United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 6, 1999 Decided July 30, 1999
No. 96-7247
Donald J. Hatch,
Appellant
v.
District of Columbia, et al.,
Appellees
---------
Appeal from the United States District Court
for the District of Columbia
(No. 94cv01393)
---------
Donald J. Hatch was on the briefs for appellant.
J. Alexander Ward, appointed by the court, argued the
cause and filed the briefs as amicus curiae on behalf of
appellant.
Mary L. Wilson, Assistant Corporation Counsel, argued
the cause for appellees. With her on the brief were John M.
Ferren, Corporation Counsel, and Charles L. Reischel, Depu-
ty Corporation Counsel.
Before: Silberman, Williams and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Under Sandin v. Conner, segre-
gative confinement in prison implicates a liberty interest
protected by the Due Process Clause of the United States
Constitution only if it "imposes atypical and significant hard-
ship on the inmate in relation to the ordinary incidents of
prison life." 515 U.S. 472, 484 (1995). In this case brought
by a Lorton inmate claiming a liberty interest in avoiding
such confinement, we must define "the ordinary incidents of
prison life"--the comparative baseline for determining wheth-
er appellant's segregation was an "atypical and significant
hardship." Considering Sandin's language and objectives,
we hold that due process is required when segregative con-
finement imposes an "atypical and significant hardship" on an
inmate in relation to the most restrictive conditions that
prison officials, exercising their administrative authority to
ensure institutional safety and good order, routinely impose
on inmates serving similar sentences. For appellant, these
conditions include the usual conditions of administrative seg-
regation at Lorton. They also include more restrictive condi-
tions at other prisons if it is likely both that inmates serving
sentences similar to appellant's will actually be transferred to
such prisons and that once transferred they will actually face
such conditions. Because the district court did not apply this
standard, we reverse its grant of summary judgment for
appellee and remand for further consideration of appellant's
due process claim in light of this opinion.
I
Appellant Donald Hatch is a District of Columbia convict
serving multiple sentences for armed robbery, kidnapping,
sodomy, and rape. The events giving rise to this suit oc-
curred while Hatch was an inmate at the Lorton Correctional
Complex. Because the district court granted summary judg-
ment for the District, we describe the facts in the light most
favorable to Hatch. See Fed. R. Civ. P. 56(c); DeGraff v.
District of Columbia, 120 F.3d 298, 299-300 (D.C. Cir. 1997).
On January 5, 1994, while working as head clerk at Lor-
ton's law library, Hatch got into a fight with another prisoner
over the use of a copy machine. Immediately after the
incident, the prison Housing Board, which "determine[s] ap-
propriate housing placement" to ensure prison safety and
security, D.C. Mun. Regs. tit. 28, s 522.1 (1987), assigned
Hatch to administrative segregation, a form of solitary con-
finement commonly used to separate disruptive prisoners. In
addition, Hatch received a disciplinary report charging him
with fighting, lack of cooperation, and creating a distur-
bance--all "Class II" offenses under Lorton regulations. See
id. ss 503.1, 503.4, 503.5, 503.11.
On January 11, Hatch appeared before the prison Adjust-
ment Board, which adjudicates charged offenses and imposes
disciplinary penalties. See id. ss 508-515. Due to a mistake
in the disciplinary report, the Adjustment Board dismissed all
charges. The next day, the Housing Board met to consider
Hatch's confinement. Finding that Hatch posed a threat to
the orderly operation of the prison, the Housing Board rec-
ommended that he remain in administrative segregation.
Hatch had no notice of the Housing Board meeting, did not
attend the meeting, and had no opportunity to testify or
present evidence.
On January 20, the Adjustment Board, which had previous-
ly dismissed the charges against Hatch, met again to consider
the same charges. The Adjustment Board denied Hatch's
requests to speak on his own behalf, to cross-examine adverse
witnesses, and to call witnesses, including the writer of the
disciplinary report. The Board acquitted him of creating a
disturbance and lack of cooperation, but found him guilty of
fighting. It sentenced him to fourteen days of adjustment
segregation, another form of solitary confinement which, un-
like administrative segregation, punishes individual inmates
for specific, proven acts of misconduct.
On March 21, the Housing Board, as required by Lorton
regulations, see id. s 527.1, conducted a sixty-day review of
Hatch's status. Determining that Hatch no longer presented
a "management problem," it recommended that he be re-
turned to the prison's general population. Supervising offi-
cials approved this recommendation in early April, but Hatch
remained in segregation until August 11--more than seven
months after his initial placement in segregation. The Dis-
trict offers no explanation for this delay. Hatch claims that
Lorton officials kept him in segregation because bed space
was unavailable in the general population.
