United States ex rel. Miller v. Twomey, No. 71-1854

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: SWYGERT, , and PELL and STEVENS, Circuit
• Citation: 479 F.2d 701
• Parties: UNITED STATES of America ex rel. Luther MILLER, Plaintiff-Appellant, v. John J. TWOMEY, Warden, and Peter B. Bensinger, Director, etc., Defendants-Appellees. Andrew GREEN, Plaintiff-Appellant, v. Peter BENSINGER et al., Defendants-Appellees. Jack R. THOMAS, Plaintiff-Appellant, v. Peter B. BENSINGER, etc., et al., Defendants-Appellees. Herman KRAUSE and Willie Moore, etc., et al., Plaintiffs-Appellees, v. Wilbur J. SCHMIDT, etc., et al., Defendants-Appellants. Alfred ARMSTRONG et al., Plaintiffs-Appellants and Plaintiffs-Intervenors-Appellants, v. Peter B. BENSINGER et al., Defendants-Appellees. Simon S. GUTIERREZ, Plaintiff-Appellant, v. DEPARTMENT OF PUBLIC SAFETY, et al., Defendants-Appellees.
• Decision Date: 16 May 1973
• Docket Number: No. 71-1854,71-1869,71-1870,72-1395,72-1712,72-1713 and 71-1370.

479 F.2d 701 (1973)

UNITED STATES of America ex rel. Luther MILLER, Plaintiff-Appellant,
v.
John J. TWOMEY, Warden, and Peter B. Bensinger, Director, etc., Defendants-Appellees.
Andrew GREEN, Plaintiff-Appellant,
v.
Peter BENSINGER et al., Defendants-Appellees.
Jack R. THOMAS, Plaintiff-Appellant,
v.
Peter B. BENSINGER, etc., et al., Defendants-Appellees.
Herman KRAUSE and Willie Moore, etc., et al., Plaintiffs-Appellees,
v.
Wilbur J. SCHMIDT, etc., et al., Defendants-Appellants.
Alfred ARMSTRONG et al., Plaintiffs-Appellants and Plaintiffs-Intervenors-Appellants,
v.
Peter B. BENSINGER et al., Defendants-Appellees.
Simon S. GUTIERREZ, Plaintiff-Appellant,
v.
DEPARTMENT OF PUBLIC SAFETY, et al., Defendants-Appellees.

Nos. 71-1854, 71-1869, 71-1870, 72-1395, 72-1712, 72-1713 and 71-1370.

United States Court of Appeals, Seventh Circuit.

Argued December 6-8, 1972.

Decided May 16, 1973.

Rehearing Denied July 20, 1973.

479 F.2d 702

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479 F.2d 703

James M. Rosenbaum, Marilyn R. Brown, Minneapolis, Minn., Andrew Martin Green, Carbondale, Ill., John F. Ebbott, c/o Freedom Through Equality, Milwaukee, Wis., Michael Deutsch, Jeffrey H. Haas, Mark Kadish, Chicago, Ill., David Goldberger, c/o American Civil Liberties Union, Chicago, Ill., John A. Rupp, Cook County Legal Assistance Foundation, Brookfield, Ill., John F. McGuire, Berwyn, Ill., for plaintiffs-appellants

William J. Scott, Atty. Gen., Ronald Hanna, Charles H. Levad, Jayne A. Carr, Asst. Attys. Gen., Chicago, Ill., Robert W. Warren, Atty. Gen., Mary V. Bowman, Asst. Atty. Gen., Madison, Wis., for defendants-appellees.

Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.

Rehearing Denied in No. 71-1854 July 20, 1973.

STEVENS, Circuit Judge.

These cases, all presenting questions relating to the internal administration of state prisons, require us to consider the implications of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, which was decided while these appeals were pending. In all cases, prisoners allege violations of federal rights protected by 42 U.S.C. § 1983; conversely, the prison officials all contend that their conduct was within an area of discretion which is not properly reviewable by a federal court.

In Miller, Green, and Thomas, three different district judges dismissed without any hearing pro se complaints challenging the Illinois procedures for denying "good time" credits. In Krause, the court held that due process must be afforded before the state can punish inmates by segregation or revocation of good time credits: the Wisconsin authorities appeal from the issuance of a preliminary injunction which, they contend, improperly limits their power over prisoners. In Armstrong, a group of prisoners claim that, without adequate procedural safeguards, they were placed in a "Special Program Unit" because they were allegedly more dangerous than the general prison population; on appeal, the prisoners argue that the relief granted by the district court was insufficient. Finally, in Gutierrez, a prisoner who was severely injured by a fellow inmate sued the warden for damages because he failed to segregate the violence-prone assailant from the general prison population; the district court dismissed the action.

