Not for Publication in West's Federal Reporter
United States Court of Appeals For the First Circuit No. 16-2444
JWAINUS PERRY,
Plaintiff, Appellant,
v.
LUIS S. SPENCER, Commissioner; THOMAS DICKAUT, Former Superintendent; ANTHONY MENDOSA, Former Deputy of Classification; JAMES SABA, Superintendent; ABBE NELLIGAN, Deputy of Classification; PATRICK TOOLIN, Correctional Program Officer; KRISTIE LADOUCER; CAROL MICI; THOMAS NEVILLE,
Defendants, Appellees,
JENS SWANSON, Property Officer,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. M. Page Kelley, Magistrate Judge]
Before
Howard, Chief Judge, Lynch and Thompson, Circuit Judges.
Jwainus Perry on brief pro se. Nancy Ankers White, Special Assistant Attorney General, with whom, Sheryl F. Grant, Counsel, was on brief, for appellee.
August 29, 2018 Per Curiam. Jwainus Perry, a Massachusetts state prison
inmate, brought an action under 42 U.S.C. § 1983 against a number
of Massachusetts Department of Correction ("DOC") officials
claiming, inter alia, procedural due process violations based on
his confinement in non-disciplinary segregation for over 600 days.
Perry now seeks review of the district court's determination
that defendants were entitled to qualified immunity on that
claim. He has also filed a motion to expand the record. To the
extent the motion seeks to expand the record to include
documents not presented to the district court, it is denied,
as the material is outside the purview of Fed. R. App. P.
10(e). See United States v. Rivera-Rosario, 300 F.3d 1, 9 (1st
Cir. 2002) (Rule 10(e) "is not a procedure for putting additional
evidence, no matter how relevant, before the court of appeals
that was not before the district court") (internal quotation
marks omitted). As to the merits of the appeal, we affirm the
district court's September 30, 2016, Memorandum and Order for the
reasons that follow.
BACKGROUND
We assume familiarity with the relevant facts, which are set
out at length in the district court's decision and recounted only
briefly here.
Since 2004, Perry has been in the custody of DOC, sentenced
- 2 - to life without parole for first-degree murder. In December 2010,
after prison authorities received information indicating that
Perry was threatening gang-related retaliation and assault, Perry
was placed in administrative segregation in a Special Management
Unit ("SMU") at Souza Baranowski Correctional Center ("SBCC") on
"awaiting action" status, pending investigation; Perry was also
awaiting custody level classification, having just been
transferred to SBCC from another institution. DOC officials had
earlier determined that Perry was a member of a "Security Threat
Group" ("STG") or gang, known as Academy Homes, and SBCC officials
had concerns about ongoing tensions between Academy Homes and a
rival STG. SBCC officials determined that administrative
segregation was necessary because Perry posed an immediate threat
to the safety and security of the institution. Perry denied any
gang affiliation and challenged the reliability and sufficiency of
the information supporting both his STG designation and the
determination that he posed a security threat.
In February 2011, a classification decision was made to screen
Perry for out-of-state placement due to STG-related security
concerns. Perry remained in the SMU on awaiting action status,
first at SBCC and then at the Massachusetts Correctional
Institution ("MCI") at Cedar Junction for a total of approximately
fifteen consecutive months, interrupted only by a ten-day stay in
the health services unit after going on a hunger strike to protest
- 3 - his prolonged confinement in the SMU. After fifteen months, Perry
was transferred to a prison in Connecticut for six months. Upon
return to Massachusetts, he was again placed in an SMU at MCI-
Cedar Junction for an additional period of five months. In February
2013, Perry was released into the general population at MCI-
Shirley. In total, Perry spent 611 days in administrative
segregation.
The conditions in the SMU were akin to solitary confinement.
Throughout Perry's SMU confinement, prison officials reviewed
Perry's SMU placement and awaiting action status approximately
three times per week. Perry was informed that the administrative
reviews had occurred and that a decision to continue his awaiting
action status had been made, but he was not involved in the review
process and there was no means of appealing the status review
determinations.
