Austin v. Wilkinson

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 10, 2004
• Docket: 02-3816
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816 ELECTRONIC CITATION: 2004 FED App. 0176P (6th Cir.) File Name: 04a0176p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Todd R. Marti, OFFICE OF THE ATTORNEY FOR THE SIXTH CIRCUIT GENERAL, Columbus, Ohio, for Appellants. Jules Lobel, _________________ Pittsburgh, Pennsylvania, for Appellees. BRIEF: Todd R. Marti, OFFICE OF THE ATTORNEY GENERAL, CHARLES E. AUSTIN et al., X Columbus, Ohio, for Appellants. Jules Lobel, Pittsburgh, Plaintiffs-Appellees, - Pennsylvania, Raymond Vasvari, AMERICAN CIVIL - LIBERTIES UNION OF OHIO FOUNDATION, Cleveland, - Nos. 02-3429/3816 Ohio, Alice Lynd, Nile, Ohio, for Appellees. v. - > MOORE, J., delivered the opinion of the court, in which , FORESTER, D. J., joined. ROGERS, J. (pp. 24-31), REGINALD WILKINSON et al., - Defendants-Appellants. N delivered a separate opinion concurring in part and dissenting in part.

Appeal from the United States District Court _________________ for the Northern District of Ohio at Akron No. 01-00071—James Gwin, District Judge. OPINION _________________ Argued: October 30, 2003 KAREN NELSON MOORE, Circuit Judge. Plaintiffs- Decided and Filed: June 10, 2004 Appellees Charles E. Austin et al.,1 (“Inmates”) all inmates at the Ohio State Penitentiary (“OSP”) in Youngstown, Ohio, Before: MOORE and ROGERS, Circuit Judges; filed this § 1983 suit as a class action against Defendants- FORESTER, Chief District Judge.*

1 The a dditional named plaintiffs are Robert Baksi, Michael Benge, Alonzo L. Bonne r, August Cassano, David E. Clark, James DeJarnette, Roy D. Donald, David Easley, Brian K. Eskridge, Keith Gardner, Roger Lee Hall, Frederick O. Harris, Jr., Daryl Heard, Edward O . Hodge, Orsino Iacovone, Kunta Kenyatta, Stacy Lane, James D. Mitchell, Emanuel B. * Newell, John W. Perotti, Lamar Preston, Jason H. Robb, Kevin B. Roe, The Honorable Karl S. Forester, Chief United States District Judge Richard Siggers, Eric Swofford, Lahray Thompson, Edward A. T illey, for the Eastern District of Kentucky, sitting by designation. and M ark Trawick.

1 Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 3 4 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

Appellants Reginald Wilkinson et al.,2 Ohio Department of facility, thereby making the rest of the general prison Rehabilitation and Correction officials (“ODRC Officials”), population more safe and easier to control. Ohio’s supermax, alleging Eighth Amendment violations as well as procedural which is designated a high-maximum-security prison, was due process claims relating to their placement at the OSP built in response to an April 1993 riot at the Southern Ohio facility, which is a supermaximum, or supermax, facility. A Correctional Facility (“SOCF”). Prior to the construction of class was certified pursuant to Federal Rule of Civil the 504-bed OSP, Ohio’s most secure prison was the SOCF, Procedure 23(b)(2), and the Eighth Amendment claims, a maximum-security prison. Within the SOCF is an even related primarily to medical care and the provision of outdoor more secure cellblock, the J-1 cellblock, which houses twenty recreation, were settled. The due process claims for cells. Before the OSP opened, Ohio did not fill the J-1 cells; declaratory and injunctive relief were then tried to the district instead, it did not have enough maximum-security cells to court, which rendered a judgment for the Inmates and entered house inmates at that security designation. From these facts, the injunctive orders at issue. the district court concluded that the surplus of high- maximum-security cells led to a “because we have built it, On appeal, the ODRC Officials raise two claims of error: they will come” mentality, with the surplus of maximum- that the district court applied the wrong legal standards in security inmates leading to placement of inmates at OSP who finding a constitutional violation, and that even if a violation did not meet the high-maximum-security requirements, was correctly found, the remedial orders entered violate contrary to both corrections policy and constitutional norms. 18 U.S.C. § 3626, requiring particularized fact-finding by See Austin v. Wilkinson (Austin I), 189 F. Supp. 2d 719, 724 federal district courts interfering with state prison practices. (N.D. Ohio 2002). Because we conclude that the district court did not err in determining that a liberty interest existed in the prison When the OSP first received inmates in May 1998, it did so placement at issue and in modifying the procedures that in a concededly problematic and confused manner. govern that placement, we AFFIRM that portion of the Appellants’ Br. at 11. On August 31, 1998, the department district court’s judgments; because the district court erred, “attempted to establish some predictability to placement at the however, in modifying substantive Ohio prison regulations, OSP by issuing Department of Rehabilitation and Correction we REVERSE AND REMAND that portion of the Policy 111-07”; the version of this policy in effect when the judgments. Inmates filed their complaint (“old 111-07”) became effective January 28, 1999. Austin I, 189 F. Supp. 2d at 727. I. BACKGROUND Placement at the OSP was synonymous with inmate classification at a high-maximum-security level. Old 111-07 In May 1998, the OSP, Ohio’s supermax prison facility, provided for a classification committee (made up of a deputy opened for business. Supermax facilities, in operation in warden and a mental health professional from the inmate’s most of the states and in the federal prison system, represent current institution, and a third official designated by the an attempt to concentrate the “worst of the worst” in one warden), which would receive a written statement from the prisoner as well as information provided by staff, and make 2 a recommendation to the warden. The warden then approved Named additionally as defendants are Stephen J. Huffman, Bernard or disapproved the recommendation, and sent the information J. Ryznar, Todd E. Ishee, Bruce A. Martin, Deborah Nixon Hugh es, along to the Bureau of Classification (“Bureau”). Even if Cheryl Jorgensen-Martinez, Manish B . Joshi, Patrick F. Biggs, Audrey Sandor N ietzel, and M atthew Meyer. both the classification committee and the warden agreed that Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 5 6 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

