Yusef Steele v. Warden Cicchi

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 14-3127
___________

YUSEF STEELE,
Appellant

v.

WARDEN CICCHI;
DEPUTY WARDEN F. MASONE;
INTERNAL AFFAIRS SGT DEAMICIS;
CAPTAIN C. BARTH
____________________________________

On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 3-09-cv-03551)
District Judge: Honorable Mary L. Cooper
____________________________________

Argued: June 16, 2016

Before: AMBRO, RESTREPO, and NYGAARD,
Circuit Judges

(Filed: May 3, 2017)
_____________
MICHAEL S. DOLUISIO
CATHERINE V. WIGGLESWORTH
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104

WILLIAM STEWART [ARGUED]
University of Pennsylvania
School of Law
3400 Chestnut Street
Philadelphia, PA 19104
Counsel for Appellant

LORI A. DVORAK [ARGUED]
Dvorak & Associates
390 George Street
8th Floor
New Brunswick, NJ 08901
Counsel for Appellee Edmond Cicchi

CLARK W. CONVERY
Convery Convery & Shihar
32 South Main Street
Edison, NJ 08837


Mr. Stewart, a law student, was permitted to enter his
appearance and participate in oral argument pursuant to Third
Circuit L.A.R. 46.3. We note that Mr. Stewart and his
supervising attorneys represented Appellant pro bono. We
thank them for taking this case on a pro bono basis and for
their excellent advocacy on Appellant’s behalf.

2
 Counsel for Appellee Deputy Warden F. Masone

PATRICK J. BRADSHAW
Kelso & Bradshaw
132 Hamilton Street
P.O. Box 1208
New Brunswick, NJ 08903
Counsel for Appellee Internal Affairs Sgt. De Amicis

SUSAN K. O’CONNOR
Hoagland Longo Moran Dunst & Doukas
40 Paterson Street
P.O. Box 480, Room 301
New Brunswick, NJ 08903
Counsel for Appellee Captain C. Barth

___________

OPINION OF THE COURT

RESTREPO, Circuit Judge.

Plaintiff/Appellant Yusef Steele was a pretrial detainee
housed at the Middlesex County Adult Correction Center
(“MCACC”) in New Jersey in late 2008 and early 2009.
During the course of his detention at MCACC, officials at the
facility received credible information that Steele was involved
in a scheme with an outside bail bonds service, Speedy Bail
Bonds. Officials believed that Steele was threatening other
detainees in order to coerce them into using Speedy and that

3
Steele was receiving some form of compensation from
Speedy for his efforts. After interviewing Steele and advising
him of the allegations against him, officials placed him in
administrative segregation while they continued to investigate
his conduct. During his time in segregation, Steele’s
telephone privileges were restricted to legal calls only.

Steele claims in this Section 1983 suit that the
Defendant/Appellee MCACC officials violated his due
process rights when they transferred him to administrative
segregation in the facility and restricted his phone privileges,
which interfered with his ability to attempt to find a co-signer
for his own bail. The District Court granted summary
judgment for all Defendants. For the reasons that follow, we
will affirm.

I. FACTUAL BACKGROUND1

On December 22, 2008, Steele was arrested for
violating a narcotics restraining order. He was then placed
into pretrial detention at MCACC. The next day, Steele’s bail
was set at $50,000, which he was unable to pay.

On February 23, 2009, while Steele remained in
detention at MCACC, Robert Gluck, a private attorney,
contacted MCACC Deputy Warden Masone about safety
concerns Gluck had for his client, another MCACC detainee.
According to Gluck, Steele approached Gluck’s client and
threatened to disclose his client’s sex offense charges to
MCACC’s general population if Gluck’s client did not use a

1
The parties have not disputed the facts outlined
herein, unless otherwise noted.

4
specific bail bonds service, Speedy Bail Bonds. Gluck
reported that Steele handed his client a document that listed
his client’s charges and bail amount. Gluck also faxed to
Masone a copy of the document.

After obtaining this information from Gluck, Masone
and Sergeant Paul De Amicis began an investigation of Steele
and Speedy’s activities within MCACC. They interviewed
Gluck’s client, who confirmed that Steele threatened him and
provided him with a specific phone number to use to arrange
his bail. Masone and De Amicis confirmed that the phone
number belonged to a Speedy office.

De Amicis continued the investigation by reviewing
recorded phone calls from the unit in which Steele was
housed. He found numerous calls between Steele and
Speedy, during which Steele referenced detainees’ names,
identification numbers, and the specific amounts of their
bails. According to De Amicis, Steele bragged in some of
those phone conversations about “his ability to get other
inmates to post bail using Speedy” and Steele “referred to
credit he expected to receive for bails he recruited for
Speedy.” App. 1312. Based on the results of the preliminary
investigation, MCACC officials believed that Steele “was
acting as an illegal agent for Speedy” and that he was
receiving some type of compensation from Speedy in
exchange for his efforts to arrange detainees’ bails. App.
1312.

