898 F.2d 569 (7th Cir. 1990), 89-1469, Joihner v. McEvers
| Date | 28 March 1990 |
| Citation | 898 F.2d 569 |
| Docket Number | 89-1469. |
| Parties | Willie JOIHNER, Plaintiff-Appellant, v. Stephen L. McEVERS, Captain Hockaday, and M. Spinner Jones, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Page 569
Argued Jan. 30, 1990.
Page 570
Raymond P. Niro, Joseph N. Hosteny, Niro, Scavone, Haller & Niro, Chicago, Ill., for plaintiff-appellant.
Jan E. Hughes, William K. Kane, Asst. Attys. Gen., Chicago, Ill., for defendants-appellees.
Before CUMMINGS and POSNER, Circuit Judges, and PELL, Senior Circuit Judge.
PELL, Senior Circuit Judge.
Appellant Willie Joihner appeals the grant of summary judgment for defendants in his 42 U.S.C. Sec. 1983 action against officials at Logan Correctional Center where he is incarcerated. The district court held that the officials violated no protectible liberty interest when they denied Joihner's request to be transferred to a work camp.
I.
In August 1986, Joihner requested he be assigned to the Hanna City work camp. This assignment would provide Joihner with higher pay and better living conditions than he had at Logan. In the parties' stipulation of uncontested facts, it was conceded that Joihner was qualified for transfer in every respect except his health. Thus, Joihner's request was tentatively approved by the Assignment Committee pending medical clearance. Joihner was never granted medical clearance, however, and thus was never transferred. Joihner claims that he was not notified of the denial until one month later when he spoke to Defendant Mary Jones, a nurse at Logan. She allegedly told Joihner that he was being denied permission to transfer because he was taking a controlled medication to prevent epileptic seizures and because he had a circulatory problem in his leg for which he took additional medication.
Joihner did not file a grievance over his denial, although this procedure was allegedly available to him. Instead, several months later--in March 1987--Joihner asked Jones to pet the reasons for his denial in writing. Jones wrote that Joihner's request was denied due to his medical condition. Joihner filed suit on June 11, 1987. Summary judgment was entered against him on February 8, 1989 and his notice of appeal was timely filed on March 7, 1989.
II.
The district court held that Joihner failed to establish that a protectible liberty interest was implicated when the defendants denied his request for a transfer. As the Supreme Court recently reiterated, "procedural due process questions are examined in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dept. of Corrections v. Thompson, --- U.S. ----, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989) (citations omitted).
Addressing the first step in the analysis, the interest in question must rise to more than " 'an abstract need or desire,' " id.
Page 571
(quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)); "[r]ather, an individual must have a legitimate claim of entitlement to it." Id. While property interests are created solely by state law, liberty interests may originate in either the Constitution or state law. Shango v. Jurich, 681 F.2d 1091, 1097 (7th Cir.1982). "The due process clause, in and of itself, does not 'protect a duly convicted prisoner against transfer from one institution to another within the state prison system.' " Id. (quoting Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976)); Bruscino v. Carlson, 854 F.2d 162, 167 (7th Cir.1988) ("A transfer from one prison to another does not deprive the prisoner of liberty or property within the meaning of the due process clause."), cert. denied, --- U.S. ----, 109 S.Ct. 3193, 105 L.Ed.2d 701 (1989); Mathews v. Fairman, 779 F.2d 409, 413 (7th Cir.1985). Nor does the Constitution guarantee a prisoner the right to a job. Garza v. Miller, 688 F.2d 480, 485 (7th Cir.1982), cert. denied, 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983). Thus, in this case, Joihner must ground a protectible liberty interest in state law.
State law creates a protectible liberty interest when it "plac[es] substantive limitations on official discretion." Thompson, 109 S.Ct. at 1909 (quoting Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983)). This can be done "by establishing 'substantive predicates' to govern official discretion," and "mandating the outcome to be reached upon a finding that the relevant criteria have been met." Id. Thus, in analyzing the question, we must look to the relevant language of the statute or regulation to determine whether it is mandatory, or merely precatory, in nature.
In Illinois, a prisoner's ability to transfer to a work camp is governed by state statute and administrative regulations promulgated by the Illinois Department of Corrections. The statute, Ill.Rev.Stat. ch. 38, para. 1003-12-1, provides that
[t]he Department shall, insofar as possible, employ at useful work committed persons confined in institutions and facilities of the Department, who are over the age of compulsory school attendance, physically capable of such employment, and not...
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