United States Court of Appeals
For the First Circuit
No. 05-1046
JAMES SKINNER,
Plaintiff, Appellant,
v.
MICHAEL CUNNINGHAM, WARDEN,
NEW HAMPSHIRE STATE PRISON, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Dyk,* Circuit Judges.
Michael J. Sheehan for appellant.
Nancy J. Smith, Senior Assistant Attorney General, Civil
Bureau, with whom Kelly A. Ayotte, Attorney General, was on brief
for appellees Michael J. Cunningham, Arthur Locke, John Kovacs,
Timothy Kenney, Sean McLeod, Neil Smith, Scott Dodge and Raymond
Guimond.
November 23, 2005
*
Of the Federal Circuit, sitting by designation.
BOUDIN, Chief Judge. James Skinner, currently serving a
life sentence, appeals from the district court's grant of summary
judgment against him on two constitutional claims in his civil suit
against prison authorities. We recite the facts in the light most
favorable to Skinner, the nonmovant here. Landrau-Romero v. Banco
Popular de Puerto Rico, 212 F.3d 607, 611 (1st Cir. 2000).
Skinner, a Massachusetts inmate serving a sentence for
murder, was transferred to the New Hampshire State Prison on May
27, 1998, after being involved in a series of violent incidents in
the Massachusetts penal system. Classified as a high-security
prisoner, Skinner was housed in the prison's Special Housing Unit.
On July 24, 1998, Skinner was involved in a fight started by
another inmate, Eric Balagot, which resulted in Balagot's death.
Skinner was immediately transferred to N-Tier, a restricted area of
the prison reserved for "special circumstances."
Skinner was held in N-Tier for forty days. In N-Tier, he
was isolated from the other inmates; his only human contact was
when the staff opened the door for hourly checks or to deliver
food. According to Skinner, the staff intentionally slammed his
metal cell door during such checks, depriving him of sleep. The
lights were on at all hours of the day. Skinner had nothing in his
cell besides clothes and bedding, and he was permitted to leave his
cell only to shower.
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On August 5, 1998, a disciplinary charge was filed
against Skinner for the incident leading to Balagot's death.
Although a disciplinary hearing was set for August 19, a prison
hearings officer (Ray Guimond) suspended the proceeding because the
state intended to charge Skinner with murder. In early September,
Skinner was returned to normal confinement. Because Skinner was
eventually acquitted of murdering Balagot after a jury trial, the
disciplinary proceeding never occurred, and Skinner was eventually
transferred back to Massachusetts in 2000.
On May 15, 2000, Skinner brought the present suit in the
federal district court in New Hampshire, charging a number of the
prison officials there with violating his civil rights. 42 U.S.C.
§ 1983 (2000). The charges fell into three categories:
(1) that the authorities had violated
Skinner's rights under the Eighth Amendment's
cruel and unusual punishment clause by
exposing him to an attack by Balagot, who was
a white supremacist (Skinner is black);
(2) that Skinner's right to due process had
been violated by confining him in N-Tier for
forty days without a hearing; and
(3) that he had been subject to cruel and
unusual punishment by abusive treatment during
three forcible "cell extractions" and by other
acts of harassment.
On the first claim, a trial was later conducted and the
jury held for the defendants. On the second and third claims, the
district judge granted summary judgment for the defendants, and it
is these latter rulings that Skinner now appeals. Our review of a
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district court's order of summary judgment is de novo, and we
"constru[e] the record in the light most favorable to the nonmovant
and resolv[e] all reasonable inferences in that party's favor."
Landrau-Romero, 212 F.3d at 611.
Skinner's due process claim, which we consider first,
raises a difficult issue, but one entirely legal in character.
That Skinner was moved immediately to N-Tier after Balagot's death,
with no hearing or other process whatsoever, gives rise to no claim
under the due process clause. Skinner had just killed another
inmate, and whoever might prove to be at fault, the authorities
were entitled to isolate Skinner on a summary basis--for his own
sake and for the protection of others--while investigating the
circumstances.
Due process, even where it is due, does not invariably
mean process before the fact. A warrantless arrest for a felony is
a classic example. Skinner was already in custody; the
circumstances were exigent; and his immediate transfer to N-Tier
was proper. Cf. Reardon v. United States, 947 F.2d 1509, 1522 (1st
Cir. 1991) (en banc) ("The absence of notice and a hearing may be
justified by exigent circumstances."). Skinner's main, and more
colorable, due process grievance is that he was kept in N-Tier for
forty days while his disciplinary hearing was indefinitely
deferred.
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Although Skinner's brief focuses on the deferral of the
disciplinary hearing, the fact that the Attorney General was
investigating with a view toward murder charges was a perfectly
good reason for avoiding a duplicative inquiry. The better version
of Skinner's claim is an argument that it was constitutionally
unfair to keep Skinner for forty days in N-Tier's standard
conditions without "some kind of hearing." See Wolff v. McDonnell,
418 U.S. 539, 557-58 (1974). More precisely, the question is
whether Skinner was deprived of "liberty" without "due process of
law."
