Clark v. Brewer, s. 84-1281
| Decision Date | 30 October 1985 |
| Docket Number | Nos. 84-1281,84-1354,s. 84-1281 |
| Citation | 776 F.2d 226 |
| Parties | Edward CLARK, Appellee, v. Lou V. BREWER, Warden of the Iowa State Penitentiary at Fort Madison; Calvin Auger, Director of the Iowa Bureau of Adult Corrections; and Kevin Burns, Commissioner of the Iowa Department of Social Services; Jack Baughman, David Scurr, Roland Macauley, Harry Woods, Harold Farrier, Victor Preisser, Catherine Williams, Michael Reagen, added defendants, Appellants. Edward CLARK, Appellant, v. Lou V. BREWER, Warden of the Iowa State Penitentiary at Fort Madison; Calvin Auger, Director of the Iowa Bureau of Adult Corrections; and Kevin Burns, Commissioner of the Iowa Department of Social Services; Jack Baughman, David Scurr, Roland Macauley, Harry Woods, Harold Farrier, Victor Preisser, Catherine Williams, Michael Reagen, added defendants, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Mark Hunacek, Des Moines, Iowa, for appellants.
Barbara Schwartz and Mary Getspudas, University of Iowa, Iowa City, Iowa, for appellee.
Before ARNOLD, FAGG, and BOWMAN, Circuit Judges.
The State of Iowa appeals from the district court's resolution of this 42 U.S.C. Sec. 1983 action brought by Edward Clark, an inmate at the Iowa State Penitentiary. Clark cross-appeals on several issues. Except to the extent modified below, we affirm the decision of the district court.
The present action arises out of Clark's segregation in close management status in the Iowa State Penitentiary (I.S.P.). Close management is a nonpunitive status of indefinite duration intended to segregate from the general penitentiary population inmates posing a security threat to the institution. Inmates who are placed in close management experience significantly harsher conditions and have fewer opportunities to participate in certain institutional programs (e.g., educational and work programs) than inmates that remain in the general penitentiary population.
Clark was initially segregated in close management in 1969. This segregation occurred after numerous disciplinary reports had been filed against Clark and most significantly after two separate incidents in which Clark killed both another inmate and a penitentiary guard. After approximately seven years in close management, Clark, in 1976, filed this section 1983 action challenging as unconstitutional his continued segregation from the general penitentiary population. As relief, Clark sought both money damages and release into the general penitentiary population. Since filing this action, Clark has been released from close management, and the issue of compensatory damages has been settled.
Although initially inclined to believe otherwise, we conclude that Clark's release from close management and the settlement of his damage claims have not rendered this action moot. We believe that this action represents one of a narrow class of cases that by its nature is "capable of repetition, yet evading review." See Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (citation omitted), and Nebraska Press Association v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2796, 49 L.Ed.2d 683 (1976) (quoting Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911)). This exception is applicable (1) when the relatively short term nature of the challenged action prevents its full litigation prior to its cessation or expiration; and (2) when there exists a reasonable expectation that the same complaining party will again be subject to the same action. Murphy, 455 U.S. at 482, 102 S.Ct. at 1183; Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Backus v. Baptist Medical Center, 671 F.2d 1100, 1103 (8th Cir.1982).
Although Clark's initial segregation in close management occurred over a significant period of time, the focus of our analysis, with respect to the first prong of this two part test, is not on the length of time over which the particular action challenged occurred. ' " Conyers v. Reagan, 765 F.2d 1124, 1128 (D.C.Cir.1985) (emphasis in original) (quoting Finberg v. Sullivan, 634 F.2d 50, 55 (3d Cir.1980)); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980); Nebraska Press Association, 427 U.S. at 547, 96 S.Ct. at 2797; Super Tire Engineering Co. v. McCorckle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (1974).
Close management as developed in Iowa satisfies this first requirement. In most cases, segregation in close management, while indefinite in length, lasts only a relatively short period of time. As a result, an inmate's segregation will normally terminate and the inmate will be returned to the general penitentiary population long before a challenge to his segregation in close management can be litigated fully. Thus, because close management is by nature short in duration, a challenge to its use will generally avoid review by this court if the release of the inmate is found to moot his claim.
Further, with respect to the second prong of the "capable of repetition, yet evading review" test, a reasonable expectation exists that Clark will again be subjected to segregation in close management. See Murphy, 455 U.S. at 482, 102 S.Ct. at 1183. Since his release into the general penitentiary population, Clark has received a variety of disciplinary reports and has spent time both in punitive segregation and close management. At the time of this decision, Clark is again in punitive segregation, and upon his release, the parties agree it is a virtual certainty that Clark will be returned to close management. The likelihood of this action is further indicated by a penitentiary regulation which provides that "inmates completing disciplinary sanction for thirty (30) or more days will be automatically referred for close management upon completion of disciplinary sanction." I.S.P. Close Management Policy at 3. We conclude Clark's action is capable of repetition, yet evading review and thus is not moot. We turn then to the merits of Clark's claim.
In this action, Clark does not challenge his original transfer to close management. Rather, Clark asserts that once placed in close management, penitentiary officials were required to review his status periodically in order to determine whether he in fact continued to constitute a threat to the institution's security. Underlying Clark's claim is the related contention that inmates faced with indefinite segregation in close management have a liberty interest, protected by the due process clause of the fourteenth amendment, in remaining in or returning to the general penitentiary population.
The district court concluded that Clark did possess a constitutionally protected liberty interest. Clark v. Brewer, 578 F.Supp. 1501, 1505-06 (S.D.Ia.1983). In reaching this decision, the district court relied largely on state law as the source of that interest. We agree with the district court's conclusion that a liberty interest does exist in this case. However, we reach our conclusion on a basis slightly more limited than that relied on by the district court.
As a general proposition, a liberty interest protected by the due process clause of the fourteenth amendment "may arise from two sources--the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). Clark does not seriously contend that the due process clause itself creates an interest in being confined in the general penitentiary population rather than close management. Nor, in light of Hewitt, do we believe he could. See id. at 467-68, 103 S.Ct. at 869-70. Instead, Clark focuses largely on state law as the source of a liberty interest.
A state created liberty interest arises in situations in which the state has placed substantive limitations on the exercise of official discretion. Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). Liberty interests created by the state may be "found not only in a state's statutes or administrative code, but also in official policy pronouncements that are intended to guide the exercise of discretion." Green v. Black, 755 F.2d 687, 688 (8th Cir.1985); see also Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 466, 467, 101 S.Ct. 2460, 2464, 2465, 2465, 69 L.Ed.2d 158 (1981) (opinion of Court and Brennan, J., concurring); Parker v. Corrothers, 750 F.2d 653, 660-61 (8th Cir.1984); Jones v. Mabry, 723 F.2d 590, 593 (8th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984).
In determining whether state statutes, regulations, or policy statements place substantive limitations on the ability of penitentiary officials to retain an inmate in close management, there must exist in the statute, regulation, or policy statement particularized substantive standards or criteria that guide the exercise of discretion by penitentiary officials. See Olim, 461 U.S. at 249, 103 S.Ct. at 1747 (citing Dumschat, 452 U.S. at 467, 101 S.Ct. at 2465 (Brennan, J., concurring)); see also Parker, 750 F.2d at 661. In making this determination, an important factor that must be considered is whether the statute, regulation, or policy statement in question contains language of a mandatory nature (e.g., shall, will, must) similar in substance, form, or effect to the language of the Nebraska statute at issue in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). See Hewitt, 459 U.S. at 471-72, 103 S.Ct. at 871-72; Harmon v. Auger, 768 F.2d 270, 273 (8th...
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