Brown v. Or. Dep't of Corr.

• Decision Date: 29 April 2014
• Docket Number: No. 11–35628.,11–35628.
• Citation: 751 F.3d 983
• Parties: Joshua Robert BROWN, Plaintiff–Appellant, v. OREGON DEPARTMENT OF CORRECTIONS; Max Williams; Stan Czerniak; Michael Gower; Barbara Cooney; Joan Barton; Greg Jones; Mark Nooth; Judy Gilmore; Jack Blankenbaker; Heidi MacKenzie; Theresa Hicks, in their individual and official capacities, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

751 F.3d 983

Joshua Robert BROWN, Plaintiff–Appellant,

v.OREGON DEPARTMENT OF CORRECTIONS; Max Williams; Stan Czerniak; Michael Gower; Barbara Cooney; Joan Barton; Greg Jones; Mark Nooth; Judy Gilmore; Jack Blankenbaker; Heidi MacKenzie; Theresa Hicks, in their individual and official capacities, Defendants–Appellees.

No. 11–35628.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 4, 2014.

Filed April 29, 2014.

Unconstitutional as Applied

OAR 291–055–0020(2), 291–055–0025(2), 291–055–0031(2, 3)

Tobias W. Mock (argued), Keith Slenkovich, Wilmer Hale LLP, Palo Alto, CA, for Plaintiff–Appellant.

Tiffany Keast (argued), Assistant Attorney General, Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, Oregon Department of Justice, Salem, OR, for Defendants–Appellees.

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding. D.C. No. 3:10–cv–00003–BR.

Before: ALFRED T. GOODWIN, STEPHEN S. TROTT, and WILLIAM A. FLETCHER, Circuit Judges.

OPINION

GOODWIN, Circuit Judge:

Joshua Robert Brown, currently incarcerated at Oregon's Snake River Correctional Institution (“SRCI”), appeals the district court's summary judgment in his pro se 42 U.S.C. § 1983 action. Brown alleges that prison officials violated his due process rights by housing him in the Intensive Management Unit (“IMU”) without periodic, meaningful review of his status.

We hold that, under any plausible baseline, Brown's conditions of confinement implicate a protected liberty interest giving rise to the procedural protections of the Due Process Clause. We also hold, however, that defendants are entitled to Eleventh Amendment and qualified immunity. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Brown was assigned a Level 5 custody classification and placed in the IMU at SRCI on June 18, 2008, after being found in possession of a weapon. He remained confined in the IMU at either SRCI or the Oregon State Penitentiary (“OSP”) for twenty-seven consecutive months, until his release to the OSP general population on September 22, 2010.

Pursuant to the Oregon Administrative Rules, a Level 5 custody classification is the highest level of supervision and is assigned to inmates demonstrating “behaviors that in the judgment of the department present a threat sufficient to require special security housing on intensive management status.” Oregon Administrative Rule (“OAR”) 291–104–0111(9)(a)(A). Level 5 classifications are assigned by the Special Population Management Committee. OAR 291–104–0125(3)(a). Once an inmate is assigned to Level 5, he is placed in the IMU or an IMU-status cell, and that status remains until the inmate “is manually scored to a lower custody classification level by the assigned institutional counselor.” OAR 291–104–0125(3)(b); see alsoOAR 291–055–0005(3)(b), 0031.

IMU inmates are held in solitary confinement for more than twenty-three hours per day. They are permitted outside of their cells for a total of only forty minutes per day and may spend thirty of those minutes engaged in recreation. Half of that time—fifteen minutes—may be spent in an “outside” facility reserved for IMU use, within a fifteen by forty-foot room with high, concrete walls covered by a metal grate. Inmates in the general population, in contrast, receive twenty-five to thirty hours per week for recreation and social interaction, including two to five hours of outside recreation every day. IMU inmates are permitted two non-contact visits per month and a maximum of two visitors in a six-month period, while general-population inmates are permitted between eleven and twenty-two contact visits per month and an unlimited number of approved visitors. IMU inmates are denied access to many other privileges afforded inmates in the general population, including access to the prison and law libraries, group religious worship, educational and vocational opportunities, telephone use except in emergencies, access to televisions, and access to personal property.

IMU inmates are assigned a numerical “Programming Level” between 1 and 4. OAR 291–055–0020. Upon their placement in the IMU, inmates are assigned to Programming Level 2 and are given mandatory behavior-modification programs comprising individual program “packets.” OAR 291–055–0020(2)(b), (d). Inmates are not eligible for release from the IMU until they have attained Programming Level 4 status, which requires “successful completion” of the assigned packets. OAR 291–055–0020(2)(d)(C). Because only one program packet may be completed in any two-week period, the duration of an inmate's confinement is dependent on the number of packets that he is assigned.

