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March 18, 2026 Get Citation Alerts Download PDF Add Note

Norberto Torres v. Kent Brookman

Court of Appeals for the Seventh Circuit

• Citations: None known
• Docket Number: 22-2830

• Judges: Maldonadodissents

• Opinion

• Authorities (28)

• Cited By (0)

• Summaries (0)

• Similar Cases (10.6K)

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Combined Opinion

                        by Maldonadodissents

In the

United States Court of Appeals
For the Seventh Circuit

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No. 22-2830
NORBERTO TORRES,
Plaintiff-Appellant,

v.

KENT BROOKMAN and JASON HART,
Defendants-Appellees.

---

Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:19-cv-00248 — Stephen P. McGlynn, Judge.

---

On Petition for Rehearing En Banc.

DECIDED MARCH 18, 2026

---

Before BRENNAN, Chief Judge, and EASTERBROOK, SCUDDER,
ST. EVE, KIRSCH, JACKSON-AKIWUMI, LEE, PRYOR, KOLAR, and
MALDONADO, Circuit Judges.

 Circuit Judge Taibleson did not participate in the consideration of

this petition for rehearing en banc.
2 No. 22-2830

PER CURIAM. On consideration of the petition for rehearing
en banc filed by Plaintiff-Appellant on October 31, 2025, a
judge in regular active service called for a vote on the petition
for rehearing en banc, and a majority of judges in regular ac-
tive service voted to deny the petition. Judges Jackson-Aki-
wumi and Maldonado voted to grant the petition for rehear-
ing en banc.
On the majority vote, the petition for rehearing en banc is
DENIED.
No. 22-2830 3

MALDONADO, Circuit Judge, joined by ROVNER and
JACKSON-AKIWUMI, Circuit Judges, dissenting from the denial
of rehearing en banc. The Torres majority extends Adams v. Rea-
gle, 91 F.4th 880 (7th Cir. 2024), to hold categorically that pris-
oners facing transfer to disciplinary segregation are entitled
only to informal, non-adversarial due process. Torres v. Brook-
man, 155 F.4th 952, 960 (7th Cir. 2025). The application of this
lenient standard to impose prison punishment conflicts with
Supreme Court precedent, cements a circuit split, and devi-
ates from our decisions affording inmates charged with mis-
conduct the protections set forth in Wolff v. McDonnell, 418
U.S. 539, 547, 558 (1974). Therefore, I respectfully dissent from
the denial of rehearing en banc.
I.
I start with Supreme Court precedent as “[w]e are bound
to follow a decision of the Supreme Court.” Colby v. J.C. Pen-
ney Co., 811 F.2d 1119, 1123 (7th Cir. 1987). Not once has the
Supreme Court held that an inmate facing disciplinary segre-
gation is entitled only to informal, non-adversarial due pro-
cess. Instead, the Supreme Court has allowed such inmates to
receive procedural protections including, to the extent feasi-
ble, the right to call witnesses and to present documentary ev-
idence. See Wolff, 418 U.S. at 566. Meanwhile, the Supreme
Court has reserved informal, non-adversarial due process for
inmates facing routine administrative transfers—whether to a
higher security prison, administrative segregation, or release
on parole. See Wilkinson v. Austin, 545 U.S. 209, 228–29 (2005)
(supermax prison); Hewi v. Helms, 459 U.S. 460, 468 (1983),
abrogated on other grounds by Sandin v. Conner, 515 U.S. 472
(1995) (administrative segregation); Greenhol v. Inmates of
Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (parole).
4 No. 22-2830

Put differently, cognizant that the requirements of due
process are “flexible and call[] for such procedural protections
as the particular situation demands,” Morrissey v. Brewer, 408
U.S. 471, 481 (1972), Supreme Court jurisprudence evinces di-
verging due process standards where an inmate faces confine-
ment in a disciplinary cell for purported wrongdoing (Wolff)
and where an inmate faces administrative transfer in the ser-
vice of larger institutional or penological goals (Wilkinson).
These two strands of caselaw reflect what the Torres majority
concedes are the “different aims” of “administrative segrega-
tion and disciplinary sanctions.” 155 F.4th at 960. Two key rea-
sons justify this divergence.
First, while transfers to disciplinary segregation occur
only if an inmate is “guilty of serious misconduct” and thus,
carry “the stigma of wrongdoing,” administrative transfers
occur for “nonpunitive reasons,” such as “to protect the pris-
oner’s safety.” Wolff, 418 U.S. at 558; Hewi , 459 U.S. at 468,
473. Unlike the reprobative or condemnatory character of a
transfer to disciplinary segregation, administrative transfers
express not censure, but the machinations of prison bureau-
cracy. Thus, while both sorts of transfers can “involve[] alter-
ation of the conditions of confinement,” Wolff, 418 U.S. at 547,
only the inmate charged with misconduct is placed in those
“less amenable and more restrictive quarters,” see Hewi , 459
U.S. at 468, specifically as punishment.
Second, the propriety of a transfer to disciplinary segrega-
tion turns on the facts underlying allegations of “specific, se-
rious misbehavior,” Wilkinson, 545 U.S. at 228, and “the deter-
mination of whether [misconduct] has occurred becomes crit-
ical” as the accused inmate tries to disprove the charges
against him, Wolff, 418 U.S. at 558. Robust procedural
No. 22-2830 5

