Full opinion text
MEMORANDUM OPINION AND JUDGMENT LEE, District Judge. This matter is before the court for a decision on the merits following a bench trial. The case deals with alleged violations of the Fourteenth Amendment to the United States Constitution, brought pursuant to 42 U.S.C. § 1983. This court, having examined and considered the entire record and having determined the credibility of the witnesses, after viewing their demean- or and considering their interests, and being duly advised, hereby enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. Findings of Fact The plaintiff, Harold L. Smith (Smith) is a resident of Noble County, Indiana and is a former employee of the Monsanto Corporation located in Ligonier, Indiana. Beginning on January 1, 1976 and continuing until December 31, 1982, the defendant, John W. Stoner (Stoner) was the duly elected, qualified and acting Sheriff of Noble County, Indiana. Beginning on January 1, 1983, and at the present time, the defendant, Donald R. Leitch, was the duly elected, qualified and acting Sheriff of Noble County, Indiana, and is being sued only in his official capacity as Sheriff of Noble County, Indiana. Jurisdiction and venue is present and is conceded by the parties. On May 27, 1981, the Honorable Robert C. Probst, Judge of the Noble Circuit Court, without the intervention of a jury, found the plaintiff guilty on two counts of causing a death while driving a motor vehicle under the influence of alcohol. Following the conviction, a prolonged and extensive presentenee investigation was conducted. Sentencing was delayed to allow the establishment of a specific work release program for Smith. On February 24, 1982, Judge Probst entered a judgment of conviction. Judge Probst imposed a five year sentence on each count, with both sentences to run concurrently; placed Smith in the Noble County Work Release Program for a period of five years; and committed him to the custody of the Sheriff of Noble County for placement in the Noble County Jail where a work release program was in operation. The Noble Circuit Court ordered Smith to surrender to the custody of the Sheriff of Noble County, Indiana, on Saturday, February 27, 1982 to commence serving his sentence. It had been, and is, the practice and policy of Judge Probst that persons committed to the county jail will serve no more than a maximum of one hundred eighty (180) days. At the end of six (6) months and sometimes earlier, if such individual has abided by all the rules and regulations of the jail and is on a work release program, he or she will be released and placed on probation. Stoner was not opposed to the concept of work release. However, Stoner did not believe felons should be placed on work release. He also had concerns about the administration of the program, with particular concern about sufficient jail personnel to implement the program. It was wholly within the Sheriff of Noble County’s discretion as to whether the work release program could be created or remain in existence. The court takes judicial notice of I. C. 35-50-6-4, I.C. 35-50-6-5, and I.C. 35-50-6-5.5. The court also takes judicial notice of I.C. 11-12-4-3, I.C. 36-2-16-3 and I.C. 34-2-62-1. All of the acts complained of herein occurred under color of state law. On February 27,1982, Smith surrendered himself to the Noble County Sheriff to start the service of his sentence. Smith left the confines of the Noble County Jail five days a week, from approximately 2:45 p.m. until approximately 12:45 a.m., in order to attend employment. Smith visited his psychologist in Fort Wayne, Indiana, once a week. While Smith was an inmate at the Noble County Jail, and in accordance with the terms of his sentence, Smith was subject to the rules and regulations contained in the “Noble County Jail Inmates Handbook.” Plaintiff’s Exhibit 1. On June 17, 1982, five notices of alleged jail rule violations by Harold Smith were issued. All five notices were signed by the Senior Jail Commander, Michael A. Lawson, Sr., on June 13, 1982. Jail Commander Lawson was not a witness to any of the incidents. Three of the notices charged violations of Major Rule 2, harassing inmates, and were accompanied by case reports prepared by the Jail Commander. Plaintiff’s Exhibits 9, 10, 12, 13, 15. The other two notices charged violations of Major Rule 1, assaulting another inmate (Jimenez incident) and Major Rule 9, making a sexual proposal to an inmate (Ratliff incident). Case reports were also given to Smith regarding these incidents. Plaintiff’s Exhibits 7, 8, 18, 19. Plaintiff received no written statements from the complaining parties. The date of the Jimenez incident was alleged to be June 10, 1982, although Commander Lawson stated that the date of June 10, 1982 was the date the complaint was made to him. The time of the incident was unknown. The date and time of the Ratliff incident was alleged to be “unknown.” These facts appeared on the case reports. Plaintiff’s Exhibits 8, 19. Each notice of jail rule violation detailed the basic rights required by state law to be given to a person accused of violating a rule of the penal facility in which he is imprisoned. Those basic legal requirements are set forth in I.C. 35-50-6-4(c) and I.C. 35-50-6-5.5. Some of those basic rights are also set forth in the Noble County Jail Inmate Rules of Conduct Handbook, developed, as required, by state law, I.C. 11-12-4-3, and in the State of Indiana Department of Correction Adult Authority Disciplinary Policy Procedures Handbook. Plaintiff’s Exhibit 1 at page 1; Plaintiff’s Exhibit 6, ¶ 14. The five notices also informed Smith that a hearing on the matters would be conducted on June 22, 1982 at 8:00 p.m. Plaintiff’s Exhibits 7, 9, 12, 15, 18. The Noble County Jail Inmate Rules of Conduct Handbook provides, in pertinent part: Violation of rules will be reported in writing to the senior or commanding officer on duty (Officer in Charge) within 24 hours. Any officer or matron at his or her discretion may place any inmate in isolation pending a hearing without approval from the Officer in Charge for violation of the rules and regulations. The reason and circumstances of any inmate being disciplined shall be reviewed within 24 hours by the Sheriff or his designee. If the officer reviewing said discipline believes the violation is of a nature that the inmate should be reclassified as to credit time, he may submit the charges to a hearing officer within ten (10) days of the incident. A request for review of the decision of the hearing officer must be made in writing to the Sheriff or his designee within seventy two (72) hours of the decision. The Sheriff or his deisgnee [sic] may reduce the amount of penalty of the disciplinary action but may not increase it. Plaintiffs Exhibit 1 at p. 1. When implementing these rules, the Sheriff’s Department customarily refrains from issuing charges on stale events and trivial matters. AH of the incidents occurred more than twenty-four (24) hours before they were reported to the Officer in Charge and more than ten (10) days before the Reviewing Officer submitted the charges to the Hearing Officer. After Smith received the notices of jail rule violations and the accompanying case reports, he was segregated from the work release cell. Smith was