Holly, Christopher v. Woolfolk, D. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2448
CHRISTOPHER HOLLY,
Plaintiff-Appellant,
v.
D. WOOLFOLK, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 03 CR 2563—Ruben Castillo, Judge.
____________
ARGUED JUNE 15, 2005—DECIDED JULY 18, 2005
____________
Before POSNER, COFFEY, and KANNE, Circuit Judges.
POSNER, Circuit Judge. Christopher Holly was a pretrial
detainee at Cook County Jail who was placed in segregation
(that is, in solitary confinement) for two days without a
prior hearing. He brought suit for damages under 42 U.S.C.
§ 1983 against the correctional officers responsible for
placing him in segregation, contending that the denial of a
predeprivation hearing meant that he had been deprived of
liberty without due process of law. It is unclear what
damages he could prove for being confined to a cell for two
days rather than being free to roam the dangerous general-
2 No. 03-2448
population area of the jail—and dangerous it is. Ben
Bradley, “Doing Time,” ABC News, Special Segment, Feb. 15,
2005, http://abclocal.go.com/wls/news/
specialsegment/print_021405_ss_doingtime.html (“last year,
there were 29-seperate [sic] stabbings inside the jail”); Tom
Rybarczyk, “3 Inmates Are Stabbed During Fight in Cook
Jail,” Chi. Trib., Jan. 23, 2005, Metro Section, p. 1 (fight
between rival gangs at the jail sent three inmates to the
hospital and left four others injured—“incident was at least
the third stabbing in a Cook County Jail in the last four
months. A stabbing in November left a 17-year-old subur-
ban teenager dead”); Patrick Rucker & Jo Napolitano, “21
Hurt in Gang Fight at Cook Jail,” Chi. Trib., Oct. 17, 2004,
Metro Section, p. 1 (15 inmates treated for superficial
wounds by paramedics and six taken to trauma centers); Jeff
Coen, “Cook Jail Crowding Fuels New Volatility,” Chi. Trib.,
Mar. 3, 2003, News Section, p. 1 (“officials pointed to two
stabbings in the jail in the last few weeks, including a Jan. 24
brawl that left 10 injured”); “4 High-Security Inmates
Injured in Brawl,” Chi. Trib. (sports final ed.), Apr. 11, 2002,
Metro Section, p. 3; Frank Main & Carlos Sadovi, “County
Jail to Return Convicts to Prison,” Chi. Sun-Times, Mar. 26,
2002, p. 7 (inmate “stabbed to death in a gang fight” on
Saturday and the next day two inmates “stabbed with
homemade knives and two others suffered head injuries in
beatings with a 16-inch towel bar”); David Southwell,
“Personal Approach Keeps Lake County Inmates in Line,”
Chi. Sun-Times, May 26, 1997, p. 40 (“officials at Cook
County Jail said an inmate attacks a guard there once a
month and that violence between inmates erupts once a
week”).
Negligible as Holly’s damages undoubtedly are, there is
no required minimum amount in controversy in a federal
civil rights suit; and although being placed in segregation is
No. 03-2448 3
too trivial an incremental deprivation of a convicted pris-
oner’s liberty to trigger the duty of due process, Sandin v.
Conner, 515 U.S. 472, 485-86 (1995); cf. Paige v. Hudson, 341
F.3d 642, 643 (7th Cir. 2003); compare Wilkinson v. Austin,
125 S. Ct. 2384, 2394 (2005), a number of cases, influenced by
language in Bell v. Wolfish, 441 U.S. 520, 536-37 (1979),
consider any nontrivial punishment of a person not yet
convicted a sufficient deprivation of liberty to entitle him to
due process of law. Rapier v. Harris, 172 F.3d 999, 1002-05
(7th Cir. 1999); Fuentes v. Wagner, 206 F.3d 335, 341-43 (3d
Cir. 2000); Mitchell v. Dupnik, 75 F.3d 517, 524-25 (9th Cir.
1996); Collazo-Leon v. U.S. Bureau of Prisons, 51 F.3d 315, 318-
19 (1st Cir. 1995); Walker v. Navarro County Jail, 4 F.3d 410,
412 (5th Cir. 1993) (per curiam). Nevertheless the district
judge found no denial of due process and therefore dis-
missed the suit for failure to state a claim. So, at least, both
sides construe his decision; he himself described it as
dismissing a “frivolous” suit, but the difference is without
consequences for Holly. 28 U.S.C. § 1915(g). The suit lacks
merit, but it is not frivolous.
The guards in this huge, unruly jail (the third largest in
the nation—its average daily population in 2002, when the
incident that precipitated Holly’s suit occurred, was 10,888,
Bureau of Justice Statistics, U.S. Dep’t of Justice, “Prison and
Jail Inmates at Midyear 2002,” p. 10)—are required to do
headcounts three times a day. Ill. Admin. Code tit. 20,
§ 701.140(g). According to the incident report, Holly was
placed in segregation because he disrupted a headcount by
standing in the doorway of his cell, preventing the guard
who was conducting the headcount from determining
whether Holly’s cellmate was in the cell. When the guard
asked Holly to step to one side, he refused and told the
guard to go fuck himself. After two days in segregation,
Holly was given a hearing and then released back into the
4 No. 03-2448
general population of the jail, apparently having been found
not guilty of disrupting the headcount.
