Lokmar Yazid Abdul-Wadood v. Jack Duckworth and Edward Cohn

CUMMINGS, Before CUDAHY and COFFEY, Judges. Circuit CUDAHY, Judge. Circuit Abdul-Wadood, Lokmar Yazid a state prisoner, brought pursuant an action to 42 prison U.S.C. certain state § officials. Abdul-Wadood claims that officials violated process by holding his administrative clas- hearing in the lay sification absence of his and, later, by confining advocate him to charging disciplinary without providing him with a rule him violation or hearing. appeals with a grant summary judgment favor defendants on He both issues. contends improperly also that the district court dis- damage missed his claim and that it abused denying court-appoint- him its discretion ed counsel. damage agree that the claim should

We stage. not have dismissed at this We grant summary judgment reverse the part respect and vacate and remand damage claim. Cohn, alleging against Duckworth I. process rights both his due violated Abdul-Wadood, serving a sentence segregation for disciplinary him in placing robbery, was transferred from murder and charging him as months without several Reformatory to the Indiana the Indiana by conducting his adminis- and rule violator 1982, 29, on December Prison State hearing segregation reclassification trative re- reasons. Abdul-Wadood classification presence lay his advocate. without the stating that he had ceived notice sought damages for distress He emotional segregation and placed in administrative anguish.2 and mental hearing follow. A classifica- would that a 7, January on hearing was held requested court-appoint- Abdul-Wadood laya advocate designated Abdul-Wadood responded ed counsel. The district court hearing. at the Abdul- represent him to giving sixty days him to demonstrate to by hearing, his but appeared at Wadood obtain attempted that he had to the court Despite not. his allegedly did lay advocate his More than ten months counsel on own. segregation protests, the administrative later, the district court denied Abdul-Wa- hearing proceeded with committee request for counsel. dood’s placed he formally recommended Meanwhile, attempt- Abdul-Wadood was Ser- the New administrative ing discovery on his In Octo- to take own. (the Building Segregation Unit “NSB vice court, 1983, he a letter to the ber wrote already Unit”), he had been as- to which guidelines requesting copy signed. govern handling prison officials 1983, 25, January there was at- On did not re- disciplinary matters. The court Unit. tempted escape from the NSB Ab- 1984, spond. January In Abdul-Wadood participate the es- did dul-Wadood request, seeking produc- filed a document incident, response to the cape attempt. In file, prison reports, inter- tion of his central upon all inmates in imposed the wardens relating to his nal memoranda status visitation, restrictions on NSB Unit rules, regulations copies prison of Indiana material, clothing and use of the reading The ob- policy statements. defendants telephone. Abdul-Wa- commissary and the documents, producing to claim- jected are the claims that these restrictions dood to his ing that Abdul-Wadood had access on imposed inmates disci- same as those packet prison his counsel- institutional via segregation.1 He claims further plinary or, to the de- a method less burdensome continued until June. these restrictions fendants, many and that of the documents Duckworth, super- According prison to packet in his institutional unneces- intendent, Cohn, superin- the assistant sary or to his case. irrelevant tendent, full visi- inmates were restored escape rights one after tation week compel produc- moved to Abdul-Wadood attempt. to tion of the documents and later moved Duckworth, prison depose and other brought Cohn August Abdul-Wadood later, court officials. Three months action under U.S.C. pro se § eighth rights beginning explained affidavit that amendment October in his 1. Abdul-Wadood shave, bathe, only 1983, by mandating allowed out of their cells the inmates were that he exer- day, they were limited six one hour each 30 minutes. cise and wash his clothes within material, including legal reading mate- items rial, apparently resulted additional restriction This calls, they telephone could not make disciplinary segre- placement in from his actual commissary keep per- from the order items gation assaulting officer. possessions in their cells and that sonal guilty that he was found after record indicates prison-issued overalls. See were forced wear hearing, Adjustment Board as to which Conduct Supplemental Appendix at 136-37. Plaintiff’s process vio- has claimed no due Duckworth, According to a memorandum from appeal dis- does not lation. Abdul-Wadood wing of the NSB inmates in Abdul-Wadood’s summary grant judgment fa- trict court’s immediate fam- were limited visits from Unit ily eighth on and Cohn vor Duckworth attorneys. id. at 101. See members claim. amendment complaint amended his 2. Abdul-Wadood later Duckworth and Cohn violated claim that ruling depose, interrogatories his motion to that he genuine denied reveal “no issue as “ability discovery to utilize had the other any fact, material and that moving available to him.” tools Abdul-Wadood v. party is to judgment entitled as a matter of S No. order at 56(c); law.” Fed.R.Civ.P. see Caldwell v. (N.D.Ind. 6, 1984). appar- Dec. The court Miller, Cir.1986). F.2d ently compel. never ruled the motion to Any reasonable inferences must be drawn only attempt Abdul-Wadood’s successful Abdul-Wadood, in favor of the non-moving discovery response was Duckworth’s party. Id. set of interrogatories. the first May judge the district conducted II. hearing during which he asked Abdul- We consider first whether Abdul-Wa- (cid:127) questions relating Wadood several to his dood was confined segre to administrative against claims Con- Duckworth and Cohn. gation in violation of the fourteenth amend asked, cerning damages, judge the “You do ment January 7, because his 1983 classifi money have claims for damages against cation hearing was conducted in the ab Jack Duckworth and in Edward Cohen [sic] lay sence of his advocate. To invoke the capacities?” their official protections procedural process, due Ab answered, Hearing Transcript “Yes.” at dul-Wadood must demonstrate that he had 18-19. The court then dismissed the dam- protected liberty stake interest. Mor age claim Duckworth Cohn in Brewer, 471, rissey 481-82, v. 408 U.S. 92 capacities. their official 2593, 2600-01, (1972). S.Ct. 33 484 L.Ed.2d Abdul-Wadood moved reconsider the Although the due clause itself does claim, damage asking dismissal his the give not liberty rise to a interest in remain his pro complaint court consider se more ing general prison in the population, Hewitt liberally again requesting appointment Helms, 460, 466-67, 103 S.Ct. of counsel. The court denied the motion 864, 868-69, (1983); 74 L.Ed.2d 675 Meri because Abdul-Wadood had not “indicated Faulkner, 408, wether v. 414-15 court nor has he served defendants [the] — (7th Cir.), denied, U.S. -, cert. 108 complaint with a in any capacity other than 311, (1987), L.Ed.2d 269 Indiana capacity.” Abdul-Wadood v. regulations provide statutes and may Ab Duckworth, 83-0372, No. S order at protected liberty dul-Wadood with inter (N.D.Ind. 22, 1985). June remaining est in free from the restrictions granted The ultimately summary court Helms, segregation. of administrative judgment for Duckworth and all Cohn on U.S. at 103 S.Ct. at 870-71. claims, finding of Abdul-Wadood’s no basis for relief for Abdul-Wadood under section is It not clear to us that Indiana has 1983. prerequisite created Abdul-Wadood the event, liberty any affirm summary

