Norberto Torres v. Kent Brookman

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-2830

NORBERTO TORRES,

Plaintiff-Appellant,

v.

KENT BROOKMAN and JASON HART,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:19-cv-00248 — Stephen P. McGlynn, Judge.

____________________

ARGUED OCTOBER 28, 2024 — DECIDED OCTOBER 17, 2025

____________________

Before BRENNAN, Chief Judge, ROVNER, and KOLAR, Circuit

Judges.

KOLAR, Circuit Judge. Prison officials at Menard Correction

Center believed that Norberto Torres had engaged in gang-

related activity by filling out a gang questionnaire. They gave

him a disciplinary ticket and, after a hearing, sentenced him

to three months in segregation. Torres argues that his due

process rights were violated because the disciplinary hearing

did not provide constitutionally required procedural

2 No. 22-2830

safeguards. Since our precedent requires only informal due

process for prisoners who, like Torres, did not face the loss of

good-time credits or other punishment that could lengthen

their sentence, we affirm.

I. Facts

Norberto Torres is a prisoner in the Illinois Department of

Corrections (IDOC). In March 2017, while Torres was incar-

cerated at Menard Correctional Center, he was given two dis-

ciplinary tickets for being affiliated with a gang.

The first disciplinary ticket alleged that on March 9, 2017,

correctional officers at the Pontiac Correctional Center had

found a “Latin Folk questionnaire” in the belongings of a dif-

ferent prisoner transferring in from Menard. The Latin Folk

Union is a gang, and according to the ticket, the gang requires

members to fill out questionnaires identifying themselves,

their offense, affiliation and other information. The ticket al-

leged that Torres had filled out the questionnaire, which is

gang-related activity in violation of prison rules.

Menard officers served Torres the first ticket on March 13,

2017. Two days later, Torres went to an administrative hear-

ing in front of defendants Hart and Brookman, who dismissed

the ticket. Approximately one and half hours after the hearing

and dismissal, the IDOC issued another ticket with nearly

identical allegations. This time Torres was immediately taken

to segregation. After two days in segregation, he was served

with the second ticket. The second ticket had more infor-

mation than the first, including allegations that officers had

compared the questionnaire to handwriting samples from

Torres’s master file and determined they were a match. Addi-

tionally, the ticket alleged that Torres was a “self-admitted

No. 22-2830 3

member of the Maniac Latin Disciples,” a group that falls un-

der the Latin Folk umbrella of gangs.

Torres remained in segregation for a week until the hear-

ing on the second ticket. The parties dispute whether Torres

requested a witness for the hearings. Torres stated that he had

requested a witness for the first hearing by sending the wit-

ness’s information along with his statement to the adjustment

committee through the institutional mail. Torres said he men-

tioned his request to Brookman and Hart during his second

hearing. The ticket form has a detachable portion where an

inmate can submit a request for a witness. That portion re-

mains unfilled on both of the tickets.

At the hearing, no witnesses testified and IDOC presented

no evidence aside from the ticket itself. Torres was not, de-

spite his request, shown the paperwork that IDOC staff relied

upon to find that he had completed the Latin Folk question-

naire. Torres pleaded not guilty to the second ticket and stated

that he had not filled out the questionnaire. Torres pointed

out that the ticket did not make sense because it was exactly

the same as the prior ticket, which had been expunged. At the

end of the hearing, Hart and Brookman recommended a

guilty finding and a series of punishments, including three

months in segregation. Menard’s warden approved the rec-

ommendation.

Torres filed a grievance about the second ticket and sub-

sequent hearing. He argued that the IDOC did not follow its

own rules when it deprived him of a) an investigator to inves-

tigate the charge, b) the opportunity to properly prepare for

the hearing, c) witnesses, d) the opportunity to be heard, and

e) the ability to see the questionnaire or handwriting samples.

Torres also disputed that he was a member of the Latin Folk

4 No. 22-2830

Union. He noted that a prior ticket for affiliation with the

Latin Folk Union was ”expunged due to inaccurate/insuffi-

cient information.” Torres also pointed to his response to an-

other ticket for affiliation with the Latin Folk Union, which

pled not guilty because he was affiliated with a different gang.

The grievance officer found that Torres was guilty of the

infraction, but recommended that the ticket be expunged be-

cause the hearing was not in accordance with IDOC’s regula-

tions. The warden agreed with the recommendation and the

ticket was expunged in mid-June 2017, after Torres had

served three months in segregation.

Torres says that the conditions in segregation were “inhu-

mane.” His toilet “leak[ed] underneath with toilet backflush,

there were signs of mold and mildew everywhere.” He also

did not receive a bed or his property for three to four days. In

segregation Torres could only leave his cell one or twice a

week and he did not have phone privileges. He testified at his

deposition that “all the toilets and all that in segregation are

polluted with insects, infected, mildew, rust” forcing him to

“breath[e] in rust.”

Torres also described the conditions in his complaint, in-

cluding allegations he had shown the warden that “smelly

water” would come out of the toilet when flushed and that “a

small amount of feces” would come out of the bottom of the

toilet when he or his cellmate had a bowel movement. He

stated that neither he nor his cellmate were given cleaning

supplies to remediate the mold. Torres attached to his com-

plaint a letter that he had sent to the warden about the “leak-

ing, smelly toilet.”

No. 22-2830 5

Torres filed this suit pro se in early 2019. After the comple-

tion of discovery, defendants moved for summary judgment,

which the district court granted. The district court held that

even if Torres had raised an issue of fact about whether he

was given witnesses as requested, he had not shown that the

conditions in segregation constituted an “atypical and signif-

icant hardship,” meaning he was not deprived of a liberty in-

terest. Torres now appeals, arguing there are issues of mate-

rial fact as to the conditions of his confinement that should

defeat summary judgment.

II. Discussion

We chart a different course than the district court. We as-

sume, without deciding, that Torres suffered an atypical and

significant hardship, establishing a liberty interest that trig-

gered due process protections. But because Adams v. Reagle, a

case we decided after the district court’s ruling, held that pris-

oners in Torres’s position are only entitled to informal, non-

adversarial due process, we affirm the judgment for defend-

ants.

Summary judgment is reviewed de novo, taking all reason-

able factual inferences from the record in favor of the non-

movant. Adams v. Reagle, 91 F.4th 880, 887 (7th Cir. 2024), cert.

denied No. 25-31, 2025 WL 2906509 (Oct. 14, 2025). Summary

judgment is appropriate when “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56; Tackett v. Dauss, 132 F.4th

1026, 1030 (7th Cir. 2025).