DISCUSSION A. Legal Standards
We review de novo the district court's determination that
defendants were, as a matter of law, entitled to qualified immunity
with respect to the procedural due process claim based on Perry's
extended placement in the SMU. Wilber v. Curtis, 872 F.3d 15, 20
(1st Cir. 2017). We "must 'affirm if the evidence, viewed in the
light most favorable to [the] plaintiff[], shows that there is no
genuine issue as to any material fact and that the [officers are]
- 4 - entitled to summary judgment as a matter of law.'" Id. (quoting
Abreu-Guzmán v. Ford, 241 F.3d 69, 73 (1st Cir. 2001)).
"[Q]ualified immunity shields officials from civil liability
so long as their conduct 'does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.'" Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
(per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal quotation marks and citation omitted). Thus, to avoid
summary judgment for the defendant based on qualified immunity, a
plaintiff must show that the defendant's actions violated a
specific statutory or constitutional right, and that the right
allegedly violated was clearly established at the time of conduct
in issue. See Mitchell v. Miller, 790 F.3d 73, 77 (1st Cir. 2015)
("The plaintiff bears the burden of demonstrating that the law was
clearly established at the time of the alleged violation, and it
is a heavy burden indeed"); Lopera v. Town Of Coventry, 640 F.3d
388, 396 (1st Cir. 2011) ("A finding that a right was not clearly
established at the time of the alleged violation is sufficient to
warrant a finding of qualified immunity").
The "clearly established" inquiry has two components. Alfano
v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017). First, a plaintiff must
"identify either 'controlling authority' or a 'consensus of cases
of persuasive authority' sufficient to send a clear signal to a
reasonable official that certain conduct falls short of the
- 5 - constitutional norm." Id. (quoting Wilson v. Layne, 526 U.S. 603,
617 (1999)). "[W]e examine 'not only Supreme Court precedent, but
all available case law, including both federal cases outside our
own circuit, and state court decisions of the state wherein the
officers operated[.]" Wilson v. City of Boston, 421 F.3d 45, 56-
57 (1st Cir. 2005) (quoting Suboh v. District Attorney's Office,
298 F.3d 81, 93 (1st Cir. 2002) (citations omitted)); see Starlight
Sugar, Inc. v. Soto, 253 F.3d 137, 143-44 (1st Cir. 2001). Second,
"the court must evaluate 'whether an objectively reasonable
official in the defendant's position would have known that his
conduct violated that rule of law.'" McKenney v. Mangino, 873 F.3d
75, 81 (1st Cir. 2017), cert. denied, 138 S.Ct. 1311 (2018) (quoting
Alfano, 847 F.3d at 76). "These inquiries are carried out with
the understanding that qualified immunity is meant to shield
'all but the plainly incompetent or those who knowingly violate
the law.'" McKenney, 873 F.3d 75 at 81 (quoting White v. Pauly,
137 S.Ct. 548, 551 (2017) (per curiam)) (citation omitted).
B. Procedural Due Process
Perry claims that defendants violated his right to procedural
due process by confining him in the SMU without adequate
justification, opportunity to be heard, meaningful periodic
review, or avenue for appealing his placement. He contends that
the stated reasons for his placement in the SMU were used as a
pretext for indefinite confinement in restrictive segregation, and
- 6 - that the periodic reviews by defendants were perfunctory. To
prevail on this claim, Perry must demonstrate (1) that defendants
deprived him of a cognizable liberty interest, (2) without
constitutionally sufficient process. Swarthout v. Cooke, 562 U.S.
216, 219 (2011).
Inmates do not have a protected liberty interest in avoiding
restrictive conditions of confinement unless those conditions
"'impose[] atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.'" Wilkinson v.
Austin, 545 U.S. 209, 223 (2005) (quoting Sandin v. Conner, 515
U.S. 472, 484 (1995)). As the Court recognized in Wilkinson,
however, "the Courts of Appeals have not reached consistent
conclusions for identifying the baseline from which to measure
what is atypical and significant in any particular prison system."