Although Hatch's confinement consisted of two weeks of
adjustment segregation and twenty-nine weeks of administra-
tive segregation, the conditions of his confinement remained
basically the same throughout the seven months. Confined to
his cell twenty-three and a half hours per day on weekdays
and all forty-eight hours of the weekend, Hatch had no
outdoor recreation and was not allowed to work or to visit the
library, gym, health clinic, psychological services, mailroom,
clothing and bedding exchange, or culinary unit. He had no
access to a dentist despite four written requests to have a
broken, decayed tooth extracted. He had no opportunity to
wash his clothes or get a haircut. Whenever he left the cell
block, he was transported in handcuffs and leg irons. Prison
officials confiscated his legal papers and denied him access to
legal telephone calls for ninety days.
On June 24, while still in administrative segregation, Hatch
filed suit against the District of Columbia in the United
States District Court, alleging that his confinement in adjust-
ment and administrative segregation violated the Due Process
Clause of the U.S. Constitution as well as D.C. regulations
governing Lorton. The District moved to dismiss or, alterna-
tively, for summary judgment. After requesting additional
briefing on the conditions of Hatch's confinement, the district
court granted summary judgment for the District. See Hatch
v. District of Columbia, No. 94-1393 (D.D.C. Oct. 11, 1996)
("Mem. Order"). Applying Sandin v. Conner and assuming
Hatch's description of his confinement to be true, the court
determined that he "did not suffer an 'atypical and significant
hardship' " compared to "the typical restrictions imposed on
prisoners in the general population." Mem. Order at 5. It
thus concluded that under Sandin, Hatch had no liberty
interest in avoiding either adjustment or administrative seg-
regation. See id. at 5-6.
Hatch appeals pro se, aided by court-appointed counsel who
filed briefs and argued the case as amicus curiae. Our review
is de novo. See Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.
1994).
II
Sandin v. Conner represents the culmination of a twenty-
year effort by the Supreme Court to clarify when restrictions
imposed by prison officials on lawfully incarcerated inmates
constitute deprivations of "liberty" within the meaning of the
Due Process Clause. Two basic principles have guided the
Court's effort. The first is that prison officials need "broad
administrative and discretionary authority over the institu-
tions they manage." Hewitt v. Helms, 459 U.S. 460, 467
(1983). Recognizing the difficulty and complexity of operat-
ing safe and effective prisons, as well as the expertise of
prison officials, the Supreme Court has repeatedly instructed
federal courts "to afford appropriate deference and flexibility
to state officials trying to manage a volatile environment."
Sandin, 515 U.S. at 482 (citing cases); see also Hewitt, 459
U.S. at 470 ("[T]he safe and efficient operation of a prison on
a day-to-day basis has traditionally been entrusted to the
expertise of prison officials...."); Jones v. North Carolina
Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977) (re-
quiring courts to "giv[e] appropriate deference to the deci-
sions of prison administrators and appropriate recognition to
the peculiar and restrictive circumstances of penal confine-
ment"). Accordingly, the Supreme Court has refused to
" 'subject to judicial review a wide spectrum of discretionary
actions that traditionally have been the business of prison
administrators rather than of the federal courts,' " Hewitt,
459 U.S. at 467 (quoting Meachum v. Fano, 427 U.S. 215, 225
(1976)), making clear that the " 'withdrawal or limitation of
many privileges and rights' " of prisoners is " 'justified by the
considerations underlying our penal system,' " id. (quoting
Price v. Johnston, 334 U.S. 266, 285 (1948)).
While recognizing the need to protect prison administra-
tors' discretion and flexibility, the Supreme Court has made
equally clear a second, countervailing principle: "[T]hough his
rights may be diminished by the needs and exigencies of the
institutional environment, a prisoner is not wholly stripped of
constitutional protections when he is imprisoned for crime."
Wolff v. McDonnell, 418 U.S. 539, 555 (1974). "There is no
iron curtain," Wolff said, "drawn between the Constitution
and the prisons of this country." Id. at 555-56. The consti-
tutional protections retained by prisoners include those af-
forded by the Due Process Clause against arbitrary depriva-
tions of "liberty." Some protected liberty interests flow
directly from the Due Process Clause itself. See, e.g., Wash-
ington v. Harper, 494 U.S. 210, 221-22 (1990). Others are
created by state laws regulating the terms or conditions of a
prisoner's confinement. See, e.g., Board of Pardons v. Allen,
482 U.S. 369, 376 (1987). State-created liberty interests--the
focus of this case--have their origins in Wolff, where the
Supreme Court held that a Nebraska prisoner had a constitu-
tionally protected liberty interest in retaining good-time cred-
its because Nebraska law "not only provided a statutory right
to good time but also specifies that it is to be forfeited only
for serious misbehavior." 418 U.S. at 557; see id. at 545-53
(discussing Nebraska statutes and prison regulations). Not-
ing that "the prisoner's interest has real substance," id. at
557, Wolff concluded that "a person's liberty is ... protected,
even when the liberty itself is a statutory creation of the
State" because "[t]he touchstone of due process is protection
of the individual against arbitrary action of government." Id.
at 558 (citing Dent v. West Virginia, 129 U.S. 114, 123 (1889)).
