Sanders v. Woodruff, 87-2127

• Decision Date: 21 August 1990
• Docket Number: No. 87-2127,87-2127
• Citation: 908 F.2d 310
• Parties: Eugene K. SANDERS 1 and Bill Herron, Appellants, v. MacArthur WOODRUFF, Bill Armontrout, Donald Cline, Henry Jackson, Dale Riley, Dick Moore, George Lombardi, Bobby Whiteside, William Webster, John Ashcroft, Cavanaugh and A. Dearixon, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 310

908 F.2d 310

Eugene K. SANDERS ¹ and Bill Herron, Appellants, v. MacArthur WOODRUFF, Bill Armontrout, Donald Cline, Henry Jackson, Dale Riley, Dick Moore, George Lombardi Bobby Whiteside, William Webster, John Ashcroft, Cavanaugh and A Dearixon, Appellees.

No. 87-2127.

United States Court of Appeals Eighth Circuit.

Submitted March 15, 1990.

Decided July 10, 1990.

Rehearing and Rehearing En Banc Denied Aug. 21, 1990.

Claudia York, Kansas City, Mo., for appellants.

Kelly Mescher, Jefferson City, Mo., for appellees.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and HEANEY, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Bill Herron appeals from a district court ² order dismissing his claim, filed under 42 U.S.C. Sec. 1983 (1982), in which he argued that his reassignment from Level II to Level I of the Special Management Facility (SMF) of the Missouri State Penitentiary (MSP) violated his due process rights. Herron argues that the district court erred in adopting the Report and Recommendation of a United States Magistrate, ³ which recommended that his claim be dismissed on grounds that the relevant Missouri statute, Mo.Rev.Stat. Sec. 217.375 (1986), ⁴ and relevant penal regulations 20-212.060 (now 20-212.040) and 20-112.040, did not create a liberty interest in Herron's transfer within the SMF. We affirm the district court's order.

The SMF served as the behavior modification and administrative segregation unit of the MSP. The SMF consisted of three housing units in two buildings: Housing Unit 5C housed Level I inmates, Housing Unit 5A housed Level II inmates, and Housing Unit 5B housed Level III inmates. Levels I through III were progressively less restrictive.

In December 1985, Herron escaped from the custody while being transported to the Boone County Circuit Court. After Herron was recaptured, he was returned to MSP and was placed temporarily in Level I of the SMF. Herron was charged with a conduct violation and appeared before the adjustment board. At his adjustment board hearing, Herron was given a copy of the written charges against him and was asked if he wished to call any witnesses or make a statement. The adjustment board found Herron guilty of a conduct violation, gave him ten days of punitive segregation, and referred him to the SMF classification committee. Soon thereafter, Herron met with the classification committee and was assigned to Level I of the SMF.

The classification committee reviewed Herron's status, as per Mo.Rev.Stat. Sec. 217.375, on January 29 and April 7, 1986. After each review, the committee recommended that Herron remain "as is." At his next review, July 9, 1986, the committee recommended that Herron be transferred to Level II, but this recommendation was overruled by Deputy Warden Donald Cline, based on his conclusion that Herron was "an extraordinary escape risk." (Tr. 23-24). Nevertheless, on October 17, 1986, after a later recommendation by the committee was approved, Herron was moved to Level II. On October 30, 1986, the committee recommended that Herron be transferred to Level III. In early December 1986, Dale Riley, Assistant Director of the Division of Adult Institutions, toured the SMF and noticed that Herron was in Level II. Riley went to the Warden of the MSP, Bill Armontrout, and recommended that, based on the number of Herron's escapes and attempted escapes, Herron be moved back to Level I. Armontrout agreed with Riley and issued a detention order on December 8, 1986, which ordered Herron moved back to Level I. On December 10, 1986, the classification committee reviewed Herron's placement and formally reassigned him to Level I.

Herron then filed suit under 42 U.S.C. Sec. 1983. Herron's original complaint was based on issues not currently before us. However, during the pendency of this litigation, Herron filed an amended complaint alleging that he had a liberty interest in remaining in Level II and that his reassignment to Level I violated his right to due process. The magistrate conducted an evidentiary hearing on Herron's requests for preliminary and injunctive relief and issued a Report and Recommendation on April 1, 1987, and another on April 30, 1987, dismissing Herron's complaints. On July 28, 1987, these Reports and Recommendations were adopted by the district court in all respects. Herron appealed the district court's order, and we appointed counsel for Herron and requested that Herron's counsel and the appellees submit briefs on the due process issue. The appellees then filed a motion for remand, which we granted. Following this remand, the magistrate conducted an evidentiary hearing on the due process issue and concluded in his Report and Recommendation that Herron's suit should be dismissed because he had failed to establish that he had a protectible liberty interest in remaining in Level II. The magistrate specifically found that the detention order was not based on any new violation or any problem with conduct, but was for administrative rather than punitive reasons. The magistrate stated that Level I was the more modern design where visual observation was available and was accordingly more secure than Level II. The magistrate concluded that Level I was the most secure area of the penitentiary, that Herron was one of the most accomplished escape artists in the MSP, and that no liberty interest was infringed upon by Herron's reassignment to Level I.

