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Ohio Supermax Placement is Atypical & Significant Hardship; Supreme Court Grants Review

Ohio Supermax Placement is Atypical & Significant Hardship; Supreme Court Grants Review

By Bob Williams

The United States Court of Appeals for the Sixth Circuit has ruled that Ohio state prisoners have a liberty interest under the Sandin atypical & significant hardship" analysis in placement in the state Supermax. The Court, however, reversed the district court's specific modifications of substantive Ohio prison regulat-ions as beyond the power of the federal court.

On January 1, 2001, Charles Austin and 28 other prisoners filed a class action 42 U.S.C. § 1983 suit against Reginald Wilkinson, director of the Ohio Department of Rehabilitation and Correction (ODRC) and 10 other defendants concerning conditions of confinement at the Ohio State Penitentiary (OSP) supermax. The prisoners' claims included Eighth Amendment violations in the areas of inadequate medical and psychiatric care, inadequate outdoor recreation facilities, and harsh restraints, including the use of black box" wrist restraints during non-contact visitation. The Fourteenth Amendment claim concerned due process in the selection and retention of prisoners at OSP under ODRC policy 111-07.
The prisoner class was certified and a bench trial was held in January 2002. The prisoners' Eighth Amendment claims were settled before trial. See: Austin v. Wilkinson, No. 4:0l-CV-71 (N.D. Ohio Apr. 5, 2001) (order approving settlement agreement). After hearing class objections, the final stipulated settlement provided for injunctive relief prohibiting placing certain mentally ill and chronically ill prisoners at OSP. The ODRC must also construct outdoor recreation facilities and eliminate the use of black box" restraints during visitation. The injunction is in effect for two years with an award of $150,000 in attorney fees and $10,000 per year in monitoring fees.

On the eve of trial, the ODRC issued a new 111-07 policy which became the focus of trial. On February 25, 2002, the district court issued its post-trial findings and conclusions finding the new 111-07 lacking in that prisoners do not receive notice of all the evidence relied upon in their classification hearings; they are not allowed to call witnesses; placement criteria gives insufficient notice of the amount of drug possession sufficient to trigger OSP placement; the criteria is unnecessarily vague regarding gang activity that would trigger OSP placement; as final decision maker, the Bureau of Classification was not required to describe the facts and reasoning used in its decision; lack of adequate notice before reclassification hearings; and a lack of notice of what conduct is necessary in order to qualify to leave OSP. See: Austin v. Wilkinson, 189 F.Supp.2d 719 (N.D. Ohio 2002). [For more on the conditions at OSP and the district court's ruling see: PLN, Feb. 2003, P.6.]

On March 26, 2002, the district court issued its injunction for specific relief under 18 U.S.C. § 3626(a)(I)(A) prohibiting further placement of prisoners at OSP until a rewritten and court approved 111-07 was issued. The court ordered specific changes to be made to this policy. The state appealed.
On appeal the Court addressed three issues: 1) Liberty interest and due process under Sandin v. Conner, 115 S.Ct. 2293 (1995); (2) what process is due; and (3) remedial relief under the Prison Litigation Reform Act (PLRA).

Liberty Interest: Sandin mandates that a state creates a liberty interest in avoiding certain prison conditions only where those conditions are an atypical and significant hardship on then[prisoner] in relation to the ordinary incidents of prison life." Reviewing for abuse of discretion, the Court found the district court properly compared conditions at OSP with other segregation units of maximum-security Ohio prisons in determining whether the conditions combined to create a significant and atypical hardship.

On appeal, the ODRC challenged the district court's comparison with other Ohio prisons. Citing Olim v. Wakinekona, 103 S.Ct. 1741 (1983), the ODRC maintained that the prisoners have no constitutional liberty interest in classification. They also maintained that the proper baseline for determining atypicality is conditions at other supermax prisons around the country. While the Third, Fourth, Seventh, Ninth and DC circuits have split on what type of prisons and conditions to use as a baseline for Sandin purposes, none have adopted the novel and restrictive practice of using only other similar prisons across the country. The Supreme Court will no doubt settle this issue on certiorari which was granted on December 10, 2004, and will be reported in an upcoming issue of PLN.