Consistent with Wolff, we have recognized that D.C. prison
regulations may give rise to constitutionally protected liberty
interests. See, e.g., Ellis v. District of Columbia, 84 F.3d
1413, 1415 (D.C. Cir. 1996).
The difficult question in a case such as this is how to
reconcile the two principles at work in Sandin--that is, how
do we define the range of state-created liberty interests
protected by due process without unduly constricting man-
agement prerogatives of prison officials? Prior to Sandin,
courts struck the balance by recognizing liberty interests
where state laws or regulations contained explicit language
circumscribing official authority to alter the conditions of a
prisoner's confinement. The key case was Hewitt v. Helms,
supra, where a Pennsylvania inmate challenged the adequacy
of proceedings that resulted in his confinement in administra-
tive segregation after a prison riot. While observing that
administrative segregation does not implicate "an interest
independently protected by the Due Process Clause," 459
U.S. at 468, Hewitt found that the prisoner had a protected
liberty interest in avoiding such segregation because state law
"require[d] that certain procedures 'shall,' 'will,' or 'must' be
employed and that administrative segregation will not occur
absent specified substantive predicates--viz., 'the need for
control,' or 'the threat of a serious disturbance,' " id. at 471-
72 (quoting 37 Pa. Code s 95.103(b)(3) (1971)). "[T]he re-
peated use of explicitly mandatory language in connection
with requiring specific substantive predicates," Hewitt ex-
plained, "demands a conclusion that the State has created a
protected liberty interest." Id. at 472.
Twelve years later, Sandin abandoned Hewitt's approach
for two reasons. First, by "encourag[ing] prisoners to comb
regulations in search of mandatory language on which to base
entitlements to various state-conferred privileges," the Court
said, Hewitt's methodology "creates disincentives for States
to codify prison management procedures in the interest of
uniform treatment." Sandin, 515 U.S. at 481, 482. Second,
the Court said that "the Hewitt approach has led to the
involvement of federal courts in the day-to-day management
of prisons, often squandering judicial resources with little
offsetting benefit to anyone." Id. at 482. Citing cases where
prisoners claimed liberty interests in, among other things,
"receiving a tray lunch rather than a sack lunch," id. at 483
(citing Burgin v. Nix, 899 F.2d 733, 735 (8th Cir. 1990)),
"receiving a paperback dictionary," id. (citing Spruytte v.
Walters, 753 F.2d 498, 506-08 (6th Cir. 1985)), and "not being
placed on [a] food loaf diet," id. (citing United States v.
Michigan, 680 F. Supp. 270, 277 (W.D. Mich. 1988)), Sandin
made clear that "the fine-tuning of the ordinary incidents of
prison life" is a task for prison officials, not federal courts.
Id.
Although Sandin rejected Hewitt's methodology, it contin-
ued to "[f]ollow[ ] Wolff [in] recogniz[ing] that States may
under certain circumstances create liberty interests which are
protected by the Due Process Clause." Id. at 483-84. Criti-
cally, however, the Court refocused the test for identifying
state-created liberty interests on what it considered "the real
concerns undergirding the liberty protected by the Due Pro-
cess Clause," id. at 483--namely, whether the state had
deprived the prisoner of "an interest of 'real substance,' " id.
at 480 (quoting Wolff, 418 U.S. at 557). Sandin declared that
state-created liberty interests
will be generally limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process
Clause of its own force, nonetheless imposes atypical and
significant hardship on the inmate in relation to the
ordinary incidents of prison life.
Id. at 484 (citations omitted). Sandin thus "shift[ed] the
focus of the liberty interest inquiry" from "the language of a
particular regulation" to "the nature of the deprivation," id. at
481, or, as the Seventh Circuit put it, "from whether there
was an entitlement [conferred by the state] to whether the
entitlement was to some meaningful amount of liberty," Wag-
ner v. Hanks, 128 F.3d 1173, 1173 (7th Cir. 1997).
Although clear in its intent, Sandin's test for identifying
liberty interests protected by the Due Process Clause has
proven easier to articulate than to apply. See Brown v.
Plaut, 131 F.3d 163, 170 (D.C. Cir. 1997) (identifying "a
number of unsettled questions about how to apply Sandin").
The central difficulty in determining whether segregative
confinement "imposes atypical and significant hardship on the
inmate" is how to characterize the comparative baseline--i.e.,
how to define "the ordinary incidents of prison life." Two of
our sister circuits have looked to conditions in the general
prison population as the comparative baseline. See Beverati
v. Smith, 120 F.3d 500, 504 (4th Cir. 1997); Keenan v. Hall,
83 F.3d 1083, 1089 (9th Cir. 1996). Two other circuits have
looked to the typical conditions of administrative segregation.
See Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997);
Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997). Taking a
different approach, the Seventh Circuit has defined the base-
line as the conditions of non-disciplinary segregation in a
state's most restrictive prison. See Wagner, 128 F.3d at 1175.
According to the Fifth Circuit, segregation never implicates a
liberty interest unless it lengthens a prisoner's sentence. See
Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997). The
remaining circuits have applied Sandin's "atypical and signifi-
cant hardship" test, but without characterizing the compara-
tive baseline. See Bass v. Perrin, 170 F.3d 1312, 1318 (11th
Cir. 1999); Perkins v. Kansas Dep't of Corrections, 165 F.3d
803, 809 (10th Cir. 1999); Mackey v. Dyke, 111 F.3d 460, 463
(6th Cir. 1997); Kennedy v. Blankenship, 100 F.3d 640, 642
(8th Cir. 1996); Dominique v. Weld, 73 F.3d 1156, 1160 (1st
Cir. 1996).
We too faced this issue in Brown v. Plaut, supra, another
due process case brought by a Lorton prisoner challenging
his placement in administrative segregation. But there we
found it unnecessary to decide the "difficult and unsettled
questions of constitutional law" implicated by Sandin. 131
F.3d at 165. Instead, we remanded the case to the district
court to "decide, first, assuming that [the prisoner] had a
liberty interest in avoiding administrative segregation, wheth-
er he received all the process that he was due." Id. at 172.
"If he did," we said, "that will be the end of the matter." Id.
Consistent with Brown, the District claims that assuming
Hatch had a liberty interest in avoiding segregative confine-
ment, Lorton officials afforded him the process he was due.
Based on the record before us, we disagree.
The parties in this case agree that if Hatch had a liberty
interest in avoiding administrative segregation, then Hewitt
specifies the minimum procedures for placing him in such
confinement. Those procedures include "some notice of the
charges against him and an opportunity to present his views
to the prison official charged with deciding whether to trans-
fer him to administrative segregation." Hewitt, 459 U.S. at
476; see Brown, 131 F.3d at 171. Although a hearing need
not occur prior to confinement in administrative segregation,
it "must occur within a reasonable time following an inmate's
transfer." Hewitt, 459 U.S. at 476 n.8. We said in Brown
that these "requirements are not elaborate, but they are real,
and must be strictly complied with." 131 F.3d at 171.
Hatch alleges in his pro se complaint that he received no
notice of the January 12, 1994 Housing Board hearing, that
he was not allowed to attend the hearing, and that he had no
opportunity to present witnesses or evidence. The District
nowhere disputes these allegations, arguing instead that a
subsequent exchange of letters between Hatch and Lorton
officials afforded him due process under Hewitt. See 459
U.S. at 476 (noting that "[o]rdinarily a written statement by
the inmate" will suffice to allow him to present his views).
The record provides no support for the District's claim. The
first acknowledgment of Hatch's letters by a prison official
did not occur until February 28, over seven weeks after his
initial placement in administrative segregation and over six
weeks after the Housing Board hearing which Hatch did not
attend--hardly "a reasonable time following [his] transfer."
Id. at 476 n.8. Moreover, nothing in the record shows that
prison officials even considered the claims Hatch raised in his
letters. The facts of this case are thus unlike those in
Hewitt, where the Supreme Court found that a prisoner
assigned to administrative segregation for misconduct had
received due process because he "had an opportunity to
present a statement to [prison officials]" at a hearing "five
days after his transfer," id. at 477, and because he " 'had the
opportunity to have [his] version reported as part of the
record,' " id. (quoting prisoner's statement on misconduct
report).
With respect to his placement in adjustment segregation,
Hatch argues that assuming he had a liberty interest in
avoiding such confinement, then he was entitled to the more
elaborate protections specified in Wolff, which include the
opportunity "to call witnesses and present documentary evi-
dence in his defense." 418 U.S. at 566. Disagreeing with
Hatch, the District claims that Wolff is inapplicable because
that case involved an inmate's loss of good-time credits, a
deprivation more substantial than Hatch's segregative con-
finement. We need not decide the applicability of Wolff,
however, because we think it safe to say that whatever
procedures are required for placing an inmate in disciplinary
segregation (again, assuming a liberty interest in avoiding
such confinement), they must at least encompass the Hewitt
procedures that the District says are required for placing an
inmate in administrative segregation. The record in this case
shows that Lorton officials failed to meet those standards, i.e.,
they gave Hatch no "opportunity to present his views to the
prison official charged with deciding whether to transfer him
to ... segregation." 459 U.S. at 476. According to Hatch's
complaint, at the January 20, 1994 Adjustment Board hear-
ing, he "was not allowed to have any witnesses, ... was not
allowed to have the writer of the [disciplinary] report present,
to testify, [and] was [not] allowed to give any testimony on
the record." Amended Compl. at 1. The District challenges
none of these allegations.
