Raymond J. Stephany v. George Wagner, Warden, Robert Santoro, Assistant Warden, Joseph Demarco, Prison Administrator

835 F.2d 497

• Court: Court of Appeals for the Third Circuit
• Decided: January 5, 1988
• Docket: 87-1122
• Status: Published

Opinions

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Raymond J. Stephany filed this civil rights action under 42 U.S.C. § 1983 against various officials of the Berks County Prison (Prison), alleging that his due process rights were violated by his two month confinement in administrative segregation in the Prison. On cross-motions for summary judgment the district court entered judgment for defendants, finding that the Prison rules regarding administrative segregation do not give rise to a constitutionally protected liberty interest in remaining in the general prison population.

Stephany argues on appeal that because a Prison rule establishes specific substantive predicates for confinement in administrative segregation, it creates a liberty interest. If it does, we would be required to remand so that the district court could resolve the factual conflict as to whether Stephany received the process that was due.

I.

Facts

On July 31, 1983, while incarcerated in the Berks County Prison, Stephany was transferred from the general prison population to administrative segregation. Confinement in administrative segregation is more restrictive than that in the general prison population: Stephany’s privileges were limited, he was confined to his cell except for exercise and showers, his visitation rights were restricted, he was prohibited from having contact with the general prison population, and he was denied access to activities that would have been available to him had he remained in the general prison population.

The next day, Stephany was given a form entitled “Record of Administrative Segregation” which stated merely, “[b]ased on information received this individual is being locked up as a security risk.” App. at 16. On at least three occasions, Stepha-ny wrote to prison officials requesting more specific information regarding the reasons for his confinement and a hearing on the matter. Stephany was never given a hearing and the only explanation he received in response to his request for information was a note from Warden Wagner stating that, “[y]our status is that of a security risk. You seem well aware of the fact. The fact that you deny this does not necessarily mean you are innocent.” App. at 17.¹ The prison officials have since explained that Stephany was placed in administrative segregation “based upon reports received from several officers and a prison informant regarding an escape attempt from the Berks County Prison in which it was believed [Stephany] was involved.” App. at 30.

Stephany’s transfer to administrative segregation was reviewed and approved by both Warden George Wagner and Assistant Warden Robert Santoro within two days of his placement therein. In addition, various prison officials reviewed Stepha-ny’s continued segregation on nearly a daily basis throughout its duration. On October 7,1983, after more than two months in administrative segregation, Stephany was returned, without explanation, to the general prison population. Stephany was never charged with misconduct or crime in connection with the events that resulted in his placement in administrative segregation.

Stephany filed a pro se complaint in the United States District Court for the Eastern District of Pennsylvania alleging that Warden Wagner, Assistant Warden Santo-ro and Prison Administrator Joseph De-Marco violated his civil rights under 42 U.S.C. § 1983 by placing him in administrative segregation without providing him with notice of the particular reasons why he was so segregated and with a meaningful opportunity to present his own views. Stephany contended that he had a constitutionally protected liberty interest to remain in the general prison population by virtue of a rule² contained in the Berks County Prison Residents Handbook (the Handbook). The defendants argued that the Handbook rule is merely descriptive and does not create a liberty interest. The district court agreed with defendants and granted their motion for summary judgment. Stephany v. Wagner, 655 F.Supp. 155, 158 (E.D.Pa.1987). Our scope of review over the grant of summary judgment is plenary. See Struble v. New Jersey Brewery Emp. Welfare Trust Fund, 732 F.2d 325, 330 (3d Cir.1984).

II.

