                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-2556

W AR N. M ARION,
                                              Plaintiff-Appellant,
                               v.

C OLUMBIA C ORRECTIONAL INSTITUTION,
G REGORY G RAMS, M ARC C LEMENTS,
Deputy Warden, et al.,
                                  Defendants-Appellees.


           Appeal from the United States District Court
              for the Western District of Wisconsin.
           No. 07 C 243—Barbara B. Crabb, Chief Judge.



    A RGUED JANUARY 28, 2009—D ECIDED M ARCH 23, 2009




  Before B AUER, R IPPLE and T INDER, Circuit Judges.
  R IPPLE, Circuit Judge. War Marion, an inmate in the
Wisconsin prison system, brought this action under
42 U.S.C. § 1983, alleging that prison officials had denied
him equal protection and due process of law during a
disciplinary hearing that resulted in 240 days of disciplin-
ary segregation. The district court screened the com-
plaint, see 28 U.S.C. § 1915A, and dismissed it for failure
2                                               No. 07-2556

to state a claim upon which relief may be granted. After
Mr. Marion appealed that dismissal, we instructed the
parties to address whether his 240-day segregation was
an “atypical and significant hardship” and therefore
implicates a liberty interest, as that term has been ex-
plained in Wilkinson v. Austin, 545 U.S. 209 (2005), and
Sandin v. Conner, 515 U.S. 472 (1995). See Marion v. Columbia
Corr. Inst., No. 07-2556 (7th Cir. May 1, 2008) (interim
order). In harmony with the relevant cases of this circuit,
as well as those of our sister circuits, we hold that the
240 days of segregation in this case was sufficiently long
to implicate a cognizable liberty interest if the condi-
tions of confinement during that period were sufficiently
severe. Mr. Marion therefore should have been allowed
to develop a factual record of the conditions of his con-
finement during his period of segregation. Accordingly,
we reverse the dismissal of this action and remand this
case for further proceedings consistent with this opinion.


                              I
                     BACKGROUND
                             A.
  Mr. Marion alleges the following facts; we must assume
them to be true for purposes of this appeal. See Westefer
v. Snyder, 422 F.3d 570, 574 (7th Cir. 2005).
  Mr. Marion and his cellmate, Clifford Snipes, were in
their cell at the Columbia Correctional Institution in
Wisconsin when the prison’s psychologist, Dr. Andrea
Nelson, delivered puzzles to them. Snipes began arguing
No. 07-2556                                                 3

with Mr. Marion because Mr. Marion received more
puzzles than Snipes. Snipes then charged at him;
Mr. Marion responded by clenching his fists. When
Dr. Nelson returned to the cell, she saw Mr. Marion’s
response and went to alert corrections officers. Correc-
tional officers came to the cell to separate Mr. Marion
and Snipes; Mr. Marion was placed in segregation.
  Prison officials then began formal disciplinary pro-
ceedings, which, Mr. Marion alleges, lacked adequate
procedural protection. First, prison officials issued
Mr. Marion a conduct report containing false accusa-
tions of misconduct. The prison then scheduled a hearing
to allow him to contest the report, but refused his request
for two (of four) witnesses, specifically, Dr. Nelson and
the captain who investigated the incident. Next, prison
officials appointed a prison advocate for Mr. Marion,
but the advocate failed to assist him. Finally, prison staff
kept Mr. Marion away from the hearing and later signed
a false statement that he had refused to attend. At the
conclusion of the hearing, Mr. Marion was disciplined
with 240 days—approximately eight months—of segrega-
tion. Because Mr. Marion already was serving a term of
180 days of segregation at the less restrictive “D.S.2” level,
he was moved to the more restrictive “D.S.1” segregation
unit. R.5. Mr. Marion claims that he was required to
serve a total of 420 days in D.S.1 segregation.


