Smith v. Shettle

• Decision Date: 24 October 1991
• Docket Number: No. 90-3099,90-3099
• Citation: 946 F.2d 1250
• Parties: Maurice SMITH and Sidney Jackson, Plaintiffs-Appellants, v. John T. SHETTLE, Jack R. Duckworth, and David Bonner, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1250

946 F.2d 1250

Maurice SMITH and Sidney Jackson, Plaintiffs-Appellants, v. John T. SHETTLE, Jack R. Duckworth, and David Bonner,

Defendants-Appellees.

No. 90-3099.

United States Court of Appeals, Seventh Circuit.

Argued June 19, 1991.

Decided Oct. 24, 1991.

Donald W. Pagos (argued), Sweeney, Dabagia, Donaghue & Thorne, Michigan City, Ind., for plaintiffs-appellants.

Kermit R. Hilles, Deputy Atty. Gen., John M. White (argued), Office of the Atty. Gen., Federal Litigation, Indianapolis, Ind., for defendants-appellees.

Before CUMMINGS, POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

In 1988 two inmates of an Indiana state prison filed this suit under 42 U.S.C. § 1983, seeking damages and other relief for being confined in administrative segregation at the prison. "Segregation" in this context means being separated from the general prison population and held in an approximation to solitary confinement. It can be imposed either as a form of discipline for infractions of prison regulations ("disciplinary segregation") or, as here, for protective purposes ("administrative segregation"). One of the two inmates in question had been placed in administrative segregation upon his arrival at the prison, the ground being both his disruptive behavior when previously confined there and the fact that he had been in administrative segregation in the prison from which he was transferred. The other inmate was placed in administrative segregation after his arrival; the ground was also disruptive behavior but the particulars are not in the district court record. When the suit was dismissed on the defendants' motion for summary judgment, the plaintiffs had been in administrative segregation for 15 months and for two years, respectively.

The district court's ground for dismissing the suit was that inmates do not have a "liberty interest" in not being placed in administrative segregation. The due process clause of the Fourteenth Amendment, which is the source of the federal rights that the plaintiffs seek to enforce by means of this suit, forbids a state to deprive a person of life, liberty, or property without due process of law. The state does not--not yet, anyway--create life, or the form of natural liberty that consists of being able to move about freely under one's own power. It is however the source of property rights, and of the rights if any that persons lawfully confined in state prisons have to enjoy a modicum of freedom of locomotion within the prison walls. Subject only to such restraints as the cruel and unusual punishments clause of the Eighth Amendment may place upon the severity of punishment, a state can confine a prisoner as closely as it wants, in solitary confinement if it wants; a prisoner has no natural liberty to mingle with the general prison population. (He may have other natural liberties, such as liberty from confinement in a mental hospital. Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980).) Only if the state decides to recognize such a liberty--a liberty that is artificial, therefore, rather than natural--does he have a right that he can enforce under the due process clause of the Fourteenth Amendment. Hewitt v. Helms, 459 U.S. 460, 470-72, 103 S.Ct. 864, 870-72, 74 L.Ed.2d 675 (1983); Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460-61, 109 S.Ct. 1904, 1908-09, 104 L.Ed.2d 506 (1989).

So we must decide whether the State of Indiana has conferred on its inmates an entitlement not to be placed in administrative segregation. It has if it has set forth a list of criteria to govern such placement that are (1) binding, that is, mandatory upon the officials to whom they are addressed, Miller v. Henman, 804 F.2d 421 (7th Cir.1986); (2) exhaustive, in the sense that if none of the criteria is satisfied the prison officials are forbidden to segregate the inmate, Kentucky Dept. of Corrections v. Thompson, supra, 490 U.S. at 462, 109 S.Ct. at 1909; Wallace v. Robinson, 940 F.2d 243, 246-47 (7th Cir.1991) (en banc); and (3) definite, in the sense that none of the criteria is so open-ended that it leaves the officials with essentially limitless discretion to segregate the inmate or not as they please. Kentucky Dept. of Corrections v. Thompson, supra, 490 U.S. at 463, 109 S.Ct. at 1910. If the list is open-ended--the criteria in it merely illustrative and the officials free to segregate the inmate for a reason that does not appear on the list, or perhaps for no reason at all--or if any of the criteria on the list are open-ended in the same sense, albeit the list itself is closed, or if the criteria are merely for the guidance of the officials and leave them free to depart, the inmate does not have a liberty that he can enforce under the Fourteenth Amendment. Id. at 464, 109 S.Ct. at 1910; Miller v. Henman, supra.