The district court, after a de novo review of the record, accepted the magistrate's recommendations and dismissed Herron's suit. We heard oral argument on this issue on October 11, 1989, and then, following a pro se motion by Herron for additional injunctive relief, heard oral argument again on March 15, 1990.

I.

Herron argues that the district court erred in concluding that he had no liberty interest in remaining in Level II of the SMF.

"Due process claims are generally subjected to a two part analysis: (1) is the asserted interest protected by the due process clause; and (2) if so, what process is due." Tyler v. Black, 811 F.2d 424, 427 (8th Cir.1987), adopted in relevant part, 865 F.2d 181 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 1760, 104 L.Ed.2d 196 (1989). To prevail, Herron "must first identify some 'liberty interest,' created by state law, regulation, or practice to which he has a legitimate claim of entitlement, before addressing the question of what process is due." Nash v. Black, 781 F.2d 665, 668 (8th Cir.1986). As we noted in Nash:

[T]here are two standards under which we determine whether a protected liberty interest is created: 1) does a statute, regulation, or official policy pronouncement contain particularized substantive standards or criteria that significantly guide decisionmakers; and 2) does the statute, regulation, or official policy pronouncement use mandatory language requiring the decisionmakers to act in a certain way.

Id.

Although we review issues of law de novo, Sherpell v. Humnoke School Dist. No. 5, 874 F.2d 536, 539 (8th Cir.1989), "we are bound by the factual findings of the magistrate and district court unless they are clearly erroneous," Tyler, 811 F.2d at 426.

Herron argues that his liberty interest was created by the language of Missouri Revised Statute section 217.375, and prison regulations 20-212.060 and 20-112.040, citing Knight v. Armontrout, 878 F.2d 1093, 1095 (8th Cir.1989) and Howard v. Armontrout, 729 S.W.2d 547, 549 (Mo.Ct.App.1987) (per curiam) to support his position.

Statute section 217.375 deals primarily with the placement of inmates in administrative segregation units. In Howard, the Missouri Court of Appeals, Western District, held that a liberty interest was created by statute section 217.375; however, that case involved the transfer of an inmate to the SMF, not the reassignment of an inmate already in the facility, see 729 S.W.2d at 548, and, therefore, is not applicable to the case before us today.

Regulation 20-212.060 established the rules that governed inmates in the SMF. In Knight, we held that regulation 20-212.040(7) ⁵ created a protectible liberty interest for inmates being temporarily placed in administrative segregation from the general population. 878 F.2d at 1095. As previously discussed, however, Herron was in administrative segregation, not the general population, when he was transferred back to Level I, and therefore the liberty interest identified in Knight is not applicable.

Regulation 20-112.040 establishes rules governing the placement of inmates in administrative segregation. When Herron was transferred back to Level I, he was given a full hearing by the classification committee within seventy-two hours of his reassignment, and the committee concluded that he should be reassigned to Level I. Furthermore, in accord with this regulation, Herron's classification is reviewed every ninety days by the classification committee and at that time he is given the opportunity to submit comments in writing, be represented by counsel substitutes, call witnesses (with permission of the committee), and present documentary evidence. Herron has been afforded all the review to which an inmate in his situation is entitled under 20-112.040, and we do not believe that he is entitled to any further rights under it.

Moreover, we are satisfied that the district court's findings of fact were not clearly erroneous.

Herron argues that the district court's finding that all three levels of the SMF served as administrative segregation is clearly erroneous. He cites a district court order in another case to support this contention. In Tyler v. Black, No. 82-4162-CV-C-5, slip op. at 3 (Oct. 14, 1983) (order granting in part and denying in part plaintiffs' motion for preliminary injunctive relief), affirmed, 744 F.2d 610 (8th Cir.1984), the district court stated that "it was clearly established that only Level I of the [SMF] was used by the defendants to administratively segregate inmates." To...