Hill v. Fleming

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 4, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court

JAMES WILLIAM HILL,

Plaintiff-Appellant,

v. No. 04-1166
(D. Colo.)
MR. FLEMING (Lieutenant); E.J. (D.Ct. No. 02-F-2438 (PAC))
GALLEGOS (Warden); C. GOMEZ
(Captain); MR. BEHRENS (Lieutenant);
MR. WILSON (Lieutenant); MR.
HANCOCK (Lieutenant); MR.
GALLATY (Lieutenant); DR. BAILEY
(Psychologist); MS. HOLINKA
(Associate Warden); MR. G. CLARK
(Unit Manager); MR. F. OWENS (Unit
Counselor),

Defendants-Appellees.
____________________________

ORDER AND JUDGMENT *

Before HARTZ, Circuit Judge, and McWILLIAMS and BRORBY, Senior
Circuit Judges.

Appellant James William Hill appeals the district court’s grant of summary

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
judgment in favor of the Appellees, officials of the Federal Bureau of Prisons, on

his 42 U.S.C. § 1983 action alleging the conditions and duration of his 399-day

administrative detention, together with the federal prison regulations in 28 C.F.R.

§ 541.22, created a liberty interest triggering procedural due process protections

which the prison officials violated. Exercising our jurisdiction under 28 U.S.C.

§ 1291, we affirm.

I. Background

We begin with the undisputed facts relevant to Mr. Hill’s § 1983 action and

summary judgment disposition. Mr. Hill is serving an eighty-four month sentence

with the Federal Bureau of Prisons for distribution of cocaine base and from

September 29, 2000, until March 14, 2002, was confined at the Federal

Correctional Institution in Florence, Colorado. On February 16, 2001, prison

officials placed Mr. Hill in a dry cell on suspicion he ingested narcotics; they then

issued an order advising he would remain in the dry cell until they determined

whether he introduced narcotics into the institution. The next day, February 17,

2001, prison officials recovered from Mr. Hill's feces two balloons which

contained marijuana. Prison officials then suspended preparation of a disciplinary

report against Mr. Hill pending an investigation by the Federal Bureau of

Investigation for possible criminal prosecution and placed Mr. Hill in

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administrative detention pending the investigation, as required under 28 C.F.R.

§§ 541.14(b)(1) and 541.22.

Almost one year later, on January 9, 2002, the Federal Bureau of

Investigation declined to prosecute Mr. Hill on drug charges and released the

discipline report for processing. 1 Six days later, on January 15, 2002, a prison

disciplinary officer held a hearing on the charges in the report, found Mr. Hill

violated a prison offense code for possession of narcotics, and recommended a

disciplinary transfer. Mr. Hill remained in administrative detention until his

disciplinary transfer to another institution on March 14, 2002. In total, Mr. Hill

spent 399 days in administrative detention at the Florence facility. 2

A factual dispute arises over the conditions of Mr. Hill’s administrative

detention. First, in his verified and sworn complaint, Mr. Hill alleged officials

1
While Mr. Hill cursorily complains on appeal about the length of time it
took to investigate the incident, the § 1983 action in this case is against the named
prison officials and not the agents of the Federal Bureau of Investigation who
conducted the one-year investigation of which he now complains.
2
Mr Hill, in his pro se complaint, and the federal magistrate judge
calculated Mr. Hill’s confinement at 391 days, while we and Mr. Hill’s counsel
calculate it at 399 days. Although sixty days of this confinement occurred after
Mr. Hill's hearing for narcotics possession and prior to his disciplinary transfer,
neither party suggests the sixty days not be considered for summary judgment
purposes.

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confined him to his cell twenty-four hours a day except for one hour of exercise

each day, five days a week. He further alleged officials denied him sick calls;

educational, work and visitation privileges; and use of the telephone, commissary,

law and other library, and recreation area available to inmates in the general

population. In contrast, prison officials generally claimed the conditions in

administrative detention are “as close to those in the general population as

possible, with the large exception of keeping the inmates separated from others

for security purposes,” and pointed out prison regulations prescribe the conditions

for inmates in administrative detention, which include five hours of recreation a

week and privileges to make telephone calls, send and receive mail, participate in

educational and religious activities in their cells, and retain a certain amount of

personal property. See 28 C.F.R. §§ 540.16, 540.50, 540.100, 541.21(c)(6), and

541.22(d). However, the officials did not explicitly state Mr. Hill himself

experienced the same conditions prescribed in the regulations or in comparison

with other inmates in either administrative detention or the general prison

population. Prison officials also did not submit evidence showing 399 days in

administrative detention is typical.

