LORENZO L. STONE-BEY, Plaintiff, v. JOHN BARNES, C.A.B. Chairman, Defendant.



CAUSE NO. 2:93-CV-0198 AS



UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA, HAMMOND DIVISION



913 F. Supp. 1226; 1996 U.S. Dist. LEXIS 1233



January 29, 1996, DATED













COUNSEL: [**1] LORENZO L STONE-BEY, plaintiff [PRO SE], Michigan City, IN. Charles E Doyle, [COR LD NTC], Beverly Shores, IN.


For JOHN BARNS, C.A.B. Chairman, defendant: David A Arthur, [COR LD NTC], Indiana Attorney General, Indianapolis, IN.



JUDGES: Allen Sharp, CHIEF JUDGE, UNITED STATES DISTRICT COURT. Mag Judge Robin D. Pierce



OPINIONBY: Allen Sharp



OPINION:

[*1228] MEMORANDUM AND ORDER

I. BACKGROUND

On September 22, 1995, this court entered a memorandum and order addressing the cross-motions for summary judgment of plaintiff Lorenzo Stone-Bey and defendants Karl Swihart and John Barnes. This court takes note of its Memorandum and Order entered on September 22, 1995, and reported as Stone-Bey v. Swihart, 898 F. Supp. 1287 (N.D. Ind. 1985). The court further directs the parties to that order for a statement of the facts relevant to this case. Id., at 1291-92. In Stone-Bey, this court: (1) granted Mr. Karl Swihart's motion for summary judgment, dismissing him as a defendant in this case; (2) denied Mr. Stone-Bey's motion for summary judgment; and (3) directed the parties to file a brief on the issue of whether Mr. Stone-Bey had a protected liberty interest in his Conduct Adjustment [**2] Board ("CAB") hearing sufficient to trigger due process under the recent landmark decision by the Supreme Court of the United States in Sandin v. Conner, 132 L. Ed. 2d 418, U.S. , 115 S. Ct. 2293 (1995). Mr. Stone-Bey satisfied this court's directive by filing "Plaintiff's Brief in Response to Court Order of September 22, 1995" on November 1, 1995. The Indiana Attorney General's Office filed its "Supplemental Memorandum" for defendant Barnes on-November 22, 1995.

II. ISSUES

The issues now properly before the court are the following: (1) under the Fourteenth Amendment to the United States Constitution, should this court recognize that Mr. Stone-Bey has a state created liberty interest in remaining in the general population of the Indiana State Prison by virtue of his sanction placing him in disciplinary segregation for one-year as a result of his CAB conviction; and, if such a liberty interest does exist, (2) did Mr. Stone-Bey receive the due process protections required by the Supreme Court of the United States in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), in his prison disciplinary proceeding.

III. ARGUMENTS [**3]

In "Plaintiff's Brief in Response to Court Order of September 22, 1995," Mr. Stone-Bey raises two arguments for the proposition that his sanction to disciplinary segregation for one-year created a protected liberty interest. First, Mr. Stone-Bey argues that the conditions of the cell where he was confined during his one-year in disciplinary segregation exceeded the expected conditions and hardships of prison life. Relying on Rowe v. Debruyn, 17 F.3d 1047 (7th Cir. 1994), Stone-Bey argues that the court should look closely to the nature and degree of the deprivation encountered by the prisoner when determining whether a state created liberty interest exists. Based upon the length of his sanction and the conditions to which he was subjected, Stone-Bey argues that his segregation caused a "major disruption" in his prison environment and imposed an "atypical and significant hardship" on him, thus creating a liberty interest under the holdings in Sandin.

Second, Mr. Stone-Bey argues that his placement in disciplinary segregation created a protected liberty interest because his placement in disciplinary confinement will ultimately affect the duration of his sentence. Stone-Bey [**4] first argues that he was denied the opportunity to petition for consideration of clemency upon his placement in disciplinary segregation. He further argues that his disciplinary sanction will also affect his chances for parole in the future, thus also affecting the duration of his sentence. He argues that a prisoner's record and conduct are among the considerations used to determine a prisoner's parole eligibility. Ind. Code § 11-13-3-3. He claims that although the parole board is not required to deny parole based upon his placement in disciplinary segregation, the parole board will more than likely deny him the opportunity to be released on parole. Thus, his placement into disciplinary segregation affects the duration [*1229] of his sentence, creating for him a protected liberty interest arising under the Due Process Clause itself.

Once the court presumably finds that he had a liberty interest in remaining in the general prison population, Mr. Stone-Bey then argues that he had a right to due process protection in the CAB hearing before his period of disciplinary segregation could commence. Stone-Bey claims that he was not afforded his due process rights in the CAB hearing. He alleges that [**5] there is no adequate written record of the disciplinary proceedings against him in order to determine whether the determination of his guilt was reached fairly. He also alleges that there was insufficient evidence presented at the CAB hearing to find him guilty of the charged violation. He claims that the name or the presence of the mysterious supporting witness whose statement was the main evidence relied upon by the CAB in making its determination of guilt is nowhere to be found in the record. Thus, Stone-Bey requests this court to find that he was arbitrarily deprived of his liberty interest in remaining in the general prison population when he was placed into disciplinary segregation based upon an inadequate record and insufficient evidence. He requests damages in the form of (1) declarative relief that the defendant violated his procedural due process rights under the Fourteenth Amendment, (2) nominal damages of one dollar ($ 1.00) for the defendant's violation of his procedural due process rights, and (3) punitive damages from the defendant in the amount of one hundred thousand dollars ($ 100,000.00).

The defendant filed his supplemental memorandum on November 22, 1995, in which [**6] he makes a renewed motion for summary judgment. In this memorandum, the defendant first claims that the statement of the confidential informant relied upon by the CAB was contained in the prison investigative file at the time of the hearing. The defendant argues that since this statement was in existence and made part of the prison investigative file, it was properly relied upon by the CAB when its decision was made to sanction Mr. Stone-Bey with one-year in disciplinary segregation. He also argues that there was no deprivation of due process in the CAB hearing as the informant's statement constituted "some evidence" under the standards set forth in Superintendent, Mass. Corr. Inst. at Walpole v. Hill, 472 U.S. 445, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985) and Mendoza v. Miller, 779 F.2d 1287 (7th Cir. 1985). As a result, the defendant moves this court to grant summary judgment for the defendant.

Finally, on page 5 of his supplemental memorandum, the defendant reached the issue on which this court directed the parties to file supplemental briefs; whether Mr. Stone-Bey had a liberty interest in remaining in the general prison population under the Fourteenth Amendment pursuant to the Supreme Court's decision [**7] in Sandin. The defendant first claims that under Indiana Code § 11-11-5-4, a prisoner cannot be subjected to certain types of actions as punishment and cannot be deprived of certain minimal conditions or programs. Thus, based solely upon this statute, the defendant argues that "by the very statutes that allow disciplinary actions to be taken, the Department is precluded from imposing discipline that would be an 'atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" n1



n1 See Defendant's Supplemental Memorandum, p. 6.


As for Mr. Stone-Bey's claim that he has a liberty interest in the CAB hearing because the decision to place him in disciplinary segregation for one-year will ultimately affect the duration of his sentence, the defendant claims that there is no certainty such a placement will inevitably affect the duration of Stone-Bey's sentence. The defendant points out that, for most inmates, only sanctions such as the deprivation of earned credit time or [**8] the demotion in credit time earning class will impact on the date of mandatory release to parole under Indiana Code § 35-50-6-1. However, since Mr. Stone-Bey is sentenced to a life sentence, he is considered an "old code" offender and his release is at the discretion of the Indiana Parole Board. The defendant, thus, argues that like inmate Conner in Sandin, Mr. Stone-Bey cannot establish that the duration of his sentence will [*1230] inevitably be affected by his placement in disciplinary segregation because in Indiana, like Hawaii, disciplinary action is one of the many considerations that the Indiana Parole Board will look to in determining Mr. Stone-Bey's chances for parole. The defendant thus requests this court to grant summary judgment in his favor because, "there is no right not be [sic] placed in segregation under the holdings in Sandin and, therefore, even were there not clearly sufficient evidence to support the finding of guilty [sic] there is not and could not be a deprivation of a protected liberty interest in this case." n2



n2 See Defendant's Supplemental Memorandum, p. 7.


[**9]

IV. SUMMARY JUDGMENT STANDARD

Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Russo v. Health, Welfare & Pension Fund, Local 705, 984 F.2d 762 (7th Cir. 1993).

