Giovanni v. Lynn

• Decision Date: 03 April 1995
• Docket Number: No. 93-3456,93-3456
• Citation: 48 F.3d 908
• Parties: Edward GIOVANNI, Plaintiff-Appellant, v. Bruce LYNN, Secretary, Department of Correction, State of Louisiana, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 908

48 F.3d 908

Edward GIOVANNI, Plaintiff-Appellant, v. Bruce LYNN, Secretary, Department of Correction, State of

Louisiana, et al., Defendants-Appellees.

No. 93-3456.

United States Court of Appeals, Fifth Circuit.

April 3, 1995.

Rehearing Denied May 3, 1995.

Edward Giovanni, pro se.

Eddie Lee Marshall, Angola, LA, for appellant.

Rose Polito Wooden, Asst. Atty. Gen., Richard P. Ieyoub, Atty. Gen., Baton Rouge, LA, for appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before POLITZ, Chief Judge, GARWOOD and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

In this case, we are called on to decide whether a state prisoner placed in extended lockdown for disciplinary violation after a constitutionally adequate hearing, has a protected liberty interest in being released from lockdown when the violation is administratively expunged from his record for failure of the Secretary of the state Department of Corrections to act on his appeal within the 120-day limit imposed by the prison disciplinary rules. We hold that no protectible liberty interest is created by this appeal procedure and therefore affirm the judgment of the district court dismissing appellant's claims.

Facts and Proceedings Below

Plaintiff-appellant Edward Giovanni (Giovanni) is an inmate at the Louisiana State Penitentiary at Angola (the Prison). On August 22, 1988, Prison officials issued an incident report charging Giovanni with planning an escape and possessing materials necessary to effectuate an escape. ¹ A full disciplinary hearing was held on August 24, at which Giovanni was found guilty and sentenced to extended lockdown. Under the Prison's disciplinary rules, extended lockdown is an appropriate penalty for Giovanni's violation. See State of Louisiana Department of Public Safety and Corrections, Disciplinary Rules and Procedures for Adult Prisoners 4 (February 5, 1986) ("No prisoner can be placed in extended lockdown for any reason unless he has been afforded a full hearing before the Disciplinary Board and was found guilty of ... being a serious escape risk ...").

Giovanni filed an appeal on August 27, 1988. Prison regulations give the Secretary of the Louisiana Department of Correction 120 days to grant or deny a prisoner's appeal; any appeal not processed within the 120-day limit is automatically granted. Solely because the Secretary failed to take any action on Giovanni's appeal within the 120-day period, the appeal was "granted" on February 22, 1989. According to the Prison's Chief Legal Counsel, however, "such 'granteds' are considered technicalities. While the report is to be removed from the inmate's disciplinary record for the purpose of future action, no other remedy is necessary. He/she will not receive any return of any privilege lost." (Emphasis in original). Giovanni was notified that his appeal had been "granted" on April 27, 1989, and the disciplinary report was expunged from his record on April 28, 1989.

At that time, inmate appeals were processed by a three-member panel in a closed review procedure. Continued lockdown status was reviewed about every ninety days thereafter by a lockdown review board, again in a closed procedure. Giovanni's case was periodically reviewed by the board pursuant to these procedures, but it was determined that he posed a continuing threat to security, and he remained in extended lockdown. The lockdown review reports indicated that Giovanni was not released from extended lockdown in part because of the nature of his original offense. ² Although the disciplinary report had been expunged from Giovanni's record, a summary of the charges was placed in his file. ³

On March 27, 1990, a state court held a hearing on a writ of habeas corpus by another Angola inmate. Fulford v. Smith, No. 11,602 (20th Judicial Dist., La. March 27, 1990). The court there decided that, when an appeal was "granted" because of the Secretary's failure to respond within 120 days, the inmate's disciplinary report must be expunged and that, at each subsequent periodic review, the inmate must be given notice and an opportunity to be present. Pursuant to this new procedure, Prison officials reviewed Giovanni's status on April 1, 1990, and released him from extended lockdown on April 4, 1990.

