“[T]o many inmates of Marion’s Control Unit [a federal Supermax facility,] the price of murder must not be high and to some it must be close to zero”
How later courts described this case
- “[T]o many inmates of Marion’s Control Unit [a federal Supermax facility,] the price of murder must not be high and to some it must be close to zero”
- “A party who fails to pursue discovery in the face (continued...
- assuming protection but holding no constitu- tional error in admitting evidence of membership in a gang that had committed brutal acts, as evidence of future dangerousness, with citation to Dawson v. Delaware, 503 U.S. 159 (1992)
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3318
ROBERT WESTEFER,
MARK VONPERBANDT,
ALLEJANDRO VILLAZANA, et al.,
Plaintiffs-Appellants,
v.
DONALD SNYDER,
ODIE WASHINGTON,
MICHAEL V. NEAL, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00 C 162—G. Patrick Murphy, Chief Judge.
____________
ARGUED SEPTEMBER 29, 2004—DECIDED SEPTEMBER 6, 2005
____________
Before CUDAHY, RIPPLE and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. The plaintiffs, prisoners incarcerated
at Tamms Correctional Center (“Tamms”) in Illinois,
brought this § 1983 action against officers and employees of
the Illinois Department of Corrections (collectively,
“IDOC”). The prisoners alleged that their transfers to
Tamms violated their rights to due process of law and
2 No. 03-3318
freedom of association and against ex post facto punish-
ment. The district court dismissed these counts for failure to
state a claim. Another count, alleging that the transfer
constituted retaliation for the exercise of First Amendment
rights, survived this initial scrutiny. The parties then
conducted discovery on this remaining count. Following
discovery, the district court granted summary judgment to
IDOC. The prisoners appeal the decision of the district court
with respect to all of these claims. After oral argument, we
ordered the parties to file supplemental briefs addressing
the administrative process by which an inmate, already
incarcerated at Tamms, can challenge his assignment to that
facility. After the Supreme Court decided Wilkinson v.
Austin, 125 S. Ct. 2384 (2005), the parties filed supplemental
briefs addressing the applicability of that decision to this
case. For the reasons set forth in the following opinion, we
affirm the judgment of the district court with respect to the
freedom of association and ex post facto claims. With
respect to the retaliation and due process claims, we reverse
the judgment of the district court and remand the case for
further proceedings consistent with this opinion.
I
BACKGROUND
A. Facts
Tamms is the highest security prison in Illinois. IDOC
designed the conditions there to be harsh, so that the threat
of being transferred to Tamms would deter prisoners
throughout the system from disobeying prison rules.
According to IDOC, all Tamms prisoners are exposed to
hardships that are not experienced in segregated confine-
No. 03-3318 3
1
ment at any other maximum security facility in Illinois.
IDOC transferred the plaintiffs to Tamms within a year after
it opened.
2
The plaintiffs are organized into two categories, labeled
generally the “litigation plaintiffs” and the “gang plaintiffs.”
The gang plaintiffs, some of whom are also litigation
plaintiffs, are associated with prison gangs (in IDOC
terminology, “Security Threat Groups” or “STGs”). The
gang plaintiffs claim that IDOC encouraged their gang
activity before 1996, but then changed policies and now
transfers gang leaders to Tamms for no reason but their
gang affiliation. The litigation plaintiffs submit that IDOC
has a policy of transferring inmates with a history of filing
actions, grievances or other complaints about IDOC and
prison conditions. They claim that IDOC has a policy of
transferring prisoners with litigation histories to Tamms as
a means of retaliating for the trouble they cause the depart-
ment through their litigation activities. Each of these
prisoners asserts that his disciplinary history does not
warrant an assignment to Tamms.
1
In their initial complaint, the plaintiffs described the purpose
of Tamms and the harshness of confinement conditions there. In
this appeal, IDOC has accepted the descriptions as true.
2
Of the thirty-three captioned appellants in this case, Mr. Carroll
has been dismissed by his own request and Mr. Chapman
committed suicide in August 2004. Of the remaining defendants,
it appears that several have been released from IDOC’s custody
or no longer are at Tamms. To the extent that the appellants no
longer are in custody or are incarcerated at Tamms, they lack
standing to request injunctive relief from their assignment to
Tamms.
4 No. 03-3318
B. District Court Proceedings
In a four-count § 1983 complaint, only three counts of
which are now before this court, the gang plaintiffs alleged
violations of the First Amendment right of association and
of the right to be free from ex post facto punishment. The
litigation plaintiffs sought money damages and injunctive
relief for retaliatory interference with their First Amend-
ment right to petition the courts. All prisoners asserted
violations of their right to due process.
The district court conducted a preliminary screening of
the prisoners’ complaints. See 28 U.S.C. § 1915A. This review
resulted in the dismissal for failure to state a claim of the
due process claim of all the prisoners as well as the associa-
tional rights claim and the ex post facto claim of the gang
plaintiffs.
With respect to the retaliation claim, the district court held
that the litigation plaintiffs met the threshold requirements
of § 1915A because retaliation for exercising one’s right to
access to the courts is a cognizable constitutional claim, and
the prisoners had pleaded sufficiently such a claim. How-
ever, the district court struck, as a discovery sanction, a
good deal of the evidence submitted by the prisoners on the
issue of retaliation. Subsequently, it granted the state
officials summary judgment on the retaliation claim.
A more detailed rendition of the district court’s rationale
is set forth in our discussion of each claim on appeal.
II
No. 03-3318 5
DISCUSSION
A. The Gang Plaintiffs’ Claims
The gang plaintiffs asserted that their transfer to Tamms,
on account of gang membership, violated their First
Amendment right to freedom of association and the Ex Post
Facto Clause. The district court rejected the associational
rights claim on the grounds that the prisoners had no First
Amendment right to belong to a gang and that regulating
gang activity served legitimate penological goals. The court
rejected the ex post facto argument because the change in
prison conditions constituted a reasonable regulation and
not additional punishment. Therefore, reasoned the district
court, even if IDOC transferred them to Tamms in retalia-
tion for their gang activities, the gang plaintiffs had no
cognizable claim.
We review these § 1915A dismissals de novo. Calhoun v.
DeTella, 319 F.3d 936, 939 (7th Cir. 2003). In undertaking
such a review, we must construe all allegations as true and
in the light most favorable to the prisoners. Id.
1. Freedom of Association
The gang plaintiffs submit that IDOC’s policy of transfer-
ring STG members to Tamms violates their First Amend-
ment right of association. They allege that IDOC’s policy
prior to 1996 encouraged gang membership; current policy,
by contrast, restricts prisoners’ rights to associate with
3
prison gangs. The gang plaintiffs challenge IDOC’s regula-
tions that allow officials to transfer prisoners who are gang
3
At oral argument, IDOC admitted that prisons in the system
had a pre-1996 practice of cooperating with prison gangs to
maintain order in the facilities.
6 No. 03-3318
members or “who may be planning to engage” in gang
activity, Ill. Admin. Code tit. 20, § 505.40(b), as unconstitu-
tionally overbroad.
IDOC contends that the prisoners’ transfers to Tamms
implicate neither expressive nor intimate rights to associa-
tion. In its view, regardless of whether IDOC once had a
policy of cooperating with prison gangs, prisoners have no
First Amendment right to associate with gangs.
