985), the Supreme Court held that the requirements of due process are met if there is "any evidence in the record that could support the conclusion reached by the Disciplinary Board." Id. at 455-56. Reliance on records, as well as the testimony of plaintiff and plaintiff's witnesses, usually is sufficient to meet the "any evidence" standard.
Yet here, plaintiff makes two compelling arguments that implicate his due process rights. First, he asserts that he could not have been found guilty of "Escape," as defined in the Illinois Administrative Code, since he neither left nor failed to return to Stateville at any time during his confinement.
Second, plaintiff claims that he was improperly charged and found guilty of "Conspiracy to Attempt Escape." While admitting the prison's power under the Illinois Administrative Code to charge him either with Attempted Escape or Conspiracy to Escape, he notes that the Code does not provide for a charge of Conspiracy to Attempt Escape.
Plaintiff was charged with three offenses: Escape, Conspiracy to Attempt Escape and Damage/Misuse of property. The offenses are defined in the following manner:
Definition: Leaving or failing to return to lawful custody without authorization, including the failure to return from furlough within two hours of the designated time.
202. Damage or