Keenan v. Hall, 94-35726

• Decision Date: 08 May 1996
• Docket Number: No. 94-35726,94-35726
• Parties: 96 Cal. Daily Op. Serv. 3261, 96 Daily Journal D.A.R. 5331 Charles M. KEENAN, Plaintiff-Appellant, v. Frank HALL, Director Oregon Department of Corrections, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1083

83 F.3d 1083

96 Cal. Daily Op. Serv. 3261, 96 Daily Journal

D.A.R. 5331

Charles M. KEENAN, Plaintiff-Appellant, v. Frank HALL, Director Oregon Department of Corrections, et al., Defendants-Appellees.

No. 94-35726.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 19, 1995.

Decided May 8, 1996.

Steven B. Berlin, Kenneth B. Stratton, Littler, Mendelson, Fastiff, Tichy & Mathiason, San Francisco, California, for plaintiff-appellant.

Richard D. Wasserman, Assistant Attorney General, Salem, Oregon, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-93-00051-REJ.

Before: SCHROEDER, FLETCHER, and RYMER, Circuit Judges.

Opinion by Judge FLETCHER; dissent by Judge RYMER.

FLETCHER, Circuit Judge:

Charles M. Keenan appeals the grant of summary judgment dismissing his prisoner's § 1983 action. Keenan alleged that the defendants transferred him without due process, confined him under cruel and unusual conditions, denied him his First Amendment rights, denied him access to the courts, wrongfully opened his mail from the courts outside his presence, and imposed an illegal fine. He seeks both damages and injunctive relief. We have jurisdiction, 28 U.S.C. § 1291, and we affirm in part and reverse in part.

I. BACKGROUND

Keenan is an inmate of the Oregon State Prisons ("OSP"). On April 15, 1992, corrections officers discovered in Keenan's cell a pen packed with crushed match tips and two toothbrushes with razor blades attached to them. This was the third time that corrections officers had found Keenan in possession of homemade weapons.

On April 17 and April 20, 1992, prison authorities held a disciplinary hearing. They determined that Keenan had violated prison rules forbidding the possession of weapons and imposed the penalties of six months confinement in the Disciplinary Segregation Unit ("DSU") and a $325 fine. Keenan attended this hearing, as required by Oregon law, OAR 291-105-028(1), and had the opportunity to speak on his own behalf.

On April 24, 1992, prison authorities held a classification review of Keenan's custody status. The OSP assigns each inmate a custody status on the basis of behavior both in and out of prison, and the OSP uses custody status to determine each inmate's supervision level. At this hearing, prison authorities reclassified Keenan from the second-most supervised status ("close custody") to the most supervised status ("maximum custody"). The OSP houses maximum custody inmates in administrative segregation in an Intensive Management Unit ("IMU"). Prison authorities did not allow Keenan to attend this hearing; Oregon law requires only notice and an opportunity to appeal, OAR 291-104-035 and -040.

When Keenan's disciplinary segregation ended, prison authorities transferred him from the DSU to the IMU and not back to the general prison population. Keenan remained in the IMU for six months. Keenan found many of the conditions there intolerable, including the noise, ventilation, lighting, food and water, lack of outdoor exercise, and lack of personal hygiene supplies. While at the IMU, Keenan complained that he had no direct access to the prison law library, although he did have the use of a "correspondence system." He complained that prison officials opened mail addressed to him from the courts outside of his presence. Keenan also objected to the OSP's "publishers only" rule, under which inmates may receive reading materials from outside the prison only from publishers.

Proceeding pro se, Keenan brought this prisoner's § 1983 action against 18 OSP officers and employees. The district court granted the defendants' motion for summary judgment on all of Keenan's claims. Keenan appeals with the assistance of counsel.

II. DISCUSSION

This appeal presents six questions. First, did Keenan's transfer from the DSU to the IMU and not back to the general population violate his right to procedural due process? Second, were the conditions within the IMU cruel and unusual? Third, did OSP policies violate the First Amendment? Fourth, did the defendants violate Keenan's right to access to the courts? Fifth, did the defendants improperly open Keenan's mail from the courts outside of his presence? Sixth, was the $325 fine improper?