With respect to procedural due process, Mr. Hill alleged he filed an

administrative grievance complaining prison officials denied him periodic review

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hearings and psychiatric or psychological assessments required by 28 C.F.R.

§ 541.22(c). He claimed he withdrew his grievance when a prison official

summoned him to his office, told him segregation review officers were “in

trouble” for failing to provide him the required monthly hearings, and if he did

not drop his grievance, the Federal Bureau of Investigation would reconsider its

decision not to criminally prosecute him and cause him to remain in

administrative detention for several more months. In response, prison officials

claimed, by declaration and through submission of periodic review forms, that

Mr. Hill received three-day, seven-day, weekly and thirty-day reviews, as well as

psychological assessments, as required by § 541.22(c), for the time period in

question. In both his verified complaint and pro se response to the prison

officials’ motion for summary judgment, Mr. Hill alleged prison employees

simply slipped informal review forms under his cell door, denying him an

opportunity to be heard during any of the reviews; he also alleged he never

received the psychiatric assessments referenced in the psychological reviews

submitted.

Following briefing on the prison officials’ motion for summary judgment, a

magistrate judge determined, and the district court agreed, Mr. Hill raised facts in

his verified complaint sufficient to establish a dispute of facts over whether

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officials created a liberty interest triggering Fifth Amendment procedural due

process rights which the officials denied. Nonetheless, the district court granted

summary judgment in favor of the prison officials on the grounds of qualified

immunity, holding Mr. Hill failed to show a constitutional or statutory right was

clearly established when the alleged violation occurred.

This appeal followed, in which we appointed counsel for Mr. Hill. On

appeal, Mr. Hill contests the district court’s summary judgment decision,

reiterating his contention the atypical conditions and duration of his confinement,

together with the prison regulations prescribed in 28 C.F.R. § 541.22(c), created a

liberty interest which triggered procedural due process protections which the

prison officials violated. He also argues these same officials are not entitled to

qualified immunity because the law creating a liberty interest and the requisite

procedural due process protections was clearly established at the time of his

confinement.

II. Discussion

A. Summary Judgment Standard of Review

To begin, we review de novo the district court’s summary judgment

decision, examining the record and drawing all reasonable inferences in the light

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most favorable to the non-moving party. See Palladium Music, Inc. v.

EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005). Summary judgment

is appropriate if the record shows there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of law. Id. (relying on

Fed. R. Civ. P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In

reviewing summary judgment motions, we look at the parties’ respective burdens.

Concerning claims of individual liability, movants for summary judgment bear the

initial burden of demonstrating the absence of a genuine issue of material fact and

entitlement to judgment as a matter of law. See Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664, 670-71 (10th Cir. 1998). If this initial burden is carried, the

nonmovant may not rest solely on his pleadings, but must set out specific facts in

support of his claims by reference to affidavits, deposition transcripts or other

exhibits incorporated therein. Id. at 671. We have held a verified complaint

stating facts admissible at trial and based on personal knowledge has the same

force and effect as an affidavit for the purpose of responding to a motion for

summary judgment. See Conaway v. Smith, 853 F.2d 789, 792 (10th Cir. 1988).

We apply the burdens of the parties differently on claims of qualified

immunity. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1311 (10th Cir. 2002).

“When a § 1983 defendant raises the defense of qualified immunity on summary

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judgment, the burden shifts to the plaintiff to show that 1) the official violated a

constitutional or statutory right; and 2) the constitutional or statutory right was

clearly established when the alleged violation occurred.” Id. at 1311-12 (citation

omitted). To determine whether the right was clearly established, “[t]he relevant,

dispositive inquiry ... is whether it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S.

194, 202 (2001). In considering summary judgment determinations, we may

affirm the district court’s grant of summary judgment for any reason supported by

the record. See Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005).

