ERNEST BROWN, APPELLANT v. WILLIAM M. PLAUT, ASSOCIATE DIRECTOR FOR INSTITUTIONS OF THE DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, ET AL., APPELLEES

No. 96-7027

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

327 U.S. App. D.C. 313; 131 F.3d 163; 1997 U.S. App.

October 9, 1997, Argued
December 16, 1997, Decided


SUBSEQUENT HISTORY: Certiorari Denied June 22, 1998, Reported at: 1998 U.S. LEXIS 4079.

PRIOR HISTORY: [**1] Appeal from the United States District Court for the District of Columbia. (No. 93cv00672).

DISPOSITION: Vacated the decision of the district court, and remanded for further proceedings consistent with this opinion.




COUNSEL: Daniel M. Schember argued the causes and filed the briefs for appellant. Alake Johnson-Ford entered an appearance.

Mary L. Wilson, Assistant Corporation Counsel, argued the cause for the District of Columbia, with whom Jo Anne Robinson, Interim Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief.

Jonathan J. Frankel argued the cause for amicus curiae American Civil Liberties Union of the National Capital Area, with whom Stephen H. Sachs and Arthur B. Spitzer were on the brief.

JUDGES: Before: WALD, HENDERSON and GARLAND, Circuit Judges. Opinion for the Court filed by Circuit Judge WALD.

OPINIONBY: WALD

OPINION: [*165]
WALD, Circuit Judge:
This case and its companion James Neal v. District of Columbia were argued on the same day and before the same panel because they raise similar issues.
Ernest Brown ("Brown"), a former inmate of the District of Columbia's (the "District's") prison at Lorton, seeks damages [**2] from the District for placing him in administrative segregation, a form of custody for prisoners who present an escape risk or pose a danger to themselves or others, for ten months allegedly without due process. n1 The district court, citing Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), found that Brown had no liberty interest in remaining free of that deprivation, and dismissed his suit. On appeal, the District argues that we affirm on the ground cited by the district court, or on the alternative grounds that Brown should have brought this action as a habeas corpus petition or that Brown has received all the process that was due him.

n1 William M. Plaut, whose name appears in the caption of this case as a defendant, is an official of the District of Columbia Department of Corrections. He is not named as a defendant in Brown's second amended complaint, which is the complaint that is at issue in this appeal; he was, however, named as a defendant in Brown's initial complaint. The defendants named in the present complaint include the District of Columbia and a number of other D.C. prison officials.

[**3]
The question of how to apply Sandin raises difficult and unsettled questions of constitutional law, which we find it unnecessary to reach. Instead, we remand to the district court to decide the narrow factual issues relating to whether Brown received all the process he was due.
I. BACKGROUND
On the morning of October 12, 1992, Ernest Brown, then an inmate at the Occoquan medium-security facility of the District's Lorton prison, got into an argument with Corporal Parks, a prison guard, about cigarettes. n2 In the course of this dispute, he threw an "unknown substance," allegedly urine and feces, at Parks, and told him "I'm still going to get you." A search of Brown's cell disclosed a crude weapon fashioned out of a sharpened plastic toothbrush. Parks prepared a Disciplinary Report charging Brown with two offenses, Bodily Injury (presumably for throwing the "unknown substance"), and Threatening Conduct (for saying he would [*166] "get" Parks); a copy of this report was given to Brown. The following day, Brown was notified that a hearing of the Adjustment Board (Lorton's disciplinary body) would occur on October 16 on the charge of Threatening Conduct and on a charge of Possession [**4] of Major Contraband (the weapon). On that same day, Brown was transferred from Occoquan to administrative segregation at Lorton's Maximum Security Facility.

n2 Because we are considering an appeal from a motion by the District to dismiss or in the alternative for summary judgment, what follows is an account of the undisputed facts, construed in the light most favorable to Brown.

