Jeremy Kennedy v. John T. Blankenship

100 F.3d 640
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 18, 1996
Docket96-1039
StatusPublished
Cited by1 cases

This text of 100 F.3d 640 (Jeremy Kennedy v. John T. Blankenship) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jeremy Kennedy v. John T. Blankenship, 100 F.3d 640 (8th Cir. 1996).

Opinions

BOWMAN, Circuit Judge.

Defendants John Blankenship, Willis Sargent, and Larry Fiedorowicz, employees of the Arkansas Department of Correction, appeal from the judgment of the District Court in favor of plaintiff Jeremy Kennedy in this 42 U.S.C. § 1983 civil rights action. Because we conclude that Kennedy’s due process rights were not violated, we reverse.

On February 21,1993, Kennedy, an inmate of the Cummins Unit of the Arkansas Department of Correction, hurt his ankle while engaged in horseplay in his cell. Early on the morning of February 22, Kennedy had his ankle éxamined by medical personnel, who did not provide him with a medical excuse from work duty. . When Kennedy did not report for work later that morning, a guard cited him (“issued a major disciplinary against him,” in prison parlance) for refusing to report to work and for failing to obey a direct order.

On February 24, defendant Blankenship chaired a disciplinary hearing to consider the charges against Kennedy. In response to a question from Blankenship, Kennedy stated that he had not been to sick call on the morning he refused to report to work. Blankenship found Kennedy guilty of violating prison rules and sentenced him to thirty days in “punitive isolation,” a stricter form of custody than the “administrative' segregation” status Kennedy had at the time. Kennedy appealed to defendant Sargent, the warden of the prison, and to defendant Fie-dorowicz, the disciplinary hearing administrator of the Department, and each affirmed Blankenship’s decision.

Kennedy filed this 42 U.S.C. § 1983 action in district court on April 26, 1993, claiming that defendants had violated his constitutional right to due process. In particular, Kennedy claimed that an administrative regulation of the Department required Blankenship, the hearing officer, to contact medical personnel to determine whether Kennedy was too ill to report to work.1 A magistrate judge initially recommended judgment in favor of defendants, but the District Court rejected the recommendation. The Magistrate Judge then recommended judgment in favor of Kennedy and an award of $50 in damages. The District Court agreed and also ordered defendants to expunge the disciplinary action from Kennedy’s record. Defendants appealed to this Court, and we reversed and remanded for further consider[642]*642ation in light of the Supreme Court’s intervening decision in Sandin v. Conner, — U.S. -, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Kennedy v. Blankenship, 66 F.3d 332 (8th Cir. 1995) (unpublished per curiam). On remand, the District Court reconsidered its decision and again entered judgment in favor of Kennedy for $50 and ordered the disciplinary action expunged. The defendants appealed again. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1994).

On appeal, defendants challenge only the District Court’s application of the law to the facts. Our review, therefore, is de novo. See Falls v. Nesbitt, 966 F.2d 375, 377 (8th Cir.1992).

In Sandin, the Supreme Court retreated from a line of cases in which it had examined prison regulations in detail to determine whether the regulations created constitutionally protected liberty interests by the use of “‘language of an unmistakably mandatory character’ such that the incursion on liberty would not occur ‘absent specified substantive predicates.’” Sandin, — U.S. at -, 115 S.Ct. at 2298 (quoting Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983)). The Court reworked the relevant inquiry as follows:

[W]e recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Id. at —, 115 S.Ct. at 2300 (citations omitted). The Court recognized that “[discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law.” Id. at -, 115 S.Ct. at 2301.

Sandin and our subsequent cases lead us to the conclusion that Kennedy’s demotion from administrative segregation to punitive isolation is not the sort of deprivation that qualifies as “atypical and significant.” We note first that the Hawaii inmate in Sandin was moved from administrative segregation to “disciplinary segregation” for 30 days, much like Kennedy was in this case. Id. at - & n. 2, 115 S.Ct. at 2296 & n. 2. In both Sandin and this case, prisoners in administrative segregation and prisoners in the stricter category spend significant amounts of time in “lockdown,” confined to their cells. Id. at -, 115 S.Ct. at 2301.

The District Court distinguished Sandin because the only apparent difference between the two custody levels in Sandin was “one extra phone call and one extra visiting privilege.” Id. at - n. 2, 115 S.Ct. at 2296 n. 2. We agree that Kennedy lost more privileges as a result of his punishment than did the inmate in Sandin.2 Nevertheless, Kennedy’s punishment is comparable to other deprivations we have upheld in post-Sandin cases. See Wycoff v. Nichols, 94 F.3d 1187, 1188 (8th Cir.1996) (10 days of disciplinary detention and 100 days in maximum security cell); Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666, 669 (8th Cir.1996) (revocation of work release and return to prison); Moorman v. Thalacker, 83 F.3d 970, 971 (8th Cir.1996) (transfer from minimum- to medium-security prison, 15 days of highest-level disciplinary detention, and 107 days of less-restrictive disciplinary [643]*643detention). Considering all the circumstances, we conclude that Kennedy’s transfer from administrative segregation to punitive isolation was not “a dramatic departure from the basic conditions” of his confinement and thus does not constitute “the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.” Sandin, — U.S. at -, 115 S.Ct. at 2301.

Even if the deprivation in this ease were atypical and significant, however, we would agree with defendants that reversal is still required. In essence, Kennedy claims a federal constitutional liberty interest in having state officers follow state law. But in making this claim, Kennedy misinterprets the nature of procedural due process.

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Kennedy v. Blankenship
100 F.3d 640 (Eighth Circuit, 1996)

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100 F.3d 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jeremy-kennedy-v-john-t-blankenship-ca8-1996.