Parker v. Cook, 642 F.2d 865 (5th Cir. 04/17/1981)

[1] UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT. UNIT B

[2] No. 79-2259

[3] 642 F.2d 865

[4] April 17, 1981

[5] ROBERT PARKER, PLAINTIFF-APPELLEE,
v.
A. F. COOK, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERINTENDENT OF GLADES CORRECTIONAL INSTITUTE ET AL., DEFENDANTS-APPELLANTS.

[6] Appeal from the United States District Court for the Southern District of Florida.

[7] Pamela L. Lutton, Thomas A. Beenck, Bruce Barkett, Asst. Attys. Gen., Dept. of Legal Affairs, Tallahasse, Fla., for defendants-appellants.

[8] Robert Parker, pro se.

[9] Before Kravitch and Frank M. Johnson, Jr., Circuit Judges and Allgood,*fn* District Judge.

[10] Author: Johnson

[11] Plaintiff, an inmate at Glades Correctional Institution in Florida (GCI), was suspected of complicity in a scheme to sell favors to other inmates. After informing him that he was under investigation, prison officials placed him in "administrative segregation." He remained administratively segregated for approximately six weeks, at which time he was transferred to a hospital unit for treatment of a cold and body sores; he was thereafter released to the general prison population. Plaintiff then filed this Section 1983 action seeking damages as well as declaratory and injunctive relief for the alleged deprivations of his Fifth, Eighth, and Fourteenth Amendment rights. In his complaint plaintiff alleged that he was subjected to summary discipline without due process of law when he was placed in administrative confinement without being afforded a hearing on the charges against him, that he was denied access to his attorney through the use of the mail or telephone during his incarceration in administrative confinement, that he was denied adequate medical care during his incarceration in administrative confinement, and that the conditions of his confinement constituted cruel and unusual punishment. After a trial on the merits, the district court held that the procedures used to place plaintiff in administrative confinement violated due process, that the conditions of plaintiff's confinement in administrative segregation constituted cruel and unusual punishment, and that the other contentions had no merit. Although the court granted declaratory relief, it denied plaintiff's claim for damages on the basis of the State officials' qualified immunity from damages.

[12] Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, the State filed a motion to alter judgment. The State urged that the procedures for placing a prisoner in administrative confinement are not subject to due process restrictions and, alternatively, that the court's holding on the due process issue should be limited to procedures at GCI rather than the statewide penal system. The district court adhered to its original decision.

[13] On appeal the State briefed three grounds of error. First, it argued that procedural due process is not required when a prisoner is administratively segregated. Second, the State contended that, if due process is required, its procedures provide sufficient process to comport with constitutional standards. Last, the State maintained that the district court's order should be limited in application to GCI. In oral argument, however, the State explicitly abandoned its first two contentions and argued only that statewide application was inappropriate.

[14] We agree with the State's argument as limited and accordingly reverse that part of the district court's order mandating statewide application. We are unable to limit our discussion to that narrow issue, however, for to explain our holding on the statewide application issue, we must address and examine some of the facts and legal principles applicable to the district court's proper disposition of the now-abandoned issues.

[15] We start with the proposition that the due process clause protects only those liberty interests created by the state.*fn1 Since states rarely if ever explicitly label their creations as "liberty interests," we must look to the substance of the state action to determine whether a liberty interest has been created. And whether this substance is embodied in a constitution, statute, regulation, rule, or practice is of no significance; once a state creates a liberty interest, "(n)o State shall ... deprive any person of (the liberty interest) without due process of law...." U.S. Const., Amend. 14, § 1. Of course, due process is a flexible concept, and exactly what constitutes due process in any given situation depends on the nature of the liberty interest and the surrounding circumstances. E.g., Cafeteria Workers v. McElroy,367 U.S. 886, 895, 81 S. Ct. 1743, 1748, 6 L. Ed. 2d 1230 (1961).

