William Seltzer-Bey v. Paul Delo Don Roper Donna McCondichie James Reed Charles Gillam Daniel Blair James Amacker ( 1995 )

HEANEY, Circuit Judge,

concurring.

I agree with the majority’s discussion of Count I of Seltzer-Bey’s complaint. I also agree that the prison officials were entitled to qualified immunity on Count III of the complaint and that the district court did not abuse its discretion in not compelling the defendants to comply with Seltzer-Bey’s discovery requests.

With respect to Count II, I agree with the majority that Seltzer-Bey has failed to demonstrate the existence of a state-created liberty interest. I believe, however, that on this issue the case must be limited to the facts presented. In other circumstances, the prison officials’ placement of Seltzer-Bey in the strip cell would likely constitute an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” and would be a “dramatic departure from the basic conditions” of Seltzer-Bey’s confinement, thus giving rise to due process protections. Sandin v. Conner, — U.S. —, —, 115 S.Ct. 2293, 2300, 2301, 132 L.Ed.2d 418 (1995).