Robert Westefer v. Michael Neal

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2957

R OBERT W ESTEFER, et al.,

Plaintiffs-Appellees,

v.

M ICHAEL V. N EAL, et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 00-cv-162-GPM—G. Patrick Murphy, Judge.

A RGUED S EPTEMBER 8, 2011 —D ECIDED JUNE 6, 2012

Before E ASTERBROOK, Chief Judge, and B AUER and SYKES,

Circuit Judges.

S YKES, Circuit Judge. The Closed Maximum Security

Unit at Illinois’s Tamms Correctional Center is a high-

security “supermax” prison. In a previous appeal

by several plaintiffs seeking to represent a class of inmates

incarcerated at Tamms, we reversed the dismissal of

a due-process claim challenging the procedures by

2 No. 10-2957

which the Illinois Department of Corrections (“IDOC”)

assigns inmates to the prison. Westefer v. Snyder, 422 F.3d

570, 585-90 (7th Cir. 2005). While the case was awaiting

trial on remand, IDOC developed a “Ten-Point Plan

for Tamms,” significantly revising the procedures

for transferring inmates to the facility and including

a detailed transfer-review process. Although it had not

yet been implemented, IDOC submitted the Plan to

the district court at the ensuing bench trial on the due-

process claim.

The court then issued a lengthy decision holding that

the conditions at Tamms impose an atypical and significant

hardship on inmates, giving rise to a due-process liberty

interest in avoiding transfer to the prison. The court

also held that IDOC’s procedures for making transfer

decisions are constitutionally deficient. As a remedy,

the court entered an injunction incorporating the proce-

dures contained in the Ten-Point Plan, effectively

constitutionalizing the specific regulatory regime Illinois

was voluntarily implementing. The IDOC defendants

appealed, challenging only the terms of the injunction.

IDOC argues that the scope and specificity of the injunc-

tion exceed what is required to remedy the due-

process violation, contrary to the terms of the Prison

Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626(a)(1)(A),

and to cautionary language from the Supreme Court

about remedial flexibility and deference to prison adminis-

trators in this type of prison litigation.

We agree and therefore vacate the injunction. Under

the PLRA injunctive relief to remedy unconstitutional

No. 10-2957 3

prison conditions must be “narrowly drawn,” extend

“no further than necessary” to remedy the constitutional

violation, and use the “least intrusive means” to correct

the violation of the federal right. Id. The relevant due-

process minimums are those set forth in Wilkinson

v. Austin, 545 U.S. 209 (2005); Hewitt v. Helms, 459 U.S.

460 (1983); and Greenholtz v. Inmates of Nebraska Penal

& Correctional Complex, 442 U.S. 1 (1979). These standards

preserve significant administrative discretion and flexibil-

ity for prison officials. Making IDOC’s Ten-Point Plan

a constitutional baseline, as the district court did, elimi-

nates the operational discretion and flexibility of

Illinois prison administrators, far exceeding what

due process requires and violating the mandate of

the PLRA.

I. Background

The Closed Maximum Security Unit at Tamms is

the highest security prison in Illinois. Inmates are kept

in almost constant isolation because of disruptive behavior

and other safety concerns. A group of inmates at

Tamms brought this action against various IDOC officials

alleging several constitutional claims and seeking

to represent a class of inmates who have been or will

be transferred to the supermax facility. The class claim

challenged the procedures IDOC uses to assign inmates

4 No. 10-2957

to Tamms.1 In the previous appeal, we reversed the

dismissal of this claim and remanded with instructions

that the district court evaluate the inmates’ due-process

argument under the Supreme Court’s then-recent decision

in Wilkinson. Westefer, 422 F.3d at 589-90. The district

court held a bench trial and concluded that the conditions

at Tamms “impose an atypical and significant hardship,”

Wilkinson, 545 U.S. at 224, and that Illinois inmates have

a liberty interest in avoiding transfer to the prison.

The court also held that IDOC’s then-extant procedures

for making transfer decisions violated the due-process

rights of the inmates. IDOC does not challenge the

court’s decision on the merits.

Addressing the issue of remedy, the court noted that

inmates are assigned to Tamms in one of two statuses:

disciplinary segregation or administrative detention.

Inmates in disciplinary segregation are those whose

record of prison discipline marks them as dangerous

even in the disciplinary-segregation system in the State’s

other prisons. Inmates in administrative detention

are classified as too dangerous to be housed in the general

population in other prisons because, for example, they

are members of prison gangs. The court held that IDOC’s

transfer procedures were constitutionally deficient for

both groups of inmates.

1

There were also some individual claims brought by specific

inmates. Westefer v. Snyder, 422 F.3d 570, 576-85 (7th Cir. 2005).

