Russ v. Young

• Decision Date: 20 February 1990
• Docket Number: No. 88-3072,88-3072
• Citation: 895 F.2d 1149
• Parties: Steven RUSS, Plaintiff-Appellant, v. Warren YOUNG and Walter J. Dickey, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1149

895 F.2d 1149

Steven RUSS, Plaintiff-Appellant, v. Warren YOUNG and Walter J. Dickey, Defendants-Appellees.

No. 88-3072.

United States Court of Appeals Seventh Circuit.

Submitted Oct. 24, 1989. ¹

Decided Dec. 18, 1989. ²

Amended As An Opinion Feb. 20, 1990.

Daniel W. Hildebrand, Ross & Stevens, Madison, Wis., for plaintiff-appellant.

Frank D. Remington, Asst. Atty. Gen., Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for defendants-appellees.

Before WOOD, Jr., COFFEY and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

Steven Russ, an inmate at the Waupun Correctional Institution in Waupun, Wisconsin, brought this action under 42 U.S.C. Sec. 1983 alleging that the defendants, prison administrators, had violated his rights under the United States Constitution in transferring him to a temporary lockup (TLU) status in violation of the Wisconsin Administrative Code regulations dealing with prison operations. On consideration of Russ' motion for summary judgment, the district court found that the defendants named were entitled to a dismissal from the lawsuit and entered judgment accordingly. We affirm.

I.

The Wisconsin Administrative Code, Sec. HSS 303.11(4)(b) permits prison employees to place a convict in temporary lockup if, among other reasons, it is more likely than not that "if the inmate remains in the general population, he or she will encourage other inmates by example, expressly, or by their presence, to defy staff authority and thereby erode staff's ability to control a particular situation." The next working day, the decision to confine the inmate in TLU is reviewed by the security director, who is required to consider any statements the inmate may wish to make in determining whether temporary lockup is still appropriate. Wis. Admin. Code Sec. HSS 303.11(2). The continued holding of the inmate in TLU is reviewed by the security director every seven days, and absent a special order by the superintendent of the institution, the maximum stay in TLU is 21 days. Wis.Admin.Code Sec. HSS 330.11(3).

The facts of this case are not in dispute. Waupun Correctional Institution operates a drug-screening program for inmates requiring them to submit to random urinalysis tests. When a convict is selected, he is asked to provide a specimen for analysis. The inmates directed to provide samples on any particular day are taken to the prison's visiting room, where they are detained until they are requested to provide urine specimens. On May 23, 1985, Russ was ordered to submit a urine specimen and he refused. Although Russ did not react in a violent manner when he refused to give the urine sample, the officer in charge, Lieutenant Gozinske, placed Russ in temporary lockup pending a disciplinary hearing on a charge of failing to obey a direct order, and because Gozinske believed that if Russ were not removed from the visiting room, other inmates might refuse to follow orders to provide urine samples, thus undermining Gozinske's ability to control the program. On May 30, 1985, after a hearing before a prison disciplinary board, Russ was found guilty of failing to obey a direct order (refusing to give the urine sample as ordered) and was sentenced to four days in adjustment isolation and a maximum of 120 days of program segregation.

On June 28, 1985, Russ, while still in program segregation, was once more ordered to provide a urine sample, and was advised that if he refused he would be moved from punitive program separation to non-punitive temporary lockup pending another disciplinary hearing. Again, he refused to produce the sample and was transferred to temporary lockup to await another hearing. Officer Gozinske prepared a report stating that he believed that if Russ were returned to the general population after his refusal to cooperate, it would encourage other inmates to refuse to comply with staff orders. While in TLU, Russ wrote to the administrator of the Division of Corrections, the defendant Dickey, in which he complained that the drug-testing program was being used to harass him and requested his immediate release. Dickey responded to the letter, but did not order Russ' release. Russ was held in TLU until his July 18, 1985, disciplinary hearing, where he was found guilty of disobeying orders and sentenced to five days of adjustment segregation.

