Phillip Wallace v. Merle D. Robinson, Zenon Symanski, Michael O'leary, and Michael P. Lane

914 F.2d 869, 1990 U.S. App. LEXIS 17172, 1990 WL 138888

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 26, 1990
• Docket: 88-1806
• Status: Published

Opinions

SNEED, Senior Circuit Judge.

Illinois state prisoner Phillip Wallace appeals the district court’s grant of summary judgment in favor of prison officials in his 42 U.S.C. § 1983 action alleging that his prison work transfer violated his due process rights. We affirm.

I.

FACTS AND PROCEEDINGS BELOW

Phillip Wallace is an inmate of Stateville Correctional Center (“Stateville”) in Joliet, Illinois. He had worked for about twenty months at the prison tailor shop, earning $100/month, until he was terminated from that position on April 29, 1986. Wallace filed suit under 42 U.S.C. § 1983 (1982) in federal district court against his tailor-shop supervisor, Merle Dean Robinson (“Robinson”) and three other prison and corrections’ department officials. The district court granted summary judgment to defendants.

On appeal, Wallace alleges that: (1) his termination was a disciplinary action, (2) prison officials failed to follow Illinois state regulations mandating certain procedures in disciplinary actions, and thereby (3) violated his due process rights. Specifically, Wallace alleges that he was terminated from his employment because his supervisor, Robinson, found homemade liquor (“hooch”) in a cabinet near Wallace’s work station. A termination following such an incident is disciplinary in nature, he insists, and triggered the protections articulated in Ill.Ann.Stat. ch. 38, ¶¶ 1003-8-7(b)(2), 1003-8-7(e)(6) (1982)¹ and Ill.Admin.Code tit. 20, § 504 (1985).²

The defendants take issue with Wallace’s characterization of the termination.³ They view the termination as a change in Wallace’s work assignment made necessary by a series of events that had led to increasingly poor relations between Wallace and his supervisor, Robinson. They allege that they sought to prevent further exacerbation of existing tensions. It follows, defendants argue, that the state statute and regulations cited by Wallace⁴ are not applicable. They claim that the applicable statutes and regulations, which pertain to prison work assignments, do not create a liberty or property interest in prison employment and provide prison officials with considerable discretion.⁵

The defendants set forth the following events. Wallace was suspected of assaulting another inmate on March 7, 1986. During a two-week investigation, he was not permitted to work. On his first day back from work, he did not return to his post after lunch. In the past, many employees had failed to return after lunch. During Wallace’s two-week absence, Robinson wrote a memorandum to the inmates instructing them to return to their stations after lunch. The memorandum was posted on the bulletin board. Reportedly, Robinson and Wallace engaged in a “heated discussion” over the application to Wallace of the policy set forth in the memorandum.⁶ Robinson recommended to the proper authorities that Wallace be terminated from the tailor shop assignment.

No action was taken by prison officials at that time. Several weeks later, Robinson found the hooch in a cabinet near Wallace’s work station. Although Robinson prepared an “incident” report concerning Wallace’s suspected involvement with the hooch, he did not prepare a “disciplinary” report.

On April 23, 1986, Wallace had a hearing before the Assignment Committee, after which he was instructed to continue working in the tailor shop. Six days later, April 29, 1986, Wallace was terminated from his position. The Committee subsequently stated in a memorandum:

The Committee voted to remove Wallace from the tailor shop. It was felt that such action was justified in order to preclude more serious problems between Wallace and Supervisor Robinson. However, this should not be construed as a disciplinary action and the inmate was advised that he has a right to file a grievance as he chooses.

As Wallace sees it, his termination was the direct result of the “hooch” incident which was never proven against him. The defendants, on the other hand, characterize Wallace’s termination as a disciplinary transfer caused by a deteriorating relationship between an employee and his supervisor.