The District claims that the availability of habeas corpus in
the D.C. courts satisfies Hewitt's procedural requirements.
But we doubt that resolution of a habeas claim would "occur
within a reasonable time following an inmate's transfer" to
segregation, as Hewitt requires. 459 U.S. at 476 n.8. More-
over, given Sandin's emphasis on preserving the administra-
tive authority of prison officials, we are reluctant to shift
primary responsibility for ensuring compliance with the Due
Process Clause from Lorton administrators to D.C. judges.
Thus, because Hatch did not receive the process required
by Hewitt, and because Hatch might have persuaded Lorton
officials to reduce his time in segregation had he had a fair
opportunity to present his views, we cannot resolve this case
by taking the approach we followed in Brown.
The District suggests a second way we might decide this
case without applying Sandin's "atypical and significant hard-
ship" test. According to the District, Sandin's test supple-
ments Hewitt's, requiring Hatch to show not only that his
segregative confinement was an "atypical and significant
hardship," but also that D.C. statutes or regulations had
created an expectation that Lorton prisoners would not face
such segregation absent certain substantive predicates.
Claiming that Lorton regulations created no such expectation,
the District argues that for this reason alone, Hatch had no
protected liberty interest in avoiding segregative confine-
ment.
We see no need to decide whether Sandin's test supple-
ments or supplants Hewitt's, for we disagree with the District
that D.C. regulations governing Lorton contain no standards
or guidelines limiting official discretion to place prisoners in
segregative confinement. Those regulations make clear that
before prison officials may place an inmate in administrative
segregation, "there shall be a finding made that: (a) There is
a clear and present threat to the safety of the resident; (b)
The resident poses a clear and present threat to the safety of
others; or (c) The resident poses a definite escape risk."
D.C. Mun. Regs. tit. 28, s 521.4; see also id. ss 522.3, 531.2.
The regulations also require Lorton officials to review an
inmate's placement in administrative segregation every thirty
days, see id. s 527.1, and "[a]t each thirty-day review, it shall
be the responsibility of the Board to determine whether the
resident's return to the general population at the time of that
particular review still poses an escape risk or security risk to
the resident or others," id. s 527.2. The regulations autho-
rize adjustment segregation only after an inmate has been
found guilty of violating Lorton's Code of Offenses, see id.
ss 505.1-505.3, 515.1, and they limit the term of adjustment
segregation for inmates found guilty of Class II offenses to
fourteen days, see id. s 505.2(c).
Like the Pennsylvania statute at issue in Hewitt, the D.C.
regulations governing segregative confinement at Lorton thus
contain the "repeated use of explicitly mandatory language in
connection with requiring specific substantive predicates" that
prior to Sandin would have "demand[ed] a conclusion that the
State has created a protected liberty interest." Hewitt, 459
U.S. at 472. Therefore, even assuming (as the District
argues) that Hewitt's test survives as an independent ground
for denying the existence of protected liberty interests, we
cannot avoid the key question at the heart of this case: Was
Hatch's seven-month confinement in adjustment and adminis-
trative segregation an "atypical and significant hardship ...
in relation to the ordinary incidents of prison life"?
III
Answering this question requires us to define the compara-
tive baseline--"ordinary incidents of prison life"--with speci-
ficity. Hatch argues that the proper baseline is the most
restrictive form of confinement that Lorton officials may
impose in their unfettered discretion. Claiming that Lorton
officials have no discretionary authority to impose any form of
confinement other than assignment to the general population,
Hatch argues that comparing the conditions he faced in
segregation to those faced by prisoners in the general popula-
tion shows that he suffered an "atypical and significant
hardship."
We faced this same issue in Neal v. District of Columbia,
131 F.3d 172 (D.C. Cir. 1997), yet another case brought by a
Lorton prisoner challenging his confinement in administrative
segregation under the Due Process Clause. But in that case,
we had no need to decide whether the proper test under
Sandin "is to compare [the] circumstances [the inmate faced
in segregation] to those of the general prison population"
because we found that even assuming that to be the proper
comparison, the inmate had not suffered an "atypical and
significant hardship" within the meaning of Sandin. Id. at
175. Apart from the loss of work and other privileges,
administrative segregation cost the inmate in Neal only "half
of his out-of-cell time." Id. In contrast, when Lorton offi-
cials transferred Hatch from the general population to segre-
gative confinement, he lost not only his work privileges and
his access to the gym, library, mailroom, health services, and
other facilities, but also more than 95 percent of his out-of-cell
time. Indeed, Hatch claims that while in the general popula-
tion, he was confined "to being in his cell ... for only eleven
(11) hours per day on weekdays, seven (7) hours per day on
Friday, and Saturday nights, and the night before legal
holidays." Hatch Br. at 6 (filed pro se Aug. 7, 1995); cf.