This in turn poses two different questions: (1) how to
define the "liberty" interest, which on a straightforward reading
of the due process clause is a condition of due process protection
("nor shall any State deprive any person of life, liberty, or
property, without due process of law," U.S. Const. amend. XIV, §
1); and (2) what kind of process is due, even where "liberty" is at
stake, in the peculiar context of prison administration, where
dangerous conditions exist and prisoner liberty is already limited.
The history of the Supreme Court's oscillations on both
issues is candidly traced in the governing opinion, Sandin v.
Conner, 515 U.S. 472 (1995), itself a 5-to-4 decision. There, the
Court held that no due process denial could be made out unless the
change in conditions imposed on the prisoner "atypical and
significant hardship" departing from the ordinary conditions of
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prison life. Id. at 484. Of course, such a hardship does not mean
a violation: it is merely the precondition for a due process
hearing. The Supreme Court's phrase has now (inevitably) become a
touchstone for the lower federal courts. In this case, the
district court ruled that Skinner's confinement did not meet this
test of "atypical and significant hardship."
The hardship test has itself become the source of major
disagreement. See Wilkinson v. Austin, 125 S. Ct. 2384, 2394
(2005). Some circuits compare the confinement conditions to those
of the general prison population, while others look to the
conditions of nondisciplinary administrative segregation.1 One
circuit holds that disciplinary segregation never implicates a
liberty interest unless it lengthens a sentence. Carson v.
Johnson, 112 F.3d 818, 821 (5th Cir. 1997). Whether Sandin should
be read as a cookbook recipe for all cases is unclear.
We think it is enough here that Skinner's segregation was
rational, that its duration was not excessive, and that the central
condition--isolation from other prisoners--was essential to its
1
Compare Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997)
(adopting the former view); Keenan v. Hall, 83 F.3d 1083, 1089 (9th
Cir. 1996) (same), with Griffin v. Vaughn, 112 F.3d 703, 708 (3d
Cir. 1997) (adopting the latter view); Wagner v. Hanks, 128 F.3d
1173, 1175 (7th Cir. 1997) (looking to the conditions of
administrative segregation at the state's highest security prison).
See also Hatch v. District of Columbia, 184 F.3d 846, 856 (D.C.
Cir. 1999) (looking to the most restrictive conditions of
administrative confinement that prison officials "routinely impose
on inmates serving similar sentences").
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purpose. Skinner was a prisoner serving a sentence for murder who
had just killed another inmate. It made perfect sense to isolate
him pending further investigation. Indeed, had he been returned
immediately to the general population and had Skinner then attacked
some other prisoner, or been attacked himself, a different and far
more plausible suit against the authorities would likely have
followed. Farmer v. Brennan, 511 U.S. 825, 828 (1994). The prison
was waiting on the Attorney General, and six weeks is hardly an
excessive time to conduct a preliminary inquiry into a possible
murder.2
As for Skinner's conditions of confinement, isolation
from other prisoners was of the essence, and while it was perhaps
needless to have denied Skinner amenities such as television or
books, these deprivations are largely incidental to Skinner's main
complaint, and were in any case short-term. Taking all the
circumstances into account, including the prison's need to manage
its own administration, see Sandin, 515 U.S. at 482-83, Skinner's
temporary isolation without a formal hearing was not
unconstitutional either in its essential character or in its
duration.
2
Compare Sandin, 515 U.S. at 486 (finding no implicated
liberty interest in being placed in disciplinary segregation for
thirty days); Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir. 1999)
(same holding for 101 days of administrative segregation);
Beverati, 120 F.3d at 504 (same holding for six months of
administrative segregation).
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The contrast with Wilkinson, the Supreme Court's most
recent decision, is vivid. The Court there found that due process
was required for a prisoner's placement in a super-max prison. It
stressed that "[u]nlike the 30-day placement in Sandin, placement
[at the super-max prison] is indefinite," Wilkinson, 125 S. Ct. at
2394. The Court also noted "that placement [in the super-max
prison] disqualifies an otherwise eligible inmate for parole
consideration," id. at 2395, thus potentially extending the length
of incarceration. The differences between the present case and
Wilkinson could not be clearer.
The district court's dismissal of Skinner's final set of
claims would be a close call in the ordinary case. Skinner alleged
that the defendants had violated the Eighth Amendment, primarily by
excessive force used during the three cell extractions and
secondarily by other acts of harassment, like the slamming of his
cell door. The district court ruled that there was no case for a
jury, that is, that no rational jury could find excessive force.
Our review is again de novo. Landrau-Romero, 212 F.3d at 611.
The framework for analyzing such claims was set forth by
the Supreme Court in Whitley v. Albers, 475 U.S. 312 (1986), and
Hudson v. McMillian, 503 U.S. 1 (1992). Generally speaking,
"[a]fter incarceration, only the unnecessary and wanton infliction
of pain . . . constitutes cruel and unusual punishment forbidden by
the Eighth Amendment." Whitley, 475 U.S. at 319 (internal
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quotation marks omitted). The critical question in such a case is
whether the force was applied "maliciously and sadistically for the
very purpose of causing harm," id. at 320-21, rather than "in a
good-faith effort to maintain or restore discipline." Hudson, 503
U.S. at 7.
