Petition — Rowe v. Durso

Supreme Court, U.&:

P FILED

i

[ NOV 22 1978

SL iierr RODAK, JR. CLERK

——

—— — ed

In THE

Supreme Court of the Anited States

Ocroser TERM, 1978

No. 78-840

CHARLES J. ROWE, et al.,

Petitioners,

VS.

THOMAS DURSO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR TOI CHITA ATDATTTN

Lawrence X. Pusateri, Esq.

200 East Randolph

Suite 7300

Chicago, Illinois 60601

JOSEPH MOSCOV,

Special Assistant Attorney General,

Deputy Chief Legal Counsel,

Illinois Department of Corrections,

160 N. LaSalle Street - Room 416,

Chicago, Illinois 60601,

(312) 793-3017,

Attorney for Petitioners

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

SE ARN A SE: I e

TABLE OF CONTENTS

OPINIONS BELOW . hs Koesijeiaanehesineiintaithesslesaiitn

Se ee a a

QUESTIONS PRESENTED 002. eeececssceeeeeeeee

CONSTITUTIONAL AND STATUTORY PROVI-

EE. SI ee ee OO

STATEMENT OF THE CASE 00. eeeeceeeeeeeees

REASONS FOR GRANTING THE WRIT:

1.

The Expectation Of A State Prisoner Assigned To

A Minimum Security Work Release Center That

He Shall Not Be Transferred To A More Restric-

tive Penal Institution Save For Misconduct Is In-

sufficient To Invoke The Application Of The Due

Process Clause When Said Expectation Is Derived

Solely From Administrative Practice And Is Un-

I EY I BO ets icnrcsiincnssatwsaslovnsonesbectensecebonss

II.

A State Correctional Practice Affording Greater

Procedural Protection To Prison Inmates Who

Are Transferred From A Work Release Center

To A More Restrictive Facility Due To Miscon-

duct Than Is Granted To Work Release Inmates

Subjected To Transfers On Non-Disciplinary

Grounds Comports With The Equal Protection

ie tehesinidiaiaeemeindiaceenimesds

ii

APPENDICES:

A—Opinion of the Federal Court of Appeals for the

Seventh Circuit ......................++.- la

B—Opinion of the Federal District Court for the

Northern Division of Ilinois ................ 12a

C—Order of the Federal Court of Appeals for the -

Seventh Circuit Denying a Petition for Rehear-

IIIT": cpessiciconsnaisientininasaehdpteedapabalitsiansctienitiptiesennsniduaitinabedie 20a

CITATIONS

Cases

McGinnis v. Royster, 410 U.S. 263 (1973) ........2.....2....2. 12

Meachum v. Fano, 427 U.S. 215 (1976) 2..0.2.0...-c.ecccsceeeees 7

Montayne v. Haymes, 427 U.S. 236 (1976) ...2........e0.00-0-- 8

Moody v. Daggett, 429 U.S. 78 (1976) 0........eececeeeeeeeeeeee 8

Tracy v. Salamack, 572 F. 2d 393 (2nd Cir. 1978) .......... 10

United States ex rel. Richerson v. Wolff, 525 F. 2d 797

tu yt». | Rae 13

Wolff v. McDonnell, 418 U.S. 539 (1974) ..0..2..2.2222-..00-- 1 13

State Statutory Provisions

Ill. Rev. Stats. (1973), Ch. 38, Section 1003-6-3 ............ 3, 14

Ill. Rev. Stats. (1973), Ch. 38, Section 1003-13-1 ............ 3, 9

In THE

Supreme Court of the United States

Ocroser Term, 1978

No.

CHARLES J. ROWE, et al.,

Petitioners,

Vs.

THOMAS DURSO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Your petitioners, Charles Rowe, Allyn Sielaff, David

Brierton, Edward Jordan and Joseph Barda, all present

or former administrators employed with the Illinois

Department of Corrections, respectfully pray that a

Writ of Certiorari issue to review the judgment of the

Federal Court of Appeals for the Seventh Circuit

entered on July 19, 1978 and its denial of a rehearing on

August 24, 1978.

~

OPINIONS BELOW

The opinion of the Federal District Court for the

Northern District of Illinois dismissing respondent

Thomas Durso’s complaint was decided on February.7,

1977, and is reported at 430 F. 249. T’\e opinion of the

Federal Court of Appeals for the Seventh Circuit

reversing and remanding the order of dismissal of the

District Court was decided on July 19, 1978, but is

not yet cited in the appropriate Federal Reporter.

Petitioner’s petition for rehearing was denied on August

24, 1978. In accordance with Rule 19 of the Supreme

Court of the United States, both opinions and the order

denying a rehearing appear in an appendix to the

instant petition.

JURISDICTION OF THIS COURT

The opinion of the Court of Appeals was filed on July

1°, 1978, and petitioner’s petition for a rehearing was

cenied August 24, 1978. The jurisdiction of the Supreme

Jourt of the United States to hear the instant case is

invoked under 28 U.S.C. 1254 (1).

QUESTIONS PRESENTED FOR REVIEW

Whether the expectation of a state prisoner assigned

to a minimum security work release center that he shall

not be transferred to a more restrictive penal institution

save for misconduct is insufficient to invoke the

=

application of the Due Process Clause when said

expectation is derived solely from administrative prac-

tice and is unsupported by state law.

Whether a state correctional practice affording

greater procedural protection to prison inmates who are

transferred from a work release center to a more

restrictive facility due to misconduct than is granted to

work release inmates subjected to transfers on non-

disciplinary grounds comports with the requirements of

the Equal Protection Clause.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment XIV:

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal protec-

tion of the laws.”

Ill. Rev. Stat., (1973), Ch. 38, Section 1003-6-3 (c):

“The Department shall prescribe rules and regula-

tions for revoking good time during imprisonment

or release on parole or mandatory release under

supervision.”

Ill. Rev. Stat., (1973), Ch. 38, Section 1003-13-1:

“The Department shall establish and maintain work

and day release programs and facilities for persons

— to the Department and not placed on

parole.”

an an

STATEMENT OF THE CASE

Respondent Thomas Durso, formerly a police officer

and presently an inmate at Stateville Correctional

Center, a maximum security institution within the

Illinois Department of Corrections System, brought the

instant action on October 8, 1976 pursuant to 42 U.S.C.

1983 of the Civil Rights Act. In his complaint,

respondent prayed for monetary, declaratory and injunc-

tive relief. (App. 3a, 18a) The basis of respondent’s claim

for relief arises out of circumstances occurring during his

commitment to the Illinois Department of Corrections, a

commitment arising from his conviction for murder and

the subsequent entry of a sentence of 100 to 150

years.

In his complaint, respondent contended that on

August 15, 1974, the Illinois Department of Corrections

transferred him to Joliet Work Release Center, a facility

which imposed fewer restrictions on inmate movement

than Stateville and allowed participation in some |

‘educational and work programs located outside of the

Center. Within one week of his transfer to Joliet, a

strong negative reaction to respondent’s assignment to a

work release center was expressed in the Chicago

Tribune and by the State’s Attorney’s Office of Cook

County. (App. 2a) Respondent contended in his com-

plaint that approximately one week subsequent to the

adverse public response to his assignment to Joliet,

petitioners Sielaff and Brierton admonished respondent

that his removal from the facility could become

necessary due to community pressure. (App. 2a)

—5—

Respondent asserted in his complaint that in October,

1974, he was charged with a violation of Department

rules regarding visitation privileges, but was formally

exonerated of any misbehavior. (App. 2a)

Although respondent was returned to Stateville prior

to his exoneration and continued to remain at that

institution, he was assured that he would be transferred

back to a work release program at Carbondale, Illinois.

