Pardo v. Hosier

• Decision Date: 14 June 1985
• Docket Number: 80-2248.,No. 80-2178,80-2178
• Citation: 611 F. Supp. 693
• Parties: Enrique PARDO, Plaintiff, v. Paul HOSIER, Don Polizzi, Louis Lowery, Kent Mills, and Lt. R. Foster, Defendants. La Carttle JONES, Plaintiff, v. Gayle M. FRANZEN, James W. Fairman, L.O. Lowery, Eugene Robinson, Lt. Denge Dennis and J.A. Davis, Defendants.
• Court: U.S. District Court — Central District of Illinois

611 F. Supp. 693

Enrique PARDO, Plaintiff, v. Paul HOSIER, Don Polizzi, Louis Lowery, Kent Mills, and Lt. R. Foster, Defendants.

La Carttle JONES, Plaintiff, v. Gayle M. FRANZEN, James W. Fairman, L.O. Lowery, Eugene Robinson, Lt. Denge Dennis and J.A. Davis, Defendants.

Nos. 80-2178, 80-2248.

United States District Court, C.D. Illinois, Danville Division.

June 14, 1985.

COPYRIGHT MATERIAL OMITTED

Mary Perlstein, Todd M. Tennant, Champaign, Ill., for plaintiff.

Steve Kehoe, Asst. Atty. Gen., Chicago, Ill., for defendants.

ORDER GRANTING AND DENYING SUMMARY JUDGMENT IN PART

BAKER, Chief Judge.

This case is before the court on cross-motions for summary judgment. For the reasons stated below, summary judgment is granted for the plaintiffs in part and for the defendants in part.

In these consolidated cases, two inmates from the Pontiac Correctional Center raise five due process claims. First, the plaintiff Enrique Pardo alleges that on two separate occasions he was placed in administrative segregation improperly pursuant to Administrative Regulation 804(II)(J). Second, the plaintiff LaCarttle Jones alleges that on four separate occasions he was placed in administrative segregation improperly pursuant to Ad.Reg. 804(II)(C). Third, the plaintiff Jones alleges that he received three disciplinary tickets for violations of administrative regulations in September, 1980, and that the report of the hearing on each ticket failed to state an adequate summary of the evidence relied upon by the Adjustment Committee in finding the plaintiff guilty and failed to state reasons supporting the specific disciplinary action taken against him. Fourth, the plaintiff Jones alleges that the Adjustment Committee improperly refused to call a witness he requested at his Committee hearing on September 29, 1980. Finally, the plaintiff Jones alleges that he was denied his right to an impartial decision maker on April 5, 1981, when the defendant Lowery refused to disqualify himself from serving on the committee after being notified of this pending lawsuit.

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether summary judgment is proper, a court ordinarily must view the record in the light most favorable to the party opposing the motion, drawing all inferences most favorable to that party. Rose v. Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir.1973).

I. ENRIQUE PARDO

A. Segregation Pending Investigation

The plaintiff Pardo alleges that on two occasions, first in May, 1980, and again in June, 1981, he was segregated on investigative status without explanation and without notice of the charges or allegations which were under investigation. When Pardo was confined to the holding unit, he was told only that he was being placed on investigative status and that the investigation would last no more than thirty days. This issue is identical to the issue raised in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983): what limit does the Due Process Clause of the Fourteenth Amendment place on the authority of prison administrators to remove inmates from the general population and to confine them to a less desirable location for administrative reasons?

In Hewitt, the Court first noted the limits on the interests protected by the Fourteenth Amendment:

While no State may `deprive any person of life, liberty or property without due process of law' it is well settled that only a limited range of interests fall within this provision. Liberty interests protected by the Fourteenth Amendment may arise from two sources—the Due Process Clause itself and the laws of the States. Meachum v. Fano, 427 U.S. 215, 223-227 96 S.Ct. 2532, 2537-2539, 49 L.Ed.2d 451 (1976).

Hewitt, 459 U.S. at 466, 103 S.Ct. at 869. The Court further concluded that administrative segregation is the sort of confinement inmates should reasonably anticipate receiving at some point in their incarceration, and that sort of confinement does not invoke an interest independently protected by the Due Process Clause:

As long as the conditions or degree of confinement to which the prisoner is subject is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight. Montanye v. Haymes, 427 U.S. 236, 242 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). See also Vitek v. Jones, 445 U.S. 480, 493 100 S.Ct. 1254, 1263, 63 L.Ed.2d 552 (1980).