Discussion

It is well established that the requirements of procedural due process are triggered only when a protected interest is at stake. See e.g., Meachum, v. Fano, 427 U.S. 215, 223-24, 96 S.Ct. 2532, 2537-38, 49 L.Ed.2d 451 (1976). A protected liberty interest may arise directly from the Constitution or from a state statute, see, e.g., Board of Pardons v. Allen, — U.S.-, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (state statute creates liberty interest in parole release), regulation, see, e.g., Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (state regulations create liberty interest in remaining in general prison population), or prison rule “defining the obligations of the authority,” Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 2465, 69 L.Ed. 2d 158 (1981); see Clark v. Brewer, 776 F.2d 226, 232 (8th Cir.1985) (written policy regarding transfers to administrative segregation that were contained in a department of corrections employees’ manual); Gurule v. Wilson, 635 F.2d 782, 785 (10th Cir.1981) (guideline in prison officials’ manual covering reclassification system).

The Supreme Court has recently decided that the Due Process Clause does not give a prisoner a liberty interest in remaining in the general prison population because “administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration.” Hewitt, 459 U.S. at 468, 103 S.Ct. at 869. Therefore, we must determine whether Stephany has a state-created liberty interest in remaining free from administrative segregation.

The Pennsylvania regulations at issue in Hewitt are not applicable to county prisons. There are also state regulations governing the classification of prisoners in county correctional institutions, but Stephany does not rely on these for his claim of a liberty interest, possibly because the district courts have consistently held that these regulations do not create a liberty interest. See, e.g., Tyler v. Rapone, 603 F.Supp. 268 (E.D.Pa.1985); Marshall v. Kozakiewicz, 601 F.Supp. 1549 (W.D.Pa.1985). Stephany bases his claim of such a liberty interest on the rule governing administrative segregation contained in the Berks County Prison Residents Handbook.³

The Handbook rule on which Stephany relies provides, inter alia:

D. Administrative Segregation: Definition: The confinement of an inmate to his own or another cell pursuant to administrative review consistent with the policy outlined below.

1. Indications for Use:

Administrative segregation may be considered when:

(a) The security of the institution and/or the safety of any individual(s) is immediately threatened.

(b) Upon the recommendation of a physician or mental health caseworker that, in his or her professional opinion, it would be in the best interests of said inmate(s) to be confined.

(c) When an inmate engages in behaviors that are immediately threatening to his/her life and/or health.

(d) When an inmate requests protective custody.

Stephany argues that the district court erred in focusing on the absence of any provisions for written notification to the prisoner or for a hearing. See Stephany, 655 F.Supp. at 157. It is of course correct that mandatory procedures are not a prerequisite to finding a state-created liberty interest. For example, in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 539-41, 105 S.Ct. 1487, 1491-93, 84 L.Ed.2d 494 (1985), the Court, in holding that states may not condition the grant of a property interest in public employment through limitation of the procedures to be applied, explained that once the state created a substantive property right, the floor for the procedures due is set by the federal Constitution. See also Logan v. Zimmerman Brush Co., 455 U.S. 422, 432, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982). Conversely, the specification of particular procedures does not in itself create a protected liberty interest. See Olim v. Wakinekona, 461 U.S. 238, 249-51, 103 S.Ct. 1741, 1747-49, 75 L.Ed.2d 813 (1983).

It follows that the existence of specified procedures alone is neither necessary nor sufficient to create a liberty interest, but, rather, is relevant only to the extent that it evidences a state’s intent to limit official discretion. As the Supreme Court has noted, “the State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right.” Olim, 461 U.S. at 250, 103 S.Ct. at 1748 (footnote omitted); see Hewitt, 459 U.S. at 471, 103 S.Ct. at 871 (fact that Pennsylvania created a careful procedural structure to regulate use of administrative segregation does not indicate existence of protected liberty interest); see also Toussaint v. McCarthy, 801 F.2d 1080, 1097 (9th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987); Beard v. Livesay, 798 F.2d 874, 877 (6th Cir.1986).

