Brown, Ernest v. Plaut, William M.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 9, 1997 Decided December 16, 1997

No. 96-7027

Ernest Brown,

Appellant

v.

William M. Plaut, Associate Director for Institutions of the

District of Columbia Department of

Corrections, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 93cv00672)

Daniel M. Schember argued the causes and filed the briefs

for appellant. Alake Johnson-Ford entered an appearance.

Mary L. Wilson, Assistant Corporation Counsel, argued

the cause for the District of Columbia, with whom Jo Anne

Robinson, Interim Corporation Counsel at the time the brief

was filed, and Charles L. Reischel, Deputy Corporation Coun-

sel, were on the brief.

Jonathan J. Frankel argued the cause for amicus curiae

American Civil Liberties Union of the National Capital Area,

with whom Stephen H. Sachs and Arthur B. Spitzer were on

the brief.

Before: Wald, Henderson and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: This case and its companion James

Neal v. District of Columbia were argued on the same day

and before the same panel because they raise similar issues.

Ernest Brown ("Brown"), a former inmate of the District of

Columbia's (the "District's") prison at Lorton, seeks damages

from the District for placing him in administrative segrega-

tion, a form of custody for prisoners who present an escape

risk or pose a danger to themselves or others, for ten months

allegedly without due process.1 The district court, citing

Sandin v. Conner, 515 U.S. 472 (1995), found that Brown had

no liberty interest in remaining free of that deprivation, and

dismissed his suit. On appeal, the District argues that we

affirm on the ground cited by the district court, or on the

alternative grounds that Brown should have brought this

action as a habeas corpus petition or that Brown has received

all the process that was due him.

The question of how to apply Sandin raises difficult and

unsettled questions of constitutional law, which we find it

unnecessary to reach. Instead, we remand to the district

__________

1 William M. Plaut, whose name appears in the caption of this

case as a defendant, is an official of the District of Columbia

Department of Corrections. He is not named as a defendant in

Brown's second amended complaint, which is the complaint that is

at issue in this appeal; he was, however, named as a defendant in

Brown's initial complaint. The defendants named in the present

complaint include the District of Columbia and a number of other

D.C. prison officials.

court to decide the narrow factual issues relating to whether

Brown received all the process he was due.

I. Background

On the morning of October 12, 1992, Ernest Brown, then an

inmate at the Occoquan medium-security facility of the Dis-

trict's Lorton prison, got into an argument with Corporal

Parks, a prison guard, about cigarettes.2 In the course of

this dispute, he threw an "unknown substance," allegedly

urine and feces, at Parks, and told him "I'm still going to get

you." A search of Brown's cell disclosed a crude weapon

fashioned out of a sharpened plastic toothbrush. Parks pre-

pared a Disciplinary Report charging Brown with two of-

fenses, Bodily Injury (presumably for throwing the "unknown

substance"), and Threatening Conduct (for saying he would

"get" Parks); a copy of this report was given to Brown. The

following day, Brown was notified that a hearing of the

Adjustment Board (Lorton's disciplinary body) would occur

on October 16 on the charge of Threatening Conduct and on a

charge of Possession of Major Contraband (the weapon). On

that same day, Brown was transferred from Occoquan to

administrative segregation at Lorton's Maximum Security

Facility.

The Adjustment Board hearing apparently never occurred.

Instead, on October 15, Brown was brought before Lorton's

Housing Board, a body charged with determining whether

prisoners are to be placed in administrative segregation.

Brown received no advance notice of this hearing, and there

is nothing in the record to show what occurred at the hearing.

The only evidence in the record on this issue is a Housing

Board Action Sheet, which states that the reason for the

hearing was "[t]o determine appropriate housing for Resident

Brown, Ernest ... who was placed in the Adjustment Unit as

a result of a Disciplinary Report for Fighting on October 5,

__________

2 Because we are considering an appeal from a motion by the

District to dismiss or in the alternative for summary judgment,

what follows is an account of the undisputed facts, construed in the

light most favorable to Brown.