protections prove useful in this context because the inmate is
singled out, his conduct is assessed, and his transfer to disci-
plinary segregation is conditioned upon the existence, or non-
existence, of particular facts. Administrative transfers, mean-
while, focus less on the details of a specific inmate’s conduct
while incarcerated and more on factors outside of the in-
mate’s control. Specifically, administrative transfers involve a
generalized probe of the institutional environment writ large,
“draw[ing] . . . on the experience of prison administrators,”
Wilkinson, 545 U.S. at 228, whose discretionary decisions “de-
pend[] on an amalgam of elements, some of which are factual
but many of which are purely subjective appraisals,” Green-
hol , 442 U.S. at 9–10. In many cases, these decisions “involve
no more than informed predictions as to what would best
serve institutional security or the safety and welfare of the in-
mate.” Meachum v. Fano, 427 U.S. 215, 225 (1976).
The diverging lines of Supreme Court caselaw discussing
administrative transfers and transfers to disciplinary segrega-
tion suggest that the purpose of the transfer and the focus of
the hearing—administrative or disciplinary—dictate the level
of due process owed. Intuitively, an inmate facing months of
solitary confinement due to allegations of misconduct must
receive more procedural protections—specifically, the Wolff
protections—than an inmate facing transfer to a nearby
prison due to overcrowding, who receives only the Wilkinson
protections.
II.
Most circuits agree that the Wolff standard, not the Wil-
kinson standard, applies to carceral disciplinary proceedings
because of the distinct motivations and interests at play in
such proceedings. “Bearing in mind the interest in
6 No. 22-2830

maintaining a reasonable uniformity of federal law and in
sparing the Supreme Court the burden of taking cases merely
to resolve conflicts between circuits, we give most respectful
consideration to the decisions of the other courts of appeals
and follow them whenever we can.” Colby, 811 F.2d at 1123.
Specifically, in at least six circuits, inmates facing transfer
to disciplinary segregation must be provided the ability “to
call witnesses and present documentary evidence . . . when
permi ing [them] to do so will not be unduly hazardous to
institutional safety or correctional goals.” Wolff, 418 U.S. at
566; see Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999)
(per curiam) (“[D]ue process requires that in a disciplinary
hearing resulting in imposition of . . . solitary confinement, an
inmate must be afforded” procedural protections such as the
ability “to call witnesses and present documentary evi-
dence.”); Stevenson v. Carroll, 495 F.3d 62, 70 (3d Cir. 2007)
(“[G]reater process [is] accorded to prisoners who are con-
fined for disciplinary infractions than those moved for purely
administrative reasons.”); Finley v. Huss, 102 F.4th 789, 816
(6th Cir. 2024) (distinguishing between the “relatively rigor-
ous procedural safeguards [required] before officials can pun-
ish an inmate for serious alleged misconduct” and the “more
relaxed procedures” for “administrative or managerial deci-
sions, including non-punitive classification to administrative
segregation,” and holding that the former requires “an oppor-
tunity for the inmate to call witnesses and present exculpatory
evidence.”); Walker v. Sumner, 14 F.3d 1415, 1421 (9th Cir.
1994) (considering what process was due to an inmate sen-
tenced to disciplinary segregation and holding that because
“prison officials provide[d] no explanation for the denial of
the [inmate’s] request for the witness,” there was a “genuine
issue of material fact that [the inmate] was denied the right to
No. 22-2830 7

