Abernathy v. Perry, 88-1975
| Decision Date | 15 March 1989 |
| Docket Number | No. 88-1975,88-1975 |
| Citation | 869 F.2d 1146 |
| Parties | Roosevelt X. ABERNATHY, Appellant, v. Robert PERRY, Larry Norris, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Roosevelt X. Abernathy, pro se.
Steve Clark, Atty. Gen., Little Rock, Ark., for appellees.
Before BOWMAN and BEAM, Circuit Judges, and HEANEY, * Senior Circuit Judge.
Roosevelt X. Abernathy, an inmate at the Tucker Maximum Security Unit of the Arkansas Department of Correction, appeals from the district court order dismissing his 42 U.S.C. Sec. 1983 action. Abernathy claimed his due process rights were violated when he was placed on investigative status 1 for thirty-five days. We affirm.
On October 27, 1987, Abernathy was transferred from the general population and placed in the administrative segregation unit on investigative status, where he remained until December 1, 1987. He filed a complaint claiming he was not told of the reason for the detention or the suspected charge; he only received three written five-day extensions of his investigative status, none after November 16, 1987; and the Director of Prisons did not approve his detention beyond thirty days; all of which were in violation of prison regulations. He demanded a jury trial.
Appellees prison officials filed a motion to dismiss for failure to state a claim, which the district court denied. The district court, however, ordered Abernathy to appear for a hearing, together with another inmate with an identical claim, for the purpose of determining whether his case could survive a motion for a directed verdict.
At the evidentiary hearing, Robert Perry, Chief of Security Major, testified that on October 27, 1987, he received information that Abernathy and three other inmates were involved in an extortion-type racket and had threatened to kill another inmate that night. Within one hour Perry ordered all four inmates placed in lock down and their cells searched. Perry stated that the investigation lasted until December 1, 1987; no contraband was found in Abernathy's cell, nor was sufficient evidence uncovered to prove he was going to kill anyone. Perry stated he told Abernathy he was being placed on investigative status because of information Perry received that there was going to be a confrontation which could involve serious injury.
Perry explained the prison's policy concerning investigative status as set forth in a policy memorandum which provides:
1. The Shift Supervisor will authorize an inmate's placement on Investigative Status. Within forty-eight (48) hours of the time an inmate is placed on Investigative Status, that inmate must either receive his/her copy of the charges against him/her or a copy of an extension of time signed by the Warden or, in his absence, the Assistant Warden. This time limit does not include the period between 6:00 p.m. Friday and 6:00 a.m. Monday. It is also exclusive of holidays.
2. An inmate on Investigative Status must receive his/her copy of the charges against him within forty-eight (48) hours of the time he is placed on Investigative Status unless an extension of time is granted by the Warden or, in his absence, an Assistant Warden following a review of that inmate's status. A copy of the extension of time shall be given to the inmate. All extensions must state a reason and specify the exact number of working days on the extension form. The extension approved by the Warden or Assistant Warden may not exceed five (5) working days per extension, and must be made for one of the reasons set out below. The Director must approve any extension over thirty (30) calendar days. There are five (5) reasons for granting extensions of time on Investigative Status, and one of these reasons must appear on the extension form. These reasons are as follows:
* * *
e. The case requires more extensive investigation;
Perry testified that five five-day extensions of investigative status were served on Abernathy. Perry explained that the thirty days had expired during the Thanksgiving holidays and that on November 30, 1987, Perry discussed with Warden Larry Norris taking the inmates off investigative status and splitting them up rather than getting another extension. Perry did not know who actually served the inmates with the extension notices. Norris testified that he signed five extension notices.
Abernathy testified that he did not receive a written extension notice after November 16, 1987. Abernathy also testified that Perry had not informed him of the reason he was placed on investigative status, and CO-1 Johnson only told him that Perry had ordered him to be locked up.
The magistrate concluded that Abernathy had a liberty interest in remaining in the general population and not being assigned to...
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