[16] The State of Florida has established a prison system in which to confine those persons who are, in accordance with constitutional procedures, convicted of crimes against the State. These persons, while deprived of their liberty to live in freedom, nevertheless remain under the protection of the Constitution. E. g. Wolff v. McDonnell,418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). "There is no iron curtain drawn between the Constitution and the prisons of this country." Id. at 555-56, 94 S. Ct. at 2974. Moreover, they remain recipients of whatever limited liberty interests the State may choose to grant them. As discussed above, once these liberty interests are created, they are protected against arbitrary deprivation by the due process clause. For example, if a person is convicted of armed robbery in Florida, he or she may be sentenced to prison for a term of years not exceeding life imprisonment, Fla.Stat.Ann. § 812.13 (West); however, this convicted felon may also be granted probation or parole. Id. § 947.16, § 948.01. Nothing in the Constitution requires the State to provide for probation or parole. Greenholtz v. Nebraska Penal Inmates,442 U.S. 1, 7, 99 S. Ct. 2100, 2103, 60 L. Ed. 2d 668 (1979). Assuming that the initial sentence is not violative of the Eighth Amendment or some other constitutional provision, the convicted felon may be lawfully imprisoned for the maximum sentence imposed. Once the State grants parole, however, the State cannot summarily and arbitrarily revoke it. Morrissey v. Brewer,408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). This is so because the convict's interest in parole status has become a liberty interest within the meaning and protection of the Fourteenth Amendment. Hence, due process must be afforded. Similarly, if the State establishes a procedure for granting parole and thereby creates an expectation of parole, due process attaches. Greenholtz v. Nebraska Penal Inmates, supra,442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668. As with all liberty interests, the expectation of parole can be created by statute or regulation, see id., or by practices of the State, see Meachum v. Fano, supra,427 U.S. at 216, 96 S. Ct. at 2534; Mitchell v. Hicks, 614 F.2d 1016, 1019 (5th Cir. 1980); see also Dumschat v. Board of Pardons, 618 F.2d 216 (2d Cir. 1980); Winsett v. McGinnes, 617 F.2d 996 (3d Cir. 1980) (en banc).

[17] By rule or regulation, the State of Florida authorizes at least two types of confinement*fn2 by which prison officials may segregate inmates from the general prison population.*fn3 First, disciplinary confinement is authorized in those cases in which prisoners are found to have violated one of the specified rules of conduct. Fla.Adm.Code Rule 33-3.08. Placing a prisoner in disciplinary confinement clearly affects the prisoner's liberty interest, e. g., Wolff v. McDonnell, supra,418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d, 935, and thus invokes the protections of the due process clause. In recognition of this due process protection, the State affords process to inmates charged with misconduct. In recognition of the magnitude of liberty interests affected when an inmate faces confinement in disciplinary segregation or loss of gain time, the State provides more procedural safeguards than provided when a lesser liberty interest is at stake. Compare Fla.Adm.Code Rules 33-3.08(5)-(14) with Fla.Adm.Code Rule 33-3.08(19).

[18] The second type of segregation authorized in Florida is administrative confinement.*fn4 The applicable regulations concerning administrative confinement specify that it "results in a loss of some privileges which the inmate would have if assigned to general population." Fla.Adm.Code Rule 33-3.08(1)(b). Although the regulations do not specify exactly what the conditions of administrative confinement will be, administrative confinement, with its attendant loss of privileges, appears to be less desirable from the inmate's viewpoint.*fn5 The regulations also list the reasons an inmate may be placed in administrative confinement, thus acknowledging that arbitrary assignments are not authorized*fn6 The reasons for placing an inmate in administrative confinement are as follows:

[19] 1. Awaiting disciplinary action.

[20] 2. For investigation.

[21] 3. For protection....

[22] 4. At the inmate's own request for good and valid reasons.

[23] 5. Pending trial for a crime committed in the Department.

[24] 6. Death Row cases.

[25] 7. Custody risks who cannot be held in the regular inmate population.

