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Pamela L. Lutton, Thomas A. Beenck, Bruce Barkett, Asst. Attys. Gen., Dept. of Legal Affairs, Tallahasse, Fla., for defendants-appellants.
Robert Parker, pro se.
Appeal from the United States District Court for the Southern District of Florida.
Before KRAVITCH and FRANK M. JOHNSON, Jr., Circuit Judges and ALLGOOD[fn*], District Judge.
FRANK M. JOHNSON, Jr., Circuit Judge:
Plaintiff, an inmate at Glades Correctional Institution in Florida [GCI], was suspected of complicity in a scheme to sell favors to other inmates. After informing him that he was under investigation, prison officials placed him in "administrative segregation." He remained administratively segregated for approximately six weeks, at which time he was transferred to a hospital unit for treatment of a cold and body sores; he was thereafter released to the general prison population. Plaintiff then filed this Section 1983 action seeking damages as well as declaratory and injunctive relief for the alleged deprivations of his Fifth, Eighth, and Fourteenth Amendment rights. In his complaint plaintiff alleged that he was subjected to summary discipline without due process of law when he was placed in administrative confinement without being afforded a hearing on the charges against him, that he was denied access to his attorney through the use of the mail or telephone during his incarceration in administrative confinement, that he was denied adequate medical care during his incarceration in administrative confinement, and that the conditions of his confinement constituted cruel and unusual punishment. After a trial on the merits, the district court held that the procedures used to place plaintiff in administrative confinement violated due process, that the conditions of plaintiff's confinement in administrative segregation constituted cruel and unusual punishment, and that the other contentions had no merit. Although the court granted declaratory relief, it denied plaintiff's claim for damages on the basis of the State officials' qualified immunity from damages.
Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, the State filed a motion to alter judgment. The State urged that the procedures for placing a prisoner in administrative confinement are not subject to due process restrictions and, alternatively, that the court's holding on the due process issue should be limited to procedures at GCI rather than the statewide penal system. The district court adhered to its original decision.
On appeal the State briefed three grounds of error. First, it argued that procedural due process is not required when a prisoner is administratively segregated. Second, the State contended that, if due process is required, its procedures provide sufficient process to comport with constitutional standards. Last, the State maintained that the district court's order should be limited in application to GCI. In oral argument, however, the State explicitly abandoned its first two contentions and argued only that statewide application was inappropriate.
We agree with the State's argument as limited and accordingly reverse that part of the district court's order mandating statewide application. We are unable to limit our discussion to that narrow issue, however, for to explain our holding on the statewide application issue, we must address and examine some of the facts and legal principles applicable to the district court's proper disposition of the now-abandoned issues.
We start with the proposition that the due process clause protects only those liberty interests created by the state.[fn1] Since states rarely if ever explicitly label their creations as "liberty interests," we must look to the substance of the state action to determine whether a liberty interest has been created. And whether this substance is embodied in a constitution, statute, regulation, rule, or practice is of no significance; once a state creates a liberty interest, "[n]o State shall . . . deprive any person of [the liberty interest] without due process of law . . . ." U.S. Const. Amend. 14, § 1. Of course, due process is a flexible concept, and exactly what constitutes due process in any given situation depends on the nature of the liberty interest and the surrounding circumstances. E.g., Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961).
The State of Florida has established a prison system in which to confine those persons who are, in accordance with constitutional procedures, convicted of crimes against the State. These persons, while deprived of their liberty to live in freedom, nevertheless remain under the protection of the Constitution. E. g. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). "There is no iron curtain drawn between the Constitution and the prisons of this country." Id. at 555-56, 94 S.Ct. at 2974. Moreover, they remain recipients of whatever limited liberty interests the State may choose to grant them. As discussed above, once these liberty interests are created, they are protected against arbitrary deprivation by the due process clause. For example, if a person is convicted of armed robbery in Florida, he or she may be sentenced to prison for a term of years not exceeding life imprisonment, Fla.Stat.Ann. § 812.13 (West); however, this convicted felon may also be granted probation or parole. Id. § 947.16, § 948.01. Nothing in the Constitution requires the State to provide for probation or parole. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979). Assuming that the initial sentence is not violative of the Eighth Amendment or some other constitutional provision, the convicted felon may be lawfully imprisoned for the maximum sentence imposed. Once the State grants parole, however, the State cannot summarily and arbitrarily revoke it. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). This is so because the convict's interest in parole status has become a liberty interest within the meaning and protection of the Fourteenth Amendment. Hence, due process must be afforded. Similarly, if the State establishes a procedure for granting parole and thereby creates an expectation of parole, due process attaches. Greenholtz v. Nebraska Penal Inmates, supra, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668. As with all liberty interests, the expectation of parole can be created by statute or regulation, see id., or by practices of the State, see Meachum v. Fano, supra, 427 U.S. at 216, 96 S.Ct. at 2534; Mitchell v. Hicks, 614 F.2d 1016, 1019 (5th Cir. 1980); see also Dumschat v. Board of Pardons, 618 F.2d 216 (2d Cir. 1980); Winsett v. McGinnes, 617 F.2d 996 (3d Cir. 1980) (en banc).