(App. 2a)

In January, 1975, respondent contends he was advised

by petitioner Sielaff that the Illinois Department of

Corrections had decided to cancel his planned recommit-

ment to a work release center and that other privileges

he had been permitted to retain pursuant to his initial

work release status were terminated. (App. 2a-3a)

After filing a grievance with the Department, he was

informed that his continued placement in a work release

center was neither in the work release program’s or his

own interest. (App. 3a)

Following the foregoing events, respondent filed his

complaint in which he alleged that the termination of

his work release assignment was violative of procedural

due process (Count I), a deprivation of certain pendent

state statutory provisions (Count II) and a denial of

equal protection of the law. (Count III) (App. 3a, 13a)

On February 7, 1977, the District Court for the

Northern District of Illinois, the Honorable Edwin A.

Robson, presiding, granted petitioners’ motion to dismiss

all three counts of the complaint. (See Appendix B.)

Following an appeal, the Federal Court of Appeals for

the Seventh Circuit reversed the District Court opinion

in its entirety. (See Appendix A.) The opinion of the

—6—

Court of Appeals was predicated on ‘its determination

that respondent’s allegation that the administrative

practice of the Department of Corrections was to only

invoke a work release status upon the occurrence of

misconduct, and that the failure to adhere to said

practice as to respondent raised a procedural due

process claim sufficient to withstand dismissal. (App.

8a) Further, the Court of Appeals determined that the

face of the record did not disclose any rational basis for

treating respondent in a disparate manner from other

work release inmates who were afforded procedural

guarantees prior to the termination of their assignment.

(App. 10a)

Following a denial of a petition for rehearing, the

instant petition was filed so as to obtain this Court’s

review of the foregoing opinion of the Federal Court of

Appeals. (See Appendix C) The petition is premised on

the petitioners’ assertion that a conflict exists between

the Court of Appeals opinion and that of prior and

controlling decisions of this Court.

ulti

REASONS FOR GRANTING THE WRIT

THE EXPECTATION OF A STATE PRISONER AS-

SIGNED TO A MINIMUM SECURITY WORK RE-

LEASE CENTER THAT HE SHALL NOT BE TRANS-

FERRED TO A MORE RESTRICTIVE PENAL INSTI-

TUTION SAVE FOR MISCONDUCT IS INSUFFICIENT

TO INVOKE THE APPLICATION OF THE DUE

PROCESS CLAUSE WHEN SAID EXPECTATION IS

DERIVED SOLELY FROM ADMINISTRATIVE PRAC-

TICE AND IS UNSUPPORTED BY STATE LAW.

Central to determining the merits of the instant

petition is an examination of the recent decisions of the

United States Supreme Court pertaining to the constitu-

tional implications, if any, arising from the transfer of

an inmate within a state correctional system from one

correctional facility to another governed by the same

jurisdiction, but with a more restrictive atmosphere.

In Meachum v. Fano, 427 U.S. 215 (1976), the Court

rejected the proposition that a transfer of an inmate

from a less restrictive facility to a more security-prone

institution infringed on any liberty interest encompassed

by the Due Process Clause. As noted by the Court in

Meachum:

“That life in one prison is much more disagreeable

than in another does not in itself signify that a

Fourteenth Amendment liberty interest is im-

plicated when a prisoner is transferred to the

oo with the more severe rules.” /d., p.

The Court in Meachum distinguished its prior holding

in Wolff v. McDonnell, 418 U.S. 539 (1974) by stressing

that in Wolff revocation of good conduct credit was

subject to due process guarantees since applicable

Nevada law conditioned revocation on the occurrence of

~$—

misbehavior. In contrast, applicable law in Meachum

was that of the Commonwealth of Massachusetts; a

sovereign which did not limit the basis for transferring

its prisoners to that of misconduct.

In the companion case of Montayne v. Haymes, 96 S.

Ct. 2543 (1976), the Court extended Meachum_ to

disciplinary-motivated transfers by holding that if the

appropriate correctional officials were not prohibited

from transferring an inmate on_ non-disciplinary

grounds the Due Process Clause was not activated

merely by the decision to effectuate the removal of a

prisoner from a particular facility due to misconduct.

Nor does a disparity in privileges afforded at the

sending and receiving correctional facility trigger any

due process considerations. In Meachum, this Court held

that a transfer from a less restrictive facility to a more

onerous institution, even when adverse consequences for

the affected prisoner with respect to rehabilitative

programs was an incidental occurrence, did not dilute

any cognizable liberty interest encompassed by the Due

Process Clause and is without constitutional signifi-

eance. See Moody v. Daggett, 429 U.S. 78 (1976).

The principles to be derived from the foregoing cited

case authorities of this Court are clear. A prisoner

incurs no impairment of a liberty interest subject to the

protection of the Due Process Clause when he is

transferred from one facility to another more severe in

character unless the expectation of remaining at the less

restrictive facility is grounded in applicable state law. If

state law does not restrict the basis for transferring an

inmate to that of misbehavior, any transfer, even if

motivated by disciplinary factors, is purely an adminis-

trative decision unfettered by any necessity to observe

procedural due process guarantees.

—>—

In the instant case, the opinion rendered by the

Federal Court of Appeals for the Seventh Circuit is in

direct conflict with the above standards enunciated by

this Court, thereby rendering the granting of peti-

tioners’ request for a review by means of a writ of

certiorari particularly appropriate. In its opinion, the

Court of Appeals concurred with the petitioners’ conten-

tion that Illinois law did not impose any misconduct-

related restriction on the discretion of the petitioners to

transfer prisoners, such as respondent, assigned to work

release centers to more security designed facilities.

(App. 7a) Thus, the applicable state law of Illinois in

the instant case did not establish an exception to the

general standard articulated in Meachwm and Montayne

that transfers of prisoners between different institutions

of varying restrictions could be effectuated without

invoking due process considerations. Since a work

release center is a correctional facility administered by

the Illinois Department of Corrections to house inmates

committed to the Department, the transfer of respon-

dent from Joliet Work Release Center to Stateville

Correctional Center is precisely the type of administra-

tive action which* Meachum recognizes as not of

constitutional import. (See Ill. Rev. Stat. (1973), Ch. 38,

Sec. 1003-13-1.)

Although conceding that Illinois law did not create for

respondent a sufficient “liberty” interest to remain on

work release assignment, the Court of Appeals held that

the alleged prior customary administrative practice of

the Illinois Department of Corrections to only terminate

an inmate’s work release status due to misconduct was

of sufficient magnitude to warrant the operation of the

Due Process Clause. In so holding, the Court of Appeals

construed Meachum as recognizing state law and

praciice as alternative grounds for creating a constitu-

tionally cognizable interest.

a

Petitioners submit a perusal of the Meachum opinion

reveals an explicit rejection by this Court of the holding

of the Court of Appeals that a customary state

correctional practice to refrain from transferring in-

mates from relatively less restrictive facilities unless

necessitated by misbehavior was sufficient per se to

trigger due process protections.

