James O. Paige , S R . v. Sheila Hudson

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4317
J AMES O. P AIGE , S R .,
Plaintiff-Appellant,
v.
S HEILA H UDSON , et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 01-CV-332—William C. Lee, Judge.
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S UBMITTED J ULY 23, 2003—DECIDED A UGUST 28, 2003
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Before CUDAHY , P OSNER , and R IPPLE , Circuit Judges.
P OSNER , Circuit Judge. As a condition of probation, Indi-
ana offender James Paige was required by the sentencing
court to spend six months in a “home detention” program
run by Allen County Community Corrections, a public
body. The ACCC requires participants in the program
to obtain full-time employment unless (so far as bears on
this case) they are mentally disabled. Paige did not obtain
full-time employment, claiming to be mentally disabled.
Unpersuaded by the evidence of mental disability that he
produced, the ACCC terminated Paige from the program
and so advised Paige’s probation officer, who in turn peti-
tioned the court to revoke his probation and obtained
an arrest warrant pursuant to which Paige was arrested and

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2 No. 02-4317
spent three days in jail before posting bond. At the proba-
tion revocation hearing that followed, Paige presented
additional evidence of mental disability. The court was
convinced, declined to revoke his probation, and ordered
him reinstated in the home-detention program with credit
for the days he had missed when the ACCC had terminated
him. Paige then brought this suit against officials of the
ACCC under 42 U.S.C. § 1983, contending that the due
process clause of the Fourteenth Amendment required the
ACCC before terminating him from its program to give him
a hearing that satisfied the requirements of due process of
law, which, he claimed, the ACCC had not done. The
district court granted summary judgment for the defen-
dants.
There is an initial question whether being removed from
a home-detention program into jail is a sufficiently large in-
cremental reduction in freedom to be classified as a depri-
vation of liberty under the Sandin doctrine, Sandin v. Conner,
515 U.S. 472, 483-84 (1995); Thielman v. Leean, 282 F.3d 478,
482 (7th Cir. 2002); Mitchell v. Horn, 318 F.3d 523, 531-32 (3d
Cir. 2003), since, if not, Paige has no right to due process of
law. We think it is a sufficient reduction, while acknowledg-
ing that it is less than the reduction of liberty that comes
about when someone on parole or equivalent status is
reincarcerated, as in Young v. Harper, 520 U.S. 143, 147-48
(1997); Holcomb v. Lykens, 337 F.3d 217, 221-23 (2d Cir. 2003);
Friedl v. City of New York, 210 F.3d 79, 82 (2d Cir. 2000), and
Benny v. United States Parole Comm’n, 295 F.3d 977, 984-85
(9th Cir. 2002). The difference between being confined in a
jail and being confined to one’s home is much greater than
the difference between being a member of the general prison
population and an inmate of a prison’s segregation wing,
the sort of difference that Sandin refused to characterize as
the difference between having liberty and being deprived of
it.

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No. 02-4317 3
But there is a separate question whether ACCC deprived
Paige of his liberty. Unlike the parole officials in the cases
cited above, ACCC has no power to order a participant in
its home-detention program jailed. Only the court can do
that. All ACCC can do is inform the participant’s probation
officer of a probable violation of a condition of probation.
It is up to the probation officer and the court to decide
whether to proceed further. The probation officer must de-
cide whether to arrest the participant and seek revocation of
his probation, and the court must decide, if revocation
is sought, whether to grant it. The ACCC has no power over
these decisions. It is not suggested that the ACCC was
acting in bad faith or recklessly in concluding that Paige
might be violating the terms of his probation, and so there
is no basis for supposing that it violated section 1983 by im-
properly procuring his arrest. Neiman v. Keane, 232 F.3d 577,
579-80 (7th Cir. 2000); Vakilian v. Shaw, 335 F.3d 509, 517 (6th
Cir. 2003); Loria v. Gorman, 306 F.3d 1271, 1289 (2d Cir.
2002). Hence it had no more obligation to give him a
hearing than anyone else does who merely informs the
authorities of a probable violation of law. Not it, but the
probation officer, and the state court that issued the warrant
at the officer’s request, deprived Paige of liberty.
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-28-03

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