Stringer v. Rowe

Decision Date30 April 1980
Docket NumberNo. 77-1985,77-1985
Citation616 F.2d 993
PartiesAuther STRINGER, Plaintiff-Appellant, v. Charles J. ROWE et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Robert A. Wason, Jenner & Block, Chicago, Ill., for plaintiff-appellant.

Victor Yipp, Illinois Dept. of Corrections, Chicago, Ill., for defendant-appellee.

Before SWYGERT, CUMMINGS, and SPRECHER, Circuit Judges.

PER CURIAM.

Plaintiff, an inmate at Stateville Correctional Center, appeals from the district court's order granting defendants' motions for summary judgment in a suit under 42 U.S.C. § 1983, alleging that certain officials of the Illinois Department of Corrections violated plaintiff's constitutional rights during the course of and following the disposition of a disciplinary report filed against him. We affirm in part and reverse in part.

According to his pro se complaint, Stringer was incarcerated at the Pontiac Correctional Center in Pontiac, Illinois, following his 1967 conviction for murder and armed robbery. On June 10, 1976 Stringer received a disciplinary report for pressuring three inmates to join an organization. The report, filed by defendant Donald Polizzi, a correctional lieutenant and internal affairs investigator at Pontiac, was based solely on interviews with the three inmates involved in the incident. As a result of the disciplinary report plaintiff was placed on deadlock in his cell. Three days later, he appeared before the Institutional Adjustment Committee (the "Committee"), which was chaired by defendant Thaddeus Pinkney, assistant warden. The Committee decided to further investigate and to place plaintiff in segregation pending completion of the On June 25, 1976 Stringer was removed from his cell. Handcuffed and wearing a security belt, he was brought before the Committee for a hearing on the charge filed against him. During his interview Stringer gave the Committee a list of witnesses who would testify on his behalf; however, plaintiff was informed that there was sufficient evidence to support the allegation of pressuring the inmates. In response to his questions, the Committee informed Stringer that in reaching the decision they relied on a phone call from defendant Fred Finkbeiner, the warden, stating he had additional information to support the charge against plaintiff. The Committee admitted that it did not know the substance of the information. Stringer was then assigned to the segregation unit of the prison.

investigation. Before this time plaintiff had been employed at the Pontiac law library.

Following his disciplinary hearing, Stringer was returned to his cell in the segregation unit by defendant Jack Conkle, a correctional officer at Pontiac, and four other prison guards. Shortly thereafter, defendant Polizzi approached plaintiff's cell and informed him that he was to be placed in a "control" cell of the segregation unit. Plaintiff, handcuffed and locked in his cell, alleges that he was talking with Polizzi about the manner in which he conducted the investigation of the charge when Conkle, without provocation, sprayed plaintiff in the face and on his back with mace. Plaintiff then was taken to the control cell and, approximately thirty minutes later, he was told that he was to be transferred to Menard Correctional Center, Menard, Illinois. He arrived at Menard later the same day and was placed in segregation, where he remained until September 8, 1976. Following the transfer, several of Stringer's personal papers, including his trial transcript and a habeas corpus petition, never arrived at the Menard prison.

One week after his transfer from Pontiac to Menard, plaintiff contacted defendant Richard Gramley, transfer coordinator for the Department of Corrections, to complain about his transfer. In response, Gramley told Stringer that he approved plaintiff's transfer because of his failure to adjust to the programming at Pontiac. (In his complaint, plaintiff alleged that the transfer was approved by defendant Finkbeiner to cover the errors of other prison officials in the investigation and disposition of the June 10, 1976 disciplinary report.)

