Robert Westefer v. Michael V. Neal

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2957
ROBERT WESTEFER, et al.,
Plaintiffs-Appellees,
v.
MICHAEL V. NEAL, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00-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 high-
security “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

-- 1 of 14 --

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, IDOC 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, IDOC submitted the Plan to
the district court at the ensuing bench trial on the due-
process claim.
The court then issued a lengthy decision holding that
the conditions at Tamms 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 IDOC’s procedures for making transfer
decisions are constitutionally deficient. As a remedy,
the court entered an injunction incorporating the proce-
dures 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.
IDOC argues that the scope and specificity of the injunc-
tion exceed what is required to remedy the due-
process 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 adminis-
trators in this type of prison litigation.
We agree and therefore vacate the injunction. Under
the PLRA injunctive relief to remedy unconstitutional

-- 2 of 14 --

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 due-
process 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 flexibil-
ity for prison officials. Making IDOC’s Ten-Point Plan
a constitutional baseline, as the district court did, elimi-
nates the operational discretion and flexibility of
Illinois prison administrators, far exceeding what
due process requires and violating the mandate of
the PLRA.
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

-- 3 of 14 --

4 No. 10-2957
There were also some individual claims brought by specific 1
inmates. Westefer v. Snyder, 422 F.3d 570, 576-85 (7th Cir. 2005).
None are relevant here.
to Tamms. In the previous appeal, we reversed the1
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 IDOC’s then-extant procedures
for making transfer decisions violated the due-process
rights of the inmates. IDOC 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 IDOC’s
transfer procedures were constitutionally deficient for
both groups of inmates.

-- 4 of 14 --

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 Ten-
Point 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 Commit-
tee 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;

-- 5 of 14 --

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 inter-
view persons with relevant information;
6. IDOC 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 IDOC, 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 IDOC’s Chief
Legal Counsel; and
10. The Transfer Review Committee shall conduct
“routine reviews” and annual rehearings for all in-
mates transferred to Tamms in administrative-deten-
tion status.

-- 6 of 14 --

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 injunc-
tive 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 Bahá’ís of the U.S. of Am. Under
Hereditary Guardianship, Inc. v. Nat’l Spiritual Assembly of
the Bahá’ís of the U.S. of Am., Inc., 628 F.3d 837, 846 (7th
Cir. 2010). The PLRA circumscribes the scope of the court’s
authority to enter an injunction in the corrections con-
text. Where prison conditions are found to violate federal
rights, remedial injunctive relief must 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)(1)(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 en-
forces 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

-- 7 of 14 --

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 proce-
dures”—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,

-- 8 of 14 --

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 administra-
tive review, see Greenholtz, 442 U.S. at 14 n.6; see also
Wolff v. McDonnell, 418 U.S. 539, 564 (1974) (Notice gives
an inmate time “to prepare for the appearance before
the Adjustment Committee.”). In Wolff the 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 constitu-
tional 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. IDOC’s willingness to provide 48-
hour 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

-- 9 of 14 --

10 No. 10-2957
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 IDOC shall
comply with these deadlines “whenever possible.”
We have previously held that a wait of 17 days in adminis-
trative segregation before receiving a review is not a due-
process 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

-- 10 of 14 --

No. 10-2957 11
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 they believe
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. Id.; 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

-- 11 of 14 --

12 No. 10-2957
The plaintiffs point to language in Wolff v. McDonnell stating 2
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 Wolff and Jones dealt
with a hearing before a good-conduct credit-adjustment commit-
tee; 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) (circum-
stances 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 constitu-
tional standard for “informal, nonadversary” review in
the transfer-placement context.
Cir. 1994). And the Constitution certainly does not require2
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-

-- 12 of 14 --

No. 10-2957 13
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. Id. 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 pris-
oner 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 place-
ment 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 exces-
sive level of detail . . . .”). The periodic review need only
be sufficiently frequent that administrative segregation

-- 13 of 14 --

14 No. 10-2957
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 IDOC to craft transfer-review
procedures that meet the requirements of due process.
The court should do no more than to order IDOC 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.
6-6-12

-- 14 of 14 --