The Adjustment Board hearing apparently never occurred. Instead, on October 15, Brown was brought before Lorton's Housing Board, a body charged with determining whether prisoners are to be placed in administrative segregation. Brown received no advance notice of this hearing, and there is nothing in the record to show what occurred at the hearing. The only evidence in the record on this issue is a Housing Board Action Sheet, which states that the reason for the hearing was "to determine appropriate housing for Resident Brown, Ernest ... who was placed in the Adjustment Unit as a result of a Disciplinary Report for Fighting on October [**5] 5, 1992 and for the alleged incident involving staff on October 12, 1992." The sheet lists Brown as stating: "I don't fear for my safety. I just want to be placed somewhere where I can have access to a Law Library." It states that the Board finds Brown "to be a threat to self and others due to the alleged incident involving correctional staff," and concludes by stating that "Resident Brown assaulted Cpl. Parks."
Brown remained in administrative segregation for a total of ten months. In the medium-security unit in which he had previously been confined, he had been able to go outdoors from 8 a.m. to dusk, was permitted to move about the dormitory and interact with other inmates at all hours of the day or night, and could participate in many prison programs. In the unit in which Brown spent the first four months of his administrative segregation, by contrast, he was in solitary confinement, and was allowed to leave his cell only to meet with visitors (while shackled, handcuffed, and belly-chained), and for two hours a week of exercise in a hallway. Brown spent the remainder of his administrative segregation in a unit in which he was in solitary confinement, but was allowed to leave his [**6] cell for two or three hours a day. At the end of this ten-month period, Brown was apparently returned to his previous custody status.
Brown filed his initial complaint in this case in April, 1993, alleging due process, free exercise, and Eighth Amendment violations. After Brown had moved successfully for appointment of counsel and for leave to file an amended complaint, the District moved to dismiss, or in the alternative for summary judgment, as to all three of Brown's claims. The district court granted the District's motion as to Brown's due process claim, but denied it as to his other two claims. (These claims, which involved Brown's rights to dental care and to attend religious services, have since been settled.) As to Brown's due process claim, the district court found that, under Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), Brown did not have a liberty interest in remaining free of administrative segregation, because his confinement in administrative segregation did not amount to an "atypical and significant hardship." 515 U.S. at 484. Brown then sought to file a second amended complaint in order to re-plead the due process claim and to add [**7] a related claim under District of Columbia law; the district court granted Brown leave to do so, but immediately dismissed the due process claim. Brown now appeals this dismissal.
II. ANALYSIS
We first reject the District's contention that because success on Brown's due process claim would "necessarily imply" that the decision to place Brown in administrative segregation was invalid, Brown must bring his claim by way of habeas corpus. As to the merits of Brown's due process claim, we address first whether Brown had a liberty interest in avoiding his term in administrative segregation, and then whether he received the process he was due. n3

n3 The District also makes several arguments directed at Brown's claim under D.C. law. Brown correctly points out, however, that the order from which he appeals dismissed only his due process claim, not his claim under D.C. law. The order specifically stated that Brown's due process claim is "separate" from his other claims and that "there is no just reason for delay of final judgment as to this claim," and directed the entry of final judgment as to that claim. The language of this order meets the standard of Federal Rule of Civil Procedure 54(b) for dismissal of fewer than all of the claims in a case, so that Brown's appeal is properly before us. But, because Brown's D.C. law claim was never dismissed by the district court, it is not at issue in this appeal.

[**8] [*167]
Our review is de novo because we are considering an appeal from a motion to dismiss or in the alternative for summary judgment. National Taxpayers Union, Inc. v. United States, 314 U.S. App. D.C. 377, 68 F.3d 1428, 1432 (D.C. Cir. 1995) (dismissal); Tao v. Freeh, 307 U.S. App. D.C. 185, 27 F.3d 635, 638 (D.C. Cir. 1994) (summary judgment).