B. Liberty Interest Decisions

In the instant case, the parties rely on a bevy of Tenth Circuit published and

unpublished cases, as well as other circuit cases, to discern the applicable law

with respect to the administrative detention at issue, the liberty interest created,

and the degree of procedural due process to be afforded Mr. Hill. However,

based on the dispute of material facts identified by the district court, we deem it

inappropriate under the circumstances to grant summary judgment on the issue of

whether a liberty interest exists implicating procedural due process guarantees. 3

3
In cases where we found insufficient evidence in the record to make a
determination concerning the conditions or duration of administrative detention,
(continued...)

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However, for the purpose of resolving the issue of qualified immunity, we provide

a cursory examination of the cases cited by the parties to assess whether the

district court correctly concluded the constitutional or statutory right at issue was

not clearly established when the alleged violation occurred. See Olsen, 312 F.3d

at 1312.

To begin, it is well-established lawfully incarcerated persons, like Mr. Hill,

retain only a “‘narrow range of protected liberty interests.’” Abbott v. McCotter,

13 F.3d 1439, 1442 (10th Cir. 1994) (quoting Hewitt v. Helms, 459 U.S. 460, 467

(1983)). The Supreme Court has determined “[t]he Due Process Clause standing

alone confers no liberty interest in freedom from state action taken within the

sentence imposed.” Sandin v. Conner, 515 U.S. 472, 480 (1995) (quotation marks

and citation omitted). Generally, “the transfer of an inmate to less amenable and

more restrictive quarters for nonpunitive reasons is well within the terms of

3
(...continued)
we remanded the evidentiary issue to the district courts. See Gaines v. Stenseng,
292 F.3d 1222, 1224 (10th Cir. 2002); Perkins v. Kan. Dep't of Corr., 165 F.3d
803, 809 (10th Cir. 1999); Jones v. Orth, 242 F.3d 389, 2000 WL 1854015, at *2
(10th Cir. Dec. 19, 2000) (unpublished op.); Chappell v. McKune, 132 F.3d 42,
1997 WL 787184, at *2 (10th Cir. Dec. 24, 1997) (unpublished op.); Clemmons v.
Thomas, 86 F.3d 1166, 1996 WL 282304, at *4 (10th Cir. May 29, 1996)
(unpublished op.). In this case, we are able to make a summary judgment
determination on the issue of qualified immunity.

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confinement ordinarily contemplated by a prison sentence,” and therefore,

“administrative segregation is the sort of confinement ... inmates should

reasonably anticipate receiving at some point in their incarceration,” and does not

involve an interest independently protected by the Due Process Clause. Hewitt,

459 U.S. at 468. Nevertheless, pursuant to the Supreme Court’s decision in

Sandin, the government may create a liberty interest protected by the Due Process

Clause, but this interest is generally limited to freedom from restraint that

“imposes atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Sandin, 515 U.S. at 484. It is important to

note that under Hewitt and prior to Sandin, “the analysis of whether a prisoner

was deprived of a liberty interest focused not on the nature of the deprivation

experienced by the prisoner, but on the language of the applicable prison

regulations and whether such language was ‘mandatory.’” Beverati v. Smith, 120

F.3d 500, 503 n.3 (4th Cir. 1997) (relying on Sandin, 515 U.S. at 479-81). “The

Supreme Court mandate since Sandin is that henceforth we are to review ...

liberty interest claims arising from prison conditions by asking whether the prison

condition complained of presents ‘the type of atypical, significant deprivation in

which a State might conceivably create a liberty interest.’” Cosco v. Uphoff, 195

F.3d 1221, 1224 (10th Cir. 1999) (quoting Sandin, 515 U.S. at 486).

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 In determining whether an atypical deprivation has occurred, we

acknowledge most of our decisions are unpublished and provide little analysis;

however, like the parties on appeal, we consider them for the purpose of

determining the existing law on which prison officials could rely at the time of

Mr. Hill’s confinement. While we generally disfavor reliance on unpublished

decisions, such reliance is appropriate where, like here, they provide persuasive

value with respect to a material issue not fully addressed in a published decision

and they assist in our disposition of the issues at hand. 10th Cir. R. 36.3(B).

