Durso v. Rowe, 579 F.2d 1365 (7th Cir. 07/19/1978)

[1] UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

[2] No. 77-2123

[3] 579 F.2d 1365

[4] decided: July 19, 1978.

[5] THOMAS DURSO, PLAINTIFF-APPELLANT,
v.
CHARLES ROWE ET AL., DEFENDANTS-APPELLEES

[6] Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 C 3765 - Edwin A. Robson, Judge.

[7] Fairchild, Chief Judge, Swygert and Pell, Circuit Judges.

[8] Author: Swygert

[9] SWYGERT, Circuit Judge.

[10] The principal issue raised in this appeal is whether revocation of a prisoner's work-release status constitutes a deprivation of liberty protected by the Due Process Clause of the Fourteenth Amendment. The district court, in dismissing the complaint for failure to state a claim upon which relief can be granted, concluded that a state prisoner assigned to a work-release program does not have a constitutionally protected liberty interest in that status and therefore no notice or hearing was required before such status was revoked. For the reasons hereinafter developed, we hold that such a conclusion cannot be made as a matter of law and that the case must be remanded for an evidentiary hearing.

[11] I

[12] Plaintiff-appellant Thomas Durso was incarcerated at the Stateville Correctional Center in Joliet, Illinois following his conviction in 1964. Ten years later the Illinois Department of Corrections approved plaintiff's application for work-release status, and on August 15, 1974 he was transferred to the Joliet Work Release Center. As a participant in that program, plaintiff was authorized to attend classes outside the Center and to use recreational and other public facilities in the community.

[13] Approximately one week after he arrived at the Center, plaintiff was granted a two-day home furlough. While on furlough it is alleged that the Chicago Tribune published an article which was highly critical of plaintiff and his participation in the work-release program. The Cook County State's Attorney also issued a public statement, quoted in the Tribune article, criticizing the transfer. Shortly thereafter prison officials informed plaintiff that he might have to be removed from the program because of the strong adverse community reaction to his placement. It is also alleged that his participation in the program was restricted following this incident.

[14] On October 5, 1974 plaintiff had a visitor at the Center. Although he alleges that he was given permission to have a visitor, plaintiff was orally charged with violating the rules regarding visitation rights. Plaintiff was returned to the maximum security section at Stateville that evening.

[15] Approximately two weeks later plaintiff received a formal written complaint charging him with a violation of the Center's rules. Plaintiff, by letter, denied that he had violated any of the posted regulations. On November 2, 1974 plaintiff was informed that he was exonerated of all charges against him. According to the allegations he was also told at this time that he would be transferred to the work-release program at Carbondale.

[16] In January 1975 plaintiff was orally advised that his transfer to Carbondale had been cancelled and that his work-release status had been revoked. Thereafter he initiated a grievance proceeding with the Department's Administrative Review Board. Although plaintiff was allowed to appear before the Board, he alleges that he was given no opportunity to present any evidence to show why his participation in the program should not have been terminated. The Board advised plaintiff that it was not in his best interest or the best interest of the work-release program for him to participate at that time. Plaintiff was not given any reasons for these conclusions.

[17] On October 8, 1976 plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 seeking monetary, declaratory, and injunctive relief against certain officials of the Illinois Department of Corrections. In the complaint plaintiff alleged that the termination of his work-release status deprived him of procedural due process (Count I), of certain state statutory rights (Count II), and of the equal protection of the laws (Count III).

[18] Upon motion of the defendants, the district court dismissed the complaint for failure to state a claim and for lack of subject matter jurisdiction. Durso v. Rowe,430 F. Supp. 49 (N.D. Ill. 1977). The court rejected the due process claim in Count I on the ground that revocation of work-release status is not a deprivation of any liberty interest embraced within the Due Process Clause. Count III was dismissed because the court deemed the allegations as too conclusory and because it deemed the mere inconsistency in the operation of prison management as insufficient to state a claim under the Equal Protection Clause. Having dismissed the two federal claims, the court then dismissed the pendent state claim in Count II.

[19] II

[20] In dismissing plaintiff's due process claim the district court concluded that Meachum v. Fano, 427 U.S. 215, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976) was controlling and required a finding that revocation of plaintiff's work-release status did not infringe upon a constitutionally protected liberty interest. The Supreme Court in Meachum held that the transfer of state inmates to a prison where the living conditions were "substantially more burdensome" than at the previous prison did not ipso facto constitute a deprivation of liberty requiring due process. The Court rejected the notion that " any grievous loss" or " any change in the conditions of confinement having a substantial adverse impact on the prisoner" is sufficient to activate the procedural safeguards of the Fourteenth Amendment.427 U.S. at 224 (emphasis in original). The Court reiterated that the pivotal factor in determining whether an asserted interest is constitutionally protected is "the nature of the interest involved rather than its weight."

[21] The Court distinguished the protection of liberty that the Due Process Clause protects "by its own force" and the protection of liberty following a criminal conviction. "Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system. . . . The conviction has sufficiently extinguished the defendant's liberty interest to empower the State to confine him in any of its prisons."427 U.S. at 224 (emphasis in original).