Roach Aff. p 3 (affidavit of Lorton warden) (prisoners in
general population "are locked down in their cells a total of at
least nine (9) hours per day"). While in segregation, by
comparison, he "was confined to a cell for twenty three and
one half (231/2) hours per day" and all forty-eight hours of the
weekend. Hatch Br. at 6, 10. In addition, prisoners in the
general population "are free to move from place to place
within the prison complex by way of a movement pass or
under Correctional Officer supervision," "are allowed a mini-
mum of one hour of recreation time daily," "may engage in
Group Programs, recreation and religious activities daily,"
and "have daily access to the telephone between the hours of
6:00 A.M. and 12:00 Midnight." Roach Aff. p 3. Hatch "was
forced to [wear] hand cuffs and leg irons whenever he left
[the segregation cell block]," Hatch Br. at 9, "was not afford-
ed any outside recreation at all," id. at 10, was isolated from
all other inmates when allowed out of his cell, see id., and
received no legal telephone calls for ninety days, see id. at 11.
We think these differences in confinement conditions fore-
close the approach we took in Neal, requiring us now to
decide whether, as Hatch argues, conditions in the general
population form the proper baseline for Sandin's "atypical
and significant hardship" test. Cf. infra at 20 (explaining
that the district court misread Sandin in concluding that
Hatch suffered no "atypical and significant hardship" com-
pared to conditions in the general population).
Hatch claims that his proposed baseline follows directly
from the Supreme Court's application of the "atypical and
significant hardship" test in Sandin itself. Concluding that
the thirty-day disciplinary segregation of a Hawaii prisoner
"did not present the type of atypical, significant deprivation in
which a State might conceivably create a liberty interest,"
Sandin said:
The record shows that, at the time of [the inmate's]
punishment, disciplinary segregation, with insignificant
exceptions, mirrored those conditions imposed upon in-
mates in administrative segregation and protective cus-
tody.... Thus, Conner's confinement did not exceed
similar, but totally discretionary, confinement in either
duration or degree of restriction.... Based on a com-
parison between inmates inside and outside disciplinary
segregation, the State's actions in placing him there for
30 days did not work a major disruption in his environ-
ment.
515 U.S. at 486 (footnotes omitted). Hatch reads this pas-
sage--in particular, the words "totally discretionary"--to
mean that "the ordinary incidents of prison life" consist of the
most restrictive confinement conditions that prison officials
may impose in their unfettered discretion. According to
Hatch, while this theory meant that conditions in administra-
tive segregation or protective custody comprised the proper
baseline in Sandin, here it means that conditions in the
general population should serve as the baseline because that
is the only form of confinement Lorton officials have unfet-
tered discretion to impose.
We disagree with Hatch's reading of Sandin. As Hatch
recognizes, the phrase "similar, but totally discretionary, con-
finement" in the quoted passage refers to "administrative
segregation and protective custody." At the time of the
events giving rise to Sandin, Hawaii prison officials did not
have unfettered discretion to place inmates in administrative
segregation or protective custody. State regulations autho-
rized administrative segregation
(1) Whenever the facility administrator or a designated
representative determines that an inmate or ward
has committed or threatens to commit a serious
infraction.
(2) Whenever the facility administrator or a designated
representative, considering all the information avail-
able, incuding [sic] confidential or reliable heresay
[sic] sources, determines that there is reasonable
cause to believe that the inmate or ward is a threat
to: (A) Life or limb; (B) The security or good
government of the facility; (C) The community.
(3) Whenever any similarly justifiable reasons exists
[sic].
Haw. Admin. Rule s 17-201-22 (1983). Hawaii regulations
also provided:
Admission to protective custody may be made only where
there is reason to believe that such action is necessary or
the inmate or ward consents, in writing, to such confine-
ment. Protective custody is continued only as long as
necessary except where the inmate or ward needs long
term protection and the facts requiring the confinement
are documented.
Id. s 17-201-23. These regulations did not authorize prison
officials to impose administrative segregation or protective
custody for no reason at all. Because the Sandin Court was
fully aware of these regulations, see 515 U.S. at 476 n.2 (citing
Haw. Admin. Rule ss 17-201-22, 17-201-23), we believe its
use of the words "totally discretionary" cannot mean that
what prison officials may do in their unfettered discretion is
the touchstone for elucidating "the ordinary incidents of
prison life."
