Rex Chappell v. R. Mandeville

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REX CHAPPELL, No. 09-16251

Plaintiff-Appellee,

D.C. No.

v. 2:03-cv-00653-

GEB-KJM

R. MANDEVILLE; T. ROSARIO ,

Defendants-Appellants,

OPINION

and

J. CASE; C. DAVIS;

C. RASMUSSEN ; RODRIGUEZ,

Defendants.

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted

August 29, 2011—San Francisco, California

Filed January 31, 2013

2 CHAPPELL V . MANDEVILLE

Before: Marsha S. Berzon and Jay S. Bybee, Circuit

Judges, and James L. Graham, Senior District Judge.*

Opinion by Judge Bybee;

Concurrence by Judge Graham;

Partial Dissent by Judge Berzon

SUMMARY**

Prisoner Civil Rights

The panel reversed the district court’s denial of a motion

for summary judgment brought by two California state prison

officials in this 42 U.S.C. § 1983 action in which plaintiff

alleged Eighth Amendment and due process violations in

connection with his six-day placement on contraband watch.

The panel concluded that, as of April-May 2002, the law

was not clearly established as to whether the conditions that

plaintiff experienced in connection with the contraband

watch, including twenty-four hour lighting and mattress

deprivation, violated the Eighth Amendment. The panel also

concluded that plaintiff could not claim a liberty interest

under the Due Process Clause of the Fourteenth Amendment,

and it was not clearly established that he had sustained a

*

The Honorable James L. Graham, Senior District Judge for the U.S.

District Court for the Southern District of Ohio, sitting by designation.

**

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

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

CHAPPELL V . MANDEVILLE 3

violation of a state-created liberty interest. Therefore, both

prison officials were entitled to qualified immunity.

Concurring, District Judge Graham wrote separately

because he disagreed with the majority’s interpretation of the

Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472

(1995), in the context of their analysis of plaintiff’s due

process claim based on a state-created liberty interest.

Dissenting in part, Judge Berzon agreed that prison

officials were entitled to qualified immunity on the due

process issues. Judge Berzon dissented because in her view,

a reasonable officer would have known that, in combination,

the twenty-four-hour bright light, the absence of a mattress,

and the extensive bodily restraints risked depriving plaintiff

of sleep, in violation of the Eighth Amendment.

COUNSEL

Megan R. O’Carroll, Deputy Attorney General, Sacramento,

California, for Defendants-Appellants.

Caleb E. Mason, Southwestern Law School, Los Angeles,

California, for Plaintiff-Appellee.

OPINION

BYBEE, Circuit Judge:

Plaintiff Rex Chappell brought a § 1983 case against

various officials from California State Prison, Sacramento,

alleging constitutional violations relating to his six-day

4 CHAPPELL V . MANDEVILLE

placement on contraband watch. The defendants brought a

motion for summary judgment, and the district court granted

the motion on some of the claims, but denied summary

judgment with respect to Chappell’s Eighth Amendment and

due process claims against defendants R. Mandeville and

T. Rosario. Mandeville and Rosario appealed. We hold that

both Mandeville and Rosario are entitled to qualified

immunity because the law at the time Chappell was on

contraband watch did not clearly establish that their actions

were unconstitutional. We therefore reverse.

I. FACTS AND PROCEDURAL HISTORY

Rex Chappell was a prisoner in California State Prison,

Sacramento when his fianceé, Philissa Richard, came to visit

him on April 28, 2002. When Richard entered the prison

facilities she was wearing a ponytail hairpiece; the next day

the hairpiece was discovered in a trash can near the visiting

room. Prison officials then searched the entire visiting area

and found spandex undergarments in the women’s bathroom.

Both the hairpiece and the undergarments tested positive for

cocaine residue. Richard admitted that the hairpiece was hers,

but an investigation did not conclude whether the

undergarments also belonged to Richard. A background

check revealed that Richard had a long history of felony

offenses, including numerous drug offenses.

Prison staff conducted a search of Chappell and his prison

cell, during which they notified Chappell that they believed

that someone had introduced drugs through a hairpiece. The

officials discovered three unlabelled bottles of what appeared

to be eye drops in Chappell’s cell. The liquid in the bottles

tested positive for methamphetamine.

CHAPPELL V . MANDEVILLE 5

On April 30, 2002, Chappell was placed on contraband

watch. Under prison regulations, an official who is the rank

of captain or above can make the decision to place a prisoner

on contraband watch if the official has reasonable cause to

believe that an inmate has ingested or secreted contraband.

F. Schroder was the acting facility captain at the time, but he

did not remember any specific details as to how Chappell was

placed on contraband watch or who made the decision.

R. Mandeville, captain of the Investigative Services Unit, was

in charge of the investigation but denies that he was the

official who ordered contraband watch. T. Rosario was the

acting warden and also would have had authority to order the

watch.

Contraband watch, also known as a “body cavity search,”

is a temporary confinement during which a prisoner is closely

monitored and his bowel movements searched to determine

whether he has ingested or secreted contraband in his

digestive tract. Under prison procedures, the prisoner is first

searched and then dressed so as to prevent him from excreting

any contraband and removing it from his clothing. The

prisoner is placed in two pairs of underwear, one worn

normally and the other backwards, with the underwear taped

at the waist and thighs. The prisoner is also placed in two

jumpsuits, one worn normally and the other backwards, with

the suits taped at the thighs, ankles, waist, and upper arms.

The tape on both the underwear and the jump suits is not

meant to touch the skin; it is used to close off any openings

in the clothing. The prisoner is then placed in waist chain

restraints, which are handcuffs that are separated and chained

to the side of the prisoner’s waist. This prevents the prisoner

from being able to reach his rectum. The waist chain

restraints are adjustable and can be lengthened if necessary.

The prisoner is then placed in a surveillance cell where prison

6 CHAPPELL V . MANDEVILLE

staff watch the prisoner at all times. The lights are kept on in

the cell to allow staff to see the prisoner. To prevent the

inmate from concealing contraband, the cell does not have

any furniture other than a bed without a mattress. The

prisoner is given a blanket, and receives three meals a day

and beverages. When the prisoner needs to defecate he must

notify the prison staff who will bring him a plastic, moveable

toilet chair. Once he uses the chair, the staff will search the

waste to determine if it contains contraband.

Chappell generally confirmed that these policies were

applied to him while he was under contraband watch. In

addition to these procedures, Chappell claims that he was also

placed in ankle shackles, and chained to the bed. He

complains that the waist restraints were not loosened for

meals, forcing him to “eat [his] food like a dog; the

temperature in the cell was very high; the cell was

unventilated; and the lights were “very bright.” Chappell

alleged that the conditions “did in fact torture [him] mentally”

and he felt like he “deteriorat[ed] mentally” during

contraband watch.

After having three bowel movements that did not reveal

contraband, Chappell was released from contraband watch on

May 6, 2002.

Chappell brought an action under 42 U.S.C. § 1983

naming various prison officials as defendants, including

Mandeville and Rosario, and alleging numerous

constitutional claims. The defendants brought a motion for

summary judgment, and the district court, adopting the

findings and recommendations of the magistrate judge,

granted the motion on some of the claims, but denied

summary judgment with respect to two of Chappell’s claims

CHAPPELL V . MANDEVILLE 7

against Mandeville and Rosario: (1) that the contraband

watch constituted cruel and unusual punishment in violation

of the Eighth Amendment, and (2) that Chappell’s due

process rights were violated since he was not given notice of

the charges against him or an opportunity to be heard prior to

being placed on contraband watch. Mandeville and Rosario

appealed.

II. LEGAL BACKGROUND

Qualified immunity protects government officials from

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); see also Schwenk v.

