899 F.2d 733 (8th Cir. 1990), 89-2241, Burgin v. Nix

Docket Nº:89-2241.
Citation:899 F.2d 733
Party Name:Laurence BURGIN, Appellant, v. Crispus NIX, Warden, ISP; John Henry, Head of Security, ISP; and John Sanders, No. 220, Unit Manager, ISP, Appellees.
Case Date:March 30, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 733

899 F.2d 733 (8th Cir. 1990)

Laurence BURGIN, Appellant,

v.

Crispus NIX, Warden, ISP; John Henry, Head of Security,

ISP; and John Sanders, No. 220, Unit Manager,

ISP, Appellees.

No. 89-2241.

United States Court of Appeals, Eighth Circuit

March 30, 1990

Submitted Feb. 16, 1990.

Anuradha Vaitheswaran, Des Moines, Iowa, for appellant.

Robert W. Pratt, Des Moines, Iowa, for appellees.

Before LAY, Chief Judge, BEAM, Circuit Judge, and WOODS, [*] District Judge.

Page 734

PER CURIAM.

On June 20, 1985, plaintiff, Laurence Burgin, an inmate in the custody of the ISP, while being served a "nonsacked" meal, 1 threw a carton of milk toward a guard. The contents splashed upon the latter. Without notice or a hearing, Burgin was immediately placed on incorrigible inmate status and served sacked meals, pursuant to ISP Policy 573A. That policy states, in pertinent part:

DEFINITIONS:

  1. Incorrigible Inmates: For the purposes of this policy, incorrigible inmates are those inmates that have thrown, attempted to throw or have threatened to throw water, urine, feces, food, etc. on staff members that are attempting to provide services to them.

    ...

  2. Provision B

    In some cases, in order to provide safety for staff members, additional precautions must be taken to keep the inmate from receiving items that can be thrown on the staff members. In those cases, with the Warden's approval, they will be placed on a diet of sack lunches:

    On June 27, 1985, the plaintiff was taken off incorrigible inmate status, which must be reviewed every seven days. However, he was returned that day, again without notice or a hearing, when he threw his lunch out of his cell. He remained on this status through July 3, 1985.

    On August 30, 1985, the plaintiff filed a complaint under 42 U.S.C. Sec. 1983, challenging the defendants' failure to provide him with a hearing prior to placing him on incorrigible inmate status and serving him "sacked" meals, thereby violating his fourteenth amendment right to due process. The district court found that ISP Policy 573A created a liberty interest protected by the fourteenth amendment. We reverse.

    The focus of our inquiry is ISP Policy 573A. This policy contains two substantive provisions, A and B. Provision A mandates that a prisoner on incorrigible inmate status comply with certain requirements before being provided with an...

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