“Prisoners may [] claim the protections of the Due Process

Clause. They may not be deprived of life, liberty, or property

without due process of law.” Wolff v. McDonnell, 418 U.S. 539,

6 No. 22-2830

556 (1974). “A procedural due process claim consists of two

elements: (i) deprivation by state action of a protected interest

in life, liberty, or property, and (ii) inadequate state process.”

Reed v. Goertz, 598 U.S. 230, 236 (2023); Prude v. Meli, 76 F.4th

648, 656 (7th Cir. 2023).

A. Liberty Interest

“Prisoners held in lawful confinement have their liberty

curtailed by definition,” so something more is needed to con-

stitute an additional deprivation of their liberty. Wilkinson v.

Austin, 545 U.S. 209, 225 (2005). Prisoners generally have a

cognizable liberty interest in earned credit-time and other

benefits that decrease their sentence length, see Love v. Vanihel,

73 F.4th 439, 451 (7th Cir. 2023), so the threatened loss of good

time credits triggers a cognizable liberty interest. Id. at 487;

Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003); Scruggs v.

Jordan, 485 F.3d 934, 939 (7th Cir. 2007). A liberty interest

predicated on the circumstances of a prisoner’s confinement,

however, requires more. To implicate a liberty interest pro-

tected by due process based on a change in the conditions of

confinement a prisoner must show they suffered “atypical

and significant hardship … in relation to the ordinary inci-

dents of prison life.” Sandin v. Conner, 515 U.S. 471, 484 (1995).

The standard for “atypical and significant hardship” is de-

pendent on the combined duration and conditions of the con-

finement. Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir.

2013) (citing Marion v. Columbia Corr. Inst., 559 F.3d 693, 697

(7th Cir. 2009)); Lisle v. Welborn, 933 F.3d 705, 720–21 (7th Cir.

2019). We do not generally consider the duration of confine-

ment as related to the prisoner’s overall sentence and decline

to do so now. See Felton v. Brown, 129 F.4th 999, 1008 (7th Cir.

2025) (analyzing duration of segregated confinement without

No. 22-2830 7

reference to sentence); Lisle, 933 F.3d at 721 (same); Hardaway,

734 F.3d at 744–45 (same); Marion, 559 F.3d at 697–98 (same);

but see Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1997) (dis-

tinguishing cases where the court found a liberty interest by

comparing the time in segregation to overall sentence length).

The standard is a flexible one, with no one dispositive factor;

rather, “we must take into consideration all of the circum-

stances of a prisoner’s confinement in order to ascertain

whether a liberty interest is implicated.” Marion, 559 F.3d at

699.

In segregation, Torres alleges that in addition to mold, mil-

dew, insects, and rust, his cell contained raw sewage for three

months. Defendants say that Torres did not present any ad-

missible evidence of feces in the cell at summary judgment

because he did not mention it during his deposition nor did

he submit an affidavit attesting to the existence of feces in his

cell. Torres points to his response brief stating the toilet

“leak[ed] underneath with backflush,” and referred to a de-

scription of the leaking toilet in his complaint. We liberally

construe filings from pro se litigants, Erickson v. Pardus, 551

U.S. 89, 94 (2007), but because our precedent forecloses

Torres’s due process claim on the second prong—whether he

received sufficient process—we need not resolve whether

Torres’s submissions should have been considered at sum-

mary judgment.

B. Process Due

The constitutional requirements for Torres’s hearing are

derived from the balancing test between the prisoner’s pro-

tected interest, the risk of an erroneous deprivation, the cost

of additional safeguards, and the government’s fiscal and ad-

ministrative interests, first laid out in Wolff v. McDonnell, 418

8 No. 22-2830

U.S. 539 (1974). Wolff recognized that prisoners have lessened

liberty interests and prison officials manage the safety and or-

der of a large group of people, so the procedural requirements

for the adjudication of disciplinary charges must be the prod-

uct of “mutual accommodation between institutional needs

and objectives and the provisions of the Constitution.” Wolff,

418 U.S. at 555–56, 566; see also Wilkinson, 545 at 225–26; Felton,

129 F.4th at 1008.

Wolff involved disciplinary proceedings that resulted in

the loss of good time credits, thereby lengthening plaintiffs’

prison sentences. Wolff articulated the due process require-

ments as: (a) “advance written notice of the claimed viola-

tion” so that a prisoner can “marshal the facts in his defense

and [] clarify what the charges are,” (b) the ability to call wit-

nesses and present documentary evidence “when [doing] so

will not be unduly hazardous to institutional safety or correc-

tional goals,” (c) an impartial decisionmaker, and (d) “a writ-

ten statement of the factfinders as to the evidence relied upon

and the reasons for the disciplinary action taken.” Id. at 563–

66, 570–71; see also Superintendent, Massachusetts Corr. Inst.,

Walpole v. Hill, 472 U.S. 445, 454 (1985); Scruggs, 485 F.3d at

939.

We have used Wolff’s test to review the procedural safe-

guards extended to an inmate facing the loss of property. See

Prude, 76 F.4th at 656. Regardless of the possible punishment,

the disciplinary decision must be “supported by some evi-

dence in the record.” Hill, 472 U.S. at 454. Finally, we have

held that a prisoner has a right to see exculpatory evidence

“unless such disclosure would unduly threaten constitutional

concerns.” Piggie, 344 F.3d at 678.

No. 22-2830 9

Wolff’s criteria are the product of a balance between the

prisoner’s interest and the institutional demands of running a

prison, so when those inputs vary, the required criteria also

change. Hewitt v. Helms, 459 U.S. 460, 472 (1983), abrogated on

different grounds by Sandin, 515 U.S. at 482–84. Torres was or-

dered to segregation as a disciplinary sanction, so we consider

what procedural safeguards are due to a prisoner put into dis-

ciplinary segregation.

In Wilkinson v. Austin, the Supreme Court held prisoners

had a cognizable liberty interest in avoiding transfer to a su-

permax prison given the “atypical and significant hardship”

posed by conditions at the prison. 545 U.S. at 223–24. The state

prison system assigned inmates to the prison based on a se-

curity classification, derived from “numerous factors (e.g., the

nature of the underlying offense, criminal history, or gang af-

filiation) but [] subject to modification at any time during the

inmate’s prison term if, for instance, he engages in miscon-

duct or is deemed a security risk.” Id. at 215. Prisoners were

classified at either entry to the department of corrections or

“during the term of incarceration if an inmate engages in

specified conduct, e.g., leads a prison gang.” Id. at 216.

Wilkinson held the constitutional due process require-

ments for prisoners being transferred to the supermax were

“notice of the factual basis” for assignment to the prison and

“allow[ing] the inmate a rebuttal opportunity” and “[to] sub-

mit objections prior to the final level of [classification] re-

view.” Wilkinson, 545 U.S. at 225–26. This “informal nonad-

versary procedure” was appropriate given “the State’s inter-

est [in] the safety of other inmates and prison personnel” and

“the experience of prison administrators” in accomplishing

those goals. Id. at 228–29. The Court distinguished the

10 No. 22-2830

interests at stake, and thus the level of procedural safeguards

due, from a prisoner being punished [with revocation of good

time credits] for “specific, serious misbehavior.” Id. at 228.

