United States ex rel. Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973)

STEVENS, Circuit Judge.

These eases, all presenting questions relating to the internal administration of state prisons, require us to consider the implications of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, which was decided while these appeals were pending. In all cases, prisoners allege violations of federal rights protected by 42 U.S.C. § 1983; conversely, the prison officials all contend that their conduct was within an area of discretion which is not properly reviewable by a federal court.

In Miller, Green, and Thomas, three different district judges dismissed without any hearing pro se complaints challenging the Illinois procedures for denying “good time” credits. In Krause, the court held that due process must be afforded before the state can punish inmates by segregation or revocation of good time credits: the Wisconsin authorities appeal from the issuance of a preliminary injunction which, they contend, improperly limits their power over prisoners. In Armstrong, a group of prisoners claim that, without adequate procedural safeguards, they were placed in a “Special Program Unit” because they were allegedly more dangerous than the general prison population; on appeal, the prisoners argue that the relief granted by the district court was insufficient. Finally, in Gutierrez, a prisoner who was severely injured by a fellow inmate sued the warden for damages because he failed to segregate the violence-prone assailant from the general prison population; the district court dismissed the action.

At the outset, we are confronted with the impact of Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). For it is now clear that to the extent these prisoners seek the restoration of good time credits, their remedy is by way of habeas corpus rather than by § 1983. It is also clear that a pleading filed under § 1983 may be read to claim habeas corpus relief. Cf. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418. However, neither in the district courts nor in this court did any defendant raise any objection to jurisdiction prior to the decision in Preiser. Unlike the situation in Preiser where both the existence of a New York remedy and the failure to invoke it were perfectly clear, neither the briefs nor the records shed any light on the availability of possible state remedies

in either Illinois or Wisconsin. Compare Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, with Marino v. Ragen, 332 U. S. 561, 567-570, 68 S.Ct. 240, 92 L.Ed. 170 (Mr. Justice Rutledge, concurring). We are therefore not in a position to determine whether an unargued defect in jurisdiction is present. For that reason, our disposition of these cases will not foreclose a fresh examination of the jurisdictional issue in the district courts after remand. We express no opinion on the legal questions relating to the existence of state remedies nor on any factual determination that may be necessary on the exhaustion issue. Nor do we express any opinion on the possible significance of Preiser on questions relating to punitive segregation.

Because our consideration of the various questions presented must take into account the manifold problems that recur in a prison society, we shall first summarize the facts of these cases; we shall then consider the impact of Morris-sey before ruling on the specific legal issues presented.

I.

Each of these pro se complaints, fairly read, alleged that a revocation of statutory good time constituted a deprivation of liberty without due process of law. By statute an Illinois prisoner is entitled to receive good time credits for good behavior;1 such credits reduce the maximum sentence he must serve and also may accelerate the date on which he becomes eligible for parole.2 If prison rules are violated, good time credits may be revoked or withheld as punishment.

Miller’s complaint alleged that on May 12, 1969, 90 days of statutory good time was revoked on the ground that he had “indirectly” called an officer a foul name; his next appearance before the Parole Board was therefore delayed and he also suffered a loss of other privileges. He alleged that the discipline was imposed pursuant to prison rules promulgated approximately 19 years ago; and that the proceedings “were held ‘ex parte’ with petitioner having no representation, nor defense.” The day after the complaint was filed, the district judge, on his own motion, dismissed the complaint as “frivolous.”3 Green’s complaint included several different claims; the issues on appeal, however, relate only to the dismissal of the allegations relating to the revocation of 21 months of statutory good time. Green alleged generally that the due process clause was violated by the manner in which the “Merit Staff” took away good time on the recommendation of three penal officers4 without permitting him to appear in defense.

Respondents’ affidavits contain a more detailed description of the customary procedure. The affidavit of the Warden of the Illinois State Penitentiary at Joliet, where Green is confined, states:

er’s Statutory Good Time: The prisoner was called to the Isolation Building on a call ticket, the disciplinary charge was read to the prisoner, and he was asked whether it was true or false. On major violations of the rules, the two captains would decide what action was to be taken against the prisoner. If the charge was serious enough, they would also refer his case to the Merit Staff for further action. If the prisoner emphatically denied the charge, the captains would investigate the incident. When his ease was referred to the Merit Staff, the charges would be read by the captain to the full committee, the case would be discussed, and they would recommend the penalties to be given to the prisoner. If the penalty was the loss of Statutory Good Time, the recommendation would have to be approved by the Warden and then sent to the General Office in Springfield, Illinois, for the final approval of the Director of the Department of Corrections.”5