                             B.
 After exhausting his administrative remedies, Mr.
Marion filed a complaint in the district court. He claimed
4                                               No. 07-2556

that, after the incident with Snipes, prison officials con-
fined him in D.S.1 segregation without due process of law.
He also claimed that these officials had violated his
equal protection rights by not also disciplining his cell-
mate for his role in the incident.
  The district court dismissed Mr. Marion’s complaint
under Section 1915A for failure to state a claim upon
which relief may be granted. The court concluded that
his confinement did not implicate a due process right
because the discipline he received did not increase the
duration of his confinement or subject him to an “atypical
and significant” hardship. Marion v. Columbia Corr. Inst.,
No. 07-C-243-C, 2007 WL 5445866, at *2 (W.D. Wis. June 8,
2007). The court explained that, under Sandin v. Conner, 515
U.S. 472, 484 (1995), prisoners are not entitled to any
process “unless the discipline they receive increases their
duration of confinement or subjects them to an ‘atypical
and significant’ hardship.” In the court’s view, placement
in disciplinary segregation alone never can meet this
demanding standard. Dismissing Mr. Marion’s equal
protection claim, the court noted that the defendants
needed only a rational reason for treating his cellmate
differently. In this respect, the district court concluded
that Mr. Marion had pleaded himself out of court on this
equal protection claim because he acknowledged that,
unlike Snipes, he had been caught in an aggressive stance.
  Mr. Marion filed a motion for reconsideration. He
argued that, at the time of the incident with his cellmate,
he was in a less restrictive level of segregation, “D.S.2,”
serving a term of 180 days based on another false conduct
No. 07-2556                                                  5

report. After he received the additional 240 days’ segrega-
tion, he was moved to a more restrictive segregation
unit, “D.S.1.,” resulting in 420 days of segregation in that
segregation unit. The court denied his motion, stating that
his total time in prison had not been increased, and
therefore, he still had not met the Sandin standard.
  Mr. Marion then filed a notice of appeal. In granting
Mr. Marion leave to proceed on appeal in forma
pauperis, the district court observed that other circuits
have held that prisoners have a liberty interest in remain-
ing free from similarly lengthy terms of segregation, and
further noted that, in Whitford v. Boglino, 63 F.3d 527 (7th
Cir. 1995), we had suggested that due process protections
may be required when a prisoner is sentenced to an
“extreme term[] of segregation.” Marion v. Columbia Corr.
Inst., No. 07-C-243-C, 2007 WL 5448211, at *1 (W.D. Wis.
July 11, 2007) (quoting Whitford v. Boglino, 63 F.3d 527, 533
(7th Cir. 1995)). The district court consequently granted
Mr. Marion’s motion for leave to proceed in forma
pauperis, noting that “there is room for debate among
reasonable jurists whether 240 days in disciplinary seg-
regation is sufficient to trigger due process protections.” Id.


                              II
                       DISCUSSION
  We review de novo a dismissal for failure to state a
claim upon which relief may be granted under 28 U.S.C.
§ 1915A. Westefer, 422 F.3d at 574. We construe all facts
in the light most favorable to Mr. Marion, and we shall
6                                               No. 07-2556

draw all reasonable inferences in his favor. Wynn v.
Southward, 251 F.3d 588, 592-93 (7th Cir. 2001). See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (2007);
Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803
(7th Cir. 2008).


                            A.
  Mr. Marion submits that his 240-day disciplinary segre-
gation constituted an atypical and significant hardship
that implicates a protected liberty interest under the
Due Process Clause. 1 He maintains that the district court
misconstrued Sandin in concluding that disciplinary
segregation cannot trigger due process concerns. Mr.
Marion notes that, in Wilkinson v. Austin, 545 U.S. 209, 224
(2005), the Supreme Court emphasized that the duration
of the segregation is relevant in determining whether a
protected liberty interest exists. He further observes that
our decisions distinguish between short terms of segrega-
tion, typically less than six months, where generally no
liberty interest is at stake, and longer terms of segrega-
tion in which a liberty interest may arise depending on
the actual conditions of segregation as reflected in a
factual record.
  The defendants respond that segregation never offends
a liberty interest unless it is indefinite and prevents
eligibility for parole. They observe that the provision