A. Should This Action Have been Brought in Habeas Corpus?
The District argues that, if Brown prevails, this will "necessarily imply" that the District's decision to place him in administrative segregation was invalid, and claims that this means that, under Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973) and its progeny, Brown's action must be brought in habeas corpus, not through section 1983. We conclude that the District reads the Preiser line of cases too broadly, and so decline to require that Brown's action be brought in habeas corpus.
In Preiser, the Supreme Court held that prisoners seeking the restoration of good-time credits which they claimed had been unconstitutionally withdrawn must do so through habeas corpus, not through section 1983. The Court observed that the prisoners' [**9] claims were "within the core of habeas corpus in attacking the very duration of their physical confinement itself." Id. at 487-88. Congress had required exhaustion of available state remedies as a prerequisite to habeas corpus relief, the Court explained, and it would "wholly frustrate" Congress's intent to permit this rule to be circumvented through the invocation of section 1983. Id. at 489-90. Preiser said that the same rule must apply to any challenge by a state prisoner to "the fact or duration of his confinement based, as here, upon the alleged unconstitutionality of state administrative action." Id. at 489. The Preiser Court set clear limits to this principle, however, expressly reaffirming its previous cases holding that a section 1983 action "is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody," id. at 499, because such actions are not at the "heart" of habeas corpus, id. at 498.
The Court has twice since clarified the reach of Preiser. In Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), the Court considered [**10] a section 1983 action that sought money damages, rather than the specific relief at issue in Preiser. The plaintiff in Heck claimed that the unconstitutional acts of the defendants, who were state officials, had led to his arrest and conviction. The Court found that the plaintiff's action was analogous to a common-law action for malicious prosecution, and that the favorable-termination requirement of such actions therefore applied to the plaintiff's section 1983 action. Heck thus held that a plaintiff who brings a claim under section 1983 that, if established, would "necessarily imply" that a criminal conviction or sentence was unlawful must demonstrate as an element of his claim that the conviction or sentence has been reversed, expunged, invalidated, or "called into question by a federal court's issuance of a writ of habeas corpus." Id. at 484-87. In Edwards v. Balisok, 137 L. Ed. 2d 906, 117 S. Ct. 1584 (1997), the Court made clear that Heck applies in some cases in which the underlying proceeding is not a criminal conviction or sentence, applying Heck to an action by a prisoner who asserted that a prison disciplinary proceeding that had deprived him [**11] of good-time credits had been invalid because, inter alia, the decisionmaker had not been impartial. See 117 S. Ct. at 1588-89.
We conclude, however, that Brown's suit, which challenges only his placement in administrative segregation, is not of the type to which it is appropriate to apply Preiser and [*168] its progeny. n4 The Court has never deviated from Preiser's clear line between challenges to the fact or length of custody and challenges to the conditions of confinement. In Edwards, the Court was careful to respect the distinction drawn by Preiser, repeatedly characterizing the plaintiff's claim as one that would "necessarily imply the invalidity of the deprivation of his good-time credits" and therefore hasten his release. 117 S. Ct. at 1588. Heck, too, observed that the damages action in that case was in effect an attack on "'the fact or length of confinement.'" 512 U.S. at 482 (quoting Preiser, 411 U.S. at 494). The Court also did not question the plaintiff's invocation of section 1983 in Sandin, a case in which the underlying prison disciplinary proceeding affected only the plaintiff's conditions of confinement, not the duration of his sentence. [**12] See 515 U.S. at 487. See also McCarthy v. Bronson, 500 U.S. 136, 142, 114 L. Ed. 2d 194, 111 S. Ct. 1737 (1991) (drawing on Preiser 's distinction between challenges to the fact or length of custody and challenges to conditions of confinement in construing a statutory reference to the "conditions of confinement"). n5

n4 Brown does assert that his placement in administrative segregation may have affected his opportunities for parole, and thus the length of his confinement. It is true that Brown was denied parole in August, 1993, near or shortly after the end of his term in administrative segregation. But there is no evidence that the Parole Board considered the fact that Brown had been in administrative segregation in making its decision. The Parole Board's explanation said only that Brown's "adjustment has been poor[,] he has received two Class II DRs [disciplinary reports] and been charged with assault." Thus, the Board seems to have considered only the charges of misconduct against Brown, not their consequences.
n5 We recognize that one court of appeals has applied Edwards to a case in which the prisoner was subject only to disciplinary segregation, and not to loss of good time or any other change in the length of confinement. See Stone-Bey v. Barnes, 120 F.3d 718, 721 (7th Cir. 1997). We have found no other court of appeals decisions reaching this conclusion, and for the reasons set out in the text, we do not find its reasoning persuasive. See also Clarke v. Stalder, 121 F.3d 222, 226 (5th Cir. 1997) (Preiser and Edwards do not apply to actions in which "a favorable determination would not automatically entitle the prisoner to accelerated release").

[**13]
Moreover, Heck's rationale for its favorable-termination requirement is inapplicable to the facts of this case. Brown's action may not properly be analogized to a suit for malicious prosecution, as the decision he is challenging bears little resemblance to a judicial proceeding. Decisions to place inmates in administrative segregation are subject to greatly relaxed procedural requirements, see Hewitt v. Helms, 459 U.S. 460, 476, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983) ("An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation"), and the Court has recognized that they are often made fairly informally, on the basis of "subjective" and "intuitive" considerations, see id. at 474. Indeed, the administrative proceeding before the Housing Board entailed so little process that it would almost certainly be accorded no collateral estoppel effect. See Nasem v. Brown, 193 U.S. App. D.C. 416, 595 F.2d 801, 806-08 (D.C. Cir. 1979) (holding that an administrative proceeding in which the parties were not permitted to present live witness [**14] testimony or to cross-examine opposing witnesses should not be accorded collateral estoppel effect); 18 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4475, at 766 (1981). One of the Court's principal concerns in Heck was to limit collateral attacks on final judgments, see 512 U.S. at 484; but a proceeding that is incapable of giving rise to collateral estoppel, like that at issue in this case, hardly needs to be insulated from collateral attack. Finally, were Brown required to invoke habeas corpus to challenge his placement in administrative segregation, then the same rule would presumably apply to a myriad of prison officials' other administrative decisions affecting conditions of confinement, such as visitation, mail, shower, or library privileges. Habeas corpus might conceivably be available to bring challenges to such prison conditions, as the Court observed in Preiser, 411 U.S. at 499, but requiring the use of habeas corpus in [*169] such cases would extend Preiser far beyond the "core" of the writ that Preiser set out to protect. Id. at 487.

