United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 1997 Decided December 16, 1997
No. 96-7027
Ernest Brown,
Appellant
v.
William M. Plaut, Associate Director for Institutions of the
District of Columbia Department of
Corrections, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 93cv00672)
Daniel M. Schember argued the causes and filed the briefs
for appellant. Alake Johnson-Ford entered an appearance.
Mary L. Wilson, Assistant Corporation Counsel, argued
the cause for the District of Columbia, with whom Jo Anne
Robinson, Interim Corporation Counsel at the time the brief
was filed, and Charles L. Reischel, Deputy Corporation Coun-
sel, were on the brief.
Jonathan J. Frankel argued the cause for amicus curiae
American Civil Liberties Union of the National Capital Area,
with whom Stephen H. Sachs and Arthur B. Spitzer were on
the brief.
Before: Wald, Henderson and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: This case and its companion James
Neal v. District of Columbia were argued on the same day
and before the same panel because they raise similar issues.
Ernest Brown ("Brown"), a former inmate of the District of
Columbia's (the "District's") prison at Lorton, seeks damages
from the District for placing him in administrative segrega-
tion, a form of custody for prisoners who present an escape
risk or pose a danger to themselves or others, for ten months
allegedly without due process.1 The district court, citing
Sandin v. Conner, 515 U.S. 472 (1995), found that Brown had
no liberty interest in remaining free of that deprivation, and
dismissed his suit. On appeal, the District argues that we
affirm on the ground cited by the district court, or on the
alternative grounds that Brown should have brought this
action as a habeas corpus petition or that Brown has received
all the process that was due him.
The question of how to apply Sandin raises difficult and
unsettled questions of constitutional law, which we find it
unnecessary to reach. Instead, we remand to the district
__________
1 William M. Plaut, whose name appears in the caption of this
case as a defendant, is an official of the District of Columbia
Department of Corrections. He is not named as a defendant in
Brown's second amended complaint, which is the complaint that is
at issue in this appeal; he was, however, named as a defendant in
Brown's initial complaint. The defendants named in the present
complaint include the District of Columbia and a number of other
D.C. prison officials.
court to decide the narrow factual issues relating to whether
Brown received all the process he was due.
I. Background
On the morning of October 12, 1992, Ernest Brown, then an
inmate at the Occoquan medium-security facility of the Dis-
trict's Lorton prison, got into an argument with Corporal
Parks, a prison guard, about cigarettes.2 In the course of
this dispute, he threw an "unknown substance," allegedly
urine and feces, at Parks, and told him "I'm still going to get
you." A search of Brown's cell disclosed a crude weapon
fashioned out of a sharpened plastic toothbrush. Parks pre-
pared a Disciplinary Report charging Brown with two of-
fenses, Bodily Injury (presumably for throwing the "unknown
substance"), and Threatening Conduct (for saying he would
"get" Parks); a copy of this report was given to Brown. The
following day, Brown was notified that a hearing of the
Adjustment Board (Lorton's disciplinary body) would occur
on October 16 on the charge of Threatening Conduct and on a
charge of Possession of Major Contraband (the weapon). On
that same day, Brown was transferred from Occoquan to
administrative segregation at Lorton's Maximum Security
Facility.
The Adjustment Board hearing apparently never occurred.
Instead, on October 15, Brown was brought before Lorton's
Housing Board, a body charged with determining whether
prisoners are to be placed in administrative segregation.
Brown received no advance notice of this hearing, and there
is nothing in the record to show what occurred at the hearing.
The only evidence in the record on this issue is a Housing
Board Action Sheet, which states that the reason for the
hearing was "[t]o determine appropriate housing for Resident
Brown, Ernest ... who was placed in the Adjustment Unit as
a result of a Disciplinary Report for Fighting on October 5,
__________
2 Because we are considering an appeal from a motion by the
District to dismiss or in the alternative for summary judgment,
what follows is an account of the undisputed facts, construed in the
light most favorable to Brown.
1992 and for the alleged incident involving staff on October
12, 1992." The sheet lists Brown as stating: "I don't fear for
my safety. I just want to be placed somewhere where I can
have access to a Law Library." It states that the Board finds
Brown "to be a threat to self and others due to the alleged
incident involving correctional staff," and concludes by stating
that "Resident Brown assaulted Cpl. Parks."
Brown remained in administrative segregation for a total of
ten months. In the medium-security unit in which he had
previously been confined, he had been able to go outdoors
from 8 a.m. to dusk, was permitted to move about the
dormitory and interact with other inmates at all hours of the
day or night, and could participate in many prison programs.