Thus, the dispositive question in determining whether a state rule creates a protected liberty interest is whether it “plac[es] substantive limitations on official discretion.” Olim, 461 U.S. at 249, 103 S.Ct. at 1747. Specifically,

[a]n inmate must show “that particularized standards or criteria guide the State’s decisionmakers.” Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S.Ct. 2460, 2466, 69 L.Ed.2d 158 (1981) (Brennan, J., concurring). If the decisionmaker is not “required to base its decisions on objective and defined criteria,” but instead “can deny the requested relief for any constitutionally permissible reason or for no reason at all,” ibid, the State has not created a constitutionally protected liberty interest. See id., at 466-467, 101 S.Ct. at 2465 (opinion of the court); see also Vitek v. Jones, 445 U.S. 480, at 488-491, 100 S.Ct. 1254, 1261-63, 63 L.Ed.2d 552 (1980) (summarizing cases).

Id.

Arguably, the fact that the Prison rule specifies four occasions in which administrative segregation is appropriate can be read to suggest that these are the only such occasions. If so, the rule would sufficiently limit the prison officials’ discretion to create a liberty interest. It appears to us, however, that that argument, although plausible, is precluded by the Supreme Court’s analysis in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the case presenting the most analogous issue.

The Pennsylvania prison regulations considered in Hewitt also contained specific substantive predicates for administrative segregation, i.e. “where it has been determined that there is a threat of a serious disturbance, or a serious threat to the individual or others.” Id. at 470-71 n. 6, 103 S.Ct. at 871 n. 6. The Supreme Court, however, did not rely only on the presence of such substantive predicates in concluding that the state had created a protected liberty interest. In fact, it characterized as having “considerable force” the argument “that the decision whether to confine an inmate to administrative segregation is largely predictive, and therefore that it is not likely that the State meant to create binding requirements.” Id. at 472, 103 S.Ct. at 871.

Instead of focusing solely on the substantive predicates, the Court looked to both the state’s use of “language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed,” and the provision “that administrative segregation will not occur absent specified substantive predicates,” as the basis for its conclusion that the regulations sufficiently constrained official discretion to create a liberty interest. Id. at 471-72, 103 S.Ct. at 871; see Hayes v. Lockhart, 754 F.2d 281, 283 (8th Cir.1985) (regulation requiring, inter alia, a hearing prior to placement in administrative segregation creates liberty interest); Parenti v. Ponte, 727 F.2d 21, 25 (1st Cir.1984) (in conjunction with substantive predicates, “detailed procedural requirements” create liberty interest). It follows that we must examine whether the Prison rule at issue in this case contains explicitly mandatory language comparable to the regulations at issue in Hewitt.

The Hewitt regulations mandated that the inmate “shall be notified in writing as soon as possible that he is under investigation and that he will receive a hearing if any disciplinary action is being considered after the investigation is completed.” 459 U.S. at 471 n. 6, 103 S.Ct. at 871 n. 6. There is no comparable provision in the Prison rule.⁴ Instead, the Prison rule requires only that in situations warranting administrative segregation, the Shift Commander shall report to the warden or assistant warden or, if neither is available, shall “use his discretion.” App. at 45. The Hewitt regulations next provided that “[a]n investigation shall begin immediately to determine whether or not a behavior violation has occurred.” 459 U.S. at 471 n. 6, 103 S.Ct. at 871 n. 6. The Prison rule does not command an investigation in the same terms, but instead merely assumes that there will be a “comprehensive investigation and review.” App. at 45.

Finally, the Hewitt regulations provided that “[i]f no behavior violation has occurred, the inmate must be released as soon as the reason for the security concern has abated but in all cases within ten days.” 459 U.S. at 471 n. 6, 103 S.Ct. at 871 n. 6. No comparable time limitation exists in the Prison rule, nor is there any language governing a segregated inmate’s return to the general population. The rule states merely that “restrictions will be modified as the situation warrants.” App. at 45. The decision as to when an inmate is to be released from administrative segregation is thus left wholly unchecked. This is in contrast to the procedures mandated by other prison rules which have been found to supplement the specified substantive predicates in creating a liberty interest. For example, in Toussaint v. McCarthy, 801 F.2d 1080, 1098 (9th Cir.1986), the prison regulations provided that “[r]elease from segregation status shall occur at the earliest possible time in keeping with the circumstances and reasons for the inmate’s initial placement in administrative segregation.”