MCACC officials met with Steele on February 25,
2009, just two days after Gluck’s call, to discuss the

5
allegations.2 During the meeting, MCACC officials apprised
Steele of a complaint they received that he had been “making
money for the bail bondsmen,” “threatening inmates,” and
“trying to get money out of [them].” App. 1303. Officials
asked Steele to explain his actions with Speedy and permitted
him to respond to their questions. Steele admitted to helping
other detainees arrange bails, but denied that he was receiving
any compensation from Speedy. Steele stated that he was
arranging detainees’ bails with Speedy “out of the goodness
of [his] heart.” App. 1305. As officials were meeting with
Steele on February 25th, MCACC corrections officers
searched Steele’s cell and found materials that corroborated
the allegations against him. These materials included lists of
detainees’ names, bail amounts, and phone numbers of
detainees’ friends and relatives.

That same day, Steele was transferred to
administrative segregation.3 De Amicis averred that Steele
was placed in administrative segregation in order “to prevent

2
Sergeant De Amicis stated that the officials who
attended the meeting were Warden Cicchi, Deputy Warden
Masone, and De Amicis. According to Steele’s complaint,
Masone, Defendant Captain Barth, and probably De Amicis
attended the meeting. During his deposition, Steele stated
that Barth and Masone were the MCACC officials who
attended the February 25th meeting.
3
On February 26, 2009, MCACC provided Steele with
a letter confirming his transfer to administrative segregation,
which noted that the Classification Committee would review
Steele’s status on a monthly basis.

6
him from posing additional security risks in the [MCACC]
and to allow further investigation into Speedy’s activities
without [Steele’s] interference.” App. 1313. Later in the day
on February 25th, Masone and De Amicis met with
employees of Speedy, who confirmed that Steele was an
“associate” who was recruiting other detainees to use Speedy
for their bail bonds. App. 1313. After further investigation,
MCACC officials contacted the county prosecutor’s office
and the New Jersey Department of Banking and Insurance.

The MCACC “Inmate Guidelines” manual (“the
Manual”), which served as a guide for inmate conduct and jail
procedures, contained a number of provisions addressing
telephone access at the facility. It provided that individuals
housed in the general population had open access to collect
call telephones for personal calls and were allowed an
unlimited number of legal calls. It also provided that
individuals placed in “disciplinary lockup” were not
permitted telephone access, with the exception of legal
telephone calls. App. 1345. The Manual did not address
telephone access for detainees housed in administrative
segregation.4 While he remained in administrative
segregation, Steele was permitted only to make legal calls,
through the MCACC social work office.

4
The New Jersey Department of Corrections’ 1999
“Handbook for Discipline for Inmates” was appended to the
Manual. The Handbook addressed telephone access for
inmates placed in Administrative Segregation. However, the
Handbook stated that it applied only to state-sentenced
inmates. Steele has not argued on appeal that the Handbook
applied to him; his arguments center on the MCACC’s own
internal Manual.

7
 On March 5, 2009, Steele’s bail was reduced from
$50,000 to $2,500. Thereafter, Steele made three attempts to
contact his attorney to help him obtain a co-signer for his bail.
Steele reached the attorney’s secretary twice, and made
contact with his lawyer on his third attempt. On March 20,
2009, Steele’s bail was posted and he was released.

II. PROCEDURAL HISTORY

Steele originally filed this action pro se in July 2009 in
the United States District Court for the District of New
Jersey. The operative Amended Complaint was filed pro se
in May 2012. In his Amended Complaint, Steele asserted
several claims under 42 U.S.C. § 1983: violations of his First,
Eighth, and Fourteenth Amendment rights.

In December 2013, after five rounds of summary
judgment motions, the District Court granted summary
judgment to Defendants as to Steele’s First and Eighth
Amendment claims. The Court denied summary judgment as
to Steele’s claims under the Due Process Clause of the
Fourteenth Amendment, but permitted Defendants to move
for summary judgment again on those claims in January
2014. In May 2014, the District Court granted summary
judgment to all Defendants on Steele’s Fourteenth
Amendment claims, holding that they did not violate Steele’s
rights under the substantive and procedural components of the
Due Process Clause. Steele filed this timely appeal.5

5
This Court granted Steele appointment of counsel for
his appeal. He does not challenge the District Court’s
disposition of his First and Eighth Amendment claims.