We looked to Wilkinson in Westefer v. Snyder, 422 F.3d 570

(7th Cir. 2005) (Westefer I), when we addressed whether Illi-

nois prisoners transferred to the Tamms Correctional Center,

a supermax prison, could bring a due process claim. Id. We

reversed dismissal of their claim and remanded for discovery

and factfinding on whether the conditions at Tamms posed a

“significant and atypical hardship” and if the transfer proce-

dures met the Wilkinson standard. Id. at 589–90.

After remand, and a trial judgment in favor of the Westefer

plaintiffs, we vacated the district court’s injunctive relief re-

quiring certain procedural safeguards. Westefer v. Neal, 682

F.3d 679, 681–82 (7th Cir. 2012) (Westefer II). We held that Wil-

kinson only required “informal, nonadversarial due process”

for transfer to a supermax prison and that the ordered proce-

dures went beyond that standard. Id. at 684. 1 The transfer pro-

cedures in Westefer II were used both for inmates who were in

disciplinary segregation, “whose record of prison discipline

marks them as dangerous even in the disciplinary-segrega-

tion system in the State’s other prisons,” and those in admin-

istrative detention, “classified as too dangerous to be housed

in the general population.” Id. at 682.

Most recently, in Adams v. Reagle, we held that “an inmate

who is facing transfer to disciplinary segregation is entitled

only to ‘informal, nonadversarial due process,’ which

1 We also held the district court’s injunction violated the Prison Liti-

gation Reform Act’s mandate to order only the narrowest and least intru-

sive injunctive relief in the prison context. Westefer II, 682 F.3d at 684.

No. 22-2830 11

‘leave[s] substantial discretion and flexibility in the hands of

the prison administrators.’” 91 F.4th at 895 (quoting Westefer

II, 682 F.3d at 684–85). Adams was charged with assault and

unlawful possession of a cell phone while incarcerated, each

conviction resulting in sanctions that placed him in discipli-

nary segregation and loss of good time credits; he was also

reclassified into department-wide restrictive housing because

he had committed eight conduct violations within one-year.

Id. at 883. Adams successfully challenged his assault and cell-

phone convictions, both through the prison hierarchy and

through multiple habeas petitions, and his good time credits

were reinstated. Id. at 884–85. By the time Adams received re-

lief from these convictions, however, he had served two years

in “restrictive housing,” both due to the assault and cell

phone charges and at least in part because of the reclassifica-

tion decision. Id.

We held that because Adams’s good time credits had been

restored by the habeas case, “the only issue … is whether he

should have received more process for his transfer to a more

restrictive prison setting.” Id. at 896. Relying on Westefer, we

concluded that “an inmate who is facing transfer to discipli-

nary segregation is entitled only to ‘informal, nonadversarial

due process[.]’” Id. at 895. The requirements of informal due

process are met when “an inmate is provided (1) ‘notice of the

reasons for the inmate’s placement’ in segregation and (2) ‘an

opportunity to present his views,’ for instance in a written

statement or at a hearing.” Id. The decisionmaker must also

remain impartial. Id. at 896.

Torres was served the second ticket approximately a week

before the hearing. The second ticket stated the allegations

against Torres and the evidence in support of the allegations.

12 No. 22-2830

Torres had an opportunity to present a verbal response to the

charges at the hearing. He testified that he told Brookman and

Hart that the second ticket did not make sense because it was

exactly the same as the first, and that he had not filled out the

questionnaire. Torres does not contest Hart or Brookman’s

impartiality. Thus, Torres received notice, an opportunity to

be heard, and an impartial decisionmaker, the procedural

safeguards due to him under Adams.

Torres suggests that despite holding prisoners have no

due process right to call witnesses when facing disciplinary

segregation, Adams left in place the “widespread rule” that

prison officials “may not exclude witnesses requested by an

offender with no explanation at all.” Reply at 13 (quoting Ad-

ams, 91 F.4th at 889 (Rovner, J., dissenting) (internal quota-

tions omitted). But every case that Torres cites applies this

rule where good time credits are at stake and more than “in-

formal, nonadversarial” due process is required. See Piggie,

342 F.3d at 661. (“Because [plaintiff] lost good-time cred-

its…the proceedings before the disciplinary board had to

comply with minimal standards of due process.”); Whitlock v.

Johnson, 153 F.3d 380, 385 (7th Cir. 1998) (“Due process re-

quires that an inmate faced with the possible revocation of

good-time credits be afforded the right to call witnesses in his

defense.”); Ponte v. Real, 471 U.S. 491, 496 (1985) (“[Plaintiff]

possessed a ‘liberty’ interest, by reason of …‘good time’ cred-

its, an interest which could not be taken from him in a prison

disciplinary hearing without the minimal safeguards af-

forded by the Due Process Clause.”); Forbes v. Trigg, 976 F.2d

308, 315 (7th Cir. 1992) (“In this case the parties do not contest

that Forbes was deprived of a protected liberty interest—

’good’ or ‘credit’ time.”). Adams held that such process is not

required where only disciplinary segregation is at stake.

No. 22-2830 13

Adams, F.4th. at 895–96. Torres lacks support for his theory

that due process requires an official to provide an explanation

when excluding witness testimony regardless of the liberty in-

terest at stake.

The dissent argues that we read Adams too broadly and

improperly conflate lines of cases dealing with administrative

segregation and disciplinary proceedings. Post at 15. We

acknowledge that the purpose of administrative segregation

and disciplinary sanctions can have different aims, and it is of

course true that disciplinary matters focus more upon a pris-

oner’s wrongdoing while incarcerated. Nevertheless, we

opted for a bright-line rule in Adams that “an inmate who is

facing transfer to disciplinary segregation is entitled only to

‘informal, nonadversarial due process,’ which ‘leave[s] sub-

stantial discretion and flexibility in the hands of the prison

administrators.’” 91 F.4th at 895 (quoting Westefer II, 682 F.3d

at 684–85).

We end by noting that the Constitutional standards pro-

vide the floor, not the ceiling, of what process is due a pris-

oner deprived of a liberty interest. Torres’s ticket was ex-

punged due to violations of the state’s administrative hearing

procedures. Those procedures can be more stringent than

those required under the Constitution, especially when

prison officials may not know, ex-ante, the punishment that

will be meted out.

III. Conclusion

For the reasons stated above, the judgment of the district

court is AFFIRMED.