In sum, although the Prison rule does require daily review “of the matter in question”, the Prison rule is otherwise in sharp contrast to the Pennsylvania regulations because of the absence of any comparable mandatory criteria. See Hall v. Unknown Named Agents, 825 F.2d 642 (2d Cir.1987) (no liberty interest implicated in transfer to special adjustment unit when no pre-trans-fer procedures were necessary and no substantive predicates existed).

We are, of course, cognizant of the irony in relying for our conclusion that the Prison rule does not create a liberty interest on the Supreme Court’s opinion in Hemtt which ultimately held that the Pennsylvania regulations did create a liberty interest. The only explanation for the Court’s holding appears in the one paragraph pointing to the language in the Pennsylvania regulations of “an unmistakably mandatory character.” Hewitt, 459 U.S. at 471-72, 103 S.Ct. at 871. We find some guidance elsewhere in the opinion where the Court followed the theme of its recent decisions in stressing that “the safe and efficient operation of a prison on a day-to-day basis has traditionally been entrusted to the expertise of prison officials.” Id. at 470, 103 S.Ct. at 870. The Court suggested that, therefore, “regulations structuring the authority of prison administrators may warrant treatment, for purposes of creation of entitlements to ‘liberty,’ different from statutes and regulations in other areas.” Id.

Our conclusion that the Prison rule does not create a liberty interest leads to the disquieting result that prison officials could commit a prisoner such as Stephany to administrative segregation for months without giving him a meaningful opportunity to correct what may be the erroneous factual basis upon which such commitment was based. We are bound, however, to leave correction of the situation to the state or prison authorities.

III.

We conclude that we are constrained by the decision in Hewitt v. Helms to agree with the district court that the Prison rule in question does not create a liberty interest in prisoners to be free from administrative segregation.⁵ We will therefore affirm the order of the district court granting summary judgment for the defendants.

1 . Robert Santoro, Assistant Warden of the Prison, responded to a similar request from Stepha-ny by stating that "Warden Wagner has already responded.” App. at 34.

2 . The relevant provision of the Berks County Prison Residents Handbook regarding the standards and procedures to be utilized in cases of administrative segregation has been referred to by the parties as both a “regulation" or a “rule.” We will use the term “rule" throughout.

3 . The record does not establish by whom the Berks County Prison Residents Handbook was promulgated and the purposes for which it was issued. Defendants do not argue that the Handbook rule does not carry the necessary force to establish a liberty interest. In view of this concession by the defendants, we do not address the issue of whether a Handbook provision is, in fact, a rule or regulation binding on prison authorities in other circumstances.

4 . The procedure specified in the applicable Berks County Prison rule is as follows:

2. Provisions:

(a)When any of the above situations occurs, the Shift Commander on duty shall report immediately to either the Warden or Assistant Warden. In the event that these individuals cannot be reached the Shift Commander shall use his discretion in the matter and shall consult the Warden or Assistant Warden as soon as is practical.

(b) After comprehensive investigation and review of the matter, the Administrator may:

(i) Order an individual confined to his own cell.

(ii) Transfer an individual to another area or cell.

(c) The matter in question will be reviewed by the Administration on a daily basis, and restrictions will be modified as the situation warrants.

App. at 45.

5 . The district court also appears to have held, in the alternative, that even if the Prison rules had created a liberty interest requiring compliance with due process prior to administrative segregation, there was no denial of due process because "the procedures outlined in the Handbook were followed with respect to Stephany.” Stephany v. Wagner, 655 F.Supp. 155, 158 (E.D.Pa.1987). In light of our holding today, we do not reach the issue of whether or not the process afforded Stephany comported with the Due Process Clause of the Fourteenth Amendment.