In the unit in which Brown spent the first four months of his
administrative segregation, by contrast, he was in solitary
confinement, and was allowed to leave his cell only to meet
with visitors (while shackled, handcuffed, and belly-chained),
and for two hours a week of exercise in a hallway. Brown
spent the remainder of his administrative segregation in a
unit in which he was in solitary confinement, but was allowed
to leave his cell for two or three hours a day. At the end of
this ten-month period, Brown was apparently returned to his
previous custody status.
Brown filed his initial complaint in this case in April, 1993,
alleging due process, free exercise, and Eighth Amendment
violations. After Brown had moved successfully for appoint-
ment of counsel and for leave to file an amended complaint,
the District moved to dismiss, or in the alternative for
summary judgment, as to all three of Brown's claims. The
district court granted the District's motion as to Brown's due
process claim, but denied it as to his other two claims.
(These claims, which involved Brown's rights to dental care
and to attend religious services, have since been settled.) As
to Brown's due process claim, the district court found that,
under Sandin v. Conner, 515 U.S. 472 (1995), Brown did not
have a liberty interest in remaining free of administrative
segregation, because his confinement in administrative segre-
gation did not amount to an "atypical and significant hard-
ship." 515 U.S. at 484. Brown then sought to file a second
amended complaint in order to re-plead the due process claim
and to add a related claim under District of Columbia law;
the district court granted Brown leave to do so, but immedi-
ately dismissed the due process claim. Brown now appeals
this dismissal.
II. Analysis
We first reject the District's contention that because suc-
cess on Brown's due process claim would "necessarily imply"
that the decision to place Brown in administrative segregation
was invalid, Brown must bring his claim by way of habeas
corpus. As to the merits of Brown's due process claim, we
address first whether Brown had a liberty interest in avoiding
his term in administrative segregation, and then whether he
received the process he was due.3
Our review is de novo because we are considering an appeal
from a motion to dismiss or in the alternative for summary
judgment. National Taxpayers Union, Inc. v. United States,
68 F.3d 1428, 1432 (D.C. Cir. 1995) (dismissal); Tao v. Freeh,
27 F.3d 635, 638 (D.C. Cir. 1994) (summary judgment).
A. Should This Action Have been Brought in Habeas Cor-
pus?
The District argues that, if Brown prevails, this will "neces-
sarily imply" that the District's decision to place him in
administrative segregation was invalid, and claims that this
means that, under Preiser v. Rodriguez, 411 U.S. 475 (1973)
__________
3 The District also makes several arguments directed at Brown's
claim under D.C. law. Brown correctly points out, however, that
the order from which he appeals dismissed only his due process
claim, not his claim under D.C. law. The order specifically stated
that Brown's due process claim is "separate" from his other claims
and that "there is no just reason for delay of final judgment as to
this claim," and directed the entry of final judgment as to that
claim. The language of this order meets the standard of Federal
Rule of Civil Procedure 54(b) for dismissal of fewer than all of the
claims in a case, so that Brown's appeal is properly before us. But,
because Brown's D.C. law claim was never dismissed by the district
court, it is not at issue in this appeal.
and its progeny, Brown's action must be brought in habeas
corpus, not through section 1983. We conclude that the
District reads the Preiser line of cases too broadly, and so
decline to require that Brown's action be brought in habeas
corpus.
In Preiser, the Supreme Court held that prisoners seeking
the restoration of good-time credits which they claimed had
been unconstitutionally withdrawn must do so through habeas
corpus, not through section 1983. The Court observed that
the prisoners' claims were "within the core of habeas corpus
in attacking the very duration of their physical confinement
itself." Id. at 487-88. Congress had required exhaustion of
available state remedies as a prerequisite to habeas corpus
relief, the Court explained, and it would "wholly frustrate"
Congress's intent to permit this rule to be circumvented
through the invocation of section 1983. Id. at 489-90.
Preiser said that the same rule must apply to any challenge
by a state prisoner to "the fact or duration of his confinement
based, as here, upon the alleged unconstitutionality of state
administrative action." Id. at 489. The Preiser Court set
clear limits to this principle, however, expressly reaffirming
its previous cases holding that a section 1983 action "is a
proper remedy for a state prisoner who is making a constitu-
tional challenge to the conditions of his prison life, but not to
the fact or length of his custody," id. at 499, because such
actions are not at the "heart" of habeas corpus, id. at 498.