B. Did Brown's Placement in Administrative Segregation Violate the Due Process Clause? [**15]
Brown's placement in administrative segregation violated the Due Process Clause only if two conditions are met: Brown had a liberty interest in avoiding that term of segregation, and Brown did not receive the process he was due. The first of these questions raises difficult issues of constitutional law; the second, only narrow questions of fact. We therefore discuss the first question only to the extent necessary to explain why we do not decide it, and focus on the second.
1. Did Brown Have a Liberty Interest?
In Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), the Supreme Court reworked the framework for analyzing whether a prisoner has a state-created liberty interest in avoiding a particular deprivation. Before Sandin, this question was answered in much the same way as were questions about the existence of other liberty or property interests: if state laws or regulations contained language constraining the discretion of state officials, a liberty interest existed. See, e.g., Hewitt, 459 U.S. at 471-72. The Sandin Court found that this approach had given states "disincentives to ... codify prison management procedures" and led to the inappropriate [**16] "involvement of federal courts in the day-to-day management of prisons." 515 U.S. at 482. It therefore found that, although "States may under certain circumstances create liberty interests which are protected by the Due Process Clause," "these interests will generally be limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484.
Applying Sandin to this case presents a number of difficulties. First, although Sandin clearly dictates that we compare the hardship experienced by the inmate to "the ordinary incidents of prison life," it is not clear which prison or part of a prison is to provide the standard of comparison. At various points in Sandin, the Court compared the prisoner's conditions in disciplinary segregation in Hawaii's Halawa Correctional Facility to "administrative segregation and protective custody" in that prison, to the "general population" of that prison, and to an undefined "range of confinement to be normally expected for one serving an indeterminate term of 30 years to life." See Sandin, 515 U.S. at 486-87.
The District suggests that, because [**17] the Attorney General has authority to transfer persons convicted in the District to any other prison nationwide, the appropriate baseline for our analysis is in fact the most rigorous prison in the nation. n6 The parties have not addressed, however, what may be a prerequisite to such an argument: evidence that such transfers are "totally discretionary," a point the Sandin Court found important in determining that it was appropriate to use conditions in administrative segregation and protective custody at Halawa as a baseline for comparison. See 515 U.S. at 486. At least one court has accepted a variant of this argument: the Seventh Circuit has found that, because inmates may be transferred within the Indiana prison system, the test of whether a deprivation is "atypical and significant" turns on a comparison with conditions in the state's most rigorous prison. Wagner v. Hanks, 128 F.3d 1173, 1997 U.S. App. LEXIS 30906, 1997 WL 695375 (7th Cir. 1997). n7 The Wagner court also noted that, [*170] because Indiana can transfer its prisoners out of state, the proper standard of comparison may in fact be the most rigorous prison in the nation; it declined, however, to "decide whether logic should be pressed [**18] so far," and remanded the case for further fact-finding. Id. at 1176.

n6 The courts of the District of Columbia have construed sections 24-402 and 24-425 of the D.C. Code to permit inmates to be transferred to state as well as to federal institutions. See Vaughn v. United States, 579 A.2d 170, 173 (D.C. 1990).
n7 Judge Posner, the author of Wagner, also observed that under the panel's reading of Sandin "the right to litigate disciplinary confinements has become vanishingly small." 128 F.3d at 1175. He added that "this is a harsh result and perhaps the Court did not actually intend it," and acknowledged that while the Sandin Court cited cases involving prison transfers, "it did not draw the logical inference [that the baseline should be a state's most rigorous prison] and may not have intended to push its approach to its logical extreme...." Id. at 1176. And he further noted that "we would welcome clarification of the issue by the Court," id. at 1176.