14 No. 22-2830

ROVNER, Circuit Judge. dissenting. I believe this court is los-

ing its way on prisoner due process claims. Today the court

engrafts a lenient, informal due process standard onto disci-

plinary findings, which historically have required and should

require a more robust set of procedural protections, including

the right to call witnesses.

There is much to be commended in the majority’s opinion.

In particular, the court wisely rejects the notion that an in-

mate’s liberty interest in avoiding disciplinary segregation

should be measured against the overall length of his prison

term. The court also assumes, rightly in my view, that Torres’s

three-month stint in a filthy and unsanitary cell in discipli-

nary segregation (replete with mold, mildew, rust, insects,

and a toilet that discharged feces onto the floor when it was

flushed) was sufficient to give rise to a liberty interest.

But in assessing whether Torres was accorded the process

he was due, the court clouds matters by importing the stand-

ard for prison transfer and placement decisions into the disci-

plinary segregation context, with the result that unless a pris-

oner accused of wrongdoing loses good time credits, due pro-

cess entitles him to no more than notice and the opportunity

to respond—with no right to call witnesses (or have an inves-

tigator speak to them), no right to present documentary evi-

dence, no right of access to exculpatory evidence, no right to

a written rationale for the disciplinary decision, no right even

to an explanation for the hearing board’s refusal to grant his

evidentiary requests. With the inmate’s procedural rights so

limited, few if any inmates punished with disciplinary segre-

gation will be able to obtain relief under the Fourteenth

Amendment’s due process clause, however atypical and

harsh the conditions they are forced to endure. This is

No. 22-2830 15

contrary to the Supreme Court’s decisions in both Wolff v.

McDonnell, 418 U.S. 539 (1974), and Sandin v. Conner, 515 U.S.

472 (1995), as well as multiple precedents from this court.

i

Today’s holding conflates two lines of case law that ad-

dress distinct sets of interests and specify different levels of

due process reflecting those interests. 1 One line, beginning

with Wilkinson v. Austin, 545 U.S. 209 (2005), deals with a

state’s non-punitive, administrative decision to place an in-

mate in segregation (be it in-house segregation or a separate

supermax facility) based on an inmate’s overall criminal and

prison history. In that setting, as discussed more fully below,

the state’s interests in security and the efficient management

of its penal system are paramount, and the inmate’s interest

is, by comparison, more modest, given that he has already lost

his freedom and can expect a certain degree of hardship. An

informal process providing him with notice of the proposed

placement and the opportunity to rebut the basis for it suffice

to protect that interest.

The second line begins with Wolff, and it deals with a de-

cision to punish an inmate for specified misconduct commit-

ted while in prison. Punishment can take the form of revoking

an inmate’s good-time credits, but it can also take the form of

1 Both sets of cases naturally begin with the same question: Has the

prison’s action impinged on the inmate’s liberty interest? Thus, it is not at

all unusual to see precedents from both lines of cases cited as authority

bearing on that threshold question. See, e.g., Jackson v. Anastasio, 150 F.4th

851, 859 (7th Cir. 2025) (citing both the Wolff and Wilkinson lines of cases

as to whether and under what circumstances an inmate’s assignment to

segregation can implicate a liberty interest sufficient to trigger due process

protections).

16 No. 22-2830

disciplinary segregation. Either way, the punishment is based

on a factual determination that the inmate has committed a

particular wrongful act. In that punitive setting, the prisoner

has a more compelling interest in the basis for the state’s ac-

tion than he does in the administrative setting. Specifically, he

has an interest in avoiding arbitrary punishment; and that in-

terest entitles him to more procedural protections than mere

notice and the opportunity to rebut the charge. Thus, when an

inmate is assigned to segregation as a punishment for miscon-

duct, it is Wolff and its progeny that govern, not Wilkinson.

Wolff holds that a prisoner facing discipline that infringes

on a liberty interest—including the loss of good-time credits

—is entitled to certain basic procedural protections, includ-

ing, as the majority acknowledges, advance notice of the

charge; the ability to call witnesses and present documentary

evidence, to the extent consistent with the safety and correc-

tional goals of the prison; a neutral decisionmaker; and a writ-

ten explanation of what evidence the decisionmaker relied

upon and the reasons for its decision to impose discipline.

Subsequent decisions have expanded the scope of Wolff’s pro-

tections. For example, Ponte v. Real, 471 U.S. 491 (1985), holds

that when a prisoner’s request for witnesses at a disciplinary

hearing is refused, the refusal must be explained—if not con-

temporaneously, then at some later point. Further, our deci-

sions in Campbell v. Henman, 931 F.2d 1212, 1214–15 (7th Cir.

1991) (per curiam), and Chavis v. Rowe, 643 F.2d 1281, 1286

(7th Cir. 1981), abrogated on other grounds by Shango v. Jurich,

681 F.2d 1091, 1098 n.4 (7th Cir. 1982), limited by Merritt v.

Broglin, 891 F.2d 169, 172 n.5 (7th Cir. 1989), hold that the in-

mate facing discipline has a right to the disclosure of exculpa-

tory evidence in accord with Brady v. Maryland, 373 U.S. 83

(1963), and United States v. Agurs, 427 U.S. 97 (1976), overruled

No. 22-2830 17

on other grounds by United States v. Bagley, 473 U.S. 667 (1985),

so long as the disclosure does not threaten institutional con-

cerns. That may include the right to review (or at least have

the hearing officers review) relevant videotape surveillance.

Piggie v. McBride, 277 F.3d 922, 924–25 (7th Cir. 2002) (per cu-

riam). But see also Love v. Vanihel, 73 F.4th 439, 451–52 (7th Cir.

2023) (noting that we have “[s]carcely ever” added to the

Wolff protections and are unlikely to do so in the future).

Although the Court’s analysis in Wolff was focused on the

loss of good-time credits, the Court suggested in dicta that the

due process protections it specified logically ought not be lim-

ited to punishments that affect the length of a prisoner’s sen-

tence, but should apply also to a disciplinary assignment to

solitary confinement:

The latter represents a major change in the con-

ditions of confinement and is normally imposed

only when it is claimed and proved that there

has been a major act of misconduct. Here, as in

the case of good time, there should be minimum

procedural safeguards as a hedge against arbi-

trary determination of the factual predicate for

the imposition of the sanction.

418 U.S. at 571 n.19. 2

Sandin, 515 U.S. 472, in turn qualifies the foregoing dicta

in Wolff, holding that ordering an inmate to serve time in

2 My understanding of the record is that Torres was not assigned to

solitary confinement: he refers to having a cellmate in disciplinary segre-

gation. But as the cases reveal, disciplinary segregation can involve a va-

riety of atypical and significant hardships, of which social isolation is but

one.