To the district interest.3 we need court’s disposition case, issue, for, triggered, the must find that not decide this if we even pleadings, guarantees the procedural pro- affidavits and answers to due ll-10-l-7(a) Arguably, provides concerning segregation 3. § Ind.Code tions administrative prisoners liberty remaining (which record) with a interest in part also not of this must general prison population: light examined Helms. involuntarily segregat- An offender recently A district court has held that Indiana general population facility ed from of a prison "procedures policies do not create a program department if the first finds liberty heavy interest and do not contain segregation necessary for the offender’s mandatory language in the which existed ... safety physical physical safety own or the were in Hewitt." statutes which reviewed others. 369, F.Supp. Shropshire v. "language This statute contains ably of an unmistak- (N.D.Ind.1987) (emphasis original). This character,” Helms, mandatory Hewitt v. yet oppor- presented with court has not 471, 864, 871, U.S. (1983), 103 S.Ct. 74 L.Ed.2d 675 tunity entirety statutory to assess in its Indiana’s predicates segregation finding on a regulatory respect scheme adminis- necessary safety, it ensure id. at segregation prisons. trative course, prison regula- 103 S.Ct. at 871. Of Helms, relegated imposed upon prisoners not to disci- clause, interpreted in do as cess segregation plinary be continued in lay at his classifi- to a advocate him entitle —could if only effect Abdul-Wadood were found hearing. requires only “an Helms cation guilty of a rule violation after notice and re- nonadversary evidentiary informal, hearing satisfy procedural sufficient to view,” advance notice of which includes process requirements set forth in due seg- placement in administrative reason McDonnell, 418 94 S.Ct. U.S. prison- for the opportunity Wolff regation and (1974).5 2963, 41 L.Ed.2d 935 to the decisionmak- present his views er to respond er. Id. at and Cohn Duckworth placed required for confine- on Abdul-Wadood procedural safeguards restrictions were of the entire unit pursuant to a “lockdown” ment administrative such, escape. As following attempted case before us. satisfied segrega- Abdul-Wadood’s administrative Thus, as- that Abdul-Wadood’s hold we unchanged, presum- remained status segregation, signment to administrative until June. Because removal ably lay hearing advo- following in which the privileges was not carried out various present, did violate cate was punishment for misconduct Abdul-Wa- process. procedural part, fair- deprivations these cannot dood’s segrega- ly disciplinary to involve be said III. defendants, Hence, according to the tion. pro- was not entitled to the Abdul-Wadood whether, after the at- next examine We discipli- safeguards associated with cedural in by prisoners tempted prison escape other imposed were nary action when restrictions 25, 1983, January restric- the NSB Unit on attempted prison escape. of at the time the imposed in upon Abdul-Wadood tions were court, summary granting The district process of the due clause. Abdul- violation Cohn, held judgment for Duckworth immediately that follow- Wadood concedes requirements process due simply that the incident, the prison officials had ing the 2963, McDonell, 539, 94 of 418 U.S. S.Ct. authority necessary emergency any to take 460, 935, Helms, 41 459 U.S. L.Ed.2d restricting action, “including temporarily 675, 864, had been 74 L.Ed.2d plaintiff rights of inmates like who the satisfied.6 disciplinary charged viola- were not that, Supplemental dispute Brief at parties tions.”4 Plaintiff’s if The do not claims, however, that subjected had in fact 19. Abdul-Wadood ended, action, have had emergency disciplinary of the he would at once the state liberty sufficient to invoke interest identical those stake conditions—which were held, alternatively, may during rights may suspended be an 6.The district court Prisoners’ 11-11-5-8, pursuant emergency Ind.Code § and Cohn cannot be held liable that Duckworth provides: violating which constitutional Abdul-Wadood’s Any rights procedures they negligently. rights or enumerated of acted at most because may chapter suspended upon connection, be decla- in this on the com- the court relied In charge facility by Williams, ration the official panion 474 U.S. cases of Daniels emergency program or there exists an 662, 330-31, 664-65, 327, 88 L.Ed.2d 106 S.Ct. threatening general security situation Cannon, (1986), 474 U.S. and Davidson v. facility rights proce- program. or or The 347-48, 668, 670-71, 344, 88 L.Ed.2d 106 S.Ct. again apply upon dures declaration Daniels, (1986). Supreme The Court charge program facility however, apply do that these cases indicated emergency had been resolved. pris- involving actions deliberate to section 1983 539, McDonnell, 333-34, 418 U.S. 563- 5. Under at disciplinary 474 U.S. decisions. Wolff 2963, 72, 2978-82, event, 41 L.Ed.2d 935 94 S.Ct. any Duckworth 106 S.Ct. 666-67. (1974), disciplinary taken before action argue, motion for did not in their and Cohn against prisoner, no he must receive written merely summary judgment, had been him, right charges against to call tice privi- negligent depriving Abdul-Wadood of impar present an witnesses and evidence before leges. tribunal, laya the assistance of advocate if tial necessary and a written of the tribu statement decision and its reasons. nal’s protection deprived clause.7 of his op- to notice and an connection, accept portunity to In that we cannot supra heard. See note 5. position defendants’ that because Abdul- In support of their motion for summary Wadood’s status was never of judgment, Duckworth and Cohn contended changed in with the Jan ficially connection (1) privileges pris- limited for all restrictions, uary through June he could (2) Unit, oners on the NSB that these unit deprived of protected not have been liber restrictions were a necessary response to ty during long period. interest emergency (3) situation and that visita- label officials attach to their actions privileges were restored within a is not alone determinative of nature of it, week. The however, court had before prisoner’s deprivation. See McKinnon v. evidence from which it reasonably could Patterson, (2d Cir.1977), 568 F.2d have inferred type that some disciplinary denied, cert. 434 U.S. action had been taken Abdul-Wa- (1978); Gunter, 55 L.Ed.2d 792 Carlo v. dood. Abdul-Wadood submitted several (1st Cir.1975). first, affidavits. he stated that he “was disciplinary, punishment reduced to hand, merely On the other because segregation and liberty, priv- all the loss of of privileges Abdul-Wadood’s loss ileges, and allowances characteristics [sic] qualitatively equivalent experienced to that punishment segregation.” Plaintiff’s by prisoners segregated disciplinary Supplemental Appendix at 18. In an affi- does him to the full reasons not entitle davit filed connection with opposition range safeguards procedural set forth in to the summary judgment defendants’ mo- McDonnell, S.Ct. at tion, Abdul-Wadood stated that he “was imposed If 2978-82.8 the restrictions were Bachelor, by Sgt. told who the was Officer whole, a upon the unit as as a measured unit, charge in of the had been [he] emergency, response to and were contin disciplinary reduced to status.” Id. at 136. in force until ued June to ensure the securi unit, ty of the the restraints on Abdul-Wa- that, during It is also relevant hear- the liberty implicate dood’s do not process ing court, the before district Abdul-Wa- Caldwell, guarantees. at 602 dood testified as follows: Cf. (unless regulations state statutes or create January on On the unit that I was on interest, liberty lock-down restrictions do allegedly attempted some inmates to es- trigger procedural safeguards of due cape. And from what I was told some clause). bars were sawed and administration had to come back in and secure Thus, it. And the issue becomes whether the re- temporarily they they told me had to placed on strictions Abdul-Wadood were change policy I and was reduced on purpose for the of punishing him—for be- January 1983 from administrative ing a generally troublemaker or for com- segregation. non-punishment That ais mitting yet or, as unidentified bad acts— segregation. put disciplinary I was alternatively, served to secure the NSB segregation. attempts. Unit from If escape further former, presumably was arguably provides Helms, prisoners

