Hatch v. District of Columbia, 337 U.S.App.D.C. 266, 184 F.3d 846 (D.C.Cir. 07/30/1999)

[1] U.S. Court of Appeals, District of Columbia Circuit


[2] No. 96-7247


[4] July 30, 1999


[5] DONALD J. HATCH, APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL., APPELLEES


[6] Appeal from the United States District Court for the District of Columbia (No. 94cv01393)


[7] Donald J. Hatch was on the briefs for appellant. J. Alexander Ward, appointed by the court, argued the cause and filed the briefs as amicus curiae on behalf of appellant. Mary L. Wilson, Assistant Corporation Counsel, argued the cause for appellees. With her on the brief were John M. Ferren, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel.


[8] Before: Silberman, Williams and Tatel, Circuit Judges.


[9] The opinion of the court was delivered by: Circuit Judge Tatel.


[10] Argued May 6, 1999


[11] Tatel, Circuit Judge: Under Sandin v. Conner, segregative confinement in prison implicates a liberty interest protected by the Due Process Clause of the United States Constitution only if it "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 515 U.S. 472, 484 (1995). In this case brought by a Lorton inmate claiming a liberty interest in avoiding such confinement, we must define "the ordinary incidents of prison life"-the comparative baseline for determining whether appellant's segregation was an "atypical and significant hardship." Considering Sandin's language and objectives, we hold that due process is required when segregative confinement imposes an "atypical and significant hardship" on an inmate in relation to the most restrictive conditions that prison officials, exercising their administrative authority to ensure institutional safety and good order, routinely impose on inmates serving similar sentences. For appellant, these conditions include the usual conditions of administrative segregation at Lorton. They also include more restrictive conditions at other prisons if it is likely both that inmates serving sentences similar to appellant's will actually be transferred to such prisons and that once transferred they will actually face such conditions. Because the district court did not apply this standard, we reverse its grant of summary judgment for appellee and remand for further consideration of appellant's due process claim in light of this opinion.


[12] I.


[13] Appellant Donald Hatch is a District of Columbia convict serving multiple sentences for armed robbery, kidnapping, sodomy, and rape. The events giving rise to this suit occurred while Hatch was an inmate at the Lorton Correctional Complex. Because the district court granted summary judgment for the District, we describe the facts in the light most favorable to Hatch. See Fed. R. Civ. P. 56(c); DeGraff v. District of Columbia, 120 F.3d 298, 299-300 (D.C. Cir. 1997).


[14] On January 5, 1994, while working as head clerk at Lorton's law library, Hatch got into a fight with another prisoner over the use of a copy machine. Immediately after the incident, the prison Housing Board, which "determine[s] appropriate housing placement" to ensure prison safety and security, D.C. Mun. Regs. tit. 28, § 522.1 (1987), assigned Hatch to administrative segregation, a form of solitary confinement commonly used to separate disruptive prisoners. In addition, Hatch received a disciplinary report charging him with fighting, lack of cooperation, and creating a disturbance-all "Class II" offenses under Lorton regulations. See id. §§ 503.1, 503.4, 503.5, 503.11.


[15] On January 11, Hatch appeared before the prison Adjustment Board, which adjudicates charged offenses and imposes disciplinary penalties. See id. §§ 508-515. Due to a mistake in the disciplinary report, the Adjustment Board dismissed all charges. The next day, the Housing Board met to consider Hatch's confinement. Finding that Hatch posed a threat to the orderly operation of the prison, the Housing Board recommended that he remain in administrative segregation. Hatch had no notice of the Housing Board meeting, did not attend the meeting, and had no opportunity to testify or present evidence.


[16] On January 20, the Adjustment Board, which had previously dismissed the charges against Hatch, met again to consider the same charges. The Adjustment Board denied Hatch's requests to speak on his own behalf, to cross-examine adverse witnesses, and to call witnesses, including the writer of the disciplinary report. The Board acquitted him of creating a disturbance and lack of cooperation, but found him guilty of fighting. It sentenced him to fourteen days of adjustment segregation, another form of solitary confinement which, unlike administrative segregation, punishes individual inmates for specific, proven acts of misconduct.


[17] On March 21, the Housing Board, as required by Lorton regulations, see id. § 527.1, conducted a sixty-day review of Hatch's status. Determining that Hatch no longer presented a "management problem," it recommended that he be returned to the prison's general population. Supervising officials approved this recommendation in early April, but Hatch


[18] remained in segregation until August 11-more than seven months after his initial placement in segregation. The District offers no explanation for this delay. Hatch claims that Lorton officials kept him in segregation because bed space was unavailable in the general population.


[19] Although Hatch's confinement consisted of two weeks of adjustment segregation and twenty-nine weeks of administrative segregation, the conditions of his confinement remained basically the same throughout the seven months. Confined to his cell twenty-three and a half hours per day on weekdays and all forty-eight hours of the weekend, Hatch had no outdoor recreation and was not allowed to work or to visit the library, gym, health clinic, psychological services, mailroom, clothing and bedding exchange, or culinary unit. He had no access to a dentist despite four written requests to have a broken, decayed tooth extracted. He had no opportunity to wash his clothes or get a haircut. Whenever he left the cell block, he was transported in handcuffs and leg irons. Prison officials confiscated his legal papers and denied him access to legal telephone calls for ninety days.


[20] On June 24, while still in administrative segregation, Hatch filed suit against the District of Columbia in the United States District Court, alleging that his confinement in adjustment and administrative segregation violated the Due Process Clause of the U.S. Constitution as well as D.C. regulations governing Lorton. The District moved to dismiss or, alternatively, for summary judgment. After requesting additional briefing on the conditions of Hatch's confinement, the district court granted summary judgment for the District. See Hatch v. District of Columbia, No. 94-1393 (D.D.C. Oct. 11, 1996) ("Mem. Order"). Applying Sandin v. Conner and assuming Hatch's description of his confinement to be true, the court determined that he "did not suffer an 'atypical and significant hardship' " compared to "the typical restrictions imposed on prisoners in the general population." Mem. Order at 5. It thus concluded that under Sandin, Hatch had no liberty interest in avoiding either adjustment or administrative segregation. See id. at 5-6.


[21] Hatch appeals pro se, aided by court-appointed counsel who filed briefs and argued the case as amicus curiae. Our review is de novo. See Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).


[22] II.


[23] Sandin v. Conner represents the culmination of a twentyyear effort by the Supreme Court to clarify when restrictions imposed by prison officials on lawfully incarcerated inmates constitute deprivations of "liberty" within the meaning of the Due Process Clause. Two basic principles have guided the Court's effort. The first is that prison officials need "broad administrative and discretionary authority over the institutions they manage." Hewitt v. Helms, 459 U.S. 460, 467 (1983). Recognizing the difficulty and complexity of operating safe and effective prisons, as well as the expertise of prison officials, the Supreme Court has repeatedly instructed federal courts "to afford appropriate deference and flexibility to state officials trying to manage a volatile environment." Sandin, 515 U.S. at 482 (citing cases); see also Hewitt, 459 U.S. at 470 ("[T]he safe and efficient operation of a prison on a day-to-day basis has traditionally been entrusted to the expertise of prison officials...."); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977) (requiring courts to "giv[e] appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement"). Accordingly, the Supreme Court has refused to " 'subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts,' " Hewitt, 459 U.S. at 467 (quoting Meachum v. Fano, 427 U.S. 215, 225 (1976)), making clear that the " 'withdrawal or limitation of many privileges and rights' " of prisoners is " 'justified by the considerations underlying our penal system,' " id. (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)).


[24] While recognizing the need to protect prison administrators' discretion and flexibility, the Supreme Court has made equally clear a second, countervailing principle: "[T]hough his 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 imprisoned for crime." Wolff v. McDonnell, 418 U.S. 539, 555 (1974). "There is no iron curtain," Wolff said, "drawn between the Constitution and the prisons of this country." Id. at 555-56. The constitutional protections retained by prisoners include those afforded by the Due Process Clause against arbitrary deprivations of "liberty." Some protected liberty interests flow directly from the Due Process Clause itself. See, e.g., Washington v. Harper, 494 U.S. 210, 221-22 (1990). Others are created by state laws regulating the terms or conditions of a prisoner's confinement. See, e.g., Board of Pardons v. Allen, 482 U.S. 369, 376 (1987). State-created liberty interests-the focus of this case-have their origins in Wolff, where the Supreme Court held that a Nebraska prisoner had a constitutionally protected liberty interest in retaining good-time credits because Nebraska law "not only provided a statutory right to good time but also specifies that it is to be forfeited only for serious misbehavior." 418 U.S. at 557; see id. at 545-53 (discussing Nebraska statutes and prison regulations). Noting that "the prisoner's interest has real substance," id. at 557, Wolff concluded that "a person's liberty is ... protected, even when the liberty itself is a statutory creation of the State" because "[t]he touchstone of due process is protection of the individual against arbitrary action of government." Id. at 558 (citing Dent v. West Virginia, 129 U.S. 114, 123 (1889)). Consistent with Wolff, we have recognized that D.C. prison regulations may give rise to constitutionally protected liberty interests. See, e.g., Ellis v. District of Columbia, 84 F.3d 1413, 1415 (D.C. Cir. 1996).