1992 and for the alleged incident involving staff on October

12, 1992." The sheet lists Brown as stating: "I don't fear for

my safety. I just want to be placed somewhere where I can

have access to a Law Library." It states that the Board finds

Brown "to be a threat to self and others due to the alleged

incident involving correctional staff," and concludes by stating

that "Resident Brown assaulted Cpl. Parks."

Brown remained in administrative segregation for a total of

ten months. In the medium-security unit in which he had

previously been confined, he had been able to go outdoors

from 8 a.m. to dusk, was permitted to move about the

dormitory and interact with other inmates at all hours of the

day or night, and could participate in many prison programs.

In the unit in which Brown spent the first four months of his

administrative segregation, by contrast, he was in solitary

confinement, and was allowed to leave his cell only to meet

with visitors (while shackled, handcuffed, and belly-chained),

and for two hours a week of exercise in a hallway. Brown

spent the remainder of his administrative segregation in a

unit in which he was in solitary confinement, but was allowed

to leave his cell for two or three hours a day. At the end of

this ten-month period, Brown was apparently returned to his

previous custody status.

Brown filed his initial complaint in this case in April, 1993,

alleging due process, free exercise, and Eighth Amendment

violations. After Brown had moved successfully for appoint-

ment of counsel and for leave to file an amended complaint,

the District moved to dismiss, or in the alternative for

summary judgment, as to all three of Brown's claims. The

district court granted the District's motion as to Brown's due

process claim, but denied it as to his other two claims.

(These claims, which involved Brown's rights to dental care

and to attend religious services, have since been settled.) As

to Brown's due process claim, the district court found that,

under Sandin v. Conner, 515 U.S. 472 (1995), Brown did not

have a liberty interest in remaining free of administrative

segregation, because his confinement in administrative segre-

gation did not amount to an "atypical and significant hard-

ship." 515 U.S. at 484. Brown then sought to file a second

amended complaint in order to re-plead the due process claim

and to add a related claim under District of Columbia law;

the district court granted Brown leave to do so, but immedi-

ately dismissed the due process claim. Brown now appeals

this dismissal.

II. Analysis

We first reject the District's contention that because suc-

cess on Brown's due process claim would "necessarily imply"

that the decision to place Brown in administrative segregation

was invalid, Brown must bring his claim by way of habeas

corpus. As to the merits of Brown's due process claim, we

address first whether Brown had a liberty interest in avoiding

his term in administrative segregation, and then whether he

received the process he was due.3

Our review is de novo because we are considering an appeal

from a motion to dismiss or in the alternative for summary

judgment. National Taxpayers Union, Inc. v. United States,

68 F.3d 1428, 1432 (D.C. Cir. 1995) (dismissal); Tao v. Freeh,

27 F.3d 635, 638 (D.C. Cir. 1994) (summary judgment).

A. Should This Action Have been Brought in Habeas Cor-

pus?

The District argues that, if Brown prevails, this will "neces-

sarily imply" that the District's decision to place him in

administrative segregation was invalid, and claims that this

means that, under Preiser v. Rodriguez, 411 U.S. 475 (1973)

__________

3 The District also makes several arguments directed at Brown's

claim under D.C. law. Brown correctly points out, however, that

the order from which he appeals dismissed only his due process

claim, not his claim under D.C. law. The order specifically stated

that Brown's due process claim is "separate" from his other claims

and that "there is no just reason for delay of final judgment as to

this claim," and directed the entry of final judgment as to that

claim. The language of this order meets the standard of Federal

Rule of Civil Procedure 54(b) for dismissal of fewer than all of the

claims in a case, so that Brown's appeal is properly before us. But,

because Brown's D.C. law claim was never dismissed by the district

court, it is not at issue in this appeal.

and its progeny, Brown's action must be brought in habeas

corpus, not through section 1983. We conclude that the

District reads the Preiser line of cases too broadly, and so

decline to require that Brown's action be brought in habeas

corpus.