Hartford, 204 F.3d 1187, 1195–96 (9th Cir. 2000) (applying

qualified immunity to prison officials). Whether qualified

immunity applies thus “turns on the objective legal

reasonableness of the action, assessed in light of the legal

rules that were clearly established at the time it was taken.”

Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012)

(internal quotation marks omitted). Officials must have “fair

warning” that their actions are unconstitutional. Hope v.

Pelzer, 536 U.S. 730, 741 (2002); Porter v. Bowen, 496 F.3d

1009, 1026–27 (9th Cir. 2007). If an official “reasonably

believes that his or her conduct complies with the law,”

qualified immunity applies. Pearson v. Callahan, 555 U.S.

223, 244 (2009); see also Motley v. Parks, 432 F.3d 1072,

1077 (9th Cir. 2005) (en banc) (noting that qualified

immunity will “shield[] an officer from trial when the officer

reasonably misapprehends the law governing the

circumstances she confronted, even if the officer’s conduct

was constitutionally deficient” (internal quotation marks

8 CHAPPELL V . MANDEVILLE

omitted)), overruled on other grounds by United States v.

King, 687 F.3d 1189 (9th Cir. 2012) (en banc).

To determine whether the law was clearly established, we

first look to our own binding precedent. See Osolinski v.

Kane, 92 F.3d 934, 936 (9th Cir. 1996). If none is on point,

we may consider other decisional law. Id.; Drummond ex rel.

Drummond v. City of Anaheim, 343 F.3d 1052, 1060–61 (9th

Cir. 2003). We need not find that the “very action in question

has previously been held unlawful,” Anderson v. Creighton,

483 U.S. 635, 640 (1987) (internal citation omitted), but,

rather, we consider whether “a reasonable officer would have

had fair notice that [the action] was unlawful, and that any

mistake to the contrary would have been unreasonable.”

Drummond, 343 F.3d at 1060; see also Hope, 536 U.S. at 741

(“[O]fficials can still be on notice that their conduct violates

established law even in novel factual circumstances.”).

In determining whether a government official should be

granted qualified immunity, we view the facts in the light

most favorable to the injured party. Saucier v. Katz, 533 U.S.

194, 201 (2001), receded from on other grounds by Pearson,

355 U.S. at 817–21; see also Bryan v. MacPherson, 630 F.3d

805, 817 (9th Cir. 2010).

III. DISCUSSION

On appeal, Mandeville and Rosario argue that they are

entitled to qualified immunity on Chappell’s Eighth

Amendment and due process claims.1 We agree. Under

1

W e have jurisdiction to consider an interlocutory appeal of a denial of

qualified immunity. Behrens v. Pelletier, 516 U.S. 299, 307 (1996). W e

review a district court’s denial of summary judgment on grounds of

CHAPPELL V . MANDEVILLE 9

Chappell’s version of the facts, and assuming that he has

stated a claim under the Eighth and Fourteenth Amendments,

the law was not clearly established on either of Chappell’s

claims at the time the contraband watch took place such that

Mandeville and Rosario would have had fair notice that their

actions were unconstitutional. Thus, Mandeville and Rosario

are entitled to qualified immunity.

A. Chappell’s Eighth Amendment Claim

Chappell argues that the combination of conditions to

which he was subjected, including twenty-four-hour lighting

and mattress deprivation, violated his Eighth Amendment

rights. We hold that as of April-May 2002, when Chappell

was placed on contraband watch, the law was not clearly

established as to whether the conditions Chappell

experienced—either in isolation or combination—violated the

Eighth Amendment, made applicable to the states through the

Fourteenth Amendment.

1. Continuous lighting

With regards to continuous lighting, as of April-May

2002, we had explained generally that sufficient or

“[a]dequate lighting is one of the fundamental attributes of

‘adequate shelter’ required by the Eighth Amendment,”

Hoptowit v. Spellman, 753 F.2d 779, 783 (9th Cir. 1985)

(holding that inadequate lighting violated the Constitution),

but we had only addressed constant illumination once in

Keenan v. Hall, 83 F.3d 1083, 1088, 1090–91 (9th Cir. 1996).

In Keenan we held that there was a triable issue of fact on a

qualified immunity de novo. See Bryan, 630 F.3d at 823; Sorrels v.

McKee, 290 F.3d 965, 969 (9th Cir. 2002).

10 CHAPPELL V . MANDEVILLE

continuous lighting claim where a prisoner was subjected to

two large fluorescent lights that were kept on 24 hours a day

for six months, and the prisoner claimed that the lighting

caused him “‘grave sleeping problems’ and other and

psychological problems.” Id. at 1088, 1091. We noted that the

prison officials in that case had “no legitimate penological

justification for requiring inmates to suffer physical and

psychological harm by living in constant illumination,” id. at

1090 (internal quotation marks and alterations omitted),

relying on a district court decision, LeMaire v. Maass, 745 F.

Supp. 623, 636 (D. Or. 1990), vacated, 12 F.3d 1444, 1459

(9th Cir. 1993) (vacating, in part, because the state agreed to

change the lighting).

Keenan did not clearly establish that Mandeville’s and

Rosario’s actions were unconstitutional because the facts of

Keenan are distinguishable. In Keenan, the prisoner claimed

sleep deprivation over a period of six months; Chappell’s

claim is based on seven days of contraband watch, and he did

not claim that he was sleep deprived.2

Moreover, Keenan did not clearly establish that constant

illumination violates the Eighth Amendment when done for

a legitimate penological purpose. Keenan noted that no

legitimate penological justification had been offered in that

case. Keenan, 83 F.3d at 1090. Furthermore, the district court

case on which Keenan relied, LeMaire, acknowledged that a

need to see into cells as a security measure could be a

2

As Judge Berzon acknowledges in her dissent, Chappell “did not

expressly allege” that the contraband watch caused him sleeping

problems. Dissent Op. at 35. The only statement relating to sleep in the

Amended Complaint is that Chappell was “deteriorating mentally” and

had to “attempt to sleep that way.”

CHAPPELL V . MANDEVILLE 11

legitimate penological justification, but concluded that the

penological justification offered in that case was insufficient

because there was no evidence that the staff “need[ed] to see

into the quiet cells for 24 hours per day, or that they [were]

even near the quiet cells for 24 hours per day.” LeMaire, 745

F. Supp. at 636.3 In contrast, the record here reflects a clear

penological purpose. Prison officials suspected that Chappell

had secreted contraband in his body and kept the lights on so

that they could monitor Chappell 24 hours a day to prevent

him from disposing of the contraband. The officers would

have been unable to perform contraband watch if they could

not see into his cell. Thus, our case law did not clearly

establish that in April-May 2002 that the constant

illumination of Chappell’s cell was unconstitutional.

In addition, even if Chappell and Mandeville had looked

to other decisional law for guidance they still would not have

had fair notice that their actions were unconstitutional.

Indeed, one district court case surveying the state of the law

explained that there have been “mixed results” on continuous

lighting claims because “such cases are fact-driven.”

Shepherd v. Ault, 982 F. Supp. 643, 645 (N.D. Iowa 1997). In

that case the court held that prisoners raised a genuine issue

of material fact on their Eighth Amendment claims where two

prisoners spent 283 days and 550 days, respectively, under

3

Judge Berzon points out that Keenan says that “‘there is no legitimate

penological justification for requiring inmates to suffer physical and

psychological harm by living in constant illumination.’” Keenan, 83 F.3d

at 1090 (quoting LeMaire, 745 F. Supp. at 636); see Dissent O p. at 36.

Although Judge Berzon reads Keenan as broadly stating that penological

reasons cannot justify constant illumination under any circumstances,

Keenan itself was quoting from LeMaire, in which that court left open the

possibility that a legitimate penological purpose could justify constant

illumination. 745 F. Supp. at 636.