Respondent states that under the rules of the Department of Corrections then in effect, good time was not revoked until after the prisoner had committed at least four rule infractions.6 According to his disciplinary report, Green committed four such offenses between October 9, 1965, and February 17, 1966, and thereafter was eligible for deprivation of any part or all of the good time he

had earned, or might thereafter earn.7 In five separate disciplinary actions between March 7, 1967, and January 8, 1970, Green lost a total of 21 months of good time.8

The district court found petitioner’s allegations insufficient. The court held that the Constitution requires only that “the facts be rationally determined” and that the inmate “be afforded a reasonable opportunity to explain his actions.” The court decided that Green’s allegations did not establish a failure to satisfy those requirements.9

Thomas’s complaint alleges that without an adequate hearing he was placed in solitary confinement for 15 days for sending a letter to an ex-inmate in an illegal way.10 The record also reveals

that one month of his statutory good time was revoked. The district court dismissed his complaint on the authority of Walker v. Pate, 356 F.2d 502 (7th Cir. 1966), cert. denied 384 U.S. 966, 86 S.Ct. 1598, 16 L.Ed.2d 678.11 On appeal, he seeks restitution of this good time.

Counsel for Green, Miller and Thomas have limited their contentions in this court to the issues concerning their loss of statutory good time. In each of these cases the challenged action took place before the change in disciplinary procedures which became effective on December 1, 1970.12 The specific procedural defects which they challenge are summarized in their brief as follows:

This case arises out of an incident which occurred at the Wisconsin State Reformatory in Green Bay on November 12, 1971. As a result of a disturbance in the dining hall, windows were broken, fires were set, reformatory personnel were assaulted, and guards as well as inmates were injured. Various disciplinary hearings ensued and Krause and Moore were both placed in “indefinite lower segregation.” They filed this class action on behalf of all inmates at Green Bay “who have been denied the right to due process in disciplinary proceedings,” and promptly moved for preliminary injunctive relief. For the purposes of that motion, the court made the following findings:

minor breaches of discipline’, will be brought before a disciplinary committee. The committee is to be composed of three members, the Associate Warden of Security, the Associate Warden of Treatment, and a rotating member from the general staff. Sec. 5.9(a). Proceedings before the committee may be instituted only by the filing of a written complaint with a member of the committee by either a corrections officer or a staff member. Sec. 5.9(e). Committee sessions are held at such intervals ‘as will assure prompt disposition of all cases.’ Sec. 5.9(b). No form of punishment is to be administered prior to committee action ‘except for proper restraining measures in unusually serious incidents.’ Sec. 6.9(b). The committee considers only written reports signed by the staff member or officer bringing the complaint. The written report presented to the committee is given to the inmate, ‘if at all possible,’ several hours prior to his appearance before the committee (Modification # 1, revision of August, 1971); the accused inmate is given the opportunity to appear before the committee, to present statements to the committee, answer any questions of committee members, and provide any information sought by the committee. Sec. 5.9(c). After taking the evidence, the committee may deliberate privately and announce its decision to the inmate immediately thereafter. Sec. 5.9(d). The action of the committee is documented in a prescribed space on the original conduct report ‘with a concisely written statement (one or two sentences) giving justification for the action taken.’ Modification # 4, revision of August, 1971.) Should the inmate wish to appeal the committee’s action, the committee is to submit its findings to the Warden or Superintendent for final decision. Sec. 5.9(a).

“ ‘Upper segregation’ is called ‘the hole’ by administration and inmates alike. The cell size is 12'x5'; there is a cot with a mattress that is four inches thick; neither sheets nor pillow is provided for the cot. In the cell there is a bare light bulb that is always turned on, thus making it difficult to sleep. No toiletries are allowed: inmates must ask the guard on duty for soap and for toilet paper. The only reading matter permitted in the cell is the Bible, and no radios are allowed. The prisoner is not permitted to exercise; nor is he allowed to leave his cell. He may talk with no one (if he is caught speaking, he is penalized with another day in ‘the hole’). No money can be earned and no good time may be accumulated.