A thorough discussion of Rule 56 by the Supreme Court of the United States can be found in a trilogy of cases decided in 1986. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) n3; and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). n4 Celotex addressed the initial burdens of the parties under Rule 56, and Anderson addressed the standards under which the record is to be analyzed within the structure of Rule 56.



n3 For the judicial epilogue of Celotex, see Catrett v. Johns-Manville Sales Corp., 263 U.S. App. D.C. 399, 826 F.2d 33 (D.C. Cir. 1987), cert. denied, 484 U.S. 1066, 108 S. Ct. 1028, 98 L. Ed. 2d 992 (1988). [**10]




n4 The 1986 Supreme Court trilogy was later reexamined in Eastman Kodak v. Image Technical Services, 504 U.S. 451, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992), a case born in the context of antitrust law. The most that can be said for Eastman Kodak, however, is that it did not tinker with Celotex and Anderson, and possibly involves an attempt to clarify Matsushita. This view is well-supported by an in-depth academic analysis in Schwarzer, Hirsch, and Barrans, The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441 (1992).


The initial burden is on the moving party to demonstrate, "with or without supporting affidavits," the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56). A material question of fact is a question which will be outcome determinative of an issue in the case. The Supreme Court has instructed that the facts material in a specific case shall be determined by the substantive law controlling the given case or issue. [**11] Anderson, 477 U.S. at 248.

Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings" and "designate 'specific facts showing that there is a genuine [material] issue for trial.'" Id. The nonmoving party cannot rest on its pleadings, Waldridge v. American Hoechst Corp., 24 F.3d 918, 920-21 (7th Cir. 1994); Hughes v. Joliet Correctional Center, 931 F.2d 425, 428 (7th Cir. 1991), nor may that party rely upon conclusory allegations in affidavits. Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir. 1992). "The days are gone, if they ever existed, when the nonmoving party could sit back and simply poke holes in the moving party's summary judgment motion." Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990).

During its summary judgment analysis, this court must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party; in this case Mr. Stone-Bey. Smith v. Fruin, 28 F.3d 646, 650 (7th Cir. 1994), cert. denied, U.S. , 115 S. Ct. 735 (1995); Brennan v. Daley, 929 F.2d 346, 348 (7th Cir. 1991). Furthermore, it is required [**12] to analyze summary judgment motions under the standard of proof relevant to the case or issue. Anderson, 477 U.S. at 252-255.

V. DISCUSSION

Mr. Stone-Bey filed his complaint in this case pursuant to 42 U.S.C. § 1983, alleging [*1231] that defendant Barnes, as the chairman of the CAB, violated his due process rights in his disciplinary hearing at the Indiana State Prison. Inherent in such an argument is the presupposition that Mr. Stone-Bey has a liberty interest in remaining in the general prison population and out of disciplinary segregation.

In its September 22, 1995 memorandum and order, this court dealt extensively with the preliminary issue of whether Mr. Stone-Bey may challenge the constitutionality of his CAB conviction in a suit for damages under § 1983. See Heck v. Humphrey, 129 L. Ed. 2d 383, U.S. , 114 S. Ct. 2364 (1994). This court held that, "at this point, this court does not equate a prison disciplinary proceeding to a 'criminal judgment,'" and, thus, Heck does not apply in this case. Stone-Bey, 898 F. Supp. at 1294. Therefore, this issue need not be revisited in this order, and the court will now move on to the merits of Mr. Stone-Bey's [**13] claim under the Due Process Clause, analyzing it under the decision of the Supreme Court of the United States in Sandin v. Conner.

The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV. Thus, when a plaintiff brings an action under § 1983 for a violation of procedural due process, he must establish that the state deprived him of a constitutionally protected interest in "life, liberty, or property" without due process of law. Zinermon v. Burch, 494 U.S. 113, 125, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990) (citing Parratt v. Taylor, 451 U.S. 527, 537, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981)). A liberty interest may arise from state law or from the Due Process Clause itself. Pardo v. Hosier, 946 F.2d 1278, 1281 (7th Cir. 1991). Mr. Stone-Bey raises two separate arguments under Sandin to support his claim that he has a protected liberty interest in remaining in the general prison population: (1) that the conditions of the cell where he was confined during his one-year in disciplinary segregation exceeded the expected conditions and [**14] hardships of prison life, creating a liberty interest arising under state law; and (2) since he could not petition for consideration of clemency and because his chances for parole may be diminished because of his placement in disciplinary segregation, such confinement will inevitably affect the duration of his sentence, creating a liberty interest under the Due Process Clause itself.

Prior to the Supreme Court's decision in Sandin, an inmate retained a liberty interest in remaining free from confinement in segregation where the state created a protected liberty interest through the use of "language of an unmistakenly mandatory character" in its prison administrative regulations. See Hewitt v. Helms, 459 U.S. 460, 471-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). Thus, before Sandin, when a state's prison regulations created a liberty interest in remaining free from disciplinary segregation, an inmate was entitled to the procedural due process protections set forth in Wolff prior to his placement into disciplinary segregation. See Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th Cir. 1992). However, in Sandin, the Supreme Court held that state prison regulations [**15] will now create enforceable liberty interests only in limited situations. Sandin, 115 S. Ct. at 2300; Whitford v. Boglino, 63 F.3d 527, 530 (7th Cir. 1995).

This court has already published opinions dealing with some of the dimensions of the Supreme Court's important decision in Sandin: See McKinney v. Hanks, 911 F. Supp. 359, 1995 U.S. Dist. LEXIS 19849, 1995 WL 787982 (N.D. Ind. Dec. 20, 1995); Thomas v. Newkirk, 905 F. Supp. 580, (N.D. Ind. Nov. 13, 1995); Stone-Bey v. Swihart, 898 F. Supp. 1287 (N.D. Ind. 1995); and Taifa v. Bayh, 1995 U.S. Dist. LEXIS 20194, 1995 WL 646300 (7th Cir. Sept. 26, 1995). In Sandin, the Supreme Court held the following:


The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, [*1232] nonetheless imposes atypical and significant [**16] hardship on the inmate in relation to the ordinary incidents of prison life. (Citations omitted) (Emphasis added)


Sandin, 115 S. Ct. at 2300. Applying this holding to the facts in Sandin, the Supreme Court concluded that sanctioning a prisoner to 30 days in disciplinary segregation "did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. Id., at 2301.

VI. POST-SANDIN ANALYSIS

As this court pointed out in its memorandum and order in McKinney v. Hanks, supra, the task of determining where the new fences are now located in the spectrum of prison disciplinary cases dealing with the determination of protected liberty interests for inmates will fall to the United States district judges and United States magistrate judges. Federal courts around the United States have been testing the judicial waters in an attempt to grasp the meaning of the Supreme Court's holding in Sandin. n5 With the foregoing in mind, the court will now address Mr. Stone-Bey's first argument that the law of the State of Indiana creates for him a liberty interest in remaining in the general prison population.



n5 The result and reasoning of Sandin have been discussed recently by courts in this circuit on a variety of issues in the following cases: Anderson v. Romero, 42 F.3d 1121, 1995 WL 744033 (7th Cir. Dec. 15, 1995); Clayton v. Morris, 1995 U.S. App. LEXIS 34235, 1995 WL 686352 (7th Cir. Nov. 17, 1995), Jones-Bay v. Wright, 1995 U.S. App. LEXIS 34005, 1995 WL 687661 (7th Cir. Nov. 16, 1995); Williams v. Ramos, 71 F.3d 1246 (7th Cir. 1995); Neal v. Fairman, 1995 U.S. App. LEXIS 33999, 1995 WL 649923 (7th Cir. Nov. 2, 1995); Matthews v. Duckworth, 1995 U.S. App. LEXIS 24048, 1995 WL 508080 (7th Cir. Aug. 22, 1995); Zarnes v. Rhodes, 64 F.3d 285 (7th Cir. 1995); Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995); McKinney v. Hanks, 911 F. Supp. 359, 1995 U.S. Dist. LEXIS 19849, 1995 WL 787982 (N.D. Ind. Dec. 20, 1995); Sasnett v. Sullivan, 908 F. Supp. 1429, 1995 U.S. Dist. LEXIS 18168, 1995 WL 714281 (W.D. Wis. Dec 1, 1995); Bryant v. Peters, 1995 U.S. Dist. LEXIS 17824, 1995 WL 708566 (N.D. Ill. Nov. 30, 1995); Whittmore v. Washington, 1995 U.S. Dist. LEXIS 16357, 1995 WL 646391 (N.D. Ill. Oct. 23, 1995); Robinson v. Howell, 902 F. Supp. 836 (S.D. Ind. 1995); Stone-Bey v. Swihart, 898 F. Supp. 1287 (N.D. Ind. 1995); Kirsch v. Franklin, 897 F. Supp. 1173 (E.D. Wis. 1995); Martinkoski v. Wisconsin Dep't of Corrections, 896 F. Supp. 882 (E.D. Wis. 1995); Leslie v. Doyle, 896 F. Supp. 771 (E.D. Ill. 1995); Van Dyke v. Washington, 896 F. Supp. 183 (C.D. Ill. 1995); Taifa v. Bayh, 1995 U.S. Dist. LEXIS 16498, 1995 WL 646300 (N.D. Ind. Aug. 22, 1995); Winfrey v. Ultsch, 895 F. Supp. 229 (E.D. Wis. 1995); Oswalt v. Godinez, 894 F. Supp. 1181 (N.D. Ill. 1995); and Sanchez v. Roth, 891 F. Supp. 452 (N.D. Ill. 1995).