In Preiser, the Supreme Court held that prisoners seeking

the restoration of good-time credits which they claimed had

been unconstitutionally withdrawn must do so through habeas

corpus, not through section 1983. The Court observed that

the prisoners' claims were "within the core of habeas corpus

in attacking the very duration of their physical confinement

itself." Id. at 487-88. Congress had required exhaustion of

available state remedies as a prerequisite to habeas corpus

relief, the Court explained, and it would "wholly frustrate"

Congress's intent to permit this rule to be circumvented

through the invocation of section 1983. Id. at 489-90.

Preiser said that the same rule must apply to any challenge

by a state prisoner to "the fact or duration of his confinement

based, as here, upon the alleged unconstitutionality of state

administrative action." Id. at 489. The Preiser Court set

clear limits to this principle, however, expressly reaffirming

its previous cases holding that a section 1983 action "is a

proper remedy for a state prisoner who is making a constitu-

tional challenge to the conditions of his prison life, but not to

the fact or length of his custody," id. at 499, because such

actions are not at the "heart" of habeas corpus, id. at 498.

The Court has twice since clarified the reach of Preiser.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Court consid-

ered a section 1983 action that sought money damages, rather

than the specific relief at issue in Preiser. The plaintiff in

Heck claimed that the unconstitutional acts of the defendants,

who were state officials, had led to his arrest and conviction.

The Court found that the plaintiff's action was analogous to a

common-law action for malicious prosecution, and that the

favorable-termination requirement of such actions therefore

applied to the plaintiff's section 1983 action. Heck thus held

that a plaintiff who brings a claim under section 1983 that, if

established, would "necessarily imply" that a criminal convic-

tion or sentence was unlawful must demonstrate as an ele-

ment of his claim that the conviction or sentence has been

reversed, expunged, invalidated, or "called into question by a

federal court's issuance of a writ of habeas corpus." Id. at

484-87. In Edwards v. Balisok, 117 S. Ct. 1584 (1997), the

Court made clear that Heck applies in some cases in which

the underlying proceeding is not a criminal conviction or

sentence, applying Heck to an action by a prisoner who

asserted that a prison disciplinary proceeding that had de-

prived him of good-time credits had been invalid because,

inter alia, the decisionmaker had not been impartial. See id.

at 1588-89.

We conclude, however, that Brown's suit, which challenges

only his placement in administrative segregation, is not of the

type to which it is appropriate to apply Preiser and its

progeny.4 The Court has never deviated from Preiser's clear

line between challenges to the fact or length of custody and

challenges to the conditions of confinement. In Edwards, the

Court was careful to respect the distinction drawn by Preiser,

repeatedly characterizing the plaintiff's claim as one that

would "necessarily imply the invalidity of the deprivation of

his good-time credits" and therefore hasten his release. 117

S. Ct. at 1588. Heck, too, observed that the damages action

in that case was in effect an attack on " 'the fact or length of

confinement.' " 512 U.S. at 482 (quoting Preiser, 411 U.S. at

494). The Court also did not question the plaintiff's invoca-

tion of section 1983 in Sandin, a case in which the underlying

prison disciplinary proceeding affected only the plaintiff's

__________

4 Brown does assert that his placement in administrative segrega-

tion may have affected his opportunities for parole, and thus the

length of his confinement. It is true that Brown was denied parole

in August, 1993, near or shortly after the end of his term in

administrative segregation. But there is no evidence that the

Parole Board considered the fact that Brown had been in adminis-

trative segregation in making its decision. The Parole Board's

explanation said only that Brown's "adjustment has been poor[,] he

has received two Class II DRs [disciplinary reports] and been

charged with assault." Thus, the Board seems to have considered

only the charges of misconduct against Brown, not their conse-

quences.

conditions of confinement, not the duration of his sentence.

