Simply stated, the plaintiff raises two claims in his complaint. First, he maintains that by not providing him with the proper procedures and keeping him in segregation without a valid sentence authorizing such punishment, the defendants denied him his rights under the Due Process Clause of the Fourteenth Amendment. Second, he contends that Defendant Ramos violated his Eighth and Fourteenth Amendment rights by denying him yard privileges during his entire two months in segregation.
Denial of Due Process
Thomas claims that the defendants denied him due process by (1) failing to give him advanced written notice of the May 20 Adjustment Committee hearing, (2) failing to call him before the May 31 Adjustment Committee, thereby preventing him from telling his side of the story and calling witnesses, and (3) keeping him in segregation without a valid imposition of such punishment.
Thomas may only prevail on a § 1983 claim based on the Due Process Clause of the Fourteenth Amendment
if he can show that the defendants deprived him of a protected interest in his "life, liberty, or property" without giving him the required procedures. See Williams, 71 F.3d at 1248 (citing Zinermon v. Burch, 494 U.S. 113, 125, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990)). In this case, Thomas claims that his detention in segregation constituted a deprivation of "liberty" recognized by the Constitution. Until recently, Thomas would have had a decent argument, since prison regulations containing sufficiently mandatory language--such as the Illinois regulations involving disciplinary segregation--were deemed to create constitutionally enforceable interests. See Gilbert v. Frazier, 931 F.2d 1581, 1582 (7th Cir. 1991) (holding that Illinois prison regulations created liberty interest in staying out of segregation). However, since the instant motion for summary judgment was filed, the United States Supreme Court has dramatically altered the landscape of prisoner litigation. In Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293, 2300-02 (1995), five Justices of the Court held that a Hawaiian prisoner was not deprived of a liberty interest protected by the Constitution when he was placed in disciplinary segregation for thirty days.
The Court concluded that the Due Process Clause itself did not create a liberty interest in staying out of disciplinary segregation, and Hawaiian law did not create a protected liberty interest because segregation did not "present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." 115 S. Ct. at 2300-01. Consequently, because the inmate in Sandin was not denied his liberty, the State of Hawaii was under no obligation to provide him with the predeprivation procedures outlined in Wolff v. McDonnell, 418 U.S. 539, 563-572, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), and thus he had no § 1983 claim. 115 S. Ct. at 2302. After Sandin, mandatory state prison regulations will only create liberty interests if they involve limitations on freedom that, "while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, see, e.g., Vitek [v. Jones, 445 U.S. 480, 493, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980)] (transfer to mental hospital), and Washington [v. Harper, 494 U.S. 210, 221-222, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990)] (involuntary administration of psychotropic drugs), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 115 S. Ct. at 2300.
Since coming down in June of 1995, Sandin has been the subject of extensive judicial discussion. See Stone-Bey v. Barnes, No. 2:93-CV-198 AS, F. Supp. , n.5, 1996 WL 46630, at *5 n.5 (N.D. Ind. Jan. 29, 1996) (collecting cases). Most importantly for our purposes, the Court of Appeals for the Seventh Circuit recently interpreted Sandin as precluding the § 1983 claim of a prisoner held in disciplinary segregation. In Williams v. Ramos, 71 F.3d 1246, 1249-50 (7th Cir. 1995), a case bearing striking similarity to the instant matter,
the Seventh Circuit concluded that nineteen days in disciplinary segregation at Stateville did not constitute an "atypical, significant deprivation" sufficient to create a liberty interest for due process purposes. In Williams, as in our case, the plaintiff claimed that life in segregation was significantly more onerous than life in the general population.
He says that he was locked in a closed-front cell twenty-four hours a day, he was not allowed to participate in activities available to the general population or non-segregated inmates housed in the same area, he was handcuffed whenever he left his cell, and he lacked much contact with other inmates or staff. We do not believe, however, that his catalogue of harms greatly exceeds what one could expect from prison life generally, as "lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, 'a retraction justified by the considerations underlying our penal system.'"
