Petition for Writ of Certiorari — Rowe v. DeBruyn

a

% — ‘wg 5 U.S,

94 924

i 9 AUG ~ 1 1994

IN THE SUPREME COURT

OF THE UNITED STATES

October Term 1994

JOHN S. ROWE,

Petitioner,

ws

H. CHRISTIAN DEBRUYN, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

August 1, 1994 Hamid R. Kashani

Suite 600

445 N. Pennsylvania Street

Indianapolis, IN 46204

317/ 632-1000

Counsel of Record

Richard A. Waples

Suite 911

445 N. Pennsylvania Street

Indianapolis, IN 46204

317/ 635-4059

Attorneys for Petitioner

QUESTION PRESENTED

Whether a prisoner being attacked and raped has

a fundamental right, protected by the due process

clause of the fourteenth amendment, to defend

himself?

i

LIST OF PARTIES

1. Plaintiff-Petitioner JOHN S. ROWE;

2. Defendant-Respondent James E. Aiken, individually;

3. Defendant-Respondent H. CHRISTIAN DEBRUYN, in his

official capacity as Commissioner of the Indiana

Department of Correction [hereinafter DOC];'

4. Defendant-Respondent JACK R. DUCKWORTH, individually

and in his official capacity as Superintendent, Indiana State

Reformatory [ISR];

5. Defendant-Respondent MICHAEL J. WATSEN, individually

and in his official capacity as Correctional Lieutenant and

the Chair of the Conduct Adjustment Board, ISR;

6. Defendant-Respondent LACY MORRIS, individually and in

his official capacity as Correctional Officer and Member of

the Conduct Adjustment Board, ISR; and

7. Defendant-Respondent RICK L. ROBINSON, Individually and

in his official capacity as an employee and member of the

Conduct Adjustment Board, ISR.

Defendants-Respondents are hereinafter collectively referred

to as Prison Officers.

‘Rowe sued Commissioner Aiken individually and in his official

Capacity. Because Commissioner Aiken was replaced by Commissioner

DeBruyn, the Court of Appeals, sua sponte, substituted DeBruyn for Aiken.

An automatic substitution is effective only with respect to Commissioner

Aiken’s official capacity. Fed. R. Civ. P. 25(d)(1).

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TABLE OF CONTENTS

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Ts y's bo 6 eed. 0 806 ee 0. #08 1

SEER er eee ee 1

CONSTITUTIONAL PROVISION INVOLVED ... 1

SiAIEMEN!T OF THE CASE .............. 2

REASONS FOR GRANTING THE WRIT ....... +

This petition presents the important question

whether a prisoner being attacked and raped

has a fundamental right, protected by the

due process clause of the fourteenth amendment,

Oe ee aa ha gs pe ox 4

A. The right to self-defense is fundamental

and protected by the due process clause

of the fourteenth amendment. ........ 6

B. The right to self-defense extends to

prisoners being attacked and raped. .... 11

I a ne a 15

I ela Legs oe ks 5 «e's s oem ek a-i

ill

AUTHORITIES CITED

Cases:

Aptheker v. Secretary of State, 378 U.S. 500 (1964) .. 6

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..... 3

Daniels v. Williams, 474 U.S. 327 (1986) ........ 6

Farmer v. Brennan, _ U.S. ___,

Se es Se ee sa sk 11

Gibbs v. Franklin, 18 F.3d 521 (7th Cir. 1994) ..... 11

Griffin v. Martin, 785 F.2d 1172 (4th Cir. 1986),

aff'd by an equally divided court and op.

withdrawn, 795 F.2d 22 (1986) (en banc),

cert. denied, 480 U.S. 919 (1987) ........... 9

Griswold v. Connecticut, 381 U.S. 479 (1965) ..... 6

Isaac v. Engle,

646 F.2d 1129 (6th Cir. 1980) (en banc),

WU Se Se Pt RE cs hi ete 10

Loving v. Virginia, 388 U.S. 1 (1967) .......... 6

Martin v. Ohio, 480 U.S. 228 (1987) ........... 7

Pell v. Procunier, 417 U S. 817 (1974) .......... 12

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .... 6

Prince v. Massachusetts, 321 U.S. 158 (1944) ..... 6

Procunier v. Martinez, 416 U.S. 396 (1974) .... 12, 13

Rochin v. California, 342 U.S. 165 (1952) ........ 6

Be See, ee wees BED ME oe i i ee ss 6

Rowe v. DeBruyn, 17 F.3d 1047 (7th Cir. 1994) . passim

Skinner v. Oklahoma, 316 U.S. 535 (1942) ....... 6

Vitek v. Jones, 445 U.S. 480 (1980) ............ 4

White v. Arn, 788 F.2d 338 (6th Cir. 1986),

cert. denied, 480 U.S. 917 (1987) ........... 10

Wolff v. McDonnell, 418 U.S. 539 (1974) ........ 5

1V

Constitutions, Statutes:

Se ee eo 1

ee ne ERS 1

Mo ay ov ss ode oe oe ee l

SS he a kb be ck ere ee |

eT on ee l

Ge we hr ads ee cet et 1

Su Se eee 9

Ohio Rev. Code Ann. § 2901.05(A) ............. 9

Sen SE rn ee ee ee 9

me SO I I bs ek ke eck a st passim

Rules:

eee ee Pe es Se en Sk ES PO l

Pas See es 6 Ok PS. Oe li

Miscellaneous:

2 H. Broom, Commentaries on the Laws of England

with Notes by William Wait (1875) .......... 11

2 Sharswood Blackstone’s Commentaries

Se as 7

3 Story, Commentaries on the Constitution of

os EG 6

A. Ashworth, Self-Defence and the Right to Life,

Pe as Ek ok ec es be ene 6, 8

D. Bowett, Self-Defence in Int’l Law (1958) ....... 9

ee ee 9

LaFave, Criminal Law (2d ed. 1986) ........... 13

Vv

| * .

M. Gagarin, Drakon and Early Athenian Homicide Law

ECR ap de a lle Sa a os oak. pare as eet 7

Model Penal Code § 3.04 (1962) .............. 9

R. Lillich, /nternational Human Rights,

Problems of Law, Policy, and Prac.

ES So ba eS we tae boece yy eee 8

The Universal Declaration of Human Rights,

8 a eet FT ee eee ere 8

vi

OPINION BELOW

The opinion of the United States Court of Appeals for the

Seventh Circuit is reported as Rowe v. DeBruyn, 17 F.3d

1047 (7th Cir. 1994). It is reprinted in the Appendix hereto,

p. la.

JURISDICTION

The judgment and opinion of the court of appeals was

entered on March 2, 1994, with one judge dissenting. On

March 16, 1994, Rowe filed a petition for rehearing with a

suggestion for rehearing en banc which was denied on May

3, 1994, with four (4) judges voting to grant an en banc

hearing. An amended order was entered on May 5, 1994.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

The district court entered its judgment on December 18,

1992. Rowe filed his notice of appeal on January 15, 1993,

within the time limits prescribed by Fed. R. App. P. 4(a).

The court of appeals had jurisdiction under 28 U.S.C. §

1291.

Pursuant to 28 U.S.C. §§ 1331 & 1343, the district court

had jurisdiction to hear Rowe’s constitutional claims brought

under 42 U.S.C. § 1983 and 28 U.S.C. § 2201.

CONSTITUTIONAL PROVISION INVOLVED

The following constitutional provision is relevant to the

determination of this case: "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

protection of the laws." U.S. Const. amend. XIV, § 1.

STATEMENT OF THE CASE

In July 1991, Petitioner John S. Rowe was incarcerated

in an Indiana state prison. About midnight on July 18,

1991, after the officers had made their last round, Evans, a

prisoner in the next cell, sent Rowe a note demanding Rowe

to go to his cell in the morning and submit to sex. Affidavit

of Rowe to the CAB (Jul. 31, 1991) (AAB-17 to -19).?

[Rowe’s Affidavit]. Evans threatened Rowe with death if he

did not comply. See Evans’ Note (AAB-16) ("Someone will

get hurt, perhaps even die"). Rowe did not comply.’

Early in the morning, prior to the guards rounds, Evans

forcibly entered Rowe’s cell and violently assaulted and

attempted to rape him. Rowe repeatedly screamed for help,

but no officer responded. Rowe’s Affidavit (AAB-17 to -

19).

Iseenag the assault, Evans repeatedly grabbed, pushed,

and punched Rowe.* While defending himself from Evans’

References are to the Appendix in the Appellant's Brief (AAB) filed

in the Court of Appeals.

3Rowe had previously complained to prison authorities about Evans’

sexual aggression. Rowe’s Affidavit (AAB-17 to -19). Seealso Statement

of Counsellor Shelton to the Conduct Adjustment Board (CAB) (AAB-1).

*Rowe received severa! injuries from the attack and was seen by

medical staff seven (7) times from July 19 to August 22, 1991. See

Defendants’ Motion for Summary Judgment (attachments-- Rowe’s medical

records).

violent blows and attempted rape, Rowe grabbed a cold hot-

pot and swung it at Evans. Rowe was unable to fend off

Evans. Eventually, another prisoner, Perez, heard Rowe’s

pleas for help and came to his rescue. With Perez’ help,

Rowe was able to force Evans from his cell. Rowe’s

Affidavit (AAB-17 to -19).

