IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

Robert Westefer, Mark Von Perbandt, Alejandro Villazana, Armando Tinajero, Corey Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago, Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mary Chapman, as the administrator of the Estate of Marcus Chapman, Ronnie Carroll, Roosevelt Burrell, Finner Bryant, Larry Brown, and Aryules Bivens, individually and on behalf of the plaintiff class,
Plaintiffs,
v.

No. 00-162-GPM
PLAINTIFFS DEMAND TRIAL BY JURY on their claims for damages

Donald Snyder, Odie Washington, Michael V. Neal, George DeTella, and Michael O'Leary, Dwayne Clark, Jerry Gilmore, Lamark Carter, Rodney Ahitow, Roger Cowan, and Thomas Page, in their individual capacities; and Roger Walker, Salvador Godinez, Guy Pierce, Barbara Hurt, Rick Orr, Ronald Meek, Jason Garnett, Deirdre Battaglia, Eddie Jones, Don Hulick, and Roger Zimmerman, in their official capacities only,

Defendants.

SECOND AMENDED COMPLAINT FOR INJUNCTION, DECLARATORY JUDGMENT, AND DAMAGES

Plaintiffs, Robert Westefer, Mark Von Perbandt, Alejandro Villazana, Armando

Tinajero, Corey Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago, Tyshawn

Ross, Edward Rodriguez, Vincente Rodriguez, Vincent Reyna, Alex Muller, William

Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Timothy Hall,

John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice

Coleman, Laverne Clayton, Gary Clark, Mary Chapman, as administrator of the

Estate of Marcus Chapman, Ronnie Carroll, Roosevelt Burrell, Finner Bryant, Larry

Brown, Aryules Bivens, through their attorneys complain of the defendants, Donald

Snyder, Odie Washington, Michael V. Neal, George DeTella, Michael O'Leary, Dwayne

Clark, Jerry Gilmore, Lamark Carter, Rodney Ahitow, Roger Cowan, Thomas Page,

Roger Walker, Salvador Godinez, Guy Pierce, Barbara Hurt, Rick Orr, Ronald Meek,

Jason Garnett, Deirdre Battaglia, Eddie Jones, Don Hulick, and Roger Zimmerman as

follows:

NATURE OF THE CASE

1. Plaintiffs are inmates who are currently confined in Illinois' supermax

prison, Tamms Correctional Center1 ("Tamms"). Plaintiffs allege that their selection

by the defendants for transfer to (and continued confinement at) Tamms violates their

rights to petition the government, to free association, and to due process, and the ban

on ex post facto punishments, all as protected by the ex post facto clause and the First

and Fourteenth Amendments of the United States Constitution. Plaintiffs further

allege that their transfer to and continued confinement at Tamms violates state law.

2. Tamms is intended as a severe form of punishment for the "worst of the

worst" of Illinois' prisoners; those who are simply too dangerous to be housed even at

Illinois' four three male maximum security prisons.

1 There is also a minimum security prison located adjacent to the Supermax facility, which is also

named “Tamms Correctional the closed maximum security

Cunenitt,ecro.”mTmhoronulyghkon2uotwthnisascothmep“lsauinpte,r“mTaaxm.”ms”

refers

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3. However, the reality is that Tamms is not populated by the worst, most violent or dangerous inmates in the Illinois prison system. Rather, it is largely populated by Litigators2 and alleged gang associates3, many of whom have no significant disciplinary histories.
4. Certain of the plaintiffs in this case were selected for transfer to Tamms in retaliation for their actions as Litigators litigation, grievances, and writ writing (Count One), or because of their past association with other inmates who the defendants labeled as gang members (Count Two). None of the plaintiffs were not given a meaningful opportunity to a hearing to contest the decision to transfer them to Tamms and several were transferred to Tamms as punishment for conduct which, at the time, was encouraged by the IDOC, in violation of due process (Count Three Two). Finally, the criteria and procedures used to select plaintiffs for transfer to Tamms, and the conditions under which they are confined at Tamms, violate the applicable Illinois statutes and regulations which govern the operations of the Illinois Department of Corrections (Count Four).
JURISDICTION AND VENUE
5. This action is brought pursuant to 42 U.S.C. § 1983, and the ex post facto clause and First and Fourteenth Amendments of the Constitution of the United States. Therefore, this Court has jurisdiction over this action pursuant to 28 U.S.C. §§1331 and 1343.
6. Jurisdiction is proper in the Southern District of Illinois pursuant to 28 U.S.C. § 1391(b), as a substantial part of the events giving rise to plaintiffs' claims
2 “Litigator” is used in this complaint to refer to prisoners who have filed formal cases against Department officials and employees, assisted others in doing so, filed grievances , or otherwise engaged in constitutionally protected actions complaining about the condition of their confinement. 3 The Department has substituted the phrase “security threat group” for the traditional “gang.” Those labels are used interchangeably in this com3 plaint.

occurred at Tamms, Illinois, located in the Southern District and, upon information and belief, one or more of the defendants resides in the Southern District and all defendants reside (or resided at the time this case was filed) in the State of Illinois.
TAMMS CORRECTIONAL CENTER
7. Tamms Correctional Center is the highest security prison operated by the Illinois Department of Corrections ("IDOC"). It is located in the Village of Tamms in Alexander County, in the very southern most portion of the State of Illinois. It is located approximately 370 miles from the City of Chicago, where the families of the majority of inmates reside.
8. Tamms was opened on March 9, 1998. It is designed to hold approximately 500 inmates, but has never in fact held more than its current population of approximately 275 inmates.
9. Tamms is designed to be extremely harsh. IDOC officials have stated that they want conditions at Tamms to be so bad that inmates throughout the system are motivated to follow all departmental rules based upon the mere threat of being transferred to Tamms.
10. The conditions of confinement at Tamms present inmates with atypical and significant hardships in relation to the ordinary incidents of prison life, including the hardships imposed at the most restrictive segregation units in Illinois' maximum security prisons. At Tamms, control and punishment are imposed through extreme social isolation, severely restricted movement, and an environment that virtually eliminates all external stimuli.
11. Tamms consists of eight self-contained cell blocks, called pods, each holding six wings of 10 cells. A centralized control booth operates all lights and doors and the water supply; video cameras provide visual surveillance; intercoms provide
4

communication between inmates and guards without human contact, and allow guards to eavesdrop on inmates.
12. To restrict the movement of inmates, each pod is a self-contained living unit that includes an exercise area, a shower, a room containing a few law books, and a multi-purpose room which is used by the medical staff, all controlled from the central control booth. Movement between pods is through an underground tunnel.
13. At Tamms, each inmate spends between 23 and 24 hours a day, seven days a week, in a single 70 square foot concrete cell. Each cell contains only a concrete bed, a stainless steel combination sink and toilet, a mirror, a shelf, and two boxes for storing personal property. As is explained below, many inmates are not permitted a television, radio, or cassette player. Each cell has a narrow window placed high on the wall from which it is impossible for inmates to see anything unless they stand on their bed. The cell door is made of steel mesh with small holes that is difficult to see through. Located at the bottom of the door, a few feet off the ground, is a slot (sometimes referred to as a chuckhole) which is used to pass food to the inmates. It is locked from the outside. The inmates' view through the steel mesh of their cell door is of a plain concrete wall. Inmates cannot see each other.
14. Inmates do not leave these cells for meals, which are served on plastic trays pushed through the chuck hole. The trays and all utensils must be placed back in the chuck hole by the inmate within 30 minutes of being served. Inmates do not leave to visit with other inmates. Inmate contact with each other is strictly forbidden. Inmates do not leave their cells for communal religious services, educational programs, or jobs, none of which exist at Tamms. Those inmates who can read (and many cannot) are permitted a limited number of books in their cells. Manyost inmates cannot listen
5

to the radio or watch television as those are privileges generally allowed only to those inmates in AD4 status who have advanced to behavioral level three.
15. Inmates cannot socialize or communicate with other prisoners, except by yelling into the pod, where the extreme echoing effect makes it extremely difficult to hear and virtually impossible to understand. In addition, on many wings, one or more prisoners scream or bang on cell walls throughout the day and night, so that other inmates cannot sleep.
16. The only time inmates regularly leave their cells is to exercise or take a shower. Depending on an inmate's status, these are permitted one to four times a week. Occasionally, they may use the law books or see a social worker, both within the pod. Very rarely are they permitted to travel outside the pod to the health care unit or the visitor's room. At no time are two or more inmates on a wing allowed outside of their cells at the same time.
17. Whenever an inmate leaves his cell for any purpose except exercise and shower, and each time he returns, he must submit to a full body cavity search. First, he removes his clothes and hands them to the guard. Standing naked, he must display his ears, feet, and hands. Then he must bend over, his back to the guard, and spread his buttocks. He must raise his penis so the guards can examine his testicles. He may be ordered to expose the groove around the tip of his penis or, if not circumcised, to pull back the foreskin.
18. After dressing, he must back up to the cell door and place his hands through the chuck hole where the guard handcuffs them. The inmate then must kneel or lie on the floor while the guard shackles his ankles. Throughout this procedure, the guard wears latex or leather gloves to ensure that the inmate never has any human

4 Administrative Detention. The different categories of inmates are described in paragraphs 23 and

24, below.

6

contact. If the inmate moves outside of his pod, he is surrounded by two or three guards, who place their arms on his chest and shoulders and his movements may be tracked by a guard with access to a semi-automatic rifle. These punitive and humiliating exchanges are the only time a Tamms inmate feels another person's touch, except when he is examined by a doctor. Even such examinations usually take place while the inmate's legs are shackled and his arms may be held by guards.
19. On some days, inmates are allowed out of their cells for an hour to exercise and shower. Inmates in the most restricted categories5 are permitted one hour of yard and one shower per week. Inmates in the most liberal categories are permitted seven hours of yard and five showers per week. Exercise takes place in a concrete "yard", about 15 by 30 feet, located at the end of each pod. The yard is completely empty; it contains no recreation equipment, no drinking fountain, and no toilet. The walls are solid concrete. A stainless steel plate covers two thirds of the yard; the remaining one third is steel mesh. The view through the steel mesh is often an inmate's only glimpse of natural light and the outside world. Many inmates go for weeks without leaving their cells to exercise because their privileges have been removed revoked for disciplinary reasons.
20. An inmate's contact with friends and family is infrequent, uncomfortable, and without physical contact. Telephone calls are prohibited, except in the case of documented emergencies (however, even family members' fatal illnesses are not considered emergencies). Visits are cumbersome, short, expensive for the visitor, and inhospitable. Each visit must be arranged at least two weeks in advance for a specific time. The visit is forfeited if the visitor is late. As Tamms is approximately 370 miles from Cook County, and an hour's car ride from the nearest train station or airport,
5 The behavioral levels which govern privileges7are explained in paragraphs 23 and 24.

timely arrival is difficult and the trip is expensive. Visits last no longer than two hours. A thick glass shield separates the visitor from the inmate. All communication is through a microphone that distorts voices and cuts off all conversation if more than one person tries to talk at once. All such conversations are monitored by the guards. Both the visitor and the inmate must sit on steel stools which are attached to the floor too far from the glass shield for conversation to be comfortable. The inmate's legs are chained to a bolt in the floor. If the inmate is in Segregation status (see paragraphs 23 and 24, below), he is handcuffed.
21. Communication with religious personnel is similarly restricted and is not confidential. There is no provision for confidential confessions and it is extremely difficult to arrange for the taking of sacrament.
22. Communication between inmates and attorneys is also severely restricted. Inmates are not permitted to initiate calls to their attorneys. Rather, attorneys must request, in writing, that the inmate be permitted to call. Unless the attorney can convince Tamms' staff that the communication cannot be in writing or in person, permission for a legal call will be denied. If an attorney does visit an inmate in person, the visit is through the same thick glass plate described above and the conversation is monitored can be overheard by guards6. There is no facility available for confidential communication. Written communications from attorneys are theoretically confidential; however, inmates' cells are searched frequently and during such a search all papers, including confidential legal correspondence, are examined.
23. Inmates at Tamms are divided into two categories. Inmates who have been found guilty of a disciplinary violation and sentenced to segregation at another prison prior to being transferred to Tamms are held in segregation status. Inmates in
6 Since this case was filed, the IDOC has constructed a new room for legal visits at Tamms which, while still not entirely confidential, is an improvem8ent over the original arrangements for legal visits.

segregation status who are transferred to Tamms do not receive any hearing or opportunity to contest their placement at Tamms. They are not even provided a reason for their transfer to Tamms. When an inmate completes his segregation sentence, he has the right to appear before the transfer review committee to determine whether continued placement at Tamms in AD status is appropriate.
24. All other inmates at Tamms are in Administrative Detention ("AD") status. Administrative Detention is not related to any specific disciplinary violation by an inmate. Rather, an inmate is placed in AD status based upon a generalized determination by the IDOC that the inmate is a danger to the safety and security of staff or inmates, or other similar reasons. An inmate transferred to Tamms in AD status is entitled to a hearing within 10 days after of his transfer to Tamms, before a transfer review committee, at which time he may make an oral statement but has no right to review the evidence relied upon or to call witnesses or present documents to support his contention that he should not have been transferred to Tamms. Pursuant to the applicable administrative regulations (20 Ill. Adm. Code §505.70), inmates in AD status are supposed to be reviewed every 90 days to determine whether continued placement in AD status (and therefore at Tamms) is appropriate. In fact, no such reviews take place. When an inmate enters Tamms in AD status he is placed in behavioral level one. His behavioral level is reviewed every 90 days and, if the IDOC determines that his behavior has improved, he is promoted to behavioral level two and thereafter to behavioral level three, the highest level. Each promotion gains an inmate additional privileges, such as an expanded list of commissary items, additional shower and yard time, and the right to purchase audio visual equipment.
THE PARTIES
THE DEFENDANTS
9

25. Defendant Donald Snyder was has been either the Acting Director or the Director of the Illinois Department of Corrections ("IDOC") since from 1999 until approximately 2003. As such he is was responsible for the administration of all correctional facilities operated by the State of Illinois. He has personal, first-hand knowledge of the operation of Tamms, and upon information and belief was personally involved in formulating and approving the standards currently used for selecting inmates for transfer into and out of Tamms. Mr. Snyder is sued in both his individual and official capacityies.
26. Defendant Odie Washington was Mr. Snyder's predecessor as Director of the IDOC. He served in this position during the entire period during which Tamms was designed and built, and continued to serve as Director until 1999. As such he was responsible for the administration of all correctional facilities operated by the State of Illinois. He has personal, first-hand knowledge of the operation of Tamms, and upon information and belief was personally involved in formulating and approving the standards for selecting inmates for transfer to Tamms. Mr. Washington is sued in his individual capacity only.
27. Defendants Michael Neal, George DeTella, Michael O'Leary, Lamark Carter, Dwayne Clark, and Thomas Page served as Deputy Directors or Assistant Deputy Directors of the IDOC during the period when the plaintiffs were selected for transfer to Tamms. As is described in detail below, each of them personally approved the transfer of one or more of the named plaintiffs to Tamms. They are sued in both their individual and official capacities.
28. Defendants Lamark Carter, Jerry Gilmore, Thomas Page, Roger Cowan, Dwayne Clark, and Rodney Ahitow served as Wardens during the period when the plaintiffs were approved for transfer to Tamms. As is described in detail below, each of
10

them personally approved the transfer of one or more of the named plaintiffs to Tamms. They are sued in both their individual and official capacities.
29. Defendant Roger Walker is the current Director of the IDOC. He performs the functions previously performed by defendant Snyder, and is substituted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. He is sued in his official capacity.7
30. Defendant Salvador Godinez is the current Chief of Staff and Acting Chief of the Operations Division of the IDOC. He performs many of the functions previously performed by defendant Detella, , and is substituted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. He is sued in his official capacity.
31. Defendant Guy Pierce is currently the Acting Deputy Director for District 1 of the IDOC. He performs some of the functions previously performed by defendant O'Leary, and other of the defendants, and is substituted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. He is sued in his official capacity.
32. Defendant Barbara Hurt is currently the Deputy Director for District 2 of the IDOC. She performs some of the functions previously performed by defendant O'Leary, and other of the defendants, and is substituted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. She is sued in her official capacity.
33. Defendant Rick Orr is currently the Deputy Director for District 3 of the IDOC. He performs some of the functions previously performed by defendants O'Leary

7 Naming more than one defendant in their official capacities is normally unnecessary, as a suit

against a defendant in his official capacity is equivalent to a suit against the State. See, for example,

Wolf-Lillie v. Sonquist, 699 F.2d 864 (7th Cir. 1983). However, in the instant case, defendants'

counsel has stated that he contends that the "personal involvement" requirement applies to claims

against defendants in their official capacities. Therefore, out of an abudnance of caution, plaintiffs

have named as defendants in their second amended complaint the successors to the offices held by

all of the original defendants.

11

or Neal, and other of the defendants, and is substituted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. He is sued in his official capacity.
34. Defendant Ronald J. Meek is currently the Deputy Director for District 4 of the IDOC. He performs some of the functions previously performed by defendant Neal, and other of the defendants, and is substituted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. He is sued in his official capacity.
35. Defendant Jason Garnett is currently the Deputy Director for District 5 of the IDOC. He performs some of the functions previously performed by defendant Neal, and other of the defendants, and is substituted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. He is sued in his official capacity.
36. Defendant Deirdre Battaglia is currently the Warden of Stateville Correctional Center, and performs some of the functions previously performed by defendants Detella and Clark, and is substituted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. She is sued in her official capacity.
37. Defendant Eddie Jones is currently the Acting Warden of Pontiac Correctional Center, and performs some of the functions previously performed by defendant Gilmore, and is substituted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. He is sued in his official capacity.
38. Defendant Don Hulick is currently the Acting Warden of Menard Correctional Center, and performs some of the functions previously performed by defendants Page and Cowan, and is substituted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. He is sued in his official capacity.
39. Defendant Roger Zimmerman is currently the Warden of Western Illinois Correctional Center, and performs some of the functions previously performed by defendant Ahitow, and is substituted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. He is sued in his official ca1p2acity.

THE PLAINTIFFS 40. Robert Westefer was transferred to Tamms from Menard Correctional Center ("Menard") on August 28, 1998. Since the filing of the complaint in this case, he has been transferred out of Tamms. He was He has remained at Tamms continuously through the date of this complaint. He has been in AD status the entire time he has been was at Tamms. 41. The IDOC claims that Mr. Westefer is a member of what it labels the "Northsider Security Threat Group". However, in the two and one-half years prior to his transfer to Tamms, Mr. Westefer had not been found guilty of a single disciplinary violation. Prior to his transfer, Mr. Westefer was classified by the IDOC as a Medium Security8 inmate and was housed in Menard's protective custody unit. Defendant Neal approved his transfer to Tamms. 42. Mark Von Perbandt was transferred to Tamms from out of state on April 22, 1998. He has remained at Tamms continuously through the date of this complaint. He has been in AD status the entire time he has been at Tamms. Prior to his transfer, Mr. Von Perbandt was housed at a medium security prison in Virginia. Prior to that he was assigned as an inmate cook when he was housed out of state in Utah. At the time of his transfer to Tamms, Mr. Von Perbandt had a civil rights complaint pending challenging his transfer out of state. 43. The IDOC claims that Mr. Von Perbandt is a member of what it labels the "Latin King Security Threat Group". However, in the two years prior to his transfer Mr. Von Perbandt had served only 90 days in segregation. Defendant Carter recommended his transfer to Tamms. Defendant O'Leary approved his transfer to Tamms.

8 "Medium Security refers to the security classification of particular prisoners. Thus, while

Menard security

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may

be

given

several

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44. Alejandro Villazana was transferred to Tamms from Menard on September 3, 1998. He has remained at Tamms continuously through the date of this complaint. When he was first transferred to Tamms, Mr. Villazana was in Investigative Status9. After his transfer to Tamms, he was found guilty of unauthorized organizational activity for attempting to initiate a hunger strike among inmates at Menard to protest conditions, and was sentenced to one year in segregation. He was placed in AD status on September 8, 1999, where he has remained since.
45. The IDOC claims that Mr. Villazana is a member of what it labels the "Ambrose Security Threat Group". He has only two assaults, both from 1995, and neither resulted in any injury. He has never been charged with an inmate assault, possession or use of a weapon, or an escape or escape attempt. Defendant Neal approved his transfer to Tamms.
46. Armando Tinajero was transferred to Tamms from Pontiac Correctional Center ("Pontiac") on July 14, 1998. He has remained at Tamms continuously through the date of this complaint. After the filing of the complaint in this case, he was transferred from Tamms. He was in segregation at Tamms until April 15, 1999, and has been was in AD status since until his transfer from Tamms. Immediately prior to his transfer to Tamms, Mr. Tinajero was assaulted by a correctional officer at Pontiac. The officer, however, wrote a disciplinary report charging Mr. Tinajero with assault. Mr. Tinajero pled not guilty and offered to take a polygraph test to prove that he was

9 When a prisoner is under investigation for a possible disciplinary violation, he can be placed in

"Investigative Status." Prisoners in Investigative Status are usually physically housed in the same

unit as prisoners who are in Segregation Status. However, unlike prisoners in Segregation Status,

prisoners in Investigative Status have not been 20 Ill. Admin. Code §504.59 and 504.630.

f1o4und

guilty

of

any

rule

violation.

See

generally

the victim. Mr. Tinajero has never been given a polygraph test regarding this incident and no hearing has ever been held on the disciplinary report.
47. The IDOC claims that Mr. Tinajero is a member of what it labels the "Latin King Security Threat Group". However, he has never been found guilty of an assault which resulted in a serious injury. Upon information and belief, defendant O'Leary approved his transfer to Tamms.
48. Corey Taylor was transferred to Tamms from Pontiac on September 2, 1998. He has remained at Tamms continuously through the date of this complaint. He has been in segregation during his entire time at Tamms. Immediately prior to his transfer, Mr. Taylor was involved in a hunger strike at Pontiac to protest conditions. He also has a lengthy history of litigation against the IDOC and its employees concerning the conditions of his confinement. Defendant Gilmore recommended his placement at Tamms and defendant O'Leary approved his transfer to Tamms.
49. Michael Sparling was transferred to Tamms from Menard on August 25, 1998. He has remained at Tamms continuously through the date of this complaint. After the filing of the complaint in this case, he was transferred from Tamms. He has been was in AD status during his entire time at Tamms. Mr. Sparling is an active litigator and writ writer, complaining about the conditions of his confinement.
50. The IDOC claims that Mr. Sparling is a member of what it labels the "Northsider Security Threat Group". However, he was violated out of that group long before his transfer. Mr. Sparling received his last major10 disciplinary report in 1996. He was classified in Minimum Security prior to his transfer. Defendant Neal approved his transfer to Tamms.
10 All disciplinary violations (or "tickets") are classified as either "major" or "minor." See generally, 20 Ill. Admin. Code §504.50(d)(3). 15

51. Joe Sorrentino was transferred to Tamms from Menard on March 12, 1998. He has remained at Tamms continuously through the date of this complaint. He has been in AD status during his entire time at Tamms. Mr Sorrentino is an active litigator and writ writer complaining about the conditions of his confinement.
52. The IDOC claims that Mr. Sorrentino is a member of what it labels the "Latin King Security Threat Group". However, during the 15 years he has been incarcerated since 1985, he has only spent a total of approximately 90 days in segregation. Prior to his transfer he was classified Minimum Security and was assigned to work in the officers' kitchen at Menard. Defendant Neal approved his transfer to Tamms.
53. Anibal Santiago was transferred to Tamms from Pontiac on August 4, 1999. He has remained at Tamms continuously through the date of the complaint. He has been on investigative status during his entire stay at Tamms.
54. Since his incarceration in 1983, Mr. Santiago has been an outspoken critic of the IDOC. He has an extensive history of litigation, is an active grievance writer, has been involved in numerous authorized organizations within the prison system, and has regularly protested to outside organizations regarding conditions in various prisons in Illinois. His wife also has been active in prison reform work in Illinois and nationally.
55. On August 21, 1991, in retaliation for the continued complaints raised by Mr. Santiago and his wife regarding prison conditions, the IDOC transferred Mr. Santiago out of state to the New Jersey State Prison in Trenton, New Jersey. Upon his return to Illinois, Mr. Santiago was initially placed at Menard Correctional Center. During his stay at Menard, Mr. Santiago received only one disciplinary violation. Also during this period, he continued to file grievances and otherwise complain about the conditions of his incarceration. On July 18,116999, Mr. Santiago was escorted to the

office of Assistant Warden Cowan at Menard, where he was cross-examined regarding his grievances and other complaints as well as about the prison reform activities of his wife. That same day he was transferred to Pontiac and placed in the segregation unit. Two weeks later, he was transferred from Pontiac to Tamms. Defendant Cowan recommended his transfer to Tamms and defendant Clark approved him for transfer to Tamms. His actual transfer was approved by defendant Page.
56. Tyshawn Ross was transferred to Tamms from out of state on April 27, 1998. He has remained at Tamms continuously through the date of the complaint. After the filing of the complaint in this case, he was transferred from Tamms. Mr. Ross has been was in AD status during his entire stay at Tamms.
57. The IDOC claims that Mr. Ross is a member of what it labels the "Conservative Vice Lord Security Threat Group". However, in the last five years, he has had no disciplinary reports of any nature. Defendant O'Leary approved his transfer to Tamms.
58. Vincente Rodriguez was transferred to Tamms from Pontiac on January 14, 1999. Immediately prior to this transfer, he had been transferred from Stateville to Pontiac on December 25, 1998. He has remained at Tamms continuously through the date of the complaint. When Mr. V. Rodriguez first arrived at Tamms, he was in segregation. He was in AD status from October 28, 1999 until January 29, 2000, when he returned to segregation.
59. On July 2, 1996, Mr. V. Rodriguez was savagely beaten by the Orange Crush tactical unit at Stateville. In July, 1998, he filed a civil rights case, Rodriguez v. Oakley, et al, No. 98 C 4152 in the Northern District, in which he is represented by counsel for the plaintiffs in the instant case. That case remains was pending at the time of his transfer to Tamms.
17

60. Defendant Clark recommended his transfer to Tamms and defendant DeTella approved his transfer to Tamms.
61. Edward Rodriguez was transferred to Tamms from Menard on March 27, 1998. He has remained at Tamms continuously through the date of the complaint. Mr. Rodriguez has been in AD status during his entire stay at Tamms.
62. Mr. Rodriguez is an active litigator both on his own behalf and helping other inmates file cases against the IDOC complaining of the conditions of their confinement. Similarly, he has filed numerous grievances complaining of staff violations of the rules and his rights.
63. The IDOC claims that Mr. Rodriguez is a member of what it labels the "Latin King Security Threat Group". However, Mr. Rodriguez has had no major disciplinary report written against him since 1992. He has never been found guilty of an assault against staff or inmates, or an escape. Defendant Neal approved his transfer to Tamms.
64. Vincent Reyna was transferred to Tamms from Menard on April 9, 1998. He has remained at Tamms continuously through the date of the complaint. He has been in AD status during his entire stay at Tamms.
65. The IDOC claims that Mr. Reyna is a member of what it labels the "Orchestra Albany Security Threat Group" and "Latin Folks Security Threat Group". However, during the two years prior to his transfer to Tamms, he had received no major disciplinary reports and only a couple of minor disciplinary reports. Defendant Neal approved his transfer to Tamms.
66. Alex Muller was transferred to Tamms from Stateville on July 7, 1998. He has remained at Tamms continuously through the date of this complaint. He has been in AD status during his entire stay at Tamms.
18

67. The IDOC claims that Mr. Muller is a member of what it labels a Security Threat Group. However, in the two years prior to his transfer to Tamms, he received only one disciplinary report, for unauthorized pictures in his cell. Upon information and belief defendant DeTella approved his transfer to Tamms.
68. William Lasley was transferred to Tamms from Menard on April 1, 1998. He has remained at Tamms continuously through the date of this complaint. After the filing of the complaint in this case, he was transferred from Tamms. He has been was in AD status during his entire stay at Tamms. Mr. Lasley is an active litigator and has filed numerous grievances concerning the conditions of his confinement. He has similarly assisted other inmates with such complaints.
69. The IDOC claims that Mr. Lasley is a member of what it labels a Security Threat Group. However, his last major ticket was in November, 1996. His only other ticket in the two years prior to being transferred to Tamms was for refusing to take a TB test administered through the bars of his cell. Defendant Neal approved his transfer to Tamms.
70. Ted Knox was transferred to Tamms from Menard on August 24, 1998. He has remained at Tamms continuously through the date of this complaint. He has been in AD status during his entire stay at Tamms. On March 21, 1996, Mr. Knox was shot while locked in his cell at Menard. In the Spring of 1998, he filed a complaint for damages. His first court date was August 12, 1998, twelve days before he was transferred to Tamms.
71. The IDOC claims that Mr. Knox is a member of what it labels the "Black Gangsters Security Threat Group". However, during the entire period of incarceration since 1990, Mr. Knox has received no segregation time, other than 15 days for having what were alleged to be gang documents, but were in fact documents from his
19

underlying criminal case. At the time of his transfer he was classified as Medium Security. Defendant Neal approved his transfer to Tamms.
72. Michael Johnson was transferred to Tamms from Menard on April 1, 1998. He has remained at Tamms continuously through the date of this complaint. He has been in AD status during his entire stay at Tamms.
73. The IDOC claims that Mr. Johnson is a member of what it labels the "Gangster Disciples Security Threat Group". However, in the 10 years prior to being transferred to Tamms, Mr. Johnson received only four minor tickets and spent no time in segregation. Defendant Neal approved his transfer to Tamms. 74. Eugene Horton was transferred to Tamms from Illinois River Correctional Center on March 16, 1998. He has remained at Tamms continuously through the date of this complaint. After the filing of the complaint in this case, he was transferred from Tamms. He was initially in segregation and has been was in AD status since from February, 1999, until he was transferred from Tamms. Mr. Horton has been an extremely active litigator against the IDOC both on his own behalf and assisting other inmates. In addition, for many years he was a law clerk at Stateville and has testified in cases brought by other inmates concerning their conditions of confinement. As a result of his litigation, Mr. Horton has suffered a history of retaliation by IDOC officials.
75. The IDOC claims that Mr. Horton is a member of what it labels the "Gangster Disciple Security Threat Group". In February, 1997, Mr. Horton was housed in classified Minimum Security and housed in the Honor Dorm at Stateville. Since that time, he has received only six disciplinary reports, none of which involved an assault or an escape.
76. Defendant Ahitow recommended his transfer to Tamms and defendant O'Leary approved his transfer to Tamms. 20

77. George Harper was transferred to Tamms from Stateville on April 27, 1999. He has remained at Tamms continuously through the date of this complaint. He was originally on investigative status. He has been in AD status since May 22, 1999. On August 6, 1996, Mr. Harper was savagely beaten by the Orange Crush Tactical Unit at Menard. He filed a civil rights action, Harper v. Albert, No. 97-775 in the Southern District, in which he is represented by counsel for plaintiffs in the instant case. That case remains was pending at the time of his transfer to Tamms.
78. Defendant Clark recommended his transfer to Tamms and defendant Carter approved his transfer to Tamms.
79. Timothy Hall was transferred to Tamms from out of state on April 15, 1998. He has remained at Tamms continuously through the date of this complaint. He has been in AD status during his entire stay at Tamms.
80. The IDOC claims that Mr. Hall is a member of what it labels the "Black Disciple Security Threat Group". However, he has had no disciplinary tickets since September, 1994. Defendant O'Leary approved his transfer to Tamms.
81. John Gill was transferred to Tamms from Menard on July 6, 1998. He has remained at Tamms continuously through the date of this complaint. He has been in AD status during his entire stay at Tamms.
82. The IDOC claims that Mr. Gill is a member of what it labels the "Black Souls Security Threat Group". However, Mr. Gill has received only one disciplinary report during his entire period of incarceration (since 1985), for which he received six months in segregation for possession of marijuana. Prior to his transfer, he had been an industry worker assigned to a Prison Industry job11 for 14 years. Defendant Neal approved his transfer to Tamms.

11 Work in prison industries is generally among the best paying, and thus one of the most

desirable, assignments responsible prisoners.

in

a

prison.

Assignment

t2o1a

prison

industry

job

is

reserved

for

the

most

83. Larry Gambrell was transferred to Tamms from Stateville on March 24, 1998. He has remained at Tamms continuously through the date of this complaint. After the filing of the complaint in this case, he was transferred from Tamms. He has been was in AD status during his entire stay at Tamms.
84. The IDOC claims that Mr. Gambrell is a member of what it labels the "New Breed/LLL Security Threat Group". However, during the last four years he has received only one disciplinary report, but that report was dismissed when he passed a polygraph examination. Upon information and belief, Mr. Gambrell has served no time in segregation during the nine years he has been incarcerated. Defendant DeTella approved his transfer to Tamms.
85. Larry Foutch was transferred to Tamms from Menard on August 24, 1998. He has remained at Tamms continuously through the date of this complaint. After the filing of the complaint in this case, he was transferred from Tamms. He has been was in AD status during his entire stay at Tamms.
86. The IDOC claims that Mr. Foutch is a member of what it labels the "Northsider Security Threat Group". However, since 1994, Mr. Foutch has only received one disciplinary report for which he received time in segregation (for a positive drug test in 1997). He was classified Minimum Security at the time he was approved for transfer to Tamms. Defendant Neal approved his transfer to Tamms.
87. Robert Felton was transferred to Tamms from Menard on March 30, 1998. He has remained at Tamms continuously through the date of the complaint. After the filing of the complaint in this case, he was transferred from Tamms. He has been was initially in segregation and then was in AD status throughout the rest of his during his entire stay at Tamms. Mr. Felton is an active litigator, having filed numerous cases and hundreds of grievances regarding his conditions of confinement.
22

He has also assisted numerous other inmates in pursuing such claims. Defendant Neal approved his transfer to Tamms.
88. Kennard Combs was transferred to Tamms from Menard on September 2, 1998. He has remained at Tamms continuously through the date of the complaint. He has been in AD status during his entire stay at Tamms. Mr. Combs is an active litigator, having filed numerous cases and hundreds of grievances regarding his conditions of confinement. He has also assisted numerous other inmates in pursuing such claims. Defendant Neal approved his transfer to Tamms.
89. Maurice Coleman was transferred to Tamms from Menard on April 13, 1998. He has remained at Tamms continuously through the date of the complaint. He has been in AD status during his entire stay at Tamms.
90. The IDOC claims that Mr. Coleman is a member of what it labels the "Mickey Cobra Security Threat Group". However, during the two years prior to his transfer, Mr. Coleman received only seven disciplinary reports, and none were for serious violations. During the 19 years he has been incarcerated, he has spent only slightly more than one year in segregation. Defendant Neal approved his transfer to Tamms.
91. Laverne Clayton was transferred to Tamms from Menard on July 20, 1998. He has been at Tamms continuously through the date of the complaint. After the filing of the complaint in this case, he was transferred from Tamms. Mr. Clayton was originally in segregation, but has been was in AD status since from January, 1999 until he was transferred from Tamms. Mr. Clayton is an active litigator, having filed over a dozen cases challenging the conditions of his incarceration, as well as having filed literally hundreds of grievances. Upon information and belief, defendant Neal approved his transfer to Tamms.
23

92. Gary Clark was transferred to Tamms from Menard on August 24, 1998. He has been at Tamms continuously through the date of the complaint. After the filing of the complaint in this case, he was transferred from Tamms. He has been was in AD status during his entire stay at Tamms.
93. The IDOC claims that Mr. Clark is a member of what it labels the "Four Corner Hustlers Security Threat Group". However, during the two years prior to his transfer to Tamms, he received only one minor disciplinary report, and served no time in segregation. During the over 15 years he has been incarcerated, he has served approximately 18 months in segregation. Prior to his transfer to Tamms, Mr. Clark was classified Medium Security. Defendant Neal approved his transfer to Tamms.
94. Mary Chapman is the administrator of the Estate of Marcus Chapman. Marcus Chapman was transferred to Tamms from Pontiac on March 26, 1998. He has remained at Tamms continuously through the date of until he committed suicide at Tamms on or about August 26, 2004 the complaint. He has been was in segregation status during his entire stay at Tamms.
95. On December 10, 1997, Mr. Chapman won a judgement in the Northern District of Illinois in a civil rights case in which he alleged that while at Stateville, he was beaten in violation of the Eighth Amendment, and had religious materials confiscated in violation of the First Amendment. Mr. Chapman was represented in that case by counsel for the plaintiffs in the instant case. On March 12, 1998, Mr. Chapman agreed to settle the case for a significant sum of money. Mr. Chapman's transfer to Tamms was recommended by defendant Gilmore and approved by defendant O'Leary.
96. Ronnie Carroll was transferred to Tamms from Stateville on July 1, 1998. He has remained at Tamms continuously through the date of the complaint. He has been in segregation during his entire s2ta4y at Tamms. Mr. Carroll is an extremely

active litigator against the IDOC and its employees regarding the conditions of his confinement and has been repeatedly threatened with retaliation if he continues his litigious activities. Defendant Clark recommended his transfer to Tamms and defendant DeTella approved his transfer to Tamms.
97. Roosevelt Burrell was transferred to Tamms from Menard on August 28, 1998. He has remained at Tamms continuously through the date of the complaint. After the filing of the complaint in this case, he was transferred from Tamms. He has been was in AD status during his entire stay at Tamms. Mr. Burrell has been extremely active in complaining about IDOC staff misconduct. He has filed numerous grievances against the IDOC and its employees alleging misconduct and concerning other conditions of his confinement. He has also regularly assisted other inmates with grievances and litigation. In particular, he complained about the racial discrimination exercised by certain members of Menard's staff against minority inmates. Defendant Neal approved his transfer to Tamms.
98. Finner Bryant was transferred to Tamms from Big Muddy Correctional Center on March 17, 1998. He has remained at Tamms continuously through the date of the complaint. After the filing of the complaint in this case, he was transferred from Tamms. He has been was in AD status during his entire stay at Tamms.
99. The IDOC claims that Mr. Bryant is a member of what it labels the "Stone Security Threat Group". However, since 1993, Mr. Bryant has spent virtually no time in segregation and was, contrary to normal IDOC procedures, transferred to general population at Danville Correctional Center despite serving a natural life sentence. Defendant Neal approved his transfer to Tamms.
100. Larry Brown was transferred to Tamms from out of state on April 27, 1998. he has remained at Tamms continuously through the date of this complaint. He has been in AD status during his entire sta2y5 at Tamms.

101. The IDOC claims that Mr. Brown is a member of what it labels the "Gangster Disciple Security Threat Group". However, he has received a total of only five tickets from 1991 through the present, none of which resulted in significant segregation time. He was in general population during the entire period he was out of state, from 1994 through 1998.
102. Aryules Bivens was transferred to Tamms from Menard on July 16, 1998. He has remained at Tamms continuously through the date of this complaint. After the filing of the complaint in this case, he was transferred from Tamms. He has been was in AD status during his entire stay at Tamms. Mr. Bivens was assigned as a law clerk at Menard. In that capacity, he assisted numerous inmates with their claims against the IDOC related to the conditions of their confinement.
103. The IDOC claims that Mr. Bivens is a member of what it labels the "Black Disciple Security Threat Group". However, during the over 15 years he has spent in the IDOC, Mr. Bivens has received only 43 days of segregation, and has never received a disciplinary report for staff or inmate assault, escape, or drugs. His most recent disciplinary charge which resulted in any segregation was on May 26, 1993, when he was sentenced to five days in segregation for disobeying a direct order. Defendant Neal approved his transfer to Tamms.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
104. The Illinois Department of Corrections has determined that transfers to Tamms are lateral transfers within the Department representing an administrative policy which is are not grievable.
105. In the alternative, at least the following named plaintiffs have exhausted their administrative remedies, the date in parenthesis following their name is the date of the ARB decision denying their grievanc2e6: Von Perbandt (9-22-98), Sorrentino (7-27-

98), Ross (8-23-99), E. Rodriguez (4-24-99), Horton (8-6-98), Harper (7-29-99), Foutch (11-23-98), Felton (1-18-00), Combs (11-10-98), Clayton (unknown), Clark (2-22-99), Chapman (12-17-98), and Bivens (7-7-99).
CLASS ACTION ALLEGATIONS
106. This action is brought by the named plaintiffs on behalf of a class consisting of all inmates who have been transferred to Tamms Correctional Center since March 7, 1998. The named plaintiffs also seek to represent two sub-classes. The first sub-class, referred to herein as the "litigation" class consists of those inmates transferred to Tamms in retaliation for their litigation activities. The second sub-class, referred as the "gang" class consists of those inmates transferred to Tamms because of their association with members of an alleged Security Threat Group whose disciplinary history would not have lead to their being transferred to Tamms but for their alleged association with a Security Threat Group. A class action is proper pursuant to Rules 23(a), 23(b)(1), 23(b)(2), and 23(b)(3) of the Federal Rules of Civil Procedure.
107. Plaintiffs Mark Von Perbandt, Corey Taylor, Michael Sparling, Joseph Sorrentino, Anibal Santiago, Vincente Rodriguez, Edward Rodriguez, William Lasley, Ted Knox, Eugene Horton, George Harper, Robert Felton, Kennard Combs, Laverne Clayton, Marcus Chapman, Ronnie Carroll, Roosevelt Burrell and Aryules Bivens seek to represent the litigation sub-class.
108. Plaintiffs Robert Westefer, Mark Von Perbandt, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joseph Sorrentino, Tyshawn Ross, Edward Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Maurice Coleman, Gary Clark, Roosevelt Burrell, Finner Bryant, Larry Brown, and Aryules Bivens seek to represent the gang sub-clas2s7.

109. Members of the class on behalf of whom plaintiffs sue are so numerous

that joinder of all members is impractical. Upon information and belief there are

approximately 275 inmates at Tamms. Upon information and belief approximately one

third of these inmates are active litigators and members of the litigation sub-class. The

vast majority of inmates at Tamms are alleged members of a Security Threat Group

and thus potentially members of the gang class.

110. There are common questions of law and fact affecting the rights of

members of the plaintiff class. The claims of the class members involve common fact

questions including the issue of the standards and procedures used to select inmates

for transfer to Tamms.

111. Plaintiffs' claims are typical of the claims of the class and plaintiffs can

fairly and adequately represent and protect the interests of the absent class members.

112. Separate injunction and declaratory actions maintained by individual

members of the class would create a risk of inconsistent or varying adjudications with

respect to individual members of the class, thereby establishing incompatible

standards of conduct for the defendants. Adjudication regarding individual class

members would, as a practical matter, be dispositive of or impair the interests of other

members not parties to the adjudication or substantially impair their ability to protect

their interests.

113. Defendants have acted or refused to act on grounds generally applicable

to the class that plaintiffs represent, thereby making final injunctive or declaratory

relief appropriate for the class as a whole.

114. The questions of law or fact common to the members of the class

predominate over any questions affecting only individual members, and a class action

is superior to other available methods for the fair and efficient adjudication of the

controversy.

28

COUNT ONE
PLAINTIFFS HAVE BEEN TRANSFERRED TO TAMMS IN RETALIATION FOR THEIR LITIGATION ACTIVITIES IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION (on behalf of certain plaintiffs only) 115. Plaintiffs Mark Von Perbandt, Corey Taylor, Michael Sparling, Joseph
Sorrentino, Anibal Santiago, Vincente Rodriguez, Edward Rodriguez, William Lasley, Theodore Knox, Eugene Horton, George Harper, Robert Felton, Kennard Combs, Laverne Clayton, Mary Chapman, as the Administrator of the Estate of Marcus Chapman, Ronnie Carroll, Roosevelt Burrell and Aryules Bivens are active litigators who have filed cases, grievances, and have otherwise exercised their rights protected by the First and Fourteenth Amendments to the Constitution of the United States to petition the government regarding their conditions of confinement.
116. The administrative regulations governing placement at Tamms (20 Ill. Adm. Code §505.40(b)) provide that an inmate who has engaged in or "may be planning to engage in" the following activities is eligible for transfer to Tamms: (a) Escape or attempted escape, (b) An assault which caused death or serious bodily injury, (c) Engaged in dangerous disturbances, (d) Has influence in a gang, (e) Engages in non-consensual sex, (f) Possess a weapon.
117. Because of the breadth and vagueness of these criteria and because they allow prediction of future conduct, 90 percent of the inmates in the IDOC arguably meet the written standards for transfer to Tamms.
118. In fact, the defendants have established an unwritten policy and practice of transferring inmates who are active litigators and writ writers to Tamms in order to punish them and to isolate them, thereby preventing future litigation.
119. None of these plaintiffs have a disciplinary record which, but for their litigation activities, would have merited pla29cement at Tamms.

120. Defendants transferred these plaintiffs to Tamms in retaliation for their

protected litigation activities.

121. By punishing these plaintiffs for their litigation activities, defendants

have violated plaintiffs' right to petition the government for redress of grievances

protected by the First and Fourteenth Amendments to the Constitution of the United

States.

122. Each of the defendants was involved in personally approving the transfer

of one or more plaintiffs to Tamms in retaliation for their litigation activities or were

personally involved in creating or approving the policies and criteria for placement at

Tamms.

123. As a result of defendants' violation of plaintiffs' First and Fourteenth

Amendment rights, each of the plaintiffs has been subjected to onerous conditions of

confinement far worse than those they would have experienced at any other prison in

Illinois.

COUNT TWO

PLAINTIFFS HAVE BEEN TRANSFERRED TO TAMMS BECAUSE OF THEIR ALLEGED ASSOCIATION WITH A SECURITY THREAT GROUP IN VIOLATION OF THE EX POST FACTO CLAUSE AND
THE FIRST AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION

(on behalf of the gang sub-class only)

124. Plaintiffs Robert Westefer, Mark Von Perbandt, Alejandro Villazana,

Armando Tinajero, Michael Sparling, Joseph Sorrentino, Tyshawn Ross, Edward

Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson,

Eugene Horton, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Maurice

Coleman, Gary Clark, Roosevelt Burrell, Finner Bryant, Larry Brown, and Aryules

Bivens have all been identified by defendants as being associated with a Security

Threat Group. 30

125. Prior to 1996, the IDOC recognized what were then referred to as gangs

and what are now referred to as security threat groups. The IDOC actively sought the

cooperation of the leaders of such groups. During this period no disciplinary action was

taken against inmates for being members of these groups. The IDOC cooperated in

allowing gang members to cell together, by allowing leaders to make cell assignments

and leaders of the groups were accorded other special privileges.

126. None of these plaintiffs have a disciplinary history which would have

merited placement at Tamms.

127. Each of the defendants was involved in personally approving the transfer

of one or more plaintiffs to Tamms because of their alleged association with a security

threat group or were personally involved in creating or approving the policies and

criteria for placement at Tamms.

128. By punishing these plaintiffs for activities which, at the time, were

approved by the IDOC, defendants have violated the Constitutional prohibition

against ex post facto punishments.

129. By punishing these plaintiffs for association with other inmates without

proof of any violation of Department rules or other misconduct, defendants have

violated plaintiffs' right to freedom of association protected by the First and

Fourteenth Amendments to the Constitution of the United States.

130. As a result of defendants' violation of plaintiffs' First and Fourteenth

Amendment rights, each of the plaintiffs has been subjected to onerous conditions of

confinement far worse than those they would have experienced at any other prison in

Illinois.

COUNT THREE TWO

TRANSFERRING PLAINTIFFS TO TAMMS WITHOUT A MEANINGFUL HEARING VIOLATES PLAINTIFFS' RIGHT TO DUE PROCESS PROTECTED BY T31HE FOURTEENTH AMENDMENT

(on behalf of all plaintiffs and others similarly situated) 131. Transfer to Tamms subjects plaintiffs to atypical and significant hardships in relation to the ordinary incidents of prison life and to hardships which are not experienced at the most restrictive segregation unit at any of the maximum security prisons in Illinois. 132. Plaintiffs were not provided with an opportunity for a hearing either before or after their transfer to Tamms which met the minimum requirements of procedural due process. 133. In particular, plaintiffs who were transferred to Tamms in segregation status were not granted an opportunity for a hearing of any sort at which they could challenge their transfer. 134. Plaintiffs who were transferred to Tamms in AD status were granted a hearing but were not told in advance of the reasons for the transfer or the evidence upon which the decision was based, and were not given an opportunity to present witnesses or documents on their own behalf. 135. Plaintiffs were transferred based, in part, as punishment for activities, including association with gangs, which, at the time, were encouraged the defendants and their predecessors in policy making positions in the IDOC. 136. Defendants' transfer of plaintiffs to Tamms without an opportunity for a meaningful hearing violates the due process clause of the Fourteenth Amendment. 137. Defendants' punishment of plaintiffs for conduct which at the time was encouraged by the IDOC violates the due process clause of the Fourteenth Amendment. 138. Each of the defendants who is sued in his individual capacity was involved in personally approveding the transfer of one or more plaintiffs to Tamms without a hearing, or as punishment for co3n2duct which at the time was encouraged by

the IDOC, or were personally involved in creating or approving the policies and criteria for placement at Tamms.
139. As a result of defendants' violation of plaintiffs' Fourteenth Amendment rights, each of the plaintiffs has been subjected to onerous conditions of confinement far worse than those they would have experienced at any other prison in Illinois.
CLASS ACTION ALLEGATIONS 140. In addition to their individual claims, plaintiffs Mark VonPerbandt, Alejandro Villazana, Joe Sorrentino, Edward Rodriguez, Vincent Reyna, Ted Knox, and Maurice Coleman bring their claim for prospective relief under the due process clause of the Fourteenth Amendemtn on behalf of a class defined as follows:
All inmates who have been transferred to Tamms Correctional Center since January 1, 1998, and all prisoners who will be transferred to Tamms in the future.
141. Members of the proposed class include in excess of 250 individuals, and are thus so numerous that joinder of all members is impractical.
142. There are common questions of law and fact affecting the rights of members of the plaintiff class. The claims of the class members involve common fact questions including the issue of the standards and procedures used to select inmates for transfer to Tamms.
143. Plaintiffs' claims are typical of the claims of the class and plaintiffs can fairly and adequately represent and protect the interests of the absent class members.
144. Separate injunction and declaratory actions maintained by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class, thereby establishing incompatible standards of conduct for the defendants. Adjudication regarding individual class members would, as a practical matter, be d3i3spositive of or impair the interests of other

members not parties to the adjudication or substantially impair their ability to protect their interests.
145. Defendants have acted or refused to act on grounds generally applicable to the class that plaintiffs represent, thereby making final injunctive or declaratory relief appropriate for the class as a whole.
146. The questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
34

COUNT FOUR
TRANSFER OF PLAINTIFFS TO TAMMS VIOLATES THE UNIFIED CODE OF CORRECTIONS
(on behalf of all plaintiffs) 147. The operation of Tamms, like every other prison operated by the IDOC, is governed by the provisions of the Unified Code of Corrections ("the Code"), 730 ILCS 51-1-1, et seq. 148. Section 3-8-7(a) of the Code provides that all disciplinary action must be taken pursuant to rules of behavior and conduct, including the penalties for violations, which are available to all inmates. 149. Section 3-8-7(e) of the Code establishes the procedures required for the imposition of "disciplinary segregation and isolation". 150. No provision of the Code provides for isolation of inmates in segregation in AD status. 151. Defendants' transfer of plaintiffs to Tamms violates Section 3-8-7(a) in that plaintiffs were transferred to Tamms for violation of rules which were not available to inmates prior to their transfer. 152. Defendants' transfer of plaintiffs to Tamms violates Section 3-8-7(e) as the hearing procedures set forth therein were not followed. 153. Each of the defendants was involved in personally approving the transfer of one or more plaintiffs to Tamms without a hearing or were personally involved in creating or approving the policies and criteria for placement at Tamms. 154. As a result of defendants' violation of the Code, each of the plaintiffs has been subjected to onerous conditions of confinement far worse than those they would have experienced at any other prison in Illinois.
REQUEST FOR RELIEF
35

WHEREFORE, plaintiffs request that the Court grant the following relief: A. Declare that the actions of the defendants described herein have violated and continue to violate plaintiffs' rights under the ex post facto clause, the First and Fourteenth Amendments to the United States Constitution, and the Unified Code of Corrections. B. Enjoin the defendants sued in their official capacities from engaging in any action or conduct, and from failing to act in any way, which would violate the above mentioned rights of the plaintiffs. C. Order the defendants sued in their official capacities to transfer plaintiffs from Tamms and return them to other appropriate settings within the Illinois Department of Corrections. D. Award plaintiffs a judgment against the defendants in their individual capacities, separately and jointly, for compensatory damages in an amount as may be awarded by the finder of fact upon trial of this case. E. Award plaintiffs a judgment against the defendants in their individual capacities, separately and jointly, for punitive damages in an amount as may be awarded by the finder of fact upon trial of this case. F. Award plaintiffs attorney's fees and costs pursuant to 42 U.S.C. §1988. G. Grant such further relief as the Court deems just and proper.

Respectfully submitted,

s/ Alan Mills One of the attorneys for plaintiffs

Alan Mills Uptown People's Law Center 4413 North Sheridan Chicago, Illinois 60640 (773) 769-1411

Lawrence Wojick Paul Homer Colleen E. McManus DLA Piper Rudnick Gray Cary US LLP 203 North LaSalle Street Chicago, Illinois 60601 (312) 368-4000

36

CERTIFICATE OF SERVICE
I hereby certify that on June 14, 2006, I electronically filed Plaintiffs’ Second Amended Complaint with the Clerk of the Court using the CM/ECF system which will send notification of such filing to:
Terence Corrigan Assistant Attorney General tcorrigan@atg.state.il.us Christopher Higgerson Assistant Attorney General chiggerson@atg.state.il.us
Respectfully submitted,
s/Alan Mills One of the attorneys for plaintiffs
Alan Mills Uptown People's Law Center 4413 North Sheridan Chicago, Illinois 60640 (773) 769-1411 Lawrence Wojick Paul Homer Colleen E. McManus DLA Piper Rudnick Gray Cary US LLP 203 North LaSalle Street Chicago, Illinois 60601 (312) 368-4000
37

 
 Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 1 of 96
CJRA_C,CLOSED,FRC,JMP2,LEADCS,PARTIALLY_SEALED
U.S. District Court Southern District of Illinois (East St. Louis) CIVIL DOCKET FOR CASE #: 3:00−cv−00162−GPM

Von Perbandt, et al v. Snyder, et al Assigned to: Judge G. Patrick Murphy Demand: $0 Case in other court: USCA−7, 09−03780
USCA−7, 10−02957 USCA−7, 12−03608 USCA−7, 13−01918 Cause: 42:1983 Civil Rights Act Special Master Gerald R. Ortbals Appointed as Special Master by Judge G. Patrick Murphy on 02/15/11
Plaintiff Robert Westefer

Date Filed: 03/07/2000 Date Terminated: 08/01/2013 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Gerald R. Ortbals Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 7700 Bonhomme Avenue Suite 650 St. Louis, MO 63105 314−259−2787 Fax: 314−552−8787 ATTORNEY TO BE NOTICED
represented by Alan S. Mills Uptown People's Law Generally Admitted 4413 N. Sheridan Chicago, IL 60640 773−769−1411 Fax: 773−769−2224 Email: alan@uplcchicago.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik DLA Piper US LLP 203 North LaSalle Street Suite 1900 Chicago, IL 60657 312−368−4031 Email: lwojcik@mwe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Homer Piper Rudnick − Chicago Cook County 203 North LaSalle Street Suite 1800 Chicago, IL 60601 312−368−4000 Fax: 312−236−7516 fax LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raj N. Shah DLA Piper LLP (US) − Chicago 444 West Lake Street Suite 900

Plaintiff

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 2 of 96
Chicago, IL 60606 312−368−8904 Fax: 312−251−5714 Email: raj.shah@dlapiper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raja S. Gaddipati DLA Piper US LLP 203 North LaSalle Street Suite 1900 Chicago, IL 60657 312−368−8904 Fax: 312−630−7364 Email: raja.gaddipati@dlapiper.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomas M. Thompson DLA Piper US LLP 203 North LaSalle Street Suite 1900 Chicago, IL 60657 312−499−0167 Fax: 312−277−6966 Email: tmthompson@duanemorris.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen E. McManus DLA Piper US LLP 203 North LaSalle Street Suite 1900 Chicago, IL 60657 312−368−7027 TERMINATED: 07/07/2008
David J. Pivnick DLA Piper US LLP 203 North LaSalle Street Suite 1900 Chicago, IL 60657 312−368−4000 Email: david.pivnick@dlapiper.com ATTORNEY TO BE NOTICED
Elizabeth H. Bartels DLA Piper US LLP 203 North LaSalle Street Suite 1900 Chicago, IL 60657 312−368−3373 Fax: 312−251−2178 ATTORNEY TO BE NOTICED
Nika K Gembicki DLA Piper US LLP 203 North LaSalle Street Suite 1900 Chicago, IL 60657 312−368−3477 Email: nika.gembicki@dlapiper.com ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 3 of 96

Mark Von Perbandt

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Alejandro Villazana

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 4 of 96

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Armando Tinajero Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 5 of 96

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Corey A Taylor

represented by Corey A Taylor #B−17010 PONTIAC CORRECTIONAL CENTER 700 West Lincoln Street PO Box 99 Pontiac, IL 61764 PRO SE

Alan S. Mills (See above for address) TERMINATED: 12/20/2006

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

Lawrence A. Wojcik (See above for address) TERMINATED: 12/20/2006

Paul Homer (See above for address) TERMINATED: 12/20/2006

Plaintiff
Michael Sparling N52385 STATEVILLE CORRECTIONAL CENTER Route 53 PO Box 112 Joliet, IL 60434 Individually and On Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 6 of 96

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Joe Sorrentino N52385 STATEVILLE CORRECTIONAL CENTER Route 53 PO Box 112 Joliet, IL 60434 Individually and On Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 7 of 96

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Milton Smith Individually and On Behalf of the Plaintiff Class TERMINATED: 10/23/2000

represented by Alan S. Mills (See above for address) TERMINATED: 10/23/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) TERMINATED: 10/23/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Anibal Santiago Individually and On Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 8 of 96

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Tyshawn Ross Individually and On Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Edward Rodriguez Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 9 of 96

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Vincente Rodriguez Individually and On Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 10 of 96

Plaintiff
Vincent Reyna Individually and on Behalf of the Plaintiff Class

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008
David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED
Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED
Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED
represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen E. McManus (See above for address) TERMINATED: 07/07/2008
David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED
Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED
Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 11 of 96

Plaintiff
Alex Muller Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
William Lasley Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 12 of 96

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ted Knox Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 13 of 96

Plaintiff Michael Johnson Individually and on Behalf of the Plaintiff Class
Plaintiff Eugene Horton Individually and on Behalf of the Plaintiff Class

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED
Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED
Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED
represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen E. McManus (See above for address) TERMINATED: 07/07/2008
David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED
Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED
Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED
represented by Alan S. Mills (See above for address) LEAD ATTORNEY

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 14 of 96

ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
George Harper Individually and On Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 15 of 96

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Timothy Hall Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 16 of 96

Plaintiff John Gill Individually and on Behalf of the Plaintiff Class
Plaintiff Larry Gambrell Individually and on Behalf of the Plaintiff Class

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED
Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED
represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen E. McManus (See above for address) TERMINATED: 07/07/2008
David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED
Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED
Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED
represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 17 of 96

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Larry Foutch Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 18 of 96

Plaintiff
Robert Felton Individually and on Behalf of the Plaintiff Class

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen E. McManus (See above for address) TERMINATED: 07/07/2008
David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED
Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED
Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED
represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen E. McManus (See above for address) TERMINATED: 07/07/2008
David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED
Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 19 of 96

Plaintiff Kennard Combs Individually and on Behalf of the Plaintiff Class
Plaintiff Maurice Coleman Individually and on Behalf of the Plaintiff Class

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED
represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen E. McManus (See above for address) TERMINATED: 07/07/2008
David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED
Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED
Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED
represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Homer

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 20 of 96

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Laverne Clayton Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 21 of 96

ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Gary Clark Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 22 of 96

Plaintiff Marcus Chapman Individually and on Behalf on the Plaintiff Class TERMINATED: 02/13/2006
Plaintiff Ronnie W Carroll Individually and on Behalf of the Plaintiff Class TERMINATED: 02/13/2006
Plaintiff Roosevelt Burrell Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address) LEAD ATTORNEY
Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED
represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED
represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomas M. Thompson (See above for address)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 23 of 96

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Finner Bryant Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 24 of 96

ATTORNEY TO BE NOTICED

Plaintiff
Larry Brown Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Aryules Bivens Individually and on Behalf of the Plaintiff Class

represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul Homer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 25 of 96

Plaintiff Mary Chapman

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen E. McManus (See above for address) TERMINATED: 07/07/2008
David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED
Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED
Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED
represented by Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence A. Wojcik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Homer Piper Rudnick − Chicago Cook County 203 North LaSalle Street Suite 1800 Chicago, IL 60601 312−368−4000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tomas M. Thompson

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 26 of 96

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Colleen E. McManus (See above for address) TERMINATED: 07/07/2008

David J. Pivnick (See above for address) ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Nika K Gembicki (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Bennie Cunningham Originally in case 00−708. Pro se on retaliation claim per order at doc 337

represented by Bennie Cunningham A62152 MENARD CORRECTIONAL CENTER 711 Kaskaskia Street PO Box 1000 Menard, IL 62259 PRO SE

Alan S. Mills (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raj N. Shah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tomas M. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth H. Bartels (See above for address) ATTORNEY TO BE NOTICED

Lawrence A. Wojcik (See above for address) ATTORNEY TO BE NOTICED

Richard D. Murray, Jr. Murray, Rose & Associates, Ltd. 200 South Street Anna, IL 62906 618−833−4402 Email: roselawltd@gmail.com TERMINATED: 09/29/2009

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 27 of 96

V.
Defendant
Donald Snyder in his individual capacity

represented by Christopher L. Higgerson Illinois Attorney General's Office − Springfield 500 South Second Street Springfield, IL 62701 217−782−1841 Fax: 217−782−8767 Email: chiggerson@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen C. Bruce Illinois Attorney General's Office − Springfield 500 South Second Street Springfield, IL 62701 217−782−9026 Fax: 217−524−5091 Email: ebruce@atg.state.il.us
Erik Light Illinois Attorney General's Office − Chicago 2 100 West Randolph Street Suite 1200 Chicago, IL 60601 Email: elight@atg.state.il.us
Joseph N. Rupcich Cassiday Schade LLP −Springfield 111 North Sixth Street, 2nd Floor Springfield, IL 62701 217−572−1714 Fax: 217−572−1613 Email: jrupcich@cassiday.com (Inactive) ATTORNEY TO BE NOTICED
Kelly R. Choate Illinois Attorney General's Office − Springfield Generally Admitted 500 South Second Street Springfield, IL 62706 217−782−9026 Fax: 217−524−5091 Email: kchoate@atg.state.il.us ATTORNEY TO BE NOTICED
Larry J. Lipka Kozacky Weitzel, et al 55 W. Monroe St. Suite 2400 Chicago, IL 60603 312−696−0900 Fax: 312−696−0905 Email: llipka@kwmlawyers.com ATTORNEY TO BE NOTICED
Randall C. Stauffer Illinois Department of Corrections

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 28 of 96

Generally Admitted 1301 Concordia Court P.O. box 19277 Springfield, IL 62702−5643 217−522−2666 Email: rstauffer@idoc.state.il.us TERMINATED: 02/21/2003

Ryan A. Nelson Federal Bureau of Prisons 1222 Spruce Street Suite 6.200A St. Louis, MO 63103 314−539−2382 Email: r4nelson@bop.gov

Terence Corrigan Illinois Attorney General's Office − Springfield Generally Admitted 500 South Second Street Springfield, IL 62706 217−782−5819 Email: tcorrigan@atg.state.il.us ATTORNEY TO BE NOTICED

Defendant
Odie Washington in his individual capacity

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen C. Bruce (See above for address)

Joseph N. Rupcich (See above for address) ATTORNEY TO BE NOTICED

Kelly R. Choate (See above for address) ATTORNEY TO BE NOTICED

Larry J. Lipka (See above for address) ATTORNEY TO BE NOTICED

Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003

Ryan A. Nelson (See above for address)

Terence Corrigan (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael V Neal in his individual capacity

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 29 of 96

Ellen C. Bruce (See above for address)

Joseph N. Rupcich (See above for address) ATTORNEY TO BE NOTICED

Kelly R. Choate (See above for address) ATTORNEY TO BE NOTICED

Larry J. Lipka (See above for address) ATTORNEY TO BE NOTICED

Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003

Ryan A. Nelson (See above for address)

Terence Corrigan (See above for address) ATTORNEY TO BE NOTICED

Defendant
George DeTella in his individual capacity

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen C. Bruce (See above for address)

Joseph N. Rupcich (See above for address) ATTORNEY TO BE NOTICED

Kelly R. Choate (See above for address) ATTORNEY TO BE NOTICED

Larry J. Lipka (See above for address) ATTORNEY TO BE NOTICED

Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003

Ryan A. Nelson (See above for address)

Terence Corrigan (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael O'Leary in his individual capacity

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 30 of 96

Ellen C. Bruce (See above for address)

Joseph N. Rupcich (See above for address) ATTORNEY TO BE NOTICED

Kelly R. Choate (See above for address) ATTORNEY TO BE NOTICED

Larry J. Lipka (See above for address) ATTORNEY TO BE NOTICED

Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003

Ryan A. Nelson (See above for address)

Terence Corrigan (See above for address) ATTORNEY TO BE NOTICED

Defendant
Thomas Page in his individual capacity

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen C. Bruce (See above for address)

Joseph N. Rupcich (See above for address) ATTORNEY TO BE NOTICED

Kelly R. Choate (See above for address) ATTORNEY TO BE NOTICED

Larry J. Lipka (See above for address) ATTORNEY TO BE NOTICED

Randall C. Stauffer (See above for address) TERMINATED: 02/21/2003

Ryan A. Nelson (See above for address)

Terence Corrigan (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jack Hartwig Originally in case 00−708

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 31 of 96

Julie Morgan Illinois Attorney General's Office − Springfield Generally Admitted 500 South Second Street Springfield, IL 62706 217−782−2077 Fax: 217−524−5091 Email: jlmorgan@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
H Markel Originally in case 00−708

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Asst Dep Diret McVicar Originally in case 00−708

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
George C Welborn Originally in case 00−708

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kelly R. Choate (See above for address) ATTORNEY TO BE NOTICED

Defendant
Roger Walker in his official capacity only

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Salvador Godinez in his official capacity only

Defendant
Guy Pierce in his official capacity only

Defendant
Barbara Hurt in her official capacity only

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 32 of 96

Defendant Rick Orr in his official capacity only Defendant Jason Garnett in his official capacity only Defendant Dierdre Battaglia in her official capacity only
Defendant Eddie Jones in his official capacity only
Defendant Don Hulick in his official capacity only
Defendant Roger Zimmerman in his official capacity only
Defendant Ronald Meek in his official capacity only

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Interested Party Michael O'Leary
Defendant Dwayne Clark in his individual capacity

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terence Corrigan Illinois Attorney General's Office − Springfield 500 South Second Street Springfield, IL 62706 217−782−5819 Email: tcorrigan@atg.state.il.us LEAD ATTORNEY

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 33 of 96

ATTORNEY TO BE NOTICED

Ellen C. Bruce (See above for address)

Joseph N. Rupcich (See above for address) ATTORNEY TO BE NOTICED

Ryan A. Nelson (See above for address)

Defendant
Jerry Gilmore in his individual capacity

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terence Corrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph N. Rupcich (See above for address) ATTORNEY TO BE NOTICED

Kelly R. Choate (See above for address) ATTORNEY TO BE NOTICED

Larry J. Lipka (See above for address) ATTORNEY TO BE NOTICED

Ryan A. Nelson (See above for address)

Defendant
Lamark Carter in his individual capacity TERMINATED: 10/15/2009

represented by Christopher L. Higgerson (See above for address) TERMINATED: 10/15/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raja S. Gaddipati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terence Corrigan (See above for address) TERMINATED: 10/16/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Rodney Ahitow in his individual capacity

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terence Corrigan

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 34 of 96

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen C. Bruce (See above for address)

Joseph N. Rupcich (See above for address) ATTORNEY TO BE NOTICED

Kelly R. Choate (See above for address) ATTORNEY TO BE NOTICED

Ryan A. Nelson (See above for address)

Defendant
Roger Cowan in his individual capacity

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terence Corrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ellen C. Bruce (See above for address) ATTORNEY TO BE NOTICED

Joseph N. Rupcich (See above for address) ATTORNEY TO BE NOTICED

Kelly R. Choate (See above for address) ATTORNEY TO BE NOTICED

Ryan A. Nelson (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/07/2000
03/07/2000 03/07/2000 03/07/2000
03/07/2000 03/14/2000

# Docket Text
1 COMPLAINT FOR INJUNCTION, DECLARATORY JUDGMENT AND DAMAGES Filing fee pd $ 150.00 receipt # 300 66126 (fe) Modified on 03/08/2000 (Entered: 03/08/2000)
2 ATTORNEY APPEARANCE for plaintiffs by Alan Mills (fe) (Entered: 03/08/2000)
3 MOTION by plaintiffs for attorney Alan Mills to appear pro hac vice (fe) (Entered: 03/08/2000)
4 ORDER (NGJ/car) granting motion for attorney Alan Mills to appear pro hac vice [3−1] for plaintiffs; $55 filing fee paid on 3/7/00, receipt # 300 66127 (fe) (Entered: 03/08/2000)
Magistrate identification: Mag/Judge Gerald B. Cohn (fe) (Entered: 03/08/2000)
5 CJRA Track C assigned by Judge G. P. Murphy; Jury trial set for the presumptive month of 6/01 before Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (acm) (Entered: 03/16/2000)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 35 of 96

05/10/2000 05/15/2000 05/16/2000 05/18/2000 05/18/2000 05/18/2000 05/23/2000 05/26/2000 05/26/2000 05/26/2000
05/31/2000 06/07/2000 06/19/2000 06/29/2000 07/05/2000 07/13/2000 07/13/2000 07/19/2000 09/18/2000 09/18/2000

6 MOTION by defendant Donald Snyder, defendant Odie Washington, defendant Michael V Neal, defendant George DeTella, defendant Michael O'Leary, defendant Thomas Page to extend time to answer (acm) (Entered: 05/12/2000)
7 NOTICE of Sched/Disc Conf set 8:30 AM, 6/15/00 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (acm) (Entered: 05/16/2000)
8 ORDER by Mag Judge Gerald B. Cohn granting motion to extend time to answer [6−1] (answer is due 5/15/00) (cc: all counsel) (acm) (Entered: 05/17/2000)
9 MOTION by plaintiffs for entry of default as to Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page (fe) (Entered: 05/23/2000)
10 MOTION by defendants to dismiss complaint (fe) (Entered: 05/23/2000)
11 MOTION by defendants for leave to file in excess of ten pages (fe) (Entered: 05/23/2000)
12 ORDER (NGJ/clk) denying motion for entry of default as to Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page [9−1] (cc: all counsel) (fe) (Entered: 05/23/2000)
13 RESPONSE by defendants Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page to motion for default [9−1] (myz) (Entered: 05/30/2000)
14 ORDER by Judge G. P. Murphy granting motion for leave to file a memorandum of law in excess of ten pages [11−1] (cc: all counsel) (acm) (Entered: 05/31/2000)
15 MEMORANDUM by defendant Donald Snyder, defendant Odie Washington, defendant Michael V Neal, defendant George DeTella, defendant Michael O'Leary, defendant Thomas Page in support of motion to dismiss complaint [10−1] (acm) (Entered: 05/31/2000)
16 MOTION by plaintiffs for extension of time to respond to defendants' motion to dismiss (acm) (Entered: 06/06/2000)
17 ORDER by Judge G. P. Murphy granting motion for extension of time to respond to defendants' motion to dismiss [16−1]; motion to dismiss complaint [10−1] resp due 6/26/00 (cc: all counsel) (myz) (Entered: 06/12/2000)
18 ORDER by Mag Judge Gerald B. Cohn setting settlement conf at 9:00 AM on 4/23/01 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (myz) (Entered: 06/23/2000)
19 MOTION by plaintiffs for extension of time to respond to motion to dismiss (myz) (Entered: 07/06/2000)
20 MOTION by plaintiffs for leave to file in excess of ten pages (fe) (Entered: 07/07/2000)
21 ORDER by Judge G. P. Murphy granting motion for leave to file in excess of ten pages [20−1], denying motion for extension of time to respond to motion to dismiss [19−1] as moot (cc: all counsel) (tjh) (Entered: 07/17/2000)
22 RESPONSE by plaintiffs to motion to dismiss complaint [10−1] (tjh) (Entered: 07/17/2000)
23 NOTICE of hearing re motion to dismiss [10−1] ORAL ARGUMENTS set 2:30 PM on 9/18/00 before Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (lmc) (Entered: 07/19/2000)
24 MINUTES (lc) of hearing on motion to dismiss before Judge G. P. Murphy taking under advisement the motion to dismiss complaint [10−1] ; (C/R: Molly Clayton) (dmw) (Entered: 09/21/2000)
25 MOTION by plaintiffs for attorney Paul Homer to appear pro hac vice (dmw) (Entered: 09/21/2000)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 36 of 96

09/18/2000 09/25/2000 09/25/2000 10/04/2000
10/12/2000 10/13/2000 10/23/2000 10/31/2000 12/20/2000 01/08/2001 01/10/2001 01/12/2001 01/23/2001 03/09/2001 05/01/2001
05/03/2001

26 ORDER (NGJ/cr) granting motion for attorney Paul Homer to appear pro hac vice [25−1] for plaintiffs (cc: all counsel) $55.00 fee paid receipt #300 69843 (dmw) (Entered: 09/21/2000)
27 MOTION by defendants' Thomas Page, Michael O'Leary, George DeTella, Michael V Neal, Odie Washington, Donald Snyder to stay discovery (tjh) (Entered: 09/26/2000)
28 MEMORANDUM OF LAW by defendants' Thomas Page, Michael O'Leary, George DeTella, Michael V Neal, Odie Washington, Donald Snyder in support of motion to stay discovery [27−1] (tjh) (Entered: 09/26/2000)
29 RESPONSE by plaintiffs' Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Vincente Rodriguez, Edward Rodriguez, Tyshawn Ross, Anibal Santiago, Milton Smith, Joe Sorrentino, Michael Sparling, Corey A Taylor, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer to motion to stay discovery [27−1] (tjh) (Entered: 10/11/2000)
30 MOTION by plaintiff Milton Smith to voluntarily dismiss himself as a party (tjh) (Entered: 10/17/2000)
31 AFFIDAVIT of Milton Smith re motion to voluntarily dismiss [30−1] (tjh) (Entered: 10/17/2000)
32 ORDER by Chief Judge G. P. Murphy granting motion to voluntarily dismiss himself as a party [30−1]; dismissing party Milton Smith without prejudice (cc: all counsel) (tjh) (Entered: 10/26/2000)
33 NOTICE of hearing settlement conf set 9:00AM 5/3/01 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (jms) (Entered: 10/31/2000)
34 ORDER by Chief Judge G. P. Murphy granting in part and denying in part motion to dismiss complaint [10−1] See order for specifics (cc: all counsel) (jmf) (Entered: 12/22/2000)
35 MOTION by defendants Thomas Page, Michael O'Leary, George DeTella, Michael V Neal, Odie Washington, Donald Snyder for enlargement of time (car) (Entered: 01/10/2001)
36 ORDER by Mag Judge Gerald B. Cohn granting motion for enlargement of time to 1/12/01 to respond to complaint [35−1] (cc: all counsel) (dmw) (Entered: 01/12/2001)
37 ANSWER by defendant Donald Snyder, defendant Odie Washington, defendant Michael V Neal, defendant George DeTella, defendant Michael O'Leary, defendant Thomas Page to plaintiffs' complaint for injunction, declaratory judgment and damages[1−1] (fe) (Entered: 01/16/2001)
38 OBJECTIONS by defendants' Thomas Page, Michael O'Leary, George DeTella, Michael V Neal, Odie Washington, Donald Snyder to plaintiffs' request to view photograph and video tape (tjh) (Entered: 01/25/2001)
39 ORDER by Mag Judge Gerald B. Cohn denying as moot motion to stay discovery [27−1] (cc: all counsel) (dmw) (Entered: 03/13/2001)
40 MOTION by plaintiffs' Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Vincente Rodriguez, Edward Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Corey A Taylor, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer to reset settlement conference (tjh) (Entered: 05/01/2001)
41 ORDER by Mag Judge Gerald B. Cohn granting motion to reset settlement conference [40−1]; Settlement conf scheduled for 5/3/01 is vacated (cc: all counsel) (tjh) (Entered: 05/07/2001)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 37 of 96

05/10/2001 05/21/2001 05/29/2001 06/15/2001
06/15/2001
06/22/2001 06/25/2001 06/29/2001 07/03/2001 07/06/2001 07/09/2001 07/13/2001 07/13/2001 07/13/2001 07/16/2001 07/30/2001 07/30/2001

42 NOTICE of hearing settlement conf set 2:00PM 5/30/01 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (jms) (Entered: 05/10/2001)
43 AGREED MOTION by plaintiffs to cancel settlement conference (car) (Entered: 06/05/2001)
44 ORDER by Mag Judge Gerald B. Cohn granting motion to cancel settlement conference [43−1]; Settlement conf scheduled for 5/30/01i is cancelled (cc: all counsel) (car) (Entered: 06/05/2001)
45 MOTION by plaintiffs' Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Vincente Rodriguez, Edward Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Corey A Taylor, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer to compel disclosure (tjh) (Entered: 06/20/2001)
46 MEMORANDUM OF LAW by plaintiffs' Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Vincente Rodriguez, Edward Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Corey A Taylor, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer in support of motion to compel disclosure [45−1] (tjh) (Entered: 06/20/2001)
47 MOTION by defendants Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary and Thomas Page to compel answers to interrogatories (scj) (Entered: 06/29/2001)
48 MOTION by defendants' Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page for enlargement of time to respond to motion to compel (tjh) (Entered: 06/29/2001)
49 MOTION by defendants' Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page to substitute motion for enlargement of time due to scrivener's error (tjh) (Entered: 07/09/2001)
50 (MOTION) by defendants and plaintiffs for agreed protective order (tjh) (Entered: 07/10/2001)
51 ORDER by Mag Judge Gerald B. Cohn granting motion for enlargement of time to respond to motion to compel [48−1] motion to compel disclosure [45−1] resp due 7/6/01 (cc: all counsel) (dmw) Modified on 01/22/2002 (Entered: 07/11/2001)
52 MOTION by defendants Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page for leave to file in excess of ten pages (amv) (Entered: 07/11/2001)
53 ORDER by Mag Judge Gerald B. Cohn granting motion to substitute motion for enlargement of time [49−1] (cc: all counsel) (dmw) (Entered: 07/17/2001)
54 ORDER by Mag Judge Gerald B. Cohn granting motion for leave to file in excess of ten pages [52−1] (cc: all counsel) (dmw) (Entered: 07/17/2001)
55 RESPONSE by defendants to motion to compel discovery [45−1] (dmw) (Entered: 07/17/2001)
56 ORDER by Mag Judge Gerald B. Cohn granting motion to compel answers to interrogatories [47−1] (cc: all counsel) (dmw) (Entered: 07/19/2001)
57 MOTION by plaintiffs for extension of time to complete discovery responses (tjh) (Entered: 08/02/2001)
58 MOTION by plaintiff Timothy Hall to dismiss plaintiff Timothy Hall from litigation sub−class (tjh) (Entered: 08/02/2001)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 38 of 96

08/06/2001 10/01/2001 10/09/2001 10/09/2001 01/11/2002 01/11/2002 01/23/2002
07/10/2002 07/18/2002 07/19/2002 07/19/2002 07/25/2002 07/25/2002 07/25/2002 07/25/2002
07/25/2002

59 ORDER by Mag Judge Gerald B. Cohn granting motion for extension of time to complete discovery responses up to August 20, 2001 [57−1] (cc: all counsel) (fe) (Entered: 08/08/2001)
60 MOTION by plaintiff for leave to file Reply Brief in support of Motion to Compel Discovery, instanter (scj) (Entered: 10/03/2001)
61 ORDER by Mag Judge Gerald B. Cohn granting motion for leave to file Reply Brief in support of Motion to Compel Discovery, instanter [60−1] (cc: all counsel) (scj) (Entered: 10/10/2001)
62 REPLY by plaintiffs in support of motion to compel disclosure [45−1] (scj) Modified on 10/10/2001 (Entered: 10/10/2001)
63 ORDER by Mag Judge Gerald B. Cohn granting in part and denying in part the motion to compel disclosure [45−1]; defendants are directed to turn over all documents which justify or support the transfer of plaintiffs to Tamms Correctional Center (cc: all counsel) (scj) Modified on 01/15/2002 (Entered: 01/14/2002)
50 ORDER by Mag Judge Gerald B. Cohn granting motion for agreed protective order [50−1] (cc: all counsel) (scj) (Entered: 01/15/2002)
64 ORDER by Chief Judge G. P. Murphy modifying 12/20/00 order by dismissing counts 2 & 3 with prejudice for failure to state a claim upon which relief can be granted; count 4 remains dismissed without prejudice for lack of subject matter jurisdiction; granting in part and denying in part motion to dismiss plaintiff Timothy Hall from litigation sub−class [58−1]; withdrawing, striking and dismissing party Timothy Hall ; dismissing the following parties to this action: Robert Westefer, Alejandro Villazana, Armando Tinajero, Tyshawn Ross, Vincent Reyna, Alex Muller, Michael Johnson, John Gill, Larry Gambrell, Larry Foutch, Maurice Coleman, Gary Clark, Finner Bryant, Larry Brown ; jury trial reset for 8:00 AM on 8/6/02 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (tjh) (Entered: 01/28/2002)
65 MOTION by defendants' Thomas Page, Michael O'Leary, George DeTella, Michael V Neal, Odie Washington, Donald Snyder for relief (leave to) from Local Rule 7.1(g) (tjh) (Entered: 07/15/2002)
66 NOTICE of hearing status conf set 10:00 AM on 7/25/02 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (lmc) (Entered: 07/18/2002)
67 MOTION by plaintiffs for extension of time to respond to defendants' motion for summary judgment (dmw) (Entered: 07/24/2002)
68 AGREED MOTION by plaintiffs to reset trial date (to continue) (dmw) (Entered: 07/24/2002)
69 MOTION by defendants' Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, and Thomas Page for summary judgment received on 7/25/02 (tjh) (Entered: 08/05/2002)
70 MEMORANDUM by defendants' Thomas Page, Michael O'Leary, George DeTella, Michael V Neal, Odie Washington, and Donald Snyder in support of motion for summary judgment received on 7/25/02 [69−1] (tjh) (Entered: 08/05/2002)
71 UNDISPUTED MATERIAL FACTS by defendants' Thomas Page, Michael O'Leary, George DeTella, Michael V Neal, Odie Washington, and Donald Snyder to motion for summary judgment received on 7/25/02 [69−1] (tjh) (Entered: 08/05/2002)
72 MINUTES of hearing on Status Conference (lmc) before Chief Judge G. P. Murphy granting motion for relief (leave to) from Local Rule 7.1(g) [65−1]; granting motion for extension of time to respond to defendants' motion for summary judgment [67−1]; response to motion for summary judgment received on 7/25/02 [69−1] due 9/17/02 and set for oral arguments at 2:30 PM on 10/7/02 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL; granting motion to reset trial date (to continue) [68−1]; Status conference held 7/25/02 ( C/R: Molly Clayton) (tjh) (Entered: 08/05/2002)
VOLUME NUMBER 2 created, beginning with document number 69. (tjh) (Entered: 08/05/2002)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 39 of 96

08/21/2002 09/16/2002
09/16/2002
09/16/2002 09/16/2002 09/18/2002 09/18/2002 09/20/2002 09/23/2002 09/25/2002
09/27/2002
10/10/2002 10/10/2002

73 NOTICE of hearing re motion for summary judgment [69−1] ORAL ARGUMENTS set 2:30 PM on 10/28/02 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (lmc) (Entered: 08/21/2002)
74 MOTION by plaintiffs' Aryules Bivens, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Laverne Clayton, Kennard Combs, Robert Felton, George Harper, Eugene Horton, Ted Knox, William Lasley, Vincente Rodriguez, Edward Rodriguez, Anibal Santiago, Joe Sorrentino, Michael Sparling, Corey A Taylor, Mark Von Perbandt for sanctions or, in the alternative, for order to over rule defendants' objections to discovery (tjh) (Entered: 09/20/2002)
75 MOTION by plaintiffs' Aryules Bivens, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Laverne Clayton, Kennard Combs, Robert Felton, George Harper, Eugene Horton, Ted Knox, William Lasley, Vincente Rodriguez, Edward Rodriguez, Anibal Santiago, Joe Sorrentino, Michael Sparling, Corey A Taylor, Mark Von Perbandt for extension of time to respond to motion for summary judgment (tjh) (Entered: 09/20/2002)
76 MOTION by plaintiffs' Aryules Bivens, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Laverne Clayton, Kennard Combs, Robert Felton, George Harper, Eugene Horton, Ted Knox, William Lasley, Vincente Rodriguez, Edward Rodriguez, Anibal Santiago, Joe Sorrentino, Michael Sparling, Corey A Taylor, Mark Von Perbandt for leave to file amended complaint (tjh) (Entered: 09/20/2002)
77 OBJECTIONS by defendants' Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page to motion for extension of time [75−1] (tjh) (Entered: 09/20/2002)
78 OBJECTION (RESPONSE) by defendants' Thomas Page, Michael O'Leary, George DeTella, Michael V Neal, Odie Washington, Donald Snyder to motion for leave to file amended complaint [76−1] (tjh) (Entered: 09/25/2002)
79 MEMORANDUM OF LAW by defendants' Thomas Page, Michael O'Leary, George DeTella, Michael V Neal, Odie Washington, Donald Snyder in support of objection [78−1] to motion for leave to file amended complaint [76−1] (tjh) Modified on 09/25/2002 (Entered: 09/25/2002)
REMARK − attachments to doc # located in exhibit room (tjh) (Entered: 09/20/2002)
80 MOTION by defendants' Donald Snyder, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page for leave to file in excess of ten pages (tjh) (Entered: 09/27/2002)
81 MOTION by plaintiffs' Aryules Bivens, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Laverne Clayton, Kennard Combs, Robert Felton, George Harper, Eugene Horton, Ted Knox, William Lasley, Vincente Rodriguez, Edward Rodriguez, Anibal Santiago, Joe Sorrentino, Michael Sparling, Corey A Taylor, Mark Von Perbandt for leave to file 15 page reply brief in support of their motion to file an amended complaint (tjh) (Entered: 10/02/2002)
82 REPLY BRIEF by plaintiffs' Aryules Bivens, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Laverne Clayton, Kennard Combs, Robert Felton, George Harper, Eugene Horton, Ted Knox, William Lasley, Vincente Rodriguez, Edward Rodriguez, Anibal Santiago, Joe Sorrentino, Michael Sparling, Corey A Taylor, Mark Von Perbandt to response to motion for extension of time to respond to motion for summary judgment [75−1] (tjh) (Entered: 10/02/2002)
83 RESPONSE by defendants Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, and Thomas Page to motion for sanctions [74−1] or, in the alternative, motion for order to over rule defendants' objections to discovery [74−2] (scj) (Entered: 10/17/2002)
84 ORDER by Chief Judge G. P. Murphy granting motion for leave to file 15 page reply brief in support of their motion to file an amended complaint [81−1], granting motion for leave to file in excess of ten pages [80−1] motion for leave to file amended complaint [76−1]; hearing 2:30 PM on 10/28/02 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL, motion for extension of time to respond to motion for summary judgment [75−1] hearing 2:30 PM on 10/28/02 before Chief Judge G. P.

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 40 of 96

10/10/2002 10/23/2002
10/27/2002 10/28/2002
10/28/2002
10/29/2002
11/12/2002 11/25/2002 12/05/2002 12/06/2002 12/17/2002 12/23/2002 12/26/2002 01/29/2003

Murphy in the USDC/East St. Louis, IL, motion for sanctions [74−1] hearing 2:30 PM on 10/28/02 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL, motion for order to over rule defendants' objections to discovery [74−2] hearing 2:30 PM on 10/28/02 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (jmf) (Entered: 10/21/2002)
85 REPLY by plaintiff to response to motion for leave to file amended complaint [76−1] (jmf) (Entered: 10/21/2002)
86 MOTION by plaintiffs' Aryules Bivens, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Laverne Clayton, Kennard Combs, Robert Felton, George Harper, Eugene Horton, Ted Knox, William Lasley, Vincente Rodriguez, Edward Rodriguez, Anibal Santiago, Joe Sorrentino, Michael Sparling, Corey A Taylor, Mark Von Perbandt for relatedness (order) (tjh) (Entered: 10/31/2002)
VOLUME NUMBER 3 created, beginning with document number 87. (dmw) (Entered: 12/19/2002)
87 MINUTES of hearing on Motion to Amend, for Extension of Time, for Sanctions (lmc) before Chief Judge G. P. Murphy denying motion for sanctions [74−2] or for order [74−1]; granting motion for extension of time [75−1]; granting motion to amend [76−1]; denying motion for relatedness [86−1] as moot ( C/R: Molly Clayton) (tjh) (Entered: 10/31/2002)
89 AMENDED COMPLAINT FOR INJUNCTION, DECLARATORY JUDGMENT, AND AND DAMAGES [1−1] by plaintiffs' Mark Von Perbandt, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago, Edward Rodriguez, Vincente Rodriguez, William Lasley, Ted Knox, Eugene Horton, George Harper, Robert Felton, Kennard Combs, Laverne Clayton, Marcus Chapman, Ronnie W Carroll, Roosevelt Burrell, Aryules Bivens; adding defendants' Dwayne Clark, Jerry Gilmore, Lamark Carter, Rodney Ahitow, Roger Cowan; jury demand (tjh) (Entered: 10/31/2002)
88 ORDER by Chief Judge G. P. Murphy granting motion for leave to file amended complaint [76−1]; granting in part and denying in part motion for order to over rule defendants' objections to discovery [74−2] and for sanctions [74−1]; granting motion for extension of time to respond to motion for summary judgment [75−1]; response to motion for summary judgment received on 7/25/02 [69−1] due 12/27/02; denying as moot plaintiffs' motion for relatedness (order) [86−1] which is construed as a notice (cc: all counsel) (tjh) (Entered: 10/31/2002)
90 MOTION by plaintiffs' for order to over rule defendants' objections to discovery (tjh) Modified on 11/27/2002 (Entered: 11/18/2002)
91 RESPONSE by defendants' Thomas Page, Michael O'Leary, George DeTella, Michael V Neal, Odie Washington, Donald Snyder to motion for order to over rule defendants' objections to discovery [90−1] (tjh) (Entered: 11/27/2002)
92 NOTICE of hearing re motion for summary judgment [69−1] ORAL ARGUMENTS set 10:30 AM on 2/10/03 before Chief Judge G. P. Murphy in the USDC/East St. Louis, IL (cc: all counsel) (lmc) (Entered: 12/05/2002)
93 REPLY by plaintiffs' in support of response to motion for order to over rule defendants' objections to discovery [90−1] (tjh) (Entered: 12/09/2002)
94 MOTION by plaintiffs for extension of time to respond to motion for summary judgment (dmw) (Entered: 12/19/2002)
95 ORDER by Chief Judge G. P. Murphy granting motion for extension of time to respond to motion for summary judgment [94−1] [69−1]; resp due 1/27/03 (cc: all counsel) (scj) (Entered: 12/26/2002)
96 ANSWER and affirmative defenses by defendants Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Roger Cowan, Rodney Ahitow to [89−1] (dmw) (Entered: 12/30/2002)
97 MOTION by plaintiffs for leave to file instanter their response to motion for summary judgment (tjh) Modified on 02/07/2003 (Entered: 02/04/2003)

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02/03/2003 02/04/2003 02/10/2003
02/10/2003 02/10/2003 02/18/2003 02/21/2003 02/24/2003 05/15/2003 07/28/2003
07/28/2003
08/27/2003
08/27/2003

98 MOTION by plaintiffs for leave to file executed affidavits instanter (tjh) Modified on 02/07/2003 (Entered: 02/07/2003)
99 MOTION by plaintiffs for order to over rule objections to second set of interrogatories (tjh) Modified on 02/07/2003 (Entered: 02/07/2003)
100 MINUTES of hearing on Motion for Summary Judgment (lmc) before Chief Judge G. P. Murphy granting motion for leave to file instanter their response to motion for summary judgment [97−1]; granting motion for leave to file executed affidavits instanter [98−1]; reserving rulling on motion for order [90−1] & [99−1]; taking the motion for summary judgment under advisement [69−1]; written order to follow ( C/R: Molly Clayton) (tjh) (Entered: 02/13/2003)
101 REPLY by defendants' Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page to response to motion for summary judgment received on 7/25/02 [69−1] (tjh) (Entered: 02/13/2003)
102 RESPONSE by plaintiffs to motion for summary judgment received on 7/25/02 [69−1] (attachments located in expando folder) (tjh) Modified on 02/13/2003 (Entered: 02/13/2003)
103 MOTION by defendants Thomas Page, Michael O'Leary, George DeTella, Michael V Neal, Odie Washington, Donald Snyder to strike all evidence and exhibits from plaintiffs' response to defendants' motion for summary (js) (Entered: 02/19/2003)
(Utility Event) − Terminating attorney Randall C. Stauffer for Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page (tjh) (Entered: 02/21/2003)
104 RESPONSE by plaintiffs to motion to strike [103−1] (dmw) (Entered: 02/26/2003)
105 ATTORNEY SUBSTITUTION: terminating attorney Terence Corrigan for Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page and substituting attorney Christopher L. Higgerson (dmw) (Entered: 05/20/2003)
106 MEMORANDUM AND ORDER by Chief Judge G. P. Murphy denying plaintiffs' discovery motions [90−1] & [99−1], granting in part and denying in part motion to strike [103−1], granting motion for summary judgment [69−1]. Claims of plaintiffs Felton, Horton, Santiago, and V Rodriguez are dismissed without prejudice for failure to exhaust administrative remedies; claims of plaintiffs von Perbandt, Taylor, Sparling, Sorrentino, E Rodriguez, Lasley, Knox, Harper, Combs, Clayton, Chapman, Carroll, Burrell, and Bivens are dismissed with prejudice purusant to FRCiP 56 terminating case (cc: all counsel) (dmw) (Entered: 07/30/2003)
107 JUDGMENT (NGJ/lc) approved by Chief Judge G. Patrick Murphy in favor of defendants Snyder, Neal, DeTella, O'Leary, Clark, Gilmore, Carter, Ahitow, Cowan, Page and Washington and against plaintiffs von Perbandt, Taylor, Sparling, Sorrentino, E Rodriguez, Lasley, Knox, Harper, Combs, Clayton, Chapman, Carroll, Burrell, Bivens, Westefer, Villanzana, Tinajero, Ross, Reyna, Muller, Johnson, Hall, Gill, Gambrell, Foutch, Coleman, Clark, Bryant and Brown. The claims of plaintiffs Santiago, V. Rodriguez, Horton and Felton are dismissed without prejudice. The claims of plaintiff Milton Smith are dismissed without prejudice (cc: all counsel) (dmw) (Entered: 07/30/2003)
108 NOTICE OF APPEAL on behalf of plaintiffs Robert Westefer, Mark Von Perbandt, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago, Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Marcus Chapman, Ronnie W Carroll, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens;, [106−2], [107−1] (cc: all counsel) (dmw) (Entered: 08/27/2003)
109 DOCKETING STATEMENT pursuant to Circuit Rule #3 by plaintiffs Robert Westefer, Mark Von Perbandt, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago, Tyshawn Ross, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Vincente

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 42 of 96

08/27/2003 09/02/2003 09/08/2003 09/10/2003
11/19/2003 12/03/2003 01/06/2004
03/04/2004
06/07/2004 07/02/2004 07/27/2004 07/29/2004 08/19/2004 08/19/2004
08/30/2004 09/30/2005
10/31/2005 12/01/2005
02/04/2006

Rodriguez, Edward Rodriguez, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Aryules Bivens, Larry Brown, Finner Bryant (dmw) (Entered: 08/27/2003)
SHORT RECORD transmitted to USCA−7 [108−1] (dmw) (Entered: 08/27/2003)
RECEIVED re [108−1] appeal fee in amount of $105.00 receipt #300 91587 (dmw) (Entered: 09/03/2003)
NOTIFICATION by Circuit Court of Appellate Docket Number 03−3318 (dmw) (Entered: 09/10/2003)
RECORD ON APPEAL prepared [108−1] consisting of 3 vols pleadings and 3 expandable folders of loose documents (dmw) Modified on 09/10/2003 (Entered: 09/10/2003)
671 TRANSCRIPT of Motion for Summary Judgment; held 2/10/03; 1 volume(s) Court Reporter: Molly Clayton (tjh) (mlm2). (Entered: 11/24/2003)
SUPPLEMENTAL RECORD ON APPEAL prepared [108−1] consisting of 1 vol transcripts (dmw) (Entered: 12/03/2003)
RECORD ON APPEAL checked out by Alan S. Mills for plaintiff Mark Von Perbandt consisting of 3 vols pleadings, 3 expandable folders of loose documents, 1 vol transcripts [108−1] (dmw) (Entered: 01/06/2004)
110 Record on Appeal Returned by Attorney Alan S. Mills re 108 Notice of Appealconsisting of 3 vols pleadings, 3 expandable folders loose pleadings and 1 transcript (dmw) (Entered: 03/04/2004)
111 Record on Appeal Checked Out re 108 Notice of Appeal by attorney Eric Light with Illinois Attorney General's Office, Chicago (dmw) (Entered: 06/07/2004)
112 Receipt for Record on Appeal checked out by Attorney Eric Light re 108 Notice of Appeal. (tjh) (Entered: 07/13/2004)
Record on Appeal Returned by Attorney Eric Light re 108 Notice of Appeal.(tjh) (Entered: 07/28/2004)
113 MANDATE of USCA dismissing appeal only as to appellant Ronnie Carroll, 108 Notice of Appeal (tjh) Modified on 8/3/2004 (dmw, ). (Entered: 07/30/2004)
114 Request from USCA to transmit Record on Appeal re 108 Notice of Appeal. (dmw) (Entered: 08/19/2004)
115 Certified and Transmitted Record on Appeal to US Court of Appeals re 108 Notice of Appeal consisting of 3 volumes pleadings, 1 transcript and 3 expando folders of loose documents. (dmw) Additional attachment(s) added on 8/20/2004 (dmw, ). (Entered: 08/19/2004)
116 Acknowledgment Letter from USCA (dmw) (Entered: 08/31/2004)
117 MANDATE of USCA REVERSING and REMANDING as to 108 Notice of Appeal, (Attachments: # 1 Page 1−20 of Decision; # 2 Page 21−40 of Decision)(tjh) (Entered: 09/30/2005)
118 ORDER re 117 USCA Mandate reinstating all plaintiffs except for Milton Smith. Signed by Judge G. Patrick Murphy on 10/31/05. (tjh) (Entered: 11/18/2005)
119 NOTICE of Hearing: Status Conference set for 2/13/2006 at 10:00 AM in East St. Louis Court House before Chief Judge G. Patrick Murphy. (lmc) (Entered: 12/01/2005)
120 MOTION for Discovery Overrule Defendants' Objections by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Marcus Chapman, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 43 of 96

02/04/2006 02/07/2006
02/07/2006
02/13/2006
02/13/2006 02/15/2006 02/17/2006 02/22/2006 02/27/2006 02/27/2006 02/28/2006

Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Mills, Alan) (Entered: 02/04/2006)
121 MOTION to Substitute Party and Suggestion of Death by Marcus Chapman. (Attachments: # 1 Exhibit)(Mills, Alan) (Entered: 02/04/2006)
122 MOTION to Certify Class by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago. Responses due by 3/9/2006 (Mills, Alan) (Entered: 02/07/2006)
123 MEMORANDUM in Support re 122 MOTION to Certify Class filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Mills, Alan) (Entered: 02/07/2006)
124 Minute Entry for proceedings held before Judge G. Patrick Murphy : Status Conference held on 2/13/2006. Terence Corrigan will be added as attorney for defendants Jerry Gilmore and Lamark Carter. GRANTING 121 MOTION to Substitute Party filed by Marcus Chapman. Mary Chapman SUBSTITUTED for Marcus Chapman. Alan S. Mills & Paul Homer added for Mary Chapman. Ronnie W Carroll terminated per settlement in the 7th Circuit. Discovery is REOPENED on the due process issue. A magistrate judge will be assigned for discovery disputes. Status Conference SET for 5/15/2006 at 01:30 PM in East St. Louis Court House before Chief Judge G. Patrick Murphy. (Court Reporter Molly Clayton.) (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 02/13/2006)
CASE REFERRED to Magistrate Judge Donald G. Wilkerson for discovery disputes. (tjh) (Entered: 02/13/2006)
125 NOTICE of Hearing on Motion 120 MOTION for Discovery Overrule Defendants' Objections: Motion Hearing set for 3/7/2006 02:00 PM in East St. Louis Court House before Mag/Judge Donald G. Wilkerson. (rmb) (Entered: 02/15/2006)
126 MOTION for Extension of Time to File by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page. (Corrigan, Terence) (Entered: 02/17/2006)
127 ORDER GRANTING 126 MOTION for Extension of Time filed by Thomas Page, Michael O'Leary, Michael V Neal, Odie Washington, Donald Snyder, George DeTella. Responses to 120 Plaintiffs' MOTION for Discovery and 122 Plaintiffs' MOTION to Certify Class are due on or before 2/27/2006. Signed by Chief Judge G. Patrick Murphy on 2/22/2006. (ssd)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 02/22/2006)
128 RESPONSE to Motion re 120 MOTION for Discovery Overrule Defendants' Objections filed by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page. (Corrigan, Terence) Modified on 2/28/2006 (dmw). (Entered: 02/27/2006)
129 RESPONSE to Motion re 122 MOTION to Certify Class filed by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page. (Corrigan, Terence) (Entered: 02/27/2006)
130 NOTICE OF ERRORS AND/OR DEFICIENCIES re 128 Response to Motion filed by Thomas Page, Michael O'Leary, Michael V Neal, Odie Washington, Donald Snyder, George DeTella. See attached document for specifics (dmw) (Entered: 02/28/2006)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 44 of 96

02/28/2006
03/07/2006
03/08/2006 03/11/2006
03/16/2006 04/19/2006 05/05/2006 05/15/2006 05/18/2006 06/07/2006 06/09/2006 06/12/2006 06/13/2006

131 REPLY to Response to Motion re 120 MOTION for Discovery Overrule Defendants' Objections to Discovery filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Attachments: # 1 Exhibit E. Rodriguez Transfer Coversheet)(Mills, Alan) (Entered: 02/28/2006)
132 Minute Entry for proceedings held before Judge Donald G. Wilkerson: Motion Hearing held on 3/7/2006 re 120 MOTION for Discovery Overrule Defendants' Objections. Alan S. Mills for plaintiff and Christopher L. Higgerson and Terence Corrigan for defendant present. Order to issue. (Court Reporter Beverly Hopkins (Keefe). (rmb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/08/2006)
133 ORDER FOR TRANSCRIPT re 132 Motion Hearing. Signed by Judge Donald G. Wilkerson on 3/8/06. (rmb) (Entered: 03/08/2006)
134 REPLY to Response to Motion re 122 MOTION to Certify Class filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Mills, Alan) (Entered: 03/11/2006)
135 TRANSCRIPT of Motion Hearing 120 held on 3/7/06 before Judge Mag Judge Donald G. Wilkerson. Court Reporter: Beverly Hopkins (Keefe). This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (rmb) (mlm2). (Entered: 03/16/2006)
136 MOTION to Withdraw as Attorney by Corey A Taylor. (Mills, Alan) (Entered: 04/19/2006)
137 ANSWER to Complaint and Affirmative Defenses by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan.(Corrigan, Terence) (Entered: 05/05/2006)
138 Minute Entry for proceedings held before Judge G. Patrick Murphy : Status Conference held on 5/15/2006. Amended Pleadings due by 6/15/2006. (Court Reporter Molly Clayton.) (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 05/15/2006)
139 ORDER consolidating case with 00−708−JPG. Signed by Judge J. Phil Gilbert on 5/18/06. (dka, ) (Entered: 05/22/2006)
140 MOTION for Extension of Time to Complete Discovery by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan. (Corrigan, Terence) (Entered: 06/07/2006)
141 ENTRY STRICKEN: RESPONSE in Opposition re 140 MOTION for Extension of Time to Complete Discovery filed by plaintiffs. (Attachment: # 1 Exhibit Plaintiffs' Interrogatories)(Mills, Alan) Modified on 6/12/2006 (dmw). (Entered: 06/09/2006)
142 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENT striking 141 Response in Opposition to Motion, filed by plaintiffs. See attached document for specifics (dmw) (Entered: 06/12/2006)
143 RESPONSE to Motion re 140 MOTION for Extension of Time to Complete Discovery filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell,