459 U.S. at 468, 103 S.Ct. at 869. Further, "it is plain that the transfer of an inmate to less amenable and more restrictive quarters for non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence." Id.

However, the Court observed a state may create a liberty interest protected by the Due Process Clause through its enactment of certain statutory or regulatory measures. Hewitt, 459 U.S. at 469, 103 S.Ct. at 870. The Court concluded that the repeated use of "explicitly mandatory language" by Pennsylvania in connection with requiring "specific substantive predicates" indicated that Pennsylvania had created a protected liberty interest for an inmate in continuing to reside in the general prison population:

Nonetheless, in this case the Commonwealth has gone beyond simple procedural guidelines. It has used language of an unmistakably mandatory character, requiring that certain procedures "shall," "will," or "must" be employed ... and that administrative segregation will not occur absent specified substantive predicates —viz., "the need for control," or "the threat of a serious disturbance."... We are persuaded that the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.

Hewitt, 459 U.S. at 471-72, 103 S.Ct. at 871.

In the present case, Pardo was twice confined to a segregation holding unit pending investigation pursuant to Ad.Reg. 804(II)(J). Ad.Reg. 804(II)(J) provides in relevant part that:

1. It is recognized that incidents occur which, in the interest of institutional security and safety, require that a resident be removed from the general population and placed in a holding unit pending the completion of an investigation. As the holding unit functions in the same manner as a segregation unit (except that single celling is not required in the holding unit), a resident must be provided with the same procedural safeguards and services as are required by this regulation relative to placements, conditions and services in a segregation unit.

2. A resident disciplinary report must be prepared and the appropriate hearing before the institutional Adjustment Committee must be held within the 72-hour guideline. The report and hearing should provide the resident with as much information as possible regarding the incident which resulted in his/her placement in a holding unit. It is not necessary that information which would be a detriment to the investigative process be provided to the resident; however, sufficient evidence must be provided so that the resident understands the reason for placement on investigative status and the general nature of the allegations or charges under investigation. (Emphasis added.)

Ad.Reg. 804(II)(J) uses similar "mandatory language" in connection with requiring "specific substantive predicates" as did the Pennsylvania regulations at issue in Hewitt. The Illinois regulation uses mandatory language requiring that certain procedures "must" be employed, and that administrative segregation will not occur absent a specified substantive predicate— viz., "in the interest of institutional security and safety." Consequently, the court concludes that Ad.Reg. 804(II)(J) creates a liberty interest in continuing to reside in the prison's general population.¹

This conclusion is consistent with the Seventh Circuit's approach in Arsberry v. Sielaff, 586 F.2d 37 (7th Cir.1978):

Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976) make it clear that the Supreme Court looks primarily to state law as the source of prisoners' liberty interests. Essentially a plaintiff must demonstrate a justifiable expectation that he will not be deprived of a benefit absent the occurrence of specified events. Meachum, 427 U.S. at 226-27 96 S.Ct. at 2539; Montanye, 427 U.S. at 242 96 S.Ct. at 2547.

The question then is what is sufficient to create the necessary justifiable expectation.... In essence, prisoners must show some restriction upon the prison officials' discretion to remove the benefit sought. Lombardo v. Meachum, 548 F.2d 13 (1st Cir.1977). In Meachum and Montanye, the court indicated that the states could create the necessary entitlements "by statute, by rule or regulation, or by interpretation of their own constitutions". Meachum, 427 U.S. at 229 96 S.Ct. at 2540.

Id. at 46.

"Explicitly mandatory language" is but one way of showing "some restriction upon the prison officials' discretion to remove the benefit sought." A justifiable expectation that a benefit will not be withheld "absent the occurrence of specified events" is another way of stating that the benefit will not be denied "absent specified substantive predicates." Consequently, under either approach, Ad.Reg. 804(II)(J) creates a protected liberty interest for an inmate in continuing to reside in the general population.

Once the existence of a liberty interest is ascertained by reference to state law, the task of defining the procedural protections which attach to that interest is wholly a...