18 No. 22-2830

disciplinary segregation for an infraction does not implicate a

liberty interest unless it subjects a prisoner to “atypical and

significant hardship … in relation to the ordinary incidents of

prison life.” 515 U.S. at 484. In Sandin, a prisoner had been

ordered to serve 30 days in disciplinary segregation after a

prison adjustment committee found that he had physically

and verbally interfered with a correctional officer who per-

formed a strip search on him. Sandin argued that he was

wrongfully denied the opportunity to present witness testi-

mony at his disciplinary hearing in violation of Wolff, but the

Supreme Court disagreed, reasoning that 30 days in discipli-

nary segregation “did not present the type of atypical, signif-

icant deprivation in which a State might conceivably create a

liberty interest” sufficient to trigger the Wolff protections. Id.

at 486. The Court noted, inter alia, that although the discipli-

nary segregation to which Sandin was subject involved sub-

stantial restrictions on the time spent out of his cell, prisoners

in the general population of the prison, which was a maxi-

mum-security facility, also experienced comparable re-

strictions, as there were regular lockdowns during the time

that Sandin was in segregation. Id. In sum, because Sandin

spent a relatively brief period of time in disciplinary segrega-

tion and the loss of privileges during that time did not result

in such a significant and atypical hardship as to give rise to a

liberty interest, Sandin did not have a due process right to

present witnesses at his disciplinary hearing. Id. at 487.

So, although the loss of privileges that accompanies disci-

plinary segregation, especially for a short period of time, typ-

ically will not be enough to implicate a liberty interest trigger-

ing the Wolff protections, atypically harsh conditions in segre-

gation—including extreme isolation, lack of heat or cooling,

no bedding, infestation by insects or vermin, or otherwise

No. 22-2830 19

disgusting and unsanitary conditions—might suffice. We

must therefore consider “the combined import of the duration

of confinement and the conditions endured” Marion Corr. Inst.

v. Columbia, 559 F.3d 693, 697 (7th Cir. 2009) (emphasis in orig-

inal), to determine whether the assignment to disciplinary

segregation implicates a liberty interest. Neither considera-

tion will necessarily be dispositive by itself. See Hardaway v.

Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013).

Torres’s case thus presents a relatively uncomplicated and

familiar question: Were the three months he spent in discipli-

nary segregation in filthy and unsanitary conditions as pun-

ishment for his infraction enough to show that he had a liberty

interest in the outcome of the hearing that deemed him guilty

of the infraction and that he was denied due process when the

hearing officers, without any explanation, deprived him of

the right to call witnesses?

Rather than engage with that question, however, the court

instead applies Wilkinson, 545 U.S. 209, and Westefer v. Neal,

682 F.3d 679 (7th Cir. 2012), to conclude that because the dis-

cipline imposed on Torres did not include the loss of good-

time credits, he was only entitled to informal, non-adversarial

procedures at his disciplinary hearing, including advance no-

tice of the charges and an opportunity to respond, with no

right to call witnesses or to present other evidence.

Wilkinson, however, like our follow-on decision in

Westefer, both had to do with prison transfer-placement deci-

sions rather than the imposition of disciplinary punishment.

Wilkinson agreed that the assignment of an inmate for an

20 No. 22-2830

indefinite term to a state’s supermax facility, 3 which involved

extreme isolation of the inmate among other hardships, did

implicate a liberty interest; but the Court reasoned that the in-

terest is one requiring only informal, non-adversarial process,

including advance notice summarizing the basis for the in-

mate’s assignment to the supermax facility coupled with a

right on the part of the inmate to rebut the basis for the as-

signment. 4

Such placement decisions are informed by the nature of an

inmate’s prior criminal history and/or his conduct within

prison, see Wilkinson, 545 U.S. at 216; see also Westefer v. Snyder,

3 The placement could be made at entry to the prison system based on

the inmate’s criminal history, including the commission of certain offenses

like organized crime, or during incarceration based on certain specified

conduct. Regarding the latter, the state’s modified procedure for reclassi-

fying an existing inmate to a maximum security level and placement into

the supermax facility employed a score sheet which took into account the

inmate’s “age, the severity of the offense triggering the initiation of reclas-

sification hearings, prior prison experience, prior violent behavior, pre-

prison gang activity and escape attempts[.]” The prison official making

the reclassification decision could also override an inmate’s score based

on any of the grounds identified for assignment of an inmate to a maxi-

mum-security level, which included “assaultive and/or predatory behav-

ior; the nature of the inmate’s conviction; leadership roles in riots or dis-

turbances; the possession of contraband; the identification of the inmate

as a leader of a ‘security threat group’ (prison gang); escape attempts; ‘an

ability to compromise the integrity of [prison] staff’; knowing exposure of

others to HIV or hepatitis; or a chronic inability to adjust to a lower secu-

rity level.” Austin v. Wilkinson, 372 F.3d 346, 351 (6th Cir. 2004), aff’d in part,

rev’d in part, & remanded, Wilkinson, 545 U.S. 209.

4 In Wilkinson, the state provided the inmate with an opportunity to

rebut the basis for placement in the supermax facility at two points in the

multi-step decisionmaking process, and again 30 days after the placement

took effect. 545 U.S. at 216–17, 226.

No. 22-2830 21

422 F.3d 570, 573 (7th Cir 2005), and are made in furtherance

of the safety interests of both prison staff and other inmates.

Applying the three-factor framework established by Mathews

v. Eldridge, 424 U.S. 319 (1976), Wilkinson noted that: (1) the

private interest of the inmate implicated by the state’s place-

ment decision, although more than minimal, is nonetheless a

limited one, in that the inmate’s liberty has by definition al-

ready been substantially curtailed; (2) the risk that the inmate

might erroneously be deprived of this limited interest by be-

ing mistaken for another prisoner or by being singled out for

insufficient reasons is adequately addressed by giving the in-

mate notice of the prospective placement and the opportunity

to respond and point out any errors in the state’s factual basis

for the assignment; and (3) the state’s interests in effectively

managing a large prison system with scarce resources and en-

suring the safety of guards and other prison personnel, the

public, and prisoners themselves are not only strong but

“dominant,” and those interests could be undermined by al-

lowing adversarial hearings with a right to call witnesses. 545

U.S. at 224–28.