None are relevant here.

No. 10-2957 5

Perhaps taking a cue from our earlier decision, IDOC

initiated a review of its transfer procedures while the case

was pending on remand and at trial submitted the Ten-

Point Plan, which substantially revised the process

by which inmates would be assigned to Tamms. The Plan

had been signed by the governor but not yet written into

implementing regulations at the time of trial. The

court used the Ten-Point Plan as the framework for its

remedial order, incorporating it almost wholesale into

a detailed 16-point injunction. Among other things,

the injunction specifically requires the following:

1. The Tamms warden shall appoint a Transfer

Review Committee to conduct hearings for each inmate

transferred into Tamms;

2. The hearings before the Transfer Review Commit-

tee shall “whenever possible” take place within 10 days

of placement (for administrative-detention inmates)

and within 30 days (for disciplinary-segregation

inmates and also those transferred in investigative

status);

3. All inmates transferred to Tamms before the

date the injunction was entered shall have a

hearing before the Transfer Review Committee

within 180 days of the order —within 90 days for

inmates who have been housed at Tamms for more

than five years;

4. Each inmate shall be given written notice of

the reasons for his Tamms placement at least 48 hours

before his hearing;

6 No. 10-2957

5. Each inmate shall be given an opportunity to refute

the reasons specified in the notice, including the right

to request that the Transfer Review Committee inter-

view persons with relevant information;

6. IDOC shall make a digital recording of all hearings

before the Transfer Review Committee, which shall

be retained by the department;

7. Following each hearing, the Transfer Review

Committee shall prepare a written report containing

the inmate’s demographic information, the reason

for placement, a summary of his disciplinary history,

his segregation status, a record of the proceedings,

whether he voluntarily renounced association with

any prison gang, and the committee’s placement

recommendation;

8. The Transfer Review Committee’s report shall be

transmitted to the warden for review, and the warden

shall transmit his approval or disapproval to the Chief

of Operations of the IDOC, who shall notify the

inmate of the final determination;

9. Each inmate shall have the right to appeal the

decision of the Chief of Operations to IDOC’s Chief

Legal Counsel; and

10. The Transfer Review Committee shall conduct

“routine reviews” and annual rehearings for all in-

mates transferred to Tamms in administrative-deten-

tion status.

No. 10-2957 7

IDOC appealed, challenging the injunction’s scope and

specificity under the PLRA and the Supreme Court’s

decision in Wilkinson.

II. Discussion

We review the district court’s decision granting injunc-

tive relief for abuse of discretion, Judge v. Quinn, 624

F.3d 352, 357 (7th Cir. 2010), but a legal error by the

court is necessarily an abuse of discretion, Nat’l Spiritual

Assembly of the Bahá’ís of the U.S. of Am. Under

Hereditary Guardianship, Inc. v. Nat’l Spiritual Assembly of

the Bahá’ís of the U.S. of Am., Inc., 628 F.3d 837, 846 (7th

Cir. 2010). The PLRA circumscribes the scope of the court’s

authority to enter an injunction in the corrections con-

text. Where prison conditions are found to violate federal

rights, remedial injunctive relief must be “narrowly drawn,

extend[] no further than necessary to correct the violation

of the Federal right, and [use] the least intrusive means

necessary to correct the violation of the Federal right.” 18

U.S.C. § 3626(a)(1)(A); see Lindell v. Frank, 377 F.3d 655, 660

(7th Cir. 2004) (reversing part of an injunction as overbroad

in violation of the PLRA). This section of the PLRA en-

forces a point repeatedly made by the Supreme Court in

cases challenging prison conditions: “[P]rison officials have

broad administrative and discretionary authority over

the institutions they manage.” Hewitt, 459 U.S. at 467.

As we noted in our earlier decision in this case, in

Wilkinson the Court considered the supermax-transfer

regime used in Ohio and found that the transfer process

8 No. 10-2957

in that state —which was the model for Illinois’s Ten-Point

Plan —“strikes a constitutionally permissible balance”

between inmates’ due-process rights and prison officials’

administrative discretion and safety concerns. 545

U.S. at 230; see also Westefer, 422 F.3d at 588-89. In crafting

the injunction in this case, however, the district

court mistakenly conflated what is constitutionally

adequate to satisfy due process with what is constitutionally

required. Wilkinson upheld the Ohio supermax-assignment

regime, finding the State’s procedures sufficient to

satisfy the due-process rights of supermax inmates.