To begin, it is clear this court examines the nature of the deprivation by

considering the conditions of confinement, including both the duration and degree

of restrictions of that confinement, as compared with other inmates. 4 See Perkins,

165 F.3d at 809. When considering whether the conditions, duration or

restrictions are atypical as compared with other inmates, we have considered as a

baseline whether the segregation at issue mirrors that imposed on other inmates in

the same segregation, 5 while at other times we have made comparisons with the

4
Although this is not an issue presented on appeal, another consideration
in determining if a liberty interest is created is whether the detention increased
the length or duration of the sentence imposed. See generally Wilson v. Jones,
430 F.3d 1113, 1120-21 (10th Cir. 2005); Gaines, 292 F.3d at 1225 (relying on
Sandin, 515 U.S. at 487); Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998).
5
See, e.g., Gaines, 292 F.3d at 1226 (remanding on grounds the district
(continued...)

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general prison population. 6 Other circuits grappling with the same baseline issue

have had mixed results, 7 either relying squarely on comparisons with other

inmates in the same administrative segregation 8 or those in the general

population. 9 In this case, despite the parties’ opposing contentions on which

baseline applies, the result is the same, no matter which baseline is used. We

5
(...continued)
court should examine conditions of confinement and suggesting inquiry is
whether the segregated inmate’s conditions mirror those of other inmates in
administrative segregation); Blum v. Fed. Bureau of Prisons, 189 F.3d 477, 1999
WL 638232, at *3 (10th Cir. Aug. 23, 1999) (unpublished op.) (concluding
conditions in disciplinary confinement did not differ in significant degree with
those of other inmates, with inference towards comparison with others in similar
segregation).
6
See, e.g., Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996) (basing
its determination, in part, on fact inmates in administrative segregation, while
living in more restrictive conditions, received “all of the same privileges as the
general population inmates”); Villarreal v. Harrison, 201 F.3d 449, 1999 WL
1063830, at *2 (10th Cir. Nov. 23, 1999) (unpublished op.) (concluding
conditions were not dramatically different from those in the general population).
7
See Wilkinson v. Austin, ___ U.S. ___, 125 S. Ct. 2384, 2394 (2005)
(discussing but not deciding disagreement between circuits on using baseline
comparisons involving either administrative detention populations or general
prison populations); Skinner v. Cunningham, 430 F.3d 483, 486-87 (1st Cir. 2005)
(noting disagreement between circuits on baseline comparisons).
8
See Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000); Hatch v.
District of Columbia, 184 F.3d 846, 857-58 (D.C. Cir. 1999); Colon v. Howard,
215 F.3d 227, 231 (2d Cir. 2000); Jones v. Baker, 155 F.3d at 813 (6th Cir.);
Griffin v. Vaughn, 112 F.3d 703, 706 & n.2 (3d Cir. 1997).
9
See Beverati, 120 F.3d at 504 (4th Cir.); Keenan v. Hall, 83 F.3d 1083,
1089 (9th Cir. 1996).

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reach this conclusion because regardless of which baseline we previously applied

in making comparisons — either segregated or general prison populations — this

circuit has never held the conditions, duration or restrictions of the detentions

presented on appeal created a liberty interest, even in circumstances where the

detention exceeded the 399-day duration of Mr. Hill’s detention or restricted some

of the same privileges. See, e.g., Thomas v. Gunja, 110 Fed. Appx. 74, 75-76

(10th Cir. Sept. 14, 2004) (unpublished op.) (ruling transfer to a restrictive unit of

another prison did not create atypical circumstance for purpose of creating a

liberty interest); Weatherall v. Scherbarth, 208 F.3d 228, 2000 WL 223576, at

**1-2 (10th Cir. Feb. 28, 2000) (unpublished op.) (finding no liberty interest in

reclassification into administrative segregation); Blum, 1999 WL 638232, at *3

(considering disciplinary detention and concluding ninety-day confinement

without store privileges, radio, and phone calls as enjoyed by other inmates in

segregation did not differ in significant degree and duration to create a protected

liberty interest); Villarreal, 1999 WL 1063830, at *2 & n.1 (upholding summary

judgment decision explaining two-year duration of administrative detention, even

with conditions involving restricted telephone privileges and eating alone in cell,