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 45 of 96

06/14/2006
06/14/2006 06/14/2006 06/19/2006 06/28/2006 07/20/2006 07/20/2006
08/17/2006 08/18/2006 08/28/2006 08/31/2006 09/07/2006

Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Attachments: # 1 Exhibit Interrogatories)(Mills, Alan) (Entered: 06/13/2006)
144 AMENDED COMPLAINT SECOND against all defendants, filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago.(Mills, Alan) (Entered: 06/14/2006)
145 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Lawrence A. Wojcik for Plaintiffs. $100.00 fee paid, receipt number 300 112500 (lmb) (Entered: 06/14/2006)
146 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Colleen E. McManus for Plaintiffs. $100.00 fee paid, receipt number 300 112500 (lmb) (Entered: 06/14/2006)
147 REPLY to Response to Motion re 140 MOTION for Extension of Time to Complete Discovery filed by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan. (Corrigan, Terence) (Entered: 06/19/2006)
148 ANSWER to Amended Complaint and Affirmative Defenses by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan.(Corrigan, Terence) (Entered: 06/28/2006)
149 ORDER GRANTING IN PART and MOOTING IN PART 120 MOTION for Discovery Overrule Defendants' Objections filed by the plaintiffs. Action due by 8/21/2006. Signed by Judge Donald G. Wilkerson on 7/20/06. (sgp) (Entered: 07/20/2006)
150 ORDER GRANTING 140 MOTION for Extension of Time to Complete Discovery filed by Thomas Page, Roger Cowan, Michael O'Leary, Michael V Neal, Rodney Ahitow, Odie Washington, Dwayne Clark, Donald Snyder, George DeTella. The time for response to the plaintiffs' interrogatories requested by the defendants, July 7, 2006, has passed. Nonetheless, as the plaintiffs have not objected to the extension, and for purposes of Rule 33(b), the defendants' responses submitted on or before July 7, 2006 are deemed timely. Signed by Judge Donald G. Wilkerson on 7/20/06. (sgp)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/20/2006)
151 MOTION Modify Court's Order of July 20, 2006 re 150 Order, Terminate Motions,,,, by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan. (Corrigan, Terence) (Entered: 08/17/2006)
152 MOTION for Leave to File Response to Defendants' Motion to Modify Court's July 20, 2006 Order Regarding In Camera Inspection of Gang−Related Documents by Robert Westefer. (McManus, Colleen) (Entered: 08/18/2006)
153 RESPONSE in Opposition re 151 MOTION Modify Court's Order of July 20, 2006 re 150 Order, Terminate Motions,,,, filed by Robert Westefer. (McManus, Colleen) (Entered: 08/28/2006)
154 ORDER GRANTING 152 Motion for Leave to File. The plaintiffs already have filed their response. Signed by Judge Donald G. Wilkerson on 8/31/06. (sgp)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/31/2006)
155 REPLY to Response to Motion re 151 MOTION Modify Court's Order of July 20, 2006 re 150 Order, Terminate Motions,,,, filed by Donald Snyder, Odie Washington,

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09/12/2006
09/19/2006 11/02/2006 11/06/2006
11/08/2006 11/10/2006 11/13/2006 11/22/2006
11/28/2006
12/07/2006

Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Lamark Carter, Rodney Ahitow, Roger Cowan. (Corrigan, Terence) (Entered: 09/07/2006)
156 ORDER: GRANTING 122 MOTION to Certify Class filed by Larry Brown, Robert Felton, Michael Johnson, George Harper, Alejandro Villazana, Finner Bryant, Maurice Coleman, Eugene Horton, Corey A Taylor, Robert Westefer, Mark Von Perbandt, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago, Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Kennard Combs, Laverne Clayton, Gary Clark, Roosevelt Burrell, Aryules Bivens. Alan Mills is appointed class counsel. Signed by Judge G. Patrick Murphy on 9/12/06. (lmc) (Entered: 09/12/2006)
157 ORDER: GRANTING 101 Motion for Dismissal of Request for Damages in Count III of the Amended Complaint filed in 00−708−GPM, which has been consolidated with 00−162−GPM. Signed by Judge G. Patrick Murphy on 9/18/06. (lmc) (Entered: 09/19/2006)
158 ORDER GRANTING 151 Motion to Modify Court's Order 149 : Counsel for Defendant SHALL contact chambers by November 10, 2006, to Schedule a date for a computer presentation to take place. Signed by Judge Donald G. Wilkerson on 11/2/2006. (jrw) (Entered: 11/02/2006)
159 NOTICE and ORDER: Attorney Christopher L. Higgerson contacted chambers per 158 Order. Mike Atchison SHALL appear in person on 11/16/06 at 2:30 p.m. in the East St. Louis Courthouse before Judge Donald G. Wilkerson to provide an in camera electronic demonstration in response to the Court's 7/20/06 Order 149 . As this is an in camera presentation, counsel SHALL NOT be present for either party. Signed by Judge Donald G. Wilkerson on 11/6/2006. (jrw)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/06/2006)
160 MOTION to Compel Production of Summary of In Camera Demonstration of Gang−Related Documents by Robert Westefer. (McManus, Colleen) (Entered: 11/08/2006)
161 Plaintiff's First REQUEST for Admissions by Robert Westefer. (Attachments: # 1 Exhibit A)(McManus, Colleen) (Entered: 11/10/2006)
162 ORDER DENYING 160 Motion to Compel Production of Summary of In Camera Demonstration of Gang−Related Documents. Signed by Judge Donald G. Wilkerson on 11/13/2006. (jrw) (Entered: 11/13/2006)
163 OBJECTION to 162 Order on Motion to Compel by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago (Plaintiffs' Objections to Magistrate Judge's Order Denying Plaintiffs' Motion to Compel Defendants to Provide Court With Disc of Information Revealed During In Camera Inspection. (Attachments: # 1 Exhibit A)(McManus, Colleen) (Entered: 11/22/2006)
164 ORDER: The court construes "Plaintiffs' Objection to the magistrate judge's Order Denying Plaintiffs' Motion to Compel Defendants to provide court with disc of information revealed during in camera inspection" 163 as an Appeal, pursuant to Local Rule 73.1, from the Order entered by Magistrate Judge Wilkerson 162 on 11/13/2006. Defendants are ordered to file a response to Plaintiffs' Appeal on or before 12/7/2006. Signed by Judge G. Patrick Murphy on 11/28/06. (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/28/2006)
165 RESPONSE to 163 Objection,,, filed by Dwayne Clark, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page,

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 47 of 96

12/07/2006 12/12/2006 12/20/2006 12/20/2006 12/21/2006 12/22/2006 12/27/2006 01/12/2007
01/12/2007 02/09/2007

Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) Modified on 12/7/2006 (dmw). (Entered: 12/07/2006)
166 NOTICE OF ERRORS AND/OR DEFICIENCIES re 165 Response filed by Thomas Page, Roger Cowan, Michael O'Leary, Michael V Neal, Rodney Ahitow, Odie Washington, Dwayne Clark, Donald Snyder, George DeTella. See attached document for specifics (dmw) (Entered: 12/07/2006)
167 MOTION for Extension of Time to Respond to Requests for Admissions and Interrogatories by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 12/12/2006)
168 ORDER: DENYING 163 Objection construed by the court as an appeal of the magistrate's order. AFFIRMING 162 Order on Motion to Compel. Signed by Judge G. Patrick Murphy on 12/20/06. (lmc) (Entered: 12/20/2006)
169 ORDER: GRANTING 136 MOTION to Withdraw as Attorney for Corey A Taylor filed by attorney Alan S. Mills. Signed by Judge G. Patrick Murphy on 12/20/06. (lmc) (Entered: 12/20/2006)
170 MOTION for Reconsideration re 162 Order on Motion to Compel by Robert Westefer. (McManus, Colleen) (Entered: 12/21/2006)
171 ORDER GRANTING 167 Motion for Extension of Time. Signed by Judge Donald G. Wilkerson on 12/22/2006. (jrw) (Entered: 12/22/2006)
172 RESPONSE in Opposition re 170 MOTION for Reconsideration re 162 Order on Motion to Compel filed by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 12/27/2006)
173 ORDER: This matter is before the Court on Plaintiffs' motion for reconsideration of the Court's Order entered December 20, 2006, denying Plaintiffs' request that the Illinois Department of Corrections ("IDOC") be required to supply to United States Magistrate Judge Donald G. Wilkerson a computer disk containing data regarding IDOC's "Gang Intelligence System" disclosed in camera to Magistrate Judge Wilkerson for the purpose of ascertaining whether the data is privileged from discovery (Doc. 170). IDOC has explained the technical difficulties and potential prison security problems entailed in furnishing a copy of the data, including the software used to store it. The Court agrees with IDOC that the data will be most secure if it remains in IDOC's possession pending a decision by Magistrate Judge Wilkerson on the issue of privilege. IDOC's attorneys have represented that the data is being preserved in the form in which it was presented in camera to Magistrate Judge Wilkerson, and the Court has no reason to disbelieve those representations. It is apparent that IDOC's attorneys understand their professional obligations and the need to ensure an adequate record for review of Magistrate Judge Wilkerson's discovery rulings. Therefore, the Court DENIES 170 Motion for Reconsideration re 168 Order affirming 162 Order on Motion to Compel. Signed by Chief Judge G. Patrick Murphy on 1/12/2007. (jmh) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 01/12/2007)
174 MOTION for Extension of Time to Complete Discovery to Respond to Requests for Admissions and Interrogatories by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 01/12/2007)
175 RESPONSE/ANSWER TO REQUEST FOR ADMISSIONS re 161 by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 02/09/2007)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 48 of 96

03/29/2007 07/02/2007 08/27/2007 01/09/2008 03/03/2008 03/31/2008 04/22/2008 04/29/2008
05/08/2008
05/08/2008 05/29/2008 05/29/2008 06/02/2008 06/02/2008
06/06/2008

176 ORDER: 174 Motion for Extension of Time to Complete Discovery is GRANTED. Signed by Judge Donald G. Wilkerson on 3/29/2007. (jrw) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/29/2007)
177 MOTION to Appoint Counsel by Corey A Taylor. (Attachments: # 1 Exhibits)(myz ) (Entered: 07/03/2007)
178 MOTION to Compel Compliance with Court Order(s) by Corey A Taylor. (myz ) (Entered: 08/28/2007)
179 ORDER: DENYING 177 MOTION to Appoint Counsel filed by Corey A Taylor. Signed by Judge G. Patrick Murphy on 1/9/2008. (lmc) (Entered: 01/09/2008)
180 MOTION for Hearing by Corey A Taylor. (trb) (Entered: 03/03/2008)
181 ORDER GRANTING 178 MOTION to Compel filed by Corey A Taylor. Signed by Magistrate Judge Donald G. Wilkerson on 3/31/2008. (jrw) (Entered: 03/31/2008)
182 NOTICE of Hearing: Status Conference set for 6/9/2008 at 02:30 PM in East St. Louis Court House before Judge G. Patrick Murphy. ONLY COUNSEL NEED APPEAR.(lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 04/22/2008)
183 NOTICE OF STATEMENT OF COMPLIANCE by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago (Attachments: # 1 Exhibit)(Mills, Alan) (Entered: 04/29/2008)
184 MOTION to Continue the June 9, 2008 Status Conference Pending the Court's Adjudication of Plaintiff's Motion to Reconsider Order Denying Plaintiff's Motion to Overrule Defendant's Objections to Plaintiff's Discovery by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Attachments: # 1 Exhibit)(Wojcik, Lawrence) (Entered: 05/08/2008)
185 ORDER: DENYING 184 MOTION to Continue June 9, 2008 Status Conference. Signed by Judge G. Patrick Murphy on 5/8/2008. (lmm) (Entered: 05/08/2008)
186 MOTION for Writ of Habeas Corpus ad testificandum by Robert Westefer. (dmw) (Entered: 05/29/2008)
187 ORDER DENYING 180 Motion for Hearing; RULING on discovery following in−camera review. Signed by Magistrate Judge Donald G. Wilkerson on 5/29/2008. (jrw) (Entered: 05/29/2008)
188 ORDER: GRANTING in part 186 MOTION for Writ of Habeas Corpus ad testificandum filed by Corey Taylor. Plaintiff may appear by telephone. Telephonic Writ to issue. Signed by Judge G. Patrick Murphy on 6/2/2008. (lmm) (Entered: 06/02/2008)
189 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Corey A. Taylor available by TELEPHONE on 6/9/2008 at 2:30 PM for Status Conference before Judge Murphy. Prison officials shall call the court at 618/482−9455 at the designated time. Signed by Judge G. Patrick Murphy on 6/2/2008. (lmm) (Entered: 06/02/2008)
190 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell,

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 49 of 96

06/06/2008
06/09/2008 06/09/2008 06/09/2008 06/10/2008
06/10/2008
06/12/2008 06/17/2008

Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago re 187 Order on Motion for Hearing (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wojcik, Lawrence) (Entered: 06/06/2008)
191 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago re 190 Appeal of Magistrate Judge Decision to District Court,, 187 Order on Motion for Hearing (Wojcik, Lawrence) (Entered: 06/06/2008)
192 NOTICE OF ERRORS AND/OR DEFICIENCIES re 190 Appeal of Magistrate Judge Decision to District Court,, filed by plaintiffs. See attached document for specifics (dmw) (Entered: 06/09/2008)
193 Minute Entry for proceedings held before Judge G. Patrick Murphy: Status Conference held on 6/9/2008. Pro Se Plaintiff Corey Taylor appears by telephone; counsel appear in person for all other parties. Written Order to follow on the pending appeal from the Magistrate's Order. Trial dates to be assigned. (Court Reporter Molly Clayton.) (lmm) (Entered: 06/09/2008)
194 MOTION to Appoint Counsel, or in the alternative, MOTION for Restraining Order by Corey A Taylor. (dmw) (Entered: 06/09/2008)
195 NOTICE by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago re 190 Appeal of Magistrate Judge Decision to District Court,, Notice Of Filing Of Amended Certificate Of Service (Wojcik, Lawrence) (Entered: 06/10/2008)
196 NOTICE by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago re 191 Appeal of Magistrate Judge Decision to District Court,, Notice Of Filing Of Amended Certificate Of Service (Wojcik, Lawrence) (Entered: 06/10/2008)
197 ORDER: DENYING 194 MOTION to Appoint Counsel, MOTION for Temporary Restraining Order filed by Corey A Taylor. As stated by the Court at the status conference held 6/9/2008, Attorney Mills is granted permission to contact Taylor, if he is so inclined, and Taylor is advised that he may request the documents to which he is entitled, from Defendant. Signed by Judge G. Patrick Murphy on 6/12/2008. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/12/2008)
198 MOTION to Withdraw as Attorney Colleen E. McManus by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 06/17/2008)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 50 of 96

06/18/2008
06/18/2008
06/18/2008
06/20/2008 06/24/2008 07/02/2008
07/02/2008
07/02/2008 07/07/2008

199 NOTICE OF ERRORS AND/OR DEFICIENCIES re 198 Motion to Withdraw as Attorney,, filed by Mary Chapman, Larry Gambrell, Aryules Bivens, John Gill, Vincent Reyna, Edward Rodriguez, Joe Sorrentino, Timothy Hall, Vincente Rodriguez, Kennard Combs, Finner Bryant, Roosevelt Burrell, Alex Muller, Bennie Cunningham, George Harper, Larry Foutch, Corey A Taylor, Larry Brown, Anibal Santiago, Mark Von Perbandt, Tyshawn Ross, Laverne Clayton, William Lasley, Alejandro Villazana, Eugene Horton, Ted Knox, Michael Sparling, Maurice Coleman, Armando Tinajero, Robert Westefer, Gary Clark, Robert Felton. See attached document for specifics (dmw, ) (Entered: 06/18/2008)
200 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Raja S. Gaddipati for Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Lamark Carter, Armando Tinajero, Michael Sparling, Joe Sorrentino and Anibal Santiago. $100.00 fee paid,receipt number 34625006620 (tkm, ) (Entered: 06/18/2008)
201 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Raj N. Shah for Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino and Anibal Santiago. $100.00 fee paid,receipt number 34625006622 (tkm, ) (Entered: 06/18/2008)
202 RESPONSE to 190 Appeal of Magistrate Judge Decision filed by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) Modified on 6/24/2008 (car). (Entered: 06/20/2008)
203 NOTICE OF ERRORS AND/OR DEFICIENCIES re 202 Response. See attached document for specifics (car) (Entered: 06/24/2008)
204 MOTION for Hearing re 190 Appeal of Magistrate Judge Decision to District Court,, 191 Appeal of Magistrate Judge Decision to District Court,, (Plaintiffs' Motion For Oral Argument On Plaintiffs' Appeal Of Magistrate Judge Wilkerson's May 29, 2008 Order Denying Plaintiffs Discovery Of The Gang Information) by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Marcus Chapman, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Milton Smith, Anibal Santiago. (Wojcik, Lawrence) (Entered: 07/02/2008)
205 Consent MOTION for Leave to File Reply To Response To Plaintiffs' Appeal Of Magistrate Judge Wilkerson's May 29, 2008 Order Denying Plaintiffs Discovery Of The Gang Information by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 07/02/2008)
206 Letter from Jerrico Smalley (jmp) (Entered: 07/07/2008)
207 ORDER granting 198 Motion to Withdraw as Attorney. Attorney Colleen E. McManus terminated. Signed by Judge G. Patrick Murphy on 07/07/2008. (jrg, )THIS TEXT

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 51 of 96

07/07/2008 07/07/2008
07/16/2008 07/21/2008 07/22/2008 07/25/2008 08/04/2008
08/06/2008 08/06/2008 08/14/2008 08/18/2008

ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/07/2008)
208 ORDER granting 205 Consent Motion for Leave to File Plaintiff's Reply brief re: Plaintiff's appeal of Magistrate Judge Wilkerson's May 29, 2008 Order. Signed by Judge G. Patrick Murphy on 07/07/2008. (jrg,)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/07/2008)
209 RESPONSE to 202 Response, Reply to Response to Plaintiffs' Appeal of Magistrate Judge Wilkerson's May 29, 2008 Order Denying Plaintiffs Discovery of The Gang Information filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Marcus Chapman, Mark Von Perbandt, Ronnie W Carroll, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Milton Smith, Anibal Santiago. (Wojcik, Lawrence) (Entered: 07/07/2008)
210 MOTION for the appointment of a certified stenographic reporter by Corey A Taylor. (dmw) (Entered: 07/16/2008)
211 ORDER denying 190 Plaintiffs' Appeal of Magistrate Judge Wilkerson's May 29, 2008 Order and also denying 204 Plaintiffs' Motion for Hearing regarding same. Signed by Judge G. Patrick Murphy on 07/21/2008. (jrg, ) (Entered: 07/21/2008)
212 MOTION for Extension of Time to Complete Discovery to Respond to Plaintiff Taylor's Requests to Produce by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 07/22/2008)
213 MOTION for Extension of Time to Complete Discovery to Response to Plaintiff Taylor's First Set of Interrogatories by George DeTella. (Higgerson, Christopher) (Entered: 07/25/2008)
214 MOTION to Compel Discovery From Defendants by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Wojcik, Lawrence) (Entered: 08/04/2008)
215 ORDER: 212 Motion for Extension of Time to Complete Discovery is GRANTED. Defendants are granted up to and including 8/15/2008 in which to respond to Plaintiffs' requests for production. Signed by Magistrate Judge Donald G. Wilkerson on 8/6/2008. (jrw) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/06/2008)
216 ORDER: 213 Motion for Extension of Time to Complete Discovery is GRANTED. Defendant Detella is granted up to and including 8/7/2008 in which to respond to Plaintiff Taylor's First Set of Interrogatories. Signed by Magistrate Judge Donald G. Wilkerson on 8/6/2008. (jrw) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/06/2008)
217 NOTICE of Change of Address by Bennie Cunningham (dmw) (Entered: 08/14/2008)
218 RESPONSE in Opposition re 214 MOTION to Compel Discovery From Defendants filed by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Attachments: # 1 Exhibit A)(Higgerson, Christopher) (Entered: 08/18/2008)

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08/25/2008
09/11/2008 09/11/2008 09/22/2008 09/22/2008 09/29/2008
09/29/2008 09/30/2008 09/30/2008 10/01/2008
10/01/2008 10/07/2008 10/07/2008

219 MEMORANDUM in Support re 214 MOTION to Compel Discovery From Defendants − Plaintiff Class' Reply Memorandum In Further Support Of Its Motion To Compel Discovery From Defendants − re 218 filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Dwayne Clark, Roger Cowan, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Shah, Raj) (Entered: 08/25/2008)
220 MOTION to Sever Claims by Corey A Taylor. (dmw) (Entered: 09/11/2008)
221 MOTION to Change Venue by Corey A Taylor. (dmw) (Entered: 09/11/2008)
222 RESPONSE in Opposition re 220 MOTION to Sever filed by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 09/22/2008)
223 RESPONSE in Opposition re 221 MOTION to Change Venue filed by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 09/22/2008)
224 MOTION for Protective Order On An Expedited Basis by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Attachments: # 1 Exhibit A)(Gaddipati, Raja) (Entered: 09/29/2008)
225 ORDER: Defendants shall file any response to 224 Plaintiffs' MOTION for Protective Order On An Expedited Basis by the end of the day on Tuesday, September 30, 2008. Signed by Judge G. Patrick Murphy on 09/29/2008. (jrg) Modified on 9/30/2008 (tkm ). (Entered: 09/29/2008)
226 NOTICE OF ERRORS AND/OR DEFICIENCIES re 225 Order,. See attached document for specifics (tkm) (Entered: 09/30/2008)
227 RESPONSE in Opposition re 224 MOTION for Protective Order On An Expedited Basis filed by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 09/30/2008)
228 REPLY to Response to Motion re 224 MOTION for Protective Order On An Expedited Basis − Plaintiff Class' Reply In Support Of Its Motion For Protective Order On An Expedited Basis. filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Gaddipati, Raja) (Entered: 10/01/2008)
229 ORDER denying Plaintiffs' 224 Motion for Protective Order. Signed by Judge G. Patrick Murphy on 10/01/2008. (jrg) (Entered: 10/01/2008)
230 REPLY to Response to Motion re 220 MOTION to Sever filed by Corey A Taylor. (dmw) (Entered: 10/07/2008)
231 REPLY to Response to Motion re 221 MOTION to Change Venue filed by Corey A Taylor. (dmw) (Entered: 10/07/2008)

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10/22/2008 12/23/2008 01/26/2009 03/12/2009 03/12/2009 03/31/2009
03/31/2009 04/06/2009
04/06/2009

232 MOTION to Strike the June 9, 2008 Pre−Trial Status Conference by Corey A Taylor. (trb) (Entered: 10/22/2008)
233 MOTION for Extension of Time to Respond to Plaintiff Taylor's Request for Production of Documents by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 12/23/2008)
234 ORDER granting 233 Motion for Enlargement of Time In Which to Respond to Plaintiff Taylor's request for production of documents. This Court deems as timely any answers to Plaintiff's request for production of documents that were served by January 5, 2009. Signed by Magistrate Judge Donald G. Wilkerson on 1/26/09. (klb)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 01/26/2009)
235 NOTICE of Hearing: Final Pretrial Conference set for 4/6/2009 at 01:30 PM in East St. Louis Courthouse before Judge G. Patrick Murphy. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/12/2009)
236 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Corey A. Taylor available by TELEPHONE on 4/6/2009 at 1:30 PM (CST) for Final Pretrial Conference before Judge Murphy. Prison officials shall call the court at 618/482−9455 at the designated time. Signed by Judge G. Patrick Murphy on 3/12/2009.(lmm) (Entered: 03/12/2009)
237 ORDER GRANTING in part and DENYING in part 214 MOTION to Compel Discovery From Defendants filed by Mary Chapman, Larry Gambrell, Aryules Bivens, John Gill, Vincent Reyna, Edward Rodriguez, Joe Sorrentino, Timothy Hall, Vincente Rodriguez, Kennard Combs, Finner Bryant, Roosevelt Burrell, Alex Muller, Bennie Cunningham, George Harper, Larry Foutch, Larry Brown, Anibal Santiago, Mark Von Perbandt, Michael Johnson, Tyshawn Ross, Laverne Clayton, William Lasley, Alejandro Villazana, Eugene Horton, Ted Knox, Michael Sparling, Maurice Coleman, Armando Tinajero, Robert Westefer, Gary Clark, Robert Felton; DENYING 210 MOTION for the appointment of a certified stenographic reporter filed by Corey A. Taylor; DENYING 232 MOTION to Strike filed by Corey A. Taylor. Signed by Judge G. Patrick Murphy on 3/31/2009. (ssd) (Entered: 03/31/2009)
238 ORDER GRANTING in part and DENYING in part 220 MOTION to Sever Claims filed by Plaintiff Corey A. Taylor. Pursuant to Federal Rule of Civil Procedure 42(b), Plaintiff Taylor's retaliation claim will be tried separately from the claims of the other plaintiffs. The Court will set Plaintiff Taylor's retaliation claim for trial at the upcoming final pretrial conference. The Court DENIES 221 MOTION to Change Venue filed by Plaintiff Corey A. Taylor. Signed by Judge G. Patrick Murphy on 3/31/2009. (ssd)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 03/31/2009)
239 Minute Entry for proceedings held before Judge G. Patrick Murphy as to Corey Taylor: Final Pretrial Conference held on 4/6/2009. Jury Trial SET for 8/18/2009 at 08:00 AM in BENTON Courthouse before Judge G. Patrick Murphy. If plaintiff intends to call any incarcerated witnesses at trial, he must file a motion for writs of habeas corpus ad testificandum on or before 6/5/2009. Said motion shall include a brief description of the testimony that each incarcerated witness is expected to provide so that it can be determined whether telephonic writs should issue. Additionally, in order for a writ to issue, any incarcerated witness must be identified by his/her full name, prison identification number, and the name and address of the institution where he/she is currently incarcerated. If plaintiff intends to call any other witnesses, he shall file a motion requesting permission to call said witnesses on or before 6/5/2009. Said motion shall include a brief description of the testimony that each witness is expected to provide. (Court Reporter Molly Clayton.) (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. Modified on 4/14/2009 (lmm). (Entered: 04/06/2009)
240 Minute Entry for proceedings held before Judge G. Patrick Murphy: Final Pretrial Conference held on 4/6/2009. JURY TRIAL will begin on 11/2/2009 at 8:00 AM at the BENTON COURTHOUSE before Judge G. Patrick Murphy, and will continue

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04/08/2009 04/08/2009 04/28/2009 05/05/2009
05/06/2009 05/08/2009
05/08/2009
05/14/2009 05/14/2009 05/29/2009

until every claim for every plaintiff is determined. JURY SELECTION for November trials is set for 10/29/2009 and 10/30/2009 at 08:00 AM in BENTON Courthouse before Magistrate Judge Philip M. Frazier. Jury Selection for December trials is SET for 11/19/2009 and 11/20/2009 at 08:00 AM in BENTON Courthouse before Magistrate Judge Philip M. Frazier. Status Conference SET for 7/27/2009 at 01:30 PM in EAST ST. LOUIS Courthouse before Judge G. Patrick Murphy.(Court Reporter Molly Clayton.) (lmm) Modified (Date) on 4/7/2009 (lmm). Modified on 5/1/2009 (lmm). (Entered: 04/07/2009)
241 ORDER: All future pretrial and discovery matters will be handled by Judge G. Patrick Murphy. Magistrate Judge Wilkerson no longer assigned. Signed by Judge G. Patrick Murphy on 4/6/2009. (lmm) (Entered: 04/08/2009)
Magistrate Judge Donald G. Wilkerson no longer assigned to case. (lmm) (Entered: 04/08/2009)
242 MOTION for Leave to File Amended Complaint by Corey A Taylor. (Amended complaint placed in Q drive under proposed docs) (trb) (Entered: 04/28/2009)
243 RESPONSE to 240 Pretrial Conference − Final, Set Hearings,,,,,, − Plaintiffs' Suggested Trial Groupings − filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 05/05/2009)
244 MOTION for Extension of Time in Which to Produce Items Responsive to this Courts March 31, 2009 Order by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 05/06/2009)
245 ORDER: GRANTING 244 MOTION for Extension of Time in Which to Produce Items Responsive to this Courts March 31, 2009 Order filed by Thomas Page, Odie Washington, Eddie Jones, Jerry Gilmore, Dierdre Battaglia, Michael O'Leary, Donald Snyder, Roger Walker, Michael V Neal, Dwayne Clark, Roger Cowan, Don Hulick, Roger Zimmerman, George DeTella, Rodney Ahitow. Defendants shall produce items responsive to the court's March 31 Order on or before 5/11/2009. Signed by Judge G. Patrick Murphy on 5/8/2009.(lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 05/08/2009)
246 ORDER: DENYING 242 MOTION for Leave to File filed by Corey A Taylor. Having reviewed carefully Mr. Taylors proposed amended complaint, the Court concludes that the amended complaint is not necessary to enable Mr. Taylor adequately to present his claims of retaliation and deprivation of procedural due process to the trier of fact in this cause. Signed by Judge G. Patrick Murphy on 5/8/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 05/08/2009)
247 ENTRY STRICKEN: Letters and statements from witnesses. (trb) (Entered: 05/14/2009)
248 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 247 Letter. Document filed in the wrong case.(trb) (Entered: 05/14/2009)
249 MOTION for Extension of Time − UNOPPOSED by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 05/29/2009)

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05/31/2009 06/01/2009
06/01/2009
06/04/2009 06/04/2009 06/05/2009 06/05/2009 06/05/2009 06/05/2009 06/10/2009

250 Docket Annotation−−Pontiac Correctional Center added for transmission of electronic documents. (djs, ) (Entered: 05/31/2009)
251 NOTICE OF ERRORS AND/OR DEFICIENCIES re 249 Motion for Extension of Time,, filed by Mary Chapman, Larry Gambrell, Aryules Bivens, John Gill, Vincent Reyna, Edward Rodriguez, Joe Sorrentino, Timothy Hall, Vincente Rodriguez, Kennard Combs, Finner Bryant, Roosevelt Burrell, Alex Muller, Bennie Cunningham, George Harper, Larry Foutch, Larry Brown, Anibal Santiago, Mark Von Perbandt, Michael Johnson, Tyshawn Ross, Laverne Clayton, William Lasley, Alejandro Villazana, Eugene Horton, Ted Knox, Michael Sparling, Maurice Coleman, Armando Tinajero, Robert Westefer, Gary Clark, Robert Felton. See attached document for specifics (trb, ) (Entered: 06/01/2009)
252 ORDER: GRANTING 249 Unopposed Motion for Extension of Time brought by Plaintiffs Robert Westefer, Mark Von Perbandt, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago, Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mary Chapman, as the administrator of the estate of Marcus Chapman, Roosevelt Burrell, Finner Bryant, Larry Brown, and Aryules Bivens. Plaintiffs shall have up to and including June 29, 2009, to file a list of deponents and witnesses for each trial in this cause, as well as any motion for summary judgment. Signed by Judge G. Patrick Murphy on 6/1/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/01/2009)
257 ENTRY STRICKEN per Order at Doc. 259. Plaintiff class member declaration under penalty of perjury in support of his motion for order to show cause TRO/and or Preliminary Injunction filed by non−party James Armstrong. (trb) Modified on 6/10/2009 (lmm). (Entered: 06/10/2009)
258 ENTRY STRICKEN per Order at Doc. 259. MEMORANDUM in Support re 257 MOTION for Temporary Restraining Order filed by non party James Armstrong. (trb) Modified on 6/10/2009 (lmm). (Entered: 06/10/2009)
253 MOTION to Compel by Corey A Taylor. (Attachment: # 1 Exhibits)(dmw) (Entered: 06/05/2009)
254 MOTION for Writ of Habeas Corpus ad testificandum by Corey A Taylor. (dmw) (Entered: 06/05/2009)
255 MOTION for Sanctions, or in the alternative, MOTION to overrule counsel's objections to discovery by Corey A Taylor. (dmw) (Entered: 06/05/2009)
256 MOTION for Leave to Call Witnesses by Corey A Taylor. (dmw) (Entered: 06/05/2009)
259 ORDER: STRIKING 257 Motion for Temporary Restraining Order and 258 Memorandum in Support of Motion brought by James Armstrong. Mr. Armstrong, an inmate at the Tamms Correctional Center (Tamms), requests that the Court grant him equitable relief, citing alleged retaliation against him by authorities at Tamms and violations of his right of procedural due process in connection with his continuing assignment to Tamms. With respect to Mr. Armstrongs allegations of retaliation, the matters alleged are separate from the subject matter of this case and are properly the subject of a separate lawsuit by Mr. Armstrong. As to Mr. Armstrongs allegations concerning deprivations of procedural due process, Mr. Armstrong is a member of the class that has been certified in this case with respect to such claims and for which counsel has been appointed by the Court. A person represented by counsel has no right to file motions on his or her own behalf, and such motions are properly stricken by the Court. See United States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir. 1998); Hayes v. Hawes, 921 F.2d 100, 102 (7th Cir. 1990); Pickett v. Detella, No. 03−cv−60−JPG, 2007 WL 3169122, at *1 (S.D. Ill. Oct. 26, 2007). Accordingly, the Court hereby ORDERS that Mr. Armstrongs submissions be STRICKEN. If Mr. Armstrong or any other member of the class certified in this case attempts to file any further submissions regarding the class claims, the Court will instruct the Clerk of Court to refuse to accept those submissions for filing. Signed by Judge G. Patrick Murphy on 6/10/2009.

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06/10/2009 06/11/2009 06/22/2009
06/22/2009
06/29/2009 06/29/2009 06/29/2009

(lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/10/2009)
260 Docket Annotation−−Pontiac Correctional Center removed from case as they were inadvertently added for scanning purposes. (djs, ) (Entered: 06/10/2009)
261 RESPONSE in Opposition re 253 MOTION to Compel filed by Odie Washington, George DeTella, Jerry Gilmore. (Higgerson, Christopher) (Entered: 06/11/2009)
262 ORDER: DENYING 253 MOTION to Compel filed by Corey A Taylor. Pursuant to Rule 37(a) of the Federal Rules of Civil Procedure, Taylor seeks an order compelling supplemental responses to interrogatories from Defendants Odie Washington, George DeTella, and Jerry Gilmore. Having reviewed carefully Taylors motion and the supporting documentation thereto, together with 261 Response to Motion for an Order Compelling Discovery brought by Washington, DeTella, and Gilmore, the Court concludes that Washington, DeTella, and Gilmore already have responded fully to Taylors interrogatories and that no order to compel further responses to the interrogatories should issue. Signed by Judge G. Patrick Murphy on 6/22/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/22/2009)
263 ORDER: DENYING 254 Motion for Writs of Habeas Corpus Ad Testificandum brought by Plaintiff Corey A. Taylor. Taylor, an inmate at Tamms Correctional Center (Tamms), seeks writs of habeas corpus ad testificandum to procure at trial on his claim that he was transferred to Tamms in retaliation for exercising his First Amendment rights while an inmate at Pontiac Correctional Center (Pontiac) the testimony of eleven persons who apparently are present or past inmates at Pontiac. These witnesses, according to Taylor, can testify regarding Taylors involvement in litigation against the Illinois Department of Corrections (IDOC) and its employees while at Pontiac and his role in organizing a hunger strike among Pontiac inmates; also, Taylor proposes to offer evidence of the disciplinary records of certain of the witnesses as proof that the stated reason for his transfer to Tamms, his disciplinary record at Pontiac, was pretextual. The factual record regarding Taylors litigation activities and involvement in a hunger strike at Pontiac can be established through Taylors own testimony, while evidence regarding the disciplinary records of Pontiac inmates who were not transferred to Tamms has little, if any, probative value. The Court, having weighed Taylors interest in the testimony of the inmates as to whom writs are sought against IDOCs interest in avoiding the risk and expense of transporting those inmates, see In re Warden of Wis. State Prison, 541 F.2d 177, 179 (7th Cir. 1976), concludes that the presence of the inmates at the trial of Taylors retaliation claim is unnecessary for a full and fair hearing of the claim. See Ford v. Carballo, 577 F.2d 404, 407−08 (7th Cir. 1978); Stone v. Morris, 546 F.2d 730, 737 (7th Cir. 1976). Accordingly, the requested writs of habeas corpus ad testificandum will not issue. Signed by Judge G. Patrick Murphy on 6/22/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/22/2009)
264 MOTION for Leave to File Motion for Partial Summary Judgment by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 06/29/2009)
265 MOTION for Extension of Time − Extend The Deadlines To File Witness And Exhibit Lists − Agreed − by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Shah, Raj) (Entered: 06/29/2009)
266 MOTION for Partial Summary Judgment by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 57 of 96

06/29/2009
06/30/2009 06/30/2009 06/30/2009 06/30/2009

Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. Responses due by 8/3/2009 (Wojcik, Lawrence) (Entered: 06/29/2009)
267 Sealed Memorandum in Support re 266 MOTION for Partial Summary Judgment filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Attachments: # 1 Appendix Index of Appendix to Plaintiffs' Motion for Partial Summary Judgment, # 2 Exhibit 1 Of The Appendix, # 3 Exhibit A − Of Ex 1 Of The Appendix, # 4 Exhibit B of Ex 1 Of The Appendix, # 5 Exhibit 2 Of The Appendix, # 6 Exhibit 3 Of The Appendix, # 7 Exhibit A Of Ex 3 Of The Appendix, # 8 Exhibit B Of Ex 3 Of The Appendix, # 9 Exhibit C Of Ex 3 Of The Appendix, # 10 Exhibit D Of Ex 3 Of The Appendix, # 11 Exhibit E Of Ex 3 Of The Appendix, # 12 Exhibit F Of Ex 3 Of The Appendix, # 13 Exhibit G Of Ex 3 Of The Appendix, # 14 Exhibit H Of Ex 3 Of The Appendix, # 15 Exhibit I Of Ex 3 Of The Appendix, # 16 Exhibit J Of Ex 3 Of The Appendix, # 17 Exhibit K Of Ex 3 Of The Appendix, # 18 Exhibit L Of Ex 3 Of The Appendix, # 19 Exhibit M Of Ex 3 Of The Appendix, # 20 Exhibit N Of Ex 3 Of The Appendix, # 21 Exhibit O Of Ex 3 Of The Appendix, # 22 Exhibit P Of Ex 3 Of The Appendix, # 23 Exhibit Q Of Ex 3 Of The Appendix, # 24 Exhibit R Of Ex 3 Of The Appendix, # 25 Exhibit S Of Ex 3 Of The Appendix, # 26 Exhibit T Of Ex 3 Of The Appendix, # 27 Exhibit U Of Ex 3 Of The Appendix, # 28 Exhibit V Of Ex 3 Of The Appendix, # 29 Exhibit W Of Ex 3 Of The Appendix, # 30 Exhibit X Of Ex 3 Of The Appendix, # 31 Exhibit Y Of Ex 3 Of The Appendix, # 32Received 3 CD's in Clerks Office on 7/1/09− Exhibit Z Of Ex 3 Of The Appendix, # 33 Exhibit 4 Of The Appendix, # 34 Exhibit 5 Of The Appendix, # 35 Exhibit 6 Of The Appendix, # 36 Exhibit 7 Of The Appendix, # 37 Exhibit 8 Of The Appendix, # 38 Exhibit 9 Of The Appendix, # 39 Exhibit 10 Of The Appendix)(Wojcik, Lawrence) Modified on 7/1/2009 (trb, ). (Entered: 06/29/2009)
268 ORDER GRANTING 264 Motion for Leave to File Motion for Partial Summary Judgment brought by Defendants Donald Snyder, Odie Washington, Michael V. Neal, George DeTella, Michael OLeary, Thomas Page, Dwayne Clark, Roger Cowan, Rodney Ahitow, and Jerry Gilmore. Defendants shall file their motion for partial summary judgment not later than two (2) days from the date of entry of this Order. Signed by Judge G. Patrick Murphy on 06/30/09. (njr) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/30/2009)
269 ORDER GRANTING 265 Plaintiffs' Agreed Motion to Extend the Deadlines to File Witness and Exhibit Lists. Plaintiffs are granted an extension of time up to and including July 29, 2009, to file witness lists and exhibit lists in this case. Defendants are granted an extension of time up to and including August 12, 2009, to file witness lists and exhibit lists in this case. Signed by Judge G. Patrick Murphy on 06/30/09. (njr) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/30/2009)
270 MOTION for Partial Summary Judgment and Supporting Brief by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. Responses due by 8/3/2009 (Attachments: # 1 Exhibit 1 through 3)(Higgerson, Christopher) (Entered: 06/30/2009)
271 ORDER DENYING 255 Motion for Sanctions, or in the Alternative, Motion to Overrule Counsel's Objections to Discovery brought by Plaintiff Corey A. Taylor. Taylor, an inmate at Tamms Correctional Center ("Tamms"), is proceeding pro se on his claim that he was transferred to Tamms in retaliation for exercising his First Amendment rights while an inmate at Pontiac Correctional Center. Taylor seeks sanctions against attorney Alan S. Mills, who represents thirty−one Plaintiffs and the class that has been certified in this case. According to Taylor, Mills has refused to disclose to him materials gathered through discovery that apparently are subject to "attorneys eyes only" protective orders pursuant to the law enforcement investigatory privilege. In permitting Mills to withdraw as Taylor's attorney with respect to Taylor's

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06/30/2009
07/06/2009 07/07/2009 07/08/2009

retaliation claim, the Court directed Mills to turn over to Taylor any materials to which Taylor, as Mills's former client, is entitled, excepting materials subject to the aforementioned protective orders; the Court further directed Mills, if in doubt whether to disclose materials to Taylor, to consult the Court. See Westefer v. Snyder, Civil Nos. 00−162−GPM, 00−708−GPM, 2006 WL 5240411, at *2 (S.D. Ill. Dec. 20, 2006). It was not the Court's intention to create a situation in which, as here, Taylor is directing discovery requests to Mills as though Mills is an adverse party, and seeking sanctions for Mills's alleged failure to respond to such discovery. It is Taylor's responsibility to prepare his own case, without harassing attorneys for other parties who are trying to prepare theirs. Moreover, it appears that the discovery materials sought by Taylor are within the scope of the pertinent protective orders, and Taylor has shown the Court no grounds for re−drawing those orders. In any event, the Court fails to see how the discovery materials at issue are either relevant or likely to lead to evidence relevant to the issue of whether unlawful retaliation against Taylor substantially motivated the decisionmaker responsible for Taylor's assignment to Tamms. See Westefer v. Snyder, 472 F. Supp. 2d 1034, 1039 (S.D. Ill. 2006) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Signed by Judge G. Patrick Murphy on 06/30/09. (njr) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/30/2009)
272 ORDER DENYING 256 Motion for Leave to Call Witnesses brought by Plaintiff Corey A. Taylor. Taylor, an inmate at Tamms Correctional Center ("Tamms"), is proceeding pro se on his claim that he was transferred to Tamms in retaliation for exercising his First Amendment rights while an inmate at Pontiac Correctional Center. In the instant motion Taylor proposes to call no fewer than eighty−eight persons as witnesses at the trial of his retaliation claim. The Court considers this absurdly large number of proposed witnesses prima facie evidence that the motion is brought in bad faith. Also, careful review of the motion discloses that the testimony of the proposed witnesses, as outlined in the motion, is unlikely for the most part to shed light on the issue critical to Taylor's claim, namely, whether unlawful retaliation against Taylor substantially motivated the decisionmaker responsible for Taylor's assignment to Tamms. Accordingly, the motion to call witnesses will be denied. The Court is willing to entertain a further request for leave to call witnesses by Taylor, provided that the request is reasonable and tailored to elicit relevant evidence at trial. Signed by Judge G. Patrick Murphy on 06/30/09. (njr) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 06/30/2009)
273 Motion and Order to Appear Pro Hac Vice granting appearance of Attorney Tomas M. Thompson for Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino and Anibal Santiago. $100.00 fee paid,receipt number 34625013926. (lmt, ) (Entered: 07/06/2009)
274 NOTICE of Appearance by Tomas M. Thompson on behalf of Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Corey A Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago (Thompson, Tomas) (Entered: 07/07/2009)
275 NOTICE of Appearance by Tomas M. Thompson on behalf of Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal

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07/09/2009 07/15/2009 07/16/2009 07/21/2009 07/22/2009 07/23/2009
07/27/2009 08/03/2009 08/03/2009
08/04/2009 08/07/2009

Santiago (Thompson, Tomas) (Entered: 07/08/2009)
276 NOTICE OF HEARING re: 266 MOTION for Partial Summary Judgment, 270 MOTION for Partial Summary Judgment: Motion Hearing set for 8/17/2009 at 2:00 p.m. in Benton Courthouse before Judge G. Patrick Murphy. (njr) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/09/2009)
277 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Corey A. Taylor present on 8/18/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy. Signed by Judge G. Patrick Murphy on 7/15/2009. (lmm) (Entered: 07/15/2009)
278 RULE 26(a)(3) Disclosures, Designations, and Objections byDonald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Jerry Gilmore. (Higgerson, Christopher) (Entered: 07/16/2009)
279 MOTION for Stay Pending Review by Corey A Taylor. (Attachments: # 1 Exhibits)(trb ) (Entered: 07/21/2009)
280 NOTICE:In Re − Petition for Writ of Mandamus filed with the Court of Appeals by Corey A Taylor − USCA case number 09−2841. (tkm ) (Entered: 07/22/2009)
281 ORDER: DENYING 279 Motion for Stay Pending Review brought by Plaintiff Corey Taylor. Taylor seeks a stay of proceedings in this Court with respect to his claim that he was transferred to Tamms Correctional Center in retaliation for exercising his First Amendment rights pending resolution of a petition for a writ of mandamus that he has filed in the United States Court of Appeals for the Seventh Circuit. Generally in determining whether to issue a stay pending appeal a court must consider the following: (1) whether the stay applicant has made a strong showing that he or she is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. See Fed. R. App. P. 8; Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Glick v. Koenig, 766 F.2d 265, 269 (7th Cir. 1985); EEOC v. Laidlaw Waste, Inc., 934 F. Supp. 286, 288(N.D. Ill. 1996). As Taylor has not made the requisite showing with respect to any of the relevant factors, the Court will not issue the requested stay. Signed by Judge G. Patrick Murphy on 7/23/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/23/2009)
282 Minute Entry for proceedings held before Judge G. Patrick Murphy: Status Conference held on 7/27/2009. (Court Reporter Molly Clayton.) (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/27/2009)
283 RESPONSE to Motion re 266 MOTION for Partial Summary Judgment filed by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan. (Attachments: # 1 Exhibit A)(Higgerson, Christopher) (Entered: 08/03/2009)
284 RESPONSE in Opposition re 270 MOTION for Partial Summary Judgment and Supporting Brief filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Attachments: # 1 Exhibit A)(Gaddipati, Raja) (Entered: 08/03/2009)
285 NOTICE of Appearance by Larry J. Lipka on behalf of Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Jerry Gilmore (Lipka, Larry) (Entered: 08/04/2009)
286 REPLY to Response to Motion re 270 MOTION for Partial Summary Judgment and Supporting Brief filed by Donald Snyder, Odie Washington, Michael V Neal, George

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08/10/2009
08/12/2009 08/12/2009
08/17/2009 08/17/2009 08/18/2009 08/18/2009 08/25/2009 08/25/2009 08/26/2009 08/26/2009

DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 08/07/2009)
287 REPLY to Response to Motion re 266 MOTION for Partial Summary Judgment Plaintiffs' Reply In Further Support Of Their Motion For Summary Judgment filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 08/10/2009)
288 ORDER: As the court has been advised that the plaintiff did not receive a copy of its 6/30/2009 Order regarding witnesses, the Jury Trial set 8/18/2009 is CANCELED and will be reset by separate notice. Signed by Judge G. Patrick Murphy on 8/12/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/12/2009)
289 Exhibit List & Witness List by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago.. (Wojcik, Lawrence) (Entered: 08/12/2009)
290 Exhibit List and Witness List by Bennie Cunningham.. (Murray, Richard) (Entered: 08/17/2009)
291 Minute Entry for proceedings held before Judge G. Patrick Murphy: Motion Hearing held on 8/17/2009. TAKING UNDER ADVISEMENT 270 MOTION for Partial Summary Judgment, and 266 MOTION for Partial Summary (Court Reporter Molly Clayton.) (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/17/2009)
292 ORDER: Jury Trial RESET for 9/15/2009 at 08:00 AM in Benton Courthouse before Judge G. Patrick Murphy. Signed by Judge G. Patrick Murphy on 8/18/2009. (lmm) (Entered: 08/18/2009)
293 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Corey Taylor present on 9/15/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy. Signed by Judge G. Patrick Murphy on 8/18/2009. (lmm) (Entered: 08/18/2009)
294 RULE 26(a)(3) Disclosures, Designations, and Objections byJack Hartwig, H Markel, Asst Dep Diret McVicar, George C Welborn, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 08/25/2009)
295 RULE 26(a)(3) Disclosures, Designations, and Objections byDonald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 08/25/2009)
296 MOTION for leave to call witnesses by Corey A Taylor. (lmm) (Entered: 08/26/2009)
297 ORDER: GRANTING in part and DENYING in part 296 Corey A Taylor proposed witness list, construed by the Court as a motion for leave to call witnesses. Although Taylors request to call witnesses is untimely, the Court has examined his proposed witness list carefully and finds with respect to the inmate witnesses on the list that much of the proposed testimony of these witnesses is cumulative. Having considered the matter carefully, the Court will grant Taylor leave to call the following inmate witnesses: Shabazz Muhammad (IDOC # B05049); Anthony Wilkerson (IDOC # N60045); Robert M. Reed (IDOC # B62725); and Bobby Brown (IDOC # A10474).

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08/26/2009
08/26/2009
08/26/2009
08/26/2009
08/26/2009
08/27/2009 08/27/2009 08/27/2009 08/27/2009 08/27/2009 08/27/2009 08/31/2009 09/04/2009

With respect to Taylors proposed list of non−inmate witnesses, in its order entered April 6, 2009 (Doc. 239), the Court directed Taylor, if he wished to call non−inmate witnesses at trial to furnish a list of their names and a brief description of the testimony each witness is expected to provide. As Taylor has not done so, his request to call non−inmate witnesses is denied. Signed by Judge G. Patrick Murphy on 8/26/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/26/2009)
298 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Shabazz Muhammad present on 9/15/2009 at 9:00 AM in BENTON Courthouse before Judge Murphy. Signed by Judge G. Patrick Murphy on 8/26/2009. (lmm) (Entered: 08/26/2009)
299 NOTICE AND ORDER: IDOC and the Warden of Pontiac shall arrange to have Anthony Wilkerson present on 9/15/2009 at 9:00 AM in BENTON Courthouse before Judge Murphy. Signed by Judge G. Patrick Murphy on 8/26/2009. (lmm) (Entered: 08/26/2009)
300 NOTICE AND ORDER: IDOC and the Warden of Danville shall arrange to have Robert M. Reed present on 9/15/2009 at 9:00 AM in BENTON Courthouse before Judge Murphy. Signed by Judge G. Patrick Murphy on 8/26/2009. (lmm) (Entered: 08/26/2009)
301 ENTRY STRICKEN (typographical error on document). NOTICE AND ORDER: IDOC and the Warden of Menard shall arrange to have Bobby Brown present on 9/15/2009 at 9:00 AM in BENTON Courthouse before Judge Murphy. Signed by Judge G. Patrick Murphy on 8/26/2009. (lmm) Modified on 8/26/2009 (lmm). (Entered: 08/26/2009)
302 NOTICE AND ORDER: IDOC and the Warden of Menard shall arrange to have Bobby Brown present on 9/15/2009 at 9:00 AM in BENTON Courthouse before Judge Murphy. Signed by Judge G. Patrick Murphy on 8/26/2009. (lmm) (Entered: 08/26/2009)
303 MOTION for Extension of Time by Corey A Taylor. (trb ) (Entered: 08/28/2009)
304 MOTION for Limited Pre−Trial Discovery by Corey A Taylor. (trb) (Entered: 08/28/2009)
305 MOTION for Pre−Trial Conference by Corey A Taylor. (trb) (Entered: 08/28/2009)
306 MOTION in Limine by Corey A Taylor. (trb) (Entered: 08/28/2009)
307 MOTION for Writ of Habeas Corpus ad testificandum, Habeas Corpus Duces Tecum and MOTION for subpoenas by Corey A Taylor. (trb) (Entered: 08/28/2009)
308 OBJECTIONS to defendants intended use of transfer placement sheet and plaintiffs disciplinary record post approved transfer to Tamms C−Max by Corey A Taylor. (trb) (Entered: 08/28/2009)
309 RULE 26(a)(3) Disclosures, Designations, and Objections byH Markel, Asst Dep Diret McVicar, George C Welborn, Donald Snyder, Odie Washington, Michael V Neal. (Higgerson, Christopher) (Entered: 08/31/2009)
310 ORDER denying 266 Motion for Partial Summary Judgment brought by Plaintiffs Robert Westefer, Mark Von Perbandt, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago, Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mary Chapman, as the administrator of the estate of Marcus Chapman, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, and the certified class in this matter; granting in part and denying in part 270 Motion for Partial Summary Judgment brought by Defendants Donald Snyder, Odie Washington, Michael V. Neal, George DeTella, Michael OLeary, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan, and Thomas Page; directing counsel for the parties to submit trial briefs on the due process claims in this matter. See Order for specifics. Signed by Judge G. Patrick Murphy on 9/4/2009. (jhs) (Entered: 09/04/2009)

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09/09/2009 09/09/2009 09/11/2009
09/11/2009 09/11/2009 09/11/2009 09/11/2009
09/14/2009

311 RESPONSE in Opposition re 306 MOTION in Limine filed by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Jerry Gilmore. (Higgerson, Christopher) (Entered: 09/09/2009)
312 RULE 26(a)(3) Disclosures, Designations, and Objections byDonald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Jerry Gilmore. (Higgerson, Christopher) (Entered: 09/09/2009)
313 ORDER denying 306 Motion in Limine brought by Plaintiff Corey A. Taylor. Taylor, an inmate of the closed super maximum security facility at Tamms Correctional Center ("Tamms") who alleges that he was assigned to Tamms in retaliation for exercising his First Amendment rights, seeks to exclude in limine before trial on his retaliation claim evidence concerning the crime for which he was originally incarcerated and his disciplinary record after his assignment to Tamms. The Court cannot conclude that the evidence at issue is inadmissible for any purpose and believes that the better practice is to address questions of the admissibility of the subject evidence at trial. See Juracek v. City of O'Fallon, Ill. Police Dep't, Civil No. 05−787−GPM, 2007 WL 3407367, at **2−3 (S.D. Ill. Nov. 14, 2007). Signed by Judge G. Patrick Murphy on 9/11/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/11/2009)
314 ORDER denying 303 Motion for Extension of Time brought by Plaintiff Corey A. Taylor. The motion is moot in light of the Court's order entered August 26, 2009, granting Taylor leave to call four inmate witnesses at trial on Taylor's claim that he was retaliated against by prison officials for exercising his First Amendment rights. Signed by Judge G. Patrick Murphy on 9/11/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/11/2009)
315 ORDER denying 304 Motion for Limited Pretrial Discovery brought by Plaintiff Corey A. Taylor. The Court fails to see how the evidence as to which Taylor seeks discovery, specifically, lists of inmates considered for transfer to Tamms Correctional Center ("Tamms"), unspecified regulations and directives of the Illinois Department of Corrections, and an orientation video shown to new Tamms inmates, is likely to help Taylor prove that his assignment to Tamms was in retaliation for Taylor's exercise of his First Amendment rights. Signed by Judge G. Patrick Murphy on 9/11/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/11/2009)
316 ORDER denying 305 Motion for Pretrial Conference brought by Plaintiff Corey A. Taylor. The Court concludes in its discretion that a pretrial conference would not be helpful in this instance. To the extent Taylor's motion is a request for appointment of counsel, the request is denied. See Westefer v. Snyder, No. 00−162−GPM, 2008 WL 131166 (S.D. Ill. Jan. 9, 2008). Signed by Judge G. Patrick Murphy on 9/11/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/11/2009)
317 ORDER denying 307 Motion for Subpoenas Duces Tecum brought by Plaintiff Corey A. Taylor. Concerning Taylor's request that the Court issue a subpoena duces tecum to Illinois Assistant Attorney General Martin Green, the Court fails to see how evidence regarding Green's investigation of a retaliation claim asserted by Taylor while he was an inmate at Pontiac Correctional Center is relevant to the issue of whether Taylor's assignment to Tamms Correctional Center ("Tamms") was retaliatory, particularly in view of the fact that Taylor does not aver that Green's investigation uncovered retaliation. With regard to Taylor's request that the Court issue a subpoena duces tecum to John Barwick, Supervisor of the Records Office at Tamms, requiring Barwick to bring Taylor's inmate master file to the trial on Taylor's claim that his assignment to Tamms was retaliatory, Taylor has not identified the relevant evidence that he believes is contained in his inmate master file and the Court is reasonably certain that allowing Taylor to conduct a fishing expedition as to the contents of his master file would seriously compromise prison security. Signed by Judge G. Patrick Murphy on 9/11/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/11/2009)
318 ORDER from USCA−7 re 280 Petition for Mandamus Relief filed by Corey A Taylor, denying Petition for Mandamus Relief, denying Motion for Leave to Proceed in Forma Pauperis, and denying as moot Motion for Stay Pending Review. (lmt) (Entered:

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09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/22/2009
09/22/2009
09/22/2009
09/23/2009
09/23/2009

09/14/2009)
319 Minute Entry for proceedings held before Judge G. Patrick Murphy: Jury Trial held on 9/15/2009 as to Corey Taylor. Verdict in favor of defendants and against plaintiff. (Court Reporter Jane McCorkle.) (lmm) (Entered: 09/16/2009)
320 JURY VERDICT FORM D. (lmm) (Entered: 09/16/2009)
321 JURY VERDICT FORM E. (lmm) (Entered: 09/16/2009)
322 JURY VERDICT FORM F. (lmm) (Entered: 09/16/2009)
323 Preliminary Jury Instructions given 9/15/2009. (lmm) (Entered: 09/16/2009)
324 Final Jury Instructions given 9/15/2009. (lmm) (Entered: 09/16/2009)
325 Trial Exhibit List. (lmm) (Entered: 09/16/2009)
326 STIPULATION FOR RELEASE OF TRIAL EXHIBITS. (lmm) (Entered: 09/16/2009)
327 ORDER: The court's 4/6/2009 Order is AMENDED as follows: Jury Selection for Group One is SET for 10/27/2009 at 09:00 AM in Benton Courthouse before Judge G. Patrick Murphy. Jury Selection for Group Two is SET for 10/27/2009 at 01:00 PM in Benton Courthouse before Judge G. Patrick Murphy. Jury Selection for Group Three is SET for 10/28/2009 at 09:00 AM in Benton Courthouse before Judge G. Patrick Murphy. Jury Selection for Group Four is SET for 10/28/2009 at 01:00 PM in Benton Courthouse before Judge G. Patrick Murphy. Signed by Judge G. Patrick Murphy on 9/22/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/22/2009)
328 ORDER: Jury Trial for Group One is SET for 11/2/2009 at 08:00 AM in Benton Courthouse before Judge G. Patrick Murphy. Jury Trial for Group Two is SET for 11/9/2009 at 08:00 AM in Benton Courthouse before Judge G. Patrick Murphy. Jury Trial for Group Three is SET for 11/16/2009 at 08:00 AM in Benton Courthouse before Judge G. Patrick Murphy. Jury Trial for Group Four is SET for 11/30/2009 at 08:00 AM in Benton Courthouse before Judge G. Patrick Murphy. Signed by Judge G. Patrick Murphy on 9/22/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/22/2009)
329 MOTION to Amend/Correct 289 Exhibit List,, − Plaintiffs' Motion to Amend Witness And Exhibit List by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 09/22/2009)
330 ORDER: GRANTING 329 MOTION to Amend/Correct 289 Witness And Exhibit List filed by Mary Chapman, Larry Gambrell, Aryules Bivens, John Gill, Vincent Reyna, Edward Rodriguez, Joe Sorrentino, Timothy Hall, Vincente Rodriguez, Kennard Combs, Finner Bryant, Roosevelt Burrell, Alex Muller, Bennie Cunningham, George Harper, Larry Foutch, Larry Brown, Anibal Santiago, Mark Von Perbandt, Michael Johnson, Tyshawn Ross, Laverne Clayton, William Lasley, Alejandro Villazana, Eugene Horton, Ted Knox, Michael Sparling, Maurice Coleman, Armando Tinajero, Robert Westefer, Gary Clark, Robert Felton. Signed by Judge G. Patrick Murphy on 9/23/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/23/2009)
331 SUGGESTION OF DEATH Upon the Record as to Lamark Carter by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 09/23/2009)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 64 of 96

09/23/2009 09/24/2009 09/25/2009
09/25/2009
09/29/2009 09/29/2009 09/30/2009
09/30/2009 10/05/2009

332 MOTION to Withdraw as Attorney for Lamark Carter by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 09/23/2009)
333 NOTICE OF ERRORS AND/OR DEFICIENCIES re 332 Motion to Withdraw as Attorney & 331 Suggestion of Death filed by Thomas Page, Odie Washington, Jerry Gilmore, Michael O'Leary, Donald Snyder, Michael V Neal, Dwayne Clark, Roger Cowan, George DeTella, Rodney Ahitow. See attached document for specifics (car) (Entered: 09/24/2009)
334 MOTION to Take Deposition from Donald Snyder −PLAINTIFFS' UNOPPOSED MOTION FOR LEAVE TO TAKE THE DEPOSITION OF DEFENDANT DONALD SNYDER by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 09/25/2009)
335 MOTION to Appoint Counsel − Application For Appointment As Class Co−Counsel by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 09/25/2009)
336 MOTION For New Trial by Corey A Taylor. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(lmt) (Entered: 09/29/2009)
337 ORDER: Pursuant to the motion to withdraw filed by Attorney Richard D. Murray, Jr in member case 00−708−GPM, Richard D. Murray, Jr is terminated as to Bennie Cunningham's retaliation claim. Plaintiff Cunningham shall proceed pro se on this claim. Jury Trial will be reset by separate notice. Signed by Judge G. Patrick Murphy on 9/29/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/29/2009)
338 MOTION to Amend/Correct 289 Exhibit List,, Plaintiffs' Second Motion to Amend Witness and Exhibit List by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 09/30/2009)
339 ORDER: JURY TRIAL for plaintiff Bennie Cunningham's retaliation claim is SET on Monday, December 7, 2009 at 8:00 AM at the Benton IL Courthouse before Judge G. Patrick Murphy. Jury Selection will be the morning of trial. Signed by Judge G. Patrick Murphy on 9/30/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/30/2009)
340 TRIAL BRIEF − Plaintiffs' Trial Brief In Support Of Their Due Process Claims − by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Attachments: # 1 Exhibit 1)(Wojcik,

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Lawrence) (Entered: 10/05/2009)
341 TRIAL BRIEF by Roger Walker, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 10/05/2009)
342 RULE 26(a)(3) Disclosures, Designations, and Objections byDonald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan. (Higgerson, Christopher) (Entered: 10/05/2009)
343 NOTICE AND ORDER: IDOC and the Warden of Menard Corr Ctr shall arrange to have Joseph Sorrentino N52385 present on 10/27/2009 at 9:00 AM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
344 NOTICE AND ORDER: IDOC and the Warden of Pontiac Corr Ctr shall arrange to have Ted Knox N92676 present on 10/27/2009 at 9:00 AM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
345 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have George Harper B31403 present on 10/27/2009 at 9:00 AM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
346 NOTICE AND ORDER: IDOC and the Warden of Dixon Corr Ctr shall arrange to have Roosevelt Burrell N74822 present on 10/27/2009 at 9:00 AM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
347 NOTICE AND ORDER: IDOC and the Warden of Menard Corr Ctr shall arrange to have Robert Felton B10731 present on 10/27/2009 at 1:00 PM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
348 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Vincente Rodriguez N70616 present on 10/27/2009 at 1:00 PM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
349 NOTICE AND ORDER: IDOC and the Warden of Menard Corr Ctr shall arrange to have Aryules Bivens #N01682 present on 10/27/2009 at 1:00 PM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
350 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Eugene Horton #C01581 present on 10/27/2009 at 1:00 PM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
351 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Mark VonPerbandt N12924 present on 10/28/2009 at 9:00 AM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
352 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Kenard Combs N71057 present on 10/28/2009 at 9:00 AM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
353 NOTICE AND ORDER: IDOC and the Warden of Western Corr Ctr shall arrange to have Michael Sparling B24287 present on 10/28/2009 at 1:00 PM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)

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354 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Edward Rodriguez A60730 present on 10/28/2009 at 1:00 PM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
355 NOTICE AND ORDER: IDOC and the Warden of Graham Corr Ctr shall arrange to have Leverne Clayton N91531 present on 10/28/2009 at 1:00 PM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
356 NOTICE AND ORDER: IDOC and the Warden of Menard Corr Ctr shall arrange to have Joseph Sorrentino N52385 present on 11/2/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
357 NOTICE AND ORDER: IDOC and the Warden of Pontiac Corr Ctr shall arrange to have Ted Knox N92676 present on 11/2/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
358 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have George Harper B31403 present on 11/2/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
359 NOTICE AND ORDER: IDOC and the Warden of Centralia Corr Ctr shall arrange to have Roosevelt Burrell N74822 present on 11/2/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/6/2009. (lmm) (Entered: 10/06/2009)
360 NOTICE AND ORDER: IDOC and the Warden of Menard Corr Ctr shall arrange to have Robert Felton B10731 present on 11/9/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/8/2009. (lmm) (Entered: 10/08/2009)
361 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Vincente Rodriguez N70616 present on 11/9/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/8/2009. (lmm) (Entered: 10/08/2009)
362 NOTICE AND ORDER: IDOC and the Warden of Menard Corr Ctr shall arrange to have Aryules Bivens N01682 present on 11/9/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/8/2009. (lmm) (Entered: 10/08/2009)
363 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Eugene Horton C01581 present on 11/9/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/8/2009. (lmm) (Entered: 10/08/2009)
364 MOTION in Limine To Preclude At Trial Evidence Of Gang Affiliation And Activities by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 10/08/2009)
365 NOTICE AND ORDER: IDOC and the Warden of Stateville Corr Ctr shall arrange to have Mark VonPerbandt N12924 present on 11/16/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/8/2009. (lmm) (Entered: 10/08/2009)
366 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Kenard Combs N71057 present on 11/16/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/8/2009. (lmm) (Entered: 10/08/2009)

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367 NOTICE AND ORDER: IDOC and the Warden of Western Corr Ctr shall arrange to have Michael Sparling B24287 present on 11/30/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/8/2009. (lmm) (Entered: 10/08/2009)
368 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Edward Rodriguez A60730 present on 11/30/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Selection. Signed by Judge G. Patrick Murphy on 10/8/2009. (lmm) (Entered: 10/08/2009)
369 NOTICE AND ORDER: IDOC and the Warden of Danville Corr Ctr shall arrange to have Leverne Clayton N91531 present on 11/30/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/8/2009. (lmm) (Entered: 10/08/2009)
370 ENTRY STRICKEN − NOTICE OF ERRORS AND/OR DEFICIENCIES re 369 Notice and Order. Docket text modified to state Graham Correctional Center, not Danville for inmate. (myz)THIS IS A TEXT ENTRY OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. Modified on 10/9/2009 (myz ). (Entered: 10/09/2009)
371 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 370 Notice of Deficiencies. Inmate has been transferred to Danville Correctional Center − docket text for entry at 369 correct. (myz )THIS TEXT ENTRY OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/09/2009)
372 RESPONSE in Opposition re 336 MOTION for New Trial filed by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Jerry Gilmore. (Higgerson, Christopher) (Entered: 10/13/2009)
373 MOTION and ORDER to Appear Pro Hac Vice by Attorney Elizabeth Bartels on behalf of all Plaintiffs. $100.00 filing fee paid, receipt number 34625015811. (lmt) (Entered: 10/14/2009)
374 ORDER granting 334 Unopposed Motion for Leave to Take the Deposition of Defendant Donald Snyder. Pursuant to Rule 30(a)(2)(B) of the Federal Rules of Civil Procedure the attorneys for Plaintiffs in this matter are granted leave to take the deposition of Defendant Donald Snyder, who, it appears from public records available on reliable Internet sources that the Court can judicially notice, see Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill. 2006), currently is serving a two−year term of imprisonment at FCI Gilmer in Glenville, West Virginia. The attorneys for Plaintiffs are directed to make all arrangements necessary for the taking of Defendant Snyder's deposition with officials at the institution where he is incarcerated. Signed by Judge G. Patrick Murphy on 10/15/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/15/2009)
375 ORDER granting 332 Motion to Withdraw as Counsel for Defendant Lamark Carter. The motion has not been opposed and it appears from the record that Carter is deceased. Accordingly, Illinois Attorney General Lisa Madigan and Illinois Assistant Attorneys General Christopher L. Higgerson and Terence Corrigan are given leave to withdraw as counsel for Carter, and Carter is terminated as a party to this litigation. Signed by Judge G. Patrick Murphy on 10/15/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/15/2009)
385 PRO SE MOTION to Consolidate Cases by Milton Smith. (bkl) (Entered: 10/21/2009)
376 ORDER granting 335 Motion to Appoint Counsel. Signed by Judge G. Patrick Murphy on 10/16/2009. (jhs) (Entered: 10/16/2009)
377 MOTION for Partial Summary Judgment On Defendants' Affirmative Defenses Of Exhaustion − by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando

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Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. Responses due by 11/18/2009 (Wojcik, Lawrence) (Entered: 10/16/2009)
378 MEMORANDUM in Support re 377 MOTION for Partial Summary Judgment On Defendants' Affirmative Defenses Of Exhaustion − filed by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Wojcik, Lawrence) (Entered: 10/16/2009)
379 ORDER granting 338 Plaintiffs' Second Motion to Amend Witness and Exhibit List. Plaintiffs are granted leave to amend their witness and exhibit lists in the manner set out with specificity in the said motion. Signed by Judge G. Patrick Murphy on 10/19/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/19/2009)
380 ORDER granting in part and denying in part 364 Plaintiffs' Motion in Limine to Exclude at Trial Evidence of Gang Affiliation and Activities. The Court directs counsel for Defendants to submit to the Court before trial on the retaliation claims asserted in this matter any evidence Defendants' counsel may intend to introduce at trial on the retaliation claims regarding the alleged gang affiliations or activities of the retaliation Plaintiffs so that the Court may conduct an in camera review of the said evidence. This Order applies only to those particular Plaintiffs for whom gang affiliation is a reason asserted for their transfer to the closed maximum security prison at Tamms, Illinois. Signed by Judge G. Patrick Murphy on 10/19/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/19/2009)
381 ORDER denying 336 Motion for a New Trial brought by Plaintiff Corey A. Taylor. On September 15, 2009, the Court conducted a trial on Taylor's claim that he was transferred to the closed maximum security prison at Tamms, Illinois, in retaliation for exercising his First Amendment rights; the jury returned a verdict for Defendants Odie Washington, George DeTella, and Jerry Gilmore. Pursuant to Rule 59(a)(1) of the Federal Rules of Civil Procedure Taylor now has moved for a new trial, charging that Defendants' counsel deliberately withheld from him until after the trial a document styled "Offender Tracking System Transfer Report" that is dated August 10, 1998. It appears that the document at issue in fact was introduced into evidence by Taylor as Exhibit 1 at the trial on his retaliation claim. See Doc. 325. Also, the document does not seem to contain any information that would have allowed Taylor to prevail at trial. Accordingly, Taylor's request for a new trial is denied. Signed by Judge G. Patrick Murphy on 10/19/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/19/2009)
382 MOTION to Continue December 7, 2009 Trial by H Markel, Asst Dep Diret McVicar, George C Welborn, Donald Snyder, Odie Washington, Michael V Neal. (Higgerson, Christopher) (Entered: 10/20/2009)
383 ORDER granting in part and denying in part 382 Motion to Continue brought by Defendants Donald N. Snyder, Jr., Odie Washington, Richard McVicar, Michael V. Neal, George C. Welborn, Angela Winsor, Homer Markel, and Jack Hartwig. The Court declines to continue the trial on the retaliation claim asserted in this matter by Plaintiff Bennie Cunningham currently scheduled to begin December 7, 2009, at the United States Courthouse in Benton, Illinois, before Judge G. Patrick Murphy. However, the Court grants Defendant Hartwig's request to testify by video at a specific time from California. Counsel for Hartwig will make the necessary arrangements for Hartwig to testify by video and advise the Court of the time and manner Hartwig will so testify. Signed by Judge G. Patrick Murphy on 10/21/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/21/2009)
384 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have Bennie Cunningham, #A62152 present on 12/7/2009 at 8:00 AM in BENTON

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Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/21/2009. (lmm) (Entered: 10/21/2009)
386 Exhibit List − Plaintiffs' Amended Witness And Exhibit List − by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Bennie Cunningham, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago.. (Wojcik, Lawrence) (Entered: 10/21/2009)
387 NOTICE by George C Welborn, Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan of Appearance (Choate, Kelly) (Entered: 10/21/2009)
388 ORDER denying 385 Motion to Consolidate Cases. Milton Smith, who is currently incarcerated at Tamms Correctional Center in Tamms, Illinois, and who was formerly a party Plaintiff in this matter, requests that the Court consolidate Smith v. Walker, Civil No. 07−340−MJR (S.D. Ill. filed May 14, 2007), with this matter. In Case No. 07−340 District Judge Reagan held that because Smith has three "strikes" for purposes of 28 U.S.C. § 1915(g), specifically, Smith v. Peters, Civil No. 95−432−WDS (S.D. Ill. July 25, 1995) (order dismissing action as frivolous), Smith v. Welborn, Civil No. 99−494−GPM (S.D. Ill. Sept. 27, 2000) (order dismissing action for failure to state a claim upon which relief may be granted), and Smith v. Stephens, Case No. 99−533−GPM (S.D. Ill. Dec. 18, 2001) (order dismissing action as frivolous), Smith could not proceed in Case No. 07−340 without paying the required filing fee. The docket in Case No. 07−340, which the Court can judicially notice, see Spano v. Boeing Co., Employee Benefits Plans Comm., No. 06−cv−743−DRH, 2007 WL 2688456, at *2 (S.D. Ill. Sept. 10, 2007), does not reflect that Smith has paid any part of the filing fee in Case No. 07−340 and in fact Case No. 07−340 was dismissed on the merits on August 15, 2007, and judgment was duly entered. Accordingly the Court denies Smith's request to consolidate Case No. 07−340 with this matter. See Walls v. Dretke, Civil Action No. H−06−0961, 2006 WL 1714742, at *2 (S.D. Tex. June 20, 2006) (a prisoner cannot use the procedural device of consolidation to evade the requirements of 28 U.S.C. § 1915(g)). Signed by Judge G. Patrick Murphy on 10/22/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/22/2009)
389 NOTICE OF ERRORS AND/OR DEFICIENCIES re 387 Notice (Other) filed by Thomas Page, Odie Washington, Jerry Gilmore, Michael O'Leary, Donald Snyder, Michael V Neal, Dwayne Clark, George C Welborn, Roger Cowan, George DeTella, Rodney Ahitow. See attached document for specifics (car) (Entered: 10/22/2009)
390 MOTION to Appear Pro Hac Vice by AttorneyNika K Gembicki $100 fee paid,receipt number 07540000000000981765 by on behalf of Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Gembicki, Nika) (Entered: 10/22/2009)
391 NOTICE OF ERRORS AND/OR DEFICIENCIES re 390 Motion to Appear Pro Hac Vice filed by plaintiffs. Proposed Order should not have been filed. (car)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/23/2009)
392 ORDER granting 390 Motion to Appear Pro Hac Vice by Plaintiffs as to Attorney Nika K. Gembicki on 10/23/09. (car)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. Modified on 10/23/2009 (car). (Entered: 10/23/2009)
393 MOTION to Bar Plaintiffs' Expert by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow. (Higgerson, Christopher) (Entered: 10/26/2009)

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394 NOTICE AND ORDER: IDOC and the Warden of Menard shall arrange to have Aryules Bivens N01682 present on 11/2/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/27/2009. (lmm) (Entered: 10/27/2009)
395 NOTICE AND ORDER: IDOC and the Warden of Tamms Corr Ctr shall arrange to have George Harper present on 11/9/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 10/27/2009. (lmm) (Entered: 10/27/2009)
396 Minute Entry for proceedings held before Judge G. Patrick Murphy: Jury Selection for GROUP ONE held on 10/27/2009. (Court Reporter Jane Northcutt.) (lmm) (Entered: 10/27/2009)
397 Minute Entry for proceedings held before Judge G. Patrick Murphy: Jury Selection for GROUP TWO held on 10/27/2009. (Court Reporter Jane Northcutt.) (lmm) (Entered: 10/27/2009)
398 MOTION in Limine by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow. (Attachments: # 1 Exhibit A)(Higgerson, Christopher) (Entered: 10/27/2009)
399 Minute Entry for proceedings held before Judge G. Patrick Murphy: Jury Selection for Group Three held on 10/28/2009.(Court Reporter Jane McCorkle.) (lmm) (Entered: 10/28/2009)
400 MOTION to Appear Pro Hac Vice by AttorneyDavid J. Pivnick $100 fee paid,receipt number 07540000000000984837 by on behalf of Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Marcus Chapman, Mark Von Perbandt, Ronnie W Carroll, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Pivnick, David) (Entered: 10/28/2009)
401 Minute Entry for proceedings held before Judge G. Patrick Murphy: Jury Selection for GROUP FOUR held on 10/28/2009. (Court Reporter Jane McCorkle.) (lmm) (Entered: 10/29/2009)
402 Minute Entry for proceedings held before Judge G. Patrick Murphy: Motion Hearing held on 10/28/2009. DENYING 393 MOTION to Bar Plaintiffs' Expert filed by Thomas Page, Odie Washington, Jerry Gilmore, Michael O'Leary, Donald Snyder, Michael V Neal, Dwayne Clark, Rodney Ahitow, George DeTella. (Court Reporter Jane McCorkle.) (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/29/2009)
403 ORDER granting 400 Motion to Appear Pro Hac Vice as to plaintiffs. (dmw) (Entered: 10/29/2009)
404 ORDER granting in part and denying in part 398 Motion in Limine brought by Defendants Donald Snyder, Odie Washington, Michael V. Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, and Jerry Gilmore. See Order for specifics. Signed by Judge G. Patrick Murphy on 10/30/2009. (jhs) (Entered: 10/30/2009)
405 MOTION to Alter Judgment − Plaintiffs' Motion To Alter Or Amend The Court's October 30, 2009 Memorandum And Order − by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 10/30/2009)
406 Preliminary Jury Instructions (GROUP ONE) given 11/2/2009. (lmm) (Entered: 11/02/2009)

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407 NOTICE of Appearance by Ellen C. Bruce on behalf of Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, Roger Cowan (Bruce, Ellen) (Entered: 11/02/2009)
408 MOTION for Leave to Substitute Richard Murray's Witness and Exhibit List dated August 17, 2009 by Bennie Cunningham. (lmt) (Entered: 11/02/2009)
409 MOTION in Limine by Bennie Cunningham. (lmt) (Entered: 11/02/2009)
410 Minute Entry for proceedings held before Judge G. Patrick Murphy: Day 2 of Jury Trial held on 11/2/2009 for GROUP ONE. (Court Reporter Molly Clayton/Leslee Copple (Southern Reporting) (lmm) (Entered: 11/02/2009)
411 Minute Entry for proceedings held before Judge G. Patrick Murphy: Day 3 of Jury Trial held on 11/3/2009 as to GROUP ONE. Verdict in favor of plaintiffs and against defendants. (Court Reporter Molly Clayton.) (lmm) (Entered: 11/03/2009)
412 Jury Trial Exhibit List−GROUP ONE. (lmm) (Entered: 11/03/2009)
413 Minute Entry for proceedings held before Judge G. Patrick Murphy: Bench Trial held on 11/3/2009 for Due Process Claim − GROUP ONE. (Court Reporter Molly Clayton.) (lmm) (Entered: 11/03/2009)
414 Exhibit List−Due Process Claim−GROUP ONE. (lmm) (Entered: 11/03/2009)
415 STIPULATION FOR RELEASE OF TRIAL EXHIBITS (GROUP ONE) JURY TRIAL held 11/2/2009 & 11/3/2009. (lmm) (Entered: 11/04/2009)
416 JURY VERDICT (GROUP ONE) in favor of plaintiffs and against defendants. (lmm) (Entered: 11/04/2009)
417 Transcript of BENCH TRIAL RE DUE PROCESS HEARING − DAY/VOLUME 1 − Group 1 held on 11/3/2009, before Judge G. Patrick Murphy. Court Reporter/Transcriber Molly Clayton, Telephone number 618.482.9226.

NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov.

11/05/2009
11/05/2009 11/06/2009 11/06/2009 11/06/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/25/2009. Redacted Transcript Deadline set for 12/7/2009. Release of Transcript Restriction set for 2/2/2010. (mnc) (Entered: 11/04/2009)
418 Second MOTION in Limine by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow. (Attachments: # 1 Exhibit A)(Higgerson, Christopher) (Entered: 11/05/2009)
419 Minute Entry for proceedings held before Judge G. Patrick Murphy (dka): Day 2 of Bench Trial held on 11/5/2009 for due process claim. (Court Reporter Molly Clayton.) (dka, ) (Entered: 11/06/2009)
420 Exhibit List − Day 2 Bench Trial for due process claim. (dka, ) (Entered: 11/06/2009)
421 Minute Entry for proceedings held before Judge G. Patrick Murphy (bkl): Status Conference held 11/6/2009. (Court Reporter Molly Clayton.) (bkl) Modified on 11/9/2009 (lmm). (Entered: 11/06/2009)
422 Second MOTION in Limine by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Attachments: # 1 Exhibit

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A)(Wojcik, Lawrence) (Entered: 11/06/2009)
423 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 11/06/2009)
424 ORDER denying 405 Motion to Reconsider brought by Plaintiffs Mark Von Perbandt, Michael Sparling, Joe Sorrentino, Vincente Rodriguez, Edward Rodriguez, William Lasley, Ted Knox, Eugene Horton, George Harper, Robert Felton, Kennard Combs, Laverne Clayton, Mary Chapman as the administrator of the estate of Marcus Chapman, Roosevelt Burrell, and Aryules Bivens. For the reasons stated on the record at the hearing conducted in this case on November 6, 2009, to the extent the motion is not moot in view of the jury's verdict on the retaliation claims of Plaintiffs Sorrentino, Knox, Bivens, and Burrell, the motion is denied. Signed by Judge G. Patrick Murphy on 11/6/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/06/2009)
425 ORDER granting in part and denying in part 418 Second Motion in Limine brought by Defendants Donald Snyder, Odie Washington, Michael V. Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, and Jerry Gilmore. For the reasons stated on the record at the hearing conducted in this case on November 6, 2009, Defendants' motion is granted with respect to the portions of Defendant Ahitow's deposition testimony challenged as irrelevant in the motion. The motion also is granted with respect to evidence concerning the results of previous trials in this case. The motion is denied as to evidence and argument that Plaintiffs Robert Felton, Vincente Rodriguez, George Harper, and Eugene Horton have filed their claims against Defendants seeking one dollar or that a verdict for Plaintiffs will only cost Defendants one dollar, as the Court is certain Plaintiffs' counsel does not intend to offer any such evidence or argument. Signed by Judge G. Patrick Murphy on 11/6/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/06/2009)
426 ORDER denying 422 Second Motion in Limine brought by Plaintiffs Robert Westefer, Mark Von Perbandt, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago, Tyshawn Ross, Vincente Rodriguez, Edward Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mary Chapman as the administrator of the estate of Marcus Chapman, Roosevelt Burrell, Finner Bryant, Larry Brown, and Aryules Bivens, on behalf of themselves and the certified class in this case. For the reasons stated on the record at the hearing conducted in this case on November 6, 2009, the Court finds that evidence concerning conditions of confinement at Pontiac Correctional Center has been properly disclosed to counsel for Plaintiffs and the class and will not cause them unfair surprise. Signed by Judge G. Patrick Murphy on 11/6/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/06/2009)
427 TRIAL BRIEF Bench Memorandum Regarding Plaintiff's Claim that Due Process Bars Punishing them for Gang−Related Activities Prior to 1996 by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 11/06/2009)
428 TRIAL BRIEF Bench Memorandum on the Necessity of Injunctive and Declaratory Relief by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene

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Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 11/06/2009)
429 TRIAL BRIEF Bench Memorandum Regarding the Appropriate Baseline for Determining Whether Transfer to Tamms Implicates a Liberty Interest by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 11/06/2009)
477 STRICKEN PURSUANT TO DOC. 479 − Transcript of Excerpt of Proceedings held on November 2, 2009, before Judge G. Patrick Murphy. Court Reporter/Transcriber Leslee Copple, Telephone number 618−997−8455.

NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov.

11/09/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/27/2009. Redacted Transcript Deadline set for 12/7/2009. Release of Transcript Restriction set for 2/4/2010. (Attachments: # 1 Contract Reporter Form) (bkl) Modified on 11/18/2009 (bkl). (Entered: 11/18/2009)
430 Transcript of Jury Trial held on 11/2/09, before Judge G. Patrick Murphy. Court Reporter/Transcriber Leslee Copple, Southern Reporting, Telephone number 618−997−8455.

NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov.

11/09/2009 11/09/2009 11/09/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/30/2009. Redacted Transcript Deadline set for 12/10/2009. Release of Transcript Restriction set for 2/8/2010. (Attachments: # 1 reporter cert) (dka, ) (Entered: 11/09/2009)
431 Minute Entry for proceedings held before Judge G. Patrick Murphy: Day 2 of GROUP TWO Jury Trial held on 11/9/2009. (Court Reporter Molly Clayton.) (lmm) (Entered: 11/09/2009)
432 STIPULATION FOR RELEASE OF TRIAL EXHIBITS for GROUP TWO. (lmm) (Entered: 11/09/2009)
433 Transcript of BENCH TRIAL RE DUE PROCESS HEARING DAY/VOLUME 2 held on 11/5/2009, before Judge G. Patrick Murphy. Court Reporter/Transcriber Molly Clayton, Telephone number 618.482.9226.

NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov.

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11/10/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/30/2009. Redacted Transcript Deadline set for 12/10/2009. Release of Transcript Restriction set for 2/8/2010. (mnc) (Entered: 11/09/2009)
434 Preliminary Jury Instructions given 11/9/2009 (GROUP TWO). (lmm) (Entered: 11/10/2009)
435 ORDER Furnishing Jury Meals on 11/10/2009 (GROUP TWO). Signed by Judge G. Patrick Murphy on 11/10/2009. (lmm) (Entered: 11/10/2009)
436 MOTION to Continue, MOTION for Emergency Conference by Bennie Cunningham. (dka, ) (Entered: 11/10/2009)
437 PETITION (MOTION) for Writ of Habeas Corpus ad testificandum as to Vincent Patterson by Bennie Cunningham. Proposed writ prepared by plaintiff Cunningham received. (dka, ) (Entered: 11/10/2009)
438 PETITION (MOTION) for Writ of Habeas Corpus ad testificandum as to Henry Scates by Bennie Cunningham. Proposed writ prepared by plaintiff Cunningham received. (dka, ) (Entered: 11/10/2009)
439 MOTION for Issuance and Service of Subpoenas by Bennie Cunningham. (dka, ) (Entered: 11/10/2009)
440 Minute Entry for proceedings held before Judge G. Patrick Murphy: Day 3 of Jury Trial held on 11/10/2009 (GROUP TWO). Verdict in favor of Defendants and against Plaintiffs. (Court Reporter Molly Clayton.) (lmm) (Entered: 11/10/2009)
441 JURY VERDICT H (GROUP TWO) in favor of Defendants and against Plaintiffs. (lmm) (Entered: 11/10/2009)
442 Trial Exhibit List (Group Two). Exhibits returned to counsel.(lmm) (Entered: 11/10/2009)
443 Final Jury Instructions given 11/10/2009 (GROUP TWO). (lmm) (Entered: 11/10/2009)
444 Minute Entry for proceedings held before Judge G. Patrick Murphy: Day 3 of Bench Trial (Due Process Claims) held on 11/10/2009. (Court Reporter Molly Clayton.) (lmm) (Entered: 11/10/2009)
445 Bench Trial Exhibit List (Due Process Claim) GROUP TWO. (lmm) (Entered: 11/10/2009)
446 Minute Entry for proceedings held before Judge G. Patrick Murphy: Supplemental Minutes of Jury Trial (re Offer of Proof) held on 11/10/2009 (GROUP TWO). (Court Reporter Molly Clayton.) (lmm) (Entered: 11/10/2009)
447 ORDER granting 437 and 438 Motions for Writs of Habeas Corpus Ad Testificandum brought by Plaintiff Bennie Cunningham. The Court will issue the requested writs as to Vincent Patterson, IDOC # N33032, and Henry Scates, IDOC # N73933. Signed by Judge G. Patrick Murphy on 11/10/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/10/2009)
448 ORDER denying 409 Motion in Limine brought by Plaintiff Bennie Cunningham. Trial currently is set for December 7, 2009, on Cunningham's claim that he was assigned to the closed maximum security prison ("supermax prison") at Tamms Correctional Center ("Tamms") in retaliation for exercising his First Amendment rights. Cunningham seeks to exclude in limine before trial four categories of evidence, specifically: evidence concerning Cunningham's criminal record and the crime for which he currently is incarcerated; evidence concerning the criminal records of the inmate witnesses Cunningham intends to call at trial and the crimes for which they currently are incarcerated; a summary from the Cook County State's Attorney dated March 24, 1983; and evidence concerning Cunningham's disciplinary record after his transfer to the supermax prison at Tamms. The evidence from the Cook County State's Attorney is not before the Court, and therefore it is impossible for the Court to rule on

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the admissibility of the subject evidence before trial. See Latham v. Edelbrock Corp., Civil No. 07−713−GPM, 2009 WL 3156546, at *2 (S.D. Ill. Sept. 26, 2009) ("[W]here the inadmissibility of evidence is not clear before trial, the better practice is to address questions of the admissibility of the subject evidence at trial."). Evidence concerning Cunningham's criminal record and the crime for which he currently is incarcerated and evidence concerning Cunningham's disciplinary record after his transfer to the supermax prison at Tamms seems to the Court to have obvious potential relevance to the issue of why Cunningham was sent to Tamms and why he remains imprisoned there. Finally, with respect to evidence of the criminal histories of Cunningham's inmate witnesses, the Court will perform any analysis of the admissibility of this evidence that may be required under Rule 609 of the Federal Rules of Evidence at the appropriate time during trial. See Westefer v. Snyder, Civil Nos. 00−162−GPM, 00−708−GPM, 2009 WL 3672500, at *1 (S.D. Ill. Oct. 30, 2009). Signed by Judge G. Patrick Murphy on 11/10/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/10/2009)
457 NOTICE OF APPEAL as to 381 Order on Motion for New Trial and Verdicts 319 , 320 , 321 by Corey A Taylor. (myz ) (Entered: 11/12/2009)
449 TRIAL BRIEF − Bench Memorandum Regarding State−Created Liberty Interest In Avoiding Restrictive Conditions Of Confinement − by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 11/11/2009)
450 ORDER granting in part and denying in part 439 Motion for Issuance and Service of Subpoenas brought by Plaintiff Bennie Cunningham. It appears from the inmate locator on the website of the Illinois Department of Corrections ("IDOC"), which the Court can judicially notice, see Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill. 2006), that Carmichael Morrison, IDOC # A90539, is no longer in IDOC custody, and therefore the Court will not issue a writ of habeas corpus ad testificandum as to Morrison. The Court will issue such a writ as to Karl E. Jackson, IDOC # N03040; by order entered November 10, 2009, the Court already has ordered writs to issue as to Vincent Patterson, IDOC # N33032, and Henry Scates, IDOC # N73933. The Court will arrange to make Michelle Baggott available at trial on Cunningham's claim of retaliation in violation of his First Amendment rights. With respect to Jerry Gilmore and Michael O'Leary, it will be Cunningham's obligation to locate them and to procure their presence at trial on the retaliation claim. Gilmore and O'Leary have not previously been named as parties to the claim, nor does Cunningham explain what relevant testimony he expects to elicit from Gilmore and O'Leary at the trial on that claim. Also, while Cunningham may be experiencing some difficulty in securing the presence of non−inmate witnesses at trial, Cunningham easily could have anticipated these difficulties before he forced Richard D. Murray, Jr., his Court−appointed counsel, to withdraw from continued representation of Cunningham. Signed by Judge G. Patrick Murphy on 11/12/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/12/2009)
451 ORDER granting 408 Motion for Leave to Substitute Richard Murray's Witness and Exhibit List Dated August 17, 2009, for Plaintiff's Witness and Exhibit List brought by Plaintiff Bennie Cunningham. To the extent it is necessary for Cunningham to supplement the witness and exhibit list for the trial on Cunningham's claim of retaliation in violation of his First Amendment rights, Cunningham may do so in accordance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Signed by Judge G. Patrick Murphy on 11/12/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/12/2009)
452 ORDER denying 436 Combined Motion to Continue December 7, 2009 Trial and for Emergency Conference brought by Plaintiff Bennie Cunningham. Cunningham seeks to continue the trial currently set to begin December 7, 2009, on his claim that he was

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retaliated against in violation of his First Amendment rights on the grounds that Richard D. Murray, Jr., Cunningham's Court−appointed counsel, recently withdrew from representation of Cunningham on the retaliation claim. According to Murray's motion to withdraw as Cunningham's counsel, Murray was forced to withdraw from representation of Cunningham on the retaliation claim because Cunningham insisted that Murray pursue frivolous claims and threatened to sue Murray for malpractice if he did not pursue those claims. The Court sees no reason to doubt Murray's representations in the motion to withdraw and likewise sees no reason why Cunningham should be rewarded for such conduct by continuing the trial on his retaliation claim. Also, the Court is certain that Cunningham is perfectly familiar with the facts and law pertinent to his retaliation claim and, to the extent he is not, a continuance will not ameliorate the problem. Accordingly, the Court finds no cause for either a continuance of the trial or a status conference as to Cunningham's retaliation case. Signed by Judge G. Patrick Murphy on 11/12/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/12/2009)
453 NOTICE of Appearance by Joseph N. Rupcich on behalf of Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan (Rupcich, Joseph) (Entered: 11/12/2009)
454 NOTICE AND ORDER: IDOC and the Warden of Pontiac Corr Ctr shall arrange to have Henry Scates N73933 present on 12/7/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 11/12/2009. (lmm) (Entered: 11/12/2009)
455 NOTICE AND ORDER: IDOC and the Warden of Pontiac Corr Ctr shall arrange to have Karl E. Jackson N03040 present on 12/7/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 11/12/2009. (lmm) (Entered: 11/12/2009)
456 NOTICE AND ORDER: IDOC and the Warden of Pontiac Corr Ctr shall arrange to have Vincent Patterson N33032 present on 12/7/2009 at 8:00 AM in BENTON Courthouse before Judge Murphy for Jury Trial. Signed by Judge G. Patrick Murphy on 11/12/2009. (lmm) (Entered: 11/12/2009)
458 Transmission of Short Record to US Court of Appeals re 457 Notice of Appeal.Appeal Record due to be prepared by 11/24/2009. (myz) (Entered: 11/12/2009)
459 Circuit Rule 10 Letter to parties re Notice of Appeal 457 (myz) (Entered: 11/12/2009)
460 MOTION to Amend/Correct − Plaintiffs' Motion To Amend Exhibit List by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 11/12/2009)
461 TRIAL BRIEF − Bench Memorandum Supporting Admissibility Of Evidence Challenging The Basis For Plaintiffs' Tranfers To Tamms by Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Mary Chapman, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Robert Westefer, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mark Von Perbandt, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago. (Wojcik, Lawrence) (Entered: 11/13/2009)
462 ORDER granting 460 Motion to Amend Exhibit List brought by Plaintiffs Mark Von Perbandt, Kennard Combs, Mary Chapman, as the administrator of the Estate of Marcus Chapman, and William Lasley. Plaintiffs are given leave to amend their exhibit list for the trial on their claims that they were retaliated against in violation of their First Amendment rights to include as exhibits certain letters produced to Plaintiffs' counsel by Harold Winston on November 10, 2009, as described in the

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motion. At trial the Court will address any questions that may arise concerning the admissibility of the subject letters as evidence. Signed by Judge G. Patrick Murphy on 11/13/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/13/2009)
463 USCA Case Number 09−3780 for 457 Notice of Appeal filed by Corey A Taylor. (lmt) (Entered: 11/13/2009)
464 Third MOTION in Limine by Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow. (Higgerson, Christopher) (Entered: 11/13/2009)
465 Emergency MOTION to Continue Trial To November 30, 2009 by Mark Von Perbandt. (Attachments: # 1 Exhibit A)(Wojcik, Lawrence) (Entered: 11/13/2009)
466 ORDER granting 465 Emergency Motion to Continue Trial to November 30, 2009, brought by Plaintiff Mark Von Perbandt. As is requested in the motion, Von Perbandt is transferred from Trial Group Three to Trial Group Four for purposes of trial on his claim that he was retaliated against in violation of his First Amendment rights. Counsel for Von Perbandt will make all arrangements necessary to ensure that Von Perbandt is present and ready to proceed to trial on his retaliation claim at 8:00 a.m. on November 30, 2009, at the United States District Courthouse in Benton, Illinois, Judge G. Patrick Murphy presiding. Signed by Judge G. Patrick Murphy on 11/15/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/15/2009)
467 Minute Entry for proceedings held before Judge G. Patrick Murphy: Day 2 of Jury Trial held on 11/16/2009 (GROUP THREE). (Court Reporter Molly Clayton.) (lmm) (Entered: 11/16/2009)
468 Preliminary Jury Instructions given 11/16/2009 (GROUP THREE). (lmm) (Entered: 11/16/2009)
478 Transcript of Trial Day / Volume 2 held on November 2, 2009, before Judge G. Patrick Murphy. Court Reporter/Transcriber Leslee Copple, Telephone number 618−997−8455.

NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov.

11/17/2009
11/17/2009 11/17/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/7/2009. Redacted Transcript Deadline set for 12/17/2009. Release of Transcript Restriction set for 2/16/2010. (Attachments: # 1 Contract Reporter Form) (bkl) (Entered: 11/18/2009)
469 ORDER OF RECONSIDERATION: The records of inmates in the custody of the Illinois Department of Corrections ("IDOC") maintained online by the IDOC at http://www.idoc.state.il.us/subsections/search/default.asp, which the Court can judicially notice, see Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 930 n.2 (S.D. Ill. 2006), reflect that Karl E. Jackson, IDOC # N03040, is on parole and is no longer in the custody of the IDOC. Therefore, the portion of the Court's order entered November 12, 2009, as Document 450 on the docket of this case directing a writ of habeas corpus ad testificandum to issue as to Jackson so that he can appear as a witness at the trial on the First Amendment retaliation claim brought by Plaintiff Bennie Cunningham is vacated. Signed by Judge G. Patrick Murphy on 11/17/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/17/2009)
470 ORDER Furnishing Jury Meals on 11/17/2009 (GROUP THREE). Signed by Judge G. Patrick Murphy on 11/17/2009. (lmm) (Entered: 11/17/2009)
471 Minute Entry for proceedings held before Judge G. Patrick Murphy: Day 3 of Jury Trial held on 11/17/2009 (GROUP THREE). (Court Reporter Molly Clayton.) (lmm)

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(Entered: 11/17/2009)
472 Trial Exhibit List (GROUP THREE). (lmm) (Entered: 11/17/2009)
473 JURY VERDICT FORM B (GROUP THREE). (lmm) (Entered: 11/17/2009)
474 STIPULATION FOR RELEASE OF TRIAL EXHIBITS (GROUP THREE). (lmm) (Entered: 11/17/2009)
475 Final Jury Instructions given 11/17/2009 (GROUP THREE). (lmm) (Entered: 11/17/2009)
476 Minute Entry for proceedings held before Judge G. Patrick Murphy: Bench Trial (Due Process Claim) held on 11/17/2009. (Court Reporter Molly Clayton.) (lmm) (Entered: 11/17/2009)
479 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 477 Transcript. See attached document for specifics. (bkl) (Entered: 11/18/2009)
480 ENTRY STRICKEN − Transcript of BENCH TRIAL DAY/VOLUME 4 held on 11/10/2009, before Judge G. Patrick Murphy. Court Reporter/Transcriber Molly Clayton, Telephone number 618.482.9226. (mnc) Modified on 11/18/2009 (myz ). (Entered: 11/18/2009)
481 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 480 Transcript upon request of court reporter. PDF document attached to entry has been deleted. (myz)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/18/2009)
482 Transcript of BENCH TRIAL RE DUE PROCESS HEARING − DAY/VOLUME 4 held on 11/10/2009, before Judge G. Patrick Murphy. Court Reporter/Transcriber Molly Clayton, Telephone number 618.482.9226.

NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov.

11/19/2009 11/20/2009 11/20/2009
11/20/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/9/2009. Redacted Transcript Deadline set for 12/21/2009. Release of Transcript Restriction set for 2/16/2010. (mnc) (Entered: 11/18/2009)
483 NOTICE of Appearance by Ryan A. Nelson on behalf of Donald Snyder, Odie Washington, Michael V Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan (Nelson, Ryan) (Entered: 11/19/2009)
484 MOTION to Amend/Correct 383 Order on Motion to Continue,,, by H Markel, Asst Dep Diret McVicar, George C Welborn, Odie Washington, Michael V Neal. (Higgerson, Christopher) (Entered: 11/20/2009)
485 NOTICE of Hearing: The Attorney General has requested that they be allowed to present testimony from IDOC Director Michael Randle for the due process claims. Therefore, the court will take testimony from Director Randle on 12/8/2009 at 08:00 AM in Benton Courthouse before Judge G. Patrick Murphy. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/20/2009)
486 ENTRY STRICKEN − Transcript of BENCH TRIAL RE DUE PROCESS HEARING − DAY/VOLUME 5

NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at

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www.ilsd.uscourts.gov.