12 CHAPPELL V . MANDEVILLE

bright lighting, and one of those two prisoners claimed that he

had difficulty sleeping. Id. at 647–49. Under different

circumstances, however, other courts had concluded that the

effects of continuous lighting were not severe enough to

constitute a violation of the Eighth Amendment. See, e.g.,

Zatko v. Rowland, 835 F. Supp. 1174, 1181 (N.D. Cal 1993)

(noting that continuous light depriving a prisoner of sleep

would be unconstitutional but dismissing the claim because

the officers did not use the light to try to keep the prisoner

awake); Williams v. Ward, 567 F. Supp. 10, 13, 15 (E.D.N.Y

1982) (holding that keeping hallway lights on all night did not

violate a constitutional right even where plaintiff claimed

inability to sleep); Cassidy v. Superintendent, 392 F. Supp.

330, 334 (W.D. Va. 1975) (holding that “flood[ing] a cell

with a bright light twenty-four hours a day” was

constitutional where the lights allowed guards to check the

cells, the lights were not bright enough to interfere with the

prisoners’ sleep, the prisoner chose to stay in that particular

cell, and the light was not used in a “vindictive manner”),

aff’d in part, rev’d in part and remanded, 529 F.2d 514 (4th

Cir. 1975) (grounds for reversal not provided); Bauer v.

Sielaff, 372 F. Supp. 1104, 1110 (E.D. Pa. 1974) (“[T]he

discomfort of lights at night do[es] not constitute a

constitutional deprivation.”).

Moreover, in a different context—that of pre-trial

detainees bringing claims under the Due Process Clause of

the Fourteenth Amendment, which protects an even broader

class of interests than the Eighth Amendment, see Redman v.

Cnty. of San Diego, 942 F.2d 1435, 1440 n.7 (9th Cir. 1991)

(explaining that “while the eighth amendment proscribes

cruel and unusual punishment for convicted inmates, the due

process clause of the fourteenth amendment proscribes any

punishment of pretrial detainees”); see also Bell v. Wolfish,

CHAPPELL V . MANDEVILLE 13

441 U.S. 520, 535 n.16 (1979),—other courts had held that

constant lighting can serve a legitimate penological purpose.

See, e.g., Ferguson v. Cape Girardeau County, 88 F.3d 647,

650 (8th Cir. 1996) (holding where bright lights were on

continuously and the plaintiff was observed sleeping that the

“totality of the circumstances—which include the relative

short duration of the confinement, the necessity to keep the

detainee under observation for both his medical condition as

well as general safety concerns, and the amount of time that

he spent out of the cell—supports the assertion of legitimate

governmental interest,” and thus no constitutional violation

occurred); O’Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir.

1987) (“[C]ontinuous lighting in [a] holding cell was not

unreasonable given the need for jail security and the need to

monitor [the prisoner].”); Fillmore v. Ordonez, 829 F. Supp.

1544, 1568 (D. Kan. 1993) (holding that a continuous low-

intensity light was “reasonably related to the maintenance of

internal security of the Osage County jail”), aff’d, 17 F.3d

1436 (10th Cir. 1994), abrogated in part on other grounds as

recognized by Williams v. Weber, 905 F. Supp. 1502, 1512

n.13 (D. Kan. 1995).

Overall, as of April-May 2002, other jurisdictions had

made decisions on continuous lighting based on various

factors, including whether the lights caused sleep deprivation,

Shepherd, 982 F. Supp. at 647–49; Zatko, 835 F. Supp. at

1181; Cassidy, 392 F. Supp. at 334; the brightness and

intensity of the lights, id.; the duration of exposure, Shepherd,

982 F. Supp. at 648–49; Ferguson, 88 F.3d at 650; whether a

legitimate penological justification existed, Cassidy, 392 F.

Supp. at 334; Ferguson, 88 F.3d at 650; Fillmore, 829 F.

Supp. at 1568; and whether prison officials were trying to

keep the prisoner awake, Zatko, 835 F. Supp. at 1181. The

results of these cases were mixed. A large majority of the

14 CHAPPELL V . MANDEVILLE

courts, however, concluded that the there was no Eighth

Amendment violation.

Since, at the time Chappell’s contraband watch took

place, no court had ruled on whether contraband watch

constitutes a legitimate penological purpose that would justify

continuous lighting, and Chappell was subjected to

continuous lighting for only seven days and did not claim that

he was deprived of sleep or intentionally kept awake,

Mandeville and Rosario did not have fair notice that their

actions were unconstitutional. Given our decision in Keenan

and the decisional law in other circuits, we have some doubt

that the conditions that Chappell experienced under

contraband watch even amounted to Eighth Amendment

violation, but we do not reach this question since, at a

minimum, the law was not clearly established that the

contraband watch was unconstitutional and thus Chappell’s

Eighth Amendment claim can be resolved on qualified

immunity grounds.

2. Mattress deprivation

The law was not clearly established as of April-May 2002

with regards to mattress deprivation either. We had held that

mattress deprivation “for only one night [was] insufficient to

state an eighth amendment violation,” Hernandez v. Denton,

861 F.2d 1421, 1424 (9th Cir. 1988), vacated on other

grounds, 493 U.S. 801, (1989), but had not made clear

whether mattress deprivation for longer could state an Eighth

Amendment claim. Although we had indicated in an

unpublished decision that a prisoner who was “forced to sleep

on the floor, without a mattress, next to broken toilets and

overflowing showers” for an unspecified period of time and

“had to wear the same clothes for 45 days” might have an

CHAPPELL V . MANDEVILLE 15

Eighth Amendment claim, Seagrave v. Hennessey, No. 92-

17121, 1994 U.S. App. LEXIS 4321, at *4–6 (9th Cir. Mar.

2, 1994), we had also explained that the Supreme Court’s

observation that “a condition of confinement which does not

violate the Eighth Amendment when it exists for just a few

days may constitute a violation when it exists for ‘weeks or

months,’ . . . [did] not provide clear guidance to prison

officials as to how much time must pass before requiring a

prisoner to sleep on the floor of a cell without a mattress

[may] constitute an Eighth Amendment violation.” Schroeder

v. Kaplan, 60 F.3d 834, 1995 WL 398878, at *2 (9th Cir. July

7, 1995) (unpublished) (quoting Hutto v. Finley, 437 U.S.

678, 686–87 (1978)). We also held in Schroeder that, where

a prisoner was forced to sleep on a cold concrete floor for

most of a month, the law was not clearly established on

whether mattress deprivation was an Eighth Amendment

violation. Id. at *2–3. We concluded that there was no

binding precedent in our circuit, that decisional law in other

jurisdictions was inconsistent, and that those courts that found

a constitutional violation had additional egregious facts

supporting an Eighth Amendment claim. Id. at *2 (citing

cases that included additional factors such as “extreme cold,

lack of sanitary conditions, solitary confinement, inadequate

clothing, or improper diet”).

If Mandeville and Rosario had looked to Schroeder they

would not have had notice on whether mattress deprivation

constituted an Eighth Amendment violation. This is

particularly true because the facts surrounding Chappell’s

confinement are much less severe than those in Schroeder.

Not only was Chappell forced to sleep without a mattress for

only seven days, which is significantly less time than the

prisoner in Schroeder who went a month without a mattress,

but Chappell had a bed and a blanket. Mandeville and

16 CHAPPELL V . MANDEVILLE

Rosario also submitted evidence that there was a legitimate

purpose for not allowing Chappell to have a mattress—no

mattress or furniture was allowed into the cell to prevent the

inmate from concealing contraband.

We did not hear any cases on mattress deprivation

between July 1995, when Schroeder was decided, and April-

May 2002, when Chappell was placed on contraband watch.