“That an inmate’s conduct, in general or in specific

instances, may often be a major factor in the

decision of prison officials to transfer him is to be

expected unless it be assumed that transfers are

mindless events. A prisoner’s past and anticipated

future behavior will very likely be taken into

account in selecting a prison in which he will be

initially incarcerated or to which he will be

oa ggate to best serve the State’s penological

goals.

A prisoner’s behavior may precipitate a transfer;

han absent such behavior, perhaps transfer would

not take place at all. But, as we have said,

Massachusetts prison officials have the discretion to

transfer prisoners for any number of reasons. Their

discretion is not limited to instances of serious

misconduct. As we understand it no legal interest

or right of these respondents under Massachusetts

law would have been violated by their transfer

whether or not their misconduct had been proved in

accordance with procedures that might be required

by the Due Process Clause in other circumstances.

Whatever expectation the prisoner may have in

remaining at a particular prison so long as he

behaves himself, it is too ephemeral and insubstan-

tial to trigger procedural due process protections as

long as prison officials have discretion to transfer

him for whatever reason or for no reason at all. Jd.,

p. 228.

The Court of Appeals’ reliance on Tracy v. Salamack,

572 F. 2d 398 (2d Cir. 1978) to establish administrative

practices per se as a sufficient basis for triggering due

tain

process guarantees is misplaced. In Tracy, supra, at p.

395 n.9, the Federal Court of Appeals for the Second

Circuit distinguished Meachum upon the basis that the

governing state law limited the discretion of correctional

officials to transfer inmates, thereby creating a cogniz-

able liberty interest. The Court in Tracy noted that in

Meachum, applicable law imposed no restrictions on

transfers. Similarly, in the instant case Illinois law, as

recognized by the Court of Appeals, established no

restrictions on the transfer of inmates from work release

facilities to more security-conscious institutions.

In view of the Court of Appeals’ recognition in its

opinion in the instant case that, as with Massachusetts

law in Meachum, Illinois law creates no expectation of

remaining at a work release facility in the absence of

misconduct, the purported Department of Corrections

practice of only revoking a work release status following

misbehavior is an insufficient basis for requiring the

invocation of the procedural safeguards of the Due

Process Clause incident to the termination of an

assignment to a work release facility.

Petitioners further submit that a decision by this

Court to refrain from reviewing the decision of the

Court of Appeals would ironically result in adverse

consequences for prison rehabilitation. Assuming argu-

endo that the respondent’s assertion in his complaint

that the Illinois Department of Corrections usually termi-

nates a work release status only when the basis for the

transfer was the occurrence of misconduct, the existence

of such a policy is indicative of a willingness to reward

good behavior and to enhance an inmate’s preparation

for re-entry into society. To elevate the alleged foregoing

policy of the Illinois Department of Corrections to that

of constitutionally mandated procedures effectively

places its correctional system under greater judicial

=

scrutiny than another state that has chosen a less

rehabilitative approach to its inmate population.

It is manifest that a normal task in the operation of a

prison system frequently includes transferring of in-

mates. Mandating procedural due process guarantees

whenever an inmate is transferred to a more restrictive

facility is to effectuate a further intrusion into basic

state correctional decisions by the federal judiciary. As

noted by this Court in Meachum,

“Holding that arrangements like this case are

within reach of the procedural protections of the

Due Process Clause would place the Clause astride

the day-to-day functioning of state prisons and

involve the judiciary in issues and discretionary

decisions that are not the business of federal judges

. . » The Federal! Courts do not sit to supervise state

prisons, the administration of which is of acute

interest to the States.” Jd., pp. 228-229.

In light of the foregoing, petitioners submit that

portion of opinion of the Federal Court of Appeals

pertaining to a denial of due process sought to be

reviewed here by Writ of Certiorari should be so

reviewed, and having been so reviewed, set aside by this

Court.

Il.

A STATE CORRECTIONAL PRACTICE AFFORDING

GREATER PROCEDURAL PROTECTION TO PRISON

INMATES WHO ARE TRANSFERRED FROM A WORK

RELEASE CENTER TO A MORE RESTRICTIVE FACI-

LITY DUE TO MISCONDUCT THAN IS GRANTED TO

WORK RELEASE INMATES SUBJECTED TO TRANS-

FERS ON NON-DISCIPLINARY GROUNDS COM-

PORTS WITH THE REQUIREMENTS OF THE EQUAL

PROTECTION CLAUSE.

Distinctions between prisoners as to eligibility for

various rehabilitative privileges need only be rationally

based to withstand judicial scrutiny. See McGinnis v.

Royster, 410 U.S. 263 (1973). The petitioners submit that

="

the inability of the Federal Court of Appeals to

ascertain a rational distinction between inmates such as

respondent who are transferred due to non-disciplinary

considerations and those inmates who were transferred

due to a disciplinary violation ignores the disparate and

manifest impact of such transfers on constitutionally

recognized “liberty” interests and rehabilitative pro-

grams.

The termination of a work release status if it is

prompted by misconduct could yield more adverse

consequences than the mere transfer to a more restric-

tive institution. The transferred inmate may also incur

the loss of accumulated good time, the denial of parole

and placement in a segregation unit as further punish-

ment. At a minimum, his disciplinary record is affected

in a negative manner. The constitutional significance of

such decisions has been recognized by this Court as well

as the Court of Appeals for this Circuit. See Wolff v.

McDonnell, supra, and United States ex rel. Richerson v.

Wolff, 525 F. 797 (7th Cir. 1975).

Due to the constitutional and rehabilitative implica-

tions that may result from the termination of an

assignment to a work release facility when motivated by

the conduct of the inmate, sound correctional policy is

enhanced by requiring an adequate fact-finding process

to determine whether the affected prisoner committed

any disciplinary violation. Accordingly, providing such

procedural guarantees as notice of charges, a hearing

and written findings of the disciplinary committee

supply some assurance that a decision to terminate a

work release status will be predicated upon substantial

evidence. See Wolff, supra, pp. 563-566.

In contradistinction to a transfer prompted by mis-

behavior, the removal of a prisoner to another facility

a)

when grounded on non-disciplinary reasons results

neither in the loss of any good conduct credit nor

negatively impacts on the disciplinary record of the

transferred prisoner. Under Illinois law, a prisoner may

only forfeit good conduct credit if he commits a

disciplinary infraction. See Ill. Rev. Stat., (1973), Ch. 38,

Sec. 1003-6-3 (c). Thus, the adverse impact resulting

from the transferring of a work release inmate to a

more severe correctional facility is significantly modi-

fied when the basis for the transfer is non-disciplinary

in nature.

An additional ground in support of the divergent

approach of the petitioners with reference to disciplin-

ary and non-disciplinary motivated transfers is that a

fact-finding process, so essential to a correct result in

disciplinary cases, is unnecessary when the termination

of a work release assignment is premised upon policy

considerations rather than any factual determination.