Rowe was charged with committing battery upon Evans.

Conduct Report (AAB-20). A prison conduct adjustment

board (CAB) held a hearing and found Evans was the

"aggressor," Watson’s Depo. at 36, and Rowe had acted in

self-defense. Affidavit of Watson ¢ 9, at 2 (attached to

Prison Officers’ summary judgment motion). But, the

DOC’s policy prevented the CAB from acquitting Rowe.

"[Rowe] did have a human right to protect himself, but the

Department of Correction doesn’t have an allowance for

that." Watson’s Depo. at 38. Thus, the CAB did not allow

Rowe to raise the defense of self-defense and specifically

heid "[t]here is no self-defense policy for offenders in

I.D.0.C. [Indiana Department of Correction]."_ Discipiinary

Hearing Report (AAB-21). The CAB convicted Rowe of

battery and sentenced him to one (1) year of disciplinary

segregation. In imposing its sentence, the CAB viewed the

fact of Rowe’s self-defense as a mitigating factor and

suspended the sentence. /d.°

“Prison Officers did not raise, in the district court, the question of

whether Rowe’s sentence deprived him of a liberty interest. Prison Officers’

Petition for Rehearing at 4 ("[nJeither party raised this issue in the district

court"). Nor did Rowe. See Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986) (the "movant always bears the initial burden of informing the district

court of the basis for its motion). The district court sua sponte held a

suspended sentence cannot implicate a liberty interest. The court of appeals

disagreed. "In our view, Rowe’s punishment, although suspended,

constitutes ‘consequences visited on the prisoner that are qualitatively

Rowe sued. Prison Officers moved for summary

judgment claiming security concerns justified their policy of

denying prisoners the defense of self-defense in CAB

proceedings. The district court agreed. A panel of the court

of appeals affirmed, with JUDGE RIPPLE dissenting.

Rowe’s petition for rehearing with suggestion for

rehearing en banc was denied, with JUDGES CUDAHY,

FLAUM, RIPPLE, AND ROVNER voting to grant rehearing en

banc.

REASONS FOR GRANTING THE WRIT

This petition presents the important question

whether a prisoner being attacked and raped

has a fundamental right, protected by the

due process clause of the fourteenth amendment,

to defend himself.

This case presents an important constitutional issue which

has not yet been decided by this Court, i.e. "whether the

state can require someone to accept grievous bodily injury or

even the possibility of death as the price for not incurring

Criminal or quasi-criminal liability." Rowe, 17 F.3d 1054

(Ripple, J., dissenting). This Court should accept this case

and, for the first time, hold that a human being has a

fundamental right to self-defense protected by the due

process clause of the fourteenth amendment.

different from the punishment characteristically suffered by a person

convicted of crime.’" Rowe, 17 F.3d at 1053 (quoting Vitek v. Jones, 445

U.S. 480, 493 (1980)). See also Plaintiff's Contentions and Statement of

Special Damages q 5, at 3 (AAB-14) (Rowe was later confined to a

restrictive, disciplinary unit because a subsequent sentence imposed upon him

was enhanced due to this conviction).

Under the Seventh Circuit’s decision,° a prisoner facing

a violent attack or rape must either submit to it or be

punished by prison authorities. This rule is neither fair nor

just, It makes the state an accomplice of the aggressor. The

court of appeals’ rejection of the right of self-defense has

disastrous consequences in prison:

[T]he court [of appeals] today holds that the

Constitution of the United States permits a

State to leave, under all circumstances, an

incarcerated person without any lawful

recourse against even the most inhuman and

vile attack on that person’s life or bodily

integrity. It sanctions the decision of the state

government of Indiana to require that any

person incarcerated under its authority

submit, no matter what the circumstances, to

any threat to life or bodily integrity without

any recourse to self-defense of any kind.

This holding renders the phrases of Wolff [v.

McDonnell, 418 U.S. 539, 555 (1974)]

meaningless poctry.

Rowe, 17 F.3d 1054 (Ripple, J., dissenting).

°The Seventh Circuit held the right to self-defense is not a fundamental

right protected by the due process clause of the fourteenth amendment.

Rowe, 17 F.3d at 1052. It further held "[e]ven if Rowe did have a

constitutional right of self-defense, the IDOC’s policy to deny a prisoner the

right to raise it as a complete defense is reasonably related to legitimate

penological interests." /d. at 1053.

A. The right to self-defense is fundamental and

protected by the due process clause of the

fourteenth amendment.

The right to self-defense is a fundamental right which

should be protected by the constitution. "Bill of Rights

presumes the existence of a substantial body of rights not

specifically enumerated but easily perceived in the broad

concept of liberty and so numerous and so obvious as to

preclude listing them." 3 Story, Commentaries on the

Constitution of the United States 715-716 (1833). See also

~ Daniels v. Williams, 47° U.S. 327, 337-38 (1986) (Stevens,

J., concurring) ("the Due Process Clause contains a

substantive component that bars certain arbitrary, wrongful

government actions"). Thus, this Court has recognized a

host of rights not enumerated in the constitution when those

rights are deemed "fundamental" or "implicit in the concept

of ordered liberty." Roe v. Wade, 410 U.S. 113, 152

(1973).’

The right to self-defense is both fundamental and implicit

in the concept of ordered liberty. "Indeed, on practical

grounds a liberty to use force in self-defense is essential if

members of society are not to be put at the mercy of the

strong and unscrupulous." A. Ashworth, Self-Defence and

See Roe v. Wade, 410 U.S. 113 (abortion); Loving v. Virginia, 388

U.S. 1 (1967) (marriage); Griswold v. Connecticut, 381 U.S. 479 (1965)

(contraception); Aptheker v. Secretary of State, 378 U.S. 500 (1964)

(overseas travel); Rochin v. California, 342 U.S. 165 (1952) (protection

against bodily intrusions); Prince v. Massachusetts, 321 U.S. 158 (1944)

(family relationships); Skinner v. Oklahoma, 316 U.S. 535 (1942)

(procreation); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (upbringing

and education of children).

the Right to Life, 34 Camb. L.J. 282, 283 (1975).

[hereinafter cited as Self-Defence and the Right to Life}.

The right to self-defense is the right to survive. It

predates written law and is essential to self-preservation.

"There is no dispute that self-defense historically is one of

the primary justifications for otherwise unlawful conduct."

Martin v. Ohio, 480 U.S. 228, 243 (1987) (Powell, J.,

dissenting) (citations omitted).

Perhaps, the earliest written recognition of the right of

self-defense is found in "Drakon’s Law on Homicide,"

which was originally drafted by the "lawgiver" Drakon, in

621-20 B.C., and was later enacted by Athenians in 409-08

B.C. M. Gagarin, Drakon and Early Athenian Homicide

Law 1 (1981). Drakon’s law recognized the defense of self-

defense and provided that "a plea of self-defense would be

entered in a trial for intentional homicide at the Aeropagos

(in the fourth century, at least). The defendant could

probably be acquitted if he could show that the victim did

indeed start the fight and that his own retaliation was a

reasonable and necessary defensive action." Jd. at 62.

The right of self-defense has always been recognized

under the English common law:

In the next place, such homicide as is

committed for the prevention of any forcible

and atrocious crime is justifiable by the law of

nature; and also by the law of England, as it

stood so early as the time of Bracton, and as

it is since declared in statute 24 Hen. VIII. c.

5. If any person attempts a robbery or

murder of another, or attempts to break open

a house, in the night-time (which extends also

to an attempt to burn it,) and shall be killed in

such an attempt, the slayer shall be acquitted

and discharged.

2 Sharswood Blackstone’s Commentaries 180 (Am. ed.

1872).

Of particular relevance to this case is Blackstone’s

observation that "[t]he Roman law also justifie[d] homicide

when committed in defence of the chastity either of one’s

self or relations". Jd. "For one uniform principle that runs

through our own and all other laws seems to be this,-- that

where a crime, in itself capital, is endeavoured to be

committed by force, it is lawful to repel that force by the

death of the party attempting." Id. 180-81 (emphasis

added).

The right to self-defense is the right to life. "If a legal

system is to uphold the right to life, there must be a liberty

to use force for the purpose of self-defense." Self-Defence

and the Right to Life, 34 Camb. L.J. at 283. The right to

life and security of person has also been recognized by

international law. "Everyone has the right to life, liberty

and security of person." The Universal Declaration of

Human Rights art. 3 (1948). Further, international law

recognizes "[t]he right of the state to intervene by the use of

or threat of force for the protection of its nationals suffering

injuries within the territory of another state is generally

admitted, both in the writings of jurists and in the practice

of states." R. Lillich, International Human Rights, Problems

of Law, Policy, and Prac. 617 (2d ed. 1991) (quoting D.

Bowett, Self-Defence in Int’l Law 87-105 (1958)).®

Today, self-defense is widely recognized by the states.

See e.g., Ind. Code Ann. § 35-41-3-2; Ohio Rev. Code Ann.

§ 2901.05(A); S.C. Code Ann. §16-23-410. See also

Model Penal Code § 3.04 (1962) ("the use of force upon or

toward another person is justifiable when the actor believes

that such force is immediately necessary for the purpose of

protecting himself against the use of unlawful force by such

other person on the present occasion").