7. The Indiana by pris- Code 8. restrictions suffered liberty avoiding disciplinary interest segregation oner in administrative were "sub- action: stantially discipli- identical” the conditions of action, imposing any disciplinary Before nary segregation. 459 U.S. at n. department person shall afford reasoned, Supreme at 867 n. 1. The Court how- charged hearing with misconduct a to deter- ever, that because the interests at stake in ad- and, guilt guilty, mine his or innocence if segregation ministrative differ from the inter- appropriate action. disciplinary segregation, ests involved in con- § Ind.Code 11-11-5-5. This section further de- finement to administrative does not rights disciplinary scribes the associated with require many procedural safeguards. Id. at (“Disci- hearing. See § also Ind.Code 11-11-5-6 S.Ct. at 871-73. against plinary per- action be taken guilt.”). son before determination of on the unit when That Mr. Love was also claiming forced to that I was Iam ... following attempted escape and dis- ap- segregation for disciplinary upon Ap- January, 1983. having turbance occurred six months without proximately guilty reports or no conduct parently rule guilty of a being found violated or Mr. Love for on record of findings are procedures the normal without Any taken January, 1983. action to achieve that classifi- in order enacted privileges were Love in terms his Mr. several times I discussed this cation. sanctions, not individu- as unit authorized with the the warden and informally with his any changes A/S sanctions or al they make and asked warden assistant Segregation] status. changes____ [Administrative necessary asked them unit team that to the appealed Appendix even 99- Supplemental Plaintiff’s had, up to they me it was copies told also submitted The defendants change it. They could not memoranda, by the warden. issued visitation, his hands. It setting was forth the restrictions personal mail. legal documents and 14-18. Hearing Transcript had been Perhaps, if Abdul-Wadood that, response in his significant It is conducting discovery on more successful not con- interrogatories, Duckworth did matter, pic- clearer we would concern- assertions tradict Abdul-Wadood’s taken the defend- ture of the actions In fact Duck- ing disciplinary status. ants, purposes. of their Unfortunate- Abdul-Wadood was intimated that worth counsel, part he had no ly, major because time, disciplinary serving legitimately significant doc- he failed to uncover suspended, previous for a viola- had been file obtain the relevant uments in his and to tion.9 prison regulations. summary support of their motion presented to that was The evidence the affida- judgment, defendants submitted however, court, genu raises a the district supervisor classifica- prison’s vit as to restrictions tion, ine issue whether explained: which interrogatories order that reduced ants because it was their response to the 9. Duckworth’s puni- non-punitive plaintiff AS status to from that Abdul-Wadood fails to demonstrate yet disciplinary segregation, defend- tive prison disciplinary subject action: not the of wrong- right to their ants to take action failed I, being duly sworn Jack R. they it? doing been informed of even after had interroga- respond do to Plaintiffs under oath record indicates additional ANSWER: The tories follows: disciplinary remained to served. time it true that NO. 9: Is not INTERROGATORY and 6. Is it not fact NO. INTERROGATORY disciplinary segregation Plaintiff remained 25, 1983, on Jan. that a matter of record that loss, having violat- without and its substantial Sgt. day by Cecil was that informed Plaintiff approximately six months? ed rule for Batchelor, by numerous other and later on given additional disci- Inmate was ANSWER- defendants, officials, including prison that by the Ad- plinary as sentenced Conduct time his AS status to he transferred from had been period. during justment his detention Board grievous segregation disciplinary loss 10: Is it not true INTERROGATORYNO. liberty discipli- privileges punitive fully aware of the fact that the they defendants though segregation, he nary even had punish- offender to confine an cannot tried, formally charged, guilty or found having segregation violated without him ment rule infraction? of an Institutional guilty and been tried and found rule Do not know. ANSWER: violating that rule? 7: is not a fact that NO. It INTERROGATORY given additional disci- Inmate was ANSWER: casemanager Steepro and William Hart- Tom Ad- plinary the Conduct time as sentenced ley he numerous times that informed Plaintiff period. during justment his detention Board segrega- disciplinary improperly held on was 11: Is it not a fact NO. INTERROGATORY they plaintiff grievous to believe and that lead loss that before the substantial re-establishing process imposed AS were in the disciplinary can be proper sta- to AS upon would restore him his he be accorded an must offender v. procedure in the process outlined tus? due Wolff ruling? Do not know. ANSWER: McDonnell granted. rights it true that Due NO. 8: Is ANSWER: INTERROGATORY Appendix 49-51. Supplemental brought complaints plaintiff the defend- Plaintiffs his to placed pursuant disci- applied on Abdul-Wadood to dards formally to trained members action, claim plinary a fact material his legal profession, that, according- his the defendants violated ly, pro complaints we construe se liberal- Hence, grant we process. reverse the ly.” Caldwell, (citing 790 F.2d at 595 judgment in summary favor of Duck- Rowe, 5, 9-10, Hughes v. 449 U.S. 101 S.Ct. worth and and remand for further Cohn 173, 175-76, (1980); 66 L.Ed.2d 163 proceedings. Kerner, 519, 520-21, Haines v. 404 U.S. 594, 595-96, (1972)); 30 L.Ed.2d 652 IV. see also Williford, Sizemore v. 829 F.2d Having concluded that Abdul-Wadood 608, (7th Cir.1987). 609-10 may have a cause of action under section When the nature a section 1983 suit is 1983, we must consider district court’s unclear from complaint, the face of the sponte damage sua dismissal of the claim court must totality consider the of the cir- against Duckworth and Cohn. Hadi, cumstances. 830 F.2d at 783. complaint pro Abdul-Wadood’s se does case, present Abdul-Wadood’s com- suing not indicate whether he is defendants plaint clearly monetary compensation seeks capaci in their or in official their individual from Duckworth and Cohn. Given that ties, great importance, a distinction of Abdul-Wadood complaint, drafted his damages to recover Abdul-Wadood must claim damages is sufficient to alert the to impose liability upon seek court and the defendants that he by suing Duckworth and Cohn them suing them their capacities. individual capacities. Kentucky individual See The court therefore given should have Ab- 159, 165-66, Graham, opportunity explain dul-Wadood the 3099, 3104-05, (1985); 87 L.Ed.2d 114 Hadi Instead, nature of his claim. during the Horn, 782-83 Cir. hearing gave rise dismissal of 1987). cogni That Abdul-Wadood was not claim, damage the court asked Abdul- failing allege zant of ramifications of a single question, Wadood do “You bringing that he was individual-capacity money damages claims for against Jack surprising. action is not distinction “[TJhis Duckworth and Edward Cohen in their [sic] apparently lawyers continues confuse capacities?” this, To Abdul-Wa- Graham, and confound lower courts.” responded, Transcript dood “Yes.” at 18- U.S. at 105 S.Ct. at 3105. light of the fact that Abdul-Wadood Although se, subsequently the court proceeding pro was ex- district court plained that the eleventh unduly summary concluding he amendment bars recovering damages had failed to state a valid dam- from claim for ages. against pro “It is well settled that se liti- state officials in their offi- gants stringent are not held to the capacities,10 unlikely stan- cial it is that Abdul- following ages against 10. The court made the comments dur- secured them in their ing hearing: capacities. point very has That well made also. going summarily I am to deal in a few min- Transcript dismissing damages at 21-22. In damage against utes with the claim Duck- claim, the court continued: capaci- in worth Cohen their official [sic] going your I to am not waste time that under absolutely ties. The law is clear on that. the Eleventh of the Amendment Constitution any point wasting There is in not time with it of the United States under Justice Stewart’s capacities, in their official not their in individ- opinion in Owen versus Lash and in a whole capacities. ual And so the law is clear-cut on plethora opinions I have written there court, now from this from the Court of absolutely way any damage is no claim again, Appeals and Justice Stewart in against can be collected either Duckworth of case, but I Owen the cases that have written capacities. Cohen in their official [sic] [sic] and there no about is doubt it in their official capacities. underline in their official And money damages capacities cannot be secured damage such claims are now dismissed. Get under them the Eleventh Amendment. any them out of here not because Absolutely unequivocal. clear and That talking bases. I am in about their individ- capacities. doesn’t mean there can’t some dam- ual 288 counsel, hearing.” v. Duck Abdul-Wadood