did not establish conditions dramatically different from those in the general

population); Chappell v. McKune, 201 F.3d 447, 1999 WL 1079618, at *1 (10th

Cir. Nov. 30, 1999) (unpublished op.), aff'g 1999 WL 381802, at *2 (D. Kan. May

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26, 1999) (affirming district court decision on summary judgment which held

inmate’s lengthy stay of approximately 1000 days in administrative segregation

was not atypical given inmate received all the privileges and incentives

commensurate with his same security level); Gutierrez v. Shanks, 153 F.3d 727,

1998 WL 380958, at *2 (10th Cir. July 9, 1998) (unpublished op.) (instructing in

a motion to dismiss case that administrative segregation for over one year was not

sufficient to distinguish confinement from that of other inmates for the purpose of

creating a liberty interest); Klein v. Coblentz, 132 F.3d 42, 1997 WL 767538, at

*3 (10th Cir. Nov. 19, 1997) (unpublished op.) (deciding 584-day administrative

segregation failed to raise due process issue for summary judgment purposes);

Jones v. Fields, 104 F.3d 367, 1996 WL 731240, at **1-2 (10th Cir. Dec. 20,

1996) (unpublished op.) (holding fifteen-month administrative segregation did not

impose atypical and significant hardship on inmate for purpose of summary

judgment disposition).

Other circuits have also largely held no liberty interest arose in

administrative detentions presented on appeal — even in situations where the

conditions were worse or the duration longer than in Mr. Hill’s case. See, e.g.,

Jones v. Baker, 155 F.3d at 812-13 (6th Cir.) (upholding administrative

segregation over 900 days as not “atypical” under the Due Process Clause, given

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confinement was not much different than experienced by other inmates in

segregation); Griffin, 112 F.3d at 706-09 (3d Cir.) (concluding fifteen-month

administrative segregation was within the “expected parameters of the sentence

imposed on him” and that the Pennsylvania regulations on such confinement did

not deprive him of a liberty interest or entitlement to procedural due process);

Beverati, 120 F.3d at 504 (4th Cir.) (determining six-month placement in

administrative segregation was not atypical compared with the general prison

population even though officials kept inmates in their cells except for three to

four times each week; denied them outside recreation, educational and religious

services, warm or large portions of food, and clean clothing and bedding; and

inmates’ cells were infested with vermin, smeared with human feces and urine,

flooded with water, and unbearably hot); Pichardo v. Kinker, 73 F.3d 612, 613

(5th Cir. 1996) (concluding inmate’s contention that Texas prison policies on

administrative segregation created a protectable liberty interest lacked an arguable

basis in law or fact, and that “[i]n the wake of Sandin, ... administrative

segregation, without more, simply does not constitute a deprivation of a

constitutionally cognizable liberty interest”).

While most circuits have generally rejected inmate contentions of liberty

interest violations while in administrative detention, Mr. Hill relies on two circuit

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court decisions which concluded otherwise based solely on the duration of the

disciplinary detention at issue. In Colon v. Howard, the Second Circuit

considered the duration of an inmate’s 305-day disciplinary segregation in solitary

confinement and simply stated, without analysis, it was “unaware of any data

showing that New York frequently removes prisoners from the general population

for as long as ... 305 days.” 215 F.3d at 231. It held such a long segregation was

a “sufficient departure from the ordinary incidents of prison life to require

procedural due process protections.” Id. In Williams v. Fountain, the Eleventh

Circuit, in a footnote, merely “assumed” the inmate in question suffered a liberty

interest deprivation entitling him to due process because his disciplinary sanctions

included a full year of solitary confinement. 77 F.3d 372, 374 n.3 (11th Cir.

1996). Because these two cases involve disciplinary detentions only and merely

help counter the liberty interest determinations made in our and other circuits,

they do not irrefutably clarify the established law at the time of Mr. Hill’s

administrative detention.

The law on whether certain adverse conditions of confinement create a

liberty interest continues to develop, as evidenced by the Supreme Court’s recent

decision in Wilkinson v. Austin. In Wilkinson, the Court determined the

government created a liberty interest subject to procedural due process protections

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when officials placed an inmate indefinitely in a super-max prison where almost

all human contact was prohibited and which made him ineligible for parole. See

___ U.S. at ___, 125 S. Ct. at 2393-94. Obviously, the duration and conditions of

Mr. Hill’s administrative detention were not as onerous, nor was the duration of

his sentence affected. More importantly, for the purpose of determining qualified

immunity, the prison officials in Mr. Hill’s case did not have the benefit of the

2005 Wilkinson decision or any of its implications on prisoners’ liberty interests

at the time of Mr. Hill’s confinement. Thus, based on the wealth of cases

considered, the established law at the time of Mr. Hill's confinement would not

put prison officials on notice of a liberty interest created by the type of

deprivation presented, including the 399-day duration or other conditions of his

confinement.

