Browning v. Vernon

• Decision Date: 10 January 1995
• Docket Number: No. 94-35136,94-35136
• Citation: Browning v. Vernon, 44 F.3d 818 (9th Cir. 1995)
• Parties: Lawny Lamar BROWNING, Plaintiff-Appellee, v. Richard A. VERNON, Director; Ron McKinsey, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 818

44 F.3d 818

Lawny Lamar BROWNING, Plaintiff-Appellee, v. Richard A. VERNON, Director; Ron McKinsey, Defendants-Appellants.

No. 94-35136.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 4, 1994.

Decided Jan. 10, 1995.

Timothy D. Wilson, Deputy Atty. Gen., and Robert R. Gates, Special Deputy Atty. Gen., State of Idaho, Boise, ID, for defendants-appellants.

Stephen L. Pevar, American Civil Liberties Union, Denver, CO, for plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho.

Before BEEZER and FERNANDEZ, Circuit Judges, and ORRICK ^*, District Judge.

BEEZER, Circuit Judge:

Defendants, Richard Vernon and Ron McKinsey, appeal the district court's denial of their motions for summary judgment. Plaintiffs, a class of inmates in the North Idaho Correctional Institution, filed this action alleging due process violations in the administration of Idaho's retained jurisdiction program. Vernon and McKinsey contend that they are entitled to qualified immunity from damages because the allegations in the complaint do not constitute violations of a clearly established liberty interest protected by the Due Process Clause. The district court had jurisdiction under 28 U.S.C. Sec. 1343(3) and 42 U.S.C. Sec. 1983. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. Pelletier v. Federal Home Loan Bank, 968 F.2d 865, 869 (9th Cir.1992). We affirm.

I

A group of several hundred inmates ("Inmates") at the North Idaho Correctional Institution ("NICI") filed this class action seeking declaratory relief, injunctive relief and punitive damages for violations of their due process rights in connection with the retained jurisdiction program (the "Rider Program"). ¹ The inmates sued the administrators of the Rider Program, Richard Vernon, Director of the Idaho Department of Correction, and Ron McKinsey, warden of the North Idaho Correctional Institution, in both their individual and official capacities. The inmates state that the purpose of the Rider Program is to place offenders in a setting where they may be evaluated for their potential for probation. They argue that the program creates a liberty interest in an objective and accurate assessment of their probation potential and that they are being denied this right without due process of law.

In 1972, Idaho created the Rider Program by statute. Under the program, a state district court may retain jurisdiction over an individual upon conviction of a felony. ² Instead of ordering the defendant to begin serving the full sentence immediately, the sentencing court may place the individual in a correctional institution to be evaluated for potential release on probation. Toward the end of the retained jurisdiction period, the Jurisdictional Review Committee ("JRC") sends a report and recommendation to the sentencing court with a recommendation to either release the inmate on probation or revoke jurisdiction and order the inmate to serve out the remainder of the original sentence.

At issue is the preparation of the report and recommendation by NICI staff. The process, as described by Vernon and McKinsey, begins when the inmate is notified of the initial rehabilitation recommendation. The inmate is permitted to read all evaluations and the initial recommendation. An inmate with a negative rehabilitation recommendation is then immediately placed in segregated confinement. Approximately twenty four hours later, the inmate is brought before the JRC and permitted to rebut any information or recommendations made by the JRC. At this rebuttal hearing, the inmate may make an oral or written rebuttal statement and call members of the NICI staff and other inmates as witnesses. Based on all of this information, the JRC issues a final report which is forwarded to the sentencing court.

The inmates do not dispute these facts but claim that this process violates the Due Process Clause of both the United States Constitution and the Idaho Constitution. The inmates contend that (1) the one day notice is inadequate time to prepare for the rebuttal hearing; (2) although they are permitted to review the report and recommendation, they are not allowed to retain a copy for use in preparing their rebuttal; (3) they are given an inadequate explanation of negative evaluations prior to the rebuttal hearing; and (4) because they are immediately segregated from the general population, they are unable to contact witnesses and call them at the rebuttal hearing.