8
 III. JURISDICTION & STANDARD OF REVIEW

The District Court had jurisdiction over this Section
1983 action pursuant to 28 U.S.C. § 1331. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

Summary judgment is appropriate where the moving
party carries its burden to establish that “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We
review an award of summary judgment de novo, applying the
same test on review that the District Court should have
applied.” MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d
204, 209 (3d Cir. 2005). That is, we review “the facts in the
light most favorable to the nonmoving party and draw all
inferences in that party’s favor.” Burns v. PA Dep’t of Corr.,
642 F.3d 163, 170 (3d Cir. 2011) (quoting Armbruster v.
Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).

IV. DISCUSSION

The Due Process Clause of the Fourteenth Amendment
prohibits states from “depriv[ing] any person of life, liberty,
or property, without due process of law,” U.S. Const. amend.
XIV, and contains both substantive and procedural
components, Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-
46 (1998). Steele claims that Defendants violated both
components, which we address in turn below.

A. Substantive Due Process

“The substantive component of the Due Process
Clause limits what government may do regardless of the

9
fairness of procedures that it employs,” Boyanowski v.
Capital Area Intermediate Unit, 215 F.3d 396, 399 (3d Cir.
2000), in order to “guarantee protect[ion] against government
power arbitrarily and oppressively exercised,” Lewis, 523
U.S. at 846 (citing Daniels v. Williams, 474 U.S. 327, 331
(1986)). To maintain a substantive due process claim, Steele
must have been deprived of a particular interest that “is
protected by the substantive due process clause.” Chainey v.
Street, 523 F.3d 200, 219 (3d Cir. 2008).

Steele claims that Defendants’ actions infringed on
four separate liberty interests. First, he asserts that
Defendants interfered with his “constitutionally-protected
liberty interest” in “posting bail once his bail was set.”6 Br.
of Appellant 16 (capitalization omitted). Second, Steele
argues that by placing him in administrative segregation,
Defendants interfered with his constitutional liberty interest in
avoiding punishment prior to an adjudication of guilt. Third,
Steele contends that Defendants interfered with his “state-
created liberty interest[]” in accessing the telephones at
MCACC, an interest that Steele argues was created by the
MCACC Manual. Br. of Appellant 24. Fourth, Steele argues
that his administrative segregation violated his “state-created
liberty interest in remaining part of the general prison
population.” Suppl. Br. of Appellant 1-2.

As an initial matter, Steele cannot proceed on his third
and fourth claimed liberty interests, because substantive due

6
To be clear, Steele claims a liberty interest in
exercising his bail option using funds already available to
him. His claim does not touch on issues relating to the
amount of his bail or his ability to pay.

10
process claims do not arise out of state-created liberty
interests. In contrast to procedural due process rights, which
may be derived from state law, “[s]ubstantive due process
rights are founded not upon state law but upon deeply rooted
notions of fundamental personal interests derived from the
Constitution.” Nunez v. Pachman, 578 F.3d 228, 233 (3d Cir.
2009) (quoting Nilson v. Layton City, 45 F.3d 369, 372 (10th
Cir. 1999)); see also Regents of Univ. of Mich. v. Ewing, 474
U.S. 214, 229 (1985) (Powell, J., concurring) (explaining that
procedural due process protects certain interests even though
those interests are “derived from state law rather than the
Constitution,” but “substantive due process rights are created
only by the Constitution”). Therefore, as we examine
Steele’s substantive due process claims here, we consider
only Steele’s two claimed constitutionally protected liberty
interests, which are themselves interrelated. These are: (1)
exercising his bail option once his bail was set, and (2)
remaining free from punishment before an adjudication of
guilt.7

1. Exercising bail option

There is no dispute between the parties that Steele had
a constitutionally protected liberty interest in exercising his

7
The District Court addressed Steele’s allegations
regarding bail access only insofar as they related to the
question of whether his transfer to administrative
segregation amounted to unconstitutional punishment.
Because we understand Steele to advance these as two
factually intertwined but legally independent substantive due
process claims, we will address each separately.

11
bail option, once bail had been set, sufficient to trigger
substantive due process protection. We agree. Such a right
emanates from the liberties “at the heart” of the Due Process
Clause: the freedom “from government custody, detention, or
other forms of physical restraint” prior to any determination
of guilt. Zadvydas v. Davis, 533 U.S. 678, 690 (2001); see
also Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom
from bodily restraint has always been at the core of the liberty
protected by the Due Process Clause from arbitrary
governmental action.”). The Supreme Court has explained
that an arrestee’s right to freedom from pretrial detention is
subordinated to other interests only in specific circumstances
– particularly where there has been an adjudication that
detention is necessary because an “arrestee presents an
identified and articulable threat to an individual or the
community,” United States v. Salerno, 481 U.S. 739, 750-51
(1987), or to “ensure [an arrestee’s] presence at trial,” Bell v.
Wolfish, 441 U.S. 520, 523 (1979). But those circumstances
do not exist in a case like this one, where there has already
been a judicial determination that an arrestee is eligible for
release on bail and bail has been set for that arrestee.