[**17]

A. LIBERTY INTEREST CREATED BY STATE LAW

Mr. Stone-Bey claims that during his one-year in disciplinary segregation, the conditions he faced exceeded the expected conditions and hardships of prison life, creating for him a liberty interest arising under state law. Stone-Bey's argument appears to be two-pronged. First, he argues that his one-year sanction to disciplinary segregation was beyond the 30 days in Sandin, thus constituting a penalty which fell outside the expected scope of his sentence. Second, he argues that the conditions of his confinement in disciplinary segregation were significantly more restrictive than those found in the general population and, thus, constituted an atypical and significant hardship for him under Sandin.

The court will first examine Mr. Stone-Bey's argument that his placement into disciplinary segregation for one-year by the CAB creates a protected liberty interest under Rowe v. Debruyn, 17 F.3d 1047 (7th Cir.), cert. denied, U.S. , 115 S. Ct. 108 (1994). As part of this argument, Stone-Bey claims that the issue of disciplinary segregation has been enacted by the State of Indiana in § § 11-11-5-2 through [**18] 11-11-5-7 of the Indiana Code and that these statutes address the issue of which types of punishment are allowed and which types are not allowed to be taken against an inmate.

In Rowe, the Seventh Circuit held that before a term of one-year in segregation may be imposed by a CAB, federal due process protections must be followed, as such a penalty falls outside the expected scope of an inmate's sentence. Rowe, 17 F.3d at 1053. However, it must be mentioned that Rowe was a decision reached before the advent of Sandin. The Seventh Circuit addressed this concern in Whitford, stating "the Sandin Court's observation that punishment for disciplinary violations is within the expected scope of a prison sentence calls Rowe's reasoning [*1233] into question." Whitford, 63 F.3d at 533. In Sandin, the Supreme Court addressed a similar point, stating:


Although Conner points to dicta in cases implying that solitary confinement automatically triggers due process protection, this Court has not had the opportunity to address in an argued case the question whether disciplinary confinement of inmates itself implicates constitutional liberty interests. We hold that [**19] Conner's discipline in segregated confinement did not present the type of atypical, significant deprivation in which the state might conceivably create a liberty interest. (Citations omitted)


Sandin, 115 S. Ct. at 2301.

In Sandin, based upon a comparison between inmates inside and outside disciplinary segregation, the Court found that the state's action in placing inmate Conner in disciplinary segregation for 30 days did not work a major disruption in his environment. Id. The holding in Sandin has created much uncertainty on the issue of what type and amount of punishment will amount to a "major disruption" in a prisoner's environment. Many courts have applied Sandin merely to dismiss cases in which prisoners have received 30 days or less in disciplinary segregation, finding that such punishment does not create an "atypical and significant hardship." n6 Other courts, including this court, have not limited the Sandin holding to cases where the discipline imposed on an inmate results in 30 days or less in disciplinary segregation. n7 The United States Court of Appeals for the Seventh Circuit has held as a matter of law that even if prisoners are entitled [**20] to due process protections prior to imposing extreme terms of segregation, six months was not an extreme term. Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995).



n6 Cases in the Seventh Circuit which have reached such a result include Whittmore v. Washington, 1995 U.S. Dist. LEXIS 16357, 1995 WL 646391 (N.D. Ill. Oct. 23, 1995) (30 days); Riggins v. Cooper, 1995 U.S. Dist. LEXIS 12182, 1995 WL 771413 (N.D. Ill. Aug. 23, 1995) (15 days); Kirsch v. Franklin, 897 F. Supp. 1173 (E.D. Wis. 1995) (13 days); and Leslie v. Doyle, 896 F. Supp. 771 (N.D. Ill. 1995) (15 days).

n7 See the following cases where courts have held that inmates do not have a protected liberty interest in remaining in the general prison population: Tulloch v. Coughlin, 1995 U.S. Dist. LEXIS 1961995 WL 780970 (W.D.N.Y. Dec. 22, 1995) (no liberty interest is implicated for an inmate placed in segregation for term of 180 days); Carter v. Carriero, 905 F. Supp. 99 (W.D.N.Y. 1995) (a sanction to 270 days of disciplinary confinement was not an atypical or significant hardship under Sandin); Ishaaq v. Compton, 900 F. Supp. 935 (W.D. Tenn. 1995) (mere confinement to segregation, whether punitive or administrative, does not constitute an atypical and significant hardship for an inmate and thus cannot amount to a deprivation of a liberty interest); Delaney v. Selsky, 899 F. Supp. 923 (N.D.N.Y. 1995) (stating in dictum that 197 days in disciplinary segregation does not create a liberty interest after Sandin); and Scales v. District of Columbia, 894 F. Supp. 14 (D.D.C. 1995) (placement in administrative segregation for four months is not violation of due process because not "atypical"). Within the Seventh Circuit, courts have held that a sanction of 34 days, Williams v. Ramos, 71 F.3d 1246 (7th Cir. 1995), and 31 days, Winfrey v. Ultsch, 895 F. Supp. 229 (E.D. Wis. 1995), in disciplinary segregation do not create liberty interests under Sandin. But, see also Brooks v. DiFasi, 1995 U.S. Dist. LEXIS 19616, 1995 WL 780976 (W.D.N.Y. Dec. 29, 1995) (holding that a sanction of 376 days in disciplinary segregation is an "atypical and significant hardship" under Sandin based upon the length of confinement and pre-Sandin case law).


[**21]

Based upon the language of Sandin, the Seventh Circuit's own questioning of Rowe, the Seventh Circuit's finding in Whitford, the court finds that Mr. Stone-Bey's placement in disciplinary segregation for one-year does not constitute an extreme term of segregation and, by itself, does not create a liberty interest under Sandin.

Aside from the length of the disciplinary confinement, it is also imperative to analyze whether the conditions of Mr. Stone-Bey's confinement were significantly more restrictive than those found in the general population. Stone-Bey argues that the conditions he faced while confined in disciplinary segregation were significantly more onerous than those in the general population. In his response, Mr. Stone-Bey describes the conditions present in disciplinary segregation at the Indiana State Prison as follows:


"The plaintiff was sentenced for one-year to live in a bug-infested, unsanitary, bathroom-sized cell with no furnishings except a cot, toilet, and small basin. He was deprived of communal meals, recreation, [*1234] religious services, therapy, and educational programs. He had no access to radio or television and was subjected to extremes [**22] of temperature in an old inadequately ventilated building. No typewriters were allowed and access to the law library was only through an inmate clerk. No telephone calls were allowed and reading material was restricted. Since the opportunity to work was foreclosed, state pay was not available. This resulted in inmates without outside resources having no access to the commissary at all."


See Plaintiff's Brief in Response to Court Order of September 22, 1995 at pages 1-2.

The Seventh Circuit has held that, "the holding in Sandin implies that states may grant prisoners liberty interests in being in the general population only if the conditions of confinement are significantly more restrictive than those in the general population. Whitford, 63 F.3d at 533. A prisoner is not wholly stripped of his constitutional rights when he enters prison, Wolff, 418 U.S. at 555, however, it must be remembered that "'lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.'" Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 125, 53 L. Ed. 2d 629, [**23] 97 S. Ct. 2532 (1977) (quoting Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948)). Also, discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law. Sandin, 115 S. Ct. at 2301. Further, courts have accorded prison officials wide latitude and deference in executing policies and practices that in their judgment are needed to preserve internal order, discipline and security. Pardo, 946 F.2d at 1280 (7th Cir. 1991). It must be noted that even in the general population, "inmates cannot expect the amenities, conveniences and services of a good hotel." Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988).

This court readily admits that this is a very close case, and relies on the Seventh Circuit's decision in Williams v. Ramos, 71 F.3d 1246 (7th Cir. 1995), as a barometer for determining whether the conditions of disciplinary confinement are significantly more restrictive than those in the general population. In Williams, an inmate presented claims very similar to those raised by Mr. Stone-Bey in this case. The inmate's disciplinary confinement [**24] in Williams was alleged to include the following conditions: the inmate was locked in a closed-front cell twenty-four hours a day; the inmate, while in disciplinary segregation, was not allowed to participate in a wide-variety of the activities available to inmates in the general population and non-segregated inmates housed in the same area; and the inmate lacked much contact with other inmates and staff. Id. As a result, the Seventh Circuit held that this "catalogue of harms" did not greatly exceed the conditions that one could expect from prison life generally. Id.