Even were we to reject the [**19] District's transfer argument, we would still face a number of unsettled questions about how to apply Sandin to this case. Caselaw from the Second and Ninth Circuits suggests that whether a term in segregation amounts to an "atypical and significant" deprivation turns on its length and on a comparison of conditions in segregation and in the prison's general population. See, e.g., Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d Cir. 1997); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996). Other courts have not adopted so structured an analysis; for instance, the Fifth Circuit has concluded that a term in administrative segregation was not "atypical and significant" without discussing conditions in the segregation unit or the length of the segregation at all. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied, 116 S. Ct. 1690 (1996). Were we to follow the approach of the Second and Ninth Circuits, we would then need to decide whether the length and severity of the deprivation Brown experienced sufficed to render that deprivation "atypical and significant," a close and difficult question. Compare Sealey v. Giltner, 116 F.3d 47, 51-52 (2d Cir. 1997) (remanding [**20] for specific findings on conditions of confinement in the case of an inmate held in administrative segregation for six months) with Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir.), cert. denied, 139 L. Ed. 2d 84, 118 S. Ct. 136 (1997) (finding that a six-month term in administrative segregation was not "atypical and significant," with no discussion of conditions in segregation). And, finally, we would need to decide whether Sandin's "atypical and significant" test merely supplements Hewitt's test for the existence of a liberty interest, or supersedes it altogether. See The Supreme Court, 1994 Term--Leading Cases, 109 HARV. L. REV. 111, 147-50 (1995) (discussing this question). We do not think it necessary or even useful to resolve so many complex and fact-specific issues in the context of this case which it may be possible to decide on far narrower grounds.
2. Did Brown Receive the Process He Was Due?
By contrast to the liberty-interest question, whether Brown received the process he was due turns on a few simple questions of fact. The decision to place an inmate who has a liberty interest in administrative segregation is subject to limited procedural safeguards. [**21] "An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.... So long as this occurs, and the decisionmaker reviews the charges and the then-available evidence against the prisoner, the Due Process Clause is satisfied." Hewitt, 459 U.S. at 476. This process may be conducted a reasonable time after the transfer, and may be done either orally or in writing; periodic reviews are required after the initial transfer. See id. at 476-77 & n.9.
Brown contends that, because his placement in administrative confinement was based on an express finding that he had assaulted a correctional officer, it was essentially disciplinary in nature, so that he is entitled to the more extensive procedural protections applied to disciplinary hearings in Wolff v. McDonnell, 418 U.S. 539, 563-71, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). Although Wolff itself involved both discipline and the loss of good time, we have applied Wolff in cases in which only discipline was at issue. See Crosby-Bey v. District of Columbia, 252 U.S. App. D.C. 20, [**22] 786 F.2d 1182, 1185 (D.C. Cir. 1986) (per curiam). But Brown has not established that his treatment was disciplinary in nature. Prison officials may appropriately place an inmate in administrative segregation if she "represents a threat to the institution's security." Hewitt, 459 U.S. at 474. The fact that prison officials have made a finding that the inmate has committed an assault, [*171] rather than operating on the charge or suspicion that she has done so or will do so, does not trigger Wolff. n8

n8 Hewitt explained the lower procedural protections associated with administrative segregation by noting that no stigma is attached to such segregation, and that it has no significant effect on an inmate's parole opportunities. See Hewitt, 459 U.S. at 473. If Brown had shown that the Housing Board's finding that he had assaulted a guard was treated for parole or other purposes as equivalent to a disciplinary finding to that effect, or that administrative segregation was so widely used as a substitute for punishment that it carried the same stigma as disciplinary segregation, this might indicate that more extensive procedural protections were warranted. He has made no such showing.

[**23]
We therefore conclude that only the procedures required in Hewitt--"some notice," and an opportunity for the inmate to present his views, 459 U.S. at 476--apply to this case. n9 Hewitt 's requirements are not elaborate, but they are real, and must be strictly complied with. The present record raises two questions as to whether Brown had fair notice of the purpose and implications of the Housing Board hearing.

n9 We do not agree with Brown's further contention that Hewitt requires that an inmate receive advance notice of the charges against him. Advance notice is certainly valuable, and prison officials should provide it to inmates where possible; but Hewitt calls only for "some notice."
The applicable regulations require that inmates receive written notice three days in advance of a housing hearing, D.C. Mun. Reg. tit. 28, § 523.1 (1987), a requirement that prison officials apparently did not comply with here. If the District did violate this requirement, that would not amount to a violation of the Due Process Clause. State law supplies only the substance of a liberty interest; federal constitutional law governs the procedures that are required when it is withdrawn. Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc).

