Appeal from the United States District Court for the Western District of Wisconsin. No. 07 C 243-Barbara B. Crabb, Chief Judge.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before BAUER, RIPPLE and TINDER, Circuit Judges.
War Marion, an inmate in the Wisconsin prison system, brought this action under 42 U.S.C. § 1983, alleging that prison officials had denied him equal protection and due process of law during a disciplinary hearing that resulted in 240 days of disciplinary segregation. The district court screened the complaint, see 28 U.S.C. § 1915A, and dismissed it for failure to state a claim upon which relief may be granted. After Mr. Marion appealed that dismissal, we instructed the parties to address whether his 240-day segregation was an "atypical and significant hardship" and therefore implicates a liberty interest, as that term has been explained in Wilkinson v. Austin, 545 U.S. 209 (2005), and Sandin v. Conner, 515 U.S. 472 (1995). See Marion v. Columbia Corr. Inst., No. 07-2556 (7th Cir. May 1, 2008) (interim order). In harmony with the relevant cases of this circuit, as well as those of our sister circuits, we hold that the 240 days of segregation in this case was sufficiently long to implicate a cognizable liberty interest if the conditions of confinement during that period were sufficiently severe. Mr. Marion therefore should have been allowed to develop a factual record of the conditions of his confinement during his period of segregation. Accordingly, we reverse the dismissal of this action and remand this case for further proceedings consistent with this opinion.
Mr. Marion alleges the following facts; we must assume them to be true for purposes of this appeal. See Westefer v. Snyder, 422 F.3d 570, 574 (7th Cir. 2005).
Mr. Marion and his cellmate, Clifford Snipes, were in their cell at the Columbia Correctional Institution in Wisconsin when the prison's psychologist, Dr. Andrea Nelson, delivered puzzles to them. Snipes began arguing with Mr. Marion because Mr. Marion received more puzzles than Snipes. Snipes then charged at him; Mr. Marion responded by clenching his fists. When Dr. Nelson returned to the cell, she saw Mr. Marion's response and went to alert corrections officers. Correctional officers came to the cell to separate Mr. Marion and Snipes; Mr. Marion was placed in segregation.
Prison officials then began formal disciplinary proceedings, which, Mr. Marion alleges, lacked adequate procedural protection. First, prison officials issued Mr. Marion a conduct report containing false accusations of misconduct. The prison then scheduled a hearing to allow him to contest the report, but refused his request for two (of four) witnesses, specifically, Dr. Nelson and the captain who investigated the incident. Next, prison officials appointed a prison advocate for Mr. Marion, but the advocate failed to assist him. Finally, prison staff kept Mr. Marion away from the hearing and later signed a false statement that he had refused to attend. At the conclusion of the hearing, Mr. Marion was disciplined with 240 days-approximately eight months-of segregation. Because Mr. Marion already was serving a term of 180 days of segregation at the less restrictive "D.S.2" level, he was moved to the more restrictive "D.S.1" segregation unit. R.5. Mr. Marion claims that he was required to serve a total of 420 days in D.S.1 segregation.
After exhausting his administrative remedies, Mr. Marion filed a complaint in the district court. He claimed that, after the incident with Snipes, prison officials confined him in D.S.1 segregation without due process of law. He also claimed that these officials had violated his equal protection rights by not also disciplining his cell-mate for his role in the incident.
The district court dismissed Mr. Marion's complaint under Section 1915A for failure to state a claim upon which relief may be granted. The court concluded that his confinement did not implicate a due process right because the discipline he received did not increase the duration of his confinement or subject him to an "atypical and significant" hardship. Marion v. Columbia Corr. Inst., No. 07-C-243-C, 2007 WL 5445866, at *2 (W.D. Wis. June 8, 2007). The court explained that, under Sandin v. Conner, 515 U.S. 472, 484 (1995), prisoners are not entitled to any process "unless the discipline they receive increases their duration of confinement or subjects them to an 'atypical and significant' hardship." In the court's view, placement in disciplinary segregation alone never can meet this demanding standard. Dismissing Mr. Marion's equal protection claim, the court noted that the defendants needed only a rational reason for treating his cellmate differently. In this respect, the district court concluded that Mr. Marion had pleaded himself out of court on this equal protection claim because he acknowledged that, unlike Snipes, he had been caught in an aggressive stance.
Mr. Marion filed a motion for reconsideration. He argued that, at the time of the incident with his cellmate, he was in a less restrictive level of segregation, "D.S.2," serving a term of 180 days based on another false conduct report. After he received the additional 240 days' segregation, he was moved to a more restrictive segregation unit, "D.S.1.," resulting in 420 days of segregation in that segregation unit. The court denied his motion, stating that his total time in prison had not been increased, and therefore, he still had not met the Sandin standard.
Mr. Marion then filed a notice of appeal. In granting Mr. Marion leave to proceed on appeal in forma pauperis, the district court observed that other circuits have held that prisoners have a liberty interest in remaining free from similarly lengthy terms of segregation, and further noted that, in Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995), we had suggested that due process protections may be required when a prisoner is sentenced to an "extreme term of segregation." Marion v. Columbia Corr. Inst., No. 07-C-243-C, 2007 WL 5448211, at *1 (W.D. Wis. July 11, 2007) (quoting Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995)). The district court consequently granted Mr. Marion's motion for leave to proceed ...