Kellas v. Lane, 89-2923.

• Decision Date: 18 October 1990
• Docket Number: No. 89-2923.,89-2923.
• Citation: 923 F.2d 492
• Parties: Gary L. KELLAS, Plaintiff-Appellant, v. Michael P. LANE, Philip L. Tinsley, Mark Varner, David Zempel, Ike Tressler, Lieutenant Ticer, Davis Morris, R. Bogan, James W. Fairman, Jr., Frank X. Zeimetz, Stacey McKinley, Linwood Johnson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

923 F.2d 492

Gary L. KELLAS, Plaintiff-Appellant, v. Michael P. LANE, Philip L. Tinsley, Mark Varner, David Zempel, Ike Tressler, Lieutenant Ticer, Davis Morris, R. Bogan, James W. Fairman, Jr., Frank X. Zeimetz, Stacey McKinley, Linwood Johnson, Defendants-Appellees.

No. 89-2923.

United States Court of Appeals, Seventh Circuit.

Submitted October 9, 1990.^*

Decided October 18, 1990.^**

Amended as an Opinion January 22, 1991.

Gary L. Kellas, Joliet, Ill., pro se.

Neil F. Hartigan, Atty. Gen., Jerald S. Post, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.

Before COFFEY, FLAUM and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

I.

After having served 360 days in disciplinary segregation in the Centralia Correctional Center, inmate Gary L. Kellas was moved to the Joliet Correctional Center, where he was kept in disciplinary segregation for three more days and then, on January 27, 1988, was placed in involuntary protective custody without notice. Upon filing a grievance, he was summoned before the Illinois Department of Corrections Administrative Review Board on February 23, 1988. At that time Kellas told the Board that if they wanted to keep him in involuntary protective custody for a while, he understood, but that he was interested in knowing how long he was going to be confined in that area. The Board unanimously decided that it was in the best interest of Kellas to continue his confinement in protective custody "in view of his rank in the Northsiders gang." Complaint, Exhibit G. Kellas claims that his custody status has not been reevaluated.

Kellas filed a civil rights action pursuant to 42 U.S.C. §§ 1983 and 1985(3) arising under the first and fourteenth amendments. On the same day he also filed a motion for a preliminary injunction seeking to enjoin the defendant prison officials from keeping him detained in protective custody involuntarily. The district court denied his motion for a preliminary injunction, finding that Kellas did not demonstrate irreparable harm or an inadequate remedy at law. He now appeals from that denial.

II.

Appellate review of a district court's decision to grant or deny a preliminary injunction is deferential "insofar as that decision involves the discretionary acts of weighing evidence or balancing equitable factors," United States v. Baxter Healthcare Corp., 901 F.2d 1401, 1407 (7th Cir.1990), but is limited and will be reversed only if the district court has abused its discretion. Schwinn Bicycle Co. v. Ross Bicycles, Inc., 870 F.2d 1176, 1180 (7th Cir.1989). However, any legal conclusions reached during the consideration of a motion for a preliminary injunction are subject to de novo review. Id. at 1181.

"The purpose of a preliminary injunction is to minimize the hardship to the parties pending the ultimate resolution of the lawsuit." Faheem-el v. Klincar, 841 F.2d 712, 717 (7th Cir.1988). To support the issuance of a preliminary injunction, a plaintiff must demonstrate: 1) a reasonable likelihood of success on the merits; 2) the inadequacy of a remedy at law; 3) the existence of irreparable harm without the injunction; 4) that the threat of harm to the plaintiff outweighs any harm to the defendant if the injunction were issued; 5) that the public interest would not be disserved if the injunction were granted. Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1014-15 (7th Cir.1990). Though "the plaintiff must satisfy each of these elements to prevail," id. at 1015, his threshold burden is to show the first three factors. Ping v. Nat'l Educ. Ass'n, 870 F.2d 1369, 1371 (7th Cir.1989). Only once this burden is met does the inquiry become "a `sliding scale' analysis of the harm to the parties and the public from the grant or denial of the injunction and the actual likelihood of success on the merits." Id.

The district court did not reach the sliding scale analysis because it found that Kellas did not meet his threshold burden of showing the inadequacy of a remedy at law or irreparable harm. As in Ping, we agree that the sliding scale analysis was not necessary in this case, but we find that the injunction should not have been granted because Kellas did not meet his threshold burden of showing some likelihood of success on the merits. Ping, 870 F.2d at 1372.