The cell extractions, which occurred on June 22, 1999,
July 6, 1999, and March 24, 2000, all involved officers entering
Skinner's cell, forcibly seizing him, and removing him from the
cell. The first occurred after Skinner had placed a sheet across
his cell door and refused to remove it; the second after he refused
to be handcuffed so his cell could be searched; the third after he
threw food at one of the staff. Extractions are apparently a
formalized process; each of the extractions was videotaped, which
makes this case unusual because we can see what occurred.
In each case, Skinner physically resisted removal and
guards struggled to subdue him and remove him from the cell.
Although Skinner offers extenuating explanations for his own
conduct, what matters here is whether a jury could reasonably find
that he was harmed through deliberate or wanton force unnecessary
to his removal. See Hudson, 503 U.S. at 7. The details of each
extraction are set forth in the district court's decision on
summary judgment. It is sufficient to describe the third
extraction, which represents Skinner's strongest case.
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In this incident, after Skinner threw food, officers
decided to move him to a different cell, but Skinner refused to
extend his hands through the slot in the door so that handcuffs
could be applied prior to the move. After warnings, the extraction
team sprayed a non-lethal chemical irritant (derived from cayenne
pepper) into the cell to make Skinner exit the cell without direct
physical force; but Skinner continued to resist, remaining in the
cell despite the spray. The move team then entered the cell,
pushed him to the ground, handcuffed him, and carried him out.
Skinner says that as he was being carried along outside
the cell, he was punched in the face and his eyes, ears, neck and
throat were gouged and raked. A medical report from Concord
Hospital prepared two days later said that Skinner suffered from a
sore shoulder, wrist abrasions and "blunt trauma" to his eyes, but
had "no evidence of injury to his head" and would be treated with
Tylenol. Skinner identified Officer Dodge as the one who bruised
his eye.
Dodge's affidavit states that Dodge opened the cell door,
but that other officers were the ones who wrestled Skinner to the
ground and carried him out and down the corridor in a prone
position; Dodge says that he helped in the carriage by supporting
Skinner's head to prevent it from striking the ground or a hard
surface, lost his grip on occasion in the crowded struggle, but
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never touched Skinner's eyes or deliberately sought to hurt him in
any way.
After describing Skinner's strength, repeated refusals to
"cuff up," and physical resistance to the officers, the district
judge addressed the third extraction thusly:
During the third extraction, Skinner claims
his throat was improperly held and his eyes
were poked. Even assuming that this occurred,
there is no evidence to demonstrate that
during the chaos he created, defendants
maliciously injured him. In addition, as the
video exhibit demonstrates, the officers were
very aware of how they were holding Skinner's
head and repeatedly instructed one another to
support his neck. . . . There is simply no
evidence that any defendant acted "maliciously
or sadistically for the very purpose of
causing harm." See Hudson, 503 U.S. at 6.
We have viewed the video ourselves. The chaos in the
third episode (as in the other two) is wholly of Skinner's making.
There are repeated warnings by the officer in charge to protect
Skinner's head from injury. At one point in the third episode,
Skinner yells that he has been poked in the eye; a voice promises
him immediate medical attention as soon as the move is completed.
There is no evidence in the video or elsewhere that Dodge
deliberately struck Skinner or that any of the other guards
deliberately injured Skinner. Skinner's own affidavit does not
provide such evidence. It concedes that "one may suffer bumps and
bruises during a cell extraction," and alleges only that "the
gouging of my face can only be the result of intentional gouging."
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Thus, his affidavit does no more than infer that no one could have
gouged his face by accident; but given the crowding and struggle,
it is hard to see this as proof. On this evidence, no reasonable
jury could find that Skinner's injury, such as it was, resulted
from cruelty or deliberate infliction of pain.3
Mentioned more tersely in Skinner's brief are many other
acts of alleged harassment following Balagot's death (although
curiously there is no explanation why Balagot's death should have
prompted reprisals by prison officers). These alleged acts include
the (earlier mentioned) slamming of Skinner's cell door, threats,
discourtesies, epithets, and false charges on petty matters. If
Skinner's account is credited even in part, this is a sorry story
of mis-administration by the prison.
But such a collection of grievances does not amount to an
Eighth Amendment violation, which in the conditions-of-confinement
context requires "[e]xtreme deprivations." Hudson, 503 U.S. at 9.
Whether there might have been judicial remedies in state court is
a different matter. Skinner's brief, otherwise quite effective,
mentions these grievances without making a serious effort to
develop them; his claim is therefore forfeit. Mass. Sch. of Law at
Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 43 (1st Cir. 1998).
3
Although Skinner does not mention this in his argument, Dodge
had complained in earlier incidents that Skinner had thrown coffee
at him and sought to bite him, which might support a malicious
motive; but Skinner himself had denied both incidents, undercutting
their value to him now.
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The judgment of the district court is affirmed. Each
side shall bear its own costs on this appeal.
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