The law of other jurisdictions between July 1995 and April-

May 2002 would not have provided Chappell and Rosario

with any further clarity either. Compare Jones v. Toombs, 77

F.3d 482, 1996 WL 67750 (6th Cir. Feb. 15, 1996)

(unpublished) (holding that two weeks without a mattress did

not violate the Eighth Amendment), O’Leary v. Iowa State

Men's Reformatory, 79 F.3d 82, 84 (8th Cir. 1996) (holding

that three days without a blanket and a mattress during a

disciplinary confinement did not violate the Eighth

Amendment), Castro v. Chesney, No. CIV. A. 97-4983, 1998

WL 767467, at *8 (E.D. Pa. Nov. 3, 1998) (holding that two

days without a mattress and a blanket would not rise to a

constitutional violation), and Johnson v. Zanon, 543 N.W. 2d

868, 1995 WL 576891, at *1–2 (Wis. Ct. App. Oct. 3, 1995)

(unpublished) (holding that three days without a mattress did

not support an Eighth Amendment claim), with DeSpain v.

Uphoff, 229 F.3d 1162, 2000 WL 1228003 (10th Cir. Aug.

30, 2000) (unpublished) (holding that three days without a

mattress, bedding, or clothes in an unheated cell was

sufficient to withstand summary judgment on prisoner’s

Eighth Amendment claim), Rhoden v. Godinez, No. 95 C

5085, 1996 WL 559954, at *4 (N.D. Ill. Sept. 30, 1996)

(unpublished) (holding that several months without bed linen

and a mattress could sustain an Eighth Amendment claim, but

noting that the deprivation could have been “justified by

legitimate security concerns”), and Gordon v. Sheahan, No.

CHAPPELL V . MANDEVILLE 17

96 C 1784, 1997 WL 136699, at *7 (N.D. Ill. Mar. 24, 1997)

(noting that “[r]equiring even a convicted prisoner to sleep

without a mattress for more than a few days could” violate

the Eighth Amendment). Thus, our conclusion in Schroeder

that the law was not clearly established was still true in April-

May 2002. Mandeville and Rosario would not have had fair

notice that mattress deprivation alone would have constituted

a constitutional violation.

3. Combination of conditions

Viewing the facts in the light most favorable to Chappell,

in addition to the continuous lighting and the mattress

deprivation, Chappell alleged that he was taped into two pairs

of underwear and jumpsuits, placed in a hot cell with no

ventilation, chained to an iron bed, shackled at the ankles and

waist so that he could not move his arms, and was forced to

eat like a dog. The district court adopted the magistrate’s

finding that these conditions had the “mutually enforcing

effect of sleep deprivation that any reasonable officer would

know comprised unconstitutional conditions of confinement.”

We disagree.

It is true that “[s]ome conditions of confinement may

establish an Eighth Amendment violation ‘in combination’

when each would not do so alone.” Wilson v. Seiter, 501 U.S.

294, 304 (1991). But this only applies when the conditions

“have a mutually enforcing effect that produces the

deprivation of a single, identifiable human need such as food,

warmth, or exercise—for example, a low cell temperature at

night combined with a failure to issue blankets.” Id. Chappell

has not alleged the deprivation of any such need here. He did

not specifically claim that he was sleep deprived during the

18 CHAPPELL V . MANDEVILLE

contraband watch, but only that he was “deteriorating

mentally” and had to “attempt to sleep that way.”

Moreover, the focus of the inquiry under qualified

immunity is whether the defendants had fair notice that their

actions were unconstitutional. In April-May 2002, there were

no cases in this jurisdiction that involved a contraband watch

similar to the one that occurred here. The only factually

similar case was Mendoza v. Blodgett, which involved a

“feces watch” where the prisoner was placed in a “dry cell”

wearing only a pair of shorts and not given a blanket.

Mendoza v. Blodgett, 1990 WL 263527, at *4–5 (E.D. Wash.

Dec. 21, 1990), aff’d on other grounds, 960 F.2d 1425, 1427

n.3 (9th Cir. 1992) (noting that Mendoza did not renew his

Eighth Amendment Claim). In that case, the district court

held that these circumstances did not amount to an Eighth

Amendment violation, noting that the purpose of these

conditions was “to insure that [the prisoner was] unable to

conceal or destroy any contraband passed through a bowel

movement.” Id. at *5.

Case law in other jurisdictions would not have provided

any further clarity. The Seventh Circuit held similarly that

placement of a prisoner into a dry cell for three days, during

which he was unable to wash his hands and denied personal

hygiene items, did not violate the Eighth Amendment,

particularly since the prisoner had been “confined to the dry

cell to serve a legitimate penological interest.” Jihad v.

Wright, 124 F.3d 204, 1997 WL 471345, at *2 (7th Cir. Aug.

14, 1997) (unpublished); see also Stewart v. Wright, 101 F.3d

704, 1996 WL 665978, at *1 (7th Cir. Nov. 14, 1996)

(unpublished) (holding that a three-day confinement to dry

cell without toilet paper, toothbrush, toothpaste, in a “filthy

roach-infested cell” did not violate the Eighth Amendment).

CHAPPELL V . MANDEVILLE 19

Although the conditions here were more severe than those

in the feces watch cases, as previously explained, Mandeville

and Rosario presented evidence that the contraband watch

conditions were engineered with an eye to accomplishing the

same penological purpose as the feces watch

cases—discovering secreted contraband. Given this important

penological purpose and the state of the law at the time, the

contraband watch was not “such a far cry from what any

reasonable prison official could have believed was legal that

the defendants knew or should have known they were

breaking the law.” Sorrels, 290 F.3d at 971; see also

Messerschmidt, 132 S. Ct. at 1244 (“Qualified immunity

gives government officials breathing room to make

reasonable but mistaken judgments, and protects all but the

plainly incompetent or those who knowingly violate the law.”

(internal quotation marks omitted)).

Because no court had held that conditions similar to those

Chappell experienced were unconstitutional in the face of the

important penological purpose of discovering contraband, we

hold that Mandeville and Rosario are entitled to qualified

immunity on Chappell’s Eighth Amendment claim.4

4

Because Mandeville and Rosario are entitled to qualified immunity,

we do not consider whether these conditions amounted to an actual Eighth

Amendment violation. Our holding is limited to a finding that the law was

not clearly established as to whether the conditions that Chappell was

subjected to, both in isolation and combination, violated the Eighth

Amendment. See Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)

(explaining that a court “may grant qualified immunity on the ground that

a purported right was not ‘clearly established’ by prior case law, without

resolving the often more difficult question whether the purported right

exists at all” to avoid deciding constitutional questions unnecessarily); see

also Pearson, 555 U.S. at 236–37, 241.

20 CHAPPELL V . MANDEVILLE

B. Chappell’s Due Process Claim

Chappell also claims that his right to due process was

violated because he was not provided with an opportunity to

be heard by the official who ordered the contraband watch.

For Chappell to be entitled to due process we first must find

that he has a liberty interest triggering procedural protections.

A liberty interest can arise from one of two sources—either

the Due Process Clause of the Fourteenth Amendment or

state law. Mendoza, 960 F.2d at 1428. Since Chappell does

not make clear whether he bases his claim on the Due Process

Clause of the Fourteenth Amendment or whether he claims a

state-created liberty interest, we analyze both theories.