11/20/2009 11/23/2009
11/24/2009 11/24/2009 11/25/2009 11/25/2009 11/25/2009 11/25/2009 11/25/2009
11/30/2009
11/30/2009

(mnc) Modified on 11/20/2009 (myz). (Entered: 11/20/2009)
487 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 486 Transcript upon the request of the court reporter. (myz )THIS IS A TEXT ENTRY OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/20/2009)
488 ORDER granting 484 Motion to Amend Order of October 21, 2009, brought by Defendants Odie Washington, Richard McVicar, Michael V. Neal, George C. Welborn, Angela Winsor, and Homer Markel. The Court's order entered October 21, 2009, (Doc. 383) is hereby modified as follows. Defendant Jack Hartwig shall appear in person to testify at the trial on the First Amendment retaliation claim brought by Plaintiff Bennie Cunningham set to begin December 7, 2009, at 8:00 a.m. at the United States District Courthouse in Benton, Illinois, Judge G. Patrick Murphy presiding. Defendant Michael V. Neal will testify by video from the Office of the Attorney General of Texas on December 7, 2009, at 1:00 p.m. Signed by Judge G. Patrick Murphy on 11/23/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/23/2009)
489 ORDER: At the request of the Attorney General, testimony from Director Randle is RESET for 12/9/2009 at 08:00 AM in Benton Courthouse before Judge G. Patrick Murphy. Signed by Judge G. Patrick Murphy on 11/24/2009. (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/24/2009)
490 ORDER denying 464 Motion in Limine brought by Defendants Donald Snyder, Odie Washington, Michael V. Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Rodney Ahitow, and Jerry Gilmore. Signed by Judge G. Patrick Murphy on 11/24/2009. (jhs) (Entered: 11/24/2009)
491 PRO SE MOTION for Court Order, or in the alternative MOTION to Appoint Counsel by Bennie Cunningham. (dka, ) (Entered: 11/25/2009)
492 RESPONSE to 465 Motion to Continue − Memorandum In Support Of Mark VonPerbandt's Motion To Continue Trial Date − Redacted Version filed by Mark Von Perbandt. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wojcik, Lawrence) (Entered: 11/25/2009)
493 Sealed Memorandum in Support re 465 Emergency MOTION to Continue Trial To November 30, 2009 filed by Mark Von Perbandt. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wojcik, Lawrence) (Entered: 11/25/2009)
494 MOTION to Dismiss − Motion By Plaintiff Mark VonPerbandt To Dismiss His Indiviual Claim Pursuant To Rule 41 − by Mark Von Perbandt. Responses due by 12/28/2009 (Wojcik, Lawrence) (Entered: 11/25/2009)
495 Exhibit List − Plaintiff Class's Due Process Witness And Exhibit List by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer.. (Wojcik, Lawrence) (Entered: 11/25/2009)
496 ORDER granting 494 Motion to Dismiss brought by Plaintiff Mark Von Perbandt. Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, Von Perbandt's claim of retaliation in violation of his First Amendment rights against Defendants Odie Washington and Michael O'Leary is dismissed with prejudice. Signed by Judge G. Patrick Murphy on 11/30/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/30/2009)
497 ORDER granting in part and denying in part 491 Motion for Miscellaneous Relief brought by Plaintiff Bennie Cunningham, who is proceeding pro se on his claim in this

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11/30/2009 11/30/2009 11/30/2009 11/30/2009 11/30/2009 11/30/2009 11/30/2009 12/02/2009 12/02/2009 12/03/2009 12/04/2009
12/04/2009

case that he was retaliated against by officers and employees of the Illinois Department of Corrections ("IDOC") for exercising his First Amendment rights. Cunningham's motion is granted insofar as it requests the last known address of Carmichael Morrison, which address is as follows: 6425 S. Washtenaw, 2d Floor, Chicago, IL 60629. The motion is denied to the extent that it requests the last known addresses of Defendants Jerry Gilmore and Michael O'Leary; however, the IDOC has agreed to ensure that Gilmore and O'Leary are present and available to testify at the trial on Cunningham's retaliation claim scheduled to begin December 7, 2009, at 8:00 a.m at the United States District Courthouse in Benton, Illinois, Judge G. Patrick Murphy presiding. Finally, Cunningham's motion, to the extent it requests appointment of counsel, is denied, as Cunningham has not made even the threshold showing of reasonable efforts to secure counsel without the Court's aid. See Westefer v. Snyder, No. 00−162−GPM, 2008 WL 131166, at *2 (S.D. Ill. Jan. 9, 2008). Signed by Judge G. Patrick Murphy on 11/30/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/30/2009)
498 Minute Entry for proceedings held before Judge G. Patrick Murphy: Day 2 of Jury Trial (GROUP FOUR) held on 11/30/2009. (Court Reporter Molly Clayton.) (lmm) (Entered: 12/01/2009)
499 Preliminary Jury Instructions given 11/30/2009. (lmm) (Entered: 12/01/2009)
500 Trial Exhibit List (GROUP FOUR) given 11/30/2009. (lmm) Modified on 12/1/2009 to correct filing date (lmm). (Entered: 12/01/2009)
501 STIPULATION FOR RELEASE OF TRIAL EXHIBITS (GROUP FOUR). (lmm) (Entered: 12/01/2009)
502 Final Jury Instructions (GROUP FOUR) given 11/30/2009. (lmm) (Entered: 12/01/2009)
503 JURY VERDICT FORM F. Verdict in favor of defendant Page and against plaintiffs Sparling & Clayton.(lmm) (Entered: 12/01/2009)
504 Minute Entry for proceedings held before Judge G. Patrick Murphy: Bench Trial held on 11/30/2009. (Court Reporter Molly Clayton.) (lmm) (Entered: 12/01/2009)
505 PRO SE MOTION to Amend Plaintiff's Witness and Exhibit List by Bennie Cunningham. (dka, ) (Entered: 12/02/2009)
506 MOTION to Quash Subpoena by Michael O'Leary. (Higgerson, Christopher) (Entered: 12/02/2009)
510 Minute Entry for proceedings held before Judge G. Patrick Murphy: Bench Trial held on 12/3/2009 at Pontiac Corr Ctr. (Court Reporter Molly Clayton.) (lmm) (Entered: 12/07/2009)
507 Transcript of BENCH TRIAL RE DUE PROCESS HEARING − DAY/VOLUME 5 held on 11/17/2009, before Judge G. Patrick Murphy. Court Reporter/Transcriber Molly Clayton, Telephone number 618.482.9226. <P> NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov.</P> Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/28/2009. Redacted Transcript Deadline set for 1/4/2010. Release of Transcript Restriction set for 3/4/2010. (mnc) (Entered: 12/04/2009)
508 ORDER granting 506 Motion to Quash Subpoena brought by Michael O'Leary. At the request of Plaintiff Bennie Cunningham, the Court has attempted to serve a trial subpoena on O'Leary, who is not a party to Cunningham's retaliation case, through counsel for Defendants Donald Snyder, Odie Washington, Michael V. Neal, Richard McVicar, George C. Welborn, Angela Winsor, Homer Markel, and Jack Hartwig. However, it appears that O'Leary is not amenable to service of the subpoena, and therefore the subpoena is quashed. Signed by Judge G. Patrick Murphy on 12/4/2009.

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12/04/2009
12/07/2009 12/07/2009 12/07/2009

(jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 12/04/2009)
509 ORDER granting in part and denying in part 505 Motion to Amend Witness and Exhibit List brought by Plaintiff Bennie Cunningham. Cunningham's request to amend his witness list to include John Barwick, the Supervisor of the Records Office at Tamms Correctional Center, as a foundation witness is denied, as the parties are willing to stipulate to the authenticity of certain documents, obviating the need for foundation testimony by Barwick. Cunningham's request to amend his exhibit list to include Cunningham v. Illinois, No. 99CC1542 (Ill. Ct. Cl.), is granted; issues about the admissibility of this exhibit in evidence remain open and will be resolved at trial. Signed by Judge G. Patrick Murphy on 12/4/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 12/04/2009)
511 Seventh Circuit Transcript Information Sheet filed by Corey A Taylor. (tkm ) (Entered: 12/07/2009)
512 MOTION for Leave to Appeal in forma pauperis by Corey A Taylor. (Attachments: # 1 Exhibit Trust Fund Statement)(tkm ) (Entered: 12/07/2009)
513 Transcript of BENCH TRIAL RE DUE PROCESS HEARING − DAY/VOLUME 6 held on 11/30/2009, before Judge G. Patrick Murphy. Court Reporter/Transcriber Molly Clayton, Telephone number 618.482.9226.

NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov.

12/07/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/28/2009. Redacted Transcript Deadline set for 1/7/2010. Release of Transcript Restriction set for 3/8/2010. (mnc) (Entered: 12/07/2009)
514 Transcript of BENCH TRIAL RE DUE PROCESS HEARING − DAY/VOLUME 7 held on 12/3/2009, before Judge G. Patrick Murphy. Court Reporter/Transcriber Molly Clayton, Telephone number 618.482.9226.

NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov.

12/07/2009 12/07/2009 12/08/2009
12/08/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/28/2009. Redacted Transcript Deadline set for 1/7/2010. Release of Transcript Restriction set for 3/8/2010. (mnc) (Entered: 12/07/2009)
515 Minute Entry for proceedings held before Judge G. Patrick Murphy: Day 1 of Jury Trial held on 12/7/2009 as to Bennie Cunningham. (Court Reporter Barb Kniepmann.) (lmm) (Entered: 12/07/2009)
516 Preliminary Jury Instructions given 12/7/2009. (lmm) (Entered: 12/08/2009)
517 Minute Entry for proceedings held before Judge G. Patrick Murphy: Day 2 of Jury Trial as to Bennie Cunningham completed on 12/8/2009. Oral motion for Judgment as a matter of law by defendants is GRANTED as to all defendants. Judgment in favor of defendants and against plaintiff. All exhibits returned to plaintiff. (Court Reporter Molly Clayton.) (lmm) (Entered: 12/08/2009)
518 STIPULATION FOR RELEASE OF TRIAL EXHIBITS as to Bennie Cunningham. After defendant's oral motion for judgment as a matter of law was granted, all exhibits

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12/09/2009
12/09/2009 12/09/2009
12/09/2009

were returned to plaintiff. (lmm) (Entered: 12/08/2009)
519 Minute Entry for proceedings held before Judge G. Patrick Murphy: Bench Trial held on 12/9/2009. Oral motion by plaintiffs for an additional 3 days to submit the Findings of Fact/Conclusions of Law is GRANTED. Both parties have until Noon on 12/16/2009 to submit Findings of Fact/Conclusions of Law. (Court Reporter Molly Clayton.) (lmm) (Entered: 12/09/2009)
520 Exhibit List for Bench Trial (Due Process Claim) held 12/9/2009. (lmm) (Entered: 12/09/2009)
521 ORDER denying 512 Motion to Proceed on Appeal in Forma Pauperis brought by Plaintiff Corey A. Taylor. The Court denies leave to appeal in forma pauperis at this time and pursuant to 28 U.S.C. § 1915(a)(3) certifies Taylor's appeal as not taken in good faith; see order for specifics. Signed by Judge G. Patrick Murphy on 12/9/2009. (jhs) (Entered: 12/09/2009)
522 Transcript of BENCH TRIAL RE DUE PROCESS HEARING − DAY/VOLUME 8 held on 12/9/2009, before Judge G. Patrick Murphy. Court Reporter/Transcriber Molly Clayton, Telephone number 618.482.9226.

NOTICE: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. This policy is located on our website at www.ilsd.uscourts.gov.

12/14/2009 12/16/2009
12/16/2009 12/16/2009 12/16/2009

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/30/2009. Redacted Transcript Deadline set for 1/11/2010. Release of Transcript Restriction set for 3/9/2010. (mnc) (Entered: 12/09/2009)
523 Letter to USCA−7 denying IFP Motion. (tkm ) (Entered: 12/14/2009)
524 MOTION − Plaintiffs' Motion To Substitute Deposition Transcript by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Attachments: # 1 Exhibit A − Part 1, # 2 Exhibit A − Part 2, # 3 Exhibit A − Part 3, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3)(Wojcik, Lawrence) (Entered: 12/16/2009)
525 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Wojcik, Lawrence) (Entered: 12/16/2009)
526 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Wojcik, Lawrence) (Entered: 12/16/2009)
527 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Jerry Gilmore, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson,

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12/16/2009
12/16/2009 12/21/2009 01/15/2010
01/15/2010 01/20/2010 01/25/2010 01/27/2010
02/22/2010 03/26/2010 04/15/2010 04/16/2010 07/20/2010

Christopher) (Entered: 12/16/2009)
528 EXHIBIT by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. Exhibit to 525 Proposed Findings of Fact and Conclusions of Law,, − Exhibit 1 & 2 To Plaintiffs' Proposed Findings Of Fact. (Attachments: # 1 Exhibit 1 − Part 2, # 2 Exhibit 2)(Wojcik, Lawrence) (Entered: 12/16/2009)
529 ORDER granting 524 Plaintiffs' Motion to Substitute Deposition Transcript. Plaintiffs are given leave to substitute the transcript of the deposition of Dr. Terry Kupers in the manner discussed in the said motion. Signed by Judge G. Patrick Murphy on 12/16/2009. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 12/16/2009)
530 MOTION for New Trial by Bennie Cunningham. Responses due by 1/25/2010 (car) (Entered: 12/21/2009)
531 ORDER granting 377 Motion for Partial Summary Judgment on Defendants' Affirmative Defenses of Exhaustion brought by Plaintiffs Mark Von Perbandt, Michael Sparling, Joseph Sorrentino, Vincente Rodriguez, Edward Rodriguez, William Lasley, Ted Knox, Eugene Horton, George Harper, Robert Felton, Kennard Combs, Mary Chapman as administrator of the estate of Marcus Chapman, and Roosevelt Burrell. Signed by Judge G. Patrick Murphy on 1/15/2010. (jhs) (Entered: 01/15/2010)
532 MANDATE of USCA as to 457 Notice of Appeal filed by Corey A Taylor (Attachments: # 1 PLRA F.R.A.P. 42(b) Final Order)(tkm ) (Entered: 01/15/2010)
533 RESPONSE in Opposition re 530 MOTION for New Trial filed by H Markel, Asst Dep Diret McVicar, Michael V Neal, Donald Snyder, Odie Washington, George C Welborn. (Higgerson, Christopher) (Entered: 01/20/2010)
534 ORDER denying 530 Motion for New Trial brought by Plaintiff Bennie Cunningham. Signed by Judge G. Patrick Murphy on 1/25/2010. (jhs) (Entered: 01/25/2010)
535 ORDER: Pursuant to the mandate of the United States Court of Appeals for the Seventh Circuit directing this Court to collect appellate filing fees from Plaintiff Corey A. Taylor's prisoner trust fund account pursuant to 28 U.S.C. § 1915(b), it is ordered that officials at the Tamms Correctional Center ("Tamms"), where Taylor is an inmate, shall promptly transmit to the chambers of District Judge G. Patrick Murphy a statement of Taylor's inmate trust account for the period from May 10, 2009, until November 10, 2009; the Clerk of Court shall mail a copy of the Court's order to the officials at Tamms responsible for maintaining records of inmate trust accounts. Signed by Judge G. Patrick Murphy on 1/27/2010. (jhs) (Entered: 01/27/2010)
536 Prisoner Trust Fund Account Statement as to Corey A Taylor. (car) (Entered: 02/23/2010)
537 ORDER: Pursuant to 28 U.S.C. § 1915(b)(1) Plaintiff Corey A. Taylor is assessed an initial partial filing fee of $16.66 toward the full $455 filing fee owed by Taylor for his recent attempt to appeal to the United States Court of Appeals for the Seventh Circuit; see order for specifics. Signed by Judge G. Patrick Murphy on 3/26/2010. (jhs) (Entered: 03/26/2010)
538 NOTICE of Change of Address by Bennie Cunningham. (djs, ) (Entered: 04/16/2010)
539 Pontiac Correctional Center added for transmission of electronic documents. (djs, ) (Entered: 04/16/2010)
540 FINDINGS OF FACT AND CONCLUSIONS OF LAW: On behalf of Plaintiffs Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, as the administrator of the estate of Marcus Chapman, Gary Clark, Leverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox,

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 84 of 96

07/20/2010 07/30/2010
08/03/2010
08/03/2010 08/03/2010 08/03/2010 08/03/2010 08/04/2010 08/04/2010 08/04/2010 08/04/2010 08/04/2010

William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer, and a class of all inmates in the custody of the Illinois Department of Corrections ("IDOC") who have been transferred to the closed maximum security prison ("supermax prison") at the Tamms Correctional Center ("Tamms") since January 1, 1998, and all inmates in the custody of the IDOC who will be transferred to the supermax prison at Tamms, the Court awards injunctive relief as outlined in the Court's order; the request of Plaintiffs and the class for declaratory relief is denied; see order for specifics. Signed by Judge G. Patrick Murphy on 7/20/2010. (jhs) (Entered: 07/20/2010)
541 JUDGMENT. Signed by Judge G. Patrick Murphy on 7/20/2010. (lmm) (Entered: 07/20/2010)
542 MOTION for Extension of Time to File Plaintiffs' Motion for Extension of Time to Submit Bill of Costs and Fee Petition by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Wojcik, Lawrence) (Entered: 07/30/2010)
543 ORDER granting 542 Motion for Extension of Time to Submit Bill of Costs and Fee Petition brought by Plaintiffs Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, as the administrator of the estate of Marcus Chapman, Gary Clark, Leverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, and Robert Westefer. Plaintiffs shall have up to and including October 3, 2010, to submit their bill of costs and petition for attorney's fees pursuant to 42 U.S.C. § 1988. Signed by Judge G. Patrick Murphy on 8/3/2010. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/03/2010)
544 BILL OF COSTS by Donald Snyder. (Higgerson, Christopher) (Entered: 08/03/2010)
545 BILL OF COSTS by Rodney Ahitow. (Higgerson, Christopher) (Entered: 08/03/2010)
546 BILL OF COSTS by Odie Washington. (Higgerson, Christopher) (Entered: 08/03/2010)
547 BILL OF COSTS by Michael V Neal. (Higgerson, Christopher) (Entered: 08/03/2010)
548 Notice re Taxation of Costs re 544 Bill of Costs: Action due by 8/18/2010. (lmb) (Entered: 08/04/2010)
549 Notice re Taxation of Costs re 545 Bill of Costs: Action due by 8/18/2010. (lmb) (Entered: 08/04/2010)
550 Notice re Taxation of Costs re 546 Bill of Costs: Action due by 8/18/2010. (lmb) (Entered: 08/04/2010)
551 Notice re Taxation of Costs re 547 Bill of Costs: Action due by 8/18/2010. (lmb) (Entered: 08/04/2010)
552 MOTION for Extension of Time to file objections to Bills of costs by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt. (Mills, Alan) (Entered: 08/04/2010)

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08/05/2010
08/16/2010 08/16/2010 08/19/2010
08/19/2010 08/20/2010 08/23/2010 08/23/2010 08/24/2010 08/24/2010 08/24/2010 09/03/2010 09/20/2010
09/29/2010 09/30/2010

553 ORDER granting 552 Motion for Extension of Time to File Objections to Defendants' Bills of Costs brought by Plaintiffs Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, as the administrator of the estate of Marcus Chapman, Gary Clark, Leverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, and Robert Westefer. Plaintiffs shall have up to and including October 4, 2010, to submit to the Court their objections to the bills of costs filed in this matter by Defendants Rodney Ahitow, Michael V. Neal, Donald Snyder, and Odie Washington. Signed by Judge G. Patrick Murphy on 8/5/2010. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/05/2010)
554 MOTION for Judgment as a Matter of Law Renewed, or in the Alternative, for a New Trial by Michael V Neal, Thomas Page. Responses due by 9/20/2010 (Higgerson, Christopher) (Entered: 08/16/2010)
555 MEMORANDUM in Support re 554 MOTION for Judgment as a Matter of Law Renewed, or in the Alternative, for a New Trial filed by Michael V Neal, Thomas Page. (Higgerson, Christopher) (Entered: 08/16/2010)
556 NOTICE OF APPEAL as to 541 Judgment by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Jerry Gilmore, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. Filing fee $ 455, receipt number 0754−1191405. (Higgerson, Christopher) (Entered: 08/19/2010)
558 Transmission of Short Record to US Court of Appeals re 556 Notice of Appeal. Appeal Record due to be prepared by 9/2/2010. (lmt) (Entered: 08/20/2010)
557 Circuit Rule 10 Letter to all parties regarding Notice of Appeal 556 . (lmt) (Entered: 08/20/2010)
559 USCA Case Number 10−2957 for 556 Notice of Appeal, filed by Thomas Page, Odie Washington, Eddie Jones, Jerry Gilmore, Dierdre Battaglia, Michael O'Leary, Donald Snyder, Roger Walker, Michael V Neal, Dwayne Clark, Roger Cowan, Don Hulick, Roger Zimmerman, George DeTella, Rodney Ahitow. (lmt) (Entered: 08/23/2010)
560 NOTICE OF APPEAL as to 540 Findings of Fact & Conclusions of Law by Corey A Taylor. (car) (Entered: 08/24/2010)
Transmission of Short Record to US Court of Appeals re 560 Notice of Appeal. Appeal Record due to be prepared by 9/7/2010. (car) (Entered: 08/24/2010)
561 Circuit Rule 10 Letter as to Plaintiff Corey Taylor (car) (Entered: 08/24/2010)
562 USCA−7 PLRA FEE NOTICE & ORDER on 8/24/2010. (tkm ) (Entered: 08/24/2010)
563 MOTION to Stay re 541 Judgment Pending Post−Trial Motion and Appeal with Supporting Brief by Michael V Neal, Thomas Page. (Higgerson, Christopher) (Entered: 09/03/2010)
564 MEMORANDUM in Opposition re 554 MOTION for Judgment as a Matter of Law Renewed, or in the Alternative, for a New Trial − Plaintiffs' Memorandum Of Law In Opposition To Defendants' Renewed Motion For Judgment As A Matter Of Law, Or In The Alternative, For A New Trial − filed by Aryules Bivens, Roosevelt Burrell, Ted Knox, Joe Sorrentino. (Wojcik, Lawrence) (Entered: 09/20/2010)
565 NOTICE of Change of Address by Bennie Cunningham. (lmt) (Entered: 09/29/2010)
566 ORDER: The purpose of this Order is to give the parties to this case notice that the Court is considering the appointment of a special master to determine the attorneys' fees and costs to be awarded pursuant to 42 U.S.C. § 1988(b) in this case. See Fed. R. Civ. P. 53(b)(1) ("Before appointing a master, the court must give the parties notice and an opportunity to be heard."). See also In re Continental Ill. Sec. Litig., 962 F.2d 566, 573 (7th Cir. 1992) (noting that "[t]he appointment of a special master to advise the court is... frequent[ ] in fee matters" in complex litigation); 9C Charles Alan

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 86 of 96

10/04/2010 10/04/2010 10/04/2010 10/04/2010 10/04/2010

Wright & Arthur R. Miller, Federal Practice and Procedure § 2602 (3d ed. 1998 & Supp. 2010) ("[F]ederal courts... may designate special masters to help determine the amount of or allocate attorneys' fees, litigation expenses, and court costs in complex cases.") (collecting cases). The parties shall have twenty (20) days from the date of entry of this Order to advise the Court of their views on the propriety of appointing a special master in this case. The Court would appreciate any assistance the parties can furnish it regarding the terms of an order appointing a special master in this case, in particular: the master's duties, including any investigation or enforcement duties, and any limits on the master's authority; the circumstances, if any, in which the master may communicate ex parte with the Court or a party; the nature of the materials to be preserved and filed as the record of the master's activities; the time limits, method of filing the record, other procedures, and standards for reviewing the master's orders, findings, and recommendations; and the basis, terms, and procedure for fixing the master's compensation. See Fed. R. Civ. P. 53(b)(2)(A)−(E). Counsel for the parties should confer as necessary to arrive at the terms of an order appointing a special master that is agreeable to all sides in this case. The parties' submissions should not exceed twenty−five (25) pages in length. Signed by Judge G. Patrick Murphy on 9/30/2010. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/30/2010)
Record on Appeal Prepared re 556 Notice of Appeal. Record consists of the following: 3 volumes of paper pleadings, 2 volumes of paper transcripts, and 4 file folders of loose exhibits, as well as, 8 volumes of pleadings, 2 sealed documents, and 1 volume of transcripts all saved on Q drive under "Records on Appeal over 10 mb", as well as 2 volumes of pleadings, and 1 volume of transcripts from consolidated case 00−708 also saved on Q drive under district court case number. (lmt) (Entered: 10/04/2010)
567 RESPONSE to 563 Motion to Stay filed by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Milton Smith, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Attachments: # 1 Affidavit of Belinda Belcher)(Wojcik, Lawrence) (Entered: 10/04/2010)
568 OBJECTION to 546 Bill of Costs, 545 Bill of Costs, 544 Bill of Costs, 547 Bill of Costs by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, H Markel, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer − Plaintiffs' Objections To Defendants' Bills Of Costs −. (Wojcik, Lawrence) (Entered: 10/04/2010)
569 MOTION for Attorney Fees − Plaintiffs' Motion For Award Of Attorneys' Fees And Costs − by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Wojcik, Lawrence) (Entered: 10/04/2010)
570 MEMORANDUM in Support re 569 MOTION for Attorney Fees − Plaintiffs' Motion For Award Of Attorneys' Fees And Costs − filed by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3 − Part 1, # 4 Exhibit 3 − Part 2, # 5 Exhibit 3 − Part 3, # 6 Exhibit 4, # 7 Exhibit 5)(Wojcik, Lawrence) (Entered: 10/04/2010)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 87 of 96

10/04/2010
10/04/2010 10/06/2010 10/06/2010 10/11/2010
10/12/2010 10/12/2010
10/12/2010 10/12/2010 10/12/2010 10/13/2010
10/15/2010

571 BILL OF COSTS by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Wojcik, Lawrence) (Entered: 10/04/2010)
572 Notice re Taxation of Costs: Action due by 10/18/2010. (lmt) (Entered: 10/05/2010)
573 NOTICE OF ERRORS AND/OR DEFICIENCIES re 567 Response. See attached document for specifics. (lmt) (Entered: 10/06/2010)
574 Docket Annotation−−Pontiac Correctional Center removed from case to receive electronic transmission of documents pursuant to e−mail notification from Pontiac that plaintiff Bennie Cunningham has been transferred to Menard. (djs, ) (Entered: 10/06/2010)
575 MOTION to Amend/Correct 571 Bill of Costs,, − Plaintiffs' Motion To File An Amended Taxable Bill of Costs − by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Attachments: # 1 Exhibit A − Amended Bill of Costs, # 2 Exhibit 1 − To Amended Bill of Costs, # 3 Exhibit 2 − To Amended Bill of Costs, # 4 Exhibit 3 − To Amended Bill of Costs)(Wojcik, Lawrence) (Entered: 10/11/2010)
576 ORDER granting 575 Motion for Leave to File Amended Bill of Costs. The prevailing Plaintiffs shall file their amended bill of costs not later than Wednesday, October 13, 2010, at 12:00 noon. Signed by Judge G. Patrick Murphy on 10/12/2010. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/12/2010)
577 BILL OF COSTS − Amended Bill of Costs − [Re: 576] Order Granting Motion For Leave To File Amended Bill of Costs by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Wojcik, Lawrence) (Entered: 10/12/2010)
578 ORDER denying 554 Motion for Judgment as a Matter of Law, or in the Alternative, for a New Trial; see attached order for specifics. Signed by Judge G. Patrick Murphy on 10/12/2010. (jhs) (Entered: 10/12/2010)
579 ORDER denying 563 Motion for Stay of Judgment; see attached order for specifics. Signed by Judge G. Patrick Murphy on 10/12/2010. (jhs) (Entered: 10/12/2010)
580 Notice re Taxation of Costs: Action due by 10/26/2010. (lmt) (Entered: 10/13/2010)
581 NOTICE OF ERRORS AND/OR DEFICIENCIES re 575 Motion to Amend/Correct, filed by George Harper, Larry Foutch, Mary Chapman, Larry Gambrell, Aryules Bivens, John Gill, Larry Brown, Anibal Santiago, Mark Von Perbandt, Vincent Reyna, Edward Rodriguez, Joe Sorrentino, Michael Johnson, Tyshawn Ross, Laverne Clayton, Timothy Hall, Vincente Rodriguez, William Lasley, Alejandro Villazana, Eugene Horton, Ted Knox, Kennard Combs, Finner Bryant, Michael Sparling, Maurice Coleman, Armando Tinajero, Gary Clark, Robert Westefer, Roosevelt Burrell, Alex Muller, Robert Felton. See attached document for specifics (lmb) (Entered: 10/13/2010)
582 MANDATE of USCA (certified copy) as to 560 Notice of Appeal filed by Corey A Taylor (Attachments: # 1 PLRA C.R. 3(b) Final Order)(slj) (Entered: 10/15/2010)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 88 of 96

10/15/2010 10/18/2010
10/20/2010 10/20/2010 10/21/2010 11/08/2010 11/08/2010 11/12/2010 11/17/2010

583 MOTION for Extension of Time to File Response/Reply as to 570 Memorandum in Support of Motion,,, 569 MOTION for Attorney Fees − Plaintiffs' Motion For Award Of Attorneys' Fees And Costs −, 577 Bill of Costs,, by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson, Christopher) (Entered: 10/15/2010)
584 ORDER granting 583 Motion for Enlargement of Time in Which to Respond to Plaintiffs' Petition for Fees and Bill of Costs brought by Defendants Donald Snyder, Odie Washington, Michael V. Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Roger Cowan, Rodney Ahitow, Roger Walker, Roger Zimmerman, Don Hulick, Deidre Battaglia, and Eddie Jones. Defendants shall have up to and including November 8, 2010, to respond to the petition for attorneys' fees and bill of costs filed by Plaintiffs Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, as the administrator of the estate of Marcus Chapman, Gary Clark, Leverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, and Robert Westefer. Signed by Judge G. Patrick Murphy on 10/18/2010. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 10/18/2010)
585 RESPONSE to 566 Order re: Special Master filed by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Attachments: # 1 Exhibit Proposed Order of Referral)(Mills, Alan) (Entered: 10/20/2010)
586 RESPONSE to 566 Order filed by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson, Christopher) (Entered: 10/20/2010)
587 NOTICE OF ERRORS AND/OR DEFICIENCIES re 585 Response. See attached document for specifics. (lmt) (Entered: 10/21/2010)
588 RESPONSE to Motion re 569 MOTION for Attorney Fees − Plaintiffs' Motion For Award Of Attorneys' Fees And Costs − filed by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson, Christopher) (Entered: 11/08/2010)
589 MEMORANDUM in Opposition re 569 MOTION for Attorney Fees − Plaintiffs' Motion For Award Of Attorneys' Fees And Costs − filed by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Attachments: # 1 Exhibit A)(Higgerson, Christopher) (Entered: 11/08/2010)
590 NOTICE of Hearing: In−Court Hearing set for 12/6/2010 at 01:30 PM in EAST ST. LOUIS Courthouse before Judge G. Patrick Murphy. The subject of the hearing will be whether the Court should appoint a special master to handle the Plaintiffs petition for attorneys fees and costs and, if so, on what terms the master should be appointed. Only Counsel for the parties need appear.(lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/12/2010)
591 Oral MOTION for Extension of Time to file reply in support of motion for fees by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 89 of 96

11/17/2010
11/17/2010 12/01/2010 12/02/2010
12/02/2010 12/02/2010 12/06/2010

Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Mills, Alan) (Entered: 11/17/2010)
592 ORDER granting 591 Motion for Extension of Time brought by Plaintiffs Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, as the administrator of the estate of Marcus Chapman, Gary Clark, Leverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, and Robert Westefer. Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure, Plaintiffs shall have up to and including December 1, 2010, to file their reply brief in support of 569 Plaintiffs' Motion for Award of Attorneys' Fees and Costs. Signed by Judge G. Patrick Murphy on 11/17/2010. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 11/17/2010)
Set/Reset Deadlines as to 569 MOTION for Attorney Fees − Plaintiffs' Motion For Award Of Attorneys' Fees And Costs. Replies due by 12/1/2010. (lmt) (Entered: 11/18/2010)
593 MOTION for Leave to File Excess Pages − Plaintiffs' Motion For Leave To File Reply Brief In Excess Of 5 Pages − by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Wojcik, Lawrence) (Entered: 12/01/2010)
594 ORDER granting 593 Motion for Leave to File Reply Brief in Excess of 5 Pages brought by Plaintiffs Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, as the administrator of the estate of Marcus Chapman, Gary Clark, Leverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, and Robert Westefer and the certified class. Plaintiffs are given leave to file a reply brief in support of their petition for attorneys' fees and costs that is twenty (20) pages in length. Signed by Judge G. Patrick Murphy on 12/2/2010. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 12/02/2010)
595 MEMORANDUM in Support re 569 MOTION for Attorney Fees − Plaintiffs' Motion For Award Of Attorneys' Fees And Costs − − Plaintiffs' Reply Brief In Support Of Motion For Award Of Attorneys' Fees − filed by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Attachments: # 1 Exhibit A − Declaration of Lawrence A. Wojcik)(Wojcik, Lawrence) (Entered: 12/02/2010)
596 Objection to Order 566 construed as MOTION to Intervene by Milton Smith. (Attachments: # 1 Complaint from case 07−340−MJR)(lmt) (Entered: 12/02/2010)
597 Minute Entry for proceedings held before Judge G. Patrick Murphy: In−Court Hearing held on 12/6/2010. The court took the positions of the parties, in addition to the papers already filed, and announced it would appoint Gerald Ortbals as special master, after he files the requisite affidavit. The parties will cooperate with the special master for this purpose. A detailed written Order will follow. (Court Reporter Molly Clayton.) (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 90 of 96

12/09/2010
01/01/2011
01/15/2011 01/25/2011 01/27/2011 02/03/2011 02/10/2011 02/11/2011 02/15/2011
02/15/2011
02/23/2011 02/23/2011 02/25/2011

DOCUMENTATION WILL BE MAILED. (Entered: 12/06/2010)
598 RESPONSE in Opposition re 596 MOTION to Intervene filed by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson, Christopher) (Entered: 12/09/2010)
599 ORDER denying 596 Motion to Intervene brought by Milton Smith. It is ORDERED that the Clerk of Court shall submit any further papers that Milton Smith, IDOC Register No. A81091, may attempt to file in these proceedings to United States District Judge G. Patrick Murphy for preliminary review before the papers can be filed; if the papers are determined by District Judge Murphy to be an attempt by Smith to press his claims in Smith v. Walker, Civil No. 07−340−MJR (S.D. Ill. dismissed Aug. 15, 2007), in these proceedings, or otherwise are frivolous or vexatious, the Clerk of Court shall return the papers to Smith unfiled; this filing restriction on Smith does not extend to a notice of appeal from this Order; see attached order for further details. Signed by Judge G. Patrick Murphy on 1/1/2011. (jhs) (Entered: 01/01/2011)
600 Docket Annotation − Tamms Correctional Center added for transmission of electronic documents. (myz) (Entered: 01/15/2011)
601 STRICKEN PER ORDER AT DOC 610 − MOTION/PETITION to Intervene by Maurice Wallace. (lmt) Modified on 2/28/2011 (lmt). (Entered: 01/26/2011)
602 ENTRY STRICKEN PER ORDER AT DOC 610 − MOTION for Temporary Restraining Order and Memorandum in Support filed by Maurice Wallace. (lmt) Modified on 2/28/2011 (lmt). (Entered: 01/27/2011)
603 MOTION to Strike 601 MOTION to Intervene by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson, Christopher) (Entered: 02/03/2011)
604 RESPONSE in Opposition re 603 MOTION to Strike by Maurice Wallace. (lmt) (Entered: 02/10/2011)
605 AFFIDAVIT of Gerald R. Ortbals. (slj) (Entered: 02/11/2011)
606 ORDER APPOINTING SPECIAL MASTER: The Court appoints attorney Gerald R. Ortbals of the firm of Bryan Cave, LLP, St. Louis, Missouri, as Special Master in this case to determine the attorneys' fees and costs to be awarded pursuant to 42 U.S.C. § 1988(b) in this case; see attached order for details. Signed by Judge G. Patrick Murphy on 2/15/2011. (jhs) (Entered: 02/15/2011)
607 MOTION to Strike 602 MOTION for Temporary Restraining Order by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson, Christopher) (Entered: 02/15/2011)
608 RESPONSE in Opposition re 607 MOTION to Strike 602 MOTION for Temporary Restraining Order by Maurice Wallace. (lmt) (Entered: 02/23/2011)
609 NOTICE of Appearance by Gerald R. Ortbals as Special Master. (Ortbals, Gerald) (Entered: 02/23/2011)
610 ORDER granting 603 Motion to Strike and 607 Motion to Strike brought by Defendants Donald Snyder, Odie Washington, Michael V. Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Roger Cowan, Rodney Ahitow, Roger Walker, Roger Zimmerman, Don Hulick, Deidre Battaglia, and Eddie Jones. It is hereby ORDERED that 601 Motion to Intervene and 602 Motion for a Temporary Restraining Order brought by Maurice Wallace, a member of the certified class in this case, are STRICKEN from the record of this case. Maurice Wallace, IDOC # R10764, is advised that the denial of his motion to intervene will count as one of his three allotted "strikes" under 28 U.S.C. § 1915(g). It is further ORDERED that henceforth the Clerk of Court shall submit any further papers that Wallace may attempt to file in this case to United States District Judge G. Patrick Murphy for preliminary review

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 91 of 96

07/01/2011 07/20/2011 07/27/2011 07/29/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/01/2011 08/02/2011
08/17/2011
08/17/2011
08/30/2011 09/09/2011
05/14/2012

before the papers can be filed. If the papers are determined by District Judge Murphy or his staff to be irrelevant to the matters at issue in this case, or if the papers otherwise are frivolous or vexatious, the Clerk of Court shall return the papers to Wallace unfiled. This filing restriction on Wallace does not extend to a notice of appeal from this Order. Signed by Judge G. Patrick Murphy on 2/25/2011. (jhs) (Entered: 02/25/2011)
611 Statement of Account of Special Master. (drb) (Entered: 07/01/2011)
612 MOTION for Relief under Federal Rule of Civil Procedure 60(b) to Order Defendants to Expunge from Plaintiff's IDOC Records that he was Placed at Tamms CMAX for Punitive Purposes by Joe Sorrentino. (dka, ) (Entered: 07/21/2011)
613 Request from USCA to transmit Record on Appeal re 556 Notice of Appeal. (lmt) (Entered: 07/28/2011)
614 Certified and Transmitted Record on Appeal to US Court of Appeals re 556 Notice of Appeal. (lmt) (Entered: 07/29/2011)
615 Acknowledgment of receipt of Record on Appeal by USCA 7 re 556 Notice of Appeal. Contents of record: 15 vol. of pleadings and 2 sealed documents. (slj) (Entered: 08/01/2011)
616 Acknowledgment of receipt of transcript of proceedings held on 11−3−09 by USCA 7 re 556 Notice of Appeal. (slj) (Entered: 08/01/2011)
617 Acknowledgment of receipt of transcript of proceedings held on 8−15−05 by USCA 7 re 556 Notice of Appeal. (slj) (Entered: 08/01/2011)
618 Acknowledgment of receipt of Record on Appeal by USCA 7 re 556 Notice of Appeal. Contents of record: 2 vol. of pleadings. (slj) (Entered: 08/01/2011)
619 Acknowledgment of receipt of Record on Appeal by USCA 7 re 556 Notice of Appeal. (drb) (Entered: 08/01/2011)
620 MOTION to Strike 612 Plaintiff Sorrentino's Motion for Relief by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson, Christopher) Modified on 8/3/2011 (lmt). (Entered: 08/02/2011)
621 MOTION to Withdraw 612 MOTION for Relief under Federal Rule of Civil Procedure 60(b) to Order Defendants to Expunge from Plaintiff's IDOC Records that he was Placed at Tamms CMAX for Punitive Purposes by Joe Sorrentino. (jdh) (Entered: 08/17/2011)
622 MOTION for Order to Pay Special Master's Invoice by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson, Christopher) (Entered: 08/17/2011)
623 ORDER granting 622 Motion for Order. Signed by Judge G. Patrick Murphy on 8/30/2011. (ktc) (Entered: 08/30/2011)
624 ORDER granting 621 Motion to Withdraw 612 Motion for Relief Pursuant to Rule 60 of the Federal Rules of Civil Procedure brought by Plaintiff Joseph Sorrentino. Sorrentino's motion for Rule 60 relief is deemed by the Court to be withdrawn and therefore is DENIED. The Court DENIES as moot 620 Motion to Strike Motion for Rule 60 Relief brought by Defendants Donald Snyder, Odie Washington, Michael V. Neal, George DeTella, Michael O'Leary, Thomas Page, Dwayne Clark, Roger Cowan, Rodney Ahitow, Roger Walker, Roger Zimmerman, Don Hulick, Deidre Battaglia, and Eddie Jones. Signed by Judge G. Patrick Murphy on 9/9/2011. (jhs) THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 09/09/2011)
625 Letter from Maurice Wallace requesting copies of documents (jlrr) (Entered: 05/14/2012)

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06/28/2012 06/29/2012 07/02/2012
07/10/2012 07/16/2012 07/16/2012 07/16/2012 07/16/2012
07/20/2012

626 MANDATE of USCA as to 556 Notice of Appeal. The District Court's injunction is vacated and case is remanded with instructions to enter an injunction consistent with the opinion. (Attachments: # 1 Certified Judgment, # 2 Certified Opinion) (slj) (Entered: 06/28/2012)
627 Appeal Record Returned from USCA−7 (jlrr ) (Entered: 06/29/2012)
628 MOTION For Entry of Injunctive Relief − by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Wojcik, Lawrence) (Entered: 07/02/2012)
Notice of Hearing on 628 Plaintiffs' motion for entry of injunctive relief and for status conference: The hearing on Plaintiffs' motion for entry of injunctive relief 628 and status conference is SET for 7/20/2012 09:30 AM in East St. Louis Courthouse before Judge G. Patrick Murphy. (mab) (Entered: 07/10/2012)
629 RESPONSE to Motion re 628 MOTION For Entry of Injunctive Relief − filed by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson, Christopher) (Entered: 07/16/2012)
630 MOTION for Summary Judgment on the Issue of Mootness by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. Responses due by 8/20/2012 (Higgerson, Christopher) (Entered: 07/16/2012)
631 MEMORANDUM in Support re 630 MOTION for Summary Judgment on the Issue of Mootness filed by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Attachments: # 1 Affidavit of Gleckler, # 2 Affidavit of Barwick)(Higgerson, Christopher) (Entered: 07/16/2012)
632 ORDER: This case is set for hearing on Plaintiffs' motion for injunctive relief (Doc. 628) and for status conference on 7/20/2012 at 9:30 a.m. Each party is hereby ORDERED to bring a proposed injunctive order to the hearing on 7/20/2012. Each party's proposed injunctive order must comport with the Seventh Circuit Court of Appeals Mandate in this case (See Doc. 626). The Court will not consider Defendants' submission of a proposed order to be a waiver of Defendants' mootness argument. Signed by Judge G. Patrick Murphy on 7/16/2012. (mab)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/16/2012)
633 Minute Entry for proceedings held before Judge G. Patrick Murphy: Motion Hearing held on 7/20/2012. GRANTING 628 MOTION For Entry of Injunctive Relief − filed by George Harper, Larry Foutch, Mary Chapman, Larry Gambrell, Aryules Bivens, John Gill, Larry Brown, Anibal Santiago, Mark Von Perbandt, Vincent Reyna, Edward Rodriguez, Joe Sorrentino, Michael Johnson, Tyshawn Ross, Laverne Clayton, Timothy Hall, Vincente Rodriguez, William Lasley, Alejandro Villazana, Eugene Horton, Ted Knox, Kennard Combs, Finner Bryant, Michael Sparling, Maurice Coleman, Armando Tinajero, Gary Clark, Robert Westefer, Roosevelt Burrell, Alex Muller, Robert Felton. DENYING 630 MOTION for Summary Judgment on the Issue of Mootness filed by Odie Washington, Eddie Jones, Dierdre Battaglia, Donald Snyder, Michael V Neal, Roger Cowan, Roger Zimmerman, Thomas Page, Michael O'Leary, Roger Walker, Dwayne Clark, Don Hulick, George DeTella, Rodney Ahitow. Written Order to follow. (Court Reporter Molly Clayton.) (lmm)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 07/20/2012)

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07/20/2012 08/03/2012 08/17/2012
10/15/2012
11/14/2012 11/14/2012
11/15/2012 11/15/2012 11/15/2012 11/15/2012 11/27/2012 01/10/2013 01/10/2013 02/08/2013 02/08/2013

634 ORDER GRANTING Plaintiff's motion for entry of injunctive relief 628 . Signed by Judge G. Patrick Murphy on 7/20/2012. (mab) (Entered: 07/20/2012)
635 RESPONSE to 634 Order of July 20, 2012 filed by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson, Christopher) (Entered: 08/03/2012)
636 OBJECTION to 635 Response, by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer − Plaintiffs' Objection To Defendants' Proposed Remedial Plan −. (Attachments: # 1 Exhibit A)(Wojcik, Lawrence) (Entered: 08/17/2012)
637 VACATED PER ORDER AT DOC. 655 & 658 − ORDER: This matter is before the Court following remand of this case from the United States Court of Appeals for the Seventh Circuit. See Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012); [Doc. 626]. The Court ADOPTS Defendants' proposed remedial plan [Doc. 635] in full as the appropriate grant of equitable relief necessary to correct the violation of the Fourteenth Amendment due process rights of IDOC inmates placed at Tamms and fully articulated by this Court in its July 20, 2010 Order [See Doc. 540]. Signed by Judge G. Patrick Murphy on 10/15/2012. (mab) Modified on 3/28/2013 (cekf). Modified on 4/9/2013 (drb). (Entered: 10/15/2012)
638 NOTICE OF APPEAL as to 637 Order,, 634 Order by Salvador Godinez. Filing fee $ 455, receipt number 0754−1829219. (Higgerson, Christopher) (Entered: 11/14/2012)
639 MOTION for Extension of Time To Object To Special Master Report − UNOPPOSED − by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Wojcik, Lawrence) (Entered: 11/14/2012)
640 Transmission of Short Record to US Court of Appeals re 638 Notice of Appeal Appeal Record due to be prepared by 11/29/2012. (cekf) (Entered: 11/15/2012)
641 Circuit Rule 10 Letter (cekf) (Entered: 11/15/2012)
642 USCA Case Number 12−3608 for 638 Notice of Appeal filed by Salvador Godinez. (drb) (Entered: 11/15/2012)
643 ORDER granting 639 Motion for Extension of Time. Signed by Judge G. Patrick Murphy on 11/15/2012. (mab) (Entered: 11/15/2012)
Record on Appeal Prepared re 638 Notice of Appeal. (jlrr ) (Entered: 11/27/2012)
644 ORDER updating address information as to plaintiff Corey A. Taylor to Pontiac Correctional Center. Signed by Judge G. Patrick Murphy on 1/10/2013. (myz) (Entered: 01/10/2013)
645 Docket Annotation − Pontiac Correctional Center added for transmission of electronic documents. Notice turned off as to Tamms Correctional Center. (myz) (Entered: 01/10/2013)
646 MOTION to Vacate Injunction by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Higgerson, Christopher) (Entered: 02/08/2013)
647 MEMORANDUM in Support re 646 MOTION to Vacate Injunction filed by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder,

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 94 of 96

03/04/2013 03/04/2013
03/06/2013 03/19/2013
03/20/2013 03/24/2013
03/25/2013 03/27/2013 03/27/2013 04/03/2013

Roger Walker, Odie Washington, Roger Zimmerman. (Attachments: # 1 Affidavit Greg Lambert)(Higgerson, Christopher) (Entered: 02/08/2013)
648 RESPONSE Special Masters Response to Plaintiff's Objections filed by Gerald R. Ortbals. (Ortbals, Gerald) (Entered: 03/04/2013)
649 MEMORANDUM in Opposition re 646 MOTION to Vacate Injunction filed by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Ronnie W Carroll, Marcus Chapman, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Attachments: # 1 Exhibit Exhibit Two, # 2 Exhibit Exhibit One)(Mills, Alan) (Entered: 03/04/2013)
650 RESPONSE Special Master's Report and Revised (corrected) Response to Plaintiffs' Objections filed by Gerald R. Ortbals. (Ortbals, Gerald) (Entered: 03/06/2013)
651 MOTION for Extension of Time To Object To Special Master Report (Unopposed) − by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Milton Smith, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. (Wojcik, Lawrence) (Entered: 03/19/2013)
652 ORDER denying 651 motion for extension of time to object to the Special Master Report. Plaintiffs' objections to the Special Master's Report must be submitted on or before 4:30 p.m., March 24, 2013. Although the Court's previous Order outlined a ten day time for objections or replies, this time frame is hereby amended. Defendants' response, if any, to Plaintiffs' objections must be submitted on or before 12:00 p.m., noon, March 25, 2013. No reply briefs will be permitted by the Court. Signed by Judge G. Patrick Murphy on 3/20/2013. (mab) (Entered: 03/20/2013)
653 OBJECTION to 650 Response, 648 Response by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer . (Attachments: # 1 Exhibit One, # 2 Exhibit Two, # 3 Exhibit Three)(Mills, Alan) (Entered: 03/24/2013)
654 RESPONSE to 653 Objection,, filed by Rodney Ahitow, Dierdre Battaglia, Dwayne Clark, Roger Cowan, George DeTella, Don Hulick, Eddie Jones, Michael V Neal, Michael O'Leary, Thomas Page, Donald Snyder, Roger Walker, Odie Washington, Roger Zimmerman. (Attachments: # 1 Affidavit of Greg Lambert)(Higgerson, Christopher) (Entered: 03/25/2013)
655 ORDER: Defendants' motion to vacate this Court's previous Injunction 646 is GRANTED. The Clerk of the Court is DIRECTED to VACATE this Court's previous Order at Document 637. The Court ADOPTS the Special Master's Report and Response and the recommendations contained therein regarding Plaintiffs' motion for attorneys' fees 569 . Judgment shall enter separately. Signed by Judge G. Patrick Murphy on 3/27/2013. (mab) (Entered: 03/27/2013)
656 JUDGMENT: Defendants' motion to vacate the Court's Injunction is GRANTED. IT IS ORDERED that the Court's Injunction, contained at Document 637 is hereby VACATED. Plaintiffs' counsel shall be awarded fees and costs as outlined in the Court's Memorandum and Order 655 and the Judgement contained herein. Signed by Judge G. Patrick Murphy on 3/27/2013. (mab) (Entered: 03/27/2013)
657 MANDATE of USCA as to 638 Notice of Appeal filed by Salvador Godinez (Attachments: # 1 Final Order)(jlrr ) (Entered: 04/03/2013)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 95 of 96

04/09/2013
04/09/2013 04/26/2013
04/26/2013
04/30/2013 04/30/2013 04/30/2013
05/09/2013 05/13/2013 07/15/2013 08/01/2013

658 ORDER re 657 USCA Mandate: For all of the reasons stated in the Court's March 27th Order [Doc. 655 ] the Court's previous Injunction contained in Document 637 is VACATED. To the extent the Court lacked jurisdiction to pass on Plaintiffs' motion for attorneys' fees and costs [Doc. 569 ], the Court ADOPTS in full its Order at Document 655 on the issue of attorneys' fees and costs. Signed by Judge G. Patrick Murphy on 4/9/2013. (mab) (Entered: 04/09/2013)
659 AMENDED JUDGMENT: Defendants' motion to vacate the Court's Injunction is GRANTED. IT IS ORDERED that the Court's Injunction, contained at Document 637 is hereby VACATED. Plaintiffs' counsel shall be awarded fees and costs as outlined in the Court's Memorandum and Order 655 and the judgment contained herein. Signed by Judge G. Patrick Murphy on 4/9/2012. (MAB) (Entered: 04/09/2013)
660 NOTICE OF APPEAL as to 658 Order, 656 Judgment, 659 Order, 655 Order, Terminate Motions,, by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer. Filing fee $ 455, receipt number 0754−1955914. (Shah, Raj) (Entered: 04/26/2013)
661 DOCKETING STATEMENT by Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, Gary Clark, Laverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer re 660 Notice of Appeal,, (Shah, Raj) (Entered: 04/26/2013)
662 Transmission of Short Record to US Court of Appeals re 660 Notice of Appeal. (drb) (Entered: 04/30/2013)
663 Rule 10 Letter. Appeal Record due to be prepared by 5/10/2013. (drb) (Entered: 04/30/2013)
664 USCA Case Number 13−1918 for 660 Notice of Appeal,, filed by George Harper, Larry Foutch, Mary Chapman, Larry Gambrell, Aryules Bivens, John Gill, Larry Brown, Anibal Santiago, Mark Von Perbandt, Vincent Reyna, Edward Rodriguez, Joe Sorrentino, Michael Johnson, Tyshawn Ross, Laverne Clayton, Timothy Hall, Vincente Rodriguez, William Lasley, Alejandro Villazana, Eugene Horton, Ted Knox, Kennard Combs, Finner Bryant, Michael Sparling, Maurice Coleman, Armando Tinajero, Gary Clark, Robert Westefer, Roosevelt Burrell, Alex Muller, Robert Felton. (Attachments: # 1 Notice of Case Opening)(cds) (Entered: 04/30/2013)
Record on Appeal Prepared re 660 Notice of Appeal. (drb) (Entered: 05/09/2013)
665 TRANSCRIPT INFORMATION SHEET by Attorney/Pro Se Party (Shah, Raj) (Entered: 05/13/2013)
666 MOTION for Status by Ted Knox. (jlrr ) (Entered: 07/15/2013)
667 ORDER: Plaintiff, Ted Knox, has filed a motion requesting a status print out sheet for this case 666 . The Court construes this as a request for a copy of the docket sheet. This case spans nearly thirteen years and the docket sheet is extremely long. Plaintiff has not tendered to the Court the necessary fee for copies. As a general rule, the District Clerk will mail paper copies of any document to a party only upon prepayment of the required fee. According to 28 U.S.C. § 1914(b), the clerk shall collect from the parties such additional fees only as are prescribed by the Judicial Conference of the United States. The Judicial Conference Schedule of Fees section (4) provides that a fee of $.50 per page shall apply for reproducing any record or paper. The Court is under no obligation to furnish free photocopies to indigent litigants. Accordingly, Plaintiff's motion 666 is DENIED. Signed by Judge G. Patrick Murphy on 8/1/2013. (mab)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 08/01/2013)

Case: 3:00-cv-162 As of: 03/19/2019 01:02 PM CDT 96 of 96

03/08/2016
06/22/2016 06/27/2016 08/21/2017

668 MANDATE of USCA as to 660 Notice of Appeal,, filed by George Harper, Larry Foutch, Mary Chapman, Larry Gambrell, Aryules Bivens, John Gill, Larry Brown, Anibal Santiago, Mark Von Perbandt, Vincent Reyna, Edward Rodriguez, Joe Sorrentino, Michael Johnson, Tyshawn Ross, Laverne Clayton, Timothy Hall, Vincente Rodriguez, William Lasley, Alejandro Villazana, Eugene Horton, Ted Knox, Kennard Combs, Finner Bryant, Michael Sparling, Maurice Coleman, Armando Tinajero, Gary Clark, Robert Westefer, Roosevelt Burrell, Alex Muller, Robert Felton. Case dismissed. (Attachments: # 1 Final Order − Certified)(mar) (Entered: 03/08/2016)
669 Letter to Attorney Alan Mills regarding return of exhibits. Notice is hereby given to you pursuant to Local Rule 79.1(b) that these exhibits may be destroyed or otherwise disposed of unless arrangements are made within 30 days to remove these exhibits from the clerks office.(mar) (Entered: 06/22/2016)
670 ACKNOWLEDGEMENT OF RECEIPT OF EXHIBITS. (mar) (Entered: 07/01/2016)
File Sent to Federal Records Center on 07/24/2017: accession number 021−17−0290, box numbers 2 and 3 of 11 (lmt) (Entered: 08/21/2017)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et aI., Plaintiffs,
VS.
DONALD SNYDER, et aI., Defendants.

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CIVIL NO. 00-162-GPM

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MEMORANDUM AND ORDER MURPHY, Chief District Judge:
This is an action brought pursuant to 42 U.S.c. § 1983 and the Illinois Unified Code of Corrections (IUCC), 730 ILCS 5/1-1-1 et seq. Plaintiffs, inmates at Tamms Correctional Center ("Tamms"), seek to represent a class of IIlinois state prisoners whom Defendants, officers and employees of the Illinois Department of Corrections (IDOC), have transferred to Tamms allegedly in violation of Plaintiffs' constitutional rights and the IUCC. Plaintiffs seek certification of two subclasses, a "litigation subclass" consisting of inmates who have been transferred to Tamms allegedly in retaliation for litigation activities, and a "gang subclass" consisting ofinmates who have been transferred to Tamms allegedly for belonging to gangs or "security threat groups."
This action is subject to preliminary review under 28 U.S.C. § 1915A, and a motion to dismiss for failure to state a claim upon which reliefcan be granted brought pursuant to Federal Rule of Civil Procedure 12(b)(6) is before the Court (Doc. 10). The same standards govern preliminary review under § 1915A and consideration ofa Rule 12(b)(6) motion. Hemphill v. DeTella, No. 97
C 6122, 1997 WL 792966, at *1 (N.D. Ill. Dec. 17, 1997). A court must accept as true the

allegations of the complaint and the inferences that may be reasonably drawn from them. Ledford v. Sullivan, 105 F.3d 354,356 (7th Cir. 1997). Dismissal for failure to state a claim upon which relief can be granted is warranted only if"it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Casteel v. Pieschek, 3 F.3d 1050, 1056 (7th Cir. 1993) (quoting Conley v. Gibson, 355 U.S. 41, 45A6 (1957)).
The Court addresses first Count One of Plaintiffs' complaint, which is brought pursuant to 42 U.S.C. § 1983. In Count One, Plaintiffs seeking to represent the putative litigation subclass allege that they have been transferred to Tamms in retaliation for their litigation activities, in violation of their First Amendment right ofaccess to the courts. The Court concludes that Count One withstands dismissal under 28 U.S.c. § 1915A and Federal Rule of Civil Procedure 12(b)(6). Ifa prisoner is transferred for exercising his or her own right of access to the courts, or for assisting others in exercising their right of access to the courts, the prisoner has a claim under § 1983. See Matzker v. Herr, 748 F.2d 1142,1150-51 (7th Cir. 1984); Buise v. Hudkins, 584 F.2d 223,227-28 (7th Cir. 1978). Defendants' contention that Plaintiffs have failed to state a claim because they have not alleged a chronology from which retaliation may be inferred is not well taken. Under Federal Rule of Civil Procedure 8(a)(2) Plaintiffs need only make "a short and plain statement" oftheir claim for relief, and the Supreme Court has expressly rejected the application ofheightened pleading standards in § 1983 cases. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 165-68 (1993). See also Billman v. Indiana Dep 't ofCorrections, 56 F.3d 785, 790 (7th Cir. 1995) (noting the "highly doubtful propriety" of imposing heightened pleading standards in § 1983 cases). Nor is Defendants' invocation of the qualified immunity doctrine well founded. Under the qualified immunity doctrine, government officials, as individuals, are immune from suits
2

for damages as long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The right of prisoners to be free from retaliation for exercising their right of access to the courts is a clearly established one, so that Defendants may not assert a defense ofqualified immunity as to Count One. See, e.g., Abel v. Miller, 824 F.2d 1522, 1534 (7th Cir. 1987) (right to be free from retaliation for exercise of constitutional right of access to courts was clearly established at time prison officials banned prisoners' rights organization and its employees from prison, so that officials were not protected by qualified immunity from liability to organization and its employees).
The Court turns next to Count Two of Plaintiffs' complaint, which is brought pursuant to 42 U.S.c. § 1983. In Count Two, Plaintiffs seeking to represent the gang subclass in this action allege that they have been transferred to Tamms in retaliation for gang membership. According to Plaintiffs' complaint, until 1996 the IDOC cooperated with gangs, allowing gang leaders to make cell assignments and permitting gang members to cell together. Plaintiffs allege that they are gang members who cooperated with the IDOC and have been penalized for their cooperation through transfer to Tamms, in violation oftheir First Amendment right of association and the Ex Post Facto Clause of the Constitution. The Court will address first Plaintiffs' associational claim, then their claim under the Ex Post Facto Clause.
It is well established that a prisoner retains only those First Amendment rights that are not inconsistent with his or her status as a prisoner or with legitimate penological objectives like maintaining prison security and discipline. Pel! v. Procunier, 417 U.S. 817, 822 (1974). Thus, by necessity, prison officials are permitted to forbid prisoners from undertaking numerous activities permitted to those in free society. The need to restrict prisoners is of course particularly acute in the
3

context of the First Amendment right of association, and so long as such restrictions are reasonably related to valid correctional goals, courts will not interfere with decisions of prison administrators that limit the associational rights of inmates. Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125-30 (1977). No doubt there are many legitimate reasons for regulating gang activity in prison. Indeed, the Seventh Circuit Court of Appeals has stated that where "the viability of prison gangs" is concerned, "associational rights are 'barely implicated. '" Rios v. Lane, 812 F.2d 1032, 1036 (7th Cir. 1987) (citation omitted). Put another way, if in Jones the Supreme Court concluded that a prisoners' labor union, with its emphasis on the encouragement of adversary relations with corrections officials "would rank high on anyone's list ofpotential trouble spots," 433 U.S. at 133, then afortiori a prison gang ranks even higher. The complained-of conduct is clearly reasonably related to a legitimate penological objective, namely, regulation ofthe serious threat to prison security posed by gangs. Thus, Plaintiffs' allegations ofviolations oftheir First Amendment right of association fail to state a claim upon which relief can be granted.
Turning next to Plaintiffs' allegations of violations of their rights under the Ex Post Facto Clause, the Court finds that these too fail to state a claim upon which relief can be granted. The Ex Post Facto Clause prohibits "laws that 'retroactively alter the definition of crimes or increase the punishment for criminal acts. ", California Dep't of Corrections v. Morales, 514 U.S. 499, 504 (1995) (quoting Collins v. Youngblood, 497 U.S. 37,43 (1990)). Plaintiffs contend that the change in IDOC policy concerning gang members comprises punishment for purposes ofthe Ex Post Facto Clause because inmates transferred to Tamms for alleged gang activity are subjected to a different and stricter prison regime by reason of confinement there. A change in the conditions determining a prisoner's confinement while serving his or her sentence is an allowed alteration in the prevailing
4

"legal regime" rather than an increased penalty for purposes ofthe Ex Post Facto Clause. Morales, 514 U.S. at 510 n.6. The Ex Post Facto Clause does not "require that [a prisoner's] sentence be carried out under the identical legal regime that previously prevailed." Id. Nor does the Ex Post Facto Clause encourage close scrutiny by the federal courts of ongoing procedural and operational changes in prisons to coordinate treatment, promote security, and protect the public safety. !d. at 508. Reasonable regulation of the conditions of prison confinement and reasonable amendment to such regulation is not punishment so as to violate the Ex Post Facto Clause. Gilbert v. Peters, 55 F.3d 237,238 (7th Cir. 1995) (citing Ewell v. Murray, 11 F.3d 482, 485 (4th Cir. 1993)). Because the complained-ofconduct does not comprise punishment for purposes ofthe Ex Post Facto Clause, Plaintiffs have failed to state a claim upon which relief can be granted.
In short, Count Two of Plaintiffs' complaint fails to state a claim upon which relief can be granted concerning alleged violations ofPlaintiffs' right of association under the First Amendment and their rights under the Ex Post Facto Clause. Accordingly, Count Two will be dismissed.
The Court turns next to Count Three of Plaintiffs' complaint, which is brought pursuant to 42 U.S.C. § 1983. In Count Three, Plaintiffs allege that they have been transferred to Tamms without a hearing, in violation ofthe Due Process Clause of the Fourteenth Amendment. As a rule, a prisoner has no Due Process liberty interest in remaining in a particular prison, Meachum v. Fano, 427 U.S. 215, 224 (1976), orin the general prison population, Hewitt v. Helms, 459 U.S. 460,466-67 (1983). An inmate has a Due Process liberty interest in being in the general prison population only if the conditions of his or her confinement impose "atypical and significant hardship ... in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). Plaintiffs allege that segregation and administrative detention in Tamms comprise an atypical, significant
5

deprivation of liberty. However, the Seventh Circuit Court of Appeals has adopted an extremely stringent interpretation of Sandin. In this Circuit, a prisoner in disciplinary segregation at a state prison has a liberty interest in remaining in the general prison population only ifthe conditions under which he or she is confined are substantially more restrictive than administrative segregation at the most secure prison in that state. Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997). If the inmate is housed at the most restrictive prison in a state, he or she must show that disciplinary segregation there is substantially more restrictive than administrative segregation at that prison. Id. In the view of the Seventh Circuit Court of Appeals, Sandin means that "the right to litigate disciplinary confinements has become vanishingly small." Id. Indeed, "when the entire sanction is confinement in disciplinary segregation for a period that does not exceed the remaining term ofthe prisoner's incarceration, it is difficult to see how after Sandin it can be made the basis of a suit complaining about a deprivation of liberty." Id. at 1176.
Under Wagner, administrative segregation is the baseline for determining whether a prisoner has a Due Process liberty interest in remaining in the general prison population. Put another way, implicit in the reasoning of Wagner is the view that administrative segregation cannot give rise to a Due Process liberty interest at all. Thus, in the case at bar, no Plaintiff who is in administrative detention at Tamms has any claim under the Due Process Clause. Moreover, Plaintiffs who are in disciplinary segregation at Tamms have failed to state a claim upon which relief can be granted as well. Assuming that, as Plaintiffs contend, Tamms is the most restrictive prison in Illinois, nothing Plaintiffs allege suggests that disciplinary segregation at Tamms is substantially more restrictive than administrative segregation there or, indeed, at the most restrictive prison in the country. In fact, Plaintiffs' complaint alleges that, at Tamms, conditions in administrative segregation and conditions
6

in disciplinary segregation are identical. Thus, Plaintiffs have failed to state a claim for relief for violations of their rights under the Due Process Clause, and Count Three will be dismissed.
The Court turns finally to Count Four of Plaintiffs' complaint, in which Plaintiffs allege that they have been transferred to Tamms in violation of the IUCC. Count Four appears to be brought pursuant to the Court's supplemental jurisdiction under 28 U.S.c. § 1367. Under § 1367, federal courts can exercise jurisdiction over state law claims that are so related to claims within original federal jurisdiction that they "form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.c. § 1367(a). However, courts can decline to exercise such jurisdiction if a claim "raises a novel or complex issue of State law." 28 U.S.C. § 1367(c).
Count Four raises a novel issue ofstate law, namely, whether there is a private right ofaction under the IUCC. The IUCC itselfdoes not indicate that a private cause ofaction exists thereunder, and no Illinois court has addressed the issue. In certain circumstances, Illinois courts imply a private cause of action under a statute which does not expressly provide for one. See, e.g., Sa11-)ler Realty Group, Inc. v. Jarvis Corp., 432 N.E.2d 849, 853 (Ill. 1982) (enumerating factors that a court should consider in determining whether to imply a private right of action). Thus, Count Four asserts the type of pendent state law claim that this Court should not decide. See, e.g., Willis v. Bell, 669 F. Supp. 229, 231-34 (N.D. Ill. 1987) (federal courts generally should not decide state law claims raising novel issues ofstate law). Federal courts should not decide novel issues of state law because federal courts are not the authorized expositors of state law, and there is no mechanism by which their errors can be corrected on appeal by state courts. Id. at 233. A federal court's holding on a novel issue of state law may also limit later state court consideration of that issue. Because parties may have relied on the federal holding, state courts will be hesitant to create a conflict with that
7

holding. [d. Accordingly, the Court in its discretion declines to exercise jurisdiction over Count Four, and it will be dismissed.
To conclude, the Court finds that Count One of Plaintiffs' complaint withstands dismissal under 28 U.S.C. § 1915A and Federal Rule of Civil Procedure 12(b)(6). However, the Court concludes also that Counts Two and Three of Plaintiffs , complaint fail to state a claim upon which relief can be granted. Accordingly, Defendants' motion to dismiss (Doc. 10) is GRANTED in part and DENIED in part. Defendants' motion is GRANTED to the extent that Count Two and Count Three of Plaintiffs' complaint are DISMISSED without prejudice. Defendants' motion is DENIED as to Count One of Plaintiffs , complaint. The Court DECLINES to exercise jurisdiction over Count Four of Plaintiffs' complaint and, pursuant to 28 U.S.c. § 1367, Count Four is DISMISSED without prejudice to refiling it in an Illinois state court. As per Federal Rule ofCivil Procedure 12(a)(4)(A), Defendants are ORDERED to answer Plaintiffs' complaint within ten (10) days from the date of this Order.
IT IS SO ORDERED.
DATED: ___{~-+I_~_o+I__~__

Chief United State

RPHY

8

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et aI., Each )

Individually and on Behalf of All Others )

Similarly Situated,

)

)

Plaintiffs,

)

)

vs.

)

)

DONALD SNYDER, et aI.,

)

)

Defendants.

)

CIVIL NO. 00-162-GPM

ORDER
MURPHY, Chief District Judge: This matter is before the Court on Plaintiff Timothy Hall's motion for voluntary dismissal
from the litigation subclass (Doc. 58). This motion has caused the Court to review the file in this case and, specifically, the Court's December 20,2000, Memorandum and Order (Doc. 34). The Court has determined that the dismissal of Counts Two and Three should be with prejudice. Accordingly, the Court, sua sponte, hereby MODIFIES the December 20,2000, Memorandum and Order (Doc. 34), such that Counts Two and Three are DISMISSED with prejudice for failure to state a claim upon which relief can be granted. Count Four, which pertains to all named Plaintiffs, REMAINS dismissed without prejudice for lack of subject matter jurisdiction. Only Count One remains, and it pertains only to those Plaintiffs that are part of the litigation subclass.
In the motion that is pending (Doc. 58), PlaintiffTimothy Hall requests that the Court dismiss him as a member ofthe litigation subclass but seeks to remain a named Plaintiff and member of the

Page 1 of 3

gang subclass. According to the motion, Plaintiff Hall's inclusion in the litigation subclass was an error by counsel. As set forth above, the only claim remaining in this action involves the litigation subclass. Having been fully considered by the Court, Plaintiff Hall 's motion is GRANTED in part and DENIED in part. He is hereby WITHDRAWN from the litigation subclass and his name is STRICKEN from paragraphs 94 and 102 of the complaint. Because he is no longer a member of the litigation subclass and all of his other claims have been dismissed, Plaintiff Timothy Hall is hereby DISMISSED as a party to this action.
In light 0 f the foregoing, the Court finds it necessary to clarify the parties' posture in this case. The only remaining named Plaintiffs are the following members of the litigation subclass: Mark Von Perbandt, Corey A. Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago, Edward Rodriguez, Vincente Rodriguez, William Lasley, Ted Knox, Eugene Horton, George Harper, Robert Felton, Kennard Combs, Laverne Clayton, Marcus Chapman, Ronnie W. Carroll, Roosevelt Burrell, and Aryules Bivens. 1 All ofthe claims asserted by the following Plaintiffs have been dismissed from this action, and, consequently, the following are dismissed as parties to this action: Robert Westefer, Alejandro Villazana, Armando Tinajero, Tyshawn Ross, Vincent Reyna, Alex Muller, Michael Johnson, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Maurice Coleman, Gary Clark, Finner Bryant, and Larry Brown.
Finally, the Court notes that this case was presumptively set for jury trial in June 2001 (see Doc. 5). The trial did not take place in June, presumably because of certain discovery disputes. Those disputes have been resolved (see Docs. 56,63). Accordingly, this matter is hereby SET for
IMilton Smith, who was named in the complaint as a member of the litigation subclass, was voluntarily dismissed without prejudice from this action (see Doc. 32).
Page 2 of 3

jury trial on Tuesday, August 6, 2002, at 8:00 a.m. in the United States District Courthouse for

the Southern District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois. No further notice

will be given.

IT IS SO ORDERED.
DATED this ,,,---'-;' --=-~-- day of 9/~f

,2002.

G. PATRICKMURPI'r~
Chief United States Dis ct Judge

Page 3 of 3

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

MARK VON PERBANDT, et aI., Plaintiffs,
vs. DONALD SNYDER, et aI.,
Defendants.

) ) ) )
) CIVIL NO. 00-162-GPM
) ) ) )

JUDGMENT IN A CIVIL CASE DECISION BY COURT. This action came before the Court on Defendants' motion
for summary judgment.
IT IS ORDERED AND ADJUDGED that pursuant to orders filedJuly28,2003, and
January 23,2002, judgment is entered in favor of Defendants Donald Snyder, Michael V. Neal, George DeTella, Michael O'Leary, Dwayne Clark, Jerry Gilmore, Lamark Carter, Rodney Ahitow, Roger Cowan, Thomas Page, and Odie Washington in their individual and official capacities, and against Plaintiffs Mark Von Perbandt, Corey Taylor, Michael Sparling, Joe Sorrentino, Edward Rodriguez, William Lasley, Ted Knox, George Harper, Kennard Combs, Laverne Clayton, Marcus Chapman, Ronnie Carroll, Roosevelt Burrell, Aryules Bivens, Robert Westefer, Alejandro Villanzana, Armando Tinajero, Tyshawn Ross, Vincent Reyna, Alex Muller, Michael Johnson, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Maurice Coleman, Gary Clark, Finner Bryant, and Larry Brown. The claims of Plaintiffs Anibal Santiago, Vincente Rodriguez, Eugene Horton, and Robert Felton are dismissed
Page 1 of 2

le'l

without prejudice for failure to exhaust administrative remedies.

IT IS FURTHER ORDERED AND ADJUDGED that pursuant to order filed

October 23, 2000, the claims of Plaintiff Milton Smith are dismissed without prejudice.

7f:'. /c DATED: 0

~ :3

6 APPROVED

r~ Ili~

G. PATRICK MURPHY

CHIEF U.S. DISTRICT JUDGE

NORBERT G. JAWORSKI, CLERK
BY~ eputy Clerk

Page 2 of 2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
EAST ST. LOUIS DIVISION

ROBERT WESTEFER, MARK VON PERBANDT, )

ALEJANDRO VILLAZANA, ARMANDO TINAJERO, )

COREY TAYLOR, MICHAEL SPARLING, JOE

)

SORRENTINO, MILTON SMITH, ANIBAL

)

SANTIAGO, TYSHAWN ROSS, EDWARD

)

RODRIGUEZ, VINCENTE RODRIGUEZ, VINCENT )

REYNA, ALEX MULLER, WILLIAM LASLEY, TED )

KNOX, MICHAEL JOHNSON, EUGENE HORTON, )

GEORGE HARPER, TIMOTHY HALL, JOHN GILL, )

LARRY GAMBRELL, LARRY FOUTCH, ROBERT )

FELTON, KENNARD COMBS, MAURICE COLEMAN,)

LAVERNE CLAYTON, GARY CLARK, MARCUS )

CHAPMAN, RONNIE CARROLL, ROOSEVELT

)

BURRELL, FINNER BRYANT, LARRY BROWN, and )

ARYULES BIVENS, individually and on behalf of the )

plaintiff class,

)

)

Plaintiffs,

)

)

-vs-

)

)

DONALD SNYDER, ODIE WASHINGTON,

)

MICHAEL V. NEAL, GEORGE DeTELLA,

)

MICHAEL O’LEARY, and THOMAS PAGE,

)

)

Defendants.

)

No. 00-162-GPM

ANSWER TO COUNT III OF PLAINTIFFS’ AMENDED COMPLAINT FOR INJUNCTION, DECLARATORY JUDGMENT AND DAMAGES
NOW come the defendants, DONALD SNYDER, ODIE WASHINGTON, MICHAEL V. NEAL, GEORGE DETELLA, MICHAEL O’LEARY, THOMAS PAGE, DWAYNE CLARK, ROGER COWAN and RODNEY AHITOW, by their attorney, Lisa Madigan, Attorney General of the State of Illinois, and for their answer to count III of plaintiffs’ amended complaint state as follows:
NATURE OF THE CASE 1. Defendants admit that some of the plaintiffs are confined at the Tamms Correctional Center. Defendants deny the remaining allegations in paragraph 1 of plaintiffs’

amended complaint. 2. Defendants admit that Tamms is intended as a very restrictive institution for those
inmates who pose a threat to the safety and security of any correctional facility, the public or any person. Defendants deny that Tamms is intended as a severe form of punishment. Defendants deny the remaining allegations contained in paragraph 2 of plaintiffs’ amended complaint.
3. Defendants deny that Tamms is not used for its intended purpose. Defendants further deny the remaining allegations contained in paragraph 3 of plaintiffs’ amended complaint.
4. Defendants admit that some inmates were transferred to the Tamms Correctional Center because of gang activities. Defendants deny the remaining allegations in plaintiffs’ amended complaint.
5. Defendants admit that this Court has jurisdiction over some of the claims of plaintiffs. Defendants otherwise deny the allegations in paragraph 5 of plaintiffs’ amended complaint.
6. Defendants admit that venue is proper in the Southern District of Illinois, but deny that the location of events are related to the question of jurisdiction.
TAMMS CORRECTIONAL CENTER 7. Defendants admit Tamms Correctional Center is the State’s highest security level prison and is located in Alexander County, near the town of Tamms. Defendants further admit that Tamms is approximately 360 miles from Chicago. Defendants have insufficient knowledge to either admit or deny the remaining allegations contained in paragraph 7 of plaintiffs’ amended complaint. 8. Defendants admit the allegations contained in paragraph 8 of plaintiffs’ amended complaint. 9. Defendants admit that Tamms is very restrictive, but deny that it is “extremely
2

harsh.” Defendants further admit they want these very restrictive conditions known throughout the entire Illinois Department of Corrections (“the Department”) so inmates will follow all the rules and laws to avoid being transferred to Tamms Correctional Center.
10. Defendants admit inmate movement is very restrictive. Defendants deny the remaining allegations contained in paragraph 10 of plaintiffs’ amended complaint.
11. Defendants deny inmates have no human contact. Defendants admit there are nine pods, each pod having six wings except J pod, which has two wings. Defendants admit that a centralized control booth controls the doors and the main shut offs for the power and water supply to each pod. Defendants admit that guards may use an intercom system to communicate with or monitor inmates in their cells and other areas in the pods equipped with intercoms. Defendants deny that guards eavesdrop on inmates. Defendants admit the yard area and portions of the pods are monitored by video camera. Defendants deny that cells are monitored by video camera.
12. Defendants deny movement between pods is through underground tunnels and further deny the satellite law library has only a “few” law books. Defendants deny that a single exercise yard and shower serves each pod. Defendants admit that each pod has a multipurpose room but deny that it is primarily used by medical staff.
13. Defendants admit that most, but deny that all inmates stay in their cell between 23 and 24 hours a day. Defendants deny that inmate cells are 70 square feet in area. Defendants admit that only inmates who reach the appropriate behavioral level in administrative detention status are allowed the use of a television or radio. Defendants also admit that cell doors are constructed of a steel mesh with a food slot which is locked from the outside. Defendants further admit that inmates cannot see each other while in their cells. Defendants deny the remaining allegations contained in paragraph 13 of plaintiffs’ amended complaint.
3

14. Defendants deny that when inmates are fed in their cells their tray and utensils must be placed in the chuck hole within 30 minutes of being served. Defendants deny there are no educational programs for inmates at Tamms Correctional Center. Defendants admit that due to the heightened security levels at Tamms Correctional Center there are no work assignments for inmates at the Tamms Super Max Correctional Center. Defendants deny that inmate contact with each other is strictly forbidden. Defendants admit that inmates are provided reading materials in their cell and further admit they can exchange those materials for new materials with the library at the Tamms Correctional Center. Defendants deny that only inmates in Administrative Detention behavioral level 3 are allowed to have radio or television privileges. Defendants admit the remaining allegations contained in paragraph 14 of plaintiffs’ amended complaint.
15. Defendants deny the allegations contained in paragraph 15 of plaintiffs’ amended complaint.
16. Defendants deny that two inmates on the same wing are not allowed out of their cells at the same time. Defendants admit that when medically necessary, inmates are escorted to the main healthcare unit. Defendants deny that Tamms inmates are allowed only a maximum number of 4 showers or 4 periods of yard per week. Defendants admit that when an inmate has a scheduled visit he will be escorted to the visiting room. Defendants admit that Tamms inmates may use the law books located in the satellite law libraries on each pod upon submitting a request. Defendants deny the remaining allegations contained in paragraph 16 of plaintiffs’ amended complaint.
17. Defendants deny inmates are given a full “body cavity” search when they leave and return to their cells. Defendants admit the remaining allegations contained in paragraph 17 of plaintiffs’ amended complaint.
4

18. Defendants deny that an inmate is made to lie down on the floor while his ankles are being cuffed. Defendants further deny that correctional officers wear gloves to ensure that inmates have no human contact. Defendants further deny that the cuffing or escorting procedure is punitive or humiliating or that it is the only time inmates have human contact. Defendants admit the remaining allegations contained in paragraph 18 of plaintiffs’ amended complaint.
19. Defendants deny the only view an inmate gets of “natural light” or the “outside world” is while he is on the yard. Defendants admit that some inmates may not be permitted to go to the yard due to the disciplinary infractions but deny that “many inmates” are not permitted to go to the yard. Defendants admit the remaining allegations contained in paragraph 19 of plaintiffs’ amended complaint.
20. Defendants deny that an inmate’s opportunity for a visit is infrequent. Defendants lack knowledge as to plaintiffs’ definition of the term “uncomfortable,” therefore defendants can neither or admit or deny this allegations contained in paragraph 20. To the extent this court requires a response, defendants deny inmate visits are uncomfortable. Defendants admit inmate visits are non-contact and a clear Lexan window separates the inmate and visitor and the inmate and visitor communicate through an intercom system that allows one person at a time to talk. Defendants also admit that inmates are restrained during visits, that non-attorney conversations may be monitored, that Tamms is approximately 360 miles from Cook County and that, absent emergencies, non-attorney visits must be arranged at least two weeks in advance for a specific time. Defendants further admit telephone calls are prohibited except for legal calls or emergencies. Defendants deny the remaining allegations contained in paragraph 20 of plaintiffs’ amended complaint.
21. Defendants deny the allegations contained in paragraph 21 of plaintiffs’ amended 5

complaint. 22. Defendants admit that attorney/client communication usually takes place in a
specialized non-contact visiting room designed solely for attorney/client communication. Defendants deny these communications are severely restricted and not confidential. Defendants further deny those communications are audibly monitored. Defendants admit that inmate cells are searched for contraband but deny inmates confidential correspondence is examined by correctional staff.
23. Defendants deny that inmates being transferred under disciplinary segregation status are not told why they are being transferred. Defendants also deny that inmates do not have an opportunity to contest their placement at Tamms. Defendants admit the remaining allegations contained in paragraph 23 of plaintiffs’ amended complaint.
24. Defendants deny that an inmate on administrative detention status cannot have witnesses interviewed or present documents to support his contention he should not be transferred to Tamms. Defendants further deny the 90 days reviews do not take place. Defendants deny the remaining allegations contained in paragraph 24 of plaintiffs’ amended complaint.
PARTIES 25. Defendants admit that Donald Snyder was the Director of the Department of Corrections on January 19, 1999, but deny that he is currently the Director, however, as such Director, he had at that time overall responsibility for the administration of all correctional facilities within the State. Defendants further admit that plaintiffs purport to sue him in his individual and official capacities. Defendants deny the remaining allegations contained in paragraph 25 of plaintiffs’ amended complaint. 26. Defendants admit that Odie Washington was the Director of the Department of
6

Corrections from January 16, 1995, until January 18, 1999, and during that period he had overall responsibility for the administration of all correctional facilities within the State. Defendants further admit that plaintiffs purport to sue him in his individual capacity only. Defendants deny the remaining allegations contained in paragraph 26 of plaintiffs’ amended complaint.
27. Defendants admit that at some point each of the Defendants listed in paragraph were in the position of Deputy Director or Assistant Deputy Director during the period when the plaintiffs were selected for transfer to Tamms Correctional Center. Defendants deny that Defendants Neal, Detella, Clark , Carter or Page were in those positions during that entire period. Defendants admit the Plaintiffs are attempting to sue Defendants O’Leary, Detella, Neal, Snyder, Carter, Clark and Page in their official and individual capacities. Defendants admit the plaintiffs are attempting to sue Defendant Washington in his individual capacity. Defendants deny the remaining allegations contained in paragraph 27 of plaintiffs’ amended complaint.
28. Defendants admit that at some point each of the Defendants listed in paragraph were in the position of Warden during the period when the plaintiffs were selected for transfer to Tamms Correctional Center. Defendants deny that Defendants listed in paragraph 28 were in that position during that entire period. Defendants admit the plaintiffs are attempting to sue the Defendants listed in paragraph 28 in their official and individual capacities.
29. Defendants admit the allegations contained in paragraph 29 of plaintiffs’ amended complaint.
30. Defendants admit the allegations contained in paragraph 30 of plaintiffs’ amended complaint.
31. Defendants deny that inmate Von Perbandt was transferred to Tamms on April 22, 1998. Defendants admit that inmate Von Perbandt has remained at Tamms continuously from April 20, 1998, to the date of the Complaint and that he has been in Administrative Detention
7

status the entire time he has been incarcerated at Tamms. Defendants admit that prior to his transfer to Tamms, inmate Von Perbandt was housed at a medium security prison in Virginia and that prior to that inmate Von Perbandt was previously incarcerated in the State of Utah, but Defendants have insufficient knowledge to admit or deny if inmate Von Perbandt was assigned as a cook while incarcerated in the State of Utah. Defendants have insufficient knowledge to admit or deny inmate Von Perbandt's entire litigation history, whether there was a case pending at the time of his transfer or the nature of such case, but admit he has filed at least one lawsuit while incarcerated within the Department.
32. Defendants admit that inmate Von Perbandt is classified as a member of the Latin King security threat group and that he was recommended by defendant Carter and approved for transfer to Tamms by Defendant O'Leary. Defendants have insufficient knowledge to admit or deny if inmate Von Perbandt served only 90 days in segregation in the two years prior to his transfer to Tamms.
33. Defendants admit that Alejandro Villazana was transferred to the Tamms Correctional Center on investigations status on September 3, 1998. Defendants deny the remaining allegations contained in paragraph 33 of plaintiffs’ amended complaint.
34. Defendants are without knowledge sufficient to admit or deny the allegation that plaintiff Alejandro Villazana has never been charged with certain offenses. Defendants admit that is a member of the Ambrose STG and that defendant Neal approved the transfer. Defendants deny the remaining allegations contained in paragraph 34 of plaintiffs’ amended complaint.
35. Defendants admit that Armando Tinajero was transferred to the Tamms Correctional Center he remained there through the date of his complaint, that he was transferred to administrative detention status from segregation status on April 15, 1999, and that he has
8

been in such status since that date. Defendants are without knowledge sufficient to admit or deny the allegations that plaintiff offered to take a polygraph examination and that he was not given such an examination. Defendants deny the remaining allegations contained in paragraph 35 of plaintiffs’ amended complaint.
36. Defendants deny that none of Tinajero’s assaults resulted in serious injury. Defendants otherwise admit the allegations contained in paragraph 36 of plaintiffs’ amended complaint.
37. Defendants admit that inmate Taylor was transferred to Tamms from Pontiac on September 2, 1998, and that inmate Taylor has remained in segregation status at Tamms continuously through the date of the Complaint. Defendants admit that prior to his transfer to Tamms, inmate Taylor was involved in a hunger strike but lack knowledge to admit or deny whether he was protesting alleged conditions. Defendants admit that defendant Gilmore recommended Taylor’s placement at Tamms. Defendants have insufficient knowledge to either admit or deny inmate Taylor’s entire litigation history, but admit he has filed at least one lawsuit while incarcerated within the Department. Defendants deny the remaining allegations in paragraph 37 of plaintiffs’ amended complaint.
38. Defendants admit that inmate Sparling was transferred to Tamms from Menard on August 25, 1998, and has remained in Administrative Detention status at Tamms continuously through the date of the Complaint. Defendants have insufficient knowledge to either admit or deny whether inmate Sparling is an “active” litigator or “writ writer” or the substance of such litigation or “writ writing,” but admit he has filed at least one lawsuit while incarcerated within the Department.
39. Defendants deny that inmate Sparling has been violated out of the Northsider security threat group. Defendants admit the remaining allegations contained in paragraph 39
9

of plaintiffs’ amended complaint. 40. Defendants admit that inmate Sorrentino was transferred to Tamms from Menard
on March 12, 1998, and remained in Administrative Detention status at Tamms continuously through the date of the Complaint. Defendants have insufficient knowledge to either admit or deny whether inmate Sorrentino is an “active” litigator or “writ writer” or the substance of such litigation or “writ writing,” but admit he has filed at least one lawsuit while incarcerated within the Department.
41. Defendants deny inmate Sorrentino was classified as minimum security prior to his transfer to Tamms. Defendants admit the remaining allegations contained in paragraph 41 of plaintiffs’ amended complaint.
42. Defendants admit that inmate Santiago was transferred to Tamms from Pontiac on August 4, 1999, and has remained in Tamms continuously through the date of the Complaint. Defendants deny the remaining allegations contained in paragraph 42 of plaintiffs’ amended complaint.
43. Defendants have insufficient knowledge to either admit or deny inmate Santiago's entire litigation history, or that he is an “active” grievance writer or the substance of such litigation or grievances, but admit he has filed grievances and at least one lawsuit while incarcerated within the Department. Defendants have insufficient knowledge to either admit or deny the remaining allegations contained in paragraph 43 of plaintiffs’ amended complaint.
44. Defendants admit that inmate Santiago received only one disciplinary violation while incarcerated at Menard and admit that inmate Santiago filed grievances concerning the conditions of his incarceration. Defendants deny that Santiago was taken to Assistant Warden Cowan’s office to be crossed examined. Defendants admit that inmate Santiago was transferred to Pontiac on July 18, 1999 and that two weeks later he was transferred to Tamms. Defendants
10

admit defendant Cowan recommended and Defendant Clark approved Santiago’s placement at Tamms. Defendants deny the remaining allegations contained in paragraph 44 of plaintiffs’ amended complaint.
45. Defendants admit the allegations contained in paragraph 45 of plaintiffs’ amended complaint.
46. Defendants deny that Tyshawn Ross has had no disciplinary reports in the last five years. Defendants otherwise admit the allegations contained in paragraph 46 of plaintiffs’ amended complaint.
47. Defendants deny that inmate Vincente Rodriguez was in Administrative Detention status at Tamms from October 28, 1999, until January 29, 2000. Defendants admit the remaining allegations in paragraph 47 of plaintiffs’ amended complaint.
48. Defendants deny that on July 2, 1996, inmate Vincente Rodriguez was savagely beaten by the Tactical Unit at Stateville Correctional Center. Defendants admit the remaining allegations in paragraph 48 of plaintiffs’ amended complaint.
49. Defendants admit the allegations contained in paragraph 49 of Plaintiffs’ Complaint.
50. Defendants admit that inmate Edward Rodriguez was transferred to Tamms from Menard on March 27, 1998, and has remained at Tamms continuously through the date of the Complaint. Defendants deny the remaining allegations contained in paragraph 50 of plaintiffs’ amended complaint.
51. Defendants have insufficient knowledge to either admit or deny whether inmate Edward Rodriguez is an “active” litigator or the substance of such litigation but admit he has filed at least one lawsuit while incarcerated within the Department. Defendants also have insufficient knowledge to either admit or deny whether inmate Rodriguez assisted other inmates in filing
11

lawsuits. Defendants admit that inmate Rodriguez has filed numerous grievances. Defendants deny the remaining allegations contained in paragraph 51 of plaintiffs’ amended complaint.
52. Defendants deny that inmate Edward Rodriguez has had no major disciplinary reports written against him since 1992. Defendants admit the remaining allegations contained in paragraph 52 of plaintiffs’ amended complaint.
53. Defendants admit the allegations contained in paragraph 53 of plaintiffs’ amended complaint.
54. Defendants admit the allegations contained in paragraph 54 of plaintiffs’ amended complaint.
55. Defendants admit the allegations contained in paragraph 55 of plaintiffs’ amended complaint.
56. Defendants admit the allegations contained in paragraph 56 of plaintiffs’ amended complaint.
57. Defendants have insufficient knowledge to either admit or deny whether inmate Lasley is an “active” litigator or the substance of such litigation, but admit he has filed grievances and at least one lawsuit while incarcerated within the Department. Defendants also have insufficient knowledge to either admit or deny that inmate Lasley has assisted other inmates with their complaints. Defendants admit the remaining allegations contained in paragraph 57 of plaintiffs’ amended complaint.
58. Defendants deny that inmate Lasley's only other ticket in the two years prior to being transferred to Tamms was for refusing to take a tuberculosis test administered through the bars of his cell. Defendants admit the remaining allegations contained in paragraph 58 of plaintiffs’ amended Complaint.
59. Defendants admit that inmate Knox was transferred to Tamms from Menard on 12

August 24, 1998, and remained at Tamms continuously through the date of the Complaint. Defendants deny that inmate Knox has been in Administrative Detention status during his entire stay at Tamms. Defendants have insufficient knowledge to admit or deny the remaining allegations contained in paragraph 59 of plaintiffs’ amended complaint.
60. Defendants deny that during the entire period of his incarceration since 1990, inmate Knox has received no segregation time other than 15 days for having what were alleged to be gang documents and deny plaintiffs’ allegation that the documents were from his criminal case. Defendants admit the remaining allegations contained in paragraph 60 of plaintiffs’ amended complaint.
61. Defendants admit that Michael Johnson was transferred to the Tamms Correctional Center on April 1, 1998, and that he has remained at the Tamms Correctional Center. Defendants deny the remaining allegations contained in paragraph 61 of plaintiffs’ amended complaint.
62. Defendants deny that plaintiff Johnson received only four minor tickets during the ten years prior to his transfer to the Tamms Correctional Center. Defendants admit that Johnson is a member of the Gangster Disciples.
63. Defendants deny that inmate Horton was transferred to Tamms from Illinois River on March 16, 1998. Defendants admit that he has remained at Tamms continuously from March 17, 1998, through the date of the Complaint. Defendants admit he was initially placed in segregation at Tamms, and has been in Administrative Detention status since February of 1999. Defendants have insufficient knowledge to either admit or deny whether inmate Horton is an “extremely active” litigator, on behalf of himself or other inmates, or the substance of such litigation but admit he has filed at least one lawsuit while incarcerated within the Department. Defendants admit that inmate Horton was a law clerk while at Stateville. Defendants have
13

insufficient knowledge to either admit or deny whether he has testified in cases brought by other inmates. Defendants deny that inmate Horton has suffered a history of retaliation from Department officials as a result of his litigation.
64. Defendants deny that inmate Horton was housed in minimum security “Honor Dorm” at Stateville in February of 1997. Defendants admit the remaining allegations contained in paragraph 64 of plaintiffs’ amended complaint.
65. Defendants admit the allegations contained in paragraph 65 of plaintiffs’ amended complaint.
66. Defendants admit that plaintiff Harper was transferred to the Tamms Correctional Center in investigative status on April 27, 1999, and that he has remained at the Tamms Correctional Center since that date. Defendants further admit that plaintiff filed a civil rights action entitled Harper v. Albert, in which he is represented by his same counsel as in the instant case. Defendants deny the remaining allegations contained in paragraph 66 of plaintiffs’ amended complaint.
67. Defendants admit the allegations contained in paragraph 67 of plaintiffs’ amended complaint.
68. Defendants admit the allegations contained in paragraph 68 of plaintiffs’ amended complaint.
69. Defendants admit the allegations contained in paragraph 69 of plaintiffs’ amended complaint.
70. Defendants admit the allegations contained in paragraph 70 of plaintiffs’ amended complaint.
71. Defendants admit that defendant Neal approved the transfer of Gill and that he is a member of the Black Souls. Defendants deny the remaining allegations contained in
14

paragraph 71 of plaintiffs’ amended complaint 72. Defendants admit the allegations contained in paragraph 72 of plaintiffs’ amended
complaint. 73. Defendants admit the allegations contained in paragraph 73 of plaintiffs’ amended
complaint. 74. Defendants admit the allegations contained in paragraph 74 of plaintiffs’ amended
complaint. 75. Defendants deny that Larry Foutch was classified as minimum security when
transferred to the Tamms Correctional Center. Defendants otherwise admit the allegations contained in paragraph 75 of plaintiffs’ amended complaint.
76. Defendants have insufficient knowledge to either admit or deny whether inmate Felton is an “active” litigator or grievance filer, or the substance of such litigation or grievances, but admit he has filed grievances and at least one lawsuit while incarcerated within the Department. Defendants have insufficient knowledge to either admit or deny whether inmate Felton assisted numerous other inmates in pursuing such claims. Defendants deny that defendant Michael Neal approved inmate Felton's transfer to Tamms. Defendants admit the remaining allegations contained in paragraph 76 of plaintiffs’ amended complaint.
77. Defendants deny that inmate Combs was transferred to Tamms from Menard on September 2, 1998. Defendants admit inmate Combs has continuously remained at Tamms through the date of the Complaint and has been in Administrative Detention status during his entire stay at Tamms. Defendants have insufficient knowledge to either admit or deny whether inmate Combs is an “active” litigator or grievance filer or the substance of such litigation or grievances, but admit he has filed grievances and at least one lawsuit while incarcerated within the Department. Defendants have insufficient knowledge to either admit or deny whether inmate
15

Combs assisted numerous other inmates in pursuing such claims. Defendants admit defendant Neal approved inmate Combs' transfer to Tamms.
78. Defendants admit the allegations contained in paragraph 78 of plaintiffs’ amended complaint.
79. Defendants admit the allegations contained in paragraph 79 of plaintiffs’ amended complaint.
80. Defendants admit that inmate Clayton was transferred to Tamms from Menard on July 20, 1998, and has remained at Tamms continuously through the date of the Complaint. Defendants deny that inmate Clayton was originally in segregation status, and has been in Administrative Detention status since January, 1999. Defendants have insufficient knowledge as to either admit or deny whether inmate Clayton is an “active” litigator or grievance filer or the substance of such litigation or grievances, but admit he has filed grievances and at least one lawsuit while incarcerated within the Department. Defendants admit defendant Neal approved inmate Clayton's transfer to Tamms.
81. Defendants admit the allegations contained in paragraph 81 of plaintiffs’ amended complaint.
82. Defendants deny that Gary Clark received only one minor ticket during the two years prior to Tamms and that he served less than 18 months in segregation in 15 years of incarceration. Defendants otherwise admit the allegations contained in paragraph 82 of plaintiffs’ amended complaint.
83. Defendants admit the allegations contained in paragraph 83 of plaintiffs’ amended complaint.
84. Defendants admit that defendant Gilmore recommended and defendant O'Leary approved inmate Chapman's transfer to Tamms. Defendants admit plaintiff received a verdict
16

in his favor based on a default judgment. As that case did not pertain to these defendants, they have insufficient knowledge to either admit or deny the remaining allegations contained in paragraph 84 of plaintiffs’ amended complaint.
85. Defendants have insufficient knowledge to either admit or deny whether inmate Carroll is an “extremely active” litigator or the substance of such litigation but admit he has filed at least one lawsuit while incarcerated within the Department. Defendants deny that inmate Carroll was threatened with retaliation or retaliated against for his litigation activities. Defendants admit the remaining allegations contained in paragraph 85 of plaintiffs’ Complaint.
86 Defendants have insufficient knowledge to either admit or deny whether inmate Burrell has been “extremely active” in complaining about alleged Department staff misconduct or racial discrimination or that inmate Burrell regularly assisted other inmates with grievances and litigation. Defendants admit the remaining allegations contained in paragraph 86 of plaintiffs’ amended complaint.
87. Defendants admit the allegations contained in paragraph 87 of plaintiffs’ amended complaint.
88. Defendants deny that plaintiff had been transferred to the Danville Correctional Center in violation of Department of Corrections procedures. Defendants lack knowledge of the allegation that plaintiff spent “virtually no” time in segregation since 1993. Defendants otherwise admit the allegations contained in paragraph 88 of plaintiffs’ amended complaint.
89. Defendants admit the allegations contained in paragraph 89 of plaintiffs’ amended complaint.
90. Defendants lack knowledge sufficient to admit or deny the allegation that plaintiff was in general population while housed in another state. Defendants otherwise admit the allegation contained in paragraph 90 of plaintiffs’ amended complaint.
17

91. Defendants admit that inmate Bivens was assigned as a law clerk while at Menard. Defendants have insufficient knowledge to either admit or deny whether, in such capacity, inmate Bivens assisted inmates in preparing lawsuits and what claims were contained in said lawsuits. Defendants admit to the remaining allegations in paragraph 91 in plaintiffs’ amended complaint.
92. Defendants admit that inmate Bivens is classified as a member of the Black Disciple security threat group. Defendants have insufficient knowledge to either admit or deny inmate Bivens received only 43 days of segregation placement over the 15 years he was incarcerated within the Department. Defendants admit the remaining allegations contained in paragraph 92 of plaintiffs’ amended complaint.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 93. Defendants deny the fact of transfer to Tamms Correctional Center is not grievable. 94. Defendants admit that the following inmates have grieved their transfer to Tamms on the date listed in parenthesis after their names: Von Perbandt (9-22-98), Sorrentino (7-2798), E. Rodriguez (4-24-98), Harper (7-29-99), Clayton (9-22-98) , Chapman (12-17-98). Defendants deny that any of the plaintiffs have grieved that their transfer to Tamms was based on retaliation by the Defendants for litigation, grievance or “writ writing.” The Defendants deny the remaining allegations contained in paragraph 94 of plaintiffs’ Complaint.
CLASS ACTION 95. Defendants deny plaintiffs are seeking class certification based on the subclasses named. 96. Defendants deny the allegations contained in paragraph 96 of plaintiffs’ amended complaint.
18

97. Defendants deny the allegations contained in paragraph 97 of plaintiffs’ amended complaint.
98. Defendants admit there are approximately 274 inmates at the Tamms Correctional Center. Defendants otherwise deny the allegations contained in paragraph 98 of plaintiffs’ amended complaint.
99. Defendants deny the allegations contained in paragraph 99 of plaintiffs’ amended complaint.
100. Defendants deny the allegations contained in paragraph 100 of plaintiffs’ amended complaint.
101. Defendants deny the allegations contained in paragraph 101 of plaintiffs’ amended complaint.
102. Defendants deny the allegations contained in paragraph 102 of plaintiffs’ amended complaint.
103. Defendants deny the allegations contained in paragraph 103 of plaintiffs’ amended complaint.
COUNT I 104-112. Defendants have previously answered paragraphs 104 through 112 of plaintiffs’ amended complaint.
COUNT II 113-119. Count II is no longer in this litigation.
COUNT III 120. Defendants deny the allegations contained in paragraph 120 of plaintiffs’ amended complaint.
19

121. Defendants deny the allegations contained in paragraph 121 of plaintiffs’ amended complaint.
122. Defendants deny the allegations contained in paragraph 122 of plaintiffs’ amended complaint.
123. Defendants deny the allegations contained in paragraph 123 of plaintiffs’ amended complaint.
124. Defendants deny the allegations contained in paragraph 124 of plaintiffs’ amended complaint.
125. Defendants deny the allegations contained in paragraph 125 of plaintiffs’ amended complaint.
126. Defendants deny the allegations contained in paragraph 126 of plaintiffs’ amended complaint.
COUNT IV 127-134. Count IV is no longer in this litigation.
RELIEF Defendants deny any of their conduct violates plaintiffs’ rights in any way. Defendants deny that plaintiffs are entitled to the relief requested or any relief whatsoever.
AFFIRMATIVE DEFENSES 1. Plaintiffs have failed to file their complaint against Defendants, Clark and Cowan within the appropriate time allowable by law. 2. Several of the plaintiffs have failed to fully exhaust their administrative remedies in relation to the allegations of the case at bar. 3. At all times relevant herein, defendants acted in good faith in the performance of
20

their official duties and without violating plaintiffs' clearly established statutory or constitutional

rights of which a reasonable person would have known. Defendants are therefore protected

from suit by the doctrine of qualified immunity.

4. To the extent plaintiffs claim that they are not guilty of offenses for which plaintiffs

lost good time, the claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994).

5. To the extent plaintiffs seek to challenge the validity of a hearing for which a loss

of good conduct credit was imposed the claim is barred by Heck v. Humphrey.

6. Defendants asserts the defense of res judicata and collateral estoppel as bars to

any claims or actions previously litigated by the plaintiffs.

WHEREFORE, defendants pray that this honorable Court deny the relief sought in

plaintiffs’ amended complaint.

Respectfully submitted,

DONALD SNYDER, ODIE WASHINGTON, MICHAEL V. NEAL, GEORGE DETELLA, MICHAEL O’LEARY, THOMAS PAGE, DWAYNE CLARK, ROGER COWAN and RODNEY AHITOW,

Defendants,

LISA MADIGAN, Attorney General, State of Illinois,

Terence J. Corrigan, #6191237 Assistant Attorney General 500 South Second Street Springfield, IL 62706 217/782-5819
Of Counsel.

Attorney for Defendants,
By: /s/Terence J. Corrigan TERENCE J. CORRIGAN Assistant Attorney General

21

CERTIFICATE OF SERVICE I hereby certify that on May 5, 2006, I electronically filed Defendants’ Answer to Count III of Plaintiffs’ Amended Complaint with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following:
Alan Mills alanmill@aol.com
Respectfully submitted, s/Terence J. Corrigan Assistant Attorney General 500 South Second Street Springfield, IL 62706 (217)782-5819 (217) 524-5091 (facsimile) Tcorrigan@atg.state.il.us #6191237
22

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

Bennie Cunningham,
Plaintiff,
v.
Donald Snyder, Odie Washington, Michael V. Neal, Richard McVicar, George C. Welborn, Angela Winsor, Homer Markel, and Jack Hartwig,
Defendants.

) ) ) ) ) No. 00-cv-708-JPG ) ) ) ) ) ) )

ORDER On motion of plaintiff to consolidate this cause with Westefer v. Snyder, case number 00-cv-

162-GPM, the defendants having no objection and the Court having reviewed said motion (Doc.

107);

It is hereby ordered that the motion (Doc. 107) is GRANTED, this case is CONSOLIDATED with Westefer v. Snyder, case number 00-cv-162-GPM, for all further

proceedings, and this case is REASSIGNED to Chief Judge G. Patrick Murphy for all further

proceedings.

DATED: May 18, 2006

s/ J. Phil Gilbert Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al.,

No. 00-162-GPM

Plaintiffs,

v.

