Brown v. Oregon Department of Corrections

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSHUA ROBERT BROWN, No. 11-35628

Plaintiff-Appellant,

D.C. No.

v. 3:10-cv-00003-

BR

OREGON DEPARTMENT OF

CORRECTIONS; MAX WILLIAMS;

STAN CZERNIAK; MICHAEL GOWER; OPINION

BARBARA COONEY; JOAN BARTON;

GREG JONES; MARK NOOTH; JUDY

GILMORE; JACK BLANKENBAKER;

HEIDI MACKENZIE; THERESA HICKS,

in their individual and official

capacities,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted

March 4, 2014—Portland, Oregon

Filed April 29, 2014

Before: Alfred T. Goodwin, Stephen S. Trott,

and William A. Fletcher, Circuit Judges.

Opinion by Judge Goodwin

2 BROWN V. OREGON DEP’T OF CORR.

SUMMARY*

Prisoner Civil Rights

The panel affirmed the district court’s summary judgment

in favor of prison officials in a 42 U.S.C. § 1983 action in

which a prisoner alleged that officials violated his due

process rights by housing him in the Intensive Management

Unit without periodic, meaningful review of his status.

The panel held that plaintiff’s twenty-seven month

confinement in the Intensive Management Unit, without a

meaningful review, imposed an atypical and significant

hardship that implicated a protected liberty interest which

gave rise to the procedural protections of the Due Process

Clause. The panel also held, however, that plaintiff’s claims

against the Oregon Department of Corrections and his

damages claims against the individual defendants in their

official capacities were barred by the Eleventh Amendment.

Plaintiff’s remaining damages claims were barred by

qualified immunity because, although a lengthy confinement

without meaningful review may constitute atypical and

significant hardship, the panel could not hold defendants

liable for the violation of a right that was not clearly

established at the time the violation occurred.

The panel affirmed the district court’s summary judgment

on plaintiff’s claim for declaratory relief because the record

showed that he had been released from the Intensive

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BROWN V. OREGON DEP’T OF CORR. 3

Management Unit and there was no evidence that he was

likely to again be subject to the challenged conditions.

COUNSEL

Tobias W. Mock (argued), Keith Slenkovich, Wilmer Hale

LLP, Palo Alto, California, for Plaintiff-Appellant.

Tiffany Keast (argued), Assistant Attorney General, Ellen F.

Rosenblum, Attorney General, Anna M. Joyce, Solicitor

General, Oregon Department of Justice, Salem, Oregon, for

Defendants-Appellees.

OPINION

GOODWIN, Circuit Judge:

Joshua Robert Brown, currently incarcerated at Oregon’s

Snake River Correctional Institution (“SRCI”), appeals the

district court’s summary judgment in his pro se 42 U.S.C.

§ 1983 action. Brown alleges that prison officials violated his

due process rights by housing him in the Intensive

Management Unit (“IMU”) without periodic, meaningful

review of his status.

We hold that, under any plausible baseline, Brown’s

conditions of confinement implicate a protected liberty

interest giving rise to the procedural protections of the Due

Process Clause. We also hold, however, that defendants are

entitled to Eleventh Amendment and qualified immunity. We

therefore affirm.

4 BROWN V. OREGON DEP’T OF CORR.

FACTUAL AND PROCEDURAL BACKGROUND

Brown was assigned a Level 5 custody classification and

placed in the IMU at SRCI on June 18, 2008, after being

found in possession of a weapon. He remained confined in

the IMU at either SRCI or the Oregon State Penitentiary

(“OSP”) for twenty-seven consecutive months, until his

release to the OSP general population on September 22, 2010.

Pursuant to the Oregon Administrative Rules, a Level 5

custody classification is the highest level of supervision and

is assigned to inmates demonstrating “behaviors that in the

judgment of the department present a threat sufficient to

require special security housing on intensive management

status.” Oregon Administrative Rule (“OAR”) 291-104-

0111(9)(a)(A). Level 5 classifications are assigned by the

Special Population Management Committee. OAR 291-104-

0125(3)(a). Once an inmate is assigned to Level 5, he is

placed in the IMU or an IMU-status cell, and that status

remains until the inmate “is manually scored to a lower

custody classification level by the assigned institutional

counselor.” OAR 291-104-0125(3)(b); see also OAR 291-

055-0005(3)(b), 0031.

IMU inmates are held in solitary confinement for more

than twenty-three hours per day. They are permitted outside

of their cells for a total of only forty minutes per day and may

spend thirty of those minutes engaged in recreation. Half of

that time–fifteen minutes–may be spent in an “outside”

facility reserved for IMU use, within a fifteen by forty-foot

room with high, concrete walls covered by a metal grate.

