Dale Miller v. Diana Dobier

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1829
DALE MILLER,
Plaintiff-Appellant,
v.
DIANA DOBIER, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08-3238—Harold A. Baker, Judge.
SUBMITTED NOVEMBER 30, 2010—DECIDED FEBRUARY 11, 2011
Before EASTERBROOK, Chief Judge, and POSNER and
WOOD, Circuit Judges.
POSNER, Circuit Judge. Dale Miller is confined at an
Illinois state institution, called Rushville, pursuant to
the Sexually Violent Persons Commitment Act, 725 ILCS
207/1-99. In this suit under 42 U.S.C. § 1983 against offi-
cials of the institution who served on committees
that disciplined him, Miller claims that the defendants
denied him due process of law by failing to provide

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2 No. 10-1829
adequate procedural safeguards before disciplining
him. The district court granted summary judgment for
the defendants.
The suit arises from two unrelated incidents. The first
occurred in August 2007, when Miller was cited for
threatening a deputy sheriff. After receiving a copy of
the incident report, Miller appeared before a discipli-
nary committee, which found that he had committed a
“major” violation of facility rules by making threats and
ordered him reduced to “general status” from “inter-
mediate level C.” All new residents start in general
status and during that time can purchase items from
the institution’s commissary, attend special events (we
are not told what these are) within their residential
unit, remain out of their rooms until 10:00 p.m., use the
library, exercise room, and recreation yard, have two-
hour visits from family members and friends, and
borrow a typewriter. After 180 days of good behavior
in general status, residents are advanced to inter-
mediate status, which has three levels, beginning with
C. Residents in intermediate status C are permitted, in
addition to doing what general status permits, to attend
special events throughout the institution, remain in
their residential unit’s day room for late-night special
events, borrow electronic equipment (again, we’re not
told what equipment), receive longer visits, and stay out
of their rooms until 10:45 p.m. In addition, because
Miller’s infraction had been characterized as major, he
was required to wear for the next year “black box” hand-
cuffs on all trips outside the institution. The “black box” is
a plastic box placed between the hands and over the

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No. 10-1829 3
apparatus that connects and locks the handcuffs. Knox
v. McGinnis, 998 F.2d 1405, 1407 (7th Cir. 1993).
Miller’s second infraction occurred in July 2008. While
temporarily housed in a medical isolation room in the
infirmary because he had a contagious skin condition,
he allegedly damaged a dresser, used it to try to break
a window, and threatened staff. He was immediately
placed in “special management” status pending a dis-
ciplinary hearing. That status authorizes confining resi-
dents in their rooms, a prescribed living area, or “any
other area designated by the Program Director.” A
resident in special management may also be placed in
solitary confinement or subjected to involuntary med-
ication, but Miller does not claim to have been subjected
to either imposition. A disciplinary committee convened
a hearing, which Miller did not attend; he was still medi-
cally quarantined because of his skin condition and he
had not received a copy of the allegations against him.
The committee sustained the allegations of threats,
intimidation, and damage to state property and Miller
was then placed in what is called “close” status for
30 days, during which time his curfew was 9:30 p.m. and
family visits were limited to an hour and he was
denied yard privileges, barred from attending special
events, and forbidden use of the library, exercise room,
and typewriter.
Miller claims that, just like convicted prisoners
accused of disciplinary violations, civilly committed
persons are constitutionally entitled to “advance writ-
ten notice of the charges, the chance to present testi-

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4 No. 10-1829
mony and documentary evidence to an impartial
decisionmaker, and a written explanation, supported by
at least ‘some evidence’ in the record, for any dis-
ciplinary action taken.” Lagerstrom v. Kingston, 463 F.3d
621, 624 (7th Cir. 2006); see Superintendent, Mass. Correc-
tional Institution v. Hill, 472 U.S. 445, 454 (1985); Wolff v.
McDonnell, 418 U.S. 539, 563-67 (1974); Piggie v. Cotton,
344 F.3d 674, 677 (7th Cir. 2003). He submitted evidence
that he did not receive these procedural protections,
but the evidence is immaterial if the district judge
was right in ruling that Miller was entitled to no pro-
cedural safeguards because the disciplinary measures to
which he was subjected did not deprive him of liberty
within the meaning of the due process clause.
Disciplinary measures that do not substantially
worsen the conditions of confinement of a lawfully con-
fined person are not actionable under the due process
clause, Sandin v. Connor, 515 U.S. 472, 485-86 (1995), and
this regardless of whether the confinement is criminal
or civil. See West v. Schwebke, 333 F.3d 745, 748 (7th Cir.
2003); Thielman v. Leean, 282 F.3d 478, 484 (7th Cir. 2002);
Leamer v. Fauver, 288 F.3d 532, 545-46 (3d Cir. 2002).
Language in a few cases could be read to suggest that
a pretrial detainee or a civil detainee does not have the
same rights as prison inmates unless the challenged
restriction imposed on him is intended as punishment.
See Rapier v. Harris, 172 F.3d 999, 1005-06 (7th Cir. 1999);
Baribeau v. City of Minneapolis, 596 F.3d 465, 483 (8th Cir.
2010) (per curiam); Fuentes v. Wagner, 206 F.3d 335, 342
(3d Cir. 2000). But such a reading cannot be correct if
it means that a person detained without having been

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No. 10-1829 5
convicted of a crime can be treated worse than a
convicted criminal. What is true is that civil detainees
who are more disruptive than prison inmates can be
subjected to greater restrictions without those restric-
tions constituting punishment. But such detainees still
have the same right as criminals to complain of a dep-
rivation of liberty without due process of law if the re-
strictions constitute a deprivation of liberty within the
meaning of the Constitution as interpreted by the
Supreme Court (with reference we think to all types of
detainee) in Sandin. The meaning or scope of “liberty” and
“property” in the due process clause is not a function of
motive—a motive to punish rather than a motive to
prevent disorder or other harm that might be caused
by someone who could not be punished because he had
a sound defense of mental incapacity. Without a depriva-
tion of liberty or property (or life, but that is irrelevant
to this case) there is no constitutional duty to provide
due process; but if there is such a deprivation the duty
attaches regardless of the motive for the deprivation.
Wallace v. Robinson, 940 F.2d 243, 247-48 (7th Cir. 1991)
(en banc).
We did suggest in Higgs v. Carver, 286 F.3d 437, 438 (7th
Cir. 2002), a distinction between placing a pretrial
detainee in segregation “not as punishment but for mana-
gerial reasons” that would not require notice and a
hearing—for example if the only vacant cell in the jail
when the prisoner arrived was in the segregation unit,
or the prisoner was considered a suicide risk, or he had
to be protected from other prisoners or other prisoners
from him; for these were measures that would have to

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6 No. 10-1829
be taken immediately, without time for notice and a
hearing in advance. We did not mean to suggest that
once the emergency was past, the jail could never-
etheless keep the prisoner in segregation indefinitely
without providing the procedural safeguards en-
capsulated in the term “due process” because it was not
“punishing” him, if conditions in the segregation unit
were so much more restrictive than those in the rest of
the jail as to constitute an actionable incremental dep-
rivation of liberty.
The “if” qualification is critical. Even when Miller was
in “close” status, he was free to leave his cell for most of
the day, to receive visitors, and in this and other
respects to avoid extremes of close confinement such as
are encountered in segregation units. It is because inter-
mediate status is so loose that general status or close
status seems confining; but the additional restrictions
are too limited to amount to a deprivation of constitu-
tional liberty. Lekas v. Briley, 405 F.3d 602, 611 (7th Cir.
2005); Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003).
AFFIRMED.
2-11-11

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