See 515 U.S. at 487. See also McCarthy v. Bronson, 500 U.S.

136, 142 (1991) (drawing on Preiser 's distinction between

challenges to the fact or length of custody and challenges to

conditions of confinement in construing a statutory reference

to the "conditions of confinement").5

Moreover, Heck's rationale for its favorable-termination

requirement is inapplicable to the facts of this case. Brown's

action may not properly be analogized to a suit for malicious

prosecution, as the decision he is challenging bears little

resemblance to a judicial proceeding. Decisions to place

inmates in administrative segregation are subject to greatly

relaxed procedural requirements, see Hewitt v. Helms, 459

U.S. 460, 476 (1983) ("An inmate must merely receive some

notice of the charges against him and an opportunity to

present his views to the prison official charged with deciding

whether to transfer him to administrative segregation"), and

the Court has recognized that they are often made fairly

informally, on the basis of "subjective" and "intuitive" consid-

erations, see id. at 474. Indeed, the administrative proceed-

ing before the Housing Board entailed so little process that it

would almost certainly be accorded no collateral estoppel

effect. See Nasem v. Brown, 595 F.2d 801, 806-08 (D.C. Cir.

1979) (holding that an administrative proceeding in which the

parties were not permitted to present live witness testimony

or to cross-examine opposing witnesses should not be accord-

ed collateral estoppel effect); 18 Charles Alan Wright et al.,

Federal Practice and Procedure s 4475, at 766 (1981). One

of the Court's principal concerns in Heck was to limit collater-

__________

5 We recognize that one court of appeals has applied Edwards to

a case in which the prisoner was subject only to disciplinary

segregation, and not to loss of good time or any other change in the

length of confinement. See Stone-Bey v. Barnes, 120 F.3d 718, 721

(7th Cir. 1997). We have found no other court of appeals decisions

reaching this conclusion, and for the reasons set out in the text, we

do not find its reasoning persuasive. See also Clarke v. Stalder, 121

F.3d 222, 226 (5th Cir. 1997) (Preiser and Edwards do not apply to

actions in which "a favorable determination would not automatically

entitle the prisoner to accelerated release").

al attacks on final judgments, see 512 U.S. at 484; but a

proceeding that is incapable of giving rise to collateral estop-

pel, like that at issue in this case, hardly needs to be insulated

from collateral attack. Finally, were Brown required to

invoke habeas corpus to challenge his placement in adminis-

trative segregation, then the same rule would presumably

apply to a myriad of prison officials' other administrative

decisions affecting conditions of confinement, such as visita-

tion, mail, shower, or library privileges. Habeas corpus

might conceivably be available to bring challenges to such

prison conditions, as the Court observed in Preiser, 411 U.S.

at 499, but requiring the use of habeas corpus in such cases

would extend Preiser far beyond the "core" of the writ that

Preiser set out to protect. Id. at 487.

B. Did Brown's Placement in Administrative Segregation

Violate the Due Process Clause?

Brown's placement in administrative segregation violated

the Due Process Clause only if two conditions are met:

Brown had a liberty interest in avoiding that term of segrega-

tion, and Brown did not receive the process he was due. The

first of these questions raises difficult issues of constitutional

law; the second, only narrow questions of fact. We therefore

discuss the first question only to the extent necessary to

explain why we do not decide it, and focus on the second.

1. Did Brown Have a Liberty Interest?

In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme

Court reworked the framework for analyzing whether a pris-

oner has a state-created liberty interest in avoiding a particu-

lar deprivation. Before Sandin, this question was answered

in much the same way as were questions about the existence

of other liberty or property interests: if state laws or regula-

tions contained language constraining the discretion of state

officials, a liberty interest existed. See, e.g., Hewitt, 459 U.S.

at 471-72. The Sandin Court found that this approach had

given states "disincentives to ... codify prison management

procedures" and led to the inappropriate "involvement of

federal courts in the day-to-day management of prisons."