Although the length of the confinement in Williams, only 34 days total, is not as great as the time Mr. Stone-Bey was confined in disciplinary segregation, the court views the conditions found in the two cases to be very similar. Therefore, because discipline by prison officials taken in response to a wide range of misconduct falls within the expected parameters of an inmate's sentence and the lawful incarceration of an inmate does bring about the withdrawal of many privileges and rights, this court finds that the "catalogue of harms" to which Mr. Stone-Bey was subjected during his period of disciplinary [**25] confinement are not significantly more restrictive than those found in the general population. Thus, under Sandin, Mr. Stone-Bey's confinement in disciplinary segregation did not present the type of "atypical and significant hardship" in which a state might conceivably create a liberty interest.

B. LIBERTY INTEREST UNDER THE DUE PROCESS CLAUSE ITSELF

The analysis does not end here. Mr. Stone-Bey also argues that he had a protected liberty interest in the CAB hearing arising under the Due Process Clause itself because his placement in disciplinary segregation may ultimately affect the duration of [*1235] his sentence. First, Stone-Bey states that under Indiana Administrative Code § 1.1-4-1, a prisoner cannot be considered for clemency if the prisoner does not have a clear record for the period immediately preceding consideration for clemency. Thus, he argues that his placement in disciplinary segregation will ultimately affect his sentence because it denied him the opportunity to petition for consideration of clemency.

Mr. Stone-Bey further alleges that his sanction will affect his chances for parole in the future, also affecting the duration of his sentence. He argues that a [**26] prisoner's record and conduct are among the considerations used to determine a prisoner's parole eligibility. Ind. Code § 11-13-3-3. He claims that although the parole board is not required to deny parole based upon his placement in disciplinary segregation, it is clear that, based upon our society's concern about crime, the parole board will more than likely deny him the opportunity to be released on parole because of his time spent in disciplinary confinement. Thus, he contends that the CAB's decision affects the duration of his sentence, creating for him a protected liberty interest in remaining in the general prison population.

The court will first address his parole claim. The Supreme Court of the United States in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, held:


There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: 'Given a valid conviction, the criminal [**27] defendant has been constitutionally deprived of his liberty.' (Citation omitted)


Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979). In Sandin, the Supreme Court addressed almost the exact issue Mr. Stone-Bey raises here; that his sentence will more than likely be affected because his chances for parole are diminished due to his disciplinary confinement. The Supreme Court found that nothing in Hawaii's code required the parole board to deny parole in the face of a misconduct record or to grant parole in its absence even though misconduct is a consideration to be weighed in reaching a decision. Sandin, 115 S. Ct. at 2302. This finding almost mirrors Mr. Stone-Bey's argument. Stone-Bey readily admits that, "the parole board is not required to deny parole based upon the finding of a prisoner being placed in disciplinary segregation." n8



n8 See Plaintiff's Brief in Response to Court Order of September 22, 1995, p. 8.


In [**28] Sandin, the Supreme Court held that "the decision to release a prisoner rests on a myriad of considerations. . . the chance that a finding of misconduct will alter the balance is simply too attenuated to invoke the procedural guarantees of the Due Process Clause." Sandin, 115 S. Ct. at 2302. This court, following the Supreme Court's holding, finds that Mr. Stone-Bey has no liberty interest under the Due Process Clause on this claim.

As for Mr. Stone-Bey's claim that his inability to file a petition for consideration of clemency will ultimately affect the duration of his sentence, the court looks again to the Supreme Court of the United States for guidance. In Connecticut Board of Pardons v. Dumschat, the Supreme Court held that:


A decision whether to commute a long-term sentence generally depends not simply on objective factfinding, but also on purely subjective evaluations and on predictions of future behavior by those entrusted with the decision. A commutation decision therefore shares some of the characteristics of a decision whether to grant parole. . . In terms of the Due Process Clause, [an inmate]'s expectation that a lawfully imposed sentence will be [**29] commuted or that he will be pardoned is no more substantial that an inmate's expectation, for example, that he will not be transferred to another prison, "it is simply a unilateral hope."


A constitutional entitlement cannot "be created--as if by estoppel--merely because [*1236] a wholly and expressly discretionary state privilege has been granted generously in the past." No matter how frequently a particular form of clemency has been granted, the statistical probabilities standing alone generate no constitutional protections; a contrary conclusion would trivialize the Constitution. (Citations omitted)


Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464, 69 L. Ed. 2d 158, 101 S. Ct. 2460 (1981).

In this case, Mr. Stone-Bey admits that no petitioner is certain that clemency will be granted. However, he argues that he was confident of his chances for clemency because of his exceptional efforts toward rehabilitation. This argument alone does not persuade this court that Mr. Stone-Bey has a liberty interest under the Due Process Clause because he was denied the chance to file a petition for clemency. Based upon the holding in Connecticut Board of Pardons, supra, this [**30] court finds that the Due Process Clause itself did not create a liberty interest for Mr. Stone-Bey when the CAB sanctioned him to disciplinary segregation, denying him of a chance to file for clemency.

Therefore, this court finds that neither the law of the State of Indiana, nor the Due Process Clause itself afforded Mr. Stone-Bey a protected liberty interest in remaining in the general prison population. Thus, applying the holdings of Sandin, Mr. Stone-Bey was not entitled to receive the procedural protections set forth in Wolff in his CAB hearing. The confinement to which he was subjected as a result of his CAB hearing was within the range of confinement to be normally expected for an inmate serving a life sentence, and any claims that Mr. Stone-Bey has raised under the Due Process Clause of the Fourteenth Amendment are hereby DISMISSED.

VII. CONCLUSION

In conclusion, there are no genuine issues of material fact regarding Mr. Stone-Bey's Fourteenth Amendment Due Process claims, and the defendant is entitled to judgment as a matter of law on each of these claims. Therefore, the defendant's renewed motion for summary judgment is hereby GRANTED against the [**31] plaintiff and in favor of the defendant. Each party will bear its own costs. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

DATED: January 29, 1996.

Allen Sharp

CHIEF JUDGE

UNITED STATES DISTRICT COURT

LORENZO L. STONE-BEY, Plaintiff. v. KARL SWIHART, Investigator, JOHN BARNES, C.A.B. Chairman, Defendants.



No. 2:93cv198AS



UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA, SOUTH BEND DIVISION



898 F. Supp. 1287; 1995 U.S. Dist. LEXIS 14208



September 22, 1995, Decided













COUNSEL: [**1] LORENZO L STONE-BEY, plaintiff, [PRO SE], Michigan City, IN. Charles E Doyle, Beverly Shores, IN.


For JOHN BARNS, C.A.B. Chairman, defendant: David A Arthur, Indiana Attorney General, Indianapolis, IN.



JUDGES: ALLEN SHARP, CHIEF JUDGE, UNITED STATES DISTRICT COURT



OPINIONBY: ALLEN SHARP, CHIEF JUDGE



OPINION:

[*1290] MEMORANDUM AND ORDER

I. INTRODUCTION

On July 27, 1993 inmate Lorenzo L. Stone-Bey, imprisoned for life for murder, (hereinafter "Stone-Bey") filed a complaint under 42 U.S.C. § 1983 alleging that various members of the Indiana State Prison violated his rights in regards to a Conduct Adjustment Board (hereinafter "CAB") hearing. On November 11, 1993 this court dismissed portions of the complaint leaving only Karl Swihart (hereinafter "Swihart") and John Barnes (hereinafter "Barnes") as defendants in their individual capacities in this case. Dispositive motions pending in this court are Stone-Bey's March 8, 1995 Motion for Summary Judgment and Defendants' May 1, 1995, response thereto. Defendants also have pending an October 12, 1993 Motion for Summary Judgment and a May 1, 1995 Supplemental Motion for Summary Judgment. Swihart and Barnes are represented by members of [**2] the Indiana Attorney General's Office and Stone-Bey is represented by attorney Charles E. Doyle n1.



n1 Having to leaf through many unintelligible pro se petitions each year, this court greatly appreciates the services of Mr. Doyle.


[*1291] II. FACTS

Someone informed prison officials that on April 20, 1993 Stone-Bey had allegedly threatened to have inmate Bowens "eliminated" if Bowen failed to pay Stone-Bey an outstanding debt. Pending an investigation into the matter, Stone-Bey was placed in segregation. Stone-Bey denied knowing Bowens or having any knowledge of such a threat. Stone-Bey offered to take a lie detector test, but his offer was rejected. On May 5, 1993 investigator Swihart prepared a Report of Investigation of Incident which stated:


Investigation has determined that several weeks ago offender Bowens purchased $ 75.00 worth of marijuana from offender Stone. Offender Bowens failed to pay offender Stone as they had previously arranged. On April 20, 1993 at approximately 7:30p.m. while at [**3] recreation offender Stone approached Bowens and demanded his money. At that time Stone told Bowens in the presence of witnesses, that if he did not pay him that Stone would have Bowens eliminated.


Defendants' Motion for Summary Judgement, Appendix 1, p.1. Swihart also prepared a Conduct Report which stated: "Investigation has determined that on the above date and time offender Stone did threaten offender Bowens#875526 at recreation in the presence of witnesses. This threat was made because Bowens owed Stone a $ 75.00 drug debt." Defendants' Motion for Summary Judgement, Appendix 2, p.1.

