[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-11667 July 08, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 94-02700 CV-ODE-1
SALVADOR MAGLUTA,
Plaintiff-Appellant,
versus
F.P. SAM SAMPLES,
MICHAEL W. GARRETT, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 8, 2004)
Before ANDERSON, BARKETT and RONEY, Circuit Judges.
ANDERSON, Circuit Judge:
Salvador Magluta appeals from the order of the district court dismissing his
Bivens1 action against four officials employed by the Federal Bureau of Prisons
("Bureau") pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief can be granted.
All of Magluta's claims in the instant Bivens action relate to the conditions
of his confinement as a pretrial detainee at the United States Penitentiary in
Atlanta, Georgia ("USP Atlanta"). The centerpiece of his First Amended
Complaint ("Complaint"), and the only claim which we will discuss at length in
this opinion,2 is his Fifth Amendment due process claim. The Complaint alleges
that he was placed in administrative detention – the "hole" – in conditions
constituting solitary confinement for more than five hundred days in USP Atlanta
while he was awaiting trial in South Florida. Magluta alleges that this lengthy and
harsh pretrial detention was done at the direction of and with the knowledge of the
four named defendants, F.P. Sam Samples (Regional Director of the United States
Bureau of Prisons, Southeast Regional Office), Michael W. Garrett (Deputy
Regional Director of the United States Bureau of Prisons, Southeast Regional
Office), Fred Stock (Warden of USP Atlanta), and Michael Bell (Associate
1
See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388, 91 S. Ct. 1999 (1971).
2
The district court's dismissal of Magluta's First Amendment and Sixth
Amendment claims is affirmed without need for further discussion.
2
Warden of USP Atlanta). Magluta further alleges that this lengthy and harsh
pretrial detention at the hands of the defendants violated the Due Process Clause
of the Fifth Amendment in two distinct ways. First, Magluta alleges that the harsh
conditions while he was a pretrial detainee were solely for the purpose of
punishment in violation of his Fifth Amendment due process rights, citing Bell v.
Wolfish, 441 U.S. 520, 99 S. Ct. 1861 (1979). Second, Magluta alleges that 28
C.F.R. § 541.22, which governs the Bureau's placement and review of inmates in
administrative detention, creates a protected liberty interest, and that his placement
and continued confinement in administrative detention -- in the absence of the
notice, hearings, and assorted reviews § 541.22 requires -- violated his procedural
due process rights under the Fifth Amendment.
The district court granted the defendants' 12(b)(6) motion with respect to
the Bell v. Wolfish claim of intentional punishment of a pretrial detainee,
concluding that Magluta had failed to allege facts to show that his detention in
solitary confinement was imposed as punishment. With respect to the procedural
due process claim premised upon § 541.22, the district court, without determining
whether § 541.22 created a protected liberty interest, dismissed the claim,
concluding that the defendants were entitled to qualified immunity because it was
not clearly established at the time of the events in the instant case that § 541.22
3
entitled a pretrial detainee to due process under the Fifth Amendment. For the
reasons set forth below, the order of the district court is affirmed in part, vacated
in part, and remanded.
I. BACKGROUND
Magluta was indicted by a grand jury in the Southern District of Florida in
April 1991 on twenty-four drug trafficking and conspiracy charges. Magluta was
arrested in October 1991 and placed in federal custody. Prior to his trial and
eventual acquittal in 1996, Magluta was held in three different federal facilities –
first in Miami, then in Talledega, and later at USP Atlanta.
Magluta filed the instant Bivens action in the United States District Court
for the Northern District of Georgia in 1994 during his pretrial detention at USP
Atlanta, and the case has been progressing through the federal courts ever since.
Initially, the action was stayed in the district court in Georgia pending the outcome
of Magluta's criminal trial in Florida. When Magluta was acquitted of all the drug
trafficking and conspiracy charges in early 1996, the stay in the Bivens action was
lifted by the district court. However, around the time the stay was lifted, Magluta
was indicted in the Southern District of Florida for passport fraud. Magluta was
released on bond, and near the end of his February 1997 trial on that charge, failed
4
to appear in court. An arrest warrant was issued for Magluta, and he was
convicted in his absence on February 7, 1997.
On March 25, 1997, while Magluta was still a fugitive, the district court in
Georgia granted the defendants' motion to dismiss the instant Bivens action citing
the fugitive disentitlement doctrine. When Magluta was recaptured in April 1997,
he filed a notice of appeal from the district court's order. On appeal, we reversed
the district court's order of dismissal and remanded the case, concluding that the
fugitive disentitlement doctrine was not appropriately applied because there was
"no nexus between Magluta's fugitive status and his Bivens action." Magluta v.
Samples, 162 F.3d 662, 664 (11th Cir. 1998).
On remand, the district court once again dismissed Magluta's Bivens action,
this time on Rule 12(b)(6) grounds, citing failure to state a claim upon which relief
could be granted. On July 13, 2001, we vacated the district court's dismissal and
again remanded, stating that Magluta's Original Complaint ("Original Complaint")
was a "quintessential 'shotgun' pleading of the kind we have condemned
repeatedly," but determining that the appropriate disposition was still to remand
with instruction that the district court require Magluta to replead his claims so that
his Complaint would comply with the "short and plain statement of the claim"
5
requirement of Rule 8 of the Federal Rules of Civil Procedure. Magluta v.
Samples, 256 F.3d 1282, 1284 (11th Cir. 2001).
