Hatch, Donald J. v. DC

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.