Wadood, under- C.A.B. unrepresented (N.D.Ind. 83-0372, worth, 2 of his affirmative order at significance No. S stood question. 1984). The 29, again court’s un response to the Abdul-Wadood Oct. na- explain the him to did not invite he successfully requested court counsel when complaint. amend his his claim or to ture of the dismissal the court to reconsider asked mo- Abdul-Wadood’s The court later denied damage claim. of his dismissal, stating, reconsider tion to Abdul-Wadood, course, has no consti this not indicated to date has “Plaintiff to in appointed tutional counsel defendants with nor has he served court F.2d Pinkney, 683 civil action. Caruth capacity complaint other than any in denied, (7th Cir.1982), 1044, cert. capacity.” Abdul-Wadood 1212, 1214, 103 75 L.Ed.2d 451 U.S. at 1 order SNo. (1983). The court has the discre district 1985). 22, (N.D.Ind. June counsel appoint tion to decide whether circumstances of Under id., rights litigant, the refus for a civil erroneously ease, dis court the district appoint be overturned al to counsel will damage claim. missed Abdul-Wadood’s un only it results “fundamental when proceed litigant, section 1983 Claims process rights.” impinging on due fairness se, be dismissed on the ing pro should not States, 486, LaClair v. United complaint and the an of an unclear basis Cir.1967); (7th also McNeil v. Low see suggestive, single, to a somewhat swer (7th Cir.1987), 1368, F.2d ney, 831 Thus, the order dis we vacate question. — U.S. -, 1236, denied, cert. damage claim. missing Abdul-Wadood’s (1988). We must bear 99 L.Ed.2d mind, however, although “the thresh V. denial reversal of a district court’s old for must address is final issue we appointment of counsel a motion for the discre- court abused its the district whether discretion high,” the district court’s repeated denying Abdul-Wadood’s Id. We have instructed not unreviewable. requests assistance of counsel. for the the relevant circum courts consider all indicates that Abdul-Wadood The record ruling requests for counsel. stances court-appointed initially counsel asked Freake, F.2d Maclin v. legal issues the fall of because Maclin, Cir.1981). Thus, in we identified ability and exceeded his complicated appoint call for the factors that several request he renewed his three and that the district court de ment of counsel once ex- May times. plaintiff’s claim has some termines that the unsuccessfully he plained that had tried (1) plaintiff’s ability to investi merit: 1984, he attorney. September obtain (2) facts; only gate whether the evi represent counsel requested appointed conflicting testimony, dence consists The court denied Ab- depositions. him at require would effective cross-exami which request for counsel dul-Wadood’s nation; plaintiff (3) ability of the because first time October “[t]he counsel; (4) present his case without legal issues involved factual [were] complexity legal issues involved complex single limited to a issue and [were] 887-88. process during a in the case. Id. at involving denial of due the why case fails on but instead statements Id. 27-28. at Although perhaps answer to a be- the basis of ill-informed the court indicated a difference individual-capacity suggestive question. official-capacity and tween suits, Similarly, quotation explain in the dissent from to Abdul-Wadood how the it did not damages v. the earlier case of Love properly to seek from Duckworth and (N.D.Ind.1983), F.Supp. at see refers to these comments Cohn. The dissent infra legal “explanations” mention or involve the distinction of the distinc- does not the court as two suits, capacity capacity and official and official between individual tion between individual face, however, question the but instead addresses See at 293. On suits. factual infra they enlighten pro personal has been estab- se whether involvement are not efforts to the (in case, suit). capacity plaintiff lished an individual he should characterize his on how COFFEY, Judge, to Applying concurring these factors Abdul- Circuit in part dissenting the result case, conclude at least we that Wadood’s part. question a real Whether or now there is appointed. Although the should be counsel majority’s concur result legal presented by issues and factual Abdul-Wadood was not to lay entitled claim, glance, at first do section hearing. advocate at his classification complex, evidently particularly However, seem I dissent from the majority’s de- (1) ability. For ex exceeded Abdul-Wadood’s terminations that Abdul-Wadood raised genuine issue of ample, concerning Abdul-Wadood seemed not to un material fact question of whether the restrictions damages derstand that to obtain he must placed upon him disciplinary in na- specifically allege complaint he in his ture, thereby precluding summary judg- suing in their indi Duckworth Cohn defendants; (2) ment in favor of that the addition, capacities. Abdul-Wa- vidual improperly district court dismissed Abdul- attempts dood unsuccessful in his to claim; damages (3) Wadood’s segrega discover the facts relevant to his district court should reexamine its determi- tion status. nation request whether Abdul-Wadood’s application Our conclusion that of the granted. for counsel should appoint- factors warrant Maclin addressing summary judgment is- depends, part, ment counsel least sue, majority appropriately realizes upon events our review of that occurred that, response to January after the district court denied Abdul-Wa- escape attempt, “prison officials had request. dood’s The district articu- court authority any necessary emergency to take Maclin, guidelines lated the set forth in action, ‘including temporarily restricting say its we cannot that it abused discre- rights plaintiff of inmates like who time it denied counsel. At the charged were not disciplinary with viola- however, present stage proceedings, of the ” (footnote Opinion tions.’ Majority at 6-7 analysis suggests ap- the Maclin that the omitted). The conclusion that au- pointment of counsel be reconsidered. respond thorities have the decisive- remand, Thus, upon the district court is ly type emergency to this required instructed “to make fresh determination” Miller, under Caldwell whether Abdul-Wadood is entitled to court- (7th Cir.1986),in rejected proce- which we appointed counsel. See Hossman upon dural due attack a similar Blunk, Cir.1986). F.2d “lockdown” at the United States Peniten- Marion,