Williams, 71 F.3d at 1249 (quoting Wolff v. McDonnell, 418 U.S. 539, 555, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974)) (footnotes omitted); cf. Crowder v. True, 74 F.3d 812, 1996 U.S. App. LEXIS 905, (7th Cir. 1996).
However, despite the broad language in Williams and Sandin against liberty claims based on confinement in segregation, we do not read these cases as necessarily dooming every inmate's due process claims. Rather, the conditions of segregation in each case must be evaluated to ascertain whether they rise to the sort of "atypical, significant deprivation" that Sandin considered critical. See Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995) (remanding for factual findings on whether conditions of segregation satisfied Sandin); Thomas v. Newkirk, 905 F. Supp. 580, 583-84 (N.D. Ind. 1995) (denying motion to dismiss all due process claims based on Sandin). Here, Thomas, unlike the plaintiff in Williams, asserts that disciplinary segregation is more severe than the protective custody unit he often chooses over confinement in the general population. Compare Williams, 71 F.3d at 1249-50, with Pl.'s Mem. in Opp. to Summ. J. at 8-10. In addition, Thomas was kept in segregation for just over two months, while the inmate in Williams complained of only a nineteen day confinement, and the plaintiff in Sandin endured just thirty days in segregation.
Nonetheless, considering all of the conditions of Thomas's segregation, we do not believe that his situation justifies a different result than the one reached in Williams and Sandin. The plaintiff was detained for approximately seventy days, a relatively short period of time given that he was serving a twelve year sentence. Moreover, the actual conditions in segregation that he complains of are practically indistinguishable from those at issue in Sandin and Williams. See 115 S. Ct. at 2301; 71 F.3d at 1249-50. Prison life entails many restrictions on movement and activity; indeed, these unpleasantries are part of the punitive sanction associated with a criminal conviction. See Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 125-26, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977). We conclude that under current law, Thomas's confinement in segregation did not constitute the type of "atypical, significant deprivation" of a prisoner's liberty that Sandin requires. See Williams, 71 F.3d at 1249-50; Leslie v. Doyle, 896 F. Supp. 771, 773 (N.D. Ill. 1995) (granting summary judgment against prisoner who claimed he was placed in segregation for no reason at all); Oswalt v. Godinez, 894 F. Supp. 1181, 1186 (N.D. Ill. 1995) (dismissing claim by prisoner that he was held in segregation for almost sixty days on investigative status); Kirsch v. Franklin, 897 F. Supp. 1173, 1177-78 (E.D. Wis. 1995) (finding no liberty interest created by placement in segregation for fifteen days); Winfrey v. Ultsch, 895 F. Supp. 229, 230-31 (E.D. Wis. 1995) (dismissing claim by prisoner who was confined for twenty days in segregation with severe limitations on, among other things, visitation, telephone and television privileges, and access to mail). Accordingly, summary judgment is granted to the defendants on this claim.
B. Denial of Yard Privileges
The plaintiff also contends that because he was not permitted to visit the yard during his entire time in segregation, his confinement was unconstitutional. At the outset, we observe that to the extent Thomas is claiming that his confinement violated the Due Process Clause, such a claim fails for the reasons discussed above. However, Thomas also appears to argue that keeping him in segregation without any yard time was a violation of his Eighth Amendment right to be free from the infliction of cruel and unusual punishments. Defendant Ramos does not directly challenge the merits of this claim; indeed, in paragraphs 23-30 of his Local Rule 12(N)(3)(b) response he contends that Thomas does not raise an Eighth Amendment claim in his complaint. See supra, note 6. Ramos does, however, contend that he is entitled to qualified immunity from suit. As the defendant has offered no challenge to the merits, we address directly the issue of qualified immunity.