C. Application of 28 C.F.R. § 541.22

Because Mr. Hill also argues 28 C.F.R. § 541.22(c) provides a “state-

created” liberty right, our analysis of the established law at the time of Mr. Hill’s

confinement does not end with a discussion of the duration, restrictions or other

conditions of his detention, but continues with an examination of § 541.22(c)

itself. As previously noted, prior to Sandin, a deprivation analysis of an inmate’s

liberty interest focused on the language of the state or federal prison regulations

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and whether it was mandatory, as opposed to the subsequent Sandin requirement

that the court look to the nature of the deprivation experienced by the inmate. See

Beverati, 120 F.3d at 503 n.3. The Supreme Court in Sandin explained the

problem in applying the regulation language method, stating “[b]y shifting the

focus of the liberty interest inquiry to one based on the language of a particular

regulation, and not the nature of the deprivation, the Court encouraged prisoners

to comb regulations in search of mandatory language on which to base

entitlements to various state-conferred privileges.” 515 U.S. at 481.

Nevertheless, since its decision in Sandin, the Supreme Court has acknowledged

“a liberty interest in avoiding particular conditions of confinement may arise from

state policies or regulations, subject to the important limitations set forth in

Sandin” but explained “[a]fter Sandin, it is clear that the touchstone of the inquiry

into the existence of a protected, state-created liberty interest in avoiding

restrictive conditions of confinement is not the language of regulations regarding

those conditions but the nature of those conditions themselves.” Wilkinson, ___

U.S. at ___, 125 S. Ct. at 2393-94. Therefore, we consider the established law

with respect to § 541.22(c) as it existed at the time of Mr. Hill’s confinement,

keeping in mind the Supreme Court’s strictures on considering the mandatory

language of such regulations in a post-Sandin world.

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 To begin, this and other circuits have looked at whether 28 C.F.R.

§ 541.22(c) creates a liberty interest. Section 541.22 provides, in relevant part:

(c) Review of Inmates Housed in Administrative Detention.
(1) Except as otherwise provided in paragraphs (c)(2) and (c)(3) of
this section, the Segregation Review Official will review the status of
inmates housed in administrative detention. The SRO shall conduct a
record review within three work days of the inmate’s placement in
administrative detention and shall hold a hearing and formally review
the status of each inmate who spends seven continuous days in
administrative detention, and thereafter shall review these cases on
the record (in the inmate’s absence) each week, and shall hold a
hearing and review these cases formally at least every 30 days. The
inmate appears before the SRO at the hearing unless the inmate
waives the right to appear. A waiver may be in writing, signed by
the inmate, or if the inmate refuses to sign a waiver, it shall be
shown by a memorandum signed by staff and witnessed by a second
staff member indicating the inmate’s refusal to appear at the hearing.
Staff shall conduct a psychiatric or psychological assessment
including a personal interview, when administrative detention
continues beyond 30 days. The assessment, submitted to the SRO in
a written report, shall address the inmate’s adjustment to
surroundings and the threat the inmate poses to self, staff and other
inmates. Staff shall conduct a similar psychiatric or psychological
assessment and report at subsequent one-month intervals should
detention continue for this extended period. Administrative
detention is to be used only for short periods of time except where an
inmate needs long-term protection (see § 541.23), or where there are
exceptional circumstances, ordinarily tied to security or complex
investigative concerns. An inmate may be kept in administrative
detention for longer term protection only if the need for such
protection is documented by the SRO. Provided institutional security
is not compromised, the inmate shall receive at each formal review a
written copy of the SRO’s decision and the basis for this finding.
The SRO shall release an inmate from administrative detention when
reasons for placement cease to exist.