Distinguishing Olim, the Court found Olim dealt with interstate transfer as a common occurrence and suggested the prisoners had no reasonable expectation of serving time within Hawaii's borders. In contrast, Ohio has 44,000 prisoners with only 20-30 transferred out of state and not one to a supermax facility. The Court found an Olim analysis would be limited to comparing conditions at other facilities in which Ohio prisoners were transferred.

Due Process: With a liberty interest established, the Court approved the district court's use of the three-factor due process balancing test of Matthews v. Eldridge, 96 S.Ct. 893 (1976). Factor one is the private interest at stake; two is the risk of erroneous deprivation of this interest through the procedures used and the probable value of any additional procedures; and three is the government interest, including function, fiscal, and administrative burdens.

Of the district court's 15 specific modifications to policy 111-07, 12 concerned classification procedures the Court upheld on appeal. These include proper notice of classification proceedings, opportunity to call witnesses and present documentary evidence where not restricted for security reasons, and a record made of the proceeding, including disclosure of as much confidential information as possible. Also required are administrative appeal procedures including a written classification decision, notice of appeal opportunity, and described method of appeal. The Warden must engage in an independent review and if relying on confidential information not already made known to the prisoner, he must allow the prisoner to respond in writing. There must be a similar process for review by the Bureau of Classification. No class committee member shall partake in the review process.

Under the first Matthews factor the Court found the private interest is substantial since placement in OSP is indefinite with annual reviews, unlike other forms of segregation which either last up to 30 days (punitive) or are reviewed every 30 days (administrative). OSP prisoners are also deprived of all significant human contact, have restricted movement and personal. privileges, and are ineligible for parole while at OSP. These are the atypical & significant hardship" conditions of Sandin which give rise to a liberty interest.

Under the second Matthews factor, the previous system resulted in erroneous and haphazard placement at OSP and thus the risk of error is reduced under the new system. Moreover, the procedures are not unduly burdensome.

The third Matthews factor is satisfied in that while ODRC has an interest in guaranteeing the safety of guards and prisoners, this can accomplished with the easily and swiftly reversible" administrative segregation system.

The Court reversed the three substantive modifications to policy 111-07 which included the criteria for contraband and drug activity, security threat group predicates, and time limits on using past behavior to determine retention at OSP. These changes alter the substantive grounds for placement at OSP, rather than the process used in determining that placement" and thus limit the substantive discretion of ODRC Officials.

At issue in this case was not substantive due process but procedural due process. And since the power of the federal courts to order modifications in state prison policies extends only as far as is necessary to protect federal rights," only the federally mandated process in a substantive inquiry otherwise governed by the state" could be modified.

PLRA: Finally, the PLRA modifications to 18 U.S.C. § 3626 govern prospective relief. § 3626(a), as relied upon by the district court, governs initial relief. The Court rejected as without merit ODRC's claim that the district court failed to make specific findings that the remedial orders are necessary to correct current and ongoing" federal violations. This applies only to the termination of relief under § 3626(b)(3). See: Austin v. Wilkinson, 372 F.3d 346 (6th Cir. 2004), cert. granted sub nom. Wilkinson v. Austin, 125 S.Ct. 686 (2004).

In April, 2005, the Ohio prison system announced plans to move all death prisoners from the prison in Mansfield to the OSP, ostensibly to save money. Counsel for the prisoners in Austin have filed contempt motions before the trial court arguing that such a wholesale transfer of all death sentenced prisoners violates the court's injunction and no substantive predicate exists for the transfer. As this issue of PLN goes to press that motion is pending."