placed in a single person cell. Smith remained in a single person cell throughout the proceedings which followed. Smith was removed from the work release program prior to his hearing. Thus, he was not permitted to go to work at Monsanto prior to his scheduled hearing date of June 22, 1982. In his “Sheriff’s Weekly Report of Persons Confined in Jail,” dated June 19, 1982, Stoner listed Smith’s work release as “can-celled” and also noted that Smith was undergoing a conduct investigation. Plaintiff’s Exhibit 3(b). Stoner used identical language in describing Smith’s status in his weekly report dated June 26, 1982. Plaintiff’s Exhibit 3(c). These weekly reports were the means by which Judge Probst, who had sentenced Smith, learned of the problem which had arisen regarding Smith and his presence in the work release program at the Noble County Jail. Smith contacted his employer, Monsanto, the morning after he received the notices of alleged violations of jail rules. Smith believed, after Stephen Stoner had spoken with the Monsanto representative on the telephone, that he had a leave of absence of some kind. Smith’s belief was based on statements made to him by Stephen Stoner after Stephen Stoner had spoken with the Monsanto representative. In fact, Smith had not obtained any type of leave of absence from his employment at Monsanto. Monsanto terminated Smith from its employment, effective June 29, 1982, due to Smith’s absence from eleven consecutive scheduled days of work. Plaintiff’s Exhibit 28. Plaintiff knew that if he did not have a leave of absence, he needed to speak with Monsanto every day regarding his attendance because unexplained, unreported absences led to termination of employment. Smith was not able to contact Monsanto again after the morning of June 17, 1982. Stoner notified Monsanto on June 29, 1982, that Smith’s work release had been can-celled. In the intervening days between June 17, 1982 and. June 22, 1982, Smith was not able or- allowed to make any type of investigation of the fiye pending violations against him nor was he able to speak with any of the' persons who had brought complaints against him. He was not told jail policy dictated that requests for either a lay advocate or witnesses had to be . made in advance of any hearing and in writing, using forms the jail had for such requests. Plaintiff requested that his attorney be present. As a matter of jail policy, Smith was not allowed to use his privately retained counsel to advocate his cause regarding these accusations. Plaintiff did confer with one of his attorneys prior to the scheduled hearing. His attorney was unable to explain what Smith needed to be aware of in order adequately to defend himself and to refute the allegations in the short conference held. The attorney believed he could have demonstrated Smith was not guilty of the charges if he had been allowed to be present' to represent Smith on June 22, 1982. Conduct Adjustment Officer, Floyd Rein-hart, a Deputy Sheriff, conducted the hearing on June 22, 1982. The officer made no attempt to determine if the charges were timely. The Conduct Adjustment Officer made no notes of the testimony given and no recording was made of the evidence. None of the jail rule notices, case reports, witness statements or testimony were made under oath. Received into evidence before this court were four of the five forms the Conduct Adjustment Officer used in making his rulings on the complaints which had been brought against Smith. Plaintiffs Exhibits 20-23. On each of the forms used by the Conduct Adjustment Officer listed as testifying were: Lloyd Brumbaugh, Armando Jimenez, Gary Nichols, Robert Ratliff, and Kirk Wogomon. Smith is not listed as testifying at the hearing of June 22, 1982, but, Smith did testify in his own behalf. That fact is not reflected anywhere in any of the forms the Conduct Adjustment Officer used. Although the forms are labeled “Conduct Adjustment Officer’s Findings,” there are no findings made on the forms nor is there a place on the form for any findings. The forms only reflect the conclusions of the Conduct Adjustment Officer and the punishment imposed. It is not reflected on the forms which person testified about what violation. It is also not reflected in any of the forms whether Smith was allowed to cross-examine the witnesses regarding any of the facts an individual witness testified to under questioning by the Conduct Adjustment Officer. Smith did ask questions of all of the witnesses testifying. However, his questioning of Gary Nichols was limited to the specific charges Nichols had brought. Smith could only ask Nichols about his specific complaint, not Nichols’ statements regarding the Jimenez incident. Nichols admitted at the June 22, 1982 hearing that he was asleep when the actual Jiminez incident occurred. Smith had not consulted with his attorney in a manner sufficient to afford Smith the opportunity meaningfully to cross-examine the witnesses or meaningfully to challenge any evidence which might come in. Smith had no lay advocate and had no witnesses other than himself. Rhinehart informed him he needed to have made his requests earlier, on forms the jail had for that purpose. Smith would have used a lay advocate and called witnesses if he could have so done. The witness statements which the Conduct Adjustment Officer did have were not introduced into evidence and were not shown or given to Smith until after the hearing had been conducted, completed and a decision made by the Conduct Adjustment Officer. Smith and Reinhart did not have the same records from which to work or upon which to base their questions, if any, at the hearing. Immediately following the hearing, in Smith's presence, Officer Reinhart found Smith not guilty of the three alleged violations of Major Rule 2, harassing inmates in the Noble County Jail. Plaintiff's Exhibits 22, 23. Officer Reinhart made no immediate decisions on the remaining two alleged violations of violating Major Rule 1, assaulting another individual and Major Rule 9, making sexual proposals. Reinhart thereafter found Smith guilty of the two violations. Plaintiff’s Exhibits 20, 21. The incident underlying the alleged violation of Major Rule 1 is the Jimenez incident. Jimenez was apparently struck on the arm by a recently extinguished match. The incident occurred within the work release cell between Smith and Jimenez. Jimenez was not seriously injured. The Jimenez incident also involved an apparent small fire which occurred as a result of the interplay between Smith and Jimenez in the work release cell. The Jimenez incident apparently occurred at least a month prior to June 10, 1982. The alleged incident which formed the basis for the alleged violation of Major Rule 9 involved the exchange of words of sexual connotation between Smith and Robert Ratliff. The date of this incident was unknown although all agreed it had occurred weeks before the complaint was made. The incident apparently involved a statement made by Smith to Ratliff following a statement by Ratliff to Smith. Horseplay, joking exchanges, rough language, and words which carry sexual connotations are common practices engaged in and used by the inmates of the Noble County Jail. The Conduct Adjustment Officer also decided the appropriate sanctions to