McCollum v. Miller

• Decision Date: 22 March 1983
• Docket Number: 81-2539 and 81-2496,81-2401,Nos. 81-2253,s. 81-2253
• Citation: 695 F.2d 1044
• Parties: Gerald McCOLLUM, Clifton C. Piggie-Bey, Harry L. Greene-El, and Reynaldo Ramirez-Rodriguez, Petitioners-Appellants, v. Harold MILLER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1044

695 F.2d 1044

Gerald McCOLLUM, Clifton C. Piggie-Bey, Harry L. Greene-El and Reynaldo Ramirez-Rodriguez, Petitioners-Appellants, v. Harold MILLER, Warden, Respondent-Appellee.

Nos. 81-2253, 81-2401, 81-2539 and 81-2496.

United States Court of Appeals Seventh Circuit.

Argued Sept. 15, 1982.

Decided Dec. 20, 1982.

As Amended on Denial of Rehearing and Rehearing

En Banc March 22, 1983.

Michael E. Deutsch, Deutsch, Glick, Hass & Taylor, Chicago, Ill., for petitioners-appellants.

Robert T. Coleman, Asst. U.S. Atty., James R. Burgess, U.S. Atty., East St. Louis, Ill., for respondent-appellee.

Before CUDAHY, Circuit Judge, WEICK, ^* Senior Circuit Judge, and POSNER, Circuit Judge.

POSNER, Circuit Judge.

These consolidated appeals from the denial of petitions for habeas corpus raise the question whether four inmates at the federal penitentiary at Marion, Illinois were denied due process of law in prison disciplinary proceedings, and thereby deprived of their liberty in violation of the Fifth Amendment.

Three of the four received the identical statement of the charges against them: "Information has been received from various confidential sources, that during the months of June, July and August, 1980, while confined in [Marion] you pressured other inmates to pay you commissary and perform homosexual acts with you. You applied this pressure by threat of harm to their person or their friends." The statement of charges against the other petitioner, Ramirez-Rodriguez, was almost the same, the main difference being the addition of the words "or caused pressure to be applied" after "pressured." Ramirez-Rodriguez was thought to be the ringleader of the gang of extortionists, the other three inmates to be members.

No additional particulars of the charges were furnished to the petitioners, on the ground that to do so would identify the confidential informants and expose them to retaliation by the petitioners or their friends. A prison investigator investigated the charges, primarily by interviewing the informants, and wrote up the results of his investigation in a report that he submitted to the prison's Institution Discipline Committee. See 28 C.F.R. Secs. 541.12(b), 541.14, 541.15. On the basis of this report the Committee found the petitioners guilty of the offenses charged. The Committee's decision in each case essentially repeats the charges and adds: "Information received from confidential sources have [sic] proven reliable ... in the past." Neither the investigator nor any of the informants testified, and the report was not submitted under oath. The informants' statements as summarized in the report were virtually the only evidence before the Committee when it made its decisions, for though the petitioners could have testified before the Committee if they had wanted to, and some did, they had little to offer beyond general denials.

By way of punishment the Committee ordered that Ramirez-Rodriguez, the supposed ringleader, forfeit 224 days of time off for good behavior and be placed in disciplinary confinement, see 28 C.F.R. Secs. 541.18, 541.19, for an indefinite period with periodic reviews, see id., Sec. 541.18(c). The Committee recommended that his disciplinary confinement be in the prison's "Control Unit"--a kind of halfway house to solitary confinement, see Bono v. Saxbe, 620 F.2d 609, 613 (7th Cir.1980); 28 C.F.R. Sec. 541.40--where he remains to this day. The Committee ordered the other three petitioners put in disciplinary confinement for 30 days, and apparently they ended up in the Control Unit too, but have since been released from it. All four filed petitions for habeas corpus in federal district court, and appeal to this court from the denial of their petitions by a federal magistrate to whom the cases were referred by agreement of the parties. The petitioners' counsel has not been allowed to read the investigator's report on which the Institution Discipline Committee acted.

