In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3318

ROBERT WESTEFER, 

MARK VONPERBANDT,

ALLEJANDRO VILLAZANA, et al.,

Plaintiffs-Appellants,

v.

DONALD SNYDER, 

ODIE WASHINGTON, 

MICHAEL V. NEAL, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 00 C 162—G. Patrick Murphy, Chief Judge.

____________

ARGUED SEPTEMBER 29, 2004—DECIDED SEPTEMBER 6, 2005

____________

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
2 No. 03-3318

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, 125 S. Ct. 2384 (2005), the parties filed supplemental

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

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 confine-
No. 03-3318 3

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. 

ment at any other maximum security facility in Illinois.1

IDOC transferred the plaintiffs to Tamms within a year after

it opened. 

The plaintiffs2 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 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.
4 No. 03-3318

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 § 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
No. 03-3318 5

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.

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.

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

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
6 No. 03-3318

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 (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 (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 (1999)). But cf. Fuller v. Johnson, 114 F.3d 491, 498 (5th

Cir. 1997) (assuming protection but holding 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 (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
No. 03-3318 7

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 (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
8 No. 03-3318

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.

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; Rios v.

Lane, 812 F.2d 1032, 1036 (7th Cir. 1987).

2. Ex Post Facto

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 punishment 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 (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.
No. 03-3318 9

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 (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 (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.

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
10 No. 03-3318

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.

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

(continued...)

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 forms5

 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. 

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
No. 03-3318 11

6 (...continued)

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.

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
12 No. 03-3318

ruling based on exhaustion as well as its grant of IDOC’s

motions to strike and for summary judgment.

1. Exhaustion of Administrative Remedies

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 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 disciplin-
No. 03-3318 13

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.

ary 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.
14 No. 03-3318

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 ninety-day 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.

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
No. 03-3318 15

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.

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.
16 No. 03-3318

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

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. 
No. 03-3318 17

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. 

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 example, 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 administra-
18 No. 03-3318

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. 

tive 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 . . . 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. 

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 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
No. 03-3318 19

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. 

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-making 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
20 No. 03-3318

14 The prisoners sought records of non-Tamms inmates to

demonstrate, among other things, that IDOC transferred the

litigation plaintiffs but did not transfer prisoners who presented

more severe disciplinary or gang-related 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

(continued...)

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
No. 03-3318 21

15 (...continued)

the prisoner addressed, the prisoner stated:

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. 

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
22 No. 03-3318

17 See supra note 15.

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 . . . approved your transfer to

Tamms.” R.69, Ex.3. Second, the district court agreed with

IDOC that the prisoners’ contention—that information in
No. 03-3318 23

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. 

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’ 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
24 No. 03-3318

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.

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: 

. . . .

(2) A party is under a duty seasonably to amend
No. 03-3318 25

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 . . . 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

(continued...)

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). 

The prisoners submit that they complied with Rule 26

because they produced 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 . . . made known . . . 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
26 No. 03-3318

20 (...continued)

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. 

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.

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
No. 03-3318 27

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 . . . 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 automatic 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

(continued...)

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
28 No. 03-3318

21 (...continued)

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

(continued...)
No. 03-3318 29

21 (...continued)

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.

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.

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, 125 S. Ct. 2384 (2005).
30 No. 03-3318

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
No. 03-3318 31

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 (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.

Connor, 515 U.S. 472 (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 . . . 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). 

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

baseline 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
32 No. 03-3318

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 previously has avoided

the use of rigid rules, see Morrissey v. Brewer, 408 U.S. 471,

481 (1972), in favor of flexibility tailored to the particular

situation, the Court articulated the familiar framework of

Mathews v. Eldridge, 424 U.S. 319 (1976), that requires a court

to consider the following three factors:
No. 03-3318 33

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.

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 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
34 No. 03-3318

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
No. 03-3318 35

rather than solid steel; the exercise yard is partially outdoors. 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 stateimposed 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 preand 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

aspect 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:
36 No. 03-3318

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
No. 03-3318 37

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 Wikinson,

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.

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 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
38 No. 03-3318

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 (1983)

and Greenholtz v. Inmates of Nebraska Penal & Correctional

Complex, 442 U.S. 1 (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
No. 03-3318 39

status, the lack of any pre-transfer hearing may require close

examination. See Hewitt, 459 U.S. at 477. 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.

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

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-6-05