be meted out against Smith because of his conclusion that Smith was guilty of violating Major Rule 1 and Major Rule 9. The sanctions were stated on the same form that contained the summary conclusion that Smith was guilty'of violating Major Rule 1 and Major Rule 9. Without any explanation, the Conduct Adjustment Officer imposed several sanctions upon Smith for the two violations. As a sanction for Smith’s violation of Major Rule 1, the Conduct Officer imposed the sanction of reduction to Credit Time Class III, and “loss of all good time retroactive to February 27, 1982. Also Mr. Smith is to be removed from work release program.” Plaintiff’s Exhibit 20. The Conduct Adjustment Officer imposed the identical sanction for Smith’s violation of Major Rule 9. Plaintiff’s Exhibit 21. The forms containing the Conduct Adjustment Officer’s summary conclusions were presented to Smith on June 23, 1982, along with the written statements of the complaining parties of the three allegations of violating Major Rule 2, on which Smith was found not guilty, Plaintiff’s Exhibits 11, 14, 17. At no time did Smith ever receive the written statements, if such existed, of the complaining parties who accused Smith of violating Major Rule 1 and Major Rule 9. The Conduct Adjustment Officer, inexplicably, adopted the three witness statements given in support of the three charges on which the Conduct Adjustment Officer found Smith not guilty which did exist as his findings of fact on the two guilty conclusions. The Conduct Adjustment Officer gave no other written statement of the factual findings, no summary of the evidence relied upon and no specifications of the rationale for his decision or for his sanctions. His decision was merely recorded in a summary fashion, by checking a box marked “guilty,” on a standard jail form. Smith asked the Conduct Adjustment Officer for findings of fact, which clearly was his right. See I.C. 35-50-6-5.5. See, e.g., Plaintiff’s Exhibit 7 at paragraph 3(8). Plaintiff was informed that the witness statements, such as existed on unrelated, unmeritorious violations, were the Conduct Adjustment Officer’s findings of fact. In accordance with the rights set forth in the notices of jail rule violations, Smith timely requested a review of the “findings” of the Conduct Adjustment Officer on both of the violations. Plaintiff’s Exhibits 25, 26. Stoner was the reviewing officer. Stoner had ordered the investigation of all the charges. Stoner conducted the review on June 26, 1982. He issued a report with respect to his review on June 27, 1982. Plaintiff’s Exhibit 27. Stoner’s review was a review only of procedure. Stoner was looking at the timeliness of the steps of the procedure used, which were, on their face, untimely. Stoner made no substantive review. The administrative record which Stoner reviewed contained the notices alleging the five violations, the three unrelated statements with respect to the facially unmeritorious charges on which Smith was found not guilty, the summary adjudications of guilt upon the remaining two violations. Stoner had no record of the testimony, no notes from the hearing officer, no oral report from the hearing officer as to the contents of the hearing, no written statement of the findings of fact and evidence relied upon except for the forms submitted by the Conduct Adjustment Officer, no knowledge of the evidence received at the hearing, and no information concerning the actual procedures which occurred at the hearing of June 22, 1982. Stoner did not know, if plaintiff had the opportunity to cross-exmaine witnesses, but he felt such knowledge was not relevant to a review. Stoner opined that if such information was relevant the form would provide a space for such information and the Conduct Officer would have noted that information on the form. Stoner, in his report, following the basic outline of rights set forth in the notices, concluded that Smith had been provided and allowed each and every right listed in the notices, including the right of cross-examination. Stoner arrived at that conclusion without any actual knowledge of what occurred at the hearing. There was no actual review, as required by state law and jail policy, of either the form or the substance of the hearing. Smith, therefore, received no review of the actions taken by the Conduct Adjustment Officer. Stoner affirmed the Conduct Adjustment Officer’s conclusions with respect to the Conduct Officer’s findings of guilt on plaintiff’s alleged violations of Major Rule 1 and Major Rule 9. However, Stoner reduced the sanction the Conduct Adjustment Officer imposed for the guilty finding on Major, Rule 9 by reducing the reduction in credit class from class III to class II. Plaintiff's Exhibit 27. In all other respects, Stoner affirmed the sanctions imposed for the alleged violations of Major Rule 1 and Major Rule 9. Stoner also stated that the sanctions for the violations of Major Rule 1 and Major Rule 9 would run concurrently. In examining the sanctions imposed, Stoner utilized Appendix One of the State of Indiana Department of Correction Adult Authority Disciplinary Policy Procedures (D.O.C. handbook). Plaintiff's Exhibit 6. Appendix One sets forth the maximum allowable penalties for various offenses within each category. Nowhere in state law or in the D.O.C. handbook or in the Noble County Jail Inmate’s Handbook does it state that removal from work release is mandatory upon a finding that an inmate on work release is guilty of a violation of a major rule of conduct as set forth in the Noble County Jail Handbook. Stoner stated in his review of the two guilty findings that removal from work release was mandatory. It appears that the Conduct Adjustment Officer and Stoner both had the authority and discretion to impose a variety of sanctions upon Smith short of removing Smith from work release. These were the first violations by Smith. Stoner knew what the practical effect of the tripartite sanctions for the two violations would be, particularly the sanction of removal from work release. The affirmance of the guilty findings and the sanctions imposed for those guilty findings upon Smith, with the modification noted above, resulted in the de facto resentencing of Smith by Stoner. Thereafter, proceedings were commenced in the Noble Circuit Court before the Honorable Robert Probst to modify Smith’s sentence. The administrative records were placed in the public record. The charges of misconduct were reported by the local media. Stoner did not purposefully disseminate the substance of the administrative record. Smith sought review of the procedures by, as well as the reasons for, .which his participation in the work release program had been curtailed in the Noble Circuit Court. At Stoner’s request, as an intervenor, the Noble Circuit Court ruled that it was without jurisdiction, as a matter of Indiana law, to review Stoner’s actions. Judge Probst felt that the decision, by the Sheriff of Noble County, to remove Smith from work release because of the findings of violations of major rules of conduct within the jail, was conclusive and binding upon the court. The judge scrupulously avoided reviewing, in any manner, the determination that major rules of the jail had been violated by Smith. Judge Probst would have granted