WESTEFER v. SNYDER
725 F.Supp.2d 735 (2010)
United States District Court, S.D. Illinois.
July 20, 2010.
b. Conditions in Segregation at PontiacAs already has been noted, Defendants urge that the correct baseline for determining whether conditions of confinement at Tamms impose atypical and significant hardship in relation to the ordinary incidents of prison life is supplied by conditions of confinement in disciplinary segregation at Pontiac, which Defendants aver are the most severe in any maximum security prison in Illinois. Counsel for Plaintiffs and the class dispute whether segregation at Pontiac furnishes the correct baseline. The Court finds this dispute academic,
for the reasons that follow. On December 3, 2009, the Court, accompanied by the Warden of Pontiac and counsel for the parties to this case, toured Pontiac's North Cell House, which houses inmates in disciplinary segregation and inmates who have been condemned to death. See Doc. 514 (Transcript of Day 7 of Bench Trial) at 3-4, 6-7. The Court also toured Pontiac's West Cell House, a general segregation unit for inmates in disciplinary segregation. See id. at 5. As Defendants point out, some conditions of confinement in segregation at Pontiac are highly restrictive. For example, at the lower level of the North Cell House are the most restrictive of all disciplinary segregation cells at Pontiac; these cells consist of individual cells that are open to the range of view by way of plexiglass windows. See id. at 3. Additionally, at the lower level of the West Cell House are some cells with doors that are meshed in order to house inmates whose behavior is potentially dangerous (or at least a nuisance) to passers-by or persons in adjacent cells and who thus cannot be confined in a segregation cell with an open-barred front. See id. at 5. However, notwithstanding certain superficial similarities between confinement at Tamms and conditions in the segregation units at Pontiac, the Court nonetheless concludes that Tamms is an atypical and significant hardship in comparison to segregation at Pontiac. First, even prisoners in the closed-front cells at Pontiac enjoy significantly greater human contact than do prisoners at Tamms, as they can see and hear gallery workers from the minimum security or protective custody units at Pontiac and prisoners being taken back and forth on the gallery as they pass the cells on the range. Larry Strickland, who as already has been noted is a former Tamms inmate now housed at Pontiac, testified that, even when he was confined at Pontiac in a cell with a door covered by glass, he could communicate with other inmates:
Q. (BY THE COURT:) Mr. Strickland, were you in the cells here that are covered with glass?
A. I've been behind the steel door here. Not the ones covered—yeah, I have been in the ones covered in glass. But it's still different from Tamms because you can communicate. You could, you know, you could communicate. It's a lot of people around you that you know that you can associate yourself with because they right there with you and if something's going on you right there in the mix. If something's happening if somebody want to pass something you would be involved if they wanted you to or you can talk to the guy without, you know, really it's . . . total[ly] different [than Tamms].
Doc. 514 (Strickland Testimony) at 13. Additionally, all segregation inmates at Pontiac are permitted outdoor recreation in dog cages that are open to the air on all four sides. While inmates are kept one to each cage, the cages are adjacent to each other, so that inmates are able to talk freely and to interact with inmates in adjacent cages. For example, IDOC inmate Charles Harris testified that during yard while he was confined in Pontiac's North Cell House it was possible for him to communicate with other inmates, although Harris opted not to go to the exercise yard because it was not equipped with water or a bathroom. See id. (Testimony of Charles Harris) at 29. IDOC inmate Alex Pearson, a former Tamms inmate now housed at Pontiac, specifically noted the difference between exercise yards at the two prisons:
Recreate down here in Pontiac segregation they put you in a cage where they got a recreation bar so if you choose to exercise or you choose to socialize with
the other guys that are in segregation you can do what you choose to. It's a totally different setting. In Tamms it's—you in a concrete wall where you can barely breathe. It is a concrete wall and they have a half a slab there is one little open area at the top.
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.