Prior to the Supreme Court’s decision in Sandin, this court rendered an

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unpublished decision in Moore v. Ham, in which we determined § 541.22 did not

grant inmates a liberty interest in remaining in the general prison population and,

alternatively, that the government did not deny the inmate in question due process

under § 541.22, given the inmate received the required three-day review and was

returned to the general prison population within three days. 986 F.2d 1428, 1993

WL 5874, at *1 (10th Cir. Jan. 12, 1993) (unpublished op.). Since entry of that

decision and the Supreme Court’s decision in Sandin, this court has not directly

addressed the liberty and due process interests afforded by 28 C.F.R. § 541.22(c)

in a published opinion. Instead, in an unpublished decision, we declined to

consider an inmate’s contentions § 541.22 created a liberty interest or afforded

due process protections and held “a [prison official’s] failure to adhere to

administrative regulations does not equate to a constitutional violation.” See

Malik v. Kindt, 76 F.3d 393, 1996 WL 41828, at *2 (10th Cir. Feb. 2, 1996)

(unpublished op.) (quoting Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir.

1993)). In another unpublished case, this court generally determined “[n]either

the Due Process Clause of the Constitution, nor the federal regulations governing

placement of inmates in administrative detention, provide an inmate with a liberty

interest in remaining in the general prison population.” Villarreal, 1999 WL

1063830, at *2.

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 While this court has never definitively decided the liberty and due process

implications of § 541.22 in a published opinion, a few circuits have. In Crowder

v. True, the Seventh Circuit applied the principles in Sandin to conclude periodic

review of administrative detention placement under § 541.22(c) bears none of the

pivotal characteristics of an atypical and significant hardship on prisoners in

relation to the ordinary incidents of prison life or a dramatic departure from the

basic conditions or duration of the prisoner’s sentence, and therefore, it did not

create a constitutionally protected liberty interest. 74 F.3d 812, 815 (7th Cir.

1996). In so concluding, the court determined the regulation did not subject

prisoners to more burdensome conditions but to “the normal limits or range of

custody which the conviction has authorized the government to impose.” Id.

(quotation marks and citation omitted).

In contrast, nearly five years later, in Tellier v. Fields, the Second Circuit

concluded, without discussion, that a prisoner’s 514-day confinement in

administrative detention under conditions markedly different than those in the

general population was atypical and significant for the purpose of creating a

liberty interest. 280 F.3d 69, 80 (2d Cir. 2000). It also held, with relatively much

more analysis, the mandatory language in § 541.22 created a liberty interest

requiring adherence to certain prerequisites and procedures. Id. at 80-83. In

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considering § 541.22, it is clear the Tellier court focused on the mandatory

language of the regulation rather than the nature of the deprivation. Id. at 80-81.

We also note the court was considering a confinement which occurred between

1992 and 1994 and, therefore, was prior to the Supreme Court’s 1995 Sandin

decision which discouraged concentration solely on the mandatory language of

such regulations. Id. at 73, 84. Similarly, in the Eleventh Circuit’s decision in

Magluta v. Samples, the court also applied pre-Sandin case law to the inmate’s

pre-Sandin confinement to determine § 541.22 contained the substantive

predicates and mandatory language sufficient to create a liberty interest in

remaining in the general prison population. 375 F.3d 1269, 1280-82 & n.8 (11th

Cir. 2004). Obviously, because these cases considered § 541.22 under the pre-

Sandin mandatory language analysis, with little concentration on the nature of the

deprivation as required under Sandin, they are not persuasive in analyzing the

established law during the post-Sandin period of Mr. Hill’s 2001-2002

confinement. 10 As the Supreme Court suggests, the touchstone since Sandin must

10
We also note the courts in both Tellier and Magluta, unlike here, denied
the prison officials qualified immunity but are distinguishable from this case. In
Tellier, the Second Circuit based its determination prison officials were not
subject to qualified immunity based on the fact the detention occurred before
Sandin when existing Second Circuit law on detentions was clearly established, so
that even a ten-day confinement period was deemed to implicate procedural due
process rights. 280 F.3d at 84. Similarly, the Eleventh Circuit’s decision in
Magluta denying qualified immunity to the prison officials involved was based on
(continued...)