We agree with IDOC on this point. “Prison walls do not
form a barrier separating prison inmates from the
protections of the Constitution.” Turner v. Safley, 482 U.S. 78,
84 (1987). “When a prison regulation or practice offends a
fundamental constitutional guarantee, federal courts will
discharge their duty to protect constitutional rights.”
Procunier v. Martinez, 416 U.S. 396, 405-06 (1974). Although
we have not so held expressly, we have opined that “gang
membership seems not to implicate the right of association.”
Fuller ex rel. Fuller v. Decatur Pub. Sch. Bd. of Educ., 251 F.3d
662, 667 (7th Cir. 2001) (citing City of Chicago v. Morales, 527
U.S. 41 (1999)). But cf. Fuller v. Johnson, 114 F.3d 491, 498 (5th
Cir. 1997) (assuming protection but holding no constitu-
tional error in admitting evidence of membership in a gang
that had committed brutal acts, as evidence of future
dangerousness, with citation to Dawson v. Delaware, 503 U.S.
159 (1992)).
We see no basis for maintaining that those who have been
incarcerated as a result of a criminal conviction and conse-
quently deprived of some of the most basic of associational
opportunities during their imprisonment somehow retain
the right to belong to a gang within the prison walls when
prison officials have determined that such a group is
detrimental to the achievement of the prison’s legitimate
penological goals. The decision of prison administrators as
No. 03-3318 7
to the detrimental effect of such groups is a decision to
which we owe great deference. See Jones v. North Carolina
Prisoners’ Labor Union, Inc., 433 U.S. 119, 132 (1977). More-
over, just recently, the Supreme Court spelled out, in no
uncertain terms, the incompatibility of prison gangs with
any penological system:
Prison security, imperiled by the brutal reality of prison
gangs, provides the backdrop of the State’s interest.
Clandestine, organized, fueled by race-based hostility,
and committed to fear and violence as a means of
disciplining their own members and their rivals, gangs
seek nothing less than to control prison life and to
extend their power outside prison walls. See Brief for
State of California et al. as Amici Curiae 6. Murder of an
inmate, a guard, or one of their family members on the
outside is a common form of gang discipline and
control, as well as a condition for membership in some
gangs. See, e.g., United States v. Santiago, 46 F.3d 885, 888
(C.A.9 1995); United States v. Silverstein, 732 F.2d 1338,
1341 (C.A.7 1984). Testifying against, or otherwise
informing on, gang activities can invite one’s own death
sentence. It is worth noting in this regard that for prison
gang members serving life sentences, some without the
possibility of parole, the deterrent effects of ordinary
criminal punishment may be substantially diminished.
See id., at 1343 (“[T]o many inmates of Marion’s Control
Unit [a federal Supermax facility,] the price of murder
must not be high and to some it must be close to zero”).
Wilkinson, 125 S. Ct. at 2396-97.
Although, in the past, some prison officials in Illinois
apparently intentionally abdicated their authority to prison
gang leaders, this inexplicable deviation certainly does not
8 No. 03-3318
cast doubt on the reality that prison gangs are a manifest
threat to prison order and discipline and that there is no
federal constitutional impediment to their ban by prison
officials. We thus agree with the district court that the gang
plaintiffs’ contention that they have a right grounded in the
First Amendment to belong to a prison gang is simply too
tenuous to state a claim. See Jones, 433 U.S. at 126-29; Rios v.
Lane, 812 F.2d 1032, 1036 (7th Cir. 1987).
2. Ex Post Facto
The gang plaintiffs further submit that the district court
erred in dismissing their § 1983 complaint because IDOC’s
policy of transferring them to Tamms violates the Ex Post
Facto Clause of the Constitution. They base their argument
on IDOC’s pre-1996 policy of cooperating with prison
gangs. According to the prisoners, IDOC’s policy shift from
encouraging gang membership to transferring gang mem-
bers to Tamms once the facility opened, constitutes ex post
4
facto punishment of previously allowed activity.
The Ex Post Facto Clause forbids a legislature from
passing laws retroactively altering the elements of or
increasing the punishment for a crime. California Dep’t of
Corr. v. Morales, 514 U.S. 499, 504 (1995). For ex post facto
purposes, therefore, we must address whether (1) the action
complained of constitutes a “law,” and (2) the sanction can
be considered a “punishment.” Id.
4
In the alternative, the prisoners argue that the change in
IDOC’s policy violates their due process rights because they were
not given fair warning that gang membership would give rise to
additional criminal penalties. We discuss this alternative argu-
ment in the due process discussion infra.
No. 03-3318 9
On the first inquiry, we generally have limited ex post
facto consideration to legislative acts, and have not ex-
tended the definition to interpretations of law made by
administrative agencies. See Prater v. U.S. Parole Comm’n, 802
F.2d 948 (7th Cir. 1986) (en banc). Under Illinois law, IDOC
has the discretionary authority to assign prisoners to any
facility in its system, 730 ILCS § 5/5-8-6(a), and we cannot
say that the exercise of this discretionary authority consti-
tutes a “law” for ex post facto purposes.
The prisoners also fail the second inquiry. “As Collins [v.
Youngblood, 497 U.S. 37 (1990)] and subsequent cases make
clear, the Ex Post Facto Clause does not prohibit every
alteration in a prisoner’s confinement that may work to his
disadvantage.” Gilbert v. Peters, 55 F.3d 237, 238 (7th Cir.
1995). “Punishment” for ex post facto analysis concerns the
length of imprisonment, not the conditions of imprison-
ment. Garner v. Jones, 529 U.S. 244, 250 (2000); United States
v. Shorty, 159 F.3d 312, 317 (7th Cir. 1998). We have noted
that a significant factor to consider in determining whether
a law is punitive is the statute’s purpose. Gilbert, 55 F.3d at
238. Although a transfer to Tamms constitutes a change in
the conditions of confinement for a duly-convicted prisoner,
it cannot be characterized as an increase in the punishment
for the crime of conviction, but rather is a response to
legitimate security concerns and forwards valid penological
interests. See Morales, 514 U.S. at 510.
The district court correctly dismissed the gang plaintiffs’
ex post facto claims.
B. The Litigation Plaintiffs’ Claims
The litigation plaintiffs alleged that they had been sent to
Tamms in retaliation for filing lawsuits against IDOC and
its officials. The district court determined that several of the
10 No. 03-3318
prisoners—Mr. Felton, Mr. Horton, Mr. V. Rodriguez and
Mr. Santiago—had failed to exhaust their administrative
remedies. It therefore dismissed the suits of these prisoners
without prejudice.
IDOC moved for summary judgment. At the same time,
they moved to strike certain evidence offered by the prison-
ers in response, under Federal Rule of Civil Procedure
37(c)(1). The evidence consisted of affidavits indicating that
5
information in the prisoners’ placement forms was false.
The IDOC officials admitted relying upon these forms in
making their transfer decisions. IDOC predicated its motion
to strike on the assertion that the prisoners had presented
this evidence but had failed to amend answers to
previously-served IDOC interrogatories as required by
Federal Rule of Civil Procedure 26.
The district court granted both the motion to strike and
the motion for summary judgment. On the motion to strike,
the substance of which is considered in greater detail below,
the court determined that the prisoners had insufficient
justification for failing to amend their answers to IDOC
interrogatories. The district court therefore did not consider,
when deciding the summary judgment motion, the prison-
ers’ claim that IDOC had placed them at Tamms based on
6
falsified placement forms.
5
Placement forms summarize personal information about the
prisoner, including their segregation status and the STG affilia-
tion or general disciplinary problems justifying their transfer to
Tamms.