The Seventh Circuit is the only circuit which has

squarely reached the issue and decided that there is no

fundamental right to self-defense. Rowe, 17 F.3d at 1052.

A number of circuits have addressed the issue in either dicta

or opinions subsequently withdrawn on other grounds.

These cases generally deal with the allocation of burden of

proof on the defense of self-defense. In Griffin v. Martin,

785 F.2d 1172 (4th Cir. 1986), aff’d by an equally divided

court and op. withdrawn, 795 F.2d 22 (1986) (en banc),

cert. denied, 480 U.S. 919 (1987), a panel of the Fourth

Circuit observed:

It is difficult to the point of impossibility to

imagine a right in any state to abolish self

defense altogether, thereby leaving one a

*The right of self-defense or defense of others has been used on the

international scene to justify deploying troops and staging wars to protect

one’s self or others as in the case of Operations Desert Shield and Desert

Storm. It has also been engraved into our culture and upbringing. See

Grimm, Hansel and Gretel (Gretel pushed the wicked witch into the oven to

save her brother and herself).

Hobson’s choice of almost certain death

through violent attack now or statutorily

mandated death through trial and conviction

of murder later.

Id. at 1187 n.37. In Isaac v. Engle, 646 F.2d 1129 (6th

Cir. 1980) (en banc), rev’d, 456 U.S. 107 (1982), Judge

Merritt observed "the Constitution prohibits a state from

eliminating the justification of self-defense from its criminal

law." Jd. at 1140 (Merritt, J., dissenting on other grounds).

In White v. Arn, 788 F.2d 338 (6th Cir. 1986), cert. denied,

480 U.S. 917 (1987), the court stated "its holding does not

reject the notion that a defendant has a limited right to act in

self-defense under certain circumstances," id. at 347-48

n.15, but declined to adopt the notion that there is a

"constitutional right of self-defense, founded in the Eighth,

Ninth, and Fourteenth Amendments, which an accused

cannot be required to prove." Id. at 347.

After ail, the right to self-defense is the right to exist.

Without it, all other fundamental rights recognized under the

constitution would be illusory.

The future process of law may be by no

means an adequate remedy for an injury

accompanied with force; and it is impossible

to say, to what wanton lengths of rapine or

cruelty an outrage of this sort might be

carried, unless it were permitted a man

immediately to oppose one violence with

another. Self-defence, therefore, as it is justly

called the primary law of nature, so is not,

10

er ee ee en een te Seater

neither can it be in fact, taken away by the

law of society.

2 H. Broom, Commentaries on the Laws of England with

Notes by William Wait 3 (1875) (emphasis added).

B. The right to self-defense extends to prisoners being

attacked and raped.

The combination of the Seventh Circuit’s decisions in this

case and in Gibbs v. Franklin, 18 F.3d 521 (7th Cir. 1994)

(petition for certiorari filed on June 16, 1994, by the

undersigned counsel) is devastating in terms of prisoner

safety and human rights. In Gibbs, the Seventh Circuit held

a prison guard is not constitutionally required to protect a

victim-prisoner from an attacker unless the harm to the

prisoner is "readily preventable." Jd. at 524. Having

effectively stripped prisoners of the right to be protected by

the guards in Gibbs, in Rowe the Seventh Circuit strips them

of the right to protect themselves. Thus, even though,

"[p]risons are necessarily dangerous places," Farmer v.

Brennan, _US. __, __, 114S. Ct. 1970, 1990 (1994)

(Thomas, J., concurring in judgment), the Seventh Circuit

has left weak and vulnerable inmates with practically no

protection against violence.

Prisons are dangerous places and security inside is often

illusory. In this case, Rowe repeatedly yelled for help but

no guard came to his aid. Yet, the Seventh Circuit would

deny Rowe and other prisoners the right to protect

themselves. In the name of judicial restraint, the lower

courts have deferred completely to the Prison Officers’ bald

assertion that the availability of the defense of self-defense

1]

creates a security problem and prisoner-to-prisoner violence.

Prison Officers’ assertion is not supported by fact or logic.

Life inside today’s prison is nasty, brutish, and, all too

often, short. As Judge Ripple observed, "to forbid all

resistance to all threats to life and bodily integrity is not to

ensure a lack of violence, as the majority suggests, but to

leave the weak and the vulnerable the easy prey of the strong

and the vicious." Rowe, 17 F.3d at 1055 (Ripple, J.,

dissenting).°

Federal courts must not “abdicate [their] constitutional

responsibility to delineate and protect fundamental liberties."

Pell v. Procunier, 417 U.S. 817, 827 (1974). And, "a

policy of judicial restraint cannot encompass any failure to

take cognizance of valid constitutional claims whether arising

in federal or state institution." Procunier v. Martinez, 416

U.S. 396, 405 (1974). Deference to prison authorities’

purported security concerns cannot be blind:

My brothers make the further point, however,

that the recognition of self-defense in the

prison environment poses special problems for

the security of the institution and that these

considerations justify the abrogation of the

defense in the prison setting, even if such a

defense must be recognized in other contexts.

We have, no doubt, a special obligation to be

sensitive to the legitimate requirements of

prison security. This obligation brings with

"Imagine the DOC’s policy of no self-defense actually being followed.

Would aggressive and vicious prisoners be less deterred from attacking other

prisoners? To state the question is to answer it.

12

it an obligation of deference to the informed

judgment of prison authorities with respect to

matters of prison administration, especially

those issues that implicate matters of security.

Yet, the Supreme Court has made it

abundantly clear that mere invocation of

"security" or "expertise" does not permit a

Judge of the Third Article to walk away from

the issue.

Rowe, 17 F.3d 1055 (Ripple, J., dissenting) (citing Martinez,

416 U.S. at 405).

As Respondent Watson admitted, Rowe "did have a

human right to protect himself. but the Department of

Correction doesn’t have an allowance for that, Watson’s

Depo. at 38 (AAB-33), purportedly in the name of "security

concerns." Rowe, 17 F.3d at 1053.'° No governmental

purpose which allows an innocent person, albeit a prisoner,

to be convicted and punished in the name of security can

ever be legitimate. Never before has this Court implied that

a state may require individuals to passively submit to

forcible rape and even death to advance its security

concerns.

True, Prison Officers took the fact of Rowe’s self-defense into

consideration and mitigated his punishment. Nonetheless, Rowe was

convicted and punished for defending himself. See Watson’s Depo. at 42

("[iJn the event of a fight where one offender is clearly acting in self-defense,

he is still found guilty of it"). This is not just. "It is only just that one who

is unlawfully attacked by another, and who has no opportunity to resort to

the law for his defense, should be able to take reasonable steps to defend

himself from physical harm.” LaFave, Criminal Law 454 (2d ed. 1986).

13

It is indeed a _ novel proposition of

constitutional law to hold that a state, having

deprived a person of liberty according to law,

can further punish that individual for

attempting to stay alive, even when the state

itself is not ready, willing, or capable of

assuming that responsibility by substituting its

own strong arm for that of the prisoner-

victim.

Rowe, 17 F.3d 1055-56 (Ripple, J., dissenting).

Lack of protection by prison authorities is "a situation

that, the cases of this court [the Seventh Circuit] make clear,

occurs with some frequency." Rowe, 17 F.3d at 1055

(Ripple, J., dissenting). | Because of the exceptional

importance of the issue presented, and its impact on the lives

of prisoners and the conduct of prison administration, this

Court should grant certiorari and, for the first time, hold that

the right to self-defense is fundamental and extends to

prisoners facing serious injury or death.

14

CONCLUSION

For the foregoing reasons, Petitioner John S. Rowe

respectfully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals

for the Seventh Circuit.

Respectfully submitted,

August 1, 1994 Hamid R. Kashani

Suite 600

445 N. Pennsylvania Street

Indianapolis, IN 46204

317/ 632-1000

Counsel of Record

Richard A. Waples

Suite 911

445 N. Pennsylvania Street

Indianapolis, IN 46204

317/ 635-4059

Attorneys for Petitioner

15

APPENDIX

The Court of Appeals’ Opinion in

Rowe v. DeBruyn, 17 F.3d 1047

ee A EA AS ated OS ee ee a-1

The Court of Appeals’ Judgment ............ a-18

The Court of Appeals’ Order on Petitions for

Rehearing with Suggestion for Rehearing

En Banc and for Rehearing ............. a-19

The Court of Appeals’ Amended Order on

Petitions for Rehearing with Suggestion

for Rehearing En Banc and for Rehearing .... a-21

Sie Dieirect Comets amemiemt =... a-23

The District Court’s Entry of Findings of

Fact and Conclusions of Law on Motion

for Summary Judgment and Order

Directing Entry of Judgment ............ a-24

a-i

(REPRODUCED, REPORTED AT 17 F.3D 1047)

In the

United States Court of Appeals

for the Seventh Circuit

No. 93-1141

JOHN S. ROWE,

Plaintiff-Appellant,

V.

H. CHRISTIAN DEBRUYN,_” Individually and in his official capacity as

Commissioner, Indiana Department of Corrections, JACK R.