plaintiff’s motion for shock probation only if, after hearing what had transpired at the jail, but without reviewing what had transpired, the judge concluded there was absolutely nothing to the accusations. Finding itself estopped from reconsidering the matters which led to the hearing in the Noble Circuit Court, the Noble Circuit Court ordered Smith’s incarceration in state confinement facilities under the jurisdiction of the Indiana Department of Corrections. This hearing before the Noble Circuit Court occurred July 15, 1982. Following the proceeding in the Noble Circuit Court which resulted in Smith being resentenced to a facility run by the Indiana Department of Corrections, Smith received, while incarcerated in the Noble County Jail awaiting transfer to the Indiana Department of Corrections, a newly created document, marked “Written Statement of the Findings of Fact,” prepared by the Conduct Adjustment Officer with respect to the disciplinary actions taken. Plaintiff’s Exhibit 29. This document reported that the evidence relied upon in support of the two rule violations on which Smith had been found guilty included the three unrelated written statements offered in connection with the charges upon which Smith was found not guilty, the fact that five (5) inmates testified (although there actually were six (6) who testified) and the fact that violations were reported by the inmates involved. According to this written statement the finding'of guilty on the violation of Major Rule 1 was apparently based on confirma-, tion by an inmate other than the inmate specifically involved, even though the inmate specifically involved (Jimenez) testified at the hearing. The written statement also stated that Smith had been removed from the work release program “because people who violate major rules of the Noble County Jail do not qualify for the work release program.” There is nothing before this court, other than this statement, which supports that conclusion, either in written or oral form. On the advice of counsel, Smith refused to sign the document, but did accept it. That written statement also alleged that Smith did not ask for a lay advocate, did not ask for witnesses, and was not refused the opportunity to cross-examine witnesses at the time of the hearing. Almost two months had elapsed between the hearing and the presentment of this written statement with Smith being resentenced in the interim. Smith was transferred to the Indiana Department of Corrections, to the Indiana State Farm. While so incarcerated, his liberty was substantially curtailed, his contact with members of his family was impaired, and his income was diminished. At the Greencastle facility, Smith’s prisoner status, within the minimum time permitted, was changed from class III to class I. Upon being advised as to .Smith’s restoration to class I status, Judge Probst immediately ordered Smith transferred from the State Farm to Noble County. On March 10, 1983, after hearing, Smith received a modification of his sentence, suspending the balance of the term and placing him on probation for five (5) years. The Monsanto Corporation had open employment periods of approximately one month in the months of February, August and November of 1983. At each period of time opened for applications in 1983 at Monsanto Corporation, it received in excess of 400 applications. A person applying for employment at Monsanto must reapply each time a specific period is opened for applications of employment. The first time Smith was available to reapply at Monsanto for employment was August of 1983. As an applicant for rehire at Monsanto, Monsanto would look at Smith’s past record. Monsanto hires on a competitive basis; if there are any indications that an employee had any problems while employed, on application for rehire, Monsanto is likely to choose the candidate or applicant who appears not to have any problems. When a person leaves employment with the Monsanto Corporation a report on termination is made. A recommendation on rehire is made at that time; however, it is not a final decision. The recommendation on rehire which appears on the report on termination which goes into a terminated employee’s file is a subjective judgment made by the terminated employee’s supervisor. The decision on whether a supervisor recommends someone for rehire is basically whether the supervisor would want that individual rehired at Monsanto on a competitive basis with a new applicant pool. There are circumstances where a supervisor might recommend that a person not be rehired for events or circumstances for which they had never been disciplined at Monsanto. In other words, it is possible that a person could continue in employment at Monsanto and be considered an individual Monsanto would not hire on a competitive basis with a new applicant pool. With specific regard to Smith, the Superintendent of Personnel for Monsanto believed that, in a comparative process, Smith would “come up short.” The Superintendent of Personnel based that opinion on the information in the personnel file; there is negative information in Smith’s personnel file. The negative information is such that while the information is not sufficient to have caused Smith to be discharged because of the information, it would impair his reemployment if Smith made an application for rehire. Smith, by virtue of his not submitting a written application, has not been under consideration for employment by the Monsanto Corporation. Smith would have remained an employee of Monsanto if his work release had not been cancelled and would have limited prospects of reemployment even if he reapplied at Monsanto. But for the removal from work release, Smith could be employed at Monsanto today, if Smith had gone to work and followed the rules of Monsanto as he had done in the past. Smith obtained employment, after his release in March of 1983, on September 12, 1983. His lost wages and fringe benefits from June of 1982 when his work release was cancelled through September 12, 1983, when Smith obtained employment at the Wible Lumber Company, is $20,209.15. Conclusions of Law The Fourteenth Amendment to the United States Constitution provides, in pertinent part: No State shall ... deprive any person of life, liberty, or property, without due process of law[.] U.S. Const, amend. XIV § 1. This case centers around the basic issue of whether the defendants violated plaintiffs Fourteenth Amendment rights, in particular his right to due process of law. In order to ascertain whether the Fourteenth Amendment has been violated in a particular ease, a court must address and resolve two inquiries. First, whether there is a life, liberty, or property interest implicated which is protected by the Fourteenth Amendment; and, second, if so, what process is due. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Accord Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Shango v. Jurich, 681 F.2d 1091 (7th Cir.1982). The liability of the defendant, Donald R. Leitch, being sued in his official capacity as Sheriff of Noble County, Indiana is controlled by the test enunciated in Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The liability of Sheriff John W. Stoner, acting in his individual capacity, is controlled by the issue of Stoner’s entitlement of a qualified immunity based on good faith. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The liability of the defendants will be addressed and determined, pursuant to these tests, after addressing the issues of the existence, if any, of a protected interest and the process due. I. EXISTENCE OF A PROTECTED IN- ' TEREST. Only a limited range of interests fall within the protection of the Fourteenth Amendment. Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). Liberty interests originate either in the Constitution or under state laws, policies, or practices. Id.; Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2532, 2537-40, 49 L.Ed.2d 451 (1976); Shango, 681 F.2d at 1097. See also Vitek v. Jones, 445 U.S. 480, 487, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980). Plaintiff grounds his claim of entitlement to a substantive liberty interest upon state sources. The Seventh Circuit recently stated: It is equally well established, however, that state statutes, practices, or duly promulgated prison regulations may create liberty interests deserving of the" procedural protection of the Due Process Clause. If state statutes or prison regulations condition transfer on the occurrence of specific events, such as misconduct, a liberty interest is created. Harris v. McDonald, 737 F.2d 662 at 664 (7th Cir.1984) (citations omitted). “[I]f a state gives prisoners (whose natural liberty has been suspended) a form of liberty, ... the state may not deprive them of that liberty, any more than it may deprive a person of his natural liberty, without due process of law.” McKinney v. George, 726 F.2d 1183, 1189 (7th Cir.1984). See also Hewitt, 459 U.S. at 470, 103 S.Ct. at 871; Johnson v. Brelje, 701 F.2d 1201, 1205-06 (7th Cir.1983). A state may create a liberty interest by its statutes and by non-statutory sources. Meachum, 427 U.S. at 229, 96 S.Ct. at 2540; Harris, at 664; Shango, 681 F.2d at 1099; Soto v. Cady, 566 F.Supp. 773, 777 (E.D.Wisc.1983). However, “a state created procedural right is not itself a liberty interest within the meaning of the Fourteenth Amendment.” Shango, 681 F.2d at 1101. “Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983) citing with approval Shango, 681 F.2d at 1100-1101. See Olim, 461 U.S. at 250 n. 12, 103 S.Ct. at 1748 n. 12 (“[A]n expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause.”). Accord Hewitt, 459 U.S. at 470, 103 S.Ct. at 871; Harris, at 665. Thus, the crucial focus in determining whether an individual has a legitimate claim of entitlement to a protected liberty interest is the nature of the interest at stake, not the source of the purported liberty interest. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Roth, 408 U.S. at 571, 92 S.Ct. at 2705. Accord Shango, 681 F.2d at 1099; Soto, 566 F.Supp. at 778. Before a particular person can assert procedural due process rights, that person must demonstrate that he possesses a “parent substantive right” which underlies and supports the procedural rights. Shango, 681 F.2d at 1100-01; Soto, 566 F.Supp. at 777. The test for determining whether an underlying parent right exists which begets “yet other rights to procedures essential to the realization of the parent right,” Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 463, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981), appears in Olim.. “[A] state creates a protected liberty inter-, est by placing substantive limitations on official discretion.” Olim, 461 U.S. at 249, 103 S.Ct. at 1747. See Dumschat, 452 U.S. at 467, 101 S.Ct. at 2465 (Brennan, J., concurring). Several courts have begun applying the Olim test. Lyon v. Farrier, 727 F.2d 766 (8th Cir.1984); Hayes v. Thompson, 726 F.2d 1015 (4th Cir.1984); Parenti v. Ponte, 727 F.2d 21 (1st Cir.1984); Soto, 566 F.Supp. at 777. See also Mosrie v. Barry, 718 F.2d 1151, 1161 n. 9 (D.C.Cir.1983) (noted with approval in a different factual context). In this case, plaintiff asserts that a protected liberty interest exists in the terms and-conditions of the sentence imposed upon him by the Noble County Circuit Court. Plaintiff argues that the sentence given to him created a protected liberty interest by placing substantive limitations on official discretion, here, the discretion of the Noble County Sheriffs Office and the person, holding that office. The foregoing legal analysis supports plaintiffs proposition that the state could have created a protected liberty interest by placing substantive limitations on official discretion through its imposition of the work release sentence with its specific terms and conditions upon Smith. Shango is direct support for the idea that the state created a constitutionally cognizable substantive liberty interest. In constitutional contemplation, ... the prisoner has no constitutionally cognizable entitlement to be located in a particular cell within a prison or at a certain location in the state — his freedom in that regard having been extinguished by his conviction — unless the state confers upon him such a substantive right. It can confer such a right either explicitly, by providing in the convict’s sentence a right to be incarcerated at a particular institution, or implicitly, by conditioning an inmate’s transfer to another prison on the finding of certain specified behavior such as misconduct. Shango, 681 F.2d at 1102 (emphasis supplied). Smith’s sentence gave him the right to be incarcerated at a particular institution, namely, the Noble County Jail. The judgment of conviction also gave Smith the right to be on work release status which allowed him to maintain his then current, private employment at Monsanto in Ligonier, Indiana. Smith’s sentence also gave him the right to be released from the Noble County Jail to “attend any academic or vocational training programs or obtain medical, psychiatric or psychological treatment, including treatment for alcoholism.” Plaintiff’s Exhibit 2. The Noble County Circuit Court conditioned this specific sentence upon Smith being subject to “all rules and regulations of the Noble County Jail and the work release program.” Plaintiff’s Exhibit 2. The rights given plaintiff in his sentence were far more than expectations. Smith had a legitimate claim of entitlement to the specific terms of incarceration provided for in his sentence with the only limitation being that Smith was to be subject to the rules and regulations of the Noble County Jail. The implicit right of Smith’s sentence arose from the court’s policy that a person incarcerated under a work release sentence who has abided by all the rules and regulations of the jail will be released no later than six (6) months after the commencement of his sentence. It is obvious that the plaintiff, although lawfully incarcerated by the state, retained a greater “residuum of liberty” than the customary prisoner incarcerated in a confinement facility. See Olim, 461 U.S. at —, 103 S.Ct. at 1745; Hewitt, 459 U.S. at 466, 103 S.Ct. at 869. The terms of plaintiff’s incarceration were such that fewer of plaintiff’s privileges and rights were withdrawn or limited by penal considerations or needs. See Wolff, 418 U.S. at 555, 94 S.Ct. at 2974; Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Smith’s retained rights were “subject to restrictions imposed by the nature of the regime to which [he had] been lawfully committed.” Wolff, 418 U.S. at 556, 94 S.Ct. at 2975. Smith enjoyed conditional liberty such as is enjoyed by those on probation or parole. Cf. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Plaintiff was not subject to all of the restraints that necessarily and normally inhere in a prison and during incarceration. See Greenholtz, 442 U.S. at 9, 99 S.Ct. at 2105. . This court, therefore, holds that the terms of the sentence imposed upon Smith gave Smith a liberty interest protected by the Fourteenth Amendment. This court must now determine what process is due the protected liberty interest Smith possesses. II. PROCESS DUE. There can be little doubt but that the series of events which occurred in the summer of 1982 involving Smith and the defendants resulted in the deprivation of the conditional liberty which Smith possessed as a result of his sentence. “There is a crucial distinction between being deprived of the liberty one has, as in parole, and being denied a conditional liberty that one desires.” Greenholtz, 442 U.S. at 9, 99 S.Ct. at 2105. Smith possessed a protected liberty interest which implicates the procedural due process rights inherent in the Fourteenth Amendment. In examining the process afforded Smith, this court must conclude that the process afforded does not satisfy the minimum requirements of the Due Process Clause with regard to the specific protected liberty interest this court concludes Smith possessed. “The requirements imposed by the Clause are, of course, flexible and variable dependent upon the particular sitúation being examined.” Hewitt, 459 U.S. at 472, 103 S.Ct. at 872, citing Morrissey, 408 U.S. at 481, 92 S.Ct. at 2593. In considering what process is due in a particular situation a court should consider “the private interest at stake in a governmental decision, the governmental interest involved, and the value of procedural requirements.” Hewitt, 459 U.S. at 473, 103 S.Ct. at 872, citing Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews, 424 U.S. at 333, 96 S.Ct. at 902, quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). At the outset, this court wishes to make clear its conclusion that, based on the facts before this court, this case is not a typical prison discipline case. Cf Brown-Bey v. United States, 720 F.2d 467 (7th Cir.1983); Dawson v. Smith, 719 F.2d 896 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1714, 80 L.Ed.2d 186 (1984); Jackson v. Carlson, 707 F.2d 943 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 189, 78 L.Ed.2d 167 (1983) sub. nom. Yeager v. Wilkinson; McCollum v. Miller, 695 F.2d 1044 (7th Cir.1982); Lewis v. Faulkner, 559 F.Supp. 1316 (N.D.Ind.1983). If it were a typical prison discipline case, this court’s examination of what process is due would be quite different. Administration of confinement facilities falls peculiarly within the province of confinement facility authorities and not within the province of a court. Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978). Among the matters peculiarly within the province of confinement authorities is the preservation and maintenance of internal order and discipline and institutional security; wide ranging deference should be given to confinement facility authorities. Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). See also Hewitt, 459 U.S. at 473, 103 S.Ct. at 872. This court is “keenly aware that prison officials have broad discretion to structure and operate a prison disciplinary system. ‘[A] court should [not] meddle in prison affairs unless legitimate constitutional issues are raised that require ... intervention.’ ” Redding v. Fairman, 717 F.2d 1105, 1112 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1282, 79 L.Ed.2d 685 (1984), quoting Bono v. Saxbe, 620 F.2d 609, 621 (7th Cir.1980) (Wood, J., concurring in part). See also Hewitt, 459 U.S. at 466, 103 S.Ct. at 869; Wolff, 418 U.S. at 566, 94 S.Ct. at 2979; Brown-Bey, 720 F.2d at 469. But, as noted above, this is not a typical prison or jail disciplinary case. This is a case where an incarcerated person possessed and enjoyed, by virtue of his specific sentence, a conditional liberty akin to the conditional liberty possessed and enjoyed by persons on parole or probation. As one who was incarcerated, even though not under the same terms and conditions as the customary prisoner, at a minimum, Smith was entitled to thé procedural due process rights set forth in Wolff v. McDonald, 418 U.S. at 563-572, 94 S.Ct. at 2978-2982. As one who enjoyed conditional liberty such as that enjoyed by probationers and parolees, Smith was entitled to the procedural due process rights accorded probationers and. parolees at probation or parole revocation hearings. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756; Morrissey, 408 U.S. 471, 92 S.Ct. 2593. At a maximum, plaintiff may be entitled to the procedural due process rights accorded sentencing as a critical stage of a criminal proceeding. Mempa, 389 U.S. 128, 88 S.Ct. 254. See also Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). Wolff v. McDonnell and its progeny set forth the minimum due process requirements for prison disciplinary proceedings. E.g., Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). Those minimum due process rights are also codified at I.C. 35-50-6-4(c) and I.C. 35-50-6-5.5. The same minimum due process rights are detailed on the Notice of Jail Rule Violation used by the defendants. See also Plaintiffs Exhibit 6 (D.O.C. Policy Handbook), Plaintiff’s Exhibit 1 (Noble County handbook). In examining these rights, the court will focus only on those minimum due process rights which the court concludes were curtailed in plaintiff’s case. Those minimum due process rights not properly accorded plaintiff were: (1) the right to have a reasonable time to prepare for the hearing; (2) the right to call witnesses and present evidence; (3) the right to confront and cross-examine each witness; (4) the right to have the assistance of a lay advocate; (5) the right to have a written statement of the findings of fact, the evidence relied upon, and the reasons for the action taken; and (6) the right to have a meaningful review of the hearing. With regard to the due process right of having a reasonable time to prepare for the hearing, the court finds that the problem is not the amount of time that elapsed between the notification Smith received and the date of his hearing, but the opportunity Smith had to prepare in a meaningful way for the hearing. The Wolff court stated, “Part of the function of notice is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact.” Wolff, 418 U.S. at 564, 94 S.Ct. at 2978. Smith had no real or meaningful opportunity to marshal the facts in his defense or to clarify what the charges were, in fact. All of the charges involved occurred long before the hearing process began. Under defendant’s own rules the charges should not have been brought. It was proper to segregate plaintiff from the other prisoners pending the resolution of the charges. Hewitt, 459 U.S. at 475, 103 S.Ct. at 873. However, it was improper not to present Smith with the witness statements. At no time in any of these proceedings has there been any hint that the question of safety to other