The Court has twice since clarified the reach of Preiser.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Court consid-
ered a section 1983 action that sought money damages, rather
than the specific relief at issue in Preiser. The plaintiff in
Heck claimed that the unconstitutional acts of the defendants,
who were state officials, had led to his arrest and conviction.
The Court found that the plaintiff's action was analogous to a
common-law action for malicious prosecution, and that the
favorable-termination requirement of such actions therefore
applied to the plaintiff's section 1983 action. Heck thus held
that a plaintiff who brings a claim under section 1983 that, if
established, would "necessarily imply" that a criminal convic-
tion or sentence was unlawful must demonstrate as an ele-
ment of his claim that the conviction or sentence has been
reversed, expunged, invalidated, or "called into question by a
federal court's issuance of a writ of habeas corpus." Id. at
484-87. In Edwards v. Balisok, 117 S. Ct. 1584 (1997), the
Court made clear that Heck applies in some cases in which
the underlying proceeding is not a criminal conviction or
sentence, applying Heck to an action by a prisoner who
asserted that a prison disciplinary proceeding that had de-
prived him of good-time credits had been invalid because,
inter alia, the decisionmaker had not been impartial. See id.
at 1588-89.
We conclude, however, that Brown's suit, which challenges
only his placement in administrative segregation, is not of the
type to which it is appropriate to apply Preiser and its
progeny.4 The Court has never deviated from Preiser's clear
line between challenges to the fact or length of custody and
challenges to the conditions of confinement. In Edwards, the
Court was careful to respect the distinction drawn by Preiser,
repeatedly characterizing the plaintiff's claim as one that
would "necessarily imply the invalidity of the deprivation of
his good-time credits" and therefore hasten his release. 117
S. Ct. at 1588. Heck, too, observed that the damages action
in that case was in effect an attack on " 'the fact or length of
confinement.' " 512 U.S. at 482 (quoting Preiser, 411 U.S. at
494). The Court also did not question the plaintiff's invoca-
tion of section 1983 in Sandin, a case in which the underlying
prison disciplinary proceeding affected only the plaintiff's
__________
4 Brown does assert that his placement in administrative segrega-
tion may have affected his opportunities for parole, and thus the
length of his confinement. It is true that Brown was denied parole
in August, 1993, near or shortly after the end of his term in
administrative segregation. But there is no evidence that the
Parole Board considered the fact that Brown had been in adminis-
trative segregation in making its decision. The Parole Board's
explanation said only that Brown's "adjustment has been poor[,] he
has received two Class II DRs [disciplinary reports] and been
charged with assault." Thus, the Board seems to have considered
only the charges of misconduct against Brown, not their conse-
quences.
conditions of confinement, not the duration of his sentence.
See 515 U.S. at 487. See also McCarthy v. Bronson, 500 U.S.
136, 142 (1991) (drawing on Preiser 's distinction between
challenges to the fact or length of custody and challenges to
conditions of confinement in construing a statutory reference
to the "conditions of confinement").5
Moreover, Heck's rationale for its favorable-termination
requirement is inapplicable to the facts of this case. Brown's
action may not properly be analogized to a suit for malicious
prosecution, as the decision he is challenging bears little
resemblance to a judicial proceeding. Decisions to place
inmates in administrative segregation are subject to greatly
relaxed procedural requirements, see Hewitt v. Helms, 459
U.S. 460, 476 (1983) ("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"), and
the Court has recognized that they are often made fairly
informally, on the basis of "subjective" and "intuitive" consid-
erations, see id. at 474. Indeed, the administrative proceed-
ing before the Housing Board entailed so little process that it
would almost certainly be accorded no collateral estoppel
effect. See Nasem v. Brown, 595 F.2d 801, 806-08 (D.C. Cir.
1979) (holding that an administrative proceeding in which the
parties were not permitted to present live witness testimony
or to cross-examine opposing witnesses should not be accord-
ed collateral estoppel effect); 18 Charles Alan Wright et al.,
Federal Practice and Procedure s 4475, at 766 (1981). One
of the Court's principal concerns in Heck was to limit collater-
__________
5 We recognize that one court of appeals has applied Edwards to
a case in which the prisoner was subject only to disciplinary
segregation, and not to loss of good time or any other change in the
length of confinement. See Stone-Bey v. Barnes, 120 F.3d 718, 721
(7th Cir. 1997). We have found no other court of appeals decisions
reaching this conclusion, and for the reasons set out in the text, we
do not find its reasoning persuasive. See also Clarke v. Stalder, 121
F.3d 222, 226 (5th Cir. 1997) (Preiser and Edwards do not apply to
actions in which "a favorable determination would not automatically
entitle the prisoner to accelerated release").