After our second remand, Magluta filed his Complaint on November 21,
2001. The defendants again brought a motion to dismiss pursuant to Rule
12(b)(6), and the district court again granted the defendants' motion on March 4,
2003. Magluta timely appealed, and we now address the appropriateness of the
district court's March 4, 2003 dismissal.
II. STANDARD OF REVIEW
We review a dismissal for failure to state a claim pursuant to Rule 12(b)(6)
de novo. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.
1998). We accept the facts of the complaint as true and view them in the light
most favorable to the nonmoving party. Id. Dismissal pursuant to Rule 12(b)(6) is
not appropriate "unless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to relief." Magluta v.
Samples, 256 F.3d at 1283-84 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78
S. Ct. 99, 102 (1957)).
We review the district court's grant of qualified immunity de novo to the
extent the appeal concerns pure issues of law, including whether the underlying
6
law governing official conduct was clearly established. Smith v. Mattox, 127 F.3d
1416, 1418 (11th Cir. 1997).
III. DISCUSSION
A. Punishment of a Pretrial Detainee
Magluta's first argument on appeal is that the district court erred in granting
the defendants' motion to dismiss because the Complaint alleges that the harsh
conditions of pretrial detention described were for the purpose of punishment and
were not justified by any legitimate governmental objectives.
Due process requires that a pretrial detainee not be punished prior to a
lawful conviction. Bell v. Wolfish, 441 U.S. at 535, 99 S. Ct. at 1872; McMillian
v. Johnson, 88 F.3d 1554, 1564 (11th Cir. 1996), amended by, 101 F.3d 1363
(11th Cir. 1996). However, the government may detain individuals to ensure their
presence at trial and may subject them to the conditions and restrictions of the
detention facility so long as those conditions and restrictions do not amount to
punishment. Bell v. Wolfish, 441 U.S. at 536-37, 99 S. Ct. at 1873. The
determination of whether a condition of pretrial detention amounts to punishment
turns on whether the condition is imposed for the purpose of punishment or
whether it is incident to some legitimate government purpose. Id. at 538, 99 S. Ct.
7
at 1873; McMillian, 88 F.3d at 1564. An intent to punish on the part of detention
facility officials is sufficient to show unconstitutional pretrial punishment. Bell v.
Wolfish, 441 U.S. at 538, 99 S. Ct. at 1873-74; McMillian, 88 F.3d at 1564.
Further, "if a restriction or condition is not reasonably related to a legitimate goal
– if it is arbitrary or purposeless – a court permissibly may infer that the purpose
of the governmental action is punishment[.]" Bell v. Wolfish, 441 U.S. at 539, 99
S. Ct. at 1874.
In dismissing Magluta's due process claim based upon Bell v. Wolfish, the
district court found that Magluta had failed to allege facts to show that the
conditions of his confinement were imposed as a punishment. The district court
specifically stated:
There is no indication that the detention was arbitrary or purposeless;
indeed, the record reflects that Plaintiff was placed in administrative
detention because he and his co-defendants were under investigation for
at least four separate escape plots. See Original Complaint ¶ 194
(quoting habeas hearing testimony of Defendant Garrett). Thus, the
Court may not infer that the purpose of the detention was punitive.
Plaintiff has therefore failed to establish that his administrative detention
constitutes punishment and thus has failed to allege that he has a
protected liberty interest under the Fifth Amendment itself giving rise to
a due process right.
Magluta v. Samples, No. 94-CV-2700-ODE, at 9 (N.D. Ga. Mar. 4, 2003)
(hereinafter "District Court Order"). The above quoted language makes clear that
8
the district court premised its holding on its determination that the Original
Complaint reflected that Magluta was placed in administrative detention for
legitimate purposes while under investigation for escape plots. The district court
held, as a result of determining that there was a legitimate purpose, that Magluta's
detention was not arbitrary or purposeless and that an intent to punish could not be
inferred.
Having reviewed the Original Complaint3 in its entirety and construing it in
a light most favorable to Magluta, we conclude that the district court failed to take
account of reasonable inferences favorable to Magluta in the Original Complaint
and in the Complaint. Magluta's Original Complaint clearly alleges that the harsh
treatment of his pretrial confinement was solely for the purpose of punishment or
retribution, and was not justified by any legitimate government objectives. See
Original Complaint ¶ 117 ("[Defendants] retaliated against Plaintiff for his
codefendant's exercise of constitutionally protected conduct by ordering Plaintiff
back to 'the hole' without cause, solely for the sake of punishment because the
codefendant had initiated habeas corpus proceedings in another district."); id. ¶
145 ( "Plaintiff's treatment by the Defendant has been characterized by retaliation
for constitutionally protected conduct. That is, the more the Plaintiff complains to
3
See note 4, infra, for our limited reliance on the Original Complaint.
9
prison and jail officials, or even federal judges, it is apparent that he is treated by
the Bureau of Prisons and the named Defendants in a more severe manner."); id. ¶
149 ("In particular, administrative detention has been used in this case as an
unconstitutional pretext for indefinite solitary confinement with a purely
retributive purpose.").
It is true that paragraph 194 of the Original Complaint states that defendant
Garrett testified at a habeas hearing that it gave him great concern that Magluta
was under investigation for four separate escape plots. However, that statement
must be read within the context of the other allegations of the Original Complaint,
in which Magluta alleges that the escape concern was based upon false and
fabricated information without even minimal indicia of reliability for the purpose
of punishing Magluta and inhibiting his preparation for his criminal trial. For
example, although Magluta alleges that defendants Sample and Garrett considered
Magluta to be an escape risk, id. ¶¶ 54, 194, his allegation is that this was based
upon misinformation, id. ¶ 55, and also fabricated information, id. ¶ 140, which
lacked even minimal indicia of reliability, id. ¶¶ 197, 200, and that defendants
Samples and Garrett perpetrated a campaign of misinformation for the purpose of
punishing Magluta and to inhibit his trial preparation for his criminal defense, id. ¶
56. Magluta also alleged that his harsh treatment was unlike the treatment of other
10
pretrial detainees, even those also in administrative detention. Id. ¶ 135.