6
The district court also determined that the prisoners failed to
disclose facts supporting their claim against Mr. Snyder as
requested in the interrogatories. As a result, the court dismissed
(continued...)
No. 03-3318 11
7
On the merits of the summary judgment motion, the
district court noted that, in order to prevail on their retalia-
tion claim, the prisoners had to demonstrate that their
conduct was constitutionally protected and that this conduct
(the litigation previously filed by the prisoners) constituted
a substantial or motivating factor in IDOC’s decision to
transfer them to Tamms. Each prisoner presented a chronol-
ogy of events that allegedly demonstrated that their filing of
a previous lawsuit had motivated IDOC’s transfer decision.
8
With the sole exception of Mr. Clayton, the district court
determined that the prisoners’ chronologies had failed to
connect their transfers to their previous litigation activity.
Because these prisoners had not offered any additional
evidence, the court determined that they had not met their
burden. The court further opined that the same result would
obtain for Mr. Felton and Mr. Horton, had their cases not
been dismissed for failure to exhaust.
The prisoners now appeal the district court’s § 1915A
6
(...continued)
Mr. Snyder as a defendant.
7
The court also treated the motion for summary judgment as a
motion by all of the officials—including some defendants who
had not filed motions—because the Illinois Attorney General
represented all of the defendants.
8
As for Mr. Clayton, the district court noted that he had
presented some evidence of a direct threat, made by one of the
officials named as defendants, to send him to Tamms because of
his grievances and lawsuits. However, because an official other
than the one who had allegedly threatened Mr. Clayton approved
his transfer, the district court determined that Mr. Clayton had
failed to connect his activities with his transfer. Therefore, with
respect to each of the prisoners, the district court granted
summary judgment in favor of the prison officials.
12 No. 03-3318
ruling based on exhaustion as well as its grant of IDOC’s
motions to strike and for summary judgment.
1. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) prohibits
prisoners from filing suit with respect to prison conditions
unless all available administrative remedies have been
exhausted. 42 U.S.C. § 1997e(a). The parties agree that this
action is subject to the PLRA’s exhaustion requirement.
Although exhaustion is a precondition to the prisoners’ suit,
failure to exhaust is an affirmative defense that IDOC has
the burden of proving. See Dale v. Lappin, 376 F.3d 652, 656
(7th Cir. 2004). IDOC claims that several of the prisoners
failed to exhaust their administrative remedies and are
precluded from bringing this suit.
Our consideration of this question requires that we
ascertain the administrative procedures by which a prisoner
may challenge his transfer to Tamms. Because the record
and the initial briefing did not present a clear picture, we
requested that the parties file supplemental briefs address-
ing the administrative procedures available to a Tamms
prisoner. Upon review of these submissions,we must
conclude that IDOC has not carried its burden of establish-
ing that the prisoners failed to exhaust available administra-
tive remedies.
IDOC submits that inmates have two avenues through
which they must challenge their transfers to Tamms:
through the transfer review hearing process and the inmate
grievance process. Illinois regulations establish two types of
transfer hearings at Tamms, depending on the inmate’s
segregation category upon arrival at the facility. Prisoners
are classified as subject to either administrative or disciplin-
No. 03-3318 13
ary segregation, and different review processes govern each
category.
Inmates who are in administrative detention when they
arrive are afforded a transfer review hearing within ten
working days (“whenever possible”) of their transfer to
Tamms. Ill. Admin. Code tit. 20, § 505.60(a). This hearing
includes the opportunity for an inmate to appear, make
statements challenging his placement, submit documentary
evidence and request that the transfer review committee
interview other persons. Id. § 505.60(b). The committee then
makes a recommendation to the Chief Administrative
Officer (“CAO,” i.e., the warden), who approves or denies
the recommendation before forwarding it to the Assistant
9
Deputy Director. Id. § 505.60(d). Presumably, those plain-
tiffs who were sent to Tamms in administrative detention
status received this initial transfer review hearing, although,
for reasons discussed below, the record is silent in that
respect.
Inmates who are transferred to Tamms in disciplinary
segregation status are not afforded an initial transfer review
hearing; regulations provide only that such individuals
receive a hearing after their term of disciplinary segregation
ends. Id. § 505.60(a). This provision must prove problematic
for some inmates. If a prisoner is sent to Tamms in a
disciplinary segregation status that does not expire for a
very long time, he will not have a hearing on his transfer to
Tamms until the expiration of that very long disciplinary
sentence.
9
IDOC notes that its policy has changed from that contained in
the regulations and that the recommendation goes from the CAO
to the Deputy Director, who apparently approves a transfer if
warranted.
14 No. 03-3318
Apart from the initial transfer review hearing, the review
committee conducts a review of each prisoner’s file every
ninety days to determine whether placement at Tamms is
still appropriate. Id. § 505.70(a). The ninety-day review does
not afford the inmate an opportunity to be heard or to
present evidence. In addition, although IDOC represents
that the ninety-day review is conducted for every Tamms
inmate, see Appellees’ Supplemental Br. at 4 n.4, the regula-
tion indicates that such quarterly review only applies to
those in administrative detention, see Ill. Admin. Code tit.
20, § 505.70(a) (noting that the committee “review[s] the
record of each committed person in administrative deten-
tion”).
For individuals in administrative detention, the transfer
review committee conducts an additional hearing every
year in which the inmate has the same opportunity to be
heard and to present evidence challenging his transfer as in
the initial hearing, and is also entitled to notice of the
committee’s finding. Id. § 505.70(b) (stating that the annual
hearing is to be held in accordance with the standards of the
initial review). Again, the individuals in administrative
detention that have been at Tamms for more than a year
have presumably been afforded such annual reviews, while
those in disciplinary detention status presumably have not.
We say “presumably” with respect to the administrative
review hearings because it appears that IDOC has not
provided the prisoners with the hearing records, which they
requested early in this litigation. Nevertheless, without
evidence to the contrary, we presume that Tamms officials
follow Illinois regulations, in which case every prisoner
transferred in administrative detention has been afforded a
No. 03-3318 15
10
review hearing. Prisoners who were transferred in, and
remain in, disciplinary segregation have not yet qualified
for a review hearing, and this administrative remedy is
unavailable to them. See Lewis v. Washington, 300 F.3d 829,
833 (7th Cir. 2002).
IDOC’s position that the transfer review process affords
an administrative remedy is unconvincing for another
reason. Many of the prisoners contend that they were not
told the reasons for their transfer to Tamms; indeed, several
prisoners filed grievances to complain about this problem.
IDOC regulations do not require the department to notify
prisoners why they have been transferred. We doubt
whether the transfer review process is effective for prisoners
who do not know the grounds for their transfer and who
thus have no basis with which to contest their transfer. More
importantly, if a prisoner discovers the reasons for his
transfer shortly after completing the initial transfer review
hearing and wishes to contest the transfer because, for
instance, the reasons are based on incorrect facts, he must
wait at least one more year before he can present evidence
at his annual review hearing. For all these reasons, with
respect to the transfer review process, IDOC has not carried
its burden of establishing that the prisoners have not
satisfied PLRA exhaustion requirements.
10
IDOC does not argue that the prisoners have failed to exhaust
administrative remedies because an annual status review is
available to those in administrative detention status. Nor do they
argue that the ultimate availability of a transfer hearing to those
in disciplinary segregation—available, that is, after their period
of disciplinary segregation ends—means that such prisoners have
also failed to exhaust available remedies.
