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WESTEFER v. SNYDER
725 F.Supp.2d 735 (2010)
United States District Court, S.D. Illinois.
July 20, 2010.
Q. And were you that way before you went to Tamms? A. No. Doc. 417 (Testimony of Joe Sorrentino) at 51. Plaintiff Clayton testified that, although he is no longer confined at Tamms, "it [confinement at Tamms] still bother me," and stated flatly that, as a result of his time at Tamms, "I don't trust nobody." Doc. 513 (Testimony of Leverne Clayton) at 6. Plaintiff Knox, a Tamms inmate for nearly eleven years, commented of his recent transfer out of the supermax prison, "I got to get readjusted to everything. Basically like a little child again. That's like I say it's kind of scary just being around people again. Having a cell mate again after 11 years." Doc. 417 (Testimony of Ted Knox) at 35-36. Finally, Plaintiff Bivens, who was an inmate at Tamms from July 1998 until December 2001, testified that as a result of his confinement in the supermax prison he has had ongoing difficulty with "not being able to look people in the face or in the eye when I'm speaking to them" as well as with a "depressive state" and "not being able to sleep" after he was transferred out of Tamms. Id. (Testimony of Aryules Bivens) at 23. In sum, it appears that the psychic toll exacted by long-term confinement in the intensely isolated circumstances of Tamms is, in many instances, a continuing one. In addition to being isolated in their cells up to twenty-four hours a day and forbidden to participate in any congregate inmate activities, Tamms inmates are isolated in other respects as well. For example, although the majority of Tamms inmates are from Chicago or the Chicago area, Tamms is located 360-370 miles from Cook County, Illinois, making it difficult for the families of inmates to visit their loved ones at the prison. See Doc. 144 (Complaint) at 7-8 ¶ 20; Doc. 148 (Answer) at 5 ¶ 20; Ten-Point Plan (Plaintiffs' Exhibit 7), Table 1; Doc. 267-3 (Welborn Orientation Presentation) at 7-8. Moreover, extremely strict limitations are placed on visits and telephone calls at Tamms. All prospective visitors must submit a visitor interview form, which must be approved by the Internal Affairs Office at Tamms before a visit is allowed; an appointment must be made for a specific date and time at least ten days in advance of the requested visit. See Tamms Inmate Orientation Manual (Plaintiffs' Exhibit 11) at 16-17. If a visitor is twenty minutes late for his or her scheduled visit at Tamms, the visit is subject to being cancelled. See Doc. 175 (Response to Request for Admissions) at 10 ¶ 41. All visits are non-contact, with inmates chained to the floor during visits and all conversation conducted through plexiglass windows via an intercom system; also, all non-legal visits are monitored by Tamms correctional personnel. See Ill. Admin. Code tit. 20, § 505.80(b)(2); Doc. 433 (Day 2 Trial Transcript) at 110; Tamms Inmate Orientation Manual (Plaintiffs' Exhibit 11) at 15;
Tamms Photographs (Plaintiffs' Exhibit 12); Doc. 144 (Complaint) at 8 ¶ 20; Doc. 148 (Answer) at 5 ¶ 20. Visits between an inmate and his attorney take place in a specialized, non-contact visiting room; a correctional officer is seated in a special area separate from the inmate and the attorney so that if papers need to be passed between the two, the officer may do that. See Doc. 433 (Day 2 Trial Transcript) at 110-11; Doc. 144 (Complaint) at 8 ¶ 22; Doc. 148 (Answer) at 5 ¶ 22. As to telephone privileges, Tamms inmates have none and may use the telephone only in emergencies and for legal matters; also, they may not initiate calls to an attorney. See Ill. Admin. Code tit. 20, § 505.80(a); Ten-Point Plan (Plaintiffs' Exhibit 7) at 22; Doc. 522 (Randle Testimony) at 32. Ronnie Carroll, who as already has been noted is a former Tamms inmate now housed at Pontiac, where he has telephone privileges, testified that "[a]t Tamms I was down there six years I never used the phone in any way, shape, or form." Doc. 514 (Carroll Testimony) at 40. Similarly, Johnny Almodovar testified that, following over eleven years of confinement at Tamms, he has been permitted to use the telephone only once, when his mother died. See Doc. 433 (Almodovar Testimony) at 63, 70. On the record before the Court, it is abundantly clear that the first of the three factors identified by the Wilkinson Court as relevant to the existence of a due process liberty interest in avoiding confinement in a supermax prison, severe limitations on all human contact, is present in this case. In an earlier decision in this case the United States Court of Appeals for the Seventh Circuit observed that, if Plaintiffs' allegations are true, "being confined to Tamms is to be subjected to virtual sensory deprivation, with prisoners forced to spend most days doing literally nothing but staring at the four blank walls of their cells." Westefer v. Snyder, 422 F.3d 570, 589 (7th Cir.2005). The record shows that this is indeed the case. The Court notes that a large population of Tamms inmates are poorly educated, if not illiterate, and therefore cannot beguile their time in isolation through activities like reading and letter-writing. See Ten-Point Plan (Plaintiffs' Exhibit 7) at 4 (Tamms inmates are less likely than inmates in other IDOC prisons to have a high school diploma or GED). For those inmates, the long hours that they must spend alone in their cells at Tamms must weigh especially