Mackey v. Dyke

• Decision Date: 21 July 1994
• Docket Number: No. 93-1891,93-1891
• Citation: 29 F.3d 1086
• Parties: Wendell Shane MACKEY, Plaintiff-Appellant, v. Dennis DYKE, Assistant Deputy Director of the Bureau of Correctional Facilities, Michigan Department of Corrections, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1086

29 F.3d 1086

Wendell Shane MACKEY, Plaintiff-Appellant, v. Dennis DYKE, Assistant Deputy Director of the Bureau of Correctional Facilities, Michigan Department of Corrections, et al., Defendants-Appellees.

No. 93-1891.

United States Court of Appeals Sixth Circuit.

Argued April 26, 1994.

Decided July 21, 1994.

Paul D. Reingold, Michigan Clinical Law Program, Ann Arbor, MI (argued and briefed), for plaintiff-appellant.

Luann Cheyne Frost (briefed), Katharyn A. Barron (argued), Office of Atty. Gen., Corrections Div., Lansing, MI, for defendants-appellees.

Before: GUY and NELSON, Circuit Judges; and LIVELY, Senior Circuit Judge.

LIVELY, Senior Circuit Judge.

The question in this case is whether Michigan prison officials violated an inmate's due process rights by failing to return the inmate promptly to the general prison population from administrative segregation after determining that he was no longer subject to segregation. The district court held that Michigan prison rules and regulations do not create a liberty interest in an inmate's right to release from segregation that is protected by the Due Process Clause of the Fourteenth Amendment. The district court also held that even if the inmate had such a liberty interest he received the process he was due, and further, that the defendant prison officials were entitled to qualified immunity. The district court granted the defendants' motion for summary judgment and dismissed the action. We reverse and remand for further proceedings.

I.

A.

Wendell Shane Mackey is a prisoner in the custody of the Michigan Department of Corrections (MDOC). In July of 1988, Mackey was housed at the State Prison of Southern Michigan. On July 7, 1988, Mackey was found guilty of misconduct for possession of illegal contraband and for assaulting another prisoner; he was consequently reclassified to administrative segregation. One month later, he was transferred to the Huron Valley Men's Facility, where he remained in administrative segregation until August 17, 1989.

During this segregation period, the MDOC staff filed monthly reviews concerning Mackey. Each review from September 1988 through February 1989 recommended that Mackey continue in segregation because he presented a danger to other prisoners or staff. In March 1989, reviewing officer Smith recommended that Mackey be released to the general population. The Security Classification Committee (SCC) denied this recommendation and ordered that Mackey continue in segregation. In Smith's April 20, 1989 report, he suggested "release at transfer to general group facility." The SCC accepted this recommendation, and defendant Brown wrote "reclassify upon transfer" in the section of the form titled "Security Classification Committee Action."

Although the recommendation to reclassify had been approved, Mackey was not immediately transferred. In fact, he remained in segregation for an additional 117 days. His monthly reviews continued; each review, however, simply stated that Mackey had either been "released from segregation" on April 20 and that transfer was "pending," or that he had been "released pending transfer."

On June 6, 1989, Warden Miller wrote a letter to Mackey, stating that Mackey had been recommended for reclassification and that he would be transferred when bed space was available. On June 13, 1989, however, a transfer order was prepared requesting that Mackey be transferred "to a general group facility to make room for a[n] Administrative Segregation prisoner."

Mackey filed a grievance, asking that his transfer to the general population not be delayed any further. On June 21, 1989, defendants Watson and Brown sent Mackey a response, stating that

Although you have been released from Ad. Seg., the only facility your [sic] are eligible to transfer is Marquette and SMM. Currently, there is a problem with bed space throughout the department. Until there is space available we are unable to transfer you.

On August 16, 1989, Mackey's transfer order was processed and he was released into the general population at Marquette Branch Prison on the following day.

B.

On August 15, 1992, Mackey filed this action under 42 U.S.C. Sec. 1983 alleging that the defendant employees of the MDOC violated his constitutional right to due process by failing to reclassify him after he was released from segregation. Mackey sued the MDOC employees in both their individual and official capacities.