DUCKWORTH, Individually and in his official capacity as

Superintendent, Indiana State Reformatory, MICHAEL J. WATSEN,

Individually and in his official capacity as Correctional Lieutenant and

the Chair of the Conduct Adjustment Board, Indiana State

Reformatory, LACY MorRIS, Individually and in his official capacity

as Correctional Officer and Member of the Conduct Adjustment

Board, Indiana State Reformatory, and RICK L. ROBINSON,

Individually and in his official capacity as an employee and member

of the Conduct Adjustment Board, Indiana State Reformatory,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 91 C 1723 - John D. Tinder, Judge.

ARGUED OCTOBER 26, 1993 -- DECIDED MARCH 2, 1994

"H. Christian DeBruyn is substituted for his predecessor, James E. Aiken,

as Commissioner of the Indiana Department of Correction pursuant to

Fed.R.App.P. 43.

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Before ESCHBACH, RIPPLE, and KANNE, Circuit Judges.

>at 2>KANNE, Circuit Judge. When this case arose, John

Rowe was a prisoner at the Indiana Reformatory at Pendleton. On

July 29, 1991, prison officers charged Rowe with hitting another

inmate, Michael Evans, on the head with a commissary issued

"hot pot." Rowe was brought before a Conduct Adjustment Board

("CAB"), consisting of appellees Michael Watsen, Lacy Morris,

and Rick Robinson. The CAB found that Rowe had violated

prison rules by committing battery, but also found mitigating

circumstances because Rowe acted in self-defense. The CAB

therefore ordered Rowe to serve one year in disciplinary

segregation, but then suspended the penalty of segregation.

Rowe’s predicament began early in July 1991, when the

Reformatory transferred Michael Evans to a cell adjacent to

Rowe’s cell. Rowe complained to prison staff about Evans’ new

cell assignment, apparently because he felt that Evans’ proximity

might cause trouble. Rowe’s fears were soon substantiated. On

July 18, Evans wrote Rowe a note demanding that Rowe go to

Evans’ cell the next morning and engage in sexual activities with

him. In the note, Evans accused Rowe of sexually enticing him

and threatened that if Rowe did not meet Evans’ aroused

expectations, "someone will get hurt and perhaps even die."

The next morning during "breakfast feed," Evans entered

Rowe’s cell. Rowe claims that Evans physically attacked him and

attempted to rape him. Rowe yelled out for help, and in an

alleged attempt to repel Evans, struck him repeatedly with the

unheated hot pot. Another prisoner, Richard Perez, hearing

shouts from Rowe’s cell, ran in to break up the fight. He found

the two men struggling. Perez pulled Evans from Rowe and then

helped Rowe push Evans out of the cell. All three men were

eventually disciplined.

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Before the CAB, Rowe contended that he did not commit

battery in violation of prison rules, on the ground that he acted in

self-defense. The CAB found that Rowe had violated prison rules

"regardless of [his] self-defense plea," » at 3»reasoning that the

Indiana Department of Corrections ("IDOC") does not recognize

self-defense as a complete defense in a prison disciplinary

proceeding. The CAB did acknowledge, however, that

self-defense can be a mitigating factor, and it found that the

circumstances surrounding the Evans incident mitigated Rowe’s

penalty of segregation.

Rowe sued various prison officials pursuant to 42 U.S.C. §

1983, claiming that the IDOC’s policy of denying prisoners the

right to raise self-defense as a complete defense in disciplinary

hearings deprived him of due process of law under the federal

Constitution.' The district court granted the prison officers’

motion for summary judgment, holding that because Rowe’s

penalty of segregation was suspended, the adverse disciplinary

ruling against Rowe implicated no protected liberty interest under

the Fourteenth Amendment. The district court alternatively held

that even if the defendants deprived Rowe of a protected liberty

interest, the procedures attendant upon the deprivation were

reasonably related to "an essential penological objective" and thus

were constitutionally sufficient.

Discussion

The Fourteenth Amendment prohibits a state from "depriv[ing]

any person of life, liberty, or property, without due process of law

" We begin by noting several principles that govern our

review of prisoners’ constitutional claims. A prisoner is "not

‘In addition to his due process claim, Rowe also alleged in his complaint that

the Department of Correction’s policy violated his Eighth Amendment rights;

however, Rowe does not raise this issue on appeal.

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wholly stripped of constitutional protections when he is imprisoned

for crime," Wolff v. McDonnell, 418 U.S. 539, 554, 94 S.Ct.

2963, 2975 (1974), and, specifically, he does retain some due

process rights under the Fourteenth Amendment. See, e.g., id.

"There is no iron curtain drawn between the Constitution and the

prisons of this country." /d. Imprisonment, >» at 4»however,

necessarily entails that an inmate lose many of the rights ordinary

citizens enjoy. /d.; Hudson v. Palmer, 468 U.S. 517, 525, 104

S.Ct. 3194, 3199 (1984). Furthermore, prisons must be able to

curtail a prisoner’s constitutional rights not only to further

correctional goals, such as retribution or deterrence, but also to

serve institutional objectives, the most basic of which is the

internal security of the prisons themselves. See Pell v. Procunier,

417 U.S. 817, 823-24, 94 S.Ct. 2800, 2804 (1974).

We base our review of prison discretion upon the recognition

that a prisoner’s liberty interests are significantly restricted by the

fact of his incarceration, and that prison officials must have broad

discretion to dictate policies that promote order and safety for

inmates and correctional staff. "Running a prison is an

inordinately difficult undertaking that requires expertise . . .

peculiarly within the province of the legislative and executive

branches of government. . . . [S]eparation of powers concerns

counsel a policy of judicial restraint. Where a state penal system

is involved, federal courts have . . . additional reason to accord

deference to the appropriate prison authorities." Turner v. Safley,

482 U.S. 78, 85-86, 107 S.Ct. 2254, 2259 (1987).

With these principles in mind, we consider whether prison

officials impermissibly infringed Rowe’s Fourteenth Amendment

rights when they denied him the right to assert self-defense as a

Se nese

complete defense to culpability ina CAB disciplinary proceeding.”

Although the district court decided Rowe’s claim as if it were a

procedural due process claim,’ »at 5»we understand Rowe’s

constitutional challenge to fall under the rubric of substantive due

process.

For clarity, we should identify the kinds of claims that may

arise when, as Rowe does in this case, an inmate simply alleges

that a prison policy "deprives him of his due process rights under

the Fourteenth Amendment." In a previous prisoners’ rights case,

we noted that "the due process clause of the fourteenth amendment

is the source of three separate constitutional protections that may

serve as the basis of a section 1983 claim against the state and its

agents and employees." Colon v. Schneider, 899 F.2d 660, 666

(7th Cir. 1990).

First, the Clause incorporates specific protections defined in

the Bill of Rights . . . . Second, the Due Process Clause

contains a substantive component that bars certain arbitrary,

*Given our holding, we need not and hence do not reach Rowe’s arguments

regarding whether the CAB found that Rowe used excessive force, and whether

the prison officials were qualifiedly immune from suit.

*The district court’s findings of fact contained the "related to legitimate

penological interests" test associated with substantive due process and Bill of

Rights claims, see e.g., Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987)

(fundamental right to marry); Hadi v. Horn, 830 F.2d 779 (7th Cir.1987) (First

Amendment free exercise); however, the court explicitly rests its holding on

procedural due process grounds, and cites only procedural due process cases,

Casteneda v. Henman, 914 F.2d 981 (7th Cir.1990), cert. denied, 111 S.Ct.

| 1085 (1991), Gaston v. Taylor, 946 F.2d 340 (4th Cir.1991) (en banc), Kentucky

4 Dept. of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904 (1989), and

Pardo v. Hosier, 946 F.2d 1278 (7th Cir.1991), as support.

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wrongful government actions "regardless of the fairness of the

procedures used to implement them." Daniels v. Williams,

474 U.S. 327, [337-38, 107 S.Ct. 677, 677-78 (1986)

(Stevens, J., concurring)]. As to these two types of claims,

the constitutional violation actionable under § 1983 is complete

when the wrongful action is taken... . The Due Process

Clause also encompasses a third type of protection, a

guarantee of fair procedure. A § 1983 action may be brought

for a violation of procedural due process, but . . . [ijn

procedural due process claims, the deprivation by state action

of a constitutionally » at 6» protected interest in "life, liberty,

Or property" is not in itself unconstitutional; what is

unconstitutional is the deprivation of such an interest without

due process of law .... [/d.] The constitutional violation

actionable under § 1983 is not complete when the deprivation

occurs; it is not complete unless and until the State fails to

provide due process.

Colon, 899 F.2d at 666 (citing Zinermon v. Burch, 494 U.S..113,

110 S.Ct. 975 (1990)).

In this case, clearly Rowe does not allege that the right of

self-defense is in the Bill of Rights, incorporated by the Fourteenth

Amendment to apply to the States. Rowe also does not claim that

the prison could deprive him of his right of self-defense so long

as they provided him with notice and a hearing; in fact, our

review of the record indicates he did not present any evidence of

insufficient process at all.

Rather, he maintains that the IDOC’s policy deprived him of

a "fundamental liberty," and that "no man should be wrongfully

convicted to satisfy the security concerns of a governmental

entity." Thus, Rowe is actually arguing against the state’s ability

to deprive him of his right to claim self-defense at all. Such a

claim is most properly characterized as substantive due process.