In addition to the foregoing allegations, Magluta has alleged additional facts
to support his contention that placing him in solitary confinement was for the
purpose of punishment. He alleged that shortly after being transferred to USP
Atlanta and placed in solitary confinement, he filed a petition for a writ of habeas
corpus; that following a status conference in which the magistrate judge
encouraged settlement, defendants removed Magluta from solitary confinement
and placed him in the general population for more than two months; that he
conducted himself appropriately during that time; and that, although no security
threat was apparent, the four defendants returned him to solitary confinement
solely for the sake of punishment and to retaliate against him for the exercise of
constitutionally protected rights. Id. ¶¶ 113-17.
We do not doubt that the district court’s inference from paragraph 194 of
the Original Complaint – that Magluta was placed in administrative detention
because of a legitimate concern about escape risk – was a reasonable inference.
However, in view of the context of the Original Complaint as a whole as above
summarized, and in view of our obligation to take all reasonable inferences in
favor of Magluta, we cannot conclude that the district court’s inference is the only
reasonable inference from the allegations. Rather, we conclude that Magluta’s
11
allegations in the Original Complaint give rise to a reasonable inference that
Magluta’s placement in solitary confinement was for the purpose of punishment.4
Having determined that the district court failed to take into account all of
the reasonable inferences with respect to any legitimate reason for Magluta's
solitary confinement, we turn to the Complaint actually before us to evaluate the
allegations describing the alleged conditions of Magluta's solitary confinement
and the alleged purpose therefor. Magluta alleges in his Complaint that he spent
more than 500 days in administrative detention under conditions constituting
solitary confinement, namely that he was incarcerated in a "closet-size concrete
room" from which he was unable to communicate even with the other inmates on
his cellblock because his cell was closed by a "solid high security thick metal
door." See Complaint ¶ 39. Magluta alleges that at all pertinent times he was
confined to his cell, even during meals which were placed on trays and pushed
through the cell door. Id. ¶ 44. Magluta remained in his cell except for limited
social or legal visits. Id. ¶ 42. Magluta further alleges that he was not permitted
4
Magluta argues that it was error for the district court to go outside the language of
the Complaint in granting the motion to dismiss pursuant to Rule 12(b)(6). Because we have
examined the Original Complaint only for the purpose of ascertaining that the district court failed
to take all reasonable inferences in favor of Magluta, we have no need to address whether the
district court erred in looking at the Original Complaint at the 12(b)(6) stage. Accordingly, we
decline to address this argument. Rather, we turn to the Complaint to evaluate Magluta's
allegations, both with respect to the conditions of confinement and the purpose for same.
12
to have a job at USP Atlanta, not permitted to participate in joint sacrament and
prayer, not permitted to participate in educational classes, and not permitted to
participate in any programming with other pretrial detainees – all in violation of
the defendants' own governing rules which entitle pretrial detainees, even those in
administrative detention, to have the same rights and privileges as other inmates.
Id. ¶¶ 45-49. Magluta alleges that he was punished in violation of his Fifth
Amendment due process rights by this solitary confinement under the pretext of
ongoing administrative detention. Id. ¶¶ 16, 50. He alleges that it was
unreasonable for any official to believe that it was constitutional to hold him for
over 500 days in solitary confinement without any of the required hearings and
that the defendants' actions in doing so lacked good faith. Id. ¶¶ 35, 38. Such
actions, he alleged, were virtually unprecedented for pretrial detainees, id. ¶ 43,
and were egregious violations, id. ¶ 38.
Probably the most crucial factor pertinent to this claim is the Rule 12(b)(6)
posture. In this posture, we must take all reasonable inferences in favor of the
plaintiff, Magluta. As discussed immediately above, we must therefore infer that
Magluta was confined under extremely harsh conditions – in solitary confinement
(under conditions unlike other pretrial detainees or even convicted prisoners),
locked in an extremely small, closet-sized space, and with minimal contact with
13
other human beings for a prolonged time exceeding 500 days. And, as also
discussed above, we must accept the reasonable inference that these harsh
conditions were not imposed because of any concern about escape risks, but rather
were imposed solely for the sake of punishment and without any apparent reason
at all other than punishment, i.e., for no legitimate reason.5
We now apply the law to the foregoing facts that we must assume for
purposes of this appeal. As noted above, the Supreme Court in Bell v. Wolfish
held:
In evaluating the constitutionality of conditions or restrictions of
pretrial detention that implicate only the protection against
deprivation of liberty without due process of law, we think that the
proper inquiry is whether those conditions amount to punishment of
the detainee.
441 U.S. at 535, 99 S. Ct. at 1872. An intent to punish is sufficient. Id. at 538, 99
S. Ct. at 1873; McMillian, 88 F.3d at 1564. And an “intent to punish may be
inferred when a condition of pretrial detention is not reasonably related to a
legitimate governmental goal.” McMillian, 88 F.3d at 1564 (citing Bell v.