Other Circuits acknowledge that substantive due
process protection of this liberty interest attaches once
arrestees are deemed eligible for release on bail. For
instance, in Dodds v. Richardson, the Tenth Circuit explained
that “an arrestee obtains a liberty interest in being freed of
detention once his bail is set because the setting of bail
accepts the security of the bond for the arrestee’s appearance
at trial.” 614 F.3d 1185, 1192 (10th Cir. 2010). Likewise,
the Eleventh Circuit held in Campbell v. Johnson that “[t]he
Fourteenth Amendment Due Process Clause includes the right
to be free from continued detention after it was or should

12
have been known that the detainee was entitled to release.”
586 F.3d 835, 840 (11th Cir. 2009) (internal quotation marks
omitted). Accordingly, we conclude that Steele had a
protected liberty interest in exercising his bail option once his
bail was set.

Having established that his asserted liberty interest is
protected by substantive due process, Steele must also show
that “the government’s deprivation of that protected interest
shocks the conscience.” Chainey, 523 F.3d at 219. The
Supreme Court has instructed that we must apply the “shocks
the conscience” standard where, as here, the challenged
government action is executive in nature rather than
legislative.8 See Lewis, 523 U.S. at 845-47. “[T]he exact
degree of wrongfulness necessary to reach the ‘conscience-
shocking’ level” will “depend[] upon the circumstances of a
particular case,” and may range from “deliberate
indifference” to “actual intent to cause harm.” Vargas v. City
of Phila., 783 F.3d 962, 973 (3d Cir. 2015) (internal quotation
marks omitted). We cannot say that Defendants’ actions here
amount to even deliberate indifference.

MCACC officials permitted Steele, during his time in
administrative segregation, to make calls to his attorney to
arrange for bail. Indeed, Steele made three such phone calls
to his attorney’s office, through the MCACC social work

8
Where the government infringes on a plaintiff’s right
through legislative activity, by contrast, the Supreme Court
has explained that we must determine whether the legislation
at issue is “narrowly tailored to serve a compelling state
interest.” Washington v. Glucksberg, 521 U.S. 702, 721
(1997).

13
office, beginning the day after Steele’s bail was reduced from
$50,000 to $2,500. Steele offered no evidence that MCACC
staff prevented or inhibited him from attempting to contact
his attorney via phone. Steele also offered nothing to suggest
that his attorney was ill-equipped to assist Steele with
arranging bail. In addition, Steele’s access to mail was not
restricted during his time in segregation. In short, though
MCACC officials curtailed Steele’s unlimited, non-legal
phone privileges during his administrative segregation,
officials preserved two key channels of communication
through which Steele could attempt to secure his bail while in
segregation.

Steele’s circumstances are distinguishable from the
arrestees’ circumstances in Dodds and Campbell. In Dodds,
after a judge set the plaintiff-arrestee’s bond, two individuals
asked employees at the jail where the plaintiff was housed
about posting bond on the plaintiff’s behalf. Dodds, 614 F.3d
at 1189-90. Those individuals were told in response by jail
employees that bond would not be accepted before the
plaintiff was arraigned by a judge, consistent with local
policies. Id. The Tenth Circuit concluded that evidence
showing the defendants’ policies “prevented felony arrestees
whose bail had been set from posting bail after hours and
before arraignment” was sufficient to overcome summary
judgment on plaintiff’s due process claim. Id. at 1206
(emphasis added).

In Campbell, jail administrators refused to accept
court-approved real estate documents as security for the
plaintiff-arrestee’s bail for months after his bail was set.
Campbell, 586 F.3d at 838-39. The Eleventh Circuit found
this evidence sufficient to overcome summary judgment on

14
the plaintiff’s due process claim. Id. at 840-42; see also
Gaylor v. Does, 105 F.3d 572 (10th Cir. 1997) (reversing
grant of summary judgment for defendants on plaintiff-
arrestee’s due process claim, where bail was set but was never
communicated to the plaintiff or other individuals inquiring
about it). Officials’ actions in Dodds and Campbell
unreasonably inhibited, and essentially prevented, the
plaintiffs from exercising their bail options after bail was set.
On the record before us, we cannot say that MCACC officials
put Steele in the same predicament.