1
  Mr. Marion does not raise the equal protection argument on
appeal.
No. 07-2556                                                  7

under which Mr. Marion was disciplined carries a maxi-
mum term of only 360 days of segregation, and it neither
extends the prisoner’s term of incarceration nor affects
the prisoner’s eligibility for parole. See Wis. Admin. Code
§ 303.84. The defendants concede that Sandin does not
settle definitively the issue of whether an inmate has a
liberty interest in avoiding lengthy disciplinary segrega-
tion; however, they maintain that the “general tenor” of
the opinion exhibited a “disapproval of excessive
judicial involvement in day-to-day prison management.”
Appellees’ Br. 8-9 (quoting Babcock v. White, 102 F.3d 267,
275 (7th Cir. 1996)). In the defendants’ view, this case is
different from Wilkinson because Wilkinson involved an
indefinite placement of a prisoner in a more restrictive
prison and disqualified the prisoner from parole con-
sideration. See Wilkinson, 545 U.S. at 223-24.


                              B.
  We begin our evaluation of these arguments with an
examination of the Supreme Court’s decisions in Sandin
and Wilkinson. In Sandin, 515 U.S. 472, the Supreme
Court addressed whether a prisoner’s sentence of thirty
days of segregated confinement triggered due process
considerations. It first observed that the Court previously
had not addressed “whether disciplinary confinement
of inmates itself implicates constitutional liberty interests.”
Id. at 486. The Court then held that a prisoner’s sentence
of thirty days of segregated confinement “did not present
the type of atypical, significant deprivation in which a
State might conceivably create a liberty interest.” Id. It
8                                               No. 07-2556

further concluded that the prisoner’s confinement “did not
exceed similar, but totally discretionary, confinement
in either duration or degree of restriction,” nor did it
affect the length of his sentence. Id. at 486-87.
  The Supreme Court revisited the issue of prison seg-
regation and due process rights in Wilkinson. In that case,
prisoners were transferred to a maximum-security
prison and placed in segregated confinement for an
indefinite duration. Wilkinson, 545 U.S. at 214, 216-17.
The prisoners were denied virtually all sensory and
environmental stimuli, permitted little human contact
and disqualified from parole eligibility. Id. at 214-15. The
Court concluded that although “any of these conditions
standing alone might not be sufficient to create a liberty
interest, taken together they impose an atypical and
significant hardship within the correctional context.” Id.
at 224.
  The Supreme Court’s decisions in Sandin and Wilkinson
establish that disciplinary segregation can trigger due
process protections depending on the duration and condi-
tions of segregation. See Wilkinson, 545 U.S. at 224; Sandin,
515 U.S. at 486. Although the defendants contend that a
prisoner’s due process protections are triggered only by
indefinite segregation and parole disqualification, we
have declined to read Wilkinson’s holding as being
limited to its specific facts. See Westefer, 422 F.3d at 590
(“Illinois’ contention that the liberty interest identified
in Wilkinson turned exclusively on the absence of parole
constitutes, [in] our view, far too crabbed a reading of the
decision.”). The Supreme Court’s decisions are helpful
No. 07-2556                                                   9

in setting out the durational parameters of a prison-
segregation due process analysis. There nevertheless
remains a significant area in which the presence of a
cognizable liberty interest is not self-evident from a
reading of these cases. In these situations, we must
make the necessary determination by analyzing the
combined import of the duration of the segregative con-
finement and the conditions endured by the prisoner
during that period.
  The defendants correctly note that, in some cases, we
have described an inmate’s liberty interest in avoiding
segregation as very limited or even nonexistent. For
example, in Townsend v. Fuchs, 522 F.3d 765 (7th Cir.
2008), which involved a prisoner segregation term of fifty-
nine days, we concluded that “inmates have no liberty
interest in avoiding transfer to discretionary segrega-
tion—that is, segregation imposed for administrative,
protective, or investigative purposes.” Townsend, 522
F.3d at 766, 771. However, those cases, like Sandin, all
involve relatively short periods of segregation.2