5
We emphasize the hypothetical nature of our holding in this case. If the
defendants at later stages of this litigation, e.g., at summary judgment, can establish that
legitimate reasons do in fact exist and/or the conditions of the confinement are not as harsh or
prolonged as alleged, then a different case will be presented. Additionally, although Magluta has
specifically alleged that he advised each defendant personally of the violations of his
constitutional rights only to be rebuffed, and that each had personal involvement in relevant
decisions, development of the record at summary judgment may reveal that one or more of the
defendants in fact had no personal involvement or liability.
14
Wolfish, 441 U.S. at 538, 99 S. Ct. at 1874). Because Magluta has made
allegations in his Complaint with sufficient specificity such that we must assume
for purposes of this appeal that the solitary confinement at issue here was imposed
for the purpose of punishment, and that there was no legitimate reason at all for
such confinement, we readily conclude that Magluta’s due process rights were
violated.
Finally, we conclude that the defendants would not be entitled to qualified
immunity with respect to this claim on the basis of the facts we must assume in
this appeal. In McMillian, we applied the principles of Bell v. Wolfish to a time
frame comparable to the time frame of the instant case, and held that they were
clearly established. McMillian, 88 F.3d at 1564-66. We held that “an intent to
punish suffices to show unconstitutional pretrial punishment,” and that an “intent
to punish may be inferred when a condition of pretrial detention is not reasonably
related to a legitimate governmental goal." Id. at 1564. In the instant case, as we
have noted above, we must assume that harsh, solitary confinement conditions
were imposed on Magluta (and not on other pretrial detainees or even convicted
prisoners) for a prolonged duration and for no reason at all except punishment, i.e.,
for no legitimate reason at all. Applying those facts to the principles of law which
McMillian held were clearly established, we cannot but conclude that defendants
15
would not be entitled to qualified immunity if Magluta can prove these facts.
B. Procedural Due Process and 28 C.F.R. § 541.22
Magluta’s second argument on appeal is that the district court erred in
dismissing his procedural due process claim. With respect to this claim, Magluta
argues that 28 C.F.R. § 541.22, which governs the Bureau's placement and review
of inmates in administrative detention,6 creates a
6
28 C.F.R. § 541.22 provides in full:
Administrative detention is the status of confinement of an inmate in a special housing unit in
a cell either by self or with other inmates which serves to remove the inmate from the general population.
(a) Placement in Administrative Detention. The Warden may delegate authority to place an
inmate in administrative detention to Lieutenants. Prior to the inmate's placement in
administrative detention, the Lieutenant is to review the available information and determine
whether the inmate's placement in administrative detention is warranted. The Warden may place
an inmate in administrative detention when the inmate is in holdover status (i.e., en route to a
designated institution) during transfer, or is a new commitment pending classification. The
Warden may also place an inmate in administrative detention when the inmate's continued
presence in the general population poses a serious threat to life, property, self, staff, other
inmates or to the security or orderly running of the institution and when the inmate:
(1) Is pending a hearing for a violation of Bureau regulations;
(2) Is pending an investigation of a violation of Bureau regulations;
(3) Is pending investigation or trial for a criminal act;
(4) Is pending transfer;
(5) Requests admission to administrative detention for the inmate's own protection, or staff
determines that admission to or continuation in administrative detention is necessary for the
inmate's own protection (see §§ 541.23); or
(6) Is terminating confinement in disciplinary segregation and placement in general
population is not prudent. The Segregation Review Official is to advise the inmate of this
determination and the reasons for such action.
(i) Except for pretrial inmates or inmates in a control unit program, staff ordinarily within 90
days of an inmate's placement in post-disciplinary detention shall either return the inmate to the
general inmate population or request regional level assistance to effect a transfer to a more
suitable institution.
(ii) The Assistant Director, Correctional Programs Division, shall review for purpose of
16
making a disposition, the case of an inmate not transferred from post-disciplinary detention
within the time frame specified in paragraph (a)(6)(i) of this section.
(iii) Staff in a control unit will attempt to adhere to the 90-day limit for an inmate's placement
in post-disciplinary detention. Because security needs required for an inmate in a control unit
program may not be available outside of post-discipline detention, the Warden may approve an
extension of this placement upon determining in writing that it is not practicable to release the
inmate to the general inmate population or to effect a transfer to a more suitable institution.
(iv) The appropriate Regional Director and the Assistant Director, Correctional Programs
Division, shall review (for purpose of making a disposition) the case of an inmate in a control
unit program not transferred from post-disciplinary detention within the 90-day time frame
specified in paragraph (a)(6)(iii) of this section. A similar, subsequent review shall be conducted
every 60-90 days if post-disciplinary detention continues for this extended period.
(b) Administrative Detention Order Detailing Reasons for Placement. The Warden shall
prepare an administrative detention order detailing the reasons for placing an inmate in
administrative detention, with a copy given to the inmate, provided institutional security is not
compromised thereby. Staff shall deliver this order to the inmate within 24 hours of the inmate's
placement in administrative detention, unless this delivery is precluded by exceptional
circumstances. An order is not necessary for an inmate placed in administrative detention when
this placement is a direct result of the inmate's holdover status.
(c) Review of Inmates Housed in Administrative Detention.
(1) Except as otherwise provided in paragraphs (c)(2) and (c)(3) of this section, the
Segregation Review Official will review the status of inmates housed in administrative detention.
