David Pickelhaupt v. Andrew Jackson

FILED
NOT FOR FULL-TEXT PUBLICATION Feb 04, 2010
File Name: 10a0071n.06 LEONARD GREEN, Clerk
No. 08-2310
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAVID PICKELHAUPT,
Plaintiff-Appellee,
v.
ANDREW JACKSON, Warden, ON APPEAL FROM THE
Mound Correctional Facility; UNITED STATES DISTRICT
RAYMOND BOOKER, Warden, COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
Defendants,
and
CONSTANCE BANKS, in her official
and individual capacities; MONTINA
MALONE, former Acting Classification
Director, in her official and individual
capacities,
Defendants-Appellants.
_________________________________________/
BEFORE: SUHRHEINRICH, COLE, and GILMAN, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Defendants Constance Banks and Montina Malone,
prison officials at the Michigan Department of Corrections (MDOC), bring this interlocutory appeal
to challenge the district court’s decision to deny their motion to dismiss on the basis of qualified
immunity. We REVERSE.
I. Background
MDOC policy directives and operating procedures authorize the Classification Director to
assign prisoners jobs and to set their wages according to standardized pay scales. MDOC Policy
Directive (PD) 05.02.110, “Prisoner Work Assignment Pay and School Stipend,” states that
“[p]risoners in Correctional Facilities Administration (CFA) who are assigned to work . . . shall be
paid . . . for the assignment as set forth in this policy.” Prisoners working in a position for which
they have provided proof of being currently or previously licensed by a state agency “shall be paid
at the third level of the license pay scale.”
Plaintiff David Pickelhaupt is an inmate in the custody of the MDOC. He has been
incarcerated at the North Ryan Facility (NRF or Mound) since May 15, 1997. In April 2001,
Pickelhaupt accepted a position performing physical plant maintenance. The Classification Director
at that time, Ava Roby, determined that Pickelhaupt should be paid at the third level of the licensed
pay scale, $3.04 per day (plus an additional $0.30 because Pickelhaupt worked in numerous
hazardous situations), because he had a state certified mechanics license, a certificate of completion
in auto mechanics from a local community college, and over 1000 hours of training.
In April 2005, the new Classification Director, Montina Malone, audited the pay rates for
prisoners. She concluded that Pickelhaupt should have been paid the standard pay scale rate of $1.77
per day, not the advanced pay scale rate of $3.04 per day, because he was not using his license in the
performance of his prison duties. She reduced his rate accordingly. This reduction occurred without
any notice or hearing.1
1
Effective, January 1, 2009, Pickelhaupt’s wage rate was increased from $1.77 to $3.04 per
day.
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Pickelhaupt filed a pro se complaint on December 8, 2005, against the NRF. On June 15,
2006, Defendant Andrew Jackson, the Warden at NRF, moved to dismiss the complaint on the
ground that Pickelhaupt failed to exhaust his administrative remedies prior to filing suit as required
by 42 U.S.C. § 1997e(a). On December 4, 2006, the district court ordered that counsel be appointed,
and that Pickelhaupt thereafter have an opportunity to file an amended complaint. On May 25, 2006,
Pickelhaupt filed an amended complaint through counsel against Raymond Booker (former warden
at NRF), Andrew Jackson (former warden at NRF who retired in 2006), John Jeffries (the current
Classification Director at NRF), Ava Roby (the Classification Director at NRF from 2001 to
February 2005), Dr. Constance Banks (the School Principal at NRF), and Montina Malone (the
Classification Director at NRF from April 2005 to October 2005), alleging that they violated his
rights under the Due Process Clause of the Fourteenth Amendment. He also alleged a state-law
claim of promissory estoppel. He sought back pay.
Defendants moved for summary judgment, arguing they were entitled to qualified immunity.2
The magistrate judge recommended that Defendants’ motion be granted on the ground that
Pickelhaupt had not alleged the violation of a constitutional right because he did not have a property
interest in prison employment. The district court adopted the report and recommendation in part and
rejected it in part.3
2
Originally the parties agreed to dismiss Jeffries and Malone, so the summary judgment
motion was filed by Booker, Jackson, Jeffries, Roby, and Banks. Later, the parties agreed to
reinstate Malone as a party and to dismiss Roby.
3
The district court otherwise agreed with the magistrate’s recommendations to dismiss the
other claims and defendants.
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The district court concluded that Pickelhaupt had created a genuine issue of material fact
regarding whether he had a protected property interest based on the language of the MDOC policies.
Thus, the district court held that “it would have been apparent that procedural due process requires
notice and a hearing before the deprivation.” Pickelhaupt v. Booker, No. 05-74660, U.S. Dist.
LEXIS, at *7 (W.D. Mich., Sept. 30, 2008) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 542 (1985)).
Banks and Malone filed this timely appeal. The district court subsequently issued an order
staying the case pending resolution of this appeal.
