Beard v. Livesay

• Decision Date: 18 July 1986
• Docket Number: No. 85-5730,85-5730
• Citation: 798 F.2d 874
• Parties: William R. BEARD, Jr., Plaintiff-Appellee, v. Gary J. LIVESAY, Warden; Robert Davies, Acting Warden; and Evans Fine, Director of Offender Classification, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 874

798 F.2d 874

William R. BEARD, Jr., Plaintiff-Appellee, v. Gary J. LIVESAY, Warden; Robert Davies, Acting Warden; and Evans Fine, Director of Offender Classification,

Defendants-Appellants.

No. 85-5730.

United States Court of Appeals, Sixth Circuit.

Argued June 9, 1986.

Decided July 18, 1986.

Wayne E. Uhl (argued), Asst. Atty. Gen., Nashville, Tenn., for defendants-appellants.

Susan L. Kay (argued), Vanderbilt Legal Clinic, Vanderbilt Law School, Nashville, Tenn., for plaintiff-appellee.

Before MARTIN and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

The defendants, prison officials of the state of Tennessee, appeal the district court's grant of summary judgment to the plaintiff prisoner, William Beard. The district court held that under Tennessee statutes and regulations the reclassification of a prison inmate from minimum to medium security without a hearing implicated a protectible liberty interest under the fourteenth amendment. The court ordered the prison officials to expunge from Beard's record all references to his transfer and reclassification, but denied his requests for restoration of his Prison Performance Sentence Credits and an injunction covering all inmates within the Tennessee prison system. Beard was also awarded attorney's fees and costs. The prison officials appeal from this order; Beard did not file a cross-appeal.

In March of 1980 Beard began serving a ten-year sentence at Bledsoe County, Tennessee Regional Correctional Facility, where he was initially classified as a medium security prisoner. Beard was reclassified as a "minimum-direct" security prisoner in March 1981. He was still not allowed to work outside the prison, but he received fifteen days of Prison Performance Sentence Credit per month as a result of this reclassification, instead of the ten days of credit per month he received as a medium security prisoner. Prison Performance Sentence Credit may reduce the prison time that must be served before a prisoner's parole and eventual release.

In August, 1981, Beard and another inmate became involved in an altercation, and the prison authorities feared further internal security problems. Both Beard and his assailant were transferred to other prisons within the Tennessee system.

Beard was moved to Tennessee's Brushy Mountain Prison pursuant to an administrative transfer. Brushy is a medium security prison. Upon his transfer, Beard was immediately reclassified from minimum to medium security in order to fit the security designation of the institution. No hearing was held before or after this reclassification. As a medium security prisoner, Beard could earn a maximum of ten PPSC days per month. Beard does not challenge the validity of the administrative transfer, but argues that his reclassification without a hearing violated his liberty interest in his security status.

The issues presented on appeal are whether the Tennessee reclassification system creates a protectible interest in an inmate's security status and whether expungement of the plaintiff's reclassification records was an appropriate remedy. ¹

A liberty interest protectible under the fourteenth amendment may arise only when implicated by the Constitution, or a state law or regulation. Hewitt v. Helms, 459 U.S. 460, 469, 103 S.Ct. 864, 870, 74 L.Ed.2d 675 (1983); Meachum v. Fano, 427 U.S. 215, 226, 96 S.Ct. 2532, 2539, 49 L.Ed.2d 451 (1976). A prisoner has no inherent constitutional right to be housed in a particular institution, Meachum, 427 U.S. at 224, 96 S.Ct. at 2538 or to enjoy a particular security classification. Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976); Montanye v. Haynes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976). Therefore, any liberty interest which exists in Tennessee's reclassification process must be created by the state.

A state, by its own actions, may create liberty interests protected by the due process clause. Hewitt, 459 U.S. at 469, 103 S.Ct. at 870; Bills v. Henderson, 631 F.2d 1287, 1291 (6th Cir.1980). The Supreme Court described when the action of a state will create such an interest in Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983):

These cases demonstrate 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.' Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467 [101 S.Ct. 2460, 2465, 69 L.Ed.2d 138] (1981) (BRENNAN, J., concurring). 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,' ibid., the State has not created a constitutionally protected liberty interest. See id., at 466-467 (opinion of the Court); see also Vitek v. Jones, 445 U.S. , at 488-491 [100 S.Ct. 1254, at 1261-1262, 63 L.Ed.2d 552 (1980) ] (summarizing cases).