Wilkinson concluded that on balance, the supermax place-

ment decision is less like the decision to return a released in-

mate to prison for a parole violation, see Morrissey v. Brewer,

408 U.S. 471, 481–82 (1972), or to deprive an inmate of good-

time credits for specific misbehavior, see Wolff, 418 U.S. at 555–

57, both of which directly affect the time spent in prison and

therefore warrant a more formal, adversarial hearing. Rather,

it is more like the decision to place an inmate in administra-

tive (i.e., non-disciplinary) segregation, see Hewitt v. Helms,

22 No. 22-2830

459 U.S. 460, 472–73 (1983), 5 or to preliminarily assess

whether the inmate should be considered for parole, see

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,

16 (1979), decisions that “draw[ ] more on the experience of

prison administrators” and/or are ones in which “the State’s

interest implicates the safety of other inmates and prison per-

sonnel,” and in which the inmate’s already-reduced liberty in-

terest may be adequately served by an informal process. Wil-

kinson, 545 U.S. at 228–29; see also Westefer, 682 F.3d at 685 n.2

(“Hewitt and Wilkinson set forth the correct correctional stand-

ard for ‘informal, non[-]adversary’ review in the transfer-

placement context.”).

Prison disciplinary decisions, by contrast, involve fact-

finding as to whether or not the inmate committed a particu-

lar, wrongful act. Unlike the sort of transfer-placement deci-

sions at issue in Wilkinson and Westefer, disciplinary findings

are not decisions based on a holistic assessment of the in-

mate’s criminal history and prison conduct record, conducted

in pursuit of prison management and security concerns, but

rather constitute guilt assessments based on evidence (be it

witness testimony, video surveillance, or documents) as to

what the inmate did or did not do. See Wolff, 418 U.S. at 558

5 As Hewitt explains, most prisoners can anticipate a placement in ad-

ministrative segregation at some point during their incarceration, whether

to await subsequent classification or transfer, for their own protection or

to protect another inmate, to break up potentially disruptive groups of in-

mates or, as occurred in this case, pending the determination of whether

the inmate engaged in misconduct. 459 U.S. at 468. Such managerial or

precautionary placements in administrative segregation are to be distin-

guished from disciplinary assignments to segregation, which are predi-

cated on a finding that the inmate engaged in misconduct. See Higgs v.

Carver, 286 F.3d 437, 438 (7th Cir. 2002).

No. 22-2830 23

(“Since prisoners in Nebraska can only lose good-time credits

if they are guilty of serious misconduct, the determination of

whether such conduct has occurred becomes critical[.]”);

Greenholtz, 442 U.S. at 9–10 (noting the difference between a

decision revoking parole, which involves “a wholly retro-

spective factual question,” and a parole-release decision,

which “depends on an amalgam of elements, some of which

are factual but many of which are purely subjective appraisals

by the [Parole] Board members based on their experience with

the difficult and sensitive task of evaluating the advisability

of parole release”) (citation modified). The accused inmate,

who faces the prospect of punishment tied to the particular

conduct with which he is charged, has a concrete, cognizable

interest in the accuracy of that decision. If he is found guilty,

he will face not only “the stigma of wrongdoing or miscon-

duct,” Hewitt, 459 U.S. at 473, but possibly more time in prison

due to the loss of good-time credits, as in Wolff, or a punitive

assignment for an extended period of time to disciplinary seg-

regation, where the conditions may be atypically and signifi-

cantly more harsh than inmates normally endure, as envi-

sioned by Sandin. Either way, the inmate has a liberty interest

in not being arbitrarily punished for an offense that he did not

commit. Wolff, 418 U.S. at 558, 571–72 & n.19. As Wolff recog-

nized, that interest entitles him to relevant witness testimony,

so long as that testimony is not inconsistent with prison secu-

rity concerns. Id. at 566. At a minimum, he is entitled to an

explanation as to why his request for witnesses was refused.

Real, 471 U.S. 491.

Nothing in either Sandin or Wilkinson rules out the right to

present witness testimony at a prison disciplinary hearing

simply because the inmate has not been deprived of good-

time credits. Sandin signals the opposite, as do our own cases,

24 No. 22-2830

which have repeatedly recognized that punitive assignments

to disciplinary segregation involving atypically harsh condi-

tions can give rise to a liberty interest triggering the Wolff re-

quirements. See, e.g., Jackson v. Anastasio, 150 F.4th 851, 861

(7th Cir. 2025) (in event jury concluded that inmate’s three

months in disciplinary segregation amounted to an atypical

and significant hardship under Sandin, it would follow that

inmate “was deprived of a liberty interest entitling him to the

minimum procedures appropriate under the circumstances to

ensure the protection of the individual against arbitrary ac-

tion of the government,” in violation of Wolff) (citation modi-

fied); Ealy v. Watson, 109 F.4th 958, 964–65, 967 (7th Cir. 2024)

(declining to hold that five-month period in disciplinary seg-

regation cells “that had poor plumbing and associated odors,

were cold and dirty, and contained bugs and spider webs”

was insufficient to implicate liberty interest, but ruling

against prisoner on merits of his due process claim because

record indicated, inter alia, that inmate was offered the oppor-

tunity to request witnesses at his disciplinary hearing but the

record bore no evidence that he ever made such a request);

Williams v. Brown, 849 F. App’x 154, 155, 157 (7th Cir. 2021)

(non-precedential decision) (prisoner who was “deprived of

bedding, exposed to relentless light that made sleep impossi-

ble, … and was subjected to an environment contaminated by

feces and urine” during his eight months in disciplinary seg-

regation had liberty interest sufficient to support his due pro-

cess claim that he was wrongfully denied adequate notice of

the charges against him and the opportunity to either present

witnesses or have them interviewed by investigator); Marion

v. Columbia Corr. Inst., supra, 559 F.3d at 698 (inmate who al-

leged that he served 240 days in disciplinary segregation may

have had liberty interest in avoiding that punishment,

No. 22-2830 25

depending on whether the conditions of that segregation

were significantly more harsh “than those in the normal

prison environment”; reversing district court’s dismissal of

prisoner’s complaint and remanding for further proceedings),

on remand, Marion v. Columbia Corr. Inst., No. 07-C-243-C,

2009 WL 1181255, at *3 (W.D. Wis. May 1, 2009) (Crabb, J.)

(concluding that allegations of complaint were sufficient to

establish that defendants deprived inmate of due process un-

der Wolff when they conducted disciplinary hearing in his ab-

sence and excluded two of the four witnesses he requested).

Relatedly, this circuit, like every other circuit to address

the question, has concluded that when pretrial detainees—to

whom Sandin does not apply—are punished for misconduct

with an assignment to disciplinary segregation, due process

requires that their disciplinary hearings have complied with

Wolff. 6 Rapier v. Harris, 172 F.3d 999, 1005 (7th Cir. 1999) (pre-

trial detainee assigned to solitary confinement for 270 days as

punishment for misconduct) (“as the circuits that have ad-

dressed the matter have indicated, although it is permissible

to punish a pretrial detainee for misconduct while in pretrial

custody, that punishment can be imposed only after affording

the detainee some sort of procedural protection”); id. at 1004

(as to procedural protections required, citing, inter alia, Mitch-

ell v. Dupnik, 75 F.3d 517, 524–25 (9th Cir. 1996) (pretrial de-

tainees who are punished for misconduct are entitled to Wolff

protections in their disciplinary proceedings, including a

right to witnesses where consistent with safety concerns));

6 Needless to say, because a pretrial detainee has not yet been con-

victed, let alone sentenced, any punishment for misconduct he commits

during detention will not take the form of revoked good-time credits, as

he has not yet earned any such credits.