al attacks on final judgments, see 512 U.S. at 484; but a
proceeding that is incapable of giving rise to collateral estop-
pel, like that at issue in this case, hardly needs to be insulated
from collateral attack. Finally, were Brown required to
invoke habeas corpus to challenge his placement in adminis-
trative segregation, then the same rule would presumably
apply to a myriad of prison officials' other administrative
decisions affecting conditions of confinement, such as visita-
tion, mail, shower, or library privileges. Habeas corpus
might conceivably be available to bring challenges to such
prison conditions, as the Court observed in Preiser, 411 U.S.
at 499, but requiring the use of habeas corpus in such cases
would extend Preiser far beyond the "core" of the writ that
Preiser set out to protect. Id. at 487.
B. Did Brown's Placement in Administrative Segregation
Violate the Due Process Clause?
Brown's placement in administrative segregation violated
the Due Process Clause only if two conditions are met:
Brown had a liberty interest in avoiding that term of segrega-
tion, and Brown did not receive the process he was due. The
first of these questions raises difficult issues of constitutional
law; the second, only narrow questions of fact. We therefore
discuss the first question only to the extent necessary to
explain why we do not decide it, and focus on the second.
1. Did Brown Have a Liberty Interest?
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme
Court reworked the framework for analyzing whether a pris-
oner has a state-created liberty interest in avoiding a particu-
lar deprivation. Before Sandin, this question was answered
in much the same way as were questions about the existence
of other liberty or property interests: if state laws or regula-
tions contained language constraining the discretion of state
officials, a liberty interest existed. See, e.g., Hewitt, 459 U.S.
at 471-72. The Sandin Court found that this approach had
given states "disincentives to ... codify prison management
procedures" and led to the inappropriate "involvement of
federal courts in the day-to-day management of prisons."
515 U.S. at 482. It therefore found that, although "States
may under certain circumstances create liberty interests
which are protected by the Due Process Clause," "these
interests will generally be limited to freedom from restraint
which ... imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life."
Id. at 484.
Applying Sandin to this case presents a number of difficul-
ties. First, although Sandin clearly dictates that we compare
the hardship experienced by the inmate to "the ordinary
incidents of prison life," it is not clear which prison or part of
a prison is to provide the standard of comparison. At various
points in Sandin, the Court compared the prisoner's condi-
tions in disciplinary segregation in Hawaii's Halawa Correc-
tional Facility to "administrative segregation and protective
custody" in that prison, to the "general population" of that
prison, and to an undefined "range of confinement to be
normally expected for one serving an indeterminate term of
30 years to life." See Sandin, 515 U.S. at 486-87.
The District suggests that, because the Attorney General
has authority to transfer persons convicted in the District to
any other prison nationwide, the appropriate baseline for our
analysis is in fact the most rigorous prison in the nation.6
The parties have not addressed, however, what may be a
prerequisite to such an argument: evidence that such trans-
fers are "totally discretionary," a point the Sandin Court
found important in determining that it was appropriate to use
conditions in administrative segregation and protective custo-
dy at Halawa as a baseline for comparison. See 515 U.S. at
486. At least one court has accepted a variant of this
argument: the Seventh Circuit has found that, because in-
mates may be transferred within the Indiana prison system,
the test of whether a deprivation is "atypical and significant"
turns on a comparison with conditions in the state's most
rigorous prison. Wagner v. Hanks, 128 F.3d 1173, 1997 WL
__________
6 The courts of the District of Columbia have construed sections
24-402 and 24-425 of the D.C. Code to permit inmates to be
transferred to state as well as to federal institutions. See Vaughn
v. United States, 579 A.2d 170, 173 (D.C. 1990).
695375 (7th Cir. 1997).7 The Wagner court also noted that,
because Indiana can transfer its prisoners out of state, the
proper standard of comparison may in fact be the most
rigorous prison in the nation; it declined, however, to "decide
whether logic should be pressed so far," and remanded the
case for further fact-finding. Id. at *4.
Even were we to reject the District's transfer argument,
we would still face a number of unsettled questions about how
to apply Sandin to this case. Caselaw from the Second and
Ninth Circuits suggests that whether a term in segregation
amounts to an "atypical and significant" deprivation turns on
its length and on a comparison of conditions in segregation
and in the prison's general population. See, e.g., Brooks v.