Giovanni filed the present suit on September 26, 1989, challenging the fairness of the August 24, 1988, disciplinary hearing and the timeliness and outcome of his subsequent appeal. Specifically, and most significant for present purposes, he complained that he was denied due process because, although his appeal had been "granted," he had not been released from extended lockdown. He sought monetary and injunctive relief under 42 U.S.C. Sec. 1983. The Prison moved to dismiss Giovanni's claims under Rule 12(b)(6). The magistrate judge recommended that most of Giovanni's claims related to the procedures employed in his August 24 disciplinary hearing be dismissed, and the district court adopted those recommendations and granted the Prison's motion to dismiss in part on May 17, 1990. ⁴ However, taking the allegations of Giovanni's complaint as true and noting that the Prison had brought forth no evidence to disprove them, the magistrate judge found that Giovanni's claim that the granting of his appeal for lapse of the 120-day response period entitled him to be returned to his former custody status, stated a claim for denial of a protected liberty interest that could not be dismissed under Rule 12(b)(6).

The magistrate judge held a hearing on February 9, 1993, to consider this remaining claim. He noted that Giovanni's arguments that a prisoner has a protected liberty interest in remaining free from extended lockdown, based on this Court's decision in McCrae v. Hankins, 720 F.2d 863 (5th Cir.1983), were wide of the mark because that interest was not implicated when, as in Giovanni's case, the inmate had been lawfully placed in extended lockdown. The magistrate judge found that neither the 120-day automatic grant of appeal rule nor the state court decision in Fulford created a protected liberty interest in being released from extended lockdown and recommended dismissing the suit with prejudice. ⁵ The district court adopted the magistrate judge's recommendations and dismissed the suit with prejudice on June 2, 1993.

It is this order that Giovanni now appeals. In his pro se brief, Giovanni addresses only the asserted liberty interest created by the practice of expunging disciplinary reports when the 120-day period has passed without action by the Secretary on the appeal. We therefore do not reach the other findings of the magistrate judge's report adopted by the district court. See supra, note 5. ⁶

Discussion

In the context of prisoners placed in more restrictive confinement, a protected liberty interest can arise in one of two ways: when the restriction is imposed for a punitive (as opposed to an administrative) purpose, and when a state regulation creates a liberty interest. Mitchell v. Sheriff Department, Lubbock County, Texas, 995 F.2d 60, 62-63 (5th Cir.1993). Assuming, arguendo, that Giovanni's lockdown was for a punitive, as opposed to an administrative, purpose, under our holding in Mitchell the process due would be that prescribed in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). It is not contended in this appeal that the August 24, 1988, hearing did not fully satisfy all the requirements of Hewitt. Moreover, Hewitt does not require that there be any provision for appeal. ⁷ Consequently, the failure to act on Giovanni's appeal could not deprive him of the process he was due by virtue of the assumed punitive nature of the lockdown.

Giovanni's claim, however, is that he had a liberty interest by virtue of the Prison disciplinary rules.

"[A] State creates a protected liberty interest by placing substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). To satisfy this standard, a regulation must fulfill two requirements: it must "establish[ ] 'substantive predicates' to govern official decisionmaking and, further, ... mandat[e] the outcome to be reached upon a finding that the relevant criteria have been met." Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989) (citation omitted). The Supreme Court has also made clear that, to create a liberty interest, the law or regulation at issue must contain "explicitly mandatory language," that is, that it must "requir[e] that a particular result is to be reached upon a finding that the substantive predicates are met." Id. at 464, 109 S.Ct. at 1910 (footnote omitted).

This Court has previously held that the Louisiana Department of Corrections Regulations prescribing reasons for placement in extended lockdown were sufficient to create a liberty interest in not being confined to extended lockdown without due process. McCrae v. Hankins, 720 F.2d 863, 867 (5th Cir.1983). This is because "[t]he discretion of a Louisiana disciplinary board to place an inmate in extended lockdown is ... substantively limited by 'particularized standards or criteria [that] guide the ... decisionmakers' " in classifying inmates to extended lockdown. Id. at 868 (citation omitted). ⁸ Thus, under the regulations, there is a protected liberty interest in not being transferred to extended lockdown from the general prison population. But Giovanni does not challenge before us, and we think the record fully supports, the district court's conclusion that Giovanni was afforded appropriate due process protections at his initial disciplinary hearing.

The essence of Giovanni's position is that he was in substance denied the appeal provided for in the regulations, because the Secretary did not act on the appeal within the 120 days required by the regulation and, although as a result his disciplinary violation was expunged, h...