We review a grant of summary judgment de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). Viewing the evidence in the light most favorable to the nonmoving party, we must decide whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

A. DUE PROCESS

Keenan argues that the defendants violated his procedural due process rights by deciding to transfer him to the IMU at a classification hearing held in his absence. Specifically, Keenan argues that the defendants should have allowed him the opportunity "to Speak in his [own] behalf, to Representation by Counsel or Counsel-substitute ... to have an Investigation conducted ... to develop a list of Witnesses and Questions to be posed to each Witness ... to present Documents [and] Physical Evidence," and to confront adverse witnesses and evidence. Amended Complaint of May 17, 1993, at 7. We remand Keenan's due process claim for reconsideration in light of Sandin v. Conner, --- U.S. ----, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).

In Sandin, the Supreme Court was called upon to determine whether Hawaii prison regulations or the Due Process Clause afforded Sandin a protected liberty interest that would entitle him to procedural protections before transfer into segregation. The Court held that prisoners have liberty interests protected by the Due Process Clause only where the contemplated restraint "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at ----, 115 S.Ct. at 2300. In its specific application to inmate Sandin, the Court stated the test another way: "Based on a comparison between inmates inside and outside disciplinary segregation, the state's actions in placing [Sandin] there for 30 days did not work a major disruption in his environment." Id. at ----, 115 S.Ct. at 2301. The Court rejected its prior test traditionally used to determine whether a prison regulation creates a liberty interest, to wit: whether the relevant regulation contains language that is mandatory or discretionary. Id. at ---- - ----, 115 S.Ct. at 2298-2300. The Court in its new approach seeks to prevent turning every rule or regulation that establishes a procedure or requires the provision of an amenity into a right that implicates a liberty interest. It cited examples, inter alia: tray lunches rather than sack lunches, any book that is not a security threat, and cells with TV and electric outlets.

The district court in the case before us, without the benefit of Sandin, understandably looked to the old mandatory/discretionary and punitive/administrative dichotomies, and did not apply the new "atypical and significant hardship" or "major disruption in environment" test. Sandin leaves the new test to be fleshed out in subsequent cases. In this case, the district court on remand will be on the cutting edge of this process. We suggest that if it finds conditions in the IMU that violate the Eighth Amendment, the transfer to the IMU would impose "atypical and significant hardship."

We do not suggest, however, that the new test is synonymous with Eighth Amendment violation. What less egregious condition or combination of conditions or factors would meet the test requires case by case, fact by fact consideration. The Sandin Court seems to suggest that a major difference between the conditions for the general prison population and the segregated population triggers a right to a hearing. Id. at ----, 115 S.Ct. at 2301. We do know that relevant factors include whether there is a likelihood that the transfer will affect the duration of Keenan's sentence, id. at ----, 115 S.Ct. at 2302, and the duration of the transfer, id. at ----, 115 S.Ct. at 2301 (noting the segregation lasted only 30 days); see Hutto v. Finney, 437 U.S. 678, 686-87, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978) ("[T]he length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards. A filthy, overcrowded cell and a diet of 'grue' might be tolerable for a few days and intolerably cruel for weeks or months.").

If the district court determines that Keenan had a protected liberty interest in freedom from transfer to the IMU, it must then decide whether the defendants gave Keenan all of the process he was due under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). See Sandin, --- U.S. at ----, 115 S.Ct. at 2300 ("The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum. Following Wolff, we recognize that states may under certain circumstances create liberty interests which are protected by the Due Process Clause."). Keenan wanted to attend the reclassification hearing of April 24, 1992, in order to call witnesses, present evidence, confront adverse evidence, and explain his views. Ordinarily, the prisoner should be allowed to do so. Wolff, 418 U.S. at 566, 94 S.Ct. at 2979-80. However, we do not preclude here the possibility that the district court may find relevant to its determination the fact that Keenan did attend and speak at the disciplinary hearing held just days earlier, which dealt with whether he had weapons in his possession and whether he had prior infractions.

B. CONDITIONS OF CONFINEMENT

Keenan argues that the district court erred by dismissing on summary judgment his Eighth Amendment claims challenging the conditions at the IMU. To sustain an Eighth Amendment claim, the plaintiff must...