Relying largely on the rationale of his earlier decision in Morales v. Schmidt, 340 F.Supp. 544 (W.D.Wis.1972), rev’d, (7th Cir. 1973), the district court concluded that preliminary relief was warranted and entered an order which, as amended, enjoined defendants “from conducting any further disciplinary hearings with respect to the named plaintiffs Miich may result in either forfeiture of ‘good time’ or confinement in either upper or lower segregation, unless and until such disciplinary hearings shall include the following procedures: timely and adequate notice of the charge and of the hearing on the charge; an opportunity for the accused to confront and to cross-examine adverse witnesses; an opportunity to retain counsel or some reasonable substitute for counsel; an impartial decision-maker; and a brief summary of the evidence on which the decision is based.” The defendant prison officials have appealed from that order and also from an order denying a stay pending appeal on the merits.

Armstrong and certain other named plaintiffs represent a class of inmates who were placed in a “Special Program Unit” in the Penitentiary at Joliet, Illinois. After a full evidentiary hearing the district court made findings favorable to their contention that they had been denied procedural due process, but rejecting their claim that the S.P.U. constituted cruel and unusual punishment. On this appeal, plaintiffs do not press their Eighth Amendment claim, but they do argue that the procedural safeguards ordered by the district court are inadequate.

Like Krause, this case arises out of a violent disturbance. The court’s findings describe the background which led

to the creation of the Special Program Unit:

After reviewing the relevant testimony, the court rejected defendants’ contention that the S.P.U. was “a rehabilitative program” and specifically found that confinement in the S.P.U. was a form of punishment.14 Based on that

finding he concluded “that before an inmate is placed in the Unit he should be afforded an administrative hearing which would reasonably satisfy the concept of due process.” Specifically, he held that “he should be informed of all of the accusations against him and given an opportunity to respond to such charges.”15

He relied on this court’s decision in Adams v. Pate, 445 F.2d 105, 108 (1971), as requiring such minimal protection and also as requiring rejection of plaintiff’s claim that due process also mandates: “(a) prior notice of the charges against the prisoner; (b) a recorded hearing before an impartial arbiter with an opportunity to cross-examine adverse witnesses and to call witnesses in his own behalf; (e) the right to retain counsel or counsel substitute; (d) a decision rendered in writing; and (e) . . . an opportunity to appeal.”16

This case arose as a result of a fight between two inmates while working in the Mechanical Store at the Illinois State Penitentiary on November 20, 1968. One Bobby Bright, who weighs about 225 pounds, assaulted Gutierrez, the plaintiff, with a baseball bat. Gutierrez, who weighs only about 135 pounds, was severely injured.

Some two years earlier, on September 22, 1966, Bright hit another inmate on the head with a baseball bat; on November 11, 1967, Bright fought with inmate Grossman but was excused when the captains determined that Grossman was the aggressor; and on February 22, 1968, Bright was disciplined for striking inmate York.

Gutierrez filed his complaint in the federal court on July 20, 1970, naming the Warden and four other prison officials as defendants. He alleged that his civil rights were violated by defendants’ failure to segregate Bright from the general prison population since the earlier assaults had made them aware of his violent propensities.

After Gutierrez moved for the appointment of counsel, the district judge designated Referee Schaefer as a special commissioner to investigate the relevant facts. The commissioner interviewed the parties, reviewed prison records, and concluded that the facts were essentially as alleged in the complaint, but that plaintiff’s remedy, if any, was a negligence claim in the Illinois courts.

The district judge permitted various additional filings, but ultimately dismissed the complaint for the reasons suggested by the special commissioner. On appeal we appointed counsel for Gutierrez; he argues that the allegations in the complaint were sufficient to require an evidentiary hearing. The theory on which federal relief is sought is that cruel and unusual punishment17

was inflicted upon Gutierrez as a result of the negligence of the prison officials. He seeks recovery of actual and punitive damages of $1,500,000.

II.

On June 29, 1972, the Supreme Court held, unanimously, that parole revocation is a deprivation of liberty within the meaning of the Due Process Clause of the Fourteenth Amendment. Morrissey v. Brewer, 408 U.S. 471, 92. S.Ct. 2593, 33 L.Ed.2d 484.

That holding reversed a well-considered en banc opinion of' the Eighth Circuit18 which, as the Chief Justice noted, “was consistent with many other decisions on parole revocation.” 408 U. S. at 475, 92 S.Ct. at 2597. Indeed, it is fair to state that the Eighth Circuit’s opinion was in accord with a substantial body of law treating parole revocation as merely one application of “the principle that prison officials are vested with wide discretion in controlling persons committed to their custody.” See 443 F.2d at 948.

The Morrissey holding, which is directly applicable only to parole revocations, is not dispositive of any of the cases before us. Nevertheless, we believe its unequivocal rejection of the line of cases on which the Eighth Circuit majority had relied makes it appropriate to reexamine the extent to which the wide discretion of prison officials remains unreviewable.

