Joihner v. McEvers

• Decision Date: 28 March 1990
• Docket Number: No. 89-1469,89-1469
• 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

898 F.2d 569

Willie JOIHNER, Plaintiff-Appellant, v. Stephen L. McEVERS, Captain Hockaday, and M. Spinner Jones Defendants-Appellees.

No. 89-1469.

United States Court of Appeals Seventh Circuit.

Argued Jan. 30, 1990.

Decided March 28, 1990.

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 put 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. (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 otherwise occupied in the programs of the Department.

It is clear from the language of this passage that the Department is given discretion over job assignment decisions. It is required to place inmates in jobs only insofar as possible; there is no mandatory language requiring a particular outcome. The existence of this type of discretion negates the creation of a protected liberty interest. Thompson, 109 S.Ct. at 1910; Mathews, 779 F.2d at 414; Shango, 681 F.2d at 1100.

Joihner argues, however, that the two administrative regulations that address the specific criteria used to place prisoners in work camps combine with the statute to create a protected liberty interest. First, the Department has promulgated administrative directive 05-06-115A, entitled "Transfers to Adult Facilities and Work/Road Camps," which provides, in part:

F. Requirements for Processing Transfers to Work/Road Camps

The transfer of an inmate to a work/road camp shall be approved only for the camp under the administration of the facility where the inmate is currently located. The Institutional Assignment Officer shall review inmate applications for transfer to a work/road camp.

1. If the Institutional Assignment Officer recommends that the inmate be transferred to a work/road camp, the application and the Officer's recommendation shall be reviewed and approved/disapproved by the Chief Administrative Officer.

2. If the inmate is approved for transfer, his medical file shall be reviewed prior to transfer to ensure there are no pending medical problems, the nature of which would preclude transfer.

This directive was issued on March 1, 1986 (several months before Joihner first requested placement) and defendant Stephen McEvers, Logan's Warden, issued Bulletin No. 14 on March 17, 1986 specifically to direct the placement of inmates at the Hanna City work camp which was under his jurisdiction. Bulletin No. 14 provides, in part:

RE: NEW CRITERIA FOR HANNA CITY WORK CAMP TRANSFER Effective immediately, the new criteria allows [sic] for inmates who ...

4) Have no serious medical problems such as, but not limited to, a severe heart condition, or any disability that requires confinement to a wheelchair or results in limited mobility....

Joihner points out that these regulations contain explicit, mandatory language such as "shall be approved" and "shall be reviewed." He argues that this language, when read in conjunction with the state statute calling for jobs for those inmates "physically...