The SRO shall conduct a record review within three work days of the inmate's placement in
administrative detention and shall hold a hearing and formally review the status of each inmate
who spends seven continuous days in administrative detention, and thereafter shall review these
cases on the record (in the inmate's absence) each week, and shall hold a hearing and review
these cases formally at least every 30 days. The inmate appears before the SRO at the hearing
unless the inmate waives the right to appear. A waiver may be in writing, signed by the inmate,
or if the inmate refuses to sign a waiver, it shall be shown by a memorandum signed by staff and
witnessed by a second staff member indicating the inmate's refusal to appear at the hearing. Staff
shall conduct a psychiatric or psychological assessment, including a personal interview, when
administrative detention continues beyond 30 days. The assessment, submitted to the SRO in a
written report, shall address the inmate's adjustment to surroundings and the threat the inmate
poses to self, staff and other inmates. Staff shall conduct a similar psychiatric or psychological
assessment and report at subsequent one-month intervals should detention continue for this
extended period. Administrative detention is to be used only for short periods of time except
where an inmate needs long-term protection (see §§ 541.23), or where there are exceptional
circumstances, ordinarily tied to security or complex investigative concerns. An inmate may be
kept in administrative detention for longer term protection only if the need for such protection is
documented by the SRO. Provided institutional security is not compromised, the inmate shall
receive at each formal review a written copy of the SRO's decision and the basis for this finding.
The SRO shall release an inmate from administrative detention when reasons for placement cease
17
protected liberty interest, and that his placement and continued confinement in
administrative detention in the absence of the notice, hearings, and periodic review
violated his procedural due process rights under the Fifth Amendment. The
district court did not address the constitutional issue – whether Magluta has
alleged conduct which violated his procedural due process rights. Instead, the
district court held that the law at the time did not clearly establish that § 541.22
created a liberty interest. For the reasons that follow, we conclude that the district
court erred in this determination; we conclude that the legal landscape as of the
to exist.
(2) The Warden shall designate appropriate staff to meet weekly with an inmate in
administrative detention when this placement is a direct result of the inmate's holdover status.
Staff shall also review this type of case on the record each week.
(3) When an inmate is placed in administrative detention for protection, but not at that
inmate's request, the Warden or designee is to review the inmate's status within two work days of
this placement to determine if continued protective custody is necessary. A formal hearing is to
be held within seven days of the inmate's placement (see §§ 541.23, Protection Cases).
(d) Conditions of Administrative Detention. The basic level of conditions as described in §§
541.21(c) for disciplinary segregation also apply to administrative detention. If consistent with
available resources and the security needs of the unit, the Warden shall give an inmate housed in
administrative detention the same general privileges given to inmates in the general population.
This includes, but is not limited to, providing an inmate with the opportunity for participation in
an education program, library services, social services, counseling, religious guidance and
recreation. Unless there are compelling reasons to the contrary, institutions shall provide
commissary privileges and reasonable amounts of personal property. An inmate in administrative
detention shall be permitted to have a radio, provided that the radio is equipped with ear plugs.
Exercise periods, at a minimum, will meet the level established for disciplinary segregation and
will exceed this level where resources are available. The Warden shall give an inmate in
administrative detention visiting, telephone, and correspondence privileges in accordance with
Part 540 of this Chapter. The Warden may restrict for reasons of security, fire safety, or
housekeeping the amount of personal property that an inmate may retain while in administrative
detention.
18
time of the conduct challenged here clearly established that § 541.22, as applied to
the alleged conditions of confinement, did give rise to a liberty interest.7
7
The crucial issue on this appeal, and at this stage of the litigation, is whether or
not § 541.22, as applied to the alleged conditions of confinement, gave rise to a liberty interest
such that Magluta would be entitled to due process protections. The defendants make a cursory,
alternative argument on appeal that, even if Magluta were entitled to the protection of a liberty
interest, he nevertheless received all the process he was due. However, the Complaint expressly
and unequivocally alleges that Magluta has received no periodic review. See Complaint ¶ 15
(“Over a period of time encompassing more than 500 days, plaintiff received no hearing or
meaningful review on any occasion by the named Defendants regarding his placement in the
hole, nor did he receive the process which was due him, in the context of his status.”); id. ¶ 19
(“Magluta did not receive any of the periodic hearings required by § 541.22(c)”); see also ¶¶ 11,
26, 28, 35. As noted above, we are required to accept Magluta’s allegations in the current Rule
12(b)(6) posture of this case. Accordingly, we must accept as true his allegation that he has
received no periodic review with respect to his solitary confinement for the 500 plus days
thereof. Because the due process required in this context does require “some sort of periodic
review of the confinement,” see Hewitt, 459 U.S. at 477 n.9, 103 S.Ct. at 874 n.9, our holding
that Magluta’s allegations would suffice to give him the protections of a liberty interest, coupled
with our holding that he has sufficiently alleged a deprivation of that liberty interest with respect
to periodic reviews, also means that Magluta has sufficiently alleged a constitutional violation, at
least with respect to periodic reviews.