DONALD SNYDER, et al.,

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION TO CERTIFY THE PLAINTIFF CLASS

INTRODUCTION

Plaintiffs, individually and on behalf of all others who are similarly situated (“plaintiffs”),

are prisoners who were transferred to Tamms Correctional Center. They allege that they were

punished by being sent to Tamms in retaliation for their exercise of their right to file litigation or

otherwise engage in litigation activities, in violation of the First Amendment (Count One) and that

they were punished by being transferred to Tamms in violation of the due process clause of the

Fourteenth Amendment (Count Three).

In their First Amended Complaint (cited as "Comp."), the named plaintiffs seek to represent

a class defined as (Comp. ¶ 97), "All inmates who have been transferred to Tamms since March 7,

1998." Following the Seventh Circuit's determination that plaintiffs had properly stated a claim for

violation of their due process rights, plaintiffs now move to certify a class pursuant to Rules

23(b)(1) and 23(b)(2), as to their procedural due process claim only. Plaintiffs do not seek

certification for their First Amendment claims as, in the judgment of counsel, individual questions

of fact are likely to outweigh any common questions. Plaintiffs also do not seek certification

pursuant to Rule 23(b)(3), as proof of damages for any violation of procedural due process requires

not only proof that plaintiffs were denied a proper hearing, but also proof that plaintiffs would have prevailed had they been granted a proper hearing. Carey v. Piphus, 435 U.S. 247, 263 (1977). This determination would necessarily involve proof of detailed facts unique to each plaintiff, and would thus be difficult to resolve within the confines of a class action.
Plaintiffs submit this memorandum in support of their motion seeking to maintain this case as a class action as to the procedural due process claims asserted by plaintiffs, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
I. The Case Meets the Threshold Requirements of Rule 23 and the Enumerated Requirements of Rule 23(a) This case, which challenges the procedures by which defendants determined which prisoners were to be punished by being sent to Tamms, represents a “prototypical candidate” for class certification. Robert E. v. Lane, 530 F.Supp. 930, 944 (N.D. Ill. 1980). To maintain the case as a class action, plaintiffs have the burden of showing that all the requirements of class certification are met. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). For purposes of deciding whether a class will be certified, allegations made in support of certification are taken as true, and the merits of the case are not examined. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177-178 (1974). The Amended Complaint meets the requirements of Rule 23. First, plaintiffs have alleged the existence of a readily identifiable class. Simpson v. Miller, 93 F.R.D. 540, 545 n. 11 (N.D. Ill. 1982). The Amended Complaint (¶ 97) identifies the class as “all inmates who have been transferred to Tamms Correctional Center since March 7, 1998 [the date Tamms received its first
2

prisoner].” This class is readily identifiable, and several courts have certified similar classes, including, most relevantly, Wilkinson v. Austin, 125 S.Ct. 2384 (2005).
Second, the Amended Complaint meets the requirement that each representative plaintiff be part of the proposed class, that is, that he possesses “the same interest and suffer the same injury shared by all members of the class he represents.” Keele v. Wexler, 149 F.3d 589, 592-3 (7th Cir. 1998) (internal citation omitted). The Amended Complaint (¶s 29-94) alleges that each of the named plaintiffs was transferred to Tamms, and each alleges (Comp. ¶'s 123-126) that he was transferred to Tamms without being given an opportunity for a meaningful hearing. Therefore, each representative plaintiff suffers “the same injury that all members of the class share.”
In addition to meeting these threshold requirements, the Amended Complaint fulfills all four requirements of section (a) of Rule 23 and the requirements of at least one of the categories of section (b) of that Rule, as required for class certification.
Under section (a), the four requirements are (A) numerosity (the number of injured persons must be large enough to justify treatment as a class); (B) commonality (there must be questions of law or fact common to all members of the class); (C) typicality (the claims or defenses of the named plaintiffs must be typical of the claims or defenses of the class); and (D) adequacy of representation (the named plaintiffs, and consequently their counsel, must be capable of fairly and adequately prosecuting the action). In this case, the Amended Complaint meets the requirements of Rule 23(a).
A. Numerosity. There is no magic number at which the numerosity requirement is satisfied. Nevertheless, “a class of more than 40 members is generally believed to be sufficiently numerous
3

for Rule 23 purposes.” Toney v. Rosewood Care Center, 1999 WL 199249, *6 (N.D. Ill.). See also Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 307 (N.D. Ill. 1995), citing H. Newberg, Class Actions § 305 (1992), and Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1988). Moreover, the exact number or identify of class members need not be pleaded to establish numerosity. In re VMS Securities Litigation, 136 F.R.D. 466, 473 (N.D. Ill. 1991).
The population of Tamms has been between 225 and 300 since it opened. According to the Department of Corrections, on January 5, 2006, there were 233 prisoners housed at Tamms1. Plaintiffs do not know how many prisoners have been transferred in and out of Tamms since it opened, but the total class would clearly be greater than 300, and those who may be transferred to Tamms in the future would further increase the number of class members. In sum, the class is probably larger than 300, and certainly larger that the 40 class members generally required to meet the numerosity requirement.
B. Commonality. The commonality requirement of Rule 23(a) requires that the members of the proposed class have questions of law or fact in common. Rule 23(a), Fed. R. Civ. Pro. This requirement may be satisfied even if there are factual discrepancies between members of the class. In re Workers’ Compensation, 130 F.R.D. 99 (D. Minn. 1990). Courts have routinely recognized that the commonality requirement is "not high," Taylor v. Flagstar Bank, 181 F.R.D. 509, 516 (M.D. Ala. 1998), and that a “common nucleus of operative fact” is usually enough to
1 All population figures are limited to the Closed Maximum Security Unit (commonly referred to as the Supermax). Tamms includes a minimum security unit as well, the residents of which are not included in the definition of the class.
4

satisfy it. Small v. Sullivan, 820 F.Supp. 1098, 1109 (S.D. Ill. 1992) (citation omitted). Because plaintiffs' procedural due process claim is a “structural” claim in which plaintiffs
argue that the entire system of choosing which prisoners will be punished by being sent to Tamms is constitutionally deficient,” the claims of the class members “necessarily embody common fact questions.” Robert E., 530 F.Supp. at 942.
There also are numerous common factual and legal questions, such as whether conditions of confinement at Tamms impose restrictions which are "atypical and significant" compared to conditions in other prisons, what "baseline" should be used to answer that question, and (assuming due process is triggered), what type of process is required, including the security concerns, and all of the other factors governing that determination. Wilkinson v. Austin, 125 S.Ct. 2384, 2396 (2005). Because these questions of law and fact “refer[] to a standardized conduct of the defendants toward members of the proposed class,” the commonality requirement is met. Vickery v. Jones, 856 F.Supp. 1313, 1328 (S.D. Ill. 1994), aff’d. 100 F.3d 1334 (7th Cir. 1996) (quoting Franklin v. City of Chicago, 102 F.R.D. 944, 949 (N.D. Ill. 1984)).
C. Typicality. Rule 23(a) requires that the claims or defenses of the representative parties be typical of the claims of the class. A plaintiff’s claim is typical if it arises out of “the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” De La Fuente v. Stokely-Van Camp., Inc., 713 F.2d 225, 232 (7th Cir. 1983) (citations and internal quotation omitted). The typicality requirement may be satisfied despite factual distinctions between the claims of the named plaintiffs and those of other class members. Thus, “similarity of legal theory may control even in the face of differences of
5

fact.” 713 F.2d at 232 (citations omitted). The named plaintiffs’ claims arise from the same practice and course of conduct as those
of the class at large, since the named plaintiffs were chosen for transfer to Tamms using the same process as was used for all prisoners who were transferred to Tamms. The claims of the named plaintiffs are based on the same legal theories as those of the class at large. Therefore, the requirement of typicality has been met.
D. Adequacy. Rule 23(a) requires that the representative parties will adequately and fairly protect the interests of the class. The adequacy inquiry involves two questions: first, whether the plaintiffs’ counsel are qualified, experienced, and generally able to conduct the proposed litigation and, second, whether the named plaintiffs have interests antagonistic to those of the class. Small, 820 F.Supp. at 1110-1111 (citations omitted). Plaintiffs’ counsel are experienced litigators, as is demonstrated by the conduct of this case to date. Counsel is personally experienced in civil rights litigation involving prisoners’ rights. The named plaintiffs, for their part, have no conflicting interests with the class they represent. All of the named plaintiffs share the class's interest in halting the defendants’ practice of punishing prisoners by transferring them to Tamms without providing them with notice or an opportunity to be heard. Plaintiffs therefore meet the requirements of Rule 23(a)(4) concerning adequacy of representation. II. Plaintiffs Satisfy the Requirements for Maintaining a Class Action
Under Rules 23(b)(1) and 23(b)(2) In addition to fulfilling the requirements of Rule 23(a), class certification requires
6

complying with the standards established by either Rule 23(b)(1) or Rule 23(b)(2). The proposed class in the instant case satisfies both requirements.
A. Rule 23(b)(1) Under Rule 23(b)(1) a class action may be maintained (subject to the prerequisites of section (a)) if the prosecution of separate actions by individual members of the class would create a risk of either (A) inconsistent or varying adjudications which would establish incompatible standards for the defendants; or (B) adjudications with respect to individual members of the class which would be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests. Certification under Rule 23(b)(1) should be confined to those cases where there are no, or few, individual questions. Hylaszek v. Aetna Life Insurance Co., 1998 WL 381064, 1998 U.S. Dist. LEXIS 10209 (N.D. Ill. 1998). In this case, individual adjudications of the class members’ claims adjudicating the issue of what process is due before prisoners can be punished by being sent to Tamms would have the potential to establish inconsistent standards for the defendants or decisions that would dispose of the interests of other class members. Such cases could be brought in a variety of forums-including this Court, the Circuit Court for Alexander County where Tamms is located, and in both the federal and circuit courts located in the counties from which any prisoner is transferred, as well as both federal and Circuit Courts covering Springfield, where the final transfer decisions appear to be made. Clearly, the risk of inconsistent decisions in such a wide variety of forums is real. In contrast, resolution of the due process issue for all class members in the instant case would be efficient, because on the due process issue, plaintiffs primarily seek declaratory and
7

injunctive relief addressing system-wide regulations and practices, not individual situations, and because their claim for damages is secondary to their claim for injunctive relief. In this case, certification of the class under Rule 23(b)(1) is appropriate because it would minimize the risk of inconsistent adjudications for individual lawsuits.
B. Rule 23(b)(2). Under Rule 23(b)(2), a class action may be maintained if the requirements of Rule 23(a) are met and “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Courts have recognized that “certification under Rule 23(b)(2) is particularly appropriate in class actions brought to vindicate the plaintiffs’ civil or constitutional rights.” Johnson v. Brelje, 482 F.Supp. 121, 125 (N.D. Ill 1979), citing Fujishma v. Board of Education, 460 F.2d 1355, 1360 (7th Cir. 1972). Plaintiffs allege that defendants have violated the due process clause of the Fourteenth Amendment by failing to provide them with a hearing which complies with the minimum requirements of the due process clause. The procedures for transfer to Tamms are set forth in regulations which are applicable statewide, and presumably apply to all transfers to Tamms. See, for example, 20 Ill. Admin. Code §505.40, et seq..
The appropriateness of the class-wide injunctive and declaratory relief that plaintiffs seek cannot seriously be doubted. Presumably prisoners either are or are not entitled to due process before they are transferred to Tamms. It is inconceivable that this right depends on detailed facts relating to each individual prisoner, resulting in some prisoners having a right to due process, and
8

others not. There is certainly nothing in the opinion of the Seventh Circuit in this case, or in the Supreme Court's decision in Wilkinson v. Austin, 125 S.Ct. 2384 (2005) which suggests that this sort of individual by individual determination is appropriate, rather than system-wide rules applicable to broad classes of prisoners.
Rule 23(b)(2) promotes fairness and judicial economy in this type of case and has been regularly used to adjudicate due process issues, most tellingly in Wilkinson itself. Maintaining this suit as a class action is necessary to assure that the rights of prisoners other than those of the named plaintiffs are protected, without the necessity of a multiplicity of individual actions scattered across Illinois.
CONCLUSION Plaintiffs meet the requirements of class certification under Rules 23(b)(1) or 23(b)(2). Allowing this case to be adjudicated as a class action will provide the fairest resolution for all class members and will provide the most efficient resolution of the controversy. Plaintiffs’ motion to certify the plaintiff class should be granted.

Alan Mills
Uptown People's Law Center
4413 North Sheridan Chicago, Illinois 60640 (773) 769-1411

Respectfully submitted,
s/Alan Mills Attorney for plaintiff

9

CERTIFICATE OF SERVICE
I hereby certify that on February 7, 2006, I electronically filed Memorandum of Law In Support of Motion to Certify Class with the Clerk of the Court using the CM/ECF system which will send notification of such filing to:
Christopher Higgerson Assistant Attorney General chiggerson@atg.state.il.us

Respectfully submitted,

Alan Mills
Uptown People's Law Center
4413 North Sheridan Chicago, Illinois 60640 (773) 769-1411

s/Alan Mills Attorney for plaintiff

10

 
 Case 3:00-cv-00162-GPM-DGW Document 156 Filed 09/12/2006 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) Consolidated with: ) CIVIL NO. 00-708-GPM )

MEMORANDUM AND ORDER

MURPHY, Chief District Judge:

This matter is before the Court on the motion for class certification brought by Plaintiffs

Robert Westefer, Mark Von Perbandt, Alejandro Villazana, Armando Tinajero, Corey Taylor,

Michael Sparling, Joe Sorrentino, Anibal Santiago, Tyshawn Ross, Edward Rodriguez, Vincente

Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene

Horton, George Harper, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch, Robert Felton,

Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mary Chapman, as the

administrator of the estate of Marcus Chapman, Roosevelt Burrell, Finner Bryant, Larry Brown, and

Aryules Bivens (Doc. 122). For the following reasons, the motion is GRANTED.

INTRODUCTION

Plaintiffs are past or present inmates of the closed maximum security unit at the Tamms Correctional Center (“Tamms”) in Tamms, Illinois.1 Defendants Donald Snyder, Odie Washington,

1. Plaintiffs’ operative complaint (Doc. 144) reflects that Plaintiffs Robert Westefer, Armando Tinajero, Michael Sparling, Tyshawn Ross, William Lasley, Eugene Horton, Larry Gambrell, Larry Foutch, Robert Felton, Laverne Clayton, Gary Clark, Roosevelt Burrell, Finner Bryant, and Aryules Bivens have been transferred out of Tamms since this action originally was filed. Mary Chapman
Page 1 of 25

Case 3:00-cv-00162-GPM-DGW Document 156 Filed 09/12/2006 Page 2 of 25
Michael V. Neal, George DeTella, Michael O’Leary, Dwayne Clark, Jerry Gilmore, Lamark Carter, Rodney Ahitow, Roger Cowan, Thomas Page, Roger Walker, Salvador Godinez, Guy Pierce, Barbara Hurt, Rick Orr, Ronald Meek, Jason Garnett, Deirdre Battaglia, Eddie Jones, Don Hulick, and Roger Zimmerman are past or present officers and employees of the Illinois Department of Corrections (“IDOC”). Plaintiffs bring this action pursuant to 42 U.S.C. § 1983. Count One of Plaintiffs’ operative complaint alleges that certain Plaintiffs were assigned to Tamms in retaliation for exercising their First Amendment right to file grievances and lawsuits regarding the conditions of their confinement. Count Two alleges that Plaintiffs were assigned to Tamms in violation of their Fourteenth Amendment procedural due process rights. Plaintiffs have moved pursuant to Rule 23(b)(1) and (b)(2) of the Federal Rules of Civil Procedure for certification of a class action as to their request for declaratory and injunctive relief on their procedural due process claims. As defined in Plaintiffs’ operative complaint, the proposed class includes, “All inmates who have been transferred to Tamms Correctional Center since January 1, 1998, and all prisoners who will be transferred to Tamms in the future.” Doc. 144 ¶ 140.
DISCUSSION A. Standard Governing Class Certification Rule 23 of the Federal Rules of Civil Procedure sets forth the prerequisites for a class action: (1) a proposed class must be so numerous that joinder of all members is impracticable (“numerosity”); (2) there must be a question of law or fact common to the class (“commonality”); (3) the claims or defenses of the representative parties must be typical of the claims or defenses of
is the mother of Marcus Chapman, who was originally a Plaintiff in this case until he committed suicide while in segregation at Tamms on August 26, 2004, whereupon Mrs. Chapman was appointed the administrator of his estate.
Page 2 of 25

Case 3:00-cv-00162-GPM-DGW Document 156 Filed 09/12/2006 Page 3 of 25
the class (“typicality”); and (4) the representative parties must fairly and adequately protect the interests of the class (“adequacy”). See FED. R. CIV. P. 23(a). In addition to satisfying these four elements, a party seeking class certification must also demonstrate that the action falls within one of the categories enumerated in Rule 23(b). See FED. R. CIV. P. 23(b)(1)-(3). See also Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302, 306 (N.D. Ill. 1995); Jefferson v. Security Pac. Fin. Servs., Inc., 161 F.R.D. 63, 67 (N.D. Ill. 1995). “When appropriate . . . an action may be brought or maintained as a class action with respect to particular issues, . . . and the provisions of [Rule 23] shall then be construed and applied accordingly.” FED. R. CIV. P. 23(c)(4).
A party seeking class certification bears the burden of proving that each of the requirements under Rule 23 has been met, see General Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 160 (1982); Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984), and a failure by the movant to satisfy any one of these prerequisite elements precludes certification. See Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993); Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993). “The court maintains broad discretion to determine whether a proposed class satisfies the requirements and should err in favor of maintaining class actions.” Guillory v. American Tobacco Co., No. 97 C 8641, 2001 WL 290603, at *2 (N.D. Ill. Mar. 20, 2001). See also First Interstate Bank of Nev., N.A. v. Chapman & Cutler, 837 F.2d 775, 781 (7th Cir. 1988); Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir. 1980); King v. Kansas City S. Indus., Inc., 519 F.2d 20, 25-26 (7th Cir. 1975).
In evaluating a request for class certification, a court must not weigh the merits of a case, see Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974); Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 895 (7th Cir. 1981), although the court must
Page 3 of 25

Case 3:00-cv-00162-GPM-DGW Document 156 Filed 09/12/2006 Page 4 of 25
“understand the claims, defenses, relevant facts and applicable substantive law in order to make a meaningful determination of certification issues.” Dhamer v. Bristol-Myers Squibb Co., 183 F.R.D. 520, 530 (N.D. Ill. 1998). See also Rahim v. Sheahan, No. 99 C 0395, 2001 WL 1263493, at *10 (N.D. Ill. Oct. 19, 2001) (quoting Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001)) (explaining that, in evaluating a request for class certification, a court must make a “preliminary inquiry … that has at its focus not the substantive strength or weakness of the plaintiffs’ claims but rather the merits of those allegations that bear on the suitability of a case for class treatment under Rule 23(a) and (b).”). Finally, even where the elements of class certification are not in dispute, a court has a duty to evaluate independently the proposed class to ensure its compliance with the requirements of Rule 23. See Davis v. Hutchins, 321 F.3d 641, 648-49 (7th Cir. 2003); Chapman v. Worldwide Asset Mgmt., L.L.C., No. 04 C 7625, 2005 WL 2171168, at *1 (N.D. Ill. Aug. 30, 2005).
B. Rule 23(a) Requirements 1. Numerosity
Rule 23(a) requires that a proposed class be “so numerous that joinder of all members is impracticable.” FED. R. CIV. P. 23(a)(1). “[A] class of more than 40 individuals raises a presumption that joinder is impracticable.” Carrier v. JPB Enters., Inc., 206 F.R.D. 332, 334 (D. Me. 2002). See also Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (“[W]hile there is no fixed numerosity rule, . . . generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.”). Correspondingly, courts have found the numerosity element satisfied where the putative class would number in the range of as few as ten to forty class members. See, e.g., Swanson v. American Consumer Indus.,
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Inc., 415 F.2d 1326, 1333 (7th Cir. 1969) (forty class members); Hendricks-Robinson v. Excel Corp., 164 F.R.D. 667, 671 (C.D. Ill. 1996) (thirty-eight class members); Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D. Ill. 1986) (twenty-nine class members).
In evaluating whether Rule 23(a)(1) is satisfied, a court is entitled to “make common sense assumptions in order to find support for numerosity.” Cannon v. Nationwide Acceptance Corp., No. 96 C 1136, 1997 WL 139472, at *2 (N.D. Ill. Mar. 25, 1997). See also Keele v. Wexler, No. 95 C 3483, 1996 WL 124452, at *3 (N.D. Ill. Mar. 19, 1996). “[A]lthough the one who asserts the class must show some evidence or reasonable estimate of the number of class members, if a plaintiff cannot provide precise numbers, a good faith estimate is sufficient to satisfy the numerosity requirement where it is difficult to assess the exact class membership.” Miller v. Spring Valley Props., 202 F.R.D. 244, 247 (C.D. Ill. 2001). In this case, Plaintiffs’ uncontradicted assertion is that the population of Tamms has been between two hundred and three hundred inmates since the prison opened, and that the current population of Tamms is two hundred and thirty-three inmates. In light of the current population of Tamms, as well as the population of inmates in IDOC custody likely to be transferred to Tamms in the future, it is reasonable to assume that the proposed class in this case numbers in the very least hundreds of persons. Therefore, the Court finds that the requirement of numerosity is met.
2. Commonality Under Rule 23(a), “questions of law or fact common to the class” must exist before a class may be certified. FED. R. CIV. P. 23(a)(2). “[T]he commonality requirement has been characterized as a ‘low hurdle’ [that is] easily surmounted,” Gaspar v. Linvatec Corp., 167 F.R.D. 51, 57 (N.D. Ill. 1996) (quoting Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181, 185 (N.D. Ill. 1992)),
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because, to satisfy commonality, a plaintiff need only show that there is “at least one question of law or fact common to the class.” Arenson v. Whitehall Convalescent & Nursing Home, Inc., 164 F.R.D. 659, 663 (N.D. Ill. 1996). See also Portis v. City of Chicago, No. 02 C 3139, 2003 WL 22078279, at *2 (N.D. Ill. Sept. 8, 2003); In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D. Ill. 1991). Generally commonality is satisfied as long as there is a “common nucleus of operative fact” as to the class members’ claims. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). See also Allen v. City of Chicago, 828 F. Supp. 543, 551 (N.D. Ill. 1993). Class certification will not be defeated solely because there are some factual variations among the grievances of the class members. See Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998); Patterson, 631 F.2d at 481. Also, “[w]hen a ‘question of law refers to standardized conduct by defendants toward members of the class, a common nucleus of operative facts is typically presented, and the commonality requirement is usually met.’” Maxwell v. Arrow Fin. Servs., LLC., No. 03 C 1995, 2004 WL 719278, at *4 (N.D. Ill. Mar. 31, 2004) (quoting Von Moore v. Simpson, No. 96 C 2971, 1997 WL 570769, at *3 (N.D. Ill. Sept. 10, 1997)).
This case clearly presents common questions of fact and law. Plaintiffs allege that they and other prisoners were assigned to Tamms without due process of law. They assert that the conditions of confinement at Tamms constitute an atypical and a significant hardship in relation to the ordinary incidents of prison life, such that they have a due process liberty interest in avoiding placement at the prison, and that adequate procedures have not been employed by IDOC to protect that interest. See Wilkinson v. Austin, 125 S. Ct. 2384, 2393-98 (2005). The chief questions presented by this case are whether Plaintiffs and the class have a liberty interest in avoiding assignment to Tamms and, if so, what procedures are constitutionally required to safeguard that interest. See Westefer v. Snyder,
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422 F.3d 570, 589-90 (7th Cir. 2005). The Court agrees with Plaintiffs that these common questions satisfy the requirements of Rule 23(a)(2). See Alliance to End Repression v. Rochford, 565 F.2d 975, 978-79 (7th Cir. 1977) (the requirement that there be a common question of law or fact was satisfied when the complaint in a class action alleged the existence of an unconstitutional pattern and practice of intelligence gathering by law enforcement authorities concerning various law-abiding organizations and individuals, fostered by the existence of a conspiracy among various federal and state law enforcement agencies); Johns v. DeLeonardis, 145 F.R.D. 480, 483 (N.D. Ill. 1991) (finding commonality satisfied in a putative class action by gypsies against police officers alleging unlawful searches and invasions of privacy arising from a police raid where “[t]he question of whether the raid violated the constitutional rights of the Plaintiffs is the sole issue presented by this case.”); Patrykus v. Gomilla, 121 F.R.D. 357, 359-60, 361 (N.D. Ill. 1988) (a class of all persons who were subjected to any of the unlawful seizures, detentions, searches, use of excessive force and interrogations, and photographing allegedly performed by agents of an intergovernmental law enforcement agency and a city police department during a raid at a bar primarily frequented by homosexual and bisexual men met the commonality requirement for class certification, because the overriding common legal issue of whether law enforcement agents violated the constitutional rights of class members by detaining, searching, interrogating, and photographing them, and by seizing materials from and about them, without arrest or search warrants, probable cause, or any other legal justification was raised by the consolidated complaint); Walters v. Thompson, 615 F. Supp. 330, 333-34 (N.D. Ill. 1985) (in a class action by prison inmates claiming that prison policies in regard to inmates in segregation deprived them of meaningful access to courts, the inmates were entitled to class certification of all persons who were presently or would be in
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segregation in state maximum security facilities; the class of inmates was large, legal questions concerning direct access to a law library or adequate alternatives were common to the class, the legal theory put forward by the inmates was common to all members of the class, and the inmates would be in segregation during the entire lawsuit and could effectively represent the class); Faheem-El v. Klincar, 600 F. Supp. 1029, 1036-37 (N.D. Ill. 1984) (a proposed class of persons subject to Illinois parole revocation proceedings met the requirement of Rule 23(a)(2); common questions of fact existed concerning procedures actually followed by the state, at least in defined geographical areas, and common questions of law existed concerning the constitutionality of the state’s handling of those accused of violating their parole); Johnson v. Brelje, 482 F. Supp. 121, 123-24 (N.D. Ill. 1979) (common questions of law and fact existed with respect to a class action challenging the legality of the transfer to a mental health center of individuals found not fit to stand trial, in view of allegations that the class members were victims of various discriminatory and otherwise illegal policies, were transferred without notice and hearing, were assigned to the high security facility as a result of improper classifications based on sex and charges of criminality, as well as alleged constitutional violations stemming from the conditions of confinement, the denial of temporary off-ground passes, and the failure to hold annual evaluations). Cf. Christy v. Hammel, 87 F.R.D. 381, 391-92 (M.D. Pa. 1980) (the question, in a civil rights action, whether the court should mandate disciplinary hearings before transfers of mental health patients to a maximum security ward was a common contention and satisfied the requirement that there be major questions of law or fact common to the class); United States v. Mancusi, 338 F. Supp. 311, 316 (W.D.N.Y. 1971) (the court found that there was a common question whether the plaintiffs, who were inmates at a state prison, were being denied due process by the failure of prison officials to hold proceedings before placing them in a more
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restrictive security section of the prison). 3. Typicality
Rule 23(a) requires a court to determine whether the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). “A plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). “The test of typicality is ‘whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.’” Beale v. EdgeMark Fin. Corp., 164 F.R.D. 649, 654 (N.D. Ill. 1995) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). The purpose of the typicality requirement is to ensure that the interests of the class representatives are aligned with the interests of the class as a whole. See Insolia v. Philip Morris Inc., 186 F.R.D. 535, 544 (W.D. Wis. 1998); Spencer v. Central States, S.E. & S.W. Areas Pension Fund, 778 F. Supp. 985, 989 (N.D. Ill. 1991).
“Typical does not mean identical, and the typicality requirement is liberally construed.” Gaspar, 167 F.R.D. at 57. Factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory. See De La Fuente, 713 F.2d at 232; Riordan, 113 F.R.D. at 63; Edmondson v. Simon, 86 F.R.D. 375, 381 (N.D. Ill. 1980). The requirement of typicality focuses on the conduct of a defendant and whether a proposed class representative has been injured by the same kind of conduct alleged against the defendant as other members of the
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proposed class. See Clay v. American Tobacco Co., 188 F.R.D. 483, 491 (S.D. Ill. 1999) (“The Court should concentrate on the defendants’ alleged conduct and the plaintiffs’ legal theory to satisfy Rule 23(a)(3).”). This is why a finding that commonality exists generally results in a finding that typicality also exists. See Rosario, 963 F.2d at 1018 (noting that the facts necessary to satisfy the commonality and typicality requirements for class certification are “closely related”); Arenson, 164 F.R.D. at 664 (“Because commonality and typicality are closely related, a finding of one often results in a finding of the other.”); Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 322, 333 n.13 (N.D. Ill. 1995) (“[A] finding of [commonality] generally compels a finding of [typicality].”).
In this case the named Plaintiffs’ claims are typical of those of the putative class members because the same set of policies and practices are allegedly applied to both the named Plaintiffs and the proposed class members in the same way and have all resulted in the same alleged deprivation of constitutional rights. In other words, both the named Plaintiffs and the class they seek to represent were subjected to the “same event or practice or course of conduct” by Defendants. De La Fuente, 713 F.2d at 232. “Thus, the named plaintiff[s’] interests are aligned with the proposed class, and . . . in pursuing their own claims . . . the named plaintiffs will also advance the interest of the class.” Guillory, 2001 WL 290603, at *4 (citing In re American Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996)). The Court concludes that the requirement of typicality is met.
4. Adequacy The final Rule 23(a) requirement for class certification is that “the representative parties will fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). In order to satisfy the requirements of Rule 23(a)(4), the class representative must “possess the same interest and suffer
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the same injury as the class members.” Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978, 985 (7th Cir. 2002) (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)).2 Thus, in evaluating adequacy, a court is required to make sure that there are no
inconsistencies between the interests of the named party and the class that he or she seeks to
represent. See id. (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997)). In general,
absent some showing to the contrary, adequacy of representation will be presumed. See Guarantee
Ins. Agency Co. v. Mid-Continental Realty Corp., 57 F.R.D. 555, 565-66 (N.D. Ill. 1972) (“Absent
any conflict between the interests of the representative and [other class members], and absent any
indication that the representative will not aggressively conduct the litigation, fair and adequate
protection of the class may be assumed.”). In this case Defendants do not contend that Plaintiffs are
inadequate class representatives. Moreover, the Court discerns nothing in the record to suggest that
Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Sparling, Sorrentino, Santiago, Ross,
Rodriguez, Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell,
Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, and Bivens are
not members of the class with the same interest as any other class member in seeking relief for the
2. The requirement of adequacy under Rule 23(a)(4) frequently is set out as a two-part inquiry: (1) whether the named plaintiff’s representation in protecting the distinct interests of class members is adequate and (2) whether the named plaintiff’s counsel is adequate. See, e.g., Rodriguez v. Ford Motor Credit Co., No. 01 C 8526, 2002 WL 655679, at *3 (N.D. Ill. Apr. 19, 2002) (citing Retired Chicago Police Ass’n, 7 F.3d at 598). However, in view of amendments to Rule 23 in 2003, it is clear that the inquiry into the adequacy of counsel is governed not by Rule 23(a)(4) but by Rule 23(g). The commentary to Rule 23 explains that, in light of the 2003 amendments, “Rule 23(a)(4) will continue to call for scrutiny of the proposed class representative, while [Rule 23(g)] will guide the court in assessing proposed class counsel as part of the certification decision.” FED. R. CIV. P. 23 advisory committee’s note. See also Jones v. Ford Motor Credit Co., No. 00Civ.8330RJHKNF, 2005 WL 743213, at *18 (S.D.N.Y. Mar. 31, 2005). Thus, because Rule 23(a)(4) no longer governs the selection of class counsel, the Court will address the adequacy of the proposed class counsel in this case in a later section of this Order.
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constitutional injuries alleged in the complaint.
The proposed class counsel in this case has advised the Court that Plaintiff Corey Taylor
desires for his claims to be severed from those of the class so that he can proceed on his claims by
way of a separate action. In light of the fact that Plaintiff Taylor does not wish to serve as a class
representative in this case, he is not an adequate class representative. See Nagel v. ADM Investor Servs., Inc., 217 F.3d 436, 442-43 (7th Cir. 2000); Harriston, 992 F.2d at 704; Minority Police
Officers Ass’n of South Bend v. South Bend, Ind., 555 F. Supp. 921, 925 (N.D. Ind. 1983); In re
Folding Carton Antitrust Litig., 88 F.R.D. 211, 213-14 (N.D. Ill. 1980). Cf. Vanguard Justice Soc’y,
Inc. v. Hughes, 471 F. Supp. 670, 676 (D. Md. 1979); Herbst v. Able, 45 F.R.D. 451, 453-54
(S.D.N.Y. 1968). Thus, apart from Plaintiff Taylor, the Court concludes that the requirement of
adequacy is met in this case.
C. Rule 23(b) Requirements
Because the Court finds that the requirements of Rule 23(a) are satisfied, it next examines
whether a class action can be maintained under one of Rule 23(b)’s three subsections. Plaintiffs seek
class certification under Rule 23(b)(1) and (b)(2). Rule 23(b) authorizes certification of a class
action if the prerequisites of subdivision (a) are satisfied, and in addition,
(1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct of the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
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FED. R. CIV. P. 23(b)(1), (b)(2). “[E]ach class member in actions for money damages is entitled as a matter of due process
to personal notice and an opportunity to opt out of the class action. Accordingly, Rule 23(c)(2) guarantees those rights for each member of a class certified under Rule 23(b)(3).” Lemon v. International Union of Operating Eng’rs, Local No. 139, AFL-CIO, 216 F.3d 577, 580 (7th Cir. 2000) (citation omitted). “However, the Federal Rules of Civil Procedure do not provide comparable procedural guarantees of those rights for a class certified under subsections (b)(1) or (b)(2), and as a result, Rule 23(b)(2) certification does not ensure personal notice or opportunity to opt out even if some or all the plaintiffs pray for monetary damages.” Id. See also Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894, 896 (7th Cir. 1999) (“If the action proceeds under Rule 23(b)(3), then each member of the class must receive notice and an opportunity to opt out and litigate (or not) on his own behalf . . . . If it proceeds under Rule 23(b)(2), by contrast, then no notice will be given, and no one will be allowed to opt out.”). Cf. In re WorldCom, Inc. ERISA Litig., No. 02 Civ. 4816(DLC), 2004 WL 2338151, at *8 (S.D.N.Y. Oct. 18, 2004) (“There is no opportunity under any Rule 23(b)(1)(B) class action to opt out[.]”).
In Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998), which has been adopted in this Circuit, see Lemon, 216 F.3d at 580; Jefferson, 195 F.3d at 898, the court explained the rationale for denying notice and an opportunity to opt out in Rule 23(b)(1) and (b)(2) class actions. In class actions where the relief sought is chiefly monetary, resolution of the class claims depends “on the intangible, subjective differences of each class member’s circumstances,” and “entail[s] complex individualized determinations.” Allison, 151 F.3d at 415. Put another way, “a class seeking substantial monetary remedies will more likely consist of members with divergent interests,”
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requiring class members to be afforded an opportunity to protect those interests through the devices of notice and opt-out. Id. at 413. By contrast, in Rule 23(b)(1) and (b)(2) classes, there is a “presumption[ ] with respect to the cohesiveness and homogeneity of interests among members of” the class, rendering the procedural safeguards applicable to Rule 23(b)(3) classes unnecessary. Id. at 412. Constitutional guarantees for absent members of a mandatory class are preserved through fulfillment of the adequacy of representation requirement of Rule 23(a) and the homogeneity requirements of Rule 23(b)(1) and (b)(2) associated with the necessary unitary adjudication of all claims. See id. at 412-15. See also In re Joint E. & S. Dist. Asbestos Litig., 78 F.3d 764, 777-78 (2d Cir. 1996) (denial of a motion to opt out of a class settlement in bankruptcy court asbestos litigation, which was filed by claimants who had already brought or intended to bring claims for asbestos-related injuries in the District of Columbia, was not an abuse of discretion, when the claimants did not suggest that the class representatives or their counsel lacked the requisite qualifications to represent them or had any antagonistic interests; the claimants had received fair and adequate representation of their rights, and the delicate balancing of interests reached in the settlement agreement would be upset if claimants were now allowed to opt out). With these principles in mind, the Court turns to the issue of whether class certification is appropriate under Rule 23(b)(1) and (b)(2).
1. Rule 23(b)(1) Requirements The Court concludes that class certification is appropriate in this case pursuant to Rule 23(b)(1). There clearly is a likelihood of separate suits subjecting IDOC to potentially incompatible standards of conduct. At least one case asserting a procedural due process claim arising from assignment to Tamms has been transferred to the docket of the undersigned
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District Judge from another division of the Court, and Plaintiff Taylor has indicated a desire to bring a separate action on his claims. Competing lawsuits concerning the subject matter of the class claims in this case have the potential to disrupt severely the orderly operations of IDOC and the Illinois prison system. See Berry v. Baca, 226 F.R.D. 398, 405-06 (C.D. Cal. 2005) (named plaintiffs who brought suit alleging that a sheriff’s continued detention of detainees in a county jail after court release orders amounted to deliberate indifference to their constitutional rights satisfied Rule 23(b)(1)(A); the sheriff would likely be subject to numerous separate actions absent certification and it was possible that those actions could lead to different and conflicting judgments, a result that would make it difficult for the sheriff to fashion a consistent release policy, should he have to, that would limit the county’s exposure to claims); Death Row Prisoners of Pa. v. Ridge, 169 F.R.D. 618, 623 (E.D. Pa. 1996) (plaintiffs seeking to certify a class consisting of all present and future state death-row inmates who had not yet filed petitions for habeas corpus review to challenge the state’s status under the Antiterrorism and Effective Death Penalty Act showed that prosecution of separate actions could create a risk of inconsistent or varying adjudications establishing incompatible standards of conduct for the state by showing that inconsistent adjudications could result each time the state asserted the relevant statute of limitations for appointment of habeas counsel); Franklin v. Barry, 909 F. Supp. 21, 31 (D.D.C. 1995) (class certification was warranted in an action alleging discrimination against Hispanic inmates in District of Columbia correctional institutions; separate actions against the correctional institutions would create a risk of inconsistent adjudications, if the plaintiffs were successful, the relief sought involved equitable relief as to the treatment of Hispanic prisoners in general, final injunctive relief would be dispositive of the claims of each class member, and common questions of law and fact predominated in the case).
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Cf. Cullen v. New York State Civil Serv. Comm’n, 435 F. Supp. 546, 562 (E.D.N.Y. 1977) (a civil rights action against governmental officials and political leaders on claims of coerced political contributions for job appointment or promotion within a county government was entitled to class certification since multiple litigation would create a very real risk that the defendants would be held to incompatible standards of conduct).
Also, it is probable that a judgment as to any class member’s claim for injunctive relief would be dispositive of the claims of the class as a whole. See Hilton v. Wright, 235 F.R.D. 40, 53 (N.D.N.Y. 2006) (granting Rule 23(b)(1)(B) class certification as to claims for injunctive and declaratory relief asserted by state inmates in challenging a former policy in which the New York State Department of Correctional Services (“DOCS”) and its chief medical officer had required that inmates with Hepatitis C complete a DOCS-sponsored substance abuse program to be eligible to receive a standard combination treatment, where individual resolution of such claims could affect the interests of absent class members, and the relief granted would apply equally to the inmates bringing the action and prospective class members); Ingles v. City of New York, No. 01 Civ. 8279(DC), 2003 WL 402565, at **7-8 (S.D.N.Y. Feb. 20, 2003) (certification of a plaintiff class, in a suit by prisoners seeking an injunction against the use of excessive force in New York City Department of Correction institutions, was warranted; prosecution of separate actions risked inconsistent judgments, and the injunctive relief being sought would benefit the entire class); Caroline C. v. Johnson, 174 F.R.D. 452, 467 (D. Neb. 1996) (granting Rule 23(b)(1)(B) certification of a class of women patients in an action against officials and psychiatrists at a state-supported mental health institution alleging failure to protect the plaintiffs from assaults by male patients: “An adjudication on the merits of the claims of the named plaintiffs in this case would, as a practical
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matter, be dispositive of the interests of the other members of the class. Any change in the policy or practices of the defendants at [the hospital] would affect absent members of the class, because they are or will be subject to those policies or practices.”). Therefore, the Court will grant class certification pursuant to Rule 23(b)(1) in this case.
2. Rule 23(b)(2) Requirements The Court concludes that class certification is appropriate in this case pursuant to Rule 23(b)(2). As discussed, Rule 23(b)(2) provides that a class can be certified if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” FED. R. CIV. P. 23(b)(2). The commentary to Rule 23 describes the intended role of Rule 23(b)(2) class actions as being to furnish “final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the [defendant’s] behavior with respect to the class as a whole[.]” FED. R. CIV. P. 23 advisory committee’s note. See also Jefferson, 195 F.3d at 897-98. Class certification under Rule 23(b)(2) is not proper in “cases in which the appropriate final relief relates exclusively or predominantly to money damages.” FED. R. CIV. P. 23 advisory committee’s note. In this case Plaintiffs seek no monetary relief, only declaratory and injunctive relief as to their procedural due process claims.3 Also, this is of course a civil rights action to enjoin allegedly unconstitutional practices. Providing a vehicle for redressing civil rights violations on a classwide
3. The Court questions whether damages are recoverable on the due process claims alleged in this case in light of the doctrine of qualified immunity, see Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Lagerstrom v. Kingston, No. 05-C-718-C, 2005 WL 3555416, at **3-4 (W.D. Wis. Dec. 27, 2005), although of course it is not necessary to decide this issue in order to resolve Plaintiffs’ request for class certification.
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basis through injunctive or declaratory relief is the fundamental purpose of Rule 23(b)(2). See FED. R. CIV. P. 23 advisory committee’s note; Fujishima v. Board of Educ., 460 F.2d 1355, 1360 (7th Cir. 1972). Cf. Penson v. Terminal Transp. Co., 634 F.2d 989, 993 (5th Cir. 1981); Inmates of Lycoming County Prison v. Strode, 79 F.R.D. 228, 234 (M.D. Pa. 1978). Correspondingly, Rule 23(b)(2) is routinely employed as a tool to vindicate the civil rights of prison inmates. See, e.g., Lewis v. Washington, 197 F.R.D. 611, 612-13 (N.D. Ill. 2000) (a suit by inmates challenging their placement in protective custody status was maintainable as a class action under Rule 23(b)(2); injunctive or declaratory relief was the predominant form of relief sought, and the defendants acted on grounds common to the class by putting them in a particular custody status and subjecting them to the treatment alleged); Walters, 615 F. Supp. at 335 (granting Rule 23(b)(2) class certification in a suit by prison inmates in segregation units in Illinois prisons against state corrections officials, alleging the inmates were denied meaningful access to courts); Williams v. Lane, 96 F.R.D. 383, 386-87 (N.D. Ill. 1982) (a suit by prisoners challenging conditions of confinement in the protective custody unit of a correctional center met the requirements of Rule 23(b)(2) that the defendants acted or refused to act on grounds generally applicable to the class, making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole, and the same was true though the plaintiffs also sought some monetary relief); Lewis v. Tully, 96 F.R.D. 370, 378 (N.D. Ill. 1982) (granting Rule 23(b)(2) class certification in a suit challenging the constitutionality of post-discharge detention procedures as to persons held in custody in the Cook County Department of Corrections); Hendrix v. Faulkner, 525 F. Supp. 435, 444 (N.D. Ind. 1981) (an action by prisoners challenging significant delays in medical treatment, the overall minimal level of health care, and overcrowding at a prison as violative of the Eighth Amendment was maintainable
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as a Rule 23(b)(2) class action), rev’d on other grounds sub nom. Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983); Robert E. v. Lane, 530 F. Supp. 930, 944 (N.D. Ill. 1981) (an action by inmates against prison administrators alleging constitutionally deficient mental health treatment could be certified as a class action under Rule 23(b)(2)); Green v. Cady, 90 F.R.D. 622, 624 (E.D. Wis. 1981) (in a suit challenging conditions of confinement in a penal institution’s adjustment center, certifying pursuant to Rule 23(b)(2) a class of “persons who are or will be confined in the Waupun Correctional Institution and thus are subject to confinement in WCI’s Adjustment Center.”); Wetmore v. Fields, 458 F. Supp. 1131, 1133-34 (W.D. Wis. 1978) (granting Rule 23(b)(2) class certification as to a request by prison inmates for injunctive relief requiring prison officials to follow the nondiscretionary duties of providing and maintaining an adequate law library or inmate legal-assistance program and seeking a declaration that the University of Wisconsin Legal Assistance to Inmates program denied the inmates meaningful access to the courts). Cf. Thomas v. Baca, 231 F.R.D. 397, 403 (C.D. Cal. 2005) (an action under 42 U.S.C. § 1983 by county jail detainees alleging that a sheriff’s department had required them to sleep on cell floors while detained, was maintainable as a class action on the basis that the department had acted on grounds generally applicable to the class; the department was alleged to have a floor-sleeping policy that was generally applicable to all detainees, and the class comprised present and future detainees as well as former ones, so that injunctive relief was appropriate); Bradley v. Harrelson, 151 F.R.D. 422, 427 (M.D. Ala. 1993) (class certification under Rule 23(b)(2) was appropriate in an action challenging deficiencies in the system for delivering mental health care to seriously mentally ill inmates in the Alabama prison system); Carver v. Knox County, Tenn., 753 F. Supp. 1370, 1374 (E.D. Tenn. 1989) (an action by inmates and pretrial detainees claiming that various conditions at a county jail violated
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Case 3:00-cv-00162-GPM-DGW Document 156 Filed 09/12/2006 Page 20 of 25
the Eighth and Fourteenth Amendments was certified as a Rule 23(b)(2) class action), rev’d in part on other grounds, 887 F.2d 1287 (6th Cir. 1989); Robbins v. Kleindienst, 383 F. Supp. 239, 240-41 (D.D.C. 1974) (a claim alleging that any transfer of a federal prisoner to a more secure penal institution, for whatever reason, is violative of due process under the Fifth and Sixth Amendments when accomplished without adequate written standards to control those transfers and when accomplished without a notice, a hearing, and other procedural safeguards was maintainable as a class action under Rule 23(b)(2)). The Court will grant class certification pursuant to Rule 23(b)(2).
D. Defendants’ Objections to Class Certification Because the Court is mindful of the considerations of federalism and comity that obtain when a federal court is asked to grant injunctive relief against state prison officials, see Carr v. Whittenburg, No. 3:01-cv-625-DGW, 2006 WL 1207286, at *3 (S.D. Ill. Apr. 28, 2006), the Court has given careful attention to Defendants’ objections to class certification. However, the Court finds that Defendants’ objections fail to make a convincing case against certifying for classwide resolution Plaintiffs’ request for declaratory and injunctive relief as to their procedural due process claims. For example, Defendants argue that Plaintiffs and other inmates at Tamms have received all of the process they are due and that Plaintiffs seek injunctive relief the Court does not have the power to grant. These contentions obviously concern the merits of Plaintiffs’ claims, a matter that, as discussed, is not before the Court at this time. See Retired Chicago Police Ass’n, 7 F.3d at 598; Feldman v. Motorola, Inc., No. 90 C 5887, 1994 WL 160117, at *1 (N.D. Ill. Jan. 31, 1994); Hardin v. Harshbarger, 814 F. Supp. 703, 706 (N.D. Ill. 1993); In re VMS Sec. Litig., 136 F.R.D. at 473.
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Case 3:00-cv-00162-GPM-DGW Document 156 Filed 09/12/2006 Page 21 of 25
Defendants also argue somewhat cryptically that classwide relief cannot be granted because Plaintiffs and other Tamms inmates may or may not possess a due process liberty interest in avoiding assignment to the prison in the future. The existence of a liberty interest in this case depends of course on the conditions of confinement and whether those conditions constitute an atypical and significant hardship in relation to the ordinary incidents of prison life. See Wilkinson, 125 S. Ct. at 2393-95; Sandin v. Conner, 515 U.S. 472, 483-84 (1995); Westefer, 422 F.3d at 589-90. If Defendants are suggesting that conditions at Tamms may become less restrictive in the future, the Court finds this unlikely – as Plaintiffs allege, Tamms is designed to be highly punitive, in order to discourage inmates at other IDOC prisons from committing acts likely to cause them to be sent there, see Westefer, 422 F.3d at 589 – and, in any event, it is well settled that a voluntary cessation of complained-of conduct generally does not moot a lawsuit. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288-89 (1982); United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953); Edwards v. Illinois Bd. of Admissions to Bar, 261 F.3d 723, 728 (7th Cir. 2001); Kikumura v. Turner, 28 F.3d 592, 597 (7th Cir. 1994); Rabinowitz v. Board of Junior Coll. Dist. 508, State of Ill., 507 F.2d 1255, 1256 (7th Cir. 1974).
Finally, to the extent Defendants object to the inclusion in the proposed class of persons in IDOC custody who have been, but no longer are, confined at Tamms, the Court disagrees. Although, as discussed, several Plaintiffs in this case have been transferred from Tamms since the case began, it has not been shown that they are no longer in IDOC custody and thus no longer are in danger of assignment to Tamms. The Court agrees that it would be improper to include persons who are no longer in IDOC custody in the class, but the Court sees no impropriety in including in the class former Tamms inmates who remain in IDOC custody. See Ahrens v. Thomas, 570 F.2d
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Case 3:00-cv-00162-GPM-DGW Document 156 Filed 09/12/2006 Page 22 of 25
286, 288 (8th Cir. 1978) (affirming the certification of a class of “all present and future pretrial detainees at the Platte County Jail”); Coleman v. Wilson, 912 F. Supp. 1282, 1293 (E.D. Cal. 1995) (certifying a class of “all inmates with serious mental disorders who are now or who will in the future be confined within the California Department of Corrections[.]”); Scarpino v. Grosshiem, 852 F. Supp. 798, 807 (S.D. Iowa 1994) (class certification under Rule 23(b)(2) was appropriate for a class of inmates who had been enrolled, were currently enrolled, or would in the future be enrolled in an alcoholic rehabilitation program in a suit challenging the constitutionality of the program). See also Johnson, 482 F. Supp. at 123 (in a civil rights class action on behalf of prison inmates, stating, “The fact that the classes may include persons who are not identifiable at the present, or that class membership may change by the end of trial, is no impediment to the certification of these classes.”). Cf. Anderson v. Coughlin, 119 F.R.D. 1, 3 (N.D.N.Y. 1988) (observing that, where class certification is sought under Rule 23(b)(2), “precise definition [of the class] is not as important as it may be under other class certification rules,” given that the relief sought is predominantly equitable relief against a defendant’s allegedly unlawful conduct directed to the class as a whole).
The Court is quite firmly of the view that it is in the interest of all of the parties to this case, including IDOC and its officers and employees, for the question of whether assignment to Tamms implicates a due process liberty interest and, if so, what process is required to protect that interest to be resolved on a classwide basis in a single proceeding, rather than piecemeal through potentially scores of separate lawsuits that are likely to yield conflicting results and that are certain to consume public resources for their defense. See Jones v. Smith, 784 F.2d 149, 151 (2d Cir. 1986) (recommending to district courts that they consider class certification as to a rising volume of civil
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Case 3:00-cv-00162-GPM-DGW Document 156 Filed 09/12/2006 Page 23 of 25
rights lawsuits brought by prison inmates pertaining to a single constitutional issue).4 Defendants’ objections to class certification are overruled.
E. Adequacy of Counsel As a final matter, the Court addresses the issue of adequacy of counsel. Rule 23 of the Federal Rules of Civil Procedure provides, in pertinent part, “Unless a statute provides otherwise, a court that certifies a class must appoint class counsel.” FED. R. CIV. P. 23(g)(1)(A). The rule provides further that “[a]n attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.” FED. R. CIV. P. 23(g)(1)(B). In evaluating proposed class counsel, a court must consider: the work counsel has done in identifying or investigating potential claims in the action; counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in the action; counsel’s knowledge of the applicable law; and the resources counsel will commit to representing the class. See FED. R. CIV. P. 23(g)(1)(C)(i). Also, the court may consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” FED. R. CIV. P. 23(g)(1)(C)(ii). Finally, the court “may direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs.” FED. R. CIV. P. 23(g)(1)(C)(iii). In this instance, Alan S. Mills of the Uptown People’s Law Center in Chicago, Illinois, seeks appointment as class counsel. Defendants do not dispute the adequacy of Mr. Mills to serve as class
4. For this reason the Court in its discretion will permit no opting-out of the class in this case. See Bradley v. Amsted Indus., Inc., No. 01 C 2963, 2004 WL 1745752, at *3 (N.D. Ill. July 30, 2004); Tylka v. Gerber Prods. Co., 178 F.R.D. 493, 501 n.8 (N.D. Ill. 1998); Montgomery v. Aetna Plywood, Inc., No. 95 C 3193, 1996 WL 189347, at *5 (N.D. Ill. Apr. 16, 1996); Williams v. Lane, 129 F.R.D. 636, 639 n.5 (N.D. Ill. 1990). Cf. Smith v. University of Wash. Law Sch., 2 F. Supp. 2d 1324, 1345 (W.D. Wash. 1998).
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counsel in this matter, and the Court concludes that he is well qualified to represent the class. Mr. Mills has extensive experience representing prisoners in civil rights litigation, including class action litigation. See, e.g., Walters, 615 F. Supp. at 332-35. He has litigated this case ably to date, showing that he has the experience and resources to conduct the representation of the class to its conclusion. Although the Court is not familiar with any fee arrangements Mr. Mills has with his clients, the Court assumes that, if the class prevails, Mr. Mills will seek an award of reasonable attorney’s fees pursuant to 42 U.S.C. § 1988(b). The Court concludes that Mr. Mills is adequate to serve as class counsel in this case.5
CONCLUSION Plaintiffs’ motion for class certification (Doc. 122) is GRANTED. Pursuant to Rule 23(b)(1) and (b)(2) of the Federal Rules of Civil Procedure, the Court hereby certifies as a class action Plaintiffs’ request for declaratory and injunctive relief as to Count Two of their operative complaint (Doc. 144). The class is defined as follows: All inmates who have been transferred to Tamms Correctional Center since January 1, 1998, and all prisoners who will be transferred to Tamms in the future. The Court APPOINTS Plaintiffs Robert Westefer, Mark Von Perbandt, Alejandro Villazana, Armando Tinajero, Michael Sparling, Joe Sorrentino, Anibal Santiago, Tyshawn Ross, Edward Rodriguez, Vincente Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Timothy Hall, John Gill, Larry Gambrell, Larry Foutch,
5. The Court notes that, since Plaintiffs filed their motion for class certification, attorneys Lawrence A. Wojcik, Colleen E. McManus, and Paul Homer, all of the firm of DLA Piper Rudnick Gary Cary US, LLP, in Chicago, Illinois, have entered their appearance on behalf of Plaintiffs. If these attorneys wish to be appointed class counsel in this case, they are advised to submit to the Court an appropriate motion and supporting documentation pursuant to Rule 23(g) of the Federal Rules of Civil Procedure.
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Case 3:00-cv-00162-GPM-DGW Document 156 Filed 09/12/2006 Page 25 of 25 Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark, Mary Chapman, as the administrator of the estate of Marcus Chapman, Roosevelt Burrell, Finner Bryant, Larry Brown, and Aryules Bivens as representatives of the class. The Court APPOINTS Alan S. Mills of the Uptown People’s Law Center, Chicago, Illinois, as class counsel.
IT IS SO ORDERED. DATED: 09/12/06
s/ G. Patrick Murphy
G. PATRICK MURPHY Chief United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) Consolidated with: ) CIVIL NO. 00-708-GPM )

MEMORANDUM AND ORDER

MURPHY, District Judge:

I. INTRODUCTION

This matter, which currently is before the Court on cross-motions for partial summary

judgment (Docs. 266 and 270), involves consolidated cases alleging civil rights violations under 42

U.S.C. § 1983. The consolidated cases are Westefer v. Snyder, Civil No. 00-162-GPM

(S.D. Ill. filed Mar. 7, 2000), and Cunningham v. Snyder, Civil No. 00-708-GPM

(S.D. Ill. filed Sept. 11, 2000); Case No. 00-162 is the lead case. Most of the Plaintiffs in the

consolidated cases, specifically, Robert Westefer, Mark Von Perbandt, Alejandro Villazana,

Armando Tinajero, Corey Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago, Tyshawn Ross,

Edward Rodriguez, Vincente Rodriguez, Vincent Reyna, Alex Muller, William Lasley, Ted Knox,

Michael Johnson, Eugene Horton, George Harper, Timothy Hall, John Gill, Larry Gambrell,

Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman, Laverne Clayton, Gary Clark,

Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, and Bennie Cunningham, are past

and present inmates of the closed maximum security (“supermax”) unit at Tamms Correctional

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Center (“Tamms”) in Tamms, Illinois.1 Plaintiff Mary Chapman is the mother of Marcus Chapman, who was originally a named Plaintiff in Case No. 00-162 but who committed suicide while in segregation at Tamms on August 26, 2004; following his death his mother was named administrator of his estate and was substituted as a Plaintiff in his stead in Case No. 00-162 in February 2006. Named as Defendants in the consolidated cases are Donald Snyder, Odie Washington, Michael V. Neal, George DeTella, Michael O’Leary, Dwayne Clark, Jerry Gilmore, Lamark Carter, Rodney Ahitow, Roger Cowan, Thomas Page, Roger Walker, Salvador Godinez, Guy Pierce, Barbara Hurt, Rick Orr, Ronald Meek, Jason Garnett, Dierdre Battaglia, Eddie Jones, Don Hulick, Roger Zimmerman, Richard McVicar, George C. Welborn, Angela Winsor, Homer Markel, and Jack Hartwig, who are past and present employees of the Illinois Department of Corrections (“IDOC”).
Plaintiffs Von Perbandt, Taylor, Sparling, Sorrentino, Santiago, V. Rodriguez, E. Rodriguez, Lasley, Knox, Horton, Harper, Felton, Combs, Clayton, Chapman, Burrell, Bivens, and Cunningham assert claims under 42 U.S.C. § 1983 alleging that they were assigned by Defendants to the supermax prison at Tamms in retaliation for filing grievances and lawsuits and engaging in other protected activities challenging the conditions of their confinement, in violation of the First and Fourteenth Amendments to the Constitution.2 Additionally, Plaintiffs Westefer, Von Perbandt, Villazana,
1. The operative complaint in Case No. 00-162 (Doc. 144) reflects that since the commencement of this lawsuit Plaintiffs Westefer, Tinajero, Sparling, Ross, Lasley, Horton, Gambrell, Foutch, Felton, Clayton, Clark, Burrell, Bryant, and Bivens have been transferred out of Tamms. The Court notes that there is also a minimum security facility at Tamms; all references to Tamms in this Order are to the supermax facility at Tamms. 2. The original complaint in Case No. 00-162 asserted also a retaliation claim on behalf of Plaintiff Ronnie Carroll. However, Carroll was terminated as a party to this litigation in February 2006.
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Tinajero, Taylor, Sparling, Sorrentino, Santiago, Ross, V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, Bivens, and Cunningham assert claims under Section 1983 alleging that Defendants assigned them to the Tamms supermax prison without notice and an opportunity to be heard, in violation of Plaintiffs’ Fourteenth Amendment right of procedural due process.
The procedural history of this matter relevant to the instant cross-motions for partial summary judgment is as follows. On December 20, 2000, the Court entered an order dismissing, inter alia, the procedural due process claims asserted in Case No. 00-162 for failure to state a claim upon which relief can be granted; on January 23, 2002, the Court modified that order to make the dismissal with prejudice. On July 28, 2003, the Court granted summary judgment in Case No. 00-162 for Defendants Snyder, Washington, Neal, DeTella, O’Leary, Clark, Gilmore, Carter, Ahitow, Cowan, and Page. In that order the Court dismissed with prejudice the retaliation claims of Plaintiffs Von Perbandt, Taylor, Sparling, Sorrentino, E. Rodriguez, Lasley, Knox, Harper, Combs, Clayton, Chapman, Carroll, Burrell, and Bivens on the grounds that those Plaintiffs had failed to show a genuine issue of material fact for trial. Also, the Court dismissed without prejudice the retaliation claims of Plaintiffs Santiago, V. Rodriguez, Horton, and Felton for failure to exhaust administrative remedies as required under 42 U.S.C. § 1997e(a). Judgment was duly entered. The United States Court of Appeals for the Seventh Circuit subsequently reversed this Court’s dismissal of the procedural due process claims in Case No. 00-162 for failure to state a claim upon which relief can be granted, as well as the grant of summary judgment on the retaliation claims in the case. See Westefer v. Snyder, 422 F.3d 570, 590 (7th Cir. 2005). Additionally, the court found that there was
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a question of fact as to whether any administrative procedure exists for grieving an assignment to
Tamms and reversed this Court’s dismissal of the retaliation claims of Plaintiffs Santiago,
V. Rodriguez, Horton, and Felton for failure to exhaust administrative remedies. See id. at 579-81.
See also Thomas v. Walker, Civil No. 05-380-JPG, 2007 WL 2198936, at *3 (S.D. Ill.
July 25, 2007). Following remand of Case No. 00-162 to this Court, on September 12, 2006, the
Court granted class certification as to the procedural due process claims asserted in Case No. 00-162,
defining the class as “All inmates who have been transferred to Tamms Correctional Center since
January 1, 1998, and all prisoners who will be transferred to Tamms in the future.” Westefer v.
Snyder, Civil Nos. 00-162-GPM, 00-708-GPM, 2006 WL 2639972, at *12 (S.D. Ill. Sept. 12, 2006).
Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Sparling, Sorrentino, Santiago, Ross,
V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill,
Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, and
Bivens were appointed representatives of the class; Alan S. Mills of the Uptown People’s Law Center in Chicago, Illinois, was appointed counsel for the class. See id.3
Turning then to the cross-motions for partial summary judgment that have been filed in this
matter, at this time Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Sparling, Sorrentino,
3. The Court notes that Mills currently is being assisted in his representation of Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Sparling, Sorrentino, Santiago, Ross, V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, Bivens, and the class by attorneys from the firm of DLA Piper US, LLP (“DLA Piper”), in Chicago, although DLA Piper has not moved to be appointed class counsel. The Court notes also that Plaintiff Taylor, although originally represented by Mills, has been proceeding pro se on his retaliation claim since December 2006. See Westefer v. Snyder, Civil Nos. 00-162-GPM, 00-708-GPM, 2006 WL 5240411 (S.D. Ill. Dec. 20, 2006). See also Westefer v. Snyder, No. 00-162-GPM, 2008 WL 131166 (S.D. Ill. Jan. 9, 2008).
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Santiago, Ross, V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, and Bivens seek summary judgment for themselves and the class that they have a due process liberty interest in avoiding assignment to Tamms that has been violated by Defendants; the movants reserve for trial the question of precisely what constitutional process is due inmates before they may be assigned to Tamms. In turn, Defendants Snyder, Washington, Neal, DeTella, O’Leary, Clark, Gilmore, Ahitow, Cowan, and Page seek partial summary judgment that: they are shielded by the doctrine of qualified immunity from liability for damages on the procedural due process claims of Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Taylor, Sparling, Sorrentino, Santiago, Ross, V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, and Bivens; Plaintiff Santiago’s retaliation claim is barred by claim preclusion or issue preclusion; the qualified immunity doctrine bars the retaliation claims of Plaintiffs V. Rodriguez and Harper; and the doctrine of personal involvement precludes liability for Defendant Snyder on the retaliation claims of Plaintiffs Von Perbandt, Taylor, Sparling, Sorrentino, E. Rodriguez, Lasley, Knox, Horton, Felton, Combs, Clayton, Chapman, Burrell, Bivens, and Cunningham. The Court will address first Plaintiffs’ motion for partial summary judgment, then Defendants’ motion for partial summary judgment.
II. ANALYSIS Rule 56 of the Federal Rules of Civil Procedure provides, in pertinent part, that “[a] party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim . . . . at any time after . . . 20 days have passed from commencement of the
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action[.]” Fed. R. Civ. P. 56(a)(1). The rule provides also that “[a] party against whom relief is sought may move at any time, with or without supporting affidavits, for summary judgment on all or part of the claim.” Fed. R. Civ. P. 56(b). Summary judgment may be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In considering a summary judgment motion, a court must review the entire record and draw all reasonable inferences in the light most favorable to the non-moving party. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995); Enquip, Inc. v. Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir. 1981). On summary judgment a court may not make credibility determinations or weigh the evidence, because these are tasks for a factfinder. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Betaco, Inc. v. Cessna Aircraft Co., 32 F.3d 1126, 1138 (7th Cir. 1994). In evaluating a motion for summary judgment, “[t]he court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). “Importantly, the mere fact that all parties to an action have moved for summary judgment does not, in itself, show the absence of any genuine issue for trial. ‘Counter-motions for summary judgment do not automatically empower the court to dispense with the determination of whether questions of material fact exist.’” Boeckman v. A.G. Edwards, Inc., Civil No. 05-658-GPM, 2007 WL 4225740, at *1 (S.D. Ill. Aug. 31, 2007) (quoting Krawczyk v. Harnischfeger Corp., 869 F. Supp. 613, 621 (E.D. Wis. 1994)). “Merely because both parties move for summary judgment does not mean that one party must prevail. If neither party demonstrates that summary judgment in its favor is warranted, neither motion will be granted.” Id.
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A. Plaintiffs’ Motion for Partial Summary Judgment As noted, the Court is asked to give summary judgment for Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Sparling, Sorrentino, Santiago, Ross, V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, Bivens, and the class on the questions of whether they possess a due process liberty interest in avoiding assignment to the supermax facility at Tamms and whether they have been deprived of that interest without due process, as the movants must show in order to prevail on the classwide due process claims. See Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (prisoners, to prevail on procedural due process claims, must show that they possess a liberty interest and have been deprived of that interest without due process). In the prison context, and more specifically in the context of assignments to segregated confinement, liberty interests “will be generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In order to determine whether conditions of confinement impose “an atypical and significant hardship within the correctional context,” those conditions must be measured against a baseline. Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005). In Wilkinson the Court, noting that the federal courts of appeals had not reached agreement on the appropriate baseline, held that conditions of confinement at the Ohio State Penitentiary (“OSP”), which, like Tamms, is a supermax prison, imposed atypical and significant hardship on inmates there “under any plausible baseline.” Id. at 223. In Wagner v. Hanks, 128 F.3d 1173 (7th Cir. 1997), the court held that the correct baseline for determining whether conditions of confinement in a state prison impose atypical and significant
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hardship on inmates such as to give rise to a liberty interest is the conditions of non-disciplinary segregation in the state’s most restrictive prison. See id. at 1175. The Wagner court reasoned that it would be arbitrary to compare conditions in disciplinary segregation with conditions in non-disciplinary segregation in less restrictive prisons because under Sandin whether conditions of confinement impose atypical and significant hardship must be tested in relation to the ordinary incidents of prison life and such incidents must be measured in relation to the harshest conditions of non-disciplinary segregation in a state prison system. See id. In this instance the baseline established in Wagner is difficult to apply because, the parties agree, Tamms is the most restrictive prison in the IDOC system and conditions of confinement there are approximately the same for inmates assigned to the supermax prison in both disciplinary segregation and non-disciplinary segregation. When the Court attempted to apply the Wagner baseline earlier in Case No. 00-162, the Seventh Circuit Court of Appeals reversed the Court, as already has been discussed, holding that Wilkinson compelled the use of a different baseline standard. See Westefer, 422 F.3d at 585-86. The Westefer court invited this Court, following remand of Case No. 00-162 from the reviewing court, to apply either the Wilkinson “any plausible baseline” standard or a different baseline of the Court’s choosing. See id. at 589-90.
Having considered the matter carefully, the Court concludes that Wilkinson furnishes the correct baseline in this matter. In Wilkinson the Court examined the aggregate of conditions at the OSP in evaluating whether they imposed atypical and significant hardship on inmates such as to give rise to a liberty interest. The Court noted the OSP’s “especially severe limitations on all human contact,” and went on to discuss “two added components.” Wilkinson, 545 U.S. at 224. These were the indefinite duration of an inmate’s placement at the prison, and the disqualification of an
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otherwise eligible inmate for parole consideration. See id. The Court observed, “While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP.” Id. (citing Sandin, 515 U.S. at 483). Counsel for Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Sparling, Sorrentino, Santiago, Ross, V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, Bivens, and the class agrees that the correct baseline in this case is furnished by the Wilkinson standard requiring the Court to evaluate the aggregate of conditions at the Tamms supermax prison in determining whether inmates have a liberty interest in avoiding assignment to the prison.
The Court turns then to the evidence adduced by the Plaintiffs seeking partial summary judgment concerning the aggregate of conditions at the Tamms supermax facility. The moving Plaintiffs assert that: conditions of confinement at Tamms are deliberately designed to be extraordinarily harsh, to encourage inmates at other prisons to comply with all disciplinary rules to avoid assignment to Tamms; assignment to Tamms is for an indefinite time, with the only limit on the time a prisoner can be confined to Tamms being the length of the prisoner’s sentence; Tamms is located in a remote rural area hundreds of miles from Chicago, where the families of most Tamms inmates reside, thus limiting the ability of inmates to receive familial visits; Tamms inmates spend between twenty-three and twenty-four hours a day in their cells; only inmates who reach certain behavioral levels in non-disciplinary segregation are permitted to have a television or radio; cell doors at Tamms are constructed of steel mesh with a food slot that is locked from the outside;
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inmates cannot see other inmates while in their cells; inmates are required to eat in their cells; inmates are single celled and cannot visit with other inmates; inmates cannot participate in communal religious services or educational and work programs; inmates are shackled and body searched when they leave their cells, except for exercise and showers; inmates in the most restricted categories at Tamms are allowed to leave their cells for only one hour per week to exercise and shower, while inmates in the least restricted categories are permitted only seven hours of yard time and five showers per week; exercise takes place in a concrete yard about fifteen by thirty feet that is completely empty, and inmates may go weeks without leaving their cells to exercise because their privileges have been revoked; all inmate visits are non-contact and take place through a glass wall, with inmates being restrained during visits; communication between inmates and visitors takes place using an intercom system that allows only one person to talk at a time, and conversations may be monitored; absent emergencies, non-attorney visits must be arranged two weeks in advance for a specific time, and if a visitor arrives twenty minutes late for a scheduled visit, the visitor can be denied permission to visit an inmate; inmate telephone calls are prohibited, except for legal calls and emergencies, and inmates may not initiate calls to their attorneys; and inmates are not eligible for awards of meritorious good time.
The moving Plaintiffs assert also that Tamms inmates are not eligible to participate in substance abuse programs, and that Tamms inmates must complete a gang renunciation process as a prerequisite to transfer to a lower security prison. Additionally, they claim, Tamms inmates have less access to law library facilities and legal assistance than inmates at other prisons, cannot talk with physicians and religious representatives outside the presence of correctional officers, and are more restricted in the property they can possess than at other prisons; also, the selection of goods and the
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prices at the Tamms commissary are worse than at other prisons. The movants contend that conditions at Tamms are as harsh as those at the OSP and are harsher than at any other prison in Illinois. They also proffer evidence by Dr. Terry Kupers, an expert on the effect of confinement in supermax prisons on the mental health of inmates of such prisons who is familiar with conditions at both Tamms and the OSP, showing that confinement at Tamms amounts to a virtually complete absence of human contact and virtual sensory deprivation for inmates, with severe consequences for the mental health of inmates assigned long-term to Tamms.
In response, Defendants argue that the baseline in this case should be fixed by conditions in the IDOC system, not by conditions at prisons out of state such as the OSP. This point is a cogent one. The Wilkinson Court noted that “a liberty interest in avoiding particular conditions of confinement . . . arise[s] from state policies or regulations,” meaning in this instance, of course, policies and regulations of Illinois. 545 U.S. at 222. As the Wilkinson Court noted also, “the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves ‘in relation to the ordinary incidents of prison life.’” Id. at 223 (quoting Sandin, 515 U.S. at 484). The basic question, in other words, is the sort of “expectation or interest” prisoners in the IDOC system may have in light of the normal conditions of confinement prevailing in that system. Id. at 221 (citing Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974)). On the other hand, as the court pointed out in Wagner, it perhaps is not the case under Sandin that conditions of confinement must be tested by standards within a single state, given that state prison inmates frequently are confined in out-of-state prisons pursuant to interstate compacts. See 128 F.3d at 1176-77. In fact, several Plaintiffs in the instant matter were assigned
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to Tamms from prisons outside Illinois.4 Also, it is not actually the case that the Plaintiffs seeking partial summary judgment are trying to use the OSP as the baseline. Rather, as discussed, the standard is whether Tamms imposes atypical and significant hardship under any plausible baseline, with conditions at the OSP being only one of the aggregate of circumstances relevant to determining whether a liberty interest in avoiding assignment to Tamms exists. Correspondingly, conditions at Illinois prisons other than Tamms are also a relevant consideration, and it appears from the summary judgment record in this matter that the moving Plaintiffs are prepared to produce evidence regarding conditions of confinement throughout the IDOC system.
In addition to challenging the baseline favored by the Plaintiffs moving for partial summary judgment, Defendants also raise a number of challenges to the facts adduced by the moving Plaintiffs. For example, Defendants argue that it is not the case that inmates in disciplinary segregation at Tamms are denied the use of a television. With respect to denials of yard privileges, Defendants point out that inmates throughout the IDOC system, not just Tamms, can be punished through the imposition of multiple, consecutive periods of denial of yard privileges, and that this practice has been held constitutional. Also, while Defendants concede that Tamms inmates cannot accrue educational good conduct credits due to the lack of educational programs at Tamms, they assert that it is false that Tamms inmates are ineligible for awards of meritorious good conduct credit. They deny that all inmates at Tamms are single celled and point out that inmates at other Illinois prisons can be denied permission to participate in educational programs and thus be
4. Specifically, Von Perbandt was housed at prisons in Utah and later Virginia before his assignment to Tamms; Ross was assigned to Tamms from an out-of-state prison; Hall was assigned to Tamms from an out-of-state prison; Brown was assigned to Tamms from an out-of-state prison; and Cunningham was assigned to Tamms from a prison in Rhode Island.
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ineligible to receive educational good conduct credits. Defendants point out also that inmates at other Illinois prisons besides Tamms can be denied leave to participate in group religious services and in job programs. Defendants deny that inmates cannot be transferred out of Tamms without completing a gang renunciation process. They challenge as anecdotal the affidavits proffered by the moving Plaintiffs regarding conditions at other prisons in Illinois and outside the state. With respect to whether conditions at Tamms are as harsh or harsher than at the OSP, Defendants point out that it is not claimed in this matter that Tamms inmates cannot conduct conversations between cells and the lights in the prison are kept on twenty-four hours a day, as the Wilkinson Court found is the case at the OSP. Defendants point out also that, unlike assignment to the OSP, assignment to Tamms does not affect an inmate’s eligibility for parole or mandatory supervised release. Also, Defendants argue, the files of inmates assigned to Tamms in non-disciplinary segregation are reviewed for eligibility for transfer out of the prison more frequently than at the OSP. Defendants assert that the record is not properly developed as to whether conditions at Tamms create a liberty interest in avoiding assignment there and that a complete record needs to be made on the issue.
The Court agrees with Defendants that the due process claims of Plaintiffs and the class demand a trial. In the Seventh Circuit, confinement in disciplinary segregation can trigger due process protections depending on the duration and conditions of the segregation. See Marion v. Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009) (citing Wilkinson, 545 U.S. at 224). The Seventh Circuit Court of Appeals also has found a very limited or nonexistent liberty interest in avoiding non-disciplinary segregation of short duration (e.g., six months or less) for administrative, protective, or investigative purposes. See id. (citing Townsend v. Fuchs, 522 F.3d 765, 776, 771 (7th Cir. 2008)); Recla v. Federal Bureau of Prisons, No. 09-cv-101-bbc, 2009 WL 982590, at *4
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(W.D. Wis. Apr. 10, 2009). All of the circumstances of a prisoner’s segregation, including the actual conditions the prisoner experienced, must be taken into account. See Marion, 559 F.3d at 698-99.5 Here, where the average term of segregated confinement at Tamms experienced by Plaintiffs amounts to years, “fact-finding is necessary” to the resolution of the classwide claims. Id. at 699. Accord Brown v. Plaut, 131 F.3d 163, 170 (D.C. Cir. 1997) (the inquiry into whether conditions of confinement constitute an atypical and significant hardship giving rise to a protected liberty interest raises “many complex and fact-specific issues”); Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir. 1997) (“[W]e have indicated the desirability of fact-finding before determining whether a prisoner has a liberty interest in remaining free from segregated confinement.”); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (noting “extensive fact-finding” by the trial court in rejecting a due process challenge to conditions of confinement). The Court “must take into consideration all of the circumstances of a prisoner’s confinement in order to ascertain whether a liberty interest is implicated” and this cannot be done on summary judgment. Marion, 559 F.3d at 699.
Because the Court finds that there is a genuine issue of material fact as to whether conditions at Tamms create a liberty interest, the Court cannot reach the issue of whether adequate procedures have been employed by the IDOC to protect that interest. However, the Court notes that with respect to the constitutional adequacy of the procedures employed by the IDOC in connection with assignments to Tamms, here too there are genuine issues of material fact. In evaluating the constitutional sufficiency of the procedures employed for assigning prisoners to Tamms the Court
5. In fact, as counsel for the moving Plaintiffs and the class pointed out at the hearing conducted by the Court on the instant cross-motions for partial summary judgment, the Marion court hinted that where, as in this matter, the period of segregated confinement at issue exceeds one year, a liberty interest could arise “without any reference to conditions.” 559 F.3d at 699.
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must consider three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the interest of the IDOC and the State of Illinois, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See Wilkinson, 545 U.S. at 224-25 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). The Plaintiffs seeking partial summary judgment argue that under Wolff v. McDonnell, supra, before transfer to Tamms they are entitled to: (1) written notice of the purported reason for transfer twenty-four hours before a hearing on transfer; (2) an opportunity to present evidence and, where possible, the opportunity to call witnesses; (3) a hearing before a neutral decision-maker; and (4) a written decision setting out the reason for the decision and evidence in support thereof. See 418 U.S. at 564. See also Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984).
According to the moving Plaintiffs, under existing IDOC regulations, inmates can be assigned to Tamms for specified reasons, such as gang leadership, serious assault, or escape, but also for any reason, and that an inmate need not have committed any of the proscribed acts to be assigned to Tamms; it is sufficient that the IDOC thinks the inmate may do such an act. They contend that the IDOC has no policy requiring written notice to an inmate twenty-four hours before transfer to Tamms, and that inmates never receive a hearing before transfer to the prison. Further, they claim, IDOC has no policy requiring an inmate, after his arrival at Tamms, to be informed of the reason for his assignment to Tamms and given a written statement concerning the person or persons who made the decision to assign the inmate to Tamms, the evidence relied on in making the decision, and how to challenge the decision. Only inmates assigned to Tamms in non-disciplinary segregation are
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entitled to a transfer review hearing ten working days after their arrival at the prison, when possible. Also, an inmate assigned to Tamms in non-disciplinary segregation may not receive a transfer review hearing; if he does, the moving Plaintiffs argue, the hearing affords the inmate no meaningful constitutional process because the inmate is not given advance notice of the hearing and frequently does not even know the reason for his assignment to Tamms, making it very difficult for the inmate to raise a significant challenge to his assignment to Tamms at the hearing. According to the moving Plaintiffs, an inmate frequently receives no written decision following his transfer review hearing and, when he does, it contains no explanation of the decision. Finally, the movants assert, inmates assigned to Tamms in disciplinary segregation receive no hearing at all regarding their assignment to the prison until they have completed their term of segregation.
Defendants, citing Wilkinson, argue that inmates challenging assignment to Tamms have a right only to informal, non-adversary procedures, meaning they are entitled only to some notice of the reason for their assignment, an opportunity to be heard, and notice of an adverse decision. See 545 U.S. at 229 (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16 (1979), and Hewitt v. Helms, 459 U.S. 460, 473-76 (1983)). They contend that all inmates in disciplinary segregation receive a hearing on the offense resulting in the segregation placement. Further, inmates assigned to Tamms in non-disciplinary segregation receive a transfer hearing ten working days after their transfer, whenever possible; at the hearing inmates can appear, make statements, and present evidence, and can request that persons with relevant information be interviewed. The inmate is informed in writing of the final decision. Defendants deny that they are required to furnish a hearing in advance of an inmate’s transfer to Tamms and argue that the existing transfer hearing process adequately protects inmates’ rights. Assuming that the evidence at trial
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shows that conditions at Tamms constitute an atypical and significant hardship in relation to the ordinary incidents of prison life under any plausible baseline, thus giving rise to a protected interest in avoiding assignment to Tamms, there are numerous factual issues here concerning the process that is available to inmates to challenge assignments to Tamms, as well as the adequacy of that process to protect the inmates’ interest in avoiding assignment to Tamms. As the Seventh Circuit Court of Appeals noted in Westefer, the record in this matter discloses factual issues concerning: whether inmates are given sufficient notice of the reason for their assignment to Tamms to afford a meaningful opportunity to challenge the assignment; whether for inmates assigned to Tamms in disciplinary segregation, the disciplinary hearing on the offense resulting in the segregation placement is an adequate vehicle by which to challenge assignment to Tamms; whether post-transfer hearings for inmates assigned to Tamms in non-disciplinary segregation afford an adequate vehicle to challenge assignment to Tamms, and whether periodic review of the files of inmates assigned to Tamms in non-disciplinary segregation affords them adequate protection; and whether a process exists to grieve assignment to Tamms, given conflicting positions taken by IDOC on that point, and, if it does exist, its constitutional adequacy. See 422 F.3d at 590. The Court will deny partial summary judgment on the questions of whether the moving Plaintiffs and the class possess a due process liberty interest in avoiding assignment to Tamms and whether they have been deprived of that interest without due process.6
6. At the hearing the Court conducted on the instant cross-motions for partial summary judgment, counsel for the moving Plaintiffs and the class requested that, in the event their request for partial summary judgment were denied, the Court nevertheless identify the facts that are not genuinely at issue in this matter. See Fed. R. Civ. P. 56(d). Unfortunately, in this instance it is quite difficult to ascertain what facts, if any, are genuinely undisputed. Naturally, if there are facts as to which the parties can agree, the Court encourages the parties to stipulate to as many facts as possible in advance of trial in this matter in order to speed the trial process.
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B. Defendants’ Motion for Partial Summary Judgment
1. Qualified Immunity as to Due Process Claims
As noted, Defendants seek summary judgment on the issue of whether they are shielded by
the doctrine of qualified immunity from liability in damages as to the procedural due process claims
asserted by the named Plaintiffs in Case No. 00-162.7 In Harlow v. Fitzgerald, 457 U.S. 800 (1982),
the Court held that “government officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.” Id. at 818. See also
Wilson v. Kelkhoff, 86 F.3d 1438, 1446 (7th Cir. 1996). Qualified immunity bars an award of
damages, but it does not preclude the granting of injunctive relief. See Behrens v. Pelletier, 516 U.S.
299, 312 (1996); Flynn v. Sandahl, 58 F.3d 283, 289 (7th Cir. 1995) (citing Knox v. McGinnis, 998
F.2d 1405, 1412 (7th Cir. 1993)). “For qualified immunity to be surrendered, preexisting law must
dictate, that is, truly compel . . . the conclusion for every like-situated, reasonable government agent
that what [he] is doing violates federal law in the circumstances.” Khuans v. School Dist. 110, 123
7. At the time Plaintiffs in Case No. 00-162 requested class certification on the procedural due process claims asserted in that case, they specifically requested only classwide declaratory and injunctive relief, not monetary relief, so as to ensure certification of the class claims pursuant to Rule 23(b)(1) and (b)(2) of the Federal Rules of Civil Procedure. See Westefer, 2006 WL 2639972, at *9. While it certainly is in the Court’s power to award damages incident to a grant of classwide equitable relief, see Cima v. WellPoint Health Networks, Inc., 250 F.R.D. 374, 380-82 (S.D. Ill. 2008); In re General Motors Corp. Dex-Cool Prods. Liab. Litig., 241 F.R.D. 305, 327 n.9 (S.D. Ill. 2007), the Court complied with Plaintiffs’ request not to grant class certification as to damage claims. Accordingly, the only claims for damages as to the procedural due process violations alleged in Case No. 00-162 that are pending before the Court are the individual due process claims of Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Taylor, Sparling, Sorrentino, Santiago, Ross, V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, and Bivens.
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F.3d 1010, 1019-20 (7th Cir. 1997) (emphasis omitted). To defeat a qualified immunity defense, a plaintiff bears the burden of demonstrating that “the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, . . . the law clearly proscribed the actions the defendant . . . took.” Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). See also Eversole v. Steele, 59 F.3d 710, 717 (7th Cir. 1995); Thomas v. Walton, 461 F. Supp. 2d 786, 797 (S.D. Ill. 2006). To determine whether clearly established legal norms existed at the pertinent time, a court may refer “to closely analogous case law, decided before the public official acted or failed to act . . . . Of course, in analyzing those cases, precise factual congruity is not required.” Abel v. Miller, 824 F.2d 1522, 1533 (7th Cir. 1987). See also Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004) (testing the existence of a clearly established constitutional right in light of judicial decisions antedating the action challenged in a civil rights lawsuit).
At the time Case No. 00-708 was consolidated with Case No. 00-162, the Court addressed the issue of qualified immunity as to Plaintiff Cunningham’s procedural due process claim arising from his assignment to Tamms and concluded that qualified immunity barred damages as to the claim. See Cunningham v. Snyder, 472 F. Supp. 2d 1023, 1033 (S.D. Ill. 2006). In its order on qualified immunity in Case No. 00-708 the Court emphasized that it was not deciding the issue for the named Plaintiffs in Case No. 00-162. However, the Court noted that its decision on qualified immunity for Cunningham’s due process claim established the law of the case as to the due process claims of the named Plaintiffs in Case No. 00-162. See id. at 1033 n.1. The Court observed also that at such time as Defendants in Case No. 00-162 raised the issue of qualified immunity as to the due process claims in that case the Court would expect the named Plaintiffs in Case No. 00-162 to present “compelling grounds” for the Court to reach a different result on qualified immunity than
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it had with respect to Cunningham’s due process claim. Id. The Court has tried to keep an open mind on the question of qualified immunity but believes that its earlier decision as to Cunningham’s claim was correct and that the same result must be reached as to the due process claims of the named Plaintiffs in Case No. 00-162.
As the Court found in Case No. 00-708, and continues to believe, at the time Plaintiffs in Case No. 00-162 were assigned to Tamms there was no clearly established constitutional right to due process in connection with assignment to the prison. When Plaintiffs in Case No. 00-162 were assigned to Tamms, the leading Seventh Circuit authority regarding due process in connection with prison assignments was Wagner v. Hanks, supra, which propounded what this Court termed in its order on qualified immunity in Case No. 00-708 “an extremely stringent interpretation” of the Supreme Court’s Sandin decision. Cunningham, 472 F. Supp. 2d at 1029. In Wagner the court held that, after Sandin, the right of prison inmates to raise due process challenges to assignments to disciplinary segregation was “vanishingly small” and that, as discussed, the baseline for determining whether conditions of confinement give rise to a liberty interest is measured by conditions in administrative or non-disciplinary segregation in the most restrictive prison in a state. 128 F.3d at 1175. Implicit in the holding of Wagner was the view that conditions of confinement in non-disciplinary segregation could never give rise to a liberty interest, as the Seventh Circuit Court of Appeals has acknowledged in recent decisions. See Townsend, 522 F.3d at 771-72; Gillis v. Litscher, 468 F.3d 488, 492 (7th Cir. 2006); Holly v. Woolfolk, 415 F.3d 678, 680-81 (7th Cir. 2005). With respect to assignments to disciplinary segregation, the Wagner court held that a liberty interest could arise only if the assignment had the effect of prolonging an inmate’s incarceration or if conditions of confinement in disciplinary
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segregation rose to the level of a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. See 128 F.3d at 1174, 1176. See also Gillis, 468 F.3d at 492.
In its order on qualified immunity in Case No. 00-708, the Court demonstrated through an exhaustive survey of decisions from district courts throughout the Seventh Circuit that before the Supreme Court’s decision in Wilkinson and the Seventh Circuit Court of Appeals’ decision in Westefer the clear, indeed overwhelming, majority view among the federal trial courts in the Seventh Circuit, in light of Wagner, was that only a confinement in disciplinary segregation that resulted in the loss of accrued good time credit could trigger a due process liberty interest. See Cunningham, 472 F. Supp. 2d at 1030-33 (collecting cases). Correspondingly, assignment to a supermax prison in disciplinary segregation without the loss of good time credit or in non-disciplinary segregation was held routinely not to give rise to a liberty interest. See id. There is no need to repeat that survey here, save to say that only a very sagacious and far-seeing prison administrator could have been expected to discern a liberty interest in avoiding an assignment to a supermax prison in the Seventh Circuit.8 But, of course, prison administrators need be neither far-sighted nor sagacious in order to enjoy qualified immunity; rather, they must be minimally competent and not deliberate lawbreakers. See Malley v. Briggs, 475 U.S. 335, 341 (1986) (observing that “the qualified immunity defense . . . provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”). Without meaning to suggest that Wagner has been overruled sub silentio or is now “bad law” after Wilkinson, the Court notes that the Seventh Circuit Court of
8. The Court recognizes that decisions of district courts, being non-precedential, cannot clearly establish constitutional rights for purposes of the qualified immunity doctrine. See Lott v. Pfizer, Inc., 492 F.3d 789, 793-94 (7th Cir. 2007). The Court’s purpose in referencing the majority view among district courts in the Seventh Circuit before Wilkinson is to show the absence of a clearly established constitutional liberty interest in avoiding assignment to a supermax prison.
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Appeals has acknowledged on more than one occasion that Wilkinson compelled a rethinking of its position on due process in connection with assignments to segregated confinement. See Gillis, 468 F.3d at 492 (recognizing that the holding of Wagner had been modified in light of the Supreme Court’s determination in Wilkinson that conditions of confinement in disciplinary segregation can constitute an atypical and significant hardship triggering a liberty interest in avoiding those conditions short of amounting to an Eighth Amendment violation); Westefer, 422 F.3d at 589 (alluding to “the now-governing standards of Wilkinson” in evaluating whether conditions at a supermax prison implicate a liberty interest in avoiding assignment there).
Because of the Court’s order on qualified immunity in Case No. 00-708, Plaintiffs in Case No. 00-162 have not contested the issue of qualified immunity vigorously, although they have preserved the issue for appeal. They have adduced a statement by Defendant Welborn, who served as the first warden of the supermax prison at Tamms, in which Welborn, in the course of a videotaped orientation presentation designed to be shown to new correctional officers at Tamms, asserted his belief that assignment to the prison implicates procedural due process concerns.9 The Court cannot view Welborn’s statement as clearly establishing a constitutional right. He is not, so far as the Court knows, a lawyer, and a successor warden at Tamms (not to mention fellow wardens of prisons in the IDOC system) certainly was free to (and in fact, it appears, did) disregard his due process concerns, a reasonable enough thing to do given the avalanche of pre-Wilkinson judicial decisions in the Seventh Circuit finding no liberty interest in avoiding assignment to a supermax prison except under the extremely limited circumstances delineated in Wagner.
9. Because Welborn’s statement is contained in a document filed under seal, the Court does not quote the statement in this Order.
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Plaintiffs also point out that since Sandin it has been clearly established that conditions of confinement that comprise an atypical and significant hardship in relation to the ordinary incidents of prison life can give rise to a due process liberty interest in avoiding those conditions. This is certainly so, but Plaintiffs frame the issue too broadly. “The words ‘clearly established . . . constitutional rights’ may not be used to read the defense of immunity out of federal tort law by the facile expedient of stating constitutional rights in the most general possible terms . . . . The right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful.” Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir. 1986) (quoting Harlow, 457 U.S. at 818). “[T]he right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Brosseau, 543 U.S. at 198-99. It is true that Sandin established as a general principle that inmates have a liberty interest in avoiding conditions of confinement that comprise an atypical and significant hardship. What was not clearly established at the time Plaintiffs in Case No. 00-162 were assigned to Tamms was whether conditions of confinement that neither prolonged imprisonment nor violated the Eighth Amendment were an atypical and significant hardship in relation to the ordinary incidents of prison life capable of giving rise to a due process liberty interest in avoiding those conditions.
Finally, Plaintiffs argue that the right Defendants are alleged to have violated should not be construed so narrowly as to read it out of existence, as by, for example, defining the right as a liberty interest in avoiding assignment to Tamms, rather than, say, to a supermax prison generally. The Court understands Plaintiffs’ concern, but feels it is unfounded. As the federal trial court decisions
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surveyed in the Court’s order on qualified immunity in Case No. 00-708 show, before Wilkinson federal courts in the Seventh Circuit did not recognize a liberty interest in avoiding assignment to a supermax prison anywhere in the Seventh Circuit, save, again, in the very narrow circumstances set out in Wagner. Also, defining the right at issue as avoiding assignment to Tamms is not necessarily unfair. Whether conditions of confinement at Tamms give rise to a liberty interest is, as already has been discussed, a particularized and fact-intensive inquiry. As the Seventh Circuit Court of Appeals recognized recently, the harsh conditions of confinement at a supermax prison do not, of themselves, create a liberty interest. See Townsend, 522 F.3d at 772. By the same token, the fact that conditions at the OSP create a liberty interest, as was held in Wilkinson, does not mean ipso facto that those at Tamms do. And, as the Court noted in its order on qualified immunity in Case No. 00-708, whether conditions at Tamms create a liberty interest and, if so, whether adequate process exists to protect that interest remain open questions, as they are precisely the issues that must be decided in this lawsuit. See Westefer, 422 F.3d at 589-90 (recognizing that, on remand, this Court would be required to determine whether conditions at Tamms create a liberty interest and whether adequate procedures are being employed to protect that interest). Summary judgment will be granted on the grounds of qualified immunity as to the claims for damages of the named Plaintiffs in Case No. 00-162 in connection with their claims for violations of due process.
2. Plaintiff Santiago’s Retaliation Claim As noted, Defendants seek summary judgment on the retaliation claim alleged by Plaintiff Santiago. The operative complaint in Case No. 00-162 alleges that Santiago was assigned to Tamms in retaliation for filing grievances and lawsuits and engaging in other constitutionally protected speech with regard to the conditions of his confinement; the complaint alleges that Santiago’s wife
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also has been active in prison reform work. According to the complaint, the specific Defendants who retaliated against Santiago are Cowan, who recommended his assignment to Tamms, and Clark and Page, who approved the assignment. Defendants argue that a judgment in a related case, Santiago v. Snyder, Civil No. 02-1060-GPM (S.D. Ill. filed Oct. 4, 2002), which judgment subsequently was affirmed by the Seventh Circuit Court of Appeals, see Santiago v. Snyder, 211 Fed. Appx. 478 (7th Cir. 2006), is claim preclusive or issue preclusive with respect to Santiago’s retaliation claim in this matter.10 The Court agrees.
In Case No. 02-1060 Santiago asserted exactly the same retaliation claim that he asserts in Case No. 00-162. Santiago’s retaliation claim in Case No. 02-1060 was dismissed with prejudice on summary judgment on the grounds of the statute of limitations, e.g., that Santiago had failed to bring suit within the applicable two-year limitations period. See Wooden v. Barone, No. 06-CV-790-JPG, 2007 WL 2481170, at *4 (S.D. Ill. Aug. 29, 2007); Maxwell v. Village of Sauget, Ill., No. 06-451-GPM, 2007 WL 420195, at *3 (S.D. Ill. Feb. 5, 2007). The dismissal of Santiago’s retaliation claim on the grounds of the statute of limitations in Case No. 02-1060 was an adjudication of the claim on the merits, see Reinke v. Boden, 45 F.3d 166, 168 (7th Cir. 1995), and therefore is preclusive with respect to the same claim in Case No. 00-162, notwithstanding the fact that Santiago’s retaliation claim in Case No. 00-162 was brought before the claim in Case No. 02-1060 and was timely under the statute of limitations. See Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 838 (7th Cir. 1999) (a judgment on the merits in a case is claim-preclusive in an earlier-filed case on the same claim); Carr v. CIGNA Sec., Inc., 95 F.3d 544, 546 (7th Cir. 1996)
10. Although the Seventh Circuit Court of Appeals generally prohibits citation of its unpublished opinions issued before January 1, 2007, it permits the citation of such opinions for the purpose of establishing, as here, claim preclusion or issue preclusion. See 7th Cir. R. 32.1(d).
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(same); Unger v. Consolidated Foods Corp., 693 F.2d 703, 705 (7th Cir. 1982) (same). See also 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4404 (3d ed. 1998 & Supp. 2009) (“If two actions are pursued simultaneously the first judgment to be entered is entitled to res judicata effect without regard to the order in which the two were commenced[.]”) (collecting cases). Summary judgment will be granted as to Santiago’s retaliation claim.11
3. Retaliation Claims of Plaintiffs V. Rodriguez and Harper With respect to the question of summary judgment on the retaliation claims of Plaintiffs V. Rodriguez and Harper, Defendants make a rather convoluted argument for qualified immunity as to those claims. The argument is that Defendants did not violate a clearly established constitutional right in assigning V. Rodriguez and Harper to Tamms because the lawsuits those Plaintiffs claim they were retaliated against for filing were based on false statements and thus do not constitute protected speech.12 In other words, because V. Rodriguez and Harper have no clearly established constitutional right to be free from retaliation for filing frivolous lawsuits, Defendants are shielded from liability in damages for retaliating against them for filing the lawsuits by assigning them to Tamms. This argument is ingenious but, in the Court’s view, ultimately unpersuasive.
11. As already has been discussed, Santiago’s retaliation claim in Case No. 00-162 previously was dismissed on summary judgment for failure to exhaust administrative remedies, but the Seventh Circuit Court of Appeals found an issue of fact as to whether any administrative remedy exists for an assignment to Tamms. See Westefer, 422 F.3d at 579-81. 12. The specific Defendants identified in the operative complaint in Case No. 00-162 as having retaliated against V. Rodriguez are Clark and DeTella. The specific Defendants alleged to have retaliated against Harper are Clark and Carter.
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“The federal courts have long recognized a prisoner’s right to seek administrative or judicial remedy of conditions of confinement, . . . as well as the right to be free from retaliation for exercising this right.” Babcock v. White, 102 F.3d 267, 276 (7th Cir. 1996) (denying qualified immunity for a retaliation claim). “Prisoners are entitled to utilize available grievance procedures without threat of recrimination[.]” Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005). To succeed on a retaliation claim, the plaintiff must “establish that his protected conduct was a motivating factor behind [the defendants’ actions], but that should not end the inquiry.” Babcock, 102 F.3d at 275. This is “[b]ecause the ultimate question is whether events would have transpired differently absent the retaliatory motive[.]” Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). See also Carr v. Whittenburg, 462 F. Supp. 2d 925, 930 (S.D. Ill. 2006) (a plaintiff seeking to prove unlawful retaliation must show that constitutionally-protected conduct was a substantial motivating factor for an allegedly retaliatory action and that the retaliatory action would not have been taken had the plaintiff not engaged in the protected conduct).
While an inmate may not be retaliated against for complaining of the conditions of his or her confinement through, for example, the filing of grievances or lawsuits, an inmate may be disciplined for the language used in a grievance or punished for making false, libelous, threatening, or insolent statements in a grievance. See, e.g., Hale v. Scott, 371 F.3d 917, 919 (7th Cir. 2004) (holding that the First Amendment did not preclude punishment of an inmate for making libelous statements in a grievance); Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir. 1986) (upholding discipline of an inmate who had written a letter calling prison officials “stupid lazy assholes” and challenging them to “bring their fat asses around the gallery at night”); Lehn v. Bryant, No. 04-CV-3100, 2006 WL 2095787, at **6-7 (C.D. Ill. July 27, 2006) (dismissing an inmate’s claim that he was retaliated
Page 27 of 32

against for writing letters that were insolent and threatening). In this case, however, it is not clear whether V. Rodriguez and Harper lied in the lawsuits they claim they were retaliated against for filing. It appears from the record that the trier of fact found against both Plaintiffs on their respective claims challenging the conditions of their confinement, but this does not amount to clear and incontrovertible evidence that they lied. Where Defendants have not adduced uncontradicted evidence that V. Rodriguez and Harper lied in the lawsuits they claim they were retaliated against for filing, whether V. Rodriguez and Harper lied in their lawsuits is a question for the jury. See Anderson, 477 U.S. at 255 (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Summary judgment as to the retaliation claims of V. Rodriguez and Harper on the grounds of qualified immunity will be denied.13
4. Retaliation Claims Against Defendant Snyder Finally, the Court addresses the question of whether summary judgment should be granted for Defendant Snyder on any retaliation claims asserted against him by Plaintiffs Von Perbandt, Taylor, Sparling, Sorrentino, E. Rodriguez, Lasley, Knox, Horton, Felton, Combs, Clayton, Chapman, Burrell, Bivens, and Cunningham. It appears to be undisputed that Snyder became the
13. As has been noted already, qualified immunity is only a defense to a claim for damages, not a complete defense to a claim under 42 U.S.C. § 1983. As a practical matter, however, were the Court to find that qualified immunity existed as to the retaliation claims of V. Rodriguez and Harper, it likely would be the death knell for those claims, as neither Plaintiff appears to have a plausible claim for equitable relief with respect to the alleged retaliation. See Carr v. Whittenburg, No. 3:01-cv-625-DGW, 2006 WL 1207286, at *3 (S.D. Ill. Apr. 28, 2006) (noting that a prisoner seeking equitable relief on a retaliation claim must show an ongoing threat of retaliation warranting issuance of an injunction).
Page 28 of 32

director of the IDOC on January 12, 1999, after Von Perbandt, Taylor, Sparling, Sorrentino,
E. Rodriguez, Lasley, Knox, Horton, Felton, Combs, Clayton, Chapman, Burrell, Bivens, and
Cunningham were assigned to Tamms.14 Consistent with the general rule that liability under 42
U.S.C. § 1983 is not vicarious, “public employees are responsible for their own misdeeds but not for
anyone else’s,” and not in the absence of evidence of the personal involvement of a state actor in an
alleged deprivation of civil rights while acting under color of state law. Burks v. Raemisch, 555 F.3d
592, 596 (7th Cir. 2009). See also Monell v. Department of Soc. Servs. of City of N.Y., 436 U.S.
658, 694-95 (1978); Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001); Walker v. Rowe,
791 F.2d 507, 508 (7th Cir. 1986); Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir. 1985).
Plaintiffs appear to concede that Snyder had no personal involvement in the assignment of
Von Perbandt, Taylor, Sparling, Sorrentino, E. Rodriguez, Lasley, Knox, Horton, Felton, Combs,
Clayton, Chapman, Burrell, Bivens, and Cunningham to Tamms and therefore is not a proper party
to their retaliation claims in this matter. Accordingly, summary judgment will be granted in Snyder’s
favor as to the retaliation claims of those Plaintiffs.15
14. The record shows that: Von Perbandt was transferred to Tamms on April 20, 1998; Taylor was transferred to Tamms on September 2, 1998; Sparling was transferred to Tamms on August 25, 1998; Sorrentino was transferred to Tamms on March 12, 1998; E. Rodriguez was transferred to Tamms on March 27, 1998; Lasley was transferred to Tamms on April 1, 1998; Knox was transferred to Tamms on August 24, 1998; Horton was transferred to Tamms on March 18, 1998; Felton was transferred to Tamms on March 30, 1998; Combs was transferred to Tamms on September 3, 1998; Clayton was transferred to Tamms on July 20, 1998; Marcus Chapman, Plaintiff Mary Chapman’s decedent, was transferred to Tamms on March 26, 1998; Burrell was transferred to Tamms on August 28, 1998; Bivens was transferred to Tamms on July 16, 1998; and Cunningham was transferred to Tamms on April 12, 1998.
15. A grant of summary judgment in Snyder’s favor has no practical significance with respect to the retaliation claims of Von Perbandt, Taylor, Sparling, Sorrentino, E. Rodriguez, Lasley, Knox, Horton, Felton, Combs, Clayton, Chapman, Burrell, Bivens, and Cunningham because none of those Plaintiffs allege that Snyder was involved in their assignment to Tamms.
Page 29 of 32

C. Trial Briefs Having concluded that summary judgment must be denied as to the procedural due process claims asserted in this matter, save as to the issue of qualified immunity from damages, as a final matter the Court asks counsel for the parties to the consolidated cases to submit trial briefs in advance of the bench trial to be conducted on the procedural due process claims of Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Taylor, Sparling, Sorrentino, Santiago, Ross, V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, Bivens, Cunningham, and the certified class. In these briefs, counsel should state concisely the matters they hope to prove at trial and offer a brief description of the evidence they will present at trial as proof of those matters. It will not be necessary to attach evidence to the briefs, although if evidence counsel intends to introduce at trial is already before the Court as, for example, part of the summary judgment record, counsel can point in their briefs to the location of the evidence in the record. The parties’ trial briefs should not exceed twenty pages. Although the Court certainly has not pre-judged the issue of whether Plaintiffs and the members of the certified class are entitled to equitable relief on their procedural due process claims, the Court would like counsel in their trial briefs to pay particular attention to the question of what, in their view, an appropriate grant of equitable relief in this matter would look like. The Court encourages counsel for the parties to consult with one another for the purpose of attempting to reach some degree of agreement about the kind of equitable relief that is proper here. The Court recognizes that counsel no doubt have a great deal of work to do to prepare for the trial on the due process claims in this matter, as well as to prepare for trial on the retaliation claims asserted by
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Plaintiffs Von Perbandt, Taylor, Sparling, Sorrentino, V. Rodriguez, E. Rodriguez, Lasley, Knox, Horton, Harper, Felton, Combs, Clayton, Chapman, Burrell, Bivens, and Cunningham. Nevertheless, the Court believes that trial briefs will be helpful in this instance. The due process claims before the Court present novel and complex issues of law, and the resolution of those issues is likely to impact the lives of all of the inmates in the IDOC system, present and future. The attorneys on both sides in this matter doubtless recognize the importance of reaching the correct result here, and the Court relies on their able assistance to reach that result. Accordingly, the Court will ask that counsel for the parties submit trial briefs in the form outlined above within thirty days of the date of entry of this Order.16
III. CONCLUSION Plaintiffs’ motion for partial summary judgment (Doc. 266) is DENIED. Defendants’ motion for partial summary judgment (Doc. 270) is GRANTED in part and DENIED in part. Summary judgment is GRANTED in Defendants’ favor as to: Defendants’ qualified immunity from damages on the due process claims asserted against them by the named Plaintiffs in Case No. 00-162; the retaliation claim asserted by Plaintiff Santiago; and any retaliation claims asserted against Defendant Snyder by Plaintiffs Von Perbandt, Taylor, Sparling, Sorrentino, E. Rodriguez, Lasley, Knox, Horton, Felton, Combs, Clayton, Chapman, Burrell, Bivens, and Cunningham. Summary judgment is DENIED as to qualified immunity on the retaliation claims
16. It is not clear to the Court whether Plaintiff Cunningham’s counsel seeks to participate in the prosecution of his client’s due process claim at trial. If so, Cunningham’s counsel and counsel for Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Sparling, Sorrentino, Santiago, Ross, V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, Bivens, and the class are invited to file a joint trial brief, if they wish.
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of Plaintiffs V. Rodriguez and Harper. Counsel for the parties are directed to submit trial briefs of no more than twenty (20) pages in length outlining the case they will present at trial on the due process claims in this matter and addressing the manner of equitable relief that may properly be granted on those claims not later than thirty (30) days from the date of entry of this Order.17
IT IS SO ORDERED. DATED: September 4, 2009
/s/ G. Patrick Murphy G. PATRICK MURPHY United States District Judge
17. As a result of this Order, the following claims remain pending before the Court: retaliation claims by Plaintiffs Von Perbandt, Taylor, Sparling, Sorrentino, V. Rodriguez, E. Rodriguez, Lasley, Knox, Horton, Harper, Felton, Combs, Clayton, Chapman, Burrell, Bivens, and Cunningham; and claims of due process violations for equitable relief only (not damages) by Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Taylor, Sparling, Sorrentino, Santiago, Ross, V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, Bivens, Cunningham, and the class.
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) Consolidated with: ) CIVIL NO. 00-708-GPM )

MEMORANDUM AND ORDER

MURPHY, District Judge:

I. INTRODUCTION

This matter is before the Court on a motion for partial summary judgment brought by

Plaintiffs Mark Von Perbandt, Michael Sparling, Joseph Sorrentino, Vincente Rodriguez,

Edward Rodriguez, William Lasley, Ted Knox, Eugene Horton, George Harper, Robert Felton,

Kennard Combs, Mary Chapman as administrator of the estate of Marcus Chapman, and

Roosevelt Burrell (Doc. 377). This case, as has been discussed in prior orders of the Court, is a suit

brought by present and former prison inmates in the custody of the Illinois Department of

Corrections (“IDOC”) challenging their placement at the closed maximum security prison at the

Tamms Correctional Center (“Tamms”) as violative of their civil rights. See Westefer v. Snyder,

Civil Nos. 00-162-GPM, 00-708-GPM, 2009 WL 2905548 (S.D. Ill. Sept. 4, 2009); Westefer v.