The plaintiff need only show that his "chances are better than negligible." Somerset House, 900 F.2d at 1015. Notwithstanding this low standard, we believe that, as a matter of law, Kellas has no likelihood of prevailing on the merits and, consequently, the preliminary injunction was properly denied.

Kellas contends that he had a liberty interest in being in the general prison population and that the defendant prison officials violated his constitutional right to due process of law. While section 1983 itself confers no substantive federal rights, it is designed to remedy deprivations of federal rights by a state actor. Estate of Himelstein v. City of Fort Wayne, Ind., 898 F.2d 573, 575 (7th Cir.1990). "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." Russ v. Young, 895 F.2d 1149, 1152 (7th Cir.1990). A claim of entitlement to the due process rights of life, liberty, and property can arise from either the due process clause or state law. Wallace v. Robinson, 914 F.2d 869, 872 (7th Cir.1990). Though the fourteenth amendment itself does not create a liberty interest in a prisoner's remaining in the general population, Woods v. Thieret, 903 F.2d 1080, 1082 (7th Cir.1990), "state law may create enforceable liberty interests in the prison setting." Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989). However, state procedural guidelines in themselves do not give rise to a liberty interest. Russ, 895 F.2d at 1153. Rather, the test for whether a statutory or regulatory procedure creates a protected due process interest is whether the state statutes or regulations have used "language of an unmistakably mandatory character, requiring that certain procedures `shall,' `will,' or `must' be employed," Wallace, 914 F.2d at 872. By the use of such language the state places substantive limitations on official discretion both by establishing substantive predicates to govern the official decisionmaking process and by mandating a certain outcome if the criteria have been met. Joihner v. McEvers, 898 F.2d 569, 571 (7th Cir.1990).

Kellas contends that the Procedure for Involuntary Placement, section 501.350,¹ places substantive limitations on the ability of Illinois correctional officials to keep him in involuntary protective custody, and that those limitations are supported by the provisions in sections 501.300 through 501.330,² such as would give rise to a liberty interest protected by the due process clause. Our reading of these provisions of the Illinois Administrative Code convince us that they do not create a liberty interest in being in a prison's general population. Section 501.320(b)(1)³ merely lists factors that the Assignment Committee may consider in making recommendations for placement in involuntary protective custody — it does not place substantive limitations on the ability of prison officials to keep a prisoner there. Additionally, we have held that the use of mandatory language in procedural guidelines that govern the use of temporary confinement alone do not create a liberty interest sufficient to trigger the due process clause. Woods, 903 F.2d at 1083. While the language used in these procedural guidelines is mandatory, expressing what the Chief Administrative Office or the Assignment Committee shall do when it is decided that a prisoner is to be placed involuntarily in protective custody, these guidelines are directed toward the prison officials and, thus, do not create a due process claim of entitlement on the inmates' behalf. Colon v. Schneider, 899 F.2d 660, 668 (7th Cir.1990).

"We have repeatedly rejected the notion that any and all state prison rules and regulations containing such language automatically create `legitimate claims of entitlement' triggering the procedural protections of the due process clause." Id. at 667. We have been particularly "reluctant to restrict unnecessarily ... the judgment of experienced prison administrators, especially those involving internal prison security and discipline." Id. Thus, a state creates a protected liberty interest only when it establishes "specific substantive predicates" that limit the discretion of official decisionmakers and mandates a particular outcome to be reached if the relevant criteria have been met. Thompson, 490 U.S. at 462-63, 109 S.Ct. at 1909-10. The procedure set forth in section 501.350 does not mandate a particular outcome if the procedures are followed. The decision whether initially to place an inmate in involuntary protective custody is discretionary where the Chief Administrative Officer determines the existence of "a clear and immediate threat to the safety of a committed person." Section 501.350(b). The decision whether an inmate remains in protective custody is also discretionary where it is determined that it is in the best interests of the inmate's "safety and security or the safety and security of the facility." Section 501.350(d). The regulations do not prescribe which factors to consider or at which point the inmate should or should not be kept in protective custody. Because the state of Illinois has not created a liberty interest in a prisoner in the general prison population as contrasted with one confined in protective custody, Kellas does not have any likelihood of success on the challenge to his rights under this section 1983 and section 1985(3) action.

In addition, Kellas has failed to demonstrate that he has met the other two threshold elements for the granting of a...