On May 20, 1987, Wallace (after exhausting prison grievance procedures) filed a pro se complaint in federal court. Defendants moved for summary judgment on November 25, 1987. Unfortunately, neither party focused on the disciplinary versus nondisciplinary distinction below. In fact, the defendants in their motion for summary judgment stated: “Plaintiff was removed from his assignment in the tailor shop on April 16, 1986 because his supervisor found homemade alcohol (hooch) in a cabinet by his desk.”

Wallace, quite naturally, alleges that defendants’ summary judgment motion directly contradicts the position now taken on appeal. He also points out that the district court concluded that the reason for the termination was the “hooch” incident. Nonetheless, the district court, in granting defendants' motion for summary judgment, ruled that “plaintiff has no property/liberty interest in his assignment” and that “his reassignment was not done arbitrarily or capriciously.” Id. That is, the case was treated as a standard work reassignment. Our jurisdiction derives from 28 U.S.C. § 1291 (1988).

II.

STANDARD OF REVIEW

We review grants of summary judgment de novo. We review the record to determine whether there is “a genuine issue with regard to any material fact and whether the defendants were entitled to judgment as a matter of law.” Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir.1988). Furthermore, because Wallace “proceeded pro se in the district court, that court was obliged to read the complaint liberally.” Id.

III.

DISCUSSION

Due process rights protected by the Fourteenth Amendment, life, liberty, and property, arise from two sources: the Due Process Clause itself, and state law. See Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 1908-09, 104 L.Ed.2d 506 (1989); Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983); Harris v. McDonald, 737 F.2d 662, 664 (7th Cir.1984); Shango v. Jurich, 681 F.2d 1091, 1098-99 (7th Cir.1982).

A. Does the Due Process Clause Alone Create a Protectible Liberty Interest in the Work Assignments of Inmates?

The Supreme Court has explicitly “rejected the notion ‘that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause.’ ” Thompson, 109 S.Ct. at 1908 (quoting Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976)).

As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is 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. The Clause does not require hearings in connection with transfers whether or not they are the result of the inmate’s misbehavior or may be labeled as disciplinary or punitive.

Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976).

The Court has held that “prison officials have broad administrative and disciplinary authority over the institutions they manage and that lawfully incarcerated persons retain only a narrow range of protected liberty interests.” Hewitt, 459 U.S. at 467, 103 S.Ct. at 869. Thus, the Court has determined that the Due Process Clause does not create a right to parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979), to good-time credit, Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974), to avoid transfer from one correctional facility to another, Mea-chum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976), to remain in the general prison population and avoid administrative segregation, Hewitt, 459 U.S. at 468, 103 S.Ct. at 869, or to visitation, Thompson, 109 S.Ct. at 1909. In light of these precedents, it is clear that the Due Process Clause does not create a protecti-ble liberty interest in a particular work assignment of an inmate. Cf. Harris, 737 F.2d at 664 (there is no constitutionally based liberty interest requiring that inmates be provided due process prior to transfer from one correctional facility to another); Shango, 681 F.2d at 1098 (same).

B. Does Illinois State Law Create a Liberty Interest in a Prison Work Assignment, the Deprivation of Which Must Be Accompanied by Due Process of Law?7

“[S]tate law may create enforceable liberty interests in a prison setting.” Thompson, 109 S.Ct. at 1909. To create a protec-tible liberty interest, state statutes or regulations “must use ‘language of an unmistakably mandatory character, requiring that certain procedures “shall,” “will,” or “must” be employed ...,’ and that certain action will not be taken by prison officials ‘absent specified substantive predicates.’ ” Merritt v. Broglin, 891 F.2d 169, 172 (7th Cir.1989) (quoting Hewitt, 459 U.S. at 471-72, 103 S.Ct. at 871).