Thus, in the case at bar, respondent’s allegation that he

was transferred due to public pressure raises no issue of

fact as to conduct since his behavior while on work

release status did not form th. basis for his removal to

Stateville Correctional Center. (See App. 2a, 8a, 18a)

Petitioners submit the foregoing differences between

non-disciplinary and disciplinary transfers from the

standpoint of resulting impact and the issues control-

ling, policy or factual, the transfer decision clearly

demonstrate a rational basis for distinguishing between

respondent and other work release inmates reassigned

for misconduct. As previously noted, some of the

distinguishing features derive from decisions of the

Court with reference to such matters as revocation of

good time and placement in segregation.

—15—

In the instant case, since respondent was not trans-

ferred for any disciplinary infraction he neither in-

curred any loss of good time nor did his reassignment to

Stateville result in a segregation placement. Further,

respondent does not allege any adverse impact on his

parole prospects due to the transfer. (App. 5a, n.1, 15a-

16a)

To require correctional administrators to provide the

same procedural guarantees to inmates regardless of the

motivation for transfer would discourage the granting of

any procedural protections to transferred work release

prisoners in view of the absence of any constitutional

obligation on the part of correctional personnel incident

to reassignment between different institutions. See

Meachum, supra. Proscribing any distinction between

disciplinary and non-disciplinary transfers as to avail-

able procedural guarantees impairs an administrator’s

ability to re-evaluate and promptly correct an initial

assignment which upon reflection appears to be un-

warranted. Further, by imposing procedural impedi-

ments as to situations similar to the case at bar, public

support, an essential ingredient for community based

correctional facilities such as work release centers, is

endangered. (App. 18a, n.6)

In view of the foregoing, petitioners submit that

portion of the opinion of the Court of Appeals pertaining

to the denial of equal protection sought to be reviewed

here by Writ of Certiorari should be so reviewed, and

having been reviewed, set aside by this Court.

—16—

CONCLUSION

For the foregoing reasons, the petitioners request this

Honorable Court to issue the Writ of Certiorari to

review the judgment and opinion of the Federal Court of

Appeals for the Seventh Circuit in its entirety.

Respectfully submitted,

JOSEPH MOSCOV,

Special Assistant Attorney General,

Deputy Chief Legal Counsel,

Illinois Department of Corrections,

160 N. LaSalle Street - Room 416,

Chicago, Illinois 60601.

(312) 793-3017,

Attorney for Petitioners.

November 21, 1978

—la—

APPENDIX A

Anited States Court of Appeals

For the Seventh Circuit

No. 77-2123

THOMAS DuRSO,

Plaintiff-A ppellant,

CHARLES ROWE, et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 76 C 3765—Edwin A. Robson, Judge.

ARGUED FEBRUARY 17, 1978—DECIDED JULY 19, 1978

Before FAIRCHILD, Chief Judge, SWYGERT and PELL,

Circuit Judges.

SWYGERT, Circuit Judge. The principal issue raised in

this appeal is whether revocation of a prisoner’s work-

release status constitutes a deprivation of liberty pro-

tected by the Due Process Clause of the Fourteenth

Amendment. The district court, in dismissing the com-

ye for failure to state a claim upon which relief can

granted, concluded that a state prisoner assigned to a

work-release program does not have a constitutionally

protected liberty interest in that status and therefore no

notice or hearing was required before such status was

revoked. For the reasons hereinafter developed, we hold

that such a conclusion cannot be made as a matter of

law and that the case must be remanded for an eviden-

tiary hearing.

—2a—

I

Plaintiff-appellant Thomas Durso was incarcerated at

the Stateville Correctional Center in Joliet, Illinois fol-

lowing his conviction in 1964. Ten years later the I]linois

Department of Corrections approved plaintiff's applica-

tion for work-release status, and on August 15, 1974 he

was transferred to the Joliet Work Release Center. As a

participant in that program, plaintiff was authorized to

attend classes outside the Center and t. use recreational

and other public facilities in the community.

Approximately one week after he arrived at the

Center, plaintiff was granted a two-day home furlough.

While on furlough it is alleged that the Chicago Tribune

published an article which was highly critical of plain-

tiff and his participation in the work-release program.

The Cook County State’s Attorney also issued a public

statement, quoted in the Tribune article, criticizing the

transfer. Shortly thereafter prison officials informed

plaintiff that he might have to be removed from the

program because of the strong adverse community reac-

tion to his placement. It is also alleged that his par-

ticipation in the program was restricted following this

incident.

On October 5, 1974 plaintiff had a visitor at the

Center. Although he alleges that he was given permis-

sion to have a visitor, plaintiff was orally char with

violating the rules regarding visitation rights. Plaintiff

was returned to the maximum security section at State-

ville that evening.

Approximately two weeks later plaintiff received a

formal written complaint charging him with a violation

of the Center’s rules. Plaintiff, by letter, denied that he

had violated any of the posted regulations. On November

2, 1974 plaintiff was informed that he was exonerated of

all charges against him. According to the allegations he

was also told at this time that he would be transferred

to the work-release program at Carbondale.

In January 1975 plaintiff was orally advised that his

transfer te Cartnailale had been cancelled and that his

work-release status had been revoked. Thereafter he

—3Ja—

initiated a grievance proceeding with the Department’s

Adminuarelie Review Board. Although senang? 3 was

allowed to appear before the Board, he alleges that he

was given no opportunity to present any evidence to

show why his participation in the program should not

have been terminated. The Board advised plaintiff that

it was not in his best interest or the best interest of the

work-release program for him to participate at that

time. Plaintift was not given any reasons for these con-

clusions.

On October 8, 1976 plaintiff filed this civil rights ac-

tion pursuant to 42 S.C. § 1983 seeking monetary,

declaratory, and injunctive relief against certain officials

of the Illinois Department of Corrections. In the com-

plaint plaintiff alleged that the termination of his work-

release status deprived him of procedural due process

(Count I), of certain state statutory rights (Count II), and

of the equal protection of the laws (Count III).

Upon motion of the defendants, the district court dis-

missed the complaint for failure to state a claim and for

lack of subject matter jurisdiction. Durso v. Rowe, 430

F. Supp. 49 (N.D. Ill. 1977). The court rejected the due

process claim in Count I on the ground that revocation

of work-release status is not a deprivation of any liberty

interest embraced within the Due Process Clause. Count

III was dismissed because the court deemed the al-

legations as too conclusory and because it deemed the

mere inconsistency in the operation of prison manage-

ment as insufficient to state a claim under the Equal

Protection Clause. Having dismissed the two federal

claims, the court then dismissed the pendent state claim

in Count II. II

In dismissing plaintiff's due process claim the district

court concluded "that Meachum v. Fano, 427 U.S. 215

(1976) was controlling and required a finding that

revocation of plaintiff's work-release status did not in-

fringe upon a constitutionally protected liberty interest.

The Supreme Court in Meachum held that the transfer

of state inmates to a prison where the living conditions

were “substantially more burdensome” than at the

previous prison did not ipso facto constitute a

deprivation of liberty requiring due process. The Court

-——4a—

rejected the notion that “any ——- loss” or “any

change in the conditions of confinement having a sub-

stantial adverse impact on the prisoner” is sufficient to

activate the procedural safeguards of the Fourteenth

Amendment. 427 U.S. at 224 (emphasis in original). The

Court reiterated that the pivotal factor in determining

whether an asserted interest is constitutionally pro-

tected is “the nature of the interest involved rather than

its weight.”