2
  See Townsend v. Fuchs, 522 F.3d 765, 766, 772 (7th Cir. 2008)
(holding that “inmates have no liberty interest in avoiding
placement in discretionary segregation”) (59 days); Hoskins v.
Lenear, 395 F.3d 372, 374-75 (7th Cir. 2005) (holding that the
punishments the plaintiff suffered because of his disciplinary
conviction—demotion in status, segregation and transfer—
raise no due process concerns) (60 days); Holly v. Woolfolk, 415
F.3d 678, 679 (7th Cir. 2005) (noting that “being placed in
segregation is too trivial an incremental deprivation of a
                                                  (continued...)
10                                                     No. 07-2556

  In a number of other cases, we have explained that a
liberty interest may arise if the length of segregated con-
finement is substantial and the record reveals that the
conditions of confinement are unusually harsh. For ex-
ample, in Whitford, we noted that six months of seg-
regation is “not such an extreme term” and, standing
alone, would not trigger due process rights. Whitford,
63 F.3d at 533. Nevertheless, we remanded for a factual
inquiry as to whether the conditions of the prisoner’s
confinement “were significantly altered when he was
placed in segregation.” Id. at 533. We similarly have
recognized the need for additional factual development
in a case that involved one year of segregation. Bryan v.
Duckworth, 88 F.3d 431, 433-34 (7th Cir. 1996), abrogated on
other grounds, Diaz v. Duckworth, 143 F.3d 345, 346 (7th
Cir. 1998). We explained in Bryan that both the duration
and the conditions of the segregation must be considered
in the due process analysis; if the conditions of segrega-
tion were significantly harsher than those in the normal
prison environment, “then a year of [segregation] might



2
   (...continued)
convicted prisoner’s liberty to trigger the duty of due process”)
(2 days); Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005) (analyz-
ing conditions of confinement, but also noting that prisoner’s
segregation “was still not so long as to work an atypical and
significant hardship”) (90 days); Thomas v. Ramos, 130 F.3d 754,
761 (7th Cir. 1998) (holding that no liberty interest was impli-
cated and noting “it was obviously a relatively short period
when one considers his 12 year prison sentence”) (approxi-
mately 70 days).
No. 07-2556                                                      11

count as a deprivation of liberty where a few days or even
weeks might not.” Id. at 433. In Wagner v. Hanks, 128
F.3d 1173, 1174, 1177 (7th Cir. 1997), we vacated a dis-
missal on the pleadings and remanded for additional fact-
finding with respect to a one-year segregation. Wagner, 128
F.3d at 1174, 1177. In doing so, we noted specifically that
“the absence of any factual record in the district court on
the issue makes it inappropriate for us to affirm out of
hand.” Id. at 1177.
  Mr. Marion’s term of 240 days’ segregation is signifi-
cantly longer than terms of segregation imposed in cases
where we have affirmed dismissal without requiring a
factual inquiry into the conditions of confinement. See
Townsend v. Fuchs, 522 F.3d 765, 766 (7th Cir. 2008); Holly v.
Woolfolk, 415 F.3d 678, 679 (7th Cir. 2005); Hoskins v.
Lenear, 395 F.3d 372, 374-75 (7th Cir. 2005). Indeed, a term
of 240 days of segregation is more akin to the confine-
ments for which we have ordered remands for further
inquiry into the conditions of confinement. Following
Whitford and later cases, it is clear that a term of segrega-
tion as lengthy as Mr. Marion’s requires scrutiny of the
actual conditions of segregation.
  Our decision that Mr. Marion’s complaint states a claim
is consistent with the decisions of our sister circuits.3



3
   See, e.g., Palmer v. Richards, 364 F.3d 60, 65-66 (2d Cir. 2004)
(noting that cases involving segregation of less than 30 days
may be dismissed without a detailed factual record of condi-
tions of confinement, but holding that 77 days’ segregation
                                                      (continued...)
12                                                      No. 07-2556

