McCrae v. Hankins

• Decision Date: 05 December 1983
• Docket Number: No. 82-3621,82-3621
• Citation: 720 F.2d 863
• Parties: William L. McCRAE, Plaintiff-Appellant, v. W.T. HANKINS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 863

720 F.2d 863

William L. McCRAE, Plaintiff-Appellant, v. W.T. HANKINS, et al., Defendants-Appellees.

No. 82-3621.

United States Court of Appeals Fifth Circuit.

Dec. 5, 1983.

Steve LeBlanc, Baton Rouge, La. (Court-appointed), for plaintiff-appellant.

Joseph Erwin Kopsa, Baton Rouge, La., for defendants-appellees.

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

Before WISDOM, REAVLEY and JOHNSON, Circuit Judges.

REAVLEY, Circuit Judge:

This is a civil rights action under 42 U.S.C. Sec. 1983 in which plaintiff William L. McCrae, an inmate at the Louisiana State Penitentiary, seeks redress for alleged violations of his right to due process. Pursuant to a magistrate's recommendation, the district court granted defendant's motion for summary judgment. We affirm as to the liberty claim but reverse as to the property claim.

I. Facts

In reviewing an order of summary judgment, we view the case in the same manner as the district court, asking whether there is any genuine issue of material fact and whether appellee was entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Bank of Commerce of Laredo v. City National Bank of Laredo, 484 F.2d 284, 289 (5th Cir.1973), cert. denied, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109 (1974). Having read plaintiff's pro se response to the motion for summary judgment liberally, as we are required to do, ¹ we find that the facts surrounding the loss of plaintiff's property are disputed. We therefore recite those facts in the light most favorable to plaintiff, the party opposing summary judgment.

On April 26, 1981, Sergeant Lionel Harris inspected McCrae's bed and discovered a file about eight inches long in a magazine under the mattress. Sergeant Harris filed a disciplinary report charging McCrae with possession of contraband, and plaintiff was immediately transferred to administrative lockdown pending a hearing before the Prison Disciplinary Board. At the time of the transfer, prison officials inventoried all personal property belonging to McCrae in the dorm in which he lived, but refused to inventory other of McCrae's property locked in the prison hobby shop. The next day, plaintiff appeared before the Prison Disciplinary Board and requested permission to call four inmate witnesses in his behalf. The Board denied McCrae's request, but continued the hearing for one week to allow time for an investigation.

When the hearing reconvened on May 4, 1981, McCrae again requested permission to call four witnesses who he claimed would testify that the file was placed under his mattress by another inmate without his knowledge. The Board again refused McCrae permission to call witnesses. It also refused to allow plaintiff access to a report written by the officer who investigated the charge against McCrae. Crediting the statement of Sergeant Harris, the Board found that McCrae had violated the prison rule against contraband, and plaintiff was transferred to "extended lockdown" in a maximum security unit. Plaintiff told defendant John Williams of his property in the hobby shop when Williams came to take McCrae to extended lockdown, but Williams refused to inventory the property.

The Board held a rehearing in McCrae's case on June 1, 1981. Statements by the four inmate witnesses were read into the record, each to the effect that the file had been placed under plaintiff's mattress by another inmate. Nonconfidential portions of the original investigative report were also made a part of the record. Reversing its prior decision, the Board found that McCrae had not violated prison rules and ordered that he be released from extended lockdown and returned to the general population in a housing unit other than that in which he had previously lived.

Upon returning to the general population, plaintiff asked Major Teer, supervisor of his new housing unit, about the property that had been left at the hobby shop. Lieutenant Faren Rachal was eventually contacted about the property and recalled that the more expensive items had been sent to McCrae's home and the rest had been given to inmate Anthony Smith. According to inmate Bobby Smith, Rachal opened McCrae's hobby shop locker and let inmates Anthony Smith and William Kissinger take McCrae's property. According to Rachal, Kissinger, and Anthony Smith, McCrae wrote letters to the two inmates asking Kissinger to mail the bulk of his property to plaintiff's friend Carolyn Lafleur and asking that the rest be given to Smith. Kissinger states by affidavit that he collected McCrae's belongings, which did not include several of the items listed by plaintiff, and that he mailed part to Ms. Lafleur and gave the rest to Anthony Smith. The property was not received by Ms. Lafleur and has never been recovered.