The Court distinguished the protection of liberty that

the Due Process Clause protects “by its own force” and

the protection of liberty following a criminai conviction.

“(G]iven a valid conviction, the criminal defendant has

been constitutionally deprived of his liberty to the extent

that the State may confine him and subject him to the

rules of its prison system. .. . The conviction has suf-

ficiently yng owen the defendant’s liberty interest to

empower the State to confine him in any of its prisons.”

427 U.S. at 224 (emphasis in original).

Because the — in Meachum had been lawfully

convicted, the Court resorted to “state law or practice”

to determine whether the nature of the interest was em-

braced within the Due Process Clause. Specifically, the

Court sought to ascertain whether the interprison

transfers were conditioned “on proof of serious miscon-

duct or the occurrence of other events.” 427 U.S. at 216.

The Court noted that the governing statute involved

there ieft the decision to transfer to the discretion of

prison officials; exercise of the discretion was not

restricted in any way. That charges of serious mis-

conduct often initiate and heavily influence the decision

to transfer was deemed insufficient to base an ex-

—_— that good behavior would insulate a prisoner

rom transfer. Because the prisoner had no “right or

justifiable expectation rooted in state law that he will

net be transferred except for misbehavior or upon the

occurrence of other events,” Montanye v. Haymes, 427

U.S. 236, 242 (1976), the Court held that the interprison

transfer did not implicate any constitutionally protected

liberty interest.

—jdja—

Central to the holding in Meachum was the absence of

any state-created right grounded in law or practice.’ A

right “grounded in law,” missing in Meachum, was pres-

ent in Wolff v. McDonnell, 418 U.S. 539 (1974). In that

case a state statute not only provided a right to good

time but also specified that it could be forfeited only for

serious misconduct. Because the statute restric the

discretion of prison authorities, the Court held that the

prisoner’s interest was within the concept of liberty pro-

tected by the Due Process Clause.

The predicate necessary to trigger the Due Process

Clause i. oe" ee ge oe statutorily-created —_ be

may also be found in official policies or practices.

oxaunnia, in Morrissey v. Brewer, 408 U.S. 571 (1972),

the governing statute gave prison officials unfettered

discretion to revoke one’s parole at any time or for any

reason, Nonetheless the Court held that the termination

of parole must be accompanied with’ procedural safe-

ards because a parolee relies on “an implicit promise

that his parole will be revoked only if he fails to live up

to the parole conditions.” 408 U.S. at 482.

Whether plaintiff's due process claim is cognizable

therefore depends upon whether he has a right or

justifiable expectation based on state law or practice

which conditions the revocation of his work-release status

upon proof of serious misconduct or the occurrence of

' Also central to the holding was that the summary transfer

to another state institution was not followed by any dis-

ciplinary punishment, loss of time or segregated con-

finement. 427 U.S. at 221-22. See also Montanye v. Haymes,

427 U.S. 236, 238 (1976), Where transfers are accompanied by

such disciplinary action, due process applies. See, e.g., Aikens

v, Lash, 647 F.2d 372 (7th Cir. 1976).

* The Supreme Court has recognized in other areas as well

that constitutionally Ply moe Ry ey — not yar —

statutorily-created rig ut also from policy or custom. Fo

example, in Perry v. Sindermann, 408 U.S. 593 (1972), the

Supreme Court, in reversing the district court's award of

summary judgment for the defendant, held that the nonten-

ured teacher must be Bren the opportunity to prove “the ex-

istence of rules and understandings, promulgated and fostered

by state officials, that may justify his legitimate claim of en-

titlement to continued employment absent ‘sufficient cause.

Id. at 602-03.

— §a—

other specified events. If he does have such a right or

expectation, the minimum procedures required by the

Due Process Clause are necessary “to insure that the

state-created right is not arbitrarily abrogated.” Wolff,

supra, 418 U.S. at 557.

Plaintiff first argues that his expectation that his

work-release status would not be revoked unless he

violated a rule or condition of the program is pre-

dicated on the Illinois Unified Code of Corrections, III.

Rev. Stat. ch. 38, §§ 1001-1-1 et seg. Section 3-8-7(e) of

the Code provides that certain procedures must be fol-

lowed “{iJn disciplinary cases which may involve... a

change in work, education, or other program assign-

ment of more than 7 days duration... .”° Plaintiff cor-

‘The section continues: “(T]he Director shall establish dis-

ciplinary procedures consistent with the following principles:

(1) Any person or persons who initiate a disci linary

charge against a person shall not determine the disposi-

tion of the charge. The Director may establish one or more

disciplinary boards to hear and determine charges. To

the extent possible, a person representing the counseling

staff of the institution or facility shall participate in deter-

mining the disposition of the disciplinary case.

(2) Any committed person charged with a violation of

Department rules of behavior shall be given notice of the

charge including a statement of the misconduct alleged

and of the rules this conduct is alleged to violate.

AW Any person charged with a violation of rules is en-

titled to a hearing on that charge at which time he shall

have an opportunity to appear before and address the per-

son or persons deciding the charge.

(4) The person or persons determining the disposition

of the charge may also summon to testify any witnesses or

other persons with relevant knowledge of the incident.

The person charged may be permitted to question any

person so summoned,

5) If the charge is sustained, the person char is en-

titled to a written statement of the decision by sae rsons

determining the disposition of the charge which shall in-

clude the basis for the decision and the disciplinary action

if any, to be imposed.

(6) A change in work, education, or other program

assignment shall not be used for disciplinar carpeees

without prior review and approval under Section 3-8-3,

—7a—

rectly argues that revocation of one’s work-release status

and removal from a work-release center involves “a

change in work ... or other program assignment of

more than 7 days duration.” He further reads the statute

as saying that this change in assignment may be im-

posed only as punishment for serious misconduct. With

this we cannot agree.

Plaintiff's interpretation is belied by the language of

the statute itself. Subpart 6 to section 3-8-7(e)

provides; “A change in work, education, or other

program assignment shall not be used for disciplinary

purposes without prior review and approval iby a

ievance review board].” (Emphasis added.) The

italicized portion of this provision would have been un-

necessary if disciplinary purposes were the exclusive

way in which one’s program assignment could be

changed.

More important, however, to construe this provision as

poh plats any program assignment change unless

ased upon a disciplinary violation is to curtail severely

the ability of prison officials to exercise discretion in

modifying program assignments of any significant dura-

tion. We do not believe this was the intent of the Illinois

General Assembly in enacting this provision. A fair

reading of the statute indicates it applies —_ when the

change in program assignment is for disciplinary pur-

poses; it does not prohibit a change in assignment for

nondisciplinary reasons and does not limit the discretion

of prison officials in making transfer decisions. Therefore

laintiff cannot base his right or expectation on state

aw.!