[**24]
Brown was initially told that he would receive a disciplinary hearing on October 16 on charges of Threatening Conduct and Possession of Major Contraband. Then, on October 15, he was brought before the Housing Board. It is not clear whether Brown was told that this hearing would be his only opportunity to respond to the charges against him. With certain exceptions, D.C. regulations prohibit inmates from being held in administrative segregation for more than three days without a hearing before the Housing Board. D.C. Mun. Regs. tit. 28, § § 521.7, 531.10 (1987). Brown might thus have assumed that the Housing Board hearing was only intended to consider his temporary placement in administrative segregation pending the Adjustment Board's decision, and that he would have an opportunity to defend himself on any charges at the Adjustment Board hearing on the following day. On remand, the district court should determine whether Brown made this mistaken assumption, and if so whether it was reasonable for him to do so in light of what he was told about the purpose of the Housing Board hearing.
It is also not clear whether Brown knew that the Housing Board hearing was intended to address charges [**25] that he had assaulted a correctional officer. Brown had only been notified of an Adjustment Board hearing on charges of Threatening Conduct and Possession of Major Contraband. He had previously received a disciplinary report charging him with Bodily Injury; the fact that this charge was apparently not to be addressed at the Adjustment Board hearing could have reasonably led him to conclude that it had been dropped. n10 Nor does the Housing Board Action Sheet that appears in the record provide any evidence as to whether Brown was told at the hearing that the Board would consider whether he had committed an assault. It records Brown only as saying that he does not fear for his safety and that he wants to have access to a law library, words that might suggest Brown thought that the hearing was about whether he himself was threatened and wished to be placed in voluntary protective custody. n11

n10 Moreover, the D.C. regulations list Bodily Injury as a Class II offense, but Assault as a more serious Class I offense. D.C. Mun. Regs. tit. 28, § § 502.4, 503.2 (1987).
n11 The sheet also states that Brown "has signed Non-Animosity and Waiver of Protective Custody forms"; the meaning of this is unclear, but it may again be a reference to voluntary protective custody. (Brown denies that he signed the latter form.)

[**26] [*172]
If Brown was not provided an accurate picture of what was at stake in the hearing, then he was not given his due process. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 94 L. Ed. 865, 70 S. Ct. 652 (1950); Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 14-15, 56 L. Ed. 2d 30, 98 S. Ct. 1554 (1978). On the other hand, if he was advised of the charges that would be considered against him and given "an opportunity to present his views," then he was given all the process he was due. Hewitt, 459 U.S. at 476. Because there is no record as to what occurred at the Housing Board hearing, we find it necessary to remand to the district court for further development of the facts surrounding this hearing.
III. CONCLUSION
In sum, we find that Preiser's distinction between challenges to the conditions of confinement and challenges to its fact or duration means that Brown's complaint was properly brought under section 1983, and need not have been brought as a habeas corpus petition. As to whether Brown's rights under the Due Process Clause were violated, we express no opinion at this time as to whether Brown had a liberty interest in remaining [**27] free of administrative segregation. Instead, we remand this case to the district court to decide, first, assuming that Brown had a liberty interest in avoiding administrative segregation, whether he received all the process that he was due under Hewitt. If he did, that will be the end of the matter. If he did not receive any such process, the district court may proceed to consider whether a liberty interest existed, in light of the questions identified in this opinion.
We therefore vacate the decision of the district court, and remand for further proceedings consistent with this opinion.
So ordered.

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12/16/97 James H. Neal, Appellant v. District of Columbia and



[Editor's note: footnotes (if any) trail the opinion]

[1] United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

[2] Argued October 9, 1997

[3] Decided December 16, 1997

[4] No. 96-7187

[5] James H. Neal, Appellant

v.

[6] District of Columbia and John Lattimore, Appellees

[7] Appeal from the United States District Court for the District of Columbia

[8] (No. 94cv01528)

[9] Daniel M. Schember argued the causes and filed the briefs for appellant. Alake Johnson-Ford entered an appearance.

[10] Mary L. Wilson, Assistant Corporation Counsel, argued the cause for the District of Columbia, with whom Jo Anne Robinson, Interim Corporation Counsel at the time the brief

[11] was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief.

[12] Jonathan J. Frankel argued the cause for amicus curiae American Civil Liberties Union of the National Capital Area, with whom Stephen H. Sachs and Arthur B. Spitzer were on the brief.

[13] Before: Wald, Henderson and Garland, Circuit Judges.

[14] Opinion for the Court filed by Circuit Judge Wald.

[15] Wald, Circuit Judge:

[16] This is a companion case to Brown v. Plaut, No. 96-7027 (D.C. Cir. Dec. 16, 1997). Because our opinion in Brown addresses many of the same issues raised in this case, we will make frequent reference to that opinion.

[17] Plaintiff James H. Neal ("Neal") was an inmate at the District of Columbia's (the "District's") prison at Lorton during all times relevant to this action. He seeks to recover damages from the District for holding him against his wishes and without due process in "voluntary protective custody," a regime of specially restricted custody for prisoners whose personal safety is in danger, for a period of six months. The district court dismissed Neal's action for reasons which we find are not persuasive; the District argues nonetheless this dismissal should be affirmed. We find that, under the analysis mandated by Sandin v. Conner, 515 U.S. 472 (1995), Neal had no liberty interest in remaining free of the special conditions of detention imposed upon him, and therefore affirm the dismissal.