high-maximum-security classification was inappropriate for to telephones and counsel, outside recreation, and an inmate, the Chief of the Bureau could still assign the communication with other persons. Id. inmate to OSP. Placement at OSP renders an inmate ineligible for parole during his time there. Austin I, 189 F. On January 1, 2001, the Inmates filed their complaint, Supp. 2d at 728. stating both procedural due process claims regarding placement at OSP, the claims at issue on appeal, and Eighth Under this policy, though, problems continued. Some of Amendment claims regarding inadequate medical and the more troubling instances of this haphazard system psychiatric care, inadequate outdoor recreation facilities, and occurred when the Bureau would, without stating its reasons, harsh restraints used at OSP. The Eighth Amendment claims overrule the recommendation of both the classification were settled below. See Austin v. Wilkinson, No. 4:01-CV-71 committee and the warden and either place or maintain the (N.D. Ohio Apr. 5, 2002) (order approving settlement placement of an inmate at OSP; when inmates who would agreement). A Fed. R. Civ. P. 23(b)(2) class was certified, otherwise be recommended for parole were ineligible because and the case was scheduled for trial in January 2002. On the of a suspect OSP placement; when multiple jumps in security eve of trial, the ODRC released a new version of 111-07 levels happened as a result of a single incident; when (“new 111-07”), and it is the district court’s ordered decisions were made with little factual support; and when modifications to new 111-07, made after a bench trial, that are decisions were based solely on the use or smuggling in of at issue on this appeal. In old 111-07, prisoners were small amounts of drugs. Id. at 734-36. classified as high-maximum-security and maximum-security; in new 111-07, the security levels are instead level five and The goal of the OSP, to separate the most dangerous level four. When the district court issued its decision, only prisoners from the rest of the prison population, is achieved level five prisoners were housed at OSP, but the appellees primarily through solitary confinement, of a type noticeably urge this court to take judicial notice of the decision by different than segregation at other Ohio prisons. Inmates at Defendant Wilkinson to house inmates classified at both OSP spend twenty-three hours a day in their single cells, levels four and five at OSP. Appellees’ Br. at 5 n.1. New measuring approximately 89.7 square feet. Id. at 724. These 111-07 details both the substantive reasons for reclassification cells are further isolated from the outside world by the and the procedures followed to reclassify, as well as the installation of metal strips on the bottom and sides of the cell conditions imposed on inmates in those classification levels.3 doors that prevent inmates from communicating with one Various prison officials are empowered to initiate placement another. Id. During the one hour per day that inmates can into classification level five,4 using the “Security Designation leave their cells, they have access to two indoor recreation rooms; most inmates have recreation alone, although a limited number may have recreation with one other prisoner. Id. 3 The procedural information and quoted language are taken from Inmates having visitors are required to be strip-searched when new 111-07. they leave and reenter the cellblock, even though they are isolated from their visitors by solid windows. Id. at 725. 4 W hen the district court made its findings and d ecision , only Additional factual findings by the district court differentiate prisoners classified as level five were placed at OSP. As noted ab ove, this life at OSP from segregation conditions at other Ohio prisons, is no longer the case, as the ODR C is now placing level four prisoners at including extra limitations on personal property rights, access OSP. The proced ure for placement at level four is essentially the same as that set out in new 111-07 and found constitutionally inadequate by the district court. Therefore, inmates are being placed at OSP without the Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 7 8 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

Long Form,” which provides a score sheet for inmates based Bureau will then review the recommendation and any on their age, the severity of the offense triggering the objection and make a final decision. Additionally, within initiation of reclassification hearings, prior prison experience, thirty days of placement at OSP, the OSP staff reviews a prior violent behavior, pre-prison gang activity, and escape reclassified inmate’s placement, and if they recommend a attempts; the prison official is also empowered to override the security reduction with which the OSP warden agrees, that numerical score for any of the reasons identified by 111-07 as recommendation is sent to the Bureau. Review of OSP grounds for level five classification. These include assaultive inmates’ security levels is made at least annually and follows and/or predatory behavior; the nature of the inmate’s essentially the same process as the initial classification conviction; leadership roles in riots or disturbances; the hearing. possession of contraband; the identification of the inmate as a leader of a “security threat group” (prison gang); escape In its opinion, issued on February 25, 2002, the district attempts; “an ability to compromise the integrity of [prison] court found the process specified in new 111-07 lacking. See staff”; knowing exposure of others to HIV or hepatitis; or a Austin I, 189 F. Supp. 2d at 750-52. The district court chronic inability to adjust to a lower security level. On identified the following deficiencies: that inmates are not initiation of the reclassification, the warden establishes a given notice of all the evidence that may be relied upon in classification committee to review the inmate’s behavior and their classification hearings; that inmates are not allowed to determine whether in fact the inmate meets one of the level call witnesses; that the placement criteria give insufficient five criteria. That committee is to hold a hearing to review notice of the amount of drugs in possession that would trigger the form and any other relevant information; 111-07 entitles level five placement; that the placement criteria are inmates to forty-eight hours’ prior notice of that hearing and unnecessarily vague with regard to the gang activity that the opportunity to appear and make both oral and written would trigger a placement; that the final decisionmaker, the presentations. The classification committee is to “document Bureau of Classification, was not required to describe the information” presented by staff and the inmate, and determine facts found and reasoning used in making its placement and whether the inmate should be placed in level five. That reclassification decisions; that the inmate is not given recommendation is then forwarded to the warden. If the adequate notice of the information to be considered at his warden approves the recommendation, both the reclassification hearing; and that adequate notice of the recommendation and the approval are forwarded to the conduct necessary for the inmate to leave the OSP is not Bureau of Classification for final decision. (If the warden given. The district court then ordered the parties to file does not approve the recommendation, the process ends and proposed injunctive orders; the ODRC Officials’ proposed the inmate is not classified as level five). The inmate shall be injunctive order was one and a half pages in length. On notified of the warden’s approval, and may file a formal March 26, 2002, the district court issued an injunction objection with the Bureau within fifteen days of notice. The directing the ODRC Officials to correct each of the deficiencies it had found and issued an accompanying judgment terminating the action under Rule 58. See Austin v. Wilkinson (Austin II), 204 F. Supp. 2d 1024 (N.D. Ohio procedural protections ordered by the d istrict court. Because the 2002). The ODRC Officials filed a timely notice of appeal on complained-of deprivation of liberty is not reclassification by itself, but April 17, which was docketed as Sixth Circuit Appeal placement at OSP which results from a level five classification, this seems Number 02-3429. On April 24, they filed with the district a particularly disingenuous way to eva de the district co urt’s ord er in advance of appellate review. court a revised version of 111-07 (“revised 111-07"). On Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 9 10 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