We anticipate, of course, that the issue of whether Magluta received all the process he
was due will be hotly disputed on remand, both with respect to periodic reviews and with respect
to Magluta’s other challenges to the sufficiency of the process afforded him. Because we must in
any event remand because of our holding that Magluta has sufficiently alleged a deprivation of a
liberty interest with respect to periodic reviews, we decline to address the several other
challenges mounted by Magluta to the sufficiency of the process afforded him. In this regard, we
note that the procedural requirements set out in the regulation are not themselves constitutional
mandates. Notably, the Supreme Court in Hewitt did not hold that all of the procedures
mandated by the Pennsylvania statute and regulation which triggered the liberty interest were
constitutionally required. Rather, after holding that the Pennsylvania regulations triggered a
liberty interest, id. at 469-72, 103 S.Ct. at 870-71, the Court embarked upon an analysis pursuant
to Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976). After weighing the relevant private
interests against the relevant governmental interests and the value of additional procedural
requirements, the Court concluded that fairly minimal due process was required. Hewitt, 459
U.S. at 472-77, 103 S.Ct. at 871-74. Indeed, it is clear that in Hewitt, the Court required
considerably less process as a constitutional matter than was required in the Pennsylvania
regulations at issue there. See id. at 471 n.6, 495 n.27, 103 S.Ct. at 871 n.6, 884 n.27; accord
Sheley v. Dugger, 833 F.2d 1420 (11th Cir. 1987) (following the Hewitt analysis and applying the
Mathews v. Eldridge three-part test to determine the process due rather than looking to the very
19
At the time of the relevant conduct in the instant case, the determination of
whether a prison regulation had created a liberty interest protected by the Due
Process Clause was governed by the "mandatory language" analysis used by the
Supreme Court in Hewitt v. Helms, 459 U.S. 472, 130 S.Ct. 864 (1983). In
Hewitt, the Supreme Court found that the State of Pennsylvania, in enacting
regulations for the use of administrative detention, had created a liberty interest in
being confined to a general population cell, rather than the more austere and
restrictive administrative segregation quarters. Id. at 471-72, 103 S.Ct. at 871. In
so holding, the Supreme Court focused on the "unmistakably mandatory character"
of the language used in the regulations, "requiring that certain procedures 'shall,'
'will,' or 'must' be employed ... and that administrative segregation ... not occur
absent specified substantive predicates." Id. The Court was "persuaded that the
repeated use of explicit mandatory language in connection with requiring specific
substantive predicates demands a conclusion that the State has created a protected
liberty interest." Id.
We applied the Hewitt analysis in Sheley v. Dugger, 833 F.2d 1420 (11th
detailed Florida regulations, but also noting that solitary confinement for an extended period of
time can be a relevant concern); see also Brown v. Frey, 889 F.2d 159, 166 (8th Cir. 1989) ("The
Hewitt Court did not hold that the minimum requirements of the Constitution require adherence
to the state statute."); Black v. Parke, 4 F.3d 442, 448 (6th Cir. 1993) ("There is no constitutional
violation when state actors fail to meet their own regulations, so long as the minimum
constitutional requirements have been met.").
20
Cir. 1987) and McQueen v. Tabah, 839 F.2d 1525 (11th Cir. 1988), in holding that
the mandatory language and substantive predicates in the Florida Department of
Corrections' rules and regulations concerning administrative segregation and close
management created a liberty interest for inmates in remaining in the general
prison population. In equating the Florida Department of Corrections' rules to
those at issue in Hewitt, we stated:
The administrative confinement rules, for example, provide that an
inmate can be placed in administrative confinement only for certain
reasons: if "disciplinary charges or criminal charges" are pending
against the inmate and the "presence of the inmate in the general
population would present a clear danger;" if an "investigation is
pending and the presence of the inmate in the general prison
population might interfere with that investigation;" if the inmate
would create a risk because of medical (including psychiatric) reasons;
or if the "facts clearly indicate that the inmate must be removed from
the general inmate population for the safety of any [persons] or for the
security of the institution." Fla.Admin.Code Ann. §§ 33-3.0081(a)(a)-
(d) (Supp.1985). The rules also state that: "administrative confinement
shall be for the shortest period of time necessary," id. at §§ 33- 3.0081
(3) (emphasis added); the reason for placement "shall be explained to
the inmate, and he shall be given an opportunity to present his views,"
id. at §§ 33-3.0081(4)(a) (emphasis added); and a "formal evaluation
report shall be required" if the inmate is kept in administrative
confinement for more than thirty days, id. at §§ 33-3.0081(6)(a)
(emphasis added). Likewise, the close management rules provide that
an "inmate placed in [CM] shall be given a hearing" before a review
team, id. at §§ 33-3.0083(4)(a) (emphasis added); that the review team
"shall inform the inmate of the basis for its decision," id. at §§ 33-
3.0083(4)(b) (emphasis added); that a "formal evaluation report is
required on inmates in [CM] each 30 days," id. at §§ 33-3.0083(6)(d);
and that the "goal of the Close Management Review Team shall be
21
toward returning the inmate to open population as soon as the facts
of the case suggest it can be safely done," id. at §§ 33-3.0083(6)(e)
(emphasis added).
Sheley, 833 F.2d at 1424; see also McQueen, 839 F.2d at 1525.
Our review of § 541.22 convinces us that it contains substantive predicates
and mandatory language extremely similar to those State regulations at issue in
Hewitt and Sheley that were found to create a liberty interest. The substantive
predicates for administrative detention are specifically provided in § 541.22(a).
Under § 541.22(a), a warden may place an inmate in administrative detention
when the inmate's presence in the general population poses a serious threat to the
"life, property, self, staff, other inmates or to the security or orderly running of the
institution;" when the inmate requests such detention for his or her own protection,
or the staff determines that such detention is necessary for the inmate's own
protection; when the inmate is pending an investigation or adjudication for the
violation of a Bureau regulation or a criminal act; or when the inmate is in
holdover status pending transfer or a new commitment pending classification.
Thus § 541.22 contains similar substantive predicates to those in Sheley which
included, inter alia, pending disciplinary charges or criminal charges against the
inmate and the safety concerns of any individual or the security of the institution.
Sheley, 833 F.2d at 1424.