‘ Shortly after plaintiff's work-release status was revoked,

the Illinois Department of Corrections pursuant to a statutory

directive promulgated Administrative Regulation 1201, This

rogues. which became effective July 1, 1975, sets up a de-

tailed procedure for notice and a hearing prior to any decision

to revoke one’s work-release status. (Indeed, the procedures

contained in this regulation include all of the procedures re-

quested by plaintiff in this case.) The district court correctly

held that the regulation does not control this case as the

regulation did not become effective until after plaintiff's claim

arose. See 430 F. Supp. at 51 n. 5. Nonetheless, the dismissal

of the complaint deprived plaintiff from establishing that

Regulation 1201 merely codified the Department's customary

prior practice,

=——

_ Plaintiff also argues that he is entitled to the protec-

tions of the Due Process Clause because his right is

grounded in state practice. In his complaint plaintiff

alleges that prison authorities customarily do not inter-

fere with one’s work-release status unless the participant

violates some rule of the a or of his work-release

contract. As this is an appeal from a motion to dismiss,

this allegation must be taken as true. Cruz v. Beto, 404

U.S. 319, 322 (1972). Accordingly plaintiff must be

given an opportunity to prove that as a matter of prac-

tice, prison officials did not revoke one’s work-release

status absent a rule violation. If the allegation is es-

tablished,® the plaintiff has been denied his et to due

Men law. See Tracy v. Salamack, 572 F.2d 398 (2d

ir, ,

We are compelled to note the strong similarities

between parole and work-release. Indeed, many of the

“core values of unqualified liberty” which the Supreme

Court recognized that parolees enjoy, see Morrissey,

supra, 408 U.S. at 482, are also present here. Like a

parolee, a convict on work-release can pursue employ-

ment or education. He is eligible for leaves to renew con-

tacts with his family, He may also be released to par-

ticipate in unsupervised activities in the community,

such as shopping, recreation, and visiting friends. A

work-release participant’s freedom is more limited than

a parolee’s. That difference, however, is one of degree

only. The extent and nature of his freedom is

ualitatively different from any “freedom” allowed at

the prison. Moreover, revocation of that status entails a

loss far more grievous than that sustained by one who is

transferred from one prison to another.

® An Illinois Department of Correction Study of the first

three years of its work-release program appears to support

plaintiff's allegation that, absent a rule violation, a work-

release participant is entitled to remain at the center. Of the

thirty participants who were returned to prison from the

program (the balance being released on parole or their

sentences having expired), two committed new crimes, one

was returned for an “uncooperative attitude,” and twenty-

seven were returned for rule violations, e.g., unauthorized ab-

sence from the center or a job. K. Houlihan, Adult Work

Release Program (Illinois Department of Corrections Publica-

tion, 1972),

—9IJa—

III

In Count III plaintiff alleged that he was denied the

right to the equal protection of the laws because defen-

dants revoked his work-release status without affording

him the same kind of hearing allegedly given to other

articipants of the program. In dismissing this count for

ailure to state a claim, the court held that the claim

was conclusory and lacked a statement of sufficiently

particularized facts. It further held that absent the

presence of a suspect class, the mere inconsistency in the

operation of prison management is not violative of the

qual Protection Clause. 430 F. Supp. at 52-53.

Under the Federal Rules of Civil Procedure, a plain-

tiff in a section 1983 action is only “required to set forth

specific illegal misconduct and resultant harm in a way

which will permit an informed ruling whether the

wrong complained of is of federal aaron Duncan

v. Nelson, 466 F.2d 989, 943 (7th Cir.), cert. denied, 409

U.S. 894 (1972). Count III of the complaint meets this

standard. Plaintiff alleges that he was denied the same

procedural safeguards given all other participants in the

rogram before their work-release status was revoked.

Khe only way plaintiff could have_ given more par-

ticularized facts would have been to identify those par-

ticipants who were afforded a hearing. That is the job

for discovery.®

The district court also held that plaintiff's complaint

failed to state a claim because “the mere inconsistency

in the operation of prison management, absent the

application of suspect classifications, is not violative of

the equal protection clause.” 430 F. Supp. at 53. We

believe the district court’s view of a prisoner’s right to

bring an equal protection claim is too narrow. A state

prisoner need not allege the presence of a suspect

classification or the infringement of a fundamental right

in order to state a claim under the Equal Protection

Clause. The lack of a fundamental constitutional right or

the absence of a suspect class merely affects the court’s

standard of review; it does not destroy the cause of ac-

* If the complaint was vague or lacked detail, defendants

should have filed a motion for a more definite statement un-

der Rule 12(e), not a motion to dismiss. See 2A J. Moore,

FEDERAL PRACTICE 12.08 (2d ed. 1974).

—10a—

“

tion. “[I]n the absence of fundamental rights or a suspect

classification, equal protection requires only that a

classification which results in unequal treatment bear

some rational relationship to a legitimate state purpose.”

French v. Heyne, 547 F.2d 994, 997 (7th Cir. 1976). And

as we noted there, “prisoner claims do not form an ex-

ception to the general rule” that equal protection claims

need not be based on the denial of a fundamental right

or the involvement of a suspect class. 547 F.2d at 998.

one v. Helgemoe, 561 F.2d 411, 416 (1st Cir.

We agree that prison officials must be accorded

latitude in the administration of prison affairs. Cruz v.

Beto, 405 U.S. 319, 321 (1972). We also agree that a

mere inconsistency in prison management may not in

itself constitute a cognizable equal protection claim.

Briscoe v. Kusper, 435 F.2d 1046, 1052 (7th Cir. 1970).

But plaintiff's allegations go further than merely to

assert that he was the victim of an erroneous decision;

he claims that defendants purposefully denied him a

hearing before terminating his work-release status even

though hearings were customarily afforded to other in-

mates similarly situated.

The defendants may be able to establish the rationali-

ty of treating plaintiff differently. But a court ought not

ismiss an equal protection claim on the basis of reasons

unrevealed to the court. Cruz v. Beto, 405 U.S. 319, 321

(1972). The state must come forward and identify the

legitimate state interest being furthered. Gault v. Gar-

rison, 569 F.2d 993, 996 (7th Cir. 1977). As we again

noted in French:

In the absence of an articulated pur for the dis-

tinctions drawn here, we cannot indulge in supply-

ing an imaginary purpose or basis for the classifica-

tion . . . and thereby preclude plaintiffs from show-

ing that such an “apparent” basis does not actually

exist.... In_ this appeal. the question is not

whether plaintiffs will ultimately succeed in [ae

ing their claim that the classification by defendants

lacks a rational basis, but rather whether or not

plaintiffs are entitled to present evidence in support

of their claim.

547 F.2d at 999 (citations omitted).

a

—lla—

IV

Because we hold that the district court erred in dis-

missing Counts I and III, it necessarily follows that the

dismissal of Count I]—the allegation that defendants

violated Illinois law—must also be reversed. As the state

and federal claims “derive from a common nucleus of

operative fact,” the district court has power to hear the

pendent claim. United Mine Workers v. Gibbs, 383 U.S.

715, 725 (1966).

We make one final ruling. In Hagans v. Lavine, 415

U.S. 528, 546-47 (1974), the Supreme Court reiterated

the rule that it is generally advisable to decide a pen-

dent state claim before addressing a federal con-

stitutional claim. The district court is therefore in-

structed to determine the reason for plaintiff's removal

from the work-release program, i.e., whether it was for

disciplinary or non-disciplinary reasons. If the court

finds that the purpose was disciplinary, then Ill. Rev.