See Colon, 899 F.2d at 670-71 (holding that prisoner who alleged

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Fourteenth Amendment violation but who could not prove

constitutionally deficient process actually stated a substantive,

rather than procedural, due process claim). See also Daniels y.

Williams, 474 U.S. at 339, 106 S.Ct. at 679 (Stevens, J.,

concurring) ("[A] complaint does not state a valid procedural due

process objection--and a valid § 1983 claim--if it does not include

a challenge to the fundamental fairness of the State’s

procedures.").

Rowe principally suggests that the constitutional right to

self-defense for prisoners derives from one of the enumerated

defenses to culpability set forth as a part of the Indiana Criminal

Code, Ind.Code Ann. § 35-41-3-2. However, Rowe also refers to

the right to self-defense as an > at 7> "essential" or "basic" liberty,

one that "predates all laws known to . . . mankind." We infer,

that by using such terms, Rowe also urges the position that the

right to self-defense is a fundamental right without a specific

textual basis, inherent in the Due Process Clause itself.

If found to exist, such constitutional rights we review

according to the standard set out in Hadi yv. Horn, 830 F.2d 779

(7th Cir. 1987). "Under this standard, ’when a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid

if it is reasonably related to legitimate penological interests.’" Jd.

at 783-84 (quoting Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254

(1987); O’Lone v. Shabazz, 482 US. 342, 107 S.Ct. 2400

(1987)).

First, we must examine whether there exists a constitutional

right of self-defense. We believe that Rowe’s argument regarding

the provision in the Indiana Criminal Code, Ind.Code Ann. §

35-41-3-2, which provides that "[nJo person in this state shall be

placed in legal jeopardy of any kind whatsoever for protecting

himself or his family by reasonable means necessary," is

misguided. While it is true that in procedural due process claims,

"[a] liberty interest . . . may be created by statute or binding

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administrative regulation," Castaneda v. Henman, 914 F.2d 981,

983 (7th Cir. 1990), it is because in those claims, the deprivation

of a liberty interest itself is not unconstitutional. In procedural

due process, it is the lack of predeprivation procedure that offends

the Constitution. See, Daniels v. Williams, 474 U.S. at 337, 106

S.Ct. at 678 (Stevens, J., concurring) (in procedural due process,

"the deprivation may [even] be entirely legitimate--a state may

have every right to discharge a teacher or punish a student--but the

State may nevertheless violate the Constitution by failing to

provide appropriate procedural safeguards."). This is not true in

Rowe’s case, which supposedly challenges the violation of a

substantive federal right.

In Colon v. Schneider, 899 F.2d at 660, we held that a

prisoner who alleged that he was maced in violation of the

Wisconsin Administrative Code could not successfully »at

8> "transmute [that] violation of state law into a constitutional

violation" by claiming that the state regulation created a

substantive federal right under the Due Process Clause of the

Fourteenth Amendment. Colon attempted to bring his § 1983

action under the doctrine of procedural due process; however, he

failed to allege that the state deprived him of any constitutionally

required procedural protections. The court thus held that Colon

had stated a substantive, rather a procedural, claim. The court

then noted that the actions of a state entity are:

subject to constitutional infirmity to the same but no greater

extent than if the action were taken by the state legislature. Its

legality under the state statute can neither add to nor subtract

from its constitutional validity. Mere violation of a state

statute does not infringe the federal Constitution. And state

action, even though illegal under state law, can be no more or

less constitutional under the Fourteenth Amendment than if it

were sanctioned by the state legislature.

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Id. at 672 n. 19 (quoting Snowden y. Hughes, 321 U.S. 1, 11, 64

S.Ct. 397, 402 (1944)).

The flaw in Rowe’s claim is very similar to the one in Colon.

As in that case, appellant’s reliance here on Ind.Code § 35-41-3-2

is merely tantamount to alleging that the appellees have violated

state law. "The violation of state law is not itself the violation of

the Constitution." Archie v. City of Racine, 847 F.2d 1211, 1217

(7th Cir. 1988) (en banc), cert. denied, 489 U.S. 1065, 109 S.Ct.

1338 (1989). We need not decide whether § 35-41-3-2, which

relates to criminal prosecutions, actually creates a right to

self-defense for prisoners in administrative disciplinary hearings,

in order to decide that a state statute is insufficient to

“constitutionalize" the right allegedly embodied in it. Accord>at

9>ingly, we hold that the Indiana Statute cannot create a

substantive constitutional right to self-defense.

Next, we consider if the right to self-defense is a fundamental

constitutional right within the Due Process Clause itself. We

conclude that it is not. First, we find no precedent establishing a

“We note that although Rowe has complained that the conduct of prison

officials denied him a statutory defense Provided in Indiana’s criminal code, he

has not raised a state law claim in this case. Rowe alleges only constitutional

violations by the appellees under § 1983.

Even if Rowe had tried to raise a state law claim in this case, we would not

have been in a position to entertain it. This is because the Supreme Court has

held that the Eleventh Amendment bars “federal suit{s} against state officials on

the basis of state law . . . when... . the relief sought and ordered has an impact

directly on the State itself." Pennhurst State School & Hosp. v. Halderman, 465

U.S. 89, 104 S.Ct. 900 (1984). Because Rowe is challenging the IDOC’s

self-defense policy as well as the CAB’s adverse ruling, the relief Rowe requests

would clearly have a direct effect on the State. Thus, in this case, had Rowe

actually sought relief based on § 35-41-3-2 we would have been compelled to

dismiss his claim, because under Pennhurst, "we lack the authority to direct state

Officials to comply with state law.” Archie, 847 F.2d at 1216.

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constitutional right of self-defense in the criminal law context, see

White v. Arn, 788 F.2d 338 (6th Cir. 1986), cert. denied, 480

U.S. 917, 107 S.Ct. 1370 (1987) (holding that in criminal cases,

there is no constitutional right to self-defense founded in the

Eighth, Ninth, and Fourteenth Amendments, and that a state may

require a defendant to prove self-defense as an affirmative defense

to obtain acquittal), although some courts have commented on the

matter, see generally, Griffin v. Martin, 785 F.2d 1172, 1187 n.37

(4th Cir.), aff'd & op. withdrawn, 795 F.2d 22 (1986) (en banc),

cert. denied, 480 U.S. 919, 107 S.Ct. 1376 (1987) (stating in

dictum, "It is difficult to the point of impossibility to imagine a

right in any state to abolish self defense altogether, thereby leaving

one a Hobson’s choice of almost certain death through violent

attack now or statutorily mandated death through trial and

conviction of murder later."); Isaac v. Engle, 646 »at 10> F.2d

1129 (6th Cir. 1980) (en banc) (Merritt, J. dissenting on other

grounds), rev’d, 456 U.S. 107, 102 S.Ct. 1558 (1982) ("I believe

that the Constitution prohibits a state from eliminating the

justification of self- defense from its criminal law .. . .").

Furthermore, even a substantive due process right that has

been clearly established in Fourteenth Amendment criminal

jurisprudence may not necessarily apply to prison inmates in

disciplinary proceedings. "Prison disciplinary proceedings are not

part of a criminal prosecution, and the full panoply of rights due

a defendant in such proceedings does not apply." Wolff, 418 U.S.

at 556, 94 S.Ct. at 2975. The Supreme Court has "settled that a

prison inmate ’retains those [constitutional] rights that are not

inconsistent with his status as a prisoner or with the legitimate

penological objectives of the corrections system.’" Turner, 482

U.S. at 96, 107 S.Ct. at 2265 (quoting Pell v. Procunier, 417

U.S. at 822, 94 S.Ct. at 2804).

Given that there is virtually no support for such a judicially

created constitutional right in the criminal law, we believe that

manufacturing such a right for application in non-criminal, prison

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disciplinary proceedings is even less justified. This is particularly

so where prison authorities daily face an intractable problem of

violence within the prison walls. A right that threatens to

undermine prison discipline by encouraging inmates to combat

violence with more violence subverts a core prison function of

ensuring order and safety within the institution. Without

disputing or passing on the primacy of the "right" of self-defense

in a criminal law context, we determine that in view of our

deference to the administrative discretion of prison authorities,

prisoners do not have a fundamental right to self-defense in

disciplinary proceedings.

Even if Rowe did have a constitutional right of self-defense,

the IDOC’s policy to deny a prisoner the right to raise it as a

complete defense is reasonably related to legitimate penological

interests. The policy purportedly advances prison security by

discouraging all physical violence »at 11>amongst inmates. It

acts as a didact by warning prisoners that violence against another

inmate is a unilaterally condemned and perpetually sanctionable

violation of prison rules. It also acts as a deterrent because a

prisoner who is caught fighting cannot reliably exculpate himself

later with a claim of self-defense. In addition, the IDOC’s policy

does not leave a prisoner with a genuine claim of self-defense

without an alternative means of raising the defense in a CAB

proceeding, if a disciplinary charge is brought against him. The

IDOC policy allows a CAB to consider self-defense in mitigation.

