Jeremy Kennedy v. John T. Blankenship

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No. 96-1039
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Jeremy Kennedy, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
John T. Blankenship, Major * Eastern District of Arkansas.
Disciplinary Hearing Officer; *
Willis H. Sargent, Warden; *
Larry Fiedorowicz, Disciplinary *
Hearing Officer Administrator, *
*
Appellants. *
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Submitted: September 9, 1996
Filed: November 18, 1996
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Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.
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BOWMAN, Circuit Judge.
Defendants John Blankenship, Willis Sargent, and Larry Fiedorowicz,
employees of the Arkansas Department of Correction, appeal from the
judgment of the District Court in favor of plaintiff Jeremy Kennedy in this
42 U.S.C. § 1983 civil rights action. Because we conclude that Kennedy's
due process rights were not violated, we reverse.
On February 21, 1993, Kennedy, an inmate of the Cummins Unit of the
Arkansas Department of Correction, hurt his ankle while engaged in
horseplay in his cell. Early on the morning of February 22, Kennedy had
his ankle examined by medical personnel, who did not provide him with a
medical excuse from work duty. When
Kennedy did not report for work later that morning, a guard cited him
("issued a major disciplinary against him," in prison parlance) for
refusing to report to work and for failing to obey a direct order.
On February 24, defendant Blankenship chaired a disciplinary hearing
to consider the charges against Kennedy. In response to a question from
Blankenship, Kennedy stated that he had not been to sick call on the
morning he refused to report to work. Blankenship found Kennedy guilty of
violating prison rules and sentenced him to thirty days in "punitive
isolation," a stricter form of custody than the "administrative
segregation" status Kennedy had at the time. Kennedy appealed to defendant
Sargent, the warden of the prison, and to defendant Fiedorowicz, the
disciplinary hearing administrator of the Department, and each affirmed
Blankenship's decision.
Kennedy filed this 42 U.S.C. § 1983 action in district court on April
26, 1993, claiming that defendants had violated his constitutional right
to due process. In particular, Kennedy claimed that an administrative
regulation of the Department required Blankenship, the hearing officer, to
contact medical personnel to determine whether Kennedy was too ill to
report to work.1 A magistrate judge initially recommended judgment in
favor of defendants, but the District Court rejected the recommendation.
1
The regulation states that "whenever a charged inmate's
defense is illness, the unit health staff must be contacted to
determine whether the inmate was examined for a complaint of
illness and whether, in the opinion of the person or persons who
examined the inmate, the inmate was feigning illness or not
sufficiently ill to justify the rule violation." Appellants' App.
at 63. If a statement from the health staff is not included in the
hearing officer's decision, "the disciplinary action will be deemed
invalid and expunged from the inmate's records." Id. It is
undisputed that Blankenship did not contact the health staff,
presumably because Kennedy stated at the hearing that he had not
sought medical attention on February 22.
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The Magistrate Judge then recommended judgment in favor of Kennedy and an
award of $50 in damages. The District Court agreed and also ordered
defendants to expunge the disciplinary action from Kennedy's record.
Defendants appealed to this Court, and we reversed and remanded for further
consideration in light of the Supreme Court's intervening decision in
Sandin v. Conner, 115 S. Ct. 2293 (1995). Kennedy v. Blankenship, No. 94-
3413 (8th Cir. June 29, 1995) (unpublished per curiam). On remand, the
District Court reconsidered its decision and again entered judgment in
favor of Kennedy for $50 and ordered the disciplinary action expunged. The
defendants appealed again. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 (1994).
On appeal, defendants challenge only the District Court's application
of the law to the facts. Our review, therefore, is de novo. See Falls v.
Nesbitt, 966 F.2d 375, 377 (8th Cir. 1992).
In Sandin, the Supreme Court retreated from a line of cases in which
it had examined prison regulations in detail to determine whether the
regulations created constitutionally protected liberty interests by the use
of "'language of an unmistakably mandatory character' such that the
incursion on liberty would not occur 'absent specified substantive
predicates.'" Sandin, 115 S. Ct. at 2298 (quoting Hewitt v. Helms, 459
U.S. 460, 471-72 (1983)). The Court reworked the relevant inquiry as
follows:
[W]e recognize that States may under certain circumstances
create liberty interests which are protected by the Due Process
Clause. But these interests will be generally limited to
freedom from restraint 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.
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Id. at 2300 (citations omitted). The Court recognized that "[d]iscipline
by prison officials in response to a wide range of misconduct falls within
the expected parameters of the sentence imposed by a court of law." Id.
at 2301.
Sandin and our subsequent cases lead us to the conclusion that
Kennedy's demotion from administrative segregation to punitive isolation
is not the sort of deprivation that qualifies as "atypical and
significant." We note first that the Hawaii inmate in Sandin was moved
from administrative segregation to "disciplinary segregation" for 30 days,
much like Kennedy was in this case. Id. at 2296 & n.2. In both Sandin and
this case, prisoners in administrative segregation and prisoners in the
stricter category spend significant amounts of time in "lockdown," confined
to their cells. Id. at 2301.