1. Liberty interest under the Fourteenth Amendment

We conclude that the Due Process Clause of the

Fourteenth Amendment does not afford Chappell a liberty

interest. “[L]awfully incarcerated persons retain only a

narrow range of protected liberty interests.” Hewitt v. Helms,

459 U.S. 460, 467 (1983). Thus, “[a]s long as the conditions

or degree of confinement to which the prisoner is subjected

is within the sentence imposed upon him and is not otherwise

violative of the Constitution, the Due Process Clause does not

in itself subject an inmate’s treatment by prison authorities to

judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242

(1976). Transfer to less amenable quarters for non-punitive

reasons has been held to be “ordinarily contemplated by a

prison sentence.” Hewitt, 459 U.S. at 468; see also Wilkinson

v. Austin, 545 U.S. 209, 221 (2005) (explaining that “[t]he

Constitution itself does not give rise to a liberty interest in

avoiding transfer to more adverse conditions of

confinement”). Indeed, the Due Process Clause does not

protect against all changes in conditions of confinement even

CHAPPELL V . MANDEVILLE 21

where they “hav[e] a substantial adverse impact on the

prisoner involved.” Meachum v. Fano, 427 U.S. 215, 224

(1976).

An investigative contraband watch is the type of condition

of confinement that is ordinarily contemplated by the

sentence imposed. Only the most extreme changes in the

conditions of confinement have been found to directly invoke

the protections of the Due Process Clause, such as

involuntary commitment to a mental institution, see Vitek v.

Jones, 445 U.S. 480, 493–94 (1980), or the forced

administration of psychotropic drugs, Washington v. Harper,

494 U.S. 210, 221–22 (1990). Since a temporary contraband

watch does not rise to this level, Chappell cannot directly

claim a liberty interest under the Due Process Clause of the

Fourteenth Amendment.

2. State-created liberty interest

In addition, the claim that Mandeville and Rosario are

liable to Chappell for damages based on a state-created

liberty interest also fails. Since the law was not clearly

established on whether a state-created liberty interest existed

with regard to the contraband watch when it took place,

Mandeville and Rosario are also entitled to qualified

immunity on Chappell’s due process claim, and so cannot be

liable for damages.

a. Sandin and the substantive predicates test

A state may create a liberty interest through statutes,

prison regulations, and policies. Wilkinson, 545 U.S. at 222;

Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir. 1997). For

many years we analyzed whether a state had created a liberty

22 CHAPPELL V . MANDEVILLE

interest in its prison regulations under the “substantive

predicates approach,” based on the Supreme Court’s decision

in Hewitt v. Helms, 459 U.S. 460. This approach asked

whether the state has placed “substantive limitations on

official discretion,” through “adopting regulations which

establish ‘substantive predicates’ to govern official

decisionmaking,” by using “explicitly mandatory” rather

than discretionary language. Mendoza, 960 F.2d at 1428–29;

see also Hewitt, 459 U.S. at 471–72.

Our approach to state-created liberty interests changed,

however, in response to the Court’s decision in Sandin v.

Conner, 515 U.S. 472 (1995). In Sandin, the Court criticized

its previous “substantive predicates” approach as applied to

changes in prison conditions, asserting that “the search for a

negative implication from mandatory language in prisoner

regulations has strayed from the real concerns undergirding

the liberty protected by the Due Process Clause.” Id. at

480–83. Sandin then refocused the inquiry on whether the

action “imposes [an] atypical and significant hardship on the

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

at 483–84. In applying Sandin, we have concluded that the

discretionary/mandatory substantive predicates approach was

“abandoned” or “overruled” in Sandin, and our decisions

have focused only on the “atypical and significant hardship”

test, even in the face of relevant prison regulations. See, e.g.,

Myron v. Terhune, 476 F.3d 716, 719 (9th Cir. 2007) (noting

that Sandin abandoned the mandatory/discretionary

methodology for convicted prisoners); McQuillion v. Duncan,

306 F.3d 895, 903 (9th Cir. 2002) (noting that Sandin

“abandon[ed] the ‘mandatory language’ framework”); Duffy

v. Riveland, 98 F.3d 447, 457 (9th Cir. 1996) (explaining that

the mandatory language “test for the existence of state-

created liberty interests . . . has been abandoned by the

CHAPPELL V . MANDEVILLE 23

Supreme Court” in Sandin); Mitchell v. Dupnik, 75 F.3d 517,

522 (9th Cir. 1996) (noting that Sandin criticized the

“substantive predicates approach” and refocused the test);

Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir. 1995) (noting

that Sandin “overruled” Ninth Circuit cases that have taken

a substantive predicate/mandatory language approach); cf.

Neal, 131 F.3d at 828–29 (noting, before Wilkinson, that the

substantive predicates test had “likely . . . been disapproved”

of in Sandin but holding that a state program likely created a

liberty interest in any event).5

Sandin and its progeny made this much clear: to find a

violation of a state-created liberty interest the hardship

imposed on the prisoner must be “atypical and significant . .

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

515 U.S. at 483–84.

b. Atypical and significant hardship test

We conclude that the law did not clearly establish that the

conditions that Chappell experienced constituted an “atypical

and significant hardship.” At the time of Chappell’s

5

In contrast to the shift regarding prison conditions and discipline

cases, the “mandatory language” analysis of Greenholtz v. Inmates of

Neb. Penal & Corr. Complex, 442 U.S. 1 (1979), and Bd. of Pardons v.

Allen, 482 U.S. 369 (1987), retains continuing vitality in cases concerning

prisoners’ state-created liberty interest in parole. See Swarthout v. Cooke,

131 S. Ct. 859, 861–63 (2011) (per curiam) (characterizing our holding

that California law creates a liberty interest in parole as “a reasonable

application” of Allen and Greenholtz, but holding that prisoners have no

constitutionally protected liberty interest in factual support for parole

decisions); see also, e.g., Miller v. Or. Bd. of Parole & Post Prison

Supervision, 642 F.3d 711, 714–16 (9th Cir. 2011); Roberts v. Hartley,

640 F.3d 1042, 1045 (9th Cir. 2011).

24 CHAPPELL V . MANDEVILLE

contraband watch, we had explained that the “atypical and

significant hardship” is context-dependent and requires “fact

by fact consideration,” Keenan, 83 F.3d at 1089. We

confirmed this only a year after the contraband watch took

place, noting that “[t]here is no single standard for

determining whether a prison hardship is atypical and

significant” and that analysis under this standard requires

“case by case, fact by fact consideration.” Ramirez v. Galaza,

334 F.3d 850, 861 (9th Cir. 2003) (internal quotation marks

omitted). Indeed, we had noted prior to April-May 2002 that

at least three factors from Sandin should be considered in

each case: (1) whether the conditions of confinement

“mirrored those conditions imposed upon inmates in

analogous discretionary confinement settings, namely

administrative segregation and protective custody,” (2) the

duration and intensity of the conditions of confinement; and

(3) whether the change in confinement would “inevitably

affect the duration of [the prisoner’s] sentence.” Pifer v.

Marshall, 139 F.3d 907, 1998 WL 81335, at *1 n.3 (9th Cir.

Feb. 24, 1998) (unpublished) (internal quotation marks

omitted).

We are not aware of any court that, as of April-May 2002,

had applied the Sandin test, or similar temporary,

investigatory confinement, to hold that a contraband watch

was an “atypical and significant hardship” apart from the

ordinary conditions of prison management. The only similar

case in which we had considered a due process claim was

Mendoza, where the prisoner had been placed on “feces

watch.” Mendoza, 960 F.2d at 1427–29. That case, however,

was pre-Sandin and thus did not apply the “atypical and

significant hardship” test. Id. Moreover, no other jurisdiction

had applied the “atypical and significant hardship” test to any

factually similar cases before April-May 2002 either.

CHAPPELL V . MANDEVILLE 25

Because there was no case law holding that contraband

watch, or any similar regime, is an “atypical and significant

hardship,” and the “atypical and significant hardship” test is

so fact-specific, Mandeville and Rosario did not have fair

notice on whether the conditions that Chappell experienced

violated a state-created liberty interest that would trigger due

process protections. Thus, Mandeville and Rosario are also

entitled to qualified immunity on Chappell’s due process

claim.

