UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60024
MARSHAUN STEWART,
Plaintiff-Appellee,
VERSUS
ROBERT ARMSTRONG, et al.,
Defendants.
ROBERT ARMSTRONG,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
(4:96-CV-209-B-D)
February 19, 1999
Before JOLLY, WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Warden Robert Armstrong (“Armstrong”)
appeals a judgment for Plaintiff Marshaun Stewart (“Stewart”) in
this 42 U.S.C. § 1983 action. We affirm.
FACTS AND PROCEEDINGS
Marshaun Stewart, Mississippi Department of Corrections (MDOC)
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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state prisoner # 46883A, pro se and in forma pauperis, filed a
civil rights complaint against Warden Robert Armstrong, Captain
Johnny Moore, Lieutenants Horton and Horns and Dr. John Doe
pursuant to 42 U.S.C. § 1983, alleging that he was denied due
process prior to punishment following an incident in which another
inmate started a fire. The magistrate judge dismissed defendants
Moore, Horton, Horns and Doe. Following a Spears2 hearing, the
magistrate judge granted Armstrong thirty days to file a responsive
pleading. Armstrong answered the complaint and moved the court to
dismiss it.
The magistrate judge conducted an evidentiary hearing pursuant
to 28 U.S.C. § 636(b)(1)(B) at which several inmates, including
Stewart, as well as Dr. Dial, a physician with the MDOC, testified.
The evidence, viewed in the light most favorable to the judgment
challenged by Appellant Armstrong, showed the following. On April
2, 1996, Stewart was transferred from Unit 29-J of the MDOC to
protective custody. Stewart was housed in Unit 32-C until April
11, 1996, when he was transferred without a classification hearing
to Unit 32-A, a “fire reduction” unit which housed known “fire
starters.” On May 28, 1996, another inmate housed in Unit 32-A,
Tommy Dixon, started a fire. After the fire was extinguished and
Stewart and other inmates were examined for smoke inhalation,
prison staff ransacked Stewart's cell. The officers destroyed his
legal work and took legal work, underwear, shoes, soap, mattresses,
sheets, blankets, mail, toothbrush, toothpaste, and paper and
turned off the water in his cell. The water was turned back on
after seventy-two hours. Approximately ten days later, his
mattress, sheet, pillow, underwear and some personal hygiene items
were returned, then removed again on Armstrong's order. It was
twenty days before authorities returned all personal items.
2
See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
Stewart was issued a paper gown to wear until his property was
returned.
Defendant based his defense to this § 1983 action on the
contention that, after the May 28, 1996 fire, the unit had been put
on suicide watch by MDOC physicians for inmates' own protection,
not for punishment. He offered evidence that everything which
could be set on fire was removed from all the cells on Unit 32-A to
keep the inmates from hurting themselves. The magistrate judge
noted that no explanation was given for turning off the water in
the cells.
Following the hearing, the magistrate judge recommended that
judgment be entered for Stewart in the amount of $50 for each of
ten days for a total of $500. Armstrong filed objections to the
magistrate judge's report. The district court adopted the
magistrate judge's report and recommendations and granted a $500
judgment for Stewart, specifically finding that “Armstrong was
responsible for the implementation of the suicide watch, including
the turning off of the water, for which no explanation was
offered.” Armstrong appealed the district court's determination of
liability. He does not challenge the amount of damages awarded.
DEFENDANT'S CHALLENGE TO MAGISTRATE JUDGE'S FINDINGS OF FACT
Armstrong challenges the district court's fact finding that
Stewart's cell was stripped as a form of punishment on Armstrong's
order. A magistrate judge's evidentiary hearing “amounts to a
bench trial replete with credibility determinations and findings of
fact.” See McAfee v. Martin, 63 F.3d 436, 437 (5th Cir. 1995). We
review factual findings under a clearly erroneous standard of
review and legal conclusions de novo. See Newton v. Black, 133
F.3d 301, 305 (5th Cir. 1998).
Armstrong argues that the only evidence offered to support the
district court finding that Stewart's cell was stripped on
Armstrong's order was hearsay or mere conclusional allegations.
