The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 1997 Decided December 16, 1997
No. 96-7187
James H. Neal,
Appellant
v.
District of Columbia and
John Lattimore,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 94cv01528)
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 is a companion case to Brown v.
Plaut, No. 96-7027 (D.C. Cir. Dec. 16, 1997). Because our
opinion in Brown addresses many of the same issues raised in
this case, we will make frequent reference to that opinion.
Plaintiff James H. Neal ("Neal") was an inmate at the
District of Columbia's (the "District's") prison at Lorton
during all times relevant to this action. He seeks to recover
damages from the District for holding him against his wishes
and without due process in "voluntary protective custody," a
regime of specially restricted custody for prisoners whose
personal safety is in danger, for a period of six months. The
district court dismissed Neal's action for reasons which we
find are not persuasive; the District argues nonetheless this
dismissal should be affirmed. We find that, under the analy-
sis mandated by Sandin v. Conner, 515 U.S. 472 (1995), Neal
had no liberty interest in remaining free of the special
conditions of detention imposed upon him, and therefore
affirm the dismissal.
I. Background
Neal was convicted in 1987 in D.C. Superior Court of a
number of offenses, including multiple counts of robbery, and
sentenced to 49 to 147 years' imprisonment. He was initially
placed at Lorton, then transferred to the federal prison in
Leavenworth, Kansas, and later transferred back to Lorton in
March 1992. The federal Bureau of Prisons transfer forms
stated that Neal had a significant history of violence (he had
allegedly tried to choke a prison guard) and that he should be
considered an escape risk based on the length of his sentence.
Accordingly, Neal was placed at Lorton's Maximum Security
Facility, a decision that Neal says in a declaration filed in this
action that he did not oppose. On March 31, 1992, at his
initial hearing for housing classification at the Maximum
Security Facility, Neal asked to be placed in voluntary protec-
tive custody to allow him to "become acquainted with the
conditions and routine" at the facility. Prison officials
obliged, and placed him in voluntary protective custody in
Cellblock 1 of the Maximum Security Facility.
Voluntary protective custody is one species of administra-
tive segregation; the other major category is involuntary
protective custody, which is reserved for prisoners who pres-
ent an escape risk or who pose a danger to themselves or
others. D.C. Mun. Regs. tit. 28, ss 521.4, 521.10, 521.11
(1987).1 Prison regulations require that all placements in
administrative segregation be reviewed every thirty days.
Id., s 527.1. Neal was scheduled for a review of his housing
placement on April 30. When that review did not occur, and
no other review was scheduled, he submitted written requests
for a review in October and November 1992. On December
1, 1992, he submitted a written request for "placement in
general population." On March 24, 1993, the Classification
Board, charged with reviewing prisoners' custody levels, rec-
ommended that Neal be moved to medium security custody,
but, for reasons unknown, this recommendation was never
implemented. Neal wrote letters on March 29 and April 11,
1993, complaining that he had not received appropriate re-
views of his placement in protective custody, and asserting
that he wished to be moved to the general population at the
Maximum Security Facility. On June 21, 1993, Neal was
stabbed, and removed from the prison to an outside hospital.
On his return to the prison, Neal voluntarily entered protec-
tive custody for a time, and then was returned to the general
population of the Maximum Security Facility.
Neal filed a pro se complaint on July 14, 1994, claiming that
the District's failure to release him from protective custody
__________
1 Administrative segregation may also be used to hold an inmate
prior to a housing hearing or adjustment hearing. Id., s 521.2.
for six months violated the Due Process Clause and the D.C.
regulations. (These regulations are referred to by the parties
by the name of the statute approving them, the Lorton
Regulations Approval Act ("LRAA").) The District filed a
motion to dismiss or in the alternative for summary judgment
on a number of grounds, one of which was that the LRAA did
not create a private right of action. The district court denied
the motion on all counts. It noted, however, that the question
of whether the LRAA created a private right of action was a
complex one, and requested further briefing.
While Neal's case was pending, the Supreme Court decided
Sandin v. Conner, 515 U.S. 472 (1995), finding that state laws
and regulations governing prisons may only create a liberty
interest for due process purposes if the alleged deprivation
constitutes "atypical and significant hardship." Id. at 484.
The parties filed supplemental pleadings as to Sandin's appli-
cation to Neal's case, and the district court found that, on the
basis of a comparison between conditions in protective custo-
dy and those in the general population at the Maximum
Security Facility, the conditions Neal had experienced in
protective custody did amount to an atypical and significant
hardship.
The district court then issued a memorandum deciding the
LRAA question. It concluded that the question of whether
the LRAA gives rise to a private cause of action was "com-
plex" and that no court to date had awarded damages based
on an LRAA violation. The district court stated that Neal
had conceded that, absent the LRAA, he would not be able to
bring a section 1983 action. It then found that comity
dictated that the District of Columbia's courts be allowed to
decide whether the LRAA creates a private right of action in
the first instance, and dismissed Neal's entire suit. See Neal
v. District of Columbia, 931 F. Supp. 16, 17 (D.D.C. 1996).
Neal appeals from this order.