May 15, the district court ordered that policy adopted with #58 v. Gary's Elec. Serv. Co., 340 F.3d 373, 378 (6th Cir. slight changes. On June 6, 2002, the ODRC Officials filed a 2003). Rule 60(b) motion,5 which the district court denied on July 12, ruling that the defendants were not surprised by its C. Due Process Rights judgment, and that it had the authority to order the injunctive relief at issue. On July 12, the ODRC Officials filed a notice 1. Liberty Interest under Sandin v. Conner of appeal from both the district court’s denial of their Rule 60(b) motion and its May 15 order adopting revised 111-07,6 Inmates challenge the procedures for classification at level docketed as Appeal No. 02-3816. five under the Due Process Clause of the Fourteenth Amendment, claiming that classification at that level and II. ANALYSIS concomitant placement at OSP implicates a state-created liberty interest, and that the procedures in place before trial A. Jurisdiction were inadequate to protect this interest. Therefore, our threshold inquiry is whether a state-created liberty interest The underlying civil rights action was brought under exists with regard to placement in Ohio’s supermax prison. 42 U.S.C. § 1983. The district court had original jurisdiction This inquiry is controlled by Sandin v. Conner, 515 U.S. 472 under 28 U.S.C. § 1331. This court has jurisdiction under (1995), which mandates that a state creates a liberty interest 28 U.S.C. § 1291. in avoiding certain prison conditions only where those conditions are an “atypical and significant hardship on the B. Standard of Review inmate in relation to the ordinary incidents of prison life.” Id. at 484. Prior to Sandin, a state created a liberty interest The ODRC Officials appeal from the grant of a permanent through using “‘language of an unmistakably mandatory injunction and the denial of a motion for relief from the character’ such that the incursion on liberty would not occur judgment, both of which are reviewed for abuse of discretion. ‘absent specified substantive predicates.’” Id. at 480 (quoting See Herman Miller, Inc. v. Palazzetti Imp. & Exp., Inc., 270 Hewitt v. Helms, 459 U.S. 460, 471-72 (1983)). Sandin F.3d 298, 317 (6th Cir. 2001); Mallory v. Eyrich, 922 F.2d shifted the focus from parsing the language of state statutes 1273, 1279 (6th Cir. 1991). In determining whether the and regulations to examining the severity of the conditions to district court abused its discretion, we give great deference to which an inmate would be subject. the district court, reviewing its legal determinations de novo, but only disturbing its factual findings if they are clearly The district court thus properly made factual findings as to erroneous. Elec. Workers Pension Trust Fund of Local Union the conditions in OSP compared to the conditions in other Ohio prisons, specifically in the segregated units of maximum-security prisons, the most severe non-OSP 5 The OD RC O fficials asked for relief under Rule 60(b)(6), (b)(1), conditions in the Ohio system. The court found that the and (b)(4). extreme isolation visited upon the inmates at OSP, the lack of any outdoor recreation, the limitations upon personal property 6 The OD RC Officials had m oved on June 6, 20 02, sim ultaneo us with rights and access to telephones and counsel, and, finally, the their Rule 60(b) motion, for additional time to file a notice of appeal from ineligibility of OSP inmates for parole, all combined to create the district court’s May 15 order. An extension was granted to July 15, a significant and atypical hardship. The ODRC Officials’ 2002, pursuant to Federal Rule of Appellate Procedure 4(a)(5). Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 11 12 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

sole challenge on appeal to these careful findings is that the have adopted the novel and restrictive control group urged by district court erred by comparing conditions at OSP to the ODRC Officials, which would as a matter of law make it conditions at other Ohio prisons. They argue instead that the impossible for any inmates but those in the most harsh prison proper baseline in determining atypicality is the conditions at in the country to make out a case for protection under Sandin. other supermax facilities around the country. Other circuits that have decided the question have split over whether the The ODRC Officials point only to the Supreme Court’s proper control group is the general prison population or decision in Olim v. Wakinekona, 461 U.S. 238 (1983), and inmates in typical segregation conditions. Compare Beverati dicta in Wagner, 128 F.3d at 1173, to support their argument. v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (finding “the Olim involved a challenge to an interstate prison transfer; the conditions [at issue] were more burdensome than those Court held that no liberty interest was created by Hawaii state imposed on the general prison population” although not prison regulations, and that the Due Process Clause of its own sufficiently atypical), and Keenan v. Hall, 83 F.3d 1083, 1089 force did not protect any liberty interest deprived by an (9th Cir. 1996) (“a major difference between the conditions interstate prison transfer. Olim, 461 U.S. at 245-49. But for the general prison population and the segregated Olim’s holding has limited applicability when dealing with a population triggers a right to a hearing”), with Griffin v. state-created liberty interest; that the Due Process Clause does Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (administrative not of its own force protect against interstate transfers has custody is not “extraordinary” and “stays of many months are little to do with whether Ohio regulations create a liberty not uncommon”), and Brooks v. DiFasi, 112 F.3d 46, 49 (2d interest in remaining outside of a supermax prison. Sandin Cir. 1997) (explicit factual comparison between requires a situationally-based factual analysis; if it is typical administrative segregation and disciplinary segregation is that an Ohio prisoner experiences conditions similar to those necessary). See also Hatch v. District of Columbia, 184 F.3d of OSP, then state lines might truly be irrelevant. That, 846, 847 (D.C. Cir. 1999) (appropriate comparison is “the however, is not the case; of 44,000 prisoners in the Ohio most restrictive conditions . . . routinely impose[d] on inmates system, only twenty to thirty have been transferred out of serving similar sentences”); Wagner v. Hanks, 128 F.3d 1173, state — a number that itself might give rise to atypicality, if 1177 (7th Cir. 1997) (appropriate comparison is to the not hardship, if substantive state law limiting officials’ conditions of nondisciplinary segregation in the state’s most discretion in transfer existed — and not a single one has been restrictive prison).7 None of the courts of appeals, however, shown to have been transferred to a supermax. See Hatch, 184 F.3d at 857 (“What matters, therefore, is not simply the possibility of transfer but also its likelihood.”). Olim, to the contrary, relied heavily on the fact of interstate transfer as a 7 The Fifth Circuit has also remanded at least one case to a district common occurrence, suggesting that no reasonable court with instructions to determine the prope r base line if San din is expectation existed that any particular inmate would serve his triggered. See Wilkerson v. Stalder, 329 F.3d 43 1, 436 (5th Cir. 2003). sentence within his state of conviction. Olim, 461 U.S. at But see Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 19 95) (“it is difficult to see that any other deprivations in the prison context, short of those that 245-47. Even if the proper comparison in this case were clearly impinge on the duration of confinement, will henceforth qualify nationwide rather than statewide, the appropriate question for constitutional ‘liberty’ status”). Carson v. Johnson, 112 F.3d 818, 821 would be whether the OSP represented an atypical hardship (5th Cir. 1997), cited by the district court, does not in fact analyze state- as compared to, at most, the typical conditions in created liberty interests under San din, but instead evaluates fundamental administrative or disciplinary segregation to which transferred liberty rights under the three-strikes provision of the Prison Litigation Reform Act (“PLR A”). Ohio prisoners are subject, not those in supermaxes. Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 13 14 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