Snyder, Civil Nos. 00-162-GPM, 00-708-GPM, 2006 WL 2639972 (S.D. Ill. Sept. 12, 2006). In the

instant motion Von Perbandt, Sparling, Sorrentino, V. Rodriguez, E. Rodriguez, Lasley, Knox,

Horton, Harper, Felton, Combs, Chapman, and Burrell seek summary judgment on the issue of

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whether their claims of discriminatory transfer to Tamms in retaliation for the exercise of First Amendment rights are subject to a defense of failure to exhaust administrative remedies. It appears to the Court that the motion is moot as to the retaliation claims of Von Perbandt, Sparling, V. Rodriguez, E. Rodriguez, Lasley, Horton, Harper, Felton, Combs, and Chapman: after the filing of the instant motion Von Perbandt voluntarily dismissed his retaliation claim with prejudice, and juries returned verdicts adverse to the retaliation claims of Sparling, V. Rodriguez, E. Rodriguez, Lasley, Horton, Harper, Felton, Combs, and Chapman at trial. However, the issue of exhaustion of administrative remedies may not be moot as to the retaliation claims of Sorrentino, Knox, and Burrell, all of whom prevailed on those claims at trial. Having considered carefully the question of partial summary judgment as to the defense of exhaustion of administrative remedies, for the reasons that follow the Court grants summary judgment for Plaintiffs.
II. ANALYSIS As an initial matter, the Court notes the standard under which it must consider the instant motion for partial summary judgment. Rule 56 of the Federal Rules of Civil Procedure provides, in pertinent part, that “[a] party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim.” Fed. R. Civ. P. 56(a). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). In considering a motion for summary judgment, a court must review the entire record and draw all reasonable inferences in the light most favorable to the non-moving party. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995); Enquip, Inc. v. Smith-McDonald Corp., 655 F.2d 115, 118 (7th Cir. 1981). On summary judgment
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a court may not make credibility determinations or weigh the evidence, because these are tasks for
a fact-finder. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Betaco, Inc. v. Cessna
Aircraft Co., 32 F.3d 1126, 1138 (7th Cir. 1994). In evaluating a motion for summary judgment,
“[t]he court has one task and one task only: to decide, based on the evidence of record, whether there
is any material dispute of fact that requires a trial.” Waldridge v. American Hoechst Corp., 24 F.3d
918, 920 (7th Cir. 1994).1
Turning then to the issue of exhaustion of administrative remedies,
42 U.S.C. § 1997e provides, in relevant part: “No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). See also Thornton v. Snyder, 428 F.3d 690, 693-94
(7th Cir. 2005); Witzke v. Femal, 376 F.3d 744, 748 (7th Cir. 2004). The Supreme Court of the
United States has held that the “exhaustion requirement applies to all inmate suits about
1. The Court notes that no response to the instant summary judgment motion has been filed. Although the local rules of Court permit the Court in its discretion to construe a failure to respond to a motion as assent to the motion, see SDIL-LR 7.1(c), the Court does not grant summary judgment for Plaintiffs on the basis of the failure to respond to Plaintiffs’ motion. See Carr v. Whittenburg, No. 3:01-cv-625-DGW, 2006 WL 1207286, at *2 n.1 (S.D. Ill. Apr. 28, 2006) (citing Kovilic Constr. Co. v. Missbrenner, 106 F.3d 768, 772-73 (7th Cir. 1997)) (dismissal is not an appropriate sanction for failure to comply with a local rule); Davis v. Olin Corp., No. 05-CV-4001-JPG, 2005 WL 3455120, at *8 (S.D. Ill. Dec. 16, 2005) (citing Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992)) (on summary judgment a court has an independent duty to determine whether a genuine issue for trial exists and may not grant summary judgment merely because a party has failed to respond to a summary judgment motion). Cf. Kremers v. Coca-Cola Co., Civil No. 09-333-GPM, 2009 WL 2365613, at *2 (S.D. Ill. July 24, 2009) (citing Boeckman v. A.G. Edwards, Inc., Civil No. 05-658-GPM, 2007 WL 4225740, at *1 (S.D. Ill. Aug. 31, 2007)) (the fact that parties to a case have cross-moved for partial summary judgment does not relieve a court of its independent duty to ascertain whether a case presents a genuine issue of material fact for trial). However, the absence of a response to the instant motion does affect, of course, the record that is before the Court on the question of partial summary judgment.
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prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). In other words, under Section 1997(e)(a) exhaustion of administrative remedies by a prison inmate suing for an alleged violation of his or her civil rights is “mandatory” and is required for “any suit challenging prison conditions[.]” Woodford v. Ngo, 548 U.S. 81, 85 (2006).
In accord with the foregoing principles, the United States Court of Appeals for the Seventh Circuit has held that exhaustion of administrative remedies by a prison inmate is a precondition to bringing suit for an alleged violation of the inmate’s constitutional rights under 42 U.S.C. § 1983, regardless of the apparent futility of pursuing an administrative remedy, regardless of whether money damages are sought as a tangential remedy, and regardless of notions of judicial economy. See Perez v. Wisconsin Dep’t of Corr., 182 F.3d 532, 535-37 (7th Cir. 1999). In this context, exhaustion means “proper exhaustion,” that is, a prison inmate must file a timely grievance utilizing the procedures put in place by the prison system, Woodford, 548 U.S. at 90, and must “properly take each step within the administrative process[.]” Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002). Further, exhaustion of administrative remedies is required before a prison inmate may bring a lawsuit challenging the conditions of his or her confinement, even if exhaustion is accomplished during pendency of the case. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004); Perez, 182 F.3d at 535-36. In this instance it is undisputed that this matter is an action brought by prison inmates under 42 U.S.C. § 1983 challenging the conditions of their confinement, and therefore the requirement of exhaustion of administrative remedies under 42 U.S.C. § 1997e(a) is presumptively applicable to their claims.
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Failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a) is “an affirmative defense that the defendants have the burden of pleading and proving.” Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004). See also Salas v. Wisconsin Dep’t of Corr., 493 F.3d 913, 922 (7th Cir. 2007); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999). As the language of the statute makes clear, in order to establish that an inmate plaintiff failed to exhaust administrative remedies, a defendant must first demonstrate that an administrative remedy was available to the inmate. To satisfy this requirement, the defendant must show that the agency in question had authority to provide “some redress” for the wrong alleged by the inmate. Booth v. Churner, 532 U.S. 731, 736 (2001). “Without the possibility of some relief, the administrative officers would presumably have no authority to act on the subject of the complaint, leaving the inmate with nothing to exhaust.” Id. at 736 n.4. See also Larkin v. Galloway, 266 F.3d 718, 722 (7th Cir. 2001) (“[E]xhaustion would not be required if . . . the relevant administrative procedure lacks authority to provide any relief or to take any action whatsoever in response to a complaint[.]”). Cf. McCoy v. Gilbert, 270 F.3d 503, 510 (7th Cir. 2001) (“The exhaustion requirement applies whenever there is some administrative process remaining at the prisoner’s disposal.”). Thus, if an administrative remedy is not available to an inmate asserting a violation of his or her civil rights, the inmate is not required to pursue an administrative remedy before filing suit. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006) (quoting 42 U.S.C. § 1997e(a)) (“If administrative remedies are not ‘available’ to an inmate, then the inmate cannot be required to exhaust.”); Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002) (an inmate “must exhaust only those administrative remedies that are available to him”).
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The administrative remedies available to inmates in the custody of the IDOC are contained in Title 20 of the Illinois Administrative Code. See Ill. Admin. Code tit. 20, § 504.800 et seq. The applicable regulations first require an inmate to speak with a counselor about a complaint. See id. § 504.810(a). Then, if the counselor does not resolve the issue, the inmate must file a grievance form directed to the grievance officer at the inmate’s prison within sixty days of the incident. See id. The grievance form must:
contain factual details regarding each aspect of the offender’s complaint, including what happened, when, where, and the name of each person who is subject of or who is otherwise involved in the complaint. The provision does not preclude an offender from filing a grievance when the names of individuals are not known, but the offender must include as much descriptive information about the individual as possible. Id. § 504.810(b). “The Grievance Officer shall consider the grievance and report his or her findings and recommendations in writing to the Chief Administrative Officer . . . . [who] shall advise the offender of the decision in writing within 2 months after receipt of the written grievance, where reasonably feasible under the circumstances.” Id. § 504.830(d). If the inmate is not satisfied with the Chief Administrative Officer’s response, he or she can then file an appeal with the Director of the IDOC through the Administrative Review Board. “If after receiving the response of the Chief Administrative Officer, the offender still feels that the problem, complaint or grievance has not been resolved to his or her satisfaction, he or she may appeal in writing to the Director within 30 days after the date of the decision. Copies of the Grievance Officer’s report and the Chief Administrative Officer’s decision should be attached.” Id. § 504.850(a). “The Administrative Review Board shall submit to the Director a written report of its findings and recommendations.” Id. § 504.850(e). “The director shall review the findings and recommendations of the Board and make a final determination
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of the grievance with 6 months after receipt of the appealed grievance, where reasonably feasible under the circumstances. The offender shall be sent a copy of the Director’s decision.” Id. § 504.850(f). See also Dole v. Chandler, 438 F.3d 804, 806-07 (7th Cir. 2006); Dixon v. Page, 291 F.3d 485, 489 (7th Cir. 2002).
In this instance, Plaintiffs raise two challenges to the defense of exhaustion of administrative remedies: that the defense has been waived by failure to prosecute it; and that no administrative remedy exhausts by which to grieve placement at Tamms. Turning first to the issue of waiver, the Court does not agree that the defense of exhaustion of administrative remedies has been waived. Under Rule 8 of the Federal Rules of Civil Procedure, of course, a defendant must plead an affirmative defense in response to a preceding pleading. See Fed. R. Civ. P. 8(c); Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir. 2000); Pinto Trucking Serv. v. Motor Dispatch, Inc., 649 F.2d 530, 534 (7th Cir. 1981); Malloy v. Ameritech, No. CIV 98-488-GPM, 2000 WL 35525477, at *15 (S.D. Ill. Feb. 7, 2000). The purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and an opportunity to contest it. See Williams v. Lampe, 399 F.3d 867, 871 (7th Cir. 2005) (citing Blonder-Tongue Labs., Inc. v. University of Ill. Found., 402 U.S. 313, 350 (1971)); Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997). In general, a failure to raise an affirmative defense in a responsive pleading operates as a waiver of the defense. See Carr v. O’Leary, 167 F.3d 1124, 1126 (7th Cir. 1999); Brunswick Leasing Corp. v. Wisconsin Cent., Ltd., 136 F.3d 521, 530 (7th Cir. 1998); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 235 (7th Cir. 1991). In this case, however, the affirmative defense of exhaustion of administrative remedies was properly and timely raised, and therefore, the Court cannot hold that the exhaustion defense has been waived.
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With respect to Plaintiffs’ alternative argument against the defense of exhaustion of administrative remedies, that there is no administrative remedy by which to challenge placement at Tamms, the Court concurs. The grievance procedure afforded to inmates in IDOC custody, set out in detail above, does not extend to decisions of the Director of the IDOC. According to IDOC regulations, “The grievance procedure shall not be utilized for complaints regarding decisions that are outside the authority of the Department, such as parole decisions, clemency, or orders regarding length of sentence or decisions that have been rendered by the Director.” Ill. Admin. Code tit. 20, § 504.810(a) (emphasis added). See also Westefer v. Snyder, 422 F.3d 570, 579 (7th Cir. 2005); Moro v. Winsor, No. 05-cv-452-JPG, 2008 WL 718687, at *4 (S.D. Ill. Mar. 14, 2008). In this matter, the uncontroverted evidence of record, specifically, the testimony of Terri Anderson, who was designated by the IDOC under Rule 30(b)(6) of the Federal Rules of Civil Procedure as a person knowledgeable about the IDOC’s grievance procedure, is that decisions to place IDOC inmates at Tamms are decisions of the Director of IDOC (or the Director’s designee) and thus cannot be grieved under IDOC regulations. Because placement at Tamms is a decision of the Director of the IDOC that cannot be challenged through the available grievance process, the Court concludes that no administrative remedy is available as to the retaliation claims asserted in this matter. Therefore, the Court will grant summary judgment for Plaintiffs on the defense of exhaustion of administrative remedies as to their retaliation claims.2

2.

Although the issue is not squarely before the Court, it should be clear from the

foregoing discussion that exhaustion of administrative remedies also is not a defense to the

claims for violations of the Fourteenth Amendment right of procedural due process that

have been asserted in this matter in connection with the IDOC’s procedures for placing inmates

at Tamms. Also, because the Court concludes that no administrative remedy is available to

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III. CONCLUSION The motion for partial summary judgment on the affirmative defense of exhaustion of administrative remedies (Doc. 377) is GRANTED. IT IS SO ORDERED. DATED: January 15, 2010
/s/ G. Patrick Murphy G. PATRICK MURPHY United States District Judge
challenge placement at Tamms, it is unnecessary for the Court to determine whether the decision of the Seventh Circuit Court of Appeals in Westefer is the law of the case as to the issue of exhaustion of administrative remedies by Horton and Felton. In any event, as already has been noted, the retaliation claims of Horton and Felton have been fully adjudicated and decided adversely to them by a jury, so that the issue of exhaustion is moot as to those claims.
Page 9 of 9

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) Consolidated with: ) CIVIL NO. 00-708-GPM )

MEMORANDUM AND ORDER

MURPHY, District Judge:

I. INTRODUCTION

This matter is before the Court on the motion for a new trial brought by

Plaintiff Bennie Cunningham (Doc. 530). In this case Cunningham, an inmate in the custody of the

Illinois Department of Corrections (“IDOC”) who currently is incarcerated in the closed maximum

security prison (“supermax prison”) at the Tamms Correctional Center (“Tamms”), asserts a claim

under 42 U.S.C. § 1983 that he was transferred to the supermax prison at Tamms in retaliation for

exercising his First Amendment right to file grievances and lawsuits challenging the conditions of

his confinement. Additionally, Cunningham asserts a claim under Section 1983 that his placement

at Tamms was in violation of his Fourteenth Amendment right of procedural due process.

On December 7, 2009, trial on Cunningham’s retaliation claim commenced, with the undersigned

District Judge presiding. On December 8, 2009, at the close of Cunningham’s case, the Court

granted judgment as a matter of law on Cunningham’s retaliation claim in favor of

Defendants Donald Snyder, Odie Washington, Michael V. Neal, Richard McVicar,

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George C. Welborn, Angela Winsor, Homer Markel, and Jack Hartwig pursuant to Rule 50 of the Federal Rules of Civil Procedure. Cunningham now has moved for a new trial on his retaliation claim, asserting various errors by the Court. The motion has been fully briefed, and the Court rules as follows.
II. ANALYSIS Under Rule 59 of the Federal Rules of Civil Procedure, a new trial may be granted “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). See also ABM Marking, Inc. v. Zanasi Fratelli, S.R.L., 353 F.3d 541, 543 (7th Cir. 2003). A court may grant a new trial if “the verdict is against the clear weight of the evidence, the damages are excessive or the trial was unfair to the moving party.” Miksis v. Howard, 106 F.3d 754, 757 (7th Cir. 1997). See also Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1196 (7th Cir. 1992); Peterson v. Farrakhan, No. 2:03 CV 319 PS, 2007 WL 2025213, at *3 (N.D. Ind. July 9, 2007). Rule 61 of the Federal Rules of Civil Procedure also may be relevant to a motion for a new trial. Under Rule 61, “Unless justice requires otherwise, no error in admitting or excluding evidence – or any other error by the court or a party – is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.” Fed. R. Civ. P. 61. Put another way, “[i]n order to receive a new trial, the defendant must show that the error was substantial enough to deny him a fair trial.” Perry v. Larson, 794 F.2d 279, 285 (7th Cir. 1986). A court has the power and duty to order a new trial whenever, in its judgment, this action is required in order to prevent injustice, and a prejudicial error of law may justify a new trial. See Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004);
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A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., 683 F. Supp. 680, 696 (S.D. Ind. 1988). The decision whether to grant a motion for a new trial is within a trial court’s discretion. See Neal v. Honeywell, Inc., 191 F.3d 827, 831 (7th Cir. 1999); General Foam Fabricators, Inc. v. Tenneco Chems., Inc., 695 F.2d 281, 288 (7th Cir. 1982).
In the instant motion Cunningham asserts nine grounds for a grant of a new trial: the Court prevented him from calling Odie Washington as a witness; the Court permitted Cunningham’s Court-appointed attorney to withdraw from representation of Cunningham without allowing Cunningham to respond to his attorney’s motion to withdraw; the Court denied Cunningham the opportunity to present his case and to question witnesses; the Court denied Cunningham the opportunity to raise objections for purposes of the record on appeal; the Court compelled Cunningham to call his rebuttal witness, Henry Scates, during Cunningham’s case-in-chief; the Court did not permit Cunningham to question prospective jurors; the Court erroneously granted judgment as a matter of law against Cunningham at the close of his case; the Court erroneously limited the issue at trial to whether Cunningham was transferred to Tamms in retaliation for engaging in protected activity, denying Cunningham the opportunity to prove that his continued placement at Tamms is retaliatory; and the Court erred in dismissing Donald Snyder as a Defendant. The Court will address each of these contentions in turn.
Turning first to the issue of whether the Court prevented Cunningham from calling Odie Washington as a witness at trial, the Court certainly did not do so. Washington could have been called as a witness, but Cunningham neither subpoenaed him nor sought to have Washington’s deposition testimony admitted in evidence at trial. A motion for a new trial is “not merely intended to secure a forum for the relitigation of old matters or to afford the parties
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the opportunity to present the case under new theories; instead, the motion is a device properly used to correct manifest errors of law or fact or to present newly discovered evidence.” Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1380 n.4 (7th Cir. 1990); St. Clair v. Pipal, 611 F. Supp. 911, 915 (E.D. Wis. 1985). Where Cunningham could have called Washington as a witness at trial but did not do so, Washington’s absence as a witness at trial is not grounds for a grant of a new trial in this instance. See Chavez v. City of Albuquerque, 640 F. Supp. 2d 1340, 1343 (D.N.M. 2008) (a motion for a new trial is not intended to be a device for a litigant “to introduce new evidence that was available at the time of trial but was not proffered[.]”); Lyons v. Jefferson Bank & Trust, 793 F. Supp. 989, 991 (D. Colo. 1992) (same).1
Turning next to the issue of whether the Court erred in permitting Richard D. Murray, Jr., Cunningham’s Court-appointed attorney, to withdraw from further representation of Cunningham without awaiting a response from Cunningham to Murray’s motion to withdraw, the Court finds no merit in this asserted ground for a new trial. In Murray’s motion to withdraw, the attorney, who represented Cunningham for approximately six years, stated that he and Cunningham had significant and intensifying disagreements regarding litigation strategy with respect to Cunningham’s retaliation claim. See Civil Case No. 00-708, Doc. 117 at 1 ¶ 2. Murray further represented that Cunningham wanted him to pursue claims not warranted under existing law and had threatened to sue Murray for
1. Additionally, Cunningham does not explain what testimony Washington could have offered that would have been relevant to Cunningham’s retaliation claim, or how Washington’s testimony would have altered the ultimate disposition of that claim. The Court notes that, although Washington was the Director of the IDOC at the time Cunningham was transferred to Tamms, no evidence emerged at trial showing that Washington was personally involved in the decision to send Cunningham to Tamms, as was required, of course, to impose liability on Washington under 42 U.S.C. § 1983. See Walker v. Rowe, 791 F.2d 507, 508 (7th Cir. 1986); Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir. 1985).
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legal malpractice if Murray did not do so. See id. ¶¶ 2-3. The Court had (and has) no reason to disbelieve Murray’s representations in his motion to withdraw. As Defendants’ counsel point out in their response to Cunningham’s motion for a new trial, Cunningham is not entitled as a matter of right to Court-appointed counsel in this litigation. See Synergy Assocs., Inc. v. Sun Biotechnologies, Inc., 350 F.3d 681, 683 (7th Cir. 2003); Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002); Stroe v. INS, 256 F.3d 498, 500 (7th Cir. 2001). Moreover, it was Murray’s duty as an officer of the Court to withdraw from further representation of Cunningham under the circumstances described by Murray in his motion to withdraw. See Carr v. Tillery, Nos. 09-1124, 09-1168, 2010 WL 92487, at *9 (7th Cir. Jan. 12, 2010) (attorneys “neglect[ ] their duties as officers of the state and federal courts by failing to rein . . . in” clients who wish to pursue frivolous claims and legal theories). The Court did not err in granting Murray’s motion to withdraw without waiting for Cunningham’s response to the motion.
The Court turns next to Cunningham’s claims that the Court denied him the opportunity to present his case and to question witnesses and denied him the opportunity to register objections at trial. The Court will deal with these objections together, as they go essentially to the Court’s authority over the order of interrogating witnesses and presenting evidence at trial. Under Rule 611 of the Federal Rules of Evidence, a court is directed to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of truth, [and] (2) avoid needless consumption of time[.]” Fed. R. Evid. 611(a). See also United States v. Reynolds, 189 F.3d 521, 529 (7th Cir. 1999). Under Rule 611 “the district court . . . has the responsibility to exercise reasonable control over the interrogation of witnesses . . . . On that judicial officer’s shoulders rests the
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responsibility for the orderly progression of trial.” United States v. Mohammad, 53 F.3d 1426, 1434 (7th Cir. 1995) (citing United States v. Blakey, 607 F.2d 779, 788 (7th Cir. 1979)). In this instance the Court attempted to fulfill its responsibility to control the interrogation of witnesses at the trial on Cunningham’s retaliation claim by imposing reasonable time limits on Cunningham’s questioning of witnesses in an effort to prevent Cunningham from indulging in irrelevant and repetitious questioning “in the interests of ascertaining the truth and avoiding needless consumption of time.” United States v. Griffin, 194 F.3d 808, 830 (7th Cir. 1999) (quoting United States v. Wilson, 134 F.3d 855, 866 (7th Cir. 1998)). See also United States v. Carter, 410 F.3d 942, 951-52 (7th Cir. 2005) (affirming a trial court’s imposition of a time limit on the testimony of a party); McKnight v. General Motors Corp., 908 F.2d 104, 115 (7th Cir. 1990) (noting that “in this age of swollen federal caseloads district judges must manage their trials with an iron hand – must scrutinize the witness list and the exhibit list with a beady eye and ruthlessly prune redundant or marginal evidence. We do not reverse district judges who do this . . . . We commend them.”). Similarly, while the Court may not have permitted Cunningham to register objections at the trial on his retaliation claim in as much detail and as at much length as he might have liked, the Court certainly did not prevent Cunningham from raising his objections at trial, and in his motion for a new trial Cunningham does not identify any objection that he would have liked to have raised at trial but was denied the opportunity to do so.
With respect to Cunningham’s next asserted ground for a new trial, that the Court refused to permit Cunningham to present the testimony of Henry Scates on rebuttal and insisted that Scates testify, if at all, as part of Cunningham’s case-in-chief, this objection also pertains, of course, to the Court’s management of the interrogation of witnesses and the presentation of evidence at trial.
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The Court’s decision regarding Scates was motivated by the fact that he is an inmate in the custody of the IDOC who appeared at the trial on Cunningham’s retaliation claim pursuant to a writ of habeas corpus ad testificandum. Allowing Scates to testify on rebuttal rather than as part of Cunningham’s case-in-chief would have required the IDOC and the Court’s security personnel to find a prison cell near the site of the trial where Scates could be confined overnight. The Court was entitled to balance Cunningham’s interest in Scates’s testimony and in his preferred trial strategy against considerations of prison administration and security. See Ford v. Carballo, 577 F.2d 404, 407-08 (7th Cir. 1978); Stone v. Morris, 546 F.2d 730, 737 (7th Cir. 1976); In re Warden of Wis. State Prison, 541 F.2d 177, 179-81 (7th Cir. 1976). In striking that balance, Cunningham’s preferred trial strategy was required to yield. In any event, the particular point in the trial at which Scates testified ultimately had no effect on the disposition of Cunningham’s retaliation claim, given that Scates had no evidence relevant to the issue of whether the decision to send Cunningham to Tamms was retaliatory.
Concerning the fact that the Court did not permit Cunningham to question prospective jurors, in general, of course, the conduct of voir dire is committed to a trial judge’s discretion and the judge is permitted to conduct voir dire alone, without the questioning of prospective jurors by parties or their counsel, provided that such court-conducted voir dire is adequate to expose possible biases on the part of prospective jurors. See Fed. R. Civ. P. 47(a) (“The court may permit the parties or their attorneys to examine prospective jurors or may itself do so.”); Chlopek v. Federal Ins. Co., 499 F.3d 692, 702 (7th Cir. 2007) (citing Gardner v. Barnett, 199 F.3d 915, 920-21 (7th Cir. 1999)) (“The trial court has broad discretion over the selection of questions to potential jury members, and the parties have no right to have a particular question posed.”); Art Press, Ltd. v. Western Printing
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Mach. Co., 791 F.2d 616, 618 (7th Cir. 1986) (quoting United States v. Dellinger, 472 F.2d 340, 368 (7th Cir. 1972)) (in conducting voir dire, the “trial court must permit ‘sufficient inquiry into the background and attitudes of the jurors to enable [the parties] to exercise intelligently their peremptory challenges[.]’”); Fietzer v. Ford Motor Co., 622 F.2d 281, 285 (7th Cir. 1980) (quoting United States v. Lewin, 467 F.2d 1132, 1138 (7th Cir. 1972)) (“[T]he trial court has the affirmative duty to pose questions that go beyond what may bring out information that would disqualify the juror for cause . . . . Thus it is essential to explore the backgrounds and attitudes of the jurors to some extent in order to discover actual bias, or cause . . . . In its entirety, the examination must reveal inquiry adequate ‘to call to the attention of the veniremen those important matters that might lead them to recognize or to display their disqualifying attributes.’”); Beard v. Mitchell, 604 F.2d 485, 501 (7th Cir. 1979) (quoting Dellinger, 472 F.2d at 367) (“There is of course no rigid standard for determining the adequacy of the voir dire . . . . ‘[T]he focus is exclusively on whether the procedure used for testing impartiality created a reasonable assurance that prejudice would be discovered if present.’”); Dozier v. Stampnick, No. 88 C 9691, 1992 WL 132849, at *3 (N.D. Ill. May 29, 1992) (although a trial court has great discretion in conducting voir dire, this discretion is subject to the parties’ right to an impartial jury, and therefore in conducting voir dire a trial judge must ask questions that “enable the parties to intelligently exercise the right to challenge, whether for cause or peremptorily”). Here Cunningham does not assert that the Court conducted an inadequate voir dire at the trial on Cunningham’s retaliation claim, nor does he identify an area of inquiry that he wished the Court to ask prospective jurors about but about which the Court declined to inquire. Accordingly, the Court finds that its conduct of voir dire is not grounds for a new trial.
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The Court turns next to Cunningham’s contention that the Court erroneously granted judgment as a matter of law against Cunningham at the close of his case. The Court does not agree. In order to make out a prima facie claim “for violation of first amendment rights, [plaintiffs] must present evidence that (1) their speech was constitutionally protected; (2) they suffered a deprivation likely to deter free speech; and (3) their speech caused the [defendant’s] actions.” Gunville v. Walker, 583 F.3d 979, 983 (7th Cir. 2009). In light of Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), “[t]his means but-for causation.” Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009). “Some decisions . . . say that a plaintiff just needs to show that his speech was a motivating factor in defendant’s decision. These decisions do not survive Gross, which holds that, unless a statute (such as the Civil Rights Act of 1991) provides otherwise, demonstrating but-for causation is part of the plaintiff’s burden in all suits under federal law.” Id. at 525-26. See also Delapaz v. Richardson, No. 07 C 1224, 2009 WL 5217339, at *3 (N.D. Ill. Dec. 28, 2009) (granting summary judgment as to civil rights claims alleging that the plaintiffs were demoted on the basis of their political affiliation where the evidence showed at most that protected activity was a motivating factor in the demotion decision: “[T]he standard is but-for causation. A motivating factor is not enough in the face of undisputed evidence that the decision was made for budgetary and operational reasons.”). Additionally, in order to show that protected conduct caused a retaliatory deprivation, plaintiffs “must first show that the defendants knew of their [protected conduct].” Gunville, 583 F.3d at 984. In the course of Cunningham’s entire presentation of his evidence, which took over a day and entailed, in addition to Cunningham’s testimony, the testimony of eight other witnesses (Michael Neal, Jack Hartwig, George Welborn, Jerry Gilmore, Henry Scates, Angela Winsor, Homer Markel, and Richard McVicar), Cunningham failed to adduce a shred of evidence that any
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Defendant was aware of Cunningham’s history of filing grievances and lawsuits regarding the conditions of his confinement, much less that Cunningham’s protected conduct was the sole or but-for cause of his transfer to Tamms. Although it is plain from Cunningham’s own testimony that he is firmly convinced that he was transferred to Tamms in retaliation for filing grievances and lawsuits, his uncorroborated testimony is no more sufficient to create a jury issue at the Rule 50 stage than it is at the stage of a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Ford v. Minteq Shapes & Servs., Inc., 587 F.3d 845, 848 (7th Cir. 2009) (“The record’s only evidence of Minteq paying more to white employees with equal responsibilities is Ford’s own conclusory, uncorroborated testimony. This is not enough to survive summary judgment.”); Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 939 (7th Cir. 1997) (“As we have repeatedly explained, a plaintiff’s own uncorroborated testimony is insufficient to defeat a motion for summary judgment.”); Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 446 (7th Cir. 1997) (“Plaintiff’s own uncorroborated testimony is insufficient to defeat [the defendant’s] motion for summary judgment.”); Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir. 1993) (“We have previously held that a party seeking to avoid summary judgment may not establish a dispute of material fact with unsubstantiated assertions in its factual summary or in affidavits.”). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (the standard for granting summary judgment under Rule 56 and the standard for granting judgment as a matter of law under Rule 50 “is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”). The Court did not err in granting judgment as a matter of law for Defendants at the close of Cunningham’s evidence.
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Concerning whether the Court erred in limiting the issue at trial to whether Cunningham’s original transfer to Tamms was retaliatory and refusing to allow Cunningham to challenge his continued placement at Tamms as retaliatory, the Court concludes that it did not err. In the final pretrial order entered regarding Cunningham’s retaliation claim, the claim is characterized thus: “[P]laintiff alleges the defendants placed plaintiff at Tamms Correctional Center, the State of Illinois’ highest security facility, in retaliation for his filing lawsuits and grievances. Plaintiff seeks compensatory and punitive damages.” Civil Case No. 00-708, Doc. 55 at 1. The final pretrial order, which clearly identifies Cunningham’s claim as being that his original transfer to Tamms was retaliatory, superseded all pleadings in the case and defined the scope of the evidence and argument to be heard at the trial on Cunningham’s retaliation claim. See Rockwell Int’l Corp. v. United States, 549 U.S. 457, 474 (2007) (citing Fed. R. Civ. P. 16) (a final pretrial order supersedes all prior pleadings in a case and “control[s] the subsequent course of the action”); Erff v. MarkHon Indus., Inc., 781 F.2d 613, 617 (7th Cir. 1986) (“[T]he pretrial order is treated as superseding the pleadings and establishes the issues to be considered at trial.”); Petit v. City of Chicago, 239 F. Supp. 2d 761, 771 (N.D. Ill. 2002) (“Evidence or theories not raised in the pretrial order are properly excluded at trial.”). The parties defending against Cunningham’s retaliation claim were entitled to rely on Cunningham’s characterization of that claim in the final pretrial order and to prepare their defense at trial accordingly. See Nagy v. Riblet Prods. Corp., 79 F.3d 572, 575 (7th Cir. 1996) (“The document controlling the course of trial is the pretrial order . . . . Each side plans for trial on the assumption that it needs to meet only the contentions its adversary identifies in that order.”). The Court did not err in limiting Cunningham at trial to the issue of whether his original placement at Tamms was retaliatory.
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Finally, the Court addresses Cunningham’s contention that the Court erred in dismissing Donald Snyder as a party Defendant to Cunningham’s retaliation claim. In a previous order in this case, the Court granted summary judgment for Snyder on Cunningham’s retaliation claim in light of uncontroverted evidence that Cunningham was transferred to Tamms on April 12, 1998, while Snyder became the Director of the IDOC on January 12, 1999, so that as a matter of law Snyder could not have had any personal involvement in the decision to transfer Cunningham to Tamms. See Westefer v. Snyder, Civil Nos. 00-162-GPM, 00-708-GPM, 2009 WL 2905548, at *14 & n.14 (S.D. Ill. Sept. 4, 2009). See also Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (discussing the requirement of personal involvement in claims under 42 U.S.C. § 1983); Eades v. Thompson, 823 F.2d 1055, 1063 (7th Cir. 1987) (same). The Court’s grant of summary judgment in Snyder’s favor established the law of the case as to Snyder’s liability to Cunningham for retaliation. See Tice v. American Airlines, Inc., 373 F.3d 851, 853 (7th Cir. 2004); Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995); Potter v. Janus Inv. Fund, 483 F. Supp. 2d 692, 708-09 (S.D. Ill. 2007). Thus, the Court did not err in dismissing Snyder. Cunningham has failed to establish grounds for a new trial on his retaliation claim.
III. CONCLUSION For all of the foregoing reasons, Cunningham’s motion for a new trial (Doc. 530) is DENIED. IT IS SO ORDERED. DATED: January 25, 2010
/s/ G. Patrick Murphy G. PATRICK MURPHY United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) Consolidated with: ) CIVIL NO. 00-708-GPM )

MEMORANDUM AND ORDER

MURPHY, District Judge:

I. INTRODUCTION

The named Plaintiffs in this case, Robert Westefer, Mark Von Perbandt, Alejandro Villazana,

Armando Tinajero, Corey A. Taylor, Michael Sparling, Joe Sorrentino, Anibal Santiago,

Tyshawn Ross, Vincente Rodriguez, Edward Rodriguez, Vincent Reyna, Alex Muller,

William Lasley, Ted Knox, Michael Johnson, Eugene Horton, George Harper, Timothy Hall,

John Gill, Larry Gambrell, Larry Foutch, Robert Felton, Kennard Combs, Maurice Coleman,

Leverne Clayton, Gary Clark, Roosevelt Burrell, Finner Bryant, Larry Brown, Aryules Bivens, and

Bennie Cunningham, are past and present inmates in the custody of the Illinois Department of

Corrections (“IDOC”) who, at the times relevant to this case, have been incarcerated in the closed

maximum security prison (“supermax prison”) at the Tamms Correctional Center (“Tamms”) in Tamms, Illinois.1 Plaintiff Mary Chapman is the legal representative of Marcus Chapman, who

1. The Court notes that there is also a minimum security prison at Tamms; all references to Tamms in this Order are to the supermax prison there.
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formerly was a Plaintiff in this case until he committed suicide while in IDOC custody at Tamms on August 26, 2004. Defendants Donald Snyder, Odie Washington, Michael V. Neal, George DeTella, Michael O’Leary, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan, Thomas Page, Roger Walker, Salvador Godinez, Guy Pierce, Barbara Hurt, Rick Orr, Ronald Meek, Jason Garnett, Deirdre Battaglia, Eddie Jones, Don Hulick, and Roger Zimmerman are present and former officials and employees of the IDOC.
Plaintiffs seek relief in this case under 42 U.S.C. § 1983, alleging that Defendants have violated their right to procedural due process under the Fourteenth Amendment to the Constitution by employing constitutionally inadequate procedures when assigning IDOC inmates to the supermax prison at Tamms. Additionally, Plaintiffs Westefer, Von Perbandt, Villazana, Tinajero, Sparling, Sorrentino, Santiago, Ross, V. Rodriguez, E. Rodriguez, Reyna, Muller, Lasley, Knox, Johnson, Horton, Harper, Hall, Gill, Gambrell, Foutch, Felton, Combs, Coleman, Clayton, Clark, Chapman, Burrell, Bryant, Brown, and Bivens represent a class defined as “[a]ll inmates who have been transferred to [Tamms] since January 1, 1998, and all prisoners who will be transferred to Tamms in the future.” Westefer v. Snyder, Civil Nos. 00-162-GPM, 00-708-GPM, 2006 WL 2639972, at *12 (S.D. Ill. Sept. 12, 2006). The class-wide claims in this case are solely for injunctive and declaratory relief, not damages. See id. at *9. Also, in previous orders in this case the Court has held that the doctrine of qualified immunity shields Defendants from liability in damages to the named Plaintiffs in this case as individuals for the due process violations alleged by the named Plaintiffs. See Westefer v. Snyder, Civil Nos. 00-162-GPM, 00-708-GPM, 2009 WL 2905548, at **9-11 (S.D. Ill. Sept. 4, 2009); Cunningham v. Snyder, 472 F. Supp. 2d 1023, 1033 (S.D. Ill. 2006). The class-wide procedural due process claims in this case now have been fully tried
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to the Court in the course of an eight-day bench trial. Pursuant to Rule 52(a) of the Federal Rules
of Civil Procedure, the Court enters this Order as its findings of fact and conclusions of law with respect to the class-wide procedural due process claims.2
II. ANALYSIS
A. Mootness
Before addressing the merits of the claims for violations of procedural due process in this
case, the Court feels constrained to address the issue of whether the due process claims are moot in
light of certain reforms that are being implemented by the IDOC in connection with confinement at
the supermax prison at Tamms. The issue of mootness is one that implicates the Court’s
subject matter jurisdiction, which extends, of course, only to “Cases” and “Controversies.”
Summers v. Earth Island Inst., 129 S. Ct. 1142, 1148 (2009) (quoting U.S. Const. art. 3, § 2, cl. 1).
See also Wernsing v. Thompson, 423 F.3d 732, 745 (7th Cir. 2005) (“Mootness . . . is always a
threshold jurisdictional question that we must address even when it is not raised by the parties.”);
Ortiz v. John O. Butler Co., 94 F.3d 1121, 1125 (7th Cir. 1996) (“A federal court’s subject matter
jurisdiction extends only to actual cases and controversies.”). In light of the case or
2. This perhaps is the place to note that this Order is intended to be a concise account of the bench trial conducted on the procedural due process claims in this case, and to that end only matters deemed by the Court to be credible, material, and relevant will be reported. The reader should presume that evidence omitted from the Court’s findings of fact was considered by the Court to be irrelevant or in any event less persuasive than competing evidence. The Court notes in passing that, in addition to alleging violations of procedural due process, Plaintiffs Von Perbandt, Taylor, Sparling, Sorrentino, Santiago, V. Rodriguez, E. Rodriguez, Lasley, Knox, Horton, Harper, Felton, Combs, Clayton, Chapman, Burrell, Bivens, and Cunningham also assert claims under 42 U.S.C. § 1983 alleging that they were assigned by Defendants to the supermax prison at Tamms in retaliation for filing grievances and lawsuits and engaging in other protected activities challenging the conditions of their confinement, in violation of the First and Fourteenth Amendments to the Constitution. These retaliation claims have been resolved in a series of jury trials, and they are not at issue here.
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controversy requirement, a federal court has no jurisdiction to entertain moot controversies. See Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)) (“[A] federal court has no authority ‘to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’”); Powell v. McCormack, 395 U.S. 486, 496-97 (1969) (a federal court can consider only cases and controversies and therefore cannot consider moot cases). Accordingly, the issue of mootness needs to be addressed by the Court as a threshold matter. See Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979) (issues affecting a court’s subject matter jurisdiction are “fundamentally preliminary”); Walters v. Edgar, 163 F.3d 430, 432 (7th Cir. 1998) (“[T]he existence of a case or controversy in the Article III sense, that is, a real dispute between parties with tangible stakes in the outcome, must be continuous from the beginning of the suit to the end. If a case becomes moot, the court loses jurisdiction, even though the case was not moot when filed.”) (citations omitted).
On September 3, 2009, IDOC Director Michael Randle submitted to Patrick Quinn, the Governor of Illinois, a “Ten-Point Plan” (hereinafter, “the Ten-Point Plan” or simply “the Plan”) aimed at ameliorating aspects of confinement at the supermax prison at Tamms. See Tamms Closed Maximum Security Unit: Overview and Ten-Point Plan (Plaintiffs’ Exhibit 7). A number of the reforms proposed in the Ten-Point Plan are pertinent to the procedural due process claims in this case, including: allowing each IDOC inmate that is placed at the supermax prison at Tamms to have a transfer review hearing where the inmate can contest his placement at the supermax prison; furnishing each inmate, on arrival at Tamms, with an estimate of the probable length of his stay and explaining how, through good behavior, the inmate can earn transfer out of the supermax prison;
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ensuring that inmates assigned to Tamms receive a full mental health examination within thirty days of placement at the supermax prison and taking measures to identify and monitor inmates that may be suffering deteriorating mental health as a result of placement at Tamms; increasing inmate privileges such as telephone calls, out-of-cell time, and showers, as an incentive for good behavior; offering General Educational Development (“GED”) testing at Tamms; implementing congregate religious services at Tamms; lifting certain restrictions on the amount of printed material Tamms inmates are allowed to possess; developing a reassignment unit at Tamms to help inmates reassigned from the supermax prison to lower-security prisons to adjust to their reassignment; and reevaluating the eligibility for transfer of inmates who have been incarcerated long-term at Tamms. See id. at 14-26. As should become apparent presently from the Court’s discussion of whether IDOC inmates have a due process liberty interest in avoiding confinement at Tamms, IDOC Director Randle’s proposed reforms directly address a number of objections to Tamms raised by Plaintiffs and the class.
As Plaintiffs point out, the Ten-Point Plan, though it has been approved by Governor Quinn, has not yet been fully implemented by the IDOC through, for example, the promulgation of appropriate regulations. See Doc. 522 (Testimony of Michael Randle) at 41-42. Also, as the Court has had occasion to note at an earlier stage of this case, “it is well settled that a voluntary cessation of complained-of conduct generally does not moot a lawsuit.” Westefer, 2006 WL 2639972, at *10 (collecting cases). See also Federation of Adver. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924, 929 (7th Cir. 2003) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)) (noting “the general principle that a defendant’s voluntarily cessation of challenged conduct will not render a case moot because the defendant remains ‘free to return to his old ways.’”);
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Milwaukee Police Ass’n v. Jones, 192 F.3d 742, 747 (7th Cir. 1999) (voluntary cessation of activity does not render a case moot unless the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated). In this instance the Court believes it is inappropriate to find mootness, given that, despite IDOC Director Randle’s proposed reforms, Defendants continue to insist that conditions at Tamms do not implicate due process concerns. Even more importantly, as will be discussed in more detail presently, the Ten-Point Plan as proposed by IDOC Director Randle and approved by Governor Quinn does not cure constitutional infirmities in the existing procedures whereby IDOC inmates are placed in the supermax prison at Tamms. Accordingly, notwithstanding any reforms the IDOC has implemented at Tamms or intends to implement there, the controversy before the Court remains live and is not moot.
B. Procedural Due Process 1. Existence of a Liberty Interest
In general, of course, the Fourteenth Amendment protects citizens from deprivations of life, liberty, or property without due process of law. See U.S. Const. amend. XIV, § 1; Doe v. City of Lafayette, Ind., 377 F.3d 757, 767-68 (7th Cir. 2004). Thus, the Court turns to the question of whether Plaintiffs and the class have a due process liberty interest in avoiding assignment to the supermax prison at Tamms. See Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (prison inmates, to prevail on procedural due process claims, must show that they possess a Fourteenth Amendment liberty interest and have been deprived of that interest without due process); Williams v. Ramos, 71 F.3d 1246, 1248 (7th Cir. 1995) (citing Zinermon v. Burch, 494 U.S. 113, 125 (1990)) (“When a plaintiff brings an action under [42 U.S.C.] § 1983 for procedural due process violations, he must show that the state deprived him of a constitutionally protected interest in ‘life,
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liberty, or property’ without due process of law.”); Colon v. Schneider, 899 F.2d 660, 666 (7th Cir. 1990) (when analyzing a claim that a state has violated an individual’s right to procedural due process, the first inquiry is whether there exists a life, liberty, or property interest protectable under the Fourteenth Amendment with which the state has interfered; if the court determines that the state has deprived an individual of a protectable interest, the next step is to determine if the entity responsible for the alleged deprivation instituted constitutionally sufficient procedural protections). In the prison context, and more specifically in the context of assignments to segregated confinement, liberty interests “will be generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). See also Lekas v. Briley, 405 F.3d 602, 607-08 (7th Cir. 2005); Thomas v. Ramos, 130 F.3d 754, 760 (7th Cir. 1997).
In order to determine whether conditions of confinement impose “an atypical and significant hardship within the correctional context,” those conditions must be measured against a baseline. Wilkinson v. Austin, 545 U.S. 209, 224 (2005). In Wilkinson the Court acknowledged that the federal courts of appeals have not reached agreement on the appropriate baseline for determining whether conditions of confinement impose hardship such as to give rise to a liberty interest in avoiding those conditions. See id. at 223. Without resolving the issue, the Wilkinson Court held that conditions of confinement at the Ohio State Penitentiary (“OSP”), which, like Tamms, is a supermax prison, imposed atypical and significant hardship on inmates there “under any plausible baseline.” Id. The Wilkinson Court examined the aggregate of conditions at the OSP in evaluating whether they imposed atypical and significant hardship on inmates such as to give rise to a liberty interest. The Court noted the “especially severe limitations on all human contact” at the OSP, and
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went on to discuss “two added components.” Id. at 224. These were the indefinite duration of an inmate’s placement at the prison, and the disqualification of an otherwise eligible inmate for parole consideration. See id. The Court observed, “While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP.” Id. (citing Sandin, 515 U.S. at 483).
The precise baseline to use in ascertaining whether conditions in the supermax prison at Tamms create atypical and significant hardship in relation to the ordinary incidents of prison life has been the subject of considerable dispute among the parties to this case. Counsel for Plaintiffs and the class propose as the correct baseline conditions at the OSP or, alternatively, conditions in the general prison population at the Menard Correctional Center (“Menard”) and the Stateville Correctional Center (“Stateville”). Concerning inmates transferred to Tamms from prisons outside Illinois, Plaintiffs contend that the baseline is furnished by conditions at the institutions where such inmates were confined immediately before they were transferred to Tamms. For their part, Defendants argue that the correct baseline is supplied by conditions in disciplinary segregation at the Pontiac Correctional Center (“Pontiac”). To the extent Defendants seem to argue that the existence of a liberty interest in avoiding confinement of Tamms hinges on the language of IDOC regulations, their position obviously is incorrect. As the Wilkinson Court noted, “the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves ‘in relation to the ordinary incidents of prison life.’” 545 U.S. at 223 (quoting Sandin, 515 U.S. at 484). The basic question, then, is the sort of “expectation or
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interest” inmates have in light of normal conditions of confinement. Id. at 221 (citing Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974)). In an earlier order in this case the Court concluded that the correct test of whether confinement in the supermax prison at Tamms imposes atypical and significant hardship on inmates such as to give rise to a liberty interest in avoiding confinement there is whether confinement at Tamms imposes atypical and significant hardship “under any plausible baseline.” Westefer, 2009 WL 2905548, at *4 (quoting Wilkinson, 545 U.S. at 223). Accordingly, in light of the three factors identified as relevant in Wilkinson (e.g., limitations on human contact, indefinite duration of placement, and the effect of supermax confinement on the length of an inmate’s sentence), the Court will examine first conditions at Tamms, then compare those conditions to conditions at the OSP, in segregation at Pontiac, and in the general population at Menard and Stateville, as well as in prisons outside Illinois from which inmates have been transferred to Tamms.
2. Conditions at the Supermax Prison at Tamms a. Limitations on Human Contact
With respect to the matter of the limitations on human contact imposed by confinement at Tamms, it is clear from the record of this case that confinement at Tamms is an experience of very intense isolation for inmates. In fact, even before the supermax prison at Tamms was opened in 1998, the 1993 final report of the Illinois Task Force on Crime and Corrections, which recommended the construction of the supermax prison, cautioned,
Reputable human rights organizations . . . have expressed legitimate and serious concerns about practices in existing super-maximum security facilities. The Task Force recommends that our Super-Max facility be required by statute to conform to certain requirements concerning constitutional and humanitarian safeguards. Since these highly restrictive environments, if misused, can create conditions tantamount
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to long-term isolation, the Department of Corrections will have to establish clearly defined rules and regulations to govern the admission and release of inmates from the Super-Max facility and to monitor its operation and administration closely. Illinois Task Force on Crime and Corrections, Final Report, at 87-88 (1993) (Plaintiffs’ Exhibit 19) (emphasis added). As the Court hopes will be apparent from its discussion of the evidence in this case, including the Court’s first-hand observation of conditions at Tamms during a tour of the facility in the company of IDOC officials and counsel for the parties to this case, the Task Force’s concerns about confinement in the supermax prison at Tamms becoming an experience of long-term isolation for IDOC inmates were and are well-founded. Generally speaking, the Tamms supermax prison is small by the standards of the other prisons in the IDOC system, containing only 520 beds. See Deposition of George Welborn at 54, 56. By way of comparison, data on the website of the IDOC (http://www.idoc.state.il.us), which the Court can judicially notice, see Denius v. Dunlap, 330 F.3d 919, 926 (7th Cir. 2003); Laborers’ Pension Fund v. Blackmore Sewer Constr., Inc., 298 F.3d 600, 607 (7th Cir. 2002), reflects that: Menard has a capacity of 1,938 inmates and an average daily population of 3,466 inmates; Stateville has a capacity of 2,980 inmates and an average daily population of 3,357 inmates; and Pontiac has a capacity of 1,058 inmates and an average daily population of 1,612 inmates. The reason that the supermax prison at Tamms is relatively small is that the prison is designed to house the worst, most problematic inmates in the IDOC system. See Doc. 144 (Second Amended Complaint) at 2 ¶ 2; Doc. 148 (Answer) at 1 ¶ 2; Doc. 267-3 (Transcript of Orientation Presentation for Tamms Correctional Personnel by George C. Welborn) at 4, 10. Inmates are placed at Tamms in one of two categories: disciplinary segregation or administrative detention. See Doc. 522 (Randle Testimony) at 10; Welborn Deposition at 37. Inmates placed at Tamms in disciplinary
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segregation are those who are deemed to be dangerous even in disciplinary segregation at other prisons. See Doc. 522 (Randle Testimony) at 19, 22, 27-28. Inmates assigned to Tamms in administrative detention are those who are deemed to be dangerous when housed at other prisons, such as validated members of prison gangs or “security threat groups” (“STGs”) as such gangs are referred to in correctional parlance. See id. at 19, 22.
It is undisputed among the parties to this case that the supermax prison at Tamms is the highest security prison in Illinois, featuring uniquely restrictive conditions of confinement designed both to control the most high-security inmates in the IDOC system and to encourage inmates at lower-security prisons to comply with IDOC rules to avoid being transferred to the supermax prison. See Doc. 144 (Complaint) at 4 ¶ 7, 4 ¶ 9; Doc. 148 (Answer) at 1 ¶ 2, 2 ¶ 7, 2 ¶ 9; Doc. 175 (Response to Plaintiffs’ Request for Admissions) at 6 ¶ 13. Consistent with the unique role that the supermax prison at Tamms is meant to play in the IDOC system, the prison was never intended to be full and has been approximately half-full since its opening in 1998. See Doc. 144 (Complaint) at 4 ¶ 8; Doc. 148 (Answer) at 2 ¶ 8; Welborn Deposition at 54-57. IDOC Director Randle testified that it is “a good thing” that Tamms operates at about half capacity “because it shows that our staff and inmates, for the most part, are doing the right things and our prisons are safe. If Tamms were full, I would be concerned about the 27 other prisons [in the IDOC system] because it would indicate that there is some bad things happening out there.” Doc. 522 (Randle Testimony) at 44. It appears that Tamms has succeeded in its purpose. According to IDOC Director Randle, “incidents of inmate-on-inmate assaults, inmate-on-staff assaults, gang related activities, the number of lock down days, all of those indicators that we look at in terms of providing a safe environment in the other 27 prisons have all gone down and that directly correlated with the opening and operation
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of Tamms.” Id. at 8. It is equally apparent to the Court from the testimony it heard from IDOC inmates, including present and past inmates of Tamms, that the inmates genuinely fear the supermax prison and do not want to be confined there.
The salient feature of confinement in the supermax prison at Tamms is the total absence of any congregate inmate activities, save with the exception of J-pod, a special treatment unit for inmates that have been diagnosed with serious mental illness where inmates are permitted to participate in congregate therapy sessions. See Doc. 433 (Transcript of Day 2 of Bench Trial) at 112-13. The supermax prison at Tamms consists of nine pods; eight pods have six wings, while J-pod has two wings. See Doc. 144 (Complaint) at 4 ¶ 11; Doc. 148 (Answer) at 3 ¶ 11. The wing of a typical pod at Tamms has two tiers, each containing five one-man cells and a shower cell where inmates bathe individually without privacy. See Doc. 433 (Day 2 Trial Transcript) at 108. Adjacent to each wing is an exercise yard. See id. at 108-09. Each pod also contains a multipurpose room to which inmates are brought individually for religious services (there are no congregate religious services at Tamms), mental health counseling, and, for inmates assigned to Tamms in administrative detention, annual transfer review hearings. See id. at 107. There is also a room styled a library where inmates are brought individually to review materials that they have ordered ahead of time from the central prison library. See id. Each pod contains a medical service area that is equipped with a separate shower where both emergency care and extended care can be provided, together with dental and optometry services. See id. at 109. With respect to the prison commissary, Tamms does not have a commissary of the traditional kind. Instead, inmates order items from a company outside the prison which are then brought to their cells; in general inmates may not spend more than $30 per month. See id. at 111. In sum, inmate life at Tamms is structured so that inmates
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spend the vast majority of their time alone in their cells and, barring a medical crisis severe enough to require a visit to the prison’s infirmary for long-term medical care, all of their time in their assigned pod. See id. at 109.
Each cell at Tamms is approximately nine feet by fifteen feet with walls that are approximately nine feet high. A typical cell at Tamms is of pre-cast concrete construction, containing a toilet and sink, a stainless steel mirror (for inmates who are authorized to have one), a small shelf high on the wall by the door, a concrete slab for use as a desk, a concrete bunk on which to sleep (with, perhaps, a mattress) at the far end of the cell opposite the door, and a window set at the top of the wall over the bunk; all of the furniture in a typical Tamms cell is made of reinforced concrete. See Doc. 433 (Day 2 Trial Transcript) at 108; Photographs of Tamms (Plaintiffs’ Exhibit 12); Doc. 144 (Complaint) at 5 ¶ 13; Doc. 267-3 (Welborn Orientation Presentation) at 9. The window of a typical Tamms cell cannot be operated from inside the cell and is positioned so that, without making unusual efforts, all that an inmate can see through it is a sliver of sky. See Tamms Photographs (Plaintiffs’ Exhibit 12); Doc. 267-3 (Welborn Orientation Presentation) at 9; Doc. 144 (Complaint) at 5 ¶ 13; Doc. 514 (Testimony of Rodney Guthrie) at 21. The door of a typical cell is made of steel mesh perforated with small holes so as to reduce severely visibility inside and outside the cell. See Tamms Photographs (Plaintiffs’ Exhibit 12); Doc. 144 (Complaint) at 5 ¶ 13; Doc. 148 (Answer) at 3 ¶ 13. There is a small chuck hole in the door of each cell; through the chuck hole an inmate receives and returns plastic trays bearing his meals (all Tamms inmates eat alone in their cells). See Tamms Photographs (Plaintiffs’ Exhibit 12); Doc. 144 (Complaint) at 5 ¶ 14; Doc. 148 (Answer) at 3 ¶ 14. The chuck hole is locked from the outside and provides no visibility into or out of the cell. See Tamms Photographs (Plaintiffs’
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Exhibit 12); Doc. 144 (Complaint) at 5 ¶¶ 13-14; Doc. 148 (Answer) at 3 ¶¶ 13-14. Inmates at Tamms are only permitted two small property boxes and there are limits on the amount of individual items of property they may have; for example, inmates may keep a maximum of twenty-five books and fifteen pictures in their cells. See Doc. 433 (Testimony of James Hughes) at 80-81. Tamms inmates spend between twenty-three and twenty-four hours a day in their cells. See Doc. 144 (Complaint) at 5 ¶ 13; Doc. 148 (Answer) at 3 ¶ 13. Depending on their behavioral status, inmates are permitted to have either a television or a radio, or else a television and a walkman, in their cells. See Doc. 144 (Complaint) at 5 ¶ 13; Doc. 148 (Answer) at 3 ¶ 13. Because inmates at Tamms are not given work assignments (and thus cannot earn wages), it may be difficult for indigent inmates to afford a television, radio, or walkman. See Doc. 175 (Response to Request for Admissions) at 17 ¶ 83; Doc. 433 (Testimony of Alonzo Franklin) at 38-39.
As noted, inmates at Tamms spend the vast majority of their time alone in their cells. Inmates assigned to Tamms in disciplinary segregation are permitted at least one shower a week and up to five hours of exercise yard time per week. See Tamms Closed Maximum Security Facility Inmate Orientation Manual (Plaintiffs’ Exhibit 11) at 26. Inmates who are placed at Tamms in administrative detention are permitted to leave their cells according to which of three security “levels” they have been assigned by reason of the quality of their behavior and the length of time they have been at Tamms. See id. at 26-27. As administrative detention prisoners move from level one to level three, they are granted more privileges: thus, administrative detention prisoners in level one are permitted two showers per week and two hours of exercise yard time per week, and administrative detention prisoners in level three are permitted five showers per week and seven hours of exercise yard time per week. See id. An exercise yard at Tamms is an empty concrete room with
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a hard composite deck that is about fifteen by twenty feet (approximately the size of two cells), with walls about thirty feet high; only about a third of the yard is uncovered, and through this small uncovered space inmates occasionally are able to see a bird or an airplane passing overhead. See Tamms Photographs (Plaintiffs’ Exhibit 12); Doc. 433 (Day 2 Trial Transcript) at 108-09; Doc. 144 (Complaint) at 7 ¶ 19; Doc. 148 (Answer) at 5 ¶ 19; Doc. 514 (Guthrie Testimony) at 22. A typical exercise yard in the supermax prison at Tamms does not contain a bathroom, a water fountain, or any kind of exercise equipment (such as a basketball hoop, for example). See Tamms Photographs (Plaintiffs’ Exhibit 12); Doc. 144 (Complaint) at 7 ¶ 19; Doc. 148 (Answer) at 5 ¶ 19. Tamms inmates go to the exercise yard alone (observed by an armed guard in a control center) and the inmates are not permitted to exercise together. See Doc. 144 (Complaint) at 7 ¶ 18; Doc. 148 (Answer) at 5 ¶ 18. Additionally, an inmate may be deprived of his exercise yard privileges for an extended period as a result of infractions of prison discipline. See id.
Consistent with the general prohibition of congregate inmate activities at Tamms, the supermax prison imposes heavy restrictions on the ability of inmates to communicate with one another. Inmates at Tamms are not permitted to communicate with other prisoners when outside their cells, and while it appears that inside their cells inmates can communicate with inmates in other cells, they can do so only with considerable difficulty. As noted, the doors of the cells at Tamms are made of steel mesh, so that an inmate cannot see into or out of a cell without hindrance. Thus, inmates cannot see one another and can communicate between cells only by standing beside the door of their cells and speaking loudly so as to be heard in other cells. IDOC inmate Larry Strickland, who was confined at Tamms from May or June of 1998 until approximately October of 1999 and
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who now is confined at Pontiac, testified to the unique difficulty of communicating with other
inmates at Tamms:
Down at Tamms you can’t communicate with nobody because you don’t know if somebody on the other yard or not. And it’s hard, you know, if you don’t know a person if you can’t see a person it’s hard to, you know, communicate. ‘Cause you don’t know who you are talking to. Most people just don’t talk to anybody unless they see you and able to see who you are or what.
* * * *
And it’s just you seem like you all alone, like there’s nobody there. But you, even though you got somebody next door to you it’s like you communicating – when you do communicate it’s like you communicating with that person at a long distance.
* * * *
THE COURT: Now why is it that you can’t communicate with your neighbor at Tamms? THE WITNESS: Because it’s like you in the cell, you in the back of your cell, and if he call you, he don’t call you loud enough you won’t hear him. You see what I’m saying? If you have a TV or radio or you watching your TV or your radio you can’t hardly hear the other people because you – the cell is big and you in the back of it. You all the way in the back of the cell. And if you come to the front it’s just not the same. You know, you have to stand at the door and you have to communicate standing at the door and it’s not for very long because it’s an uncomfortable situation. Even if you sit down you sitting on the hard floor unless you get your pillow and put it on the floor. But if you moving around and somebody call you, you – you – and you don’t want to just stand at the door all the time and just talk because you get tired.
Doc. 514 (Testimony of Larry Strickland) at 9-10, 13-14. As Strickland’s testimony suggests, the
fact that Tamms inmates must wear earbuds when using a television or radio also hampers what little
communication inmates at Tamms are able to conduct between cells; former Tamms inmate
Rodney Guthrie testified similarly about the effect of earbuds on communication among inmates of
the supermax prison. See id. (Guthrie Testimony) at 22, 23-24.
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Every IDOC inmate testifying in this case who currently is confined or who formerly was
confined in the supermax prison at Tamms complained bitterly of the intense isolation caused by the
pervasive lack of contact with other inmates. For example, IDOC inmate Johnny Almodovar, who
has been confined at Tamms since March 1998, testified as follows:
THE COURT: . . . [Y]ou told me earlier that here, just like the other prisons, you can communicate between your cell bars with the other prisoners. What’s different? Describe it to me so when I write it down I can say: This, you know, this witness told me this and this is what’s different. And he should know he’s been to a lot of prisons. What is the difference? THE WITNESS: Isolation from communicating with other people. Communicating with other people just to go on the yard with other people, you know. To have that connection with someone, you know. You can talk to someone behind a door and you are isolated 23 hours a day. But it is a totally different situation if you are allowed to be with other inmates around and communicate, you know. And that type of way it’s totally different. You got to have – you got to be in that situation to understand that. And it takes a toll. And it takes a big toll. I don’t feel the same.
Doc. 433 (Testimony of Johnny Almodovar) at 69-70. Rodney Guthrie, who was confined at Tamms
from April 2000 until January 2007 and who now is confined at Pontiac, went to truly remarkable
lengths to escape from the loneliness and monotony imposed on Tamms inmates by the regime of
strict isolation at the supermax prison. Guthrie advised prison officials at Tamms that he intended
to escape from the prison, even though he had no intention of attempting an escape, so that he could
be classed as an escape risk and therefore be moved at regular intervals to different parts of the
prison, thereby increasing Guthrie’s opportunities for possible communication with other
Tamms inmates:
Q. Okay. I also see that you are wearing green stripes on your shirts. Can you tell us what that is? A. Level E status. That means high escape risk. Q. And how did you come about classified as level E? A. That happened at Tamms in 2002.
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Q. What happened? A. Well, they had placed me at Tamms and, you know, the monotony was getting to me, things like that. By being stuck in that cell and nobody to talk to and just minimum contact with other inmates or staff or whatever. And in order to move around and be able to talk to other people, things like that, I wrote a letter to the major saying that if he don’t move me out of the cell by 3:00 I be halfway to Chicago. And things like that. Q. And it was after that that they classified you as high escape risk? A. Yeah, they made me level E. Q. Why is being classified as high escape risk something that you wanted to happen? A. Well, because I didn’t actually – I just wanted to move around because I was stuck in that one cell. I wanted to move around from pod to pod from wing to wing so I could be able to, you know, talk to other people, you know. I wanted to break up the monotonous routine. Q. It is now seven years later and you are still – A. Level E. Q. Have they told you what you need to do to get out of level E? A. No, they never told me.
Doc. 514 (Guthrie Testimony) at 18-19.
A number of IDOC inmates who are or who formerly were confined at Tamms gave
testimony in this case that specifically linked the intense isolation at Tamms to deterioration of
their mental health that they suffered during their confinement in the supermax prison.
For example, Larry Strickland, a former Tamms inmate, as noted, who currently is confined at
Pontiac, testified that confinement at Tamms is “a lot more stressful” than confinement at Pontiac
precisely because inmates at Tamms cannot communicate effectively with each other. Doc. 514
(Strickland Testimony) at 9. Strickland also testified that while he was at Tamms he began
experiencing auditory hallucinations or “hearing voices” and suffered delusions that correctional
personnel at the supermax prison were poisoning his food. Id. at 10. Ultimately Strickland was
transferred out of Tamms to the Psychiatric Unit of the Dixon Correctional Center, where he
remained for approximately a year before being transferred to Pontiac. See id. at 8-9.
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Similarly, Rodney Guthrie testified that he had no history of psychiatric disorders before being
transferred to Tamms and that, following his transfer to the supermax prison, he fell into a severe
depression caused by the isolation at Tamms that ultimately prompted him to have himself classified
as an escape risk in a desperate bid to escape from that isolation:
Q. Did you notice any change in yourself, your mental attitudes while you were at Tamms? A. Well, um, when they first sent me there I was maybe in a depressed state, you know. I contacted mental health after dealing with them for maybe five years out of the whole time I was there just to keep my sanity to have nobody to talk to. They pull me out maybe once every two weeks, see how I’m doing, things like that. We talk about social issues, prison issues, things of that nature. For the most part I was in a depressed state. That’s what led me to become a level E. Q. Did you have those depression problems before you went to Tamms? A. Naw. No.
Id. (Guthrie Testimony) at 22-23. As IDOC inmate Johnny Almodovar said, and as the testimony of
inmates Larry Strickland and Rodney Guthrie illustrates, the intense deprivation of human
contact at Tamms exacts a toll on the psychological well-being of the inmates of the
supermax prison.
While cases of IDOC inmates who suffered decompensation while confined at Tamms could
be recounted at great length, the Court merely will note a couple of additional examples.
Plaintiff Felton testified that the isolation of his confinement at Tamms prompted him to mutilate
himself and to attempt suicide:
. . . I was in isolation for long periods of time. I wasn’t allowed to make any telephone calls to my relatives and family members. I didn’t have any physical or social interaction with the people that was at the institution that I was at. Q. Did that have any effect on your mental health? A. Yes, it did. Q. Tell us about that. A. While I was at Tamms I was in what was called physical psychotherapy for seven and a half years through the mental health services at Tamms due to
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the isolation. Q. Before that didn’t you have a particular problem before that got you into therapy? A. Yes. I suffer from bipolar disorder prior to going to Tamms. While at Tamms I suffer from self-mutilation and other psychiatric problems. Q. In fact, you attempted suicide? A. That’s correct. Q. You were put in a suicide cell stripped out? A. That’s correct.
Doc. 482 (Testimony of Robert Felton) at 4. Finally, IDOC inmate Ronnie Carroll, who was
confined at Tamms from July 1998 until July 2004 and who now is confined at Pontiac,
testified that he has had no history of mental problems since he was transferred out of Tamms.
Doc. 514 (Testimony of Ronnie Carroll) at 44. However, while he was confined at Tamms,
Carroll testified,
I held a record there for while I was on suicide watch consecutive for like 57 days so, or 15-minute watches, a stripped out cell in the hospital with nothing but a gown and a little foam mat. I had a number of mental health issues at Tamms as far as suicidal thoughts, depression, a lot of mental health people and things of that nature.
Id. at 43-44. In fact, after mandatory supervised release (that is, parole) or discharge from
IDOC custody, mental health problems are the most common reason that inmates are transferred
out of Tamms. See Ten-Point Plan (Plaintiffs’ Exhibit 7), Table 4.
Importantly, unlike Carroll, who, as noted, has experienced no further mental problems since
his transfer out of Tamms, a number of former inmates of Tamms testified that, due to the extreme
isolation in which they were confined at the supermax prison, they have experienced ongoing mental
difficulties even after their transfer out of Tamms to lower-security facilities where they have much
freer access to other inmates. For example, Plaintiff Sparling, who spent six years and seven months
at Tamms, testified that as a continuing result of his past confinement in the supermax prison he does
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not like to be around other people and that after he was transferred out of Tamms he found it difficult
to adjust to sharing a cell with another inmate:
Q. Have you noticed any changes in yourself since you were at Tamms? A. Whew, yeah. Q. Tell us about that. A. Well, I – I’m going to have to say being in isolation is kind of a trip. If you are not pretty strong then you might become a bug. I mean, have mental issues. Q. But how about you personally? Did you notice any change once you got out of Tamms as compared when you were back at Menard before you went to Tamms? A. Yeah, I don’t like being around crowds too much. Being around people . . . . [I]t was a trip having a celly, being in isolation for so long, to have to live with another man, you know? But . . . being in isolation is kind of hard.
Doc. 513 (Testimony of Michael Sparling) at 13. Plaintiff Burrell, a Tamms inmate for over seven
years, gave similar testimony about suffering a continuing sense of paranoia after his transfer out of
the supermax prison:
Mentally sometime, I guess I would be – it took me a while to adjust to my surrounding. I’m somewhat – I became more paranoid. For some reason I became paranoid after leaving Tamms – as I’ve stated before I’ve been around hundreds of men, fox holes, and, I mean, in the military and out of the military and welding schools, and never experienced any form of paranoid before in my life that I ever known of until I was released from Tamms. Q. And you are housed currently at where? A. Centralia. Q. And that’s a medium security institution? A. It’s a medium or – I believe minimum. Q. Okay. And there you have an opportunity to go out and mingle with people at will during certain times of the day? A. Yes. Q. Do you take advantage of all those opportunities? A. I force myself to do these things. Q. And did you used to have to force yourself to have to do them? A. No. Q. When did that change? A. After Tamms. Well, before I was released from Tamms I guess.
Doc. 417 (Testimony of Roosevelt Burrell) at 46-47.
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Although, again, the Court could recount at length instances of former Tamms inmates who have experienced ongoing mental problems as a result of confinement in the supermax prison, instead the Court merely will note a few additional examples. Plaintiff Sorrentino, who was an inmate at Tamms for over ten years, testified to the great difficulty he has experienced trying to adjust to being in the company of other people after he was transferred out of Tamms:
Q. How about your mental state, has that changed at all since you were in Tamms? A. Well, I’m stressed out most of the time. A lot of anxiety. If I even think that I’m getting a call pass my stomach starts to hurting, I have murmurs – palpations [sic], I mean. The mornings of yard, stressed out. I’m not good around people anymore. I don’t want to be around people. Q. And were you that way before you went to Tamms? A. No. Doc. 417 (Testimony of Joe Sorrentino) at 51. Plaintiff Clayton testified that, although he is no longer confined at Tamms, “it [confinement at Tamms] still bother me,” and stated flatly that, as a result of his time at Tamms, “I don’t trust nobody.” Doc. 513 (Testimony of Leverne Clayton) at 6. Plaintiff Knox, a Tamms inmate for nearly eleven years, commented of his recent transfer out of the supermax prison, “I got to get readjusted to everything. Basically like a little child again. That’s like I say it’s kind of scary just being around people again. Having a cell mate again after 11 years.” Doc. 417 (Testimony of Ted Knox) at 35-36. Finally, Plaintiff Bivens, who was an inmate at Tamms from July 1998 until December 2001, testified that as a result of his confinement in the supermax prison he has had ongoing difficulty with “not being able to look people in the face or in the eye when I’m speaking to them” as well as with a “depressive state” and “not being able to sleep” after he was transferred out of Tamms. Id. (Testimony of Aryules Bivens) at 23. In sum, it appears that the psychic toll exacted by long-term confinement in the intensely isolated circumstances of Tamms is, in many instances, a continuing one.
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In addition to being isolated in their cells up to twenty-four hours a day and forbidden to participate in any congregate inmate activities, Tamms inmates are isolated in other respects as well. For example, although the majority of Tamms inmates are from Chicago or the Chicago area, Tamms is located 360-370 miles from Cook County, Illinois, making it difficult for the families of inmates to visit their loved ones at the prison. See Doc. 144 (Complaint) at 7-8 ¶ 20; Doc. 148 (Answer) at 5 ¶ 20; Ten-Point Plan (Plaintiffs’ Exhibit 7), Table 1; Doc. 267-3 (Welborn Orientation Presentation) at 7-8. Moreover, extremely strict limitations are placed on visits and telephone calls at Tamms. All prospective visitors must submit a visitor interview form, which must be approved by the Internal Affairs Office at Tamms before a visit is allowed; an appointment must be made for a specific date and time at least ten days in advance of the requested visit. See Tamms Inmate Orientation Manual (Plaintiffs’ Exhibit 11) at 16-17. If a visitor is twenty minutes late for his or her scheduled visit at Tamms, the visit is subject to being cancelled. See Doc. 175 (Response to Request for Admissions) at 10 ¶ 41. All visits are non-contact, with inmates chained to the floor during visits and all conversation conducted through plexiglass windows via an intercom system; also, all non-legal visits are monitored by Tamms correctional personnel. See Ill. Admin. Code tit. 20, § 505.80(b)(2); Doc. 433 (Day 2 Trial Transcript) at 110; Tamms Inmate Orientation Manual (Plaintiffs’ Exhibit 11) at 15; Tamms Photographs (Plaintiffs’ Exhibit 12); Doc. 144 (Complaint) at 8 ¶ 20; Doc. 148 (Answer) at 5 ¶ 20. Visits between an inmate and his attorney take place in a specialized, non-contact visiting room; a correctional officer is seated in a special area separate from the inmate and the attorney so that if papers need to be passed between the two, the officer may do that. See Doc. 433 (Day 2 Trial Transcript) at 110-11; Doc. 144 (Complaint) at 8 ¶ 22; Doc. 148 (Answer) at 5 ¶ 22. As to telephone privileges, Tamms inmates have none and may use the
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telephone only in emergencies and for legal matters; also, they may not initiate calls to an attorney. See Ill. Admin. Code tit. 20, § 505.80(a); Ten-Point Plan (Plaintiffs’ Exhibit 7) at 22; Doc. 522 (Randle Testimony) at 32. Ronnie Carroll, who as already has been noted is a former Tamms inmate now housed at Pontiac, where he has telephone privileges, testified that “[a]t Tamms I was down there six years I never used the phone in any way, shape, or form.” Doc. 514 (Carroll Testimony) at 40. Similarly, Johnny Almodovar testified that, following over eleven years of confinement at Tamms, he has been permitted to use the telephone only once, when his mother died. See Doc. 433 (Almodovar Testimony) at 63, 70.
On the record before the Court, it is abundantly clear that the first of the three factors identified by the Wilkinson Court as relevant to the existence of a due process liberty interest in avoiding confinement in a supermax prison, severe limitations on all human contact, is present in this case. In an earlier decision in this case the United States Court of Appeals for the Seventh Circuit observed that, if Plaintiffs’ allegations are true, “being confined to Tamms is to be subjected to virtual sensory deprivation, with prisoners forced to spend most days doing literally nothing but staring at the four blank walls of their cells.” Westefer v. Snyder, 422 F.3d 570, 589 (7th Cir. 2005). The record shows that this is indeed the case. The Court notes that a large population of Tamms inmates are poorly educated, if not illiterate, and therefore cannot beguile their time in isolation through activities like reading and letter-writing. See Ten-Point Plan (Plaintiffs’ Exhibit 7) at 4 (Tamms inmates are less likely than inmates in other IDOC prisons to have a high school diploma or GED). For those inmates, the long hours that they must spend alone in their cells at Tamms must weigh especially heavily. With that observation, the Court turns to consideration of the other relevant factors identified in Wilkinson.
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b. Indefinite Duration of Placement at Tamms As already has been discussed, the second factor identified in Wilkinson as relevant to the existence of a liberty interest in avoiding confinement at a supermax prison is whether placement at such a prison is of indefinite duration. It is clear from the record that under existing IDOC procedures placement at Tamms is of indefinite duration and that inmates transferred to the prison know neither how long they will be confined there nor how they can effect transfer out of the prison through good behavior. According to George Welborn, who was closely involved in the design of Tamms and who served as the first warden of the supermax prison, when Tamms opened in 1998 his view and that of most IDOC officials was that an inmate assigned to the prison who behaved well should not stay more than a year at Tamms. See Doc. 267-3 (Welborn Orientation Presentation) at 3, 7-9; Welborn Deposition at 69-71. However, when Welborn retired in 2002, most of the inmates who had been transferred to Tamms when it opened were still there. See Welborn Deposition at 71-72. It appears that the change in policy concerning the duration of an inmate’s stay at Tamms may have come about in part as a result of a decision by IDOC officials to require Tamms inmates to renounce their gang affiliations as a prerequisite for transferring out of the supermax prison. As IDOC Director Randle acknowledged in his testimony before the Court, for many Tamms inmates renunciation of gang affiliations would be “an automatic death sentence.” Doc. 522 (Randle Testimony) at 23. A current Tamms inmate, Johnny Almodovar, explained that inmates who participate in the gang renunciation procedure may be perceived as informers by other inmates: Q. What is this renunciation? A. I don’t know. I never went out there. I wasn’t never concerned about it. Q. All right.
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THE COURT: Well, let me stop you there. Why wouldn’t you be? THE WITNESS: Because supposedly – this is word that’s going around, that supposedly when you go out there you suppose to be a stool pigeon and tell these people everything they want to hear. And if you don’t tell them that, then, you know, it is a waste; you are not going to leave from down here. And that’s the last thing I want to do is to be marked and to be – have other inmates thinking that I’m telling something, you know. That’s – that’s – that’s not – that’s something I don’t want a label on myself.
* * * *
Q. Why would you want to avoid that label, what impact would it have? A. It can get you killed. Definitely get you killed. You know, I mean it’s not no secret. Everybody knows that. A stool pigeon will get you hurt. You know, so, that’s the last thing I want to associate myself with. Especially in these conditions. I mean, com’on now.
Doc. 433 (Almodovar Testimony) at 66-67. Thus, in some instances inmates may have preferred
to remain at Tamms rather than renounce their gang affiliations, although even inmates who have
renounced such affiliations can remain confined at Tamms. See id. (Hughes Testimony) at 84
(the witness remained confined at Tamms notwithstanding having renounced his gang affiliation
almost two years earlier).
IDOC Director Randle’s Ten-Point Plan acknowledges that “[a]s part of the current
orientation process, inmates are not informed of how long they should expect to be
incarcerated at Tamms . . . and the process of earning privileges based on positive adjustment
behavior is under-amplified.” Ten-Point Plan (Plaintiffs’ Exhibit 7) at 16. This is borne out by the
testimony of IDOC inmates confined at Tamms. For example, current Tamms inmate
Alonzo Franklin testified as follows:
Q. . . . [H]as anybody told you well has anybody given you a date by which you will be transferred out of Tamms? A. No, sir. Q. Has anybody given you a list of things you need to accomplish in order to get out
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of Tamms? A. No, sir. Q. Has anybody told you anything about what you can do to earn your way out of Tamms? A. Renounce [the witness’s gang affiliation]. Q. Anything else? A. No, sir. Q. Is it your understanding if you renounce that you are guaranteed to get out of Tamms? A. No. Q. Okay.
Doc. 433 (Franklin Testimony) at 46. Similar testimony was given by other Tamms inmates, such
as Manuel Bobee:
Q. Did they tell what you are supposed to do to get back out of Tamms? A. Nothing.
* * * *
Q. And has anybody told you yet when you are leaving Tamms? A. No.
Id. (Testimony of Manuel Bobee) at 94. See also Doc. 507 (Testimony of Kennard Combs) at 8.
(Plaintiff Combs, who currently is confined at Tamms, testified that upon arriving at the supermax
prison he was told neither how long he would be confined there nor any specific things that he
needed to do to be transferred out of the prison); Doc. 433 (Hughes Testimony) at 84 (testifying that,
apart from advising the witness to renounce his gang affiliation and to complete his term of
disciplinary segregation, IDOC personnel had furnished no guidance about what to do to be
transferred out of Tamms).
Some inmates testified to receiving misleading information from IDOC personnel about the
likely duration of their confinement at Tamms and what they needed to do to be transferred out of
the prison. For example, Plaintiff Sparling testified that during orientation at Tamms he was told
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that he would be confined at Tamms only for a year, provided that he behaved himself and was not disciplined: “[W]hen we came in for orientation they said do your year, go through level systems, don’t get any tickets, and we will ship you out of Tamms.” Doc. 513 (Sparling Testimony) at 11-12. Although Sparling complied with these instructions, in fact he remained at Tamms, as already has been noted, for six years and seven months, his confinement at the supermax prison being explained to him only as that he was “[p]roperly placed.” Id. at 12. See also Doc. 514 (Carroll Testimony) at 37 (the witness testified that the common understanding among IDOC inmates in 1999 was that placement at Tamms was only for a year). Relatedly, IDOC inmate Gene Arnett, who currently is confined at Tamms, testified that IDOC personnel have told him that because of his poor disciplinary record he will never be transferred out of the supermax prison:
Q. And has anybody told you how long you are likely to stay here at Tamms? A. Wardens have told me I’m never leaving Tamms. Q. Have they told you what you can do to modify your behavior to get out of here? A. They’ve told me because of my past I will never leave Tamms. Doc. 433 (Testimony of Gene Arnett) at 75. Significantly, even Tamms inmates who have maintained clean disciplinary records for years remain at the supermax prison, with no idea how long they may be confined there. For example, IDOC inmate Richard McCue testified that he remains confined at Tamms despite not having received a disciplinary ticket in nine years and despite having been in level three, which, as already has been discussed, is the security level assigned to the best-behaved Tamms inmates and the one that carries the most privileges, for eight years: Q. When is the last time you got a disciplinary report here at Tamms? A. Nine years ago. Q. And you are currently in level three here the [administrative detention] level? A. Oh, yeah.
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Q. How long have you been in level three? A. Probably about eight years at least.
Doc. 433 (Testimony of Richard McCue) at 105. Similarly, Manuel Bobee has been in level three
for six years and has not received a disciplinary ticket in approximately the same amount of time,
yet he remains confined at Tamms with no idea as to how much longer he will remain at the
supermax prison:
Q. Did [the IDOC] tell what you are supposed to do to get back out of Tamms? A. Nothing. Q. Now once you got into administrative detention, you were in level one, right? A. Yes. Q. Are you still in level one? A. No, I’m at level three. Q. How long have you been at level three? A. Mmm Mmm, right now it’s been about five years, maybe six years. Q. And has anybody told you yet when you are leaving Tamms? A. No. Q. How long has it been since you got a disciplinary report? A. The year 2003 or about 2003 or something around there.
Id. (Bobee Testimony) at 94-95. Finally, Johnny Almodovar testified that, despite having been in
level three for six years and not having received a disciplinary ticket in that time, he remains
confined at Tamms with no end in sight. See id. (Almodovar Testimony) at 65.
On the record before the Court, the Court concludes that placement at Tamms is indefinite
and “the only time limit is the length of the underlying sentence.” Westefer, 422 F.3d at 589.3
Importantly, among the reforms proposed by IDOC Director Randle’s Ten-Point Plan regarding
Tamms is to inform inmates on their arrival at the supermax prison of the likely duration of their
3. In fact, statistical data assembled by the IDOC shows that the average time served for the current population at Tamms is 73.4 months, or over six years. See Ten-Point Plan (Plaintiffs’ Exhibit 7) at 6. Seventy of the 243 inmates (28.3%) have been at Tamms for at least ten years, and more than half have been at Tamms for over five years. See id. at 8. Over three-quarters (76.9%) or 190 of the inmates at Tamms have been there for over three years. See id., Table 4.
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confinement there and to offer them behavioral goals to meet in order to be released in that time
frame, with periodic updates as to whether they are meeting those goals. See Ten-Point Plan
(Plaintiffs’ Exhibit 7) at 16. IDOC Director Randle testified:
One of the concerns that was expressed to me during my tour at [Tamms] by the inmates was that in a lot of cases they did not know or they said they weren’t told how long they could expect to stay. What we've said in the 10 Point Plan is that we will give the offender a range. Once they’ve been approved for placement in Tamms what I expect staff to do is, based on how long a person has been there for a similar offense, based on correctional professional judgment, to tell the person a range of time that they can expect to be at Tamms.
* * * *
Now from there what we expect the staff to do is tell the offender how they can impact that one to three years and make it closer to one year rather than the three years by getting involved in programming, by their interactions with staff, by not getting conduct reports, by engaging in program activities when they have an opportunity. All of those things can help a person get closer to the lower end of that range rather than the longer end of that range. And, again, this is an estimate based on our staff’s professional judgment, based on the offense that they committed to get placed at Tamms, and how long we think they will be there. Q. Will the inmate get feedback after that on whether or not they’re meeting their goals or whether they fall short? A. That would come at those 90 day reviews they give them feedback and tell them how they've done in the past 90 days, what they need to work on, what they may need to get involved in, what staff have been saying about their interactions with staff, their attitudes and behaviors, those things happen during those 90 day reviews.
Doc. 522 (Randle Testimony) at 13-14. In the Ten-Point Plan the IDOC effectively concedes
that, hitherto, inmates arriving at Tamms have not been advised of how long they will be at the
supermax prison and how they can work to be transferred out of the prison. The second Wilkinson
factor relevant to the question of whether IDOC inmates have a due process liberty interest in
avoiding assignment to Tamms, the indefinite duration of placement at the supermax prison, weighs
in favor of a finding that IDOC inmates have such an interest.
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c. Effect of Placement at Tamms on Length of Sentence The Court turns to the third of the Wilkinson factors to be considered in determining whether there is a liberty interest in avoiding confinement at Tamms, the effect of placement at the supermax prison on the length of an inmate’s sentence. In Wilkinson the Court identified as a factor relevant to the existence of a liberty interest in avoiding confinement at the OSP the fact that placement at the OSP automatically disqualifies an inmate of the supermax prison from consideration for parole. See 545 U.S. at 224. The parties to this action agree that inmates at Tamms are eligible for release on parole or mandatory supervised release at the same time they would be if incarcerated at another Illinois prison. Nevertheless, as the Seventh Circuit Court of Appeals cautioned at an earlier stage of this case, to interpret Wilkinson as “turn[ing] exclusively on the absence of parole constitutes, [in] our view, far too crabbed a reading of the decision.” Westefer, 422 F.3d at 590. “The very text of the [Wilkinson] decision belies such a claim in noting that, ‘[w]hile any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context.’” Id. (quoting Wilkinson, 545 U.S. at 224). Further, it is clear from the record that placement at Tamms does affect the length of an inmate’s sentence, by rendering the inmate ineligible to receive various kinds of good time credit. Under Illinois law, a prison inmate, depending on the nature of his or her underlying sentence, is eligible for day-for-day good time credit pursuant to 730 ILCS 5/3-6-3, which provides, in relevant part, that “a prisoner who is serving a term of imprisonment shall receive one day of good conduct credit for each day of his or her sentence of imprisonment . . . . Each day of good conduct credit shall reduce by one day the prisoner’s period of imprisonment[.]” 730 ILCS 5/3-6-3(a)(2.1).
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See also Thomas v. Sims, No. 05 C 3307, 2006 WL 495941, at *2 (N.D. Ill. Feb. 28, 2006). Thus, a Tamms inmate, according to the nature of his sentence, receives day-for-day good time credit in the same manner as inmates at any IDOC prison do. See, e.g., Williams v. Johnson, No. 07-cv-35-DRH, 2009 WL 5183793, at *1 & n.2 (S.D. Ill. Dec. 22, 2009). However, placement at Tamms deprives an inmate of the right to earn certain other kinds of good time credit.
Pursuant to Section 3-6-3 of the Illinois Unified Code of Corrections, most IDOC inmates are eligible to receive good time credit for participating in work, education, and substance abuse programs:
The rules and regulations shall also provide that the good conduct credit accumulated and retained under paragraph (2.1) of subsection (a) of this Section by any inmate during specific periods of time in which such inmate is engaged full-time in substance abuse programs, correctional industry assignments, or educational programs provided by the Department under this paragraph (4) and satisfactorily completes the assigned program as determined by the standards of the Department shall be multiplied by a factor of 1.25 for program participation before August 11, 1993 and 1.50 for program participation on or after that date. 730 ILCS 5/3-6-3(a)(4). See also Bryant v. Peters, No. 94 C 2758, 1995 WL 708566, at *1 (N.D. Ill. Nov. 30, 1995). Also, inmates at most Illinois prisons are eligible to receive meritorious good time credit under Section 3-6-3, which states, in relevant part,“The rules and regulations shall also provide that the Director [of the IDOC] may award up to 180 days additional good conduct credit for meritorious service in specific instances as the Director deems proper[.]” 730 ILCS 5/3-6-3(a)(3). See also Rooding v. Peters, 864 F. Supp. 732, 738 (N.D. Ill. 1994). Because there are no educational programs or substance abuse programs at Tamms, and Tamms inmates are not permitted to hold job assignments, inmates of the supermax prison perforce cannot earn good time credit for participating in work, education, and substance abuse programs. See
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Doc. 175 (Response to Request for Admissions) at 13-14 ¶¶ 61-64, ¶ 66. Additionally, Tamms inmates are ineligible to receive meritorious good time credits. See Health Care Unit Request Acknowledgment by LCSW Rocky Peppers to IDOC Inmate Sean Jordan (Plaintiffs’ Exhibit 15). Because of the strict constraints that placement at Tamms imposes on the ability of the inmates of the supermax prison to accrue good time credit, the Court concludes that the effect of placement at Tamms is to extend the sentence of an inmate who is confined there.4 Accordingly, the third of the Wilkinson factors relevant to the existence of a liberty interest in avoiding confinement at a supermax prison, the effect of confinement in such a prison on the length of an inmate’s sentence, is satisfied here.
3. Baseline Comparatives of Tamms a. Conditions at the OSP
As already has been discussed, the parties to this case have proposed a number of prisons as comparatives of Tamms for purposes of determining whether, measured against such prisons as a baseline, Tamms imposes atypical and significant hardship in relation to the ordinary incidents of prison life. Among these proposed comparatives is the OSP, the supermax prison in Ohio that, as already has been discussed, was the subject of constitutional due process scrutiny by the

4.

The Court recognizes that it is assuming here that, were work, education, and

substance abuse programs available at Tamms, inmates of the supermax prison would participate in

such programs. This assumption seems reasonable to the Court. Participation in such programs

doubtless would be a happy alternative to the crushing monotony of being confined alone in a cell

for up to twenty-four hours a day that currently is the lot of Tamms inmates. Also, it seems

probable that Tamms inmates would welcome the opportunity to earn money by participating in

work programs, in order to purchase small items like walkmans or arch supports that make life in

a place like Tamms somewhat more bearable. See Doc. 433 (Testimony of Adolfo Rosario) at 50-51

(the witness, a Tamms inmate, complained that the shoes issued to him by Tamms correctional

personnel lack arch supports, but he cannot purchase shoe inserts at the prison commissary because

he is indigent and has no money to spend at the commissary).

