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WESTEFER v. SNYDER
725 F.Supp.2d 735 (2010)
United States District Court, S.D. Illinois.
July 20, 2010.
Having determined that IDOC inmates have a due process liberty interest in avoiding placement at Tamms, the Court now must determine what process is constitutionally owed to such inmates in order to protect their liberty interest. In Wilkinson the Court observed that "[b]ecause the requirements of due process are `flexible and cal[l] for such procedural protections as the particular situation demands,' we generally have declined to establish rigid rules and instead have embraced a framework to evaluate the sufficiency of particular procedures." 545 U.S. at 224, 125 S.Ct. 2384 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). The Court instructed that, in evaluating due process in the context of assignments to custody at a supermax prison, three factors are to be considered: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safe-guards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 224-25, 125 S.Ct. 2384 (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Concerning the first factor, the private interest that will be affected by an official action, the Court acknowledged that the private interest of a prison inmate in being free from confinement in a supermax prison is "more than minimal," but noted further that this interest "must be evaluated, nonetheless, within the context of the prison system and its attendant curtailment of liberties." Id. at 225, 125 S.Ct. 2384. "Prisoners held in lawful confinement have their liberty curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all." Id. Said differently, the private liberty interest of a prison inmate that is implicated by confinement at a supermax prison is less than that of a person who is not incarcerated. As to the second Mathews factor, the risk of an erroneous deprivation of an inmate's liberty interest in avoiding confinement at a supermax prison through existing correctional procedures, the Wilkinson Court examined closely Ohio's policies governing placement of inmates of the state correctional system in the OSP. The Court looked particularly at the notice Ohio's policies afford inmates of the fact that they are under consideration for placement at the OSP and the opportunity those policies give such inmates to challenge correctional officials' stated reasons for OSP placement. The Court noted that Ohio's policies afford inmates notice and a hearing, as well as an opportunity to rebut a recommendation in favor of placement at the OSP at the third and last of three levels of review of the placement recommendation. Under Ohio's policies, the Court said, "an inmate must receive notice of the factual basis leading to consideration for OSP placement and a fair opportunity for rebuttal. Our procedural due process cases have consistently observed that these are among the most important procedural mechanisms for purposes of avoiding erroneous deprivations." Wilkinson, 545 U.S. at 225-26, 125 S.Ct. 2384. The Court observed, Requiring officials to provide a brief summary of the factual basis for the classification review and allowing the inmate a rebuttal opportunity safeguards against the inmate's being mistaken for another or singled out for insufficient reason. In addition to having the opportunity to be heard at the Committee stage, Ohio also invites the inmate to submit objections prior to the final level of review. This second opportunity further reduces the possibility of an erroneous deprivation. Id. at 226, 125 S.Ct. 2384. Additionally, the Court noted, under Ohio regulations a recommendation against OSP placement at any level of review ends the placement process, so that an inmate will not be placed at the supermax prison: "Although a subsequent reviewer may overturn an affirmative recommendation for OSP placement, the reverse is not true; if one reviewer declines to recommend OSP placement, the process terminates." Id. Correspondingly, if a decisionmaker recommends placement in the OSP for an inmate, the inmate receives a statement of reasons for the placement recommendation that he can use to challenge the decision. "If the recommendation is OSP placement, Ohio requires that the decisionmaker provide
a short statement of reasons. This requirement guards against arbitrary decisionmaking while also providing the inmate a basis for objection before the next decisionmaker or in a subsequent classification review." Id. Such statements serve also, the Court pointed out, to guide inmates in their conduct in the future. See id. (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979)). Finally, the Court noted, the Ohio regulations provide for review of a placement at the OSP after an inmate has been at the supermax prison for thirty days. See id. at 227, 125 S.Ct. 2384. In the Court's view, Ohio's regulatory scheme adequately ensures against an erroneous decision in the process of placing inmates at the OSP. With respect to the third Mathews factor, the interest of the public officials charged with the responsibility of running prisons, the Court spoke bluntly. "In the context of prison management, and in the specific circumstances of this case, this interest is a dominant consideration. Ohio has responsibility for imprisoning nearly 44,000 inmates. The State's first obligation must be to ensure the safety of guards and prison personnel, the public, and the prisoners themselves." Wilkinson, 545 U.S. at 227, 125 S.Ct. 2384 (citation omitted). The Court went on to say,
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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