Inmates in the general population, in contrast, receive twenty-

five to thirty hours per week for recreation and social

interaction, including two to five hours of outside recreation

BROWN V. OREGON DEP’T OF CORR. 5

every day. IMU inmates are permitted two non-contact visits

per month and a maximum of two visitors in a six-month

period, while general-population inmates are permitted

between eleven and twenty-two contact visits per month and

an unlimited number of approved visitors. IMU inmates are

denied access to many other privileges afforded inmates in

the general population, including access to the prison and law

libraries, group religious worship, educational and vocational

opportunities, telephone use except in emergencies, access to

televisions, and access to personal property.

IMU inmates are assigned a numerical “Programming

Level” between 1 and 4. OAR 291-055-0020. Upon their

placement in the IMU, inmates are assigned to Programming

Level 2 and are given mandatory behavior-modification

programs comprising individual program “packets.” OAR

291-055-0020(2)(b), (d). Inmates are not eligible for release

from the IMU until they have attained Programming Level 4

status, which requires “successful completion” of the

assigned packets. OAR 291-055-0020(2)(d)(C). Because

only one program packet may be completed in any two-week

period, the duration of an inmate’s confinement is dependent

on the number of packets that he is assigned.

Although prior Oregon Department of Corrections

(“ODOC”) regulations required reviews of inmates’ custody

classifications every six months, see OAR 291-104-0125

(abrogated), ODOC discontinued this practice following

amendments to the administrative rules in May 2008. Current

review procedures consist only of “programming” reviews,

thirty-day reviews of each IMU inmate’s programming status.

OAR 291-055-0020(2), 0025(2). As part of this review

procedure, within thirty days of an inmate reaching

Programming Level 4, the Inmate Program Committee is

6 BROWN V. OREGON DEP’T OF CORR.

required to provide a written recommendation for or against

release from the IMU to the Classification Transfer Unit,

which is charged with making the final determination

regarding the inmate’s classification status. OAR 291-055-

0031(2)–(3).

The Administrative Segregation Unit (“ASU”) and

Disciplinary Segregation Unit (“DSU”) constitute other forms

of segregated housing in the ODOC prison system. ASU is

“[a]dministrative housing for those inmates whose notoriety,

actions, or threats jeopardize the safety, security, and orderly

operation of the facility.” OAR 291-046-0010(3). DSU is

punitive housing reserved for inmates “in violation of rules of

prohibited conduct.” OAR 291-011-0005(2).

Unlike the IMU, inmates may not be housed in the DSU

for longer than 180 days, and are entitled to thirty-day

“assessment” reviews evaluating whether to recommend their

early release from segregation. OAR 291-105-0066(10), 291-

011-0030(3). Other conditions of confinement in the DSU

generally are similar to conditions in the IMU, although DSU

inmates are not required to participate in behavior-

modification programs.

Retention in the ASU is limited to no more than thirty

days without a hearing and status review and no more than

180 days without “due process.” OAR 291-046-0025(4),

0085(2), 0090(1). Conditions in the ASU are less restrictive

than in the IMU, with ASU inmates afforded access to

telephones, televisions, computers, and personal shoes and

other property. Inmates in the ASU are permitted seven

hours of recreation per week and are not required to

participate in behavior-modification programs.

BROWN V. OREGON DEP’T OF CORR. 7

Brown was assigned to the IMU at SRCI on June 18,

2009 and given fifty-three behavior-modification packets.

The subject matter of at least thirty of Brown’s assigned

packets had no relationship to his underlying crime, the basis

for his confinement in the IMU, or the IMU’s stated security

objectives.

The Inmate Program Committee conducted four

programming reviews of Brown’s status between July and

September 2008, advancing him from Programming Level 2

to 3 on October 21, 2008. The record does not include

evidence of any additional programming reviews until June

2009. Thereafter, the Inmate Program Committee reviewed

Brown’s programming status every month, keeping him at

Programming Level 3 pending the “successful completion”

of his assigned mandatory programming packets. The Inmate

Program Committee’s meeting minutes state only that Brown

“is programming–no change.” Brown completed his

behavior-modification programming and was promoted to

Programming Level 4 on August 24, 2010. He was released

from the IMU on September 22, 2010.

While housed in the IMU, Brown submitted eight

petitions to prison officials requesting review of his

classification status. Those requests were denied, and Brown

was not afforded a review of his classification status until the

eve of his eventual release from the IMU.

Brown filed a pro se 42 U.S.C. § 1983 action alleging,

among other things, that defendants had violated his due

process rights under the Fourteenth Amendment by failing to

provide periodic, meaningful reviews of his confinement.