In Morrissey the Court squarely rejected the contention that since parolees remain in legal “custody” pursuant to criminal convictions, they have an insufficient interest in liberty to require any hearing prior to revocation. It is true that the Chief Justice carefully identified their interest in liberty as “conditional,” 408 U.S. at 480, 484, 92 S.Ct. 2593, and stressed the significance of the parolee’s life outside the prison walls. Id. at 481-482, 92 S.Ct. 2593. As we have noted, the holding of the case is therefore expressly limited to the subject of parole.

In view of the fact that physical confinement is merely one species of legal custody, we are persuaded that Morrissey actually portends a more basic conceptual holding: liberty protected by the due process clause may — indeed must to some extent — coexist with legal custody pursuant to conviction. The deprivation of liberty following an adjudication of guilt is partial, not total.19 A residuum of constitutionally protected rights remains.

As we noted in Morales v. Schmidt, the view once held that an inmate is a mere slave is now totally rejected.20 The restraints and the punishment which a criminal conviction entails do not place the citizen beyond the ethical tradition that accords respect to the dignity and intrinsic worth of every individual.21 “Liberty” and “custody” are not mutually exclusive concepts.

If the Morrissey decision is not narrowly limited by the distinction between physical confinement and conditional liberty to live at large in society,22 it requires that due process precede any substantial deprivation of the liberty of persons in custody. We believe a due regard for the interests of the individual inmate, as well as the interests of that substantial segment of our total society represented by inmates,23 requires that Morrissey be so read.

This does not mean, however, that every decision by prison officials should be subject to judicial review or that the courts rather than experienced administrators should write prison regulations. Morrissey reminds us that due process is a flexible concept which takes account of the importance of the interests at stake;24 thus, it is abundantly clear that a myriad of problems of prison administration must remain beyond the scope of proper judicial concern.25 Only significant deprivations of liberty raise constitutional issues under Morris-sey. Moreover, in determining whether to require due process, we need not choose between the “full panoply” of rights accorded a defendant in a criminal prosecution, on the one hand, and no safeguards whatsoever, on the other. Rather, as Morrissey aptly illustrates, the requirements of due process may be shaped to fit the needs of a particular situation.

III.

We turn now to the specific issues before us: The disallowance of statutory good time, punitive segregation, and the failure adequately to protect inmates from one another. As in Morrissey, our first task is to consider whether the consequences of the challenged actions of the state officials are sufficiently serious to amount to deprivations of liberty. If so, did the defendants afford these

prisoners due process, or, in the case of Gutierrez, violate his- Eighth Amendment rights?

Disparate appraisals of the significance of the revocation of good time credits are reflected in the Second Circuit's pre-Morrissey opinion in Rodriguez v. McGinnis,26 on the one hand, and in the Task Force Report on Corrections, on the other.27 We think the analysis in Morrissey points to the conclusion that the due process clause does apply to the revocation of good time credits.28

The time when an inmate may enjoy liberty is directly affected by the disallowance of statutory good time. In Green’s case, for example, the discipline administered by the prison authorities will postpone the time of release for at least 21 months. The cancellation of such credits thus inflicts the same kind of “grievous loss” on the prisoner as does the revocation of parole. See 408 U.S. at 482, 92 S.Ct. 2593.29

Both the state and the inmate have an interest in the accuracy of the determination that the prisoner is in fact guilty of a serious rule infraction, and defendants have not identified any valid state interest in revoking good time credits without any procedural guarantees whatever. Like the parolee, an inmate who has accumulated statutory good time credits is entitled to rely on “at least an implicit promise” that they will be revoked only if he fails to live up to the prison rules.30 In our judgment the determination whether such a failure has in fact occurred may not be made arbitrarily or capriciously. Cf. United States ex rel. Campbell v. Pate, 401 F.2d 55, 57 (7th Cir. 1968). Due process is required.

The procedural safeguards which plaintiffs demand are broader than those mandated by Morrissey for parole revocation hearings. The Court refused to write a code of procedure for such hearings. It did hold, however, that the minimum requirements of due process in such hearings include: “(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence;

(d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);

(e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” 408 U.S. at 489, 92 S.Ct. at 2604.

Plainly, an in-prison disciplinary proceeding may be at least as informal as a parole revocation hearing. Thus, there is no absolute right to confront or to cross-examine witnesses; it is doubtful that counsel or a lay substitute is essential.31 As a minimum, how

ever, the prisoner must receive adequate advance written notice of the charges against him, he must be afforded a fair opportunity to explain his version of the incident, and, to insure a degree of impartiality, the factual determination must be made by a person or persons other than the officer who reported the infraction.