Finally, Wagner is not to the contrary. First, as the Inmates Ultimately, whether OSP is compared to the general prison point out, the language relied upon by the ODRC Officials in population of Ohio, or instead to inmates in typical support of their claim is dicta. See Wagner, 128 F.3d at 1176. segregation conditions, which was the baseline used by the Second, and more important, the Wagner court itself in its district court, OSP constitutes an atypical and significant analysis misses the important distinction between cases hardship under Sandin, such that inmates enjoy a liberty narrowly defining the contours of the protection of the Due interest in not being placed at OSP absent the state-mandated Process Clause of its own force and those deciding when state substantive predicates set out in new Policy 111-07. It is laws create a liberty interest. The Supreme Court has therefore unnecessary to determine which is the proper repeatedly held that transfers in and of themselves do not baseline for Sandin comparisons in order to decide this case, implicate due process interests (although it has not to date but we reject emphatically the ODRC Officials’ argument that dealt with transfer to a supermax prison), see Olim, 461 U.S. the baseline should be out-of-state supermax prisons. at 238; Meachum v. Fano, 427 U.S. 215, 229 (1976), but the Whatever the “ordinary incidents of prison life” may Court has never held that state laws cannot create a liberty encompass, they must be decided with reference to the interest in avoiding a transfer to a particularly harsh facility. particular prison system at issue, and can only be truly This key distinction goes wholly unaddressed by the ODRC “ordinary” when experienced by a significant proportion of Officials.8 the prison population. 2. The Process That Is Due 8 Once a liberty interest has been established under Sandin, This distinction also partially explains why Moore v. Litscher, No. 02-1461, 20 02 W L 31805012 (7th Cir. Nov. 27, 2002), and Nash v. we must turn to the question of what process is due to protect Litscher, No. 02-1705, 2002 W L 31444476 (7th Cir. Oct. 23, 2002), cited that interest. At issue on appeal is the propriety of a set of by the concurrence for the proposition that avoidance of placement at a modifications made by the district court to the ODRC’s supermax is not in and of itself a liberty interest under San din, are inapposite. Moore cited to Olim in holding, “Prisoners do not have a policy governing classification at level five. Most of these federally protected liberty interest in being house d in a p articular facility.” modifications concern the procedures used to classify 2002 WL 31805012 at *1. With respect to a state liberty interest, the inmates, but three modifications are substantive predicates to court held tha t “a failure to comply with state procedural rules does not OSP placement and retention. We will analyze the procedural violate the federal constitution.” Id. The Moore court failed to partake modifications in greater depth below under the familiar due in any ana lysis under San din, and the case cannot stand for the proposition that plac ement at a sup erma x could not implicate a liberty process analysis of Mathews v. Eldridge, 424 U.S. 319 interest created by the state. Nash noted simply that “Nash does not have (1976), but the substantive modifications can be dealt with a liberty interest in his prison placement,” and cited to an earlier case, more simply. Whitford v. Boglino, 63 F .3d 5 27, 5 32 (7th Cir. 1995). 2002 WL 31444476 at *2. Whitford held that no federal interest existed in prison a. Modifications to Ohio’s Substantive Prison placem ent, and that Illinois state regulations, so far as the court Regulations “understoo d,” did no t create such a liberty interest. Whitford also dealt with transfer to a maximum security prison, rather than a supe rmax. All three of these cases, Whitford, Mo ore, and Nash , were argued pro se in the Prior to the district court’s modifications, inmates could be Seve nth Circ uit. W e do not think they can stand for the proposition that placed at OSP for any contraband activity, no matter how careful factual findings in the district court dem onstrating severe hardship minimal. As its first substantive modification, the district in prison conditions, atypical in a prison system, can never rise to the court directed that the policy be rewritten to specify a quantity level of a protected liberty interest without a parole deprivation. Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 15 16 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