In this case, the mitigating factor of self-defense led to a

suspension of Rowe’s disciplinary Segregation, so that the record

of rule violation and the possibility of penalty reinstatement were

the only consequences Rowe suffered from the CAB’s adverse

finding. Given that prison security and the reduction of violence

are certainly legitimate penological interests, and that appellees’

self-defense policy does not absolutely deprive a prisoner of his

ability to prove and benefit from a claim of self-defense, we

conclude that the IDOC’s policy would not have impermissibly

infringed Rowe’s constitutional rights.

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Il.

There is a way in which Rowe’s claim may be cast as a

procedural due process claim. We may convert all of Rowe’s

arguments for the right to self- defense into an allegation that the

CAB proceeding itself was constitutionally deficient procedure

because it did not admit self-defense as a complete defense. None

of the parties seem to view the issue in this way in their briefs.

As we mentioned above, Rowe makes no argument that he

received constitutionally deficient procedure before the appellees

deprived him of a protected liberty interest. However, the district

court bases its findings at least in part on procedural due process

grounds, so we will briefly analyze Rowe’s claim from a

procedural viewpoint.

In Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454,

109 S.Ct. 1904 (1989), the Supreme Court set out > at 12>a two

step analysis for reviewing the procedural due process claims of

prisoners. "[T]he first [step] asks whether there exists a liberty or

property interest which has been interfered with by the State; the

second examines whether the procedures attendant upon that

deprivation were constitutionally deficient." Jd. at 460, 109 S.Ct.

at 1908.

The district court held that because Rowe’s penalty had been

suspended, and he "suffered no tangible punishment as a result of

the disciplinary proceeding,” the CAB’s sanction did not implicate

a protected liberty interest. We disagree that Rowe’s penalty of

one year of disciplinary segregation was insufficient to trigger the

procedural protections guaranteed by the Fourteenth Amendment.

In our view, Rowe’s punishment, although suspended, constitutes

"consequences visited on the prisoner that are qualitatively

different from the punishment characteristically suffered by a

person convicted of crime." Vitek v. Jones, 445 U.S. 480, 493,

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100 S.Ct. 1254, 1263 (1980). The case the district court cites,

Gaston v. Taylor, 946 F.2d 340 (4th Cir. 1991) (en banc), is

inapposite here. In Gaston, the prisoner received a 15 day

segregation penalty that was suspended contingent on the

requirement that the prisoner remain on good behavior for 90

days. Rowe’s penalty was a full year of segregation that will not

be forgiven or withdrawn for any reason until the end of his

prison time. We do not think that prison officials may find a

prisoner in violation of prison rules, then subject him to the

open-ended threat of a year of disciplinary segregation without

implicating a protected liberty interest.

We thus turn to examine whether Rowe received

constitutionally sufficient procedure. The only complaint we can

divine Rowe as having with the CAB proceeding is that he was

unable to assert self-defense as a complete defense. He received

notice, a hearing, and a written statement of evidence relied upon

and reasons for the disciplinary action.

"Due process is a flexible concept, the import of which is to

provide an opportunity to be heard." Castaneda v. rat

13> Henman, 914 F.2d 981, 985 (7th Cir. 1990). The Supreme

Court set the standard governing the procedural protections

required by the Due Process Clause in Mathews v. Eldridge, 424

U.S. 319, 96 S.Ct. 893 (1976). Mathews established that due

process analysis must "weigh the risk of an erroneous deprivation

of [a private interest] through the procedures used" and “the

Government’s interest, including the function involved and the

fiscal and administrative burdens that the additional or substitute

procedural requirement would entail." /d. at 335, 96 S.Ct. at

903. Rowe may be said to have been deprived of his opportunity

to be heard with regard to his defense of self-defense. However,

the IDOC’s pre-punishment procedures accommodated Rowe by

allowing him to raise self-defense in mitigation. Thus, Rowe was

not wholly deprived of the defense of self-defense--indeed, he was

allowed to argue and present evidence on the issue. Rowe was

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barred simply from using self-defense as a complete justification

to his disciplinary charge of battery. This accommodation of

Rowe, weighed against the IDOC’s interest in refusing to

recognize self-defense as a complete defense in order to discourage

prison violence, allows the self- defense policy to survive

constitutional scrutiny. We conclude that even if Rowe were to

have stated a procedural due process claim, the IDOC’s policy

regarding self-defense does not render the CAB proceeding

insufficient procedure.

Conclusion

For the foregoing reasons, the district court’s grant of

summary judgment to the appellees is AFFIRMED.

> AT 14>RIPPLE, Circuit Judge, dissenting.

While reciting the admonition of Wolff v. McDonnell, 418

U.S. 539, 555, 94 S.Ct. 2963, 2974 (1974), that "a prisoner is not

wholly stripped of constitutional protections when he is imprisoned

for crime," and reminding us that there "is no iron curtain drawn

between the Constitution and the prisons of this country," id. at

555-56, the court today holds that the Constitution of the United

States permits a state to leave, under all circumstances, an

incarcerated person without any lawful recourse against even the

most inhuman and vile attack on that person’s life or bodily

integrity. It sanctions the decision of the state government of

Indiana to require that any person incarcerated under its authority

submit, no matter what the circumstances, to any threat to life or

bodily integrity without any recourse to self-defense of any kind.

This holding renders the phrases of Wolff meaningless poetry.

I do not believe that it is hyperbole to characterize the position

of the majority as a novel one. As the majority implicitly admits,

no court has ruled directly on whether the state may, consistent

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with the due process clause, impose, as a matter of absolute

liability, a sanction for protecting oneself from death or bodily

harm. There is indeed authority for the proposition that there is

no “constitutional right of self-defense, founded in the Eighth,

Ninth, and Fourteenth Amendments, which an accused cannot be

required to prove." White v. Arn, 788 F.2d 338, 347 (6th Cir.

1986), cert. denied, 480 U.S. 917 (1987). However, as even the

majority seems to acknowledge, the question of the allocation of

burden of proof, the issue before the court in White and similar

cases, is different from the issue of whether the state can require

someone to accept grievous bodily injury or even the possibility

of death as the price for not incurring criminal or quasi-criminal

liability. As Judge Murnaghan of the Fourth Circuit has written:

It is difficult to the point of impossibility to imagine a right in

any state to abolish self defense altogether, thereby leaving

one a Hobson’s choice of almost cermat 15>tain death

through violent attack now or statutorily mandated death

through trial and conviction of murder later.

Griffin v. Martin, 785 F.2d 1172, 1187 n.37 (4th Cir.), a 'd by

an equally divided court and op. withdrawn, 795 F.2d 22 (1986)

(en banc), cert. denied, 480 U.S. 919 (1987). See also John C.

Jeffries, Jr. & Paul B. Stephan III, Defenses, Presumptions and

Burden of Proof in the Criminal Law, 88 Yale L.J. 1325, 1366-79

(1979) (suggesting that self-defense is so critical to the concept of

criminal responsibility and has such substantial effects on a

defendant’s liberty that to allow a conviction where reasonable

doubt as to self-defense remains would be inconsistent with the

fundamental notions of fairness that underlie the State’s duty to

establish criminal liability).

My brothers make the further point, however, that the

recognition of self-defense in the prison environment poses special

problems for the security of the institution and that these

considerations justify the abrogation of the defense in the prison

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setting, even if such a defense must be recognized in other

contexts. We have, no doubt, a special obligation to be sensitive

to the legitimate requirements of prison security. This obligation

brings with it an obligation of deference to the informed judgment

of prison authorities with respect to matters of prison

administration, especially those issues that implicate matters of

security.' Yet, the Supreme Court has made it abundantly clear

that the mere invocation of "security" or "expertise" does not

permit a Judge of the Third Article to > at 16> walk away from the

issue.” There must be a demonstration on the part of the prison

authorities that the deprivation in question is indeed "reasonably

related to legitimate penological interests" of the corrections

system. Turner v. Safley, 482 U.S. 78, 89 (1987). The principal

reason offered by the majority has a superficial appeal. The

absence of self-defense, it maintains, fosters a peaceful

environment within the prison walls because it acts as a deterrent

to all violence. A prisoner caught fighting, it reasons, cannot

reliably exculpate himself later with a claim of self-defense. Yet,

we are told in the following sentence, a prisoner can claim

self-defense in mitigation of punishment, thus, it would seem,

destroying a good deal of the supposed deterrent.

See, e.g., Block v. Rutherford, 468 U.S. 576, 584-85 (1984) (stating that

security considerations are “peculiarly within the province and professional

expertise of corrections officials") (citations omitted); Pardo v. Hosier, 946 F.2d

1278, 1280 (7th Cir.1991) (stating that "prison administrators must be accorded

wide-ranging deference in the ... execution of policies and practices that in their

judgment are needed to preserve internal order and discipline and to maintain

institutional security") (citations omitted).

See, e.g., Procunier v. Martinez, 416 U.S. 396, 405 (1974) (stating that,

although courts must show deference in dealing with problems of prison

administration, "a policy of judicial restraint cannot encompass any failure to

take cognizance of valid constitutional claims whether arising in a federal or state

institution”).