Accepting Green’s allegations as true, which we must, these minimal requirements were not met before his good time credits were revoked. He did not receive any written notice of the several charges against him, it appears that officers who reported his violations participated in the recommendation that good time be revoked, and he was not given an opportunity to appear before the disciplinary committee which made the decisions. This is not due process.32

We do not think it appropriate for us to try to define the constitutional requirements with greater specificity at this time. Rather we defer in the first instance to the expertise of the state officials to specify the appropriate time and form of written notice for various offenses; the extent to which evidence must be disclosed ;33 the method for enabling a prisoner to explain or rebut the charges, including, if appropriate, an indication of the situations in which he may insist that witnesses be called or at least interviewed; and the extent to which a written statement of the disposition of the charge should be made. Unquestionably, if the Morrissey standards are met, due process will have been afforded; but until the rule-making process has been given an opportunity to develop more fully, we merely hold that the Constitution requires, as a bare minimum, advance written notice, a dignified hearing in which the accused may be heard, an opportunity to request that other witnesses be called or interviewed, and an impartial decision maker.

Serious rule infractions will frequent-' ly result in both removal from the general prison population and also the loss of good time credits. To the extent that the latter consequence is present, the foregoing discussion requires that the. same safeguards apply to the decisional process. If the discipline does not directly or necessarily affect the timing of the prisoner’s release from confinement, the Morrissey analysis of liberty does not apply. ^Arguably, therefore, in such instances the only restraint on the custodian’s wide discretion to define the conditions of imprisonment is the limitation imposed by the Eighth Amendment; on that premise, the due process clause requires no procedural safeguards for purely internal prison disciplinary matters.

We have already impliedly rejected that extreme position by citing Sostre v. McGinnis34 with approval. Adams v. Pate, 445 F.2d 105 (7th Cir. 1971). In that case, we stated that if a “prisoner is confronted with the accusation against him and afforded a reasonable opportunity to deny the accusation or explain his actions” before confinement in segregation, “this would appear to fairly and rationally satisfy the concept of procedural due process.” Id. at 108. Since the decision of Morrissey, however, we have not had an opportunity to consider the application of that general requirement.

As the Chief Justice stated in Morrissey, the question whether any procedural precautions are due depends on the extent to which an individual will be condemned to suffer “grievous loss.” 408 U.S. at 481, 92 S.Ct. 2593. Quite obviously not every adverse change in a prisoner’s status, even assuming it impairs his residuum of liberty, is sufficiently “grievous” to amount to a constitutional deprivation. The consequences of conviction of crime involve not merely the loss of liberty enjoyable in a free society, but additionally the subsequent relatively minor impairments which are inevitably associated with membership in a closely supervised prison community. On the other hand, we are also convinced that additional punishment inflicted upon an inmate may be sufficiently severe, and may represent a sufficiently drastic change from the custodial status theretofore enjoyed, that it must be classified as “grievous loss.”

The records before us describe a sufficient contrast between the privileges associated with membership in the general prison population and the severe restraints resulting from “segregation” to warrant the conclusion that prolonged segregated confinement is a “grievous loss.” Nevertheless, it does not inevitably follow that procedural safeguards must apply whenever an inmate is removed from the general population. Before such a conclusion is justified in any given set of circumstances, there must be an identification of the precise nature of the government interest as well as the private interest affected. Cf. 408 U.S. at 481-483, 92 S.Ct. 2543.

As the facts of these cases demonstrate, there are various circumstances in which the state’s interest in prompt, decisive action clearly outweighs an individual inmate’s interest in procedural safeguards. Thus, as Gutierrez illustrates, it may be more desirable to frustrate a vicious attack by one inmate against another than to pause and assess responsibility for the dispute before taking action. And Armstrong and Krause remind us that the possibility of widespread violence is a continuous condition of prison life. A good faith determination that immediate action is necessary to forestall a riot outweighs the interest in accurate determination of individual culpability before taking precautionary steps. Indeed, even in many of the minor decisions that guards must make as problems suddenly confront them in their daily routines, the state’s interest in maintaining disciplined order outweighs the individual’s interest in perfect justice. Cf. Hagopian v. Knowlton, 470 F.2d 201, 210-211 (2d Cir. 1972). Some mistakes and some arbitrary conduct are inevitable incidents of effective management of a large group of confined human beings.