Defendants moved for summary judgment; Brown did not

cross-move. The district court granted summary judgment on

8 BROWN V. OREGON DEP’T OF CORR.

Brown’s due process claim because it concluded that ODOC

officials had conducted programming reviews of Brown’s

classification once per month in accordance with policy, and

Brown had no liberty interest in freedom from segregation in

the IMU.

Now represented by pro bono counsel, Brown assigns

error only to the summary judgment on his due process claim.

DISCUSSION

On de novo review, Morrison v. Hall, 261 F.3d 896, 900

(9th Cir. 2001), we hold that, under any plausible baseline,

Brown’s conditions of confinement implicate a protected

liberty interest giving rise to procedural due process

protections. We also hold, however, that defendants are

entitled to immunity.

A. Due Process

Prisoners are entitled to certain due process protections

when subject to disciplinary sanctions. See Wolff v.

McDonnell, 418 U.S. 539, 564–71 (1974). In Sandin v.

Conner, however, the Supreme Court held that these

procedural protections adhere only where the deprivation

implicates a protected liberty interest–that is, where the

conditions of confinement impose an “atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life.” 515 U.S. 472, 484 (1995). We may consider

“1) whether the challenged condition ‘mirrored those

conditions imposed upon inmates in administrative

segregation and protective custody,’ and thus comported with

the prison’s discretionary authority; 2) the duration of the

condition, and the degree of restraint imposed; and 3) whether

BROWN V. OREGON DEP’T OF CORR. 9

the state’s action will invariably affect the duration of the

prisoner’s sentence.” Ramirez v. Galaza, 334 F.3d 850, 861

(9th Cir. 2003) (citations omitted). If a protected liberty

interest is at stake, then the court must determine whether the

procedures used to deprive the prisoner of that liberty violate

due process. See id. at 860.

The district court granted summary judgment on Brown’s

due process claim because it concluded, first, that defendants

had conducted periodic reviews of the classification status

that kept Brown confined in the IMU, and second, that the

challenged conditions in the IMU were not atypical in

comparison to conditions in the ASU and DSU. We hold that

defendants are not entitled to summary judgment on either

ground.

First, the record shows–and defendants’ counsel conceded

at oral argument–that Brown received no meaningful review

of his IMU confinement for twenty-seven months. Brown’s

term of confinement in the IMU was dependent on his

completion of fifty-three assigned packets. Because an

inmate may complete only one program packet in any two-

week period, Brown’s confinement in the IMU could not

possibly have lasted less than 106 weeks, regardless of the

appropriateness of his continued segregation. Given that

prison officials lack discretion to promote an inmate from one

programming level to another or to release an inmate from

the IMU before he completes the assigned packets, Brown’s

programming reviews were essentially meaningless.

Second, under any plausible baseline, Brown’s twenty-

seven month confinement in the IMU without meaningful

review “impose[d] atypical and significant hardship on [him]

in relation to the ordinary incidents of prison life.” Sandin,

10 BROWN V. OREGON DEP’T OF CORR.

515 U.S. at 484. As an initial matter, we recognize that the

baseline for determining “atypical and significant hardship”

is not entirely clear. We have noted that “[t]he Sandin Court

seems to suggest that a major difference between the

conditions for the general prison population and the

segregated population triggers a right to a hearing,” Keenan

v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996), but have not

clearly held that conditions in the general population, as

opposed to those in other forms of administrative segregation

or protective custody, form the appropriate baseline

comparator. Cf. Ramirez, 334 F.3d at 861 (identifying as a

guidepost for evaluating atypical and significant hardship

“whether the challenged condition ‘mirrored those conditions

imposed upon inmates in administrative segregation and

protective custody,’ and thus comported with the prison’s

discretionary authority” (quoting Sandin, 515 U.S. at 486)).

The Supreme Court acknowledged this uncertainty in

Wilkinson v. Austin, noting that “[i]n Sandin’s wake the

Courts of Appeals have not reached consistent conclusions

for identifying the baseline from which to measure what is

atypical and significant in any particular prison system.”

545 U.S. 209, 223 (2005). It chose not to resolve the issue,

however, concluding, “[W]e are satisfied that [the challenged

conditions] impose[] an atypical and significant hardship

under any plausible baseline.” Id.

Similarly, we need not locate the appropriate baseline

here because Brown’s twenty-seven month confinement in

the IMU imposed an atypical and significant hardship under

any plausible baseline. Confinement in the IMU subjected

Brown to solitary confinement for over twenty-three hours

each day with almost no interpersonal contact, and denied

him most privileges afforded inmates in the general

population. While these conditions alone might apply to most

BROWN V. OREGON DEP’T OF CORR. 11

solitary-confinement facilities, here there is a crucial factor

distinguishing confinement in the IMU: the duration of

Brown’s confinement. See Hutto v. Finney, 437 U.S. 678,

686 (1978) (“[T]he length of confinement cannot be ignored

in deciding whether the confinement meets constitutional

standards.”). Brown was given a fixed and irreducible period

of confinement in the IMU for twenty-seven months, in

contrast to the limited period of confinement with periodic

review afforded inmates in ODOC’s other segregated-housing

units. Retention in the ASU is limited to no more than thirty

days without a hearing or status review. Retention in the

DSU–where conditions of confinement generally are similar

to conditions in the IMU–is limited by thirty-day assessment

reviews, with the maximum period of confinement limited to

six months. Brown’s conditions of confinement in the IMU

thus implicate a protected liberty interest under any plausible

baseline.