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Supreme Court of the United States in Wilkinson. In Wilkinson the Court outlined the conditions of
confinement at the OSP as follows:
Conditions at OSP are more restrictive than any other form of incarceration in Ohio, including conditions on its death row or in its administrative control units. The latter are themselves a highly restrictive form of solitary confinement. In OSP almost every aspect of an inmate’s life is controlled and monitored. Inmates must remain in their cells, which measure 7 by 14 feet, for 23 hours per day. A light remains on in the cell at all times, though it is sometimes dimmed, and an inmate who attempts to shield the light to sleep is subject to further discipline. During the one hour per day that an inmate may leave his cell, access is limited to one of two indoor recreation cells.
Incarceration at OSP is synonymous with extreme isolation. In contrast to any other Ohio prison, including any segregation unit, OSP cells have solid metal doors with metal strips along their sides and bottoms which prevent conversation or communication with other inmates. All meals are taken alone in the inmate’s cell instead of in a common eating area. Opportunities for visitation are rare and in all events are conducted through glass walls. It is fair to say OSP inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact.
Aside from the severity of the conditions, placement at OSP is for an indefinite period of time, limited only by an inmate’s sentence. For an inmate serving a life sentence, there is no indication how long he may be incarcerated at OSP once assigned there. Inmates otherwise eligible for parole lose their eligibility while incarcerated at OSP.
Wilkinson, 545 U.S. at 214-15 (citations omitted). As the Court hopes is plain from the discussion
of conditions in the supermax prison at Tamms set out in previous sections of this Order, any
difference between conditions of confinement at the OSP and conditions of confinement at Tamms
is de minimis.
For example, while it appears that inmates at Tamms are not actually prohibited from
attempting to communicate between cells, as already has been discussed such communications can
be conducted only with great difficulty, so much so that IDOC inmate Isiah Bell testified that his
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verbal communication skills were atrophying the longer he remains in confinement at the supermax prison at Tamms. In his testimony Bell told the Court, “[Y]ou have to excuse my social skills I been in this kind of situation for so long that I basically don’t know how to talk. I don’t know how to express myself. And as you see, it’s kind of hard for me to look you straight in the eye so excuse that.” Doc. 433 (Testimony of Isiah Bell) at 19. It seems reasonable to suppose that such unsatisfactory communication as Tamms inmates are able to conduct between cells is insufficient to stave off the harmful psychological effects of long-term confinement in isolation that, as the Court already has discussed, many Tamms inmates, both past and present, display. Similarly, Defendants have argued that Tamms is not as harsh as the OSP because prisoners at Tamms earn day-for-day good time credit, while prisoners at the OSP do not. However, although prisoners at Tamms are eligible for day-for-day good time, they are not eligible, as already has been discussed, for other types of good time credit provided for by Illinois statutes, such as good time credit for completion of education and substance abuse programs or for holding prison industry jobs, because there are no work, education, and substance abuse programs at Tamms, and they are not eligible for meritorious good time credit. Defendants point out also that, unlike the OSP, electric lights are not kept on twenty-four hours a day in the cells of Tamms inmates. While this perhaps is so, the Court is not satisfied that this distinction proves that conditions of confinement at the OSP are significantly more restrictive than the conditions of confinement at Tamms.
The fact is that the IDOC has conceded that the conditions at Tamms are substantially identical to the conditions at the OSP. As IDOC Director Randle’s Ten-Point Plan acknowledges, “‘supermax’ operations within the Ohio Department of Rehabilitation and Correction are very similar to that in Illinois.” Ten-Point Plan (Plaintiffs’ Exhibit 7) at 9. The Court notes also that
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IDOC Director Randle appears to have been appointed to his current post by Governor Quinn in great part because of Randle’s extensive professional experience with the OSP and the procedures for placing inmates there, which were found in Wilkinson to comport with procedural due process under the Constitution. See Wilkinson, 545 U.S. at 224-30. Before taking his current position, IDOC Director Randle worked for the Ohio Department of Rehabilitation and Correction for over nineteen years. See Doc. 522 (Randle Testimony) at 5. His last position with that agency was as Assistant Director. See id. As Assistant Director in Ohio, Randle worked with legal staff and the warden of the OSP to review policies governing placements at the OSP and to make recommendations for changes in those policies in light of the Wilkinson decision. See id. at 6. Following Randle’s appointment as IDOC Director, one of the first directives he received from Governor Quinn was to review the conditions and operational procedures at Tamms. See id. Correspondingly, on Randle’s first full day as IDOC Director he spent about ten hours at Tamms, toured the prison, talked with the administration, staff, and prisoners, and reviewed policies and procedures. See id. at 7. In September 2009 IDOC Director Randle issued his Ten-Point Plan which, as already has been noted, recommends to Governor Quinn a number of important changes in IDOC procedures related to Tamms. See id. at 8-9. As noted, the Ten-Point Plan has been approved by Governor Quinn. See id. at 41-42. The Court already has found that Tamms resembles the OSP closely in the three salient respects noted in Wilkinson, e.g., severe limitations on human contact, the indefinite duration of placement at Tamms, and the effect of confinement at the Illinois supermax prison on the length of an inmate’s sentence. Thus, the Court finds that for purposes of procedural due process analysis there are no constitutionally-meaningful differences between the conditions of confinement at the OSP and those at Tamms.
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b. Conditions in Segregation at Pontiac As already has been noted, Defendants urge that the correct baseline for determining whether conditions of confinement at Tamms impose atypical and significant hardship in relation to the ordinary incidents of prison life is supplied by conditions of confinement in disciplinary segregation at Pontiac, which Defendants aver are the most severe in any maximum security prison in Illinois. Counsel for Plaintiffs and the class dispute whether segregation at Pontiac furnishes the correct baseline. The Court finds this dispute academic, for the reasons that follow. On December 3, 2009, the Court, accompanied by the Warden of Pontiac and counsel for the parties to this case, toured Pontiac’s North Cell House, which houses inmates in disciplinary segregation and inmates who have been condemned to death. See Doc. 514 (Transcript of Day 7 of Bench Trial) at 3-4, 6-7. The Court also toured Pontiac’s West Cell House, a general segregation unit for inmates in disciplinary segregation. See id. at 5. As Defendants point out, some conditions of confinement in segregation at Pontiac are highly restrictive. For example, at the lower level of the North Cell House are the most restrictive of all disciplinary segregation cells at Pontiac; these cells consist of individual cells that are open to the range of view by way of plexiglass windows. See id. at 3. Additionally, at the lower level of the West Cell House are some cells with doors that are meshed in order to house inmates whose behavior is potentially dangerous (or at least a nuisance) to passers-by or persons in adjacent cells and who thus cannot be confined in a segregation cell with an open-barred front. See id. at 5. However, notwithstanding certain superficial similarities between confinement at Tamms and conditions in the segregation units at Pontiac, the Court nonetheless concludes that Tamms is an atypical and significant hardship in comparison to segregation at Pontiac.
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First, even prisoners in the closed-front cells at Pontiac enjoy significantly greater human
contact than do prisoners at Tamms, as they can see and hear gallery workers from the minimum
security or protective custody units at Pontiac and prisoners being taken back and forth on the gallery
as they pass the cells on the range. Larry Strickland, who as already has been noted is a former
Tamms inmate now housed at Pontiac, testified that, even when he was confined at Pontiac in a cell
with a door covered by glass, he could communicate with other inmates:
Q. (BY THE COURT:) Mr. Strickland, were you in the cells here that are covered with glass? A. I’ve been behind the steel door here. Not the ones covered – yeah, I have been in the ones covered in glass. But it’s still different from Tamms because you can communicate. You could, you know, you could communicate. It’s a lot of people around you that you know that you can associate yourself with because they right there with you and if something’s going on you right there in the mix. If something’s happening if somebody want to pass something you would be involved if they wanted you to or you can talk to the guy without, you know, really it’s . . . total[ly] different [than Tamms].
Doc. 514 (Strickland Testimony) at 13. Additionally, all segregation inmates at Pontiac are
permitted outdoor recreation in dog cages that are open to the air on all four sides. While inmates
are kept one to each cage, the cages are adjacent to each other, so that inmates are able to talk freely
and to interact with inmates in adjacent cages. For example, IDOC inmate Charles Harris testified
that during yard while he was confined in Pontiac’s North Cell House it was possible for him to
communicate with other inmates, although Harris opted not to go to the exercise yard because it was
not equipped with water or a bathroom. See id. (Testimony of Charles Harris) at 29.
IDOC inmate Alex Pearson, a former Tamms inmate now housed at Pontiac, specifically noted the
difference between exercise yards at the two prisons:
Recreate down here in Pontiac segregation they put you in a cage where they got a recreation bar so if you choose to exercise or you choose to socialize with the other
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guys that are in segregation you can do what you choose to. It’s a totally different setting. In Tamms it’s – you in a concrete wall where you can barely breathe. It is a concrete wall and they have a half a slab there is one little open area at the top.
Down here when you go to the segregation yard it’s outside, it’s outside in the open. And they got a cage where it’s like a perforated cage and little cage with a little gate, but everybody sees everybody, everybody communicate with everybody. Like I once said, it has an exercise bar that Tamms doesn’t have.
Id. (Testimony of Alex Pearson) at 49-50. As Pearson points out, exercise even in the most secure
levels of segregation at Pontiac nonetheless permits inmates to communicate with one another easily
on the yard. This is in sharp contrast, of course, to the exercise yards at Tamms, where, as has been
discussed already, inmates exercise alone in a bare concrete room with high cement walls that is only
partially open to the sky.
Perhaps more importantly, the testimony before the Court establishes that inmates in
segregation at Pontiac generally spend only limited amounts of time in the most restrictive cells
before being transferred to open barred cells where they can easily communicate with other inmates.
For example, IDOC inmate Raymond Larson spent a month in the West Cell House segregation unit
in June and July of 2009; he was confined in a cell with a meshed steel door for approximately a
week, but then moved to a regular cell with a barred door:
Q. . . . So when you were in investigative status here where physically were you, what part of the prison? A. I was in West Seg. Q. And again what was the cell door there like? A. I was behind a steel door for approximately a week, and then I was moved to a regular cell – barred cell. Q. And do you know why the move occurred or maybe otherwise why were you behind the steel door at all? A. The steel doors are usually used for prisoners that create problems and – Q. What had you done to get stuck behind this steel door? A. Nothing at all.
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Q. What did they charge you with? A. I was under investigation for – it had something to do with the repair of television sets. Q. You hadn’t assaulted anybody? A. No. Q. And you only stayed behind the steel door for a week? A. Until a week, yes, sir.
Doc. 514 (Testimony of Raymond Larson) at 33. In his barred cell Larson could talk to inmates in
adjacent cells, and could see guards and workers from his cell:
Q. In the barred cells in the West Cell House were you able to talk to neighbors? A. Yes, I could. Q. How often did you see other people come by your cell? A. See an officer each meal, each count. Q. Were there workers on the unit? A. Yeah, there would be a gallery worker that would sweep the gallery once a day. Q. Would you see people that walk past your cell going to and from visits? A. Yes.
Id. at 34.
Relatedly, IDOC inmate Rodney Guthrie testified that from February to August of 2009 he
was confined in segregation at Pontiac a cell with a meshed steel door, but that after five or six
months “behind the steel door” he was able to earn his way to an ordinary barred cell through
good behavior:
Q. Have you ever been behind what they call the steel door? A. Perforated door. Q. Okay. A. North Cell House. Q. How long was that? A. A few months ago. Q. How long were you there? A. From February till August, about five or six months. Q. And how come you are not there any more, what happened to change it? A. Well, I don’t know. Just I was put in the lieutenant asking to be moved over to the West House or East House so I could get my audio-visual privileges. And one day they move me over there. I guess behavior, didn’t catch any tickets or
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anything like that. Q. Something you can earn your way out of here? A. Yeah. Doc. 514 (Guthrie Testimony) at 19-20. Currently Guthrie resides in segregation in the West Cell House at Pontiac in a one-man barred cell. See id. at 19. In his barred cell, Guthrie is able to communicate easily with inmates in neighboring cells and passers-by: “Here [Pontiac] talk to anybody you want to. Here you got guys everybody is talking, even people you don’t want to talk to want to talk to you. You know what I mean?” Id. at 21. Instances from the testimony in this case regarding the difference between segregation at Pontiac and confinement at Tamms with respect to the vastly greater degree of liberty that inmates have to communicate with one another at the former prison could be set out at some length, but the Court merely will note a few additional examples. Concerning the relatively brief time that segregation inmates spend in the most restrictive cells at Pontiac, Charles Harris testified that, after a fight in December 2008, he spent forty-six days in a cell with a plexiglass window in the door on the lower level of Pontiac’s North Cell House. See Doc. 514 (Harris Testimony) at 26-28. He then was transferred to an open cell with bars on the upper Two Gallery of the North Cell House, where he stayed for forty days before being released from segregation pursuant to a decision from the Administrative Review Board. See id. at 28. This is unlike confinement at Tamms where, as already has been discussed, inmates spend years alone in cells with meshed steel doors and have no way, apart from their parole date, of knowing, when, or if, they will be released from such conditions. Alex Pearson testified that for the first thirty days or so that he was in disciplinary segregation at Pontiac, he stayed in a cell with a perforated door until he was evaluated. See id. (Pearson Testimony) at 48. After his evaluation Pearson was moved to a regular barred cell on the
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gallery with at least fifty other inmates “where guys coming and going, guys that got TVs and radios,
where the farm workers would be able to communicate with you and things of that nature.” Id. at 49.
Larry Strickland, who, as already has been discussed, was transferred out of Tamms due to his
worsening mental condition as a result of the intense isolation of his confinement in the supermax
prison, noted that confinement in an ordinary barred cell at Pontiac gives even inmates in
segregation a degree of freedom to communicate with other inmates that is utterly impossible
at Tamms:
You can do a lot more communications down here [in Pontiac]. In Tamms – in Tamms you couldn’t do that. You couldn’t slide – you could but it was very – it was real stressful. It was a lot more stressful trying to get – switch a book or, you know, something. Although we not supposed to trade, but we do. We trade books. We read each other books, whatever. And you can’t do that at Tamms. It’s just a lot more stressful. You could just see right in front of you. That’s it. You can’t, you can’t. It’s like you locked in.
Id. (Strickland Testimony) at 11.
Significantly, a Pontiac segregation inmate confined in an ordinary barred cell, as opposed
to a cell with meshed steel door like the cells at Tamms, can not only talk to but also touch and, with
the aid of a small hand mirror purchased at the prison commissary, see inmates in adjacent cells with
whom he is talking:
Q. When you were at Pontiac you could touch somebody else because there were bars instead of a solid door? A. Yes. Q. Who could you touch? A. The prisoners next door. Q. Just hands? A. Yeah, just hands, arms, you know. You could buy a mirror. You could buy a mirror, a plastic mirror, you could stick your mirror out and look at them and conversate all night.
Doc. 433 (Bell Testimony) at 33. Again, the conditions of confinement in barred cells at Pontiac as
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described in the testimony before the Court are in sharp contrast to the conditions of confinement at Tamms, where, as already has been discussed, inmates can communicate between cells only with great difficulty, and there is no way for an inmate to see, much less touch, an inmate in another cell with whom he may be trying to communicate.
In addition to the much greater freedom to communicate and otherwise interact with other inmates that segregation inmates at Pontiac enjoy in comparison to Tamms inmates, there are other important differences between segregation at Pontiac and confinement at Tamms. For example, Larry Strickland testified that although inmates in segregation at Pontiac do not go to church services per se, church groups are permitted on the gallery, and sing with the inmates or engage in similar group activities. See Doc. 514 (Strickland Testimony) at 14. Also, Strickland is able to attend group therapy with other Pontiac inmates for anger management, substance abuse, and similar issues, in contrast, of course, to Tamms where, as already has been discussed, no substance abuse programs are available and only inmates in J-pod are permitted to participate to a limited degree in congregate counseling. See id. at 16. With respect to yard, in segregation at Pontiac, as already has been noted, yard time takes place in dog cages, but during yard a segregation inmate in a cage can communicate with inmates in neighboring cages. When a segregation inmate at Pontiac completes his segregation sentence, he can attend yard with other inmates, and the exercise yard at Pontiac features equipment such as weights and card tables. See id. (Carroll Testimony) at 38. Concerning telephone privileges, in contrast to Tamms, where as discussed inmates have no telephone privileges save with respect to legal calls and emergencies, Rodney Guthrie testified that inmates in A grade and B grade in segregation at Pontiac are allowed to receive one telephone call per month. See id. (Guthrie Testimony) at 20. Similarly, Ronnie Carroll, who as already has been
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noted was never permitted to use the telephone during his six-year confinement at Tamms, testified
that he was able to use the telephone to talk to his family as soon as he was transferred to segregation
at Pontiac. See id. (Carroll Testimony) at 40.
Concerning visits, the strict limitations on visits imposed at Tamms are not in place at
Pontiac. “The visits at Tamms, . . . you had to get like prior approval for two weeks through internal
affairs,” Ronnie Carroll testified, but in segregation at Pontiac “as long as the person is on the
visiting list they can show up on any visiting day at any time and you can go up and visit them.”
Doc. 514 (Carroll Testimony) at 41. Alex Pearson testified that, although visits to inmates
in segregation at Pontiac are non-contact, they nonetheless are more satisfactory than inmate
visits at Tamms:
Q. Are visits different here than they were at Tamms – A. Yes. Q. – when you were in segregation? A. Yes. When I was in segregation down here I was able to get at least two or three visits a month and in order to go to a visit from down here they take you outside. They take you for a walk. You go from a walk from the segregation unit all the way to like the administration building. And they walk you, escort you up there, nice little distance, a nice little walk. Go through same shakedown procedures, but you are able to communicate with your people a little bit differently even though you are behind the glass. But just the walk in general is totally different and the time you are able to spend on a visit down here with segregation is different than Tamms. And then your people come like a regular general population setting. They don’t have to go through a – they do not have to sit in internal affairs for visiting this and a time and what time they going to be here. And they don’t have to be within that little short frame, 30-minute time period, that they complies that list that they fill out and send back to internal affairs. Down here your people come if they are on your visiting list they can come from 8:00 to I think it’s 1:15 your people can come in. They don’t have to be in a 30 minute time frame.
Id. (Pearson Testimony) at 50-51. Additionally, inmates in segregation at Pontiac are allowed to
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keep more personal property than are inmates at Tamms. Unlike Tamms, where as already has been discussed inmates are allowed only two property boxes, fifteen pictures, and twenty-five books, in Pontiac prisoners in segregation are allowed to have six property boxes and a TV box, and there is no limit on the amount of property they can keep inside those boxes. See Doc. 433 (Hughes Testimony) at 80-81.
Finally, the Court notes that a number of inmates who testified to experiencing severe depression and other mental disturbances while confined at Tamms testified also to significant improvement in their mental health after being transferred to the less restrictive conditions of segregation at Pontiac. For example, Rodney Guthrie, who, as already has been noted, believed that he was losing his sanity due to the intense isolation at Tamms and who deliberately had himself classified as an escape risk in an effort to escape the isolation and monotony of Tamms, testified that he was happier since being transferred out of the supermax prison at Tamms to segregation at Pontiac. Stated Guthrie, “Yeah. I say I’m more cheerful now. You know, more happy now. I’m able to wake up, talk to people, you know, socialize with other inmates and things of that nature. I say it’s a little bit better here than being at Tamms.” Doc. 514 (Guthrie Testimony) at 23. Ronnie Carroll, who as already has been discussed spent fifty-seven consecutive days on suicide watch at Tamms, stated categorically his preference for segregation at Pontiac rather than the drastic isolation of confinement at Tamms:
Down here, I’ve been to the North House a couple of times and back at the South House and I’ve not had no mental problems at all. Q. So given what you have just described, where would you rather be placed in the North Cell House here or at Tamms? A. Absolutely Tamms. Q. You would rather be at Tamms? Why? A. No, I mean absolutely here, not Tamms. I lost track of the question.
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Q. Why would you rather be here? A. Well, the conditions back there, like I said, you could socialize with people. And privileges. The conditions are just a lot different here than they are at Tamms. Tamms you are just totally isolated.
Id. (Carroll Testimony) at 44. Current Tamms inmate Isiah Bell, who as already has been noted
testified that he believed his communicative skills were atrophying as a result of extended
confinement at Tamms, also testified to the stark difference between conditions of confinement at
Tamms and conditions in segregation at Pontiac. Describing the experience of arriving at
segregation at Pontiac after a period of confinement at Tamms under conditions of intense sensory
deprivation, Bell testified as follows:
Q. All right. What was the difference there [Pontiac] and here? A. Um, well, you had more contact with people. Not physical contact but you had social contact with people. You had – Q. What do you mean by that? A. Well, the cells were bars. You know, you could reach out, you know, you could touch a person’s hand which was a significant difference. If you have never – if you have been – if you have been isolated for so long, just putting your hands on another human being was like . . . wow. You know the feeling if you ever been thirsty and you just drink a cold glass of water. It’s like that. It’s strange at first but it’s – well, it’s free.
Doc. 433 (Bell Testimony) at 30-31. It is apparent to the Court that, as IDOC Director Randle
testified, confinement at Tamms and segregation at a maximum security prison like Pontiac are “two
different things.” Doc. 522 (Randle Testimony) at 18. The Court concludes that conditions at
Tamms are significantly more restrictive than confinement in segregation at Pontiac. Accordingly,
the Court finds that, assuming arguendo that conditions in segregation at Pontiac are a proper
baseline for measuring whether conditions at Tamms give rise to a liberty interest in avoiding
placement at the supermax prison, conditions at Tamms comprise atypical and significant hardship
in comparison to conditions in segregation at Pontiac.
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c. Conditions at Menard and Stateville As already has been noted, Plaintiffs propose conditions in the general population at Menard and Stateville as a proper baseline for measuring whether conditions of confinement at Tamms impose atypical and significant hardship in relation to the ordinary incidents of prison life so as to give rise to a due process liberty interest in avoiding confinement at Tamms. Defendants have stipulated that inmates at Tamms are subjected to restrictions which are atypical and significant in comparison to conditions in the general population at Illinois maximum security prisons such as Menard and Stateville. See Doc. 417 (Transcript of Day 1 of Bench Trial) at 17. Accordingly, the Court finds that conditions at Tamms impose atypical and significant hardship in comparison to conditions in the general population at Menard and Stateville.
d. Conditions at Out-of-State Prisons As the Court noted in a previous order in this case, a number of named Plaintiffs in this matter (Von Perbandt, Ross, Hall, Brown, and Cunningham) were transferred to Tamms from prisons outside Illinois. See Westefer, 2009 WL 2905548, at *6 n.4. Additionally, in the course of the bench trial on the procedural due process claims in this case, the Court heard testimony from: Brian Nelson, who was transferred to Tamms from a prison in New Mexico; Isiah Bell, who was transferred to Tamms from a prison in New Jersey; Gene Arnett, who was transferred to Tamms from a prison in Virginia; and Richard McCue, who was transferred to Tamms from a prison in Arizona. See Doc. 433 (Testimony of Brian Nelson) at 5; Id. (Bell Testimony) at 17; Id. (Arnett Testimony) at 72; Id. (McCue Testimony) at 98. Plaintiffs propose that conditions at the out-of-state prisons from which Nelson, Bell, Arnett, and McCue were transferred to Tamms are relevant in evaluating whether conditions of confinement at Tamms impose atypical and significant
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hardship in relation to the ordinary incidents of prison life so as to give rise to a due process liberty
interest in avoiding confinement at Tamms. The Court concurs and, in the interest of completeness,
will compare conditions of confinement at Tamms with conditions of confinement at the prisons in
New Mexico, New Jersey, Virginia, and Arizona from which, respectively, Nelson, Bell, Arnett, and
McCue were transferred to Tamms.
With respect to Brian Nelson, Nelson testified that he was transferred to Tamms from the
general population of a minimum/medium security prison in Las Cruces, New Mexico, where he was
permitted free-flow movement:
Q. Directing your attention to the period immediately before you came to Tamms, can you tell us where you were housed? A. Las Cruces, New Mexico. Q. Can you tell us were you in general population or segregation? A. General population. Q. What sort of security is that in terms of security levels? A. Minimum/medium security. Q. And what sorts of privileges, movement, that kind of thing, did you have at that prison? A. From 7:00 a.m. until 10:00 at night I had free-flow movement from my cell. I go to yard up until 8:00 at night. I go to the library, gym, law library or the chapel every day from 7:00 a.m. until approximately 9:00 at night. Q. When you say “free flow”, that means you didn’t have to have guards escort you? A. Nobody.
Doc. 433 (Nelson Testimony) at 5-6. This is in contrast, of course, to Tamms where inmates
generally leave their cells only for shower or exercise, as already has been discussed, and, if an
inmate leaves his cell for some other reason, he is shackled and escorted by two guards. See
Welborn Deposition at 26-28; Tamms Photographs (Plaintiffs’ Exhibit 12). Nelson testified also that
while in prison in New Mexico he worked as an institutional tailor, in which capacity he was able
to walk in and out of the prison, have access to guard uniforms, and carry scissors. See id. at 12.
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This again is in contrast to Tamms, where, as has been discussed, inmates are not permitted to hold
any job assignments. In this connection it perhaps is worth noting that Nelson specifically
complained about the absence of vocational and educational programming at Tamms, which
programming presumably was available at other prisons where Nelson has been housed. See id.
at 12, 13.
Concerning Gene Arnett, Arnett testified that, although he was in segregation in the
Greensville Correctional Center in Virginia before his transfer to Tamms, he was allowed to
go to the yard for exercise three times a week for two hours, generally in the company of
other inmates:
Q. Segregation in Greensville, let’s talk about some of the things. How is yard run at Greenville? A. They put us – they got like 40 cages out there and they put us all on the yard in separate little cages. Q. And are the – when you say cages, are these bars, are these screens? A. Just chain link fence. Q. And how close are the cages or the fences to each other? A. They’re right next to each other, you can touch people through the cage. Q. They adjoin each other? A. Yes. Q. Is it easy to talk to people out there? A. Yeah, real easy. Q. And how often did you get to go to yard in Virginia? A. If I remember right, it was three times a week for two hours. Q. And you were sometimes alone and sometimes with other people or always with other people? A. For the first two months there, they used to put me out there by myself. And after two months they started putting me out there with everybody else.
Doc. 433 (Arnett Testimony) at 73-74. Segregation inmates at the Virginia prison were allowed
normal visits, and Arnett could use the telephone every two weeks. See id. at 74. Obviously
conditions at the Virginia prison where Arnett was housed before his transfer to Tamms are quite
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different from the conditions at Tamms, where as already has been discussed inmates are not permitted to exercise together, visits to inmates are tightly controlled, and inmates have no telephone privileges.
Interestingly, both Isiah Bell and Richard McCue were confined in out-of-state supermax prisons before being transferred to Tamms, but they testified that the conditions of confinement at those out-of-state prisons were less restrictive than the conditions at Tamms. For example, inmates at the Arizona supermax prison where McCue was confined before he was transferred to Tamms were allowed to leave their cells once a week to clean their showers and the pod area for thirty minutes, and some prisoners at the Arizona supermax were permitted to hold job assignments. See Doc. 433 (McCue Testimony) at 99-100. Bell also testified to a number of important differences between Tamms and the New Jersey supermax prison where he was confined before being transferred to the Illinois supermax prison. According to Bell, there was more human contact among inmates at the New Jersey supermax prison than at Tamms. Stated Bell, “Although I was in supermax confinement we was allowed congregate status where you could go to the yard or have meetings with other prisoners, actually have contact with them. No more than about 15 at a time. Went to yard together.” Id. (Bell Testimony) at 17. Inmates at the New Jersey facility also were allowed to interact with each other outside their cells and to participate in congregate educational programs and religious services. See id. at 18, 19, 20. Additionally, the New Jersey supermax prison allowed inmates to make telephone calls daily and permitted contact visits. See id. at 18. Inmates at the New Jersey supermax prison could make unlimited purchases at the prison commissary and were allowed also to receive food parcels from their families. See id. at 18-19. In light of the testimony in this case, the Court concludes that conditions at Tamms are significantly more restrictive than
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conditions at out-of-state prisons, including supermax prisons, from which inmates who testified in this case were transferred to Tamms, and that conditions of confinement at Tamms impose atypical and significant hardship in comparison to conditions at those out-of-state prisons.
4. Summary On the record before the Court it is clear that conditions at Tamms impose atypical and significant hardship in relation to the ordinary incidents of prison life under any plausible baseline. With respect to the three factors identified in Wilkinson as relevant to the existence of a due process liberty interest in avoiding confinement at a supermax prison, all three are present here: Tamms imposes drastic limitations on human contact, so much so as to inflict lasting psychological and emotional harm on inmates confined there for long periods; placement at Tamms is of indefinite duration, as Tamms inmates are not informed of how long they can expect to be confined in the supermax prison or what they can do to earn transfer out of the prison; and the effect of confinement at Tamms is to lengthen an inmate’s sentence as a result of the limitations on the ability to accrue good time credit that are entailed in placement at Tamms. The conditions of confinement at Tamms are as harsh as the conditions of confinement at the OSP and are significantly harsher than conditions of confinement at any other Illinois prison, including the segregation units at Pontiac. Additionally, the conditions of confinement at Tamms are harsher than the conditions of confinement at any of the out-of-state prisons from which Tamms inmates who testified in this case were transferred to confinement at Tamms, including out-of-state supermax prisons. The Court finds that Plaintiffs and the class have a due process liberty interest in avoiding confinement at Tamms. Accordingly, the Court will address next the issue of the process that constitutionally is due in order to protect the liberty interest of IDOC inmates in avoiding confinement at Tamms.
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C. The Process That Is Due 1. Governing Standard
Having determined that IDOC inmates have a due process liberty interest in avoiding placement at Tamms, the Court now must determine what process is constitutionally owed to such inmates in order to protect their liberty interest. In Wilkinson the Court observed that “[b]ecause the requirements of due process are ‘flexible and cal[l] for such procedural protections as the particular situation demands,’ we generally have declined to establish rigid rules and instead have embraced a framework to evaluate the sufficiency of particular procedures.” 545 U.S. at 224 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). The Court instructed that, in evaluating due process in the context of assignments to custody at a supermax prison, three factors are to be considered:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 224-25 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Concerning the first factor, the private interest that will be affected by an official action, the Court acknowledged that the private interest of a prison inmate in being free from confinement in a supermax prison is “more than minimal,” but noted further that this interest “must be evaluated, nonetheless, within the context of the prison system and its attendant curtailment of liberties.” Id. at 225. “Prisoners held in lawful confinement have their liberty curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be
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free from confinement at all.” Id. Said differently, the private liberty interest of a prison inmate that is implicated by confinement at a supermax prison is less than that of a person who is not incarcerated.
As to the second Mathews factor, the risk of an erroneous deprivation of an inmate’s liberty interest in avoiding confinement at a supermax prison through existing correctional procedures, the Wilkinson Court examined closely Ohio’s policies governing placement of inmates of the state correctional system in the OSP. The Court looked particularly at the notice Ohio’s policies afford inmates of the fact that they are under consideration for placement at the OSP and the opportunity those policies give such inmates to challenge correctional officials’ stated reasons for OSP placement. The Court noted that Ohio’s policies afford inmates notice and a hearing, as well as an opportunity to rebut a recommendation in favor of placement at the OSP at the third and last of three levels of review of the placement recommendation. Under Ohio’s policies, the Court said, “an inmate must receive notice of the factual basis leading to consideration for OSP placement and a fair opportunity for rebuttal. Our procedural due process cases have consistently observed that these are among the most important procedural mechanisms for purposes of avoiding erroneous deprivations.” Wilkinson, 545 U.S. at 225-26. The Court observed,
Requiring officials to provide a brief summary of the factual basis for the classification review and allowing the inmate a rebuttal opportunity safeguards against the inmate’s being mistaken for another or singled out for insufficient reason. In addition to having the opportunity to be heard at the Committee stage, Ohio also invites the inmate to submit objections prior to the final level of review. This second opportunity further reduces the possibility of an erroneous deprivation. Id. at 226. Additionally, the Court noted, under Ohio regulations a recommendation against OSP placement at any level of review ends the placement process, so that an inmate will not be placed
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at the supermax prison: “Although a subsequent reviewer may overturn an affirmative recommendation for OSP placement, the reverse is not true; if one reviewer declines to recommend OSP placement, the process terminates.” Id. Correspondingly, if a decisionmaker recommends placement in the OSP for an inmate, the inmate receives a statement of reasons for the placement recommendation that he can use to challenge the decision. “If the recommendation is OSP placement, Ohio requires that the decisionmaker provide a short statement of reasons. This requirement guards against arbitrary decisionmaking while also providing the inmate a basis for objection before the next decisionmaker or in a subsequent classification review.” Id. Such statements serve also, the Court pointed out, to guide inmates in their conduct in the future. See id. (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16 (1979)). Finally, the Court noted, the Ohio regulations provide for review of a placement at the OSP after an inmate has been at the supermax prison for thirty days. See id. at 227. In the Court’s view, Ohio’s regulatory scheme adequately ensures against an erroneous decision in the process of placing inmates at the OSP.
With respect to the third Mathews factor, the interest of the public officials charged with the responsibility of running prisons, the Court spoke bluntly. “In the context of prison management, and in the specific circumstances of this case, this interest is a dominant consideration. Ohio has responsibility for imprisoning nearly 44,000 inmates. The State’s first obligation must be to ensure the safety of guards and prison personnel, the public, and the prisoners themselves.” Wilkinson, 545 U.S. at 227 (citation omitted). The Court went on to say,
Prison security, imperiled by the brutal reality of prison gangs, provides the backdrop of the State’s interest. Clandestine, organized, fueled by race-based hostility, and committed to fear and violence as a means of disciplining their own members and
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their rivals, gangs seek nothing less than to control prison life and to extend their power outside prison walls. Murder of an inmate, a guard, or one of their family members on the outside is a common form of gang discipline and control, as well as a condition for membership in some gangs. Testifying against, or otherwise informing on, gang activities can invite one’s own death sentence. It is worth noting in this regard that for prison gang members serving life sentences, some without the possibility of parole, the deterrent effects of ordinary criminal punishment may be substantially diminished. Id. (citations omitted). The Court also noted Ohio’s strong interest in prudently managing the state’s limited resources. “The problem of scarce resources is another component of the State’s interest. The cost of keeping a single prisoner in one of Ohio’s ordinary maximum-security prisons is $34,167 per year, and the cost to maintain each inmate at OSP is $49,007 per year.” Id. at 228. “We can assume that Ohio, or any other penal system, faced with costs like these will find it difficult to fund more effective education and vocational assistance programs to improve the lives of the prisoners.” Id. In view of these compelling state interests, the Court concluded, “courts must give substantial deference to prison management decisions before mandating additional expenditures for elaborate procedural safeguards when correctional officials conclude that a prisoner has engaged in disruptive behavior.” Id. After balancing the Mathews factors, the Wilkinson Court held that Ohio’s policies governing placement of inmates of the state correctional system at the OSP adequately safeguard the liberty interest of such inmates in avoiding the conditions of confinement in supermax custody. The Court pointed out that in determining whether an inmate should be placed in supermax confinement, correctional officials must assess an inmate’s whole prison record and make what amounts to a prediction of the inmate’s conduct in the future, an inquiry that implicates both the penological expertise of prison administrators and the overriding state interest in protecting
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the safety of other inmates and correctional personnel. In placing inmates at the OSP, the Court noted,
Ohio is not, for example, attempting to remove an inmate from free society for a specific parole violation, or to revoke good-time credits for specific, serious misbehavior, where more formal, adversary-type procedures might be useful. Where the inquiry draws more on the experience of prison administrators, and where the State’s interest implicates the safety of other inmates and prison personnel, . . . informal, nonadversary procedures . . . provide the appropriate model. Wilkinson, 545 U.S. at 228-29 (citations omitted). In sum, because decisions about placing inmates in supermax confinement are ones that implicate the correctional expertise of prison administrators and the compelling state interest in the maintenance of prison security, such decisions necessarily are most susceptible of resolution through informal procedures. To determine what process, under Wilkinson and Mathews, is constitutionally due IDOC inmates placed in the supermax prison at Tamms, the Court must address three issues regarding existing IDOC procedures for placing inmates in Tamms: first, whether the administrative grievance procedures created by IDOC regulations provide a constitutionally adequate means of protecting the liberty interest of IDOC inmates in avoiding confinement at Tamms; second, whether for inmates assigned to Tamms in disciplinary segregation, who under current IDOC regulations are not entitled to a hearing to review their transfer to Tamms until such time as they have completed their sentence of segregation, the hearing that they receive on the disciplinary charge resulting in their segregation placement adequately protects the liberty interest of segregation inmates in avoiding confinement at Tamms; and third, whether for inmates assigned to Tamms in administrative detention status, the framework of periodic transfer review hearings furnished under current IDOC regulations adequately protects the liberty interest of those inmates in avoiding confinement at
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Tamms. After these three matters are resolved, the Court will examine the constitutional adequacy under Wilkinson and Mathews of the procedures for placing inmates at Tamms outlined in IDOC Director Randle’s Ten-Point Plan.
2. Challenging Placement at Tamms through IDOC Grievance Procedures
The Court considers first the question of whether IDOC inmates have an adequate vehicle to challenge placement at Tamms through the grievance procedure afforded to inmates in IDOC custody by the IDOC regulations contained in Title 20 of the Illinois Administrative Code. See Ill. Admin. Code tit. 20, § 504.800 et seq. This matter can be disposed of quickly. In a previous order in this case, the Court ruled that decisions to assign inmates to Tamms are decisions of the Director of the IDOC that cannot be challenged through the grievance procedure. See Westefer v. Snyder, Civil Nos. 00-162-GPM, 00-708-GPM, 2010 WL 235003, at *4 (S.D. Ill. Jan. 15, 2010) (granting partial summary judgment for Plaintiffs on the issue of whether IDOC regulations furnish any administrative remedy by which to grieve a placement at Tamms). That decision of the Court is, of course, the law of the case, from which the Court sees no reason to depart at this time. See Westefer v. Snyder, Civil Nos. 00-162-GPM, 00-708-GPM, 2010 WL 331733, at *6 (S.D. Ill. Jan. 25, 2010) (under the doctrine of the law of the case, decisions made by a court at an earlier stage of a case generally will control proceedings at later stages of the case); Potter v. Janus Inv. Fund, 483 F. Supp. 2d 692, 708-09 (S.D. Ill. 2007) (same). Thus, the Court concludes that IDOC grievance procedures do not furnish an avenue for IDOC inmates to challenge their assignment to Tamms and thus do not protect the liberty interest of such inmates in avoiding confinement in supermax custody.
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3. Placement at Tamms in Disciplinary Segregation It is undisputed that under current IDOC regulations, inmates who are assigned to Tamms in disciplinary segregation do not have the right to a hearing to review their transfer to the supermax prison until after they have completed their term of segregation. Ruane Tanner, who is the Clinical Services Supervisor and chair of the Transfer Review Committee at Tamms, and who testified in this case as the IDOC’s representative pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure regarding the procedure for transfer of inmates to Tamms, testified that inmates assigned to Tamms in disciplinary segregation do not receive a hearing regarding their transfer to the prison until such time as they have completed their segregation sentence and are placed in administrative detention. See Deposition of Ruane Tanner at 4-5, 7, 28-29. What this means, then, is that an inmate serving a lengthy term of disciplinary segregation will not receive a hearing regarding his transfer to Tamms until such time as he has completed his term of segregation; thus, Rodney Guthrie and Ronnie Carroll both spent approximately six years in disciplinary segregation at Tamms without ever receiving a hearing regarding their transfer to the supermax prison. See Doc. 514 (Guthrie Testimony) at 17; Id. (Carroll Testimony) at 36-37. Similarly, Gene Arnett who, as already has been noted, currently is a Tamms inmate, testified that he has spent eleven years in disciplinary segregation at Tamms without ever receiving a transfer hearing. See Doc. 433 (Arnett Testimony) at 74-75. Given that Arnett still has a lengthy sentence of disciplinary segregation to complete, it appears that he will not be eligible to receive a transfer review hearing for seventeen years. See id. at 75. Also, disciplinary segregation inmates at Tamms do not receive an annual transfer review hearing to determine if their continued placement at Tamms is warranted. See Doc. 175 (Response to Request for Admissions) at 5 ¶ 7.
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Defendants contend that the due process rights of inmates transferred to Tamms in disciplinary segregation are adequately protected by IDOC regulations governing Adjustment Committee hearings for IDOC inmates charged with infractions of prison discipline. Under the applicable regulations, “[t]he Adjustment Committee hearing shall be convened but need not be concluded within 14 days after the commission of the offense by an adult offender . . . or its discovery, whenever possible, unless the offender has received a continuance or is unable or unavailable for any reason to participate in the hearing.” Ill. Admin. Code tit. 20, § 504.80(a). An inmate must receive written notice of the disciplinary charge against him or her at least a day before an Adjustment Committee hearing on the charge. Specifically, the applicable regulations provide, “[t]he offender shall receive written notice of the facts and charges being presented against him or her no less than 24 hours prior to the Adjustment Committee hearing.” Id. § 504.80(b). Also, an inmate is required to be notified of any evidence in his or her favor: “The offender shall be informed before or at the hearing of information that would tend to show that the offender was not guilty. If information is provided to him or her at the hearing, the offender shall, upon request, be given a continuance.” Id. § 504.80(c). The inmate has the right to appear at the hearing, to make relevant statements, to produce relevant documents, and to request the presence of witnesses.
Any offender charged with a violation of any rules shall have the right to appear before and address the Committee. Any refusal to appear shall be documented and provided to the Committee. However, failure to appear before or address the Committee may be adversely construed against the individual by the Adjustment Committee. 1) The offender may make any relevant statement or produce any relevant documents in his or her defense. 2) Prior to the hearing, the offender may request that witnesses be interviewed. The request shall be in writing on the space provided in the disciplinary report and shall
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include an explanation of what the witnesses would state. If the offender fails to make the request in a timely manner before the hearing, the individual may be granted a continuance for good cause shown. Id. § 504.80(f). If the Adjustment Committee is satisfied that the inmate committed the offense with which he or she is charged, the Adjustment Committee may recommend discipline, including placing the inmate in segregation status. See id. § 504.80(k)(4)(H). The Adjustment Committee may also recommend that the inmate be transferred to another correctional facility. See id. § 504.80(k)(4)(E). The regulations impose no limitation concerning the other prisons to which an inmate may be transferred as punishment for a disciplinary infraction. See id. The recommendation of the Adjustment Committee is subject to review by the Chief Administrative Officer (that is, the Warden) of the prison where the inmate is housed or, in appropriate cases, by the Director of the IDOC. See id. § 504.80(p). The Court finds unpersuasive Defendants’ argument that the Adjustment Committee hearing provided for under IDOC regulations as outlined above is adequate to protect the due process liberty interest in avoiding confinement at Tamms of inmates assigned to the supermax prison in disciplinary segregation. No inmate who testified in this case stated that he was advised at an Adjustment Committee hearing that he was being considered for placement at Tamms. In fact the testimony in this case was quite uniform that inmates transferred to Tamms in disciplinary segregation were not informed at their Adjustment Committee hearings that part of their punishment for a disciplinary infraction might be assignment to Tamms. See, e.g., Doc. 433 (Bell Testimony) at 26; Id. (Rosario Testimony) at 52; Doc. 482 (Testimony of Eugene Horton) at 16-17; Id. (Testimony of Vincente Rodriguez) at 19; Doc. 507 (Combs Testimony) at 7; Doc. 514 (Guthrie Testimony) at 17. Moreover, several prisoners testified to lengthy temporal gaps between
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the time they were placed at Tamms in disciplinary segregation and the offenses that caused them to be so placed. For example, Brian Nelson testified that he was placed in disciplinary segregation at Tamms over an incident that occurred perhaps as much as two years earlier than his arrival at the supermax prison. See Doc. 433 (Nelson Testimony) at 7. Similarly, Tamms inmate Johnny Almodovar testified that he was transferred to the supermax prison in disciplinary segregation on the basis of disciplinary charges that had been leveled at him during a previous term of incarceration that was separate from the term Almodovar currently is serving. See id. (Almodovar Testimony) at 67-68. In sum, nothing in the record supports the inference that the Adjustment Committee hearing granted to IDOC inmates charged with disciplinary infractions adequately protects the liberty interest of such inmates in avoiding confinement at Tamms, and the Court concludes that it does not.
4. Placement at Tamms in Administrative Detention The Court considers next the matter of whether, for inmates assigned to Tamms in administrative detention status, the framework of periodic transfer review hearings to evaluate the propriety of placement at Tamms in administrative detention that is provided under current IDOC regulations adequately protects the liberty interest of administrative detention inmates in avoiding placement at Tamms. Under existing IDOC regulations, inmates transferred to Tamms in administrative detention status are entitled to a transfer review hearing within ten working days of their transfer, when possible; additionally, inmates assigned to Tamms in administrative detention receive an annual transfer review hearing. See Ill. Admin. Code tit. 20, § 505.60(a); Id. § 505.70(b); Deposition of Odie Washington at 90. Also, the files of inmates transferred to Tamms in administrative detention are reviewed quarterly to determine whether placement at the prison is still
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appropriate. See Ill. Admin. Code tit. 20, § 505.70(a). The evidence of record compels the conclusion that under existing IDOC regulations, inmates placed at Tamms in administrative detention do not receive adequate constitutional process.
The principal constitutional flaw in the existing transfer review hearing procedure provided to IDOC inmates assigned to Tamms in administrative detention status is the IDOC’s failure to give such inmates advance notice of their transfer review hearing and the reason the inmates have been transferred to Tamms. Defendants admit that IDOC inmates do not receive notice of the reason why they have been transferred to Tamms. See Doc. 175 (Response to Request for Admissions) at 5-6 ¶ 12. Similarly, IDOC’s Rule 30(b)(6) designee Ruane Tanner conceded that before 2005 IDOC inmates did not receive written notice in advance of their transfer review hearing. See Tanner Deposition at 29-30. Moreover, IDOC regulations do not provide that an inmate must be given notice in advance of the transfer review hearing as to the reason he is being sent to Tamms. See Washington Deposition at 91. Although inmates may make a statement and present documents at their transfer review hearing, Defendant Washington, a former IDOC Director, conceded that he does not know how an inmate could raise a meaningful challenge to his placement at Tamms or present relevant information at a transfer review hearing without knowing the reason for his placement at Tamms:
Q. I’m asking you how they [inmates] are supposed to know what statements would be relevant [at a transfer review hearing] if they are not told why they were sent there [Tamms]? A. I can’t answer that. Q. Do you have any idea how that’s supposed to happen? A. No. Id. at 92-93. Washington acknowledged also that, under existing IDOC regulations, an inmate
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transferred to Tamms is required to be given only the Transfer Review Committee’s final decision,
not the factual basis for the decision.
Q. . . . The only thing that’s in these regulations is that the committed person shall be informed in writing of the final decision, correct? A. That’s what it states here. Q. That’s the only thing that the prisoner is given is the final decision, correct? A. I don’t have a recollection of that’s the only thing that they are given in writing. Q. Well, is there anything else in this regulation that requires them to be given anything other than the final decision in writing? A. Not that I can see, no. Q. Is there anything even that requires that they be told the basis of that decision in this regulation? A. Not that I can see. Q. In fact, there is nowhere in this regulation that they are even required to write down for anyone the facts that are relied on and why they made the recommendation they made?
* * * *
A. Not to my knowledge, no. None that I can see.
Id. at 94-95. Relatedly, Ruane Tanner testified that before 2005 inmates were not advised of
the purpose of their transfer review hearing or of their right to call witnesses at the hearing. See
Tanner Deposition at 30.
Numerous inmates transferred to Tamms in administrative detention status testified that they
received no notice in advance of either their initial transfer review hearing or the reason for their
placement at Tamms. For example, Plaintiff Bivens testified as follows regarding his initial transfer
review hearing following his assignment to Tamms in administrative detention status:
Q. . . . Once you got to Tamms you were granted some sort of hearing or meeting about why you were there? A. Yeah. Q. Now did you – tell us what sort of notice you got before that hearing? A. Notice that I’m gonna receive a hearing? Q. Yes.
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A. None. Q. Tell us what happened? A. They just came and got me and said you going to talk to a counselor or somebody of that nature. Q. Okay. And did they – at any time before they came to your cell did they give you anything in writing saying why you had been sent to Tamms? A. No, they didn’t. Q. Once you got in the counselor’s room or wherever it was that you had this meeting did they give you any written notice saying why you were there? A. No, they did not. Q. Prior to going to this meeting did they give you any notice that you were entitled to call witnesses at this hearing? A. No, they did not. Q. Did they give you any notice that you are entitled to bring documents to defend yourself? A. No, they did not.
Doc. 417 (Bivens Testimony) at 17-18.
At the transfer review hearing Bivens was afforded no opportunity to contest the reasons
cited by correctional personnel for his placement at Tamms:
Q. Once you got in the hearing what did they say? A. Well, they told me that – they read off of some paper that they had in front of them. And I take it it had to be the one with the escape charge on it because that was first thing they said, they read off. And then they said I was there for poor disciplinary history or adjustment. Q. Did they say the escape was the reason you were there? A. Yes. Q. Did they say anything about gang membership at that point? A. No. Q. All right. Now did they at that point tell you, well, you have the right to bring in documents to refute some of this? A. No. Q. Did they at that point tell you that you had the right to bring in witnesses to refute any of this? A. No. Q. Did they tell you you had a right to defend yourself at all? A. No. It was a one-sided – uh, I thought I was there for them to tell me this is how the joint is going to be ran. That was it.
Doc. 417 (Bivens Testimony) at 19. In the wake of his transfer review hearing Bivens was given a
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one-line statement of the decision of the Transfer Review Committee regarding his placement
at Tamms:
Q. Did you ultimately get some sort of decision from this hearing? A. Yeah, I got a piece of paper. Q. What did that piece of paper say? A. It said that I was reviewed and denied. Q. Did it say anything about the evidence they relied on? A. No. Q. Did it give any details as to the basis for the decision that you were there? A. It was basically a single sentence, like form-letter type.
Doc. 417 (Bivens Testimony) at 20.
The experience of Plaintiff Knox following his transfer to Tamms in administrative detention
status was similar to that of Bivens. Knox testified as follows regarding the initial transfer review
hearing that he received after his assignment to the supermax prison:
Q. Once you arrived at Tamms did you get some kind of a hearing or meeting with somebody to discuss why you were there? A. Initially when I got there, no, I didn’t get a hearing or anything when I initially got there. They just put me in the cell. Q. Okay. Did you at some point later when you were at Tamms? A. Yes, some days later mentally – Q. And tell us what happened at that hearing, did they give you some advanced notice of what was happening? A. They called me over the intercom and told me to get dressed I was going to some type of transfer review hearing. Q. Did they give you any kind of a written document about this document? A. They didn’t give me anything. Like I say, they called me over the intercom to get dressed. I was going to a transfer review hearing. At the time, I didn’t know what a transfer review hearing was. Q. Did you ask somebody? A. I asked the lieutenant that came to my door after the tower officer called me, they came to my door and I asked them what was the transfer review hearing all about. And they said my placement down here in Tamms. They told me to come on and they took me to the little multipurpose building. Q. Once you got into that multipurpose room, what happened? A. They cuffed me up to the little block basically like I’m sitting now. And that he was on that side and they got to reading off some paperwork they had in front
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of them. Q. Now – A. Some stuff was highlighted. Q. Did they give you a copy of this paperwork? A. No. Q. Did they give you any paper at all? A. No. Q. Did anybody tell you you have the right to call witnesses? A. They didn’t tell me anything. Q. Did they give you any indication that you could bring documents with you from your cell in order to explain why you didn’t belong at Tamms? A. No. Q. You started to say what they read off this document, what kinds of things were they reading to you? A. Basically pretty much what we been going over for the last couple of days. Come to find out from the placement sheet. And basically it was just saying gang activity, threats to staff. And they read off incident that was in the placement sheet about an incident report that Sergeant Mayo had written me back in '96. Q. So basically they were reading you the same documents that you have now seen in this trial? A. Yeah, pretty much right. Q. Until we gave them to you as part of the discovery in this case, you had never seen that document? A. No, I didn’t know what it really was.
Doc. 417 (Knox Testimony) at 27-29.
Knox testified that, like Bivens, at his transfer review hearing he was given essentially no
opportunity to contest the grounds for his placement at Tamms:
Q. Okay. Were you given an opportunity to respond to these things? A. At that time when they was asking me what do I think about this? What you got to say about this ticket, or what you got to say about that ticket. I really couldn’t say too much about those because a lot of that stuff I’d forgot all about until they said you start bringing certain incidents back up. And I really didn’t have enough to go on the for the basis – you know, my grievances. Q. Did they show you these disciplinary reports that they were talking about? A. No, I – no, they didn’t. Q. And did they say you could go get these documents and continue the hearing later? A. No. Q. All right. After – and was that – that was the extent of the hearing?
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A. Yeah, pretty much. Q. Now at the end of it did they tell you what was going to happen next? A. They basically just told me they let me know they decision, and that was it. Q. Did you, in fact, receive a decision? A. Yes. I did. Q. What was that decision what did it look like? A. Pretty much like a regular memorandum basically saying my name and stuff on there. Cell number. And basically just saying I pretty much at the appropriate place. Q. Did it give you any kind of details about that you were there for gang membership or that you were there for the disciplinary violations or you were there for your underlying offense or anything like that? A. No, didn’t tell anything like that. Q. Any evidence at all, any indication of any evidence at all they were relying on? A. No. Q. And then subsequently you had hearings similarly on an annual basis? A. Correct.
Doc. 417 (Knox Testimony) at 29-31. As with Bivens, Knox’s lack of advance notice of the transfer
review hearing and the reason for his placement at Tamms hampered him in challenging his
assignment to the supermax prison.
Finally, Plaintiff Burrell testified as follows about his initial transfer review hearing after his
assignment to Tamms in administrative detention status:
Q. Once you arrived at Tamms were you eventually given some sort of hearing or meeting as to why you were there? A. Maybe a week later two C/Os came to the door and told me to get dressed and we went to the multipurpose room where I was told that my – I was told that I was in the Vice Lords and that I had an assault. And that was it. Q. Now before you came to this room were you given anything in writing? A. Nothing. Q. Did they tell you you could bring some documents in order to defend yourself? A. No. Q. Did they tell you that you could call witnesses to defend yourself? A. No. Q. Once you got inside this hearing room did they then give you anything in writing saying why you had been sent to Tamms? A. I received nothing at all. Q. Did they then tell you inside the witness room – inside this conference room that
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you could call witnesses? A. They told me nothing. Q. Did they suggest you could get any documents to defend yourself against these charges? A. No, not at all. Q. Did you at least have an opportunity to explain yourself? A. No. Q. Did they let you say anything at all? A. No. Doc. 417 (Burrell Testimony) at 42-43. The Court has chosen to highlight the testimony of Bivens, Knox, and Burrell because their experiences seem to be representative of the experiences of inmates transferred to Tamms in administrative detention; in fact, Defendants stipulated that the transfer review hearings about which Bivens, Knox, and Burrell testified were typical of such hearings for inmates assigned to Tamms in administrative detention except “to the extent that some of them said they didn’t get a chance to speak.” Id. (Day 1 Trial Transcript) at 44. Also, the Court has no reason not to credit the testimony of Bivens, Knox, and Burrell that they were not permitted to defend themselves at their transfer review hearings and this testimony is corroborated, as already has been discussed, by the testimony of the IDOC’s Rule 30(b)(6) designee Ruane Tanner that before 2005 inmates were not informed at transfer review hearings of their right to make statements, procure the testimony of witnesses, and present evidence. What emerges from the record is that existing transfer review procedures are not adequate to protect the liberty interest of IDOC inmates in avoiding placement at Tamms. Inmates are not given advance notice of their transfer review hearing or the reason for their placement at Tamms. They are not advised of their right to make statements, present documents, and procure the testimony of witnesses at their transfer review hearing. They are not furnished with copies of the documents relied upon by prison administrators in placing them at Tamms or a statement of reasons for their
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placement at Tamms following a transfer review hearing. The lack of notice means that inmates are
effectively put in the position of having to defend themselves against charges the nature of which
they do not know.
For example, Plaintiff Sorrentino testified that at his first transfer review hearing at Tamms
not only did the committee conducting the hearing ask him why he thought he had been sent to
Tamms but the committee never actually told him the reason that he had been assigned to the
supermax prison:
Q. Once you arrived at Tamms, tell us about this, as the Judge puts it, postdeprivation hearing that you received? A. About 14 days after I arrived at Tamms they brought me out for a hearing. Q. And did they give you any type of advanced notice of this hearing? A. No. Q. Did they tell you why you were there before the hearing? A. No. Oddly enough, they asked me why I thought I was there. Q. In the hearing that’s what they asked you? A. Yeah. They had five documents in front of them, and they were flipping them back and forth both looking at each other. And I said, is there a problem? And she said, why do you think you are here? And I said, I don’t know, why am I here? And that kind of went back and forth and that was the end of it. Q. Did they ever tell you why you were there? A. That first committee, no.
Doc. 417 (Sorrentino Testimony) at 47-48. Similarly, Plaintiff Sparling testified that, at his initial
transfer review hearing following his transfer from Menard to Tamms in administrative detention,
he was asked by one correctional officer on Sparling’s transfer review committee who Sparling had
“piss[ed] off” at Menard so as to be assigned to Tamms. Doc. 513 (Sparling Testimony) at 11.
The officer’s question suggests that even the members of the transfer review committee at
Sparling’s initial transfer review hearing did not know the reason why Sparling was
assigned to Tamms.
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Finally, after their transfer review hearing inmates receive only a summary notice stating that they have been appropriately placed at Tamms; they are not told what evidence was relied upon in making the decision, nor is the reason they were sent to Tamms explained. For example, the only explanation Plaintiff Sparling was given as to why he remained in confinement at Tamms for over six years was that he was “[p]roperly placed.” Doc. 513 (Sparling Testimony) at 11. See also Doc. 482 (V. Rodriguez Testimony) at 21 (the witness, who has been confined at Tamms for more than ten years, testified that the only explanation he was given for his assignment to Tamms was that he was “properly placed”). The Court concludes that the existing transfer review procedure for inmates placed at Tamms in administrative detention status fails adequately to protect the due process rights of such inmates.
5. IDOC Director Randle’s Ten-Point Plan Having concluded that existing IDOC procedures for assigning inmates to Tamms are constitutionally inadequate, the Court turns next to consideration of certain provisions of IDOC Director Randle’s Ten-Point Plan and the adequacy of the Ten-Point Plan to protect the due process liberty interest of IDOC inmates in avoiding confinement at the supermax prison. The Ten-Point Plan, which, as discussed, has been approved by the Governor of Illinois but which has not yet been implemented in IDOC regulations, makes certain important changes to the way inmates are assigned to Tamms in light of the decision of the United States Supreme Court in Wilkinson. By way of introduction, the Plan notes the current IDOC procedure concerning transfer review hearings for Tamms inmates: Inmates and advocacy groups have voiced concern regarding the process for informing inmates at Tamms [Closed Maximum Security Unit (“CMAX”)], including informing them of the reason for placement. Currently under 20 Illinois
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Administrative Code, Chapter 1, Subchapter e – Operations Part 505, Closed Maximum Security Facility, a Transfer Review Hearing is to be conducted within ten working days of the inmate’s placement at Tamms CMAX in administrative detention status or at the expiration of his disciplinary segregation term. Administrative Directive 05.02.110, Placement at Closed Maximum Security Facility, provides that the Chief Administrative Officer is to appoint members of the Transfer Review Committee.
Ten-Point Plan (Plaintiffs’ Exhibit 7) at 14. The Plan then notes the need for changes in IDOC
policies for assigning inmates to Tamms:
The Department would make a series of changes in the official policy describing the Transfer Review Hearing process and within the established timelines for placing an inmate at Tamms CMAX. The proposed changes to the pertinent Department Rules and Administrative Directives are underlined within the text below. Further, the proposed procedures for conducting a Transfer Review Hearing follow the official policy changes. Note that the official filing of a grievance and the associated review policies will allow inmates to appeal the transfer to “supermax” to the Department Chief Legal Counsel, and not the Administrative Review Board.
Id.
The Ten-Point Plan significantly revises existing IDOC procedures for assigning inmates to
Tamms. Among the most important changes to IDOC policies proposed by the Ten-Point Plan is
that inmates assigned to Tamms in disciplinary segregation will receive a transfer review hearing
within thirty days of their arrival at the supermax prison, instead of having to wait until they have
completed their segregation sentence, which, as already has been discussed, is the procedure in place
now under existing IDOC regulations:
The ability to address this proposed recommendation requires amendments to official policies as addressed below within the underlined text: 20 Illinois Administrative Code, Chapter 1, Subchapter C–Operations Part 505, Closed Maximum Security Facility: Section 505.50, Transfer Review Committee a) The Transfer Review Committee shall be composed of two persons selected by the Chief Administrative Officer of the Tamms Correctional Center. b) The Committee shall:
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1) Conduct transfer review hearings in accordance with Section 505.60; and 2) Conduct routine reviews of persons in administrative detention at the Tamms Correctional Center in accordance with Section 505.70. Section 505.60, Transfer Review Hearing a) Whenever possible, a transfer review hearing shall be conducted 1) Within ten working days of a committed person’s placement in Administrative Detention in the Tamms Correctional Center or the expiration of the committed person’s term of disciplinary segregation. 2) Within 30 calendar days of a committed person’s placement in Disciplinary Segregation at Tamms Correctional Center. 3) Within 30 calendar days of the completion of the disciplinary hearing for a committed person transferred to Tamms Correctional Center in Investigative Status. b) The committed person shall be afforded the opportunity to appear at the hearing, to make statements relevant to his or her placement in the Tamms Correctional Center, and to present relevant documents. The committed person may also request that the Committee interview persons with relevant information. c) In determining whether to continue placement in administrative detention in the Tamms Correctional Center, the Committee may consider, among other matters, the factors set forth in Section 505.40(d). d) The Committee shall make recommendations to the Chief Administrative Officer of the Tamms Correctional Center. The Chief Administrative Officer shall approve or disapprove the Committee’s recommendations and shall submit his or her recommendation to the Chief of Operations for a final decision. The committed person shall be informed in writing of the final decision.
Ten-Point Plan (Plaintiffs’ Exhibit 7) at 14-15.
Concerning annual transfer review hearings for inmates placed at Tamms in administrative
detention status, the Ten-Point Plan provides as follows:
Administrative Directive 05.02.110, Placement at Closed Maximum Security Facility AD 05.02.110, II, Section M, Transfer Review Hearing 1. The Chief Administrative Officer shall appoint members of the Transfer Review Committee. 2. The Transfer Review Committee shall conduct transfer review hearings for each offender transferred to Tamms Correctional Center.
* * * *
3. The annual Transfer Review Committee hearing shall be conducted in accordance with 20 Ill. Adm. Code 505.70.
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4. Upon completion of the hearing, the Transfer Review Committee shall complete a summary report that includes: a. A record of the proceedings of the hearing; and b. The offender’s voluntary disclosure to willingly renounce STG membership association. 5. The summary of the hearing shall be forwarded to the Chief Administrative Officer for further review and assessment.
Id. at 15.
The Ten-Point Plan summarizes its proposed changes to the process for placing inmates at
Tamms in the following way:
Proposed Transfer Review Committee Process 1) Inmates transferred to Tamms CMAX in Administrative Detention shall appear before the Transfer Review Committee (TRC) whenever possible within ten days of placement to participate in a Transfer Review Hearing. 2) Inmates transferred to Tamms CMAX in Investigative or Segregation status shall appear before the TRC whenever possible within thirty days of placement or at the conclusion of pending disciplinary proceedings, whichever is later. 3) The TRC shall advise the inmate of the stated reason for his placement. 4) The inmate shall be given the opportunity to refute the information and/or offer evidence on his behalf that may impact the final decision on placement. 5) The TRC shall prepare a written report of the hearing. 6) The report shall contain inmate demographics, reason for placement, summary of disciplinary history, status (Administrative Detention, Investigative or Segregation status) record of the proceedings, and committee recommendation on placement. 7) The report shall be forwarded to the Chief Administrative Officer for review, approval, or denial. 8) The Chief Administrative Officer’s recommendation shall be forwarded to the Chief of Operations for review and approval or denial. 9) After receipt of the decision of the Chief of Operations, the TRC shall provide the inmate with written notification of the decision on his placement. 10) The decision of the Chief of Operations may be appealed by the affected inmate to the Chief Legal Counsel of the Department, who shall act as the designee of the Director for purposes of such an appeal. 11) An audio digital recording shall be made of all Transfer Review Hearings and shall be retained by the Department pursuant to standard record retention policy.
Ten-Point Plan (Plaintiffs’ Exhibit 7) at 15-16.
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The procedure for placing inmates at Tamms outlined in the Ten-Point Plan is functionally
very similar to the procedure for placing inmates at the OSP that was reviewed by the United States
Supreme Court for its adequacy under the Due Process Clause in Wilkinson. This is hardly
surprising, of course, given that, as already has been noted, IDOC Director Randle, before assuming
his current position, worked for the Ohio Department of Rehabilitation and Correction and was
responsible for developing the procedures used to place inmates at the OSP that were found to be
constitutionally adequate in Wilkinson. The Court turns first to the procedure for placing inmates
in supermax confinement that was examined in Wilkinson. In that decision the United States
Supreme Court outlined the procedure used by Ohio correctional personnel to place inmates at the
OSP (called the “New Policy” in the opinion) in the following manner:
The New Policy appears to operate as follows: A classification review for OSP placement can occur either (1) upon entry into the prison system if the inmate was convicted of certain offenses, e.g., organized crime, or (2) during the term of incarceration if an inmate engages in specified conduct, e.g., leads a prison gang. The review process begins when a prison official prepares a “Security Designation Long Form” (Long Form). This three-page form details matters such as the inmate’s recent violence, escape attempts, gang affiliation, underlying offense, and other pertinent details.
A three-member Classification Committee (Committee) convenes to review the proposed classification and to hold a hearing. At least 48 hours before the hearing, the inmate is provided with written notice summarizing the conduct or offense triggering the review. At the time of notice, the inmate also has access to the Long Form, which details why the review was initiated. The inmate may attend the hearing, may offer any pertinent information, explanation and/or objections to [OSP] placement, and may submit a written statement. He may not call witnesses.
If the Committee does not recommend OSP placement, the process terminates. If the Committee does recommend OSP placement, it documents the decision on a “Classification Committee Report” (CCR), setting forth the nature of the threat the inmate presents and the committee’s reasons for the recommendation, as well as a summary of any information presented at the hearing. The Committee sends the
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completed CCR to the warden of the prison where the inmate is housed or, in the case of an inmate just entering the prison system, to another designated official.
If, after reviewing the CCR, the warden (or the designated official) disagrees and concludes that OSP is inappropriate, the process terminates and the inmate is not placed in OSP. If the warden agrees, he indicates his approval on the CCR, provides his reasons, and forwards the annotated CCR to the Bureau of Classification (Bureau) for a final decision. (The Bureau is a body of Ohio prison officials vested with final decisionmaking authority over all Ohio inmate assignments.) The annotated CCR is served upon the inmate, notifying him of the Committee’s and warden’s recommendations and reasons. The inmate has 15 days to file any objections with the Bureau.
After the 15-day period, the Bureau reviews the CCR and makes a final determination. If it concludes OSP placement is inappropriate, the process terminates. If the Bureau approves the warden’s recommendation, the inmate is transferred to OSP. The Bureau’s chief notes the reasons for the decision on the CCR, and the CCR is again provided to the inmate.
Inmates assigned to OSP receive another review within 30 days of their arrival. That review is conducted by a designated OSP staff member, who examines the inmate’s file. If the OSP staff member deems the inmate inappropriately placed, he prepares a written recommendation to the OSP warden that the inmate be transferred to a lower security institution. If the OSP warden concurs, he forwards that transfer recommendation to the Bureau for appropriate action. If the inmate is deemed properly placed, he remains in OSP and his placement is reviewed on at least an annual basis according to the initial three-tier classification review process outlined above.
Wilkinson, 545 U.S. at 216-17 (internal citations and punctuation omitted).
The Court turns next to the procedure for assigning inmates to Tamms outlined in Point One
of IDOC Director Randle’s Ten-Point Plan. Like the New Policy, the Plan provides for a hearing
at which an inmate placed at Tamms can challenge the factual basis for his placement. The fact that
the Plan contemplates that transfer review hearings will be conducted at Tamms seems to the Court
to be of no moment; as IDOC Director Randle explained, having a single Transfer Review
Committee at Tamms conduct all hearings concerning placement at the supermax prison will
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promote consistency in decisions about supermax placement. See Doc. 522 (Randle Testimony) at 12-13, 36. In any event, as Defendants point out, it is well settled that a timely hearing following deprivation of a liberty interest satisfies the requirements of due process. See Hewitt v. Helms, 459 U.S. 460, 476-77 (1983) (holding that due process was satisfied where an inmate received a hearing on his placement in administrative segregation five days after the inmate commenced his segregation placement). At the transfer review hearing contemplated under the Plan, an inmate can appear, make statements, present relevant documents, and request that persons with relevant information be interviewed. The Plan also contemplates that, as with the New Policy, any recommendation for supermax placement must be in writing and must contain a statement of reasons for the recommendation, and the recommendation is subject to review at three different levels: the Chief Administrative Officer of Tamms; the Chief of Operations of the IDOC; and the Chief Legal Counsel of the IDOC. The fact that the Transfer Review Committee must make a recommendation of supermax placement in writing and include in its written report inmate demographics, the stated reason for an inmate’s supermax placement, a summary of the disciplinary history of an inmate being recommended for placement at Tamms, the inmate’s status, and a record of the proceedings is, as in Wilkinson, a “safeguard[ ]” against an erroneous deprivation of an inmate’s liberty interest in avoiding confinement at Tamms. 545 U.S. at 226. Also, as with the New Policy, under the Ten-Point Plan a negative determination as to supermax placement at any of the three levels of review terminates the process, with the result that an inmate under consideration for placement at Tamms is not so placed, but the reverse is not true: a decisionmaker at the next level of review cannot overrule a negative determination about placement at Tamms. See id.
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Under Point One of IDOC Director Randle’s Ten-Point Plan, an inmate placed at Tamms will receive sufficient information at his transfer review hearing, subject to the legitimate restrictions dictated by considerations of prison security, to understand why he has been placed in supermax confinement. This information will furnish a guide for an inmate in his future conduct, enabling the inmate to conform his conduct to prison regulations, and will assist the inmate to mount an effective appeal from a recommendation of Tamms placement by the IDOC Chief of Operations. See Wilkinson, 545 U.S. at 226. As IDOC Director Randle pointed out in his testimony, the fact that all transfer review hearings will be audiotaped will help inmates approved for Tamms placement by the IDOC Chief of Operations to appeal from such placement decisions. IDOC Director Randle explained, “I thought that was important in the event there is an appeal or a concern about the actual placement process we would actually have a recording of that so that the person that heard the appeal could actually hear the actual testimony or proceedings that took place as part of the transfer review hearing.” Doc. 522 (Randle Testimony) at 10. Similarly, while for reasons of prison security inmates may not necessarily be privy to the reports prepared by the Transfer Review Committee regarding placement at Tamms, they nonetheless will possess sufficient information about why they have been recommended for placement at the supermax prison to challenge such placement to the IDOC Chief Legal Counsel:
Q. How much information will each inmate be given about the reasons why they’re at Tamms? A. They will – essentially, the idea is to provide the reason or the offense that lead to the transfer review request. In a lot of cases that is the actual offense that they were heard at during their initial disciplinary hearing to tell the person this is why because of what this – that you were found guilty of, you are being placed in Tamms. And then to give the offender an opportunity to provide any information that they think will influence the decision whether or not to place them there. Q. Is it possible some information will be withheld from the person with the hearing?
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A. Under certain circumstance. For example, if the information relied on to place a person there is based on confidential witness statements we will withhold the names of those people. And if there is information that would reveal the identity of the person we will withhold some of that information. But still the expectation is to provide enough information so that the offender clearly understands why they are being considered for placement in Tamms. Q. Will they be told the result of the hearing? A. Yes. Q. How much detail will they be given to the reasons they’re still in Tamms? A. In terms of the decision they will be told this is what the committee is recommending for you to be placed in Tamms and here’s why you have been found guilty of whatever offense that is, and that offense is serious, and it represents a threat to safety, security; or, you have committed such a serious offense that we simply cannot have you in the general population setting and provide the reason why. Whatever that offense may be and that the decision has been made to recommend that you be placed here for a period of time. Q. And that’s the point they would be allowed to appeal to the chief legal officer? A. Yes.
Doc. 522 (Randle Testimony) at 11-12. Also, all inmates assigned to Tamms in administrative
detention will continue to receive quarterly review of their files concerning the propriety of
continued placement at Tamms, as well as annual transfer review hearings concerning the propriety
of continued placement at Tamms.5
Plainly, Point One of IDOC Director Randle’s Ten-Point Plan affords IDOC inmates
significantly more process with respect to placement at Tamms than hitherto has been the case.
Unfortunately, the Court finds that the process afforded under Point One of the Plan is insufficient
5. Finally, although strictly speaking Point Two of IDOC Director Randle’s Plan is not concerned with the issue of whether or not an inmate should be placed at Tamms, it is worth noting that Point Two protects inmates from spending an unnecessary amount of time in the supermax prison. Under the Plan, as already has been noted, upon arrival at Tamms new inmates of the supermax prison will be advised at orientation of the probable length of their stay at the prison, expressed as a range of possible terms of supermax confinement; further, inmates will work with counselors to ensure that they achieve the behavioral levels necessary to be transferred out of Tamms in the least possible time. See Ten-Point Plan (Plaintiffs’ Exhibit 7) at 16; Doc. 522 (Randle Testimony) at 13-14.
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in two respects: first, the Plan makes no provision for inmates placed at Tamms to be informed in writing of the reason for their placement at the supermax prison in advance of their transfer review hearing; and second, the Plan is prospective only and does not provide for inmates already transferred to Tamms in disciplinary segregation who currently are confined in the supermax prison serving segregation sentences to receive a transfer review hearing. As the Court already has acknowledged, due process, especially in the context of prison administration, is to be construed flexibly, and this is particularly true where, as here, determinations about supermax placement implicate the correctional expertise of prison administrators and compelling state interests in prison security and the prudent allocation of limited state resources. See Wilkinson, 545 U.S. at 224, 227-28. That said, it is completely beyond the Court’s ken how inmates seeking to contest placement at Tamms at their transfer review hearing can be expected to mount an effective challenge to their supermax placement without timely, written notice in advance of their transfer review hearing of the reason they have been placed at Tamms.
As the Wilkinson Court observed, “For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified[.]” 545 U.S. at 226 (quoting Fuentes v. Shevin, 407 U.S. 67, 80 (1972)) (internal citation omitted). Equally importantly, in Wilkinson the Court found that it did not unduly burden state interests in prison security and allocation of resources to provide inmates under consideration for placement at the OSP with written notice summarizing the conduct or offense that triggered such consideration at least forty-eight hours before a hearing on placement at the OSP. Id. at 216, 225-26. In this connection, the Court notes that under the Ten-Point Plan, as part of the orientation process for inmates assigned
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to Tamms in administrative detention status, administrative detention inmates are advised within a few days of their arrival at the prison of the reason for their placement at Tamms and informed about the transfer review hearing process, and a transfer review hearing for such inmates is scheduled at that time. See Ten-Point Plan (Plaintiffs’ Exhibit 7) at 16. The Court sees no reason why the IDOC should not provide to all inmates placed at Tamms notice of the reason for their placement in advance of their transfer review hearing, and in fact the Court believes that such notice is constitutionally compelled.
With respect to transfer review hearings for current segregation inmates of Tamms, as noted Point One of IDOC Director Randle’s Ten-Point Plan authorizes such hearings only for IDOC inmates placed at Tamms after the Plan is implemented. However, this ignores the fact that there are inmates of Tamms who were transferred there in segregation who have never received a transfer review hearing and who will not be eligible for such a hearing until they have completed their (sometimes lengthy) segregation sentences. The Court already has noted the case of Gene Arnett, who was transferred to Tamms in disciplinary segregation and who has spent the past eleven years in segregation at Tamms without receiving a transfer review hearing; even under Point One of the Ten-Point Plan, Arnett will not receive a transfer review hearing until he has completed the remaining seventeen years of his segregation sentence. See Doc. 433 (Arnett Testimony) at 74-75. It appears that, concomitant to the Plan, the IDOC is reviewing the files of long-term inmates of Tamms to evaluate the propriety of continued supermax confinement for those inmates. According to IDOC Director Randle, the files of 133 inmates placed at Tamms between 1998 and 2004 have been reviewed, and forty-eight of the inmates have been approved for transfer out of Tamms. See Ten-Point Plan (Plaintiffs’ Exhibit 7) at 26; Doc. 522 (Randle Testimony) at 20.
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Inasmuch as it appears that the IDOC has been able to conduct reviews of the jackets of more than half of the inmate population of Tamms in the space of approximately three months (the time, according to IDOC Director Randle, that it took to prepare the Ten-Point Plan for submission to Governor Quinn, see Doc. 522 (Randle Testimony) at 8), the Court does not believe it would be unduly onerous for IDOC personnel to conduct transfer review hearings as to current segregation inmates of Tamms like Gene Arnett who otherwise are not afforded such a hearing even under the Ten-Point Plan.
As a final matter, the Court will address a couple of items of injunctive relief requested by Plaintiffs and the class, namely, that: IDOC inmates cannot be transferred to Tamms for prison gang activity that occurred before 1996; and IDOC inmates may not be transferred to Tamms in disciplinary segregation more than a year after the conduct giving rise to the segregation placement occurred. The Court finds no merit in either of these requests for injunctive relief. As to whether IDOC inmates involved in gang activity before 1996 should be transferred to Tamms, it appears that before 1996 the IDOC tolerated prison gangs, as a matter of necessity; after 1996, with Tamms soon to be opened, IDOC policies toward prison gangs became harsher. As the Wilkinson Court noted, in evaluating due process in the context of prison administration, prison security is a paramount state concern. The fact that the IDOC may have tolerated gang activity does not mean that the agency encouraged it, and doubtless the IDOC tolerated gangs only because, before Tamms opened, tolerance of gangs was the best available means of preventing gang violence and ensuring prison security. As to whether IDOC inmates may be transferred to Tamms more than a year after a disciplinary infraction resulting in a segregation placement, the Court sees no reason to impose such a limitation on prison administrators, given that under the Ten-Point Plan and this Order all
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inmates transferred to Tamms in disciplinary segregation will receive a transfer review hearing shortly after their arrival at Tamms.
It is worth noting here the special restrictions on the remedial power of a court that apply in the correctional context, particularly where, as here, a federal court is being asked to exercise such power with respect to the operations of state prisons. As Sandin teaches, federal courts are constrained to avoid taking measures that lead to “involvement . . . in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone,” and to “afford appropriate deference and flexibility to state officials trying to manage a volatile environment.” 515 U.S. at 482. “Such flexibility is especially warranted in the fine-tuning of the ordinary incidents of prison life, a common subject of prisoner claims[.]” Id. at 483. See also Rizzo v. Goode, 423 U.S. 362, 379 (1976) (noting that where a plaintiff requests an award of remedial relief that would require a federal court to interfere with the administration of a state prison, “appropriate consideration must be given to principles of federalism in determining the availability and scope of [such] relief. ”). Similarly, the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e et seq., imposes limitations of its own on the remedial relief that can be awarded by the Court in the correctional context:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a)(1)(A). The Court fails to see how an order prohibiting prison administrators
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from transferring to Tamms either IDOC inmates involved in gang activity before 1996 or IDOC inmates who committed a disciplinary infraction over a year before their transfer conforms to the requirement of narrowly-tailored relief under both Sandin and the PLRA.
The Court sums up as follows. The Court concludes that, in general, Point One of IDOC Director Randle’s Ten-Point Plan adequately protects the liberty interest of IDOC inmates in avoiding confinement at Tamms, but concludes also that Point One of the Plan must be modified in two respects: first, inmates placed at Tamms must receive advance notice in writing of the reason for their placement at least forty-eight hours before a transfer review hearing regarding their placement at Tamms; second, all inmates assigned to Tamms in disciplinary segregation must receive a transfer review hearing, including inmates assigned to disciplinary segregation before the date of entry of this Order. Specifically, inmates who are currently housed at Tamms, and who were transferred to Tamms in disciplinary segregation prior to entry of the Court’s order, shall be granted a transfer review hearing that complies with the procedure set out in Section 505.60 of Title 20 of the Illinois Administrative Code within 180 days of the date of entry of this Order. Priority for the said hearings shall be given to those IDOC inmates transferred to Tamms in disciplinary segregation the longest. Transfer review hearings for all IDOC inmates transferred to Tamms in disciplinary segregation who have been at Tamms for more than five years shall be completed within ninety days of the date of entry of this Order. The Court believes that Point One of IDOC Director Randle’s Ten-Point Plan, as modified in this Order, constitutes narrowly-drawn equitable relief in this case consistent with the requirements of the PLRA. Accordingly, the Court will enter an appropriate injunction consistent with the findings of fact and conclusions of law set forth in this Order.
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6. Declaratory Relief The Court next addresses the issue of whether Plaintiffs and the class have shown an entitlement to declaratory relief. Specifically, Plaintiffs and the class request that the Court enter an order requiring that the fact that a particular IDOC inmate had at one time been assigned to Tamms be expunged from the inmate’s record. Plaintiffs and the class reason that, because the IDOC has hitherto employed procedures that afford IDOC inmates inadequate due process in assigning such inmates to Tamms, prior assignments to Tamms should not be reflected in the prison records of inmates. The Court does not agree and concludes that Plaintiffs and the class have failed to show an entitlement to the requested declaratory relief. Counsel for Plaintiffs and the class have adduced some anecdotal evidence that inmates who have been assigned to Tamms are treated differently and worse after being transferred out of the supermax prison than are inmates who have never been placed at Tamms. For example, Plaintiff Knox testified that, after being transferred out of Tamms, he was assigned incorrectly to a high-aggression cellhouse at Menard, although in fact his aggression level is low. See Doc. 417 (Knox Testimony) at 37. Similarly, Plaintiff Clayton testified that, following his transfer out of Tamms, he has been discriminated against by IDOC personnel at the Big Muddy Correctional Center: Q. Once you got to Big Muddy were you treated differently than other prisoners because you had been at Tamms? A. Yes. Q. How were you treated differently? A. In the month and a half I was only permitted two showers. I had to beg for a change of clothing. And constantly threatened, harassed. And I was written a falsified – they tried to force me to take a tape test. Doc. 513 (Clayton Testimony) at 7. Finally, Isiah Bell testified that, while he was attempting to complete the Administrative Detention Re-entry Management Program (“ADRMP”) or “Step Down”
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program at Pontiac in order to be transferred out of Tamms, he was baited by correctional
personnel who sought to goad Bell to commit disciplinary infractions so that he would be transferred
back to Tamms:
But it [the ADRMP] was basically all a trap really in my opinion because they had officers there that was specifically that was specifically try to pull you off. What I mean by that – I know that was slang. But what I mean by that, you had officers that try to gorge [sic] you into anger, try to pull you into basically try to make you mad and do things to you to get you to give you a reason to be wrote up so you can be sent back, things like that.
Doc. 433 (Bell Testimony) at 23.
The weight of the evidence in this case does not suggest that the IDOC makes it a practice
to punish former Tamms inmates for having been assigned to the supermax prison at one time.
In the course of the bench trial on the due process claims in this case, the Court specifically inquired
into the matter of whether IDOC has any policy of discriminating against inmates based on their
prior placement at Tamms. The following colloquy occurred in the course of IDOC Director
Randle’s testimony:
THE COURT: Throughout these proceedings I have been told that the mere fact that a prisoner has been to Tamms, even though they have successfully completed their term at Tamms, has a – a legal stigma such that this prisoner just from having been at Tamms is then forever barred from participating in other activities or opportunities that are available to the other people in the system. Do you know anything about that? A. Your Honor, no, I do not. Q. I mean, it would occur to this Court, and probably anyone else, that in as much as we’re trying to get, you are trying to get prisoners worked up so they can at least function with other prisoners that this would be a terribly counterproductive situation. But you can’t help me with that. A. No – your Honor, certainly that’s something that based on you mentioning it to me I will make it a point to make sure the organization understands that’s not goal. And, in fact, it’s just the opposite. We want to promote successful inmates that have left Tamms and been able to function well. Those are people we want to show as examples, not only to offenders that are at Tamms but to our staff and everybody
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else. So it’s just the opposite. THE COURT: Well, just to be candid with you, things like that happen throughout the system. And the federal courts are not in a whole lot better situation . . . . So anomalies happen and I just wondered. Thank you.
Doc. 522 (Randle Testimony) at 47-48.
Similarly, Yolande Johnson, the Chief Administrative Officer of Tamms, testified that there
is no IDOC policy of discriminating against former Tamms inmates in the IDOC system by reason
of the prior assignment of such inmates to Tamms:
THE COURT: I just wonder if you could shed some light on the circumstance that I have just described to the director. That is, I’ve been told that if you have been to Tamms that forever bars you from activities or certain activities and opportunities in the prison system. Can you help me with that? Do you know anything about it? A. There are no provisions to deny offenders any activities in general population once they’ve transferred out of Tamms. The only exception to that is if an offender is transferred from Tamms in segregation to another facility in segregation his privileges are restricted. In seg you don’t have access to education programs. Q. By virtue of being in segregation? A. Right. But if an offender is transferred from administrative detention to the ADRMP to the general population he has access to school, he is eligible for security reclassifications. In fact, there have been offenders who are transferred out to a maximum security prison and have gone through reclassification and been processed to Big Muddy or Pinckneyville or wherever. So that means they’ve reduced their security level so they’ve not been denied transfers. They also do have access to substance abuse programming if the facility that they’re at offers substance abuse programming. They have access to education. They may or may not have access to E.D. or work release by the nature of their committing offense, not by the nature of the offense that they committed to go to Tamms. So . . . Q. Thank you. That’s what I needed to know.
Id. (Testimony of Yolande Johnson) at 48-49. As the foregoing testimony by IDOC Director Randle
and Chief Administrative Officer Johnson makes clear, contrary to the views of counsel for Plaintiffs
and the class, the IDOC has no policy of discriminating against former inmates of Tamms based on
their prior assignment to the supermax prison.
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The Court finds the testimony of IDOC Director Randle and Chief Administrative Officer
Johnson credible, particularly in light of the fact that, as the foregoing testimony by IDOC Director
Randle points out, the institutional interest of the IDOC is in helping IDOC inmates either to avoid
Tamms or to complete successfully their term of confinement at Tamms. The IDOC has no interest
in discriminating against former Tamms inmates or in setting up a situation in which such inmates
re-offend and wind up back in Tamms, given that the IDOC must spend considerably more to house
inmates at Tamms than at other prisons in the IDOC system:
Q. I take it also that it’s relatively more expensive to keep a prisoners at Tamms than it is, say, Pontiac? A. Yes, it is. Q. Quite a bit so? A. Yes. Q. Do you know what that figure is? A. Around 53 to $57,000 I believe. Q. At Tamms? A. Yes. Q. 30,000 in a regular? A. About 23 on the average. Q. That’s a pretty good incentive to pay attention to it? A. Yes. Q. I’m sure your budget, like everyone else’s, is under pressure? A. A lot of pressure, your Honor.
Doc. 522 (Randle Testimony) at 44-45. The IDOC has no reason to penalize inmates who have been
transferred out of Tamms and in fact, given the substantially higher cost of housing inmates in the
supermax prison at Tamms than at lower-security prisons in the IDOC system, the agency’s incentive
is quite the contrary. As IDOC Director Randle testified, the IDOC’s interest lies in rewarding, not
penalizing, inmates who successfully complete a term of confinement at Tamms. The evidence of
record simply does not support the view that the IDOC has a policy of discriminating against former
Tamms inmates. As a further matter, the Court cannot understand how an order requiring IDOC
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officials to scrub from the jackets of all former inmates of Tamms any record of the confinement of those inmates at the supermax prison (thereby falsifying the correctional history of those inmates) conforms to the requirement of narrowly-tailored relief under both Sandin and the PLRA. In any event, the weight of the evidence in this case, namely, the testimony of IDOC Director Randle and Chief Administrative Officer Johnson, shows that there is no IDOC policy of discriminating against former Tamms inmates and in fact IDOC policy is very much to the contrary, e.g., to encourage IDOC inmates, including former Tamms inmates, to obey prison rules by giving them incentives to stay out of Tamms. The declaratory relief requested by Plaintiffs and the class will be denied.
7. Summary The Court concludes that existing IDOC procedures for placing inmates at Tamms are inadequate to protect the liberty interest of IDOC inmates in avoiding confinement at the supermax prison. For inmates assigned to Tamms in disciplinary segregation, an Adjustment Committee hearing on the disciplinary charge underlying the segregation sentence of such inmates is not an adequate procedural safeguard inasmuch as inmates are not warned at their Adjustment Committee hearing that a portion of the punishment for their disciplinary infraction is likely to be confinement at Tamms. In fact, as has already been discussed, in some instances months and even years passed between the time when an inmate committed a disciplinary infraction and the time when the inmate was placed in disciplinary segregation at Tamms. For inmates assigned to Tamms in administrative detention, the transfer review hearing prescribed for such inmates is inadequate to protect their liberty interest in avoiding confinement at Tamms because inmates receive no notice in advance of the hearing of the reason for their placement at Tamms and thus are unable effectively to challenge
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their placement at Tamms at their transfer review hearing. In fact, it appears that some IDOC inmates did not learn the reason for their placement of Tamms even after they had received a transfer review hearing. Also, after a transfer review hearing, at which many inmates were never apprised of their right to contest their placement at Tamms, the only explanation furnished for an assignment to the supermax prison was a one-line statement that the inmate had been properly placed at the supermax prison.
The procedure for assigning inmates to Tamms set out in Point One of IDOC Director Randle’s Ten-Point Plan is a vast improvement in the amount of process that IDOC inmates receive when under consideration for placement at Tamms, but the procedure set out in Point One of the Plan suffers from two constitutional infirmities: first, the Plan makes no provision for inmates placed at Tamms to be informed in writing of the reason for their placement at the supermax prison in advance of their transfer review hearing; and second, the Plan is prospective only and does not provide for inmates transferred to Tamms in disciplinary segregation before the date of implementation of the Plan to receive a transfer review hearing. The Court concludes that the process for placing inmates at Tamms outlined in Point One of IDOC Director Randle’s Plan is constitutionally adequate in most respects, and the Court adopts Point One of the Plan as its grant of equitable relief in this case, subject to the following modifications: inmates placed at Tamms must receive advance notice in writing of the reason for their placement at least forty-eight hours before a transfer review hearing regarding their placement at Tamms; and all inmates assigned to Tamms in disciplinary segregation must receive a transfer review hearing, including inmates assigned to disciplinary segregation at Tamms before the date of entry of this Order. Finally, the weight of evidence in this case shows that the IDOC does not have a policy of discriminating against
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former Tamms inmates by reason of their assignment to Tamms, and therefore the declaratory relief requested by Plaintiffs and the class will be denied.
III. CONCLUSION The Court has considered carefully all of the evidence and arguments of the parties, as well as the relevant law. Having done so, the Court concludes that Plaintiffs and the class have shown an entitlement to injunctive relief. Accordingly, it is hereby ORDERED as follows:
1. The Chief Administrative Officer of the Tamms Closed Maximum Security Facility (“Tamms CMAX”) shall appoint members of the Transfer Review Committee.
2. The Transfer Review Committee shall conduct Transfer Review Hearings for each inmate transferred to Tamms CMAX.
3. Inmates transferred to Tamms CMAX in Administrative Detention status shall appear before the Transfer Review Committee whenever possible within ten days of placement to participate in a Transfer Review Hearing.
4. Inmates transferred to Tamms CMAX in Disciplinary Segregation status or Investigative status shall appear before the Transfer Review Committee whenever possible within thirty days of placement or at the conclusion of pending disciplinary proceedings, whichever is later.
5. All inmates transferred to the Tamms CMAX in any status (Administrative Detention status, Disciplinary Segregation status, or Investigative status) shall be notified by the Transfer Review Committee in writing of the reason they are being considered for placement at Tamms CMAX at least forty-eight hours in advance of their Transfer Review Hearing.
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6. Consistent with the procedure set out in Section 505.60 of Title 20 of the Illinois Administrative Code, an inmate placed at Tamms CMAX shall be afforded the opportunity to appear at the Transfer Review Hearing to refute the stated reason for placement at Tamms CMAX, to make statements relevant to the inmate’s placement at Tamms CMAX, and to present relevant documents. The inmate may also request that the Transfer Review Committee interview persons with relevant information.
7. Inmates who are currently housed at Tamms CMAX, and who were transferred to Tamms CMAX in Disciplinary Segregation status prior to the date of entry of the Court’s Order shall be granted a Transfer Review Hearing that complies with the procedure set out in Section 505.60 of Title 20 of the Illinois Administrative Code within 180 days of the date of entry of this Order. Priority for the said Transfer Review Hearings shall be given to those IDOC inmates transferred to Tamms in Disciplinary Segregation status the longest. Transfer Review Hearings for all IDOC inmates transferred to Tamms in Disciplinary Segregation status who have been at Tamms CMAX for more than five years shall be completed within ninety days of the date of entry of this Order.
8. In determining whether to recommend continued placement in Administrative Detention status at Tamms CMAX, the Transfer Review Committee may consider, among other matters, the factors set forth in Section 505.40(d) of Title 20 of the Illinois Administrative Code (the safety and security of the facility, the public, or any person, an inmate’s disciplinary and behavioral history, reports and recommendations concerning the inmate, the feasibility of a transfer to another facility, medical concerns, and mental health concerns).
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9. An audio digital recording shall be made of all Transfer Review Hearings and shall be retained by the Illinois Department of Corrections pursuant to that agency’s standard record retention policy.
10. The Transfer Review Committee shall prepare a written report of each Transfer Review Hearing.
11. The report of the Transfer Review Committee shall contain inmate demographics, the stated reason for placement of an inmate at Tamms CMAX, a summary of the inmate’s disciplinary history, the inmate’s status (Administrative Detention status, Disciplinary Segregation status, or Investigative status), a record of the proceedings, the inmate’s voluntary disclosure to willingly renounce Security Threat Group membership association, and the recommendation of the Transfer Review Committee on placement of the inmate at Tamms CMAX.
12. The report of the Transfer Review Committee regarding placement shall be forwarded to the Chief Administrative Officer of Tamms CMAX for review, approval, or denial.
13. The recommendation of the Chief Administrative Officer of Tamms CMAX regarding placement shall be forwarded to the Chief of Operations of the Illinois Department of Corrections for review and approval or denial.
14. After receipt of the decision of the Chief of Operations of the Illinois Department of Corrections, the Transfer Review Committee shall provide each inmate placed at Tamms CMAX with written notification of the decision on the inmate’s placement.
Page 92 of 94

15. The decision of the Chief of Operations of the Illinois Department of Corrections may be appealed by the affected inmate to the Chief Legal Counsel of the Illinois Department of Corrections, who shall act as the designee of the Director of the Illinois Department of Corrections for purposes of such an appeal.
16. With respect to inmates placed at Tamms CMAX in Administrative Detention status, the Transfer Review Committee shall conduct routine reviews and annual Transfer Review Hearings in the manner set out in Section 505.70 of Title 20 of the Illinois Administrative Code.
The Court fully appreciates the difficulty for prison administrators entailed in handling the dangerous and largely incorrigible prisoner population at Tamms. The supermax prison at Tamms is clean, excellently administered, and well-staffed. Consistent with 18 U.S.C. § 3626(a)(1)(A), the Court FINDS that the foregoing grant of equitable relief is narrowly drawn, extends no further than necessary to correct the violation of the Fourteenth Amendment due process rights of IDOC inmates placed at Tamms, and is the least intrusive means necessary to correct the violation of the federal rights of such inmates. The Court will retain jurisdiction over this matter for the purpose of enforcement. This injunction shall terminate in two years upon the motion of either party unless the Court finds that prospective relief is needed to correct an ongoing violation of a federal right. See 18 U.S.C. § 3626(b)(1)(A)(i). The Court concludes that Plaintiffs and the class have failed to show a right to declaratory relief, and their request for such relief is DENIED. The Clerk of Court will enter judgment in accordance with this Order.
Page 93 of 94

IT IS SO ORDERED. DATED: July 20, 2010

/s/ G. Patrick Murphy G. PATRICK MURPHY United States District Judge

Page 94 of 94

 
 Case 3:00-cv-00162-GPM Document 541 Filed 07/20/10 Page 1 of 6 Page ID #3346

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) Consolidated with: ) CIVIL NO. 00-708-GPM )

JUDGMENT IN A CIVIL CASE

This matter came on before the Court, Judge G. Patrick Murphy presiding, and the following

decisions were reached.

IT IS HEREBY ORDERED AND ADJUDGED that, with respect to the retaliation claims

of Plaintiffs Aryules Bivens, Roosevelt Burrell, Ted Knox, and Joe Sorrentino, Plaintiffs each shall

recover from Defendants Michael V. Neal and Thomas Page the amount of $1.00 with interest at

the rate of .28%, along with costs.

IT IS FURTHER ORDERED AND ADJUDGED that, with respect to the retaliation

claims of Plaintiffs Mary Chapman, as the administrator of the estate of Marcus Chapman,

Leverne Clayton, Kennard Combs, Bennie Cunningham, Robert Felton, George Harper,

Eugene Horton, William Lasley, Edward Rodriguez, Vincente Rodriguez, Michael Sparling,

Corey A. Taylor, and Mark Von Perbandt, Plaintiffs shall recover nothing, their claims shall be

dismissed on the merits, and Defendants Rodney Ahitow, Dwayne Clark, George DeTella,

Jerry Gilmore, Jack Hartwig. Homer Markel, Richard McVicar, Michael V. Neal, Michael O’Leary,

Thomas Page, Donald Snyder, Odie Washington, George C. Welborn, and Angela Winsor shall

recover costs from Plaintiffs Chapman, Clayton, Combs, Cunningham, Felton, Harper, Horton,

Page 1 of 6

Case 3:00-cv-00162-GPM Document 541 Filed 07/20/10 Page 2 of 6 Page ID #3347
Lasley, E. Rodriguez, V. Rodriguez, Sparling, Taylor, and Von Perbandt. IT IS FURTHER ORDERED AND ADJUDGED that, with respect to the procedural due
process claims of Plaintiffs Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell, Mary Chapman, as the administrator of the estate of Marcus Chapman, Gary Clark, Leverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell, John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox, William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez, Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero, Alejandro Villazana, Mark Von Perbandt, Robert Westefer, and a class of all inmates in the custody of the Illinois Department of Corrections who have been transferred to the Tamms Closed Maximum Security Facility (“Tamms CMAX”) since January 1, 1998, and all inmates in the custody of the Illinois Department of Corrections who will be transferred to Tamms CMAX, injunctive relief is awarded to Plaintiffs and the class as follows:
1. The Chief Administrative Officer of Tamms CMAX shall appoint members of the Transfer Review Committee.
2. The Transfer Review Committee shall conduct Transfer Review Hearings for each inmate transferred to Tamms CMAX.
3. Inmates transferred to Tamms CMAX in Administrative Detention status shall appear before the Transfer Review Committee whenever possible within ten days of placement to participate in a Transfer Review Hearing.
4. Inmates transferred to Tamms CMAX in Disciplinary Segregation status or Investigative status shall appear before the Transfer Review Committee whenever possible
Page 2 of 6

Case 3:00-cv-00162-GPM Document 541 Filed 07/20/10 Page 3 of 6 Page ID #3348
within thirty days of placement or at the conclusion of pending disciplinary proceedings, whichever is later.
5. All inmates transferred to the Tamms CMAX in any status (Administrative Detention status, Disciplinary Segregation status, or Investigative status) shall be notified by the Transfer Review Committee in writing of the reason they are being considered for placement at Tamms CMAX at least forty-eight hours in advance of their Transfer Review Hearing.
6. Consistent with the procedure set out in Section 505.60 of Title 20 of the Illinois Administrative Code, an inmate placed at Tamms CMAX shall be afforded the opportunity to appear at the Transfer Review Hearing to refute the stated reason for placement at Tamms CMAX, to make statements relevant to the inmate’s placement at Tamms CMAX, and to present relevant documents. The inmate may also request that the Transfer Review Committee interview persons with relevant information.
7. Inmates who are currently housed at Tamms CMAX, and who were transferred to Tamms CMAX in Disciplinary Segregation status prior to the date of entry of the Court’s judgment shall be granted a Transfer Review Hearing that complies with the procedure set out in Section 505.60 of Title 20 of the Illinois Administrative Code within 180 days of the date of entry of the Court’s judgment. Priority for the said Transfer Review Hearings shall be given to those IDOC inmates transferred to Tamms in Disciplinary Segregation status the longest. Transfer Review Hearings for all IDOC inmates transferred to Tamms in Disciplinary Segregation status who have been at Tamms CMAX for more than five years shall be completed within ninety days of the date of entry of the Court’s judgment.
Page 3 of 6

Case 3:00-cv-00162-GPM Document 541 Filed 07/20/10 Page 4 of 6 Page ID #3349
8. In determining whether to recommend continued placement in Administrative Detention status at Tamms CMAX, the Transfer Review Committee may consider, among other matters, the factors set forth in Section 505.40(d) of Title 20 of the Illinois Administrative Code (the safety and security of the facility, the public, or any person, an inmate’s disciplinary and behavioral history, reports and recommendations concerning the inmate, the feasibility of a transfer to another facility, medical concerns, and mental health concerns).
9. An audio digital recording shall be made of all Transfer Review Hearings and shall be retained by the Illinois Department of Corrections pursuant to that agency’s standard record retention policy.
10. The Transfer Review Committee shall prepare a written report of each Transfer Review Hearing.
11. The report of the Transfer Review Committee shall contain inmate demographics, the stated reason for placement of an inmate at Tamms CMAX, a summary of the inmate’s disciplinary history, the inmate’s status (Administrative Detention status, Disciplinary Segregation status, or Investigative status), a record of the proceedings, the inmate’s voluntary disclosure to willingly renounce Security Threat Group membership association, and the recommendation of the Transfer Review Committee on placement of the inmate at Tamms CMAX.
12. The report of the Transfer Review Committee regarding placement shall be forwarded to the Chief Administrative Officer of Tamms CMAX for review, approval, or denial.
Page 4 of 6

Case 3:00-cv-00162-GPM Document 541 Filed 07/20/10 Page 5 of 6 Page ID #3350
13. The recommendation of the Chief Administrative Officer of Tamms CMAX regarding placement shall be forwarded to the Chief of Operations of the Illinois Department of Corrections for review and approval or denial.
14. After receipt of the decision of the Chief of Operations of the Illinois Department of Corrections, the Transfer Review Committee shall provide each inmate placed at Tamms CMAX with written notification of the decision on the inmate’s placement.
15. The decision of the Chief of Operations of the Illinois Department of Corrections may be appealed by the affected inmate to the Chief Legal Counsel of the Illinois Department of Corrections, who shall act as the designee of the Director of the Illinois Department of Corrections for purposes of such an appeal.
16. With respect to inmates placed at Tamms CMAX in Administrative Detention status, the Transfer Review Committee shall conduct routine reviews and annual Transfer Review Hearings in the manner set out in Section 505.70 of Title 20 of the Illinois Administrative Code.
17. Consistent with 18 U.S.C. § 3626(a)(1)(A), the Court finds that the foregoing grant of equitable relief is narrowly drawn, extends no further than necessary to correct the violation of the Fourteenth Amendment due process rights of IDOC inmates placed at Tamms, and is the least intrusive means necessary to correct the violation of the federal rights of such inmates.
18. The Court will retain jurisdiction over this matter for the purpose of enforcement.
19. Consistent with 18 U.S.C. § 3626(b)(1)(A)(i), this injunction shall terminate
Page 5 of 6

Case 3:00-cv-00162-GPM Document 541 Filed 07/20/10 Page 6 of 6 Page ID #3351

in two (2) years upon the motion of either party unless the Court finds that prospective relief is

needed to correct an ongoing violation of a federal right.

IT IS FURTHER ORDERED AND ADJUDGED that, with respect to the procedural due

process claims of Plaintiffs Aryules Bivens, Larry Brown, Finner Bryant, Roosevelt Burrell,

Mary Chapman, as the administrator of the estate of Marcus Chapman, Gary Clark,

Leverne Clayton, Maurice Coleman, Kennard Combs, Robert Felton, Larry Foutch, Larry Gambrell,

John Gill, Timothy Hall, George Harper, Eugene Horton, Michael Johnson, Ted Knox,

William Lasley, Alex Muller, Vincent Reyna, Edward Rodriguez, Vincente Rodriguez,

Tyshawn Ross, Anibal Santiago, Joe Sorrentino, Michael Sparling, Armando Tinajero,

Alejandro Villazana, Mark Von Perbandt, Robert Westefer, and a class of all inmates in the custody

of the Illinois Department of Corrections who have been transferred to Tamms CMAX

since January 1, 1998, and all inmates in the custody of the Illinois Department of Corrections who

will be transferred to Tamms CMAX in the future, Plaintiffs and the class have failed to show an

entitlement to declaratory relief, and their request for such relief is denied.

DATED: July 20, 2010

NANCY J. ROSENSTENGEL, CLERK

By: s/Linda M. McGovern Courtroom Deputy Clerk

APPROVED: /s/ G. Patrick Murphy G. PATRICK MURPHY U.S. DISTRICT JUDGE

Page 6 of 6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) Consolidated with: ) CIVIL NO. 00-708-GPM )

MEMORANDUM AND ORDER

MURPHY, District Judge:

I. INTRODUCTION

This matter is before the Court on a motion for a judgment as a matter of law or, in the

alternative, for a new trial brought by Defendants Michael V. Neal and Thomas Page (Doc. 554).