IV. CONCLUSION

We conclude that, as of April-May 2002, the law was not

clearly established as to whether the conditions that Chappell

experienced in connection with the contraband watch violated

the Eighth Amendment. Moreover, we conclude that

Chappell cannot claim a liberty interest under the Due

Process Clause of the Fourteenth Amendment, and it was not

clearly established that Chappell had sustained a violation of

a state-created liberty interest. Therefore, both Mandeville

and Rosario are entitled to qualified immunity. In light of this

conclusion, we do not decide whether Chappell’s claims, if

proven, would violate the Eighth or Fourteenth Amendments.

REVERSED.

GRAHAM, Senior District Judge, concurring:

I join the panel’s opinion with the exception of Section

III.B.2. I write separately because I disagree with my

colleagues’ interpretation of the Supreme Court’s decision in

Sandin v. Conner, 515 U.S. 472 (1995), in the context of their

26 CHAPPELL V . MANDEVILLE

analysis of Chappell’s due process claim based on a state-

created liberty interest.

I believe that subjecting Chappell to contraband watch did

not violate his rights under the Due Process Clause. The due

process analysis should end there because Chappell has

identified no state statute or regulation which limits the

discretion of prison officials to subject him to this kind of

temporary investigatory confinement. In the absence of such

a state statute or regulation, there can be no state-created

liberty interest.

My colleagues apparently believe that Sandin changed

this requirement and that post-Sandin any change in

conditions of confinement which imposes an “atypical and

significant hardship” may give rise to a violation of a state-

created liberty interest. I fail to understand how it could be

said that a state has “created” a liberty interest by imposing

harsher conditions of confinement. In effect, my colleagues

have interpreted Sandin to conflate the state-created liberty

interest analysis so as to give a state prisoner direct access to

the protections of the Due Process Clause if he can show that

the conditions of his confinement impose an “atypical and

significant hardship.” This is a radical change in due process

jurisprudence and a significant departure from previous

limitations. See Meachum v. Fano, 427 U.S. 215, 224 (1976)

(rejecting the proposition that “[a]ny change in the conditions

of confinement having a substantial adverse impact on the

prisoner involved is sufficient to invoke the protections of the

Due Process Clause”). Cases in which the Supreme Court

has found that conditions of confinement amounted to a

violation of the Due Process Clause have been limited to such

extremes as involuntary commitment to a mental institution

and the forced administration of psychotropic drugs. See

CHAPPELL V . MANDEVILLE 27

Vitek v. Jones, 445 U.S. 480 (1980) and Washington v.

Harper, 494 U.S. 210 (1990).

A state may create a liberty interest through statutes and

prison regulations and may thereby trigger due process

protections. Wilkinson v. Austin, 545 U.S. 209, 222 (2005);

Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir. 1997). The

determination of whether a state-created liberty interest exists

is a two-part inquiry. First, there must be a regulation that

places “substantive limitations on official discretion.”

Mendoza v. Blodgett, 960 F.2d. 1425, 1428 (9th Cir. 1992)

(citing Kentucky Dep’t of Corrections v. Thompson, 490 U.S.

454, 462 (1989)). In Mendoza, the court explained:

The most common way a state creates such an

interest is by adopting regulations which

establish “substantive predicates” to govern

official decisionmaking and by mandating the

outcome to be reached upon a finding that the

relevant criteria have been met. There must be

particularized standards or criteria to guide

the state’s decisionmakers, and the criteria

must serve to limit discretion. If a

decisionmaker can make his decision for any

constitutionally permissible reason or for no

reason at all, the state has not created a liberty

interest.

960 F.2d at 1428-1429 (citations omitted).

The second part of the inquiry asks whether the regulation

in question concerns a restraint that imposes an “atypical and

significant hardship on the inmate in relation to the ordinary

incidents of prison life.” Sandin, 515 U.S. at 484. Prior to

28 CHAPPELL V . MANDEVILLE

Sandin, prisoners had asserted federal due process claims

based on all sorts of prison regulations, such as those

pertaining to visitation, lunch trays, books, electrical outlets

in cells, prison jobs, etc. Id. at 482–83. In Sandin, the Court

clarified its earlier decisions on state-created liberty interests

by making it clear that those interests are protected by the

Due Process Clause only when state regulations, relating to

freedom from restraints, impose “atypical and significant

hardships on the inmate in relation to the ordinary incidents

of prison life.” Id. at 484.

This two-part inquiry is based on my understanding of the

state of the law in the aftermath of Sandin and is the approach

adopted by the Second Circuit. In Tellier v. Fields, 280 F.3d

69 (2d Cir. 2001), the Second Circuit described the proper

analysis:

As we have recognized previously, after the

Supreme Court’s decision in Sandin, our

determination of “whether the plaintiff had a

protected liberty interest in not being

confined” also requires a two-part analysis.

[Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.

1997)] (citing Frazier v. Coughlin, 81 F.3d

313, 317 (2d Cir. 1996) (per curiam)). “As a

result of Sandin, a prisoner has a liberty

interest only if the deprivation . . . is atypical

and significant and the state has created the

liberty interest by statute or regulation.” Id. at

52.

First, we examine whether the alleged

deprivation was atypical and significant. . . .

Second, we must examine whether the state

CHAPPELL V . MANDEVILLE 29

has created a liberty interest by statute or

regulation.

280 F.3d at 80.

After conducting the Hewitt / Sandin analysis

. . . we conclude that Section 541.22 creates a

liberty interest. Under [Hewitt v. Helms, 459

U.S. 460 (1983)], courts considering the

existence of an alleged liberty interest must

ascertain whether “statutes or regulations

require, in ‘language of an unmistakably

mandatory character,’ that a prisoner not

suffer a particular deprivation absent specified

predicates.” Welch v. Bartlett, 196 F.3d 389,

392 (2d Cir. 1999) (quoting Hewitt, 459 U.S.

at 471–72).

280 F.3d at 81.

Read together, Sandin, Wolff, and Meachum,

all support the proposition that a statute or

regulation which involves “state-created

right[s],” [Wolff v. McDonnell, 418 U.S. 539,

557 (1974)], creates a protectable liberty

interest when an official’s failure to adhere to

the statute results in an “atypical, significant

deprivation,” Sandin, 515 U.S. at 486, of “real

substance,” Wolff, 418 U.S. at 557, and not

simply “ephemeral and insubstantial”

violations. Meachum, 427 U.S. at 228.

280 F.3d at 83.

30 CHAPPELL V . MANDEVILLE

Similarly, in Smith v. Cruse, the Northern District of

California held that Sandin’s “atypical and significant

hardship” due process analysis must be triggered by the

existence of a state regulation which significantly limits the

discretion of prison officials. No. C 10-3684 SBA (PR), 2012

WL 1155964, at *7 (N.D. Cal. Mar. 30, 2012); see also Lopez

v. Cate, No. C 11-2644, 2012 WL 4677221 YGA (PR), at *5

(N.D. Cal. Sept. 30, 2012) (“Deprivations that are authorized

by state law . . . may also amount to deprivations of a

procedurally protected liberty interest, provided that: (1) state

statutes or regulations narrowly restrict the power of prison

officials to impose the deprivation, i.e., give the inmate a kind

of right to avoid it, and (2) the liberty in question is one of

‘real substance.’”); Reed v. Knipp, No. CIV-S-11-2753 KJN

KJN P., 2012 WL 6570906, at *2 (E.D. Cal. Dec. 17, 2012)

(“Because this language gives the decisionmaker a certain

amount of discretion to deny credit restoration, the statutes

and regulations do not create a liberty interest in the

restoration of forfeited credits.”).