B. Immunity

We nonetheless affirm the district court’s grant of

summary judgment because defendants are entitled to

Eleventh Amendment and qualified immunity. See Johnson

v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th

Cir. 2008) (explaining that we may affirm on any ground

supported by the record). First, Brown’s claims against the

Oregon Department of Corrections and his damages claims

against the individual defendants in their official capacities

are barred by the Eleventh Amendment. See Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“It is

clear . . . that in the absence of consent a suit in which the

State or one of its agencies or departments is named as the

defendant is proscribed by the Eleventh Amendment.”);

Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982)

12 BROWN V. OREGON DEP’T OF CORR.

(explaining that “Eleventh Amendment immunity extends to

actions against state officers sued in their official capacities

because such actions are, in essence, actions against the

governmental entity,” but “does not bar actions against state

officers in their official capacities if the plaintiffs seek only

a declaratory judgment or injunctive relief”).

Second, Brown’s remaining damages claims are barred by

qualified immunity. Government officials who perform

discretionary functions generally are entitled to qualified

immunity from liability for civil damages “insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The Supreme Court has set forth a two-part analysis for

resolving qualified immunity claims, which we may address

in any order. See Pearson v. Callahan, 555 U.S. 223, 236

(2009). First, we must consider whether the facts “[t]aken in

the light most favorable to the party asserting the injury . . .

show [that] the [defendant’s] conduct violated a constitutional

right[.]” Saucier v. Katz, 533 U.S. 194, 201 (2001),

overruled in part on other grounds by Pearson, 555 U.S. at

236. Second, we must determine whether the right was

clearly established at the time of the alleged violation.

Saucier, 522 U.S. at 201. Even if the right was clearly

established at the time of the violation, it may be “difficult for

[the defendant] to determine how the relevant legal doctrine

. . . will apply to the factual situation the [defendant]

confronts.” Id. at 205. Therefore, “[i]f the . . . mistake as to

what the law requires is reasonable . . . the [defendant] is

entitled to the immunity defense.” Id.

We begin with the second prong of the qualified-

immunity analysis: whether the right was clearly established

BROWN V. OREGON DEP’T OF CORR. 13

at the time of the alleged violation. Until now, this court has

not addressed whether the absence of post-placement

periodic, meaningful review of confinement in a disciplinary-

segregation unit may give rise to a protected liberty interest.

We previously have found a state-created liberty interest in

review of prisoners’ confinement arising from language of

state prison regulations. See Toussaint v. McCarthy, 801 F.2d

1080, 1097–98 (9th Cir. 1986), abrogated in part on other

grounds by Sandin, 515 U.S. 472. However, the Supreme

Court has since “refocused the test for determining the

existence of a liberty interest away from the wording of

prison regulations and toward an examination of the hardship

caused by the prison’s challenged action relative to ‘the basic

conditions’ of life as a prisoner.” Mitchell v. Dupnik, 75 F.3d

517, 522 (9th Cir. 1996) (quoting Sandin, 515 U.S. at 485).

Thus, we must now evaluate whether the deprivation in

question “imposes atypical and significant hardship on the

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

Sandin, 515 U.S. at 484. Although we conclude that a

lengthy confinement without meaningful review may

constitute atypical and significant hardship, our case law has

not previously so held, and we cannot hold defendants liable

for the violation of a right that was not clearly established at

the time the violation occurred.

Qualified immunity “is only an immunity from a suit for

money damages, and does not provide immunity from a suit

seeking declaratory or injunctive relief.” Hydrick v. Hunter,

669 F.3d 937, 939–40 (9th Cir. 2012). We affirm the district

court’s summary judgment on Brown’s claim for declaratory

relief, however, because the record shows that Brown has

been released from the IMU and there is no evidence that he

is likely to again be subject to the challenged conditions. See

City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)

14 BROWN V. OREGON DEP’T OF CORR.

(holding that past exposure to harm does not confer standing

to obtain equitable relief “[a]bsent a sufficient likelihood that

[the plaintiff] will again be wronged in a similar way”).

Accordingly, we affirm the district court’s summary

judgment.

AFFIRMED.