At bottom, we cannot agree with Steele’s argument
that in the specific circumstances of this case substantive due
process required Defendants to provide Steele with unlimited,
non-legal telephone privileges during his time in
administrative segregation so that he could attempt to find a
co-signer for his bail and exercise his bail option.9

9
Precedent addressing various constitutional
protections of telephone access in detention settings informs
and is consistent with our decision here. See, e.g., Valdez v.
Rosenbaum, 302 F.3d 1039, 1042-43, 1047 (9th Cir. 2002)
(restricting telephone access of detainee placed in
administrative segregation to one legal telephone call per day
did not violate plaintiff’s substantive due process rights);
Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994)
(explaining that inmates do not have a constitutional right to
unlimited telephone use); Benzel v. Grammer, 869 F.2d 1105,
1108 (8th Cir. 1989) (noting that inmates do not have a right
to unlimited telephone use, and telephone communication
with relatives and friends may be restricted “in a reasonable
manner”); Martin v. Tyson, 845 F.2d 1451, 1458 (7th Cir.
1988) (holding that it did not violate the Due Process Clause

15
Defendants’ limitation of Steele’s phone privileges did not
“shock the conscience,” and therefore, Steele’s claim that
Defendants violated his due process right to exercise his bail
option fails.10

to limit pretrial detainees’ non-legal calls); Strandberg v. City
of Helena, 791 F.2d 744, 747 (9th Cir. 1986) (stating that
detainees’ and inmates’ constitutional right to telephone
access is “subject to rational limitations in the face of
legitimate security interests of the penal institution” (internal
quotation marks omitted)).
10
In their briefing, the parties apply the Bell v. Wolfish
“punishment” framework, discussed in greater detail in
Section IV(A)(2), infra, to Steele’s bail claim. The District
Court also applied the Bell framework to Steele’s claims in its
summary judgment opinion. But we do not find Bell to be
squarely applicable to Steele’s claim.

The Supreme Court in Bell explained that it was not
addressing “the curtailment of liberty” resulting from the
“decision to detain an accused.” 441 U.S. at 533-34, 541.
Rather, the Court was addressing specific conditions of
pretrial confinement, such as double-bunking of detainees,
which were “aspect[s] of pretrial detention” that did not
violate other constitutional guarantees. Id. In this Circuit, we
have applied Bell to address a range of conditions of pretrial
detention, such as strip searches, Florence v. Bd. of Chosen
Freeholders of Cty. of Burlington, 621 F.3d 296 (3d Cir.
2010); triple-celling, Hubbard v. Taylor, 538 F.3d 229 (3d
Cir. 2008); and placement in isolation, Stevenson v. Carroll,
495 F.3d 62 (3d Cir. 2007). Other Circuits similarly have
applied Bell to address conditions such as strip searches, Byrd

16
 2. Freedom from punishment

Steele also claims that his placement in administrative
segregation violated his substantive due process right to be
free from punishment. Under the analytical framework
established in Bell, detention officials’ restrictions on pretrial
detainees will constitute punishment prohibited by the Due
Process Clause when: (1) “there is a showing of express
intent to punish on the part of [those] [] officials”; (2) “the
restriction or condition is not rationally related to a legitimate
non-punitive government purpose,” i.e., “if it is arbitrary or
purposeless”; or (3) “the restriction is excessive in light of
that purpose.” Stevenson, 495 F.3d at 67-68 (quoting Rapier,
172 F.3d at 1005). Of these three possible means to establish
punishment, Steele asserts only the second and third; he has
not argued in his briefing that such an intent to punish was
express in nature.

v. Maricopa Cty. Sheriff’s Dept., 629 F.3d 1135 (9th Cir.
2011); and solitary confinement, Rapier v. Harris, 172 F.3d
999 (7th Cir. 1999).

Steele’s bail claim, however, challenges more than
conditions of his pretrial detention. He challenges the
curtailment of a separate and independent liberty interest that
arose from his pretrial detention: his right to be freed from
that detention, by exercising his bail option, once his bail was
set. This claim fits awkwardly into the Bell framework, and
more comfortably into the general “shocks the conscience”
substantive due process framework applicable to executive
actions. Nevertheless, for many of the same reasons provided
in Section IV(A)(2), infra, Steele’s bail claim would fare no
better under Bell.