DiFasi, 112 F.3d 46, 48-49 (2d Cir. 1997); Keenan v. Hall, 83
F.3d 1083, 1089 (9th Cir. 1996). Other courts have not
adopted so structured an analysis; for instance, the Fifth
Circuit has concluded that a term in administrative segrega-
tion was not "atypical and significant" without discussing
conditions in the segregation unit or the length of the segre-
gation at all. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir.
1995), cert. denied, 116 S. Ct. 1690 (1996). Were we to follow
the approach of the Second and Ninth Circuits, we would
then need to decide whether the length and severity of the
deprivation Brown experienced sufficed to render that depri-
vation "atypical and significant," a close and difficult question.
Compare Sealey v. Giltner, 116 F.3d 47, 51-52 (2d Cir. 1997)
(remanding for specific findings on conditions of confinement
in the case of an inmate held in administrative segregation for
__________
7 Judge Posner, the author of Wagner, also observed that under
the panel's reading of Sandin "the right to litigate disciplinary
confinements has become vanishingly small." Id. at *3. He added
that "[t]his is a harsh result and perhaps the Court did not actually
intend it," and acknowledged that while the Sandin Court cited
cases involving prison transfers, "it did not draw the logical infer-
ence [that the baseline should be a state's most rigorous prison] and
may not have intended to push its approach to its logical ex-
treme...." Id. at *4. And he further noted that "we would
welcome clarification of the issue by the Court," id. at *3-4.
six months) with Mackey v. Dyke, 111 F.3d 460, 463 (6th
Cir.), cert. denied, 118 S. Ct. 136 (1997) (finding that a six-
month term in administrative segregation was not "atypical
and significant," with no discussion of conditions in segrega-
tion). And, finally, we would need to decide whether San-
din's "atypical and significant" test merely supplements Hew-
itt's test for the existence of a liberty interest, or supersedes
it altogether. See The Supreme Court, 1994 Term--Leading
Cases, 109 Harv. L. Rev. 111, 147-50 (1995) (discussing this
question). We do not think it necessary or even useful to
resolve so many complex and fact-specific issues in the con-
text of this case which it may be possible to decide on far
narrower grounds.
2. Did Brown Receive the Process He Was Due?
By contrast to the liberty-interest question, whether Brown
received the process he was due turns on a few simple
questions of fact. The decision to place an inmate who has a
liberty interest in administrative segregation is subject to
limited procedural safeguards. "An inmate must merely
receive some notice of the charges against him and an oppor-
tunity to present his views to the prison official charged with
deciding whether to transfer him to administrative segrega-
tion.... So long as this occurs, and the decisionmaker
reviews the charges and the then-available evidence against
the prisoner, the Due Process Clause is satisfied." Hewitt,
459 U.S. at 476. This process may be conducted a reasonable
time after the transfer, and may be done either orally or in
writing; periodic reviews are required after the initial trans-
fer. See id. at 476-77 & n.9.
Brown contends that, because his placement in administra-
tive confinement was based on an express finding that he had
assaulted a correctional officer, it was essentially disciplinary
in nature, so that he is entitled to the more extensive proce-
dural protections applied to disciplinary hearings in Wolff v.
McDonnell, 418 U.S. 539, 563-71 (1974). Although Wolff
itself involved both discipline and the loss of good time, we
have applied Wolff in cases in which only discipline was at
issue. See Crosby-Bey v. District of Columbia, 786 F.2d
1182, 1185 (D.C. Cir. 1986) (per curiam). But Brown has not
established that his treatment was disciplinary in nature.
Prison officials may appropriately place an inmate in adminis-
trative segregation if she "represents a threat to the institu-
tion's security." Hewitt, 459 U.S. at 474. The fact that
prison officials have made a finding that the inmate has
committed an assault, rather than operating on the charge or
suspicion that she has done so or will do so, does not trigger
Wolff.8
We therefore conclude that only the procedures required in
Hewitt--"some notice," and an opportunity for the inmate to
present his views, 459 U.S. at 476--apply to this case.9
Hewitt 's requirements are not elaborate, but they are real,
__________
8 Hewitt explained the lower procedural protections associated
with administrative segregation by noting that no stigma is attached
to such segregation, and that it has no significant effect on an
inmate's parole opportunities. See Hewitt, 459 U.S. at 473. If
Brown had shown that the Housing Board's finding that he had
assaulted a guard was treated for parole or other purposes as
equivalent to a disciplinary finding to that effect, or that administra-
tive segregation was so widely used as a substitute for punishment
that it carried the same stigma as disciplinary segregation, this
might indicate that more extensive procedural protections were
warranted. He has made no such showing.