produce witnesses in his defense.”); Ramer v. Kerby, 936 F.2d
1102, 1104 (10th Cir. 1991) (quoting Wolff, 418 U.S. at 566)
(holding in case where inmate faced disciplinary hearing after
a physical altercation with a guard, that “a prisoner in a dis-
ciplinary hearing must have the opportunity ‘to call witnesses
and present documentary evidence in his defense, when per-
mi ing him to do so will not be unduly hazardous to institu-
tional safety or correctional goals.’”); Jacoby v. Baldwin Cnty.,
835 F.3d 1338, 1350 (11th Cir. 2016) (“The [ ] jail provided [the
inmate] with a hearing before placing him in disciplinary seg-
regation, so the question before us is whether it was clearly
established that the hearing violated Wolff.”).
Our creation of a circuit split has real consequences be-
cause “it is neither unreasonable nor unusual for an inmate to
serve practically his entire sentence in a State other than the
one in which he was convicted.” Olim v. Wakinekona, 461 U.S.
238, 247 (1983). To address overcrowding issues, and for other
administrative reasons, “states may trade prisoners . . . when
they wish,” and some states outsource significant percentages
of their prison population to other states. Emma Kaufman,
The Prisoner Trade, 133 HARV. L. REV. 1815, 1818 (2020). For ex-
ample, “Vermont outsources a sixth of its prison population,
and Hawaii houses close to half of its prisoners on the main-
land.” Id. A system where inmates incarcerated in some parts
of the country may call witnesses and present documentary
evidence when facing disciplinary segregation, but inmates in
other parts of the country may not, is unwise where inmates
may be moved across circuits at any time.
III.
Until recently, our own precedent has also suggested that
the heightened level of due process provided for under Wolff
8 No. 22-2830

applies to transfers to disciplinary segregation. See, e.g., Lisle
v. Welborn, 933 F.3d 705, 720–21 (7th Cir. 2019); Marion v. Co-
lumbia Corr. Inst., 559 F.3d 693, 697 (7th Cir. 2009); Piggie v.
Co on, 342 F.3d 660, 666 (7th Cir. 2003). In 2023, we held that
“[i]t is well-se led that due process in a prison disciplinary
hearing requires advance notice of the charges, a hearing be-
fore an impartial decisionmaker, the right to call witnesses
and present evidence (when consistent with institutional
safety), and a wri en explanation of the outcome.” Prude v.
Meli, 76 F.4th 648, 657 (7th Cir. 2023).
This changed when the Adams majority declared that
“[o]ur law is clear that an inmate who is facing transfer to dis-
ciplinary segregation is entitled only to ‘informal, nonadver-
sarial due process,’ which ‘leave[s] substantial discretion and
flexibility in the hands of the prison administrators.’” 91 F.4th
at 895 (emphasis added) (quoting Westefer v. Neal, 682 F.3d
679, 684–85 (7th Cir. 2012)); see also Ealy v. Watson, 109 F.4th
958, 965 (7th Cir. 2024) (“[T]his court’s recent decision in Ad-
ams v. Reagle crystallized the process owed to inmates facing
only disciplinary action like segregation.”).
But as Judge Hamilton has observed, “the Adams panel did
not address the Supreme Court’s different teaching in Wolff
and Sandin. Nor did it engage with our other precedents . . .
indicating that the more formal Wolff procedures would apply
to cases of individual punishment with prolonged solitary
confinement.” Jackson v. Anastasio, 150 F.4th 851, 866 (7th Cir.
2025) (Hamilton, J., concurring). Indeed, the sole support pro-
vided by Adams for the proposition that an inmate facing dis-
ciplinary segregation is entitled only to informal, non-adver-
sarial due process was our holding in Westefer, which dealt
exclusively with the procedural protections owed to inmates
No. 22-2830 9

facing administrative transfer. See 682 F.3d at 684 (“Inmates
transferred to a supermax prison are entitled to informal, non-
adversarial due process.”).
IV.
Cementing the change initiated by Adams, Torres elides the
distinctions between administrative transfers and transfers to
disciplinary segregation in pursuit of a clear, universal rule.
155 F.4th at 960. But in so doing, Torres extends Wilkinson’s
lesser procedural protections—mere notice and an oppor-
tunity to be heard, see 545 U.S. at 229—to apply in any context
where an inmate is transferred within the prison or among
prisons, even where that transfer is ordered as punishment.
As the Torres majority has it, an inmate is only entitled to Wolff
protections where he risks losing good-time credits, not
where he faces months or years of solitary confinement.
Wolff provides no basis to cabin its protections to this nar-
row group of inmates. In Wolff, the Supreme Court explicitly
treated the loss of good-time credits as equivalent, for the pur-
poses of procedural protections, to disciplinary segregation.
First, the Supreme Court noted that prison punishment came
in two categories, one of which, the “withholding of good-
time credits,” “affects the term of confinement,” while the
other, “confinement in a disciplinary cell, involves alteration
of the conditions of confinement.” Wolff, 418 U.S. at 547 (em-
phasis added). In Wolff, the complaint at issue solely sought
restoration of good-time credits, so the court focused its a en-
tion there. Id. at 554. But such focus cannot be read to mean
that Wolff’s procedural protections were intended to apply
only to an inmate facing that specific punishment. As the Su-
preme Court observed:
10 No. 22-2830