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Related legal case

Austin v. Wilkinson

*361 A.
I agree that the Inmates have shown a protected liberty interest under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and that in applying Sandin we are not required to make an interstate, as opposed to intrastate, comparison. The record shows that inmates assigned to OSP not only are subjected to far more severe conditions of confinement, but they are also disqualified for parole while assigned to OSP. These two factors together permit the conclusion that a liberty interest is implicated under Sandin.

Because assignment to the OSP involves disqualification from parole, it is unnecessary for us to decide whether a prison classification that subjects an inmate to more restrictive conditions of confinement, without more, constitutes a deprivation of a liberty interest. Recent unpublished opinions of the Seventh Circuit hold that it does not, even where assignment to a supermax prison was involved. See Moore v. Litscher, 52 Fed.Appx. 861 (7th Cir.2002) (prisoners do not have a federally protected liberty interest in being housed in a particular facility, and therefore, as a matter of federal constitutional law, prisoner was not entitled to any due process protection before he was moved to supermax facility); Nash v. Litscher, 50 Fed.Appx. 317 (7th Cir.2002) (same). If movement from one level of restrictive confinement to a significantly higher one triggers due process protections, then prison administration could be unduly burdened by the necessity of due process hearings. Courts would then have to struggle with just how much of a change in the severity of confinement triggers due process protection. Fortunately, we do not need to decide the issue. In this case, the decision to assign an inmate to OSP not only imposes extraordinarily strict conditions, but also suspends parole eligibility. While Ohio law does not create a liberty interest in parole, see Ohio Rev.Code § 2967.03; Wagner v. Gilligan, 609 F.2d 866, 867 (6th Cir.1979), a parole eligibility determination can indirectly affect the length of a prisoner's incarceration, and is patently based on factors beyond the consideration of prisoner safety and prison management. See Ohio Admin. Code § 5120:1-1-07 (2004); Layne v. Ohio Adult Parole Auth., 97 Ohio St.3d 456, 780 N.E.2d 548, 555 (2002) (emphasizing that parole board may "consider any circumstances relating to the offense or offenses of conviction, including crimes that did not result in conviction, as well as any other factors [it] deems relevant").

Even though assignment to a very restrictive prison might not by itself amount to a deprivation of a liberty interest, and even though a suspension of parole eligibility by itself may not amount to the deprivation of a property or liberty interest in Ohio, the combination of the two deprivations, in the context of the facts shown in the record of this case, amounts to a deprivation of a protected interest for procedural due process purposes. See Sandin, 515 U.S. at 487, 115 S.Ct. 2293 (finding no protected liberty interest in remaining free from disciplinary segregation, but noting that disciplinary record did not preclude parole); Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir.1997) (finding that stigmatizing consequences of labeling inmate as "sex offender," combined with parole ineligibility for non-completion of mandatory treatment program, triggered due process protections under Sandin). By way of analogy, the Supreme Court found a protected interest in Owen v. City of Independence, 445 U.S. 622, 633 n. 13, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), from the combination of a loss of at-will employment (alone not a property interest under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)) and defamatory statements (alone not a deprivation of a *362 liberty interest under Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976)).

I also agree that the proper framework for evaluating whether the state procedures meet the requirements of procedural due process is the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334-45, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Such an analysis requires that each procedural protection sought for each category of administrative decisionmaking be evaluated independently under the Eldridge factors. We are not required to adopt for any prison-related decision the bundle of procedures required by one or another Supreme Court case dealing with different types of prison decisions. Thus discussion of the Hewitt/Wolff "dichotomy" is problematic. Many deprivations of liberty interests in prison, and certainly the ones in this case, are different in important respects both from the disciplinary rescission of good-time credits in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and from the administrative segregation in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). The sought procedures may also vary. In short, the balance has to be context-specific. Thus whether or not a particular procedure imposed by the district court "tracks Wolff " by itself does not tell us whether it is required by Eldridge. On the other hand, of course, the Supreme Court's analysis with respect to what procedures are required to protect a particular liberty interest do provide guidance where the procedures or the interests are in relevant respects analogous. Thus to the extent, for instance, that Hewitt instructs that additional procedures with respect to "forward-looking" determinations are less likely to increase the accuracy of such decisions (the second Eldridge factor), 459 U.S. at 473-74, 103 S.Ct. 864, that guidance may appropriately be applied--not categorically but as part of the weighing--in other cases involving different procedures and different liberty interests.