9 We do not agree with Brown's further contention that Hewitt
requires that an inmate receive advance notice of the charges
against him. Advance notice is certainly valuable, and prison
officials should provide it to inmates where possible; but Hewitt
calls only for "some notice."
The applicable regulations require that inmates receive written
notice three days in advance of a housing hearing, D.C. Mun. Reg.
tit. 28, s 523.1 (1987), a requirement that prison officials apparently
did not comply with here. If the District did violate this require-
ment, that would not amount to a violation of the Due Process
Clause. State law supplies only the substance of a liberty interest;
federal constitutional law governs the procedures that are required
when it is withdrawn. Archie v. City of Racine, 847 F.2d 1211, 1217
(7th Cir. 1988) (en banc).
and must be strictly complied with. The present record
raises two questions as to whether Brown had fair notice of
the purpose and implications of the Housing Board hearing.
Brown was initially told that he would receive a disciplinary
hearing on October 16 on charges of Threatening Conduct
and Possession of Major Contraband. Then, on October 15,
he was brought before the Housing Board. It is not clear
whether Brown was told that this hearing would be his only
opportunity to respond to the charges against him. With
certain exceptions, D.C. regulations prohibit inmates from
being held in administrative segregation for more than three
days without a hearing before the Housing Board. D.C.
Mun. Regs. tit. 28, ss 521.7, 531.10 (1987). Brown might thus
have assumed that the Housing Board hearing was only
intended to consider his temporary placement in administra-
tive segregation pending the Adjustment Board's decision,
and that he would have an opportunity to defend himself on
any charges at the Adjustment Board hearing on the follow-
ing day. On remand, the district court should determine
whether Brown made this mistaken assumption, and if so
whether it was reasonable for him to do so in light of what he
was told about the purpose of the Housing Board hearing.
It is also not clear whether Brown knew that the Housing
Board hearing was intended to address charges that he had
assaulted a correctional officer. Brown had only been noti-
fied of an Adjustment Board hearing on charges of Threaten-
ing Conduct and Possession of Major Contraband. He had
previously received a disciplinary report charging him with
Bodily Injury; the fact that this charge was apparently not to
be addressed at the Adjustment Board hearing could have
reasonably led him to conclude that it had been dropped.10
Nor does the Housing Board Action Sheet that appears in the
record provide any evidence as to whether Brown was told at
the hearing that the Board would consider whether he had
__________
10 Moreover, the D.C. regulations list Bodily Injury as a Class II
offense, but Assault as a more serious Class I offense. D.C. Mun.
Regs. tit. 28, ss 502.4, 503.2 (1987).
committed an assault. It records Brown only as saying that
he does not fear for his safety and that he wants to have
access to a law library, words that might suggest Brown
thought that the hearing was about whether he himself was
threatened and wished to be placed in voluntary protective
custody.11
If Brown was not provided an accurate picture of what was
at stake in the hearing, then he was not given his due
process. See Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314-15 (1950); Memphis Light, Gas & Water
Division v. Craft, 436 U.S. 1, 14-15 (1978). On the other
hand, if he was advised of the charges that would be consid-
ered against him and given "an opportunity to present his
views," then he was given all the process he was due. Hew-
itt, 459 U.S. at 476. Because there is no record as to what
occurred at the Housing Board hearing, we find it necessary
to remand to the district court for further development of the
facts surrounding this hearing.
III. Conclusion
In sum, we find that Preiser's distinction between chal-
lenges to the conditions of confinement and challenges to its
fact or duration means that Brown's complaint was properly
brought under section 1983, and need not have been brought
as a habeas corpus petition. As to whether Brown's rights
under the Due Process Clause were violated, we express no
opinion at this time as to whether Brown had a liberty
interest in remaining free of administrative segregation. In-
stead, we remand this case to the district court to decide,
first, assuming that Brown had a liberty interest in avoiding
administrative segregation, whether he received all the pro-
cess that he was due under Hewitt. If he did, that will be the
end of the matter. If he did not receive any such process, the
__________
11 The sheet also states that Brown "has signed Non-Animosity
and Waiver of Protective Custody forms"; the meaning of this is
unclear, but it may again be a reference to voluntary protective
custody. (Brown denies that he signed the latter form.)
district court may proceed to consider whether a liberty
interest existed, in light of the questions identified in this
opinion.
We therefore vacate the decision of the district court, and
remand for further proceedings consistent with this opinion.
So ordered.