[22] Because the prisoners in Meachum had been lawfully convicted, the Court resorted to "state law or practice" to determine whether the nature of the interest was embraced within the Due Process Clause. Specifically, the Court sought to ascertain whether the interprison transfers were conditioned "on proof of serious misconduct or the occurrence of other events."427 U.S. at 216. The Court noted that the governing statute involved there left the decision to transfer to the discretion of prison officials; exercise of the discretion was not restricted in any way. That charges of serious misconduct often initiate and heavily influence the decision to transfer was deemed insufficient to base an expectation that good behavior would insulate a prisoner from transfer. Because the prisoner had no "right or justifiable expectation rooted in state law that he will not be transferred except for misbehavior or upon the occurrence of other specified events," Montanye v. Haymes,427 U.S. 236, 242, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976), the Court held that the interprison transfer did not implicate any constitutionally protected liberty interest.

[23] Central to the holding in Meachum was the absence of any state-created right grounded in law or practice.*fn1 A right "grounded in law," missing in Meachum, was present in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). In that case a state statute not only provided a right to good time but also specified that it could be forfeited only for serious misconduct. Because the statute restricted the discretion of prison authorities, the Court held that the prisoner's interest was within the concept of liberty protected by the Due Process Clause.

[24] The predicate necessary to trigger the Due Process Clause is not restricted to statutorily-created rights; it may also be found in official policies or practices. For example, in Morrissey v. Brewer,408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), the governing statute gave prison officials unfettered discretion to revoke one's parole at any time or for any reason. Nonetheless the Court held that the termination of parole must be accompanied with procedural safeguards because a parolee relies on "an implicit promise that [his] parole will be revoked only if he fails to live up to the parole conditions."*fn2 408 U.S. at 482.

[25] Whether plaintiff's due process claim is cognizable therefore depends upon whether he has a right or justifiable expectation based on state law or practice which conditions the revocation of his work-release status upon proof of serious misconduct or the occurrence of other specified events. If he does have such a right or expectation, the minimum procedures required by the Due Process Clause are necessary "to insure that the state-created right is not arbitrarily abrogated." Wolff, supra,418 U.S. at 557.

[26] Plaintiff first argues that his expectation that his work-release status would not be revoked unless he violated a rule or condition of the program is predicated on the Illinois Unified Code of Corrections, Ill. Rev. Stat. ch. 38, §§ 1001-1-1 et seq. Section 3-8-7(e) of the Code provides that certain procedures must be followed "in disciplinary cases which may involve . . . a change in work, education, or other program assignment of more than 7 days duration. . . ."*fn3 Plaintiff correctly argues that revocation of one's work-release status and removal from a work-release center involves "a change in work . . . or other program assignment of more than 7 days duration." He further reads the statute as saying that this change in assignment may be imposed only as punishment for serious misconduct. With this we cannot agree.

[27] Plaintiff's interpretation is belied by the language of the statute itself. Subpart 6 to section 3-8-7(e) provides: "A change in work, education, or other program assignment shall not be used for disciplinary purposes without prior review and approval [by a grievance review board]." (Emphasis added.) The italicized portion of this provision would have been unnecessary if disciplinary purposes were the exclusive way in which one's program assignment could be changed.

[28] More important, however, to construe this provision as prohibiting any program assignment change unless based upon a disciplinary violation is to curtail severely the ability of prison officials to exercise discretion in modifying program assignments of any significant duration. We do not believe this was the intent of the Illinois General Assembly in enacting this provision. A fair reading of the statute indicates it applies only when the change in program assignment is for disciplinary purposes; it does not prohibit a change in assignment for nondisciplinary reasons and does not limit the discretion of prison officials in making transfer decisions. Therefore plaintiff cannot base his right or expectation on state law.*fn4

[29] Plaintiff also argues that he is entitled to the protections of the Due Process Clause because his right is grounded in state practice. In his complaint plaintiff alleges that prison authorities customarily do not interfere with one's work-release status unless the participant violates some rule of the program or of his work-release contract. As this is an appeal from a motion to dismiss, this allegation must be taken as true. Cruz v. Beto,405 U.S. 319, 322, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972). Accordingly plaintiff must be given an opportunity to prove that as a matter of practice, prison officials did not revoke one's work-release status absent a rule violation. If the allegation is established,*fn5 the plaintiff has been denied his right to due process of law. See Tracy v. Salamack, 572 F.2d 393 (2d Cir. 1978).

[30] We are compelled to note the strong similarities between parole and work-release. Indeed, many of the "core values of unqualified liberty" which the Supreme Court recognized that parolees enjoy, see Morrissey, supra,408 U.S. at 482, are also present here. Like a parolee, a convict on work-release can pursue employment or education. He is eligible for leaves to renew contacts with his family. He may also be released to participate in unsupervised activities in the community, such as shopping, recreation, and visiting friends. A work-release participant's freedom is more limited than a parolee's. That difference, however, is one of degree only. The extent and nature of his freedom is qualitatively different from any "freedom" allowed at the prison. Moreover, revocation of that status entails a loss far more grievous than that sustained by one who is transferred from one prison to another.