[26] 8. Inmates who after disciplinary confinement appear to the Classification Team to be potentially assultive (sic) or disruptive and who still cannot be held in regular inmate population.

[27] Id. 19(e). Often, the decision to place an inmate in administrative confinement requires no more than an examination of a prison file, as in the case of placing a death row inmate in confinement.*fn7 In other cases, however, the decision may be complex and may depend upon the resolution of many factual questions. Examples of the latter type case include those cases involving inmates who are deemed to be custody risks that cannot be held in the regular inmate population or cases involving inmates who after disciplinary confinement appear to be potentially assaultive or disruptive and who cannot reasonably and safely be returned to the regular inmate population. The State of Florida, however, affords all inmates, regardless of the reason for which they are administratively confined, the same procedural safeguards. Basically, these procedures provide written notice to the inmate of the reason for administrative confinement and an opportunity for the inmate to make a statement. No provision is made for the inmate to present evidence in his own behalf.

[28] The district court found that at the time plaintiff was confined in administrative segregation, the conditions of administrative segregation at GCI were almost identical to the conditions of disciplinary confinement. The same fifteen-cell wing was used to house administrative and disciplinary detainees;*fn8 furthermore, when it was necessary to house more than one inmate in each cell, inmates in administrative segregation were often confined in the same cell as inmates in punitive segregation. The only differences between administrative and punitive confinement, which the district court aptly characterized as "minor, if not negligible distinctions," were that administrative confinees had certain tobacco privileges that were denied disciplinary confinees, and administrative confinees could shower twice a week as compared to the once-a-week shower allowed disciplinary detainees.*fn9

[29] Reasoning that the consequences of administrative segregation were virtually identical to the consequences of disciplinary segregation, the district court found that the rule of Wolff v. McDonnell, supra,418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935, which requires due process in prison disciplinary proceedings, applies to inmates placed in administrative segregation in the Florida penal system. Rather than limit its holding to the procedures employed at GCI, the district court rendered a judgment affecting the entire state system. This was necessary, in the court's opinion, because the regulations upon which the officials at GCI relied to administratively segregate inmates were applicable statewide. Apparently, the court reasoned that, if the regulations produced unconstitutional results when implemented at GCI, they would produce unconstitutional results at any other Florida prison. We agree that the regulations produced unconstitutional results at GCI, but, for the reasons detailed below, we feel that the record does not support a judgment affecting the statewide penal system.

[30] As to the conditions at GCI, we think it self-evident that the State of Florida cannot, by merely attaching the label of administrative segregation to its actions, transform what is in substance disciplinary action subject to due process restrictions into administrative action outside the purview of the due process clause. See Wright v. Enomoto,462 F. Supp. 397, 402 (N.D.Cal.1976) (3-judge court) ("When a prisoner is transferred from the general prison population to the grossly more onerous conditions of maximum security, be it for disciplinary or for administrative reasons, there is severe impairment of the residuum of liberty which he retains as a prisoner an impairment which triggers the requirement for due process safeguards."), aff'd434 U.S. 1052, 98 S. Ct. 1223, 55 L. Ed. 2d 756 (1978). Regardless of what the State chooses to call the confinement to which plaintiff was subjected, the fact remains that the State, through regulation if not practice, had granted plaintiff a liberty interest in being free from arbitrary transfers from the general population to disciplinary segregation. In spite of this state-granted liberty interest, plaintiff was removed from the general population and, without being afforded the very process due him by regulation, placed in an environment almost identical to that which the State had, by regulation, reserved for inmates who, after being afforded due process, were found guilty of certain acts of misconduct.*fn10 This does not comport with the constitutional mandate of Wolff v. McDonnell, and we accordingly affirm the district court's judgment insofar as it affects GCI. See generally Taylor v. Clement,433 F. Supp. 585, 587-88 (S.D.N.Y.1977) ("(W)e take it to be axiomatic that prison officials cannot avoid their due process responsibilities simply by relabelling the punishments imposed on prisoners within their charge.")