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No Due Process in Seg Placement

In the August, 1995, issue of PLN we reported Sandin v. Conner, 115 S.Ct. 2293 (1995) in which the supreme court held that prisoners have no due process rights in disciplinary hearings as long as the length of their sentence is not affected, i.e. no good time is lost. We commented that under the new standard prison officials could place prisoners in segregation for no reason at all. A federal district court in Illinois, applying Sandin, has held just that.

Keith Leslie, an Illinois state prisoner filed suit after he was placed in segregation for no reason. The defendants moved for dismissal after Sandin was decided claiming they could have placed Leslie in segregation for any reason or no reason at all. The court gave an extensive discussion of Sandin and how it applies to prisoners' disciplinary due process claims.

"This court, like the four dissenting justices, sees Sandin as having taken a near quantum-leap from the earlier cases on which it grounds itself. In this action the consequences of taking Sandin at its word (as this court is obliged to do) is to arm prison authorities, who have heretofore possessed uncircumscribed powers over the inmates within their custody only to a limited extent, with now unrestrained power to punish those inmates by arbitrary reassignment to the meaningfully more restrictive environment of segregated confinement. And it appears that can be done by a correctional official for no reason at all, even out of sheer vindictiveness, because the absence of due process means nothing in terms of a Section 1983 claim unless the inmate's liberty interest has been infringed."

"That result, which effectively treats wrongful commitment to segregation as an inherent consequence, a sort of assumed risk, of being in prison to begin with, strikes this court as one more befitting a totalitarian regime than our own, and it is hard to credit that outcome as flowing from a principled Supreme Court decision. But this court's duty is to take the Supreme Court at its word, and the dismissal of Leslie's claim appears to this court to be the necessary outcome of a straightforward application (and not an extension) of Sandin." The court urged Leslie to appeal this ruling to test the accuracy of this view. The court supplemented its order with reference to Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995) which discussed the application of Sandin to prison disciplinary hearings and that ruling concurred with this one. See PLN, Vol. 7, No.3. This case differs from Whitford because in that case Sandin had not been decided by the supreme court and the district court did not brief or address the issue.

Judge Shadur, the author of this ruling, noted numerous flaws in the supreme court's "reasoning" in Sandin which showed how isolated from prison reality the supreme court is. Judge Shadur was puzzled that the supreme court would compare disciplinary segregation with ad seg and protective custody segregation when the vast majority of prisoners are in general population and not subjected to those restrictive conditions. "With all due deference to our highest judicial authority, this court believes that the record to which the text quotation refers has spawned a false premise, and that false premise has in turn led to the false conclusion that disciplinary segregation status does not impose a meaningful impairment and therefore does not implicate the deprivation of a liberty interest." In the wake of Sandin prisoners will be arguing whether disciplinary segregation is a "significant and atypical deprivation" in prison. This court's footnote explains how segregation differs from general population and will be helpful showing that difference. See: Leslie v. Doyle, 896 F. Supp. 771 (ND IL 1995).

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Related legal case

Leslie v. Doyle

KEITH LESLIE, Plaintiff, v. WILLIAM J. DOYLE, Defendant.



No. 93 C 7513



UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION



896 F. Supp. 771; 1995 U.S. Dist. LEXIS 11643



August 9, 1995, Decided

August 9, 1995, filed







SUBSEQUENT HISTORY: [**1] Supplemental Opinion of August 10, 1995, Reported at: 1995 U.S. Dist. LEXIS 11647.









COUNSEL: For KEITH LESLIE, plaintiff: Stephen David Libowsky and Orrin Sherwood Shifrin, Katten, Muchin & Zavis, Chicago, IL. KEITH LESLIE, plaintiff, [PRO SE], Galesburg, IL.


For WILLIAM J DOYLE, Mr., Superintendent Joliet Correctional Center, defendant: Sebastian N. Danziger, Illinois Attorney General's Office, Chicago, IL.



JUDGES: Milton I. Shadur, Senior United States District Judge



OPINIONBY: Milton I. Shadur



OPINION:

[*772] MEMORANDUM OPINION AND ORDER

This Court's November 23, 1994 memorandum opinion and order (the "Opinion," 868 F. Supp. 1039) n1 granted in principal part the motion to dismiss the 42 U.S.C. § 1983 ("Section 1983") action that had been brought by Keith Leslie ("Leslie") against three Illinois Department of Corrections employees, but Opinion at 1042-44 kept alive Leslie's claim that Joliet Correctional Center ("Joliet") Reception and Classification Center Superintendent William Doyle ("Doyle") had gratuitously placed Leslie in segregative confinement for no reason at all. Following the issuance of the Opinion the parties brought that surviving claim into a posture of readiness for prompt trial.



n1 Citations to the Opinion will take the form "Opinion at ," referring to the page but not the volume number in F. Supp.