Neal and Page are former employees of the Illinois Department of Corrections (“IDOC”). In that

capacity, in 1998 Neal and Page were responsible for transferring Plaintiffs Joseph Sorrentino,

Ted Knox, Aryules Bivens, and Roosevelt Burrell, at that time inmates in the custody of the IDOC

housed at Menard Correctional Center (“Menard”), from Menard to the closed maximum security

prison (“supermax prison”) at Tamms Correctional Center (“Tamms”). At the time Sorrentino,

Knox, Bivens, and Burrell were transferred to the supermax prison at Tamms, Page was the warden

at Menard and Neal, an assistant deputy director of the IDOC, was Page’s supervisor. Both Neal and

Page helped to select IDOC inmates to be transferred to Tamms. Page reviewed reports

(“transfer packets”) prepared by security and intelligence officers about prospective transferees to

Tamms that set out the disciplinary history of the prospective transferees and furnished information

Page 1 of 21

about the inmates’ involvement, if any, with “security threat groups,” that is, prison gangs. Page then forwarded the transfer packets of inmates he believed should be sent to Tamms to Neal, who had the final authority to order inmates sent to Tamms.
Sorrentino, Knox, Bivens, and Burrell contend that they were sent to Tamms because they exercised their First Amendment right to challenge the conditions of their confinement at Menard by, inter alia, filing grievances and lawsuits about conditions at Menard. Sorrentino, Knox, Bivens, and Burrell seek to vindicate their First Amendment rights pursuant to 42 U.S.C. § 1983. Neal and Page contend that Sorrentino, Knox, Bivens, and Burrell were sent to Tamms because of their poor disciplinary records and involvement with prison gangs. On November 2 and 3, 2009, the Court conducted a trial on the Section 1983 retaliation claims of Sorrentino, Knox, Bivens, and Burrell. After the inmates rested their case and again at the close of all the evidence, counsel for Neal and Page moved for a judgment as a matter of law. The jury subsequently found for Sorrentino, Knox, Bivens, and Burrell, and awarded them damages of $1.00 each. Neal and Page now have renewed their request for judgment as a matter of law. In the alternative, they request a new trial on the retaliation claims of Sorrentino, Knox, Bivens, and Burrell. The motion has been fully briefed and the Court now rules as follows.
II. ANALYSIS A. Legal Standard As an initial matter, the Court notes the standard under which it must evaluate a motion for judgment notwithstanding the verdict and a motion for a new trial. Rule 50 of the Federal Rules of Civil Procedure provides, in relevant part, that “[a] motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment
Page 2 of 21

sought and the law and facts that entitle the movant to the judgment.” Fed. R. Civ. P. 50(a)(2). If a motion for a judgment as a matter of law made at the close of all the evidence is not granted, the movant may renew the motion within twenty-eight days after the entry of judgment. See Fed. R. Civ. P. 50(b). As to the merits of a Rule 50 motion for judgment as a matter of law, federal law provides the applicable standard. See Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 343 (7th Cir. 1995) (citing Mayer v. Gary Partners & Co., 29 F.3d 330, 335 (7th Cir. 1994)). The standard is whether the evidence presented, combined with all reasonable inferences permissibly drawn, is legally sufficient to support the verdict when viewed in the light most favorable to the non-movant. See Mutual Serv. Cas. Ins. Co. v. Elizabeth State Bank, 265 F.3d 601, 612 (7th Cir. 2001); Mathur v. Board of Trs. of S. Ill. Univ., 207 F.3d 938, 941 (7th Cir. 2000); Collins v. Kibort, 143 F.3d 331, 335 (7th Cir. 1998). In other words, the test is whether no rational jury could return a verdict for the non-movant. See Dadian v. Village of Wilmette, 269 F.3d 831, 837 (7th Cir. 2001); Hasham v. California State Bd. of Equalization, 200 F.3d 1035, 1043 (7th Cir. 2000); Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 630 (7th Cir. 1996). The court may not re-weigh the evidence, resolve conflicts in the testimony against the non-movant, or override the jury’s determinations as to the credibility of witnesses. See EEOC v. Board of Regents of Univ. of Wis. Sys., 288 F.3d 296, 301 (7th Cir. 2002); Grassi v. Information Res., Inc., 63 F.3d 596, 599 (7th Cir. 1995); Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 511 n.5 (7th Cir. 1986). The standard under which a motion for a judgment notwithstanding the verdict is evaluated is essentially the same as that for a motion for summary judgment. See Hall v. Gary Cmty. Sch. Corp., 298 F.3d 672, 675 (7th Cir. 2002); Millbrook v. IBP, Inc., 280 F.3d 1169, 1179 n.2 (7th Cir. 2002).
Page 3 of 21

Turning then to the standard under which the Court must evaluate a motion for a new trial, pursuant to Rule 59 of the Federal Rules of Civil Procedure, “[t]he court may, on motion, grant a new trial on all or some of the issues . . . and to any party . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court[.]” Fed. R. Civ. P. 59(a)(1)(A). See also ABM Marking, Inc. v. Zanasi Fratelli, S.R.L., 353 F.3d 541, 543 (7th Cir. 2003). A court may grant a new trial if “the verdict is against the clear weight of the evidence, the damages are excessive or the trial was unfair to the moving party.” Miksis v. Howard, 106 F.3d 754, 757 (7th Cir. 1997). “In reviewing a motion for a new trial, we view the evidence in the light most favorable to the prevailing party. We will not set aside the jury’s verdict if there is a reasonable basis in the record which supports that verdict.” Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1196 (7th Cir. 1992). Rule 61 of the Federal Rules of Civil Procedure also may be relevant to a motion for a new trial. That rule provides:
Unless justice requires otherwise, no error in admitting or excluding evidence – or any other error by the court or a party – is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights. Fed. R. Civ. P. 61. Under Rule 61, “[i]n order to receive a new trial, the defendant must show that the error was substantial enough to deny him a fair trial.” Perry v. Larson, 794 F.2d 279, 285 (7th Cir. 1986). In evaluating a motion for a new trial, a court must “leav[e] issues of credibility and weight of evidence to the jury.” Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004) (citing Carter v. Chicago Police Officers, 165 F.3d 1071, 1079 (7th Cir. 1998)). Finally, the decision about whether to grant a motion for a new trial is within a trial court’s discretion. See Neal v. Honeywell, Inc., 191 F.3d 827, 831 (7th Cir. 1999); General Foam Fabricators, Inc. v. Tenneco Chems., Inc.,
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695 F.2d 281, 288 (7th Cir. 1982). With the foregoing standards in mind, the Court turns to the merits of the instant motion for judgment notwithstanding the verdict or, alternatively, for a new trial.
B. Motion for Judgment Notwithstanding the Verdict Or, in the Alternative, a New Trial 1. Retaliation
It is well settled, of course, that a prison inmate has a right under the First Amendment to challenge the conditions of his or her confinement by, for example, filing grievances and lawsuits, and it is unlawful for correctional personnel to retaliate against an inmate for exercising this First Amendment right. See Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000); Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996); Cain v. Lane, 857 F.2d 1139, 1143 (7th Cir. 1988). To show unlawful retaliation in violation of the First Amendment, an inmate plaintiff must prove three elements: first, that he or she engaged in constitutionally protected conduct, e.g., filing grievances or lawsuits challenging the conditions of his or her confinement; second, that but for the protected conduct a defendant would not have taken an adverse action against the plaintiff; and third, that the plaintiff suffered a deprivation because of the defendant’s action. See Gunville v. Walker, 583 F.3d 979, 983-84 & n.1 (7th Cir. 2009); Fairley v. Andrews, 578 F.3d 518, 525-26 (7th Cir. 2009). In the past, controlling authority in this Circuit did not require but-for causation. See, e.g., Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)) (to establish a prima facie case of retaliation for the exercise of First Amendment rights, a plaintiff must demonstrate that (1) the plaintiff engaged in constitutionally protected conduct, (2) the plaintiff
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suffered a deprivation likely to deter the free exercise of the plaintiff’s First Amendment rights, and
(3) the plaintiff’s protected conduct was “at least a motivating factor” in the defendant’s retaliatory
behavior). However, the Supreme Court of the United States recently clarified that, unless a federal
statute provides otherwise, the plaintiff bears the burden of demonstrating but-for causation in suits
brought under federal law. See Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2351 (2009) (to
prevail in an action under the Age Discrimination in Employment Act “[a] plaintiff must prove by
a preponderance of the evidence (which may be direct or circumstantial), that [an unlawful motive]
was the ‘but-for’ cause of the challenged . . . decision.”); Fairley, 578 F.3d at 525-26 (“Some
decisions . . . say that a plaintiff just needs to show that his speech was a motivating factor in
defendant’s decision [to retaliate]. These decisions do not survive Gross, which holds that, unless
a statute (such as the Civil Rights Act of 1991) provides otherwise, demonstrating but-for causation is part of the plaintiff’s burden in all suits under federal law.”).1
In this instance Neal and Page do not argue that the jury was instructed incorrectly
concerning the applicable burden of proof and the elements of a claim of retaliation for the exercise
of First Amendment rights. Instead, Neal and Page complain that they were deprived of a fair trial
because Sorrentino, Knox, Bivens, and Burrell were allowed to put on evidence challenging the
1. Pre-Gross case law held generally that, once a prima facie case of retaliation has been made, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the challenged act or acts, consistent with the familiar burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and used in employment discrimination cases brought pursuant to the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. See, e.g., Spiegla v. Hull, 371 F.3d 928, 942-43 & n.10 (7th Cir. 2004) (quoting Johnson v. University of Wis.-Eau Claire, 70 F.3d 469, 482 (7th Cir. 1995)) (“[I]n this Circuit ‘the causation analysis for a § 1983 retaliation claim tracks the causation analysis for a Title VII retaliation claim.’”). As the United States Court of Appeals for the Seventh Circuit noted recently, “[w]hether such a burden shifting analysis survives the Supreme Court’s declaration in Gross in non-Title VII cases, remains to be seen.” Kodish v. Oakbrook Terrace Fire Prot. Dist., 604 F.3d 490, 501 (7th Cir. 2010).
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severity of their disciplinary records, which the four IDOC inmates argued at trial were not serious enough to warrant sending them to Tamms. In particular, Neal and Page object to evidence that was admitted at trial showing that, a year after Bivens was transferred to Tamms, IDOC records did not identify Bivens as being affiliated with a prison gang, although one of the ostensible reasons Bivens was sent to Tamms was his gang affiliation. Neal and Page argue that this evidence regarding Bivens’s lack of gang affiliation, which was admitted in evidence at trial as Plaintiffs’ Exhibit 51, was generated long after the decision was taken to transfer Bivens to the supermax prison and therefore could not have had any bearing on the decision to send Bivens to Tamms. The second ground for a judgment notwithstanding the verdict or, alternatively, a new trial asserted by Neal and Page is that there is no evidence in the record that Neal had actual knowledge of any complaints by Sorrentino, Knox, Bivens, and Burrell about the conditions of confinement at Menard, so that Neal cannot be liable for retaliating against the inmates for their protected activity. See Stagman v. Ryan, 176 F.3d 986, 999 (7th Cir. 1999) (“In order to establish that a defendant retaliated against a plaintiff because of a protected constitutional right, a plaintiff must demonstrate that the defendant knew of . . . the plaintiff’s constitutional activities.”); Cusson-Cobb v. O’Lessker, 953 F.2d 1079, 1081-82 (7th Cir. 1992) (affirming dismissal of a retaliation claim where the plaintiff produced no evidence that the decision-maker responsible for her termination had any knowledge of her protected activity). Finally, Neal and Page argue that, even if it were the case that they retaliated against Sorrentino, Knox, Bivens, and Burrell for exercising their First Amendment rights, they, Neal and Page, are shielded from liability by the doctrine of qualified immunity. The Court will consider each of the grounds for a judgment notwithstanding the verdict or a new trial asserted by Neal and Page in turn.
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2. Evidence Concerning the Disciplinary Histories of Sorrentino, Knox, Bivens, and Burrell
The Court turns first to the matter of the evidence that was presented at trial by Sorrentino, Knox, Bivens, and Burrell regarding their disciplinary records. Before trial the Court put the parties on notice that it did not intend to let them litigate the merits of the charges giving rise to various disciplinary tickets issued to the inmates, as this would have no bearing on the information available to Neal and Page in making decisions about transfer to Tamms. The Court said, “the evidence relevant to this case concerns the information known to the decision-maker or decision-makers responsible for transferring Plaintiffs to Tamms . . . . The Court does not intend to preside over an adjudication of the merits of every disciplinary ticket issued to Plaintiffs.” Westefer v. Snyder, Civil Nos. 00-162-GPM, 00-708-GPM, 2009 WL 3672500, at *2 (S.D. Ill. Oct. 30, 2009). By the same token, however, it was perfectly appropriate for Sorrentino, Knox, Bivens, and Burrell to present evidence that their disciplinary records, which, as noted, were the ostensible reason they were sent to Tamms, were not bad enough to qualify them for placement at the supermax prison. The issue plainly went to but-for causation: if the inmates’ disciplinary histories did not make them eligible for transfer to Tamms, the inference arises that they were sent to the supermax prison for an illegitimate, retaliatory reason.
Concerning Sorrentino, the evidence at trial was that, while he was housed at Menard before his transfer to Tamms, he was confined in a cellhouse for low-aggression inmates and classified as a medium-security inmate. See Doc. 478 (Testimony of Joe Sorrentino) at 13-14, 29. At Menard, Sorrentino held a responsible job in the prison gym, then later worked in the inmates’ kitchen, the employees’ dining room, and the officers’ kitchen. See id. at 17-18, 20. Sorrentino was approved
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to work in the employees’ dining room by Page. See id. at 17-18. Concerning the officers’
kitchen, Sorrentino testified that it was a prized job assignment at Menard because it was relatively
high-paying and enabled inmates to cook their own meals. See id. at 14-15. Sorrentino testified that,
while working in the inmates’ kitchen and the officers’ kitchen, he had access to knives, and that
inmates who were classified as high-aggression or who had prior disciplinary tickets for
weapons violations or otherwise were considered dangerous were not eligible for kitchen work.
See id. at 18-20. At Menard Sorrentino took college classes and was active in the prison chess club,
bridge club, dominos club, and card club. See id. at 20-21. It appears also that for a time Sorrentino
was under consideration by Page and Neal for transfer to a medium-security prison. See id. at 29-31.
Sorrentino admitted to membership in the Latin Kings prison gang but pointed out that at the time
of his transfer to Tamms his security level was medium and his disciplinary grade was A, the grade for inmates with the best behavioral histories at Menard. See id. at 54, 56.2
Concerning Knox, like Sorrentino he was housed in a low-aggression cellhouse at
Menard before his transfer to the supermax prison at Tamms. See Doc. 478 (Testimony of
Ted Knox) at 215-16. On direct examination Knox’s disciplinary history before Tamms was
explored in detail and proved to contain denials of commissary privileges and yard privileges, verbal
reprimands, and temporary demotions from disciplinary grade A to grades B and C, but no time in
2. It should be noted that the transfer packets concerning inmates under consideration for placement at Tamms that were reviewed by Page and, with respect to inmates Page believed were suitable for Tamms placement, forwarded to Neal for a final decision on transfer contain each inmate’s security classification and disciplinary grade, together with a statement of the number of disciplinary tickets each inmate had received and the reason for each ticket. Additionally, both Neal and Page had access to the complete disciplinary records of inmates under consideration for Tamms placement, as these records were contained in each inmate’s master file, although it is not clear whether Neal or Page consulted the master files when making assignments to Tamms. See Doc. 478 (Testimony of Aryules Bivens) at 170-71.
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disciplinary segregation and no losses of good time credit. See id. at 213-15. In fact, as of August 10, 1998, the evidence at trial showed, Knox’s last security evaluation at Menard before his transfer to Tamms reflected that he was classified as a medium-security inmate with no major disciplinary tickets:
Q. . . . [U]nder major disciplinary sanctions, score is 0, segregation placement score is 0, security designation score is 0, primary assignment score is 0, current age score is 0, total score is 0, so your security designation there would be minimum? A. Correct. Q. And medium again for escape risk and medium again for the overall security designation? A. That’s correct. Id. at 225-26. Two weeks later, Knox was sent to Tamms. See id. at 225. Like Sorrentino, Knox worked various inmate jobs at Menard: “I was an inmate kitchen worker. I worked in the barber shop. I worked – I think I worked in the general store or cold storage, one of those. Worked in the hospital. Worked in the gym, arts and crafts shop. I had a runners club, worked for the runners club.” Id. at 217. Also, during his confinement at Menard Knox received vocational training as a barber and later, while working in the barber shop at Menard, cut the hair of both inmates and correctional personnel. See id. at 217-18. Concerning Bivens, like Sorrentino and Knox he was deemed a low-aggression inmate at Menard before his transfer to Tamms and was housed in what he termed Menard’s “honor dorm.” Doc. 478 (Bivens Testimony) at 160-61. During his confinement in IDOC custody, Bivens, a high school graduate, earned both an associate’s degree, and a bachelor’s degree. See id. at 144-45. Bivens also received vocational training in building maintenance. See id. at 146. Bivens has certificates as a paralegal, in commercial art, in counseling for substance abuse, in family assistance, and in literacy training. See id. While Bivens was confined at Pontiac Correctional
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Center (“Pontiac”) before his transfer to Menard, Bivens counseled other inmates and their families about substance abuse issues and helped to create a literacy tutoring program at Pontiac. See id. at 146-48. Bivens also worked as a word processor and an inmate law clerk at Pontiac. See id. at 148. After Bivens was transferred from Pontiac to Menard, he continued to work as an inmate law clerk. See id. at 161. Although Bivens’s disciplinary record reflects 220 incidents (at trial some evidence was introduced that there in fact had been 102), as with Knox a careful review of Bivens’s disciplinary record on direct examination disclosed that Bivens’s disciplinary history before his placement at Tamms was less formidable than it might appear at first blush: forty-three days in disciplinary segregation; occasional losses of commissary privileges and yard privileges; temporary demotions to disciplinary grade C; several verbal reprimands; and an incident in which Bivens was required to make restitution of $1.37 for eating a meal tray that did not belong to him. See id. at 153-59. See also Doc. 478 (Testimony of Michael Neal) at 103-04. Bivens testified that he had never spent thirty days continuously in disciplinary segregation and that he was never placed in disciplinary segregation at Menard. See Doc. 478 (Bivens Testimony) at 159, 165. As to Plaintiffs’ Exhibit 51, the document specifically challenged by Neal and Page, the Court admitted it as some evidence that Bivens may or may not have been in a prison gang when he was transferred to Tamms, and the jury was entitled to give the evidence such weight as they thought it deserved. In light of all the evidence Bivens put on at trial about his disciplinary record, briefly recounted above, the Court does not believe the document was accorded undue weight by the jury or was decisive as to the jury’s finding on liability.
Finally, with respect to Burrell, like Sorrentino, Knox, and Bivens Burrell was housed in a low-aggression cellhouse at Menard before his transfer to Tamms. See Doc. 478 (Testimony of
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Roosevelt Burrell) at 176. During his time at Menard Burrell held a responsible job in the clothing room preparing civilian clothes for inmates set to be released from prison. See id. at 176-77. Burrell testified that the clothing room “was one of the best jobs to have at Menard, and the job that was mostly sought.” Id. at 177. Burrell testified that he also worked at the inmate laundry at Menard, which he called “another good job sought after.” Id. It appears that at approximately the very time Burrell was transferred to Tamms he was offered two highly desirable job assignments, one working in the inmate commissary and the other working in the officers’ commissary; apparently these job assignments were offered to Burrell by Page personally. See id. at 178-79, 188-89. At the time of his transfer to Tamms Burrell was classified as a medium-security inmate. See id. at 189. Also, Burrell conceded that he was a member of the Vice Lords prison gang, but testified that the total amount of time he had served in disciplinary segregation for gang-related infractions of prison discipline was less than one hundred days. See id. at 189-90.
The Court notes that virtually none of the evidence that Sorrentino, Knox, Bivens, and Burrell put on regarding their disciplinary histories was objected to at trial, and it would be perfectly correct for the Court to conclude that Neal and Page waived objections to the evidence. See Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir. 2006) (citing United States v. Hack, 205 F.2d 723, 727 (7th Cir. 1953)) (“When a defendant does not object to the admission of evidence during the trial, the objection is waived and cannot be raised for the first time in a motion for new trial or on appeal.”). However, even assuming for the sake of argument that Neal and Page preserved objections to this evidence, the Court sees nothing improper in the evidence. Sorrentino, Knox, Bivens, and Burrell did not attempt to challenge the validity of their disciplinary tickets and instead merely put those tickets into context for the jury to show that, the representations of Neal and Page
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notwithstanding, they were not the sort of inmates who, based on gang affiliation and disciplinary history, should have been assigned to the supermax prison at Tamms. It was of course the burden of Sorrentino, Knox, Bivens, and Burrell to show that the stated reasons for their assignment to Tamms were pretextual. See Vukadinovich v. Board of Sch. Trs. of N. Newton Sch. Corp., 278 F.3d 693, 699 (7th Cir. 2002) (the plaintiff in a retaliation case “bears the burden of persuasion to show that the defendants’ proffered reasons were pretextual and that discrimination was the real reason” that the defendants took an adverse action against him or her). Where there is no direct evidence of pretext, the plaintiff must prove pretext indirectly “by showing that the defendants’ proffered justifications were not worthy of credence.” Id. at 700. In order to do this, the plaintiff “must show that 1) the defendants’ justifications have no basis in fact, 2) the justifications were not the real reason for [taking adverse action against] him, or 3) the justifications were insufficient to warrant the [adverse action].” Id. See also Brogan v. Chicago Sch. Reform Bd. of Trs., No. 01 C 4216, 2003 WL 21212606, at *4 (N.D. Ill. May 22, 2003) (to show that the defendants’ stated non-retaliatory justification for a retaliatory action is pretextual, a plaintiff must furnish evidence from which “a rational finder of fact could infer that the defendants’ stated reasons for [a retaliatory action] . . . were lies.”).
The evidence put on at trial by Sorrentino, Knox, Bivens, and Burrell tended to show that the justifications for their transfer to Tamms were insufficient and therefore pretextual. It was incumbent on the inmates to show that retaliation was the cause of their transfer to Tamms by producing evidence that they were well-behaved prisoners who held responsible jobs and whose disciplinary records were not substantially worse than those of the great mass of IDOC inmates. At trial Neal and Page sought to paint Sorrentino, Knox, Bivens, and Burrell as highly dangerous
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men; the inmates, in turn sought to paint themselves as no worse than the average felon. The jury found that the four inmates in fact were no more (or less) than average felons. It is possible that, had the Court been sitting as the trier of fact, it might have drawn rather different inferences from the evidence than the jury did, but the Court is not sitting as the trier of fact, nor does it have the power to second-guess the jury’s findings of fact. The Court cannot conclude that a rational trier of fact, in light of the evidence at trial, could not have found that placement of Sorrentino, Knox, Bivens, and Burrell at Tamms was not warranted by their disciplinary records and that the stated reasons for their transfer to Tamms were false and a pretext for retaliation. Accordingly, the Court rejects the first ground asserted by Neal and Page for a judgment notwithstanding the verdict or a new trial, that Sorrentino, Knox, Bivens, and Burrell should not have been permitted to present evidence about their disciplinary histories at trial.
3. Neal’s Knowledge of Protected Activity by Sorrentino, Knox, Bivens, and Burrell
The Court turns to the second ground for judgment notwithstanding the verdict or a new trial asserted by Neal and Page, namely, that Sorrentino, Knox, Bivens, and Burrell failed to present evidence that Neal was aware of their protected activity. As already has been discussed, to prevail on a claim of retaliation for the exercise of First Amendment rights, a plaintiff must show that a defendant was aware of the plaintiff’s protected activity and retaliated against the plaintiff for engaging in such activity. The matter of Neal’s knowledge of complaints by Sorrentino, Knox, Bivens, and Burrell about the conditions of their confinement at Menard requires the Court to examine closely the record and the transcript of the trial. The Court’s review of the record and the trial transcript discloses that Sorrentino, Knox, Bivens, and Burrell presented sufficient evidence of
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Neal’s awareness of their protected activity to sustain the jury’s verdict in their favor. While it is quite possible that the Court, had it been sitting as the trier of fact, might have weighed the evidence differently, the Court cannot say that the evidence of Neal’s knowledge of protected activity was such that no rational factfinder could have found against him.
Critical to Neal’s argument that he was unaware of protected activity by Sorrentino, Knox, Bivens, and Burrell is certain testimony Neal gave that, as an IDOC deputy director with responsibility for the IDOC district in which both Menard and Tamms are located, he had no involvement with the grievance process at the prisons in the district:
Q. Now, did you ever become aware that Mr. Bivens had filed grievances regarding his stay at Menard? A. That Mr. Bivens personally filed grievances you’re asking me? Q. Yes, sir. Did you ever become aware of that? A. That would not be something I would be aware of on a day-to-day basis, the number of grievances that inmates filed in the Southern District of Illinois. Q. Okay. So you wouldn’t know? A. No. Doc. 478 (Neal Testimony) at 104. While it may be the case that Neal was not personally involved in the IDOC grievance process, there certainly were other ways for Neal to learn about such grievances. Neal testified that in his capacity as a deputy director he traveled a great deal overseeing operations at the prisons in his district and that he visited Menard at least once a week. See id. at 70. In the course of one of Neal’s numerous visits to Menard, Page, the warden, doubtless could have apprised him of the activities of Sorrentino, Knox, Bivens, and Burrell. In fact, it was Sorrentino’s specific testimony at trial that in his, Sorrentino’s, presence, Page informed Neal about Sorrentino’s complaints regarding conditions at Menard. According to Sorrentino, starting in early 1996 when Menard began to be put periodically on lockdown
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(essentially confinement of inmates in their cells twenty-four hours a day, much like at Tamms),
Sorrentino began writing letters to politicians and newspapers complaining about the lockdown
conditions. See Doc. 478 (Sorrentino Testimony) at 32-37. According to Sorrentino, shortly after
he began writing the letters, he was confronted by Neal and Page:
Q. All right. Now, after writing all of those letters, did you have any conversation with either Mr. Page or Mr. Neal about your letter writing? A. Yes. Q. Can you tell us, first of all, where that occurred? A. Regarding the letters to the politicians, it was in the kitchen. Q. This is in the officers kitchen where you were working? A. Officers kitchen, yeah. Right outside by the fryers. Q. Okay. And do you remember a date for this conversation? A. Mid ‘96 maybe, maybe a little later. Somewhere in that area. Q. Shortly after you wrote the letters? A. Yes. Q. And anybody present other than you and Mr. Page? A. Mr. Neal. Q. Okay. Anybody else? A. No. Q. And what did Mr. Page say to you, and what did you say to him? A. He approached me. And he pointed at Neal and then pointed at me and said, This is the guy that’s writing the letters to politicians in general.
Id. at 37-38. This testimony, if credited by the jury (and it appears that the jury did credit it),
establishes that Neal had personal knowledge about at least a portion of Sorrentino’s activities
challenging the conditions of confinement at Menard.
Like Sorrentino, Knox also gave testimony showing Neal’s knowledge of one of Knox’s
grievances. Knox testified that in March 1996, while locked in his cell at Menard, he was
accidentally shot by a guard; it appears that a badly-aimed shotgun blast fired by a guard in Knox’s
cellhouse wounded Knox and eight other prisoners, together with a correctional officer. See
Doc. 478 (Knox Testimony) at 227-29. According to Knox, shortly after the shooting incident, both
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Neal and Page met with Knox and tried to dissuade him from pursuing a claim for compensation for
his injury, telling him it was not in his, Knox’s, interest to do so:
Q. Okay. And what conversation ensued between you, Mr. Page and Mr. Neal? A. Okay. Pretty much, you know, they was trying to figure out what was going on, who all was involved in the incident. And basically at some point, you know, not only myself, other prisoners was basically saying, You know, we want to be compensated for getting shot, you know. And directly I talked to Page and Neal about this matter. Q. And what was their response? A. They pretty much – they was saying not to make a big issue out of this. You know what I’m saying? It really wasn’t in my best interest, you know. And they didn’t compensate. IDOC wasn’t into compensation. You know, pretty much not to make a big issue out of being shot. Q. Well, what wasn’t in your best interest? A. Trying to seek compensation. Q. Did you take their advice and drop the matter? A. No. Because the other prisoners that was shot also, you know, we all felt, you know, that we wanted to be compensated for our injuries. Q. Okay. A. And at some point we hired a counselor, and he told us to file our grievances, do whatever we had to do on the administrative level. And he was going to file a claim for us in court. Q. And did you, in fact, file grievances on this matter? A. Yes. Q. And did you file a notice with the Court of Claims? A. Correct. Q. And ultimately you filed a lawsuit in the Court of Claims? A. Correct.
Id. at 230-31. It appears that the jury credited this evidence showing Neal’s personal knowledge of
Knox’s grievance with respect to his injury.
In addition to Knox’s direct evidence that Neal and Page disapproved of Knox’s efforts to
secure damages for the injury he received in the March 1996 shooting incident at Menard, there was
also evidence of causation based on a suspicious chronology of events. Knox testified that he was
transferred to Tamms on August 24, 1998, just twelve days after the first hearing in the lawsuit Knox
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had filed in the Illinois Court of Claims regarding the wound he received in the March 1996 incident. See id. at 233. The jury doubtless was impressed by the fact that the transfer followed so closely upon the hearing, giving rise to an inference that the hearing was the cause of the transfer. See Sitar v. Indiana Dep’t of Transp., 344 F.3d 720, 728 (7th Cir. 2003) (noting that temporal proximity of an adverse action to a protected activity is proof of causation); Lalvani v. Cook County, Ill., 269 F.3d 785, 790 (7th Cir. 2001) (“When an adverse . . . action follows close on the heels of protected expression, and the plaintiff can show that the person who decided to impose the adverse action knew of the protected conduct, the causation element of the prima facie case [of retaliation] is typically satisfied.”); Sanchez v. Henderson, 188 F.3d 740, 747 n.4 (7th Cir. 1999) (citing Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir. 1994)) (“[S]uspicious timing can raise an inference of discrimination sufficient to satisfy the causation element of the prima facie case[.]”); Hunt-Golliday v. Metropolitan Water Reclamation Dist. of Greater Chicago, 104 F.3d 1004, 1011 (7th Cir. 1997) (“Suspicious timing does constitute circumstantial, or indirect, evidence to support a claim of intentional discrimination or disparate treatment.”).
Neither Bivens nor Burrell presented direct evidence at trial of Neal’s knowledge of their protected activity. However, there is circumstantial evidence in support of their claims. As counsel for Sorrentino, Knox, Bivens, and Burrell point out, the fact that Neal and Page discussed the grievances and complaints of inmates like Sorrentino and Knox gives rise to an inference that they also discussed the grievances and complaints of other Menard inmates. Similarly, the fact that Neal and Page manifested disapproval of Sorrentino’s efforts to publicize conditions at Menard under lockdown and Knox’s efforts to secure compensation for his accidental shotgun wound at Menard supports an inference that Neal and Page disapproved of similar activities by other inmates at
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Menard, such as Bivens and Burrell. Finally, at trial counsel for Sorrentino, Knox, Bivens, and Burrell put into evidence, as Plaintiffs’ Exhibit 3, various lists of IDOC inmates who were slated to be transferred to Tamms that had been prepared by IDOC personnel, subject to final approval of transfer by Neal. At trial, Neal testified that the process of selecting inmates for placement at Tamms began about eighteen months to two years before the supermax prison was scheduled to open in 1998. See Doc. 478 (Neal Testimony) at 72-73. The inmates on the lists put into evidence at trial were deemed to be appropriate for placement at the supermax prison on the basis of factors like their history of escape, assaulting staff, engaging in dangerous disturbances, having influence in activities of prison gangs, engaging in non-consensual sexual conduct, and possessing weapons. See id. at 78-79. It was stipulated at trial that, prior to their transfer to Tamms, neither Bivens nor Burrell were ever listed among the inmates deemed appropriate for placement at Tamms identified in Plaintiffs’ Exhibit 3. See id. at 84-87. The jury could infer from this fact that Bivens and Burrell were transferred to Tamms for reasons other than the criteria for transfer identified above (escape, etc.), which is to say, of course, for an illegitimate, retaliatory reason. In sum, the Court finds that Sorrentino, Knox, Bivens, and Burrell presented adequate evidence of Neal’s knowledge of their protected activity. Again, the Court notes that, had it been sitting as the trier of fact on the inmates’ retaliation claims, it might have drawn different inferences than the jury did from the evidence adduced at trial. However, the Court cannot say that the evidence presented, combined with all reasonable inferences permissibly drawn, is legally insufficient to support the verdict when viewed in the light most favorable to Sorrentino, Knox, Bivens, and Burrell, or that no rational jury could have returned a return a verdict for the four inmates. Therefore, the Court will not disturb the verdict of the jury for Sorrentino, Knox, Bivens, and Burrell.
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4. Qualified Immunity As a final matter, the Court takes up the issue of whether Neal and Page are entitled to qualified immunity. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818. See also Chan v. Wodnicki, 123 F.3d 1005, 1008 (7th Cir. 1997); Lenea v. Lane, 882 F.2d 1171, 1176 (7th Cir. 1989) (citing Conner v. Reinhard, 847 F.2d 384, 387 (7th Cir. 1988)). To defeat a qualified immunity defense, a plaintiff bears the burden of demonstrating that “the legal norms allegedly violated by the defendant were clearly established at the time of the challenged actions or, . . . the law clearly proscribed the actions the defendant . . . took.” Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). See also Forman v. Richmond Police Dep’t, 104 F.3d 950, 957-58 (7th Cir. 1997) (“Once a defendant has raised a qualified immunity defense, the plaintiff bears the burden of demonstrating the violation of a clearly established right.”). In determining whether clearly established legal norms existed at the pertinent time, a court may refer “to closely analogous case law, decided before the public official acted or failed to act. Of course, in analyzing those cases, precise factual congruity is not required.” Abel v. Miller, 824 F.2d 1522, 1533 (7th Cir. 1987) (citations omitted). “The words ‘clearly established . . . constitutional rights’ may not be used to read the defense of immunity out of federal tort law by the facile expedient of stating constitutional rights in the most general possible terms . . . . The right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful.” Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir. 1986) (quoting Harlow, 457 U.S. at 818). “[T]he right the official is alleged to have
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violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Here the gist of the argument for qualified immunity from damages seems to be that, because Neal and Page claim that Sorrentino, Knox, Bivens, and Burrell were transferred to Tamms on the basis of legitimate penological concerns like gang affiliation and poor disciplinary records, the IDOC officials could not reasonably have been expected to be held liable to the inmates for unlawful retaliation. However, this is mere question-begging, of course. The jury found, on the basis of sufficient evidence, that the true motivation for the transfer of Sorrentino, Knox, Bivens, and Burrell was to punish them for filing grievances and lawsuits and otherwise challenging the conditions of their confinement. Under the precedent of this Circuit, as already has been noted, prison inmates have a clearly established right not to be retaliated against for exercising their First Amendment rights. Accordingly, the claim of qualified immunity is rejected.
III. CONCLUSION The motion for a judgment as a matter of law or, in the alternative, for a new trial brought by Neal and Page (Doc. 554) is DENIED. IT IS SO ORDERED. DATED: October 12, 2010
/s/ G. Patrick Murphy G. PATRICK MURPHY United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) Consolidated with: ) CIVIL NO. 00-708-GPM )

MEMORANDUM AND ORDER

MURPHY, District Judge:

I. INTRODUCTION

This matter is before the Court on a motion for a stay of the judgment in this case brought

by Defendants Donald Snyder, Odie Washington, Michael V. Neal, George DeTella,

Michael O’Leary, Dwayne Clark, Jerry Gilmore, Rodney Ahitow, Roger Cowan, Thomas Page,

Roger Walker, Salvador Godinez, Guy Pierce, Barbara Hurt, Rick Orr, Ronald Meek, Jason Garnett, Deirdre Battaglia, Eddie Jones, Don Hulick, and Roger Zimmerman (Doc. 563).1 This case is a class

action concerning the adequacy, under the Due Process Clause of the Fourteenth Amendment to the

Constitution, of the procedures employed by the IDOC to place inmates in IDOC custody at the

closed maximum security prison (“supermax prison”) at Tamms Correctional Center (“Tamms”) in

1. In point of fact, the motion purports to be brought by Neal, Page, and Michael Randle. It seems more logical to the Court to construe the motion as being brought by all of the current Defendants in the case. Michael Randle is the former Director of the Illinois Department of Corrections (“IDOC”), and therefore it is difficult to see why he should be a party to this case. In any event, Randle has never been formally substituted as a Defendant pursuant to Rule 25 of the Federal Rules of Civil Procedure.
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Tamms, Illinois. The class representatives are: Aryules Bivens; Larry Brown; Finner Bryant; Roosevelt Burrell; Mary Chapman, as the administrator of the estate of Marcus Chapman; Gary Clark; Leverne Clayton; Maurice Coleman; Kennard Combs; Robert Felton; Larry Foutch; Larry Gambrell; John Gill; Timothy Hall; George Harper; Eugene Horton; Michael Johnson; Ted Knox; William Lasley; Alex Muller; Vincent Reyna; Edward Rodriguez; Vincente Rodriguez; Tyshawn Ross; Anibal Santiago; Joe Sorrentino; Michael Sparling; Armando Tinajero; Alejandro Villazana; Mark Von Perbandt; and Robert Westefer.
On July 20, 2010, the Court entered its findings of fact and conclusions of law and issued a permanent injunction as to the class-action claims in this case. In its findings of fact and conclusions of law, the Court found that conditions of confinement in the supermax prison at Tamms comprise an atypical and significant hardship in relation to the ordinary incidents of prison life such that inmates in IDOC custody have a Due Process liberty interest in avoiding confinement in the supermax prison at Tamms. See Westefer v. Snyder, No. CIV 00-162-GPM, CIV 00-708-GPM, 2010 WL 2836800, at *29 (S.D. Ill. July 20, 2010). The Court found further that existing procedures for placing inmates in IDOC custody at Tamms are not adequate to protect the liberty interest of such inmates in avoiding confinement in the supermax prison. See id. at *52. The Court reviewed the so-called “Ten-Point Plan” (hereinafter, “the Ten-Point Plan” or “the Plan”) developed by then-IDOC Director Michael Randle, a system of reforms concerning the supermax prison at Tamms. In particular the Court was concerned with Point One of the Plan, which calls for all inmates transferred to Tamms to receive a transfer review hearing regarding their placement at Tamms shortly after their arrival at the supermax prison. See id. at **44-46. The Court adopted Point One of the Ten-Point Plan as its grant of injunctive relief with respect to the class-action
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claims in this case, subject to two fairly minor revisions: first, that all inmates under consideration for placement at Tamms receive advance notice in writing forty-eight hours before their transfer review hearing of the reason that they are being considered for placement at the supermax prison; and second, that all inmates confined at Tamms in disciplinary segregation as of the date of entry of the Court’s judgment on the class-action claims in this case must receive a transfer review hearing within ninety days of entry of the judgment. See id. at **52-53. Defendants now request a stay of execution of the Court’s judgment pending an appeal therefrom. The motion has been fully briefed by the parties, and the Court rules as follows.
II. ANALYSIS As an initial matter, the Court notes the standard under which it must evaluate the instant request for a stay of the Court’s judgment pending appeal. Under Rule 62 of the Federal Rules of Civil Procedure, a district court may stay an injunction pending appeal. See Fed. R. Civ. P. 62(c). See also Fed. R. App. P. 8(a) (providing that, where a stay of an injunction pending appeal has been denied by a district court, the request for a stay may be renewed in the appellate court). Such a stay is considered “extraordinary relief” for the granting of which the moving party bears a “heavy burden” of proof. Winston-Salem/Forsyth County Bd. of Educ. v. Scott, 404 U.S. 1221, 1231 (1971) (Burger, C.J., in chambers) (denying a stay of a school desegregation order). The decision concerning a stay pending appeal is akin to the equitable decision to grant or deny preliminary injunctive relief. Thus, in determining whether or not to issue a stay of an injunction pending an appeal, a court should consider: (1) whether the appellant has shown a likelihood of success on appeal; (2) whether the appellant has demonstrated a likelihood of irreparable harm if a stay is not granted; (3) whether a stay would substantially harm other parties to the litigation; and (4) the public
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interest. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (Rehnquist, C.J.) (vacating the judgment of a court of appeals denying an application for a stay pending appeal); Glick v. Koenig, 766 F.2d 265, 269 (7th Cir. 1985) (affirming a denial of a stay pending appeal); Indianapolis Colts v. Mayor & City Council of Baltimore, 733 F.2d 484, 486 (7th Cir. 1984) (a stay pending appeal was granted in part to allow parallel litigation to proceed and denied in part to allow a professional football team to prepare to play in a new city); Adams v. Walker, 488 F.2d 1064, 1065 (7th Cir. 1973) (a stay pending appeal is “an extraordinary remedy” and in determining whether to grant such a stay a court must consider whether movants are “likely to prevail on the merits of [their] appeal” and, in addition, “(a) whether movants have shown that unless a stay is granted they will suffer irreparable injury[,] (b) whether a stay would substantially harm other parties to the litigation[,] and (c) where lies the public interest?”). Cf. Meridian Mut. Ins. Co. v. Meridian Ins. Group, Inc., 128 F.3d 1111, 1114 (7th Cir. 1997) (in granting or denying preliminary equitable relief, a court must weigh whether the movant has shown a likelihood of success, whether the movant has demonstrated a likelihood of irreparable harm if relief is not granted, whether the requested injunction, if granted, would substantially harm other parties to the case, and the public interest).
When weighing the factors of likelihood of success on the merits, the balance of harms, and the public interest, a court “seek[s] at all times to ‘minimize the costs of being mistaken.’” Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992) (quoting American Hosp. Supply Corp. v. Hospital Prods. Ltd., 780 F.2d 589, 593 (7th Cir. 1986)) (vacating a district court’s denial of a preliminary injunction). See also Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 388 (7th Cir. 1984) (in determining whether to grant or deny an injunction and weighing the movant’s likelihood of success on the merits, the balance of harms, and the public interest, “the task for the
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district judge . . . is to minimize errors: the error of denying an injunction to one who will in fact (though no one can know this for sure) go on to win the case on the merits, and the error of granting an injunction to one who will go on to lose.”). If the threat of irreparable harm is grave, a stay may be appropriate even if the appellant’s prospects of success on the merits are not bright. See Books v. City of Elkhart, 239 F.3d 826, 828 (7th Cir. 2001) (Ripple, J., in chambers) (granting a stay pending appeal where both sides agreed a stay was appropriate). “The granting or denying of . . . motions [for equitable relief] has traditionally been left to the sound discretion of the district judge.” Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1434 (7th Cir. 1986). See also Robbins v. Pepsi-Cola Metro. Bottling Co., 637 F. Supp. 1014, 1019 (N.D. Ill. 1986) (Rule 62(c) “permits a district court, in its discretion, to stay the enforcement of an order granting injunctive relief.”); 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2904 (2d ed. 1987 & Supp. 2010) (“An application under Rule 62(c) . . . necessarily goes to the discretion of the court.”) (collecting cases).
Turning then first to whether Defendants have shown a likelihood of success on the merits, the Court agrees with a sister federal trial court in this Circuit that said,
The first factor, “likelihood of success,” presents the most conceptual difficulty. Obviously, we think an appeal will probably fail; we have reviewed our opinion and stand by it. Had we thought an appeal would be successful, we would not have ruled as we did in the first place. But a party seeking a stay need not show that it is more than 50% likely to succeed on appeal; otherwise, no district court would ever grant a stay. It is enough that the [movant] have a substantial case on the merits. Thomas v. City of Evanston, 636 F. Supp. 587, 590 (N.D. Ill. 1986). That being said, the Court does not believe that Defendants have shown that they have a substantial case on the merits. It may very well be that the United States Court of Appeals for the Seventh Circuit will modify the relief granted
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by this Court, and indeed the Court welcomes the guidance of that court as to the novel and difficult constitutional questions presented by the class-action claims in this case. Nevertheless, the Court sees absolutely no likelihood that its most crucial finding, that conditions of confinement in the supermax prison at Tamms create a liberty interest in avoiding confinement there, will be overturned. Whatever may happen in this case on appeal, there is simply no way that matters are going to return to the status quo that prevailed before the decisions of the Supreme Court of the United States and the Seventh Circuit Court of Appeals in, respectively, Wilkinson v. Austin, 545 U.S. 209 (2005), and Westefer v. Snyder, 422 F.3d 570 (7th Cir. 2005). Henceforth, all inmates under consideration for placement in the supermax prison at Tamms are going to have to receive notice and an opportunity to be heard before they are assigned to the supermax prison. Moreover, the Court believes that, whatever the final form that equitable relief in this case may take, it necessarily will resemble the relief already granted by the Court: that is to say, an inmate under consideration for placement at Tamms will be given a hearing regarding the propriety of such placement, together with notice of the reason he is being considered for Tamms placement in advance of the hearing. The Court concludes that Defendants have not shown that they have a likelihood of success on the merits on appeal.
With respect to the balance of harms, Defendants contend that they will be irreparably harmed if IDOC personnel are required to conduct transfer review hearings as ordered by the Court. Again, the Court does not agree. In its order on classwide equitable relief, the Court endeavored to craft a remedy that was narrowly tailored to relieve the constitutional defects in IDOC procedures for placing inmates in the supermax prison at Tamms. See Westefer, 2010 WL 2836800, at *48 (citing 18 U.S.C. § 3626(a)(1)(A)). Correspondingly, the relief ordered by the Court is, in essence,
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merely what Defendants’ own witnesses in this case informed the Court is now IDOC policy. For example, former IDOC Director Randle testified that it is now IDOC policy for all inmates transferred to Tamms to receive a transfer review hearing shortly after their arrival at the supermax prison. See id. at **44-46. Randle testified also that, in the space of a little less than three months, IDOC personnel were able to review the jackets of 133 long-term inmates of the supermax prison at Tamms, and to order forty-eight of those inmates to be transferred out of the supermax prison. See id. at *47. Although Randle is no longer the Director of the IDOC, the Ten-Point Plan was developed at the behest of, and approved by, Patrick Quinn, the Governor of Illinois. See id. at **2-3, *20. The Court has no reason to suppose that the Plan is no longer the policy of the IDOC. Also, the population of Tamms generally is about 250 inmates at any given time. See id. at **5-6. Thus, the Court’s order that inmates newly arrived at Tamms and inmates housed at Tamms in disciplinary segregation when the Court’s judgment in this case was entered receive transfer review hearings affects something less than one hundred inmates. Where IDOC personnel were able to review the jackets of over half the inmates at Tamms in less than three months, the Court fails to see why IDOC personnel cannot review the transfers of something less than one hundred Tamms inmates in approximately the same period of time. In sum, the Court does not believe that conducting transfer review hearings for fewer than one hundred inmates is so onerous as to warrant staying execution of the Court’s judgment.
Moreover, the harm to Defendants if the Court’s judgment is not stayed does not outweigh the likely harm to Plaintiffs and the class if the stay is granted. Given that the IDOC recently found reason to transfer forty-eight long-term inmates out of Tamms, the Court believes that there is a high likelihood that, if IDOC performs the transfer review hearings that the Court has ordered, at least
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some inmates whose transfers are reviewed pursuant to the Court’s order will be found to be eligible to be transferred out of the supermax prison. In the Court’s view, it is far more burdensome to an inmate who already has served a lengthy term of confinement in the supermax prison at Tamms and who could be transferred out of the supermax prison to remain in confinement there while Defendants pursue an appeal from the Court’s judgment in this case than it is for IDOC personnel to perform the transfer review hearings as ordered. See Lagerstrom v. Kingston, 463 F.3d 621, 622, 623 (7th Cir. 2006) (alluding to the “draconian” conditions of confinement at a “[s]upermax” prison); Westefer, 422 F.3d at 573 (“Tamms is the highest security prison in Illinois. IDOC designed the conditions there to be harsh, so that the threat of being transferred to Tamms would deter prisoners throughout the system from disobeying prison rules.”); Westefer, 2010 WL 2836800, at **5-18 (quoting Westefer, 422 F.3d at 589) (making detailed findings of fact with respect to conditions of confinement in the supermax prison at Tamms and concluding that long-term confinement there amounts to “virtual sensory deprivation”).
Finally, with respect to the public interest, as Defendants point out there is a public interest in conserving state resources. However, this interest actually is furthered by requiring the IDOC to perform transfer review hearings as ordered, because every inmate transferred out of Tamms represents a significant saving of expenses for taxpayers, given the extraordinarily high cost of confining inmates in the supermax prison at Tamms. See Westefer, 2010 WL 2836800, at *51 (then-IDOC Director Randle testified that it costs Illinois taxpayers between $53,000 and $57,000 per year to confine a prisoner in the supermax prison at Tamms, as opposed to approximately $23,000 per year on average to house an IDOC inmate at a lower-security prison in the IDOC system). Also, there is a public interest in ensuring that state agencies comply with the law by,
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for example, employing constitutionally adequate procedures when placing inmates in supermax confinement. The Constitution of the State of Illinois provides specifically that the Governor (and, by necessary inference, his or her appointees in the executive branch of the state government) “shall be responsible for the faithful execution of the laws.” Illinois Const. art. 5, § 8. See also Kremers v. Coca-Cola Co., Civil No. 09-333-GPM, 2010 WL 1707061, at *10 (S.D. Ill. Apr. 27, 2010) (“[I]n general the public policy of the State of Illinois is gleaned from its statutes, judicial decisions, constitution, and the practices of its government officials.”) (collecting cases). The Court concludes that Defendants have failed to show grounds for a stay of the Court’s judgment pending an appeal therefrom.2
III. CONCLUSION Defendants’ motion for a stay of the judgment in this case pending appeal (Doc. 563) is DENIED. Defendants may renew their request for a stay of the Court’s judgment pending an appeal therefrom in the Seventh Circuit Court of Appeals. IT IS SO ORDERED. DATED: October 12, 2010
/s/ G. Patrick Murphy G. PATRICK MURPHY United States District Judge
2. To the extent Defendants request a stay of the judgment on the jury verdict returned in favor of Plaintiffs Sorrentino, Knox, Bivens, and Burrell against Defendants Neal and Page, the Court notes that Neal and Page have not even begun to make the requisite showing for a stay of the judgment and, therefore, any such stay will be denied.
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) Consolidated with: ) CIVIL NO. 00-708-GPM )

MEMORANDUM AND ORDER

MURPHY, District Judge:

This matter is before the Court on the “Objection to the Memorandum and Order of Judge

G. Patrick Murphy” brought by Milton Smith, construed by the Court as a motion to intervene

(Doc. 596). Smith is a prisoner in the custody of the Illinois Department of Corrections (“IDOC”)

who currently is serving a sentence of sixty years’ imprisonment for murder at the closed maximum

security prison (“supermax prison”) at the Tamms Correctional Center (“Tamms”). On at least three

prior occasions actions brought by Smith seeking redress from a governmental entity or officer or

employee of a governmental entity have been dismissed pursuant to 28 U.S.C. § 1915A(b)(1) as

frivolous, malicious, or failing to state a claim upon which relief may be granted. See, e.g., Smith v.

Peters, Civil No. 95-432-WDS (S.D. Ill. July 25, 1995) (order dismissing case as frivolous); Smith v.

Welborn, Civil No. 99-494-GPM (S.D. Ill. Sept. 27, 2000) (order dismissing case for failure to state

a claim upon which relief may be granted); Smith v. Stephens, Civil No. 99-533-GPM

(S.D. Ill. Dec. 18, 2001) (order dismissing case as frivolous). Accordingly, pursuant to the so-called

“three-strikes” provision of 28 U.S.C. § 1915, Smith cannot proceed in forma pauperis (“IFP”) in

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the federal courts without full prepayment of the applicable filing fees unless he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g); Taylor v. Watkins, 623 F.3d 483, 484 (7th Cir. 2010).
In 2000, when these consolidated cases were filed, Smith was a named Plaintiff in Westefer v. Snyder, Civil No. 00-162-GPM (S.D. Ill. filed Mar. 7, 2000). Pursuant to 42 U.S.C. § 1983, Smith alleged on behalf of himself and a proposed class of prisoners in IDOC custody that conditions of confinement at Tamms are such as to create a Due Process liberty interest in avoiding confinement there, and that the IDOC failed to give Smith and other IDOC prisoners notice and an opportunity to be heard before placing them at the supermax prison, in violation of the Fourteenth Amendment. Smith alleged also that he had been transferred from the Menard Correctional Center to the supermax prison at Tamms in retaliation for exercising his First Amendment right to file grievances and lawsuits challenging the conditions of his confinement. On October 12, 2000, Smith filed a notice of voluntary dismissal of his claims in Westefer without prejudice.1 It appears from the record and the Court’s review of its own electric docket that in 2007 Smith attempted to reassert the Due Process and First Amendment claims he had alleged in Westefer in a new action in this Court that was assigned to United States District Judge Michael J. Reagan, Smith v. Walker, Civil No. 07-340-MJR (S.D. Ill. filed May 14, 2007). However, in the period from the time Smith was voluntarily dismissed as a party to Westefer to the time Smith filed Case No. 07-340-MJR, Smith had picked up his third “strike” in Case No. 99-533-GPM, which, as already has been noted,
1. Although it appears from the docket of the Westefer case that the Court construed Smith’s notice of voluntary dismissal as a motion for voluntary dismissal, in fact at the time Smith dismissed his claims in Westefer he had the right to do so by notice, as neither an answer nor a motion for summary judgment yet had been filed in Westefer. See Fed. R. Civ. P. 41(a)(1)(A)(i).
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was dismissed as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) on December 18, 2001. Accordingly, on May 14, 2007, District Judge Reagan denied Smith’s request for leave to proceed IFP in Case No. 07-340-MJR, finding that Smith was not under imminent danger of serious physical injury and ordering Smith to pay the applicable $350 filing fee in full within fifteen days. On August 15, 2007, after having granted Smith an extension of time to pay the filing fee in Case No. 07-340-MJR, District Judge Reagan dismissed the case by reason of Smith’s failure to pay the filing fee as he had been ordered to do.
Smith now demands to be reinstated as a named Plaintiff in the Westefer case, apparently on the theory that, once having been a party to the case, he remains a party. The Court does not agree. The legal effect of Smith’s voluntary dismissal of his claims in Westefer by notice is to leave those claims as if they “had never been filed.” Beck v. Caterpillar Inc., 50 F.3d 405, 407 (7th Cir. 1995) (citing Fed. R. Civ. P. 41(a)). Accord LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir. 1976) (a voluntary dismissal without prejudice “put[s] the plaintiff in a legal position as if he had never brought the [dismissed] suit”). Still more to the point, the Due Process and First Amendment claims that Smith alleged in Westefer and that Smith reasserted in Case No. 07-340-MJR are now barred by claim preclusion. District Judge Reagan dismissed Case No. 07-340-MJR with prejudice by reason of Smith’s failure to comply with the judge’s order to pay the filing fee in the case. See Fed. R. Civ. P. 41(b); Ladien v. Astrachan, 128 F.3d 1051, 1056-57 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir. 1994). A subsequent appeal by Smith from that dismissal likewise was dismissed by the United States Court of Appeals for the Seventh Circuit as a result of Smith’s failure to pay the appellate filing fee, and Smith pursued no further relief in the case. In general, of course, a judgment on the merits in
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a case is claim-preclusive in an earlier-filed case on the same claim. See Blair v.
Equifax Check Servs., Inc., 181 F.3d 832, 838 (7th Cir. 1999); Carr v. CIGNA Sec., Inc., 95
F.3d 544, 546 (7th Cir. 1996); Unger v. Consolidated Foods Corp., 693 F.2d 703, 705
(7th Cir. 1982). See also 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice & Procedure § 4404 (2d ed. 1987 & Supp. 2010) (“If two actions are pursued
simultaneously the first judgment to be entered is entitled to res judicata effect without regard to the
order in which the two were commenced[.]”) (collecting cases). Simply put, Smith has no
claims to reinstate in Westefer; those claims are dead, killed by the judgment on the merits in Case No. 07-340-MJR.2
As a final matter, the Court notes that this is not the first time that Smith has attempted to
disrupt these proceedings by seeking to pursue his claims in Case No. 07-340-MJR in this matter.
In October 2009 Smith filed a motion to consolidate these proceedings with Case No. 07-340-MJR.
See Doc. 385. The Court denied the motion on the grounds that District Judge Reagan had dismissed
Case No. 07-340-MJR on the merits over two years earlier, noting also that Smith was
2. It perhaps is worth noting that, at least with respect to Smith’s Due Process claim, that claim is, so to speak, doubly precluded. The Court already has entered a judgment in this case on the claims of a certified class of IDOC prisoners, including Smith, that the IDOC has employed unconstitutionally inadequate procedures when assigning such prisoners to the supermax prison at Tamms, granting injunctive relief on the Due Process claims of the certified class. See Westefer v. Snyder, No. CIV 00-162-GPM, CIV 00-708-GPM, 2010 WL 2836800, at **53-55 (S.D. Ill. July 20, 2010). Thus, Smith’s Due Process claim, to the extent that it seeks injunctive relief, is precluded by the Court’s judgment in this matter, and there is nothing left of any such claim for injunctive relief to adjudicate. See Berger v. Xerox Ret. Income Guar. Plan, 231 F. Supp. 2d 804, 812 (S.D. Ill. 2002) (“As a general principle, a judgment in a class action is binding as to absent class members.”) (collecting cases); In re VMS Sec. Litig., No. 89C9448, 1992 WL 203832, at *3 (N.D. Ill. Aug. 13, 1992) (citing Penson v. Terminal Transp. Co., 634 F.2d 989, 996 (5th Cir. 1981)) (a “class action judgment binds absent class members who filed individual actions prior to final judgment in [the] class action[.]”).
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attempting to evade the “three-strikes” rule by the device of consolidating struck-out claims with a pending case. See Doc. 388. Now Smith is attempting to evade the three-strikes principle that led to the dismissal of his claims in Case No. 07-340-MJR on the merits by trying to intervene in these proceedings, an equally unavailing tactic. See In re Profiler Prods. Liab. Litig., MDL No. 06-1748-GPM, 2010 WL 3613928, at *2 (S.D. Ill. Sept. 8, 2010) (rejecting an attempt by an infamous vexatious prisoner litigant “to evade . . . the so-called ‘three-strikes rule,’ by trying to intervene in other people’s cases”); Geenen v. Salazar, Civ. 07-5070-JLV, 2010 WL 3363385, at **1-2 (D.S.D. Aug. 25, 2010) (holding that the same struck-out prisoner litigant’s motion to intervene was subject to dismissal under 28 U.S.C. § 1915(g)). Smith’s stupid and futile efforts to breathe life into his dead claims in Case No. 07-340-MJR by attempting to press them in this matter are a drain on this Court’s resources, which are needed to bring these complex and important proceedings to a successful close. See Persuad v. United States, Nos. 04-CV-2862(CBA), 10-CV-0156(CBA), 2010 WL 538823, at *5 (E.D.N.Y. Feb. 11, 2010) (“The federal courts have limited resources. Frequent frivolous filings work to diminish the ability of the courts to manage their dockets for the efficient administration of justice.”). Fortunately, however, the Court is not defenseless against Smith and others of his ilk.
“Federal courts have both the inherent power and constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions.” In re McDonald, 489 U.S. 180, 184 n.8 (1989) (quoting In re Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir. 1984)). The Seventh Circuit Court of Appeals has approved the use of filing restrictions against vexatious litigants. See Carr v. Tillery, 591 F.3d 909, 920 (7th Cir. 2010) (noting that injunctions prohibiting a vexatious litigant from filing new papers except with court approval
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”are standard remedies for misconduct in litigation”); Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186-87 (7th Cir. 1995) (barring a vexatious pro se litigant from filing new papers in the federal courts of this Circuit for a period of two years); Free v. United States, 879 F.2d 1535, 1536 (7th Cir. 1989) (“Abusers of the judicial process are not entitled to sue and appeal without paying the normal filing fees – indeed, are not entitled to sue and appeal, period.”); Miller v. United States, 868 F.2d 236, 241-42 (7th Cir. 1989) (upholding a district court’s measure requiring a vexatious litigant to obtain prior leave of court before filing new papers); Lysiak v. C.I.R., 816 F.2d 311, 313 (7th Cir. 1987) (“A court faced with a litigant engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on that litigant’s access to the court.”). In accord with this authority, the Court will impose an appropriate restriction on Smith’s ability to file any further papers in these proceedings.
To conclude, Smith’s motion to intervene (Doc. 596) is DENIED. It is ORDERED that henceforth the Clerk of Court shall submit any further papers that Smith may attempt to file in these proceedings to the undersigned United States District Judge for preliminary review before the papers can be filed. If the papers are determined by the undersigned District Judge to be an attempt by Smith to press his claims in Case No. 07-340-MJR in these proceedings, or otherwise are frivolous or vexatious, the Clerk of Court shall return the papers to Smith unfiled. This filing restriction on Smith does not extend to a notice of appeal from this Order.
IT IS SO ORDERED. DATED: January 1, 2011
/s/ G. Patrick Murphy G. PATRICK MURPHY United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) Consolidated with: ) CIVIL NO. 00-708-GPM )

MEMORANDUM AND ORDER

MURPHY, District Judge:

This matter is before the Court on the following documents: the “Affidavit” filed by

Maurice Wallace, construed by the Court as a motion to intervene (Doc. 601); Wallace’s motion for

a temporary restraining order (“TRO”) (Doc. 602); the motion to strike Wallace’s motion to

intervene brought by Defendants Donald Snyder, Odie Washington, Michael V. Neal,

George DeTella, Michael O’Leary, Thomas Page, Dwayne Clark, Roger Cowan, Rodney Ahitow,

Roger Walker, Roger Zimmerman, Don Hulick, Deidre Battaglia, and Eddie Jones (Doc. 603); and

the motion to strike Wallace’s motion for a TRO brought by Defendants (Doc. 607). The claims in

this case and the procedural history of the case have been detailed in other orders of the Court.

See, e.g., Westefer v. Snyder, 725 F. Supp. 2d 735 (S.D. Ill. 2010); Westefer v. Snyder,

Civil Nos. 00-162-GPM, 00-708-GPM, 2009 WL 2905548 (S.D. Ill. Sept. 4, 2009). Thus, the Court

will not repeat that recitation here. In brief, this case is principally a class action brought by and on

behalf of prisoners in the custody of the Illinois Department of Corrections (“IDOC”) to challenge

the adequacy under the due process clause of the Fourteenth Amendment of the procedures employed

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by the IDOC to place prisoners in the closed maximum security prison (“supermax prison”) at the Tamms Correctional Center (“Tamms”).1 The Court entered judgment in this case on July 20, 2010. Snyder, Washington, Neal, DeTella, O’Leary, Page, Clark, Cowan, Ahitow, Walker, Zimmerman, Hulick, Battaglia, and Jones are past and present officers and employees of the IDOC. Wallace is a prisoner in IDOC custody who currently is serving a sentence of life imprisonment at the supermax prison at Tamms for murder.
In Wallace’s motion to intervene he alleges that he is: not permitted to hold a job; subject to a “razor and clipper” restriction, meaning he is not permitted to have a razor or clippers in his cell; confined in his cell twenty-three hours a day; not allowed to receive visits; and not permitted to subscribe to newspapers and magazines. Also, Wallace complains that the library at the supermax prison at Tamms is inadequate. In his motion for a TRO Wallace claims that prison officials at Tamms have discontinued barber services and library services for prisoners incarcerated in the supermax prison. Defendants in turn have requested that Wallace’s motion to intervene and motion for a TRO be stricken. Rule 12 of the Federal Rules of Civil Procedure provides, in pertinent part, that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The rule provides further that “[t]he court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.” Id. A Rule 12 motion to strike may be directed only to a pleading, as “pleadings” are defined under Rule 7 of the
1. The Court says that this case is “principally” a class action concerning due process violations by the IDOC because a number of the class representatives in this case also prosecuted individual claims of having been transferred to the supermax prison at Tamms in retaliation for exercising their First Amendment right to file grievances and lawsuits challenging the conditions of their confinement in IDOC custody.
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Federal Rules of Civil Procedure, and not to a motion or a paper other than a pleading. See Granger v. Gill Abstract Corp., 566 F. Supp. 2d 323, 334-35 (S.D.N.Y. 2008). Nevertheless, the Court has inherent power to strike documents other than pleadings. See Kremers v. Coca-Cola Co., 714 F. Supp. 2d 912, 915 n.1 (S.D. Ill. 2009) (citing Kitson v. Bank of Edwardsville, 240 F.R.D. 610, 611 (S.D. Ill. 2006)).
Regarding intervention, Rule 23 of the Federal Rules of Civil Procedure permits intervention in a class action by unnamed members of the class. See Fed. R. Civ. P. 23(d)(1)(B)(iii); Diduck v. Kaszycki & Sons Contractors, Inc., 147 F.R.D. 60, 62 (S.D.N.Y. 1993). However, to intervene, a class member must satisfy the requirements of Rule 24 of the Federal Rules of Civil Procedure. See Deutschman v. Beneficial Corp., 132 F.R.D. 359, 380-81 (D. Del. 1990). Concerning intervention as of right, Rule 24 states, in relevant part,
On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest. Fed. R. Civ. P. 24(a). With respect to permissive intervention, Rule 24 provides, in relevant part, that “[o]n timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1). Under Rule 24(a), a proposed intervenor as of right must satisfy four requirements: (1) a timely application for leave to intervene; (2) a claim of interest relating to the property or transaction that is the subject of an action; (3) a danger that disposition of the action may as a practical matter diminish the applicant’s ability
Page 3 of 11

to protect that interest; and (4) existing parties to a case will not adequately represent the applicant’s interest. See Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 945-46 (7th Cir. 2000); Southmark Corp. v. Cagan, 950 F.2d 416, 418 (7th Cir. 1991). Failure to satisfy any one of the four requirements is fatal to a request for intervention as of right. See Reid L. v. Illinois State Bd. of Educ., 289 F.3d 1009, 1017 (7th Cir. 2002). As to permissive intervention, a district court has “‘considerable discretion’” in this area, and “reversal of a court’s denial of a Rule 24(b) motion for permissive intervention ‘is a very rare bird indeed.’” Griffith v. University Hosp., L.L.C., 249 F.3d 658, 661-62 (7th Cir. 2001) (quoting EEOC v. National Children’s Ctr., Inc., 146 F.3d 1042, 1048 (D.C. Cir. 1998)).
Turning first to the matter of intervention as of right, no federal statute gives Wallace an unconditional right to intervene in this case, and therefore the relevant inquiry is whether Wallace has established a right to intervene under Rule 24(a)(2). The Court finds that he has not. In regard to the requirement of timeliness, factors to be considered in determining if a motion to intervene is timely are: (1) the length of time the intervenor knew or should have known of his or her interest in a case; (2) the prejudice to an original party caused by the delay; (3) the resulting prejudice to the intervenor if the motion is denied; and (4) any unusual circumstances. See Shea v. Angulo, 19 F.3d 343, 348-49 (7th Cir. 1994); Schultz v. Connery, 863 F.2d 551, 553 (7th Cir. 1988). Also, “any substantial lapse of time weighs heavily against intervention.” United States v. State of Wash., 86 F.3d 1499, 1503 (9th Cir. 1996) (affirming a denial of a motion for intervention as of right that was made three months after the district court rendered a judgment on the merits in a case). Cf. Larson v. JPMorgan Chase & Co., 530 F.3d 578, 583-84 (7th Cir. 2008) (affirming a trial court’s determination that a delay of over three years in seeking intervention in a class action rendered the
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application for intervention untimely). This litigation has been pending for over ten years and is well-known to prisoners at Tamms; indeed, even the general public has some familiarity with this case. It obviously is highly prejudicial to the original parties to this case for Wallace to begin trying to litigate new claims that previously never have been at issue in this case at this very late stage of the proceedings. Wallace will not be prejudiced by denial of his request for intervention as untimely because, as will be discussed in a bit more detail presently, the claims he is trying to assert have nothing to do with the subject matter of this case. Finally, Wallace offers no explanation for his delay in seeking to intervene. Under the circumstances, then, the Court finds that his application for intervention is untimely.
Moreover, no interest of Wallace’s will be impaired by a denial of intervention. In general, an intervenor’s interest will not be impaired or impeded within the meaning of Rule 24(a) if the disposition of an action will not preclude the intervenor from bringing suit in another forum to enforce a claim. “‘The existence of ‘impairment’ depends on whether the decision of a legal question involved in the action would as a practical matter foreclose rights of the proposed intervenors in a subsequent proceeding’’” and “[t]he possibility of foreclosure is measured by the standards of stare decisis.” American Nat’l Bank & Trust Co. of Chicago v. City of Chicago, 865 F.2d 144, 147-48 (7th Cir. 1989) (quoting Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 204 (7th Cir. 1982)). Here the Court’s judgment in this case will have no preclusive effect at all on the claims Wallace is attempting to assert in this case, because Wallace’s claims have no bearing on the subject matter of this case. As Wallace appears not to understand, the only question that has ever been at issue in this case is whether IDOC prisoners have a due process right not to be transferred to the supermax prison at Tamms without notice and an opportunity to be heard.
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In general, a state prisoner has a Fourteenth Amendment liberty interest in avoiding conditions of confinement at a supermax prison where conditions at such a prison impose “an atypical and significant hardship within the correctional context.” Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (citing Sandin v. Conner, 515 U.S. 472, 483 (1995)). In this case, the Court has been required to examine conditions of confinement at the supermax prison at Tamms in detail, in order to determine whether those conditions are so harsh as to give IDOC prisoners a liberty interest in avoiding transfer to that prison. See Westefer, 725 F. Supp. 2d at 742-69. However, matters like the legality of policies at the supermax prison at Tamms regarding barber services, restrictions on visitation and personal property such as newspapers and magazines, etc., have never been at issue in this case. Wallace is trying to turn this case into something it is not and never has been, namely, an inquiry into the constitutionality of the various restrictions that incarceration in the supermax prison at Tamms imposes on prisoners in IDOC custody, and Wallace will have to pursue that inquiry in a different lawsuit. Having concluded that Wallace may not intervene as of right, the Court also denies permissive intervention. In the class-action context, permissive intervention should be allowed “when no additional issues are presented to the case, when the intervenor’s claims are ‘virtually identical’ to class claims, and when intervention would strengthen the adequacy of class representation.” Eckert v. Equitable Life Assurance Soc’y of U.S., 227 F.R.D. 60, 64 (E.D.N.Y. 2005) (quoting Herbert Newberg & Alba Conte, Newberg on Class Actions § 16:8 (4th ed. 2002)). Here, as discussed, the issues that Wallace seeks to introduce into this case about the validity of various restrictions placed on prisoners incarcerated in the supermax prison at Tamms are completely extraneous to the subject matter of this case. Wallace’s request to intervene in these proceedings will be denied.
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The Court takes up next the matter of whether Wallace should be assigned a “strike” for the denial of his motion to intervene in this case. Under 28 U.S.C. § 1915, a prisoner acquires a “strike” each time an action brought by the prisoner in a federal court while incarcerated or detained in any facility is dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). Once a prisoner has acquired three such “strikes,” the prisoner may not proceed in forma pauperis in federal court without prepayment of filing fees or security therefor unless the prisoner is under imminent danger of serious physical injury. See id.; Taylor v. Watkins, 623 F.3d 483, 484 (7th Cir. 2010). The Court concludes that bringing a complaint in intervention constitutes bringing an “action” within the meaning of Section 1915(g). Under Rule 24, a motion to intervene in an action must be served on the original parties to the action as provided under Rule 5 of the Federal Rules of Civil Procedure and “must . . . be accompanied by a pleading that sets out the claim or defense for which intervention is sought.” Fed. R. Civ. P. 24(c). Just as intervention is commenced by the filing of a complaint, so once leave to intervene has been granted, “[u]nless conditions have been imposed [upon intervention], the intervenor is treated as if the intervenor were an original party and has equal standing with the original parties.” 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1920 (3d ed. 1998 & Supp. 2010) (collecting cases). See also Alvarado v. J.C. Penney Co., 997 F.2d 803, 805 (10th Cir. 1993) (noting that “[w]hen a party intervenes, it becomes a full participant in the lawsuit and is treated just as if it were an original party” and that by intervening the intervenor renders himself or herself “vulnerable to complete adjudication . . . of the issues in litigation between the [intervenor] and the adverse party.”). In other words, a party asserting a claim in intervention is seeking in effect to become a plaintiff in the action in which he or she seeks to
Page 7 of 11

intervene. For purposes of the “three-strikes” rule of Section 1915(g), there is no functional difference between a plaintiff in intervention and a plaintiff bringing an original action. Accordingly, a prisoner whose motion to intervene in an action and complaint in intervention are rejected by a federal court should be deemed to have accumulated a “strike” under Section 1915(g). See Boriboune v. Berge, 391 F.3d 852, 855-56 (7th Cir. 2004) (recognizing that under Section 1915 the claims of every plaintiff in a lawsuit brought by prisoners must be counted; thus, a group of prisoners may join their claims in a single complaint, but each prisoner plaintiff must pay a full filing fee for the action).
Moreover, the Court notes that quite frequently prisoner litigants deliberately abuse the device of intervention in an attempt to avoid the strictures of the “three-strikes” rule of 28 U.S.C. § 1915(g) through the simple expedient of intervening in pending cases, rather than bringing their own lawsuits. See Westefer v. Snyder, Civil Nos. 00-162-GPM, 00-708-GPM, 2011 WL 9135, at **1-2 (S.D. Ill. Jan. 1, 2011) (refusing to permit a prisoner litigant with three “strikes” under Section 1915(g) to evade the “three-strikes” rule by pursuing struck-out claims as an intervenor in this case); In re Profiler Prods. Liab. Litig., MDL No. 06-1748-GPM, 2010 WL 3613928, at *2 (S.D. Ill. Sept. 8, 2010) (rejecting an attempt by an infamous vexatious prisoner litigant “to evade . . . the so-called ‘three-strikes rule,’ by trying to intervene in other people’s cases,” and imposing a ban in this Court on further filings by the proposed intervenor); Geenen v. Salazar, Civ. 07-5070-JLV, 2010 WL 3363385, at **1-2 (D.S.D. Aug. 25, 2010) (assessing a “struck-out” prisoner a “strike” for filing a frivolous request for intervention in a pending case); Alcindor v. Wooden, Civil Action No. 4:10CV-P78-M, 2010 WL 2650923, at *1 n.1 (W.D. Ky. June 30, 2010) (noting that a notorious “struck-out” prisoner litigant had filed seventeen
Page 8 of 11

cases and sought to intervene in five cases in the district where the court sat). In this connection, it is worth noting that Wallace has managed to accumulate two “strikes” under Section 1915(g) in this Court. See Wallace v. Hallam, Civil No. 09-418-DRH (S.D. Ill. Feb. 23, 2010) (order dismissing action for failure to state a claim upon which relief may be granted); Wallace v. Powers, Civil No. 09-224-DRH (S.D. Ill. Nov. 19, 2009) (same). This suggests to the Court that Wallace’s motive for trying to intervene in this case is to avoid the “three-strikes” rule set out in Section 1915(g). Applying the requirements of Section 1915(g) to a prisoner attempting to avoid the strictures of that statute through the device of intervention is consistent with the purpose of Section 1915(g), namely, “to reduce, not increase, the number of frivolous suits” brought by prisoners. Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). See also Walker v. O’Brien, 216 F.3d 626, 628 (7th Cir. 2000) (noting that the enactment in Section 1915 of various “gatekeeping mechanisms designed to keep frivolous suits out of the federal courts” ushered in “a new and far more restrictive era for prisoner litigation”); Turner-El v. Page, No. 97 C 1818, 97 C 5822, 1998 WL 42299, at *2 (N.D. Ill. Jan. 27, 1998) (holding that retroactive application of the “three-strikes” provision of Section 1915(g) to lawsuits brought by prisoners that were dismissed before the enactment of the provision “advanc[es] . . . the congressional goal of reducing frivolous prisoner litigation in federal court” that is embodied in the “three-strikes” rule). In this case Wallace is abusing the device of intervention to avoid the “three-strikes” rule for the purpose of trying frivolously to disrupt the proceedings in an important case by asserting specious claims that have nothing to do with the subject matter of this litigation. The Court finds that it is eminently proper to assign Wallace a “strike” under Section 1915(g) for his frivolous attempt to intervene as a plaintiff in these proceedings.
Page 9 of 11

Finally, the Court takes up the issue of whether to restrict Wallace’s ability to file papers in this case. Naturally, “[e]very paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources.” In re McDonald, 489 U.S. 180, 184 (1989). See also United States ex rel. Verdone v. Circuit Court for Taylor County, 73 F.3d 669, 671 (7th Cir. 1995) (“Frivolous, vexatious, and repeated filings by pro se litigants interfere with the orderly administration of justice by diverting scarce judicial resources from cases having merit and filed by litigants willing to follow court orders.”). The Court has been obliged, of course, to expend resources to dispose of Wallace’s frivolous filings in this case, and the Court has every reason to suppose that Wallace intends to keep filing frivolous papers in this case, if he can. It is “[a] part of the Court’s responsibility . . . to see that [the Court’s] resources are allocated in a way that promotes the interests of justice” and, correspondingly, “[f]ederal courts have both the inherent power and constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions.” McDonald, 489 U.S. at 184 & n.8. The United States Court of Appeals for the Seventh Circuit has approved the use of filing restrictions against vexatious litigants. See, e.g., Carr v. Tillery, 591 F.3d 909, 920 (7th Cir. 2010) (orders barring vexatious litigants from filing new papers without court approval ”are standard remedies for misconduct in litigation”); Support Sys. Int’l, Inc. v. Mack, 45 F.3d 185, 186-87 (7th Cir. 1995) (barring a vexatious pro se litigant from filing new papers in the federal courts of the Seventh Circuit for a period of two years); Miller v. United States, 868 F.2d 236, 241-42 (7th Cir. 1989) (upholding a district court’s order requiring a vexatious litigant to obtain prior leave of court before filing new papers); Lysiak v. C.I.R., 816 F.2d 311, 313 (7th Cir. 1987) (“A court faced with a litigant engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on that
Page 10 of 11

litigant’s access to the court.”). The Court will impose an appropriate restriction on Wallace’s ability to file new papers in this case.
To conclude, it is hereby ORDERED that the motions to strike brought by Defendants Snyder, Washington, Neal, DeTella, O’Leary, Page, Clark, Cowan, Ahitow, Walker, Zimmerman, Hulick, Battaglia, and Jones (Doc. 603, Doc. 607) are GRANTED and Wallace’s motion to intervene (Doc. 601) and motion for a TRO (Doc. 602) are STRICKEN from the record of this case. Wallace is advised that the denial of his motion to intervene will count as one of his three allotted “strikes” under 28 U.S.C. § 1915(g). It is further ORDERED that henceforth the Clerk of Court shall submit any further papers that Wallace may attempt to file in this case to the undersigned District Judge for preliminary review before the papers can be filed. If the papers are determined by the undersigned District Judge or his staff to be irrelevant to the matters at issue in this case, or if the papers otherwise are frivolous or vexatious, the Clerk of Court shall return the papers to Wallace unfiled. This filing restriction on Wallace does not extend to a notice of appeal from this Order.2
IT IS SO ORDERED. DATED: February 25, 2011
/s/ G. Patrick Murphy G. PATRICK MURPHY United States District Judge
2. The Court notes in passing that Defendants have appealed from the Court’s judgment in this case. The filing of a notice of appeal in a case generally divests a district court of jurisdiction as to the matters that are on appeal. See Kusay v. United States, 62 F.3d 192, 193-94 (7th Cir. 1995). As discussed, the issues presented by Wallace’s attempt to intervene in this case are irrelevant to the subject matter of the case; therefore, the attempt to intervene is collateral to the matters on appeal and within this Court’s jurisdiction. See id.
Page 11 of 11

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) ) )

MEMORANDUM AND ORDER
MURPHY, District Judge: This Order will dispose of the two remaining matters in this thirteen year old case,
mootness and fees. Defendants want to vacate an earlier Injunction (Doc. 637) against them because there is no longer a Tamms prison, which was the occasion for the Injunction (See Doc. 646). And, the amount of attorneys’ fees Plaintiffs’ counsel has requested for their efforts is disputed (See Docs. 569, 588, 595).
Procedural History A brief procedural summary will be helpful to what follows. Plaintiffs’ class consists of all prisoners in the custody of the Illinois Department of Corrections (“IDOC”) who have been or who may be transferred to the closed maximum security prison (“supermax prsion”) at Tamms Correctional Center (“Tamms”). Defendants are present and former officials and employees of the IDOC. Plaintiffs, pursuant to 42 U.S.C § 1983, alleged that Defendants violated their right to procedural due process under the Fourteenth Amendment to the Constitution by employing
1

constitutionally inadequate procedures when assigning IDOC inmates to the supermax prison at Tamms. On July 20, 2010, this Court issued an Injunction, which included findings of fact and conclusions of law with respect to the class-wide procedural due process claims (Doc. 540). The Court found the conditions at Tamms imposed an atypical and significant hardship on inmates, which thus gave rise to a due process liberty interest in avoiding transfer to the prison (Doc. 540). The Court found IDOC’s procedures for making transfer decisions constitutionally deficient and entered an Injunction, which articulated the procedures IDOC was to follow in remedying this problem (Doc. 540).
Defendants appealed the Court’s decision, challenging only the terms of the Court’s Injunction. See Westefer v. Neal, 682 F.3d 679 (7th Cir. 2012). On June 6, 2012, the United States Court of Appeals for the Seventh Circuit found that the Court’s Injunction (Doc. 540) was overly broad and imposed requirements beyond the scope of the Prison Litigation Reform Act (“PLRA”). Westefer, 682 F.3d at 682 (The Court’s Injunction “eliminates the operational discretion and flexibility of Illinois prison administrators, far exceeding what due process requires and violating the mandate of the PLRA.”) (emphasis added). This Court received the matter on remand with instructions to enter a new injunction consistent with the Seventh Circuit Opinion that remanded the case. Id. at 686.
Once back in the district court, Plaintiffs filed a new motion for injunctive relief (Doc. 628). The Illinois Governor had taken affirmative steps to shut down the supermax prison at Tamms, and the Defendants argued Plaintiffs’ motion should be denied as moot (Doc. 631). At the time, the Governor of Illinois had just vetoed money appropriated by the Illinois Legislature aimed at continuing to fund operations at Tamms (Doc. 631).
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The Court did not find Defendants’ argument on the issue of mootness persuasive (See Doc. 633). Although Tamms’ days appeared numbered, the prison remained open and inmates continued to reside there. The Court ordered Defendants to prepare and submit a proposed remedial plan that would provide due process to Plaintiffs and comport with the Seventh Circuit Opinion remanding this case (Doc. 634). On October 15, 2012, the Court adopted Defendants’ proposed remedial plan (Doc. 637).
Analysis a. Defendants’ Motion to Vacate the Court’s Injunction
The present motion to vacate (Doc. 646) is aimed at undoing the last Injunction proposed by Defendants and adopted by the Court. Defendants’ argument hinges on the fact that IDOC has now transferred all inmates out of the supermax prison at Tamms (Doc. 647-1, Affidavit of Greg Lambert). Moreover, the lawsuit filed by the American Federation of State County and Municipal Employees (“AFSCME”) designed to stop the closing of Tamms was scotched by the Illinois Supreme Court. Weems v. Appellate Court, Fifth District, Illinois Supreme Court Supervisory Order Number 115240 (Dec. 11, 2012), available at: http://www.state.il.us/court/SupremeCourt/Announce/2012/121112_2.pdf.
The lawsuit by AFSCME, filed in the Illinois Circuit Court of Alexander County, sought a preliminary injunction to prevent the closure of Tamms because of a collective bargaining agreement between AFSCME and the State of Illinois. The Supreme Court of Illinois ordered the Alexander County Circuit Court to vacate the preliminary injunction it had entered. Id. (“[R]emanding the case to the Circuit Court of Alexander County with directions to dissolve the preliminary injunction entered on October 10, 2012 in American Federation of State County and Municipal Employees, Council 31 v. Weems et al., Alexander County No. 12 MR 43.”).
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Plaintiffs argue that while the state court preliminary injunction has been vacated, the litigation remains ongoing (Doc. 649). The argument is that if Tamms should reopen and if prisoners are again transferred back to Tamms, the prisoners should get a hearing, pursuant to the Court’s previous Injunction (Doc. 649). There are too many “ifs” in Plaintiffs’ argument; even one is too many. The Court must pass on the issues in front of it here and now; there are no advisory opinions. This is a fundamental principle the Supreme Court advised against many years ago. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 241-42 (1937) (A case or controversy requires “a dispute between parties who face each other . . .” and must be “definite and concrete, not hypothetical or abstract.”).
The PLRA requires relief to be narrowly drawn, extend no further than necessary to correct the violation of federal rights, and be the least intrusive means necessary to correct the violation. 18 U.S.C. § 3626(a)(1)(A). The super max prison at Tamms is closed and all prisoners have been transferred to different facilities. A remedial plan is no longer necessary because there is nothing to remedy. No prisoner can be transferred to Tamms so long as it is closed. Defendants’ motion to vacate this Court’s previous Injunction (Doc. 646) is GRANTED. The Clerk of the Court is DIRECTED to VACATE this Court’s Order at Document 637.
b. Plaintiffs’ Motion for Attorneys’ Fees Finally, Plaintiffs’ motion for attorneys’ fees and costs (Doc. 569) is ripe for
consideration. Plaintiffs seek an award of attorneys’ fees and non-taxable costs in the aggregate amount of $1,142,419.63: $657,225.86 in attorneys’ fees and costs for the Uptown People’s Law Center along with $485,193.77 for attorneys’ fees and costs for DLA Piper (Doc. 569). Defendants object to the amount claimed (Docs. 588, 589).
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The Court notified the parties it was considering the appointment of a Special Master to determine the attorneys’ fees and costs to be awarded pursuant to 42 U.S.C. § 1988(b) and invited the parties to comment on the terms of appointment (Doc. 566). There were comments (Docs. 585, 586) and a hearing followed (Doc. 597). The Court then appointed attorney Gerald Ortbals to serve as Special Master (Doc. 606).
On November 1, 2012, the Special Master submitted his Report to both parties (Doc. 653-1). Each party received more than ample time to file their objections to the Special Master’s Report (Doc. 643). On March 6, 2013, the Special Master filed his Response to Plaintiffs’ objections (Doc. 650)1. The Special Master’s Response declared his November 1st Report final as to all recommendations except a revision on costs (Doc. 650). The Special Master’s Report and Response, together, contain the final recommendation on attorneys’ fees and costs. Plaintiffs have lodged objections to the Special Master’s recommendation (Doc. 653). Defendants are satisfied with the Special Master’s recommendation for attorneys’ fees and costs (Doc. 654).
In this Court’s Memorandum and Order appointing the Special Master (Doc. 606), it was noted that any findings of fact, conclusions of law, or recommendations made by the Special Master, which are subject to an objection would be reviewed de novo. Accordingly, the Court will examine the Special Master’s Report and Response to the motion for attorneys’ fees with “fresh consideration to those issues to which specific objections have been made.” 12 Charles Alan Wright et al., Federal Practice and Procedure § 3076.8 at p.55 (1st ed. 1973) (1992 Pocket Part) (emphasis added). In other words, under a de novo examination the Court will not give the Special Master’s Report and Response any form of deference. Salve Regina Coll. v. Russell, 499 1 The Special Master first filed his Response to Plaintiffs’ objections on March 4, 2013 (Doc. 648). However, due to technical and typographical errors, the Special Master filed a “corrected” Response to Plaintiffs’ objections on March 6, 2013 (Doc. 650). The corrected response is the operative response here and throughout the ensuing Memorandum and Order, the Court’s examination will be of the corrected Response.
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U.S. 225, 238 (1991). After a fresh look at all the relevant papers for the instant motion (Doc. 569) the Court
ADOPTS the Special Master’s recommendation in full: People’s Uptown Law Center is entitled to $215,000.00 in attorneys’ fees, $19,450.04 in taxable costs, and $7,049.06 in non-taxable costs. DLA Piper is entitled to $56,349.50 for its out-of-pocket expenses.
i. People’s Uptown Law Center The analysis of what is an appropriate award of attorneys’ fees begins with 42 U.S.C. § 1997e(d), which states that: (1) In any action brought by a prisoner who is confined to any jail, prison, or
other correctional facility, in which attorney’s fees are authorized under section 1988 of this title, such fees shall not be awarded except to the extent that – (A) the fee was directly and reasonably incurred in proving an actual violation
of the plaintiffs rights protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and (B) (i) the amount of the fee is proportionately related to the court ordered relief for the violation; or (ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation 42 U.S.C. § 1997e(d)(1) Here, Plaintiffs prevailed. But what is the result of this protracted litigation? The Plaintiffs want more than one million dollars in attorneys’ fees (Doc. 569). The Special Master’s recommendation is roughly equivalent to 30% of this request. The large disparity, and indeed all of Plaintiffs’ objections, can be attributed to a disagreement on how to characterize the end result of this litigation. Did Plaintiffs establish groundbreaking constitutional precedent for prisoners in Illinois and throughout the country? Is the end result de minimis? Does this case fall somewhere in between?
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Substantial time and effort was spent on this case but the end result after thirteen years of litigation is de minimis. The Court did not establish groundbreaking precedent. Rather, the United States Court of Appeals for the Seventh Circuit held that the simple application of established constitutional precedents was all that was necessary. Westefer, 682 F.3d at 686 (“In short, the [district court’s initial] injunction goes well beyond what the Supreme Court has said is constitutionally deficient.”). Even if this Court’s overly-broad injunction had been sustained, it is difficult to imagine things would have improved for Plaintiffs. This is so because, even given the application of full-throttled due process, the Plaintiffs at Tamms would have remained at Tamms. After fifteen years of prisoner suits from the super max prison at Tamms, this Court has not seen one prisoner -- not even one -- that was not appropriately designated to Tamms. Here, a cannon was fired to the end that a fly was slaughtered.
The next step then is to determine the correct methodology for calculating the amount of attorneys’ fees to be awarded here. The Court agrees with the Special Master that a deviation from the lodestar methodology is the correct approach. Plaintiffs are certainly right in their claim that Supreme Court, in Blanchard v. Bergeron, 489 U.S. 87, 94-95 (1989), called the lodestar approach the “centerpiece of attorney’s fee awards.” However, a reading of Bergeron and the Supreme Court’s reliance on Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) in Bergeron informs this Court the lodestar approach is not the end-all be-all in calculating an award for attorneys’ fees. Id. at 96 (“And we have said repeatedly that ‘[t]he initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.’ Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct 1541, 1544. 79 L. Ed. 2d 891 (1984). The courts may then adjust this lodestar calculation by other factors.”); see also Hensley, 461 U.S. at 434 (“The product of reasonable
7

hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of ‘results obtained.’ This factor is particularly crucial where a plaintiff is deemed “prevailing” even though he succeeded on only some of his claims for relief.”).
Several years after Bergeron and Hensley, the Supreme Court reiterated its opinion that the lodestar approach does not end the analysis, but rather begins the inquiry. See Farrar v. Hobby, 506 U.S. 103 (1992). In Farrar the Court noted the most significant factor in determining a reasonable award for attorneys’ fees is the success obtained by the prevailing party. Id. at 114. If the success obtained by the prevailing party is nominal or de minimis, a court “may lawfully award low fees or no fees without reciting the 12 factors bearing on reasonableness.” Id. at 115 (emphasis added). The Farrar Court could have been speaking directly to this case when the Court noted “that if ‘a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.’” Id. at 114 (quoting Hensley, 461 U.S. at 762).
The Special Master is correct in his assessment that counsel put forth an undoubtedly massive effort on behalf of Plaintiffs, which is the basis for their fee claim. But, the effort and requested fee is way out of line with the minimal relief that was finally obtained. See Farrar, 506 U.S. at 114, (quoting Hewitt v. Helms, 482 U.S. 755, 762 (1987)) (“This litigation accomplished little beyond giving petitioners ‘the moral satisfaction of knowing that a federal court concluded that [their] rights had been violated’ in some unspecified way.”).
This Order, which also vacates the existing Injunction as moot simply underscores the marginal result of this litigation. The supermax prison at Tamms is closed. Even a remedial plan is no longer necessary because all of the prisoners have been transferred from Tamms to
8

various facilities in Illinois. None of this, however, is a result of this litigation. Rather, the closure of Tamms is a product of the woeful financial condition of the State of Illinois.
In conclusion, Plaintiffs’ objections are without merit and the Court adopts the Special Master’s Report insofar as it relates to the People’s Uptown Law Center. The lodestar approach would result in an excessive and disproportional award of attorneys’ fees in light of the minimal result of this case. People’s Uptown Law Center shall receive $215,000.00 in attorneys’ fees, $19,450.04 in taxable costs, and $7,049.06 in non-taxable costs.
ii. DLA Piper Plaintiffs also object to the Special Master’s recommendation that no fee should be awarded to DLA Piper, only out-of-pocket expenses (Doc. 653, § D). All of the preceding analysis applies here regarding the Court’s decision not to employ a lodestar approach. Plaintiffs’ central argument in support of DLA Piper’s attorneys’ fees begins with the premise that lodestar is appropriate. Since the lodestar approach is not proper here, Plaintiffs’ argument is unavailing. However, there is the additional wrinkle of how DLA Piper’s pro bono commitment to this case factors into the equation. An award of attorneys’ fees in a case such as this is vested in the Court’s discretion. See Hensley, 461 U.S. at 446 (“Yet Congress also took steps to ensure that § 1988 did not become a ‘relief fund for lawyers.’” It left the “district courts with discretion to set the precise award in individual cases and to deny fees entirely in ‘special circumstances’ when an award would be ‘unjust even if the plaintiff prevailed”.) (internal citations omitted). Indeed, the Seventh Circuit Court of Appeals has also explained the rationale behind its deferential standard in reviewing a district court’s award of attorneys’ fees in cases such as this. See Pickett v. Sheridan Health Care Ctr., 664 F.3d 632 (7th Cir. 2011). The Pickett Court reasoned as follows:
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[w]e accord this significance deference to the district court because: “(1) it possesses ‘superior understanding of the litigation and [there exists a] desirability of avoiding frequent appellate review of what essentially are factual matters'; (2) the need for uniformity in attorneys' fees awards is not great enough to warrant appellate review of minutia; and (3) the desirability of avoiding ‘a second major litigation’ strictly over attorneys' fees is high.” Spellan v. Bd. of Educ. for Dist. 111, 59 F.3d 642, 645 (7th Cir.1995). Pickett, 664 F.3d at 639. Given the Court’s close proximity to this case for the past thirteen years, DLA Piper’s pro bono commitment must be an additional factor to consider in determining what, if anything, is an appropriate award of attorneys’ fees. Initially, DLA Piper engaged in this litigation on a pro bono basis. It now asks the Court for an award of $485,193.77 for attorneys’ fees, paralegal fees, and expenses. DLA Piper has taken great lengths to publicize its pro bono efforts in this case. In 2010, DLA Piper issued three press releases boasting of the prestigious pro bono awards and honors their attorneys have received as a result of this litigation. See http://www.dlapiper.com/dla-piper-successfullyrepresents-plaintiff-class-in-constitutional-rights-case-07-30-2010/; http://www.dlapiper.com/wojcik_pro-bono_award_release/; http://www.dlapiper.com/wojcik_release/, (last visited Mar. 27, 2013). The goodwill and recognition DLA Piper has received from the public, the legal community and its client base as a result of this case is immeasurable. DLA Piper’s request for nearly a half million dollars in attorneys’ fees contradicts its self-proclaimed “donation” of hundreds of hours of pro bono work. Actually, DLA Piper’s position is awkward and the Special Master’s observation was spot on: pro bono should be made of sterner stuff. This Court must insist DLA Piper’s commitment to pro bono stand on a sturdier crutch. All of the goodwill and prestige that have been bestowed on DLA Piper for its role in this case, when considered against the de minimis end result of the litigation militates against an
10

award of attorneys’ fees. The Special Master’s recommendation is not intended for general application to fee
requests by pro bono counsel (Doc. 650). Rather, the recommendation is confined to DLA Piper’s role in this case (Doc. 650). The Court finds this persuasive and thus adopts the position since careful consideration of DLA Piper’s pro bono commitment has led to the conclusion that fees are inappropriate.
The Special Master also mentioned IDOC’s dire financial condition. Plaintiffs say there is no authority that allows the Special Master or the Court to consider this as a factor. The Special Master was careful to note that “while most courts until now have not treated a government defendant’s ability to pay (or not) as a ‘special circumstance’ it again seems likely future awards will take that into account.” (Doc. 653-1, p. 7) (emphasis added). The Special Master simply intended to underscore the absurdity that would necessitate from an award of attorneys’ fees to DLA Piper since the Pro Bono Institute’s Principle 7 urges firms awarded a pro bono fee to donate the fee to an entity that provides services to persons of limited means. In sum, the result would be a donation to an undoubtedly cash strapped social service agency from the practically insolvent State of Illinois.
Plaintiffs’ objections are without merit and the Court adopts the Special Master’s Report insofar as it relates to DLA Piper. The lodestar approach would result in a disproportional award of attorneys’ fees for DLA Piper given the result of this case. Moreover, DLA Piper’s widely publicized role as pro bono attorneys for this case and the immeasurable goodwill it received as a result cut against an award of attorneys’ fees. However, DLA Piper is entitled to $56,349.50 for its out-of-pocket expenses.
11

Conclusion Defendants’ motion to vacate this Court’s previous Injunction (Doc. 646) is GRANTED. There are no longer any prisoners who reside at the supermax prison at Tamms. A remedial plan is no longer necessary. The Clerk of the Court is DIRECTED to VACATE this Court’s previous Order at Document 637. The Court ADOPTS the Special Master’s Report and Response on Plaintiffs’ motion for attorneys’ fees. The lodestar approach is inappropriate when Plaintiffs’ fee claim is examined in light of the final result of the litigation. The award of attorneys’ fees is consistent with the PLRA’s requirement that the fee proportionately relate to the court ordered relief. People’s Uptown Law Center shall receive $215,000.00 in attorneys’ fees, $19,450.04 in taxable costs, and $7,049.06 in non-taxable costs. DLA Piper shall receive $56,349.50 for its out-of-pocket expenses.

IT IS SO ORDERED. DATED: March 27, 2013

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G. PATRICK MURPHY United States District Judge

12

 
 Case 3:00-cv-00162-GPM Document 179 Filed 01/09/08 Page 1 of 5 Page ID #496

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

ROBERT WESTEFER, et al., Plaintiffs,
vs. DONALD SNYDER, et al.,
Defendants.

) ) ) ) ) CIVIL NO. 00-162-GPM ) ) ) )

ORDER

MURPHY, District Judge:

This matter is before the Court on the motion for appointment of counsel brought by

Plaintiff Corey A. Taylor in the above-captioned cause (Doc. 177). Taylor, who is an inmate at the

closed maximum security facility at Tamms Correctional Center (“Tamms”) in Tamms, Illinois,

requests that the Court appoint counsel to represent him with respect to his claim under 42 U.S.C.

§ 1983 that he was transferred to Tamms by persons acting under color of state law in retaliation for

filing lawsuits concerning the conditions of his confinement, in violation of his First Amendment

rights. The Court has granted class certification under Rule 23(b)(1) and (b)(2) of the

Federal Rules of Civil Procedure with respect to the claims asserted in this case by Taylor and other

Tamms inmates that their assignment to the prison violated their Fourteenth Amendment

procedural due process rights, and has appointed Alan S. Mills of the Uptown People’s Law

Center in Chicago, Illinois, as counsel for the class. See Westefer v. Snyder,

Civil Nos. 00-162-GPM, 00-708-GPM, 2006 WL 2639972, at **11-12 (S.D. Ill. Sept. 12, 2006).

Although Taylor is a named Plaintiff in this case, the Court held that he is not an adequate class

representative in light of his professed desire to proceed with his claims by way of a separate action.