The court cites the opinions of five panels of this court for

the proposition that “we have concluded that the

discretionary/mandatory substantive predicates approach was

‘abandoned’ or ‘overruled’ in Sandin, and our decisions have

focused only on the ‘atypical and significant hardship’ test,

even in the face of relevant prison regulations.” It is true that,

in these five cases1 and a handful of others,2 panels of this

1

Myron v. Terhune, 476 F.3d 716, 719 (9th Cir. 2007) (finding prison

regulations governing an inmate’s classification did not create a liberty

interest because they did not amount to an atypical and significant

hardship and noting that Sandin rejected the mandatory/discretionary

methodology); McQuillion v. Duncan, 306 F.3d 895, 903 (9th Cir. 2002)

(holding that Sandin was not applicable to the parole system at issue, but

opining that Sandin “abandoned” the mandatory language framework);

CHAPPELL V . MANDEVILLE 31

court have opined that Sandin ended the substantive predicate

approach. But none of these cases directly address the issue,

and their statements about the continuing validity of the

substantive predicate approach are dicta, not binding on this

panel or on district courts within the circuit. Instead, these

cases simply affirm the uncontroversial proposition that

Sandin created the requirement of an “atypical and significant

hardship” in order to establish a state-created liberty interest.

Turning now to the facts of this case, the parties did not

identify any prison regulation that puts a limit on an official’s

discretion in order to place a prisoner on contraband watch.

The parties seem to have agreed, and certainly did not dispute

for purposes of summary judgment, that the contraband watch

regulations in effect at the relevant time were set forth in

Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996) (holding a jail policy

did not create an “atypical and significant hardship” and so no liberty

interest was created, but noting the Supreme Court in Sandin criticized the

“substantive predicate approach”); Duffy v. Riveland, 98 F.3d 447, 457

(9th Cir. 1996) (remanding the case for consideration of whether the

deprivation constituted an atypical and significant hardship, but

commenting that the substantive predicate test had been “abandoned” by

Sandin); Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir. 1995) (holding

disciplinary segregation did not constitute “atypical and significant”

hardship under Sandin and thus, no liberty interest was created, but noting

that case law employing the “substantive predicate” and “mandatory

language” test had been overruled by Sandin).

2

See, e.g., Neal v. Shimoda, 131 F.3d 818, 829–30 (9th Cir. 1997)

(opining that the substantive predicate test had “likely . . . been

disapproved” by Sandin, but concluding that, in any event, the

classification of prisoners as sex offenders satisfies that test); Keenan v.

Hall, 83 F.3d 1083, 1088-89 (stating that Sandin “rejected its prior

[substantive predicate] test” and remanding because the district court had

not considered whether the deprivation was atypical and significant).

32 CHAPPELL V . MANDEVILLE

plaintiff’s exhibit J.3 These regulations deal mainly with the

conditions of contraband watch, and do not describe any

limitations on an official’s discretion. The only provisions

relating to the decision to place an inmate on contraband

watch are found in the first paragraph of page 1 and the

second paragraph on page 5 of regulation 52050.25:

The responsible Facility Captain during

business hours, and the AOD during non-

business hours, (evenings/Saturdays/

Sundays/holidays), are delegated the authority

to place inmates suspected of concealing

contraband items within their body cavities on

Body Cavity Surveillance Status. Notification

will be made to the respective Associate

Warden during business hours.

...

The Watch Commander will only terminate

Body Cavity Surveillance with Concurrence

of the Facility Captain where the inmate was

previously housed or the AOD during non-

business hours. If extenuating circumstances

exist, the Body Cavity Surveillance may be

continued; however, review of each case will

be conducted daily by the affected Facility

Program Lieutenant to determine whether

3

This exhibit was not included in the record of this court and was

obtained from the district court docket. According to the district court

decision, plaintiff offered this excerpt of the CDC Operations Manual as

proof of the conditions and procedures in effect at the time when he was

on contraband watch, and the defendants have not objected to its accuracy.

CHAPPELL V . MANDEVILLE 33

termination or continuation of the Body

Cavity Surveillance is necessary.

An inmate may be placed on contraband watch based on

mere suspicion of concealing contraband within his body

cavities. Such suspicion does not even have to be reasonable.

Moreover, it appears from the regulation that it is entirely

within the discretion of the affected Facility Program

Lieutenant to determine whether termination or continuation

of the Body Cavity Search is necessary. This regulation is

not a substantive limitation on official discretion and

therefore the regulations do not qualify as a state-created

liberty interest.

Because subjecting Chappell to contraband watch did not

violate the Due Process Clause, and because he failed to show

that he had a state-created liberty interest in avoiding

contraband watch, his due process claim fails as a matter of

law.

BERZON, Circuit Judge, dissenting in part:

I join Part III.B of the majority opinion, as I agree that

Defendants Mandeville and Rosario are entitled to qualified

immunity on the due process issues. In my view, however,

the defendants are not entitled to qualified immunity on

Chappell’s Eighth Amendment claim. As I would affirm the

district court’s denial of summary judgment on qualified

immunity with respect to the Eighth Amendment issue, I

respectfully dissent from Part III.A of the majority opinion.

34 CHAPPELL V . MANDEVILLE

I

Our jurisdiction over this collateral order appeal of the

district court’s denial of summary judgment on qualified

immunity grounds is limited to questions of law. See Ortiz v.

Jordan, 131 S. Ct. 884, 891 (2011); Behrens v. Pelletier, 516

U.S. 299, 312–13 (1996); Johnson v. Jones, 515 U.S. 304,

319–20 (1995); Alston v. Read, 663 F.3d 1094, 1098 (9th Cir.

2011). We do not concern ourselves with whether the “pre-

trial record sets forth a genuine issue of fact for trial,” but

instead examine the “purely legal issue whether the facts

alleged . . . support a claim of clearly established law.”

Alston, 663 F.3d at 1098 (alteration in original) (internal

quotation marks omitted).

On this record, there are disputed issues of fact

concerning: (a) the impact of the lighting, in combination

with other conditions (e.g., lack of a mattress, waist restraints,

etc.), on Chappell’s sleep; and (b) the legitimate need for a

twenty-four hour bright light in Chappell’s cell (as opposed

to a dimmed light) for surveillance, given all the other

restrictions on his movement. We resolve all factual disputes

and draw all reasonable inferences in favor of Chappell, the

non-moving party, and “look at the purely legal question of

whether the defendant[s’] alleged conduct violated

[Chappell’s] clearly established constitutional rights.”

Cunningham v. City of Wenatchee, 345 F.3d 802, 807–08 (9th

Cir. 2003); accord Mattos v. Agarano, 661 F.3d 433, 439–40

(9th Cir. 2011), cert. denied, 132 S. Ct. 2681, 2682, 2684

(2012); Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001).

For purposes of this appeal, the established facts

pertaining to Chappell’s Eighth Amendment claim are as

follows:

CHAPPELL V . MANDEVILLE 35

From April 30, 2002, until May 6, 2002, Chappell was

confined to a surveillance cell containing only a bedframe

without a mattress. After being stripped and subjected to a

“body cavity search,” Chappell was dressed in two pairs of

underwear and two jumpsuits, one of each worn facing

forward and the other worn backwards. The clothing was

taped closed at the thighs, ankles, upper arms, and waist. He

was then placed in waist chain restraints and ankle shackles,

and was chained to the bedframe. Chappell’s handcuffs were

attached to the waist chain, forcing him to keep his hands at

his sides at all times, even while eating. The lights in the cell

were “very bright” and were kept on constantly throughout

his nearly seven-day confinement on contraband watch.

