Shango v. Jurich

Decision Date23 June 1982
Docket Number81-3079,Nos. 81-2175,s. 81-2175
Citation681 F.2d 1091
PartiesSHANGO (Cleve Heidelberg, Jr.), Plaintiff-Appellee, v. Mary JURICH, et al., Defendants, Gayle Franzen, former Director of the Illinois Department of Corrections, and Richard DeRobertis, Warden of the Stateville Correctional Center, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Karen Konieczny, Asst. Atty. Gen., Chicago, Ill., for defendants-appellants.

George J. Casson, Jr., Bell, Boyd, & Lloyd, Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and BONSAL, Senior District Judge. **

ESCHBACH, Circuit Judge.

In this case Illinois prison officials appeal from two preliminary injunctions entered by the district court. Plaintiff, an Illinois state prisoner, claimed that prison officials had unlawfully transferred him from Stateville Correctional Center (Stateville) to Menard Correctional Center (Menard). Plaintiff also alleged that certain of his personal effects, which had been packed for transport, were never returned to him. Contending that the intrastate prison transfer and the failure to return his property constituted violations of his rights under the Fourteenth Amendment, he sought preliminary injunctive relief. The district court granted such relief, ordering Illinois prison officials to transfer plaintiff back to Stateville and to return his personal effects. Plaintiff was then transferred to Stateville, but his property was not returned to him. His stay in Stateville lasted but a few months; prison officials once again transferred him to Menard. Plaintiff contended that his transfer back to Menard warranted a contempt citation. The district court held that prison officials did not violate the preliminary injunction by transferring plaintiff back to Menard, but issued a second preliminary injunction ordering the officials to return plaintiff to Stateville once again. Our jurisdiction to review the preliminary injunctions is founded upon 28 U.S.C. § 1292(a)(1). For the reasons which follow, we hold that the issuance of these preliminary injunctions constituted an abuse of discretion and therefore reverse.


Plaintiff Cleve Heidelberg, Jr., known as "Shango" in the prison community, 1 is serving a long-term sentence in the Illinois correctional system. During his incarceration at Stateville, which began in 1970, he was active as a "jailhouse lawyer" and aided fellow inmates in a variety of legal proceedings.

In the summer of 1980, another inmate charged that Shango had sexually assaulted him. The details of this charge, and the ensuing disciplinary proceedings, are tangentially germane to the issues raised in this appeal in only two respects: first, Shango claimed that the prison officials used the charge as a mere pretext for harassing him for his legal work; and, second, Shango was committed to segregation for a period of one year commencing on July 14, 1980. 2

While Shango was exhausting his administrative remedies concerning his commitment to segregation on the sexual assault charge, a prison investigator in August 1980 confronted Shango with an allegation that Shango was in some way involved with weapons inside the prison. Although there was a conflict in the testimony concerning the precise nature of Shango's alleged contact with weapons, Shango professed ignorance regarding the charge. The investigator asked Shango to submit to a polygraph examination concerning the subject of weapons in the prison, but Shango refused, stating that if he knew anything about the subject he had acquired the information through his legal assistance to other inmates and would regard such information as confidential and privileged against disclosure. Stateville's warden, defendant Richard DeRobertis, who testified that he had received information in the spring of 1980 that Shango was a member of an organized group of prisoners which manufactured homemade weapons, discussed his concern about the subject with Shango in September 1980. Shango claimed that DeRobertis was pressing for what Shango considered to be privileged information and that DeRobertis attempted to induce his cooperation through promises of leniency. According to DeRobertis, Shango stated that it would be impossible for DeRobertis to prove that Shango was involved in the manufacturing of weapons, quoting Shango as saying, "To know is one thing; to show is another." 3