By rule or regulation, the State of Florida authorizes at least two types of confinement[fn2] by which prison officials may segregate inmates from the general prison population.[fn3] First, disciplinary confinement is authorized in those cases in which prisoners are found to have violated one of the specified rules of conduct. Fla.Adm. Code Rule 33-3.08. Placing a prisoner in disciplinary confinement clearly affects the prisoner's liberty interest, e. g., Wolff v. McDonnell, supra, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d, 935, and thus invokes the protections of the due process clause. In recognition of this due process protection, the State affords process to inmates charged with misconduct. In recognition of the magnitude of liberty interests affected when an inmate faces confinement in disciplinary segregation or loss of gain time, the State provides more procedural safeguards than provided when a lesser liberty interest is at stake. Compare Fla.Adm.Code Rules 33-3.08(5)-(14) with Fla.Adm.Code Rule 33-3.08(19).
The second type of segregation authorized in Florida is administrative confinement.[fn4] The applicable regulations concerning administrative confinement specify that it "results in a loss of some privileges which the inmate would have if assigned to general population." Fla.Adm.Code Rule 33-3.08(1)(b). Although the regulations do not specify exactly what the conditions of administrative confinement will be, administrative confinement, with its attendant loss of privileges, appears to be less desirable from the inmate's viewpoint.[fn5] The regulations also list the reasons an inmate may be placed in administrative confinement, thus acknowledging that arbitrary assignments are not authorized[fn6] The reasons for placing an inmate in administrative confinement are as follows:
1. Awaiting disciplinary action.
2. For investigation.
3. For protection. . . .
4. At the inmate's own request for good and valid reasons.
5. Pending trial for a crime committed in the Department.
6. Death Row cases.
7. Custody risks who cannot be held in the regular inmate population.
8. Inmates who after disciplinary confinement appear to the Classification Team to be potentially assultive [sic] or disruptive and who still cannot be held in regular inmate population.
Id. 19(e). Often, the decision to place an inmate in administrative confinement requires no more than an examination of a prison file, as in the case of placing a death row inmate in confinement.[fn7] In other cases, however, the decision may be complex and may depend upon the resolution of many factual questions. Examples of the latter type case include those cases involving inmates who are deemed to be custody risks that cannot be held in the regular inmate population or cases involving inmates who after disciplinary confinement appear to be potentially assaultive or disruptive and who cannot reasonably and safely be returned to the regular inmate population. The State of Florida, however, affords all inmates, regardless of the reason for which they are administratively confined, the same procedural safeguards. Basically, these procedures provide written notice to the inmate of the reason for administrative confinement and an opportunity for the inmate to make a statement. No provision is made for the inmate to present evidence in his own behalf.
The district court found that at the time plaintiff was confined in administrative segregation, the conditions of administrative segregation, at GCI were almost identical to the conditions of disciplinary confinement. The same fifteen-cell wing was used to house administrative and disciplinary detainees;[fn8] furthermore, when it was necessary to house more than one inmate in each cell, inmates in administrative segregation were often confined in the same cell as inmates in punitive segregation. The only differences between administrative and punitive confinement, which the district court aptly characterized as "minor, if not negligible distinctions," were that administrative confinees had certain tobacco privileges that were denied disciplinary confinees, and administrative confinees could shower twice a week as compared to the once-a-week shower allowed disciplinary detainees.[fn9]
Reasoning that the consequences of administrative segregation were virtually identical to the consequences of disciplinary segregation, the district court found that the rule of Wolff v. McDonnell, supra, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, which requires due process in prison disciplinary proceedings, applies to inmates placed in administrative segregation in the Florida penal system. Rather than limit its holding to the procedures employed at GCI, the district court rendered a judgment affecting the entire state system. This was necessary, in the court's opinion, because the regulations upon which the officials at GCI relied to administratively segregate inmates were applicable statewide. Apparently, the court reasoned that, if the regulations produced unconstitutional results when implemented at GCI, they would produce unconstitutional results at any other Florida prison. We agree that the regulations produced unconstitutional results at GCI, but, for the reasons detailed below, we feel that the record does not support a judgment affecting the statewide penal system.