To determine whether Wallace’s transfer invoked a protectible liberty interest, we must first determine which statutes and regulations apply. If Wallace’s job transfer was disciplinary in nature, we apply Ill.Ann.Stat. ch. 38, fl 1003-8-7(b)(2) (1982) and Ill.Admin.Code tit. 20, § 504 (1985). If it is not, we apply Ill.Ann.Stat. ch. 38, ¶111003-12-1 and 1003-12-2 (Supp.1990) and Ill.Admin.Code tit. 20, § 420.30 (1985). This choice of law is at the center of the dispute between the parties. Our first task, therefore, is to consider whether Wallace has “affirmatively show[n] that there is a genuine issue for trial,” Merritt, 891 F.2d at 171, concerning whether his job transfer was disciplinary. If he has, we should reverse to permit an examination of the procedures employed by the prison officials to determine whether they meet the demands of the Due Process Clause. If not, we should affirm.

1. Was the Transfer Disciplinary?

We have previously held that “[i]n determining whether a prison official’s action is disciplinary in nature, [we] distinguish ] between ‘what is essentially a predictive decision based on assessment of a prisoner’s entire institutional record and a decision in response to a specific rule infraction.’ ” Mathews v. Fairman, 779 F.2d 409, 415 (7th Cir.1985) (quoting Shango v. Jurich, 681 F.2d 1091, 1103 n. 20 (7th Cir.1982)). Thus, in this case, we must determine whether the Assignment Committee’s transfer of Wallace from his tailor shop job was predictive in nature, that is, an attempt to prevent future problems, or whether it was intended as a punishment for a specific rule infraction.

Appellant correctly points out that the district court and appellees before the district court referred to the transfer as disciplinary. In our view they were incorrect in doing so. Neither the parties nor the district court focused attention on the subtle, but critical, distinction between predictive and disciplinary transfers. However, our review does not depend on the terminology used by the district court or the appellees before the district court. Rather, we examine the actual purposes underlying the prison administration’s decision to transfer Wallace from his tailor shop job. See Abdul-Wadood v. Duckworth, 860 F.2d 280, 285 (7th Cir.1988); Mathews v. Fairman, 779 F.2d 409, 415 (7th Cir.1985), (distinguishing between actions by prison officials taken for administrative versus disciplinary reasons); Shango v. Jurich, 681 F.2d 1091, 1103 n. 20 (7th Cir.1982) (same).

In Abdul-Wadood, we held that “the issue becomes whether the restrictions placed on [the inmate] were for the purpose of punishing him” or to prevent future problems within the prison. 860 F.2d at 285. (emphasis added).⁸ We noted that whether the loss of privileges resulting from the transfer were “qualitatively equivalent to that experienced by prisoners [transferred] for disciplinary reasons” is not dispositive in the determination of whether a transfer was or was not disciplinary in nature. Id. Administrative changes in inmate status within prison are often accompanied, necessarily, by a loss in privileges that may be similar to losses experienced by inmates who are being disciplined. See Hewitt v. Helms, 459 U.S. 460, 467-68, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). Yet, the similarity in loss of privileges does not, alone, transform a predictive, administrative transfer into a disciplinary one.

The most direct evidence we have of the prison administration’s purpose in this case consists of the documents produced by the various prison committees and boards that have reviewed Wallace’s transfer. In a memorandum of the Stateville Assignment Committee, dated May 1,1986, the Committee stated that it

voted to remove Wallace from the tailor shop. It was felt that such action was justified in order to preclude more serious problems between Wallace and Supervisor Robinson. However, this should not be construed as a disciplinary action ....

The Assignment Committee could not have been clearer. It viewed the relationship difficulties between Wallace and Robinson as serious, and it sought to prevent more serious problems from erupting. There are no contradictions in its report.

Appellant claims that these reasons were pretextual, and that the administration’s true purpose was disciplinary. This assertion is refuted by the conclusions of the Institutional Inquiry Board that reviewed Wallace’s grievance on May 29, 1986. The Board stated that it was “of the opinion inmate should be reviewed again by the Assignment Committee for possible placement on a job assignment that is comparable. to the one he lost.” The Board of Corrections Administrative Review Board agreed on August 28, 1986, and recommended that:

the Stateville administration provide a report of the follow-up action taken, to review inmate Wallace for a comparable assignment. This was indicated in the Institutional Inquiry Board report dated May 29, 1986.