The deprivation of good time and imposition of
‘solitary’ confinement are reserved for instances
where serious misbehavior has occurred. This
appears a realistic approach, for it would be dif-
ficult for the purposes of procedural due pro-
cess to distinguish between the procedures that
are required where good time is forfeited and
those that must be extended when solitary con-
finement is at issue. The la er represents a ma-
jor change in the conditions of confinement and
is normally imposed only when it is claimed
and proved that there has been a major act of
misconduct. Here, as in the case of good time,
there should be minimum procedural safe-
guards as a hedge against arbitrary determina-
tion of the factual predicate for imposition of the
sanction.
Id. at 571 n.19. And in Sandin, the Supreme Court added that
an inmate’s transfer to disciplinary segregation does not im-
plicate a liberty interest unless it subjects the inmate to “atyp-
ical and significant hardship . . . in relation to the ordinary
incidents of prison life.” 515 U.S. at 484.
Together, Wolff and Sandin emphasize that some forms of
disciplinary segregation may result in prison conditions so se-
vere or so different from ordinary conditions of confinement
that state authorities may not impose them “without comply-
ing with minimum requirements of due process.” Vitek v.
Jones, 445 U.S. 480, 491–94 (1980); see also Washington v. Harper,
494 U.S. 210, 221–22 (1990). It is therefore a misreading of Su-
preme Court precedent to suggest that Wolff’s more robust
procedural protections apply only where an inmate faces the
No. 22-2830 11

loss of good-time credits. One can imagine that some inmates
might prefer the loss of three months’ worth of credits over
spending three months in putrid conditions in disciplinary
confinement. We cannot overlook Wolff’s teaching that the
quantitative and qualitative features of a proposed sanction
must be considered to determine the appropriate amount of
process due. 418 U.S. at 561.
V.
The Torres majority’s decision to categorically preclude in-
mates facing disciplinary segregation from receiving Wolff’s
procedural protections undermines the integrity of the prison
disciplinary process. Without the right—subject to reasonable
limitations—to “call witnesses and present documentary evi-
dence, an accused inmate is not guaranteed the right to pre-
sent any defense beyond his own word,” a concerning pro-
spect because the inmate “obviously faces a severe credibility
problem when trying to disprove the charges of a prison
guard.” Wolff, 418 U.S. at 581–83 (Marshall, J., concurring in
part and dissenting in part). “The hearing will thus amount to
li le more than a swearing contest, with each side telling its
version of the facts—and, indeed, with only the prisoner's
story subject to being tested by cross-examination. In such a
contest, it seems obvious to me that even the wrongfully
charged inmate will invariably be the loser.” Id. at 582.
The consequences of such procedurally deficient discipli-
nary hearings are dramatic. Rather than a slap on the wrist,
“[p]risoners are sometimes placed in solitary or punitive seg-
regation for months or even years . . . and such confinement
inevitably results in depriving the prisoner of [ ] privileges . .
. which are ordinarily available to the general prison popula-
tion,” as well as adversely affecting his eligibility for parole.
12 No. 22-2830

Id. at 594–95 (Douglas, J., concurring in part and dissenting in
part); Sandin, 515 U.S. at 488–89 (Ginsburg, J., dissenting)
(“Disciplinary confinement as punishment for ‘high miscon-
duct’ not only deprives prisoners of privileges for protracted
periods; unlike administrative segregation and protective
custody, disciplinary confinement also stigmatizes them and
diminishes parole prospects.”).
One need look no further than the case of Norberto Torres
to see the sordid effects of a process-deficient prison discipli-
nary hearing. After he was prohibited from calling a witness
or seeing the evidence against him, handicapping his ability
to persuasively contest his alleged membership in a prison
gang, Torres was transferred to disciplinary segregation in
hideous conditions for three months. These conditions were
far worse than those experienced by inmates in the general
population. For Torres’s first four days in confinement, he did
not have a bed to sleep on. The toilet in his cell leaked, and
each time it was flushed, it spewed sewage water onto the
floor, a racting mold, mildew, and insects. Torres asked for
cleaning supplies to clean the cell himself, but prison officials
never provided them.
The conditions of Torres’s disciplinary segregation were
both “qualitatively and quantitatively different,” Wolff, 418
U.S. at 561, from the disciplinary segregation discussed in
Sandin, which lasted just 30 days and which “mirrored those
conditions imposed upon inmates in administrative segrega-
tion and protective custody,” 515 U.S. at 486. Cf. Jacoby, 835
F.3d at 1342, 1349 (distinguishing Sandin and holding that
pretrial detainee who “was forced to sleep on the floor next to
a toilet while in administrative segregation and was exposed
to human excrement as a result” “was entitled to the due
No. 22-2830 13