The Court did not hold that the specifics of Ohio’s

supermax-transfer regime were constitutionally required

as the due-process floor. In other words, nothing

in Wilkinson constitutionalized Ohio’s program, making

it mandatory for every state. Rather, the Court simply

held that Ohio inmates transferred to the supermax prison

are entitled to some “informal, nonadversary proce-

dures” —as in Hewitt, 459 U.S. at 476, and Greenholtz,

442 U.S. at 14-16 —and that Ohio’s transfer procedure

satisfied this requirement. Wilkinson, 545 U.S. at 211-12.

Wilkinson thus stands for a more general proposition:

Inmates transferred to a supermax prison are entitled

to informal, nonadversarial due process. The district

court’s injunction goes well beyond this, locking in

highly specific formal requirements controlling the

timing and content of the notice and hearing that

each transferred inmate must receive, and even going

so far as to impose a right to appeal. An injunction of this

scope and specificity is inconsistent with the “informal,

nonadversary” model set forth in Wilkinson, Hewitt,

No. 10-2957 9

and Greenholtz, and cannot be reconciled with the

PLRA’s requirement that injunctions in prison-conditions

cases must be narrowly drawn and use the least intrusive

means of correcting the violation of the federal right.

A few examples will suffice to explain the overbreadth

of this injunction. Informal due process requires

“some notice” of the reasons for the inmate’s placement,

Hewitt, 459 U.S. at 476 (“An inmate must merely receive

some notice of the charges against him . . . .”), and

enough time to “prepare adequately” for the administra-

tive review, see Greenholtz, 442 U.S. at 14 n.6; see also

Wolff v. McDonnell, 418 U.S. 539, 564 (1974) (Notice gives

an inmate time “to prepare for the appearance before

the Adjustment Committee.”). In Wolff the Supreme Court

held that inmates must receive notice “[a]t least a

brief period of time . . . , no less than 24 hours,” prior to a

hearing to revoke good-conduct credits. 418 U.S. at 564;

see also Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011)

(same). Here, the injunction requires that IDOC provide

notice of the reasons for an inmate’s transfer to Tamms

at least 48 hours before the hearing —twice the constitu-

tional minimum for notice ordered by the Supreme

Court in Wolff. And Wolff involved good-conduct

credit revocation, which extends the length of an inmate’s

incarceration, implicating a more significant liberty

interest than a placement determination and requiring

a greater measure of procedural protection. See Wilkinson,

545 U.S. at 228. IDOC’s willingness to provide 48-

hour notice as a part of its Ten-Point Plan goes beyond

the 24-hour notice required in Wolff and thus

passes constitutional muster. But it contradicts the

10 No. 10-2957

PLRA’s narrow-tailoring requirement to mandate

that specific timeframe in an injunction.

Moreover, the informal review procedure contemplated

by Wilkinson, Hewitt, and Greenholtz need only take place

within a “reasonable time” of the inmate’s transfer into

Tamms. The injunction here establishes 10-day and 30-day

time limits (for administrative and disciplinary transferees,

respectively) within which a hearing before the Transfer

Review Committee must take place, although it does

contain some hedging language stating that IDOC shall

comply with these deadlines “whenever possible.”

We have previously held that a wait of 17 days in adminis-

trative segregation before receiving a review is not a due-

process violation. Morales v. Newkirk, No. 95-3943, 1996

WL 253852, at *1 (7th Cir. May 10, 1996). In Morales we

relied on decisions from other circuits in which a wait of

a month or longer before final review was held to be

not unreasonable. See Childs v. Pellegrin, 822 F.2d 1382,

1388 (6th Cir. 1987) (meaningful review 14 days after

segregation began and again two months later

when warden issued final decision was not unreasonable

delay); Sourbeer v. Robinson, 791 F.2d 1094, 1099-1100

(3d Cir. 1986) (35 days in segregation not unreasonable

delay). The point here is that due process does not

require that the placement review take place within some

specific number of days. To repeat, the PLRA requires

that an injunction use the “least intrusive means necessary

to correct the violation of the [f]ederal right.” Locking

in specific deadlines —even with hedging “whenever

possible” language—deprives prison administrators of

the operational flexibility to adjust procedures as future

No. 10-2957 11

needs dictate and cannot be considered the least intrusive

means of correcting the due-process violation.

In addition, the injunction specifies in some detail the

content and form of the review process, but the Supreme

Court has made it clear that the requirements of informal

due process leave substantial discretion and flexibility

in the hands of the prison administrators. In Hewitt, which

involved review procedures in connection with a transfer

to administrative segregation, the Court held that

an inmate must have

an opportunity to present his views to the prison

official charged with deciding whether to transfer him

to administrative segregation. Ordinarily a written

statement by the inmate will accomplish this purpose,

although prison administrators may find it more useful

to permit oral presentations in cases where they believe

a written statement would be ineffective. So long as

this occurs, and the decisionmaker reviews the charges

and then-available evidence against the prisoner, the

Due Process Clause is satisfied.