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Armstrong asserts that Dr. Dial offered substantiated testimony at
the hearing that Dr. Knutson, not Armstrong, ordered the cells
stripped to protect the inmates. Dr. Dial also testified that
Stewart's cell was stripped and he was issued a paper gown for his
protection and for the protection of other inmates, not for
punishment.
As Armstrong suggests, much of the testimony supporting a
finding that the conditions were imposed as punishment rather than
as precautionary measures for the inmates' safety consisted of
statements by the inmate witnesses that they believed they were
being punished or on hearsay. Armstrong does not dispute the
evidence that he personally investigated the fire started by Dixon.
In addition to the inmates' statements that they were being
punished, inmate Rankin testified, without objection on grounds of
hearsay or otherwise, that the inmates were advised that they were
being punished. Stewart testified, without objection, that Captain
Moore and Lieutenant Monique told him that Armstrong was upset
because the inmates had received their property back in ten days
and that thereafter the property was removed for another twenty
days. The determination to credit the plaintiff's evidence, while
disbelieving the defendant's evidence was squarely within the
purview of magistrate judge in his role as fact finder.
The magistrate judge's factual finding, adopted by the
district court, that the stripping of Stewart's cell, the removal
of his personal property, including mattress, bedding and clothing,
and the loss of water was punishment, is not clearly erroneous.
Nor is the factual finding that Armstrong was responsible for the
implementation of that punishment clearly erroneous.
ATYPICAL, SIGNIFICANT DEPRIVATION
Armstrong challenges the district court determination that the
conditions to which Stewart was subjected during the cell-strip
violated his procedural due process rights.
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“States may under certain circumstances create liberty
interests which are protected by the Due Process Clause. But these
interests will be generally limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process Clause of
its own force, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472, 483-84
(1995)(internal citations omitted). In Sandin, the Supreme Court
determined that a prisoner's confinement to disciplinary
segregation for a period of thirty days did not affect the duration
of his sentence or “work a major disruption in his environment.”
Id. at 475-76, 484-86. The Court held that disciplinary
segregation, “though concededly punitive, [did] not present a
dramatic departure from the basic conditions of [the prisoner's]
indeterminate sentence.” Id. at 485.
This court has stated that in the wake of Sandin “it is
difficult to see that any other deprivations in the prison context,
short of those that clearly impinge on the duration of confinement,
will henceforth qualify for constitutional 'liberty' status.”
Orellana v. Kyle, 65 F.3d 29, 31-32 & n.2 (5th Cir. 1995).
However, Orellana challenged the constitutionality of parole review
procedures, presenting a question concerning a prisoner's liberty
interest in obtaining parole under Texas law. Id. To the extent
that the language in Orellana can be read to address the issue of
a prisoner's liberty interest in being free from certain conditions
of confinement imposed by the prison for purposes of punishment, it
is dicta.
In this case, the district court found that the stripping of
Stewart's cell, the removal of his personal property, including
mattress, bedding and clothing, and the loss of water, constituted
punishment. The district court further found that this “was a
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significant deprivation of the basic minimal civilized measure of
life's necessities atypical of those conditions generally imposed
upon inmates.” The district court therefore held Armstrong liable
under § 1983.
We agree. Cutting off water to Stewart's cell and depriving
him of all clothing and bedding except for a paper gown is both
significant and atypical of the hardships incident to prison life
in the MDOC. If a deprivation is significant and atypical of
prison conditions at MDOC, a prisoner is entitled to a certain
minimum level of due process prior to its imposition. See Sandin,
515 U.S. at 483-84; see also Wolff v. McDonnell, 418 U.S. 539, 556
(1974). There is no evidence that Stewart was afforded any measure
of due process prior to the stripping of his cell. Therefore, we
conclude that, pursuant to the Supreme Court's reasoning in Sandin,
515 U.S. at 483-84, the district court's finding of liability in
this case must be affirmed.
CONCLUSION
Based on the foregoing, we affirm the district court's
judgment.
AFFIRMED.
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