tiary at Illinois. We observed: acknowledge “We that the re- lockdown VI. impair significantly strictions Caldwell’s case, any, Abdul-Wadood’s if seems ability inmates, to associate with other purpose stand or fall the nature and visits, entertain outside to move about Ei- Marion, he underwent in 1983. within to exercise outside his subjected cell, Yet, punitive segrega- possibly, worship. ther he was was, inquiry. tion or he was not. If he does not end the The determina- he either tive factor a Due Process process, Clause received due or he did not. The analysis is the of the in- nature interest present indecipherable record is re- volved, weight. assuming not its Even issues, spect relatively these but a small the lockdown restrictions caused discovery pre- amount effective could suffer a Caldwell to substantial pare prompt disposition. the case for deprivation, way it in no follows that stated, For reasons the orders trigger procedural these restrictions district court protections of the Due Process Clause. PART, AFFIRMED IN REVERSED IN irrespective This is so of whether that PART, PART, VACATED IN AND RE- might deprivation be characterized as a ‘grievous MANDED WITH INSTRUCTIONS. loss.’ To hold otherwise 290 considerations, or courts should these judicial review wide subject to

‘would discretionary dinarily expert judgment actions to their of spectrum defer of Procunier, the business traditionally have matters.’ Pell v. in such of rather than that 2806, administrators prison 827, 2800, [817, U.S. 94 417 ” courts.’ the federal (1974)].... L.Ed.2d [Judicial 495 215, Fano, merely 427 U.S. be v. is accorded not (Quoting Meachum deference 2538, 2532, 49 L.Ed.2d 225, ordinarily 96 S.Ct. the administrator cause omitted). (1976)) (citations will, particular a matter as of fact case, grasp Supreme his domain upon have a better grounded is Caldwell of prison confinement be reviewing judge, but also recognition than the Court’s many of life’s ameni- inmate of deprives an correctional operation our cause of 520, Wolfish, U.S. In Bell ties. province peculiarly the of facilities 1877, 1861, 545-46, 60 L.Ed.2d 99 S.Ct. Executive Branches Legislative and “ incar- (1979), ‘Lawful the Court observed: Government, not the our Judicial.’’ of necessary brings with- about ceration omitted) (Citations (emphasis footnotes many privileges limitation drawal or added). by consid- justified rights, a retraction ” re- Supreme Court’s Consistent underlying penal system.’ our erations pris- quirement we accord deference 266, Johnston, 334 U.S. (Quoting Price responses emergency situa- officials’ 1049, 1060, 92 L.Ed. 1356 68 S.Ct. tions, that the rights or also held Caldwell (1948)). we Whether denominated may be con- of life continuation of “lockdown” privileges, these amenities indefinite “Prison offi- pro- restricted because: rightfully procedural not raise ditions does appropriate ac- free to take cials must be problems: cess safety of inmates and to ensure the tion re assuming “Even that the lockdown prevent es- and to personnel correctional it be permanent, are cannot strictions entry.” Wolfish, or unauthorized cape they brought about conditions said that In Wolfish, at 1878. 99 S.Ct. U.S. qualitatively dif confinement that are 1878-79, 99 S.Ct. at 441 U.S. at punishment ferent from the characteristi explain: on to Court went cally by a These condi suffered convict. day-to- problems that arise “[T]he way constitute an additional tions in no facility are of a corrections day operation can it be said that punishment. Nor susceptible easy solutions. Prison not personal security upon intrude Caldwell’s be ac- therefore should administrators apart them from way in a that would set range deference in the wide corded confinement, action of unlike the normal policies adoption and execution challenged in officials Vitek [v. are need- judgment in their practices Jones, internal order and disci- preserve ed to such, (1980)]. As the con L.Ed.2d 552 securi- maintain institutional pline and to restrictions of the lockdown tinuation peculiar- ty. considerations ‘Such liberty in implicate protected does province professional ly within the subject judicial terest, and hence and, officials, expertise correction Clause.” the Due Process review under evidence absence substantial (footnotes Caldwell, F.2d 604-605 to indicate that the the record officials omitted).1 to and citations response exaggerated by again apply upon official in declaration briefly state noted that Indiana 1. It should be facility program charge or provides: of the law emergency has been resolved.” rights procedures "Any or enumerated of the §Ann. 11-11-5-8. Ind.Code discipline chapter [pertaining to the in this provides that even state law further Indiana may upon suspended prisoners] declara- discipline, involving personalized "[a] in cases charge facility of the or the official tion program con- charged person with misconduct emergency situa- that there exists general population separated security or from threatening general fined of the peri- program facility reasonable procedures or facility rights program. or