II. Appellate Jurisdiction
Initially, we consider our jurisdiction to hear this appeal. It is well settled that an order
denying qualified immunity is immediately appealable pursuant to the “collateral order” doctrine if
the denial is based on a pure issue of law. Chappell v. City of Cleveland, 585 F.3d 901, 905 (6th
Cir. 2009).4
III. Qualified Immunity
Government officials acting within the scope of their authority are entitled to immunity from
suit unless their conduct violates the plaintiff’s clearly-established constitutional rights. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Jones v. Byrnes, 585 F.3d 971, 974 (6th Cir. 2009) (per
curiam). Qualified immunity involves a two-step analysis: First, the court asks whether the
official’s conduct violated a constitutional right, and if so, the question becomes whether that right
was “clearly established” at the time of the violation. Jones, 585 F.3d at 975. If the answer to either
4
Defendants have conceded Pickelhaupt’s version of the facts so that only a question of law
is presented.
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question is no, then the official is entitled to qualified immunity. Id. The Supreme Court recently
made clear in Pearson v. Callahan, – U.S. – , 129 S. Ct. 808 (2009), that the courts are free to
answer these questions in any order. See id. at 813; Jones, 585 F.3d at 975.
“The Fourteenth Amendment protects an individual from deprivation of life, liberty or
property, without due process of law.” Bazetta v. McGinnis, 430 F.3d 795, 801 (6th Cir. 2005). To
establish a Fourteenth Amendment procedural due process violation, a plaintiff must show that one
of these interests is at stake. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Thus, procedural due
process analysis involves two steps: “[T]he first asks whether there exists a liberty or property
interest which has been interfered with by the State; the second examines whether the procedures
attendant upon that deprivation were constitutionally sufficient.” Ky. Dep't of Corrs. v. Thompson,
490 U.S. 454, 460 (1989) (citations omitted); Bazetta, 430 F.3d at 801. In other words, the question
of what process is due is relevant only if the inmate establishes a constitutionally protected interest.
See Wilkinson, 545 U.S. at 224.
Pickelhaupt claims that he has a constitutionally protected property interest in the wage Roby
contracted to pay him based on the authority delegated to the Classification Director in the MDOC
policies and regulations. Defendants contend that Pickelhaupt has no such property interest, based
on the rule of Sandin v. Conner, 515 U.S. 472 (1995). In Sandin, the Supreme Court held that state
prison regulations do not create protected liberty interests unless they impose restraints “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.” Sandin v. Conner, 515 U.S. 472, 484
(1995) (citations omitted).
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The issue in Sandin was whether the prisoners had a right to procedural due process prior to
their placement into segregated confinement as punishment for disruptive behavior. The Sandin
Court noted that some of its earlier cases, particularly Hewitt v. Helms, 459 U.S. 460 (1983), used
a methodology for identifying state-created interests that emphasized “the language of a particular
[prison] regulation” rather than “the nature of the deprivation.” Sandin, 515 U.S. at 481, 482. The
Sandin Court criticized this approach because it created a disincentive for states to codify prison
management procedures, and it involved the federal courts in the day-to-day managment of prisons.
Id. at 482-83. The Sandin Court therefore rejected the Hewitt methodology of parsing the language
of particular regulations and stated that the relevant inquiry must focus on the nature of the
deprivation imposed on a prisoner, and whether it imposes an “atypical and significant hardship . .
. in relation to the ordinary incidents of prison life.” Id. at 484. See also Wilkinson, 545 U.S. at 222
(“After Sandin, it is clear that the touchstone of the inquiry into the existence of a protected,
state-created liberty interest in avoiding restrictive conditions of confinement is not the language of
regulations regarding those conditions but the nature of those conditions themselves “in relation to
the ordinary incidents of prison life.” (citing Sandin, 515 U.S. at 484)).
Under this “refined inquiry,” the Sandin Court held that the prisoners did not have a liberty
interest protecting against a thirty-day assignment to segregated confinement because it did not
“‘present a dramatic departure from the basic conditions of [the inmate’s] sentence.’” Wilkinson, 545
U.S. at 222 (quoting Sandin, 515 U.S. at 485) (alteration in Wilkinson). Cf. id. at 224 (holding that
prisoners “have a liberty interest in avoiding assignment to [a super-maximum security prison]”).
Defendants argue that the Sandin test applies equally to both liberty and property interests.
The Circuits are split on this question. The Second and Fifth Circuits hold that Sandin does not
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apply to property interests. Handberry v. Thompson, 446 F.3d 335, 353 n.6 (2d Cir. 2006) (“Sandin
was concerned with the proper definition of liberty interests, not property interests.”); Bulger v. U.S.
Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995) (remarking that Sandin “did not instruct on the
correct methodology for determining when prison regulations create a protected property interest”).