of contraband activity, and for drug activity, the district court See Washington v. Harper, 494 U.S. 210, 219-222 (1990) stipulated that the threshold amount should “reflect a level (reviewing a state court’s substantive as well as procedural that would subject an inmate to incarceration for at least a modifications to state correctional regulations). Therefore, third degree felony,” or alternately the court allowed regardless of their inherent soundness, these three “placement for multiple violations involving lesser modifications must fail, as they order the ODRC to alter its quantit[ies] of drugs.” Austin II, 204 F. Supp. 2d at 1028. substantive rules governing OSP placement and retention. The district court’s second substantive modification was to the “security group threat” predicate for classification, While the district court correctly identified adequate notice directing the ODRC Officials to modify the criteria to require as a requirement of due process when making these changes, a greater showing of involvement in such groups. Third, the see Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, district court required that only behavior in the five years 1104-05 (6th Cir. 1995), we conclude that each of the prior to a retention decision should be considered, and that an regulations provides sufficient notice and that the inmate with three years free of violent behavior and two years modifications made by the district court are in fact free of major misconduct “should generally qualify for substantive modifications. For instance, new 111-07 states reclassification” to a lower level and transfer out of OSP, with that any amount of drugs can trigger a reclassification an exception to both of these rules if an inmate’s “prior hearing; altering the policy to require a specified amount does conduct during incarceration resulted in death or extreme not improve upon that notice but instead limits the substantive bodily harm.” Id. discretion of the ODRC Officials. Similarly, the security group modification alters the substantive grounds for The power of the federal courts to order modifications in placement at OSP, rather than the process used in determining state prison policies extends only as far as is necessary to that placement. And the modification to the retention criteria protect federal rights. The Inmates do not argue and we do also limits the substantive discretion of the Officials. While not decide whether placement at OSP implicates either the the due process requirement of notice applies in the prison Eighth Amendment or the substantive portion of the Due context as well as outside of it, albeit slightly differently, see Process Clause.9 The federal right at issue in this case, then, United States v. Chatman, 538 F.2d 567, 569 (4th Cir. 1976), is defined solely in relation to the substantive limits placed on any deficiencies in the notice provided by these provisions are the discretion of the ODRC officials by state law itself. properly corrected through case by case “as applied” Therefore, the district court only had the power to order challenges to the regulations, rather than striking the federally mandated process in a substantive inquiry otherwise regulations down on their face. See Parker v. Levy, 417 U.S. governed by the state. The district court was thus without 733, 755-56 (1974); Adams v. Gunnell, 729 F.2d 362, 369-70 power to order the state officials to modify the substantive (5th Cir. 1984). We therefore reverse those portions of the predicates which governed placement and retention at OSP. district court’s judgments that altered the contents of these three substantive regulations. 9 W hile the Inmates challenged certain conditions at OSP under the Eighth Amendment, claims that were settled below, they do not argue that either the Eighth Amendment or the substantive protections of the Due Proc ess Clause create liberty interests in freedom from transfer to OSP that require due process protection. We express no opinion as to the viability of such a claim. Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 17 18 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

b. Procedural Modifications that a particular decision is “forward-looking”; instead, reference must be made to the interests at stake, for the That a liberty interest exists in avoiding classification at inmate and for the state. It is not the nature of the decision level five and concurrent placement in OSP is in many ways which strikes the due process balance; it is the nature of the the easy half of the Sandin analysis. What is much less clear interests on both sides of that balance.11 With that in mind, after Sandin is how to determine what process is due to we approve of the district court’s grounding of its decision in protect that interest. Before Sandin, state-created liberty the due process balancing test outlined in Mathews v. interests of prisoners were either protected by an adversary Eldridge, 424 U.S. at 335, and consider the procedural hearing on the record following Wolff v. McDonnell, 418 U.S. modifications in light of that test. Mathews 539, 563-73 (1974), or a more free-form hearing following Hewitt, 459 U.S. at 477. Wolff dealt with the process due in requires consideration of three distinct factors: First, the finding a disciplinary infraction punished by the rescission of private interest that will be affected by the official action; good-time credits; Hewitt involved a challenged placement in second, the risk of an erroneous deprivation of such administrative segregation, pending the outcome of an interest through the procedures used, and the probable investigation into misconduct. Cases following the value, if any, of additional or substitute procedural Hewitt/Wolff split have classified various factual situations safeguards; and finally, the Government’s interest, depending upon the category into which the challenged including the function involved and the fiscal and process fell: disciplinary or administrative, historical or administrative burdens that the additional or substitute prospective, objective or subjective, Wolff or Hewitt. On procedural requirement would entail. appeal, the ODRC Officials assert that this mechanical dichotomy still has force after Sandin, that classification at Id. level five and placement at OSP is a forward-looking, Hewitt- type procedure, and that our inquiry should end there, with a The district court made fifteen specific modifications to decision that only “Hewitt process” is due. We are new 111-07, including the improper substantive modifications convinced, however, that Sandin called into question not only dealt with above. A first set deals with the classification the mechanistic way in which the circuit courts previously hearing itself, and closely tracks Wolff. First, when found liberty interests in prison regulations, but also the classification proceedings are initiated, the notice already mechanistic fashion in which they applied the Hewitt/Wolff stipulated by new 111-07 shall include an exhaustive list of dichotomy.10 After Sandin, both steps of the analysis — the the reasons to be considered for placement and a summary of creation of a liberty interest and the determination of the process due to protect that interest — must carefully reference the severity of the deprivation at stake. It is not enough to say 11 W e do not think that we d iffer so much from Judge Rogers in describing this balance; we agree that the type of decision being mad e will 10 affect the private interest, the government interest, and the value o f certain Like Judge Rogers, we are convinced that the “Hewitt/Wo lff procedural safegua rds. W e only emph asize tha t the type of decisio n is dicho tomy” is not a viable form o f analysis; we note later that the district not, as the OD RC O fficials would have us hold, the only factor necessary court’s procedural modifications track Wo lff only because the ODRC to determine what procedure is due. We believe, however, that in the face officials had argued that the district court went beyond Wo lff in ordering of the substantial factual findings of the district court as to haphazard certain modifications, most of whic h were directed at the “appellate” ODRC place ments, the pro cedural req uirement of no tice is particularly process created by the ODRC. impo rtant, and give gre at weight to its value in increasing acc uracy. Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 19 20 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