heavily. With that observation, the Court turns to consideration of the other relevant factors identified in Wilkinson. b. Indefinite Duration of Placement at TammsAs already has been discussed, the second factor identified in Wilkinson as relevant to the existence of a liberty interest in avoiding confinement at a supermax prison is whether placement at such a prison is of indefinite duration. It is clear from the record that under existing IDOC procedures placement at Tamms is of indefinite duration and that inmates transferred to the prison know neither how long they will be confined there nor how they can effect transfer out of the prison through good behavior. According to George Welborn, who was closely involved in the design of Tamms and who served as the first warden of the supermax prison, when Tamms opened in 1998 his view and that of most IDOC officials was that an inmate assigned to the prison who behaved well should not stay more than a year at Tamms. See Doc. 267-3 (Welborn Orientation Presentation) at 3, 7-9; Welborn Deposition at 69-71. However, when Welborn retired in 2002, most of the inmates who had been transferred to Tamms when it opened were still there. See Welborn
Deposition at 71-72. It appears that the change in policy concerning the duration of an inmate's stay at Tamms may have come about in part as a result of a decision by IDOC officials to require Tamms inmates to renounce their gang affiliations as a prerequisite for transferring out of the supermax prison. As IDOC Director Randle acknowledged in his testimony before the Court, for many Tamms inmates renunciation of gang affiliations would be "an automatic death sentence." Doc. 522 (Randle Testimony) at 23. A current Tamms inmate, Johnny Almodovar, explained that inmates who participate in the gang renunciation procedure may be perceived as informers by other inmates:
1. The Court notes that there is also a minimum security prison at Tamms; all references to Tamms in this Order are to the supermax prison there.
2. This perhaps is the place to note that this Order is intended to be a concise account of the bench trial conducted on the procedural due process claims in this case, and to that end only matters deemed by the Court to be credible, material, and relevant will be reported. The reader should presume that evidence omitted from the Court's findings of fact was considered by the Court to be irrelevant or in any event less persuasive than competing evidence. The Court notes in passing that, in addition to alleging violations of procedural due process, Plaintiffs Von Perbandt, Taylor, Sparling, Sorrentino, Santiago, V. Rodriguez, E. Rodriguez, Lasley, Knox, Horton, Harper, Felton, Combs, Clayton, Chapman, Burrell, Bivens, and Cunningham also assert claims under 42 U.S.C. § 1983 alleging that they were assigned by Defendants to the supermax prison at Tamms in retaliation for filing grievances and lawsuits and engaging in other protected activities challenging the conditions of their confinement, in violation of the First and Fourteenth Amendments to the Constitution. These retaliation claims have been resolved in a series of jury trials, and they are not at issue here.
3. In fact, statistical data assembled by the IDOC shows that the average time served for the current population at Tamms is 73.4 months, or over six years. See Ten-Point Plan (Plaintiffs' Exhibit 7) at 6. Seventy of the 243 inmates (28.3%) have been at Tamms for at least ten years, and more than half have been at Tamms for over five years. See id. at 8. Over three-quarters (76.9%) or 190 of the inmates at Tamms have been there for over three years. See id., Table 4.
4. The Court recognizes that it is assuming here that, were work, education, and substance abuse programs available at Tamms, inmates of the supermax prison would participate in such programs. This assumption seems reasonable to the Court. Participation in such programs doubtless would be a happy alternative to the crushing monotony of being confined alone in a cell for up to twenty-four hours a day that currently is the lot of Tamms inmates. Also, it seems probable that Tamms inmates would welcome the opportunity to earn money by participating in work programs, in order to purchase small items like walkmans or arch supports that make life in a place like Tamms somewhat more bearable. See Doc. 433 (Testimony of Adolfo Rosario) at 50-51 (the witness, a Tamms inmate, complained that the shoes issued to him by Tamms correctional personnel lack arch supports, but he cannot purchase shoe inserts at the prison commissary because he is indigent and has no money to spend at the commissary).
5. Finally, although strictly speaking Point Two of IDOC Director Randle's Plan is not concerned with the issue of whether or not an inmate should be placed at Tamms, it is worth noting that Point Two protects inmates from spending an unnecessary amount of time in the supermax prison. Under the Plan, as already has been noted, upon arrival at Tamms new inmates of the supermax prison will be advised at orientation of the probable length of their stay at the prison, expressed as a range of possible terms of supermax confinement; further, inmates will work with counselors to ensure that they achieve the behavioral levels necessary to be transferred out of Tamms in the least possible time. See Ten-Point Plan (Plaintiffs' Exhibit 7) at 16; Doc. 522 (Randle Testimony) at 13-14.
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