To recommend comparable placement is not consistent with a punitive job transfer. Were it the latter, a demotion would be recommended. The most plausible explanation for the repeated recommendation that Wallace be given a comparable assignment is that his transfer was not disciplinary. Furthermore, the fact that prison administration did not issue a disciplinary report on the incident or on other “incidents” identified by Robinson as requiring discipline supports the administration’s claim that it viewed the problems as the result of a poor relationship between Wallace and Robinson rather than as blameworthy behavior on Wallace’s part. Finally, a review of the relational history between Wallace and Robinson reveals that the prison administration’s concern was not unreasonable — the relationship between the two was characterized by exacerbating tensions over an extended period of time. It was reasonable for prison authorities to act to prevent more serious problems from erupting. Prison officials may change an inmate’s work assignment, see Watts v. Morgan, 572 F.Supp. 1385, 1389-90 (N.D.Ill.1983) (transfer of work assignment to prevent inmate from developing familiarity with staff members), or other aspect of inmate status, see Mathews, 779 F.2d at 415-16 (transfer to maximum security unit to prevent escape), as a preventive measure.

Wallace has failed to produce sufficient evidence to show affirmatively that there is a triable issue of fact as to whether his transfer was or was not disciplinary in nature. Cf. id. at 416 (affirming grant of directed verdict in case with analogous fact pattern, concluding that appellant had not “produced sufficient evidence upon which a jury could properly find that [appellant’s] reassignment ... was a disciplinary action”).

2. Did the Non-Disciplinary Job Transfer Deprive Wallace of Liberty Without Due Process of Law?

Since Wallace’s transfer was not disciplinary in nature, the transfer does not invoke those Illinois statutory and regulatory protections, Ill.Ann.Stat. ch. 38, 111003-8-7(b)(2), Ill. Admin. Code tit. 20, § 504 (1985), that are triggered by disciplinary actions. Instead, we apply those code and regulatory provisions, Ill.Ann.Stat. ch. 38, ¶[¶ 1003-12-1 and 1003-12-2, III.Admin. Code tit. 20, § 420.30 (1985), that govern prison employment more generally.

In reviewing these provisions to determine whether they “ ‘create[ ] a protected liberty interest,’ ” we focus upon whether the provisions place “ ‘substantive limitations on official discretion.’ ” Thompson, 109 S.Ct. at 1909 (quoting Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983)); see also Merritt v. Broglin, 891 F.2d 169, 172 (7th Cir.1989). State law can create a protecti-ble liberty interest if it establishes “ ‘substantive predicates’ to govern official deci-sionmaking” and mandates “the outcome to be reached upon a finding that the relevant criteria have been met.” Thompson, 109 S.Ct. at 1909 (quoting Hewitt, 459 U.S. at 472, 103 S.Ct. at 871). “The existence of some standards or criteria to follow is not determinative; this court has noted a 'difference between criteria and binding rules of decision,’ only the latter being sufficient to create a liberty interest.” Merritt, 891 F.2d at 172 (quoting Miller v. Henman, 804 F.2d 421, 424 (7th Cir.1986), cert. denied, 484 U.S. 844, 108 S.Ct. 136, 98 L.Ed.2d 93 (1987)).

The law set forth in paragraph 1003-12-1 reads, in pertinent part:

The Department shall, in so far as possible, employ at useful work committed persons confined in institutions.... Such employment shall equip such persons with marketable skills, promote habits of work and responsibility and contribute to the expense of the employment program and the committed person’s cost of incarceration.