the evidence to be presented. Second, the inmate shall be The first factor of the Mathews balancing test, the private allowed to present witnesses and documentary evidence at interest at stake, is significant; placement at OSP is indefinite classification hearings, where “permitting him to do so will and reviewed only annually, unlike placement in disciplinary not be unduly hazardous or burdensome to institutional safety segregation in the Ohio prison system, which lasts only thirty or correctional goals.” J.A. at 530 (citing Wolff, 418 U.S. at days, or administrative segregation, which is reviewed every 566). Finally, a record is to be made of the proceeding itself, thirty days. Prisoners placed at OSP are deprived of all and if the ODRC wishes to rely on confidential witnesses, it significant human contact and have other restrictions placed must indicate that reliance and disclose as much of the upon their movement and their personal privileges; they are confidential testimony as possible. also ineligible for parole during their stay at OSP. In this first factor, Sandin affects the due process balance: because only A second group of modifications required by the district those conditions that constitute “atypical and significant court centers on the administrative appellate procedure laid hardships” give rise to liberty interests, those interests will out in new 111-07. Because no comparable appellate necessarily be of a weight requiring greater due process procedure was at issue in Wolff, see 418 U.S. at 565, these protection.12 As to the second factor, the risk of error, the requirements do not track that case as closely. The district district court made specific findings concerning past court found that the previous system of administrative review, erroneous and haphazard placements at OSP, which go in which each intervening appellate decisionmaker had unchallenged on appeal. We will consider the probative value plenary power to reverse the prior decisionmaker without any of particular procedures in the next paragraph. As to the third statement of reasons for the decision given to the inmate, had factor, the ODRC clearly has an interest in guaranteeing the led to suspect inmate classifications. The specific changes safety of its staff and inmates through the swift isolation of ordered by the district court were: that the inmate is to dangerous inmates. However, the ODRC has a mechanism to receive the classification committee’s recommendation and assure safety, one which does not require extensive process, notice of his right to and method of appeal; that the warden is and which, unlike OSP placement, is easily and swiftly to engage in “independent review” of the committee’s reversible in the case of error: administrative segregation. recommendation, and if in doing so, relies upon a confidential witness statement not already made known to the prisoner, Looking at each of the modifications ordered by the district shall follow the procedure outlined above, including allowing court individually, we remain unconvinced that the district the inmate to respond in writing; that the warden shall, if she court abused its discretion in finding that each procedural approves the recommendation, send a copy of that recommendation to the inmate; and that the Bureau of Classification shall follow the same procedure in relying on 12 new confidential witness statements, shall allow the inmate to W e mean by this statement only to com pare those liberty interests submit documentary evidence, and will, if the inmate is found to exist post-San din with those found to exist pre-San din. Because the Court has made clear that many of the liberty interests found by courts recommended for level five placement, record a detailed and which would have in the past required certain pre-deprivation processes specific justification for the decision. Finally, the district are no longer viab le liberty interests, in looking over what courts have court, in its May 15, 2002, order, required that none of the required of priso n officials in the past, it is important to remember that members of the original classification committee shall take many liberty interests which required less pro cess in the past wo uld part in the decision of the prisoner’s appeal to the warden or require no process now. Any liberty interest which passes San din’s thresho ld comes with a higher presum ption of pro cess due than those to the Bureau. which may have been found pre-San din. Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 21 22 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

modification it made was mandated by the weighty private Having found that the additional procedural requirement interest at stake and the risk of error and was unmitigated by identified by the ODRC Officials as the most burdensome the governmental interests at stake. We examine first the passes muster under Mathews v. Eldridge, we conclude that requirement identified by the ODRC Officials both in their those which pose a lesser burden on the ODRC are also brief and at oral argument as the most burdensome: requiring appropriate. The ODRC Officials, both in their brief and at officials to limit their placement decision to only those oral argument, did not in fact point to any other single matters detailed in the notice given to the inmate. They argue procedural requirement as being particularly burdensome. that this requirement will constrict “substantive discretion” by We note, moreover, that many of the procedures ordered by disallowing reliance on “rumor, reputation, and even more the district court are an attempt to reconcile an elaborate imponderable factors.” Appellants’ Reply Br. at 8 (quoting administrative appeals scheme created by the ODRC Officials Hewitt, 459 U.S. at 474). This argument is unavailing. with the requirement that the inmate know the reason for any Placement at OSP implicates a liberty interest because of the decision made about his fate; where a higher-up ODRC’s own regulations limiting the substantive discretion decisionmaker reverses the decision of the original factfinder, of prison officials; they can place inmates at OSP only in the a brief description of the grounds for that reversal is presence of certain factual predicates, all of which are constitutionally necessary. historical in nature. Having set out a detailed and restricted list of reasons why inmates can be put at OSP, the ODRC D. Prison Litigation Reform Act cannot turn around and argue that the district court’s order decreases their ability to rely on “rumor, reputation, and even The ODRC Officials make a final argument that the district more imponderable factors,” for those factors are illegitimate court failed to follow 18 U.S.C. § 3626, part of the Prison under their own placement scheme.13 The district court Litigation Reform Act (“PLRA”), governing prospective required that the “defendants will provide the inmate with relief. Their complaints center around the substantive written notice of all the grounds believed to justify his modifications made to new 111-07, which modifications are placement at level five and a summary of the evidence that indeed invalid for the reasons discussed above. They also the defendants will rely upon for the placement.” Austin II, make a third, more general argument that the district court 204 F. Supp. 2d at 1026. We do not find that this erred in failing to make findings that the remedial orders are requirement’s burdens on the ODRC outweigh its probative necessary to correct “‘current and ongoing’ federal and protective value. violations.” Appellants’ Br. at 60. But the “current and ongoing” language comes from § 3626(b)(3), governing the termination of relief, not from § 3626(a), governing 13 requirements for initial relief. This argument therefore has no It is here we part ways with Judge Rogers — in determining what merit. process is due, we believe reference to what the state substantively requires is the first step. In order to be placed at O SP, an inm ate must III. CONCLUSION fulfill one of those discrete, substantive historical predicates; the district court correctly required that ODRC Officials place an inmate on notice of what historical events will be used to d emo nstrate his fulfillment of one Because the Inmates have a liberty interest in avoiding of those p redicates. The state itself has limited its ability to place inmates placement at OSP, and because the procedural modifications at OSP; the combing through files predicted by Judg e Ro gers is unlikely ordered by the district court are necessary to protect that in the face of the specific sub stantive predica tes identified in the state interest, we affirm those portions of the district court’s scheme. Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 23 24 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