515 U.S. at 482. It therefore found that, although "States

may under certain circumstances create liberty interests

which are protected by the Due Process Clause," "these

interests will generally be limited to freedom from restraint

which ... imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life."

Id. at 484.

Applying Sandin to this case presents a number of difficul-

ties. First, although Sandin clearly dictates that we compare

the hardship experienced by the inmate to "the ordinary

incidents of prison life," it is not clear which prison or part of

a prison is to provide the standard of comparison. At various

points in Sandin, the Court compared the prisoner's condi-

tions in disciplinary segregation in Hawaii's Halawa Correc-

tional Facility to "administrative segregation and protective

custody" in that prison, to the "general population" of that

prison, and to an undefined "range of confinement to be

normally expected for one serving an indeterminate term of

30 years to life." See Sandin, 515 U.S. at 486-87.

The District suggests that, because the Attorney General

has authority to transfer persons convicted in the District to

any other prison nationwide, the appropriate baseline for our

analysis is in fact the most rigorous prison in the nation.6

The parties have not addressed, however, what may be a

prerequisite to such an argument: evidence that such trans-

fers are "totally discretionary," a point the Sandin Court

found important in determining that it was appropriate to use

conditions in administrative segregation and protective custo-

dy at Halawa as a baseline for comparison. See 515 U.S. at

486. At least one court has accepted a variant of this

argument: the Seventh Circuit has found that, because in-

mates may be transferred within the Indiana prison system,

the test of whether a deprivation is "atypical and significant"

turns on a comparison with conditions in the state's most

rigorous prison. Wagner v. Hanks, 128 F.3d 1173, 1997 WL

__________

6 The courts of the District of Columbia have construed sections

24-402 and 24-425 of the D.C. Code to permit inmates to be

transferred to state as well as to federal institutions. See Vaughn

v. United States, 579 A.2d 170, 173 (D.C. 1990).

695375 (7th Cir. 1997).7 The Wagner court also noted that,

because Indiana can transfer its prisoners out of state, the

proper standard of comparison may in fact be the most

rigorous prison in the nation; it declined, however, to "decide

whether logic should be pressed so far," and remanded the

case for further fact-finding. Id. at *4.

Even were we to reject the District's transfer argument,

we would still face a number of unsettled questions about how

to apply Sandin to this case. Caselaw from the Second and

Ninth Circuits suggests that whether a term in segregation

amounts to an "atypical and significant" deprivation turns on

its length and on a comparison of conditions in segregation

and in the prison's general population. See, e.g., Brooks v.

DiFasi, 112 F.3d 46, 48-49 (2d Cir. 1997); Keenan v. Hall, 83

F.3d 1083, 1089 (9th Cir. 1996). Other courts have not

adopted so structured an analysis; for instance, the Fifth

Circuit has concluded that a term in administrative segrega-

tion was not "atypical and significant" without discussing

conditions in the segregation unit or the length of the segre-

gation at all. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir.

1995), cert. denied, 116 S. Ct. 1690 (1996). Were we to follow

the approach of the Second and Ninth Circuits, we would

then need to decide whether the length and severity of the

deprivation Brown experienced sufficed to render that depri-

vation "atypical and significant," a close and difficult question.

Compare Sealey v. Giltner, 116 F.3d 47, 51-52 (2d Cir. 1997)

(remanding for specific findings on conditions of confinement

in the case of an inmate held in administrative segregation for

__________

7 Judge Posner, the author of Wagner, also observed that under

the panel's reading of Sandin "the right to litigate disciplinary

confinements has become vanishingly small." Id. at *3. He added

that "[t]his is a harsh result and perhaps the Court did not actually

intend it," and acknowledged that while the Sandin Court cited

cases involving prison transfers, "it did not draw the logical infer-

ence [that the baseline should be a state's most rigorous prison] and

may not have intended to push its approach to its logical ex-

treme...." Id. at *4. And he further noted that "we would

welcome clarification of the issue by the Court," id. at *3-4.