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The difficulty with the majority’s position is its assumption

that the self-defense afforded to prisoners would have to be the

same as that available in the general community and could not take

into consideration the difficult circumstances of modern prison

life. It may well be that self-defense in the prison environment

ought to be available as a defense of extreme last resort and

available only when the prisoner can establish that he cannot rely

on the state to protect him, a situation that, the cases of this court

make clear, occurs with some frequency. But to forbid all

resistance to all threats to life and bodily integrity is not to ensure

a lack of violence, as the majority suggests, but to leave the weak

and the vulnerable the easy prey of the strong and the vicious. It

is indeed a novel proposition of constitutional law to hold that a

state, having deprived a person of liberty according to law, can

further punish that individual for attempting to stay alive, even

when »at 17> the state itself is not ready, willing, or capable of

assuming that responsibility by substituting its own strong arm for

that of the prisoner-victim.?

Tt ought to be pointed out that the Indiana legislature actually might afford

prisoners more protection than the majority assumes. Indiana Code Ann. §

35-41-3-2 states that "[nJo person in this state shall be placed in legal jeopardy

of any kind whatsoever for protecting himself or his family by reasonable means

necessary." Whenever we interpret a statute, we must begin with the plain

meaning of that statute. Notably, the Indiana statute reserves the right of

self-defense to any situation in which a “person” is put "in legal jeopardy of any

kind whatsoever." Ind.Code Ann. § 35-41-3-2 (emphasis added). As the majority

quite graphically points out in the latter part of it opinion, the consequences of

the disciplinary hearing in this case were indeed significant and can quite

comfortably fit with the term "legal jeopardy of any kind whatsoever." The

constraints of the Eleventh Amendment, as interpreted in Pennhurst State School

& Hospital v. Halderman, 465 U.S. 89, 106 (1984), preclude our entertaining

a Claim for relief based only on state law. Any remedy on this basis must be

sought in the Indiana courts.

a-17

(REPRODUCED)

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT - WITH ORAL ARGUMENT

Date: March 2, 1994

BEFORE: Honorable JESSE E. ESCHBACH, Circuit Judge

Honorable KENNETH F. RIPPLE, Circuit Judge

Honorable MICHAEL S. KANNE, Circuit Judge

No. 93-1141

JOHN S. ROWE,

Plaintiff - Appellant,

a,

H. CHRISTIAN DEBRUYN, individually and in his official

capacity as Commissioner of the Indiana Department of

Correction,

JACK R. DUCKWORTH, individually and in his official capacity

as Superintendent, Indiana State Reformatory,

MICHAEL J. WATSEN, individually and in his official capacity

as Correctional Lieutenant and the Chair of the Conduct

Adjustment Board, Indiana State Reformatory, et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Southern

District of Indiana, Indianapolis Division

No. 91 C 1723, John D. Tinder, Judge

The judgment of the District Court is AFFIRMED, in

accordance with the decision of this court entered on this date.

(1061-110393)

a-18

(REPRODUCED)

UNITED STATES COURT OF APPEALS

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

JOHN S. ROWE,

Plaintiff-Appeliant,

No. 93-1141

H. CHRISTIAN DEBRUYN,'

Individually and in his

official capacity as

Commissioner, et al.,

Defendants-Appellees.

For the Seventh Circuit

Chicago, Illinois 60604

May 3, 1994

Before

RICHARD A. POSNER, Chief Judge

WALTER J. CUMMINGS, Circuit Judge

WILLIAM J. BAUER, Circuit Judge

RICHARD D. CUDAHY, Circuit Judge

JESSE E. ESCHBACH, Circuit Judge

JOHN L. COFFEY, Circuit Judge

JOEL M. FLAUM, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

DANIEL A. MANION, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

Appeal from the United

States District Court

for the Southern

District of Indiana,

vy. Indianapolis Division.

No. 91 C 1723

John D. Tinder,

Judge.

ORDER

'H. Christian DeBruyn is substituted for his predecessor, James E.

Aiken, as Commissioner of the Indiana Department of Correction pursuant

to Fed. R. App. P. 43.

a-19

No. 93-1141 Page 2

On consideration of the petition for rehearing and suggestion

for rehearing en banc filed in the above-entitled cause, a vote of

the active members of the Court was requested, and a majority of

the judges? in active service have voted to deny rehearing en

banc. All of the judges on the original panel have voted to deny

the petition for rehearing. Accordingly,

IT IS ORDERED that the petition for rehearing with

suggestion for rehearing en banc is DENIED; IT IS FURTHER

ORDERED that the petition for rehearing is hereby DENIED.

2 Judges Cudahy, Flaum, Ripple, and Rovner voted to grant

rehearing en banc.

oe sek eee

ad elt

Se AWA BES CRM Se Cah SBI PAN

(REPRODUCED)

UNITED STATES COURT OF APPEALS

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

Hon.

JOHN S. ROWE,

Plaintiff-Appellant,

No. 93-1141

H. CHRISTIAN DEBRUYN, !

Individually and in his

official capacity as

Commissioner, et al.,

Defendants-Appellees.

For the Seventh Circuit

Chicago, Illinois 60604

May 5, 1994

Before

RICHARD A. POSNER, Chief Judge

WALTER J. CUMMINGS, Circuit Judge

WILLIAM J. BAUER, Circuit Judge

RICHARD D. CUDAHY, Circuit Judge

JESSE E. ESCHBACH, Circuit Judge

JOHN L. COFFEY, Circuit Judge

JOEL M. FLAUM, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

KENNETH F. RIPPLE, Circuit Judge

DANIEL A. MANION, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

Appeal from the United

States District Court

for the Southern

District of Indiana,

V. Indianapolis Division.

No. 91 C 1723

John D. Tinder,

)

)

)

)

)

)

)

)

)

) Judge.

)

AMENDED ORDER

'H. Christian DeBruyn is substituted for his predecessor, James E.

Aiken, as Commissioner of the Indiana D

to Fed. R. App. P. 43.

a-21

€partment of Correction pursuant

No. 93-1141 Page 2

The order issued in this case on May 3, 1994, is vacated and

the following order is entered.

On consideration of the petition for rehearing and suggestion

for rehearing en banc filed in the above-entitled cause, a vote of

the active members of the Court was requested, and a majority of

the judges” in active service have voted to deny rehearing en

banc. All of the judges on the original panel have voted to deny

the petition for rehearing. Accordingly,

IT IS ORDERED that the petition for rehearing with

suggestion for rehearing en banc filed by the plaintiff-appellant is

DENIED;

On consideration of the petition for rehearing filed by the

defendants-appellees in the above-entitled cause, all of the judges

of the original panel have voted to deny a rehearing. Accordingly,

IT IS FURTHER ORDERED that the petition for rehearing

filed by the defendants-appellees is hereby DENIED.

IT IS FURTHER ORDERED that the opinion issued on March

2, 1994 is hereby modified as follows:

The first full paragraph on page 12, next-to-last sentence,

strike the words "that will not be" and replace with ", and the

record does not reveal whether his penalty will be”.

> Judges Cudahy, Flaum, Ripple, and Rovner voted to grant

rehearing en banc.

a-22

(REPRODUCED)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

JOHN S. ROWE,

Plaintiff, Cause No. IP 91-1723-C

vs.

)

)

)

)

)

JAMES E. AIKEN, ef al., )

)

)

Defendants.

JUDGMENT

The Court having this day made its Entry in the above cause,

IT IS NOW THEREFORE ADJUDGED AND DECREED

that the defendants’ motion for summary judgment is GRANTED

and this cause of action is DISMISSED WITH PREJUDICE.

John Daniel Tinder [STAMPED]

JOHN DANIEL TINDER, Judge

United States District Court

Date: DEC 13 1992

Copies to:

Hamid R. Kashini

1800 N. Meridian Street

Suite 402

Indianapolis, IN 46202-1492

David A. Nowak

Deputy Attorney General

219 State House

Indianapolis, Indiana 46204

(REPRODUCED)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

JOHN S. ROWE,

)

)

Plaintiff, ) Cause No. IP 91-1723-C

vs. )

)

JAMES E. AIKEN, et al., )

)

)

Defendants.

' ENTRY OF FINDINGS OF FACT AND

CONCLUSIONS OF LAW ON MOTION FOR

SUMMARY JUDGMENT AND

ORDER DIRECTING ENTRY OF JUDGMENT

This cause is before the Court on the plaintiff's amended

complaint, on the defendants’ answer, on the defendants’ motion

for summary judgment and on the plaintiff's response to such

motion.

Whereupon the Court, having read and examined such

complaint, answer, motion and supporting and opposing materials,

and being duly advised, now makes the following findings of fact

and conclusions of law and Order.

Findings of Fact

1. Plaintiff John S. Rowe is an inmate at the Indiana

Reformatory. On July 29, 1991 Rowe was charged with

"committing battery upon another person." He was notified of the

charge and of his procedural rights in connection with it on July

a-24

30, 1991, at which time he requested a lay advocate and several

witnesses.

2. On August 1, 1991 a disciplinary hearing was held before

a conduct adjustment board consisting of Lt. Watson and

correctional officers Morris and Robinson. After considering

information from various sources, the conduct board found Rowe

guilty of the offense as charged. However, because of mitigating

circumstances, it imposed only one year of disciplinary segregation

and suspended the imposition of that sanction.

3. The conduct board found that, up to a point, Rowe acted

in self-defense. Beyond that point, however, Rowe’s action in

hitting his assailant passed from self-defense to battery.

