Still No Answer on Whether Assignment to Highest Level of Disciplinary Segregation Triggers Due Process Rights

When a prisoner is disciplined for alleged misconduct, does the prisoner have any due process rights? Rather than adopting a bright-line rule to answer this question, the Supreme Court has indicated that due process rights depend on whether the sanction imposes hardships more onerous than “the ordinary incidents of prison life.”  Sandin v. Conner, 515 U.S. 472 (1995).  Therefore, a disciplined prisoner alleging a due-process violation must present evidence regarding both the sanction he endured and general prison conditions.

In light of this requirement, the Seventh Circuit yesterday rejected a due process claim by an inmate at Wisconsin’s Columbia Correctional Institution who was placed in the prison’s most restrictive disciplinary segregation (“DS-1”) because he had committed misconduct while in “DS-2.”  Marion v. Radtke (No. 10-2446).  Along the way, the court helpfully clarified the nature of the evidence that an inmate must present in order to advance such a claim.

More specifically, the court rejected the defendants’ argument that conditions in a “supermax” prison were the most appropriate baseline for comparison:

Wilkinson [v. Austin] shows that a comparison to a “supermax” prison (the comparison defendants propose) is not appropriate. Comparison with the sort of secure institution that a judge would have considered when sentencing a prisoner is more apt. Anticipated prison conditions affect the length of sentences: The more onerous a prison system’s norm, the shorter a sentence can be and still achieve a desired amount of deterrence and punishment. The due process clause requires hearings when a prisoner loses more liberty than what was taken away by the conviction and original sentence. That’s why the right comparison is between the ordinary conditions of a high-security prison in the state, and the conditions under which a prisoner is actually held.  (2-3)

Even though Marion won this battle, he lost the war because he failed to respond to the defendants’ summary judgment motion with any evidence at all.  He argued that the burden of production was on the state, but the lower court and the Seventh Circuit concluded that, as a civil plaintiff, Marion was the one who was actually obligated to come up with evidence.  His failure to do so warranted summary judgment.

Because Marion lost on this procedural ground, as the Seventh Circuit observed,

The answer to the question “does 240 days of DS-1 confinement at Columbia Correctional Center deprive a prisoner of a liberty interest?” must await another day.  (4-5)