As to the conditions at GCI, we think it self-evident that the State of Florida cannot, by merely attaching the label of administrative segregation to its actions, transform what is in substance disciplinary action subject to due process restrictions into administrative action outside the purview of the due process clause. See Wright v. Enomoto, 462 F.Supp. 397, 402 (N.D.Cal. 1976) (3-judge court) ("When a prisoner is transferred from the general prison population to the grossly more onerous conditions of maximum security, be it for disciplinary or for administrative reasons, there is severe impairment of the residuum of liberty which he retains as a prisoner - an impairment which triggers the requirement for due process safeguards."), aff'd
As to the statewide application issue, we first acknowledge that an initial assignment to a prison or a transfer from one prison to another is not generally subject to due process restrictions.[fn11] This is so because in the past states generally have not given convicts a liberty interest in serving their sentences at particular facilities. Of course, it goes without saying that states could grant convicted persons such a liberty interest, which would then be protected by the due process clause against arbitrary deprivations.
Initial assignments and inter-prison transfers, however, are not at issue here. Instead, we are concerned with transfers within a particular prison. States may, and often do, set forth regulations or engage in practices that give rise to an interest in being assigned to certain sections within a prison. See Vitek v. Jones, 445 U.S. 480, 489, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552 (1980) (states "may grant prisoners liberty interests that invoke due process protections when prisoners are transferred to solitary confinement for disciplinary or administrative reasons); see also Enomoto v. Wright,
It is apparent that the determination whether a state has granted inmates a liberty interest in remaining in general population requires an inquiry into the state's statutes, regulations, and practices. Initially, this inquiry must be made at the district level. Even though statutes and regulations are written, an appellate court would have difficulty reviewing a district court determination of whether a liberty interest was created in the absence of a full factual development concerning the practices of the state, for the interaction between written regulations and actual practices often produces results not apparent by a mere examination of the regulations. Moreover, the practices of a state may be determinative, for even if a state by statute or regulation explicitly refuses to grant inmates certain liberty interests, practices of a state may nevertheless give rise to those same liberty interests. In the event a liberty interest is determined to exist, a detailed examination of the degree of the change in conditions is necessary to determine what minimum process the state must provide.
In the instant case, the district court made the appropriate inquiries in regard to the practices at GCI. But there was no inquiry into the practices of the State of Florida at its other penal institutions; neither was there inquiry into the change in conditions of imprisonment to which an inmate at other institutions might be subjected. Thus, a factual basis for the district court's statewide order did not exist. Normally we would remand a case such as this to the district court for a full development of relevant facts. In this case, however, remand for a full factual development is inappropriate since plaintiff did not challenge the statewide practices. He challenged only the practices as they affected his transfer at GCI. The district court reached the issue of statewide applicability because it was of the opinion that its finding that the regulations as applied at GCI deprived inmates of due process of law mandated a similar finding statewide. While the regulations, combined with the state practices at other prisons, may produce liberty interests that are protected by the Fourteenth Amendment against arbitrary deprivation, plaintiff did not present this issue to the district court and it was not litigated before the district court. Accordingly, there is no need to remand for litigation on this issue.
The judgment of the district court is AFFIRMED and REMANDED insofar as it affects Glades Correctional Institute and VACATED insofar as it affects the statewide Florida penal system.
[fn*] District Judge of the Northern District of Alabama, sitting by designation.
[fn1] The principle that the due process clause protects only those liberty interests created by the state supplied the basis for the Supreme Court decisions of Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976) and Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). In dissent Justice Stevens severely criticized this approach, saying that "I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights." Meachum v. Fano, supra, 427 U.S. at 230, 96 S.Ct. at 2541 (Stevens, J., dissenting). In the recent case of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), Justice Stevens argued in dissent that the Court had abandoned its position and accepted as a constitutional principle that the word "liberty" in the due process clause, in and of itself, gives rise to interests protected by the due process clause. Id. at 580, 99 S.Ct. at 1895 (Stevens, J., dissenting). The Bell majority, however, pointed out that its position was consistent with precedent. Id. at 535, 99 S.Ct. at 1871 (citing Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-67, 186, 83 S.Ct. 554, 565-567, 576, 9 L.Ed.2d 644 (1963); Wong Wing v. United States, 163 U.S. 228, 237, 16 S.Ct. 977, 980, 41 L.Ed. 140 (1896)). Suffice it to say that while some Supreme Court cases can be construed to protect liberty interests other than those created by the state, for the purposes of this case we need not define the perimeters of the due process clause. For the purposes of this case we follow the rationale that the due process clause protects only those liberty interests created by the state.