The District Court distinguished Sandin because the only apparent
difference between the two custody levels in Sandin was "one extra phone
call and one extra visiting privilege." Id. at 2296 n.2. We agree that
Kennedy lost more privileges as a result of his punishment than did the
inmate in Sandin.2 Nevertheless,
2
According to the Magistrate Judge's findings, the primary
difference between administrative segregation and punitive
isolation in Arkansas is the privilege of working and the
accompanying good time credits. Administrative segregation inmates
who work are also entitled to a shower and a change of clothing on
days that they work. Despite the implication of the term
"isolation," inmates in punitive isolation are housed in two- or
four-man cells, while all administrative segregation inmates live
in two-man cells. (In contrast, the inmate in Sandin was
apparently in solitary confinement.) Inmates in punitive isolation
also face restrictions on mail and telephone privileges (privileged
mail and emergency calls only), visitation privileges (the inmate's
attorney only, rather than biweekly general visitation), commissary
privileges, and personal possessions (legal materials, a religious
text, soap, toothbrush, toothpaste, washcloth, and toilet paper
only). Thus, although prisoners in Arkansas apparently refer to
punitive isolation as "the hole," it is abundantly clear that that
description is a significant exaggeration of actual conditions.
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Kennedy's punishment is comparable to other deprivations we have upheld in
post-Sandin cases. See Wycoff v. Nichols, 94 F.3d 1187, 1188 (8th Cir.
1996) (10 days of disciplinary detention and 100 days in maximum security
cell); Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666,
669 (8th Cir. 1996) (revocation of work release and return to prison);
Moorman v. Thalacker, 83 F.3d 970, 971 (8th Cir. 1996) (transfer from
minimum- to medium-security prison, 15 days of highest-level disciplinary
detention, and 107 days of less-restrictive disciplinary detention).
Considering all the circumstances, we conclude that Kennedy's transfer from
administrative segregation to punitive isolation was not "a dramatic
departure from the basic conditions" of his confinement and thus does not
constitute "the type of atypical, significant deprivation in which a state
might conceivably create a liberty interest." Sandin, 115 S. Ct. at 2301.
Even if the deprivation in this case were atypical and significant,
however, we would agree with defendants that reversal is still required.
In essence, Kennedy claims a federal constitutional liberty interest in
having state officers follow state law. But in making this claim, Kennedy
misinterprets the nature of procedural due process. If Kennedy has a
liberty interest, it is an interest in the nature of his confinement, not
an interest in the procedures by which the state believes it can best
determine how he should be confined. See Olim v. Wakinekona, 461 U.S. 238,
250 (1983) ("Process is not an end in itself. Its constitutional purpose
is to protect a substantive interest to which the individual has a
legitimate claim of entitlement."); Griffin-El v. Delo, 34 F.3d 602, 604
n.3 (8th Cir. 1994) (inmate does not have a liberty interest in a
particular procedure). The Due Process Clause of the Fourteenth Amendment,
not state law, governs the procedures which the state must follow in
depriving Kennedy of a substantive liberty interest. See Vitek v. Jones,
445 U.S. 480, 491 (1980); Brown v. Frey, 889 F.2d 159, 166 (8th Cir. 1989)
("[T]he court's inquiry is not whether the [state] statute
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and therefore the Constitution is violated but whether the process afforded
plaintiff 'satisfied the minimum requirements of the Due Process Clause.'")
(quoting Hewitt, 459 U.S. at 472), cert. denied, 493 U.S. 1088 (1990).
Kennedy does not argue that the Due Process Clause itself creates a
liberty interest in this case, that is, that punitive isolation is beyond
"the normal limits or range of custody which the conviction has authorized
the State to impose." Meachum v. Fano, 427 U.S. 215, 225 (1976).
Kennedy's only argument is that the state failed to follow its own
procedural rules and thus failed to afford him the due process of law
mandated by the Constitution. But, as we have stated above, the Due
Process Clause does not federalize state-law procedural requirements. As
a result, Kennedy's claim must fail. See Hughes v. Lee County Dist. Court,
9 F.3d 1366, 1367 (8th Cir. 1993) (assertion that state violated its own
procedural guidelines does not state a federal claim); Swenson v. Trickey,
995 F.2d 132, 135 (8th Cir.) (inmate may not base § 1983 procedural due
process claim on violation of state procedural law), cert. denied, 510 U.S.
999 (1993).
We note, as mentioned earlier in this opinion, that at Kennedy's
disciplinary hearing Blankenship asked Kennedy whether he had been to sick
call on the morning in question. Kennedy's answer, that he had not,
appeared to eliminate any need for contacting the unit health staff, and
there was evidence supporting the decision to impose discipline. Clearly,
Kennedy received all the process he was due under Wolff v. McDonnell, 418
U.S. 539, 563-72 (1974) (outlining the procedural safeguards that due
process requires in prison disciplinary proceedings), and indeed he makes
no claim to the contrary.
Accordingly, the judgment of the District Court is reversed, and the
case is remanded with instructions to enter judgment in favor of
defendants.
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BRIGHT, Circuit Judge, concurring separately.
I concur separately on the basis that the prisoner, Jeremy Kennedy,
received due process.
I would not reach the Sandin issue in this case.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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