[25] The difficult question in a case such as this is how to reconcile the two principles at work in Sandin-that is, how do we define the range of state-created liberty interests protected by due process without unduly constricting management prerogatives of prison officials? Prior to Sandin, courts struck the balance by recognizing liberty interests where state laws or regulations contained explicit language circumscribing official authority to alter the conditions of a prisoner's confinement. The key case was Hewitt v. Helms, supra, where a Pennsylvania inmate challenged the adequacy of proceedings that resulted in his confinement in administrative segregation after a prison riot. While observing that administrative segregation does not implicate "an interest independently protected by the Due Process Clause," 459 U.S. at 468, Hewitt found that the prisoner had a protected liberty interest in avoiding such segregation because state law "require[d] that certain procedures 'shall,' 'will,' or 'must' be employed and that administrative segregation will not occur absent specified substantive predicates-viz., 'the need for control,' or 'the threat of a serious disturbance,' " id. at 471-72 (quoting 37 Pa. Code § 95.103(b)(3) (1971)). "[T]he repeated use of explicitly mandatory language in connection with requiring specific substantive predicates," Hewitt explained, "demands a Conclusion that the State has created a protected liberty interest." Id. at 472.


[26] Twelve years later, Sandin abandoned Hewitt's approach for two reasons. First, by "encourag[ing] prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges," the Court said, Hewitt's methodology "creates disincentives for States to codify prison management procedures in the interest of uniform treatment." Sandin, 515 U.S. at 481, 482. Second, the Court said that "the Hewitt approach has led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Id. at 482. Citing cases where prisoners claimed liberty interests in, among other things, "receiving a tray lunch rather than a sack lunch," id. at 483 (citing Burgin v. Nix, 899 F.2d 733, 735 (8th Cir. 1990)), "receiving a paperback dictionary," id. (citing Spruytte v. Walters, 753 F.2d 498, 506-08 (6th Cir. 1985)), and "not being placed on [a] food loaf diet," id. (citing United States v. Michigan, 680 F. Supp. 270, 277 (W.D. Mich. 1988)), Sandin made clear that "the fine-tuning of the ordinary incidents of prison life" is a task for prison officials, not federal courts. Id.


[27] Although Sandin rejected Hewitt's methodology, it continued to "[f]ollow[ ] Wolff [in] recogniz[ing] that States may under certain circumstances create liberty interests which are protected by the Due Process Clause." Id. at 483-84. Critically, however, the Court refocused the test for identifying state-created liberty interests on what it considered "the real concerns undergirding the liberty protected by the Due Process Clause," id. at 483-namely, whether the state had deprived the prisoner of "an interest of 'real substance,' " id. at 480 (quoting Wolff, 418 U.S. at 557). Sandin declared that state-created liberty interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Id. at 484 (citations omitted). Sandin thus "shift[ed] the focus of the liberty interest inquiry" from "the language of a particular regulation" to "the nature of the deprivation," id. at 481, or, as the Seventh Circuit put it, "from whether there was an entitlement [conferred by the state] to whether the entitlement was to some meaningful amount of liberty," Wagner v. Hanks, 128 F.3d 1173, 1173 (7th Cir. 1997).


[28] Although clear in its intent, Sandin's test for identifying liberty interests protected by the Due Process Clause has proven easier to articulate than to apply. See Brown v. Plaut, 131 F.3d 163, 170 (D.C. Cir. 1997) (identifying "a number of unsettled questions about how to apply Sandin"). The central difficulty in determining whether segregative confinement "imposes atypical and significant hardship on the inmate" is how to characterize the comparative baseline-i.e., how to define "the ordinary incidents of prison life." Two of our sister circuits have looked to conditions in the general prison population as the comparative baseline. See Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996). Two other circuits have looked to the typical conditions of administrative segregation.


[29] See Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997). Taking a different approach, the Seventh Circuit has defined the baseline as the conditions of non-disciplinary segregation in a state's most restrictive prison. See Wagner, 128 F.3d at 1175. According to the Fifth Circuit, segregation never implicates a liberty interest unless it lengthens a prisoner's sentence. See Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997). The remaining circuits have applied Sandin's "atypical and significant hardship" test, but without characterizing the comparative baseline. See Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999); Perkins v. Kansas Dep't of Corrections, 165 F.3d 803, 809 (10th Cir. 1999); Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir. 1997); Kennedy v. Blankenship, 100 F.3d 640, 642 (8th Cir. 1996); Dominique v. Weld, 73 F.3d 1156, 1160 (1st Cir. 1996).


[30] We too faced this issue in Brown v. Plaut, supra, another due process case brought by a Lorton prisoner challenging his placement in administrative segregation. But there we found it unnecessary to decide the "difficult and unsettled questions of constitutional law" implicated by Sandin. 131 F.3d at 165. Instead, we remanded the case to the district court to "decide, first, assuming that [the prisoner] had a liberty interest in avoiding administrative segregation, whether he received all the process that he was due." Id. at 172. "If he did," we said, "that will be the end of the matter." Id. Consistent with Brown, the District claims that assuming Hatch had a liberty interest in avoiding segregative confinement, Lorton officials afforded him the process he was due. Based on the record before us, we disagree.


[31] The parties in this case agree that if Hatch had a liberty interest in avoiding administrative segregation, then Hewitt specifies the minimum procedures for placing him in such confinement. Those procedures include "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." Hewitt, 459 U.S. at 476; see Brown, 131 F.3d at 171. Although a hearing need not occur prior to confinement in administrative segregation, it "must occur within a reasonable time following an inmate's transfer." Hewitt, 459 U.S. at 476 n.8. We said in Brown that these "requirements are not elaborate, but they are real, and must be strictly complied with." 131 F.3d at 171.


[32] Hatch alleges in his pro se complaint that he received no notice of the January 12, 1994 Housing Board hearing, that he was not allowed to attend the hearing, and that he had no opportunity to present witnesses or evidence. The District nowhere disputes these allegations, arguing instead that a subsequent exchange of letters between Hatch and Lorton officials afforded him due process under Hewitt. See 459 U.S. at 476 (noting that "[o]rdinarily a written statement by the inmate" will suffice to allow him to present his views). The record provides no support for the District's claim. The first acknowledgment of Hatch's letters by a prison official did not occur until February 28, over seven weeks after his initial placement in administrative segregation and over six weeks after the Housing Board hearing which Hatch did not attend-hardly "a reasonable time following [his] transfer." Id. at 476 n.8. Moreover, nothing in the record shows that prison officials even considered the claims Hatch raised in his letters. The facts of this case are thus unlike those in Hewitt, where the Supreme Court found that a prisoner assigned to administrative segregation for misconduct had received due process because he "had an opportunity to present a statement to [prison officials]" at a hearing "five days after his transfer," id. at 477, and because he " 'had the opportunity to have [his] version reported as part of the record,' " id. (quoting prisoner's statement on misconduct report).


[33] With respect to his placement in adjustment segregation, Hatch argues that assuming he had a liberty interest in avoiding such confinement, then he was entitled to the more elaborate protections specified in Wolff, which include the opportunity "to call witnesses and present documentary evidence in his defense." 418 U.S. at 566. Disagreeing with Hatch, the District claims that Wolff is inapplicable because that case involved an inmate's loss of good-time credits, a deprivation more substantial than Hatch's segregative confinement. We need not decide the applicability of Wolff, however, because we think it safe to say that whatever procedures are required for placing an inmate in disciplinary segregation (again, assuming a liberty interest in avoiding such confinement), they must at least encompass the Hewitt procedures that the District says are required for placing an inmate in administrative segregation. The record in this case shows that Lorton officials failed to meet those standards, i.e., they gave Hatch no "opportunity to present his views to the prison official charged with deciding whether to transfer him to ... segregation." 459 U.S. at 476. According to Hatch's complaint, at the January 20, 1994 Adjustment Board hearing, he "was not allowed to have any witnesses, ... was not allowed to have the writer of the [disciplinary] report present, to testify, [and] was [not] allowed to give any testimony on the record." Amended Compl. at 1. The District challenges none of these allegations.


[34] The District claims that the availability of habeas corpus in the D.C. courts satisfies Hewitt's procedural requirements. But we doubt that resolution of a habeas claim would "occur within a reasonable time following an inmate's transfer" to segregation, as Hewitt requires. 459 U.S. at 476 n.8. Moreover, given Sandin's emphasis on preserving the administrative authority of prison officials, we are reluctant to shift primary responsibility for ensuring compliance with the Due Process Clause from Lorton administrators to D.C. Judges.


[35] Thus, because Hatch did not receive the process required by Hewitt, and because Hatch might have persuaded Lorton officials to reduce his time in segregation had he had a fair opportunity to present his views, we cannot resolve this case by taking the approach we followed in Brown.


[36] The District suggests a second way we might decide this case without applying Sandin's "atypical and significant hardship" test. According to the District, Sandin's test supplements Hewitt's, requiring Hatch to show not only that his segregative confinement was an "atypical and significant hardship," but also that D.C. statutes or regulations had created an expectation that Lorton prisoners would not face such segregation absent certain substantive predicates.


[37] Claiming that Lorton regulations created no such expectation, the District argues that for this reason alone, Hatch had no protected liberty interest in avoiding segregative confinement.