Hewitt, 459 U.S. at 476. In other words, only a single prison

official is needed as the neutral reviewer—not necessarily

a committee. Informal due process requires only that

the inmate be given an “opportunity to present

his views”—not necessarily a full-blown hearing. Id.; see

Wheeler v. Sims, 951 F.2d 796, 800-01 (7th Cir. 1992). If

the prison chooses to hold hearings, inmates do not have

a constitutional right to call witnesses or to require

prison officials to interview witnesses. Wilkinson, 545

U.S. at 228; Alston v. DeBruyn, 13 F.3d 1036, 1042 n.2 (7th

12 No. 10-2957

Cir. 1994). 2 And the Constitution certainly does not require

the prison to digitally record the hearings.

Nor does informal due process necessarily require “a

written decision describing the reasons” for an inmate’s

placement, Alston, 13 F.3d at 1042 n.2 (citing Toussaint v.

McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986)), or

mandate an appeal procedure. Hewitt requires, in the

administrative-segregation context, only a review of

the inmate’s placement by “the prison official charged with

deciding whether to transfer him to administrative segre-

2

The plaintiffs point to language in Wolff v. McDonnell stating

that “the inmate facing disciplinary proceedings should

be allowed to call witnesses and present documentary evidence

in his defense when permitting him to do so will not be

unduly hazardous to institutional safety or correctional goals.”

418 U.S. 539, 566 (1974). We have recently reaffirmed the right

of inmates to “an opportunity to call witnesses and present

documentary evidence (when consistent with institutional

safety) to an impartial decision-maker.” Jones v. Cross, 637

F.3d 841, 845 (7th Cir. 2011). However, both Wolff and Jones dealt

with a hearing before a good-conduct credit-adjustment commit-

tee; good-time credit revocation affects the length of an inmate’s

incarceration and not merely his placement, and thus

triggers greater due-process requirements than those that

are called for in this context. Wilkinson v. Austin, 545 U.S. 209,

228 (2005); see Hewitt v. Helms, 459 U.S. 460, 475 (1983) (circum-

stances of confinement involve a lesser liberty interest and

thus require less process than decisions affecting the length

of confinement). Hewitt and Wilkinson set the correct constitu-

tional standard for “informal, nonadversary” review in

the transfer-placement context.

No. 10-2957 13

gation,” not a right to additional layers of review. 459 U.S.

at 476.

Hewitt does, however, require a periodic review of the

placement determination once it has been definitively

made. Id. at 477 n.9; Smith v. Shettle, 946 F.2d 1250, 1254

(7th Cir. 1991).

This review will not necessarily require that prison

officials permit the submission of any additional

evidence or statements. The decision whether a pris-

oner remains a security risk will be based on facts

relating to a particular prisoner —which will have been

ascertained when determining to confine the inmate to

administrative segregation —and on the officials’

general knowledge of prison conditions and tensions,

which are singularly unsuited for “proof” in any

highly structured manner.

Hewitt, 459 U.S. at 477 n.9. Thus, as with the initial place-

ment review, the periodic review may also be an “informal

and nonadversary” review, Rowe v. Hurley, No. 94-2343,

1995 WL 375861, at *3 (7th Cir. June 22, 1995), and its

frequency is committed to “the [administrative] discretion

of the prison officials,” Toussaint v. McCarthy, 926 F.2d

800, 803 (9th Cir. 1990) (holding that 120-day interval

satisfied due process); see Clark v. Brewer, 776 F.2d 226, 234

(8th Cir. 1985); Smith, 946 F.2d at 1255 (“To conclude,

however, that the due process clause fixes thirty days

as the minimum frequency of the required review would

be to legislate in the name of the Constitution at an exces-

sive level of detail . . . .”). The periodic review need only

be sufficiently frequent that administrative segregation

14 No. 10-2957

does not become “a pretext for indefinite confinement of

an inmate” at Tamms. Hewitt, 459 U.S. at 477 n.9.

In short, the injunction goes well beyond what the

Supreme Court has said is constitutionally required.

By incorporating a highly specific notice-and-hearing

system into the injunction, the district court has in effect

established the details of that system as constitutional

requirements. This is not the narrow tailoring that the

PLRA requires. It is up to IDOC to craft transfer-review

procedures that meet the requirements of due process.

The court should do no more than to order IDOC officials

to do so in general terms and to verify that the plan they

submit satisfies the relevant constitutional standards.

Accordingly, we V ACATE the district court’s injunction

and R EMAND with instructions to enter an injunction

consistent with this opinion.

6-6-12