22
Likewise, § 541.22 contains mandatory language exactly like the regulation
at issue in Sheley. The Florida regulation stated that "administrative confinement
shall be for the shortest period of time necessary," and mandated a number of
formal and informal reviews at various time intervals. Id. Section 541.22(c)(1)
states that the appropriate officer "shall release an inmate from administrative
detention when reasons for the placement cease to exist." Section 541.22(b)
mandates that "the Warden shall prepare an administrative detention order
detailing the reasons for placing an inmate in administrative detention," and that
the "[s]taff shall deliver this order to the inmate within 24 hours of the inmate's
placement in administrative detention." Further, § 541.22(c)(1) provides that the
Segregation Review Official "shall conduct a record review within three work
days of the inmate's placement in administrative detention and shall hold a hearing
and formally review the status of each inmate who spends seven continuous days
in administrative detention, and thereafter shall review these cases on the record
(in the inmate's absence) each week, and shall hold a hearing and review these
cases formally at least every 30 days." Section 541.22(c)(1) further indicates that
the inmate has the right to appear at the above hearing. Additionally, §
541.22(c)(1) mandates that the "[s]taff will conduct a psychiatric or psychological
assessment, including a personal interview, when administrative detention
23
continues beyond 30 days." Finally, § 541.22(a)(6) mandates further procedures
and approvals necessary for placements in administrative detention exceeding
ninety days, including review by the Regional Director and the Assistant Director
of the Correctional Programs Division.
We conclude that the substantive predicates and extensive use of mandatory
language in § 541.22 would create a liberty interest in remaining in the general
prison population under the analysis used by the Supreme Court in Hewitt and by
this Court in Sheley and McQueen. This analysis was applicable at the time of the
challenged conduct in the instant case.
However, after the challenged conduct took place, the Supreme Court
expressly abandoned Hewitt's methodology.8 See Sandin v. Conner, 515 U.S. 472,
483 n.5, 115 S. Ct. 2293, 2300 n.5 (1995). The Supreme Court stated that "the
search for a negative implication from mandatory prison regulations has strayed
from the real concerns undergirding the liberty protected by the Due Process
Clause." Id. The Court then stated:
States may under certain circumstances create liberty interests which
are protected by the Due Process Clause. But these interests will be
8
Magluta alleges that his solitary confinement included the period of time from
October 1993 until he was transferred from USP Atlanta on April 14, 1995. See Complaint ¶¶
10-11. The Supreme Court decided Sandin on June 19, 1995, two months after all of the
challenged conduct had ceased.
24
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.
Id. at 483-84, 115 S. Ct. at 2300 (citation omitted). Applying this standard, the
Supreme Court determined that the Hawaii prison regulation at issue in Sandin did
not give rise to a protected liberty interest upon the plaintiff/prisoner's transfer to
disciplinary confinement. Id. at 487, 115 S. Ct. at 2302. The Supreme Court
specifically stated:
[The prisoner's] confinement did not exceed similar, but totally
discretionary, confinement in either duration or degree of restriction.
Indeed, the conditions at [the prison] involve significant amounts of
"lockdown time" even for inmates in the general population. Based
on a comparison between inmates inside and outside disciplinary
segregation, the State's action in placing him there for 30 days did
not work a major disruption in his environment.
Id. at 486, 115 S. Ct. at 2301.
There would be no liberty interest and no constitutional violation in the
instant case if the Sandin "atypical and significant hardship" standard were not
met. However, we conclude that Magluta's allegations would support the finding
of a liberty interest under the new Sandin standard; thus we conclude that Sandin
does not operate to erode the existence of a liberty interest which was indicated by
the state of the law as of the time of the conduct at issue. Again, the Rule 12(b)(6)
25
posture of this case requires us to take all reasonable inferences in favor of
Magluta. Therefore, we must infer that Magluta was confined under extremely
harsh conditions – in solitary confinement (under conditions unlike other pretrial
detainees or even convicted prisoners), locked in an extremely small, closet-sized
space, and with minimal contact with other human beings for a prolonged time
exceeding 500 days. The conditions of confinement as alleged amount to an
atypical and significant hardship as compared to the ordinary incidents of
imprisonment to be expected by a pretrial detainee. Therefore, we conclude that
Magluta has alleged the protection of a liberty interest under either the Hewitt or
the Sandin standard.9
Having determined that Magluta’s allegations, if true, establish a liberty
interest, and a constitutional violation in the absence of due process, we turn to the
question of whether the district court erred in concluding that the defendants were
9
The presence of a constitutional violation under either standard distinguishes this
case from Crowder v. True, 74 F.3d 812 (7th Cir. 1996). In Crowder, the Seventh Circuit
reviewed a similar due process claim based upon
§ 541.22. The district court there found a liberty interest applying the Hewitt analysis. Id. at
814. Thereafter, the Supreme Court decided Sandin. Id. Relying on Sandin, the Seventh Circuit
disagreed with the district court and found no liberty interest, because the conditions while
burdensome were still within the normal range and limits of custody, and thus did not represent
an atypical and significant hardship. Id. at 814-15. Because the court found no constitutional
violation, it did not reach the qualified immunity issue. Id. at 815.
By contrast, in the instant case, Magluta has alleged significant and atypical hardships
such that, even under the more strict Sandin test, a liberty interest was clearly created.
26
entitled to qualified immunity. The district court granted qualified immunity
based upon its determination that at the time in question – October 1993 through
April 1995 – clearly established federal law did not show that the solitary
confinement of a pretrial detainee implicated a pretrial detainee’s due process
rights. We conclude that the district court erred in this determination.