Stat. ch. 38, § 1003-8-7(e) and regulations promulgated

thereunder require that defendants afford plaintiff a

hearing. Such a finding would dispose of the case and

render unnecessary a decision of the federal con-

stitutional claims. If, however, the court finds that plain-

tiff was removed for non-disciplinary reasons, plaintiff is

still entitled to establish that he had a right or

justifiable expectation under state practice that his

work-reiease status would not be revoked unless con-

ditioned upon the occurrence of specified events.

The order dismissing the complaint is reversed and

this cause is remanded for further proceedings consis-

tent with this opinion.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

—12a—

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THOMAS DuRso,

Plaintiff,

UV.

CHARLES ROWE, et al.,

Defendants.

No. 76 C 3765

MEMORANDUM AND ORDER

This cause if before the court on the motion! of defen-

dants? Charles Rowe, Allyn R. Sielaff, David V. Brier-

ton, Edward Jordan, and Joseph Barda to dismiss the

complaint for failure to state a claim upon which relief

can be granted and for lack of subject matter jurisdic-

tion. For the reasons hereinafter stated, the motion shall

be granted.

Plaintiff, Thomas Durso, is presently incarcerated at

the Illinois State Penitentiary, Stateville Branch, Joliet,

! Actually, two sets of motions to dismiss have been filed, th

first by defendants Sielaff and Rowe and the second by defen-

dants Brierton, Jordan, and Barda. Defendants Sielaff and

Rowe have joined in the latter motion. In light of the court’s

decision, it is unnecessary to reach the arguments raised by

the former motion.

2 The complaint was originally filed against the fi

defendants and Bernard Carey, State's Gane a ton

County. A motion to dismiss the complaint as to defendant

Carey was granted by the court on Novenler 29, 1976.

ne ee es a

Illinois. Represented by counsel, he brings this civil

rights action pursuant to 42 U.S.C. § 1983 and seeks

monetary, declaratory, and injunctive relief. In support

of his claim, plaintiff alleges tn Count I that the conduct

of defendants in removing-him from a work release

program without prior notice or a legally sufficient

hearing violated his constitutional right to due process

of law. In Count III, plaintiff asserts that he was depriv-

ed of equal protection of the law because the procedural

rights denied him are believed to have been afforded to

other work release inmates. Count II alleges that the

revocation of plaintiff's work release status was not in

accordance with Illinois law. Federal jurisdiction over

Counts I and III is invoked pursuant to 28 U.S.C.

§ 1343(3) and 28 U.S.C. §§ 2201 and 2202. Federal

jurisdiction with respect to Count II is asserted under

the doctrine of pendent jurisdiction. United Mine

Workers v. Gibbs, 383 U.S. 715 (1966).

In support of their motion to dismiss Count I, the

defendants argue, inter alia, that plaintiff was not

deprived of a sufficient liberty interest to trigger

procedural due process.? With respect to the equal

protection allegations, def.ndants contend that they are

too conclusory and vague to state a claim for relief;

Moreover, defendants maintain that mere inconsistency

in the operation of prison management absent applica-

tion of such suspect classifications as race or national

origin is not violative of equal protection as encompassed

by the fourteenth amendment. Finally, defendants argue

that since Counts I and II must be dismissed for failure

to state a claim upon which relief can be granted, Count

II should be dismissed for want of federal jurisdiction.‘

3 Defendants also argue that plaintiff's complaint should be

dismissed because it would require the application of retroac-

tive relief.

4 In the alternative, defendants argue that plaintiff has

failed to state a claim in Count II.

—l4a—

In his memorandum in opposition to the motion to dis-

miss, plaintiff argues that revocation of his work release

status is a deprivation of liberty protected by the due

process clause of the fourteenth amendment since work

release termination may have an adverse impact on

rehabilitation and future parole eligibility. He further

contends that he has stated a cognizable equal protection

claim and that the factual averments in the complaint

are sufficiently specific. Finally, plaintiff argues that

this court should exercise pendent jurisdiction over

Count II of the complaint since the state law claim is

closely related to the constitutional claim and derives

from a common nucleus of operative facts.

The court must first decide whether the revocation of

plaintiff's work release status is a deprivation of liberty

protected by the due process clause of the fourteenth

amendment. It concludes that it is not. In Gauthreauz v.

Sielaff, No. 75 C 3198 (E.D. Ill., November 12, 1976),

under similar facts, Judge Foreman recently held that a

prisoner has no such protectible interest under the due

process clause. While it is true that the late Judge

Lynch held otherwise in Witherspoon v. Sielaff, No. 75 C

644 (N.D. Ill., January 19, 1976), the court finds

Gauthreaux v. Sielaff, supra, a more persuasive authori-

ty on this issue, and in the light of recent United States

Supreme Court decisions discussed infra, a more ac-

curate reflection of the state of the law.

The Supreme Court has rejected the notion that every

state action carrying adverse consequences for prison in-

mates automatically triggers due process rights.

Meachum v. Fano, 44 U.S.L.W. 5053 (1976); Montanye v.

Haymes, 44 U.S.L.W. 5051 (1976). As the court noted in

Montanye supra at 5052-53, “[a]s long as the conditions

or degree of confinement to which the prisoner is sub-

jected are within the sentence imposed upon him and

a ee Sere ee Oe ee ee

—l5a—

are not otherwise violative of the Constitution, the Due

Process Clause does not in itself subject an inmate’s

treatment by prison authorities to judicial oversight.”

Plaintiff's attempt to distinguish Meachum and Mon-

tanye must fail. While it is true that these cases

recognize that state-created rights may operate as a

predicate for invoking the protection of the fourteenth

amendment, no such predicate exists here.’ Moreover, to

hold that any substantial deprivation imposed by prison

officials activates the procedural protections of the due

process clause would unduly involve the judiciary in dis-

cretionary decisions traditionally within the province of

prison authorities. Meachum v. Fano, supra at 5056-57.

Plaintiff's reliance on Holmes v. United States Board

of Parole, 541 F.2d 1248 (7th Cir. 1976) is also misplac-

ed. There it was held that due process was required

prior to classifying a prisoner as a special offender.

However, as defendants point out, classification of a

prisoner as a special offender is a different matter than

terminating work release status. Moreover, the court in

Holmes found the necessary predicate not present here.

While plaintiff does not contend that his removal from

work release resulted in a denial of parole, he does

argue that termination of his work release status may

have an adverse impact on his rehabilitation and future

parole eligibility. He maintains that this constitutes a

grievous loss and that due process is therefore required.

6 Plaintiff maintains that eligibility for and disqualification

from work release are connected to statutory guidelines. II-

linois law does provide that the Department of Corrections is

to promulgate rules governing release status and that it may

impose sanctions for violation of these rules. III. Rev. Stat. Ch.

38 § 1003-13-4. However, the regulations of the Department of

Corrections governing work release revocation—as plaintiff

concedes—became effective after plaintiff's alleged claim

arose.