[38] We see no need to decide whether Sandin's test supplements or supplants Hewitt's, for we disagree with the District that D.C. regulations governing Lorton contain no standards or guidelines limiting official discretion to place prisoners in segregative confinement. Those regulations make clear that before prison officials may place an inmate in administrative segregation, "there shall be a finding made that: (a) There is a clear and present threat to the safety of the resident; (b) The resident poses a clear and present threat to the safety of others; or (c) The resident poses a definite escape risk." D.C. Mun. Regs. tit. 28, § 521.4; see also id. §§ 522.3, 531.2. The regulations also require Lorton officials to review an inmate's placement in administrative segregation every thirty days, see id. § 527.1, and "[a]t each thirty-day review, it shall be the responsibility of the Board to determine whether the resident's return to the general population at the time of that particular review still poses an escape risk or security risk to the resident or others," id. § 527.2. The regulations authorize adjustment segregation only after an inmate has been found guilty of violating Lorton's Code of Offenses, see id. §§ 505.1-505.3, 515.1, and they limit the term of adjustment segregation for inmates found guilty of Class II offenses to fourteen days, see id. § 505.2(c).


[39] Like the Pennsylvania statute at issue in Hewitt, the D.C. regulations governing segregative confinement at Lorton thus contain the "repeated use of explicitly mandatory language in connection with requiring specific substantive predicates" that prior to Sandin would have "demand[ed] a Conclusion that the State has created a protected liberty interest." Hewitt, 459 U.S. at 472. Therefore, even assuming (as the District argues) that Hewitt's test survives as an independent ground for denying the existence of protected liberty interests, we cannot avoid the key question at the heart of this case: Was Hatch's seven-month confinement in adjustment and administrative segregation an "atypical and significant hardship ... in relation to the ordinary incidents of prison life"?


[40] III.


[41] Answering this question requires us to define the comparative baseline-"ordinary incidents of prison life"-with specificity. Hatch argues that the proper baseline is the most restrictive form of confinement that Lorton officials may impose in their unfettered discretion. Claiming that Lorton officials have no discretionary authority to impose any form of confinement other than assignment to the general population, Hatch argues that comparing the conditions he faced in segregation to those faced by prisoners in the general population shows that he suffered an "atypical and significant hardship."


[42] We faced this same issue in Neal v. District of Columbia, 131 F.3d 172 (D.C. Cir. 1997), yet another case brought by a Lorton prisoner challenging his confinement in administrative segregation under the Due Process Clause. But in that case, we had no need to decide whether the proper test under Sandin "is to compare [the] circumstances [the inmate faced in segregation] to those of the general prison population" because we found that even assuming that to be the proper comparison, the inmate had not suffered an "atypical and significant hardship" within the meaning of Sandin. Id. at 175. Apart from the loss of work and other privileges, administrative segregation cost the inmate in Neal only "half of his out-of-cell time." Id. In contrast, when Lorton officials transferred Hatch from the general population to segregative confinement, he lost not only his work privileges and his access to the gym, library, mailroom, health services, and other facilities, but also more than 95 percent of his out-of-cell time. Indeed, Hatch claims that while in the general population, he was confined "to being in his cell ... for only eleven (11) hours per day on weekdays, seven (7) hours per day on Friday, and Saturday nights, and the night before legal holidays." Hatch Br. at 6 (filed pro se Aug. 7, 1995); cf. Roach Aff. ¶ 3 (affidavit of Lorton warden) (prisoners in general population "are locked down in their cells a total of at least nine (9) hours per day"). While in segregation, by comparison, he "was confined to a cell for twenty three and one half (231/2) hours per day" and all forty-eight hours of the weekend. Hatch Br. at 6, 10. In addition, prisoners in the general population "are free to move from place to place within the prison complex by way of a movement pass or under Correctional Officer supervision," "are allowed a minimum of one hour of recreation time daily," "may engage in Group Programs, recreation and religious activities daily," and "have daily access to the telephone between the hours of 6:00 A.M. and 12:00 Midnight." Roach Aff. ¶ 3. Hatch "was forced to [wear] hand cuffs and leg irons whenever he left [the segregation cell block]," Hatch Br. at 9, "was not afforded any outside recreation at all," id. at 10, was isolated from all other inmates when allowed out of his cell, see id., and received no legal telephone calls for ninety days, see id. at 11. We think these differences in confinement conditions foreclose the approach we took in Neal, requiring us now to decide whether, as Hatch argues, conditions in the general population form the proper baseline for Sandin's "atypical and significant hardship" test. Cf. infra at 20 (explaining that the district court misread Sandin in concluding that Hatch suffered no "atypical and significant hardship" compared to conditions in the general population).


[43] Hatch claims that his proposed baseline follows directly from the Supreme Court's application of the "atypical and significant hardship" test in Sandin itself. Concluding that the thirty-day disciplinary segregation of a Hawaii prisoner "did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest," Sandin said:


[44] "The record shows that, at the time of [the inmate's] punishment, disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody.... Thus, Conner's confinement did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction.... Based on a comparison between inmates inside and outside disciplinary segregation, the State's actions in placing him there for 30 days did not work a major disruption in his environment." 515 U.S. at 486 (footnotes omitted). Hatch reads this passage-in particular, the words "totally discretionary"-to mean that "the ordinary incidents of prison life" consist of the most restrictive confinement conditions that prison officials may impose in their unfettered discretion. According to Hatch, while this theory meant that conditions in administrative segregation or protective custody comprised the proper baseline in Sandin, here it means that conditions in the general population should serve as the baseline because that is the only form of confinement Lorton officials have unfettered discretion to impose.


[45] We disagree with Hatch's reading of Sandin. As Hatch recognizes, the phrase "similar, but totally discretionary, confinement" in the quoted passage refers to "administrative segregation and protective custody." At the time of the events giving rise to Sandin, Hawaii prison officials did not have unfettered discretion to place inmates in administrative segregation or protective custody. State regulations authorized administrative segregation


[46] "(1) Whenever the facility administrator or a designated representative determines that an inmate or ward has committed or threatens to commit a serious infraction."


[47] "(2) Whenever the facility administrator or a designated representative, considering all the information available, incuding [sic] confidential or reliable heresay [sic] sources, determines that there is reasonable cause to believe that the inmate or ward is a threat to: (A) Life or limb; (B) The security or good government of the facility; (C) The community."


[48] "(3) Whenever any similarly justifiable reasons exists [sic]."


[49] Haw. Admin. Rule § 17-201-22 (1983). Hawaii regulations also provided:


[50] "Admission to protective custody may be made only where there is reason to believe that such action is necessary or the inmate or ward consents, in writing, to such confinement. Protective custody is continued only as long as necessary except where the inmate or ward needs long term protection and the facts requiring the confinement are documented." Id. § 17-201-23. These regulations did not authorize prison officials to impose administrative segregation or protective custody for no reason at all. Because the Sandin Court was fully aware of these regulations, see 515 U.S. at 476 n.2 (citing Haw. Admin. Rule §§ 17-201-22, 17-201-23), we believe its use of the words "totally discretionary" cannot mean that what prison officials may do in their unfettered discretion is the touchstone for elucidating "the ordinary incidents of prison life."


[51] To be sure, Sandin nowhere directly explains why it used administrative segregation as the comparative baseline. But given the objectives Sandin sought to further, see supra at 5-6, we think the reason is not that such confinement is literally "totally discretionary," but rather that prison officials routinely impose such confinement for non-punitive reasons related to effective prison management. Support for this interpretation comes from what the Court said in Hewitt about administrative segregation:


[52] "It is plain that the transfer of an inmate to less amenable and more restrictive quarters for non-punitive reasons is well within the terms of confinement ordinarily contemplated by a prison sentence. The phrase "administrative segregation," as used by the state authorities here, appears to be something of a catchall: it may be used to protect the prisoner's safety, to protect other inmates from a particular prisoner, to break up potentially disruptive groups of inmates, or simply to await later classification or transfer. See 37 Pa. Code §§ 95.104 and 95.106.... Accordingly, administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration." 459 U.S. at 468. Like the Pennsylvania regulations in Hewitt, the Hawaii regulations in Sandin and the D.C. regulations in this case make clear that administrative segregation functions as a "catchall," a flexible management tool for ensuring safety and good order in prison. See Haw. Admin. Rule §§ 17-20122 to -24; D.C. Mun. Regs. tit. 28, § 521. Given Sandin's insistence on affording "appropriate deference and flexibility to state officials trying to manage a volatile environment," 515 U.S. at 482, it makes sense that the Court would treat administrative segregation as an "ordinary incident of prison life." Such a baseline for identifying constitutionally protected liberty interests ensures that "the day-to-day management of prisons" will remain in the hands of prison administrators, not federal Judges. Id.


[53] Reading Sandin to require that we look to conditions in administrative segregation as the proper baseline does not end our analysis. Sandin took two additional factors into account. First, it observed that the prisoner's confinement "did not exceed similar ... confinement in either duration or degree of restriction." 515 U.S. at 486 (emphasis added); see id. ("[T]he State's action in placing him there for 30 days did not work a major disruption in his environment."). When we compare Hatch's confinement to administrative segregation, we must therefore look not only to the nature of the deprivation (e.g., loss of privileges, loss of out-of-cell time) but also to its length in evaluating its "atypicality" and "significance." Second, Sandin noted that the prisoner's thirty-day disciplinary segregation "was within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life." Id. at 487. We read this to mean that "atypicality" also depends in part on the length of the sentence the prisoner is serving. See id. at 485 (disciplinary segregation was not "a dramatic departure from the basic conditions of Conner's indeterminate sentence"); id. at 486 n.9 ("[T]he conditions suffered were expected within the contour of the actual sentence imposed."). We have previously interpreted Sandin just this way. In Franklin v. District of Columbia, we said that courts must consider not only "the discipline involved" but also "the nature of the prisoner's term of incarceration" in determining "whether a prisoner's 'liberty' is threatened." 163 F.3d 625, 634 (D.C. Cir. 1998).