On May 11, 1993 Stone-Bey received a copy of the Conduct Report and a Notice of Disciplinary Hearing charging Stone-Bey with threatening. The disciplinary hearing No. ISP93-05-0038, with Officer Barnes presiding began on May 12, 1993. Appearing with Stone-Bey was lay advocate Burnett. The evidence before the CAB included Stone-Bey's testimony, the Conduct and Investigative Reports, and written statements by inmates Keeby, Ridley, and McKinney. It was discovered at the hearing that Swihart had not signed the Conduct or Investigative Reports. Barnes was informed at the hearing that Bowens [**4] recanted his story and was now denying that Stone-Bey had threatened him. Stone-Bey by his lay advocate requested a dismissal of the case citing the unsigned reports and Bowens recantation. Barnes denied the request. Instead he continued the hearing until May 19, 1993 so that more investigating could be done. In the interlude between the two hearings, Swihart inspected the Conduct Report and the Investigative Report and verified in a May 17, 1993 letter to Barnes that the reports were prepared by him. Defendants' Motion for Summary Judgement, Appendix 2, p.1. There is no dispute that the letter was before Barnes when the hearing resumed.

Upon resumption of the hearing on May 19, Stone-Bey's renewed motion to dismiss was denied. Barnes found Stone-Bey guilty of threatening and sentenced him to one year of disciplinary segregation. Barnes concluded: "The conduct report, offender/lay advocate statement, investigative file, ISP93-061, witness statement have been reviewed for evidence. The preponderance of evidence indicates that the offender did threaten [sic] Bowen per information from investigative report ISP93-061." Id. Later, in an affidavit taken on April 6th, 1995, Barnes [**5] indicated that his finding of guilt "was based in part on the facts that Bowens passes a Voice Stress Analysis and that there is in the investigative file a statement that is signed by another offender who witnessed the threat being made." Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment, Affidavit of John Barnes. Barnes also stated in his affidavit that he did not believe Bowen's recantation because of the voice stress analysis results and the signed statement from another offender who witnessed the threat being made. Id. No voice stress analysis results or signed witness statements have been submitted to this court.

On May 26, 1993 Stone-Bey appealed Barnes' decision to Robert Farley, Superintendent of the prison. Superintendent Farley denied the appeal on July 1, 1993. Stone-Bey appealed to the Disciplinary Review Manager who denied the appeal on July 9, 1993. Stone-Bey then turned to the federal courts.

[*1292] III. ISSUES

On July 27, 1993 Stone-Bey filed the present petition under 42 U.S.C. 1983 seeking damages against the defendants for various deprivations of his Fourteenth Amendment Due Process rights. On November 23, 1993, after carefully [**6] reviewing Defendant's October 12, 1993 Motion for Summary Judgment, this court ordered that Defendant's DeBruyn, Farley, and Monroe be dismissed. This court also ordered any and all damage claims against Swihart and Barnes their official capacities dismissed. Finally, this court ordered Stone-Bey to indicate whether he was challenging disciplinary segregation or administrative segregation.

Stone-Bey filed a brief on December 16, 1993 in response to this court's November 23, 1993 order, but since that time Stone-Bey has become represented by counsel. Therefore, this court finds the December 16, 1993 Motion for Summary Judgment superseded by Mr. Doyle's March 8, 1995 Motion for Summary Judgment. This court also examines the Defendant's October 12, 1993 and May 1, 1995 motions. Synthesizing the allegations in the above mentioned motion, this court finds that Stone-Bey raises the following violations of due process. Specifically, Stone-Bey alleges that his rights were violated:

by Swihart because he:


a.) failed to sign the investigative reports;

b.) failed to obtain approval of the report by the shift supervisor; and,

c.) failed to properly document the written statements of [**7] Plaintiff's witnesses,


and


by Barnes because he:


a.) failed to dismiss the claim on the basis of inadequate notice of the threat made;

b.) failed to provide Stone-Bey with copies of statements given by the witnesses who spoke on his behalf

c.) failed to dismiss the claim on the basis of Swihart's omissions;

d.) failed to maintain a written record of the hearing; and

e.) failed to dismiss the claim on the basis of Bowens recantation.

IV. DISCUSSION

To maintain order and promote safety, prisons promulgate various rules that regulate inmate conduct. Stone-Bey was accused and found guilty of violating the Indiana State Prison's rule prohibiting inmates from threatening other inmates. Adult Disciplinary Policy Procedure Manual, p. 38, # 213. As punishment Stone-Bey was removed from the general prison population and placed in segregation. Stone-Bey's appeal of the CAB decision through the appropriate administrative appeals brought him no relief and Indiana refuses to hear his petition claiming that "there is presently no constitutionally protected right to judicial review of the decisions of factfinding and appellate tribunals presently conducting [**8] disciplinary proceedings within the prison system." Riner v. Raines, (1980) 274 Ind. 113, 409 N.E.2d 575. n2



n2 See also, Superintendent v. Hill, 472 U.S. 445, 450, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985) (observing that although prison inmates may be entitled to certain due process in disciplinary proceedings, the Supreme Court has never held that the Due Process Clause creates a right to judicial review of prison disciplinary proceedings.)


However, federal courts do not sit as surrogates to state courts. In reviewing a prison disciplinary hearing, a federal court looks only for violations of the United States Constitution. Federal courts do not sit to pass judgment upon violations of state law or state procedure. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991); Pennhurst v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). To receive federal review, a state prisoner challenging his disciplinary hearing must allege that the CAB deprived him [**9] of a right guaranteed or protected by the United States Constitution. Here, Stone-Bey alleges that Barnes and Swihart deprived him of his due process rights under the Fourteenth Amendment. "No State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV. Stone-Bey argues that he is entitled [*1293] to damages under 42 U.S.C. § 1983 because the CAB hearing failed to provide him with sufficient process before he was deprived of his liberty interest in remaining in the general prison population. n3 Stone-Bey presupposes that he has a liberty interest in remaining out of segregation.



n3 The text of 42 U.S.C. § 1983 provides:


Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.


[**10]


A. LIBERTY INTEREST (Part I)

Although a prisoner may not be deprived of a liberty interest without due process, sanctions that do not deprive an inmate of a liberty interest are not subject to federal review. Castenada v. Henman, 914 F.2d 981, 983 (7th Cir. 1990), cert. denied 498 U.S. 1124, 111 S. Ct. 1085, 112 L. Ed. 2d 1190 (1991); Gaston v. Taylor, 946 F.2d 340 (4th Cir. 1991)(en banc) (no liberty interest where received suspended sentence of isolation which did not bring about change in length or conditions of original sentence). Thus, if Stone-Bey has no liberty interest in remaining in the general prison population, then he is not entitled to due process prior to being segregated from the general prison population.

To discover if an inmate has a liberty interest or a constitutional "right" in an element of prison life, a court looks either to the Due Process Clause itself or to state statutes and regulations. Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293, 2297 (1995); Wolff v. McDonnell, 418 U.S. 539, 557, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). Some liberty interests, such as the right to remain free from cruel and unusual punishment, the right to stay out of [**11] a mental hospital, or the right to refuse involuntary administration of psychotropic drugs, flow directly from the Constitution itself. Sandin, 115 S. Ct. at 2300. Other liberty interests do not come from the United States Constitution; they are created by state statutes or regulations.

In Wolff, the Court held that Nebraska's statutes created a liberty interest in good time credits. Nebraska authorized good time credits and permitted an inmate to be deprived of the credits only for "major misconduct". The Court held that the statutory language created an interest of "real substance" which was "sufficiently embraced within Fourteenth Amendment Liberty to entitle [a state prisoner] to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated." Id., at 557.

Later cases expanded upon the concept of state created liberty interests but began to do so by looking not at the substance of the interest involved but instead at the nature of the language that created the interest. Courts began to focus on the whether the language was mandatory or discretionary. In Hewitt [**12] v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983) an inmate challenged his assignment to disciplinary segregation. n4 The Hewitt court found the due process clause itself did not create a liberty interest in remaining in the general prison population since nonpunitive segregation is the sort of confinement that inmates should reasonably anticipate at some point in their incarceration. Yet, the Court found the state created a liberty interest in remaining in the general prison population since it had gone beyond issuing mere procedural guidelines and had used "language of an unmistakably mandatory character, requiring that certain procedures 'shall', 'will' or 'must' be employed," Id., at 471, prior or [*1294] subsequent to confining an inmate in segregation. Id., at 471-72. n5



n4 The terms administrative segregation, disciplinary segregation, and solitary confinement are relatively interchangeable. Courts tend to point to the purpose of the segregation to differentiate between administrative and disciplinary or punitive segregation. If however, the conditions in either type of segregation are relatively similar (as they appear to be in many cases) then such discernment seems to be of little practical use. [**13]




n5 Following the language of Hewitt, Chief Judge Posner, in Smith v. Shettle, 946 F.2d 1250 (7th Cir. 1991) discussed but did not decide whether Indiana created a liberty interest in remaining in the general population. Instead, Chief Judge Posner found that the process the inmate received, notice and an opportunity to be heard, was sufficient in that case to withstand Constitutional scrutiny.


