Black v. Parke

• Decision Date: 09 September 1993
• Docket Number: No. 92-5915,92-5915
• Citation: 4 F.3d 442
• Parties: Kevin R. BLACK, Plaintiff-Appellee, v. Al C. PARKE, et al., Defendants, Kenneth Case, Walt Chapleau, and Tom Campbell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 442

4 F.3d 442

Kevin R. BLACK, Plaintiff-Appellee, v. Al C. PARKE, et al., Defendants Kenneth Case, Walt Chapleau, and Tom Campbell, Defendants-Appellants.

No. 92-5915.

United States Court of Appeals Sixth Circuit.

Submitted April 30, 1993.

Decided Sept. 9, 1993.

Kevin R. Black (briefed), pro se.

Barbara W. Jones (briefed), Office of the Gen. Counsel, Frankfort, KY, for defendants-appellants.

Before: JONES and BATCHELDER, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

BATCHELDER, Circuit Judge.

Plaintiff-appellee Kevin R. Black brought suit against several prison officials at the Kentucky State Reformatory (KSR) under 42 U.S.C. Sec. 1983, alleging that he was deprived without due process of law of his liberty interest of residing in the general prison population. The district court denied qualified immunity to the officials, and the officials now appeal that denial. For the reasons outlined below, we affirm the district court's denial of qualified immunity to these officials because there is a genuine issue of material fact as to whether Black received all the process due him.

I.

During the time of the events that led up to this suit, Kevin Black was serving a prison term at KSR on various state offenses. On December 17, 1985, Black was found guilty by a prison Adjustment Committee of the institutional offense of possessing or promoting dangerous contraband. On January 16, 1986, plaintiff was transferred to the Kentucky State Penitentiary (KSP). After only several hours at that prison, Black asked to be placed in protective custody because he believed that his life was in danger. The institution complied. On February 24, 1986, Black was involved in a fight with another inmate while in protective custody. As a result, the institution put Black in the behavioral custody unit at KSP. On March 21, 1986, Black was attacked by another inmate. He then was placed in administrative segregation ¹ for his own safety.

On July 2, 1986, Black was transferred back to the KSR so that he could appear in state court on another state charge and could await out-of-state transfer. He was placed in administrative segregation at KSR. On July 16, 1986, Black was transferred to a West Virginia facility because the Corrections Department believed that it was unable to keep him safe in Kentucky facilities.

On October 6, 1986, Black returned to KSR from West Virginia pursuant to a state court order. He remained in administrative segregation on "hold ticket" status from October 6, 1986, through January 12, 1987. Although the record does not provide a clear definition of "hold ticket" status, apparently "hold ticket" status applies to inmates who have just been transferred into the prison facility and are awaiting court proceedings on other charges or are awaiting a transfer to another facility. On January 12, 1987, Black was transferred for pre-trial evaluation to the Kentucky Correctional Psychiatric Center and remained there until March 13, 1987. On March 13, he was returned to KSR and placed in administrative segregation again. In June of 1987, he was transferred back to West Virginia after the state court dismissed the pending criminal charges against him without prejudice.

In April of 1988, Black was brought back to KSR. On April 15, 1988, he received a hearing before the Adjustment Committee in response to his grievance about his segregation. He remained on "hold ticket" status in lock-down from April 13, 1988, until July 22, 1988. On July 22, 1988, Black was transferred to the KSP for permanent housing.

Black brought this action against seven prison officials under 42 U.S.C. Sec. 1983, seeking $80,000 in compensatory and punitive damages; a declaration that defendants' conduct was unconstitutional; and a preliminary and permanent injunction. ² Plaintiff alleges that defendants violated his state-created liberty interest by placing him in administrative segregation on "hold ticket" status for extended periods of time without due process. The district court denied summary judgment to defendants on this due process claim, holding that Black had a liberty interest created by state Corrections Department policies; that the prison initially had a right to put him in lock-down for his own safety; that after that, he was given some of the process required to be kept in lock-down; but that a trial was necessary to determine the adequacy of the periodic status reviews. ³

After defendants filed a motion for clarification, the district court issued a clarifying order, stating that Corrections Policy and Procedure 10.2 (CPP 10.2) grants all inmates a liberty interest in living in the general prison population. It also stated that the defendants were not entitled to qualified immunity because it was unclear if they intentionally kept Black in administrative custody in conscious disregard of his CPP 10.2 rights. It noted that only defendants Kenneth Case, Unit-D Manager of KSR; Tom Campbell, Deputy Warden of KSR; and Walt Chapleau, Unit-D Manager of KSR, remain as defendants because they are the only ones implicated in this remaining issue. These three defendants now appeal the district court's denial of qualified immunity to them.

II.

Defendants argue that state correctional policies do not create a liberty interest in being placed in the general prison population, and that even if they did, Black received all the process required before he was deprived of that interest. Defendants maintain that they are entitled to qualified immunity because the law is not so clearly established that they would have known that their conduct was unlawful.

We have jurisdiction over the qualified immunity issue in this case because orders denying summary judgment on the basis of qualified immunity are immediately appealable as "final judgments" under the collateral order doctrine. 28 U.S.C. Sec. 1291; Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Qualified immunity is a question of law for the district court, and therefore we review the denial of qualified immunity de novo. Hall v. Shipley, 932 F.2d 1147, 1150 (6th Cir.1991).

Government officials "performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). For a constitutional right to be clearly established, "the law must be clear in regard to the official's particular actions in the particular situation." Long v. Norris, 929 F.2d 1111, 1114 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 187, 116 L.Ed.2d 148 (1991). This requires that

[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citations omitted). This "objective reasonableness" standard focuses on whether defendants reasonably could have thought that their actions were consistent with the rights that plaintiff claims have been violated. Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir.1988) (citing Anderson, 483 U.S. at 640, 107 S.Ct. at 3038).

In inquiring whether a constitutional right is clearly established, we must "look first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits." Daugherty v. Campbell, 935 F.2d 780, 784 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 939, 117 L.Ed.2d 110 (1992).

[I]n the ordinary instance, to find a clearly established constitutional right, a district court must find binding precedent by the Supreme Court, its court of appeals or itself. In an extraordinary case, it may be possible for the decisions of other courts to clearly establish a principle of law. For the decisions of other courts to provide such "clearly established law," these decisions must both point unmistakably to the unconstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.

Ohio Civil Serv. Employees Ass'n v. Seiter, 858 F.2d 1171, 1177 (6th Cir.1988). Thus, it is only in extraordinary cases that we can look beyond Supreme Court and Sixth Circuit precedent to find "clearly established law."

The Supreme Court has noted that because qualified immunity is " 'an immunity from suit rather than a mere defense to liability,' we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, --- U.S. ----, ----, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (quoting Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. at 2815) (per curiam). This Circuit, too, has held that the issues of objective reasonableness and what is clearly established law are to be decided before trial. "Since the question is one of law, the trial court could not, by characterizing it as a disputed factual issue, avoid deciding [the issue]. The source for such determination is, of course, in federal constitutional, statutory or case law existing at the time. Any decision of the trial court should indicate that law and state the basis for its conclusion." Dominque v. Telb, 831 F.2d 673, 677 (6th Cir.1987). However, if genuine issues of material fact exist as to whether the defendants actually did commit acts that would violate a clearly established right, then summary judgment on...