In cases involving major rule infractions for which the punishment is severe, after the immediate crisis is past, the relative importance of the inmate’s interest in a fair evaluation of the facts increases and the state’s interest in sum

mary disposition lessens; indeed, in such cases, in the long run the state’s interest in a just result is the same as the individual’s. For in those cases neither the state nor the inmate has any valid interest in treating the innocent as though he were guilty.

We therefore conclude that Judge Bauer and Judge Doyle both correctly held that the due process clause applies to the in-prison disciplinary proceedings which Armstrong and Krause respectively challenged.35 In the light of Morrissey, however, we are persuaded that the relief ordered in both cases should be modified. Judge Doyle ordered greater procedural safeguards for an in-prison disciplinary proceeding than Morrissey requires in a parole revocation hearing. His order rested on the assumption that nothing less than the safeguards identified in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, could constitute due process. Morrissey, since it squarely holds that confrontation is not essential in every case, makes it clear that the clause has greater flexibility. Since we find a lesser interest in liberty and a greater state interest in summary disposition of in-prison disciplinary cases than of parole revocation matters, we believe Morrissey describes the maximum procedural safeguards required by the application of the due process clause to an in-prison proceeding.36 In any; case which may involve “grievous loss,” ¡ we believe the bare minimum is that applicable to a proceeding which may re-S suit in the revocation of statutory good! time, namely, an adequate and timely! written notice of the charge, a fair op- ! portunity to explain and to request that witnesses be called or interviewed, and , an impartial decision maker. Since these minima go beyond the dicta in Adams v. Pate, and the relief required by Judge Bauer, and since Judge Doyle’s preliminary injunction exceeds not only these minima but Morrissey as well, the relief granted in both eases must be modified.

Instead of attempting in this opinion to fashion the precise relief which is appropriate, we believe both district courts should hold hearings dealing solely with the matter of relief. And before those hearings are held, we believe the respective defendants should have an adequate opportunity to prepare the kind of procedural regulations which they consider appropriate in the light of this opinion.37 Among other issues to' be faced

squarely in the first instance by the defendants, and then reviewed by the district judges, is precisely what measure of punishment is sufficiently severe to bring the due process requirement into play. Stated conversely, what are the limits of the area in which the state’s interest in unreviewable disciplinary discretion outweighs the individual’s interest in fair procedures? And for those situations in which due process is required, they must also determine the extent to which the minimum standards identified in this opinion need to be supplemented or clarified.

The judiciary cannot avoid its ultimate responsibility for interpreting the constitutional requirements of due process. Certainly that responsibility cannot be delegated to prison authorities. But neither should their expertise nor their assistance in accurately identifying and evaluating the interests at stake be ignored. These cases represent a stage in the development of an extremely important phase of constitutional law. It is appropriate that the development proceed with full deliberation. See Sostre v. McGinnis, 442 F.2d 178, 197 (2d Cir. 1971). We therefore set aside the decrees in both cases and remand for further proceedings on the question of relief.38

There is no question about the fact that Gutierrez was severely injured by Bobby Bright, a fellow inmate, but it is equally clear that he has not alleged a federal claim against Bright. It is not contended that Bright was acting under color of state law, either because he was carrying out a specific order of a correction officer or because he had been granted certain authority which enabled him to harm the plaintiff. Bright was not a “trusty” authorized to supervise fellow inmates. Cf. Roberts v. Williams, 456 F.2d 819 (5th Cir. 1971). The assault committed by Bright was a common law tort; he.did not violate § 1983.

The theory of Gutierrez's claim against the defendant prison officials is that they are responsible for subjecting him to cruel and unusual punishment in violation of his Eighth Amendment rights because they did not prevent the assault from taking place.39 Gutierrez claims that defendants Riley and Kennedy were negligent in their supervision of the Mechanical Store where the assault occurred and that defendants Pate, Poll-mann and Shifflet were négligent in not segregating Bright from the general prison population. The claims against the two groups of defendant officers are thus somewhat different, although both are predicated on the Eighth Amendment.

That amendment may be violated either by the intentional infliction of punishment which is cruel40 or by such callous indifference to the predictable consequences of substandard prison

conditions that an official intent to inflict unwarranted harm may be inferred.41 In the former instance, the issue is whether the punishment inflicted is “cruel and unusual”; in the latter, the issue is whether the harm suffered (assault with a baseball bat) is “punishment” within the meaning of the Eighth Amendment. Quite clearly the allegation that defendants Riley and Kennedy were negligent in their supervision of the Mechanical Store on one occasion is insufficient to establish that they inflicted “punishment” on Gutierrez.