The Court later clarified Hewitt by stating that a state created liberty interest comes not from procedural laws, but from laws "establishing 'substantive predicates' to govern official decision making, and further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met." Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 462, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989) (citations omitted).

The court recently reiterated that the substantive nature of the alleged interest is of foremost importance. Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995). Sandin criticizes Hewitt and the cases that follow it for shifting [**14] the focus of the liberty interest from the nature of the deprivation to one based on the language of a particular regulation. Sandin, 115 S. Ct. at 2299. Following Hewitt, courts began to draw negative inferences from mandatory language in the text of prison regulations. Id. Thus, "if A then B" also became "if not A, then not B." Such reasoning produced at least two undesirable effects. "First, it created disincentives for States to codify prison management procedures in the interest of uniform treatment. ... Second, the Hewitt approach [] led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Id. While admitting that States may create liberty interests that are protected by the Due Process Clause, the Sandin court cautioned that "[liberty] interests will be generally limited to freedom from restraint [that] imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 2300 (emphasis added).


B. HECK V. HUMPHREY

Even if Stone-Bey has a liberty interest in remaining in [**15] the general prison population, the Defendant's argue that this court need not inquire further because Stone-Bey has not met the requirements of Heck v. Humphrey, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994). In Heck, the Court addressed the question of whether a state prisoner may challenge the constitutionality of his criminal conviction in a suit for damages under 42 U.S.C. § 1983. Heck, an Indiana inmate, brought a § 1983 lawsuit seeking damages, but not injunctive relief or release from custody--on the claim that the defendants, acting under color of state law, had engaged in unlawful acts that lead to his arrest and conviction. 114 S. Ct. at 2368. Believing that the legislative history of § 1983 precluded inmates from using § 1983 to challenge the validity of outstanding criminal judgments, the Heck court held that if the remedy sought under § 1983 would require a finding or judgment that would render a conviction or sentence invalid, then the § 1983 plaintiff must first "prove that the conviction was reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal [**16] court's issuance of a writ of habeas corpus." 114 S. Ct. at 2372.

Whether Heck applies to prison disciplinary proceedings is unclear. Heck was decided on the "hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Id. at 2372. (emphasis added). Heck concluded that if a district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment, the action should be allowed to proceed. Id. The Defendant's position is certainly appealing and this court admits that it is constraining Heck narrowly; yet, it is not clear that the present law in the Seventh Circuit applies Heck to prison disciplinary hearings. Several courts have hinted in unpublished [*1295] opinions that Heck may apply to prison disciplinary hearings, but no published opinions have mandated such a procedure. n6 Simply put, at this point, this court does not equate a prison disciplinary proceeding to a "criminal judgment". n7 Perhaps at the very least, there must be some evidence of a relationship between an inmates criminal conviction and the [**17] disciplinary proceedings. Here, there is no evidence that a judgment in the present lawsuit will affect Stone-Bey's underlying criminal conviction in any manner. Therefore, Heck does not apply and this court may proceed to the merits.



n6 See e.g., Colon v. Coughlin, 58 F.3d 865 (2nd. Cir. 1995)(Remarking that it is not immediately apparent whether Colon's claim, involving as it does an allegation that state prison officials misused an administrative process and subjected Colon to administrative penalties in retaliation for his exercise of constitutional rights, is of a type that falls within the holding of Heck.); cf, Hightower v. Vose, C.A. No. 93-0286- T (D. R.I. March 16, 1995), 1995 U.S. Dist. LEXIS 3368, *4.

n7 Stone-Bey argues that Heck could not be applied retroactively even if it did apply. Such an argument is misplaced as Heck itself was applied to the parties in the case, thus opening the door for retroactive application.



C. THE PROCESS DUE

Assuming without deciding [**18] that Stone-Bey was deprived of a liberty interest, the process due in a prison disciplinary setting is limited. The following words should sound familiar to Stone-Bey.


The requirements imposed by the Due Process Clause are "flexible and variable dependent upon the particular situation being examined." Hewitt v. Helms, 459 U.S. 460, 472, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). We "cannot automatically apply procedural rules designed for free citizens in an open society...to the very different situation presented by a disciplinary proceeding in a state prison." Wolff v. McDonnell, 418 U.S. 539, 560, 41 L. Ed. 2d 935, 94 S. Ct. 2963, (1974). Nonetheless, "a prisoner is not wholly stripped of constitutional protection when he is imprisoned for a crime. There is no iron curtain drawn between the Constitution and the prisons of this country." Id. at 555-56. Accordingly, in considering the command of the Due Process Clause in light of the peculiar exigencies of the prison setting, the Supreme Court has held that an inmate, while not entitled to the full panoply of due process rights accorded to free citizens, is entitled to fundamental protection from the arbitrary action [**19] of government. Wolff, 418 U.S. at 556-58; Hewitt, 459 U.S. at 472.


Rasheed-Bey v. Duckworth, 969 F.2d 357, 361 (7th. Cir. 1992)(Stone-Bey apparently also calls himself Rasheed-Bey).

In Wolff, supra, at 563-71, the Court set down the minimum procedures required by due process. An inmate facing disciplinary proceedings should receive: 1.) advance written notice of the claimed violation, 2.) a written statement of the factfinder as to the evidence relied upon and the reasons for the disciplinary action taken, 3.) the opportunity to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals, 4.) aid of a fellow inmate, or adequate substitute where the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, 5.) an impartial factfinder. Id. at 563-571. Cross-examination is left to the sound discretion of state prison officials. Id. at 569; Baxter v. Palmigiano, 425 U.S. 308, 322-23, 47 L. Ed. 2d 810, 96 S. Ct. 1551 (1976). See also, Rasheed-Bey, [**20] 969 F.2d at 361; Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988).


D. SUMMARY JUDGMENT STANDARDS

To be entitled to summary judgment, a party must show by the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, that there exists no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Russo v. Health, Welfare & [*1296] Pension Fund, Local 705, 984 F.2d 762 (7th Cir. 1993). See also, Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) n8; and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). n9 A party seeking summary judgment bears the initial responsibility of informing the court of the basis for the motion, and identifying "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Celotex, 477 U.S. at 324 (quoting [**21] Fed.R.Civ.P. 56). A material question of fact is a question which will be outcome determinative of an issue in the case. The facts material in a specific case shall be determined by the substantive law controlling the given case or issue. Anderson, 477 U.S. at 248. If a party meets its initial burden, then the non-moving party must "go beyond the pleadings" and "designate 'specific facts showing that there is a genuine [material] issue for trial.'" The non-moving party may not rest on his pleadings, Hughes v. Joliet Correctional Center, 931 F.2d 425, 428 (7th Cir. 1991), or upon conclusory allegations in affidavits. Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir. 1992). "The days are gone, if they ever existed, when the non-moving party could sit back and simply poke holes in the moving party's summary judgment motion." Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). During its analysis, this court must construe the facts and draw all reasonable inferences in the light most favorable to the non-moving party, Brennan v. Daley, 929 F.2d 346, 348 (7th Cir. 1991), but the Court is "not required to draw every conceivable inference [**22] from the record [in favor of the non-movant] -- only those inferences that are reasonable". Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991), Langston v. Peters, No. 93 C 2607 (N.D. Ill. Aug. 2, 1995), 1995 U.S. Dist. LEXIS 10985 *10. This court analyzes summary judgment motions under the standard of proof relevant to the case or issue. Anderson, 477 U.S. at 252-255.



n8 For the judicial epilogue of Celotex, see Catrett v. Johns-Manville Sales Corp., 263 U.S. App. D.C. 399, 826 F.2d 33 (D.C. Cir. 1987), cert. denied, 484 U.S. 1066, 108 S. Ct. 1028, 98 L. Ed. 2d 992 (1988).

n9 The 1986 Supreme Court trilogy was re-examined in Eastman Kodak v. Image Technical Services, 504 U.S. 451, 119 L. Ed. 2d 265, 112 S. Ct. 2072 (1992), a case born in the context of antitrust law. The most that can be said for Kodak is that it did not tinker with Celotex and Anderson, and possibly involves an attempt to clarify Matsushita. This view is well supported by an in-depth academic analysis in Schwarzer, Hirsch, and Barrans, The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441 (1992).