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be the nature of the deprivation rather than the mandatory language of the

regulation. Wilkinson, ___ U.S. at ___, 125 S. Ct. at 2393-94. In any event,

because the Eleventh Circuit did not issue its Magluta decision until 2004, prison

officials did not have the benefit of that decision at the time of Mr. Hill’s

confinement.

Since Sandin, we have, on at least two occasions, generally evaluated state

regulations to determine if they created a liberty or property interest. In Cosco,

we considered whether a Wyoming state prison policy created a constitutionally-

protected right of prisoners to keep property in their cells for the purpose of

establishing procedural due process rights concerning retention of such property.

195 F.3d at 1223-24. In that case, we noted the Supreme Court in Sandin

“expressly rejected the [Hewitt] methodology” of looking to the “mandatory

language in statutes or regulations to determine whether the right in question rises

to a level which can only be withdrawn by observing due process standards.” Id.

at 1223. In Chambers v. Colorado Department of Corrections, we did not

10
(...continued)
pre-Sandin precepts, given the detention at issue ended two months prior to the
Supreme Court’s issuance of the Sandin decision. 375 F.3d at 1283-84. Unlike
those cases, Mr. Hill’s detention occurred six years after the Supreme Court’s
Sandin case, so we examine existing post-Sandin, rather than pre-Sandin, law to
make our determination of whether the constitutional right was “clearly
established when the alleged violation occurred.” Olsen, 312 F.3d at 1311-12.

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consider the actual language of the prison policy classifying prisoners as sex

offenders but instead determined the state’s inconsistent application of that policy

created a liberty interest because officials allowed an inmate so classified to

receive earned time credits but later reduced his earned time credits based on his

refusal to accept his classification. 205 F.3d 1237, 1239, 1242 (10th Cir. 2000).

Neither of these two cases, nor the other cases considering § 541.22, would signal

to the prison officials in Mr. Hill’s case that § 541.22 created a liberty interest

under post-Sandin precepts.

D. Qualified Immunity Analysis

With the exception of the few circuit court decisions favoring Mr. Hill’s

position, and without delving further into the underlying rationale or

distinguishing features of the decisions discussed, it is clear the weight of our and

other circuits’ decisions favors the prison officials’ position they are entitled to

qualified immunity. As illustrated by the numerous Tenth Circuit cases cited, it

would not be clear to prison officials whether an administrative detention of 399

days under the conditions cited by Mr. Hill, or the requirements in § 541.22(c),

would implicate a liberty interest sufficient to warrant the procedural due process

rights asserted by him. As the district court noted, Tenth Circuit cases existing at

the time of Mr. Hill’s detention would not place officials on notice of a

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deprivation, given none of those decisions found a liberty interest in the detention

at issue, even when the duration was much longer than Mr. Hill’s or involved

similar restrictions. Even if prison officials considered other circuit court cases at

the time of Mr. Hill’s detention, the weight of those cases also concluded no

liberty interest arose in an administrative detention where the conditions were

worse or the duration longer than Mr. Hill’s.

As to the differing assessments of § 541.22, it is not apparent the regulation

created a liberty interest at the time of Mr. Hill’s confinement, given this court’s

pre-Sandin decision concluded it created no liberty interest; the Seventh Circuit’s

post-Sandin decision held it created no liberty interest; the Second Circuit based

its liberty interest determination almost exclusively on the pre-Sandin mandatory

language analysis; and the Eleventh Circuit, which similarly applied pre-Sandin

precepts, had not issued its 2004 decision in Magluta at the time of Mr. Hill’s

confinement. Under these circumstances, the established law concerning

§541.22(c) at the time of Mr. Hill’s detention would not place officials on notice

it created a liberty interest affording procedural due process protections.

Thus, in assessing the burdens of the parties on the prison officials’ claims

of qualified immunity, we conclude Mr. Hill has not shown the constitutional or

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statutory right which he asserts concerning the creation of a liberty interest

triggering a procedural due process right was “clearly established when the

alleged violation occurred.” Olsen, 312 F.3d at 1312. In other words, he has not

shown “it would be clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” Saucier, 533 U.S. at 202.

III. Conclusion

For the reasons articulated in the magistrate judge’s recommendation, the

district court’s decision and those addressed here, we AFFIRM the district

court’s grant of summary judgment to the Appellees on the grounds of qualified

immunity.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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