Although prior Oregon Department of Corrections (“ODOC”) regulations required reviews of inmates' custody classifications every six months, seeOAR 291–104–0125 (abrogated), ODOC discontinued this practice following amendments to the administrative rules in May 2008. Current review procedures consist only of “programming” reviews, thirty-day reviews of each IMU inmate's programming status. OAR 291–055–0020(2), 0025(2). As part of this review procedure, within thirty days of an inmate reaching Programming Level 4, the Inmate Program Committee is required to provide a written recommendation for or against release from the IMU to the Classification Transfer Unit, which is charged with making the final determination regarding the inmate's classification status. OAR 291–055–0031(2)–(3).

The Administrative Segregation Unit (“ASU”) and Disciplinary Segregation Unit (“DSU”) constitute other forms of segregated housing in the ODOC prison system. ASU is “[a]dministrative housing for those inmates whose notoriety, actions, or threats jeopardize the safety, security, and orderly operation of the facility.” OAR 291–046–0010(3). DSU is punitive housing reserved for inmates “in violation of rules of prohibited conduct.” OAR 291–011–0005(2).

Unlike the IMU, inmates may not be housed in the DSU for longer than 180 days, and are entitled to thirty-day “assessment” reviews evaluating whether to recommend their early release from segregation. OAR 291–105–0066(10), 291–011–0030(3). Other conditions of confinement in the DSU generally are similar to conditions in the IMU, although DSU inmates are not required to participate in behavior-modification programs.

Retention in the ASU is limited to no more than thirty days without a hearing and status review and no more than 180 days without “due process.” OAR 291–046–0025(4), 0085(2), 0090(1). Conditions in the ASU are less restrictive than in the IMU, with ASU inmates afforded access to telephones, televisions, computers, and personal shoes and other property. Inmates in the ASU are permitted seven hours of recreation per week and are not required to participate in behavior-modification programs.

Brown was assigned to the IMU at SRCI on June 18, 2009 and given fifty-three behavior-modification packets. The subject matter of at least thirty of Brown's assigned packets had no relationship to his underlying crime, the basis for his confinement in the IMU, or the IMU's stated security objectives.

The Inmate Program Committee conducted four programming reviews of Brown's status between July and September 2008, advancing him from Programming Level 2 to 3 on October 21, 2008. The record does not include evidence of any additional programming reviews until June 2009. Thereafter, the Inmate Program Committee reviewed Brown's programming status every month, keeping him at Programming Level 3 pending the “successful completion” of his assigned mandatory programming packets. The Inmate Program Committee's meeting minutes state only that Brown “is programming-no change.” Brown completed his behavior-modification programming and was promoted to Programming Level 4 on August 24, 2010. He was released from the IMU on September 22, 2010.

While housed in the IMU, Brown submitted eight petitions to prison officials requesting review of his classification status. Those requests were denied, and Brown was not afforded a review of his classification status until the eve of his eventual release from the IMU.

Brown filed a pro se 42 U.S.C. § 1983 action alleging, among other things, that defendants had violated his due process rights under the Fourteenth Amendment by failing to provide periodic, meaningful reviews of his confinement. Defendants moved for summary judgment; Brown did not cross-move. The district court granted summary judgment on Brown's due process claim because it concluded that ODOC officials had conducted programming reviews of Brown's classification once per month in accordance with policy, and Brown had no liberty interest in freedom from segregation in the IMU.

Now represented by pro bono counsel, Brown assigns error only to the summary judgment on his due process claim.

DISCUSSION

On de novo review, Morrison v. Hall, 261 F.3d 896, 900 (9th Cir.2001), we hold that, under any plausible baseline, Brown's conditions of confinement implicate a protected liberty interest giving rise to procedural due process protections. We also hold, however, that defendants are entitled to immunity.

A. Due Process

Prisoners are entitled to certain due process protections when subject to disciplinary sanctions. See Wolff v. McDonnell, 418 U.S. 539, 564–71, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In Sandin v. Conner, however, the Supreme Court held that these procedural protections adhere only where the deprivation implicates a protected liberty interest-that is, where the conditions of confinement impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). We may consider “1) whether the challenged condition ‘mirrored those conditions imposed upon inmates in administrative segregation and protective custody,’ and thus comported with the prison's discretionary...