Governmental officials performing discretionary functions are shielded from civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Anderson v. Creighton, 483 U.S. 635, 641, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Thus, Ramos is entitled to qualified immunity at this stage if (1) the facts, read in a light most favorable to the plaintiff, do not make out a constitutional violation, or (2) if the rights that were infringed were not "clearly established" at the time the alleged deprivation occurred. See Sherman v. Four County Counseling Center, 987 F.2d 397, 410 (7th Cir. 1993); Marshall v. Allen, 984 F.2d 787, 793-94 (7th Cir. 1993). The test for determining whether a right was "clearly established" at the time of the alleged violation is "whether the law was clear in relation to the specific facts confronting the public official when he acted." Marshall, 984 F.2d at 794 (quotations and citations omitted). In the instant case we need not decide whether Ramos's alleged conduct, if true, actually violated Thomas's Eighth Amendment rights. Rather, our review the law indicates that the right to outdoor exercise when confined in segregation for seventy days was not clearly established in the summer of 1994.
We begin with the unassailable assertion that, absent a serious security risk, the Eighth Amendment would not permit prison officials to deny all exercise to a prisoner. Davenport v. DeRobertis, 844 F.2d 1310, 1314-16 (7th Cir.), cert. denied, 488 U.S. 908, 102 L. Ed. 2d 248, 109 S. Ct. 260 (1988). However, as the Seventh Circuit recently observed in dicta,
cases that purport to recognize a right to outdoor exercise, such as Allen v. Sakai, 40 F.3d 1001, 1003-04 (1994), amended, 48 F.3d 1082 (9th Cir. 1995), and Spain v. Procunier, [600 F.2d 189, 200 (9th Cir. 1979)], involve special circumstances, such as that the prisoners were confined to their cells almost 24 hours a day and were not offered alternative indoor exercise facilities (Allen), or the only alternative offered to the prisoners was exercise in the corridor outside their cells rather than in an indoor exercise facility and the lack of outdoor exercise was merely one of a number of circumstances that in the aggregate constituted the infliction of cruel and unusual punishment.
Anderson v. Romero, 72 F.3d 518, 528 (7th Cir. 1995). Thus, it has been held by one court in this district that an eighty-five day lock-down period with no outdoor exercise was constitutionally permissible where inmates were permitted to leave their cells on occasion, use the day room, and move about the prison. Stewart v. McGinnis, 800 F. Supp. 604, 615-16 (N.D. Ill. 1992), aff'd, 5 F.3d 1031 (7th Cir. 1993), cert. denied, 127 L. Ed. 2d 393, 114 S. Ct. 1075 (1994). Similarly, Caldwell v. Miller, 790 F.2d 589, 600-01 (7th Cir. 1986), held that confinement for twenty-three hours a day in a cell, with only one hour of indoor exercise, for a period of seven months, was not unconstitutional.
Viewing the facts in a light most favorable to Thomas, during his approximately seventy days in segregation he was not permitted to exercise outside in the yard. However, there is no evidence to contradict the defendant's contention that for approximately 30 days between May 15 and July 23, Thomas's cellhouse was on lock-down and all inmates were prohibited from using the yard facilities. Ramos Aff. P 5. Thomas does not maintain that he was precluded from exercising in his cell, or during his visits to the medical unit, the law library, or the visitation area. While we certainly do not condone the sort of treatment alleged to have occurred in this instance, we also do not believe--given the state of the law in 1994--that such conditions violated "clearly established" constitutional rights. See Rodgers v. Jabe, 43 F.3d 1082, 1086-89 (6th Cir. 1995) (concluding that severe outdoor exercise limitations during prisoner's more than six months in segregation between 1991-92 did not violate clearly established constitutional rights). Even if the conditions of segregation were sufficiently serious, and Ramos acted with the requisite intent to implicate the Eighth Amendment, see Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1977 (1994), we hold that the defendant is entitled to qualified immunity on this claim. Accordingly, his motion for summary judgment is granted.
For the reasons set forth above, the plaintiff's motion to strike is granted in part and denied in part, and the defendants' motion for summary judgment is granted. It is so ordered.
MARVIN E. ASPEN
United States District Judge
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED that defendants' motion for summary judgment is granted.
February 21, 1996