process protections enshrined in Wolff before being placed in
disciplinary segregation.”).
The adverse effects of such confinement are manifold. In
addition to whatever health risks Torres faced after months of
exposure to raw sewage, mold, mildew, rust, and insects, con-
finement in punitive segregation routinely results in negative
psychological consequences. See Davis v. Ayala, 576 U.S. 257,
287 (2015) (Kennedy, J., concurring). Further, as this court has
explained, a judge who thinks that just a few months’ incar-
ceration in segregation is negligible “may be unfamiliar with
the nature of modern prison segregation and the psychologi-
cal damage that it can inflict. Segregation isn't just separating
a prisoner from one or several other prisoners . . . The serious
psychological consequences of such quasi-solitary imprison-
ment have been documented.” Kervin v. Barnes, 787 F.3d 833,
837 (7th Cir. 2015) (citing Elizabeth Bennion, Banning the Bing:
Why Extreme Solitary Confinement is Cruel and Far Too Usual
Punishment, 90 IND. L. J. 741 (2015); Stuart Grassian, Psychiatric
Effects of Solitary Confinement, 22 WASH. U. J. OF L. & POLICY 325
(2006); Craig Haney & Mona Lynch, Regulating Prisons of the
Future: A Psychological Analysis of Supermax and Solitary Con-
finement, 23 N.Y.U. REV. OF L. & SOC. CHANGE 477 (1997)).
While most disciplinary segregation will cause a “change
in the conditions of confinement having a substantial adverse
impact on the prisoner involved,” Meachum, 427 U.S. at 224,
we must draw the line where those changed conditions pose
serious health risks to the inmate. We need not agonize over
precisely what combination of duration and conditions cause
such a health risk to acknowledge that spending 23 hours a
day for three months in a cell with raw sewage leaking on the
floor is dangerous, unsanitary, and degrading. Subjection to
14 No. 22-2830

such conditions is inappropriate under any circumstances,
but especially where, as here, the inmate had no access “to the
procedural tools essential to the presentation of any meaning-
ful defense” at his disciplinary hearing. Wolff, 418 U.S. at 581
(Marshall, J., concurring in part and dissenting in part).1
VI.
“There is no iron curtain drawn between the Constitution
and the prisons of this country.” Wolff, 418 U.S. at 555–56. As
then-Judge Stevens wrote while on this court, “liberty pro-
tected 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. A residuum of constitutionally protected
rights remains.” United States ex rel. Miller v. Twomey, 479 F.2d

1 It is worth observing that the conditions faced by Torres are out of
step with international norms for the humane treatment of prisoners. See
Jackson, 150 F.4th at 864 (Hamilton, J., concurring) (noting that the United
Nations’ Standard Minimum Rules for the Treatment of Prisoners provide
far more strenuous protections to prisoners than federal courts applying
the Eighth and Fourteenth Amendments, insofar as just fifteen days of sol-
itary confinement is viewed as a form of torture). Though not “a source of
justiciable rights,” Serra v. Lappin, 600 F.3d 1191, 1197 (9th Cir. 2010), three
of the Standard Minimum Rules are particularly salient here: Rule 15,
which provides for adequate sanitary installations; Rule 17, which pro-
vides that cells be “properly maintained and kept scrupulously clean at all
times”; and Rule 43, which provides that “[i]n no circumstances may re-
strictions or disciplinary sanctions amount to torture or other cruel, inhu-
man or degrading treatment or punishment,” and specifically prohibiting
“indefinite solitary confinement” and “prolonged solitary confinement.”
United Nations, Standard Minimum Rules for the Treatment of Prisoners
(2015) h ps://perma.cc/DNY4-TGJP.
No. 22-2830 15

701, 712 (7th Cir. 1973). The Supreme Court, at least six other
circuits, and our own precedent have acknowledged that be-
fore an inmate is punished with disciplinary confinement, he
is entitled to the procedural protections set forth in Wolff, in-
cluding, to the extent feasible, the right to call witnesses and
examine the evidence against him. Torres’s extension of Ad-
ams’s holding that an inmate facing transfer to disciplinary
segregation is entitled only to the informal, non-adversarial
due process set forth in Wilkinson warrants rehearing en banc.