26 No. 22-2830

Johnson v. Murray, No. 23-1805, 2024 WL 208152, at *1–*2 (7th

Cir. Jan. 19, 2024) (non-precedential decision) (holding at

screening stage pursuant to 28 U.S.C. § 1915A that pretrial de-

tainee had likely interest in avoiding punitive 10-day assign-

ment to disciplinary assignment, and “[w]hen discipline im-

pinges on a detainee’s recognized liberty interest, due process

requires (among other things) timely notice and the right to

call witnesses and present evidence”); see also Williamson v.

Stirling, 912 F.3d 154, 176 (4th Cir. 2018) (“a jail official that

seeks to discipline a pretrial detainee must provide the de-

tainee with at least the procedural protections required by the

Wolff decision”); Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1349

(11th Cir. 2016) (“[w]e hold that … [plaintiff pretrial detainee]

was entitled to the due process protections enshrined in Wolff

before being placed in disciplinary segregation”); Stevenson v.

Carroll, 495 F.3d 62, 70–71 (3d Cir. 2007) (“the procedures re-

quired by Wolff apply if the restraint on liberty is imposed for

disciplinary reasons; if the restraint is for ‘administrative’

purposes, the minimal procedures outlined in Hewitt are all

that is required”) (quoting Benjamin v. Fraser, 264 F.3d 175, 190

(2nd Cir. 2001)); Surprenant v. Rivas, 424 F.3d 5, 18 (1st Cir.

2005) (pretrial detainee assigned to disciplinary segregation

as punishment for misconduct) (“Wolff has long established

the level of due process required before a pretrial detainee can

be deprived of a liberty interest in a disciplinary hearing.”),

called into doubt in other respects by Fed. Ins. Co. v. HPSC, Inc.,

480 F.3d 26, 32 (1st Cir. 2007); Edwards v. Johnson, 209 F.3d 772,

779 (5th Cir. 2000) (applying Wolff protections to Immigration

and Naturalization Service’s detainee awaiting deportation

who was assigned to disciplinary segregation for miscon-

duct).

No. 22-2830 27

To be sure, Torres is not a pretrial detainee; having been

convicted of a crime and sentenced to prison, he must estab-

lish that the conditions of disciplinary segregation were atyp-

ically and significantly more harsh than those confronting

prisoners in the general prison population in order to estab-

lish that he had a liberty interest in avoiding this form of pun-

ishment. But once he has made that showing, he is in a posi-

tion equivalent to that of a pretrial detainee; both have a com-

parable liberty interest in avoiding erroneous assignment to

disciplinary segregation as a punishment for misconduct.

That interest is one that should warrant the Wolff protections,

including the right to present witnesses. See Lagerstrom v.

Kingston, 463 F.3d 621, 624 (7th Cir. 2006) (“Assuming for the

sake of argument that [the inmate] had a protectible liberty

interest [in avoiding punitive assignment to program segre-

gation], the consequence that would follow is that he would

be entitled to due process. In this context, due process re-

quires that he receive advance written notice of the charges,

the chance to present testimony and documentary evidence

to an impartial decisionmaker, and a written explanation,

supported by at least ‘some evidence’ in the record, for any

disciplinary action taken.”) (citing, inter alia, Wolff); see also

Prude v. Meli, 76 F.4th 648, 657 n.4 (7th Cir. 2023) (Wolff pro-

tections apply to deprivations of property as well as liberty).

My colleagues reason that our opinion in Adams v. Reagle,

91 F.4th 880 (7th Cir. 2024), cert. denied, No. 25-31, 2025 WL

2906509 (U.S. Oct. 14, 2025), dictates a contrary holding, quot-

ing its statement that “an inmate who is facing transfer to dis-

ciplinary segregation is entitled only to ‘informal, non[-]ad-

versarial due process,’ which leave[s] substantial discretion

and flexibility in the hands of the prison administrators.” Id.

at 895. But what the Adams majority characterized as “transfer

28 No. 22-2830

to disciplinary segregation” was actually a reference to an ad-

ministrative decision to transfer the inmate to department-

wide restrictive housing, which was the equivalent of placing

him in a supermax facility. The facts of Adams are somewhat

complex, but, simplifying matters a bit, the key points are

these: Adams was charged in a prison disciplinary hearing

with assaulting another prisoner. His request for a witness at

his disciplinary hearing was denied without explanation. The

hearing officer found him guilty of assault and battery, or-

dered the forfeiture of 360 days of good-time credits, reduced

his credit-earning class, and ordered him to spend a year in

disciplinary segregation. The finding that Adams had as-

saulted another prisoner in turn became part of the basis for

a subsequent administrative decision to reclassify Adams to

department-wide restrictive housing. Adams was ultimately

able to reverse the revocation of his good-time credits by way

of a habeas corpus petition: the judge agreed that the revoca-

tion of those credits entitled him to present witnesses pursu-

ant to Wolff and that the unexplained refusal to grant him that

opportunity deprived him of due process. (He was later re-

charged with and found guilty of the same offense, but he suc-

cessfully appealed that finding within the prison hierarchy

and had the sanctions expunged.) But Adams contended that

the (later-restored) credits were not the only penalty he suf-

fered as a result of the assault finding: he pointed out that by

the time he prevailed in his challenge to the assault finding,

he had already served two years in restrictive housing pursu-

ant to the adverse reclassification decision. He contended that

his time in restrictive housing, involving atypically harsh con-

ditions, itself was an adverse consequence of the disciplinary

proceeding at which he had been denied the right to call wit-

nesses, thus entitling him to compensation for the denial of

No. 22-2830 29

due process. The Adams majority was not convinced: the de-

cision to transfer him to restrictive housing, it reasoned, re-

quired only an informal, non-adversarial process, and not the

right to call witnesses—as both Wilkinson and Westefer made

clear. Notably, Adams, in his appeal to this court, never chal-

lenged the one year in disciplinary segregation that was part

of the sanctions imposed for assault. As his briefs made clear,

he was only challenging the two years he spent in restrictive

housing as a result of the reclassification decision. See 91 F.4th

891–92 (dissent). The majority’s application of Wilkinson and

its holding that only informal process is required for such ad-

ministrative placement-transfer decisions was thus unexcep-

tional.