4. In this action, filed December 30, 1991, Rowe claims that

the members of the conduct board violated his federally protected

rights by not recognizing his plea of self-defense. He has

: broadened his claim to include the former Commissioner of the

Indiana Department of Correction and the Reformatory

Superintendent as defendants. He seeks declaratory and injunctive

relief (expungement of the misconduct report and results) and

money damages. Each defendant is sued in both his individual

and official capacities.

i 5. The Department of Correction does not recognize, in

express terms, a defense of self-defense for a prison disciplinary

proceeding. The defendants’ rationale for this is that in the

correctional setting a contrary policy "would only encourage

offenders to use force in the name of self-defense and. . . would

only add to the number of assaults by inmates on other inmates."

The Department of Correction does recognize, however, that self-

defense can be a mitigating factor and takes that into consideration

in (a) determining what offense is appropriate and (b) determining

what sanction is appropriate. Self-defense, therefore, is not a

complete defense.

6. The defendants have appeared by counsel and seek the

: entry of summary judgment. The plaintiff has opposed the

motion. Any conclusion of law stated below, to the extent that it

Ue eee? ia

See re thre

Aa OE NE eae ES No A, ih, abe SPL hs MM Hd

constitutes a finding of fact, is herein incorporated by reference as

an additional finding of fact by the court.

Conclusions of Law

Based on the foregoing Findings of Fact, the Court now enters

the following Conclusions of Law.

1. The plaintiff's action is brought pursuant to 42 U.S.C. §

1983, which provides a cause of action to redress the violation of

federally secured rights by a person acting under color of state

law. Bell v. City of Milwauke* 746 F.2d 1205 (7th Cir. 1984).

The first inquiry in every Section 1983 case is whether there has

been the deprivation of a right secured by the Constitution or laws

of the United States, for without a predicate constitutional

violation, one cannot make out a prima facie case under § 1983.

Juriss v. McGowan, 957 F.2d 345, 349 n.1 (7th Cir. 1992), citing

Baker v. McCollan, 443 U.S. 137, 140 (1979).

2. The Fourteenth Amendment to the United States

Constitution prohibits a state from depriving all persons, including

inmates, of life, liberty, or property without due process. Wolff

v. McDonnell, 418 U.S. 539, 556 (1974). It is, of course, well

understood that state inmates suffering the loss of a protected

liberty or property interest have limited due process rights in the

context of prison disciplinary proceedings. Jd. at 561.

3. Under Wolff, the inmate must receive: (1) advance written

notice of the disciplinary charges; (2) an opportunity to call

witnesses and present documentary evidence in his defense if

consistent with institutional safety and correctional goals; and (3)

a written statement by an impartial factfinder of evidence relied on

and the reasons for disciplinary action. /d., 418 U.S. at 563-567.

In addition, there is a substantive component to the protections to

which an inmate is entitled. That is, there must be “some

evidence" supporting the decision made by the conduct board.

Superintendent, Massachusetts Correctional Institution, Walpole

v. Hill, 472 U.S. 445, 455 (1985)

4. These protections, however, are triggered not by the fact

of a disciplinary proceeding but by whether the disciplinary

a-26

sanction which he received implicated a protected liberty interest.

Castenada v. Henman, 914 F.2d 981, 983 (7th Cir. 1990), cert.

denied, 111 S. Ct. 1085 (1991).

Contrary to Castenada’s assertion, the due process

rights mandated by Wolff turn not upon the mere

fact of discipline, but upon whether the

disciplinary sanction imposed by prison officials

implicates an inmate’s liberty interest. Wolff, 418

U.S. at 557. Thus, the relevant question to this

appeal is not whether Castenada was in fact

disciplined but whether the disciplinary sanction

which he received implicated a protected liberty

interest.

Id.

5. In Gaston v. Taylor, 946 F.2d 340 (4th Cir. 1991) (en

banc), the court concluded that a prisoner could not claim

violation of Wolff where he received a suspended sentence of

isolation, requiring him to serve no time in isolation and bringing

about no change in the length or conditions of his original

sentence. The same reasoning applies here. Rowe suffered no

tangible punishment as a result of the disciplinary proceedings, nor

has he identified any impact of the misconduct finding on the

length of his confinement.

6. Even if the defendants deprived Rowe of a liberty interest,

it does not necessarily follow that his rights have been violated,

for the second question which must be answered in such an event

is “whether the procedures attendant upon that deprivation were

constitutionally sufficient." Kentucky Dept. of Corrections v.

Thompson. 109 S. Ct. 1904, 1908 (1989).

7. Wolff did not recognize, nor has its progeny established,

an inmate’s right to assert a claim of self-defense as a complete

defense to misconduct charges involving the use of violence. The

touchstone of due process is freedom from arbitrary governmental

action, Wolff, 418 U.S. at 558, but "[p]rison disciplinary

a-27

ciel

proceedings are not part of a criminal prosecution, and full

panoply of rights due a defendant in such proceedings does not

apply." Jd. at 556. The defendants have established, through

defendant Watsen’s affidavit, the DOC policy which does not

recognize self-defense as a complete defense is far from arbitrary.

On the contrary, it represents a reasonable, though not inevitable,

response to the intractable problem of violence within a prison’s

walls. As explained in Pardo v. Hosier, 946 F.2d 1278, 1280-81

(7th Cir. 1991):

In evaluating constitutional claims of prisoners,

we must balance the need to protect prisoners’

procedural rights against the need for prison safety

and security. Redding v. Fairman, 717 F.2d

1105, 1112 (7th Cir. 1983), cert. denied, 465

U.S. 1025, 104 S. Ct. 1282 (1984). In prison

disciplinary proceedings, “prison administrators

must be ’accorded wide-ranging deference in the

. execution of policies and practices that in

their judgment are needed to preserve internal

order and discipline and to maintain institutional

security." Mathews v. Fairman, 779 F.2d 409,

415 (7th Cir. 1985) (quoting Bell v. Wolfish, 441

U.S. 520, 547, 99 S. Ct. 1861 (1979)).

8. The DOC policy makes inmates aware the violence

directed to another person, including another inmate, is always a

violation of institutional rules. This policy is not arbitrary and is

certainly linked to an essential penological objective in a way

which should not be second-guessed by the courts.

9. In any event, this case does not squarely present the issue

of whether the DOC’s self-defense policy impermissibly impinges

on a due process interest, for Rowe’s conduct exceeded the limits

of self-defense. This renders the DOC’s policy regarding inmates’

claims of self-defense irrelevant to the disposition of Rowe’s case.

Further, although Rowe disputes the extent and need for the force

a-28

oe

CLE Lice cURL GREER NRIOL. ng sgh

BARE > let caret &

SES TT

he used, this is merely a matter of credibility which may not be

redetermined here. The role of a reviewing court is limited to

determining whether there was sufficient evidence to support the

committee’s decision. Superintendent v. Hill, 472 U.S. 445

(1985).

10. "The Constitution does not require that the evidence

relied upon logically preclude any conclusion but the one reached

by the disciplinary board... ." Culbert v. Young, 834 F.2d 624,

631 (7th Cir. 1987). Based on this standard, therefore, the Court

may not weigh the "conflicting" evidence which the conduct board

may have considered. Viens vy. Daniels, 871 F.2d 1328, 1334-35

(7th Cir. 1989): McKinney v. Meese, 831 F.2d 728 (7th Cir.

1987). Judicial review under Hill is limited. Rowe is not entitled

to a new trial or a de novo Opportunity to persuade a new

factfinder of what did or did not occur.

11. Summary judgment "shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A "genuine

issue of material fact exists only where ’there is sufficient evidence

favoring the nonmoving party for a jury to return a verdict for that

party." Dribeck Importers, Inc. v. G. Heileman Brewing Co.,

883 F.2d 569, 573 (7th Cir. 1989) (quoting Anderson vy. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986)). In considering such a

motion, the court must view all inferences in the light most

favorable to the nonmoving party. See Regner v. City of Chicago,

789 F.2d 534, 536 (7th Cir. 1986).

12. Rule 56(c) "mandates the entry of summary judgment,

after adequate time for discovery and upon motion, against a party

who fails to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial." Celotex Corp., 477

U.S. at 322. That is precisely the case here. Considering the

particular sanction which was imposed, Rowe’s claim fails at the

a-29

outset because he did suffer the loss of a protected liberty interest.

Beyond this, however, there was no arbitrary action in any aspect

of the charge, disciplinary proceeding or sanction involved in the

events identified in this action and there was no constitutional

infirmity in the proceeding which would entitle Rowe to relief in

this case. The defendants have shown that there is no genuine

issue as to any material fact and that they are entitled to judgment

as a matter of law.

ORDER

Based on the foregoing,

IT IS THEREFORE ORDERED that the defendants’ motion

for summary judgment is GRANTED. Judgment consistent with

this Entry shall now issue.

John Daniel Tinder [STAMPED]

JOHN DANIEL TINDER, Judge

United States District Court

Date: DEC 18 1992

Copies to:

Hamid R. Kashini

1800 N. Meridian Street

Suite 402

Indianapolis, IN 46202-1492

David A. Nowak

Deputy Attorney General

219 State House

Indianapolis, Indiana 46204

a-30