six months) with Mackey v. Dyke, 111 F.3d 460, 463 (6th

Cir.), cert. denied, 118 S. Ct. 136 (1997) (finding that a six-

month term in administrative segregation was not "atypical

and significant," with no discussion of conditions in segrega-

tion). And, finally, we would need to decide whether San-

din's "atypical and significant" test merely supplements Hew-

itt's test for the existence of a liberty interest, or supersedes

it altogether. See The Supreme Court, 1994 Term--Leading

Cases, 109 Harv. L. Rev. 111, 147-50 (1995) (discussing this

question). We do not think it necessary or even useful to

resolve so many complex and fact-specific issues in the con-

text of this case which it may be possible to decide on far

narrower grounds.

2. Did Brown Receive the Process He Was Due?

By contrast to the liberty-interest question, whether Brown

received the process he was due turns on a few simple

questions of fact. The decision to place an inmate who has a

liberty interest in administrative segregation is subject to

limited procedural safeguards. "An inmate must merely

receive some notice of the charges against him and an oppor-

tunity to present his views to the prison official charged with

deciding whether to transfer him to administrative segrega-

tion.... So long as this occurs, and the decisionmaker

reviews the charges and the then-available evidence against

the prisoner, the Due Process Clause is satisfied." Hewitt,

459 U.S. at 476. This process may be conducted a reasonable

time after the transfer, and may be done either orally or in

writing; periodic reviews are required after the initial trans-

fer. See id. at 476-77 & n.9.

Brown contends that, because his placement in administra-

tive confinement was based on an express finding that he had

assaulted a correctional officer, it was essentially disciplinary

in nature, so that he is entitled to the more extensive proce-

dural protections applied to disciplinary hearings in Wolff v.

McDonnell, 418 U.S. 539, 563-71 (1974). Although Wolff

itself involved both discipline and the loss of good time, we

have applied Wolff in cases in which only discipline was at

issue. See Crosby-Bey v. District of Columbia, 786 F.2d

1182, 1185 (D.C. Cir. 1986) (per curiam). But Brown has not

established that his treatment was disciplinary in nature.

Prison officials may appropriately place an inmate in adminis-

trative segregation if she "represents a threat to the institu-

tion's security." Hewitt, 459 U.S. at 474. The fact that

prison officials have made a finding that the inmate has

committed an assault, rather than operating on the charge or

suspicion that she has done so or will do so, does not trigger

Wolff.8

We therefore conclude that only the procedures required in

Hewitt--"some notice," and an opportunity for the inmate to

present his views, 459 U.S. at 476--apply to this case.9

Hewitt 's requirements are not elaborate, but they are real,

__________

8 Hewitt explained the lower procedural protections associated

with administrative segregation by noting that no stigma is attached

to such segregation, and that it has no significant effect on an

inmate's parole opportunities. See Hewitt, 459 U.S. at 473. If

Brown had shown that the Housing Board's finding that he had

assaulted a guard was treated for parole or other purposes as

equivalent to a disciplinary finding to that effect, or that administra-

tive segregation was so widely used as a substitute for punishment

that it carried the same stigma as disciplinary segregation, this

might indicate that more extensive procedural protections were

warranted. He has made no such showing.

9 We do not agree with Brown's further contention that Hewitt

requires that an inmate receive advance notice of the charges

against him. Advance notice is certainly valuable, and prison

officials should provide it to inmates where possible; but Hewitt

calls only for "some notice."

