641 F.3d 874 (7th Cir. 2011), 10-2446, Marion v. Radtke

Docket Nº:10-2446.
Citation:641 F.3d 874
Opinion Judge:PER CURIAM.
Party Name:War N. MARION, Plaintiff-Appellant, v. Dylon RADTKE, Janel Nickel, and Chad Keller, Defendants-Appellees.
Attorney:War N. Marion, Portage, WI, pro se. Abigail C.S. Potts, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.
Judge Panel:Before EASTERBROOK, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.
Case Date:June 02, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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641 F.3d 874 (7th Cir. 2011)

War N. MARION, Plaintiff-Appellant,

v.

Dylon RADTKE, Janel Nickel, and Chad Keller, Defendants-Appellees.

No. 10-2446.

United States Court of Appeals, Seventh Circuit.

June 2, 2011

Submitted May 11, 2011.

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War N. Marion, Portage, WI, pro se.

Abigail C.S. Potts, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.

PER CURIAM.

While imprisoned at the Columbia Correctional Institution in Wisconsin, War N. Marion was placed in the prison's most restrictive disciplinary segregation, which it calls DS-1, because he had committed misconduct while in DS-2, a less restrictive environment. Marion's term in DS-1 was 240 days, and he complained about the procedures that the prison had used to find that he violated the prison's rules.

The due process clause of the fourteenth amendment, on which Marion relied, applies only to deprivations of life, liberty, and property. Otherwise states are free to act summarily. Defendants contended that 240 days in DS-1 segregation at Columbia did not deprive Marion of liberty or property under the approach of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), the most recent opinions in which the Supreme Court has considered how the due process clause applies to prisoners' living conditions. See also, e.g., Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). We held that 240 days in conditions materially more onerous than " the ordinary incidents of prison life" ( Sandin, 515 U.S. at 484, 115 S.Ct. 2293), could deprive a person of a " liberty." Marion v. Columbia Correctional Institution, 559 F.3d 693 (7th Cir.2009). We added that evaluation depends on " the actual conditions of confinement and not simply ... a review of state regulations." Id. at 699 (emphasis in original). With that observation we remanded so that the district court could compare the

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conditions of DS-1 status at Columbia with those at a high-security prison in Wisconsin, the sort of institution to which a prisoner may be assigned, Meachum holds, without any opportunity for a hearing.

Wilkinson shows that a comparison to a " supermax"...

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