[18] I. Background

[19] Neal was convicted in 1987 in D.C. Superior Court of a number of offenses, including multiple counts of robbery, and sentenced to 49 to 147 years' imprisonment. He was initially placed at Lorton, then transferred to the federal prison in Leavenworth, Kansas, and later transferred back to Lorton in March 1992. The federal Bureau of Prisons transfer forms stated that Neal had a significant history of violence (he had allegedly tried to choke a prison guard) and that he should be considered an escape risk based on the length of his sentence. Accordingly, Neal was placed at Lorton's Maximum Security Facility, a decision that Neal says in a declaration filed in this action that he did not oppose. On March 31, 1992, at his initial hearing for housing classification at the Maximum Security Facility, Neal asked to be placed in voluntary protective custody to allow him to "become acquainted with the conditions and routine" at the facility. Prison officials obliged, and placed him in voluntary protective custody in Cellblock 1 of the Maximum Security Facility.

[20] Voluntary protective custody is one species of administrative segregation; the other major category is involuntary protective custody, which is reserved for prisoners who present an escape risk or who pose a danger to themselves or others. D.C. Mun. Regs. tit. 28, Section(s) 521.4, 521.10, 521.11 (1987).*fn1 Prison regulations require that all placements in administrative segregation be reviewed every thirty days. Id., Section(s) 527.1. Neal was scheduled for a review of his housing placement on April 30. When that review did not occur, and no other review was scheduled, he submitted written requests for a review in October and November 1992. On December 1, 1992, he submitted a written request for "placement in general population." On March 24, 1993, the Classification Board, charged with reviewing prisoners' custody levels, recommended that Neal be moved to medium security custody, but, for reasons unknown, this recommendation was never implemented. Neal wrote letters on March 29 and April 11, 1993, complaining that he had not received appropriate reviews of his placement in protective custody, and asserting that he wished to be moved to the general population at the Maximum Security Facility. On June 21, 1993, Neal was stabbed, and removed from the prison to an outside hospital. On his return to the prison, Neal voluntarily entered protective custody for a time, and then was returned to the general population of the Maximum Security Facility.

[21] Neal filed a pro se complaint on July 14, 1994, claiming that the District's failure to release him from protective custody for six months violated the Due Process Clause and the D.C. regulations. (These regulations are referred to by the parties by the name of the statute approving them, the Lorton Regulations Approval Act ("LRAA").) The District filed a motion to dismiss or in the alternative for summary judgment on a number of grounds, one of which was that the LRAA did not create a private right of action. The district court denied the motion on all counts. It noted, however, that the question of whether the LRAA created a private right of action was a complex one, and requested further briefing.

[22] While Neal's case was pending, the Supreme Court decided Sandin v. Conner, 515 U.S. 472 (1995), finding that state laws and regulations governing prisons may only create a liberty interest for due process purposes if the alleged deprivation constitutes "atypical and significant hardship." Id. at 484. The parties filed supplemental pleadings as to Sandin's application to Neal's case, and the district court found that, on the basis of a comparison between conditions in protective custody and those in the general population at the Maximum Security Facility, the conditions Neal had experienced in protective custody did amount to an atypical and significant hardship.

[23] The district court then issued a memorandum deciding the LRAA question. It concluded that the question of whether the LRAA gives rise to a private cause of action was "complex" and that no court to date had awarded damages based on an LRAA violation. The district court stated that Neal had conceded that, absent the LRAA, he would not be able to bring a section 1983 action. It then found that comity dictated that the District of Columbia's courts be allowed to decide whether the LRAA creates a private right of action in the first instance, and dismissed Neal's entire suit. See Neal v. District of Columbia, 931 F. Supp. 16, 17 (D.D.C. 1996). Neal appeals from this order.

[24] II. Analysis

[25] On appeal, the District presents a number of arguments for affirming the district court's decision to dismiss Neal's section 1983 action. The most serious is that, under Sandin, 515 U.S. 472 (1995), Neal did not have a liberty interest in avoiding his placement in administrative segregation. Because we agree with this one, we do not reach the others.