On the other hand, the Tenth Circuit has flatly rejected this view, holding that Sandin applies
to both liberty and property interests in the prison context:
[W]e do not see how the Supreme Court could have made clearer its intent to reject
the Hewitt analysis outright in the prison context. Indeed, if we are to avoid Hewitt’s
“two undesirable effects” ((1) creating disincentives for states to codify management
procedures and (2) entangling the federal courts in the day-to-day management of
prisons) in the context of prison property interests, Sandin, 515 U.S. at 482, . . . and
return the focus of our due process inquiry from “the language of a particular
regulation” to “the nature of the deprivation” as Sandin mandates, id. at 481, . . . we
must conclude that the Supreme Court foreclosed the possibility of applying the
Hewitt methodology to derive protected property interests in the prison conditions
setting. The Supreme Court mandate since Sandin is that henceforth we are to
review property and liberty interests claims arising from prison conditions by asking
whether the prison condition complained of presents “the type of atypical significant
deprivation in which a State might conceivably create a liberty [or property] interest.”
Id. at 486.
Cosco v. Uphoff, 195 F.3d 1221, 1223-24 (10th Cir. 1999) (rejecting Bulger) (footnotes omitted).
See also Murdock v. Washington, 193 F.3d 510, 513 (7th Cir.1999) (suggesting but not expressly
holding that Sandin applies to property interest claims brought by prisoners); Abdul-Wadood v.
Nathan, 91 F.3d 1023, 1025 (7th Cir.1996) (same).
Both this Court and the Ninth Circuit have suggested but not directly held that Sandin does
not apply to Hewitt-type property interests. See Woodard v. Ohio Adult Parole Auth., 107 F.3d 1178,
1182-83 (6th Cir. 1997) (noting “the Supreme Court has made it clear that both state law and the Due
Process Clause itself may create [a liberty] interest,” while the prevailing doctrine instructs that
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“state law controls as to the existence of a property interest”; and noting that “state law plays a role
in determining the existence of property or liberty interests”), rev’d on other grounds, 523 U.S. 272
(1998); Martin v. Upchurch, 67 F.3d 307, 1995 WL 563744, at *2 n.2 (9th Cir. Sept. 22, 1995)
(unpublished) (concluding that under Sandin a prisoner had no liberty interest in his prison job, but
ruling that the prisoner had no property interest in the prison job because state law made prisoner
employment a discretionary decision by prison officials). See also Cosco, 195 F.3d at 1223 n.3
(discussing Sixth Circuit’s and Ninth Circuit’s view). However, in several unpublished decisions,
this Court, citing Sandin, held that the plaintiff prisoner had “no property interest in his prison job
created under state law and protected by due process.” Clarkston v. Powers, No. 00-5065, 234 F.3d
1267 (6th Cir. Nov. 2, 2000); Perry v. Rose, No. 99-5240, 205 F.3d 1341 (6th Cir. Feb. 7, 2000); see
also Izard v. Blair, No. 97-6098, 173 F.3d 429 (6th Cir. Feb. 3, 1999) (citing Bulger for proposition
that a prisoner has no constitutionally protected right to a job or wage, and noting that BOP
regulations did not create a liberty interest, citing Sandin).
In any event, we need not decide today whether Sandin applies to protected property interests,
because Pickelhaupt has failed to demonstrate that this purported right was clearly established.
Although, as the district court held, if a property interest existed, it was clearly established in 2005
that a predeprivation hearing was required, it was not clearly established in 2005 that Pickelhaupt
had a constitutionally protected property interest in a prison job at a set wage based on state
regulations. As explained above, the Supreme Court’s 1995 Sandin decision casts doubt on Hewitt-
type property interests. For this reason, Pickelhaupt’s reliance on this court’s 1989 decision in
Newsom v. Norris, 888 F.2d 371 (6th Cir. 1989), is equally unavailing, since Sandin cast doubt on
the validity of that decision. See Newsom, 888 F.2d at 374 (stating that “[e]xisting precedent
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confirms that the Constitution does not create a property or liberty interest in prison employment .
. . and that any such interest must be created by state law by language of an unmistakably mandatory
character,” and that “[e]xisting precedent has recognized that ‘prison officials’ policy statements and
other promulgations’ can create constitutionally protected interests in favor of the prisoners”
(internal quotation marks, alterations, and citations omitted)). Indeed, as noted above, several panels
of this court have relied on Sandin to hold that a prisoner lacked a state-created property interest in
employment, despite Newsom. Thus, the district court erred in ruling that Defendants were not
entitled to qualified immunity for Pickelhaupt’s Fourteenth Amendment procedural due process
claim.
IV. Promissory Estoppel Claim
Although the exercise of supplemental jurisdiction under 28 U.S.C. § 1367 is discretionary,
when a federal claim is properly dismissed before trial, it is customary to dismiss the state-law
claims without prejudice. See Harper v. AutoAlliance Int’l., Inc., 392 F.3d 195, 210 (6th Cir. 2004).
Dismissal of Pickelhaupt’s state-law promissory estoppel claim for resolution in the state courts is
in the best interests of both the federal and state courts here. See id.
V. Conclusion
For the foregoing reasons, we REVERSE the decision of the district court as to Defendants
Banks and Malone and REMAND with instructions to dismiss the action against these defendants
on the basis of qualified immunity. The district court is further instructed to DISMISS Pickelhaupt’s
state-law promissory estoppel claim against them without prejudice.
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