Ill.Ann.Stat. ch. 38, 111003-12-1 (Supp. 1990) (emphasis added). In Joihner v. McEvers, 898 F.2d 569, 571 (7th Cir.1990), we recently held that paragraph 1003-12-1 does not create a protected liberty interest. “It is clear from the language ... that the Department is given discretion over job assignment decisions.... [T]here is no mandatory language requiring a particular outcome.” Id.; see also Watts v. Morgan, 572 F.Supp. 1385, 1389 (N.D.Ill.1983). Rather, the use of the phrase “in so far as possible,” explicitly reserves discretion to prison authorities to balance employment considerations with other institutional needs. The language of paragraph 1003-12-2(a) also grants the Department of Corrections discretion in managing prison work programs such as the tailor shop where Wallace was employed. It reads, in pertinent part:

The Department may establish, maintain, train and employ committed persons in industries for the production of articles, materials or supplies for resale to authorized purchasers.

Ill.Ann.Stat. ch. 38, ¶ 1003-12-2(a) (emphasis added); see Watts, 572 F.Supp. at 1389.

Nor do the applicable regulations create a protectible liberty interest. Section 420.-30 sets forth, among other things, the Assignment Committee’s role in making job assignment recommendations and the inmate’s right to address the Assignment Committee.⁹ Its wording reveals that an inmate’s initial job assignment is discretionary: “Section 420.30 cannot conceivably be stretched to create a liberty or property interest” in that job assignment after it is implemented. Jackson v. O’Leary, 689 F.Supp. 846, 849 (N.D.Ill.1988). We conclude also that, section 420.40 of the regulations, which pertains most directly to a work assignment transfer such as the one at issue here, “leaves the decision to remove an inmate from a work assignment to the unfettered discretion of prison officials.” Jackson, 689 F.Supp. at 849. That section provides that:

A committed person may be removed from his assignment and/or reassigned by the Chief Administrative Officer or his designee. However, in the Adult Division, the Assignment Committee Chairman may upon approval of an Assistant Warden, remove or reassign a committed person. The Assignment Committee shall review such action taken by the Assignment Committee Chairman if requested to do so in writing by the committed person.

Ill.Admin. Code fit. 20, § 420.40 (emphasis added).

We hold that neither the cited statutes or regulations creates a protectible liberty interest in a prison work assignment. Therefore, we affirm the district court’s judgment.

Affirmed.

2 . Ill.Admin.Code tit. 20, § 504 (1985) sets forth the procedures for inmate discipline. Among the required procedures are the preparation of disciplinary reports, review of such reports, and a hearing before a determination of guilt and imposition of penalty. See IIl.Admin.Code tit. 20, §§ 504.20(a), 504.30(b)-(c), 504.60(a) (1985).

3 . In their brief, defendants concede that if the termination was disciplinary in nature, they “arguably should have afforded Wallace additional procedures."

4 . See supra notes 1-2.

5 . Specifically, the defendants cite Ul.AnniStat. ch. 38, ¶ 1001-1-1 etseq. (Supp.1990) and Ill.Admin.Code tit. 20, § 420.30 (1985).

6 . Apparently, Robinson accused Wallace of violating a policy of which he had notice. In response, Wallace argued that Robinson was obligated to point out the memo to him because Wallace had been absent when the notice was first promulgated.

7 . Appellant does not assert, and we therefore do not consider, whether a property interest protec-tibie by the Due Process Clause is implicated,

8 . In Abdul-Wadood, we implicitly rejected the test offered by Wallace and set forth previously by this court in Buise v. Hudkins, 584 F.2d 223, 229 n. 8 (7th Cir.1978), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1979). In Buise, we had stated that "whether a transfer is sufficiently punitive would not be whether the prison officials deemed it punitive. Rather it would be an inquiry into, among other things, the relative conditions in the institutions and the harms of dislocation itself, and how the inmate perceived them.” Id.

9 . This section reads, in pertinent part:

(a) The Assignment Committee shall, within 60 days following admission for adults, ... make a recommendation for the assignment of a committed person received at an assigned facility.

(d)A committed person may be given an opportunity to appear before and address the Assignment Committee whenever his case is being considered.

(e) Recommendations made by the Assignment Committee Chairman or the Committee shall be in writing.

(f) All recommendations are subject to review and approval by the Chief Administrative Officer or his designee.

Ill.Admin.Code tit. 20, § 420.30 (1985).