[54] To sum up, we interpret Sandin to mean that a deprivation in prison implicates a liberty interest protected by the Due Process Clause only when it imposes an "atypical and significant hardship" on an inmate in relation to the most restrictive confinement conditions that prison officials, exercising their administrative authority to ensure institutional safety and good order, routinely impose on inmates serving similar sentences. We think this standard captures what Sandin means by the phrase "ordinary incidents of prison life." While the "incidents of prison life" encompass more or less restrictive forms of confinement depending on prison management imperatives, the term "ordinary" limits the comparative baseline to confinement conditions that prison officials routinely impose. We also think our interpretation of the test is faithful to the principles animating Sandin: It ensures that prison officials have broad administrative authority to "fine-tun[e] the [conditions] of prison life," 515 U.S. at 483, while preserving a zone of liberty interests with " 'real substance' " protected by the Due Process Clause, id. at 480.


[55] We turn finally to the parties' competing claims regarding the significance of inter-prison inmate transfers for Sandin's baseline. According to Hatch, the baseline must be defined by reference to conditions at Lorton only. We agree with the District, however, that the possibility of transfer is one of the "ordinary incidents of prison life" for most prisoners in the country, including those at Lorton. See D.C. Code Ann. § 24-425 (1981) (giving Attorney General broad discretion to transfer Lorton inmates to any federal prison); cf. Meachum v. Fano, 427 U.S. 215, 225 (1976) (holding that transfer to prison with more onerous conditions does not deprive a prisoner of constitutionally protected liberty "as long as prison officials have discretion to transfer him for whatever reason or for no reason at all"). At the same time, we disagree with the District that the possibility of transfer means that the baseline must consist of the most restrictive conditions routinely imposed on inmates in any prison nationwide, including conditions at the federal penitentiary at Marion, Illinois, an especially restrictive prison where all inmates are locked down almost the entire day.


[56] Sandin defined the "ordinary incidents of prison life" in terms of the "basic conditions" of a prisoner's sentence, 515 U.S. at 485, the conditions "normally expected" for a prisoner serving a given term, id. at 487. What matters, therefore, is not simply the possibility of transfer but also its likelihood. The mere fact that the Attorney General has discretion to transfer a Lorton inmate to prisons like Marion does not make such transfers "ordinary." Properly constructed, Sandin's baseline requires not mere inquiry into the most restrictive conditions prison officials have legal authority to impose for administrative reasons, but a factual determination of the most restrictive conditions prison officials "ordinarily" or "routinely" impose.


[57] We thus think that to the extent Hatch might face more burdensome conditions at other prisons, those conditions become part of the baseline only if it is likely both that inmates serving sentences similar to Hatch's actually will be transferred to such prisons and that once transferred they actually will face such conditions. If, as the District claims, conditions for all inmates at Marion are more burdensome than the most restrictive conditions at Lorton that prison officials routinely impose in their administrative discretion, then conditions at Marion would form the proper baseline under Sandin if the District can show that transfers to Marion are "normally expected" for Lorton inmates serving sentences similar to Hatch's. Sandin, 515 U.S. at 487. Not only does the record contain no information about the frequency of inmate transfers from Lorton to Marion, but the District's lawyer, asked at oral argument "how many D.C. prisoners go to Marion," said, "I don't have a number, but at least one." She then conceded that "[p]erhaps that one prisoner alone would not support our argument."


[58] IV.


[59] This brings us to the Disposition of this case. The district court compared the conditions of Hatch's segregative confinement (as he described them) with conditions faced by prisoners in the general population. See Mem. Order at 3-4. Finding these differences no greater than the differences in Sandin between that prisoner's disciplinary segregation and his confinement in the general population, it then concluded that Hatch suffered no "atypical and significant hardship." See id. at 5.


[60] To be sure, Sandin observed in dictum that "the conditions at Halawa involve significant amounts of 'lockdown time' even for inmates in the general population." 515 U.S. at 486. But as our earlier Discussion indicates, see supra at 14-15, Sandin's holding turned on a comparison of the prisoner's confinement to administrative segregation: "[A]t the time of Conner's punishment, disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody." Id. Indeed, the Court noted that Hawaii inmates in administrative segregation receive only "one extra phone call and one extra visiting privilege" than inmates in disciplinary segregation. Id. at 476 n.2. The question the district court should have asked, therefore, is this: Were the differences between the conditions of Hatch's segregative confinement and the conditions routinely imposed on Lorton inmates serving similar sentences, including the usual conditions of administrative segregation, sufficiently greater than "one extra phone call and one extra visiting privilege" so as to constitute an "atypical and significant hardship"?


[61] We thus reverse the district court's grant of summary judgment for the District and remand for further fact-finding consistent with this opinion. In evaluating whether Hatch had a liberty interest in avoiding adjustment segregation, the district court should begin by determining the usual conditions of administrative segregation at Lorton. It should treat those conditions as the baseline for evaluating whether Hatch's two-week adjustment segregation was an "atypical and significant hardship." If using that comparison the court finds that his adjustment segregation was "atypical and significant," it should then take into account the possibility that Hatch will be transferred to other prisons. The district court should redefine the comparative baseline by reference to more restrictive conditions at other prisons if it finds that it is likely both that inmates serving sentences similar to Hatch's will actually be transferred to such prisons and that once transferred they will actually face such conditions. The term "likely," as we use it here, means not that the combination of events must be more probable than not, but that there must be a substantial chance of its occurrence.


[62] As to whether Hatch had a liberty interest in avoiding administrative segregation, the fact that routine conditions of administrative segregation form the proper baseline under Sandin does not foreclose Hatch's claim for two reasons. First, Hatch alleges that although twenty-nine weeks of his segregation were nominally "administrative," he actually spent his entire confinement in conditions of adjustment segregation. As long as this allegation remains undisputed, the district court should undertake the same comparative analysis outlined above. Second, even if the conditions Hatch faced were no more restrictive than ordinary conditions of administrative segregation, the district court should determine whether its duration-twenty-nine weeks, including twenty weeks after the Housing Board found that he no longer posed a management problem-was "atypical" compared to the length of administrative segregation routinely imposed on similarly situated prisoners. See Brooks, 112 F.3d at 49 ("[T]he mere fact that [state] prison regulations permit extended administrative segregation does not tell how frequently or for what durations such segregation is [actually] imposed.").


[63] So ordered.

Franklin v. District of Colombia, 163 F.3d 625 (D.C.Cir. 12/29/1998)

[1] U.S. Court of Appeals, District of Columbia Circuit


[2] No. 97-7162


[3] 163 F.3d 625, 1998


[4] December 29, 1998


[5] ROBERT FRANKLIN, ET AL., APPELLEES
v.
DISTRICT OF COLUMBIA, APPELLANT


[6] Appeal from the United States District Court for the District of Columbia (94cv00511)


[7] James C. McKay, Jr., Assistant Corporation Counsel, argued the cause for appellant. With him on the briefs were John M. Ferren, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel. Kenneth W. Brothers argued the cause for appellees. With him on the brief was Jonathan M. Smith. John J. Rosenthal entered an appearance.


[8] Before: Silberman, Henderson, and Randolph, Circuit Judges.


[9] The opinion of the court was delivered by: Circuit Judge Randolph.


[10] Argued September 9, 1998


[11] Randolph, Circuit Judge: Spanish-speaking prisoners incarcerated in the District of Columbia's eight correctional institutions brought a class action claiming violations of the First, Fifth, and Eighth Amendments to the Constitution, federal statutes (42 U.S.C. § 2000bb; 42 U.S.C. § 2000(d)), and local law. They alleged that some class members were deficient in the English language and that the District had failed to provide qualified interpreters to these inmates when they appeared at parole and disciplinary hearings and when they sought medical care. The district court ruled in favor of the prisoners on their Fifth and Eighth Amendment claims, and the District brought this appeal.


[12] I.


[13] There are 9,000 inmates in the prisons of the District of Columbia. The inmates speak dozens of languages; members of the prison staff are fluent in a total of forty-seven languages. Of the 188 Spanish-speaking prisoners within the plaintiff class,*fn1 150 had only a limited proficiency in English. To meet the needs of these and other prisoners who had difficulty communicating or understanding English, the District hired Laura Colon in November 1991 as the "Limited English-Proficient Program" coordinator. Under her aegis, the Program provided comprehensive orientation, diagnostic, mental health, vocational and language training for "Limited English-Proficient" prisoners. At the time of trial, the District required such prisoners to attend "English as a Second Language" classes and offered twenty-seven other programs either conducted in Spanish or specifically tailored for the plaintiff class. The prison system also employed seventy-two Spanish-speaking employees, including two case managers, two psychologists, and one psychiatrist. If bilingual staff or interpreters were unavailable, District officials could use the AT&T;"Language Line," a service providing certified translators in 140 languages.


[14] After a bench trial, the district court-on April 16, 1997-dismissed most of the prisoners' claims but held that the District was violating the Fifth and Eighth Amendments. Three months later, on July 8, 1997, the court issued a sixteen-page injunctive order mandating sweeping changes in the way the District operates its prisons. The District then filed a motion to alter or amend the judgment and for a new trial. The court denied the motion and this appeal followed.


