WESTEFER v. SNYDER
725 F.Supp.2d 735 (2010)
United States District Court, S.D. Illinois.
July 20, 2010.
After the 15-day period, the Bureau reviews the CCR and makes a final determination. If it concludes OSP placement is inappropriate, the process terminates. If the Bureau approves the warden's recommendation, the inmate is transferred to OSP. The Bureau's chief notes the reasons for the decision on the CCR, and the CCR is again provided to the inmate.
Inmates assigned to OSP receive another review within 30 days of their arrival. That review is conducted by a designated OSP staff member, who examines the inmate's file. If the OSP staff member deems the inmate inappropriately placed, he prepares a written recommendation to the OSP warden that the inmate be transferred to a lower security institution. If the OSP warden concurs, he forwards that transfer recommendation to the Bureau for appropriate action. If the inmate is deemed properly placed, he remains in OSP and his placement is reviewed on at least an annual basis according to the initial three-tier classification review process outlined above.
Wilkinson, 545 U.S. at 216-17, 125 S.Ct. 2384 (internal citations and punctuation omitted).
The Court turns next to the procedure for assigning inmates to Tamms outlined in Point One of IDOC Director Randle's Ten-Point Plan. Like the New Policy, the Plan provides for a hearing at which an inmate placed at Tamms can challenge the factual basis for his placement. The fact that the Plan contemplates that transfer review hearings will be conducted at Tamms seems to the Court to be of no moment; as IDOC Director Randle explained, having a single Transfer Review Committee at Tamms conduct all hearings concerning placement at the supermax prison will promote consistency in decisions about supermax placement. See Doc. 522 (Randle Testimony) at 12-13, 36. In any event, as Defendants point out, it is well settled that a timely hearing following deprivation of a liberty interest satisfies the requirements of due process. See Hewitt v. Helms, 459 U.S. 460, 476-77, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (holding that due process was satisfied where an
inmate received a hearing on his placement in administrative segregation five days after the inmate commenced his segregation placement). At the transfer review hearing contemplated under the Plan, an inmate can appear, make statements, present relevant documents, and request that persons with relevant information be interviewed. The Plan also contemplates that, as with the New Policy, any recommendation for supermax placement must be in writing and must contain a statement of reasons for the recommendation, and the recommendation is subject to review at three different levels: the Chief Administrative Officer of Tamms; the Chief of Operations of the IDOC; and the Chief Legal Counsel of the IDOC. The fact that the Transfer Review Committee must make a recommendation of supermax placement in writing and include in its written report inmate demographics, the stated reason for an inmate's supermax placement, a summary of the disciplinary history of an inmate being recommended for placement at Tamms, the inmate's status, and a record of the proceedings is, as in Wilkinson, a "safeguard[]" against an erroneous deprivation of an inmate's liberty interest in avoiding confinement at Tamms. 545 U.S. at 226, 125 S.Ct. 2384. Also, as with the New Policy, under the Ten-Point Plan a negative determination as to supermax placement at any of the three levels of review terminates the process, with the result that an inmate under consideration for placement at Tamms is not so placed, but the reverse is not true: a decisionmaker at the next level of review cannot overrule a negative determination about placement at Tamms. See id. Under Point One of IDOC Director Randle's Ten-Point Plan, an inmate placed at Tamms will receive sufficient information at his transfer review hearing, subject to the legitimate restrictions dictated by considerations of prison security, to understand why he has been placed in supermax confinement. This information will furnish a guide for an inmate in his future conduct, enabling the inmate to conform his conduct to prison regulations, and will assist the inmate to mount an effective appeal from a recommendation of Tamms placement by the IDOC Chief of Operations. See Wilkinson, 545 U.S. at 226, 125 S.Ct. 2384. As IDOC Director Randle pointed out in his testimony, the fact that all transfer review hearings will be audiotaped will help inmates approved for Tamms placement by the IDOC Chief of Operations to appeal from such placement decisions. IDOC Director Randle explained, "I thought that was important in the event there is an appeal or a concern about the actual placement process we would actually have a recording of that so that the person that heard the appeal could actually hear the actual testimony or proceedings that took place as part of the transfer review hearing." Doc. 522 (Randle Testimony) at 10. Similarly, while for reasons of prison security inmates may not necessarily be privy to the reports prepared by the Transfer Review Committee regarding placement at Tamms, they nonetheless will possess sufficient information about why they have been recommended for placement at the supermax prison to challenge such placement to the IDOC Chief Legal Counsel:
Q. How much information will each inmate be given about the reasons why they're at Tamms?
A. They will—essentially, the idea is to provide the reason or the offense that lead to the transfer review request. In a lot of cases that is the actual offense that they were heard at during their initial disciplinary hearing to tell the person this is why because of what this—that you were found guilty of, you are being placed in Tamms. And then
to give the offender an opportunity to provide any information that they think will influence the decision whether or not to place them there.
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.