Stringer grieved the disciplinary report, his transfer to Menard, and loss of property through the Department of Corrections grievance procedures. On August 5, 1976 the Administrative Review Board (the "Board") met with Stringer. It found that there had been "no violations of Administrative Regulation 804 in the disposition of this (disciplinary) report." 1 It further found that the transfer from Pontiac to Menard "was properly ordered and administered." The Board recommended that the warden of Menard prison have his staff contact Pontiac prison and "ensure that all of Mr. Stringer's personal property is delivered to him as expeditiously as possible." Defendant Charles Rowe, director of the Department of Corrections, concurred in these findings and recommendations. A copy of the decision was sent both to defendant Finkbeiner and to defendant Gramley. Stringer requested a rehearing with the Board. The request was granted on September 2, 1976. At the rehearing, the Board found that the Committee had failed to take "final action" on the disciplinary report and that "AR 804 has indeed been violated." The Board ordered the report be expunged from Stringer's record. Additionally, Stringer was released from segregation and his good-time credit restored. The Board again found that the transfer "was properly carried out." Defendant Rowe concurred in the findings and recommendations.

On October 27, 1976 Stringer filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 seeking monetary, declaratory, and injunctive relief against certain officials of the Department of Corrections. 2 The complaint charged numerous constitutional violations. In essence plaintiff alleged that: (1) he was convicted of a disciplinary violation and placed in segregation in violation of his due process and equal protection rights; (2) he was denied due process and equal protection of the laws by being transferred from the Pontiac prison to the Menard prison; (3) he was maced without provocation in violation of the Eighth Amendment; and (4) he was deprived of his personal property in violation of the Due Process Clause.

With the exception of Finkbeiner, all the defendants moved to dismiss the complaint or, in the alternative, for summary judgment. On July 21, 1977 the district court granted defendants' motions for summary judgment. As to the first two claims, the district court held that plaintiff failed to state a section 1983 cause of action because he had not challenged the disciplinary procedures employed in processing the charge against him and had not offered authority for the position that Illinois law establishes a liberty interest in being placed in a particular prison. The court further held that summary judgment was proper on the third claim because the "undisputed affidavits" showed that plaintiff had been maced because he was belligerent and threatening to prison officials. Lastly, the district court concluded that the fourth claim failed to state a cause of action under 42 U.S.C. § 1983 because plaintiff had not alleged that the confiscation of his property by the prison officials was intentional. This appeal followed.

Count I: Disposition of Disciplinary Report

In granting defendants' summary judgment motions, the district court held that plaintiff failed to state a claim that he was denied due process in connection with the disposition of the disciplinary report filed against him. The decision was grounded on plaintiff's failure in his complaint to "in any way challenge the disciplinary procedures employed in processing his June 10, 1976 charge," citing Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Plaintiff maintains that he has stated a due process claim on the basis of his allegations that Finkbeiner improperly interfered with the Committee proceedings and that Polizzi failed to conduct a reasonable investigation of the charge against him.

Before we can test plaintiff's complaint on this issue, a threshold question, which the district court failed to address, must be resolved: whether the placement of Stringer in disciplinary segregation infringed a liberty interest protected by the Due Process Clause. Following the decisions in 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), this court has held that a prisoner is not constitutionally entitled to procedural protections unless ". . . he has some justifiable expectation rooted in state law that the challenged action will not be taken absent the occurrence of a specified factual predicate." Arsberry v. Sielaff, 586 F.2d 37, 45 (7th Cir. 1978). In Meachum v. Fano, supra, 427 U.S. at 229, 96 S.Ct. at 2540, the Supreme Court held that the state could create a liberty interest "by statute, by rule or regulation." This court has recognized that a prisoner may have due process rights as a result of entitlements created by prison regulations and by official policies or practices. Arsberry v. Sielaff, supra, 586 F.2d at 47; Durso v. Rowe, 579 F.2d 1365, 1369 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979).

Plaintiff argues that by virtue both of Illinois statute and of prison regulation, he had a justifiable expectation that he would not be placed in segregation absent proof of a serious violation. Both section 3-8-7 of the Illinois Unified Code of Correction, Ill.Rev.Stat. ch. 38, § 1003-8-7(d) and (e) 3 and Administrative Regulation 804(II)(A)(3) and (4) 4 of the Department of Corrections distinguish between minor and serious disciplinary violations. According to AR 804, minor violations are handled informally by a Program Team, which may impose less stringent...

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