Wilkinson, 545 U.S. at 223. The Wilkinson Court found it
unnecessary to define "atypical and significant hardship" because
it found that the conditions in that case met that standard "under
any plausible baseline." 545 U.S. at 223. There, inmates challenged
their assignment to administrative segregation in Ohio's
"supermax" prison, where the conditions were "sever[e]" and
"synonymous with extreme isolation." Id. at 214. The Court did not
find that the conditions created a liberty interest by themselves,
however; it also relied on the fact that placement in the supermax
facility was indefinite and it disqualified otherwise eligible
- 7 - inmates from consideration for parole. Id.
In 2012, the Massachusetts Supreme Judicial Court considered
whether ten months in the SMU at SBCC on awaiting action status
satisfied the "atypical and significant hardship" standard.
LaChance v. Commissioner of Correction, 463 Mass. 767, 776-77
(2012). Noting that the restrictive conditions in the SMU were
substantially similar to those described in Wilkinson, and far
more restrictive than the conditions in the general population
unit, the SJC concluded that the ten-month period of confinement
was sufficient to satisfy the standard and implicate a protected
liberty interest subject to due process protections, and further
held that the interest attaches after ninety days. See id. However,
the Court acknowledged that it was announcing a new rule, and that
up to that point, no federal or state court decision had clearly
articulated the point at which a liberty interest in avoiding
segregated confinement arose. See id. at 778.
Noting that Perry was released from the SMU just after LaChance
was decided, the district court here reached the same conclusion
as the SJC, and found that defendants were entitled to qualified
immunity because it would not have been obvious to prison officials
in 2010 whether or at what point Perry's confinement in the SMU
on awaiting action status became "atypical and significant." We
agree. While the restrictive conditions in the SMU were
substantially similar to those described in Wilkinson, other
- 8 - circumstances were arguably distinguishable and, while a number
of courts had, prior to 2010, held that periods of solitary
confinement shorter than Perry's were sufficient to give rise to
a liberty interest, see, e.g., Marion v. Columbia Corr. Inst., 559
F.3d 693, 697-99 & nn. 3-4 (7th Cir. 2009) (240 days in segregated
confinement potentially implicates liberty interest), other courts
had found comparable periods insufficient. See, e.g., Estate of
DiMarco v. Wyoming Dep't of Corr., 473 F.3d 1334 (10th Cir. 2007)
(14 months in administrative segregation insufficient). Given the
varying approaches to measuring atypicality and the absence of any
bright-line rule or consensus as to what combination of conditions
and duration of confinement in administrative segregation was
sufficient to implicate a liberty interest and trigger due process,
or at what point that interest arose, the contours of the liberty
interest were not sufficiently defined as to place the
constitutional question "beyond debate[.]" See Mullenix, 136 S.Ct.
at 308 ("[E]xisting precedent must have placed the statutory or
constitutional question beyond debate" (internal quotation marks
omitted)).
Further, even assuming that defendants should have known that
due-process requirements attached to Perry's placement in the SMU
at some point during his extended period of confinement, the level
of process due in the circumstances was not clearly established.
In Wilkinson, the Supreme Court endorsed "informal, nonadversary
- 9 - procedures" consistent with those set forth in Greenholtz v. Inmates
of Nebraska Penal & Corr. Complex, 442 U.S. 1 (1979), and Hewitt
v. Helms, 459 U.S. 460 (1983), where the liberty interest in
avoiding indefinite placement in a supermax prison was at stake. 545
U.S. at 225-28. The essential elements of this informal level of
process include "some notice" to the inmate of the basis for
confinement, an opportunity for the inmate to present his views,
either in a written statement or otherwise, to the decisionmaker,
"within a reasonable time" after the transfer to administrative
segregation, and "some sort of periodic review of the confinement"
to ensure that prison officials are not using administrative
segregation as "a pretext for indefinite confinement of an inmate."
Hewitt, 459 U.S. at 472, 476-77 & n.9; see Wilkinson, 545 U.S. at
225-28.
Determining the sufficiency of process in a particular situation
requires application of the Mathews v. Eldridge balancing test,
which weighs three factors: (1) the private interest affected
by the government action; (2) "'the risk of an erroneous
deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural
safeguards'"; and (3) the state's interest, "'including the
function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would
entail.'" Wilkinson, 545 U.S. at 224-25 (quoting Mathews, 424 U.S.