[**23]

Stone-Bey is a party moving for summary judgment that has the burden of proof at trial; therefore, to be entitled to summary judgment on his motion he "must establish affirmatively the lack of 'sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.'" Reserve Supply v. Owens-Corning Fiberglas, 971 F.2d 37, 42 (7th Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986)). In other words, Stone-Bey "must show that, on all the essential elements of [his] case on which [he] bears the burden of proof at trial, no reasonable jury could find for [Swihart or Barnes]." U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991); see also Irby v. Bittick, 44 F.3d 949, 953 (11th Cir. 1995); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993); International Shortstop Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991); Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986); F.T.C. v. American Standard Credit Systems, Inc., 874 F. Supp. 1080, [**24] 1086 (C.D. Cal. 1994); W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984). "If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the non-moving party, in response, 'come[s] forward with significant, probative evidence [*1297] demonstrating the existence of a triable issue of fact.'" Four Parcels, 941 F.2d at 1438 (quoting Celotex, 477 U.S. at 331, 106 S. Ct. at 2557 (Brennan J., dissenting)).

Since Stone-Bey has the burden of proof, to defeat his motion for summary judgment, Swihart and Barnes "must produce [] significant, probative evidence only after the movant has satisfied its burden of demonstrating there is no genuine issue of material fact." (emphasis supplied.) Chanel, Inc. v. Italian Activewear of Florida, Inc., 931 F.2d 1472, 1477 (11th Cir. 1991). Thus, if Stone-Bey fails to establish the absence of a genuine factual issue, the motion must be denied even if Swihart or Barnes present no evidence. Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 802 (5th Cir. 1993); National State Bank v. Federal Reserve Bank, 979 F.2d 1579, [**25] 1582 (3rd Cir. 1992); Houghton v. South, 965 F.2d 1532, 1536-37 (9th Cir. 1992); Resolution Trust Corp. v. Gill, 960 F.2d 336, 340 (3rd Cir. 1992); International Shortstop, 939 F.2d at 1265.


E. SWIHART

Stone-Bey argues that Swihart violated Stone-Bey's due process rights when Swihart failed to sign his reports, get his supervisor's signature, and to properly document witness statements all of which violated the procedures set forth in the Indiana Department of Correction Adult Disciplinary Policy Procedure (hereinafter "ADPP"). Stone-Bey alleges that each one of these failures are themselves sufficient to deprive him of due process. This court disagrees. First, the occurrence of the omissions themselves is merely a violation of state procedure which is not cognizable under § 1983. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 116 L. Ed. 2d 385; Pennhurst v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900. Moreover, the omissions were minor, correctable, and corrected.

Second, the total effect of the omissions goes to the weight, not the admissibility of the evidence. Absent fraud, the omissions are better presented as being indicative of [**26] insufficient evidence. Stone-Bey has not shown any malice or fraudulent intent by Swihart in his investigation. Bowens admitted in his affidavit attached to Stone-Bey's Motion for Summary Judgment that a "falsely fabricated a untrue allegation [was made] against offender Lorenzo L. Stone-Bey #10006". Although Bowens admits that he fabricated the story he states that another inmate by the name of Ralph Brown informed Swihart of the threat. Regardless of who actually informed Swihart, there exists sufficient information for a reasonable jury to believe that Swihart performed the investigation in good faith and that his reports were truthful as to the statements made by the inmates. Stone-Bey's Motion for Summary Judgment as to Swihart is DENIED. Since Swihart's omissions only affect the weight of the evidence before the CAB, the proper challenge is that Barnes misinterpreted the sufficiency of the evidence and not that the investigator was inadequate in collecting it.

Finally, to the extent that Stone-Bey is attempting to pin the blame on Swihart for the adequacy of his Notice of Disciplinary Hearing, Stone-Bey loses since this court finds the notice adequate. Swihart's motion [**27] for summary judgment is GRANTED and he is DISMISSED. The Clerk shall enter judgment accordingly.


F. BARNES

The Notice of Disciplinary Hearing provided adequate notice and allowed Stone-Bey to produce an adequate defense. Stone-Bey knew that at least one of the witnesses had to be Bowen. The spartan description is reflective of the simpleness of the alleged violation. There was no constitutional error in not dismissing the case on that basis.

Although it would have been more desirable for Stone-Bey to receive a written copy of the statements of his three witnesses, Stone-Bey admitted that Barnes read the statements aloud at the CAB hearing. Affidavit of Stone-Bey, March 8, 1995 Motion for Summary Judgment. Stone-Bey has not shown he or his lay-advocate were incapable of understanding or responding to Barnes' oral narration of the statements. There was no Constitutional error in not giving Stone-Bey a copy of the witness statements.

[*1298] For the same reasons that Swihart was not liable simply because the omissions occurred, Barnes is also not liable. The omissions themselves were violations of state procedural law. This court does not judge violations of state [**28] procedural law. There is no merit to this argument.

The remaining issues merit further discussion. Stone-Bey questions the sufficiency of the evidence in light of the recanted statement and the adequacy of the written record. The heart of Stone-Bey's complaint is that he was convicted on the testimony of one person who has since recanted his story. Even though the Report of Hearing indicates Barnes relied upon a "witness statement", no such statement appears in the record. Speculation upon Bowens' affidavit and Stone-Bey's December 16, 1993 Summary Judgment Brief at p.3. might lead one to think of inmate Brown or McKinney as the source of the missing statement but such is admittedly pure speculation. All of the parties refer to witnesses and their respective statements, but no such statements appear on the record. This court is not even given the name of a witness or informed in the alternative that the witness remains confidential. Bowens' now recanted statement as reported by Swihart is the only evidence of Stone-Bey's guilt. Thus, this court must decide (1) if Bowens' alleged statement by itself is sufficient to sustain a finding of guilt, and (2) if Barnes gave a clear indication [**29] of why he disbelieved the recanted statement of Bowens.

1. SUFFICIENCY OF THE EVIDENCE

In Superintendent v. Hill, 472 U.S. 445, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985), the court discussed the sufficiency of the evidence required to support a prison disciplinary board finding of guilt. Noting that "the requirements of due process are flexible and depend on a balancing of the interests affected by the relevant government action," Id. at 454, (citations omitted) the Court held that the deprivation of a liberty interest "does not comport with the minimum requirements of procedural due process, unless the findings of the prison disciplinary board are supported by some evidence in the record." Id. (citations omitted).

The Court explained further:


Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead the relevant question is, whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. ....The fundamental fairness guaranteed by the Due Process Clause does not require courts [**30] to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not comparable to a criminal conviction, and neither the amount of evidence necessary to support such a conviction, nor any other standard greater than some evidence applies in this context.


Id., at 455-456. (citations omitted). The "some evidence" standard requires the court to ask if "there is any evidence in the record that could support the [CAB's] []conclusion." Id. Only if no reasonable adjudicator could find the inmate guilty of the offense on the basis of the evidence presented will the court overturn a CAB's finding of guilt. Henderson v. United States Parole Commission, 13 F.3d 1073, 1077 (7th Cir.) n10



n10 See, e.g., Hamilton v. O'Leary, 976 F.2d 341 (7th Cir. 1992) (Where weapons could have been tossed in a vent by any one of 32 inmates, then there is only a 3.1% chance that the accused is guilty; court doubted that 3.1% chance is "some evidence" of guilty. Nevertheless, court found that argument had been waived and affirmed disciplinary board. In dissent, Chief Judge Posner suggested that even 12.5% chance of guilt was insufficient, but he also hinted that collective guilt might be sufficient to satisfy due process)


[**31]

In Ticey v. Peters, 8 F.3d 498 (7th Cir. 1993), in a petition of habeas corpus attacking his criminal conviction Ticey questioned whether "recanted statements provided sufficient evidence of guilt to comport with the guarantees of due process (i.e., on the basis of the recanted statements, could any rational finder of fact have found Ticey guilty [*1299] beyond a reasonable doubt)." Resolving that question in the affirmative, the Court indicated that it looked to whether:


1) the declarant was available for cross-examination; 2) the statement was made shortly after the events related and was transcribed promptly; 3) the declarant knowingly and voluntarily waived the right to remain silent; 4) the declarant admitted making the statement; and 5) there was some corroboration of the statement's reliability. Vogel, 691 F.2d 843 at 847 (citing United States v. Leslie, 542 F.2d 285 (5th Cir. 1976)). All the factors focus on the reliability of the statement and the fairness of the circumstances under which the statement was made.


Ticey, 8 F.3d at 501. The court made it clear that the factors "serve only as guidelines" Id. at 502, and that they "were not meant to [**32] be a litmus test for the admissibility (and reliability) of a prior unsworn inconsistent statement." Id. at 501. The court cautioned against an overly strict application of the factors and made it clear that "credible testimony of one identification witness is sufficient to support a conviction." Id. at 503. (citing Wandick v. Chrans, 869 F.2d 1084, 1089 (7th Cir. 1989)). It also noted "the judiciary's wary reception of recantations." Id. (citing United States v. Badger, 983 F.2d 1443, 1456 (7th Cir. 1993)).