II. Analysis
On appeal, the District presents a number of arguments for
affirming the district court's decision to dismiss Neal's section
1983 action. The most serious is that, under Sandin, 515
U.S. 472 (1995), Neal did not have a liberty interest in
avoiding his placement in administrative segregation. Be-
cause we agree with this one, we do not reach the others.
Before addressing Sandin, however, we briefly discuss the
reasons given by the district court for its decision. The
district court mistakenly assumed that, if a state law does not
create a private cause of action, then it cannot support an
action under section 1983. But to bring an action under
section 1983 for a violation of the Due Process Clause, Neal
need only establish that he has been deprived of a protected
interest (here, a liberty interest) without due process. Under
the law as it stood before Sandin was decided, Neal could
have demonstrated this by showing that the relevant state
laws and regulations sufficiently constrained the discretion of
state officials to establish the existence of a liberty interest.
See Brown, slip op. at 9. Since Sandin, Neal must show that
he has been subjected to an "atypical and significant hardship
... in relation to the ordinary incidents of prison life."
Sandin, 515 U.S. at 484.2 At neither time, however, did the
test for the existence of a liberty interest turn on whether the
relevant state laws create a private cause of action.
We now turn to Sandin. In the companion Brown case, we
concluded that the application of Sandin raised difficult ques-
tions which we thought it unnecessary to answer. In this
case, we need not reach those questions, as Neal cannot
establish the existence of a liberty interest under any plausi-
ble reading of Sandin.
Neal avers that he involuntarily spent six months in "volun-
tary" protective custody, beginning at the point he asked in
writing on December 1, 1992, to leave voluntary protective
custody, and ending when he left the administrative segrega-
__________
2 As we note in Brown, after Sandin Neal might still need also to
show that relevant state laws and regulations contain language
constraining the discretion of state officials. See Brown, slip op. at
12.
tion unit on June 21, 1993, for the hospital.3 In Cellblock 1,
where Neal was held during that period, he was allowed to
leave his cell for nine hours a day three days a week, for six
and a half hours (or longer if he had a visitor) for two days a
week, and for five and six hours respectively on the remaining
two days. He was allowed a total of eight hours a week
outdoors, in a small courtyard. He did not have easy access
to the gym, mailroom, law library, or medical unit (although
other arrangements were made for provision of these ser-
vices), and he could not work at a prison job.
Neal contends that the appropriate standard for determin-
ing whether the deprivation he suffered was "atypical and
significant" is to compare his circumstances to those of the
general prison population from which he was removed. Cf.
Brown, slip op. at 10-12. Even by that standard, however,
Neal fails to meet the Sandin test. Had he remained a part
of the general population at the Maximum Security Facility,
Neal would have received at least 141/2 hours a day of out-of-
cell time, and 171/2 hours on Fridays and Saturdays. He
would have been allowed 14 hours a week outdoors, some 22
hours a week of work, and easy access to the gym, mailroom,
law library, and medical unit. His placement in administra-
tive segregation thus cost him approximately half of his out-
of-cell time, eliminated his access to employment, and re-
stricted his access to prison facilities, all over a six-month
period. This deprivation is comparable to that at issue in
Sandin; although the deprivation in Sandin lasted only
thirty days, it was considerably more severe, involving (for
instance) a reduction from between eight and twelve hours a
day of out-of-cell time to fifty minutes. Sandin, 515 U.S. at
__________
3 The LRAA states that a prisoner in voluntary protective custo-
dy who makes a written request to leave that status "shall be
released at once from protective custody." D.C. Mun. Regs. tit. 28,
s 521.12 (1987). The LRAA permits an inmate who asks to leave
voluntary protective custody to be placed instead in involuntary
protective custody if findings are made that the inmate is a danger
to himself or others or presents an escape risk. See id., ss 521.4,
521.12. The District does not contend that any such findings were
made.
486 & n.8. It follows that, even under the reading of Sandin
he himself proposes, Neal had no liberty interest in avoiding
his treatment at the hands of Lorton's authorities, and so has
no claim under the Due Process Clause. We therefore affirm
the dismissal of Neal's due process claim.4
There remains Neal's claim under the LRAA. Although it
is unclear on what basis the district court originally dismissed
this claim, Neal concedes that, if the district court's dismissal
of his section 1983 claim was proper, it would also have been
proper for the district court to dismiss his claim under D.C.
law for lack of jurisdiction. See 28 U.S.C. s 1367(c)(3).5 We
thus affirm the district court's dismissal of this claim.
The decision of the district court is therefore affirmed.
So ordered.
__________
4 Although we find that the District's alleged treatment of Neal
does not rise to the level of a violation of the Constitution, that does
not mean that we endorse it. We do not know from the record
whether the District had any valid reason for keeping Neal for six
months in "voluntary" protective custody against his will, and why it
denied him any process at all.
5 Neal may, of course, pursue his LRAA claim in the courts of the
District of Columbia. Dismissals for lack of supplemental jurisdic-
tion are without prejudice, and the limitations period for a claim
dismissed for this reason is tolled "while the claim is pending and
for a period of 30 days after it is dismissed unless State law
provides for a longer tolling period." 28 U.S.C. s 1367(d).