[15] II.


[16] The first question concerns our appellate jurisdiction. On April 17, 1997, one day after the district court rendered its decision on liability, the clerk of the court entered the judgment. The prisoners think this opened the thirty-day window for the District to file a notice of appeal, see Fed. R. App. P. 4(a)(1). The District missed the deadline and, so the prisoners claim, we cannot hear the appeal insofar as it attacks the April decision finding the District in violation of the Fifth and Eighth Amendments.


[17] Our appellate jurisdiction extends to "final decisions" of district courts. 28 U.S.C. § 1291. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945). In damage and injunction actions, a final judgment in a plaintiff's favor declares not only liability but also the consequences of liability-what, if anything, the defendants must do as a result. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 742 (1976); see also Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 677 (D.C. Cir. 1996).


[18] The order entered on April 17 established the District's liability, but it granted no relief, it imposed no obligations on the District, it did not say, as final decisions in such cases must, "who is entitled to what from whom." Horn v. Trans-con Lines, Inc., 898 F.2d 589, 591 (7th Cir. 1990). It therefore was not a final judgment subject to appeal. An order like the one entered in April, "adjudging liability but leaving the quantum of relief still to be determined has been a classic example of non-finality and non-appealability from the time of Chief Justice Marshall to our own." Taylor v. Board of Educ., 288 F.2d 600, 602 (2d Cir. 1961) (Friendly, J.).


[19] The antitrust case of Brown Shoe Co. v. United States, 370 U.S. 294 (1962), does not, as the prisoners suppose, alter this analysis. The district court in Brown Shoe disposed of the entire complaint, passed on every prayer for relief, ordered full divestiture, and permanently enjoined the defendants from acquiring any interest in each other. See Brown Shoe Co., 370 U.S. at 308. The Supreme Court said: "The single provision of that judgment by which its finality may be questioned is the one requiring appellant to propose in the immediate future a plan for carrying into effect the court's order of divestiture." Id. That lone provision did not render the order non-final, the Court held, because the judgment had decided the consequences of liability-namely, full divestiture. See id. Here, by contrast, the April judgment did not address the consequences of the District's liability. In this respect it resembled the order in Liberty Mutual Insurance Co., an employment discrimination case in which plaintiffs received a favorable ruling on the issue of liability, but received none of the relief expressly sought in their complaint. See 424 U.S. at 742. "They requested an injunction, but did not get one; they requested damages, but were not awarded any; they requested attorneys' fees, but received none." Id. Because-as in this case-the district court had not yet finally disposed of any of plaintiffs' prayers for relief, the Supreme Court held that the district court's order was not a final decision. See id.


[20] The general rule is that a party is entitled to a single appeal, to be deferred until final Disposition of the case. See McLish v. Roff, 141 U.S. 661, 665-66 (1891); see also Catlin, 324 U.S. at 234; Luxton v. North River Bridge Co., 147 U.S. 337, 341 (1893); Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994). To hold that defendants in injunction actions must immediately appeal orders finding only that they are liable would further erode the long-standing policy against piecemeal litigation. The final judgment rule is already riddled with exceptions: orders granting or denying preliminary injunctions may be taken up immediately; some collateral orders may be appealed; rulings on controlling issues of law may be certified for appeal; orders adjudicating the claims of fewer than all the parties may be appealable, if the district court acts pursuant to Rule 54(b), Fed. R. Civ. P.; and Congress has given the Supreme Court rulemaking authority to allow other interlocutory appeals, 28 U.S.C. § 1292(e). There are good reasons why none of the recognized "exceptions" fits the district court's April order. As here, courts often resolve questions of liability first and questions of relief later. To allow an initial appeal challenging the finding of liability followed by a second appeal challenging the relief would frequently transform one appellate case into two. Delays at the trial level would become common, as district courts awaited appellate decisions on liability. For their part, the courts of appeals would often need to master the same record twice, and render two opinions instead of one. See 15A Charles Alan Wright et al., Federal Practice and Procedure § 3907 (1992). Furthermore, if defendants had to wait until the remedy came down, they might decide not to appeal despite the earlier decisions holding them liable. The relief ordered may turn out to be nominal. The parties may settle. In these events, and others, forcing an appeal at the liability stage without waiting for the consequences of liability to become final would lead to unnecessary appellate litigation. For all these reasons, the April 17 order was not an appealable final decision of the district court.


[21] Still, the prisoners insist that the April order must be considered final and appealable because the district court issued it separately and the clerk of the court entered it on the docket, as Rules 58 and 79(a) of the Federal Rules of Civil Procedure required. While a properly entered separate judgment is an indicia of finality, see Diamond v. McKenzie, 770 F.2d 225, 229 n.9 (D.C. Cir. 1985), it is not conclusive. The district court in Liberty Mutual Insurance Co. described its liability order as a "final judgment," 424 U.S. at 741, yet the Supreme Court treated it as a non-appealable interlocutory order. When appellate jurisdiction is at stake, what matters is the appellate court's assessment of finality, not the district court's or the clerk's. A non-final order cannot be appealed even if the district court designates it a "final judgment" and the clerk of the court enters it as such on the civil docket.


[22] For purposes of our appellate jurisdiction under 28 U.S.C. § 1291, the final decision of the district court came down on July 8, 1997, not April 17. Only in the July 8 order did the district court set forth the terms of the injunction and thereby instruct the District what steps to take. Within ten business days of July 8, the District moved to alter or amend the judgment or for a new trial. See Fed. R. Civ. P. 52(b), 59. This had the effect of tolling the time for filing a notice of appeal. See Fed. R. App. P. 4(a)(4); Derrington-Bey v. District of Columbia Dep't of Corrections, 39 F.3d 1224, 1225 (D.C. Cir. 1994); United States v. Haynes, 158 F.3d 1327, 1329-31 (D.C. Cir. 1998). On August 27, 1997, the district court denied the motion. Because the District noted its appeal 29 days later (on September 25), within the 30 days provided in Rule 4(a)(1), Fed. R. App. P., its appeal was timely and we have appellate jurisdiction to review not only the injunction but also the judgment finding the District liable for violating the Constitution.*fn2 When "an appeal is taken from a truly final judgment that ends the litigation, earlier rulings generally can be reviewed." 15A Wright et al., supra, § 3905.1.


[23] The District's July 22 motion properly sought relief from the July 8 injunctive order. Rule 7(b)(1) requires that motions state with particularity the grounds therefore and the relief sought. See Fed. R. Civ. P. 7(b)(1). The prisoners argue that the District's July 22 motion for a new trial or to amend the judgment "was devoted solely to attacking the April 16 judgment" and, for this reason, could not have tolled the time for noting an appeal from the July 8 injunction order. There are three mistakes embodied in the prisoners' argument. First, they are wrong that the District's motion attacking the court's liability decision did not attack the injunction. The motion necessarily had that effect. Without liability there would be no basis for injunctive relief. Second, the prisoners neglect to mention that the District's motion expressly challenged the terms of the July 8 order. See July 22 Motion at 1, 2. The motion took issue with specific findings contained only in the July 8 order. The District's 30-page memorandum, filed with its motion, amplified the District's concerns about the nature of the injunction. The motions in Riley v. Northwestern Bell Tel. Co., 1 F.3d 725 (8th Cir. 1993); and Martinez v. Trainor, 556 F.2d 818 (7th Cir. 1977), which the prisoners cite, were of a different sort. In both of those cases, appellants filed curt, one paragraph motions, which clearly failed to comply with Rule 7(b)(1). Third, even if the District's motion had attacked only the April liability finding, its motion still would have tolled the time for appealing from the final judgment-the judgment, that is, rendered on July 8. Under Rule 59(b) and (e), Fed. R. Civ. P., motions for new trials and motions to alter or amend the judgment "shall be filed no later than 10 days after entry of the judgment." The term "judgment" means an order or a decree "from which an appeal lies." Fed. R. Civ. P. 54(a); see Derrington-Bey, 39 F.3d at 1226. The District properly filed its Rule 59 motion after the final judgment came down. And when that judgment came down on July 8, the District could attack-indeed, could limit its attack-to the earlier non-final ruling of liability on which the injunction rested. A motion so limited, like a Rule 59 motion directed only at the nature of the relief, tolls the time for noting an appeal from the final judgment. See Derrington-Bey, 39 F.3d at 1225-26.


[24] III.


[25] On the merits,*fn3 we will start with the portion of the district court's decision adjudging the District liable for violating the prisoners' Fifth Amendment due process rights. These violations are said to occur at hearings in which the District fails to provide official interpreters to Spanish-speaking prisoners who have limited ability in English.


[26] The Fifth Amendment states that no "person shall ... be deprived of life, liberty, or property, without due process of law...." When neither life nor property is involved, courts-speaking in a sort of shorthand-talk of the need to find a "liberty interest" before considering what process is due under the Fifth Amendment (or the Fourteenth Amendment). See, e.g., Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974); see also Sandin v. Conner, 515 U.S. 472, 474 (1995). This is another way of saying that unless an individual is threatened with losing "liberty" within the Fifth Amendment's meaning, it is of no constitutional moment whether the individual will receive "due process of law."