As we noted recently in Ellis v. Sheahan, No. 04-3947, 2005
WL 1413905, at *3 (7th Cir. June 17, 2005), the due process
clauses do not confer a right to a predeprivation hearing in
every case in which a public officer deprives an individual
of liberty or property. E.g., Zinermon v. Burch, 494 U.S. 113,
128 (1990); Memphis Light, Gas & Water Division v. Craft, 436
U.S. 1, 19-20 (1978); Ingraham v. Wright, 430 U.S. 651, 682
(1977); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.
663, 678-80 (1974). So adamantine a rule would violate the
sliding-scale approach of Matthews v. Eldridge, 424 U.S. 319,
332-35 (1976), which requires comparison of the costs and
benefits of alternative remedial mechanisms, and which was
reaffirmed by the Supreme Court just the other day in
Wilkinson v. Austin, supra, 125 S. Ct. at 2395; see also Hamdi
v. Rumsfeld, 124 S. Ct. 2633, 2646 (2004) (plurality opinion);
Swank v. Smart, 898 F.2d 1247, 1255-56 (7th Cir. 1990); Kapps
v. Wing, 404 F.3d 105, 118 (2d Cir. 2005); Graham v. City of
Philadelphia, 402 F.3d 139, 145-46 (3d Cir. 2005). A pertinent
example is that a person who has been arrested, even
though no warrant for his arrest had been issued, may gen-
erally be jailed for up to 48 hours before being brought be-
fore a judicial officer for the probable-cause determination.
County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991);
Haywood v. City of Chicago, 378 F.3d 714, 717 (7th Cir. 2004);
cf. Gerstein v. Pugh, 420 U.S. 103, 124-25 (1975). What hap-
pened here was a compelling analogy to an arrest. There
was probable cause to believe that Holly was disrupting jail
discipline. So he was removed from the general population,
corresponding to the free population outside the jail, and
placed in isolation, corresponding to the jailing of an
arrested person, and he got his hearing in 48 hours, just as
he would have had he been arrested “on the street” rather
than within the jail.
No. 03-2448 5
Due process permits an arrest without a previous hearing
because it is dangerous to allow a person who the police
have probable cause to believe has committed a crime to
roam at large while awaiting a hearing. It is equally dan-
gerous to allow a prisoner who the guards have probable
cause to believe has violated a disciplinary rule to roam at
large in the general jail population; Cook County Jail has the
population of a town. Holly was separated from the general
jail population much as arrest separates a free person from
the free population, and the hearing he received 48 hours
later was all the process that was due him.
This conclusion is supported by Hewitt v. Helms, 459 U.S.
460 (1983), even though that case involved convicted
inmates rather than detainees, and administrative rather
than disciplinary segregation. The Court held that due
process was satisfied by providing process “within a rea-
sonable time after confining [the inmate] to administrative
segregation.” 459 U.S. at 472 (emphasis added). It pointed
out that “Helms was merely transferred from an extremely
restricted environment to an even more confined situation.
Under the Mathews formula, [Helms] has a far less compel-
ling claim to procedural safeguards than did the pre-trial
detainees in Gerstein.” 459 U.S. at 475. The Court added that
“the isolation of a prisoner pending investigation of miscon-
duct charges against him serves important institutional
interests relating to the insulating of possible witnesses from
coercion or harm,” and that “in the volatile atmosphere of
a prison, an inmate easily may constitute an unacceptable
threat to the safety of other prisoners and guards even if he
himself has committed no misconduct; rumor, reputation,
and even more imponderable factors may suffice to spark
potentially disastrous incidents.” Id. at 473-74. See also
Hatch v. District of Columbia, 184 F.3d 846, 852 (D.C. Cir.
1999); McCormick v. Stalder, 105 F.3d 1059, 1062 (5th Cir.
1997).
6 No. 03-2448
The Court’s reasoning controls the present case, as other
cases involving pretrial detainees recognize. Benjamin v.
Fraser, 264 F.3d 175, 190 (2d Cir. 2001); Walker v. Navarro
County Jail, supra, 4 F.3d at 412; cf. King v. Greenblatt, 149
F.3d 9, 18-19 (1st Cir. 1998). It is true that an earlier decision
by the Supreme Court, Hughes v. Rowe, 449 U.S. 5 (1980) (per
curiam), leans Holly’s way. But it was distinguished in
Hewitt as a mere pleading case, 459 U.S. at 469, before the
Prison Litigation Reform Act made it easier to dismiss a
prisoner civil rights suit on the pleadings. 28 U.S.C.
§§ 1915(e)(2)(B), 1915A. And see Frazier v. DuBois, 922 F.2d
560, 563 (10th Cir. 1991), on the limited significance of
Hughes after Hewitt.
Holly cites decisions in which no hearing was conducted
even though the pretrial detainee had been in segregation
for far longer than in this case—34 days in Higgs v. Carver,
286 F.3d 437 (7th Cir. 2002), and 270 days in Rapier v. Harris,
supra, 172 F.3d at 1002. Higgs does not suggest that the
hearing had to be predeprivation (nor does Mitchell v.
Dupnik, supra, 75 F.3d at 524-25, a similar case), and the bare
suggestion of that in Rapier is dictum. Hawkins v. Poole, 779
F.2d 1267, 1268 (7th Cir. 1985), recites noncommittally a
concession by the defendant that the plaintiff was entitled
to a predeprivation hearing, but again it was a case in which
no hearing had been conducted, pre-or postdeprivation.
As modified to base dismissal on lack of merit rather than
on the suit’s being frivolous, the judgment is
AFFIRMED.
No. 03-2448 7
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-18-05