Obviously, the due process required in a prison disciplinary proceeding ranks below that required in a criminal trial. Lenea v. Lane, 882 F.2d 1171 (7th Cir. 1989). Therefore, if the factors are "merely" guidelines for underlying convictions, they are even more flexible in the context of a prison disciplinary hearing. Nevertheless, they do indicate that reliability is the touchstone by which a recanted statement should be judged. There is no dispute that the statement was made, See Affidavit of Bowens, and the need for cross-examination was ameliorated by Bowens admitting that he made to statement to help him beat a prior accusation of illegal [**33] possession. n11 There is no dispute that the alleged fabrication was recorded by Swihart shortly after it was made. Bowens as a victim of the threat had no right to remain silent and although he denied he informed Swihart he did admit to falsely accusing Stone-Bey. The only alleged fabrication in this entire case is that Bowens was threatened by Stone-Bey. Stone-Bey points to no other fabrication. Therefore, Bowens admission that he fabricated a story about Stone-Bey combined with the fact that no other fabrications are at issue here makes Bowens affidavit insufficient to create a material issue of fact as to whether he actually made a statement that Stone-Bey threatened him. Clearly he did.



n11 While the affidavit of Bowens did not appear at the CAB hearing, Stone-Bey admits in his affidavit attached to his March 8, 1995 Motion for Summary Judgment that Barnes was aware that Bowens admitted the fabrication in order to avoid punishment for his own violation of correctional facility policy. Moreover, there does not appear to be any readily apparent reason why such an accusation would help Bowens "beat the case" against him for illegal possession. In his affidavit Bowens had an opportunity to state why he lied. He initially explained that he lied so that he could be checked into protective custody. Bowens then admits in a rambling and largely incoherent statement that he is a homosexual, that another inmate Ralph Brown obtained Stone-Bey's name and number from a bulletin board, and that the fabrication was done out of envy and jealousy after a shake-down revealed Bowens in possession of an illegal substance so that Bowens could "beat the case". The only possible connection might be that Bowens hoped that the prison staff would believe that the drugs were payment to satisfy the debt and thereby give Bowens' a break by allowing him to go into assumedly less restrictive protective custody instead of disciplinary segregation.


[**34]

Most importantly, there must be some corroboration of the reliability of the statement. To repeat, reliability is the key to the sufficiency of the recanted statement. It does not take much corroboration. Barnes alleges corroboration, but none appears in the record. Barnes states in his affidavit that he found Stone-Bey guilty by relying in part on the results of a voice stress analysis. Voice stress analysis results are clearly admissible for corroboration in prison disciplinary hearings, See, Lenea v. Lane, 882 F.2d 1171, 1174 (7th Cir. 1989)(remarking: "In prison disciplinary hearings, polygraphs may corroborate vital testimony or other evidence"), but the case law contemplates some [*1300] sort of tangible "result". Mere allegations of a test result are insufficient. n12



n12 This court is also intrigued by the Indiana State Prison memorandum submitted by Stone-Bey as an exhibit to his Additional Memorandum in Support of Plaintiffs Motion for Summary Judgment. That memorandum states that "voice stress analysis is...never used to determine the guilt or innocence of any individual" and that such tests "prove nothing". Whether the left hand does not know what the right is doing, or whether the memorandum means to say that the prison will only allow them to be used as corroborating rather than direct evidence is not clear.


[**35]

Barnes also indicates that he relied upon a witness statement. No witness statement appears on the record. This is not to say that conduct reports must be accompanied by written statements of each and every witness to the event. If the prison official personally witnesses the event and makes a report, then that is a witness statement and without any other complications, that would be sufficient. Nevertheless, the only evidence in this record is recanted hearsay.

This court does not mean to be overly harsh on Barnes. This court can not say that the test results or the witness statements never existed, for they may have been lost by some clerk or inmate. Thus, there is a material question of fact as to whether they existed at all in the first place. Such a question can not be determined from the record now before this court. Barnes has not shown at this stage that the evidence he relied upon was constitutionally sufficient under Supt. v. Hill and Ticey, supra. But neither has Stone-Bey showed that he is entitled to judgment as a matter of law. A finder of fact could find that a witnesses statements did exist, and that it contained the allegations that Bowens' was threatened [**36] by Stone-Bey. Stone-Bey's motion for summary judgment as to Barnes is Denied.

2. WRITTEN RECORD

Even if the recanted statement provides sufficient evidence, Barnes must adequately explain why he chose to reject Bowens' recantation. Barnes is entitled to make a credibility decision Wade v. Farley, 869 F. Supp. 1365, 1371 (N.D. Ind. 1994), but he must make a decision, he "may not arbitrarily refuse to consider exculpatory evidence simply because other evidence in the record suggests guilt." Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995) (citing Viens v. Daniels, 871 F.2d 1328, 1336 n.2 (7th Cir. 1989); Smith v. Farley, 858 F. Supp. 806, 808-09 (N.D. Ind. 1993)). In other words, Barnes could not simply rely upon Bowens' first statement without at least addressing the exculpatory evidence (i.e. the recantation).

To his credit, Barnes did not ignore the recantation. His affidavit specifically indicates that he found the recantation incredible due to the signed statement and the voice stress analysis. Here again those documents are missing. The Whitford court did not specify if the basis for the articulated reasons had to appear in the [**37] record. It merely indicated that the articulation had to be sufficient enough to allow "a reviewing court or agency [to] determine whether the finding was sufficiently arbitrary so as to be a denial of the inmate's due process rights." Whitford, 63 F.3d 527, 1995 U.S. App. LEXIS 20693 at *25 (grammatical adjustments omitted). Although proof of the existence of the missing statements or test results would be more than enough evidence to allow this court to determine that the finding was not so arbitrary so as to be a denial of the inmates' due process, such tangible evidence is not required in the unique and inherently subjective area of credibility determination. Often credibility is determined on things whose existence is never recorded or proved, e.g. body language. On the other hand, an example of unacceptable arbitrariness would be a rejection simply because the inmate was Hispanic, or because of the simple fact that he was an inmate. This court is satisfied that Barnes's credibility determination was no so arbitrary as to violated due process.

To sum up Barnes situation, he adequately explained why he chose to believe Bowens' first statement and not his recantion. The statement is thus [**38] evidence of Stone-Bey's guilt. However, because the statement was recanted, standing alone without corroboration it is insufficient to support a finding of [*1301] guilt. Whether the statement actually stands alone is a question of fact that can not be answered at this stage of the litigation.


G. LIBERTY INTEREST (Part II)

However, it is possible that the corroboration question need not ever be answered since this court is not certain that Stone-Bey has any liberty interest in remaining in the general prison population under the reasoning of the recent Sandin case. It seems that an ordinary incident of prison life is that inmates who violate prison rules land in disciplinary segregation. Cf, Rowe v. DeBruyn, 17 F.3d 1047, 1053 (7th Cir. 1994). In Whitford, supra, the Court of Appeals ordered the case remanded back to the district court for a finding on whether in light of Sandin, Whitford possessed a liberty interest in freedom from placement in disciplinary segregation.

Due to the recentness of Sandin, neither party addressed whether Stone-Bey possessed a liberty interest in remaining in the general prison population under Sandin. This court declines [**39] to speculate as to Sandin's application without adequate briefing by the parties. As articulated above, this court does have concerns about the process Stone-Bey received. Nevertheless, if Stone-Bey does not have a liberty interest in remaining in the general prison population those concerns are of no moment and Barnes is entitled to summary judgment.

Since both sides are represented by excellent counsel, this court feels it would be prudent to set this case for briefing and oral argument. The issue is whether Indiana has conferred by statute or administrative rule or regulation a liberty interest in remaining in the general prison population. The briefing should include specific discussion and citation to the relevant Indiana statutes and administrative rules and regulations that may be responsible for creating a liberty interest. The briefing should explain the difference, if any, between disciplinary and administrative segregation and to what extent, if any, the differing conditions affect a prisoner's liberty interest. It should also discuss whether the length of the segregation has any bearing on the formation of a liberty interest. Finally, the briefing should also discuss [**40] how segregation affects an inmates chances for parole and whether that has any bearing on an inmates liberty interest. The above are merely the minimum issues that this court expects to be briefed, of course if relevant to the issue at hand, this court welcomes briefing on any other issues. The importance of this question must not be lost as the resolution may greatly affect many future cases. This court welcomes petitions by interested parties to file amicus curiae briefs.

V. CONCLUSION

Is the ORDER of this court that Defendant Swihart be DISMISSED and JUDGMENT entered in his favor. It is the ORDER of this court that Stone-Bey's March 8, 1995 Motion for Summary Judgment be DENIED and his December 16, 1993 Motion DENIED as MOOT. The parties are directed to file a brief on the issue of whether Stone-Bey has a liberty interest sufficient to trigger due process in the CAB hearing under the recent case of Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995). The parties shall have until and including November 1, 1995 to file such briefs. If they desire to do so, the parties shall have until and including November 10, 1995 to [**41] file their respective reply briefs. Oral argument will be set thereafter at a mutually convenient time.


IT IS SO ORDERED.

Dated this 22nd day of September, 1995.

ALLEN SHARP, CHIEF JUDGE

UNITED STATES DISTRICT COURT