Does Indiana law create such a liberty? An Indiana statute permits administrative segregation if the prison "first finds that segregation is necessary for the offender's own physical safety or the physical safety of others." Ind.Code § 11-10-1-7(a). Were this the only source of authority to segregate inmates, they would have a liberty interest: the statute sets forth a closed list of criteria (two in number) one of which must be satisfied for segregation to be lawful; and the criteria establish a definite, administrable standard rather than leaving decision to the discretion of the prison officials. Reading such a statute a prisoner could reasonably say to himself, "I am entitled to remain in the general prison population unless my own safety or that of others would be endangered by my remaining there."

It makes no difference that the Indiana statute does not use "mandatory" language, such as "shall" or "must." It is true that a number of cases describe "mandatory language" as a hallmark of a liberty-creating statute. The most explicit and authoritative of these statements appear in the Supreme Court's decision in Kentucky Dept. of Corrections v. Thompson, supra, 490 U.S. at 463, 109 S.Ct. at 1910. These dicta have given rise to two suggestions: that a statute which does not contain such words cannot create a liberty interest, Cain v. Lane, 857 F.2d 1139, 1144 (7th Cir.1988); Russ v. Young, 895 F.2d 1149, 1153 (7th Cir.1990); Castaneda v. Henman, 914 F.2d 981, 983 (7th Cir.1990), and that a statute which permits but does not require administrative segregation or some other deprivation is insufficiently "mandatory" to create such an interest. Russ v. Young, supra, 895 F.2d at 1153-54. We are skeptical about placing so much weight on grammatical distinctions, such as those between the imperative and declarative moods. If a statute says, "only if one of the following grounds is established does the prison have authority to segregate an inmate," it means the same as if it said, "any of the following grounds shall authorize the segregation of an inmate," even though it contains no "mandatory" words.

It also makes no difference either that the statute does not require but only permits segregation--most statutes leave discretion to the persons charged with their enforcement rather than commanding them to enforce the statute to the hilt--this is the famous "prosecutorial discretion"--or that the statute does not itself create procedures for determining whether one of the specified grounds has been established in a particular case. The Constitution itself prescribes the minimum procedural requirements--the process that is due. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492, 84 L.Ed.2d 494 (1985). The only thing the state law must do is create an entitlement.

We must not be mesmerized by judicial language taken out of context and hardened into formula. That "explicitly mandatory language" in the sense of words that are in the imperative mood as a matter of grammar is not a sine qua non of entitlement should be plain from Kentucky Dept. of Corrections itself, for there the Supreme Court defined "explicitly mandatory language" to mean "specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow," and gave as an example of such a directive "administrative segregation will not occur absent specified substantive predicates." 490 U.S. at 463, 109 S.Ct. at 1910. "Will" (simple future tense, except when used with the first person, i.e., either "I" or "we"), not "shall" (imperative when used with second or third person--"Thou shalt not kill"). And later, explaining why the regulations at issue "lack the requisite relevant mandatory language," the Court pointed out that they "stop short of requiring that a particular result is to be reached upon a finding that the substantive predicates are met." Id. No magic form of words is required to make a regulation mandatory; all that is required is that it be clear that if X (the substantive predicate), then Y (the specified outcome, from which the enforcement officials are not free to depart). Wallace v. Robinson, supra, 940 F.2d at 246.

Analysis is complicated here by the fact that the provision that we quoted from the Indiana Code does not stand alone. An administrative regulation (Indiana State Prison Standard Operating Procedure No. 108, April 18, 1983), the validity of which the plaintiffs do not challenge, provides for assignment to segregation "based upon determination of one or more of the following: 1) the continued presence of the inmate in general population poses a serious threat to himself, other inmates, staff or property, or 2) the inmate's behavior is a serious threat to the security and/or orderly operation of the institution." This is again a closed-end list; unless one of the two criteria (more than two when all the "or's" are counted) is satisfied, the prison officials are not authorized to segregate an inmate. The list in the regulation differs from the statutory list, so far as material...