judgments that address procedural requirements and _____________________________________________ modifications. Because the district court was without power to reach the substantive prison regulations which were also CONCURRING IN PART, DISSENTING IN PART modified, we reverse the district court’s judgments insofar as _____________________________________________ they rely on the following: Part II of the district court’s March 26, 2002 order, excepting the final paragraph;14 the ROGERS, Circuit Judge, concurring and dissenting. While penultimate paragraph of the district court’s May 15, 2002 I agree with much of the majority’s careful opinion, there are order; and the underlying portions of the district court’s two areas where my analysis differs sufficiently to warrant a February 25, 2002 opinion.15 We therefore partially separate opinion, and one point upon which I respectfully AFFIRM and partially REVERSE the district court’s dissent. judgments, and we REMAND to the district court for further proceedings consistent with this opinion. A. I agree that the Inmates have shown a protected liberty interest under Sandin v. Conner, 515 U.S. 472 (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 14 involved. See Moore v. Litscher, No. 02-1461, 52 Fed. Appx. That paragraph concerns the procedural modification of 861, 2002 U.S. App. LEXIS 25305 (7th Cir. Nov. 27, 2002) departmental notice to th e inmate of the inmate’s progress towards reclassification, and is a proper procedural mo dification. (prisoners do not have a federally protected liberty interest in being housed in a particular facility, and therefore, as a matter 15 The OD RC Officials appe al from the district court’s July 12 denial of federal constitutional law, prisoner was not entitled to any of their Rule 60(b) motion; the only claims of error in that denial which due process protection before he was moved to supermax they make on appeal concern the substantive modifications to 111-07 that facility); Nash v. Litscher, No. 02-1705, 50 Fed. Appx. 317, we reverse in any case. T here is therefore no need to evaluate the 2002 U.S. App. LEXIS 22825 (7th Cir. Oct. 23, 2002) propriety of the district court’s denial of the Rule 60(b) motion on its own (same). If movement from one level of restrictive merits. Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 25 26 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

confinement to a significantly higher one triggers due process (alone not a property interest under Board of Regents v. Roth, protections, then prison administration could be unduly 408 U.S. 564 (1972)) and defamatory statements (alone not a burdened by the necessity of due process hearings. Courts deprivation of a liberty interest under Paul v. Davis, 424 U.S. would then have to struggle with just how much of a change 693 (1976)). in the severity of confinement triggers due process protection. Fortunately, we do not need to decide the issue. In this case, B. the decision to assign an inmate to OSP not only imposes extraordinarily strict conditions, but also suspends parole I also agree that the proper framework for evaluating eligibility. While Ohio law does not create a liberty interest whether the state procedures meet the requirements of in parole, see Ohio Rev. Code § 2967.03; Wagner v. Gilligan, procedural due process is the balancing test set forth in 609 F.2d 866, 867 (6th Cir. 1979), a parole eligibility Mathews v. Eldridge, 424 U.S. 319, 334-45 (1976). Such an determination can indirectly affect the length of a prisoner’s analysis requires that each procedural protection sought for incarceration, and is patently based on factors beyond the each category of administrative decisionmaking be evaluated consideration of prisoner safety and prison management. See independently under the Eldridge factors. We are not OHIO ADMIN . CODE § 5120:1-1-07 (2004); Layne v. Ohio required to adopt for any prison-related decision the bundle of Adult Parole Auth., 780 N.E.2d 548, 555 (Ohio 2002) procedures required by one or another Supreme Court case (emphasizing that parole board may “consider any dealing with different types of prison decisions. Thus circumstances relating to the offense or offenses of discussion of the Hewitt/Wolff “dichotomy” is problematic. conviction, including crimes that did not result in conviction, Many deprivations of liberty interests in prison, and certainly as well as any other factors [it] deems relevant”). the ones in this case, are different in important respects both from the disciplinary rescission of good-time credits in Wolff Even though assignment to a very restrictive prison might v. McDonnell, 418 U.S. 539 (1974), and from the not by itself amount to a deprivation of a liberty interest, and administrative segregation in Hewitt v. Helms, 459 U.S. 460 even though a suspension of parole eligibility by itself may (1983). The sought procedures may also vary. In short, the not amount to the deprivation of a property or liberty interest balance has to be context-specific. Thus whether or not a in Ohio, the combination of the two deprivations, in the particular procedure imposed by the district court “tracks context of the facts shown in the record of this case, amounts Wolff” by itself does not tell us whether it is required by to a deprivation of a protected interest for procedural due Eldridge. On the other hand, of course, the Supreme Court’s process purposes. See Sandin, 515 U.S. at 487 (finding no analysis with respect to what procedures are required to protected liberty interest in remaining free from disciplinary protect a particular liberty interest do provide guidance where segregation, but noting that disciplinary record did not the procedures or the interests are in relevant respects preclude parole); Neal v. Shimoda, 131 F.3d 818, 830 (9th analogous. Thus to the extent, for instance, that Hewitt Cir. 1997) (finding that stigmatizing consequences of labeling instructs that additional procedures with respect to “forward- inmate as “sex offender,” combined with parole ineligibility looking” determinations are less likely to increase the for non-completion of mandatory treatment program, accuracy of such decisions (the second Eldridge factor), 459 triggered due process protections under Sandin). By way of U.S. at 473-74, that guidance may appropriately be analogy, the Supreme Court found a protected interest in applied—not categorically but as part of the weighing—in Owen v. City of Independence, 445 U.S. 622, 633 n.13 other cases involving different procedures and different (1980), from the combination of a loss of at-will employment liberty interests. Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 27 28 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