[26] Before addressing Sandin, however, we briefly discuss the reasons given by the district court for its decision. The district court mistakenly assumed that, if a state law does not create a private cause of action, then it cannot support an action under section 1983. But to bring an action under section 1983 for a violation of the Due Process Clause, Neal need only establish that he has been deprived of a protected interest (here, a liberty interest) without due process. Under the law as it stood before Sandin was decided, Neal could have demonstrated this by showing that the relevant state laws and regulations sufficiently constrained the discretion of state officials to establish the existence of a liberty interest. See Brown, slip op. at 9. Since Sandin, Neal must show that he has been subjected to an "atypical and significant hardship ... in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484.*fn2 At neither time, however, did the test for the existence of a liberty interest turn on whether the relevant state laws create a private cause of action.

[27] We now turn to Sandin. In the companion Brown case, we concluded that the application of Sandin raised difficult questions which we thought it unnecessary to answer. In this case, we need not reach those questions, as Neal cannot establish the existence of a liberty interest under any plausible reading of Sandin.

[28] Neal avers that he involuntarily spent six months in "voluntary" protective custody, beginning at the point he asked in writing on December 1, 1992, to leave voluntary protective custody, and ending when he left the administrative segregation unit on June 21, 1993, for the hospital.*fn3 In Cellblock 1, where Neal was held during that period, he was allowed to leave his cell for nine hours a day three days a week, for six and a half hours (or longer if he had a visitor) for two days a week, and for five and six hours respectively on the remaining two days. He was allowed a total of eight hours a week outdoors, in a small courtyard. He did not have easy access to the gym, mailroom, law library, or medical unit (although other arrangements were made for provision of these services), and he could not work at a prison job.

[29] Neal contends that the appropriate standard for determining whether the deprivation he suffered was "atypical and significant" is to compare his circumstances to those of the general prison population from which he was removed. Cf. Brown, slip op. at 10-12. Even by that standard, however, Neal fails to meet the Sandin test. Had he remained a part of the general population at the Maximum Security Facility, Neal would have received at least 141/2 hours a day of out-ofcell time, and 171/2 hours on Fridays and Saturdays. He would have been allowed 14 hours a week outdoors, some 22 hours a week of work, and easy access to the gym, mailroom, law library, and medical unit. His placement in administrative segregation thus cost him approximately half of his outof-cell time, eliminated his access to employment, and restricted his access to prison facilities, all over a six-month period. This deprivation is comparable to that at issue in Sandin; although the deprivation in Sandin lasted only thirty days, it was considerably more severe, involving (for instance) a reduction from between eight and twelve hours a day of out-of-cell time to fifty minutes. Sandin, 515 U.S. at 486 & n.8. It follows that, even under the reading of Sandin he himself proposes, Neal had no liberty interest in avoiding his treatment at the hands of Lorton's authorities, and so has no claim under the Due Process Clause. We therefore affirm the dismissal of Neal's due process claim.*fn4

[30] There remains Neal's claim under the LRAA. Although it is unclear on what basis the district court originally dismissed this claim, Neal concedes that, if the district court's dismissal of his section 1983 claim was proper, it would also have been proper for the district court to dismiss his claim under D.C. law for lack of jurisdiction. See 28 U.S.C. Section(s) 1367(c)(3).*fn5 We thus affirm the district court's dismissal of this claim.

[31] The decision of the district court is therefore affirmed.

[32] So ordered.

***** BEGIN FOOTNOTE(S) HERE *****

[33] *fn1 Administrative segregation may also be used to hold an inmate prior to a housing hearing or adjustment hearing. Id., Section(s) 521.2.

[34] *fn2 As we note in Brown, after Sandin Neal might still need also to show that relevant state laws and regulations contain language constraining the discretion of state officials. See Brown, slip op. at 12.

[35] *fn3 The LRAA states that a prisoner in voluntary protective custody who makes a written request to leave that status "shall be released at once from protective custody." D.C. Mun. Regs. tit. 28, Section(s) 521.12 (1987). The LRAA permits an inmate who asks to leave voluntary protective custody to be placed instead in involuntary protective custody if findings are made that the inmate is a danger to himself or others or presents an escape risk. See id., Section(s) 521.4, 521.12. The District does not contend that any such findings were made.

[36] *fn4 Although we find that the District's alleged treatment of Neal does not rise to the level of a violation of the Constitution, that does not mean that we endorse it. We do not know from the record whether the District had any valid reason for keeping Neal for six months in "voluntary" protective custody against his will, and why it denied him any process at all.

[37] *fn5 Neal may, of course, pursue his LRAA claim in the courts of the District of Columbia. Dismissals for lack of supplemental jurisdiction are without prejudice, and the limitations period for a claim dismissed for this reason is tolled "while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." 28 U.S.C. Section(s) 1367(d).

***** END FOOTNOTE(S) HERE *****

[Editor's note: Illustrations from the original opinion, if any, are available in the print version]


19971216


1997.CDC.262