—1l6a—

However, such possibilities are not enough to trigger

due process. In Meachum v. Fano, supra at 5058 n. 8,

the Supreme Court rejected the possible prejudice an in-

mate might incur in any future parole hearing as a

basis for mandating due process guarantees. In Mon-

tanye v. Haymes, supra at 5052 n. 4, the Supreme Court

reversed the Court of Appeals for the Second Ciréuit

notwithstanding its partial reliance on the adverse im-

pact on the possibility of parole or the potential in-

terruption of rehabilitative programs. And in Moody v.

Daggett, 45 U.S.L.W. 4017, 4020 n. 9 (1976), the United

States Supreme Court recently reiterated its position

that due process protections are not activated merely by

prison officials’ action carrying adverse consequences for

inmates with respect to rehabilitative programs and

prisoner classification.

The second question the court must decide is whether

plaintiff has failed to state an equal protection claim un-

der 42 U.S.C. § 1983. It is well settled that a claim is

stated unless “it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which

would entitle him to relief.” Conley v. Gibson, 355 U.S.

41, 45-46 (1957). Of course, plaintiff's complaint is sub-

ject to greater scrutiny than a pro se complaint since

plaintiff is represented by counsel. See Haines v. Kerner,

404 U.S. 519 (1972).

Plaintiff predicates his equal protection claim upon

his belief that defendants revoked his work release

status without affording him the same kind of hearing

and finding of misconduct given to other participants in

the program. The court concludes that plaintiff has

failed to state a claim upon which relief can be granted.

It is well established that particularized facts

demonstrating a constitutional deprivation must be

presented to sustain a cause of action under the Civil

ee

—17a—

Rights Act. Adams v. Pate, 445 F.2d 105 (7th Cir. 1971);

Bach v. Scott, 357 F.Supp. 1125 (N.D. Ill. 1973). Con-

clusory allegations of discrimination are insufficient to

establish a claim under 42 U.S.C. § 1983. Carlisle v.

Bensinger, 355 F.Supp. 1359, 1362 (N.D. Ill. 1978);

Heckart v. Pate, 52 F.R.D. 224 (N.D. Ill. 1971). Here

there are no specific factual averments submitted by

plaintiff in support of his broad allegations. As such,

they are too conclusory to state a claim under the Civil

Rights Act. Heckart v. Pate, supra.

Moreover, plaintiff has failed to state a claim because

prison officials have wide discretion in prison matters

and discipline. Kelly v. Dowd, 140 F.2d 81 (7th Cir.),

cert. denied, 321 U.S. 783 (1944). There is no reasonable

basis here for interference with state authority, even

though plaintiff's claim is couched in the guise of a

violation of his constitutional rights. Walker v. Pate, 356

F.2d 502 (7th Cir.), cert. denied, 384 U.S. 966 (1966);

Negrich v. Hohn, 379 F.2d 213 (8d Cir. 1967). Federal

courts may not inquire into matters in state peniten-

tiaries except under exceptional circumstances not pre-

sent here. Walker v. Pate, supra at 504; United States ex

rel. Miller v. Twomey, 479 F.2d 701, 713 n. 25 (7th Cir.

1973), cert. denied sub nom. Guitierrez v. Department of

Public Safety, 414 U.S. 1146 (1974).

Plaintiff also fails to state an equal protection claim

because “the conscious exercise of some selectivity in en-

forcement is not in itself a federal constitutional viola-

tion.” Oyler v. Boles, 368 U.S. 448, 456 (1962). Likewise,

the mere inconsistency in the operation of prison

management, absent application of suspect

classifications, is not violative of the equal protection

clause. See Joyner v. McClellan, 396 F.Supp. 912, 916

(D. Md. 1975).

Plaintiff's reliance on Yick Wo v. Hopkins, 118 U.S.

356 (1886) and United States v. Falk, 479 F.2d 616 (7th

Cir. 1978) (en banc) is misplaced. In Yick Wo, enforce-

ment of a San Francisco ordinance was primarily

directed at persons of Chinese origin, a suspect

classification. In Falk, the Court of Appeals for the

Seventh Circuit reversed a conviction based upon draft

evasion because the court determined that Falk’s

prosecution was motivated by his activities in opposition

to the war in Vietnam and the draft; activities the court

found protected by the fundamental guarantees of the

first amendment. In the case at bar, plaintiff alleges

that the termination of this work release status was

motivated by adverse community reaction to the work

release program, including pressure from the Cook

County State’s Attorney’s office.6 However, plaintiff does

not allege that his work release status was terminated

because of such constitutionally suspect classifications as

race or national origin. Nor is there an averment that

plaintiff's removal was predicated upon his prior exer-

6 Defendants submit that prison administrators cl

é iso} early ha

- right, and indeed an obligation, to consider the reaction of

the general community and law-enforcement officials when

eer the level of supervision to be applied to particular

a ee ee eee

a

—19a—

cise of a constitutionally protected right. In light of such

failure, no cognizable equal protection claim is stated.’

With respect to Count II, it must likewise be dismiss-

ed. Where there is no substantial federal question, it is

inappropriate to retain jurisdiction under any claim of

pendent jurisdiction. United Mine Workers v. Gibbs,

supra.

For the reasons stated, it is therefore ordered that the

defendant’s motion to dismiss the complaint for failure

to state a claim upon which relief can be granted and

for lack of subject matter jurisdiction shall be, and the

same is hereby, granted and the action is dismissed.

/s/ Epwin A. ROBSON

SENIOR JUDGE

February 7, 1977

7 After the close of the briefing schedule, plaintiff's attorne

called the court’s attention to French v. Heyne, No. 75-188

(7th Cir., December 22, 1976). The court has reviewed the

case and finds her reliance on it misplaced. Plaintiff has

alleged that defendants arbitrarily denied him the same due

rocess rights afforded other inmates before removing them

rom work release, and argues that such arbitrary discrimina-

tion in the application of administrative regulations or. prac-

tices states a viable equal protection claim. However, it is well

settled that the arbitrary misapplication of state laws or

powers does not in itself constitute a violation of equal protec-

tion. Briscoe v. Kusper, 435 F.2d 1046, 1052 (7th Cir. 1970).

Plaintiff has failed to alege any, classification other than the

om of the defendants’ improper application of their

powers. Id.

—20a—

APPENDIX C

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 24, 1978.

Before

Hon. Thomas E. Fairchild, Chief Judge

Hon. Luther M. Swygert, Circuit Judge

Hon. Wilbur F. Pell, Jr., Circuit Judge

THOMAS DuRSO,

Plaintiff-A ppellant,

No. 77-2121 a

CHARLES ROWE, Individually and as Acting Director

of Illinois Department of Corrections, et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division,

No. 76-C-3765—Edwin A. Robson, Judge

On consideration of the petition for rehearing and

suggestion for rehearing in banc filed in the above-

entitled cause by counsel for the defendants-appellees,

no — in active service has requested a vote theveon,

and all of the judges on the original panel have voted to

deny a rehearing. Accordingly,

_ IT IS ORDERED that the aforesaid petition for rehear-

ing be, and the same is hereby, DENIED.

Honorable Philip W. Tone, Circuit Judge, did not partici-

pate in the in banc consideration of this matter.