The district court denied Vernon's and McKinsey's motions for summary judgment, holding that the inmates have a protected liberty interest in a fair and accurate recommendation report which they were denied without due process of law. The district court further held that Vernon and McKinsey are not entitled to qualified immunity from liability for the Section 1983 claims. ³

II

We review de novo both a district court's decision concerning constitutional rights and its decision to deny qualified immunity in a section 1983 action. National Ass'n of Radiation Survivors v. Derwinski, 994 F.2d 583, 587 (9th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 634, 126 L.Ed.2d 592 (1993); Elder v. Holloway, --- U.S. ----, ----, 114 S.Ct. 1019, 1023, 127 L.Ed.2d 344 (1994).

III

Section 1983 permits claims for money damages against any person who, acting under color of state law, denies an individual rights, privileges or immunities guaranteed by the Constitution or laws of the United States. 42 U.S.C. Sec. 1983. In order to state a Section 1983 cause of action brought pursuant to the Due Process Clause, the inmates must assert a protected liberty interest which was denied them without due process of law.

The threshold question is whether, under the Rider Program, the inmates have a protected liberty interest in an objective and reliable rehabilitation report. A liberty interest protected by the Fourteenth Amendment may be derived from the Due Process Clause itself or from the laws of the states. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). A right to a fair and accurate rehabilitation report under the Rider Program does not derive directly from the Due Process Clause of the United States Constitution. Instead, we must determine whether Idaho state law gives rise to such a right.

We recently held that a state may create a liberty interest by "(1) establishing 'substantive predicates' to govern official decisionmaking, and (2) using 'explicitly mandatory language,' i.e. specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow." Walker v. Sumner, 14 F.3d 1415, 1419 (9th Cir.1994) (quoting Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 462-63, 109 S.Ct. 1904, 1909-10, 104 L.Ed.2d 506 (1989)).

The Idaho Supreme Court first addressed the Rider Program in State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). Wolfe explicitly holds that I.C. Sec. 19-2601 creates a liberty interest protected by the Due Process Clause of both the United States Constitution and the Idaho Constitution. Wolfe describes the Rider Program as one where "[t]he sentencing judge in seeking more information as to how to best deal with the criminal, sentenced him to the Board of Corrections to be studied and evaluated" and, as a result, the rehabilitation report is the most critical element of the program. Id. at 733. The Idaho Court then found that the inmate's, as well as the state's, expectation of an accurate evaluation and rehabilitation report is a liberty interest which warrants due process protection. ⁴ Id.

In Wolfe, the Idaho Supreme Court places clear limits on official discretion by mandating that NICI officials provide Rider Program participants certain minimum due process protections. Wolfe holds that state correctional officials have a duty to supply the sentencing court with a fair assessment of the inmate's rehabilitative potential and specifies the due process requirements needed to ensure the report's accuracy. Through the Rider Program, Idaho has placed "substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983).

We agree with Wolfe and hold that the Idaho Rider Program creates a liberty interest, protected by the Due Process Clause of the Fourteenth Amendment, in a fair and accurate rehabilitation evaluation and report.

IV

Vernon and McKinsey argue that, even if a liberty interest exists, they are entitled to qualified immunity from liability for alleged violations of the inmates' due process rights. Qualified immunity protects state officials, performing discretionary duties, from liability for civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). ⁵

Whether Vernon and McKinsey are entitled to qualified immunity requires a two-part inquiry: (1) Was the law governing the state official's conduct clearly established? (2) Under that law could a reasonable state official have believed his conduct was lawful? Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir.1993).

The inmates bear the burden of proving the existence of a "clearly established" liberty interest at the time of Vernon's and McKinsey's allegedly impermissible conduct. Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir.1992). If the inmates meet this burden, then Vernon and McKinsey bear the burden of establishing that their actions are reasonable, even if they violate the inmates constitutional rights. Id.

A

The liberty interest at issue has been clearly established in Idaho since State v. Wolfe was decided in 1978. The Idaho Supreme Court's opinion explicitly states that the inmates in the Rider Program have a liberty interest in a fair and reliable report....