17
 The term “punishment” in this context warrants further
explanation. “Punishment,” as used in Bell, refers to the
punishment of a pretrial detainee for his alleged criminal
conduct, committed prior to his detention, for which he has
not yet been convicted. Bell, 441 U.S. at 535-36. The
Supreme Court explained that this type of “punishment” is
prohibited by the Due Process Clause because the detainee
“ha[d] not been adjudged guilty of any crime” and “had only
a ‘judicial determination of probable cause as a prerequisite to
[the] extended restraint of [his] liberty following arrest.’” Id.
at 536-37 (quoting Gerstein v. Pugh, 420 U.S. 103, 114
(1975)). Bell did not concern the type of “punishment” or
discipline alleged in this case: punishment of a detainee for
his in-facility conduct that might violate the facility’s rules
and policies. Despite the apparent distinctions between Bell
and cases where a detainee claims that he was “punished” for
his in-facility conduct, we agree with the First Circuit’s
determination in Collazo-Leon v. U.S. Bureau of Prisons that
the “theoretical constitutional premises of Bell’s analysis
provides some rational guidance” for evaluating claims
involving in-facility conduct that could
warrant disciplinary action.11 51 F.3d 315, 317-18 (1st Cir.
1995).

11
The First Circuit explained in Collazo-Leon,

[o]n the authority of Bell, it may
be divined that even if a
restriction or condition may be
viewed as having a punitive effect
on the pretrial detainee, it is

18
 With that understanding, we turn to the question of
whether Defendants had a “legitimate governmental
objective” in transferring Steele to administrative segregation
in this case. Steele argues that his segregation did not serve
any rational purpose other than punishment. Viewing the
evidence in the light most favorable to Steele, as we must, we
cannot agree that Steele has presented evidence sufficient to
create a genuine dispute of material fact on this issue. The
record shows that Steele was placed into administrative
segregation for internal security reasons.

The Supreme Court repeatedly has emphasized that
maintaining internal security and order in jails and prisons are
“legitimate governmental objectives” and that courts must
give prison officials considerable discretion to manage

nonetheless constitutional if it
also furthers
some legitimate governmental
objective such as addressing a
specific institutional violation and
is not excessive in light of the
seriousness of the violation. . . . If
there is a reasonable relation
between the sanctions and
legitimate institutional policies, an
intent to punish the detainee for
prior unproven criminal conduct
cannot be inferred.

51 F.3d at 318.

19
internal security in their institutions. See, e.g., Sandin v.
Conner, 515 U.S. 472, 482-83 (1995) (“[F]ederal courts
ought to afford appropriate deference and flexibility to state
officials trying to manage a volatile environment.”); Hewitt v.
Helms, 459 U.S. 460, 472 (1983) (“Prison administrators . . .
should be accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to
maintain institutional security.” (quoting Bell, 441 U.S. at
547)), receded from on other grounds by Sandin, 515 U.S. at
482-83; Bell, 441 U.S. at 561 (“Ensuring security and order at
the institution is a permissible non-punitive objective,
whether the facility houses pretrial detainees, convicted
inmates, or both.”). Courts must afford such deference
because “assessing the seriousness of a threat” requires
officials to do more than simply take stock of the “specific
facts surrounding a particular incident; instead, they must
consider the character of the inmates confined in the
institution, recent and longstanding relations between
prisoners and guards, prisoners inter se, and the like.”
Hewitt, 459 U.S. at 474.

Of course, officials’ discretion is not unbridled. They
cannot insulate themselves from liability under the Due
Process Clause by mechanically citing to broad internal
security interests, regardless of how insignificant or unlikely
to occur a particular threat might be. But the record before us
suggests that the threat posed to internal security by Steele’s
conduct was legitimate and ongoing. MCACC officials had
evidence that Steele was conducting an illegal bail bonds
scheme with Speedy over the phone. They also believed that
Steele’s actions endangered other detainees in the facility
because Steele was threatening to disclose detainees’ charges

20
to the general MCACC population if those detainees did not
use Speedy’s service.12 So Steele “was placed in
administrative segregation . . . to prevent him from posing
any additional security risks in the facility,” and to allow for
continued investigation, without Steele’s interference. App.
1313.

Steele appears to argue further that even if mitigating
against security risks was the legitimate, non-punitive
purpose behind Defendants’ actions, placement in
administrative segregation was “excessive” in light of this
purpose. Stevenson, 495 F.3d at 67-68. Steele posits that,
instead of transferring him to administrative segregation,
MCACC officials “could simply have monitored [him] more
closely, or further limited his movements and communication
opportunities with other prisoners.” Suppl. Br. of Appellant
3. But the Due Process Clause does not mandate that
MCACC officials use the least restrictive means available to
accomplish their non-punitive objective. See Bell, 441 U.S. at
542 n.25, 561; see also Block v. Rutherford, 468 U.S. 576,
590 n.10, 591 n.11 (1984) (noting that “administrative
officials are not obliged to adopt the least restrictive means to
meet their legitimate objectives”). Indeed, the Supreme Court
was careful to explain in Bell that “[g]overnmental action
does not have to be the only alternative or even the best

12
According to the complaint submitted about Steele’s
conduct, Steele had specifically threatened to disclose one
detainee’s child sex offense charges. As Sergeant De Amicis
pointed out in his affidavit, “[c]hild sex offenders are among
the most hated members of the inmate population,” so
concerns for that detainee’s safety were “justifiabl[e].” App.
1311.