Plaintiff claims in this action that he was denied due process in two respects. First, his liberty interest was infringed without due process because of the Board's refusal to allow McCrae to call witnesses or present other favorable testimony at the hearings. Second, he was deprived of property without due process by the prison officials' intentional refusal to inventory and secure his belongings.

II. Denial of Liberty

This plaintiff was placed in extended lockdown for just under a month on the basis of two hearings of which he had notice and at which he was present. ² He was not, however, allowed to call, either in person or by affidavit, four witnesses who would testify in his favor, and he was not allowed to see the investigative report filed in his case. The report, which was before the Board, contained the investigator's statement that all four inmate witnesses he interviewed ³ agreed that the file had been placed under McCrae's mattress by another inmate. It also contained confidential information about the identity of that other inmate. Finally, the report reflected Sergeant Harris' view that the inmates' explanation was implausible: the guards had appeared too suddenly to have allowed another inmate time to slip the file under McCrae's bed, and the bed was neatly made at the time, not wrinkled as if recently disturbed.

The Supreme Court recently concluded in Hewitt v. Helms, --- U.S. ----, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), that the Due Process Clause of the Fourteenth Amendment does not itself create in an inmate a protected interest in being confined in the general prison population. Id. at ---- - ----, 103 S.Ct. at 869-70. Instead, the Clause standing alone requires only that an inmate be confined under conditions consistent with his sentence, id. at ----, 103 S.Ct. at 869 (citing Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976)), and "administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration." ⁴ Hewitt, --- U.S. at ----, 103 S.Ct. at 870. See Olim v. Wakinekona, --- U.S. ----, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (transfer for confinement in another state is within normal range of custody) Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (transfer within state is within normal range of custody); cf. Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (transfer to mental hospital is not within normal range of custody). A state may, however, create by statute or regulation an interest protected by the Due Process Clause even though the same interest is not among those protected by the Clause standing alone. E.g. Hewitt, --- U.S. at ---- - ----, 103 S.Ct at 870-71; Vitek, 445 U.S. at 487-92, 100 S.Ct. at 1261-63 (state-created liberty interest in not being transferred to mental hospital); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11-13, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979) (parole); Wolff v. McDonnell, 418 U.S. 539, 556-57, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) (revocation of good-time credits).

Regulations of Louisiana's Department of Corrections, in effect at the time McCrae was disciplined, were sufficient to extend to Louisiana inmates a protected liberty interest in not being confined to extended lockdown. The Supreme Court's most recent analysis of a state-created liberty interest in a prison setting came in Olim v. Wakinekona, supra. In concluding that Hawaii affords its inmates no protected interest in remaining in Hawaii prisons, the Olim Court relied entirely on the absence of any state-created "substantive limitations" on the discretion of prison authorities to transfer inmates. Under the regulations of Hawaii's Department of Social Services and Housing, Corrections Division, "the prison administrator's discretion to transfer an inmate is completely unfettered." --- U.S. at ----, 103 S.Ct. at 1747. Those same regulations did require that an advisory "Program Committee" conduct a hearing prior to prison transfers involving "a grievous loss to the inmate." Id. at ----, 103 S.Ct. at 1744 (quoting regulation). Further, they required that the inmate be given notice of the hearing and, with certain exceptions, an opportunity to confront and cross-examine witnesses. Id. Olim held, however, that even in the face of these procedural requirements, Hawaii had not created a protected interest because it had in no substantive way limited the discretion of the prison administrator to transfer the inmate in question:

Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement. If officials may transfer a prisoner "for whatever reason or for no reason at all," Meachum, 427 U.S., at 228, 96 S.Ct., at 1540, there is no such interest for process to protect. The State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right.

Id. at ----, 103 S.Ct. at 1748 (citation and...