16 No. 03-3318
IDOC also submits that the inmate grievance process is
another avenue for challenging transfer to Tamms. Al-
though we have considered, in previous cases, IDOC’s
grievance process in challenging general prison conditions,
we have not addressed whether the grievance process is an
administrative remedy by which a prisoner may challenge
his transfer to Tamms. In Illinois, “incidents, problems, or
complaints” may be grieved, Ill. Admin. Code tit. 20,
§ 504.810(a), but the grievance process cannot be “utilized
for complaints regarding decisions that are outside the
authority of the Department, such as parole decisions,
clemency, or orders regarding length of sentence or deci-
sions that have been rendered by the Director.” Id.
There seems to be significant confusion within IDOC,
presumably caused by the “or decisions that have been
rendered by the Director” clause of section 504.810(a), as to
whether a Tamms prisoner may grieve his transfer, IDOC
did not challenge every plaintiff on exhaustion grounds,
and treatment of grievances by IDOC’s ultimate grievance
appeal body, the Administrative Review Board (“ARB”),
varied among the prisoners. For instance, the ARB re-
sponded to Mr. Combs’ grievance complaining about
improper placement at Tamms by offering reasons for the
transfer (e.g., gang activity). This action would seem to
indicate that the ARB, at least, believed the grievance
process to be the proper challenge avenue. In contrast,
although he is no longer a party to this suit, the treatment of
Mr. Carroll’s grievance is instructive, especially given that
IDOC did not challenge whether he exhausted his remedies.
The ARB simply replied to his complaint that transfer to
Tamms was not an issue that it could address, but rather
was an administrative prerogative of IDOC.
No. 03-3318 17
In addition, there is some evidence that a Tamms coun-
selor told Mr. Knox that he could not grieve placement at
the facility; this evidence the district court found sufficient
to establish that Mr. Knox had exhausted all available
administrative remedies. However, Mr. V. Rodriguez, one
of the prisoners whose claims the district court dismissed
for failure to exhaust, also submitted an affidavit setting
forth a similar account. Prior to his transfer to Tamms, he
received a disciplinary report at another facility, but he
completed the appeal of that report after his transfer. Mr. V.
Rodriguez claims that IDOC officials led him to believe that
his administrative remedy lay in challenging his transfer to
Tamms, together with an existing administrative appeal that
11
he was pursuing to challenge disciplinary action. In its
supplemental brief, IDOC does not respond to or explain
the inconsistent treatment.
Despite a number of Tamms-specific regulations in the
Illinois Administrative Code, see id., pt. 505, IDOC does not
point to any regulation or department policy that clearly
identifies how a prisoner challenges his transfer to Tamms.
If, for example, the regulations specified that a prisoner
must challenge his transfer through the grievance process,
or indicated the form that such a challenge should take, the
prisoners would be obliged to conform to those administra-
11
Mr. V. Rodriguez was transferred to Tamms while awaiting a
disciplinary action (assaulting a guard) through the IDOC
administrative system. He claims that the grievance officer at
Tamms told him that he could challenge his transfer together
with his administrative appeal of the disciplinary action. Mr. V.
Rodriguez never filed a separate grievance challenging his
transfer because he claims that he was led to believe that, by
appealing his transfer at the same time he appealed the disciplin-
ary action, he exhausted his administrative remedies.
18 No. 03-3318
tive requirements. If the ARB took consistent positions on its
authority to address a transfer grievance, a clear route for
the prisoner at least would be evident and we could proceed
to determine its effectiveness. But, as this case comes to us,
we find the record “hopelessly unclear . . . whether any
administrative remedy” remained open for the prisoners to
challenge their transfers through the grievance process.
Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002). With
regard to Mr. Felton, Mr. Horton, Mr. V. Rodriquez and Mr.
12
Santiago, IDOC failed to meet its burden of proving that
they failed to exhaust an available administrative remedy,
Dale, 376 F.3d at 656, even after we afforded the opportunity
to clarify the record through supplemental briefing.
Although we base our decision on IDOC’s failure to meet
its burden on the exhaustion issue, we pause to note as well
that the district court erred in finding Mr. Felton’s and Mr.
Horton’s grievances insufficient to “alert[ ] the prison to the
nature of the wrong for which redress is sought,” which is
all that the PLRA requires. Strong v. David, 297 F.3d 646, 650
(7th Cir. 2002). Although their purported placement chal-
lenges were made within substantive complaints about
Tamms conditions, each prisoners’ grievance expressed
concern about not being told the reason for his transfer to
Tamms or listed something to the effect of “Transfer from
Tamms” as the requested remedy. These complaints were
12
The district court dismissed Mr. Santiago because he submitted
the grievance that he claimed exhausted his administrative
remedies after this suit was filed. The appellants here do not
challenge his dismissal. But, because it is unclear whether the
grievance process may be used to challenge a prisoner’s transfer
to Tamms, Mr. Santiago’s failure timely to file a grievance is of no
moment, and we conclude that the district court erred in dismiss-
ing him on that ground.
No. 03-3318 19
sufficient to alert prison officials that Mr. Felton and Mr.
Horton challenged their transfers, even though the griev-
ance officers in each case addressed the prison condition
complaints without mentioning their transfers to Tamms.
We therefore reverse the district court’s dismissal of the
claims of Mr. Felton, Mr. Horton, Mr. V. Rodriguez and Mr.
Santiago.
2. Discovery
The litigation plaintiffs believe that they were sent to
Tamms in retaliation for filing legal actions against IDOC
13
and its officials. Proving this theory required the prisoners
to reconstruct the decision-making process leading to their
transfers. To accomplish this task, the prisoners requested
a number of documents from IDOC. Included in the re-
quested documents were: placement forms for each pris-
oner; the results of any administrative reviews conducted
since their arrival at Tamms; each prisoner’s ARB file; the
litigation files of each litigation plaintiff; documents listing
prisoners considered eligible for placement in Tamms who
13
Because the district court rejected the associational rights and
the ex post facto counts of the gang plaintiffs, the remaining
discovery disputes primarily involved the litigation plaintiffs.
Indeed, given that the First Amendment and ex post facto
complaints were dismissed early on, the district court and
magistrate judge determined, correctly, that many of the prison-
ers’ discovery requests had become irrelevant. Because the
district court correctly dismissed these counts, we need not
address the district court’s handling of the prisoners’ discovery
requests aimed solely at proving the gang plaintiffs’ associational
rights and ex post facto violations.
20 No. 03-3318
14
were not transferred; and any documents discussing the
transfer of the named plaintiffs, rather than other prisoners,
to Tamms.
Before considering the specific discovery disputes at issue
in this appeal, it is useful to recount certain aspects of the
discovery history in this case. The record reveals that both
IDOC and the prisoners were slow in discovery. The
prisoners delayed answering IDOC’s interrogatories and, at
15
one point, earned a warning about possible sanctions.
14
The prisoners sought records of non-Tamms inmates to
demonstrate, among other things, that IDOC transferred the
litigation plaintiffs but did not transfer prisoners who presented
more severe disciplinary or gang-related problems. They argued
that, together with their litigation files, these records would raise
an inference that the litigation plaintiffs were transferred solely
on the basis of their litigation activities.
15
In a similar vein, later in the proceedings, the prisoners’
identical form responses to IDOC’s interrogatories were to
become a matter of controversy. Every IDOC defendant except
Mr. Snyder served three interrogatories on each remaining
plaintiff. Mr. Snyder served four interrogatories; numbers 2
through 4 were the same as other officials’ three interrogatories.