As an original matter one might doubt whether prison inmates, who have already been deprived of their liberty pursuant to a valid conviction and sentence, can complain that they are being deprived of their liberty anew, as it were, by a disciplinary sanction which merely reduces the amenities of confinement and does not increase, directly anyway, its length; or if so whether they can get relief by applying for habeas corpus, traditionally a remedy for people who are unlawfully confined, as these inmates are not. Although Ramirez-Rodriguez has lost good-time credits, there is no allegation that were it not for that deprivation he would be eligible for release, on parole or otherwise. And while he, at least, can argue that he is seeking release from custody in a sense--custody in the Control Unit, conceived as a different sort of confinement from custody in the prison at large--the other three petitioners cannot make this argument, having since been released from their disciplinary confinement.

Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S.Ct. 2963, 2974-2975, 41 L.Ed.2d 935 (1974), has stilled the first of these doubts and made clear that a prisoner can complain about a deprivation of liberty brought about by a disciplinary sanction. As for whether habeas corpus is a proper remedy for someone unlawfully confined in a Control Unit or the equivalent, many cases assume without discussion that it is. See, e.g., Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Kyle v. Hanberry, 677 F.2d 1386 (11th Cir.1982). Krist v. Ricketts, 504 F.2d 887 (5th Cir.1974) (per curiam), holds explicitly that it is. We think this holding is correct, especially after Wolff. If, as Wolff holds, due process can be violated by placing a prisoner in the Control Unit, the prisoner ought to have a remedy that gets him out of it, and habeas corpus is the normal remedy for one unlawfully confined. True, release would not be into the world outside the prison. But habeas corpus can be used to get a person released on parole if his parole was revoked unlawfully, even though in modern thinking parole is a form of custody, see Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). This shows that habeas corpus can be used to get from a more to a less restrictive custody--which is what Ramirez-Rodriguez is seeking.

But the other three petitioners are not seeking release from custody in the Control Unit or in any other place of confinement; their principal concern appears to be that the finding by the Institution Discipline Committee of a disciplinary infraction may delay their parole. It may. See 28 C.F.R. Sec. 2.36(a). And it is irrelevant that they may not be entitled to an immediate parole if the finding of infraction is expunged; habeas corpus has been held to be the proper method of challenging the duration of imprisonment. Preiser v. Rodriguez, 411 U.S. 475, 487-88, 93 S.Ct. 1827, 1835, 36 L.Ed.2d 439 (1973). But unlike Preiser there is no automatic relationship in this case between the finding of infraction and the length of imprisonment. Cf. 411 U.S. at 487, 93 S.Ct. at 1835. It is in the Parole Board's discretion whether a disciplinary infraction shall delay parole, and if so by how long. See 28 C.F.R. Sec. 2.36(b). That makes this case somewhat similar to Williams v. Ward, 556 F.2d 1143, 1151 (2d Cir.1977), which held that a "petition challenging parole procedures but not demanding release or the granting of parole" could not be brought under the habeas corpus statute because, "Although the relief sought by petitioner may improve his chances for parole, the question of his release and of the length of his confinement still lies within the sound discretion of the [parole] board ...." The proper remedy was therefore an action under 42 U.S.C. Sec. 1983. See 556 F.2d at 1150-51.

Williams, however, may be distinguishable from a case such as the present, where the regulations governing parole specifically authorize, although they do not compel, the Parole Board to delay parole because of disciplinary infractions, and the prisoner is challenging his "conviction" for such an infraction. It was entirely uncertain in Williams whether a successful challenge to the Parole Board's procedures would result in the petitioner's being paroled; but it is likely, though not certain, that getting a disciplinary finding expunged will accelerate a prisoner's eligibility for parole and hence the date when he is paroled. The present case may therefore be closer to cases which hold that habeas corpus is an appropriate remedy "where a prisoner in custody pursuant to one conviction might receive credit on that sentence if he prevails in his attack on a prior, fully served, and unrelated sentence," Harrison v. State of Indiana, 597 F.2d 115, 117 (7th Cir.1979), than it is to Williams.

But we do not think we should decide this question on a record as scanty as the one in these cases. It contains no evidence from which one can infer that if the disciplinary proceedings against these three petitioners are set at naught the length of their imprisonment may--with sufficient probability to warrant judicial review on habeas corpus of the Institution Discipline Committee's findings--be reduced. Ramirez-Rodriguez's situation is different, not only because he is still in the Control Unit and habeas corpus is the appropriate procedure for getting out, but also because like the petitioner in Preiser he lost good time by reason of the...