While Chappell did not expressly allege that the

conditions of contraband watch caused him “grave sleeping

problems,” as did the prisoner in Keenan v. Hall, 83 F.3d

1083, 1091 (9th Cir. 1996), the statements in Chappell’s

amended complaint permit an inference that his sleep was

disturbed. Specifically, he describes how he had to “attempt”

to sleep on a bare metal cot with bodily restraints, under

constant “very bright light,” alleging that the conditions “did

in fact torture [him] mentally” and that he was “deteriorating

mentally.”

II

Whether constant illumination violates the Eighth

Amendment in a particular case is a fact-specific inquiry. But

contrary to the majority’s suggestion, Maj. Op. at 10, officials

do not enjoy qualified immunity simply because the precise

facts at issue in their particular case have not been addressed

previously. Officials can “still be on notice that their conduct

violates established law even in novel factual circumstances.”

36 CHAPPELL V . MANDEVILLE

Hope v. Pelzer, 536 U.S. 730, 741 (2002). If new facts alone

triggered qualified immunity, then officials would rarely if

ever be held accountable in cases involving “fact-driven”

claims, such as the Eighth Amendment claim at issue here.

Cf. Mattos, 661 F.3d at 442 (applying the “clearly

established” rule to a fact-specific Fourth Amendment case).

We therefore must begin with what was the clearly

established Eighth Amendment law regarding prison

conditions at the time of Chappell’s contraband watch, and

then proceed to determine whether a reasonable prison

official could have considered the conditions of Chappell’s

contraband watch constitutional in light of those precedents.

In April–May 2002, it was clearly established that it is

unconstitutional to cause a prisoner harm by subjecting him

to constant lighting. Keenan pronounced in 1996 that “[t]here

is no legitimate penological justification for requiring

[inmates] to suffer physical and psychological harm by living

in constant illumination.” 83 F.3d at 1090 (alteration in

original) (emphasis added). Thus, contrary to the majority’s

representation, Keenan did not simply hold that the prison

officials in that particular case lacked a legitimate

penological justification for imposing constant illumination,

see Maj. Op. at 9–11 & n.3; it held that if constant

illumination causes a prisoner physical or psychological

harm, then no penological purpose can justify it; “[the]

practice is unconstitutional.” Keenan, 83 F.3d at 1090.

Moreover, it was clearly established law that conditions

having the mutually reinforcing effect of depriving a prisoner

of a single basic need, such as sleep, may violate the Eighth

Amendment. See Wilson v. Seiter, 501 U.S. 294, 304–05

(1991); see also Keenan, 83 F.3d at 1090 (“Adequate lighting

is one of the fundamental attributes of adequate shelter

CHAPPELL V . MANDEVILLE 37

required by the Eighth Amendment.”) (internal quotation

marks omitted); Harper v. Showers, 174 F.3d 716, 720 (5th

Cir. 1999) (“[S]leep undoubtedly counts as one of life’s basic

needs.”); Shepherd v. Ault, 982 F. Supp. 643, 648 (N. D. Iowa

1997) (“Constant illumination can undoubtedly cause sleep

deprivation . . . and sleep is certainly an ‘identifiable human

need.’”).

The cases the majority cites in support of its qualified

immunity analysis are not to the contrary. See Maj. Op. at

12–13. Instead, those cases held only that constant

illumination from dim lights or lights distanced from a

prisoner’s cell (such as hallway lights) did not amount to

cruel and unusual punishment, see Fillmore v. Ordonez, 829

F. Supp. 1544, 1552, 1568 (D. Kan. 1993) (“low-intensity,”

“soft” lighting); Williams v. Ward, 567 F. Supp. 10, 13

(E.D.N.Y. 1982) (light in hallway); Cassidy v.

Superintendent, 392 F. Supp. 330, 334 (W.D. Va. 1975)

(“[T]he light is not so bright as to interfere with the inmates’

rest.”), and that “discomfort of lights at night [does] not

constitute a constitutional deprivation” when the prisoner was

provided with bedding, not subject to any other bodily

restraints in his cell, and not denied sleep, Bauer v. Sielaff,

372 F. Supp. 1104, 1110 (E.D. Pa. 1974). Those cases are

inapposite here, where the light was “very bright” and inside

Chappell’s cell, and where the fair inference from the facts on

summary judgment, viewed most favorably to the plaintiff, is

that the lighting, in combination with the other conditions on

contraband watch, interfered with Chappell’s sleep.

Similarly, the majority’s reliance on Zatko v. Rowland,

835 F. Supp. 1174 (N. D. Cal. 1993), is misplaced. See Maj.

Op. at 12, 13. While the court’s observation in Zatko that

constant illumination of a jail cell with bright light, depriving

38 CHAPPELL V . MANDEVILLE

the inmate of normal sleep, “would violate his basic right to

shelter,” is relevant, id. at 1181, its ultimate ruling on Zatko’s

Eighth Amendment claim has little bearing on the law

applicable here. Zatko admitted that the officers “tr[ied] to

accommodate the inmates [and did not] unnecessarily use the

light to keep [him] awake.” Id. In contrast, Chappell never

conceded that the bright light (in combination with other

conditions) was not intended to interfere with his sleep, or

that the defendants did not exhibit deliberate indifference to

its impact on his sleep.

Moreover, that some courts—unlike ours—have

recognized that there can be a legitimate penological

justification for constant lighting does not mean that any

asserted penological purpose will justify such illumination.

The Eighth Circuit cases cited by the majority, Ferguson v.

Cape Girardeau County, 88 F.3d 647 (8th Cir. 1996) and

O’Donnell v. Thomas, 826 F.2d 788 (8th Cir. 1987), see Maj.

Op. at 13, held that there was a legitimate governmental

interest in constant illumination of pretrial inmates’ cells in

view of the particular circumstances of those

cases—circumstances distinct enough from those at issue

here that a reasonable officer would not have thought that

either Ferguson or O’Donnell condones the actions taken

here.

In Ferguson, the prisoner’s medical condition and safety

concerns, in combination with the amount of time he spent

outside of the cell, justified constant illumination to enable

continuous surveillance of the prisoner while he was in his

cell. See Ferguson, 88 F.3d at 650. Moreover, Ferguson was

observed sleeping “ninety-three hours of the fourteen days

spent in the vestibule [cell].” Id. Here, the totality of the

circumstances, including the conditions restricting Chappell’s

CHAPPELL V . MANDEVILLE 39

movement and foreclosing his ability to conceal anything

while on contraband watch, detract from, rather than enhance,

the need for the constant, twenty-four-hour bright light:

Chappell was not allowed out of the cell; had no mattress,

water, or toilet; was dressed in highly restrictive clothing; and

was placed in waist restraints and shackles.

Nor would O’Donnell lead a reasonable officer to believe

that the conditions of Chappell’s confinement on contraband

watch were constitutional. The constant illumination of

O’Donnell’s cell was held “not unreasonable” in view of the

inmate’s previous suicide attempt, escape concerns, and fear

that he would be a danger to himself or others. O’Donnell,

826 F.2d at 790. Comparable concerns were not present in

Chappell’s case. Moreover, there was no indication that, in

addition to the lighting, O’Donnell was simultaneously

subject to physical restraints in his holding cell, like those

imposed on Chappell, decreasing the need for illumination as

a safety precaution.

A reasonable officer would have known that, in

combination, the twenty-four-hour bright light, the absence

of a mattress, and the extensive bodily restraints risked

depriving Chappell of sleep, in violation of the Eighth

Amendment. The district court correctly denied summary

judgment on this claim on qualified immunity grounds,

affording Chappell an opportunity to prove that Mandeville

and Rosario demonstrated deliberate indifference to the risk

of physical or psychological harm created by the conditions

of confinement on contraband watch. For these reasons, I

respectfully dissent from Part III.A of the majority opinion.