The relevant interrogatory, numbered 1 generally but Mr.
Snyder’s number 2, read: “State the factual basis for your
assertion that Defendant [official’s last name] approved your
transfer to Tamms Super Max Correctional Center in retaliation
for litigation, grievances or ‘writ writing.’ ” See, e.g., R.69, Ex.3.
The prisoner responses were apparently drafted using Mr.
Snyder’s interrogatories as a model, and repeated for every
prisoner in response to each IDOC official. Each prisoner gave the
same response to the second interrogatory, that is, Mr. Snyder’s
second, even though, for the other officials, the response should
have been to the first question. Regardless of which IDOC official
(continued...)
No. 03-3318 21
The circumstances surrounding the State’s production of
the placement forms, crucial to the prisoners’ claim, must be
16
examined in some detail. IDOC eventually produced the
forms and attached them to its renewed motion for sum-
mary judgment, together with affidavits from IDOC officers
stating that they had relied on the placement forms when
deciding the appropriateness of a prisoner’s transfer to
Tamms. The State argued that the officials’ reliance on
15
(...continued)
the prisoner addressed, the prisoner stated:
I do not have any personal knowledge that defendant Snyder
personally approved my transfer to Tamms. Rather, I
contend that defendant Snyder approved policies and
procedures which permitted prisoners to be transferred to
Tamms in retaliation for activities which were protected by
the First Amendment.
See, e.g., R.69, Ex.29. The plaintiffs claimed that, “[r]ather than
provide duplicative answers to the same questions asked
separately by each of the defendants, plaintiffs sought to simplify
their responses by combining all defendants’ interrogatories.”
R.104 at 5.
16
On October 28, 2002, at the same time the district court granted
IDOC leave to renew its summary judgment motion, it ordered
IDOC to produce documents relied on by the officials in deciding
which prisoners to transfer to Tamms. The prisoners had asked
for the documents with their initial discovery request in August
2000. A month later, IDOC produced approximately 7500 pages
of documents in compliance. Based on the volume of material,
the district court granted additional time, until January 29, 2003,
for the prisoners to reply to IDOC’s summary judgment motion.
The district court subsequently granted a motion to file instanter,
and the prisoners filed their response on February 10, 2003—the
same day the court held a hearing on the summary judgment
motion.
22 No. 03-3318
prisoner placement forms belied the prisoners’ claim that
IDOC transferred them in retaliation for any protected
activity.
The prisoners then sought to introduce affidavits alleging
that the information contained in the placement forms was
untrue. They contended that IDOC officials had falsified
their gang associations or disciplinary histories to justify
their transfers to Tamms. IDOC moved to strike this evi-
dence and all other evidence that the placement forms were
incorrect, that the prisoners’ disciplinary histories were
insufficient to warrant assignment to Tamms, that the
timing of their transfers was suspicious, and that Mr.
Snyder could be held liable for the transfers.
In resisting the efforts of the prisoners to have the court
consider the prisoners’ evidence that the transfer documents
were false, IDOC crafted its motion as a request for discov-
ery sanctions. It argued that the prisoners had failed to
amend their previous interrogatory answers (that is, their
17
answer number 2) to encompass the new falsification
theories, in violation of Federal Rule of Civil Procedure
26(e)(2).
The district court granted IDOC’s motion to strike on
essentially two related grounds. First, the court considered
the prisoners’ answers to IDOC interrogatories to be
“incomplete” under Federal Rule of Civil Procedure 37(a)(3)
because they failed to present any supporting facts in spite
of the interrogatories’ request for “the factual basis for your
assertion that Defendant . . . approved your transfer to
Tamms.” R.69, Ex.3. Second, the district court agreed with
IDOC that the prisoners’ contention—that information in
17
See supra note 15.
No. 03-3318 23
their placement forms had been falsified—was a new theory
based on new evidence. Because the prisoners failed to
amend their responses to the IDOC interrogatories to reflect
their new allegation and provide more complete factual
bases for their claims, as required by Federal Rule of Civil
Procedure 26(e)(2), the district court excluded from consid-
eration the prisoners’ affidavits (or any other evidence that
they might have produced) contending that their placement
18
forms had been falsified, as a sanction under Rule 37(c)(1).
19
The prisoners’ argument in this appeal is twofold. First,
they submit that the district court erred in concluding that
they had violated Rule 26(e)(2) by not supplementing their
interrogatory responses. Because IDOC had not produced
the placement forms or other requested discovery when
they answered the interrogatories, the prisoners note that
they could not have known the falsehoods contained in the
forms—falsehoods which formed the “factual basis” for
their claim. The prisoners argue that they complied with the
requirements of Rule 26 by offering affidavits, and they
characterize any requirement to go back and supplement
their interrogatory answers as a “duplicative, meaningless
18
In addition, the district court noted that the prisoners’ form
responses to IDOC interrogatories mentioned only Mr. Snyder.
See supra note 15. Because their responses were inadequate and
only applied to Mr. Snyder, the district court determined that he
was not liable as a matter of law and dismissed him from the suit.
Given our decision concerning the propriety of the discovery
sanction, it was inappropriate for the district court to dismiss Mr.
Snyder at this stage of the litigation.
19
IDOC argues that the prisoners have waived any challenge to
district court discovery decisions because their brief does not
comply with Federal Rule of Appellate Procedure 28(a)(9)(A). We
find the prisoners’ submission to be sufficient.
24 No. 03-3318
formality.” Appellants’ Br. at 44. Second, the prisoners
assert that, even if they violated the letter of Rule 26, the
district court abused its discretion by imposing its Rule 37
sanction.
Although we review the district court’s discovery rulings
for abuse of discretion, “[t]he district court must apply the
correct legal standards and not reach an erroneous conclu-
sion of law in forming the basis for the sanction of exclu-
sion.” Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th
Cir. 2004). Reaching an erroneous legal conclusion consti-
tutes an abuse of discretion. Id. We therefore first consider
the district court’s determination that the prisoners violated
Rule 26 by failing to amend their interrogatories.
At the outset, we cannot accept the argument that, as a
general proposition, the requirements of Rule 26 constitute
a meaningless formality. Although the prisoners may
disagree about its application to their case, “the formal
requirements of Rule 26 are not pointless.” Hoffman v.
Caterpillar, Inc., 368 F.3d 709, 714 (7th Cir. 2004). Litigants
would be well advised to conform their conduct in litigation
to the Rules.
Under Rule 26,
[a] party who has made a disclosure under subdivision
(a) or responded to a request for discovery with a
disclosure or response is under a duty to supplement or
correct the disclosure or response to include information
thereafter acquired if ordered by the court or in the
following circumstances:
....
(2) A party is under a duty seasonably to amend
No. 03-3318 25
a prior response to an interrogatory, request for
production, or request for admission if the party
learns that the response is in some material re-
spect incomplete or incorrect and if the additional
or corrective information has not otherwise been
made known to the other parties during the
discovery process or in writing.
Fed. R. Civ. P. 26(e).
The prisoners submit that they complied with Rule 26
because they produced affidavits with their response to
IDOC’s summary judgment motion that stated clearly their
allegation that the transfer forms state false reasons for the
prisoners’ transfers. They contend that the affidavits
“otherwise . . . made known . . . in writing” to IDOC that the
prisoners contested the truthfulness of their placement
forms and therefore complied with Rule 26. Accordingly,
they submit, they are excused from actually amending their
20
interrogatories.