[**2]

But after the Supreme Court had then issued its end-of-Term opinion in Sandin v. Conner, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), Doyle's counsel filed a motion for summary judgment. Leslie's appointed counsel have filed a response, n2 and with the parties thus having joined issue the motion is ripe for decision.



n2 That includes evidentiary submissions that plainly convert Leslie's pleading allegations into jury questions.


To begin with, Doyle quarrels substantively with this Court's invocation of Bell v. Wolfish, 441 U.S. 520, 558-60, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) as the predicate for finding that Leslie has a constitutionally-viable Fourth Amendment n3 claim against Doyle (Opinion at 1044 quoted the premise in Bell, 441 U.S. at 558 "that inmates...retain some Fourth Amendment rights upon commitment to a corrections facility"). This Court has examined the cases that Doyle cites and more (and it had done so before issuing the Opinion), and it remains of the view expressed in Opinion at 1044:


Although [**3] custody in prison is by definition an entirely reasonable "seizure" of a convicted felon (if it may be termed a "seizure" at all in that sense), it may fairly be argued that the constitutional right to be free from unreasonable seizures (the Fourth Amendment right) embraces an inmate's entitlement not to be subjected to a major further limitation on his liberty--a commitment to segregation--on the mere whim of a correctional officer (for no penological purpose at all).





n3 As always, this opinion adheres to the conventional and convenient (though technically imprecise) practice of referring to the underlying Bill of Rights provision (which of course imposes limitations only on the federal government) rather than to the Fourteenth Amendment (which applies to state actors and has been construed to embody such Bill of Rights guaranties).


[*773] What now forces a difference in that result, however, is the decision in Sandin. As the just-quoted language from the Opinion reflects (and as is evident from the fact [**4] that the fount of any constitutional deprivation by state actors must be the Fourteenth Amendment, even though a Bill of Rights provision is cited for shorthand purposes), a necessary ingredient of Leslie's claim is Doyle's imposition of "a major further limitation on his [Leslie's] liberty--a commitment to segregation." But the 5-to-4 decision in Sandin has just announced that State-created "liberty interests which are protected by the Due Process Clause" (115 S. Ct. at 2300) are "generally limited to freedom from restraint which...imposes atypical and significant hardship on the inmate in relation to the ordinary incidence of prison life" (id.). Because "discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law" ( id. at 2301), the Supreme Court majority went on to say (id.):


This case, though concededly punitive, does not present a dramatic departure from the basic conditions of Conner's indeterminate sentence. Although Conner points to dicta in cases implying that solitary confinement automatically triggers due process protection, Wolff [v. McDonnell, 418 [**5] U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963,] 571, n.19 [(1974)]; Baxter v. Palmigiano, 425 U.S. 308, 323, 47 L. Ed. 2d 810, 96 S. Ct. 1551 (1976) (assuming without deciding that freedom from punitive segregation for "'serious misconduct'" implicates a liberty interest, holding only that the prisoner has no right to counsel) (citation omitted), this Court has not had the opportunity to address in an argued case the question whether disciplinary confinement of inmates itself implicates constitutional liberty interests. We hold that Conner's discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. The record shows that, at the time of Conner's punishment, disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody. n4