To be sure, Sandin nowhere directly explains why it used
administrative segregation as the comparative baseline. But
given the objectives Sandin sought to further, see supra at
5-6, we think the reason is not that such confinement is
literally "totally discretionary," but rather that prison officials
routinely impose such confinement for non-punitive reasons
related to effective prison management. Support for this
interpretation comes from what the Court said in Hewitt
about administrative segregation:
It is plain that the transfer of an inmate to less
amenable and more restrictive quarters for nonpunitive
reasons is well within the terms of confinement ordinarily
contemplated by a prison sentence. The phrase "admin-
istrative segregation," as used by the state authorities
here, appears to be something of a catchall: it may be
used to protect the prisoner's safety, to protect other
inmates from a particular prisoner, to break up potential-
ly disruptive groups of inmates, or simply to await later
classification or transfer. See 37 Pa. Code ss 95.104 and
95.106.... Accordingly, administrative segregation is
the sort of confinement that inmates should reasonably
anticipate receiving at some point in their incarceration.
459 U.S. at 468. Like the Pennsylvania regulations in Hewitt,
the Hawaii regulations in Sandin and the D.C. regulations in
this case make clear that administrative segregation functions
as a "catchall," a flexible management tool for ensuring safety
and good order in prison. See Haw. Admin. Rule ss 17-201-
22 to -24; D.C. Mun. Regs. tit. 28, s 521. Given Sandin's
insistence on affording "appropriate deference and flexibility
to state officials trying to manage a volatile environment," 515
U.S. at 482, it makes sense that the Court would treat
administrative segregation as an "ordinary incident of prison
life." Such a baseline for identifying constitutionally protect-
ed liberty interests ensures that "the day-to-day management
of prisons" will remain in the hands of prison administrators,
not federal judges. Id.
Reading Sandin to require that we look to conditions in
administrative segregation as the proper baseline does not
end our analysis. Sandin took two additional factors into
account. First, it observed that the prisoner's confinement
"did not exceed similar ... confinement in either duration or
degree of restriction." 515 U.S. at 486 (emphasis added); see
id. ("[T]he State's action in placing him there for 30 days did
not work a major disruption in his environment."). When we
compare Hatch's confinement to administrative segregation,
we must therefore look not only to the nature of the depriva-
tion (e.g., loss of privileges, loss of out-of-cell time) but also to
its length in evaluating its "atypicality" and "significance."
Second, Sandin noted that the prisoner's thirty-day disciplin-
ary segregation "was within the range of confinement to be
normally expected for one serving an indeterminate term of
30 years to life." Id. at 487. We read this to mean that
"atypicality" also depends in part on the length of the sen-
tence the prisoner is serving. See id. at 485 (disciplinary
segregation was not "a dramatic departure from the basic
conditions of Conner's indeterminate sentence"); id. at 486
n.9 ("[T]he conditions suffered were expected within the
contour of the actual sentence imposed."). We have previous-
ly interpreted Sandin just this way. In Franklin v. District
of Columbia, we said that courts must consider not only "the
discipline involved" but also "the nature of the prisoner's
term of incarceration" in determining "whether a prisoner's
'liberty' is threatened." 163 F.3d 625, 634 (D.C. Cir. 1998).
To sum up, we interpret Sandin to mean that a deprivation
in prison implicates a liberty interest protected by the Due
Process Clause only when it imposes an "atypical and signifi-
cant hardship" on an inmate in relation to the most restrictive
confinement conditions that prison officials, exercising their
administrative authority to ensure institutional safety and
good order, routinely impose on inmates serving similar sen-
tences. We think this standard captures what Sandin means
by the phrase "ordinary incidents of prison life." While the
"incidents of prison life" encompass more or less restrictive
forms of confinement depending on prison management im-
peratives, the term "ordinary" limits the comparative baseline
to confinement conditions that prison officials routinely im-
pose. We also think our interpretation of the test is faithful
to the principles animating Sandin: It ensures that prison
officials have broad administrative authority to "fine-tun[e]
the [conditions] of prison life," 515 U.S. at 483, while preserv-
ing a zone of liberty interests with " 'real substance' " protect-
ed by the Due Process Clause, id. at 480.
We turn finally to the parties' competing claims regarding
the significance of inter-prison inmate transfers for Sandin's
baseline. According to Hatch, the baseline must be defined
by reference to conditions at Lorton only. We agree with the
District, however, that the possibility of transfer is one of the
"ordinary incidents of prison life" for most prisoners in the
country, including those at Lorton. See D.C. Code Ann.
s 24-425 (1981) (giving Attorney General broad discretion to
transfer Lorton inmates to any federal prison); cf. Meachum
v. Fano, 427 U.S. 215, 225 (1976) (holding that transfer to
prison with more onerous conditions does not deprive a
prisoner of constitutionally protected liberty "as long as pris-
on officials have discretion to transfer him for whatever
reason or for no reason at all"). At the same time, we
disagree with the District that the possibility of transfer
means that the baseline must consist of the most restrictive
conditions routinely imposed on inmates in any prison nation-
wide, including conditions at the federal penitentiary at Mar-
ion, Illinois, an especially restrictive prison where all inmates
are locked down almost the entire day.