20
It appears from the record that the prisoners argued for the first
time in this appeal that by submitting their affidavits they
complied with Rule 26’s “otherwise . . . made known” clause.
This is not the argument that they made before the district court.
Rather, in opposing the State’s motion to strike their evidence, the
prisoners asserted several points. First, they contended that the
affidavits were consistent with their interrogatory answers.
Second, the prisoners noted that they informed the IDOC officials
that they would supplement their interrogatory answers if the
officials specified what information was missing—a specification
that the prisoners never received. Third, they argued that any
failure to amend their interrogatories should be excused because
they were swamped with discovery only two months before the
(continued...)
26 No. 03-3318
The prisoners’ argument has merit. The present situation
is governed by the “otherwise” clause in Rule 26(e)(2). See
Gutierrez v. AT&T Broadband, LLC, 382 F.3d 725, 733 (7th Cir.
2004). Although the prisoners did not amend their interrog-
atory answers, their response to IDOC’s summary judgment
motion placed the officials on written notice that the
prisoners challenged the placement forms’ veracity. There
was no unfair surprise in the prisoners’ failure to amend
their interrogatories, especially given IDOC’s delay in
producing the relevant documents. The prisoners’ submis-
sions complied with Rule 26.
Because the district court declined to consider the prison-
ers’ contention that information in their placement forms
was false, it assumed the forms to be true when analyzing
IDOC’s rationale for transferring the plaintiffs. The prison-
ers were left only with chronologies indicating that their
transfers were suspicious; the district court found these
chronologies to be inadequate to allow the prisoners to
survive summary judgment. We cannot say whether the
20
(...continued)
motion was heard and more than two years after they first
requested the documents.
We ordinarily refuse to consider arguments not made before
the district court. However, we also hold fast to the principle that
a defense of waiver may itself be waived if not raised. See Riemer
v. Illinois Dep’t of Transp., 148 F.3d 800, 804 n.4 (7th Cir. 1998). In
their submission to this court, IDOC’s waiver argument on this
issue is focused solely on the adequacy of the prisoners’ brief; the
officials do not argue that the appellants have waived their
contention that submitting affidavits complied with their Rule 26
obligations. We therefore find that IDOC waived any waiver
argument on this issue, and we will consider the prisoners’
submission.
No. 03-3318 27
district court would have reached the same conclusion had
it considered, in addition to the chronologies, evidence that
IDOC relied on false placement forms in transferring the
prisoners, or other evidence establishing that the prisoners
were transferred in retaliation for their litigation activities.
The district court should have considered the prisoners’
allegations and summary judgment based on its refusal to
21
do so was inappropriate.
21
Even if the prisoners had failed to comply with Rule 26 by not
amending their interrogatory responses, we do not believe that
the district court should have excluded the prisoners’ evidence as
a sanction.
Rule 37 provides that a party who fails to amend an interroga-
tory response under Rule 26(e)(2) “is not, unless such failure is
harmless, permitted to use as evidence . . . information not so
disclosed.” Fed. R. Civ. P. 37(c)(1) (emphasis added). Notably,
contrary to what the prisoners seem to argue here, there is no
sliding scale of sanctions under Rule 37. In the Rule 26(a) context,
we have noted that “the sanction of exclusion is automatic and
mandatory unless the sanctioned party can show that its violation
of Rule 26(a) was either justified or harmless.” Salgado v. Gen.
Motors Corp., 150 F.3d 735, 742 (7th Cir. 1998). Similarly, here once
the district court found a Rule 26 violation, it was obligated to
exclude the offered evidence unless the prisoners’ failure to
amend was harmless or justified. See Williams v. Morton, 343 F.3d
212, 222 (3d Cir. 2003).
The determination of whether a failure is harmless or justified
is left to the broad discretion of the district court. David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). The trial court
need not make explicit findings regarding a justification or the
harmlessness of the Rule 26 violation, id., but
we have indicated that the following factors should guide the
(continued...)
28 No. 03-3318
21
(...continued)
district court’s discretion: (1) the prejudice or surprise to the
party against whom the evidence is offered; (2) the ability of
the party to cure the prejudice; (3) the likelihood of disrup-
tion to the trial; and (4) the bad faith or willfulness involved
in not disclosing the evidence at an earlier date.
Id. (citing, among others, Bronk v. Ineichen, 54 F.3d 425, 428 (7th
Cir. 1995)).
In this case, the prisoners argued in their response to IDOC’s
motion to strike that any violation of Rule 26 on their part was
harmless. The district court responded to this argument with a
single sentence: “The Court finds that Plaintiffs have not submit-
ted sufficient justification for their failure to amend their interrog-
atory responses and that this failure is not harmless.” R.106 at 6.
The district court’s one-sentence discussion of the issue before
imposing a Rule 37 sanction did not constitute the “thoughtful
discussion” that would assure us that the court considered the
David factors. David, 324 F.3d at 858. Indeed, our review of the
history of this case indicates that application of the David factors
leads to a conclusion that any Rule 26 violation was harmless.
There is no evidence that the prisoners’ failure to amend their
interrogatory responses was the result of willfulness or bad faith;
indeed, it seems clear that IDOC resisted producing discovery,
delayed in submitting the placement forms and, in the end,
deluged the prisoners with document production shortly before
the district court resolved its summary judgment motion.
Nor can we say that the prisoners’ failure to amend their
interrogatory responses prejudiced or surprised IDOC because
the prisoners offered their falsification theory shortly after
discovering it through IDOC’s late discovery. Indeed, if there was
prejudice in this case it was to the plaintiffs, based on IDOC’s
delayed production. Cf. Rosario v. Livaditis, 963 F.2d 1013, 1019
(7th Cir. 1992) (“A party who fails to pursue discovery in the face
(continued...)
No. 03-3318 29
C. All Prisoners’ Due Process Claim
Both groups of prisoners, the litigation plaintiffs and the
gang plaintiffs, submit that the district court improperly
dismissed their due process claims. These claims alleged
that the transfer to Tamms constituted punishment and
therefore required that the prisoners receive notice and a
hearing. The district court read our decision in Wagner v.
Hanks, 128 F.3d 1173 (7th Cir. 1997), to imply that the
prisoners would have a liberty interest only if the conditions
at Tamms were significantly more restrictive than adminis-
trative detention at the most secure prison in the state. In
this case, that prison is the one where the prisoners are
incarcerated, Tamms. Under the district court’s reading of
Wagner, no prisoner in administrative detention at Tamms
could make out a due process claim. Additionally, held the
court, because the prisoners offered no evidence showing
that disciplinary segregation at Tamms was significantly
more restrictive than administrative detention at the facility
(indeed, the evidence seems to suggest that the conditions
are equally harsh), prisoners in disciplinary segregation
status likewise failed to demonstrate a liberty interest.
Our colleague in the district court had to deal with these
contentions without the benefit of the Supreme Court’s
decision in Wilkinson v. Austin, 125 S. Ct. 2384 (2005).
21
(...continued)
of a court ordered cut-off cannot plead prejudice from his own
inaction.”). Moreover, any prejudice that IDOC did suffer easily
could have been cured by granting IDOC additional time in
which to respond to the new allegations. Therefore, even if the
prisoners had violated Rule 26 by failing to amend their interrog-
atory responses, the district court abused its discretion in
excluding evidence supporting their falsification theory.