For a constitutional right to be clearly established, its contours must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right. Hope v. Pelzer, 536 U.S. 736, 739, 122 S.Ct. 2508, 2515
(2002). The very action in question does not have to have been found unlawful,
but in light of pre-existing law the unlawfulness must be apparent. Id. The salient
question is whether the state of the law at the time of the violation gave the
officials fair warning that their alleged actions were unconstitutional. Id. at 741,
122 S.Ct. at 2516. In the instant case, we conclude that ample federal law existed
at the time of the challenged conduct to give fair warning to the defendants that it
was unconstitutional to hold Magluta in solitary confinement for 500 days for the
purpose of punishment and with virtually no procedural protection in the form of
periodic reviews.
In Hewitt, the Supreme Court, focusing on the substantive predicates and
"language of an unmistakably mandatory character," determined that the State of
27
Pennsylvania had created a liberty interest with respect to remaining in the general
prison population. Hewitt, 459 U.S. at 471-72, 103 S.Ct. at 871. The Supreme
Court apparently included the most relevant portions of the Pennsylvania
regulations in a footnote to the opinion. Id. at 471 n.6, 103 S. Ct. at 871 n.6.
Section 541.22, at issue in the instant case, requires that much greater procedural
protections "shall," "will," or "must" be employed, and contains substantive
predicates giving prison officials even less discretion, than the Pennsylvania
regulation at issue in Hewitt. See id.; 28 C.F.R. § 541.22. The Supreme Court
having found a liberty interest on the basis of the lesser procedural protections at
issue there, we can apply the Hewitt methodology to the greater protections and
more clearly mandatory regulations at issue here, and conclude a fortiori that §
541.22 creates a liberty interest on these facts.
Moreover, in both Sheley in 1987 and McQueen in 1988, we recognized a
protected liberty interest created from a Florida regulation governing
administrative detention. As previously discussed, that Florida regulation was
extremely similar to § 541.22 at issue in the instant case in that both provide very
similar substantive predicates for administrative confinement, both mandate very
similar notice and review procedures, and both express these requirements with
the repeated use of terms like "shall." See Sheley, 833 F.2d at 1424-25; McQueen,
28
839 F.2d at 1527-29; 28 C.F.R. § 541.22.
Therefore, even though this Court has not specifically held that § 541.22
created a protected liberty interest, the defendants had fair and clear warning from
the Supreme Court's holding in Hewitt and our holdings in Sheley and McQueen
that their actions in holding Magluta in solitary confinement for 500 days for no
legitimate purpose and without any periodic review violated his constitutional
rights. The district court erred in failing to recognize that these precedents clearly
established a liberty interest in this case.
We recognize that the finding of a liberty interest in Hewitt, Sheley and
McQueen was premised upon the "mandatory language" methodology for
determining whether a protected liberty interest exists, and that the Supreme Court
expressly abandoned the Hewitt "mandatory language" methodology in Sandin in
favor of the atypical and significant hardship test. Sandin, 515 U.S. at 484 n.5,
115 S.Ct. at 2300 n.5. However, Sandin was decided in June 1995, two months
after the relevant period in the instant case ended. Hewitt, Sheley and McQueen
provided the defendants fair warning that their actions in holding Magluta in
solitary confinement violated Magluta's constitutional rights at the time those
actions were taking place. Although the result in this case would be different if
the new Sandin methodology indicated no constitutional violation at all -- the fair
29
warning or qualified immunity issue would then be moot -- the subsequent change
in methodology does not in this case erode the fact that Magluta's constitutional
rights were clearly established at the pre-Sandin time of the challenged conduct.
See Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038 (1987);
Tellier v. Fields, 280 F.3d 69, 80 n.4 (2d Cir. 2001). Therefore, while the
methodology utilized to determine whether there was a liberty interest and
constitutional violation may have subsequently changed, the outcome of that
determination remained the same under the facts as alleged here, and the
defendants had fair warning at the time of the alleged violation that their actions
were violating Magluta's constitutional rights, at least with respect to periodic
review.10
IV. CONCLUSION
10
The district court erred in thinking that cases from outside the circuit had eroded
the clearly-established law as articulated by the Supreme Court and the case law of this circuit.
Even if the case law from outside the circuit could thus affect our clearly-established law, the
cases referred to by the district court have no such effect. Crowder v. True, 74 F.3d 812 (7th Cir.
1996), cannot be relied upon to indicate a lack of clearly-established law here. There the Seventh
Circuit never reached the qualified immunity issue, because it concluded that there was no
constitutional violation at all. Id. at 815. Also inapposite is Rapier v. Harris, 172 F.3d 999 (7th
Cir. 1999). That case focused upon the different Bell v. Wolfish issue of whether there was an
intent to punish; moreover, that case apparently involved no argument that some statute or
regulation triggered a liberty interest. The only published circuit court decision addressing this
issue held, as we do, that § 541.22 and the relevant case law clearly establish a liberty interest
when the confinement at issue represents an atypical and significant hardship. See Tellier v.
Fields, 280 F.3d 69 (2d Cir. 2001). Although the crucial error of the district court was its failure
to recognize the clear precedential force of Hewitt, Sheley, and McQueen, the court also erred in
relying on inapposite cases to suggest a lack of consensus with respect to the law.
30
For the foregoing reasons, we affirm the judgment of the district court with
respect to all of Magluta's claims,11 except his due process claim of intentional
punishment of a pretrial detainee and his procedural due process claim premised
upon the presence of a liberty interest. With respect to those claims, we vacate the
judgment of the district court and remand for further proceedings, noting however,
that due to the Rule 12(b)(6) procedural posture of the case, we have accepted the
facts as alleged in the complaint as true and have reviewed them most favorably to
Magluta. We voice no opinion as to whether further development of the record
will permit the defendants to reassert their qualified immunity defense or require
some other disposition of Magluta's claims.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
11
See supra note 2.
31