[fn2]
[fn3] We observe that it is not inherently unconstitutional to differentiate among classes of prisoners, providing some classes with more desirable living conditions; for example, "[t]here is nothing in the Constitution which requires prison officials to treat all inmate groups alike when differentiation is necessary to avoid an imminent threat of institutional disruption or violence." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 137, 97 S.Ct. 2532, 2543, 53 L.Ed.2d 629 (1977). Indeed, failure to segregate dangerous inmates from their less dangerous counterparts may constitute cruel and unusual punishment of the less dangerous inmates. Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir. 1981).
[fn4] The distinction between what is usually referred to as administrative confinement and what is usually referred to as disciplinary confinement was succinctly summarized in United States ex rel. Gereau v. Henderson, 526 F.2d 889, 896 (5th Cir. 1976).
By "administrative" transfer we mean one that is based solely on proper administrative and correctional criteria, and not on an inmate's institutional behavior. In a truly administrative transfer, the reasons for transfer are extrinsic to the inmate's prison behavior
. . . .
A nondisciplinary transfer is closely akin to the initial determination of the place and specific facility for confinement . . . .
[fn5] We observe that in some instances administrative confinement may be more desirable from the inmate's viewpoint, for inmates may be placed in administrative segregation at their own request. Fla.Adm.Code Rule 33-3.08(19)(e)4.
[fn6] The principle that states may not act arbitrarily against prison inmates or felons has been repeatedly recognized in a variety of contents. See, e. g., Bell v. Wolfish, supra, 441 U.S. at 539, 99 S.Ct. at 1874. ("[I]f a restriction or condition is not reasonably related to a legitimate goal - if it is arbitrary or purposeless - a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.") Sullivan v. Ford, 609 F.2d 197, 198 (5th Cir. 1980) (recognizing the prohibition against arbitrary prison regulations); Cruz v. Beto, 603 F.2d 1178 (5th Cir. 1979) (recognizing that prison officials may not arbitrarily segregate inmates because they are clients of a certain attorney); Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978) (recognizing that states may not arbitrarily curtail correspondence of inmates with free citizens); Shepherd v. Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978) (recognizing that states may not arbitrarily reenfranchise some felons and leave others disenfranchised).
[fn7] It appears that, when a person in Florida is convicted of a capital crime and sentenced to death, that person is transferred to a prison and immediately placed in administrative segregation. Because death row inmates are never placed in the general population or given an expectation of being placed in the general population, it appears that no liberty interest is affected when they are placed in administrative segregation. Assuming that the State's classification of these inmates is sufficiently rational to withstand an equal protection challenge (a question about which we express no opinion) and that all other constitutional guarantees are met, cf., Lee v. Washington,
[fn8] The district court described the physical condition of the segregation wing as follows:
The cells are similar, each measures five feet by eight feet. The cells have metal doors with heavy grating over the openings therein. Each cell has an entrance for the supply and removal of food trays. The cells are equipped with commodes, a sink with only cold water, two mattresses, two mattress covers and four blankets. There are bunk facilities on which to place mattresses in some of the cells, in others one of the mattresses must be put on the floor.
Lighting and climate control in the cells at the time complained of were non-existent. There are no lights in the corridor outside of the cell doors. Only natural light was provided during the daytime hours.
Ventilation was by "natural air flow." No circulation or exhaust fans were used. There was no automatic cooling or heating system. In fact, there was no heating system whatsoever in the building. During plaintiff's segregation the temperature in his cell often reached into the 40 ° range and was in the 30 ° range on at least one occasion. The method of controlling the temperature in segregation was simply to hand out an additional blanket.
It should be noted that the inmates in segregation were allowed to wear only a tee-shirt and short, mid-thigh pants.
[fn9] On appeal the State urged that the following additional distinctions existed: that administrative confinees could receive desserts or beverages with their meals, but disciplinary confinees could not; that administrative confinees were allowed various reading materials, but disciplinary confinees were not; and that administrative confinees could arrange to have visitors, but disciplinary confinees could not. But the State did not explicitly challenge as being clearly erroneous the district court's finding that the only distinctions related to shower and tobacco privileges, and a review of the record convinces us that, if such a challenge had been advanced, the district court's findings should be sustained. We observe, however, that the minor additional distinctions urged by the State on appeal would have no bearing on our decision today.
[fn10] While having no bearing on our decision today, it is interesting to note that if plaintiff had been charged with and found guilty of the misconduct of which he was suspected, under the prison rules and regulations he could not have been confined in disciplinary confinement as long as he was actually held in "administrative" confinement.
[fn11] As suggested above, every state action carrying adverse consequences for prison inmates does not activate a due process right. Moody v. Daggett,
[fn12] Similarly, a transfer from one unit of general population to another comparable unit does not normally offend the Eighth Amendment. "If new conditions of confinement are not materially different from those affecting other prisoners, a transfer for the duration of a prisoner's sentence might be completely unobjectionable and well within the authority of the prison administrator." Hutto v. Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978).
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