Sandin defined the "ordinary incidents of prison life" in
terms of the "basic conditions" of a prisoner's sentence, 515
U.S. at 485, the conditions "normally expected" for a prisoner
serving a given term, id. at 487. What matters, therefore, is
not simply the possibility of transfer but also its likelihood.
The mere fact that the Attorney General has discretion to
transfer a Lorton inmate to prisons like Marion does not
make such transfers "ordinary." Properly constructed, San-
din's baseline requires not mere inquiry into the most restric-
tive conditions prison officials have legal authority to impose
for administrative reasons, but a factual determination of the
most restrictive conditions prison officials "ordinarily" or
"routinely" impose.
We thus think that to the extent Hatch might face more
burdensome conditions at other prisons, those conditions be-
come part of the baseline only if it is likely both that inmates
serving sentences similar to Hatch's actually will be trans-
ferred to such prisons and that once transferred they actually
will face such conditions. If, as the District claims, conditions
for all inmates at Marion are more burdensome than the most
restrictive conditions at Lorton that prison officials routinely
impose in their administrative discretion, then conditions at
Marion would form the proper baseline under Sandin if the
District can show that transfers to Marion are "normally
expected" for Lorton inmates serving sentences similar to
Hatch's. Sandin, 515 U.S. at 487. Not only does the record
contain no information about the frequency of inmate trans-
fers from Lorton to Marion, but the District's lawyer, asked
at oral argument "how many D.C. prisoners go to Marion,"
said, "I don't have a number, but at least one." She then
conceded that "[p]erhaps that one prisoner alone would not
support our argument."
IV
This brings us to the disposition of this case. The district
court compared the conditions of Hatch's segregative confine-
ment (as he described them) with conditions faced by prison-
ers in the general population. See Mem. Order at 3-4.
Finding these differences no greater than the differences in
Sandin between that prisoner's disciplinary segregation and
his confinement in the general population, it then concluded
that Hatch suffered no "atypical and significant hardship."
See id. at 5.
To be sure, Sandin observed in dictum that "the conditions
at Halawa involve significant amounts of 'lockdown time' even
for inmates in the general population." 515 U.S. at 486. But
as our earlier discussion indicates, see supra at 14-15, San-
din's holding turned on a comparison of the prisoner's con-
finement to administrative segregation: "[A]t the time of
Conner's punishment, disciplinary segregation, with insignifi-
cant exceptions, mirrored those conditions imposed upon in-
mates in administrative segregation and protective custody."
Id. Indeed, the Court noted that Hawaii inmates in adminis-
trative segregation receive only "one extra phone call and one
extra visiting privilege" than inmates in disciplinary segrega-
tion. Id. at 476 n.2. The question the district court should
have asked, therefore, is this: Were the differences between
the conditions of Hatch's segregative confinement and the
conditions routinely imposed on Lorton inmates serving simi-
lar sentences, including the usual conditions of administrative
segregation, sufficiently greater than "one extra phone call
and one extra visiting privilege" so as to constitute an "atypi-
cal and significant hardship"?
We thus reverse the district court's grant of summary
judgment for the District and remand for further fact-finding
consistent with this opinion. In evaluating whether Hatch
had a liberty interest in avoiding adjustment segregation, the
district court should begin by determining the usual condi-
tions of administrative segregation at Lorton. It should treat
those conditions as the baseline for evaluating whether
Hatch's two-week adjustment segregation was an "atypical
and significant hardship." If using that comparison the court
finds that his adjustment segregation was "atypical and sig-
nificant," it should then take into account the possibility that
Hatch will be transferred to other prisons. The district court
should redefine the comparative baseline by reference to
more restrictive conditions at other prisons if it finds that it is
likely both that inmates serving sentences similar to Hatch's
will actually be transferred to such prisons and that once
transferred they will actually face such conditions. The term
"likely," as we use it here, means not that the combination of
events must be more probable than not, but that there must
be a substantial chance of its occurrence.
As to whether Hatch had a liberty interest in avoiding
administrative segregation, the fact that routine conditions of
administrative segregation form the proper baseline under
Sandin does not foreclose Hatch's claim for two reasons.
First, Hatch alleges that although twenty-nine weeks of his
segregation were nominally "administrative," he actually
spent his entire confinement in conditions of adjustment
segregation. As long as this allegation remains undisputed,
the district court should undertake the same comparative
analysis outlined above. Second, even if the conditions Hatch
faced were no more restrictive than ordinary conditions of
administrative segregation, the district court should deter-
mine whether its duration--twenty-nine weeks, including
twenty weeks after the Housing Board found that he no
longer posed a management problem--was "atypical" com-
pared to the length of administrative segregation routinely
imposed on similarly situated prisoners. See Brooks, 112
F.3d at 49 ("[T]he mere fact that [state] prison regulations
permit extended administrative segregation does not tell how
frequently or for what durations such segregation is [actually]
imposed.").
So ordered.
Hatch, Donald J. v. DC
Combined Opinion