Page 1 of 5

Case 3:00-cv-00162-GPM Document 179 Filed 01/09/08 Page 2 of 5 Page ID #497
See id. at *6. The Court emphasized in its order granting class certification that Taylor would not be permitted to excuse himself from the certified class, see id. at *11 n.4, but subsequently granted leave to attorney Mills to withdraw as counsel for Taylor with respect to Taylor’s First Amendment retaliation claim.
As a general rule, of course, a litigant has no constitutional or statutory right to appointment of counsel in a civil case. See Synergy Assocs., Inc v Sun Biotechnologies, Inc., 350 F.3d 681, 683 (7th Cir. 2003); Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002); Stroe v. INS, 256 F.3d 498, 500 (7th Cir. 2001); United States v. 7108 West Grand Ave., Chicago, Ill., 15 F.3d 632, 635 (7th Cir. 1994); Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th Cir. 1992). However, pursuant to 28 U.S.C. § 1915 the Court “may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). See also Mallard v. United States Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 300-01 (1989); Hossman v. Blunk, 784 F.2d 793, 797 (7th Cir. 1986). Similarly, Rule 83.1 of the Local Rules of Court provides, in pertinent part:
Duty of Attorneys to Accept Appointments. In testimonial proceedings arising out of matters pending before this court, every member of the bar of this court . . . shall be available for appointment by the court to represent or assist in the representation of those who cannot afford to hire an attorney. Appointments under this rule shall be made in such a manner that no member of the bar of this court shall be required to accept more than one appointment during any twelve-month period. S.D. Ill. Local R. 83.1(i). See also Allen v. McAdory, Civil No. 04-12-CJP, 2007 WL 2028788, at *1 (S.D. Ill. July 12, 2007) (citing S.D. Ill. Local R. 83.1(i)) (“Members of the bar of this Court are obligated to accept appointments, provided an appointment is not made more than once during a twelve-month period.”); Kibler v. United States, No. 03-cv-4154-JPG, 2006 WL 1891859, at *19 (S.D. Ill. July 10, 2006) (same). The question of whether counsel should be appointed rests within
Page 2 of 5

Case 3:00-cv-00162-GPM Document 179 Filed 01/09/08 Page 3 of 5 Page ID #498
the Court’s discretion, which the United States Court of Appeals for the Seventh Circuit “shall override only in that extreme case in which it should have been plain beyond doubt before the trial began that the difficulty of the issues relative to the capabilities of the litigant would make it impossible for him to obtain any sort of justice without the aid of a lawyer and he could not procure a lawyer on his own.” Farmer v. Haas, 990 F.2d 319, 323 (7th Cir. 1993). See also Heidelberg v. Hammer, 577 F.2d 429, 431 (7th Cir. 1978) (holding that the question of whether or not to request an attorney to represent a plaintiff rests in the sound discretion of the district court “unless denial would result in fundamental unfairness impinging on due process rights[.]”).
The threshold burden a litigant seeking appointment of counsel must meet is to make a reasonable attempt to secure private counsel. See Gil v. Reed, 381 F.3d 649, 656 (7th Cir. 2004). In this instance Taylor has submitted letters from three attorneys who declined to represent him in this case, and therefore he has made the required preliminary showing. See Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). Once a litigant has met the threshold burden, there are five factors that a district court should consider in ruling on a request to appoint counsel: (1) whether the merits of the claim are colorable; (2) the ability of the indigent to investigate crucial facts; (3) whether the nature of the evidence indicates that the truth will more likely be exposed where both sides are represented by counsel; (4) the capability of the indigent person to present the case; and (5) the complexity of the legal issues raised by the complaint. See Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir. 1981). See also Merritt v. Faulkner, 697 F.2d 761, 764 (7th Cir. 1983); McKeever v. Israel, 689 F.2d 1315, 1320-21 (7th Cir. 1982). However, more recently the Seventh Circuit Court of Appeals has expressed wariness about Maclin’s multi-factor test and has recognized that it easily “collapse[s] upon
Page 3 of 5

Case 3:00-cv-00162-GPM Document 179 Filed 01/09/08 Page 4 of 5 Page ID #499
inspection.” Farmer, 990 F.2d at 321. In Farmer the court further recognized that “the necessary inquiry is simpler than Maclin’s multifactorial approach implies: given the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome? . . . In effect, a prisoner who argues that a lawyer should have been requested to represent him is arguing that he could not represent himself effectively.” Id. at 322. Therefore, the Court’s focus becomes: given the difficulty, or lack of difficulty, of this case, does Taylor appear competent to proceed pro se with respect to his retaliation claim? In making this determination the Court is entitled to rely upon what it reasonably can know at the time it has to make its ruling. See id. Importantly, the necessity for appointment of counsel is not measured by whether a good attorney would do a better job than the pro se litigant because “if this were the test, district judges would be required to request counsel for every indigent litigant.” Id. at 323. See also Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997) (holding that a district court did not abuse its discretion in refusing to appoint counsel for a pro se litigant because, “[a]lthough a good lawyer may have done better than [the plaintiff], that is not the test.”).
In this case the Court concludes that Taylor appears competent to try his retaliation claim without the assistance of appointed counsel. He clearly has experience as a pro se litigator. According to the allegations of the operative complaint in this cause, he was transferred to Tamms in retaliation for his extensive litigation regarding the conditions of his confinement in the Illinois state prison system, and the Court’s examination of its electronic docket, which it may judicially notice, see Futch v. AIG, Inc., Civil No. 07-402-GPM, 2007 WL 1752200, at *6 n.3 (S.D. Ill. June 15, 2007), discloses that Taylor has filed, in addition to this case, at least eleven other cases in this forum. Taylor’s submissions to the Court to date have been neat, coherent, and
Page 4 of 5

Case 3:00-cv-00162-GPM Document 179 Filed 01/09/08 Page 5 of 5 Page ID #500
comprehensible, and display a reasonably sound grasp of legal citation and argument. His retaliation claim does not present an especially complex issue, as the law governing such claims is well established. See Thomas v. Walton, 461 F. Supp. 2d 786, 795 (S.D. Ill. 2006). Although, as Taylor argues, his retaliation claim concerns his transfer from the Pontiac Correctional Center, in another district, to Tamms, the Court does not regard this as an insuperable obstacle to his successful prosecution of the claim without counsel. Taylor has at his disposal all of the discovery tools furnished by the Federal Rules of Civil Procedure, just as an attorney would. The complaint identifies by name the correctional officers responsible for Taylor’s assignment to Tamms, and Taylor is at liberty to direct discovery to those officers. While it is quite likely that Taylor’s retaliation claim will raise issues of intent and causation, this does not, in itself, warrant appointment of counsel. As the Seventh Circuit Court of Appeals has instructed, the mere fact that a case presents “tricky issues of state of mind and . . . causation” are not grounds for appointment of counsel where, as here, a pro se litigant appears competent to try a claim. Hudson v. McHugh, 148 F.3d 859, 862 n.1 (7th Cir. 1998). In sum, the Court concludes in its discretion that Taylor has failed to show grounds for appointment of counsel with respect to his retaliation claim. Accordingly, Taylor’s motion for appointment of counsel (Doc. 177) is DENIED.
IT IS SO ORDERED. DATED: January 9, 2008
S/G. Patrick Murphy G. PATRICK MURPHY United States District Judge
Page 5 of 5

 
 CASREF, CJRA_A, CONSCS, JRG, PTCHLD, REOPEN
U.S. District Court Southern District of Illinois (East St. Louis) CIVIL DOCKET FOR CASE #: 3:00−cv−00708−GPM−DGW

Cunningham v. Snyder, et al Assigned to: Judge G. Patrick Murphy Referred to: Magistrate Judge Donald G. Wilkerson Demand: $0 Lead case: 3:00−cv−00162−GPM−DGW Member case: (View Member Case) Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 09/11/2000 Jury Demand: Plaintiff Nature of Suit: 555 Prison Condition Jurisdiction: Federal Question

Bennie Cunningham

represented by Richard D. Murray, Jr. Kenneth D. Rose &Associates, Ltd. Generally Admitted 200 South Street Anna, Il 62906 618−833−4402 Email: roseltd@shawneelink.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terry H. Gamber mail returned 99999 TERMINATED: 01/07/2003 LEAD ATTORNEY

V. Defendant Donald N Snyder

represented by Christopher L. Higgerson Illinois Attorney General's Office − Springfield Generally Admitted 500 South Second Street Springfield, IL 62706 217−782−9096 Fax: 217−524−5091 Email: chiggerson@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Morgan Illinois Attorney General's Office − Springfield Sangamon County 500 South Second Street Springfield, IL 62706 217−782−1090 Email: jmorgan@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C. Stauffer Illinois Department of Corrections Generally Admitted 1301 Concordia Court P.O. box 19277 Springfield, IL 62702−5643 217−522−2666

Defendant Odie Washington
Defendant Asst Dep Diret McVicar

Email: rstauffer@idoc.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Morgan Illinois Attorney General's Office − Springfield 500 South Second Street Springfield, IL 62706 217−557−0261 Fax: 217−524−5091 Email: jlmorgan@atg.state.il.us ATTORNEY TO BE NOTICED
Michael M. Havera unknown 00000
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C. Stauffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Morgan (See above for address) ATTORNEY TO BE NOTICED
Michael M. Havera (See above for address)
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C. Stauffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Morgan (See above for address) ATTORNEY TO BE NOTICED
Michael M. Havera (See above for address)

Defendant Michael V Neal
Defendant George C Welborn
Defendant Angela Winsor

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C. Stauffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Morgan (See above for address) ATTORNEY TO BE NOTICED
Michael M. Havera (See above for address)
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C. Stauffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Morgan (See above for address) ATTORNEY TO BE NOTICED
Michael M. Havera (See above for address)
represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C. Stauffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Morgan

Defendant H Markel
Defendant Jack Hartwig
Date Filed 09/11/2000 09/11/2000 09/11/2000 09/11/2000 09/11/2000

(See above for address) ATTORNEY TO BE NOTICED
Michael M. Havera (See above for address)

represented by Christopher L. Higgerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Morgan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C. Stauffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Morgan (See above for address) ATTORNEY TO BE NOTICED
Michael M. Havera (See above for address)

represented by Christopher L. Higgerson Illinois Attorney General's Office − Springfield 500 South Second Street Springfield, IL 62706 217−782−9096 Fax: 217−524−5091 Email: chiggerson@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Morgan (See above for address) ATTORNEY TO BE NOTICED
Michael M. Havera (See above for address)

#

Docket Text

PRO SE THRESHOLD DETERMINATION (jao) (Entered: 09/11/2000)

1 COMPLAINT (jao) (Entered: 09/11/2000)

2 MOTION by plaintiff Bennie Cunningham to proceed in forma pauperis (jao) (Entered: 09/11/2000)

CJRA Track T assigned by Chief Judge J. P. Gilbert (jao) (Entered: 09/11/2000)

LETTER to plaintiff Bennie Cunningham informing same of case number. (jao) (Entered: 09/11/2000)

09/15/2000 09/18/2000
09/19/2000 09/19/2000
09/20/2000 09/22/2000 09/29/2000 08/06/2001 08/07/2001 08/14/2001 08/14/2001 08/15/2001 08/17/2001 09/19/2001 06/20/2002 06/21/2002 06/28/2002
06/28/2002 06/28/2002 07/01/2002

REMARK − file sent to Benton (1 volume) (car) (Entered: 09/15/2000)
USM−285 received from plaintiff Bennie Cunningham as to defendants Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel (myz) (Entered: 09/18/2000)
3 ORDER by Chief Judge J. P. Gilbert denying motion to proceed in forma pauperis [2−1] (cc: all counsel) (jep) (Entered: 09/20/2000)
4 JUDGMENT (NGJ/jep) approved by Chief Judge J. P. Gilbert re [3−1], dismissing without prejudice to bringing it in a fully pre−paid complaint, plaintiff has had three or more prior dismissals; terminating case (cc: all counsel) (jep) (Entered: 09/20/2000)
REMARK − file returned to ESL (jep) (Entered: 09/20/2000)
REMARK file received from Benton consisting of 1 volume of pleadings (jmf) (Entered: 09/22/2000)
5 MOTION by plaintiff Bennie Cunningham for reconsideration of 9/19/00 order (tjh) (Entered: 10/13/2000)
REMARK file (1 volume) sent to Benton (jmp) (Entered: 08/06/2001)
REMARK − file received in Benton and submitted to Judge Gilbert (jep) (Entered: 08/07/2001)
6 ORDER by Judge J. P. Gilbert granting motion for reconsideration of 9/19/00 order [5−1], vacating judgment [4−2] Case reopened (cc: all counsel) (jep) (Entered: 08/15/2001)
7 ORDER by Judge J. P. Gilbert granting motion to proceed in forma pauperis [2−1]; plaintiff to pay initial partial filing fee of $11.73 (cc: all counsel, Tamms CC) (jep) (Entered: 08/15/2001)
REMARK − file returned to ESL (jep) (Entered: 08/15/2001)
REMARK file received from Benton consisting of one volume of pleadings (jmf) (Entered: 08/17/2001)
initial PARTIAL FILING FEE PAID: by plaintiff Bennie Cunningham on 9/19/01 in the amount of $ 11.73 receipt # 300 77258 (trb) (Entered: 09/19/2001)
REMARK file sent to Benton clerks office (1 volume) (trb) (Entered: 06/20/2002)
REMARK − file received in Benton and submitted to JPG w/prop order (jep) (Entered: 06/21/2002)
8 MEMORANDUM AND ORDER by Judge J. P. Gilbert dismissing with prejudice Counts 2,3,4 and 5 of the complaint; Clerk directed to prepare Form 1A and Form 1B for defendants and forward to US Marshal for service; US Marshal directed to serve process upon defendants; plaintiff ordered to serve upon defendants every further pleading or document submitted for consideration by this court; defendants ordered to timely file responsive pleading to the complaint; Case referred to Mag Judge Gerald B. Cohn (cc: all counsel) (dka) (Entered: 07/01/2002)
9 MOTION by plaintiff Bennie Cunningham for appointment of counsel (dka) (Entered: 07/01/2002)
10 AFFIDAVIT of Bennie Cunningham re [9−1] (dka) (Entered: 07/01/2002)
CJRA Track A assigned by Judge J. P. Gilbert (dka) (Entered: 07/01/2002)

07/01/2002
07/01/2002 07/02/2002 07/09/2002 07/12/2002
07/15/2002
07/29/2002 07/29/2002 07/29/2002 07/29/2002 08/02/2002 08/08/2002 08/28/2002
09/05/2002 09/10/2002 09/16/2002
09/23/2002

WAIVER OF SERVICE OF SUMMONS as to defendant Donald N Snyder, defendant Odie Washington, defendant Asst Dep Diret McVicar, defendant Michael V Neal, defendant George C Welborn, defendant Angela Winsor, defendant H Markel sent to US Marshal for service with USM 285 (dka) (Entered: 07/01/2002)
REMARK file consisting of one volume pleadings sent to ESL via Fed Ex (dka) (Entered: 07/01/2002)
REMARK − case file received from Benton (tjh) (Entered: 07/02/2002)
11 NOTICE AND REQUEST by the US Marshal for the address of Odie Washington and Michael V. Neal (jep) (Entered: 07/09/2002)
12 NOTICE &ORDER to IDOC and Warden TAMMS CC to have plaintiff present for videoconference of hearing setting hearing on motion for appointment of counsel [9−1] ; 9:30AM 8/2/02 before Mag Judge Gerald B. Cohn in the USDC/East St. Louis, IL (cc: all counsel) (jms) (Entered: 07/12/2002)
13 ORDER by Mag Judge Gerald B. Cohn that IDOC shall provide the Marshal with the last know address of defendants Odie Washington and Michael V Neal [11−1] (cc: all counsel) (jmf) (Entered: 07/18/2002)
WAIVER OF SERVICE executed upon defendant H Markel on 7/11/02 ; date request sent 7/9/02 (dka) (Entered: 07/30/2002)
WAIVER OF SERVICE executed upon defendant Asst Dep Diret McVicar, defendant George C Welborn on 7/12/02 ; date request sent 7/9/02 (dka) (Entered: 07/30/2002)
WAIVER OF SERVICE executed upon defendant Donald N Snyder on 7/15/02 ; date request sent 7/9/02 (dka) (Entered: 07/30/2002)
RETURN OF SERVICE executed upon defendant Angela Winsor on 7/23/02 w/ attached request for legal representation directed to Attorney General (dka) (Entered: 07/30/2002)
14 MINUTES (jms) of hearing on motion for appointment of counsel before Mag Judge Gerald B. Cohn taking under advisement on the motion for appointment of counsel [9−1] (dlr) (Entered: 08/08/2002)
WAIVER OF SERVICE executed upon defendant Odie Washington, defendant Michael V Neal on 8/2/02 (dka) (Entered: 08/08/2002)
15 MOTION by defendant Donald N Snyder, defendant Odie Washington, defendant Asst Dep Diret McVicar, defendant Michael V Neal, defendant George C Welborn, defendant Angela Winsor, defendant H Markel to extend time to 10/2/02 to answer w/prop order (jep) (Entered: 08/28/2002)
16 MOTION by plaintiff Bennie Cunningham for leave to file an Amended Complaint (scj) (Entered: 09/09/2002)
REMARK sent USM 285 on defendant Donald Snyder to US Marshall for serivce (service obtained 7/29/02) (scj) (Entered: 09/10/2002)
17 MOTION by defendants Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, and H Markel to strike First Amended Complaint (scj) (Entered: 09/18/2002)
18 RESPONSE by plaintiff Bennie Cunningham to motion to strike First Amended Complaint [17−1] (scj) (Entered: 09/26/2002)

09/23/2002 09/27/2002
09/27/2002
10/02/2002 10/08/2002 10/15/2002
10/22/2002 11/25/2002 11/26/2002 11/27/2002 12/12/2002
12/12/2002 01/07/2003
02/18/2003 03/31/2003
05/16/2003 05/16/2003

19 MEMORANDUM by plaintiff Bennie Cunningham in support of motion response to motion to strike first amended complaint [18−1] (scj) (Entered: 09/26/2002)
20 ANSWER by defendants Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, and H Markel to original Complaint [1−1] (scj) (Entered: 10/02/2002)
21 MOTION by defendants Bennie Cunningham, Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, and H Markel to extend time to respond to request for production of documents (scj) (Entered: 10/02/2002)
22 ORDER by Mag Judge Gerald B. Cohn granting motion to extend time to respond to request for production of documents [21−1] response ddl set 10/31/02 (cc: all counsel) (scj) (Entered: 10/04/2002)
23 MOTION by plaintiff to strike defendants' answer to original complaint (dmw) (Entered: 10/17/2002)
24 RESPONSE by defendants Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, and H Markel to motion to strike defendants' answer to original complaint [23−1] (scj) (Entered: 10/22/2002)
25 MOTION by plaintiff for enlargement of time to respond to interrogatories (dmw) (Entered: 10/25/2002)
26 MOTION by plaintiff Bennie Cunningham to extend time to respond to defendants' interrogatories (jep) (Entered: 11/26/2002)
DOCUMENT NUMBER 26 SENT to ESL (jep) (Entered: 11/26/2002)
DOCUMENT NUMBER 26 RECEIVED from Benton (tjh) (Entered: 11/27/2002)
27 ORDER by Mag Judge Gerald B. Cohn granting motion for appointment of counsel [9−1]; Terry H. Gamber is appointed as counsel to represent plaintiff in this action (cc: all counsel) (scj) (Entered: 12/16/2002)
28 ORDER by Mag Judge Gerald B. Cohn granting motion to extend time to 10/2/02 to answer [15−1] (cc: all counsel) (scj) (Entered: 12/16/2002)
29 ORDER by Mag Judge Gerald B. Cohn vacating Order of 12/12/02 [27−1]; appointing counsel for plaintiff Bennie Cunningham , appointing attorney Richard D. Murray Jr. , terminating attorney Terry H. Gamber (cc: all counsel) (dlr) (Entered: 01/10/2003)
30 ATTORNEY APPEARANCE for plaintiff by Richard D. Murray, Jr. (dmw) (Entered: 02/21/2003)
31 ORDER by Mag Judge Gerald B. Cohn denying motion for leave to file an Amended Complaint [16−1], motion to strike First Amended Complaint [17−1], motion to strike defendants' answer to original complaint [23−1], motion for enlargement of time to respond to interrogatories [25−1], and motion to extend time to respond to defendants' interrogatories [26−1] as moot; if necessary, Plaintiff's amended complaint shall be filed by ddl set 5/17/03 (cc: all counsel) (scj) (Entered: 04/02/2003)
32 AMENDED COMPLAINT [1−1] by plaintiff Bennie Cunningham; adding Jack Hartwig (scj) (Entered: 05/22/2003)
33 MOTION by plaintiff Bennie Cunningham (for order) to add party defendant (scj) (Entered: 05/22/2003)

06/04/2003 06/04/2003
06/05/2003 06/10/2003 06/11/2003
06/18/2003
06/18/2003
06/18/2003 06/18/2003 06/27/2003 10/16/2003 10/20/2003 11/04/2003 11/04/2003 11/06/2003 11/19/2003
12/15/2003

DOCUMENT SENT to ESL via Fed Ex (waiver of service of summons by Michael Neal and Odie Washington) (dka) (Entered: 06/04/2003)
34 MOTION by defendants Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, and H Markel to extend time to answer First Amended Complaint (scj) (Entered: 06/09/2003)
DOCUMENT RECEIVED from Benton waiver of service of summons from Michael Neal and Odie Washington (js) (Entered: 06/05/2003)
35 ORDER by Mag Judge Gerald B. Cohn granting motion to extend time to 6/9/03 to answer first amended complaint [34−1] (cc: all counsel) (dmw) (Entered: 06/12/2003)
36 MOTION by defendants Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel for enlargement of time to answer amended complaint (dmw) (Entered: 06/17/2003)
37 MOTION by defendants Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, and H Markel to strike Counts II, III and IV of Amended Complaint (scj) (Entered: 06/25/2003)
38 ANSWER by defendants Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, and H Markel to Amended Complaint [32−1] (scj) (Entered: 06/25/2003)
39 ORDER by Mag Judge Gerald B. Cohn granting motion for enlargement of time to answer amended complaint [36−1] up to and including 6/16/03(cc: all counsel) (scj) (Entered: 06/25/2003)
40 ORDER by Mag Judge Gerald B. Cohn granting motion (for order) to add party defendant Jack Hartwig [33−1]; service ddl set 7/25/03 (cc: all counsel) (scj) (Entered: 06/25/2003)
41 TRIAL PRACTICE SCHEDULE Mag Judge Gerald B. Cohn ; discovery ddl set 10/26/03 ;disp mtn filing ddl 11/10/03 (cc: all counsel) (dlr) (Entered: 07/07/2003)
42 ORDER by Mag Judge Gerald B. Cohn granting motion to strike Counts II, III and IV of Amended Complaint [37−1] (cc: all counsel) (dmw) (Entered: 10/24/2003)
43 MOTION by plaintiff Bennie Cunningham to extend time for discovery (js) (Entered: 10/27/2003)
44 MOTION by plaintiff Bennie Cunningham for reconsideration of dismissal of Count II of the amended complaint (jep) (Entered: 11/04/2003)
DOCUMENT NUMBER 44 SENT to ESL (jep) (Entered: 11/04/2003)
DOCUMENT NUMBER 44 RECEIVED from Benton (js) (Entered: 11/06/2003)
45 RESPONSE by defendants' Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel to motion for reconsideration of dismissal of Count II of the amended complaint [44−1] (tjh) (Entered: 12/01/2003)
46 ORDER by Mag Judge Gerald B. Cohn denying motion for reconsideration of dismissal of Count II of the amended complaint [44−1] (cc: all counsel) (myz) (Entered: 12/23/2003)

12/15/2003 02/02/2004
02/06/2004 05/13/2004 06/09/2004 08/12/2004
09/22/2004
09/22/2004 09/22/2004 09/22/2004 09/22/2004 09/27/2004
10/29/2004 11/12/2004
11/15/2004
11/24/2004 11/26/2004 12/06/2004

47 ORDER by Mag Judge Gerald B. Cohn granting motion to extend time for discovery [43−1] ; discovery ddl 1/15/04, dispositive mtn ddl 1/30/04 (cc: all counsel) (myz) (Entered: 12/23/2003)
48 MOTION for Extension of Time by H Markel, Asst Dep Diret McVicar, Michael V Neal, Donald N Snyder, Odie Washington, George C Welborn, Angela Winsor. (Higgerson, Christopher) (Entered: 02/02/2004)
49 ORDER granting 48 Motion for Extension of Time until 2/17/04 to answer plaintiff's interrogatories. Signed by Judge Gerald B. Cohn on 2/3/04. (jms ) (Entered: 02/06/2004)
50 MOTION for free Copy of docketing statement by Bennie Cunningham. (jep) (Entered: 05/19/2004)
51 ORDER granting 50 Motion to Copy . Signed by Judge Gerald B. Cohn on 6/2/04. (jms) (Entered: 06/09/2004)
52 NOTICE of Hearing: Final Pretrial Conference set for 9/22/2004 09:00 AM in East St. Louis Court House before Mag Judge Gerald B. Cohn. NO FURTHER NOTICE TO BE GIVEN!!!(jms) (Entered: 08/12/2004)
53 Minute Entry (NGJ:jms) for proceedings held before Judge Gerald B. Cohn with Richard D. Murray and Christopher L. Higgerson, AAG: Final Pretrial Conference held on 9/22/2004. Final Pretrial Order submitted. (jms ) (Entered: 09/22/2004)
54 ORDER that case is certified to Judge Gilbert for trial. Signed by Judge Gerald B. Cohn on 9/22/04. (jms ) (Entered: 09/22/2004)
55 FINAL PRETRIAL ORDER Signed by Judge Gerald B. Cohn on 9/22/04. (jms) (Entered: 09/22/2004)
56 Remark − file (one volume of pleadings) sent to Benton. (jms) (Entered: 09/22/2004)
Judge Gerald B. Cohn no longer assigned to case. (jms ) (Entered: 09/22/2004)
Set Deadlines/Hearings: Final Pretrial Conference set for 12/2/2004 at 09:30 AM in Benton Court House before Judge J. Phil Gilbert. Jury Trial set for 12/13/2004 at 09:00 AM in Benton Court House before Judge J. Phil Gilbert. (By: kjr) (Entered: 09/27/2004)
57 MOTION to Continue Trial Setting by Bennie Cunningham. (Murray, Richard) (Entered: 10/29/2004)
58 MINUTE ORDER (kjr) granting MOTION to Continue Trial Setting filed by Bennie Cunningham; Final Pretrial Conference reset for 3/3/2005 09:30 AM in Benton Court House before Judge J. Phil Gilbert. Jury Trial reset for 3/14/2005 09:00 AM in Benton Court House before Judge J. Phil Gilbert.(dka, ) (Entered: 11/12/2004)
59 ORDER that plaintiff shall have up to and including 12/17/04 to obtain service of process on Jack Hartwig; Action due by 12/17/2004.. Signed by Judge J. Phil Gilbert on 11/15/04. (dka, ) (Entered: 11/15/2004)
60 Summons Issued as to Jack Hartwig and delivered to U.S. Marshal along with copy of First Amended Complaint and USM−285. (jep, ) (Entered: 11/29/2004)
61 EMERGENCY MOTION for Conference Hearing by Bennie Cunningham, pro se. (jep, ) (Entered: 11/30/2004)
62 ORDER striking 61 Motion for Hearing . Signed by Judge J. Phil Gilbert on 12/6/04. (dka, ) (Entered: 12/06/2004)

12/20/2004
12/21/2004 01/05/2005 01/11/2005 01/11/2005 02/18/2005
02/18/2005 03/03/2005
03/03/2005
03/17/2005
04/15/2005 04/21/2005 05/11/2005 05/11/2005 05/17/2005
05/18/2005

63 MOTION to Continue Trial Date by Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel. (Higgerson, Christopher) (Entered: 12/20/2004)
64 RETURN OF SERVICE EXECUTED by Jack Hartwig on 12/16/04. (jep, ) (Entered: 01/04/2005)
65 MOTION for Extension of Time to File Answer re 32 Amended Complaint by Jack Hartwig. (Higgerson, Christopher) (Entered: 01/05/2005)
66 ANSWER to Amended Complaint by Jack Hartwig.(Higgerson, Christopher) (Entered: 01/11/2005)
67 ORDER granting 65 Motion for Extension of Time to Answer . Signed by Judge J. Phil Gilbert on 1/11/05. (jep) (Entered: 01/12/2005)
68 Supplemental MOTION to Continue Trial Date by Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel, Jack Hartwig. (Higgerson, Christopher) (Entered: 02/18/2005)
69 MOTION to Amend/Correct 55 Pretrial Order by Bennie Cunningham. (Murray, Richard) (Entered: 02/18/2005)
70 NOTICE of Appearance by Julie Morgan on behalf of Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel, Jack Hartwig (Morgan, Julie) (Entered: 03/03/2005)
71 Minute Entry for proceedings held before Judge J. Phil Gilbert (kjr): Final Pretrial Conference held on 3/3/2005; parties estimate trial time at 2−3 days; jury trial reset for 5/23/2005 09:00 AM in Benton Court House before Judge J. Phil Gilbert. (Court Reporter Jane McCorkle) (vlm, ) (Entered: 03/04/2005)
72 ORDER finding 63 Motion to Continue moot; granting 69 Motion to Amend the final pretrial order and to propound discovery on defendant Hartwig. Signed by Judge J. Phil Gilbert on 3/17/05. (jep) (Entered: 03/17/2005)
73 MOTION for Extension of Time to Complete Discovery to Respond to Plaintiff's Interrogatories by Jack Hartwig. (Higgerson, Christopher) (Entered: 04/15/2005)
74 ORDER granting 73 Motion for Extension of Time to Complete Discovery . Signed by Judge J. Phil Gilbert on 4/21/05. (jep) (Entered: 04/21/2005)
75 MOTION to Amend/Correct Pretrial Order by Bennie Cunningham. (Murray, Richard) (Entered: 05/11/2005)
76 MOTION for Issuance and Service of Subpeonas by Bennie Cunningham. (Murray, Richard) (Entered: 05/11/2005)
77 ORDER granting 75 Motion to Amend/Correct Final Pre−Trial Order 75 . Final Pre−Trial Order 75 is amended to include the exhibits listed in the plaintiff's motion . Signed by Judge J. Phil Gilbert on May 17, 2005. (vlm) (Entered: 05/17/2005)
78 Minute Entry for proceedings held before Judge J. Phil Gilbert : Telephone Conference held on 5/18/2005. Final Pretrial Conference set for 8/4/2005 10:30 AM in Benton Court House before Judge J. Phil Gilbert. Jury Trial reset for 8/15/2005 09:00 AM in Benton Court House before Judge J. Phil Gilbert. (Court Reporter Jane McCorkle.) (msd, ) (Entered: 05/18/2005)

07/13/2005 07/13/2005 07/13/2005 07/13/2005 07/13/2005 07/26/2005 07/27/2005
08/03/2005 08/03/2005 08/04/2005
08/09/2005 08/11/2005 08/15/2005
08/22/2005
08/22/2005

79 MOTION for Writ of Habeas Corpus ad testificandum by Bennie Cunningham. (Murray, Richard) (Entered: 07/13/2005)
80 MOTION for Writ of Habeas Corpus ad testificandum by Bennie Cunningham. (Murray, Richard) (Entered: 07/13/2005)
81 MOTION for Writ of Habeas Corpus ad testificandum by Bennie Cunningham. (Murray, Richard) (Entered: 07/13/2005)
82 MOTION for Writ of Habeas Corpus ad testificandum by Bennie Cunningham. (Murray, Richard) (Entered: 07/13/2005)
83 MOTION for Writ of Habeas Corpus ad testificandum by Bennie Cunningham. (Murray, Richard) (Entered: 07/13/2005)
84 MOTION to Continue Trial Setting by Bennie Cunningham. (Murray, Richard) (Entered: 07/26/2005)
85 Minute Entry for proceedings held before Judge J. Phil Gilbert : Telephone Status Conference held on 7/27/2005, GRANTING 79 MOTION for Writ of Habeas Corpus ad testificandum filed by Bennie Cunningham and GRANTING 84 MOTION to Continue Trial Setting filed by Bennie Cunningham. Final Pretrial Conference reset for 8/15/2005 10:00 AM in Benton Court House before Judge J. Phil Gilbert. (Court Reporter N/A.) (jep) (Entered: 07/27/2005)
86 MOTION to Substitute Attorney by Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel, Jack Hartwig. (Havera, Michael) (Entered: 08/03/2005)
87 NOTICE of Appearance by Michael M. Havera on behalf of Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel, Jack Hartwig (Havera, Michael) (Entered: 08/03/2005)
88 NOTICE OF ERRORS AND/OR DEFICIENCIES re 86 Motion to Substitute Attorney filed by George C Welborn,, Michael V Neal,, Odie Washington,, Jack Hartwig,, Angela Winsor,, H Markel,, Donald N Snyder,, Asst Dep Diret McVicar,. See attached document for specifics (dka, ) (Entered: 08/04/2005)
89 ORDER denying 86 Motion to Substitute Attorney. Signed by Judge J. Phil Gilbert on 8/9/05. (jep) (Entered: 08/09/2005)
90 MOTION to Amend/Correct Pretrial Order by Bennie Cunningham. (Murray, Richard) (Entered: 08/11/2005)
91 Minute Entry for proceedings held before Judge J. Phil Gilbert (kjr): Final Pretrial Conference held on 8/15/2005. Court allows Maurice Perkins to be added to the witness list. Court will not allow testimony of Vincent Patterson, Henry Skates and Carmichael Morrison. Jury Trial set for 10/11/2005 09:00 AM in Benton Court House before Judge J. Phil Gilbert. (Court Reporter Jane McCorkle) (vlm, ) (Entered: 08/18/2005)
92 ORDER granting 79 Motion for Writ of Habeas Corpus ad testificandum, denying 80 Motion for Writ of Habeas Corpus ad testificandum, denying 81 Motion for Writ of Habeas Corpus ad testificandum, denying 82 Motion for Writ of Habeas Corpus ad testificandum, denying 83 Motion for Writ of Habeas Corpus ad testificandum, granting in part and denying in part 90 Motion to Amend/Correct . Signed by Judge J. Phil Gilbert on 8/22/05. (jep) (Entered: 08/22/2005)
93 Writ of Habeas Corpus ad Testificandum Issued as to Bennie Cunningham for 10/11/05. (jep) (Entered: 08/22/2005)

09/09/2005 09/09/2005 09/09/2005 09/15/2005
09/19/2005 10/05/2005
10/07/2005 10/07/2005 10/14/2005 11/15/2005 11/22/2005
12/16/2005 12/19/2005

94 MOTION to Reinstate Count III of Plaintiff's Amended Complaint or, Alternatively, to Grant Leave to Amend Said Complaint by Bennie Cunningham. (Murray, Richard) (Entered: 09/09/2005)
95 MOTION for Discovery (Allow Supplemental Discovery) by Bennie Cunningham. (Murray, Richard) (Entered: 09/09/2005)
96 MOTION to Continue Trial and for a Pre−Trial Conference by Bennie Cunningham. (Murray, Richard) (Entered: 09/09/2005)
97 ORDER granting 94 MOTION to Reinstate Count III of Plaintiff's Amended Complaint filed by Bennie Cunningham, granting 95 MOTION for Supplemental Discovery filed by Bennie Cunningham and REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Court grants 96 MOTION to Continue Trial and for a Pre−Trial Conference filed by Bennie Cunningham. Final Pretrial Conference reset for 5/4/2006 09:30 AM in Benton Court House before Judge J. Phil Gilbert. Jury Trial reset for 5/22/2006 09:00 AM in Benton Court House before Judge J. Phil Gilbert. Signed by Judge J. Phil Gilbert on 9/15/05. (dka, ) (Entered: 09/15/2005)
98 ORDER MOOTING 76 MOTION for Issuance and Service of Subpeonas filed by Bennie Cunningham. Telephonic Status Conference set for 10/5/2005 02:00 PM before Mag/Judge Donald G. Wilkerson. Defendants to initiate conference call. Signed by Judge Donald G. Wilkerson on 9/19/05. (sgp) (Entered: 09/19/2005)
99 Minute Entry for proceedings held before Judge Donald G. Wilkerson: Telephonic Status Conference held on 10/5/2005. Attorney Richard D. Murray, Jr. present for plaintiff and Attorney Christopher L. Higgerson present for defendant. Discovery due by 12/16/2005. Dispositive Motions due by 12/31/2005. No extensions will be granted.(Court Reporter n/a.) (rmb) (Entered: 10/06/2005)
100 ANSWER to Amended Complaint and Affirmative Defenses by Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel, Jack Hartwig.(Higgerson, Christopher) (Entered: 10/07/2005)
101 MOTION to Dismiss Damages Portion of Count III of the Amended Complaint with Supporting Brief by Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel, Jack Hartwig. Responses due by 11/9/2005 (Higgerson, Christopher) (Entered: 10/07/2005)
102 WRIT of WHCAT Returned Unexecuted as to Bennie Cunningham. (jep) (Entered: 10/14/2005)
103 RESPONSE to Motion re 101 MOTION to Dismiss Damages Portion of Count III of the Amended Complaint with Supporting Brief filed by Bennie Cunningham. (Murray, Richard) (Entered: 11/15/2005)
104 REPLY to Response to Motion re 101 MOTION to Dismiss Damages Portion of Count III of the Amended Complaint with Supporting Brief filed by Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel, Jack Hartwig. (Higgerson, Christopher) (Entered: 11/22/2005)
105 ENTRY STRICKEN − Supplemental MOTION to Produce by Bennie Cunningham. (Murray, Richard) Modified on 12/19/2005 (myz ). (Entered: 12/16/2005)
106 NOTICE STRIKING ELECTRONICALLY FILED DOCUMENTS striking 105 Request for Production filed by Bennie Cunningham. See attached document for specifics (myz ) (Entered: 12/19/2005)

05/03/2006 05/03/2006 05/03/2006 05/04/2006
05/12/2006 05/18/2006 05/18/2006 12/13/2006

107 MOTION to Consolidate Cases by Bennie Cunningham. (Murray, Richard) (Entered: 05/03/2006)
108 MEMORANDUM in Support re 107 MOTION to Consolidate Cases filed by Bennie Cunningham. (Murray, Richard) (Entered: 05/03/2006)
109 MOTION to Amend/Correct by Bennie Cunningham. (Murray, Richard) (Entered: 05/03/2006)
110 Minute Entry for proceedings held before Judge J. Phil Gilbert (kjr): Final Pretrial Conference held on 5/4/2006. Matter stricken from 5/22/06 trial docket. Matter reset for telephone status Conference on 6/7/2006 09:00 AM before Judge J. Phil Gilbert. (Court Reporter Jane McCorkle.) (dka, ) (Entered: 05/05/2006)
111 RESPONSE to 107 Motion to Consolidate Cases filed by Donald N Snyder, Odie Washington, Asst Dep Diret McVicar, Michael V Neal, George C Welborn, Angela Winsor, H Markel. (Higgerson, Christopher) (Entered: 05/12/2006)
112 ORDER granting 107 MOTION to Consolidate Cases filed by Bennie Cunningham, consolidating case with 00−162−GPM. Signed by Judge J. Phil Gilbert on 5/18/06. (dka, ) (Entered: 05/22/2006)
113 ORDER REASSIGNING CASE. Case reassigned to Judge G. Patrick Murphy for all further proceedings. Judge J. Phil Gilbert no longer assigned to case. Signed by Judge J. Phil Gilbert on 5/22/06. (dka, ) (Entered: 05/22/2006)
114 ORDER: GRANTING 109 MOTION to Amend/Correct filed by Bennie Cunningham. Signed by Judge G. Patrick Murphy on 12/13/06. (lmc)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED. (Entered: 12/13/2006)

 
 Mniteb S t a t e s Court o f SZIppeals
For the Seventh Circuit
Chicago, Illinois 60604
NOTICE OF ISSUANCE OF MANDATE

DATE : TO :

September 28, 2005
Norbert G. Jaworski United States District Court Southern District of Illinois Room 142 750 Missouri Avenue P.O. Box 186 East St. Louis, IL 62202

FROM: Gino J. Agnello, Clerk

RE :

03-3318

Westefer, Robert v. Snyder, Donald

00 C 162, G. Patrick Murphy, Chief Judge

Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A certified copy of the opinion/order of the court and judgment, if any, and any direction as to costs shall constitute the mandate.

[ 1 No record filed

[XI Original record on appeal consisting of:

ENCLOSED :

TO BE RETURNED AT LATER DATE :

[31

Volumes of pleadings

[31

Volumes of loose pleadings

[I]

Volumes of transcripts

[ 1

Volumes of exhibits

[ 1

Volumes of depositions

[ 1

In Camera material

[ 1

Other

Record being retained for use

[ 1

in Appeal ~ 8 -.

Copies of this notice sent to:

Counsel of record

[ 1

United States Marshal

[ 1

United States Probation Office

NOTE TO COUNSEL:

If any physical and large documentary exhibits have been filed in

the above-entitled cause, they are to be withdrawn ten days from the

date of this notice. Exhibits not withdrawn during this period will

be disposed of.

Please acknowledge receipt of these documents on the enclosed copy

of this notice.
......................................

Received above mandate and record, if any, from the Clerk, U.S.

Court of Appeals for the Seventh Circuit.

Date: (1071-120397)

Deputy Clerk, U.S. District Court

Wniteb States' Court of appeals'

r li
~7-

For the Seventh Circuit

Chicago, lllinois 60604

JUDGMENT - WITH ORAL ARGUMENT CC'~rFCFEd

Date: September 6, 2005

BEFORE :

H o n o r a b l e RICHARD D. CUDAHY, C i r c u i t Judge

H o n o r a b l e KENNETH F. R I P P L E , C i r c u i t Judge

H o n o r a b l e TERENCE T . EVANS, C i r c u i t Judge

ROBERT WESTEFER, MARK VONPERBANDT, ALEJANDRO VILLAZANA, e t a l . , Plaintiffs - Appellants
v.
DONALD SNYDER, O D I E WASHINGTON, MICHAEL V . NEAL, e t a l . ,
Defendants - Appellees

A p p e a l f r o m the U n i t e d States D i s t r i c t C o u r t for the S o u t h e r n D i s t r i c t of I l l i n o i s !To. 0 0 C 1 6 2 , G . P a t r i c k Murphy, C h i e f Judge
w T h e j u d g m e n t of t h e d i s t r i c t c o u r t i s A F F I R M E D w i t h respect t o a l l c l a i m s but t h e r e t a l i a t i o n c l a i m and t h e due process c l a i m . With respect t o t h e s e c l a i m s , t h e j u d g m e n t of t h e d i s t r i c t c o u r t i s REVERSED and t h e case i s REMANDED for proceedings c o n s i s t e n t w i t h t h i s opinion. T h e p a r t i e s s h a l l bear t h e i r o w n c o s t s on t h i s appeal. T h e above i s i n accordance w i t h t h e decision of t h i s court entered on t h i s date.

 
 In tlJe
Duitell ~tates Clrnurt nf Appeals
Jtor tlJe §JeuentlJ ((tircuit

No. 10-2957 ROBERT WESTEFER, et al.,
v.
MICHAEL V. NEAL, et al.,

Plaintiffs-Appellees, Defendants-Appellants.

Appeal from the United States District Court for the Southern District of lllinois.
No. OO-cv-162-GPM-G. Patrick Murphy, Judge.
ARGUED SEPTEMBER 8, 2011-DECIDED JUNE 6, 2012
Before EASTERBROOK, Chief Judge, and BAUER and SYKES, Circuit Judges.
SYKES, Circuit Judge. The Closed Maximum Security Unit at Illinois's Tamms Correctional Center is a highsecurity "supermax" prison. In a previous appeal by several plaintiffs seeking to represent a class of inmates incarcerated at Tamms, we reversed the dismissal of a due-process claim challenging the procedures by

2

No. 10-2957

which the Illinois Department of Corrections ("IDOC") assigns inmates to the prison. Westefer v. Snyder, 422 F.3d 570,585-90 (7th Cir. 2005). While the case was awaiting trial on remand, rDOC developed a "Ten-Point Plan for Tamms," significantly revising the procedures for transferring inmates to the facility and including a detailed transfer-review process. Although it had not yet been implemented, rDOC submitted the Plan to the district court at the ensuing bench trial on the dueprocess claim.
The court then issued a lengthy decision holding that the conditions atTamms impose an atypical and significant hardship on inmates, giving rise to a due-process liberty interest in avoiding transfer to the prison. The court also held that rDOC's procedures for making transfer decisions are constitutionally deficient. As a remedy, the court entered an injunction incorporating the procedures contained in the Ten-Point Plan, effectively constitutionalizing the specific regulatory regime Illinois was voluntarily implementing. The IDOC defendants appealed, challenging only the terms of the injunction. rDOC argues that the scope and specificity of the injunction exceed what is required to remedy the dueprocess violation, contrary to the terms of the Prison Litigation Reform Act ("PLRA"), 18 U.S.c. § 3626(a)(1)(A), and to cautionary language from the Supreme Court about remedial flexibility and deference to prison administrators in this type of prison litigation.
We agree and therefore vacate the injunction. Under the PLRA injunctive relief to remedy unconstitutional

No. 10-2957

3

prison conditions must be "narrowly drawn," extend "no further than necessary" to remedy the constitutional violation, and use the "least intrusive means" to correct the violation of the federal right. Id. The relevant dueprocess minimums are those set forth in Wilkinson v. Austin, 545 U.S. 209 (2005); Hewitt v. Helms, 459 U.S. 460 (1983); and Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1 (1979). These standards preserve significant administrative discretion and flexibility for prison officials. Making roOC's Ten-Point Plan a constitutional baseline, as the district court did, eliminates the operational discretion and flexibility of Illinois prison administrators, far exceeding what due process requires and violating the mandate of thePLRA.

I. Background
The Closed Maximum Security Unit at Tamms is the highest security prison in Illinois. Inmates are kept in almost constant isolation because of disruptive behavior and other safety concerns. A group of inmates at Tamms brought this action against various IDOC officials alleging several constitutional claims and seeking to represent a class of inmates who have been or will be transferred to the supermax facility. The class claim challenged the procedures IDOC uses to assign inmates

4

No. 10-2957

to Tamms.' In the previous appeal, we reversed the dismissal of this claim and remanded with instructions that the district court evaluate the inmates' due-process argument under the Supreme Court's then-recent decision in Wilkinson. Westefer, 422 F.3d at 589-90. The district court held a bench trial and concluded that the conditions at Tamms "impose an atypical and significant hardship," Wilkinson, 545 U.S. at 224, and that Illinois inmates have a liberty interest in avoiding transfer to the prison. The court also held that IDDe's then-extant procedures for making transfer decisions violated the due-process rights of the inmates. mDC does not challenge the court's decision on the merits.
Addressing the issue of remedy, the court noted that inmates are assigned to Tamms in one of two statuses: disciplinary segregation or administrative detention. Inmates in disciplinary segregation are those whose record of prison discipline marks them as dangerous even in the disciplinary-segregation system in the State's other prisons. Inmates in administrative detention are classified as too dangerous to be housed in the general population in other prisons because, for example, they are members of prison gangs. The court held that IDDe's transfer procedures were constitutionally deficient for both groups of inmates.

1 There were also some individual claims brought by specific inmates. Westefer v. Snyder, 422 F.3d 570, 576-85 (7th Cir. 2005). N one are relevant here.

No. 10-2957

5

Perhaps taking a cue from our earlier decision, IDOC initiated a review of its transfer procedures while the case was pending on remand and at trial submitted the TenPoint Plan, which substantially revised the process by which inmates would be assigned to Tamms. The Plan had been signed by the governor but not yet written into implementing regulations at the time of trial. The court used the Ten-Point Plan as the framework for its remedial order, incorporating it almost wholesale into a detailed 16-point injunction. Among other things, the injunction specifically requires the following:
1. The Tamms warden shall appoint a Transfer Review Committee to conduct hearings for each inmate transferred into Tamms;
2. The hearings before the Transfer Review Committee shall "whenever possible" take place within 10 days of placement (for administrative-detention inmates) and within 30 days (for disciplinary-segregation inmates and also those transferred in investigative status);
3. All inmates transferred to Tamms before the date the injunction was entered shall have a hearing before the Transfer Review Committee within 180 days of the order-within 90 days for inmates who have been housed at Tamms for more than five years;
4. Each inmate shall be given written notice of the reasons for his Tamms placement at least 48 hours before his hearing;

6

No. 10-2957

5. Each inmate shall be given an opportunity to refute the reasons specified in the notice, including the right to request that the Transfer Review Committee interview persons with relevant information;
6. IOOC shall make a digital recording of all hearings before the Transfer Review Committee, which shall be retained by the department;
7. Following each hearing, the Transfer Review Committee shall prepare a written report containing the inmate's demographic information, the reason for placement, a summary of his disciplinary history, his segregation status, a record of the proceedings, whether he voluntarily renounced association with any prison gang, and the committee's placement recommendation;
8. The Transfer Review Committee's report shall be transmitted to the warden for review, and the warden shall transmit his approval or disapproval to the Chief of Operations of the 100C, who shall notify the inmate of the final determination;
9. Each inmate shall have the right to appeal the decision of the Chief of Operations to 100C's Chief Legal Counsel; and
10. The Transfer Review Committee shall conduct "routine reviews" and annual rehearings for all inmates transferred to Tamms in administrative-detention status.

No. 10-2957

7

IDOC appealed, challenging the injunction's scope and specificity under the PLRA and the Supreme Court's decision in Wilkinson.

II. Discussion
We review the district court's decision granting injunctive relief for abuse of discretion, Judge v. Quinn, 624 F.3d 352, 357 (7th Cir. 2010), but a legal error by the court is necessarily an abuse of discretion, Nat'l Spiritual Assembly of the Baha'Is of the U.S. of Am. Under Hereditary Guardianship, Inc. v. Nat'l Spiritual Assembly of the Bahli'fs of the U.S. of Am., Inc., 628 F.3d 837, 846 (7th Cir. 2010). The PLRA circumscribes the scope ofthe court's authority to enter an injunction in the corrections context. Where prison conditions are found to violate federal rights, remedial injunctive reliefmust be "narrowly drawn, extend[] no further than necessary to correct the violation of the Federal right, and [use] the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.c. § 3626(a)(I)(A); see Lindell v. Frank, 377 F.3d 655, 660 (7th Cir. 2004) (reversing part of an injunction as overbroad in violation of the PLRA). This section of the PLRA enforces a point repeatedly made by the Supreme Court in cases challenging prison conditions: "[P]rison officials have broad administrative and discretionary authority over the institutions they manage." Hewitt, 459 U.S. at 467.
As we noted in our earlier decision in this case, in Wilkinson the Court considered the supermax-transfer regime used in Ohio and found that the transfer process

8

No. 10-2957

in that state-which was the model for Illinois's Ten-Point Plan-"strikes a constitutionally permissible balance" between inmates' due-process rights and prison officials' administrative discretion and safety concerns. 545 U.S. at 230; see also Westefer, 422 F.3d at 588-89. In crafting the injunction in this case, however, the district court mistakenly conflated what is constitutionally adequate to satisfy due process with what is constitutionally required. Wilkinson upheld the Ohio supermax-assignment regime, finding the State's procedures sufficient to satisfy the due-process rights of supermax inmates. The Court did not hold that the specifics of Ohio's supermax-transfer regime were constitutionally required as the due-process floor. In other words, nothing in Wilkinson constitutionalized Ohio's program, making it mandatory for every state. Rather, the Court simply held that Ohio inmates transferred to the supermax prison are entitled to some "informal, nonadversary procedures"-as in Hewitt, 459 U.S. at 476, and Greenholtz, 442 U.S. at 14-16--and that Ohio's transfer procedure satisfied this requirement. Wilkinson, 545 U.S. at 211-12.
Wilkinson thus stands for a more general proposition: Inmates transferred to a supermax prison are entitled to informal, nonadversarial due process. The district court's injunction goes well beyond this, locking in highly specific formal requirements controlling the timing and content of the notice and hearing that each transferred inmate must receive, and even going so far as to impose a right to appeal. An injunction of this scope and specificity is inconsistent with the "informal, nonadversary" model set forth in Wilkinson, Hewitt,

No. 10-2957

9

and Greenholtz, and cannot be reconciled with the PLRA's requirement that injunctions in prison-conditions cases must be narrowly drawn and use the least intrusive means of correcting the violation of the federal right.
A few examples will suffice to explain the overbreadth of this injunction. Informal due process requires "some notice" of the reasons for the inmate's placement, Hewitt, 459 U.S. at 476 ("An inmate must merely receive some notice of the charges against him . . . ."), and enough time to "prepare adequately" for the administrative review, see Greenholtz, 442 U.S. at 14 n.6; see also Wolffv. McDonnell, 418 U.S. 539, 564 (1974) (Notice gives an inmate time "to prepare for the appearance before the Adjustment Committee."). In Wolffthe Supreme Court held that inmates must receive notice "[a]t least a brief period of time ... , no less than 24 hours," prior to a hearing to revoke good-conduct credits. 418 U.S. at 564; see also Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011) (same). Here, the injunction requires that IDOC provide notice of the reasons for an inmate's transfer to Tamms at least 48 hours before the hearing-twice the constitutional minimum for notice ordered by the Supreme Court in Wolff. And Wolff involved good-conduct credit revocation, which extends the length of an inmate's incarceration, implicating a more significant liberty interest than a placement determination and requiring a greater measure of procedural protection. See Wilkinson, 545 U.S. at 228. 100C's willingness to provide 48hour notice as a part of its Ten-Point Plan goes beyond the 24-hour notice required in Wolff and thus passes constitutional muster. But it contradicts the

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PLRA's narrow-tailoring requirement to mandate that specific timeframe in an injunction.
Moreover, the informal review procedure contemplated by Wilkinson, Hewitt, and Greenholtz need only take place within a "reasonable time" of the inmate's transfer into Tamms. The injunction here establishes 10-day and 30-day time limits (for administrative and disciplinary transferees, respectively) within which a hearing before the Transfer Review Committee must take place, although it does contain some hedging language stating that IODC shall comply with these deadlines "whenever possible." We have previously held that a wait of 17 days in administrative segregation before receiving a review is not a dueprocess violation. Morales v. Newkirk, No. 95-3943, 1996 WL 253852, at "1 (7th Cir. May 10, 1996). In Morales we relied on decisions from other circuits in which a wait of a month or longer before final review was held to be not unreasonable. See Childs v. Pellegrin, 822 F.2d 1382, 1388 (6th Cir. 1987) (meaningful review 14 days after segregation began and again two months later when warden issued final decision was not unreasonable delay); Sourbeer v. Robinson, 791 F.2d 1094, 1099-1100 (3d Cir. 1986) (35 days in segregation not unreasonable delay). The point here is that due process does not require that the placement review take place within some specific number of days. To repeat, the PLRA requires that an injunction use the "least intrusive means necessary to correct the violation of the [f]ederal right." Locking in specific deadlines--even with hedging "whenever possible" language-deprives prison administrators of the operational flexibility to adjust procedures as future

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needs dictate and cannot be considered the least intrusive means of correcting the due-process violation.
In addition, the injunction specifies in some detail the content and form of the review process, but the Supreme Court has made it clear that the requirements of informal due process leave substantial discretion and flexibility in the hands of the prison administrators. In Hewitt, which involved review procedures in connection with a transfer to administrative segregation, the Court held that an inmate must have
an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where theybelieve a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied.
Hewitt, 459 U.S. at 476. In other words, only a single prison official is needed as the neutral reviewer-not necessarily a committee. Informal due process requires only that the inmate be given an "opportunity to present his views"-not necessarily a full-blown hearing. ld.; see Wheeler v. Sims, 951 F.2d 796, 800-01 (7th Cir. 1992). If the prison chooses to hold hearings, inmates do not have a constitutional right to call witnesses or to require prison officials to interview witnesses. Wilkinson, 545 U.S. at 228; Alston v. DeBruyn, 13 F.3d 1036, 1042 n.2 (7th

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Cir. 1994).' And the Constitution certainly does not require the prison to digitally record the hearings.
Nor does informal due process necessarily require "a written decision describing the reasons" for an inmate's placement, Alston, 13 F.3d at 1042 n.2 (citing Toussaint v. McCarthy, 801 F.2d 1080, 1100-01 (9th Cir. 1986», or mandate an appeal procedure. Hewitt requires, in the administrative-segregation context, only a review of the inmate's placement by "the prison official charged with deciding whether to transfer him to administrative segre-

2 The plaintiffs point to language in Wolffv. McDonnell stating that "the inmate facing disciplinary proceedings should be allowed 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." 418 U.S. 539, 566 (1974). We have recently reaffirmed the right of inmates to "an opportunity to call witnesses and present documentary evidence (when consistent with institutional safety) to an impartial decision-maker." Jones v. Cross, 637 F.3d 841, 845 (7th Cir. 2011). However, both Wolffand Jones dealt with a hearing before a good-conduct credit-adjustment committee; good-time credit revocation affects the length of an inmate's incarceration and not merely his placement, and thus triggers greater due-process requirements than those that are called for in this context. Wilkinson v. Austin, 545 U.S. 209, 228 (2005); see Hewitt v. Helms, 459 U.S. 460, 475 (1983) (circumstances of confinement involve a lesser liberty interest and thus require less process than decisions affecting the length of confinement). Hewitt and Wilkinson set the correct constitutional standard for "informal, nonadversary" review in the transfer-placement context.

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gation," not a right to additional layers of review. 459 U.S. at 476.
Hewitt does, however, require a periodic review of the placement determination once it has been definitively made. ld. at 477 n.9; Smith v. Shettle, 946 F.2d 1250, 1254 (7th Cir. 1991).
This review will not necessarily require that prison officials permit the submission of any additional evidence or statements. The decision whether a prisoner remains a security risk will be based on facts relating to a particular prisoner-which will have been ascertained when determining to confine the inmate to administrative segregation-and on the officials' general knowledge of prison conditions and tensions, which are singularly unsuited for "proof" in any highly structured manner.
Hewitt, 459 U.S. at 477 n.9. Thus, as with the initial placement review, the periodic review may also be an "informal and nonadversary" review, Rowe v. Hurley, No. 94-2343, 1995 WL 375861, at *3 (7th Cir. June 22, 1995), and its frequency is committed to "the [administrative] discretion of the prison officials," Toussaint v. McCarthy, 926 F.2d 800, 803 (9th Cir. 1990) (holding that 120-day interval satisfied due process); see Clark v. Brewer, 776 F.2d 226, 234 (8th Cir. 1985); Smith, 946 F.2d at 1255 ("To conclude, however, that the due process clause fixes thirty days as the minimum frequency of the required review would be to legislate in the name of the Constitution at an excessive level of detail ...."). The periodic review need only be sufficiently frequent that administrative segregation

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does not become "a pretext for indefinite confinement of an inmate" at Tamms. Hewitt, 459 U.S. at 477 n.9.
In short, the injunction goes well beyond what the Supreme Court has said is constitutionally required. By incorporating a highly specific notice-and-hearing system into the injunction, the district court has in effect established the details of that system as constitutional requirements. This is not the narrow tailoring that the PLRA requires. It is up to IDDC to craft transfer-review procedures that meet the requirements of due process. The court should do no more than to order IDDC officials to do so in general terms and to verify that the plan they submit satisfies the relevant constitutional standards. Accordingly, we VACATE the district court's injunction and REMAND with instructions to enter an injunction consistent with this opinion.

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a number of faults, including that it was conducted months before trial, failed to consider any potential effects of Burt’s heavy medication, and could not have taken into account the repeated changes in Burt’s prescriptions between the date of the examination and the start of his trial.
Burt’s ineffective assistance claim differs from his due process claim because the analysis for the due process claim focuses only on events that happened in court that should have alerted the trial judge to the need for a competency hearing. Although those events alone should have alerted both defense counsel and the trial court to the need for a new competency hearing, Burt’s ineffective assistance claim is bolstered by a wealth of other evidence suggesting he was incompetent. The Illinois Supreme Court failed to acknowledge much of this evidence. Specifically, the court did not mention Nettles’s statement in his affidavit that ‘‘Burt did not fully comprehend legal advice and that his behavior throughout the trial, particularly his decision to change his plea to guilty, was not rational.’’ Nor did it mention Nettles’s assertion that Burt’s primary motivation for pleading guilty was so he could be returned to state prison where smoking was permitted.
The court likewise completely disregarded Dr. Rossiter’s opinion that Burt’s brain damage made him particularly susceptible to the adverse effects of the psychotropic drugs he was taking. Dr. Rossiter opined that Burt’s psychiatric history and medication regimen warranted a competency hearing, and the Illinois Supreme Court simply ignored his report. Dr. Rossiter’s report was particularly relevant because it highlighted one of the critical problems with Dr. Pearson’s evaluation—its complete disregard for Burt’s extensive use of psychotropic medications. All the court said about Dr. Pearson’s report was that he had deemed Burt competent to stand

trial; the court did not mention that the evaluation was conducted eight months before trial or that it failed to address Burt’s medications. See Burt II, 275 Ill.Dec. 477, 792 N.E.2d at 1258. These pieces of evidence all cast substantial doubt on Burt’s competency at the time he pleaded guilty.
The Illinois Supreme Court unreasonably applied Strickland to the facts of Burt’s case. The court did not address the first prong of the test. Its analysis of the second prong ignored a wealth of evidence that established a reasonable probability Burt would have been found incompetent had a hearing been held. See Eddmonds, 93 F.3d at 1317.
III. CONCLUSION The judgment of the district court denying Burt’s petition for a writ of habeas corpus is REVERSED. We REMAND with instructions to GRANT the writ of habeas corpus unless Illinois informs the district court within a reasonable time to be fixed by the district court that it intends to retry Burt.
,
Robert WESTEFER, Mark Vonperbandt, Allejandro Villazana, et al., Plaintiffs–Appellants, v.
Donald SNYDER, Odie Washington, Michael V. Neal, et al., Defendants–
Appellees. No. 03–3318.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 29, 2004. Decided Sept. 6, 2005. Background: State prisoners brought § 1983 action, challenging their transfers

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to particular prison as violative of their constitutional rights. The United States District Court for the Southern District of Illinois, G. Patrick Murphy, Chief Judge, granted summary judgment for state, and prisoners appealed.
Holdings: The Court of Appeals, Ripple, Circuit Judge, held that:
(1) transfers did not violate gang members’ First Amendment associational rights;
(2) transfers did not constitute ex post facto violation;
(3) suit was not subject to dismissal for failure to exhaust administrative remedies;
(4) prisoners satisfied duty to amend interrogatory responses; and
(5) complaint stated claim for denial of due process.
Affirmed in part, reversed in part, and remanded.
1. Federal Courts O776 District court’s dismissal of prisoner’s
civil rights complaint on ground of frivolousness is reviewed de novo. 28 U.S.C.A. § 1915A.
2. Constitutional Law O91 Prisons O13.5(1) State’s policy of transferring prisoners
who were members of gangs to high security facility did not violate their First Amendment associational rights; prisoners had no First Amendment right to associate with gangs. U.S.C.A. Const.Amend. 1.
3. Constitutional Law O203 Prisons O13.5(1) State agency’s alleged change of poli-
cy from encouraging prison gang membership to punishing members by transferring them to high security facility did not constitute ex post facto violation; agency’s

exercise of its discretionary authority to assign prisoners was not ‘‘law,’’ and transfer was not increase in punishment for crime of conviction. U.S.C.A. Const. Art. 1, § 10, cl. 1.
4. Convicts O6 Failure of prisoner to exhaust admin-
istrative remedies before filing suit with respect to prison conditions is affirmative defense that prison officials have burden of proving. Civil Rights of Institutionalized Persons Act, § 7(a), 42 U.S.C.A. § 1997e(a).
5. Civil Rights O1319 State prisoners’ § 1983 suit challeng-
ing transfers to high security prison was not subject to dismissal for failure to exhaust administrative remedies; transfer review process was not available to prisoners in disciplinary segregation, and only meaningfully available to other prisoners who already knew of reasons for transfer, and state had failed to uniformly treat transfer decisions as grievable. 42 U.S.C.A. § 1983; Civil Rights of Institutionalized Persons Act, § 7(a), 42 U.S.C.A. § 1997e(a).
6. Civil Rights O1319 State prisoners’ grievances were suffi-
cient to alert prison that prison transfer decision was being challenged, as required to exhaust administrative remedies before filing civil rights suit challenging transfer; although transfer challenges were made within substantive complaints about prison conditions, each grievance expressed concern about not being told reason for transfer or listed transfer from prison as requested remedy. 42 U.S.C.A. § 1983; Civil Rights of Institutionalized Persons Act, § 7(a), 42 U.S.C.A. § 1997e(a).
7. Federal Courts O820 Although district court’s discovery
rulings are reviewed only for abuse of

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discretion, court must apply correct legal standards and not reach erroneous conclusion of law in forming basis for discovery sanction; reaching erroneous legal conclusion constitutes abuse of discretion.

cient pre— and post-transfer opportunities for prisoners to challenge propriety of transfer. U.S.C.A. Const.Amend. 14.

8. Federal Civil Procedure O759 Defense of waiver may itself be
waived if not raised.
9. Federal Civil Procedure O1534 State prisoners challenging their
transfer to particular prison, who had responded to interrogatories asking for their theory of case by stating that transfers were retaliatory, satisfied duty to amend their responses, so as to include allegations that placement forms had been falsified, by submitting affidavits challenging veracity of forms disclosed by state; prisoners were not required to formally amend interrogatories. Fed.Rules Civ.Proc.Rule 26(e)(2), 28 U.S.C.A.
10. Federal Civil Procedure O1537.1 Any failure by state prisoners chal-
lenging their transfer to particular prison, to amend interrogatory responses so as to include allegations that their placement forms had been falsified, was harmless, and so did not justify exclusion of falsification evidence as sanction; prisoners offered falsification theory, via affidavits, shortly after discovering it, and any prejudice to prison could have been cured by granting it more time to respond. Fed. Rules Civ.Proc.Rules 26(e)(2), 37(c)(1), 28 U.S.C.A.
11. Constitutional Law O272(2) Prisons O13.5(1) Illinois prisoners transferred to high
security ‘‘Tamms’’ prison stated claim for denial of due process; conditions at prison were arguably of sufficient qualitative difference to give prisoners liberty interest in not being transferred there, and there was dispute as to whether state provided suffi-

Alan S. Mills (argued), Uptown People’s Law Center, Chicago, IL, for Plaintiffs– Appellants.
Erik G. Light (argued), Brian F. Barov, Office of Attorney General, Crim. Appeals Div., Chicago, IL, for Defendants–Appellees.
Before CUDAHY, RIPPLE and EVANS, Circuit Judges.
RIPPLE, Circuit Judge.
The plaintiffs, prisoners incarcerated at Tamms Correctional Center (‘‘Tamms’’) in Illinois, brought this § 1983 action against officers and employees of the Illinois Department of Corrections (collectively, ‘‘IDOC’’). The prisoners alleged that their transfers to Tamms violated their rights to due process of law and freedom of association and against ex post facto punishment. The district court dismissed these counts for failure to state a claim. Another count, alleging that the transfer constituted retaliation for the exercise of First Amendment rights, survived this initial scrutiny. The parties then conducted discovery on this remaining count. Following discovery, the district court granted summary judgment to IDOC. The prisoners appeal the decision of the district court with respect to all of these claims. After oral argument, we ordered the parties to file supplemental briefs addressing the administrative process by which an inmate, already incarcerated at Tamms, can challenge his assignment to that facility. After the Supreme Court decided Wilkinson v. Austin, ––– U.S. ––––, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), the parties filed supplemental

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briefs addressing the applicability of that decision to this case. For the reasons set forth in the following opinion, we affirm the judgment of the district court with respect to the freedom of association and ex post facto claims. With respect to the retaliation and due process claims, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.
I
BACKGROUND

their gang affiliation. The litigation plaintiffs submit that IDOC has a policy of transferring inmates with a history of filing actions, grievances or other complaints about IDOC and prison conditions. They claim that IDOC has a policy of transferring prisoners with litigation histories to Tamms as a means of retaliating for the trouble they cause the department through their litigation activities. Each of these prisoners asserts that his disciplinary history does not warrant an assignment to Tamms.

A. Facts
Tamms is the highest security prison in Illinois. IDOC designed the conditions there to be harsh, so that the threat of being transferred to Tamms would deter prisoners throughout the system from disobeying prison rules. According to IDOC, all Tamms prisoners are exposed to hardships that are not experienced in segregated confinement at any other maximum security facility in Illinois.1 IDOC transferred the plaintiffs to Tamms within a year after it opened.
The plaintiffs 2 are organized into two categories, labeled generally the ‘‘litigation plaintiffs’’ and the ‘‘gang plaintiffs.’’ The gang plaintiffs, some of whom are also litigation plaintiffs, are associated with prison gangs (in IDOC terminology, ‘‘Security Threat Groups’’ or ‘‘STGs’’). The gang plaintiffs claim that IDOC encouraged their gang activity before 1996, but then changed policies and now transfers gang leaders to Tamms for no reason but

B. District Court Proceedings
In a four-count § 1983 complaint, only three counts of which are now before this court, the gang plaintiffs alleged violations of the First Amendment right of association and of the right to be free from ex post facto punishment. The litigation plaintiffs sought money damages and injunctive relief for retaliatory interference with their First Amendment right to petition the courts. All prisoners asserted violations of their right to due process.
The district court conducted a preliminary screening of the prisoners’ complaints. See 28 U.S.C. § 1915A. This review resulted in the dismissal for failure to state a claim of the due process claim of all the prisoners as well as the associational rights claim and the ex post facto claim of the gang plaintiffs.
With respect to the retaliation claim, the district court held that the litigation plaintiffs met the threshold requirements of

1. In their initial complaint, the plaintiffs described the purpose of Tamms and the harshness of confinement conditions there. In this appeal, IDOC has accepted the descriptions as true.
2. Of the thirty-three captioned appellants in this case, Mr. Carroll has been dismissed by his own request and Mr. Chapman committed

suicide in August 2004. Of the remaining defendants, it appears that several have been released from IDOC’s custody or no longer are at Tamms. To the extent that the appellants no longer are in custody or are incarcerated at Tamms, they lack standing to request injunctive relief from their assignment to Tamms.

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§ 1915A because retaliation for exercising one’s right to access to the courts is a cognizable constitutional claim, and the prisoners had pleaded sufficiently such a claim. However, the district court struck, as a discovery sanction, a good deal of the evidence submitted by the prisoners on the issue of retaliation. Subsequently, it granted the state officials summary judgment on the retaliation claim.
A more detailed rendition of the district court’s rationale is set forth in our discussion of each claim on appeal.
II
DISCUSSION
A. The Gang Plaintiffs’ Claims
The gang plaintiffs asserted that their transfer to Tamms, on account of gang membership, violated their First Amendment right to freedom of association and the Ex Post Facto Clause. The district court rejected the associational rights claim on the grounds that the prisoners had no First Amendment right to belong to a gang and that regulating gang activity served legitimate penological goals. The court rejected the ex post facto argument because the change in prison conditions constituted a reasonable regulation and not additional punishment. Therefore, reasoned the district court, even if IDOC transferred them to Tamms in retaliation for their gang activities, the gang plaintiffs had no cognizable claim.
[1] We review these § 1915A dismissals de novo. Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir.2003). In undertaking such a review, we must construe all allegations as true and in the light most favorable to the prisoners. Id.

1. Freedom of Association
[2] The gang plaintiffs submit that IDOC’s policy of transferring STG members to Tamms violates their First Amendment right of association. They allege that IDOC’s policy prior to 1996 encouraged gang membership; current policy, by contrast, restricts prisoners’ rights to associate with prison gangs.3 The gang plaintiffs challenge IDOC’s regulations that allow officials to transfer prisoners who are gang members or ‘‘who may be planning to engage’’ in gang activity, Ill. Admin. Code tit. 20, § 505.40(b), as unconstitutionally overbroad.
IDOC contends that the prisoners’ transfers to Tamms implicate neither expressive nor intimate rights to association. In its view, regardless of whether IDOC once had a policy of cooperating with prison gangs, prisoners have no First Amendment right to associate with gangs.
We agree with IDOC on this point. ‘‘Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.’’ Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). ‘‘When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.’’ Procunier v. Martinez, 416 U.S. 396, 405–06, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Although we have not so held expressly, we have opined that ‘‘gang membership seems not to implicate the right of association.’’ Fuller ex rel. Fuller v. Decatur Pub. Sch. Bd. of Educ., 251 F.3d 662, 667 (7th Cir.2001) (citing City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)). But cf. Fuller v. Johnson, 114 F.3d 491, 498 (5th Cir.1997) (assuming protection but holding

3. At oral argument, IDOC admitted that prisons in the system had a pre–1996 practice of

cooperating with prison gangs to maintain order in the facilities.

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no constitutional error in admitting evidence of membership in a gang that had committed brutal acts, as evidence of future dangerousness, with citation to Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992)).
We see no basis for maintaining that those who have been incarcerated as a result of a criminal conviction and consequently deprived of some of the most basic of associational opportunities during their imprisonment somehow retain the right to belong to a gang within the prison walls when prison officials have determined that such a group is detrimental to the achievement of the prison’s legitimate penological goals. The decision of prison administrators as to the detrimental effect of such groups is a decision to which we owe great deference. See Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 132, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). Moreover, just recently, the Supreme Court spelled out, in no uncertain terms, the incompatibility of prison gangs with any penological system:
Prison security, imperiled by the brutal reality of prison gangs, provides the backdrop of the State’s interest. Clandestine, organized, fueled by race-based hostility, and committed to fear and violence as a means of disciplining their own members and their rivals, gangs seek nothing less than to control prison life and to extend their power outside prison walls. See Brief for State of California et al. as Amici Curiae 6. Murder of an inmate, a guard, or one of their family members on the outside is a common form of gang discipline and control, as well as a condition for membership in some gangs. See, e.g., United States v. Santiago, 46 F.3d 885, 888 (C.A.9 1995); United States v. Silverstein, 732 F.2d 1338, 1341 (C.A.7 1984). Testifying

against, or otherwise informing on, gang activities can invite one’s own death sentence. It is worth noting in this regard that for prison gang members serving life sentences, some without the possibility of parole, the deterrent effects of ordinary criminal punishment may be substantially diminished. See id., at 1343 (‘‘[T]o many inmates of Marion’s Control Unit [a federal Supermax facility,] the price of murder must not be high and to some it must be close to zero’’).
Wilkinson, 125 S.Ct. at 2396–97.
Although, in the past, some prison officials in Illinois apparently intentionally abdicated their authority to prison gang leaders, this inexplicable deviation certainly does not cast doubt on the reality that prison gangs are a manifest threat to prison order and discipline and that there is no federal constitutional impediment to their ban by prison officials. We thus agree with the district court that the gang plaintiffs’ contention that they have a right grounded in the First Amendment to belong to a prison gang is simply too tenuous to state a claim. See Jones, 433 U.S. at 126–29, 97 S.Ct. 2532; Rios v. Lane, 812 F.2d 1032, 1036 (7th Cir.1987).
2. Ex Post Facto
[3] The gang plaintiffs further submit that the district court erred in dismissing their § 1983 complaint because IDOC’s policy of transferring them to Tamms violates the Ex Post Facto Clause of the Constitution. They base their argument on IDOC’s pre–1996 policy of cooperating with prison gangs. According to the prisoners, IDOC’s policy shift from encouraging gang membership to transferring gang members to Tamms once the facility opened, constitutes ex post facto punish-

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ment of previously allowed activity.4
The Ex Post Facto Clause forbids a legislature from passing laws retroactively altering the elements of or increasing the punishment for a crime. California Dep’t of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). For ex post facto purposes, therefore, we must address whether (1) the action complained of constitutes a ‘‘law,’’ and (2) the sanction can be considered a ‘‘punishment.’’ Id.
On the first inquiry, we generally have limited ex post facto consideration to legislative acts, and have not extended the definition to interpretations of law made by administrative agencies. See Prater v. U.S. Parole Comm’n, 802 F.2d 948 (7th Cir. 1986) (en banc). Under Illinois law, IDOC has the discretionary authority to assign prisoners to any facility in its system, 730 ILCS § 5/5–8–6(a), and we cannot say that the exercise of this discretionary authority constitutes a ‘‘law’’ for ex post facto purposes.
The prisoners also fail the second inquiry. ‘‘As Collins [v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ] and subsequent cases make clear, the Ex Post Facto Clause does not prohibit every alteration in a prisoner’s confinement that may work to his disadvantage.’’ Gilbert v. Peters, 55 F.3d 237, 238 (7th Cir.1995). ‘‘Punishment’’ for ex post facto analysis concerns the length of imprisonment, not the conditions of imprisonment. Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000); United States v. Shorty, 159 F.3d 312, 317 (7th Cir.1998). We have noted that a significant factor to

consider in determining whether a law is punitive is the statute’s purpose. Gilbert, 55 F.3d at 238. Although a transfer to Tamms constitutes a change in the conditions of confinement for a duly-convicted prisoner, it cannot be characterized as an increase in the punishment for the crime of conviction, but rather is a response to legitimate security concerns and forwards valid penological interests. See Morales, 514 U.S. at 510, 115 S.Ct. 1597.
The district court correctly dismissed the gang plaintiffs’ ex post facto claims.
B. The Litigation Plaintiffs’ Claims
The litigation plaintiffs alleged that they had been sent to Tamms in retaliation for filing lawsuits against IDOC and its officials. The district court determined that several of the prisoners—Mr. Felton, Mr. Horton, Mr. V. Rodriguez and Mr. Santiago—had failed to exhaust their administrative remedies. It therefore dismissed the suits of these prisoners without prejudice.
IDOC moved for summary judgment. At the same time, they moved to strike certain evidence offered by the prisoners in response, under Federal Rule of Civil Procedure 37(c)(1). The evidence consisted of affidavits indicating that information in the prisoners’ placement forms 5 was false. The IDOC officials admitted relying upon these forms in making their transfer decisions. IDOC predicated its motion to strike on the assertion that the prisoners had presented this evidence but had failed to amend answers to previously-served IDOC interrogatories as required by Federal Rule of Civil Procedure 26.

4. In the alternative, the prisoners argue that the change in IDOC’s policy violates their due process rights because they were not given fair warning that gang membership would give rise to additional criminal penalties. We discuss this alternative argument in the due process discussion infra.

5. Placement forms summarize personal information about the prisoner, including their segregation status and the STG affiliation or general disciplinary problems justifying their transfer to Tamms.

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The district court granted both the motion to strike and the motion for summary judgment. On the motion to strike, the substance of which is considered in greater detail below, the court determined that the prisoners had insufficient justification for failing to amend their answers to IDOC interrogatories. The district court therefore did not consider, when deciding the summary judgment motion, the prisoners’ claim that IDOC had placed them at Tamms based on falsified placement forms.6
On the merits of the summary judgment motion,7 the district court noted that, in order to prevail on their retaliation claim, the prisoners had to demonstrate that their conduct was constitutionally protected and that this conduct (the litigation previously filed by the prisoners) constituted a substantial or motivating factor in IDOC’s decision to transfer them to Tamms. Each prisoner presented a chronology of events that allegedly demonstrated that their filing of a previous lawsuit had motivated IDOC’s transfer decision. With the sole exception of Mr. Clayton,8 the district court determined that the prisoners’ chronologies had failed to connect their transfers to their previous litigation activity. Because these prisoners had not offered any additional evidence, the court determined that they had not met their burden. The court further opined that the same result would obtain

for Mr. Felton and Mr. Horton, had their cases not been dismissed for failure to exhaust.
The prisoners now appeal the district court’s § 1915A ruling based on exhaustion as well as its grant of IDOC’s motions to strike and for summary judgment.
1. Exhaustion of Administrative Remedies
[4, 5] The Prison Litigation Reform Act (‘‘PLRA’’) prohibits prisoners from filing suit with respect to prison conditions unless all available administrative remedies have been exhausted. 42 U.S.C. § 1997e(a). The parties agree that this action is subject to the PLRA’s exhaustion requirement. Although exhaustion is a precondition to the prisoners’ suit, failure to exhaust is an affirmative defense that IDOC has the burden of proving. See Dale v. Lappin, 376 F.3d 652, 656 (7th Cir.2004). IDOC claims that several of the prisoners failed to exhaust their administrative remedies and are precluded from bringing this suit.
Our consideration of this question requires that we ascertain the administrative procedures by which a prisoner may challenge his transfer to Tamms. Because the record and the initial briefing did not present a clear picture, we requested that the parties file supplemental briefs addressing the administrative procedures available to a Tamms prisoner. Upon review of these

6. The district court also determined that the prisoners failed to disclose facts supporting their claim against Mr. Snyder as requested in the interrogatories. As a result, the court dismissed Mr. Snyder as a defendant.
7. The court also treated the motion for summary judgment as a motion by all of the officials—including some defendants who had not filed motions—because the Illinois Attorney General represented all of the defendants.
8. As for Mr. Clayton, the district court noted that he had presented some evidence of a

direct threat, made by one of the officials named as defendants, to send him to Tamms because of his grievances and lawsuits. However, because an official other than the one who had allegedly threatened Mr. Clayton approved his transfer, the district court determined that Mr. Clayton had failed to connect his activities with his transfer. Therefore, with respect to each of the prisoners, the district court granted summary judgment in favor of the prison officials.

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submissions,we must conclude that IDOC has not carried its burden of establishing that the prisoners failed to exhaust available administrative remedies.
IDOC submits that inmates have two avenues through which they must challenge their transfers to Tamms: through the transfer review hearing process and the inmate grievance process. Illinois regulations establish two types of transfer hearings at Tamms, depending on the inmate’s segregation category upon arrival at the facility. Prisoners are classified as subject to either administrative or disciplinary segregation, and different review processes govern each category.
Inmates who are in administrative detention when they arrive are afforded a transfer review hearing within ten working days (‘‘whenever possible’’) of their transfer to Tamms. Ill. Admin. Code tit. 20, § 505.60(a). This hearing includes the opportunity for an inmate to appear, make statements challenging his placement, submit documentary evidence and request that the transfer review committee interview other persons. Id. § 505.60(b). The committee then makes a recommendation to the Chief Administrative Officer (‘‘CAO,’’ i.e., the warden), who approves or denies the recommendation before forwarding it to the Assistant Deputy Director. Id. § 505.60(d).9 Presumably, those plaintiffs who were sent to Tamms in administrative detention status received this initial transfer review hearing, although, for reasons discussed below, the record is silent in that respect.
Inmates who are transferred to Tamms in disciplinary segregation status are not afforded an initial transfer review hearing; regulations provide only that such individuals receive a hearing after their term of

disciplinary segregation ends. Id. § 505.60(a). This provision must prove problematic for some inmates. If a prisoner is sent to Tamms in a disciplinary segregation status that does not expire for a very long time, he will not have a hearing on his transfer to Tamms until the expiration of that very long disciplinary sentence.
Apart from the initial transfer review hearing, the review committee conducts a review of each prisoner’s file every ninety days to determine whether placement at Tamms is still appropriate. Id. § 505.70(a). The ninety-day review does not afford the inmate an opportunity to be heard or to present evidence. In addition, although IDOC represents that the ninetyday review is conducted for every Tamms inmate, see Appellees’ Supplemental Br. at 4 n. 4, the regulation indicates that such quarterly review only applies to those in administrative detention, see Ill. Admin. Code tit. 20, § 505.70(a) (noting that the committee ‘‘review[s] the record of each committed person in administrative detention’’).
For individuals in administrative detention, the transfer review committee conducts an additional hearing every year in which the inmate has the same opportunity to be heard and to present evidence challenging his transfer as in the initial hearing, and is also entitled to notice of the committee’s finding. Id. § 505.70(b) (stating that the annual hearing is to be held in accordance with the standards of the initial review). Again, the individuals in administrative detention that have been at Tamms for more than a year have presumably been afforded such annual reviews, while those in disciplinary detention status presumably have not.

9. IDOC notes that its policy has changed from that contained in the regulations and that the recommendation goes from the CAO to the

Deputy Director, who apparently approves a transfer if warranted.

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We say ‘‘presumably’’ with respect to the administrative review hearings because it appears that IDOC has not provided the prisoners with the hearing records, which they requested early in this litigation. Nevertheless, without evidence to the contrary, we presume that Tamms officials follow Illinois regulations, in which case every prisoner transferred in administrative detention has been afforded a review hearing.10 Prisoners who were transferred in, and remain in, disciplinary segregation have not yet qualified for a review hearing, and this administrative remedy is unavailable to them. See Lewis v. Washington, 300 F.3d 829, 833 (7th Cir.2002).
IDOC’s position that the transfer review process affords an administrative remedy is unconvincing for another reason. Many of the prisoners contend that they were not told the reasons for their transfer to Tamms; indeed, several prisoners filed grievances to complain about this problem. IDOC regulations do not require the department to notify prisoners why they have been transferred. We doubt whether the transfer review process is effective for prisoners who do not know the grounds for their transfer and who thus have no basis with which to contest their transfer. More importantly, if a prisoner discovers the reasons for his transfer shortly after completing the initial transfer review hearing and wishes to contest the transfer because, for instance, the reasons are based on incorrect facts, he must wait at least one more year before he can present evidence at his annual review hearing. For all these reasons, with respect to the transfer review process, IDOC has not carried its burden of establishing that the prisoners

have not satisfied PLRA exhaustion requirements.
IDOC also submits that the inmate grievance process is another avenue for challenging transfer to Tamms. Although we have considered, in previous cases, IDOC’s grievance process in challenging general prison conditions, we have not addressed whether the grievance process is an administrative remedy by which a prisoner may challenge his transfer to Tamms. In Illinois, ‘‘incidents, problems, or complaints’’ may be grieved, Ill. Admin. Code tit. 20, § 504.810(a), but the grievance process cannot be ‘‘utilized for complaints regarding decisions that are outside the authority of the Department, such as parole decisions, clemency, or orders regarding length of sentence or decisions that have been rendered by the Director.’’ Id.
There seems to be significant confusion within IDOC, presumably caused by the ‘‘or decisions that have been rendered by the Director’’ clause of section 504.810(a), as to whether a Tamms prisoner may grieve his transfer, IDOC did not challenge every plaintiff on exhaustion grounds, and treatment of grievances by IDOC’s ultimate grievance appeal body, the Administrative Review Board (‘‘ARB’’), varied among the prisoners. For instance, the ARB responded to Mr. Combs’ grievance complaining about improper placement at Tamms by offering reasons for the transfer (e.g., gang activity). This action would seem to indicate that the ARB, at least, believed the grievance process to be the proper challenge avenue. In contrast, although he is no longer a party to this suit, the treatment of Mr. Carroll’s grievance is instructive, especially given that

10. IDOC does not argue that the prisoners have failed to exhaust administrative remedies because an annual status review is available to those in administrative detention status. Nor do they argue that the ultimate

availability of a transfer hearing to those in disciplinary segregation—available, that is, after their period of disciplinary segregation ends—means that such prisoners have also failed to exhaust available remedies.

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IDOC did not challenge whether he exhausted his remedies. The ARB simply replied to his complaint that transfer to Tamms was not an issue that it could address, but rather was an administrative prerogative of IDOC.
In addition, there is some evidence that a Tamms counselor told Mr. Knox that he could not grieve placement at the facility; this evidence the district court found sufficient to establish that Mr. Knox had exhausted all available administrative remedies. However, Mr. V. Rodriguez, one of the prisoners whose claims the district court dismissed for failure to exhaust, also submitted an affidavit setting forth a similar account. Prior to his transfer to Tamms, he received a disciplinary report at another facility, but he completed the appeal of that report after his transfer. Mr. V. Rodriguez claims that IDOC officials led him to believe that his administrative remedy lay in challenging his transfer to Tamms, together with an existing administrative appeal that he was pursuing to challenge disciplinary action.11 In its supplemental brief, IDOC does not respond to or explain the inconsistent treatment.
Despite a number of Tamms-specific regulations in the Illinois Administrative Code, see id., pt. 505, IDOC does not point to any regulation or department policy that clearly identifies how a prisoner challenges his transfer to Tamms. If, for ex-

ample, the regulations specified that a prisoner must challenge his transfer through the grievance process, or indicated the form that such a challenge should take, the prisoners would be obliged to conform to those administrative requirements. If the ARB took consistent positions on its authority to address a transfer grievance, a clear route for the prisoner at least would be evident and we could proceed to determine its effectiveness. But, as this case comes to us, we find the record ‘‘hopelessly unclear TTT whether any administrative remedy’’ remained open for the prisoners to challenge their transfers through the grievance process. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.2002). With regard to Mr. Felton, Mr. Horton, Mr. V. Rodriquez and Mr. Santiago,12 IDOC failed to meet its burden of proving that they failed to exhaust an available administrative remedy, Dale, 376 F.3d at 656, even after we afforded the opportunity to clarify the record through supplemental briefing.
[6] Although we base our decision on IDOC’s failure to meet its burden on the exhaustion issue, we pause to note as well that the district court erred in finding Mr. Felton’s and Mr. Horton’s grievances insufficient to ‘‘alert[ ] the prison to the nature of the wrong for which redress is sought,’’ which is all that the PLRA requires. Strong v. David, 297 F.3d 646, 650 (7th Cir.2002). Although their purported

11. Mr. V. Rodriguez was transferred to Tamms while awaiting a disciplinary action (assaulting a guard) through the IDOC administrative system. He claims that the grievance officer at Tamms told him that he could challenge his transfer together with his administrative appeal of the disciplinary action. Mr. V. Rodriguez never filed a separate grievance challenging his transfer because he claims that he was led to believe that, by appealing his transfer at the same time he appealed the disciplinary action, he exhausted his administrative remedies.

12. The district court dismissed Mr. Santiago because he submitted the grievance that he claimed exhausted his administrative remedies after this suit was filed. The appellants here do not challenge his dismissal. But, because it is unclear whether the grievance process may be used to challenge a prisoner’s transfer to Tamms, Mr. Santiago’s failure timely to file a grievance is of no moment, and we conclude that the district court erred in dismissing him on that ground.

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placement challenges were made within substantive complaints about Tamms conditions, each prisoners’ grievance expressed concern about not being told the reason for his transfer to Tamms or listed something to the effect of ‘‘Transfer from Tamms’’ as the requested remedy. These complaints were sufficient to alert prison officials that Mr. Felton and Mr. Horton challenged their transfers, even though the grievance officers in each case addressed the prison condition complaints without mentioning their transfers to Tamms.
We therefore reverse the district court’s dismissal of the claims of Mr. Felton, Mr. Horton, Mr. V. Rodriguez and Mr. Santiago.
2. Discovery
The litigation plaintiffs believe that they were sent to Tamms in retaliation for filing legal actions against IDOC and its officials.13 Proving this theory required the prisoners to reconstruct the decision-mak-

ing process leading to their transfers. To accomplish this task, the prisoners requested a number of documents from IDOC. Included in the requested documents were: placement forms for each prisoner; the results of any administrative reviews conducted since their arrival at Tamms; each prisoner’s ARB file; the litigation files of each litigation plaintiff; documents listing prisoners considered eligible for placement in Tamms who were not transferred; 14 and any documents discussing the transfer of the named plaintiffs, rather than other prisoners, to Tamms.
Before considering the specific discovery disputes at issue in this appeal, it is useful to recount certain aspects of the discovery history in this case. The record reveals that both IDOC and the prisoners were slow in discovery. The prisoners delayed answering IDOC’s interrogatories and, at one point, earned a warning about possible sanctions.15

13. Because the district court rejected the associational rights and the ex post facto counts of the gang plaintiffs, the remaining discovery disputes primarily involved the litigation plaintiffs. Indeed, given that the First Amendment and ex post facto complaints were dismissed early on, the district court and magistrate judge determined, correctly, that many of the prisoners’ discovery requests had become irrelevant. Because the district court correctly dismissed these counts, we need not address the district court’s handling of the prisoners’ discovery requests aimed solely at proving the gang plaintiffs’ associational rights and ex post facto violations.
14. The prisoners sought records of nonTamms inmates to demonstrate, among other things, that IDOC transferred the litigation plaintiffs but did not transfer prisoners who presented more severe disciplinary or gangrelated problems. They argued that, together with their litigation files, these records would raise an inference that the litigation plaintiffs were transferred solely on the basis of their litigation activities.

15. In a similar vein, later in the proceedings, the prisoners’ identical form responses to IDOC’s interrogatories were to become a matter of controversy. Every IDOC defendant except Mr. Snyder served three interrogatories on each remaining plaintiff. Mr. Snyder served four interrogatories; numbers 2 through 4 were the same as other officials’ three interrogatories. The relevant interrogatory, numbered 1 generally but Mr. Snyder’s number 2, read: ‘‘State the factual basis for your assertion that Defendant [official’s last name] approved your transfer to Tamms Super Max Correctional Center in retaliation for litigation, grievances or ‘writ writing.’ ’’ See, e.g., R.69, Ex.3.
The prisoner responses were apparently drafted using Mr. Snyder’s interrogatories as a model, and repeated for every prisoner in response to each IDOC official. Each prisoner gave the same response to the second interrogatory, that is, Mr. Snyder’s second, even though, for the other officials, the response should have been to the first question. Regardless of which IDOC official the prisoner addressed, the prisoner stated:

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The circumstances surrounding the State’s production of the placement forms, crucial to the prisoners’ claim, must be examined in some detail.16 IDOC eventually produced the forms and attached them to its renewed motion for summary judgment, together with affidavits from IDOC officers stating that they had relied on the placement forms when deciding the appropriateness of a prisoner’s transfer to Tamms. The State argued that the officials’ reliance on prisoner placement forms belied the prisoners’ claim that IDOC transferred them in retaliation for any protected activity.
The prisoners then sought to introduce affidavits alleging that the information contained in the placement forms was untrue. They contended that IDOC officials had falsified their gang associations or disciplinary histories to justify their transfers to Tamms. IDOC moved to strike this evidence and all other evidence that the placement forms were incorrect, that the prisoners’ disciplinary histories were insufficient to warrant assignment to Tamms, that the timing of their transfers was suspicious, and that Mr. Snyder could be held liable for the transfers.
In resisting the efforts of the prisoners to have the court consider the prisoners’

evidence that the transfer documents were false, IDOC crafted its motion as a request for discovery sanctions. It argued that the prisoners had failed to amend their previous interrogatory answers (that is, their answer number 2) 17 to encompass the new falsification theories, in violation of Federal Rule of Civil Procedure 26(e)(2).
The district court granted IDOC’s motion to strike on essentially two related grounds. First, the court considered the prisoners’ answers to IDOC interrogatories to be ‘‘incomplete’’ under Federal Rule of Civil Procedure 37(a)(3) because they failed to present any supporting facts in spite of the interrogatories’ request for ‘‘the factual basis for your assertion that Defendant TTT approved your transfer to Tamms.’’ R.69, Ex.3. Second, the district court agreed with IDOC that the prisoners’ contention—that information in their placement forms had been falsified—was a new theory based on new evidence. Because the prisoners failed to amend their responses to the IDOC interrogatories to reflect their new allegation and provide more complete factual bases for their claims, as required by Federal Rule of Civil Procedure 26(e)(2), the district court excluded from consideration the prisoners’

I do not have any personal knowledge that defendant Snyder personally approved my transfer to Tamms. Rather, I contend that defendant Snyder approved policies and procedures which permitted prisoners to be transferred to Tamms in retaliation for activities which were protected by the First Amendment. See, e.g., R.69, Ex.29. The plaintiffs claimed that, ‘‘[r]ather than provide duplicative answers to the same questions asked separately by each of the defendants, plaintiffs sought to simplify their responses by combining all defendants’ interrogatories.’’ R.104 at 5.
16. On October 28, 2002, at the same time the district court granted IDOC leave to renew its summary judgment motion, it ordered IDOC

to produce documents relied on by the officials in deciding which prisoners to transfer to Tamms. The prisoners had asked for the documents with their initial discovery request in August 2000. A month later, IDOC produced approximately 7500 pages of documents in compliance. Based on the volume of material, the district court granted additional time, until January 29, 2003, for the prisoners to reply to IDOC’s summary judgment motion. The district court subsequently granted a motion to file instanter, and the prisoners filed their response on February 10, 2003—the same day the court held a hearing on the summary judgment motion.
17. See supra note 15.

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affidavits (or any other evidence that they might have produced) contending that their placement forms had been falsified, as a sanction under Rule 37(c)(1).18
The prisoners’ argument in this appeal is twofold.19 First, they submit that the district court erred in concluding that they had violated Rule 26(e)(2) by not supplementing their interrogatory responses. Because IDOC had not produced the placement forms or other requested discovery when they answered the interrogatories, the prisoners note that they could not have known the falsehoods contained in the forms—falsehoods which formed the ‘‘factual basis’’ for their claim. The prisoners argue that they complied with the requirements of Rule 26 by offering affidavits, and they characterize any requirement to go back and supplement their interrogatory answers as a ‘‘duplicative, meaningless formality.’’ Appellants’ Br. at 44. Second, the prisoners assert that, even if they violated the letter of Rule 26, the district court abused its discretion by imposing its Rule 37 sanction.
[7] Although we review the district court’s discovery rulings for abuse of discretion, ‘‘[t]he district court must apply the correct legal standards and not reach an erroneous conclusion of law in forming the basis for the sanction of exclusion.’’ Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir.2004). Reaching an erroneous legal conclusion constitutes an abuse of discretion. Id. We therefore first consider the district court’s determination that the

prisoners violated Rule 26 by failing to amend their interrogatories.
At the outset, we cannot accept the argument that, as a general proposition, the requirements of Rule 26 constitute a meaningless formality. Although the prisoners may disagree about its application to their case, ‘‘the formal requirements of Rule 26 are not pointless.’’ Hoffman v. Caterpillar, Inc., 368 F.3d 709, 714 (7th Cir.2004). Litigants would be well advised to conform their conduct in litigation to the Rules.
Under Rule 26, [a] party who has made a disclosure under subdivision (a) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or in the following circumstances:
TTTT
(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.
Fed.R.Civ.P. 26(e).
[8, 9] The prisoners submit that they complied with Rule 26 because they pro-

18. In addition, the district court noted that the prisoners’ form responses to IDOC interrogatories mentioned only Mr. Snyder. See supra note 15. Because their responses were inadequate and only applied to Mr. Snyder, the district court determined that he was not liable as a matter of law and dismissed him from the suit. Given our decision concerning the propriety of the discovery sanction, it was

inappropriate for the district court to dismiss Mr. Snyder at this stage of the litigation.
19. IDOC argues that the prisoners have waived any challenge to district court discovery decisions because their brief does not comply with Federal Rule of Appellate Procedure 28(a)(9)(A). We find the prisoners’ submission to be sufficient.

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duced affidavits with their response to IDOC’s summary judgment motion that stated clearly their allegation that the transfer forms state false reasons for the prisoners’ transfers. They contend that the affidavits ‘‘otherwise TTT made known TTT in writing’’ to IDOC that the prisoners contested the truthfulness of their placement forms and therefore complied with Rule 26. Accordingly, they submit, they are excused from actually amending their interrogatories.20
The prisoners’ argument has merit. The present situation is governed by the ‘‘otherwise’’ clause in Rule 26(e)(2). See Gutierrez v. AT & T Broadband, LLC, 382 F.3d 725, 733 (7th Cir.2004). Although the prisoners did not amend their interrogatory answers, their response to IDOC’s summary judgment motion placed the officials on written notice that the prisoners challenged the placement forms’ veracity. There was no unfair surprise in the prisoners’ failure to amend their interrogatories, especially given IDOC’s delay in producing

the relevant documents. The prisoners’ submissions complied with Rule 26.
[10] Because the district court declined to consider the prisoners’ contention that information in their placement forms was false, it assumed the forms to be true when analyzing IDOC’s rationale for transferring the plaintiffs. The prisoners were left only with chronologies indicating that their transfers were suspicious; the district court found these chronologies to be inadequate to allow the prisoners to survive summary judgment. We cannot say whether the district court would have reached the same conclusion had it considered, in addition to the chronologies, evidence that IDOC relied on false placement forms in transferring the prisoners, or other evidence establishing that the prisoners were transferred in retaliation for their litigation activities. The district court should have considered the prisoners’ allegations and summary judgment based on its refusal to do so was inappropriate.21

20. It appears from the record that the prisoners argued for the first time in this appeal that by submitting their affidavits they complied with Rule 26’s ‘‘otherwise TTT made known’’ clause. This is not the argument that they made before the district court. Rather, in opposing the State’s motion to strike their evidence, the prisoners asserted several points. First, they contended that the affidavits were consistent with their interrogatory answers. Second, the prisoners noted that they informed the IDOC officials that they would supplement their interrogatory answers if the officials specified what information was missing—a specification that the prisoners never received. Third, they argued that any failure to amend their interrogatories should be excused because they were swamped with discovery only two months before the motion was heard and more than two years after they first requested the documents.
We ordinarily refuse to consider arguments not made before the district court. However, we also hold fast to the principle that a defense of waiver may itself be waived if not raised. See Riemer v. Illinois Dep’t of Transp.,

148 F.3d 800, 804 n. 4 (7th Cir.1998). In their submission to this court, IDOC’s waiver argument on this issue is focused solely on the adequacy of the prisoners’ brief; the officials do not argue that the appellants have waived their contention that submitting affidavits complied with their Rule 26 obligations. We therefore find that IDOC waived any waiver argument on this issue, and we will consider the prisoners’ submission.
21. Even if the prisoners had failed to comply with Rule 26 by not amending their interrogatory responses, we do not believe that the district court should have excluded the prisoners’ evidence as a sanction.
Rule 37 provides that a party who fails to amend an interrogatory response under Rule 26(e)(2) ‘‘is not, unless such failure is harmless, permitted to use as evidence TTT information not so disclosed.’’ Fed.R.Civ.P. 37(c)(1) (emphasis added). Notably, contrary to what the prisoners seem to argue here, there is no sliding scale of sanctions under Rule 37. In the Rule 26(a) context, we have noted that ‘‘the sanction of exclusion is auto-

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C. All Prisoners’ Due Process Claim
Both groups of prisoners, the litigation plaintiffs and the gang plaintiffs, submit that the district court improperly dismissed their due process claims. These claims alleged that the transfer to Tamms constituted punishment and therefore required that the prisoners receive notice and a hearing. The district court read our decision in Wagner v. Hanks, 128 F.3d 1173 (7th Cir.1997), to imply that the prisoners would have a liberty interest only if the conditions at Tamms were significantly more restrictive than administrative detention at the most secure prison in the state.

In this case, that prison is the one where the prisoners are incarcerated, Tamms. Under the district court’s reading of Wagner, no prisoner in administrative detention at Tamms could make out a due process claim. Additionally, held the court, because the prisoners offered no evidence showing that disciplinary segregation at Tamms was significantly more restrictive than administrative detention at the facility (indeed, the evidence seems to suggest that the conditions are equally harsh), prisoners in disciplinary segregation status likewise failed to demonstrate a liberty interest.

matic and mandatory unless the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.’’ Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir.1998). Similarly, here once the district court found a Rule 26 violation, it was obligated to exclude the offered evidence unless the prisoners’ failure to amend was harmless or justified. See Williams v. Morton, 343 F.3d 212, 222 (3d Cir.2003).
The determination of whether a failure is harmless or justified is left to the broad discretion of the district court. David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir.2003). The trial court need not make explicit findings regarding a justification or the harmlessness of the Rule 26 violation, id., but
we have indicated that the following factors should guide the district court’s discretion: (1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date. Id. (citing, among others, Bronk v. Ineichen, 54 F.3d 425, 428 (7th Cir.1995)). In this case, the prisoners argued in their response to IDOC’s motion to strike that any violation of Rule 26 on their part was harmless. The district court responded to this argument with a single sentence: ‘‘The Court finds that Plaintiffs have not submitted sufficient justification for their failure to amend their interrogatory responses and that this failure is not harmless.’’ R.106 at 6. The

district court’s one-sentence discussion of the issue before imposing a Rule 37 sanction did not constitute the ‘‘thoughtful discussion’’ that would assure us that the court considered the David factors. David, 324 F.3d at 858. Indeed, our review of the history of this case indicates that application of the David factors leads to a conclusion that any Rule 26 violation was harmless.
There is no evidence that the prisoners’ failure to amend their interrogatory responses was the result of willfulness or bad faith; indeed, it seems clear that IDOC resisted producing discovery, delayed in submitting the placement forms and, in the end, deluged the prisoners with document production shortly before the district court resolved its summary judgment motion.
Nor can we say that the prisoners’ failure to amend their interrogatory responses prejudiced or surprised IDOC because the prisoners offered their falsification theory shortly after discovering it through IDOC’s late discovery. Indeed, if there was prejudice in this case it was to the plaintiffs, based on IDOC’s delayed production. Cf. Rosario v. Livaditis, 963 F.2d 1013, 1019 (7th Cir.1992) (‘‘A party who fails to pursue discovery in the face of a court ordered cut-off cannot plead prejudice from his own inaction.’’). Moreover, any prejudice that IDOC did suffer easily could have been cured by granting IDOC additional time in which to respond to the new allegations. Therefore, even if the prisoners had violated Rule 26 by failing to amend their interrogatory responses, the district court abused its discretion in excluding evidence supporting their falsification theory.

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Our colleague in the district court had to deal with these contentions without the benefit of the Supreme Court’s decision in Wilkinson v. Austin, ––– U.S. ––––, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). Wilkinson gives substantial guidance on the appropriate resolution of the issues in the present case. Consequently, after its rendition by the Supreme Court, the parties to this case submitted their views on how the Court’s rationale ought to affect our decision in this case.
Wilkinson upheld, against a due process challenge, Ohio’s procedure for transferring prisoners to the Ohio State Penitentiary (‘‘OSP’’), that state’s ‘‘supermax’’ prison, a facility designed to hold the most dangerous prisoners who posed a special threat if incarcerated in the general prison population. At OSP, almost every aspect of the inmate’s life was controlled and monitored. Extreme isolation was imposed; opportunities for visitation were sharply curtailed and always conducted through glass walls. The inmates were deprived of almost every form of environmental or sensory stimuli. There was very little human contact. A prisoner could be placed in the supermax for an indefinite period of time; only the length of the prisoner’s sentence marked the outer limits of his stay. If an inmate was otherwise eligible for parole, he lost that eligibility while assigned to the facility.
Under the policy finally adopted by Ohio to govern the selection of prisoners for placement in the supermax facility, a prison official conducted, prior to placement, a classification review. This review focused on the offense of conviction in the case of prisoners just committed to the prison system and on certain types of conduct in the case of those already incarcerated. The prisoner was notified of the factual basis for a recommendation for placement in the supermax and given a fair opportunity for

rebuttal at a hearing. He could not, however, call witnesses. Additionally, prior to the final level of review, the prisoner was given an opportunity to submit objections to the recommendation. There were three levels of review. At each level, a decision against placement in the supermax facility terminated the process and the prisoner was not assigned to the supermax. After placement in the supermax prison, a prisoner received a review after thirty days and an annual review thereafter.
The Supreme Court held that prisoners had a constitutionally protected liberty interest in avoiding assignment to OSP. Reiterating the conclusion it reached in Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), the Court noted ‘‘that the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement.’’ Wilkinson, 125 S.Ct. at 2393. However, continued the Court, ‘‘a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations, subject to the important limitations set forth in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).’’ Id. The Court went on to emphasize that Sandin pointedly had rejected the methodology of parsing the language of particular regulations. Rather, ‘‘the touchstone of the inquiry into the existence of a protected, state-created liberty interest TTT is not the language of regulations regarding those conditions but the nature of those conditions themselves ‘in relation to the ordinary incidents of prison life.’ ’’ Id. at 2394 (quoting Sandin, 515 U.S. at 484, 115 S.Ct. 2293).
The Supreme Court then went on to apply the methodology of Sandin to the situation before it. It noted the inconsistent results that courts of appeals have reached in applying the Sandin formula because it is difficult to determine a base-

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line from which to ascertain whether the conditions of confinement are an atypical and significant hardship. Noting the absence of briefing on the subject in the case before it, the Court nevertheless concluded that it was unnecessary to explore the issue because the conditions at OSP posed an ‘‘atypical and significant hardship under any plausible baseline.’’ Id. It described those conditions in these terms:
For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30–day placement in Sandin, placement at OSP is indefinite and, after an initial 30–day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration. While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP.
Wilkinson, 125 S.Ct. at 2394–95 (citations omitted).
Having determined that the conditions at the Ohio supermax facility imposed an atypical and significant hardship within the correctional context and thus constituted the deprivation of a liberty interest, the Supreme Court turned to the question of what process was required before such conditions were imposed on a prisoner. Reminding the reader that the Court pre-

viously has avoided the use of rigid rules, see Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in favor of flexibility tailored to the particular situation, the Court articulated the familiar framework of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), that requires a court to consider the following three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 335, 96 S.Ct. 893.
With respect to the first factor, the Court noted that the private interest of the prisoner to be free from confinement, while ‘‘more than minimal,’’ had to be evaluated in the context of the prison system where, pursuant to a lawful sentence, confinement already has curtailed liberty to a great degree. Wilkinson, 125 S.Ct. at 2395. The private liberty interest, then, is clearly not as plenary as that of an individual not under the sentence of a court. With respect to the second factor, the Court focused on Ohio’s provision for notice and opportunity to rebut the reasons offered by the State for placement in OSP. Id. at 2396. The Court noted that, in addition to notice and hearing, the prisoner was given an opportunity to submit a rebuttal to an affirmative recommendation at the last of three levels of review. Moreover, a recommendation against placement at any level ended the process and the prisoner was not placed at the supermax. If a reviewer did recommend placement in the supermax, the prisoner received a

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statement of reasons for use before the next decision-maker or in a subsequent classification review. The statement also served, noted the Court, as a guide for the prisoner with respect to his future behavior. Finally, noted the Court, the Ohio regulations provided for a review after the prisoner had been at the supermax facility for thirty days. In the Court’s view, this regulatory scheme adequately ensured against an erroneous decision in the placement process.
The Court minced no words in applying the third Mathews factor, the interest of the public officials charged with the responsibility of running prisons. See id. at 2396–97. The State’s first responsibility, the Court wrote, is to ensure the safety of guards, prison personnel, the public and the prisoners themselves. The Court also noted the pressing need of the State to manage prudently its assets in a context of scarce resources. Therefore, concluded the Justices, courts must approach estimations such as the one required by the third prong of the Mathews test with substantial deference to prison management decisions. Id. at 2397.
After balancing the Mathews factors, the Court concluded that Ohio’s policies adequately safeguarded against an erroneous decision. The Court pointed out that the inquiry here is not an inquiry into a specific incident, but an assessment of a prisoner’s entire record and a prognostication about future behavior. Such a decision does not turn simply on whether the prisoner committed a specific act. Rather, it turns on an assessment that requires the experience of prison administrators—an assessment that is more susceptible to resolution in an informal procedure.
We turn now to an examination of how the Supreme Court’s recent guidance in Wilkinson governs the case before us. As we noted earlier, we have the assistance of

counsel for both parties through the thoughtful supplemental briefs they have filed recently.
The State of Illinois, representing its defendant officials, takes the position that, under Wilkinson, the prisoners cannot claim a cognizable liberty interest. First, it notes that there are some differences between Tamms and OSP with respect to the conditions of confinement. The cells in Tamms, it points out, have windows; the doors are mesh rather than solid steel; the exercise yard is partially out-doors. It also points out that, although the prisoners allege that visitation at Tamms is cumbersome and expensive, especially for individuals from the Chicago area, they do not allege, as the Ohio prisoners did, that the opportunities for visitation are rare. More important, continues the State, assignment to Tamms does not affect the length of confinement because nothing in the regulations says that placement at Tamms directly affects parole eligibility, mandatory supervised release, good conduct credits or good time restoration. In the State’s view, this latter point is crucial because it reads both Wilkinson and Sandin as grounding a recognition of liberty interest on the effect of the state-imposed restraint on the length of the prisoner’s sentence.
In the alternative, the State claims that, even if there is a liberty interest implicated in a placement at Tamms, the pre-and post-transfer procedures for such assignments satisfy the needs of due process. It begins its argument by emphasizing that Wilkinson requires only an informal, nonadversarial process. It also points out that the Supreme Court did not say that the detailed procedures employed by Ohio were to be considered a constitutional floor.
The prisoners take a different view of the applicability of Wilkinson. They emphasize the procedural posture of this as-

WESTEFER v. SNYDER
Cite as 422 F.3d 570 (7th Cir. 2005)

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pect of the present case. Because the district court dismissed the due process claim of the complaint on the pleadings, we are obliged to read all the allegations of that complaint in the light most favorable to the plaintiffs. They further submit that the complaint contains statements that clearly allege that the conditions at Tamms fit the profile for ‘‘atypical and significant hardship’’ as that phrase is employed in Sandin and in Wilkinson. They specifically note the following:
Plaintiff’s Amended Complaint alleged:
9. Tamms is designed to be extremely harsh. IDOC officials have stated that they want conditions at Tamms to be so bad that inmates throughout the system are motivated to follow all departmental rules based upon the mere threat of being transferred to Tamms.
10. The conditions of confinement at Tamms present inmates with atypical and significant hardships in relation to the ordinary incidents of prison life, including the hardships imposed at the most restrictive segregation units in Illinois’ maximum security prisons. At Tamms, control and punishment are imposed through extreme social isolation, severely restricted movement, and an environment that virtually eliminates all external stimuli.
Plaintiffs’ amended complaint describes the extraordinarily restrictive conditions imposed on prisoners at Tamms in great detail (¶ ’s 11–24). The restrictions include (among others) virtually complete absence of human contact (¶ ’s 11, 15, and 18), virtual elimination of all out of cell movements (¶ ’s 12, 14, 18), severe restrictions on showers and out of cell exercise (¶ ’s 16 and 19), severe restrictions on family visits (¶ 20), elimination of all jobs and other programming (¶ 14), severe restrictions on religious services (¶ 21) and on a prisoner’s communication with attorneys

(¶ 22). Property is similarly restricted (¶ 14). In sum, being confined to Tamms is to be subjected to virtual sensory deprivation, with prisoners forced to spend most days doing literally nothing but staring at the four blank walls of their cells.
In Count Three of their amended complaint, plaintiffs allege (¶ 120):
120. Transfer to Tamms subjects plaintiffs to atypical and significant hardships in relation to the ordinary incidents of prison life and to hardships which are not experienced at the most restrictive segregation unit at any of the maximum security prisons in Illinois.
Appellants’ Supplemental Br. at 3–4.
With respect to the other factors mentioned in Wilkinson, the prisoners note that, although prisoners at Tamms are eligible for parole, there are strict limits on the good time that they can earn because of the lack of rehabilitative programs at the facility. With respect to the length of time that a prisoner can be incarcerated at Tamms, the prisoners simply point out that the only time limit is the length of the underlying sentence.
With respect to the available procedures for contesting a placement in Tamms, the prisoners point out the absence of any hearing for those in disciplinary status and the lack of notice as to the reasons for the placement in the case of those in administrative detention. They also note the lack of any pre-placement hearing for those in administrative detention.
[11] We believe that the allegations of the complaint, which we must accept as true at this stage of the litigation, preclude dismissal under the now-governing standards of Wilkinson. There are some differences between the features of the Ohio supermax at issue in Wilkinson and those of the Illinois facility at issue here. It is

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not at all clear, however, that those differences are so qualitatively different as to require a different characterization of the facility for purposes of due process analysis under Wilkinson. Illinois’ contention that the liberty interest identified in Wilkinson turned exclusively on the absence of parole constitutes, our view, far too crabbed a reading of the decision. The very text of the decision belies such a claim in noting that, ‘‘[w]hile any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context.’’ Wilkinson, 125 S.Ct. at 2395. We also note that, if, after considering all the evidence submitted by the parties, the district court is not of the view that the Illinois situation is, like the Ohio facility, ‘‘an atypical and significant hardship under any plausible baseline,’’ id. at 2394, the district court must confront the issue of what does constitute the appropriate baseline for the Illinois system. See id.
Assuming that a liberty interest is determined to exist, the district court will then have to confront whether the procedures that we have discussed at some length with respect to the exhaustion of administrative remedies provide sufficient process to protect the prisoners’ liberty interest in this case. The fact that the procedures available in Illinois are different from those employed in Ohio is, of course, in no way outcome determinative. The Supreme Court has made clear that application of the Mathews test requires flexibility with respect to the precise procedural devices employed. The Court has made clear that the informal, nonadversarial procedures set forth in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) and Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60

L.Ed.2d 668 (1979), are the appropriate models. See Wilkinson, 125 S.Ct. at 2397.
On the basis of what we can ascertain on this record, it appears that the district court will have to evaluate with particular care whether the prisoner is given sufficient notice of the reasons for his transfer to afford meaningful opportunity to challenge his placement. With respect to prisoners in disciplinary status, there is the added question of whether the disciplinary hearing on the underlying disciplinary violation is a sufficient vehicle by which to challenge the Tamms placement. For those in administrative status, the lack of any pre-transfer hearing may require close examination. See Hewitt, 459 U.S. at 477, 103 S.Ct. 864. The district court also must, of course, consider the matter of continued monitoring of the situation after the initial transfer decision. See id. at 477 n. 9, 103 S.Ct. 864.
Finally, with respect to the viability of the grievance procedure to contest a placement at Tamms, the district court must explore fully the allegation that IDOC’s conflicting pronouncements on the use of this procedure to challenge placement renders it useless.
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the district court with respect to all claims but the retaliation claim and the due process claim. With respect to these claims, the judgment of the district court is reversed and the case is remanded for proceedings consistent with this opinion. The parties shall bear their own costs on this appeal.
AFFIRMED in part; REVERSED and REMANDED in part
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