Indeed, other courts of appeals have held that periods of
confinement that approach or exceed one year may trigger
a cognizable liberty interest without any reference to
conditions.4 Accordingly, the approach of other circuits



3
   (...continued)
warrants further review); Mitchell v. Horn, 318 F.3d 523, 527, 532-
33 (3d Cir. 2003) (remanding the dismissal of a claim of 90
days’ segregation “given the ‘fact-intensive inquiry’ implied by
Sandin”); Hatch v. District of Columbia, 184 F.3d 846, 848, 857-58
(D.C. Cir. 1999) (explaining that seven-month segregation
required additional factual development); Ramirez v. Galaza, 334
F.3d 850, 861 (9th Cir. 2003) (reversing dismissal of a claim
involving two years’ segregation for additional fact-finding);
Gaines v. Stenseng, 292 F.3d 1222, 1225-26 (10th Cir. 2002)
(reversing dismissal of a claim involving 75 days’ segregation
where district court had failed to examine conditions of con-
finement).
4
   See Iqbal v. Hasty, 490 F.3d 143, 161 (2d Cir. 2007), cert. granted
sub nom. Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (explaining that
a segregated confinement of 305 days or more necessarily
triggers due process protections, and segregation lasting 101
to 305 days may trigger due process protections, depending
on the conditions of segregation); Trujillo v. Williams, 465 F.3d
1210, 1225 (10th Cir. 2006) (reversing dismissal of claim involv-
ing 750 days’ segregation, stating that when a “prisoner is
subjected to a lengthy period of segregation, the duration of
that confinement may itself be atypical and significant”);
Williams v. Fountain, 77 F.3d 372, 374 (11th Cir. 1996) (holding
that one year of solitary confinement was sufficient to state a
claim); but see Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir.
2002) (holding that seven months’ segregation, alone, does
not implicate a liberty interest).
No. 07-2556                                                 13

suggests that Mr. Marion’s claim of confinement in segre-
gation for 240 days may implicate a liberty interest, and
therefore, further fact-finding is necessary.
  The defendants maintain that, as a matter of law,
Mr. Marion cannot state a claim under the Due Process
Clause because the conditions of his confinement are
not harsher than the conditions found in the most restric-
tive prison in Wisconsin. See Wagner, 128 F.3d at 1175-77.
The defendants’ argument is decidedly premature at
the pleading stage. Mr. Marion has complied with Fed-
eral Rule of Civil Procedure 8 and has put the defendants
on reasonable notice of his allegation that he was
denied due process of law when he was punished with
240 days of segregation in D.S.1. Moreover, since Wagner,
which emphasized the tentative nature of guiding princi-
ples in this field and invited further guidance from
the Supreme Court, the Supreme Court has stated that
whether an inmate has a protected liberty interest must
be determined from the actual conditions of confinement
and not simply from a review of state regulations. See
Wilkinson, 545 U.S. at 223 (“After Sandin, it is clear that
the touchstone of the inquiry into the existence of a pro-
tected, state-created liberty interest in avoiding restric-
tive conditions of confinement is not the language of
regulations regarding those conditions but the nature of
those conditions themselves ‘in relation to the ordinary
incidents of prison life.’ ” (quoting Sandin, 515 U.S. at 84)).
As Wilkinson and the decisions from our sister circuits
also emphasize, we must take into consideration all of
the circumstances of a prisoner’s confinement in order
to ascertain whether a liberty interest is implicated.
14                                              No. 07-2556

Without a factual record, we cannot determine whether
the actual conditions of Mr. Marion’s lengthy segrega-
tion are harsher than the conditions found in the most
restrictive prison in Wisconsin. We therefore must reverse
the dismissal of Mr. Marion’s due process claim and
remand this case to the district court for further proceed-
ings.


                       Conclusion
  Accordingly, we reverse the judgment of the district
court and remand the case for further proceedings con-
sistent with this opinion. The parties shall bear their
own costs of this appeal.
                                    R EVERSED AND R EMANDED




                          3-23-09