At the outset, we are confronted with the impact of Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). For it is now clear that to the extent these prisoners seek the restoration of good time credits, their remedy is by way of habeas corpus rather than by § 1983. It is also clear that a pleading filed under § 1983 may be read to claim habeas corpus relief. Cf. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418. However, neither in the district courts nor in this court did any defendant raise any objection to jurisdiction prior to the decision in Preiser. Unlike the situation in Preiser where both the existence of a New York remedy and the failure to invoke it were perfectly clear, neither the briefs nor the records shed any light on the availability of possible state remedies

479 F.2d 704

in either Illinois or Wisconsin. Compare Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, with Marino v. Ragen, 332 U.S. 561, 567-570, 68 S.Ct. 240, 92 L.Ed. 170 (Mr. Justice Rutledge, concurring). We are therefore not in a position to determine whether an unargued defect in jurisdiction is present. For that reason, our disposition of these cases will not foreclose a fresh examination of the jurisdictional issue in the district courts after remand. We express no opinion on the legal questions relating to the existence of state remedies nor on any factual determination that may be necessary on the exhaustion issue. Nor do we express any opinion on the possible significance of Preiser on questions relating to punitive segregation

Because our consideration of the various questions presented must take into account the manifold problems that recur in a prison society, we shall first summarize the facts of these cases; we shall then consider the impact of Morrissey before ruling on the specific legal issues presented.

I.

A. Miller, Green and Thomas.

Each of these pro se complaints, fairly read, alleged that a revocation of statutory good time constituted a deprivation of liberty without due process of law. By statute an Illinois prisoner is entitled to receive good time credits for good behavior;¹ such credits reduce the maximum sentence he must serve and also may accelerate the date on which he becomes eligible for parole.² If prison rules are violated, good time credits may be revoked or withheld as punishment.

Miller's complaint alleged that on May 12, 1969, 90 days of statutory good time was revoked on the ground that he had "indirectly" called an officer a foul name; his next appearance before the Parole Board was therefore delayed and he also suffered a loss of other privileges. He alleged that the discipline was imposed pursuant to prison rules promulgated approximately 19 years ago; and that the proceedings "were held `ex parte' with petitioner having no representation, nor defense." The day after the complaint was filed, the district judge, on his own motion, dismissed the complaint as "frivolous."³

Green's complaint included several different claims; the issues on appeal, however, relate only to the dismissal of the allegations relating to the revocation of 21 months of statutory good time. Green alleged generally that the due process clause was violated by the manner in which the "Merit Staff" took away good time on the recommendation of three penal officers⁴ without permitting him to appear in defense.

Respondents' affidavits contain a more detailed description of the customary procedure. The affidavit of the Warden of the Illinois State Penitentiary at Joliet, where Green is confined, states:

"It is my understanding that prior to November 1970, the following procedure was used in revoking a prisoner\'s

479 F.2d 705

Statutory Good Time: The prisoner was called to the Isolation Building on a call ticket, the disciplinary charge was read to the prisoner, and he was asked whether it was true or false. On major violations of the rules, the two captains would decide what action was to be taken against the prisoner. If the charge was serious enough, they would also refer his case to the Merit Staff for further action. If the prisoner emphatically denied the charge, the captains would investigate the incident. When his case was referred to the Merit Staff, the charges would be read by the captain to the full committee, the case would be discussed, and they would recommend the penalties to be given to the prisoner. If the penalty was the loss of Statutory Good Time, the recommendation would have to be approved by the Warden and then sent to the General Office in Springfield, Illinois, for the final approval of the Director of the Department of Corrections."⁵

Respondent states that under the rules of the Department of Corrections then in effect, good time was not revoked until after the prisoner had committed at least four rule infractions.⁶ According to his disciplinary report, Green committed four such offenses between October 9, 1965, and February 17, 1966, and thereafter was eligible for deprivation of any part or all of the good time he

479 F.2d 706

had earned, or might thereafter earn.⁷ In five separate disciplinary actions between March 7, 1967, and January 8, 1970, Green lost a total of 21 months of good time.⁸

The district court found petitioner's allegations insufficient. The court held that the Constitution requires only that "the facts be rationally determined" and that the inmate "be afforded a reasonable opportunity to explain his actions." The court decided that Green's allegations did not establish a failure to satisfy those requirements.⁹

Thomas's complaint alleges that without an adequate hearing he was placed in solitary confinement for 15 days for sending a letter to an ex-inmate in an illegal way.¹⁰ The record also reveals

479 F.2d 707

that one month of his statutory good time was revoked. The district court dismissed his complaint on the authority of Walker v. Pate, 356 F.2d 502 (7th Cir. 1966), cert. denied 384 U.S. 966, 86 S.Ct. 1598, 16 L.Ed.2d 678.¹¹ On appeal, he seeks restitution of this good time

Counsel for Green, Miller and Thomas have limited their contentions in this court to the issues concerning their loss of statutory good time. In each of these cases the challenged action took place before the change in disciplinary procedures which became effective on December 1, 1970.¹² The specific procedural defects which they challenge are summarized in their brief as follows:

"Plaintiff-Appellants urge this Court to find the rules and procedures under which they were deprived of their accrued good time and of the opportunity to earn additional good time to be null, void, and without effect for these reasons:

"a.

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