inmates would have been involved if Smith had been given the witness statements prior to the hearing. In fact, Smith was given the witness statements after the hearing as defendants’ attempt to comply with the written statement due process requirement. No reason whatsoever has ever been advanced as to why Smith was not given information he needed to attempt to prepare an effective defense. Compare McCollum, 695 F.2d at 1048-49 with Jackson, 707 F.2d at 948. Smith was entitled, as a matter of minimum due process, to more information than he was given prior to the hearing in order to allow Smith to marshal his defense. Defendants improperly limited Smith’s right to call witnesses and present evidence. There was nothing before Smith to indicate that he needed to fill out a specific form prior to the beginning of the hearing in order to have witnesses or to present evidence. Smith testified that he would have called some witnesses if he could have. Again, there was no discussion or hint at any time that Smith’s right to call witnesses needed to be limited to minimize disruption of the jail or to avoid a serious safety problem. See Wolff, 418 U.S. at 566, 94 S.Ct. at 2980. The reasons for not allowing a witness to be called or limiting access to other inmates to collect statements or to compile documentary evidence should be clearly stated on the record in any prison disciplinary proceeding. Id. ■ A prisoner has no absolute right to cross-examine witnesses at a prison disciplinary proceeding. Baxter, 425 U.S. at 321-22, 96 S.Ct. 1559-60; Wolff, 418 U.S. at 567-69, 94 S.Ct. at 2980-81. However, considerations for limiting cross-examination appear to be where there is a potential for havoc and where the disciplinary procedure would become so long as to be unmanageable. Wolff, 418 U.S. at 567, 96 S.Ct. at 2980. Neither one of those considerations is present on these facts. Smith was allowed to conduct some cross-examination; there obviously was no potential for havoc in allowing the right of confrontation and cross-examination. Further, allowing Smith to cross-examine all witnesses on all of the incidents about which they testified would not have made the hearing that much longer. The crucial witness in this case whose cross-examination by Smith was limited is Gary Nichols. Nichols testified, not only about the charges he personally brought, but also about the charges brought by Jimenez. Smith was not allowed to cross-examine Nichols on the Jimenez incident. The Nichols testimony apparently played a great part in the Conduct Adjustment Officer’s decision to find Smith guilty of the Jimenez charge although Nichols admitted being asleep during the actual incident. Smith’s foreclosure from cross-examining Nichols about the Jimenez incident certainly contributed to the finding of guilty. Nichols was under no substantial risk of harm. See I.C. 35-50-6-4(c)(6); Notice of Jail Rule Violation, e.g., Plaintiff’s Exhibit 7. Smith was also improperly denied the minimum due process right of having the assistance of a lay advocate. Smith was apparently denied this right because he did not request a lay advocate on the proper form or within the proper time frame. Nowhere in any of the information Smith received was it noted that he needed to fill out a specific form or make a request within a specific time frame. A state may not generally prohibit lay advocates from advising or assisting other inmates. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). See also Lewis, 559 F.Supp. at 1320. While reserving the question for later discussion of whether Smith was entitled to counsel at this hearing, the court concludes that, at a minimum, Smith should have had the assistance of a lay advocate if he so desired. Smith would have used a lay advocate if he could have. The most serious violation of the minimum due process rights to which Smith was entitled in June of 1982 is the complete failure of the defendants to comply with the due process requirement of making a minimally sufficient written record. The minimum due process requirement in prison disciplinary proceedings of written statements which enunciate the basis for the decisions involved, enunciate the basis for the punishments or sanctions involved, and specify the evidence underlying the substantive decisions is a requirement that “is not to be taken lightly.” Redding, 717 F.2d at 1114. The Due Process Clause requires that the jail or prison involved “state not merely how it acts, but also why it acts in a particular manner.” Id. at 1115. The line between constitutional adequacy and inadequacy is a fine, but important one. Each aspect of the freedoms most of us take for granted becomes more precious as the totality of freedom is reduced. Forfeiting good conduct time credit is perhaps the most serious loss. Prisoners thus must be protected from arbitrary actions extinguishing their privileges. The surest protection is an impartial decision-maker. And the integrity of that decision-maker can be insured only if she or he enunciates the bases for her or his actions. # * * s}s * * Due process simply requires a statement of what evidence forms the basis for the ... finding. Such a statement is more than a boilerplate sentence to be applied in every case, but not so complex as to require a lawyer to draft it. Id. at 1116, 1116, 1116 n. 5. The line between constitutional adequacy and inadequacy with regard to the minimum due process requirement of a written statement may be a fine line, but defendants have crossed that line. Even if one makes the assumption that Smith had no special protected interests beyond that of a normal prisoner, Smith was entitled to receive a written statement which detailed findings of fact, evidence and reasons for the actions taken. That written statement should have been presented to Smith at the conclusion of his hearing; presenting a prisoner with a piece of paper purporting to be a written statement weeks later is insufficient as a matter of due process. Written records are required by the Due Process Clause in prison disciplinary cases in order to attempt to protect the prisoner “against collateral consequences based on a misunderstanding of the nature of the original proceeding.” Wolff, 418 U.S. at 565, 94 S.Ct. at 2979. Written statements are also meant “to insure that administrators, faced with possible scrutiny by .state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly.” Id. Finally, a written record, presented at the conclusion of the hearings or soon thereafter, are intended to eliminate the severe disadvantage which results if the inmate is forced to propound his own cause or to defend himself from others' without a written record. Id. Defendants also violated Smith’s due process right to a meaningful review of the Hearing Officer’s decisions. While such a right may only be implicit in Wolff, the State of Indiana gives the specific right to inmates, I.C. 35-50-6-5.5. See Riner v. Raines, 409 N.E.2d 575, 579 (Ind.1980). If a state imparts a due process right, then it must give that right. A review cannot be merely pro forma, a review must be one of substance, reviewing all aspects of the pri- or proceedings. Stoner admitted that he made no substantive review of the Conduct Officer’s decision. Stoner testified he was looking