Krause v. Schmidt

• Decision Date: 25 April 1972
• Docket Number: No. 71-C-450.,71-C-450.
• Citation: 341 F. Supp. 1001
• Parties: Herman KRAUSE and Willie Moore, on behalf of themselves and all others similarly situated, and We Are Inmates Too, an unincorporated voluntary association, Plaintiffs, v. Wilbur J. SCHMIDT, individually and in his capacity as Secretary of the Department of Health and Social Services, et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

341 F. Supp. 1001

Herman KRAUSE and Willie Moore, on behalf of themselves and all others similarly situated, and We Are Inmates Too, an unincorporated voluntary association, Plaintiffs, v. Wilbur J. SCHMIDT, individually and in his capacity as Secretary of the Department of Health and Social Services, et al., Defendants.

No. 71-C-450.

United States District Court, W. D. Wisconsin.

April 10, 1972.

As Amended April 25, 1972.

John F. Ebbott, Milwaukee, Wis., for plaintiffs.

Mary V. Bowman, Asst. Atty. Gen., for defendants.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

Plaintiffs are presently incarcerated in the Wisconsin State Reformatory in Green Bay, Wisconsin. Pursuant to administrative disciplinary hearings, each of them is currently confined for an indefinite period in a "segregation unit" of the Reformatory. Plaintiffs have brought this suit for injunctive and monetary relief on behalf of themselves and all other inmates at the Reformatory similarly situated. Rule 23, Fed.R. Civ.P. Presently before this court is plaintiffs' motion for a preliminary injunction requiring the defendants to release them forthwith from segregation and to provide them with certain specific procedural safeguards at any subsequent disciplinary hearing.

For the purpose of this motion, and only for this purpose, I find as fact those matters stated below in the opinion under the heading "Facts".

FACTS

The Wisconsin Division of Corrections has promulgated a set of procedures to govern the operation of intra-institutional disciplinary hearings. Manual of Adult Institutions Procedures, §§ 5.9, 5.10 (Revised October, 1967; August, 1971). At all times material to this action, such procedures were in effect at the Green Bay Reformatory. The procedures provide that all inmates "cited for other than minor breaches of discipline", will be brought before a disciplinary committee. The committee is to be composed of three members, the Associate Warden of Security, the Associate Warden of Treatment, and a rotating member from the general staff. Sec. 5.9(a). Proceedings before the committee may be instituted only by the filing of a written complaint with a member of the committee by either a corrections officer or a staff member. Sec. 5.9(c). Committee sessions are held at such intervals "as will assure prompt disposition of all cases." Sec. 5.9(b). No form of punishment is to be administered prior to committee action "except for proper restraining measures in unusually serious incidents." Sec. 5.9(b). The committee considers only written reports signed by the staff member or officer bringing the complaint. The written report presented to the committee is given to the inmate, "if at all possible," several hours prior to his appearance before the committee (Modification # 1, revision of August, 1971); the accused inmate is given the opportunity to appear before the committee, to present statements to the committee, answer any questions of committee members, and provide any information sought by the committee. Sec. 5.9(c). After taking the evidence, the committee may deliberate privately and announce its decision to the inmate immediately thereafter. Sec. 5.9(d). The action of the committee is documented in a prescribed space on the original conduct report "with a concisely written statement (one or two sentences) giving justification for the action taken." (Modification # 4, revision of August, 1971.) Should the inmate wish to appeal the committee's action, the committee is to submit its findings to the Warden or Superintendent for final decision. Sec. 5.9(a).

The rules recited above constitute the entire set of written procedures governing the conduct of disciplinary hearings at the Reformatory. Neither the Manual of Adult Institutions Procedures nor any of the amendments thereto provide any further procedures.

Section 5.10 of the Manual of Adult Institutions Procedures empowers the disciplinary committee to impose sanctions on an inmate adjudged guilty of a misconduct charge. The Manual of Procedures does not list the range of possible punishments, but in practice, two of the more serious sanctions imposed are confinement in "lower segregation" and confinement in "upper segregation."

An inmate in the general population rooms in a cell of "adequate" size and sleeps on a bed of "some comfort." He is permitted to retain certain personal toiletries, such as soap, a shaving kit, toilet paper, towels, a toothbrush, toothpaste and shampoo. He may either attend school at the reformatory or participate in a reformatory work program. If he chooses to work, he earns money for the work performed. He is allowed to leave his cell for various portions of the day (either for school or work) and, in addition, is permitted to engage in recreation on certain weekdays and weekends. He is allowed to talk with other inmates and, if he remains in the general population, he may accumulate "good time" which will hasten his mandatory release date.

