7th Circuit affirms solitary confinement; cautions against it

Dave Stafford for www.theindianalawyer.com

An Indiana inmate’s 30-day stint in solitary confinement at the Miami Correctional facility didn’t violate his civil rights, the 7th Circuit Court of Appeals ruled Friday. But the panel cautioned judges and prison officials against wide use of the practice.

Judge Richard Posner wrote for the panel that affirmed Judge James T. Moody’s dismissal of Shane Kervin’s  42 U.S.C. § 1983 lawsuit alleging that as a prisoner, his rights were violated when he was placed in solitary confinement and denied privileges as punishment for complaining about a delay in being allowed to see his attorney.

The District Court ruled, however, that Kervin’s backtalk to guards was the basis for his punishment. Because this is not constitutionally protected speech in a correctional facility, the 7th Circuit wrote that his placement in solitary was neither “atypical,” “significant,” nor “a dramatic departure from the basic conditions” of his sentence as required for inmate civil rights claims under Sandin v. Conner, 515 U.S. 472, 484-85 (1995).

Kervin “was placed in segregation for at most 30 days and, more importantly, does not allege that he suffered any significant psychological or other injury from it,” Posner wrote. “So the judge was right to dismiss his suit. But we take this opportunity to remind both prison officials and judges to be alert for the potentially serious adverse consequences of protracted segregation as punishment for misbehavior in prison, especially the kind of nonviolent misbehavior involved in the present case.”

The panel cited research on “the serious psychological consequences of such quasi-solitary imprisonment,” including a recent article in the Indiana Law Review.

Along with being placed in solitary, Kervin’s commissary and phone privileges also were suspended. While affirming dismissal of Kervin’s suit, the panel wrote Moody had made two inconsequential errors – evaluating the gravity of each punishment separately rather than in their totality and suggesting that a prisoner must spend six months in segregation before he may complain of being deprived liberty without due process.

“Six months is not an apt presumptive minimum for establishing a violation,” Posner wrote. “Judges who lean toward such a presumption may be unfamiliar with the nature of modern prison segregation and the psychological damage that it can inflict.”