291 realizes, majority summary (quoting As First Nat’l Bank Arizona v. judgment posture, requires that Co., Caldwell 253, Cities Serv. 391 U.S. 88 genuine Abdul-Wadood issue as 1575, 1592, “raise[ ] S.Ct. 20 (1968)). L.Ed.2d 569 placed to whether restrictions were on ‘The court should neither “look the other pursuant action, to disciplinary a fact [him] way” ignore genuine to issues of materi his claim material to that the defendants fact, al nor “strain to find” material fact ’ process.” Majori- violated his to none..., issues when there are Secre Opinion ty at 287. As majority also tary Lauritzen, Labor v. 835 F.2d states: issue whether restric- “[t]he [is] 1529, (7th Cir.1987) 1534 (quoting Mintz placed on tions were for Fund, Inc., Mathers 495, 498 punishing purpose being him—for (7th Cir.1972)).” generally committing troublemaker or for Beard v. Whitley County, REMC, 840 F.2d or, yet unidentified bad alterna- acts— 405, (7th Cir.1988). 409-10 majority’s The tively, to served secure the NSB Unit from ignores decision the “deference [prison ad- attempts.” escape further Id. at If 285. ministrators are to be in the accorded] merely part gen- the restrictions were of a adoption policies and execution of prac- and eral “lockdown” such limitations tices judgment are needed to process questions. cannot raise due preserve internal order discipline However, disagree majority’s to maintain security.”2 institutional The determination Abdul-Wadood raised a majority erroneously to find” a “strain[s] genuine concerning issue of material fact genuine issue of material fact in concluding “disciplinary” the individual nature of the proferred Abdul-Wadood’s evidence involved It restrictions. is well settled met this standard. A rational trier of fact that: would not have been able find in favor of confronted awith motion for “[W]hen Abdul upon the facts presented. summary judgment, party who bears It clear the restrictions were proof particular the burden of on a issue placed on Abdul the other inmates on pleading, not rest on its must but January 25,1983, immediately following an affirmatively demonstrate, by specific escape attempt. apparent It is also from allegations factual that there is genu- the record that these were unit-wide sanc- issue requires ine of material fact which tions, which were limited to Abdul-Wa- Catrett, Corp. trial. See Celotex 477 dood.3 The affidavits and statements Ab- 2548, 2553, U.S. 91 L.Ed.2d presented any dul cannot under circum- (1986); Liberty Lobby, Anderson v. meet required per- stances the standards Inc., 2505, 2510, U.S. S.Ct. mit a rational trier of fact to (1986). reach a con- party L.Ed.2d must personal- clusion that these sanctions more simply do than ‘show that there is discipline. generalized ized His metaphysical some statements doubt as to the mate- in his affidavits hearing rial facts.’ Matsushita he Elec. Indus. Co. disciplinary, punishment “was reduced Corp., 574, 586, v. Zenith Radio 1348, 1356, segregation,” that he “was forced L.Ed.2d 538 (1986) (footnote omitted). upon disciplinary segregation ap- ‘Where proximately record taken as a whole six having could not lead a months without vio- being rational trier of fact to lated guilty find the non- or found of a rule [viola- moving party “genuine there is no examples issue of conclusory classic tion]” ’ for trial.” Id. at 106 S.Ct. at 1356 “self-interested assertions” which fail to if presence Wolfish, od time his continued in the 441 U.S. at 99 S.Ct. at 1878. general population poses a serious threat himself, others, property, security or the A3. series of documents introduced defend- facility program.” clearly Ind.Code Ann. ants demonstrate that various sanc- temporary § 11-11-5-6. This applicable prisoners, including tions were to all subject periodic Abdual-Wadood, review before final disci- South side of the New plinary Building Segregation determination. Service Unit. security existing prob- sponse to the other finding of presence a provide basis of Abdul-Wadood’s population lems fact. Dale of material genuine issue resulting NSB unit Co., of the area Chicago Tribune attempt. genuine contemporaneous escape to from the Cir.1986). raise a (7th Failure dis- especially ably clear conducted additional most fact The issue of material that conclusion. covery only “self-interest- confirm of these would even certain because contained admissions ed assertions” approaching the issue whether effec- challenged restrictions became properly dismissed Abdul- district court attempt. day escape very tive on the claim, not- damages it should be Wadood’s alleged statement on the Abdul’s reliance the sum- determination of proper ed that a he charge of his unit officer of the resulted mary judgment issue would have insuffi- subject “discipline” to also was As moot. that this issue is a conclusion genuine of material issue cient to raise a demonstrated, just I have showing there is no in a in which fact case claim that appropriate to present failed speak for authority had to that the officer process of law as deprived he of due was best, is, and it issue prison on this response to unit-wide result of defendants’ the distinction unclear that he understood no attempt. he had Because escape specific disci- a “lockdown” between relief, obviously he legitimate claim Hadley prisoner. pline of an individual Cf. damages. entitled to cannot be 1238, 1242 F.2d Page, 715 County Du However, agreed ma if I that the even Cir.1983) (“No