On November 22, 1985, Russ was again ordered to submit a urine sample. Once more he refused and was taken to the TLU. The officer who ordered his confinement in TLU, Lieutenant Lackey, stated that the reason was the probable effect of Russ' refusal on the approximately 20 other inmates present, and the possible effect of his presence on their willingness to provide specimens when ordered to do so. Russ was given a disciplinary hearing on the charge of disobeying a direct order on December 6, 1985, and was sentenced to ten days' room confinement during nonwork hours.

On February 7, 1986, Russ was selected to submit a sample on a fourth occasion, and again he refused. Lieutenant Oestreich ordered that he be detained in temporary lockup status pending a full disciplinary hearing. That same day, Russ wrote to defendant Young, the superintendent of the Waupun Prison, asking that he be released. Young replied on February 12, 1986, defending the correctional officers' actions. At the disciplinary hearing on February 18, Russ was found guilty of disobeying a direct order by refusing to submit a urine sample and he was sentenced to six days' adjustment, 180 days' program separation and the loss of 10 days of good time.

Some six months later, on July 24, 1987, Russ again was ordered to submit a urine sample. Again he refused, in front of about 25 other inmates who likewise had been ordered to be tested. Again Russ was taken to TLU. Captain Torsella's "Notice of Inmate Placed in Temporary Lockup" cited Wisconsin Administrative Code Sec. HSS 330.11(4)(b) for authority, based on the probable effect of Russ' refusal to cooperate upon the other inmates. Again, Russ wrote to Warden Young requesting immediate release, complaining that he was being singled out for harassment based on his continued refusals to submit to a urinalysis test. Young responded: "As you will be afforded a full due process hearing and I am the appealing authority if you are dissatisfied with the decision, I will make no further comment at this time." Another letter to Young, dated August 2, 1987, requested release from TLU pending the disciplinary hearing. On this occasion Young referred the matter to the security director. At the disciplinary hearing on August 13, 1987, Russ was found guilty of disobeying a direct order, and was sentenced to six days of adjustment isolation and 120 days of program segregation.

Judge Crabb, relying on the undisputed facts, granted summary judgment in favor of the defendants. Judge Crabb held that "so long as the [prison] officials can establish that they acted in the good faith belief that placing plaintiff in temporary lockup was necessary to prevent him from encouraging 'other inmates by example, expressly, or by their presence, to defy staff authority and thereby erode staff's ability to control a particular situation,' HSS 303.11(4), they were acting under the authority of the Wisconsin Administrative Code, and their placement decision cannot be characterized as so lacking in justification as to constitute punishment." Mem. op. at 16-17. Judge Crabb went on to hold that Russ had not presented any facts to raise a genuine issue as to the good faith of the officers and granted summary judgment for the defendants.

On appeal, Russ argues that it was error to grant summary judgment on the strength of the correctional officers' assertions of their subjective intent in assigning Russ to TLU. He also argues that the district court gave too much deference to the decisions of the correctional officials. On the other side, the defendants argue that Russ had no liberty interest in being kept out of temporary lockup, and that if Russ had any due process rights under the Constitution and the Wisconsin regulations, those rights were satisfied.

II.

The thrust of Russ' argument is that he was placed in temporary lockup in violation of Wis. Admin. Code Sec. HSS 303.11 which, according to Russ, creates a liberty interest cognizable under the due process clause of the fourteenth amendment in remaining out of temporary lockup based on arbitrary and punitive reasons. The fourteenth amendment prohibits the government from depriving "any person of life, liberty, or property, without due process of law." However, the types of "liberty" and "property" interests cognizable under the due process clause are not unlimited. To establish a deprivation of a constitutionally protected interest, an individual must demonstrate a "legitimate claim of entitlement" which has been interfered with by the state. Kentucky Department of Corrections v. Thompson, --- U.S. ----, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989). The Supreme Court has recognized that protected liberty interests "may arise from two sources--the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983).

At the outset, we note that Russ does not contend in his brief that the due process clause, in and of itself, creates a liberty interest in remaining out of temporary lockup, nor could he successfully advance such a claim. Temporary lockup is, essentially, a change in the conditions of a prison inmate's confinement. The Supreme Court has repeatedly "rejected the notion 'that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to involve the protections of the Due Process Clause.' " Kentucky Department of Corrections, 109 S.Ct. at 1908 (quoting Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976)) (emphasis in Meachum ). "As long...