I would also qualify the majority's statement that "[i]t is not the nature of the decision which strikes the due process balance; it is the nature of the interests on both sides of that balance." The Eldridge balance involves three factors, two of which can be characterized as "the nature of the interests on both sides." The other, often dispositive factor, however, is the degree to which the desired procedures will increase the accuracy of agency decisionmaking. That determination often does depend on "the nature of the decision" in the sense that some types of decisions will be greatly benefited by certain procedures, while others may not.

Applying the Eldridge analysis, I would uphold all of the procedural requirements imposed by the district court except the requirement that officials limit their placement decision to those matters detailed in the notice to the inmate. [FN1]

FN1. I agree that the substantive requirements must be reversed, for the reasons stated in Part II(C)(2)(a) of the majority opinion.

At the outset, I note that our scope of review is de novo for legal issues such as whether procedural due process requires certain procedures, even though the issue is presented on appeal from the entry of an injunction. See Chao v. Hosp. Staffing Servs., Inc., 270 F.3d 374, 381 (6th Cir.2001) ("A court abuses its discretion when *363 it relies on clearly erroneous findings of fact, applies an inappropriate legal standard, or improperly applies the law, with such legal questions receiving de novo review in the Court of Appeals."), South Cent. Power Co. v. Int'l Bhd. of Elec. Workers, 186 F.3d 733, 737 (6th Cir.1999) ("A district court's decision to grant or deny a permanent injunction is reviewed under several distinct standards. Factual findings are reviewed under the clearly erroneous standard, legal conclusions are reviewed de novo, and the scope of injunctive relief is reviewed for an abuse of discretion."). The scope of equitable relief may be discretionary in some sense, such that review of injunctive orders may sometimes be for abuse of discretion, but precisely speaking a district court does not have discretion to determine whether due process requires a hearing in a particular context. We properly review such a legal issue de novo.

The comprehensive notice requirement imposed by the district court essentially provides inmates with notice of all of the evidence that may be relied on in determining his placement. Significantly, this requirement provides inmates appearing before classification committees with more notice than that received by criminal defendants at trial, where the liberty interests at stake are obviously more substantial. See Fed.R.Crim.P. 16; Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) ("There is no general constitutional right to discovery in a criminal case ... [and] the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded ..."). As the Supreme Court has recognized, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Wolff, 418 U.S. at 556, 94 S.Ct. 2963. In my view, the comprehensive notice requirement extends beyond what due process requires.

In upholding the district court's requirement, the majority relies on Sandin to conclude that the liberty interest in this case is particularly weighty. If anything, however, the opposite inference is warranted. That is, under Sandin, a liberty interest arises from "atypical and significant hardships" not implicit in the original sentence. Typical or less significant hardships thus do not even rise to the level of a protected liberty interest. It is only the atypicality or the extraordinary significance of the hardship that is even enough to raise due process concerns. It follows that a hardship that is only marginally atypical and marginally significant should only be given marginal weight in an Eldridge analysis. It is illogical to say that any interest that meets the Sandin test must be of a weight requiring greater due process protection. On the contrary, a prisoner gains due process protection under Sandin only when the hardship exceeds typical hardship. Because in a sense it is the excess over typical hardship that warrants due process protection, it is logical that it be that excess that is weighed as the private interest in the Eldridge analysis. Since that excess may be very small, the fact that the interest was determined under Sandin may instead imply that the private interest be given a lesser weight than in the case of another type of protected property or liberty interest. In any event, the fact that the liberty interest is determined under a Sandin analysis cannot, without more, lead to the conclusion that the interests will be deemed to weigh particularly heavily.