[27] Prisoners, of course, have already lost liberty by virtue of their confinement. For the Due Process Clause to govern state action against an inmate, more than the usual constraints of prison itself must be in the offing. The Supreme Court put it this way: for a liberty interest to exist, the state must be subjecting the prisoner to a "restraint" that "imposes atypical and significant hardship" as compared with "the ordinary incidents of prison life." Sandin, 515 U.S. at 484. Only then may it be said that a prisoner is threatened with a loss of "liberty" within the Constitution's meaning. Sandin discarded the method of analysis employed in Hewitt v. Helms, 459 U.S. 460 (1983), which had made the existence of a prisoner's liberty interest-at least with respect to matters concerning the conditions of confinement and the management of the prison-turn on whether statutes and regulations concerning the state's action contained mandatory or discretionary directives. Our opinion in Ellis v. District of Columbia, 84 F.3d 1413, 1417-20 (D.C. Cir. 1996), analyzed Sandin and related Supreme Court decisions, not with regard to prison management, but in the context of parole eligibility determinations. Ellis held that local Board of Parole regulations governing parole determinations for District prisoners did not create a liberty interest. See 84 F.3d at 1420. Our earlier decision in Price v. Barry, 53 F.3d 369 (D.C. Cir. 1995), held the same with respect to the local statute regarding parole. And the Supreme Court held in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9-11 (1979), that a liberty interest in parole cannot be derived from the Constitution itself.


[28] Without taking account of Ellis or Price, or of Greenholtz, the district court determined that although plaintiffs "may have no liberty interest in parole per se ... that is not to say that inmates can be deprived of a fair hearing once the District of Columbia determines that a hearing will be held." And to the district court, a "fair hearing" meant the prisoners must have official interpreters to help them understand the proceedings. On this reasoning the court ordered the District's Board of Parole to coordinate with the Department of Corrections, and implement a procedure for providing official interpreters at parole hearings for all Spanish-speaking prisoners who are deficient in English.


[29] Although the reasoning in the court's Conclusions of law dealt only with parole eligibility hearings, the injunction issued several months later went considerably further. In a sweeping decree, the court ordered the District to provide interpreters at "all stages of the disciplinary, classification, housing, adjustment and parole hearing process," and to "implement a procedure to ensure" translation into Spanish of "documents ... related to due process hearings...." So far as we can tell, the "adjustment" "hearing process" refers to proceedings to decide whether discipline shall be imposed on an inmate. See D.C. Mun. Regs. tit. 28, § 508; Sandin, 515 U.S. at 475. Exactly what the court had in mind by "classification" hearings is less clear. In its legal analysis of the prisoners' due process claims, the court does not even mention "classification" hearings. The court's factual findings discuss only a "preparole classification hearing." The injunction's coverage of "housing" decisions-which we take to mean judgments by prison officials about where a prisoner will be confined-also does not seem to flow from the court's legal analysis. The court's Conclusions of law nowhere even mention the subject of prison housing.


[30] As best we can determine, the court included matters other than parole eligibility in its decree solely on the basis of its reasoning-quoted above-that regardless whether a prisoner has a liberty interest, if the District decides to have a hearing dealing with these subjects the Due Process Clause governs the proceedings. We will discuss in a moment why this reasoning is mistaken, but first we must address questions of mootness and standing.


[31] A.


[32] Before we heard argument, a new law took effect, transferring to the United States Parole Commission "the jurisdiction and authority of the Board of Parole of the District of Columbia to grant and deny parole, and to impose conditions upon an order of parole, in the case of any imprisoned felon who is eligible for parole or reparole under the District of Columbia Code." National Capital Revitalization and Self-Government Improvement Act of 1997, Pub. L. No. 105-33, § 11231(a)(1), 111 Stat. 712, 745 (effective not later than one year after date of enactment, Aug. 5, 1997) ("Revitalization Act").


[33] Why neither of the parties, and why especially the District of Columbia never alerted us to this statute is beyond comprehension. The Revitalization Act ends this case so far as parole hearings for felons are concerned. It was the District, through its Board of Parole, that was allegedly depriving inmates of due process, and it was the District's responsibility, through the Board of Parole, to implement the court's directive that "interpreters and translated documents are provided at parole hearings." But according to the terms of the Revitalization Act, after August 1998 the Board of Parole no longer had jurisdiction to conduct parole eligibility hearings for the District's felon inmates. The United States Parole Commission, which the Revitalization Act directed to start performing this function, was not a party to this case; there was no evidence about how it conducts proceedings; there was no finding that it violates due process; it is not subject to the injunction; and for all we know, its procedural guidelines differ from the Board of Parole's. In short, § 11231(a)(1) of the National Capital Revitalization and Self-Government Improvement Act renders moot plaintiffs' claims concerning parole hearings before the local Board of Parole, at least with respect to class members imprisoned for felonies. See, e.g., United States v. Munsingwear, Inc., 340 U.S. 36 (1950).


[34] However, given the breadth of the certified class-"all inmates of Hispanic origin who are now or who will later be incarcerated in the D.C. Department of Corrections institutions," see supra note 1-it is possible that some members of this class are or will be imprisoned for misdemeanors, that is, for committing offenses punishable by imprisonment for one year or less. See United States v. Budd, 23 F.3d 442, 447 (D.C. Cir. 1994); Stephens v. United States, 271 F.2d 832, 833 n.1 (D.C. Cir. 1959). This possibility raises two questions, one dealing with mootness and the other with standing.


[35] As to mootness, § 11231(a)(3) of the Revitalization Act directs the Superior Court of the District of Columbia-not the United States Parole Commission-to assume the "jurisdiction and authority of the Board of Parole of the District of Columbia to grant, deny, and revoke parole, and to impose and modify conditions of parole, with respect to misdemeanants." It is not, however, apparent when this transfer of jurisdiction is to occur. The Revitalization Act directs the Superior Court to take over on the date when the District of Columbia Offender Supervision, Defender, and Courts Services Agency ("Agency") "is established under section 11233." Revitalization Act § 11231(a)(3). Section 11233 states that this Agency "is established within the executive branch of the Federal Government" and that it "shall assume[ ] its duties not less than one year or more than three years after the enactment of this Act" (August 5, 1997). Another provision of the Revitalization Act abolishes the Board of Parole on the date the Agency "is established under section 11233." Revitalization Act § 11231(b). Both events-transfer to the Superior Court and abolition of the Board of Parole-hold the potential for mooting claims concerning parole hearings before the Board of Parole for members of the class who are misdemeanants. But, it may be that neither event has yet occurred.


[36] The second question is, as we said, one of standing. In Lewis v. Casey, 518 U.S. 343, 357 (1996), the Court held that in order to establish standing, "named plaintiffs" in a class action claiming inadequacies in a prison system must prove that they have been personally injured; beyond the pleading stage, it is not enough that some other, unidentified member of the class suffered harm from the inadequacy. As this case now stands, it is not enough that some unidentified class members suffered or will suffer injuries stemming from the manner in which the Board of Parole conducts parole hearings. If the Board of Parole is still functioning, its jurisdiction is restricted to parole for misdemeanants. In order for plaintiffs to have constitutional standing to challenge how those hearings are conducted, there must be proof that a named member of the class: (1) was imprisoned for a misdemeanor; (2) could not speak or understand English; (3) appeared before the Board of Parole seeking early release on parole; and (4) suffered harm because of the Board's failure to provide an interpreter. The district court made no findings with respect to whether plaintiffs had established these essential elements of standing.*fn4 We have therefore reviewed the trial record. See Humane Society v. Babbitt, 46 F.3d 93, 96 (D.C. Cir. 1995). Five inmates gave live testimony. Franklin, 960 F. Supp. at 399. Of these, three were serving time for committing felonies (Lazo, Bonilla, Nunez); the remaining two (Sandoval, Mejia) offered no testimony about parole hearings.*fn5 The district court also considered the depositions of ten other inmates who were members of the class. Id. at 399-400 n.5. Of these, eight were incarcerated for felonies (Ramos, Artola, Benavides, Grande, Maldanado, Lugo, Suazo, Vilche); one (Gaviria) said nothing about parole; and the remaining inmate (Redman) reads and writes both English and Spanish and serves as a librarian in the prison law library.*fn6 Under Lewis, then, plaintiffs have not established actual injury. See 518 U.S. at 358 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). They failed to prove that a named member of the class was a misdemeanant who went before the Board of Parole and did not understand the proceedings because of lack of proficiency in English.


[37] With respect to parole, therefore, the court's judgment must be vacated, for mootness with respect to felons seeking parole, and for lack of standing with respect to misdemeanants seeking parole.


[38] B.


[39] As to the remaining portion of the judgment dealing with due process and hearings, we do not take issue with the proposition that when liberty interests are at stake, the Due Process Clause gives prisoners certain procedural rights, including the right to obtain an understanding of the proceedings. See Wolff, 418 U.S. at 570; Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1280-83 (1975). But are liberty interests at stake in housing determinations, in classification hearings, and in disciplinary proceedings? The district court never directly addressed the subject. If it had, the court would have learned from Sandin that, at least with respect to discipline, the answer depends on the nature of the discipline to which the prisoner may be subjected, and the sentence the prisoner is serving. See 515 U.S. at 485-87. For instance, the 30-day disciplinary segregation imposed on prisoner Conner, although "punitive," did not "present a dramatic departure from the basic conditions" of his particular sentence, and hence did not confer a liberty interest entitling him to the "procedural protections set forth in Wolff [, 418 U.S. at 566]." 515 U.S. at 485, 487. It follows from Sandin that treating all disciplinary hearings alike, as the district court did here, is improper. To repeat, whether a prisoner's "liberty" is threatened-that is, whether the Due Process Clause applies-depends on the discipline involved and nature of the prisoner's term of incarceration.