The applicable regulations require that inmates receive written

notice three days in advance of a housing hearing, D.C. Mun. Reg.

tit. 28, s 523.1 (1987), a requirement that prison officials apparently

did not comply with here. If the District did violate this require-

ment, that would not amount to a violation of the Due Process

Clause. State law supplies only the substance of a liberty interest;

federal constitutional law governs the procedures that are required

when it is withdrawn. Archie v. City of Racine, 847 F.2d 1211, 1217

(7th Cir. 1988) (en banc).

and must be strictly complied with. The present record

raises two questions as to whether Brown had fair notice of

the purpose and implications of the Housing Board hearing.

Brown was initially told that he would receive a disciplinary

hearing on October 16 on charges of Threatening Conduct

and Possession of Major Contraband. Then, on October 15,

he was brought before the Housing Board. It is not clear

whether Brown was told that this hearing would be his only

opportunity to respond to the charges against him. With

certain exceptions, D.C. regulations prohibit inmates from

being held in administrative segregation for more than three

days without a hearing before the Housing Board. D.C.

Mun. Regs. tit. 28, ss 521.7, 531.10 (1987). Brown might thus

have assumed that the Housing Board hearing was only

intended to consider his temporary placement in administra-

tive segregation pending the Adjustment Board's decision,

and that he would have an opportunity to defend himself on

any charges at the Adjustment Board hearing on the follow-

ing day. On remand, the district court should determine

whether Brown made this mistaken assumption, and if so

whether it was reasonable for him to do so in light of what he

was told about the purpose of the Housing Board hearing.

It is also not clear whether Brown knew that the Housing

Board hearing was intended to address charges that he had

assaulted a correctional officer. Brown had only been noti-

fied of an Adjustment Board hearing on charges of Threaten-

ing Conduct and Possession of Major Contraband. He had

previously received a disciplinary report charging him with

Bodily Injury; the fact that this charge was apparently not to

be addressed at the Adjustment Board hearing could have

reasonably led him to conclude that it had been dropped.10

Nor does the Housing Board Action Sheet that appears in the

record provide any evidence as to whether Brown was told at

the hearing that the Board would consider whether he had

__________

10 Moreover, the D.C. regulations list Bodily Injury as a Class II

offense, but Assault as a more serious Class I offense. D.C. Mun.

Regs. tit. 28, ss 502.4, 503.2 (1987).

committed an assault. It records Brown only as saying that

he does not fear for his safety and that he wants to have

access to a law library, words that might suggest Brown

thought that the hearing was about whether he himself was

threatened and wished to be placed in voluntary protective

custody.11

If Brown was not provided an accurate picture of what was

at stake in the hearing, then he was not given his due

process. See Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306, 314-15 (1950); Memphis Light, Gas & Water

Division v. Craft, 436 U.S. 1, 14-15 (1978). On the other

hand, if he was advised of the charges that would be consid-

ered against him and given "an opportunity to present his

views," then he was given all the process he was due. Hew-

itt, 459 U.S. at 476. Because there is no record as to what

occurred at the Housing Board hearing, we find it necessary

to remand to the district court for further development of the

facts surrounding this hearing.

III. Conclusion

In sum, we find that Preiser's distinction between chal-

lenges to the conditions of confinement and challenges to its

fact or duration means that Brown's complaint was properly

brought under section 1983, and need not have been brought

as a habeas corpus petition. As to whether Brown's rights

under the Due Process Clause were violated, we express no

opinion at this time as to whether Brown had a liberty

interest in remaining free of administrative segregation. In-

stead, we remand this case to the district court to decide,

first, assuming that Brown had a liberty interest in avoiding

administrative segregation, whether he received all the pro-

cess that he was due under Hewitt. If he did, that will be the

end of the matter. If he did not receive any such process, the

__________

11 The sheet also states that Brown "has signed Non-Animosity

and Waiver of Protective Custody forms"; the meaning of this is

unclear, but it may again be a reference to voluntary protective

custody. (Brown denies that he signed the latter form.)

district court may proceed to consider whether a liberty

interest existed, in light of the questions identified in this

opinion.

We therefore vacate the decision of the district court, and

remand for further proceedings consistent with this opinion.

So ordered.