Secondly, we must evaluate the increase in accuracy that will result from the procedural requirement that the decisionmakers limit their placement decision to the grounds and evidence detailed in the notice *364 given to the inmate. A general finding that erroneous and haphazard placements have occurred in the past is insufficient. Instead, under the second factor of Eldridge, we must evaluate the extent that the particular procedural requirement increases the accuracy of the decisionmaking.

Under the ORDC Officials' new policy 111-07, inmates received written notice explaining the reasons they were referred for a classification hearing. See J.A. at 716, 731. The district court ordered that, not only must ORDC officials provide advance written notice of the reasons for the referral to a hearing, but that they must also provide "written notice of all the grounds believed to justify [placement] and a summary of the evidence that the [officials] will rely upon for the placement." Austin v. Wilkinson, 204 F.Supp.2d 1024, 1026 (N.D.Ohio 2002). The district court added a footnote that appears to preclude consideration of evidence not described in the notice: "If [ORDC Officials] elect to use [a proposed form] to give an inmate notice, they must limit the grounds stated on the form and the evidence generally described on the form, to support placement at OSP." Id. The majority fails to explain, however, how requiring ORDC officials to provide an inmate with such comprehensive notice increases the accuracy of the placement decision for a given inmate. The district court reasoned that
[r]equiring Department officials to give inmates specific notice of all of the grounds for placing and retaining them at OSP would cause minimal hardship. The officials would only need to expend the additional time to write out their reasons for making a specific classification decision. Furthermore, this minimal amount of additional time would increase the Department's efficiency. Accurately summarizing all the grounds supporting an inmate's placement at the OSP would later assist reviewing entities and avoid unnecessary prisoner assignments to the OSP.
Austin v. Wilkinson, 189 F.Supp.2d 719, 746 (N.D.Ohio 2002). The district court's analysis misapprehends the burden that a comprehensive notice requirement imposes on the government. In making such decisions, ORDC Officials rely on a wide range of information. The hardship in expending additional time to write out reasons for making a specific classification decision may indeed be minimal. However, requiring that, prior to even conducting a hearing, ORDC Officials cull through often voluminous records and note every potentially relevant fact--on pain of barring them from considering any information, no matter how relevant, that was inadvertently omitted--is significantly more onerous. Such burdens have not been shown to be outweighed by the improvement in accuracy--assuming there is any--asserted to arise from the comprehensive notice requirement.

Nor is the comprehensive notice requirement necessary to vindicate the interests cited by the district court. Under the procedural process required by the district court, the classification committee is responsible only for making the initial recommendation concerning whether an inmate should be assigned to OSP; both the warden (or the warden's designee) and the Bureau of Classification must agree with the committee's recommendation before an inmate can be placed at OSP. Austin v. Wilkinson, 204 F.Supp.2d 1024, 1026-28 (N.D.Ohio 2002). At each stage in the process, an inmate must be given a written statement explaining the justification for the placement recommendation and the evidence supporting it, as well as an opportunity to respond to the recommendation in writing. This process provides both a written record for review and ample opportunity *365 for inmates to challenge their placement. Accordingly, I would find that the notice required under the new 111-07 is sufficient to satisfy due process in this context.

As to the remaining procedures imposed by the district court, the Government has failed to articulate in any significant manner how they burden the government. On their face the additional procedural requirements appear to increase the accuracy and reliability of the decisionmaking process, and they were arrived at by careful consideration by the district court. The private interest is substantial. I therefore agree that the procedural requirements imposed by the district court, apart from the one discussed above, were properly imposed by the district court.

For the foregoing reasons, I concur in the judgment except to the extent that it upholds the requirement that ORDC Officials provide comprehensive notice to inmates appearing before classification committees.

372 F.3d 346, 2004 Fed.App. 0176P