21
alternative for it to be reasonable, to say nothing of
constitutional.” Bell, 441 U.S. at 542 n.25; see also Proctor
v. LeClaire, 846 F.3d 597, 609 (2d Cir. 2017) (stating that the
Supreme Court made clear in Hewitt that administrative
segregation “is appropriate when necessary to incapacitate an
inmate who ‘represents a security threat’ or to ‘complet[e] . . .
an investigation into misconduct charges’” (quoting Hewitt,
459 U.S. at 476)).

Steele’s transfer to administrative segregation was not
an excessive response by MCACC officials to legitimate
internal security concerns. As discussed, MCACC officials
believed that Steele’s alleged bail bonds scheme posed a risk
to other detainees because they had received information that
Steele threatened to disclose a detainee’s sex offense charges
to the general population as part of the scheme. In light of
these security concerns, it was a non-excessive response for
MCACC officials to temporarily remove Steele from the
general population, where he would be in a position to make
such threats to other detainees, while they investigated his
conduct.13

In sum, Steele has not met his “heavy burden of
showing that [Defendants] have exaggerated their response to
the genuine security considerations that actuated” his move to
more restrictive conditions. Bell, 441 U.S. at 561-62.
Therefore, we conclude that Steele’s transfer to

13
To the extent Steele argues separately that the
restriction of his phone privileges constituted prohibited
“punishment” under Bell, we disagree, given that Steele
admitted to contact with Speedy over the phone.

22
administrative segregation did not violate his substantive due
process rights under Bell.14

B. Procedural Due Process

In addition to his substantive due process claims,
Steele asserts that Defendants denied his procedural due
process rights when they transferred him to administrative
segregation. To maintain a procedural due process claim,
Steele must show that: (1) Defendants deprived him of an
individual liberty interest that is encompassed within the
Fourteenth Amendment’s protection, and (2) the procedures
Defendants made available to him did not provide due
process of law. Hill v. Borough of Kutztown, 455 F.3d 225,
233-34 (3d Cir. 2006). The liberty rights protected by
procedural due process are broader than those protected by
substantive due process; they “may arise from the
Constitution itself, by reason of guarantees implicit in the
word ‘liberty,’” or they “may arise from an expectation or
interest created by state laws or policies.” Wilkinson v.

14
Steele also argues that the District Court failed to
consider his pro se “letter brief” as an affidavit in opposition
to Defendants’ summary judgment motion. Having
considered the letter brief for purposes of this appeal, we
conclude that, without more, Steele’s conclusory statement
that “defendants used the Administrative Segregation as a
punishment because [Steele] did not want to agree with the
defendants to lie on Speedy bail bonds” is not sufficient
evidence to create a genuine issue of material fact as to the
purpose for Steele’s transfer and to overcome summary
judgment as to Steele’s substantive due process claims.
Suppl. Br. of Appellant 5.

23
Austin, 545 U.S. 209, 221 (2005); see also Layton v. Beyer,
953 F.2d 839, 845 (3d Cir. 1992). Interests in the latter
category are often referred to as “state-created” liberty
interests.

Assuming without deciding that Steele’s claimed
liberty interests are protected, we agree with the District
Court that Steele has not shown a genuine issue of material
fact as to whether Defendants provided due process of law.
The Supreme Court has explained that when an individual is
transferred to administrative segregation because he is “feared
to be a threat to institutional security,” detention officials
must provide only

an informal, nonadversary
evidentiary review . . . for the
decision that an inmate represents
a security threat and the decision
to confine an inmate to
administrative segregation
pending completion of an
investigation into misconduct
charges against him. An inmate
must merely receive some notice
of the charges against him and an
opportunity to present his views
to the prison official charged with
deciding whether to transfer him
to administrative segregation. . . .
So long as this occurs, and the
decisionmaker reviews the
charges and then-available

24
 evidence against the prisoner, the
Due Process Clause is satisfied.

Hewitt, 459 U.S. at 474, 476; see also Stevenson, 495 F.3d at
70 (citing Hewitt). This informal review must take place
“within a reasonable time following an inmate’s transfer.”
Hewitt, 459 U.S. at 476 n.8.