The prisoner confined in "lower segregation" is not permitted to work and thus can earn no money with which to purchase articles sold in the canteen, such as soap, toothpaste and cigarettes. He must sleep on a "hard" bed with just one sheet, a pillow and pillowcase. He is permitted no personal toiletries except a face towel and soap. He may leave his cell for a total of thirty minutes each week. And he may not earn "good time," a factor which delays his mandatory release date. If he is sentenced to "indefinite idle" status in lower segregation, he may be confined there for a period ranging from two to four months.

"Upper segregation" is called "the hole" by administration and inmates alike. The cell size is 12' × 5'; there is a cot with a mattress that is four inches thick; neither sheets nor pillow is provided for the cot. In the cell there is a bare light bulb that is always turned on, thus making it difficult to sleep. No toiletries are allowed: inmates must ask the guard on duty for soap and for toilet paper. The only reading matter permitted in the cell is the Bible, and no radios are allowed. The prisoner is not permitted to exercise; nor is he allowed to leave his cell. He may talk with no one (if he is caught speaking, he is penalized with another day in "the hole"). No money can be earned and no good time may be accumulated.

Misconduct "convictions," no matter what the sanction imposed for them, are referred to the parole board and affect adversely the inmate's application for parole.

On November 12, 1971, plaintiffs were reported to the disciplinary committee for alleged infractions arising out of a disturbance that occurred at the Reformatory on the evening of November 12. The charges against the plaintiffs were heard by the disciplinary committee on November 19, 1971. The members of the committee were Donald Clusen, Associate Warden Security, Kenneth Mathys, Associate Warden Treatment, and Robert Rosera, a corrections officer. On the morning of November 19, two or three hours in advance of their hearings, plaintiffs were given copies of the conduct reports filed against them. Each plaintiff had a private hearing before the committee, at which the conduct report was read to him. Each was given an opportunity to explain his actions and was asked questions by members of the committee. After hearing the plaintiffs and deliberating privately, the committee found plaintiff Krause guilty and sentenced him to indefinite idle in the lower segregation unit and found plaintiff Moore guilty and sentenced him to ten days in the upper segregation unit, followed by confinement in the lower segregation unit under indefinite idle status.

OPINION

Jurisdiction is present. 42 U.S.C. § 1983; 28 U.S.C. § 1343(3).

On a motion for a preliminary injunction, the movant must show that he is suffering irreparable harm and that he has a reasonably good chance to succeed on the merits. I am persuaded that plaintiffs are currently suffering irreparable harm. While life in the general population at the Reformatory naturally entails many restrictions on an inmate's freedom, confinement in either upper or lower segregation constitutes a deprivation of many, if not most, of those remaining freedoms which are highly valued in the prisoner's world. The loss of accumulated good time and the adverse affect exerted on applications for parole are two other significant hardships imposed upon plaintiffs. Thus, each day spent in segregation causes plaintiffs to suffer harms that are distinct and irreparable.

With respect to the plaintiffs' chances for ultimate success in this action, I refer initially to an opinion entered by this court in Morales v. Schmidt, 340 F. Supp. 544, 1972. As indicated there, I consider that the interest of an individual in fair procedures as a precondition to the imposition of serious sanctions is a fundamental interest. When the government undertakes to create a class of persons who have been convicted of crime and a class of persons who have not been convicted of crime, and to distinguish between these two classes with respect to fair procedures, the burden is upon the defendant officials to show a compelling governmental interest in enforcing the distinction. For the reasons set forth in this opinion, I conclude that the defendants have not yet made such a showing. Of course, they may ultimately be able to do so. But on the showing thus far made, the chance appears reasonably good that the plaintiffs will ultimately prevail.

Plaintiffs rely on Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) and recent decisions applying Goldberg to prison disciplinary hearings. Plaintiffs contend that Goldberg teaches that procedural due process must be provided whenever an individual is subject to "grievous loss" at the hands of the state or its instrumentalities; that the penalties imposed by the discipline committee at the Reformatory subject the plaintiffs to grievous loss, as defined in G...