Warden DeRobertis ostensibly concluded that Shango was a threat to safety at Stateville because of his involvement with a weapons ring and decided that the transfer of Shango to another correctional facility was the appropriate response to the perceived threat. Consequently, DeRobertis recommended Shango's transfer and, after his transfer request was approved, Shango was transferred to Menard on October 30, 1980. Shango was not given a hearing concerning the transfer before his move. 4 When he was informed of his imminent move to Menard, Shango packed his personal effects into four cartons. Among the items contained in the cartons were law books, legal papers, personal writings, and political material. All of the cartons were transported to Menard, where officials retained custody of them purportedly for the purpose of inspecting their contents. Three of the boxes, containing legal materials and other personal effects such as clothing, were never returned to Shango. The interprison transfer of Shango did not affect his one year commitment to segregation; upon arrival at Menard, he was confined in a segregation unit as he had been in Stateville. 5


On November 19, 1980 Shango filed a pro se motion for a temporary restraining order in the U.S. District Court for the Northern District of Illinois seeking relief pertaining to his transfer and his confinement in segregation. The court denied the motion but appointed counsel to represent Shango regarding his claims. 6 Shango alleged that prison officials had placed him in segregation and had transferred him to Menard because he had refused to reveal information confided to him in connection with his legal assistance to other inmates, asserting a violation of his Fourteenth Amendment due process rights. He also alleged that the disciplinary proceedings on the homosexual assault charge were constitutionally deficient and that the seizure of his personal effects and the conditions of his confinement at Menard constituted violations of the Eighth Amendment's prohibition of cruel and unusual punishment. Plaintiff filed a motion for a preliminary injunction on December 31, 1980, seeking, inter alia, an order directing prison officials to transfer him back to Stateville, place him in non-segregation status there, restore good time credit, and return his personal effects to him. After a two day evidentiary hearing and the filing of post-hearing briefs, the court granted such a preliminary injunction in a Memorandum of Opinion and Order entered July 13, 1981. 521 F.Supp. 1196.

The district court held that plaintiff had not sustained his burden of demonstrating a likelihood of success on his principal claim that his confinement in segregation and transfer to Menard were the result of his refusal to reveal putatively confidential information to prison officials. Nevertheless, the court found the disciplinary proceedings resulting in his confinement in segregation violative of due process on procedural grounds and ordered a cessation of such confinement and a restoration of good time. Similarly, the court found a procedural due process violation regarding Shango's transfer to Menard. Proceeding on "the basis that Warden DeRobertis had a good faith belief that Shango posed a threat to the safety of Stateville," id. at 1202, the court held that administrative regulations of the Illinois Department of Corrections were not followed by prison officials with respect to Shango's transfer. The court interpreted these regulations to require a hearing prior to an inmate's interprison transfer, viewing the requirement as vesting a personal right to such a hearing in a prisoner recommended for transfer. 7 The court reasoned that the existence of the regulations created a justifiable expectation on the part of inmates that no transfer would occur without a hearing. This expectation, the court held, constitutes a liberty interest protected by the Fourteenth Amendment's due process clause. Because Shango was transferred without a hearing, the court concluded that he had been deprived of liberty without due process of law. Moreover, the court viewed the prison official's failure to provide him with a hearing as a per se violation of the Fourteenth Amendment's equal protection clause. These legal conclusions convinced the court that Shango had demonstrated "substantially more" than a likelihood of success on the merits of his claim. Id. at 1204. It also found the conditions of Shango's confinement at Menard "appalling" and indicated that such conditions constituted irreparable harm, but did not address the merits of plaintiff's Eighth Amendment argument. Id. at 1200, 1204. Finally, having found unconstitutional actions on the part of state officials and violations of plaintiff's due process rights, the court believed that "the injury to Shango must by definition outweigh any harm" that might be caused to defendants in granting the relief sought and stated that it is a "contradiction in terms to say that vindicating due process rights" could disserve the public interest. Id. at 1204.

Having thus applied the standards for imposing preliminary injunctive relief, the court ordered defendants to transfer Shango to Stateville. Given that the district court characterized Shango's due process right as coterminous with the perceived state created right to remain in a particular prison until a hearing was held concerning a recommended transfer, it is perhaps not...

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