Steele does not argue that he received insufficient
process under Hewitt. Indeed, he appears to acknowledge
that he received notice of the allegations against him in an
interview with prison officials that took place prior to his
transfer. Steele himself testified that he was informed during
the February 25, 2009, meeting that MCACC officials had
received a complaint about him “making money for the bail
bondsmen” and “threatening inmates” to “try[] to get money
out of them.” App. 1303. Steele was clear in his deposition
that he understood the nature of the allegations against him,
explaining that in “[t]he first meeting I’m getting the
information. Now I know what’s going on. Now I know that
they are saying that, okay, we think that you’re getting paid
for every bail that you bring to them. . . . We think that you’re
doing this wrong. We think you’re doing this illegal.” App.
1305. Steele admitted during the February 25th meeting that
he had arranged bail bonds with Speedy for other inmates, but
claimed he was arranging the bonds “out of the goodness of
[his] heart.” App. 1305. There is no evidence in the record to
suggest that Steele sought and was denied the opportunity to
present any additional facts or evidence in support of his
position. And while MCACC officials may not have believed
Steele’s explanation for his conduct, there is no evidence in
the record to suggest that they failed to consider his
explanation.

25
 The focus of Steele’s procedural due process challenge
circles back to Defendants’ asserted reasons for transferring
Steele to administrative segregation. He argues that he was
transferred for disciplinary reasons, and, therefore, due
process protections required MCACC officials to provide him
with a written statement of the evidence and charges against
him, which he did not receive. See Stevenson, 495 F.3d at 70-
71. For the reasons already noted, however, we agree with
the District Court that the summary judgment record in this
case shows that Steele’s transfer was for institutional security
reasons rather than for discipline or punishment. Steele was
administratively separated from the general MCACC
population pending further investigation into his conduct and
Speedy’s activities within the MCACC. Therefore, he was
due the level of process outlined in Hewitt.15

15
Steele also argues, in a single paragraph, that the
absence of a specific notice informing him that his telephone
privileges would be restricted in administrative segregation
violates the Due Process Clause. We cannot agree that
MCACC officials were required to explain in their interview
with Steele all of the attendant restrictions of his
administrative segregation. The key inquiry was whether he
received notice of the charges against him and had an
opportunity to respond. Hewitt, 459 U.S. at 476; see also
Artway v. Att’y Gen. of State of N.J., 81 F.3d 1235, 1252 (3d
Cir. 1996) (“Due Process requires ‘notice reasonably
calculated . . . to apprise interested parties of pendency of the
action and afford them an opportunity to present their
objections.’” (quoting Mullane v. Central Hanover Bank &
Trust, 339 U.S. 306, 314 (1950))); Taylor v. Rodriguez, 238
F.3d 188, 192-93 (2d Cir. 2001) (holding that “the effect of

26
 Steele also contends throughout his briefing that
Defendants violated the Due Process Clause by failing to
follow the procedures outlined in the Manual. Even if we
were to find that the parties’ actions implicated certain
procedures set forth in the Manual, there is no standalone
protected liberty interest in those procedures. See Rodriguez
v. McLoughlin, 214 F.3d 328, 339 (2d Cir. 2000) (explaining
that a state statute “that merely establishes procedural
requirements does not thereby create a liberty interest,
because an expectation of receiving process is not, without
more, a liberty interest protected by the Due Process Clause”
(internal quotation marks omitted)). The Supreme Court has
explained that

[p]rocess 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. . .
. 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

the notice should be to compel the charging officer to be
[sufficiently] specific as to the misconduct with which the
inmate is charged to inform the inmate of what he is accused
of doing so that he can prepare a defense to those charges and
not be made to explain away vague charges.” (internal
quotation marks omitted)). As discussed, there is no dispute
that Steele received such notice here.

27
 substantive right.

Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983). In other
words, a valid due process claim will not automatically
follow from Defendants’ failure to abide by the Manual’s
procedural requirements.

Further, where a plaintiff establishes a state-created
liberty interest, a court must determine the level of process
due by drawing from federal constitutional law, not from state
laws, regulations, or policies. Layton, 953 F.2d at 851-52
(holding that while consideration of state regulations “may be
relevant in determining” what process is due, “they clearly do
not, in and of themselves, define or control the requirements
of the Constitution”); see also Cleveland Bd. of Edu. v.
Loudermill, 470 U.S. 532, 541 (1985) (explaining that “once
it is determined that the Due Process Clause applies, . . . [t]he
answer to th[e] question [of what process is due] is not to be
found in the [state] statute”). So here, the MCACC Manual
does not dictate what level of process will pass constitutional
muster. Accordingly, this argument fails.

V. CONCLUSION

For the foregoing reasons, the District Court’s grant of
summary judgment to all Defendants on Steele’s substantive
and procedural due process claims will be affirmed.

28