Prison officials may also create liberty interests by policy statements, regulations, or other official promulgations. Walker v. Hughes, 558 F.2d 1247, 1255 (6th Cir.1977). The plaintiffs, however, must have "a legitimate claim of entitlement to the interest, not merely a unilateral expectation of it." Bills, 631 F.2d at 1292. The criteria for making this determination are explained in Bills, 631 F.2d at 1292-93.

Where statutes or prison policy statements have limited prison officials' discretion by imposing a specific prerequisite to the forfeiture of benefits or favorable living conditions enjoyed by a prisoner, an expectation or entitlement has been created which cannot be taken away without affording the prisoner certain due process rights. On the other hand, when prison officials have complete discretion in making a decision that will affect the inmate, no expectation or protected liberty interest has been created.

Similar analysis was employed in the Supreme Court's Hewitt decision, which held that under applicable Pennsylvania statutes and regulations, a prisoner's transfer from a general prison population to administrative segregation implicated a protected liberty interest. ² The Hewitt court first made clear that procedural requirements alone cannot establish a liberty interest:

The creation of procedural guidelines to channel the decisionmaking of prison officials is, in the view of many experts in the field, a salutary development. It would be ironic to hold that when a State embarks on such desirable experimentation it thereby opens the door to scrutiny by the federal courts, while States that choose not to adopt such procedural provisions entirely avoid the strictures of the Due Process Clause. The adoption of such procedural guidelines, without more, suggests that is these restrictions alone, and not those federal courts might also impose under the Fourteenth Amendment, that the State chose to require.

Hewitt, 459 U.S. at 471, 103 S.Ct. at 871. See also Naegele Outdoor Advertising v. Moulton, 773 F.2d 692, 703 (6th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1639, 90 L.Ed.2d 184 (1986); Bills, 631 F.2d at 1298-99.

Clearly, therefore, Tennessee's requirement that a hearing be held prior to any reclassification cannot in itself create a protectible liberty interest. However, if Tennessee has gone beyond procedural guidelines by using "mandatory language" in connection with "specific substantive predicates," a liberty interest may be found. Hewitt, 459 U.S. at 472, 103 S.Ct. at 871. Compare Pugliese v. Nelson, 617 F.2d 916 (2d Cir.1980) (administrative policy statement held not to create liberty interest because it merely established procedures rather than limiting discretion).

An examination of the statutes and regulation at issue in Hewitt is instructive. These pronouncements are arguably quite precatory, yet the Supreme Court held that the use of mandatory language and the requirement of substantive predicates in the procedural regulations themselves ("the need for control," or "the threat of serious disturbance") supported a conclusion that the state had established a protected liberty interest. See also Olim v. Wakinekona, 461 U.S. at 249, 103 S.Ct. at 1747 ("A State creates a protected liberty interest by placing substantive limitations on official discretion.")

The Tennessee statutes and regulations governing reclassification are more mandatory in nature than the corresponding promulgations in Hewitt. The Tennessee statute provides: "The prisoners shall be graded and classified in such manner as shall be most conducive to prison discipline and the moral status of the prisoner." Tenn.Code Ann. Sec. 41-21-202. Further, Tennessee regulations regarding reclassification provide:

Residents assigned to a particular security cannot be classified/reclassified to a facility outside of the receiving institution's security range, e.g. residents assigned close security cannot be reclassified to Turney Center. In order for this [sic] resident to be sent to Turney Center, his security status must not be greater than medium, obviously a resident must merit a reduction in security before being reclassified to a facility with a lesser security range.

Policies of the Department of Correction, Index 404.00.

Tennessee has also adopted elaborate procedures for the reclassification process which further limit prison official's discretion. ³ These regulations require a hearing prior to any reclassification, which must be held by a specifically composed committee. This committee "in joint consideration with the subject inmate and on the basis of information received from all available sources, assesses and assigns the inmate, or recommends such assignments." Policies of the Department of Corrections, Index 401.02(IV)(C). The Program Review Board is specifically charged with reviewing transfer...