940 F.2d 243 (7th Cir. 1991), 88-1806, Wallace v. Robinson

Docket Nº:88-1806.
Citation:940 F.2d 243
Party Name:Phillip WALLACE, Plaintiff-Appellant, v. Merle Dean ROBINSON, et al., Defendants-Appellees.
Case Date:August 09, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 243

940 F.2d 243 (7th Cir. 1991)

Phillip WALLACE, Plaintiff-Appellant,

v.

Merle Dean ROBINSON, et al., Defendants-Appellees.

No. 88-1806.

United States Court of Appeals, Seventh Circuit

August 9, 1991

Argued June 11, 1991.

Page 244

Jerold S. Solovy, William A. VonHoene, Jr., and Thomas S. O'Neill (argued), Jenner & Block, Chicago, Ill., for plaintiff-appellant.

Diane Curry Grapsas, Rosalyn B. Kaplan (argued), Asst. Attys. Gen., Office of the Atty. Gen., and Daniel N. Malato, Asst. Atty. Gen., Office of the Atty. Gen., Civ. Appeals Div., Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

We took this case in banc to resolve a conflict within the circuit. Castaneda v. Henman, 914 F.2d 981, 984 (7th Cir.1990), holds that a regulation allowing prison officials discretion to act for any reason except discipline does not establish a liberty or property interest for the purpose of the due process clause. An earlier case, Abdul-Wadood v. Duckworth, 860 F.2d 280, 284-85 & n. 7 (7th Cir.1988), implies a contrary answer, which the panel in this case turned into a holding, 914 F.2d 869, 873-75 (7th Cir.1990). We conclude that a rule giving prison officials discretion to act for any reason, but placing restraints on their options if their motive is disciplinary, creates neither a liberty nor a property interest. Liberty and property interests depend on substantive rules governing entitlements; rules addressed to motive that do not require particular action to follow particular facts lack the sort of substantive constraints necessary to create liberty or property interests. To the extent it holds the contrary, Abdul-Wadood is overruled.

I

Like many other states, Illinois expects its prisoners to work during their incarceration. Ill.Rev.Stat. ch. 38 p 1003-12-1 provides that the Department of Corrections "shall, in so far as possible, employ at useful work committed persons confined in institutions". Illinois credits the prisoners' accounts with pay for the work performed. Some of the jobs within prison are preferable to others, not only because the working conditions are less onerous but also because they are higher paying. Phillip Wallace held one of the better jobs in the Stateville prison: the tailor shop. The job paid $100 per month and did not require heavy labor.

Illinois does not give every prisoner a right to hold a job, or any particular job.

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The parties agree that no statute, regulation, or practice with the force of a regulation curtails the discretion of prison officials to assign a prisoner to any job on whim. Illinois does, however, restrict prison officials' ability to act for particular reasons. The principal restrictions govern discipline. Ill.Rev.Stat. ch. 38 p 1003-8-7(b)(2) provides that "[d]isciplinary restrictions on visitations, work, education or program assignments ... shall be related as closely as practicable to abuse of such privileges or facilities." Subparagraph 7(e) continues:

(e) In disciplinary cases which may involve ... a change in work, education, or other program assignment of more than 7 days duration, the Director shall establish disciplinary procedures consistent with the following principles: ...

(6) A change in work, education, or other program assignment shall not be used for disciplinary purposes except as provided in paragraph (b) of this Section and then only after review and approval under Section 3-8-3.

Regulations issued under Sec. 3-8-3 establish elaborate procedures to use in disciplinary cases. The upshot is that when discipline is the end in view the prison may change job assignments only for "abuse of such privileges or facilities" (at least when that is "practicable"), and then only after following prescribed steps.

Stateville changed Wallace's assignment from the tailor shop to a job as a clerk, which pays only $30 per month. The parties do not agree on the reasons for this switch. Wallace chalks it up to his supervisor's discovery of home-brewed liquor (hooch) in a cabinet near Wallace's work station in the tailor shop. Merle Robinson, supervisor of the tailor shop, brought this to the attention of the prison's Assignment Committee, blaming Wallace; Wallace replied that he had nothing to do with the hooch and that other inmates had access to the cabinet. Stateville submits that Wallace was transferred because he did not get along with Robinson and because he abused his position by failing to return for work after lunch--a habit into which some prisoners had fallen. Wallace concedes that he skipped the afternoon session of work but contends that Robinson's notice reminding inmates that they must work the full day was posted while he was away from work for legitimate reasons. Wallace filed this action under 42 U.S.C. Sec. 1983, seeking a jury trial to determine the reason he was removed from the tailor shop. His theory is that if the prison's motive was disciplinary, the transfer deprived him of liberty or property without due process of law.