30 No. 03-3318
Wilkinson gives substantial guidance on the appropriate
resolution of the issues in the present case. Consequently,
after its rendition by the Supreme Court, the parties to this
case submitted their views on how the Court’s rationale
ought to affect our decision in this case.
Wilkinson upheld, against a due process challenge, Ohio’s
procedure for transferring prisoners to the Ohio State
Penitentiary (“OSP”), that state’s “supermax” prison, a
facility designed to hold the most dangerous prisoners who
posed a special threat if incarcerated in the general prison
population. At OSP, almost every aspect of the inmate’s life
was controlled and monitored. Extreme isolation was
imposed; opportunities for visitation were sharply curtailed
and always conducted through glass walls. The inmates
were deprived of almost every form of environmental or
sensory stimuli. There was very little human contact. A
prisoner could be placed in the supermax for an indefinite
period of time; only the length of the prisoner’s sentence
marked the outer limits of his stay. If an inmate was other-
wise eligible for parole, he lost that eligibility while as-
signed to the facility.
Under the policy finally adopted by Ohio to govern the
selection of prisoners for placement in the supermax facility,
a prison official conducted, prior to placement, a classifica-
tion review. This review focused on the offense of convic-
tion in the case of prisoners just committed to the prison
system and on certain types of conduct in the case of those
already incarcerated. The prisoner was notified of the
factual basis for a recommendation for placement in the
supermax and given a fair opportunity for rebuttal at a
hearing. He could not, however, call witnesses. Addition-
ally, prior to the final level of review, the prisoner was given
an opportunity to submit objections to the recommendation.
There were three levels of review. At each level, a decision
No. 03-3318 31
against placement in the supermax facility terminated the
process and the prisoner was not assigned to the supermax.
After placement in the supermax prison, a prisoner received
a review after thirty days and an annual review thereafter.
The Supreme Court held that prisoners had a constitution-
ally protected liberty interest in avoiding assignment to
OSP. Reiterating the conclusion it reached in Meachum v.
Fano, 427 U.S. 215, 225 (1976), the Court noted “that the
Constitution itself does not give rise to a liberty interest in
avoiding transfer to more adverse conditions of confine-
ment.” Wilkinson, 125 S. Ct. at 2393. However, continued the
Court, “a liberty interest in avoiding particular conditions
of confinement may arise from state policies or regulations,
subject to the important limitations set forth in Sandin v.
Connor, 515 U.S. 472 (1995).” Id. The Court went on to
emphasize that Sandin pointedly had rejected the methodol-
ogy of parsing the language of particular regulations.
Rather, “the touchstone of the inquiry into the existence of
a protected, state-created liberty interest . . . is not the
language of regulations regarding those conditions but the
nature of those conditions themselves ‘in relation to the
ordinary incidents of prison life.’ ” Id. at 2394 (quoting
Sandin, 515 U.S. at 484).
The Supreme Court then went on to apply the methodol-
ogy of Sandin to the situation before it. It noted the inconsis-
tent results that courts of appeals have reached in applying
the Sandin formula because it is difficult to determine a
baseline from which to ascertain whether the conditions of
confinement are an atypical and significant hardship.
Noting the absence of briefing on the subject in the case
before it, the Court nevertheless concluded that it was
unnecessary to explore the issue because the conditions at
OSP posed an “atypical and significant hardship under any
32 No. 03-3318
plausible baseline.” Id. It described those conditions in these
terms:
For an inmate placed in OSP, almost all human contact
is prohibited, even to the point that conversation is not
permitted from cell to cell; the light, though it may be
dimmed, is on for 24 hours; exercise is for 1 hour per
day, but only in a small indoor room. Save perhaps for
the especially severe limitations on all human contact,
these conditions likely would apply to most solitary
confinement facilities, but here there are two added
components. First is the duration. Unlike the 30-day
placement in Sandin, placement at OSP is indefinite and,
after an initial 30-day review, is reviewed just annually.
Second is that placement disqualifies an otherwise
eligible inmate for parole consideration. While any of
these conditions standing alone might not be sufficient
to create a liberty interest, taken together they impose
an atypical and significant hardship within the correc-
tional context. It follows that respondents have a liberty
interest in avoiding assignment to OSP.
Wilkinson, 125 S. Ct. at 2394-95 (citations omitted).
Having determined that the conditions at the Ohio
supermax facility imposed an atypical and significant
hardship within the correctional context and thus consti-
tuted the deprivation of a liberty interest, the Supreme
Court turned to the question of what process was required
before such conditions were imposed on a prisoner. Re-
minding the reader that the Court previously has avoided
the use of rigid rules, see Morrissey v. Brewer, 408 U.S. 471,
481 (1972), in favor of flexibility tailored to the particular
situation, the Court articulated the familiar framework of
Mathews v. Eldridge, 424 U.S. 319 (1976), that requires a court
to consider the following three factors:
No. 03-3318 33
First, the private interest that will be affected by the
official action; second, the risk of an erroneous depriva-
tion of such interest through the procedures used, and
the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal
and administrative burdens that the additional or
substitute procedural requirement would entail.
Id. at 335.
With respect to the first factor, the Court noted that the
private interest of the prisoner to be free from confinement,
while “more than minimal,” had to be evaluated in the
context of the prison system where, pursuant to a lawful
sentence, confinement already has curtailed liberty to a
great degree. Wilkinson, 125 S. Ct. at 2395. The private
liberty interest, then, is clearly not as plenary as that of an
individual not under the sentence of a court. With respect to
the second factor, the Court focused on Ohio’s provision for
notice and opportunity to rebut the reasons offered by the
State for placement in OSP. Id. at 2396. The Court noted that,
in addition to notice and hearing, the prisoner was given an
opportunity to submit a rebuttal to an affirmative recom-
mendation at the last of three levels of review. Moreover, a
recommendation against placement at any level ended the
process and the prisoner was not placed at the supermax. If
a reviewer did recommend placement in the supermax, the
prisoner received a statement of reasons for use before the
next decision-maker or in a subsequent classification
review. The statement also served, noted the Court, as a
guide for the prisoner with respect to his future behavior.
Finally, noted the Court, the Ohio regulations provided for
a review after the prisoner had been at the supermax facility
for thirty days. In the Court’s view, this regulatory scheme
adequately ensured against an erroneous decision in the
34 No. 03-3318
placement process.
The Court minced no words in applying the third Mathews
factor, the interest of the public officials charged with the
responsibility of running prisons. See id. at 2396-97. The
State’s first responsibility, the Court wrote, is to ensure the
safety of guards, prison personnel, the public and the
prisoners themselves. The Court also noted the pressing
need of the State to manage prudently its assets in a context
of scarce resources. Therefore, concluded the Justices, courts
must approach estimations such as the one required by the
third prong of the Mathews test with substantial deference
to prison management decisions. Id. at 2397.
After balancing the Mathews factors, the Court concluded
that Ohio’s policies adequately safeguarded against an
erroneous decision. The Court pointed out that the inquiry
here is not an inquiry into a specific incident, but an assess-
ment of a prisoner’s entire record and a prognostication
about future behavior. Such a decision does not turn simply
on whether the prisoner committed a specific act. Rather, it
turns on an assessment that requires the experience of
prison administrators—an assessment that is more suscepti-
ble to resolution in an informal procedure.
We turn now to an examination of how the Supreme
Court’s recent guidance in Wilkinson governs the case before
us. As we noted earlier, we have the assistance of counsel
for both parties through the thoughtful supplemental briefs
they have filed recently.