The charges against the warden and the disciplinary officers are more serious because they include criticism of various aspects of prison administration.42 Insofar as they relate to the par-tieular assault by Bright, however, they involve only the failure to segregate him from the general prison population. It is alleged that both Bright’s prior history and his general reputation among inmates put defendants on notice of the risk that he might engage in acts of violence.

We, of course, accept these allegations as true not only because Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652, requires us to do so, but also because an examination of the record (which includes Bright’s disciplinary history, affidavits and a report by the Referee who visited the prison) corroborates their essential accuracy. The legal question which is presented is whether the acceptance of the foreseea

ble risks of violence which are involved in a decision to permit a potentially dangerous inmate to associate with the general population subjects a correction officer to § 1983 liability when such violence actually ensues. More narrowly, the issue is whether the allegations are sufficient to require the defendants to prove their good faith in an evidentiary hearing. Cf. Wheeler v. Glass, 473 F.2d 983, 985 (7th Cir. 1973).

Though the analogy is not decisive of this case, we note that plaintiff’s theory, if valid, might require parole boards to defend their exercise of discretion when the ever-present risk of recidivism materializes and a parolee commits a foreseeable attack on another citizen.43 Even if the defense of good faith is adequate to defeat such claims, the introduction of judicial review would inevitably inhibit the exercise of discretion.

Within the prison itself the warden and his agents must also be permitted a wide area of unreviewable discretion. The proper placement or classification of the especially dangerous inmate should not present him with a Hobson’s choice between alternative Eighth Amendment claims; segregation on the basis of mere suspicion or inadequate history of violence might have subjected him to a claim by Bright, whereas the failure to segregate has given rise to a claim by Gutierrez. In this ease, plaintiff has alleged that an erroneous decision was made; even assuming that error is attributable to negligence, in our opinion that allegation is insufficient to describe a violation of the Eighth Amendment. Even under the broad standard enunciated in Haines v. Kerner, it appears beyond doubt that plaintiff cannot recover damages under § 1983.

The order dismissing Gutierrez’s complaint is affirmed. The orders dismissing the complaints filed by Miller, Green and Thomas are reversed. The injunc-tive orders entered in Armstrong and Krause are vacated without prejudice to the entry of appropriately fashioned decrees on remand. In all appeals except Gutierrez, the cases are remanded for consideration of Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and such further proceedings consistent with this opinion as may be appropriate.44

SWYGERT, Chief Judge

(dissenting in part).

With due deference to the thoughtful and persuasive views developed by Judge Stevens, I find myself unable fully to embrace the majority opinion. In Gutierrez the eighth amendment has been too narrowly construed and the issue has, I submit, been incorrectly posed; in the remaining cases I am unable to perceive the basis upon which Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2543, 33 L.Ed.2d 484 (1972), has been limited.

Morrissey stands for the proposition that the “conditional” liberty of parole may not be revoked except after a hearing attended by a number of procedural safeguards long thought essential to insure due process of law, albeit fewer in

number than the full panoply of rights accorded a criminal defendant at his trial. To the extent that the deprivation of liberty suffered by a parolee upon his return to prison may be analogized to the deprivations felt by the prisoners in the cases before us, Morrissey, along with all of its enumerated protections, is applicable and binding upon us. The majority, for reasons which are not entirely clear to me, has diluted Morris-sey. of the six procedural due process requirements set down by that case, only three are positively required when statutory good time is revoked or when segregation is imposed.1 I do not favor this piecemeal approach, particularly where good time is revoked.

Good time credits accumulated by a convict' serving time in an Illinois or Wisconsin prison reduce the maximum sentence he must serve and shorten the term of confinement required by those States as a prerequisite to his eligibility for parole. In the event that a prisoner serves the maximum period of incarceration to which he has been sentenced, the revocation of accrued good time credit does more than affect a “conditional” liberty; it makes the difference between full incarceration and the enjoyment of liberty conferred upon free men. When the denial of good time serves only to lengthen the period before which a convict is considered for parole, that denial clearly affects the possibility, if not the grant, of his “conditional” liberty. The majority seems to agree, stating: “[t]he cancellation of [good time] credits . . . inflicts the same kind of ‘grievous loss’ on the prisoner as does the revocation of parole”. Inexplicably, however, my colleagues afford convicts facing a loss of good time fewer procedural protections than Mor-rissey confers upon those confronted with a revocation of parole.