only at the timeliness of the steps of the procedure used. The record clearly demonstrates that none of these procedures were timely. Smith was expected, as a condition of his sentence, to follow the rules and regulations of the jail. It seems reasonable that the jailers should also have to follow these same rules and regulations. They did not. Had the rules been followed, these charges would never have been pursued. Even the scant record Stoner had before him when he made his review demonstrates that none of the charges were reported to the Officer in Charge within twenty-four hours of their occurrence, nor reported to the Hearing Officer within ten days of the incidents. It was a policy of the Noble County Jail not to process stale complaints. All of the charges involved were stale complaints. Smith was entitled to a review of the Hearing Officer’s decision. Giving such a review, however, would have been extremely difficult for Stoner as there were no notes, no written statements, no record of the testimony, no oral report from the Hearing Officer as to the contents of the hearing, no listing of all the witnesses who testified at the hearing or the evidence elicited from those witnesses, and no information concerning the actual procedural proceedings such as plaintiff’s actual opportunity to cross-examine witnesses or plaintiff’s actual opportunity to call witnesses. There was no review whatsoever of the actions taken by the Conduct Adjustment Officer, either as to form or substance. “Though [a prisoner’s] rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is in prison for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff, 418 U.S. at 555, 94 S.Ct. at 2974. Finally, there is no explanation, either from the Conduct Adjustment Officer, or from Stoner, as to the severity of sanctions imposed upon Smith for findings of guilt on Smith’s first accusations of violations of the rules. This court can find no support for the proposition that a finding of a violation of a rule of the Noble County Jail, either major or minor, by a work release inmate, results in the automatic mandatory removal of that prisoner from work release. It is obvious that such a sanction is nothing more than a de facto resentencing of a work inmate prisoner at a hearing not generally considered to be a critical stage of a criminal proceeding. State law, the Noble County Jail Handbook and the Department of Correction Handbook all speak to the- necessary task of insuring that the sanctions imposed in a particular ease will take into account frequency and seriousness of the offense or offenses. I.C. 11-12-4-3; Plaintiff's Exhibits 1, 6. The sanction “imposed must be proportionate to the seriousness of the violation.” I.C. 11 — 12— 4-3. Further, the Noble County Jail Handbook seems to indicate that no sanction should exceed thirty days. See Plaintiffs Exhibit 1 at p. 1, II6. For his first guilty findings of violating two rules of the jail, Smith not only was removed from work release, but also had his credit class reduced and had all of his good time credit taken away retroactive to the start of his sentence. It appears that for his initial violations, Smith had the maximum allowable sanctions imposed under D.O.C. guidelines. See Plaintiffs Exhibit 6, Appendix 1. In fact, the sanction of removal from work release, which necessarily resulted in Smith’s change in security facilities, appears to go beyond the maximum allowable sanctions given under the D.O.C. guidelines. The D.O.C. guidelines state that the sanction for the types of violations of which Smith was found guilty “may include a recommended change in security classification.” Plaintiff’s Exhibit 6, Appendix 1, ¶ 4. Plaintiff’s removal from work release which resulted in his placement at a more secure facility was far more than a mere recommendation by Stoner. The practical effect of the sanctions imposed which were reviewed by Stoner was the de facto resentencing of Harold Smith. If this were the normal prison discipline case, the court would stop at this point in the analysis and assess damages. However, this is not a normal prison discipline case. This case involves a person whose “extent and nature of his freedom is qualitatively different from any ‘freedom’ allowed [in] prison. Moreover, revocation of that status [entailed] a loss far more grievous than that sustained by one who is transferred from one prison to another.” Durso v. Rowe, 579 F.2d 1365, 1371 (7th Cir.1978). There remain two unanswered questions. One, whether plaintiff was entitled to the right to counsel such as is accorded parolees and probationers or two, whether plaintiff was entitled to the right to counsel such as is accorded criminal defendants at critical stages of criminal proceedings. The protected liberty interests Smith held in June of 1982 were very close to the protected liberty interests held by those on probation or parole. Scarpelli requires that, in probation or parole revocation proceedings, where the probationer or parolee makes a request for counsel based on a timely and coloarable claim, minimum due process requires that counsel be appointed. Scarpelli, 411 U.S. at 790, 93 S.Ct. at 1764. This court concludes that the facts of this situation are sufficiently like those facts normally present in probation or parole revocation hearings to require that counsel be provided if a request is made under similar circumstances. Plaintiff requested an attorney. He was informed he could not have one. Plaintiff was allowed to consult in a very limited manner with an attorney. That attorney believed he was not able to be present and defend Smith at the hearing of June 22, 1982. That attorney believed he could have defended Smith successfully. The then current counsel for plaintiff testified that he felt he could have materially aided Smith had he been allowed to be present. The defendants would not allow counsel to be present at the hearing. Because of the peculiar factual situation present in this case akin to the factual situations of parole and probation revocation and because plaintiff made a request for an attorney based on a timely and color-able claim, this court concludes that due process required that plaintiff have his attorney present as he requested. Plaintiff’s right to counsel was abrogated in this case. Further, I.C. 35-50-6-4(b) and I.C. 35-50-6-5(a) state that violation of a condition of probation or parole cannot be the basis for reassignment to a different credit time class or deprivation of credit time. Arguably, Smith’s sentence was enough like probation or parole that, as a matter of law, he could not have the sanctions imposed upon him which were imposed, i.e., de facto reassignment to a more secure facility, actual reassignment to a lower credit time class, actual deprivation of credit time earned, and de facto resentencing. Scarpelli applies to the facts of this case. There is one final question to consider and that is the question of whether this factual situation is a proceeding which was, in actuality, a critical stage of Smith’s criminal proceedings-at which he would be automatically entitled, as a matter of due process, to the assistance of counsel. See Mempa, 389 U.S. 128, 88 S.Ct. 254. Mempa involved a situation where there was a deferred sentencing proc