n4 [Footnote by this Court] It is ironic that the Court's principal comparison is between prisoners in disciplinary segregation and those in administrative segregation (which is normally short-term while a charge or grievance is under investigation) or in protective custody, rather than a comparison with the vast majority of the inmates, who make up what is most commonly called the "general population" and who are not subjected to anything resembling the constraints imposed on prisoners in the segregation units. This Court has presided over extensive prison litigation, including more than a decade spent in adjudicating and monitoring a class action that held protective custody inmates' rights under the Equal Protection Clause to have been violated by the restrictive conditions to which they were subjected (the principal, but by no means the only, substantive opinion in that case was Williams v. Lane, 646 F. Supp. 1379 (N.D. Ill. 1986), aff'd, 851 F.2d 867 (7th Cir. 1988)). Reports and extensive studies received by this Court in that and other cases reflect that in Illinois (and in other states whose correctional systems have been brought to this Court's attention) the differences between the lack of liberty afforded to segregated inmates and what is afforded to those in general population are very substantial indeed: 23 hours a day in one's cell rather than being able to spend many daylight hours utilizing prison facilities; far more limited opportunities for athletic activities and exercise; eating every meal alone in one's cell rather than going to the communal mess hall; no opportunity to attend such group activities as movies or to attend group religious services; the need to be personally attended by correctional officers for any limited movement that is permitted within the institution; and the list goes on. Given that substantial disparity in so many respects, the irony lies in the fact that the majority opinion makes its main (although not its only, see n.5) comparison between disciplinary segregation and protective custody, a status in which the existence of such constraints is at best a necessary evil forced by the need to insulate such inmates from perceived threats to their safety that would be entailed if they were part of the general population. With all due deference to our highest judicial authority, this Court believes that the record to which the text quotation refers has spawned a false premise--and that false premise has in turn led to the false conclusion that disciplinary segregative status does not impose a meaningful impairment and therefore (sic) does not implicate the deprivation of a liberty interest. Withal, this Court is of course bound to accept and to follow that conclusion here.


[**6]

This Court, like the four dissenting Justices, sees Sandin as having taken a near-quantum-leap from the earlier cases on which it grounds itself. In this action the consequence [*774] of taking Sandin at its word (as this Court is obliged to do) is to arm prison authorities, who have heretofore possessed uncircumscribed powers over the inmates within their custody only to a limited extent, with now-unrestrained power to punish those inmates by arbitrary reassignment to the meaningfully more restrictive environment of segregated confinement. n5 And it appears that can be done by a correctional official for no reason at all--even out of sheer vindictiveness--because the absence of due process means nothing in terms of a Section 1983 claim unless the inmate's liberty interest has been infringed.



n5 See n.4. As that note indicates, the majority opinion in Sandin, 115 S. Ct. at 2301 also went on to say:


Based on a comparison between inmates inside and outside disciplinary segregation, the State's actions in placing him there for 30 days did not work a major disruption in his environment.


That conclusion followed the Court's observation (id.) that the Hawaiian penal institution involved in that case imposed significant "lockdown" periods on general population inmates, who were therefore confined to their cells between 12 and 16 hours daily, depending on their classification (id. n.8). But even under those conditions, which are not typical of most institutions, when the comparison is rendered more meaningful by extracting the inmates' night time sleeping hours (which are necessarily spent in their cells) out of each side of the inequality, a major disparity is seen to exist between the periods of waking-hours restrictions to which segregated prisoners are subjected (see n.4) and the waking-hours limitations imposed on the general population.


[**7]

That result--which effectively treats wrongful commitment to segregation as an inherent consequence, a sort of assumed risk, of being in prison to begin with--strikes this Court as one more befitting a totalitarian regime than our own, and it is hard to credit that outcome as flowing from a principled Supreme Court decision. But this Court's duty is to take the Supreme Court at its word, and the dismissal of Leslie's claim appears to this Court to be the necessary outcome of a straightforward application (and not an extension) of Sandin. Having said that, this Court believes that appellate review of this opinion is desirable to test the accuracy of that view, and so it is to be hoped that the able counsel whom this Court has appointed to represent Leslie pro bono publico will be prepared to take that added step on his behalf. In the meantime, Doyle's motion is granted and this action is dismissed. n6



n6 Doyle has also advanced a claim of qualified immunity as the basis for prevailing on summary judgment. But in that context this case poses an anomaly. At the time that Doyle acted (which is the relevant date for qualified immunity purposes) it had clearly been established that placing an inmate into segregative custody for no reason violated the inmate's constitutional rights. For example, even though the most recent case presenting a close parallel to this one ( Stevens v. McHan, 3 F.3d 1204 (8th Cir. 1993)) was handed down a few months after Doyle's action, it did not purport to announce new law, but relied on earlier case law; and Leslie's counsel have cited a number of authorities to the same effect. It has only been afterward, through the Sandin decision, that what had previously been thought to be clearly established has been ruled otherwise--and that sequence is not the stuff of which a qualified immunity defense may be fashioned.


[**8]

Milton I. Shadur

Senior United States District Judge


Date: August 9, 1995