Supervisors in Illinois prisons cannot transfer inmates on their own. Inmates have access to an elaborate administrative system. Wallace protested Robinson's intention to sack him. Stateville appointed an officer to investigate. The investigator took evidence (including Wallace's statement) and concluded that on March 24, 1986, Wallace failed to report for work after lunch and no one knew his whereabouts. Another report stated that Wallace possessed hooch. After receiving this information the Assignment Committee recommended Wallace's removal from the tailor shop, explaining:

It was felt that such action was justified in order to preclude more serious problems between Wallace and Supervisor Robinson. However, this should not be construed as disciplinary action and the inmate was advised that he has a right to file a grievance as he chooses.

Wallace so chose, complaining to the Institutional Inquiry Board. The Board sustained the Assignment Committee's decision, noting:

IIB is of the opinion inmate should be reviewed again by the assignment committee for possible placement on a job assignment that is comparable to the one he lost.... Assignment Committee G Dorm [will] review inmate Wallace, A-1574, for possible comparable assignment as tailor shop.

The next stop was the state-wide Administrative Review Board. This Board reviewed all of the proceedings and affirmed the Institutional Inquiry Board's decision, reiterating its request that the Assignment Committee seek a comparable placement

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for Wallace. After Michael Lane, then Director of the Department of Corrections, reviewed this decision, it became final. Wallace sought a comparable placement but did not receive one. Only industrial jobs at Stateville pay as much as $100 per month. Industrial jobs are available only with the permission of the supervisors, and none of the industrial supervisors wants Wallace in his shop. He has remained a clerk and seeks damages to make up for lost income.

Defendants (Director Lane, Warden O'Leary, Supervisor Robinson, and Zenon Symanski, the Supervisor of Industry at Stateville) tendered the administrative record and moved for summary judgment. The district court granted that motion, giving three reasons: (1) "that plaintiff has no property/liberty interest in his assignment"; (2) that "his reassignment was not done arbitrarily and capriciously"; and (3) that in any event Wallace "has received all of the process due him". Wallace contests all three conclusions. The first is correct; as it is also dispositive, we shall stop there.

II

Illinois has a rule of the form: "The warden may do A for any reason, but if that reason is M the warden must prove M before acting." One could restate this as: "The warden may do A for any reason except M." A in our case is changing the prisoner's job assignment. M is misconduct. Wallace may have taken hooch to his job at the tailor shop, which violates a rule of the prison. He may have been a goldbrick, knocking off work early. He may have gotten his supervisor's goat, which violates no rule but may make it wise to move him. Or he may have done all three. Whether the state employed procedures adequate to find the "true" reason matters only if a rule in the form we have described creates a liberty or property interest.

Only statutes or rules attaching consequences to particular circumstances give prisoners liberty or property interests. Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460-63, 109 S.Ct. 1904, 1908-10, 104 L.Ed.2d 506 (1989). Weasel words such as "in so far as possible" in p 1003-12-1 show that Illinois has not assured its inmates any job, let alone the job the inmate prefers. The warden therefore could switch Wallace from tailor to clerk on learning that he burned the trousers, or did not return after lunch, or sassed his supervisor--or for no particular reason at all. Paragraph 1003-12-1 does not create a liberty or property interest. Joihner v. McEvers, 898 F.2d 569, 571 (7th Cir.1990).

Wallace hangs his hat on p 1003-8-7(b)(2) and (e)(6), the restriction on disciplinary transfers. Does this language create a "legitimate claim of entitlement"? If not, there is no constitutional liberty or property. Thompson, 490 U.S. at 460, 109 S.Ct. at 1908; Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987); Olim v. Wakinekona, 461 U.S. 238, 248-51, 103 S.Ct. 1741, 1747-48, 75 L.Ed.2d 813 (1983); Hewitt v. Helms, 459 U.S. 460, 469-72, 103 S.Ct. 864, 870-72, 74 L.Ed.2d 675 (1983); Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981)...

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