[40] As we have said, the district court seemed to think that although the Constitution did not necessarily require the District to hold disciplinary hearings, if the District does so, the Due Process Clause governs the proceedings. This is the equivalent of saying that District rules, regulations and guidelines, which contemplate hearings, create a due process liberty interest. Sandin firmly rejected that methodology. See 515 U.S. at 480-84; see also Ellis, 84 F.3d at 1417-18. After Sandin, there must be a prisoner- and discipline-specific inquiry. Yet nowhere in the district court's legal analysis or in its factual findings is there any indication that the court considered what sentences the plaintiffs were serving or what discipline they were facing. The court therefore could not have compared the severity of the disciplinary sanctions to which these plaintiffs were subjected with the "ordinary incidents" of any particular plaintiff's confinement. Sandin, 515 U.S. at 484. In fact, a reading of the district court's liability opinion reveals not a single incident of a due process violation, let alone "widespread" violations warranting the sort of "systemwide relief" the court ordered. Lewis, 518 U.S. at 359.*fn7 Because the court's injunction required official interpreters and translations to be provided to all English deficient Spanish-speaking prisoners at all disciplinary and adjustment board hearings, it cannot stand.


[41] Much of what we have just written applies equally to the other nonparole hearings encompassed within the court's injunction. Housing determinations and classification decisions*fn8 do not give rise to liberty interests merely because the District has afforded inmates some kind of hearing. Decisions about where a prisoner should be confined, at what level of custody*fn9 (maximum, close, medium, minimum, or community) he should be classified, when he should be transferred and so forth are commonplace judgments in the "day-to-day management of prisons." Sandin, 515 U.S. at 482. Unless the prisoner is subjected to some extraordinary treatment, such as transfer to a mental hospital, see Vitek v. Jones, 445 U.S. 480 (1980), the effect of those judgments on prisoners-that is, the restriction on their liberty-is the ordinary consequence of confinement for committing a crime. The district court did not, and on this record, could not determine that Spanish-speaking prisoners are routinely subjected to greater restraints than other prisoners as a result of housing or classification proceedings. Indeed, the court identified no Spanish-speaking prisoner who even arguably could claim that he had, under the Sandin test, been deprived of his liberty as a result of such proceedings. No legal reasoning backs up the district court's order that the District must provide all Spanish-speaking prisoners who do not understand English with an official interpreter at all stages of the housing and classification "process." And so we also must set aside this portion of the court's injunction.


[42] It is worth repeating that broad decrees rendered in the name of the Due Process Clause, decrees mandating what must occur no matter what the circumstances, represent the sort of judicial legislating we have rejected in the past. See Ellis, 84 F.3d at 1424. If the district court detected a due process violation in a particular hearing or hearings, the court should have identified the proceeding and provided the District with an opportunity to rectify the deficiency. See Lewis, 518 U.S. at 356, 362-63; see also Inmates of Occoquan v. Barry, 844 F.2d 828, 843 (D.C. Cir. 1988). The District already has a policy in place to provide interpreters at housing, adjustment and classification hearings; if it follows the policy it is hard to see how there ever could be a due process infraction of the sort the district court identified. See Ellis, 84 F.3d at 1424. The District also possesses other means likely sufficient to prevent a denial of due process in a particular hearing. Just as "jailhouse-lawyers" can provide constitutionally-sufficient access to the courts, see Lewis, 518 U.S. at 360 n.7, bilingual lawyers, bilingual parole board members, and bilingual housing and adjustment board members (there was one) can translate for Spanish-speaking prisoners so that they understand the proceedings. See supra note 7. That is in fact what often happened in the District's prisons when official interpreters were not available. At any rate, only if prison officials had abdicated their constitutional responsibilities could the kind of sweeping injunctive relief ordered by the district court be considered. See Inmates of Occoquan, 844 F.2d at 842. The moment has not arrived.


[43] IV.


[44] The district court also ruled that the District had inflicted cruel and unusual punishment on the plaintiff class by failing to provide them with interpreters when they sought medical care.


[45] To establish a violation of the Eighth Amendment's cruel and unusual punishments clause, the prisoners had to prove "deliberate indifference" on the part of the prison authorities. See Scott v. District of Columbia, 139 F.3d 940, 942 (D.C. Cir. 1998) (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). That is, they had to show that the officials were "knowingly and unreasonably disregarding an objectively intolerable risk of harm" to the prisoners' health or safety. See id. at 943 (quoting Farmer v. Brennan, 511 U.S. 825, 846 (1994)). The officials had to be "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and ... must also draw the inference." See id. (quoting Farmer, 511 U.S. at 837).


[46] In a memorandum setting forth the procedures for obtaining interpreters for Limited English-Proficient inmates, the District stated that it was "essential" that such inmates receive interpreter assistance during medical consultations.


[47] In order to provide prompt and reasonable access to interpreters, the District designated a bilingual coordinator for each facility, compiled a bilingual staff roster, and required that the roster be widely disseminated to the prison staff.


[48] The district court seemed to think that the District's failure to implement fully its policy concerning interpreters amounted to "deliberate indifference." But we have said before that "it is hard to see how imperfect enforcement of a ... policy can, alone, satisfy Helling's subjective element. That the District even had such a policy militates against a finding of deliberate indifference." Scott, 139 F.3d at 944. For another thing, the prisoners here never established the requisite subjective state of mind for deliberate indifference. There was no proof that senior policymakers or other District officials intentionally deprived prisoners of access to medical care, see Estelle v. Gamble, 429 U.S. 97, 105 (1976), or willfully violated their duty of care, see Murphy v. United States, 653 F.2d 637, 644 (D.C. Cir. 1981), or that any particular member of the class suffered serious harm from inadequate medical care because of the prisoner's inability to communicate in English. At oral argument, when asked which District official displayed deliberate indifference to members of the plaintiff class, prisoners' counsel named Laura Colon.*fn10 There is no legal basis for treating a program coordinator like Colon as the kind of senior policymaker whose state of mind can be taken as the District's. See Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997). And the factual basis for the prisoners' accusation-that Colon refused to distribute some signs and pamphlets written in Spanish-borders on the frivolous. A tireless advocate on behalf of the prisoners, Colon led efforts to expand the resources the District made available to Spanish-speaking inmates.


[49] Nor did the evidence establish that the District had acted with the "obduracy" and "wantonness" that mark deliberate indifference. See Scott, 139 F.3d at 944 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). The District operated twenty-seven different non-medical programs to assist Spanish-speaking inmates. It required Limited English-Proficient prisoners to attend "English as a Second Langauge" classes six hours per day, five days per week. When deficits depleted the District's budget, the District shielded the Limited English-Proficient Program and the two bilingual case managers from cutbacks. Shortly before trial, the District compiled a list of all Hispanic inmates, revised its master roster of bilingual employees, trained bilingual coordinators, appointed health and mental health service coordinators, designed and administered the language assessment test, and color coded medical charts regarding Hispanic inmates' language proficiency. Such efforts-stretching over the course of years-do not resemble cruel and unusual punishment.*fn11


[50] The court's finding of Eighth Amendment violations-despite this evidence of the District's good faith-is flawed in still other respects. The court said the District lacked adequate bilingual staff. Yet the bilingual staffing in the District's prisons exceeded that of comparable prisons. The court found the District's resources for Spanish-speaking inmates to be "meager" and "deficient." Yet the court itself determined that "when compared to the percentage of Hispanics in the prison population, the [District] apportions a greater pro rata percentage of its resources ... for LEP [Limited English-Proficient] Hispanic inmates than it does for other inmates." The court relied heavily on the testimony of non-medical staff. Yet the court essentially ignored the District's non-medical programs evincing a lack of indifference.


[51] Because the prisoners failed to establish deliberate indifference, we reverse the district court's decision insofar as it held that the Eighth Amendment compelled the District to provide interpreters whenever members of the plaintiff class seek medical care.


[52] V.


[53] In a few lines of its liability opinion, the district court ruled that the District had violated the "prisoners' right to medical confidentiality." The court thought it "unjustified" for the District not to employ medical personnel who could translate because, without them, Spanish-speaking prisoners would have to disclose their medical conditions to correctional officials or other inmates who could interpret for them. To enforce this ruling, the court ordered, in part, the District to hire bilingual mental health care providers, to furnish bilingual medical and dental health care providers or translations by a bilingual member of the health care staff "certified as fluent in the Spanish language," and not to use the AT&T;Language Line absent a prisoner's knowing and voluntary waiver.


[54] The district court presumed that prisoners possess a limited constitutional right to medical confidentiality, a "right to privacy" that may not be infringed without some "valid penological justification." Exactly where in the Constitution this right is located the court did not say.*fn12 One place might be the Fourth Amendment. But the Supreme Court has held that the expectation of privacy of those incarcerated is severely diminished, so much so that a "right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order." Hudson v. Palmer, 468 U.S. 517, 527-28 (1984). Besides, we cannot understand how a prisoner's telling another, bilingual prisoner about his symptoms could amount to an unreasonable search or seizure by the District.