interest can property in its summa jority properly reasoned had since the from the ... assurances arise determination, ry I would judgment un- by the County Board is not bound disagree with its resolution of forced of its individual official acts and statements majority not and damages issue. The does party members, cannot and therefore damages were dispute cannot fact understanding”). any mutually explicit in their against the defendants unavailable interrogatory an- Finally, the Duckworth Kentucky v. capacities. Gra official See majority fail to raise cited swers ham, 159, 165-66, A fair genuine of material fact. issue (1985). Instead, L.Ed.2d Ab- reading indicates that of these answers majority argues that the claims damage to additional disci- subject was dul-Wadood litigant, proceeding pro “of a section of a Conduct plinary time as the result se, on the basis of not be dismissed should pur- Adjustment determination held Board to a complaint and the answer an unclear due procedures consonant with suant suggestive, question.” single, somewhat allege that process. Because did not Abdul Opinion at 288. Majority process deprived procedural he due any disciplinary hear- rights respect me to understand how is difficult for It held, of mate- ing actually genuine no issue carefully more have acted judge could sum, has raised. rial fact addressing this issue. appropriately in record, including affidavits and hear- entire majority that the district court admits The upon ing testimony, is of evidence devoid Abdul-Wa- explained plaintiff-appellant rational, fact could base a which a trier of that the unavailabili- dood on two occasions that the restrictions well-reasoned decision damages the defend- ty of claims were the results placed on Abdul-Wadood capacities pre- official did not ants lacking disciplinary action in their against them vent claims safeguards. Majority Opinion capacities. or individual judge during n. 10. The stated at 287-88 implies also that additional majority hearing, is no doubt ... “there [that] discovery might aided Abdul-Wa- money capacities genuine ability present defendant’s] issue [the dood’s against them damages cannot be secured disagree, timing as the material fact. Amendment. Abso- the Eleventh under placed on Abdul-Wadood the restrictions That unequivocal. doesn’t lutely clear clearly that these limitations establish damages can’t be some re- mean that there part immediate officials’ against personal in their secured them ca- merely being axiomatic that super- in a pacities. point very That capacity has been well visory does not render one liable at n. made also.” Id. 287 10. When dis- every action or at incident the institu- damages missing the fur- claim the court tion. Plaintiff proof has offered no explained absolutely way personal involvement, ther “there is no it and would be any damage claim can be collected personal inconsistent with the involve- against either Duckworth of requirement Cohen ment Superin- hold the [sic] capacities. in official their underline any tendent or [sic] liable act omission of capacities. in their official And such dam- which he possibly could ap- have been dismissed____ age claims are now I am prised at some time.” talking not in capaci- about their individual 554 F.Supp. (citations omitted). at 1069 It However, n. ties.” Id. 10. is not clear majority that the has read and again, majority, over-reaching feels that considered this earlier decision. None- explanations inadequate because theless, where a court’s previously publish- explain the district court “did not to Abdul- ed explained decision has plaintiff to the properly damages Wadood how to seek impropriety of damages against a claim from Duckworth and Cohn.” Id. a defendant and where two statements are made at a hearing exactly the same In pro plaintiffs, the case of some se it effect, a court should not be found to have possibly might have been advisable for the improperly acted dismissing in such a explain greater depth court to in the dis pro claim. While plaintiffs appropri- se personal tinction between and official ca ately given indulgence some in review of However, pacity actions. such extended complaints, see, Hughes Rowe, explanation certainly unnecessary in 5, 9-10, 173, 175-76, U.S. During hearing this case. the district (1980), L.Ed.2d 163 requirement there is no specifically court mentioned the fact actually plaintiff that a court aid a pur- in previously Abdul-Wadood had been before suing damages claims which have ex- judge the same in an action one of plained previous a case and twice the same defendants in the case Love v. lacking legal current case as warrant. (N.D.Ind.1 F.Supp. 983).4 case, addition, we January decided have held that: on 12, 1983, just prior seven months to the complaint alleges a “Where that the con- filing complaint case, public acting duct a official under court, unambiguous district in clear and gives color of rise liability state law language, closely noted another dif related under we ordinarily Section will ficulty preclude which recovery would assume that he has been sued damages even in an ac capacity capacity only capaci- individual in that tion, personal ty____ plaintiff pub- defendant’s lack of If involve intends to sue ment: lic capacities officials in their individual or in both their official and individual only Superintend- defendant “[T]he capacities, expressly he should state so in ent, Duckworth, against Jack R. whom complaint.”