The majority likewise requires only a partial adherence to the standards of Morrissey when it deals with punishment by prolonged segregated confinement, despite its concession that segregation, when viewed in contrast with the relative freedom enjoyed by members of the general prison population, is sufficiently harsh to constitute a “grievous loss” of liberty. No argument is advanced that the quantum of liberty separating imprisonment from the “conditional” freedom of parole is appreciably greater than the measure of liberty dividing punitive segregation from normal

incarceration.2 We are told, instead, that the state holds a greater interest in the summary disposition of in-prison disciplinary cases than of parole revocation matters. I am unable to agree. The state has a legitimate interest in expedited discipline only when procedure by hearing raises a risk of danger to inmates or to the prison institution as a whole by widespread violence or riot. This was recognized even in Morrissey:

When the threat of violence has passed, and suspected troublemakers have been neutralized by segregation or other means, the state can point to no interest in summary disposition of their cases greater than the interest it would have in summarily returning them to prison were they parole violators in state custody. For this reason, I view Morrissey as applying with full force whenever prison officials seek long term segregation for one in their charge.

The reluctance of the majority to give full sway to Morrissey may perhaps be explained by an understandable reticence to move hastily in an area of major but developing constitutional significance. Judge Stevens writes:

Thus, Armstrong and Krause are remanded for hearings on relief, and the district courts directed to pay special heed to determining, where due process is required, “the extent to which the minimum standards identified in [the majority] opinion need to be supplemented or clarified.” (emphasis added). I would be unable to countenance this disposition even if I fully agreed with my colleagues on the other aspects of these cases. Such an approach, I submit, reflects an overabundance of caution, one which I suspect will return to haunt us. The district courts,

on remand, will be free to accept or reject additions to the “minimum” Morris-sey safeguards endorsed by the majority. Whichever they choose, perhaps inconsistently, to do, I entertain no doubt that the dissatisfied party will again take an appeal to this court, presenting us with the hard questions we have presently declined to answer. The correctional authorities of both Illinois and Wisconsin had ample opportunity in Krause and Armstrong to present their cases for limited disciplinary hearings; I doubt that the breathing space left by the majority will enable these authorities appreciably to amplify their contentions.

I turn finally to Gutierrez. As posed by the majority, the central issue of Gutierrez’ appeal reads as follows:

With respect for their views, I submit that the majority has mistaken the issue. Bobby Bright was not simply permitted to “associate with the general [prison] population”; he was assigned, along with Gutierrez and other inmates, to the Mechanical Store, described by Warden Twomey as “a small assignment where the institutional supplies are kept.”3 But there is more to the matter. Another prison employee adds significant detail to this bland portrayal in describing the assault on Gutierrez :

By the State’s own affidavits, then, a man whom the majority admits should have been viewed as aggressive and dangerous by prison authorities was allowed substantially unguarded5 access to numerous weapons while in the presence of other inmates.

Simple negligence may not comprise “punishment” within the meaning of the eighth amendment, but I cannot accept the view that all actions or omissions not undertaken intentionally are also excluded from that definition. Negligence may rise to gross negligence and then to recklessness before scienter enters the realm of intent. If a prison official recklessly allows or promotes the continuance of a situation which, more likely than not, threatens physical danger to inmates in his charge from some other inmate, any injury proximately caused by that recklessness is cruel and unusual punishment and actionable under 42 U.

S. C. § 1983. A prisoner does not share the option given to a free man to run from and avoid those who threaten him. When assigned to a detail — the Mechanical Store, for example — he runs the risk of punishment if he fails to appear for or refuses duty. And when the state, having deprived him of his freedom of movement, recklessly provides a potential attacker with access to dangerous weapons, it should not and must not be allowed to disclaim responsibility for a resulting incident. See Roberts v. Williams, 456 F.2d 819 (5th Cir. 1971); Holt v. Sarver, 309 F.Supp. 362 (E.D. Ark.1970). As the Fifth Circuit said in Roberts:

The district court sought support for its dismissal in United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970), Beishir v. Schanzmeyer, 315 F. Supp. 519 (W.D.Mo.1969), and Gittlemacker v. Pennsylvania, 281 F.Supp. 175 (E.D.Pa.1968). It erred in so doing. These cases are not apposite, the plaintiff in each having alleged no more than simple negligence on the part of prison officials.6 Given the record as it stands, along with the admonition of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), I would reverse the dismissal as to all individual defendants other than Bright and remand for a trial. Cf. Puckett v. Cox, 456 F.2d 233 (6th Cir. 1972).