The State of Illinois, representing its defendant officials,
takes the position that, under Wilkinson, the prisoners
cannot claim a cognizable liberty interest. First, it notes that
there are some differences between Tamms and OSP with
respect to the conditions of confinement. The cells in
Tamms, it points out, have windows; the doors are mesh
No. 03-3318 35
rather than solid steel; the exercise yard is partially out-
doors. It also points out that, although the prisoners allege
that visitation at Tamms is cumbersome and expensive,
especially for individuals from the Chicago area, they do
not allege, as the Ohio prisoners did, that the opportunities
for visitation are rare. More important, continues the State,
assignment to Tamms does not affect the length of confine-
ment because nothing in the regulations says that placement
at Tamms directly affects parole eligibility, mandatory
supervised release, good conduct credits or good time
restoration. In the State’s view, this latter point is crucial
because it reads both Wilkinson and Sandin as grounding a
recognition of liberty interest on the effect of the state-
imposed restraint on the length of the prisoner’s sentence.
In the alternative, the State claims that, even if there is a
liberty interest implicated in a placement at Tamms, the pre-
and post-transfer procedures for such assignments satisfy
the needs of due process. It begins its argument by empha-
sizing that Wilkinson requires only an informal,
nonadversarial process. It also points out that the Supreme
Court did not say that the detailed procedures employed by
Ohio were to be considered a constitutional floor.
The prisoners take a different view of the applicability of
Wilkinson. They emphasize the procedural posture of this
aspect of the present case. Because the district court dis-
missed the due process claim of the complaint on the
pleadings, we are obliged to read all the allegations of that
complaint in the light most favorable to the plaintiffs. They
further submit that the complaint contains statements that
clearly allege that the conditions at Tamms fit the profile for
“atypical and significant hardship” as that phrase is em-
ployed in Sandin and in Wilkinson. They specifically note the
following:
Plaintiff’s Amended Complaint alleged:
36 No. 03-3318
9. Tamms is designed to be extremely harsh. IDOC
officials have stated that they want conditions at
Tamms to be so bad that inmates throughout the
system are motivated to follow all departmental
rules based upon the mere threat of being trans-
ferred to Tamms.
10. The conditions of confinement at Tamms present
inmates with atypical and significant hardships in
relation to the ordinary incidents of prison life,
including the hardships imposed at the most restric-
tive segregation units in Illinois’ maximum security
prisons. At Tamms, control and punishment are
imposed through extreme social isolation, severely
restricted movement, and an environment that
virtually eliminates all external stimuli.
Plaintiffs’ amended complaint describes the extraordinarily
restrictive conditions imposed on prisoners at Tamms in
great detail (¶’s 11-24). The restrictions include (among
others) virtually complete absence of human contact (¶’s 11,
15, and 18), virtual elimination of all out of cell movements
(¶’s 12, 14, 18), severe restrictions on showers and out of cell
exercise (¶’s 16 and 19), severe restrictions on family visits
(¶ 20), elimination of all jobs and other programming (¶ 14),
severe restrictions on religious services (¶ 21) and on a
prisoner’s communication with attorneys (¶ 22). Property is
similarly restricted (¶ 14). In sum, being confined to Tamms
is to be subjected to virtual sensory deprivation, with
prisoners forced to spend most days doing literally nothing
but staring at the four blank walls of their cells.
In Count Three of their amended complaint, plaintiffs
allege (¶ 120):
120. Transfer to Tamms subjects plaintiffs to atypi-
cal and significant hardships in relation to the
No. 03-3318 37
ordinary incidents of prison life and to hardships
which are not experienced at the most restrictive
segregation unit at any of the maximum security
prisons in Illinois.
Appellants’ Supplemental Br. at 3-4.
With respect to the other factors mentioned in Wikinson,
the prisoners note that, although prisoners at Tamms are
eligible for parole, there are strict limits on the good time
that they can earn because of the lack of rehabilitative
programs at the facility. With respect to the length of time
that a prisoner can be incarcerated at Tamms, the prisoners
simply point out that the only time limit is the length of the
underlying sentence.
With respect to the available procedures for contesting a
placement in Tamms, the prisoners point out the absence of
any hearing for those in disciplinary status and the lack of
notice as to the reasons for the placement in the case of
those in administrative detention. They also note the lack of
any pre-placement hearing for those in administrative
detention.
We believe that the allegations of the complaint, which we
must accept as true at this stage of the litigation, preclude
dismissal under the now-governing standards of Wilkinson.
There are some differences between the features of the Ohio
supermax at issue in Wilkinson and those of the Illinois
facility at issue here. It is not at all clear, however, that those
differences are so qualitatively different as to require a
different characterization of the facility for purposes of due
process analysis under Wilkinson. Illinois’ contention that
the liberty interest identified in Wilkinson turned exclusively
on the absence of parole constitutes, our view, far too
crabbed a reading of the decision. The very text of the
decision belies such a claim in noting that, “[w]hile any of
38 No. 03-3318
these conditions standing alone might not be sufficient to
create a liberty interest, taken together they impose an
atypical and significant hardship within the correctional
context.” Wilkinson, 125 S. Ct. at 2395. We also note that, if,
after considering all the evidence submitted by the parties,
the district court is not of the view that the Illinois situation
is, like the Ohio facility, “an atypical and significant hard-
ship under any plausible baseline,” id. at 2394, the district
court must confront the issue of what does constitute the
appropriate baseline for the Illinois system. See id.
Assuming that a liberty interest is determined to exist, the
district court will then have to confront whether the proce-
dures that we have discussed at some length with respect to
the exhaustion of administrative remedies provide sufficient
process to protect the prisoners’ liberty interest in this case.
The fact that the procedures available in Illinois are different
from those employed in Ohio is, of course, in no way
outcome determinative. The Supreme Court has made clear
that application of the Mathews test requires flexibility with
respect to the precise procedural devices employed. The
Court has made clear that the informal, nonadversarial
procedures set forth in Hewitt v. Helms, 459 U.S. 460 (1983)
and Greenholtz v. Inmates of Nebraska Penal & Correctional
Complex, 442 U.S. 1 (1979), are the appropriate models. See
Wilkinson, 125 S. Ct. at 2397.
On the basis of what we can ascertain on this record, it
appears that the district court will have to evaluate with
particular care whether the prisoner is given sufficient
notice of the reasons for his transfer to afford meaningful
opportunity to challenge his placement. With respect to
prisoners in disciplinary status, there is the added question
of whether the disciplinary hearing on the underlying
disciplinary violation is a sufficient vehicle by which to
challenge the Tamms placement. For those in administrative
No. 03-3318 39
status, the lack of any pre-transfer hearing may require close
examination. See Hewitt, 459 U.S. at 477. The district court
also must, of course, consider the matter of continued
monitoring of the situation after the initial transfer decision.
See id. at 477 n.9.
Finally, with respect to the viability of the grievance
procedure to contest a placement at Tamms, the district
court must explore fully the allegation that IDOC’s conflict-
ing pronouncements on the use of this procedure to chal-
lenge placement renders it useless.
Conclusion
For the reasons set forth in this opinion, we affirm the
judgment of the district court with respect to all claims but
the retaliation claim and the due process claim. With respect
to these claims, the judgment of the district court is reversed
and the case is remanded for proceedings consistent with
this opinion. The parties shall bear their own costs on this
appeal.
AFFIRMED in part; REVERSED and REMANDED in part
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-6-05