plaintiff damages. Therefore, seeks plaintiff prove personal must involve- County Kolar Sangamon, ment, knowing disregard, (citations least a on (7th Cir.1985) 568-69 part concerning omitted). of the defendant al- footnote I know of no case man- leged deprivation constitutionally pro- matter, dating, pro even in a se that a rights. No prof- required tected evidence was court is strain to find a basis any personal fered capacity which would establish for an individual action and de- involvement of Defendant personal Jack Duck- fendant’s nei- involvement when Therefore, allegations worth. even were there a presented ther the nor the facts right, violation of some summary judgment materially support constitutional Defendant could not capacity be found liable. It an action and a individual defend- Transcript at 24-26. Abdul-Wadood is also known Lincoln Love. effect, regula attempt to alter Although court would

ant’s involvement. if improperly majority it by judicial be considered act mandate. tions amend his explained plaintiff that the could correctly not decide notes that “we need allege an properly individual ca- action to of whether Indiana statutes issue [the involvement, pacity action and protected liberty regulations have created generally re- such action should not remaining the restric interest free from quired certainly of this the case for, segregation], tions of administrative plaintiff who has had experienced pro se guaran procedural the triggered, even if and offi- between individual the distinction clause, interpret the tees of in explained to him this capacity cial suits Helms, ed in do not entitle [Abdul-Wadood] necessity allegations of a and the case laya at his classification hear advocate in anoth- involvement defendant’s However, Majority ing.” Opinion at 284. require mea- To a court to take such er. making majority holding this prior improper it an sures before can dismiss far-reaching completely in indulges and damages very compromise might claim well of unnecessary discussion whether required of a tribunal and impartiality fact, regulations, in Indiana statutes extreme burden on district place would an provide such an interest. Id. 283 n. great pres- judges already face court who designed Essentially appears the discussion resulting dockets. sures from crowded validity prior on of a to cast some doubt re- In its discussion Abdul-Wadood’s court decision that such an interest district counsel, quest appropriate- majority regula not created these statutes say ly “we cannot holds that [the Shropshire tions. at the abused its discretion district court] (N.D.Ind.1987), F.Supp. the same Opinion Majority it time denied counsel.” judge in court involved this case district However, majority somehow at 289. “procedures poli held that the Indiana necessary “ that it is for the district reasons controlling segregation cies administrative on remand ‘to make a fresh deter- court liberty interest and do not do not create whether Abdul-Wadood is mination’ [of] language heavy mandatory appointed to court counsel.” Id. contain the entitled wholly inappropriate. Pennsylvania This action is On in statutes which existed the district court will consider Helms, remand in Hewitt which were reviewed [v. plain- the same same factual situation with 74 L.Ed.2d legal the same issues. As noted tiff and (1983) (Emphasis original). I would ].” earlier, simple in which this case is a one majority that: remind the strongest discovery either the weakest recognized that district court have “[W]e conclu- inevitably lead the obvious will construing the law the state decisions placed on the sion that the restrictions to some defer- in which it sits are entitled plaintiff-appellant Abdul were direct give weight We to these decisions ence. escape attempt. Since the result of the presume judge that a district because we court did not abuse its discretion district likely special familiarity to have a with counsel, rejection of and there are its initial he or she the law of the state which changes in the relevant factors no sits.” remand, improper it is addressed Co., v. J.I. Case judicial require resources to the Beard waste Cir.1987) (citations footnote omit- court to make another determina- district ted). along of this Certainly principle, issue. with accord to the decisions the deference we respect of whether issue With administrators, requires appel- us as prison laya was entitled to advo- from commen- judges to abstain late court hear- cate his administrative might casting tary seen as doubt which agree majority’s I determina- ing, validity of court determina- on the a district laya was not constitu- tion that advocate important state law issue However, tion of required. its dis- tionally find and, presented properly for our review. gratuitous cussion of this issue majority’s wide-ranging attempt second-guess prison actions of Indiana ad- also, Cir., See 8th 741 F.2d 177. example a classic of why ministrators is Supreme States United Court com-

pelled to warn its subordinate members Branch

the Judicial

“judicial deference is accorded [decisions merely be- administrators] will, ordinarily

cause the administrator case, particular

as a matter fact in a grasp better his domain than reviewing judge, but also because the

operation of our correctional facilities is

peculiarly province Legislative of the

and Executive Branches of our Govern-

ment, not the Judicial.”

Wolfish, U.S. at 1879. directive, majority ignores dissent.

must VAUGHN, Appellant,

Tillman HECKLER, Margaret Secretary of Hamm, Firm, Nancy L. The Niblock Law Services, Health and Human Ark., Fayetteville, appellant. for Appellee. Fitzhugh, Atty., J. Michael U.S. Fort No. 84-1269. Smith, Ark., appellee. for Appeals, United States Court of This matter is before the court on Till- Eighth Circuit. Vaughn’s request attorney’s man for fees pursuant Equal and costs to the Access Oct. (EAJA), Justice Act 28 U.S.C. 2412. § provides The EAJA for maximum attorney’s hourly per hour rate of $75 an fees “unless court determines that living special cost of or a increase higher justifies factor ... fee.” 2412(d)(2)(A)(ii). Vaughn urges U.S.C. § attorney’s the court to award fees excess statutory amount. Our review record, however, justifica reveals no the re such award and thus quest is denied.

Vaughn reimbursement for seeks appeal. spent total of 93 hours on this

Case Details

Case Name: Lokmar Yazid Abdul-Wadood v. Jack Duckworth and Edward Cohn

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 9, 1989

Citation: 860 F.2d 280

Docket Number: 86-1607

Court Abbreviation: 7th Cir.