- 10 - 319, 335 (1976)).
In Wilkinson, the placement process involved three levels of
review and provided inmates two opportunities to file written
objections. The placement decision was reviewed after thirty days,
and then again on an annual basis, using the same three-tiered
system of review. The Court concluded that the procedures were
constitutionally sufficient, but did not find that they were the
minimum required, emphasizing that the standards are flexible,
particularly in the prison context, and the level of process due
will vary with the demands of a particular situation. Id. at 224.
The placement process followed in Perry's case provided fewer
safeguards. Unlike the classification process, which allows
inmates an opportunity to be heard and multiple levels of review,
the decision to place Perry in an SMU on awaiting action status
provided only an informal review process. Perry's SMU confinement
on awaiting action status was first reviewed within 72 hours of
his initial placement, and his status was reviewed about three
times a week thereafter. Perry received periodic written
notifications that he was on awaiting action status pending
investigation and, later, pending out-of-state placement, and that
administrative reviews of his placement had been conducted. He was
permitted to raise concerns about his status with officials on an
informal basis, but he was not provided an opportunity to
participate in the administrative reviews or to test the purported
- 11 - basis for his continued confinement, was not informed of steps he
could take to mitigate the perceived need for continued segregated
confinement, was not given any conditional release date, and was
not provided any explicit opportunity to contest his placement.
Perry asserts that the periodic reviews were perfunctory, noting
that he received the same boilerplate notice at every review,
and suggests that they were pretextual, as he was never
interviewed in connection with any investigation into his STG
status, was not advised of its progress or outcome, and was not
told when or why his status shifted from awaiting action pending
investigation to awaiting action pending out-of-state placement.
In LaChance, the SJC concluded that these procedures were
insufficient to provide meaningful review and safeguard the
inmate's interest in avoiding arbitrary confinement in severe
conditions, and held that segregated confinement on awaiting
action status for longer than 90 days required notice of the basis
for the placement, a hearing at which the inmate could contest the
asserted rationale for the placement, and a post-hearing written
notice explaining the reviewing authority's decision. LaChance,
463 Mass. at 776-77. But the SJC acknowledged that it was
announcing these requirements for the first time, and Perry was
released into the general population shortly after that decision
issued.
Perry suggests that, even if defendants could not have been
- 12 - expected to anticipate the precise requirements outlined in
LaChance, it was clearly established after Wilkinson that the
"informal, adversary procedures" required where an inmate's
interest in avoiding atypical and significant hardship was at stake
had to include some sort of meaningful periodic review. But
Wilkinson did not set any standards for such review in this
context. Moreover, in Hewitt, the Court emphasized the "broad
discretionary authority" prison administrators have in managing a
prison and maintaining security, and recognized that periodic
review was flexible and could be based on a "wide range of
administrative considerations" such as "facts relating to a
particular prisoner," including misconduct charges and any ongoing
investigations, and "on the officials' general knowledge of prison
conditions and tensions[.]" 459 U.S at 477 n.9. Defendants
submitted evidence demonstrating that those considerations at
least ostensibly factored into their review. In the absence of any
authority more specifically defining the review requirements in
these circumstances, Perry cannot show that no official could
reasonably have believed the review was adequate. See Mlodzinski
v. Lewis, 648 F.3d 24, 33 (1st Cir. 2011) ("'Immunity exists even
where the abstract "right" invoked by the plaintiff is well-
established, so long as the official could reasonably have believed
"on the facts" that no violation existed'") (quoting Dirrane v.
Brookline Police Dep't, 315 F.3d 65, 69 (1st Cir. 2002)).
- 13 - CONCLUSION
In sum, at the time Perry was confined in the SMU on awaiting
action status, it was not clearly established whether or at what
point a protected liberty interest arose, and the procedural
protections required in that circumstance had been defined only at
a high level of generality. Defendants were therefore entitled to
qualified immunity. Perry's "Late Motion to Suspend the Rules" is
granted, and the judgment of the district court is affirmed.
- 14 -