The defendants filed a motion to dismiss or alternatively for summary judgment. A hearing was held before a magistrate judge, who recommended that the defendants' motion for summary judgment be granted. Although Mackey's complaint alleged that two prison regulations, Michigan Administrative Code Rules 791.4401 and 791.4405 (hereafter Rules 401 and 405), together create a liberty interest in release from administrative segregation, the magistrate judge considered only Rule 401. The magistrate judge also cited Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), in support of her conclusion that if Mackey had a liberty interest in being released, certain postdeprivation legal procedures available under Michigan law would satisfy any due process rights flowing from the inmate's continued confinement in segregation.

Overruling Mackey's specific objections, the district court accepted the magistrate judge's report and recommendation as the court's findings and conclusions and entered judgment accordingly.

II.

Mackey does not dispute the propriety of his initial confinement to segregation. He was given a hearing and found guilty of major misconduct. Furthermore, Mackey admits that he was rightfully confined in segregation until April 20, 1989. The MDOC staff believed that Mackey presented a danger to the other prisoners and therefore could not be released into the general population. Mackey does not contest this belief. Mackey does, however, maintain that after April 20, 1989, he no longer qualified for confinement in administrative segregation. The reviewing staff apparently agreed. Therefore, Mackey claims, he had a right to be released and, by failing to do so, the MDOC defendants denied him due process of law.

A.

Although the Constitution does not make an inmate's freedom from segregation a protected liberty interest, Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976), a state may create such a liberty interest through statutes, rules and regulations, or policies. Hewitt v. Helms, 459 U.S. 460, 469, 103 S.Ct. 864, 870, 74 L.Ed.2d 675 (1983). Writing for the Supreme Court in Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), Justice Blackmun stated that

a State creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show "that particularized standards or criteria guide the State's decisionmakers." 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," the State has not created a constitutionally protected liberty interest.

Id. at 249, 103 S.Ct. at 1747 (quoting Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S.Ct. 2460, 2466, 69 L.Ed.2d 158 (1981) (Brennan, J., concurring)).

The court has interpreted these requirements as follows:

In determining whether state-enacted rules create a protected liberty interest, the key is "whether or not the state has imposed 'substantive limitations' on the discretion of [officers] ... or, in other words, whether the state 'has used language of an unmistakably mandatory character.' " The mandatory nature of the regulation is the key, as a plaintiff "must have a legitimate claim of entitlement to the interest, not simply a unilateral expectation of it."

Washington v. Starke, 855 F.2d 346, 349 (6th Cir.1988) (alteration in original) (citations omitted). The Supreme Court has cautioned that not all mandatory language in prison regulations can fairly be held to create liberty interests. In Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989), the Court summarized the necessary elements for finding that state statutes and regulations create inmate liberty interests protected by the Due Process Clause.

In sum, the use of "explicitly mandatory language," in connection with the establishment of "specified substantive predicates" to limit discretion, forces a conclusion that the State has created a liberty interest.

Id. at 463, 109 S.Ct. at 1910 (quoting Hewitt v. Helms, 459 U.S. at 472, 103 S.Ct. at 871). The Court then proceeded to sound a caution against an overly expansive treatment of the "mandatory language" requirement:

It should be obvious that the mandatory language requirement is not an invitation to courts to search regulations for any imperative that might be found. The search is for relevant mandatory language that expressly requires the decisionmaker to apply certain substantive predicates in determining whether an inmate may be deprived of the particular interest in question.

Id. 490 U.S. at 464 n. 4, 109 S.Ct. at 1911 n. 4.

From these various formulations of the requirements we conclude that in order to create a protected liberty interest, a statute, rule or regulation must use explicitly mandatory language that establishes "specific substantive predicates" which limit official discretion by mandatorily requiring specific action by the responsible officials once the substantive predicates are found to be in place.

B.

We examine Rules 401 and 405 in light of these guiding principles.

Rule 401, as modified by Emergency Rule 1, ¹ provides for security classification of prisoners within the Michigan penal system. Each prisoner must be classified following listed criteria such as behavior, attitude and trustworthiness. Emergency Rule 1(1) provides that...