Reading Adams to hold that an inmate facing disciplinary

segregation has only a limited right to notice and the oppor-

tunity to respond to a charge not only misapprehends what

was at issue in Adams but effectively forecloses a due process

right to witnesses no matter how long a period of time an in-

mate is ordered to serve in disciplinary segregation and how

atypically harsh the conditions of segregation may be. I be-

lieve this is an error for multiple reasons.

First, construing Wilkinson to categorically rule out a right

to witnesses in disciplinary segregation cases, as the majority

understands Adams to do, would overrule a line of cases

which recognize that the Wolff protections do apply when the

length and/or conditions of disciplinary segregation are sig-

nificantly and atypically harsh vis-à-vis the conditions faced

by the general population of the prison. See Jackson v. Anasta-

sio and the other cases cited above at pages 24–25. Adams did

not purport to be departing from existing circuit precedent.

Indeed, if that were the case, the court would have been

30 No. 22-2830

required to circulate its proposed opinion to the other active

judges of this court before doing so. See Seventh Circuit Rule

40(e).

Second, limiting the full set of Wolff protections solely to

inmates who have lost good-time credits will leave many in-

mates without an effective remedy for wrongful disciplinary

findings. Recall that the point of the Wolff protections is to

promote accuracy in prison disciplinary decisions and to

avoid arbitrary punishments. 418 U.S. at 558. Revoking good-

time credits is not the only means of punishing a misbehaving

prisoner; requiring an inmate to serve time in disciplinary

segregation under atypically harsh conditions may be a dif-

ferent form of punishment, but it is one that surely impinges

on his liberty. An inmate facing the prospect of months (and

perhaps years) in disciplinary segregation with little to no

contact with other prisoners, little access to fresh air and ex-

ercise, few if any privileges, and possibly inhumane condi-

tions surely has as much of an interest in the reliability of the

decision finding him guilty of misconduct as an inmate who

faces additional time in prison.

Consigning these claims to the Eighth Amendment is no

answer. In theory, an inmate may be able to seek relief under

the Eighth Amendment for the harsh conditions of confine-

ment he has experienced in disciplinary segregation. See, e.g.,

Taylor v. Riojas, 592 U.S. 7 (2020) (per curiam) (recognizing

that assignment of inmate to a “shockingly unsanitary” pair

of cells even for six days violates the Eighth Amendment); but

see also Jackson, 150 F.4th at 870–71 (Hamilton, J., joined by

Rovner, J., concurring) (noting that existing Eighth Amend-

ment jurisprudence has not been particularly receptive to

claims based on time spent in segregation, even when such

No. 22-2830 31

claims involved prolonged periods of solitary confinement).

The Eighth Amendment may offer an inmate relief for the

harsh conditions of his confinement, but not for a wrongful

disciplinary finding resulting from inadequate procedures.

And as the facts of Adams make plain, disciplinary determina-

tions can have significant collateral consequences in subse-

quent prison transfer and placement decisions.

I take Judge Scudder’s point in Jackson that our current,

backward-looking approach to determining whether or not

an inmate has a liberty interest in avoiding a punitive assign-

ment to disciplinary segregation has its problems. In particu-

lar, using the conditions of disciplinary segregation as the ret-

roactive trigger for the Wolff protections may have the effect

of exposing hearing officers to liability for conditions that

they did not foresee. Jackson, 150 F.4th at 880–81 (Scudder, J.,

concurring). But that backward approach is what Sandin and

its focus on “the actual conditions of confinement,” see Marion

v. Radtke, 641 F.3d 874, 875 (7th Cir. 2011), necessarily require.

And there are means (including jury instructions) to limit the

liability of hearing officers to the procedural due process vio-

lations for which they are responsible. (A hearing officer who

has knowingly foreclosed to an inmate the evidentiary means

of challenging a disciplinary charge has committed a wrong

that is distinct from the conditions that the convicted inmate

subsequently ensures in segregation.) We might also consider

making the liberty-interest assessment more forward looking

by considering what penalties are possible when an inmate is

charged with an infraction, as opposed to what penalties are

ultimately imposed. If, for example, the charged infraction is

one for which the hearing officers have the authority to re-

voke an inmate’s good-time credits, it seems to me reasonable

to argue that he ought to be entitled to the full panoply of

32 No. 22-2830

Wolff protections regardless of whether the officers ultimately

select that particular penalty.

In any case, all that we need to say, and ought to say, in

this case is that Torres has presented sufficient evidence from

which a factfinder might conclude that his three months in

disciplinary segregation—in a dank cell rife with mold, mil-

dew, rust, insects, and a toilet that leaked feces onto the floor

when flushed—exposed him to conditions sufficiently atypi-

cal and significant to establish a liberty interest in avoiding

this form of punishment; that interest in turn triggered the

Wolff protections, including a right (subject to security con-

cerns) either to present witnesses or to have his witnesses in-

terviewed by an investigator. Torres was denied that right,

with no explanation. 7 The case should be returned to the dis-

trict court for further proceedings.

I have, finally, considered whether the defendants are en-

titled to qualified immunity. In my view, they waived any

7 As the majority points out, the record indicates that Torres did not

fill out a witness request form for either of the two hearings (the first one

that resulted in dismissal of the disciplinary ticket, and the second one that

resulted in Torres’s conviction). But Torres has averred that he requested

a witness prior to the first hearing and at the second hearing, and given

his personal knowledge on this point, his averment is sufficient to create

a fact question, as the district court itself concluded. See Roberts v. Neal, 745

F.3d 232, 234 (7th Cir. 2014) (fact that plaintiff’s averment that he filed

grievance was uncorroborated by documentary proof did not permit court

to discredit plaintiff on this point: “Roberts may have been lying about

having filed a grievance—but alternatively the defendants may have been

lying when they denied there was any record of such a grievance. A

swearing contest requires an evidentiary hearing to resolve, and none was

held.”); see also Wayland v. OSF Healthcare Sys., 94 F.4th 654, 657 (7th Cir.

2024); Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003).

No. 22-2830 33

such claim below by making what Torres appropriately char-

acterizes as a “skeletal” argument for qualified immunity that

did not adequately engage with the evidence he presented

and did not cite a single case in support of the claim. Indeed,

their argument contained a notation—“Look up cases in ar-

gument for case law to include here.”—(R. 41 at 11)—which

obviously envisioned further development of the claim that

never took place. Legitimate qualified-immunity arguments

must rest on the particular facts of the case and on the state of

the law at the time the defendants acted. The defendants’ ar-

gument below was deficient in both respects. See Saucier v.

Katz, 533 U.S. 194, 201–02 (2001), as modified by Pearson v. Cal-

lahan, 555 U.S. 223, 236–43 (2009).

i

I would therefore reverse the grant of summary judgment

to the defendants and remand for further proceedings.

I respectfully dissent.