[55] Rather than the Fourth Amendment, the district court may have had the Eighth Amendment in mind. The court cited Anderson v. Romero, 72 F.3d 518, 523 (7th Cir. 1995), a case in which the Seventh Circuit could not "find any appellate holding that prisoners have a constitutional right to the confidentiality of their medical records," but stating in dictum that the Eighth Amendment might protect against a state's dissemination of "humiliating but penologically irrelevant details of a prisoner's medical history." Id. Anderson's dictum has nothing to do with this case. Here we have other inmates or correctional staff helping Hispanic prisoners receive medical treatment by translating for them. That is a far cry from "deliberate indifference" to the inmates' health or safety, a necessary element of an Eighth Amendment violation.


[56] When we look beyond the Fourth or Eighth Amendments, we still cannot see how a prisoner's right to medical confidentiality can be derived from the Constitution. The prisoners, in their amended complaint, cited the Due Process Clause of the Fifth Amendment as the basis for this particular claim, although their brief on this subject mentions only the Eighth Amendment. See Appellees' Brief at 24. Focusing on the Fifth Amendment, one might contend that a prisoner retains "liberty" not to disclose his medical condition to correctional employees. For obvious reasons, plaintiffs make no such claim. Prisoners cannot obtain treatment except by revealing their medical history and symptoms to government employees. Indeed, the injunction issued here requires the District to hire more medical employees versed in Spanish and English in order to facilitate the receipt of medical information from these plaintiffs. And so the alleged due process "right" must be reformulated to fit plaintiffs' complaint, and when it is, its lack of foundation is exposed. It is a constitutional violation, according to the plaintiffs, if a Spanish-speaking prisoner has to seek help from a fellow inmate to translate his statements into English for the prison doctor. What plaintiffs actually advocate, therefore, is the creation of a constitutional right for non-English speaking prisoners to disclose their medical condition only to certain government employees. This is an odd formulation: when recognized in the past, the constitutional right of privacy has protected against disclosure to the state.*fn13 See, e.g., Whalen v. Roe, 429 U.S. 589, 599, 602 (1977). Suppose plaintiffs prevailed, suppose members of their class had a due process right to be treated by prison medical personnel who speak their native tongue. Such a constitutional right could hardly be reserved only for Spanish-speaking prisoners. Prisoners who spoke or understood only Arabic, or only Mandarin or Italian or any other of the world's languages would presumably have the same constitutional right when they sought medical treatment. Implementing such a system would inevitably entail considerable disruption and expense, and might well prove to be impossible given the difficulty the District has experienced in recruiting medical staff. Would prison officials have to hire bilingual doctors even if their translating skills could be used for only a handful of prisoners? When the mix of languages among the prisoner population changed from time to time, would the Constitution require adjustments in the prison's medical staffing? Would prison officials have to pass over more qualified physicians in the interest of hiring those who spoke several languages? Would bilingual medical staff have to be maintained around the clock? These and many other questions would draw the federal courts into the day-to-day management of prisons in a way the Supreme Court and our court have strongly set ourselves against. The District has a strong penological interest, indeed it has an obligation, to furnish adequate medical care to those confined under its authority. See Turner v. Safley, 482 U.S. 78, 89 (1987). Hiring more bilingual medical personnel might, or might not, enhance the provision of medical care in the District's prisons. Like all governments, the District has a limited budget; expenditures for one purpose diminish the resources available for others. The District believes that its current combination of bilingual coordinators, medical staff and the AT&T;Langauge Line satisfies its obligations to these prisoners in bridging the language barrier. In a disciplinary hearing in which an illiterate prisoner is threatened with a loss of his constitutional "liberty," the Supreme Court has said that the state fulfills its due process obligation when it allows another inmate or a member of the prison staff to assist the prisoner. Wolff, 418 U.S. at 570. We believe the same is true when the assistance relates to medical treatment rather than proceedings of a legal nature. To put the matter in Sandin's terms, for inmates lacking proficiency in English, having other inmates or correctional employees translate for them when they seek medical care is "one of the ordinary incidents of prison life," 515 U.S. at 484; indeed, outside of prison it is doubtless an ordinary incident of everyday life for non-English speaking persons to receive help from others in order to communicate with their doctors.*fn14 For these reasons, we hold that Spanish-speaking prisoners with limited proficiency in English do not have a privacy right, derived from the Constitution, to force the District to hire bilingual medical personnel so that the prisoners may communicate their medical information only to such employees.


[57] Insofar as the judgment of the district court relates to parole hearings, the judgment is vacated as moot to the extent it concerns felons and vacated for lack of standing to the extent it concerns misdemeanants. The remaining portion of the district court's order of July 8, 1997, is vacated and the court's liability judgment is reversed.


[58] So ordered.



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Opinion Footnotes

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[59] *fn1 The district court certified a class consisting of "all inmates of Hispanic origin who are now or who will later be incarcerated in the D.C. Department of Corrections institutions." Order of Dec. 13, 1995, at 19.


[60] *fn2 The outcome would not change if we viewed the July 8 order as not in compliance with the "separate document" requirement of Federal Rule of Civil Procedure 58. See Pack v. Burns Int'l Sec. Serv., 130 F.3d 1071, 1072 (D.C. Cir. 1997); Haynes, 158 F.3d at 1329-31.


[61] *fn3 The District seeks a new trial on the basis that the district court acted unreasonably and arbitrarily in limiting the District's trial time. Trial courts possess considerable discretion in this area. See, e.g., United States v. Tilghman, 134 F.3d 414, 416 (D.C. Cir. 1998); Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 609 (3d Cir. 1995). Although the court confined the District to fifteen hours of trial time, the prisoners-who carried the burden of proof-labored under the same constraint. Both sides received advance notice of the conditions and both sides received ample opportunity to submit evidence into the record before trial. We could order a new trial if the District suffered a substantial inJustice, Fed. R. Civ. P. 61, but this record will not sustain any such claim.


[62] *fn4 The district court gave only one concrete example of a member of the plaintiff class who was allegedly harmed in the context of parole because of his inability to speak English. Franklin v. District of Columbia, 960 F. Supp. 394, 418-20 (D.D.C. 1997). The individual-José Ramos-apparently had been released by the time of the trial. Id. at 399-400 n.5. His deposition shows that he was imprisoned for committing a felony, not a misdemeanor. In any event his evidence dealt only with a "preparole" proceeding conducted by prison officials at "Modular." Id. at 418. Modular was closed in November 1995, id. at 400 n.10; and the court found that "each institution uses different procedures in determining who will receive translation services." Id. at 420.


[63] *fn5 It is not clear whether these two prisoners were convicted for felonies.


[64] *fn6 It is uncertain whether Gaviria and Redman were felons.


[65] *fn7 In its findings of fact the court discussed adjustment board hearings in which the inmates' attorney, who was fluent in Spanish and English, served as an interpreter for them; and a "preparole classification hearing" in which one inmate acted as an interpreter for another. The court seemed to suggest, although it did not outright say so, that the District violated the Due Process Clause because someone other than an official interpreter acted for these Spanish-speaking prisoners. This Conclusion could be reached only if a liberty interest were at stake, an unwarranted assumption for the reasons we have given in the text. In addition, Wolff indicates that the practices the district court criticized are entirely consistent with due process. The Supreme Court stated that, to comport with due process, the state should allow an "illiterate" prisoner faced with a disciplinary hearing "to seek the aid of a fellow inmate" or "to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff." 418 U.S. at 570.


[66] *fn8 As discussed in the text, housing determinations are judgments by prison officials about where a prisoner will be confined or whether to place a prisoner in protective custody or administrative segregation. See D.C. Mun. Regs. tit. 28, §§ 520, 522. Classification decisions involve judgments by prison officials concerning the custodial, program, treatment, and special needs of individual inmates. See District of Columbia Department of Corrections Case Management Manual at II-A-3.


[67] *fn9 See District of Columbia Department of Corrections Department Order No. 5010.7, at 3 (July 30, 1986).


[68] *fn10 The prisoners also named a case manager but failed to provide specifics.


[69] *fn11 Contrast Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974) (cited in Estelle, 429 U.S. at 104 n.10), in which a doctor chose the "easier and less efficacious treatment" of throwing away the prisoner's ear and stitching the stump and which may be attributable to "deliberate indifference ... rather than an exercise of professional judgment." Or Thomas v. Pate, 493 F.2d 151 (7th Cir. 1974), in which a nurse injected a prisoner with penicillin knowing that the prisoner was allergic and then the doctor refused to treat the prisoner's allergic reaction. Or Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970), a case in which a prison physician refused to administer a prescribed pain killer and performed unsuccessful leg surgery, requiring the prisoner to stand despite a surgeon's contrary instructions.


[70] *fn12 "Courts do not"-should not-"adjudicate generalized claims of unconstitutionality, but rather resolve constitutional questions by applying these settled doctrines to specific constitutional claims asserted under specific constitutional clauses." Association of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1253 (D.C. Cir. 1998).


[71] *fn13 Odd though it may be, one district court summarily endorsed the concept: "Unless the person interpreting for purposes of medical care is bound to maintain the confidentiality of the information being exchanged, the inmate/patient's constitutional privacy right is violated." Clarkson v. Coughlin, 898 F. Supp. 1019, 1049 (S.D.N.Y. 1995). This elevates the evidentiary doctor-patient privilege and the ethical obligations of physicians to a constitutionally-required status. But see Whalen, 429 U.S. at 602.


[72] *fn14 As a general matter, "disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient." Whalen, 429 U.S. at 602.