I would also qualify the majority’s statement that “[i]t is discretionary in some sense, such that review of injunctive not the nature of the decision which strikes the due process orders may sometimes be for abuse of discretion, but balance; it is the nature of the interests on both sides of that precisely speaking a district court does not have discretion to balance.” The Eldridge balance involves three factors, two of determine whether due process requires a hearing in a which can be characterized as “the nature of the interests on particular context. We properly review such a legal issue de both sides.” The other, often dispositive factor, however, is novo. the degree to which the desired procedures will increase the accuracy of agency decisionmaking. That determination The comprehensive notice requirement imposed by the often does depend on “the nature of the decision” in the sense district court essentially provides inmates with notice of all of that some types of decisions will be greatly benefited by the evidence that may be relied on in determining his certain procedures, while others may not. placement. Significantly, this requirement provides inmates appearing before classification committees with more notice C. than that received by criminal defendants at trial, where the liberty interests at stake are obviously more substantial. See Applying the Eldridge analysis, I would uphold all of the Fed. R. Crim. P. 16; Weatherford v. Bursey, 429 U.S. 545, procedural requirements imposed by the district court except 559 (1977) (“There is no general constitutional right to the requirement that officials limit their placement decision to discovery in a criminal case. . .[and] the Due Process Clause those matters detailed in the notice to the inmate.1 has little to say regarding the amount of discovery which the parties must be afforded. . .”). As the Supreme Court has At the outset, I note that our scope of review is de novo for recognized, “[p]rison disciplinary proceedings are not part of legal issues such as whether procedural due process requires a criminal prosecution, and the full panoply of rights due a certain procedures, even though the issue is presented on defendant in such proceedings does not apply.” Wolff, 418 appeal from the entry of an injunction. See Chao v. Hosp. U.S. at 556. In my view, the comprehensive notice Staffing Servs., Inc., 270 F.3d 374, 381 (6th Cir. 2001) (“A requirement extends beyond what due process requires. court abuses its discretion when it relies on clearly erroneous findings of fact, applies an inappropriate legal standard, or In upholding the district court’s requirement, the majority improperly applies the law, with such legal questions relies on Sandin to conclude that the liberty interest in this receiving de novo review in the Court of Appeals.”), South case is particularly weighty. If anything, however, the Cent. Power Co. v. Int’l Bhd. of Elec. Workers, 186 F.3d 733, opposite inference is warranted. That is, under Sandin, a 737 (6th Cir. 1999) (“A district court’s decision to grant or liberty interest arises from “atypical and significant deny a permanent injunction is reviewed under several hardships” not implicit in the original sentence. Typical or distinct standards. Factual findings are reviewed under the less significant hardships thus do not even rise to the level of clearly erroneous standard, legal conclusions are reviewed de a protected liberty interest. It is only the atypicality or the novo, and the scope of injunctive relief is reviewed for an extraordinary significance of the hardship that is even enough abuse of discretion.”). The scope of equitable relief may be 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 1 illogical to say that any interest that meets the Sandin test I agree that the substantive requ irements must be reversed, for the reasons stated in Part II(C)(2)(a) of the majority opinion. must be of a weight requiring greater due process protection. Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 29 30 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816

On the contrary, a prisoner gains due process protection under The majority fails to explain, however, how requiring ORDC Sandin only when the hardship exceeds typical hardship. officials to provide an inmate with such comprehensive notice Because in a sense it is the excess over typical hardship that increases the accuracy of the placement decision for a given warrants due process protection, it is logical that it be that inmate. The district court reasoned that excess that is weighed as the private interest in the Eldridge analysis. Since that excess may be very small, the fact that [r]equiring Department officials to give inmates specific the interest was determined under Sandin may instead imply notice of all of the grounds for placing and retaining that the private interest be given a lesser weight than in the them at OSP would cause minimal hardship. The case of another type of protected property or liberty interest. officials would only need to expend the additional time In any event, the fact that the liberty interest is determined to write out their reasons for making a specific under a Sandin analysis cannot, without more, lead to the classification decision. Furthermore, this minimal conclusion that the interests will be deemed to weigh amount of additional time would increase the particularly heavily. Department’s efficiency. Accurately summarizing all the grounds supporting an inmate’s placement at the OSP Secondly, we must evaluate the increase in accuracy that would later assist reviewing entities and avoid will result from the procedural requirement that the unnecessary prisoner assignments to the OSP. decisionmakers limit their placement decision to the grounds and evidence detailed in the notice given to the inmate. A Austin v. Wilkinson, 189 F. Supp. 2d 719, 746 (N.D. Ohio general finding that erroneous and haphazard placements have 2002). The district court’s analysis misapprehends the burden occurred in the past is insufficient. Instead, under the second that a comprehensive notice requirement imposes on the factor of Eldridge, we must evaluate the extent that the government. In making such decisions, ORDC Officials rely particular procedural requirement increases the accuracy of on a wide range of information. The hardship in expending the decisionmaking. additional time to write out reasons for making a specific classification decision may indeed be minimal. However, Under the ORDC Officials’ new policy 111-07, inmates requiring that, prior to even conducting a hearing, ORDC received written notice explaining the reasons they were Officials cull through often voluminous records and note referred for a classification hearing. See J.A. at 716, 731. every potentially relevant fact —on pain of barring them from The district court ordered that, not only must ORDC officials considering any information, no matter how relevant, that was provide advance written notice of the reasons for the referral inadvertently omitted —is significantly more onerous. Such to a hearing, but that they must also provide “written notice burdens have not been shown to be outweighed by the of all the grounds believed to justify [placement] and a improvement in accuracy—assuming there is any— asserted summary of the evidence that the [officials] will rely upon for to arise from the comprehensive notice requirement. the placement.” Austin v. Wilkinson, 204 F. Supp. 2d 1024, 1026 (N.D. Ohio 2002). The district court added a footnote Nor is the comprehensive notice requirement necessary to that appears to preclude consideration of evidence not vindicate the interests cited by the district court. Under the described in the notice: “If [ORDC Officials] elect to use [a procedural process required by the district court, the proposed form] to give an inmate notice, they must limit the classification committee is responsible only for making the grounds stated on the form and the evidence generally initial recommendation concerning whether an inmate should described on the form, to support placement at OSP.” Id. be assigned to OSP; both the warden (or the warden’s Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 31

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 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. Conclusion 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.