Appendix — Wilkinson v. Austin
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Supreme Court, U.S.
oy, FILED
04-495 0CT 8 ~ 2004
No. ___ OFFICE OF THE CLERK
In The Supreme Court Of The United States
REGINALD WILKINSON, e: al,
Petitioners,
Vv.
CHARLES E. AUSTIN, et <l.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
APPENDIX
JIM PETRO
Attorney General of Ohio
DOUGLAS R. COLE*
State Solicitor
*Counsel of Record
STEPHEN P. CARNEY
Senior Deputy Solicitor
TODD R. MARTI
Assistant Attorney General
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980
614-466-5087 faux
Counsel for Petitioners
No.
In The Supreme Court Of The United States
REGINALD WILKINSON, et al.,
Petitioners,
V.
CHARLES E. AUSTIN, et al.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
APPENDIX
JIM PETRO
Attorney General of Ohio
DOUGLAS R. COLE*
State Solicitor
*Counsel of Record
STEPHEN P. CARNEY
Senior Deputy Solicitor
TODD R. MARTI
Assistant Attorney General
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980
614-466-5087 fax
Counsel for Petitioners
TABLE OF CONTENTS
Page
Appendix A: Opinion, United States Court of Appeals
for the Sixth Circuit, June 10, 2004.00.........cccccccccceseeeeeeeesees la
Appendix B: Order, United States District Court for the
Northern District of Ohio, Eastern Division, May 15,
BOS, .cxececcecensecevereseeessocensooseeeunnsiinlinelansinaiinnnnnnn nnn 36a
Appendix C: Opinion and Order, United States District
Court for the Northern District of Ohio, Eastern
Diviston, Marcle 36, DOG .....00::cccscssesscesensssenssebunesiiuaanaians 39a
Appendix D: Opinion and Order, United States District
Court for the Northern District of Ohio, Eastern
Division, February 25, SOG .......<siscsressevenssiesesseiananeinaniaae 47a
Appendix E: ODRC Policy 111-07 (Issued January 3,
APPENDIX A
Charles E. Austin et al., Plaintiffs-Appellees,
v.
Reginald Wilkinson et al., Defendants-Appellants.
372 F.3d 346 (6" Cir. 2004)
KAREN NELSON MOORE, Circuit Judge.
Plaintiffs-Appellees Charles E. Austin et al., nl (“Inmates”)
all inmates at the Ohio State Penitentiary (“OSP”) in
Youngstown, Ohio, filed this § 1983 suit as a class action
against Defendants-Appellants Reginald Wilkinson et al., n2
Ohio Department of Rehabilitation and Correction officials
(“ODRC Officials”), alleging Eighth Amendment violations
as well as procedural due process claims relating to their
placement at the OSP facility, which is a supermaximum, or
supermax, facility. A class was certified pursuant to Federal
Rule of Civil Procedure 23(b)(2), and the Eighth Amendment
claims, related primarily to medical care and the provision of
outdoor recreation, were settled. The due process claims for
declaratory and injunctive relief were then tried to the district
court, which rendered a judgment for the Inmates and entered
the injunctive orders at issue.
nl The additional named plaintiffs are Robert
Baksi, Michael Benge, Alonzo L. Bonner, August
Cassano, David E. Clark, James DeJarnette, Roy D.
Donald, David Easley, Brian K. Eskridge, Keith
Gardner, Roger Lee Hall, Frederick O. Harris, SJr.,
Daryl Heard, Edward O. Hodge, Orsino lacovone,
Kunta Kenyatta, Stacy Lane, James D. Mitchell,
Emanuel B. Newell, John W. Perotti, Lamar Preston,
Jason H. Robb, Kevin B. Roe, Richard Siggers, Eric
2a
Swofford, Lahray Thompson, Edward A. Tilley, and
Mark Trawick.
n2 Named additionally as defendants are Stephen J.
Huffman, Bernard J. Ryznar, Todd E. Ishee, Bruce A.
Martin, Deborah Nixon Hughes, Cheryl Jorgensen-
Martinez, Manish B. Joshi, Patrick F. Biggs, Audrey
Sandor Nietzel, and Matthew Meyer.
On appeal, the ODRC Officials raise two claims of
error: that the district court applied the wrong lega! standards
in finding a constitutional violation, and that even if a
violation was correctly found, the remedial orders entered
violate 18 U.S.C. § 3626, requiring particularized fact-
finding by federal district courts interfering with state prison
practices. Because we conclude that the district court did not
err in determining that a liberty interest existed in the prison
placement at issue and in modifying the procedures that
govern that placement, we AFFIRM that portion of the
district court's judgments; because the district court erred,
however, in modifying substantive Ohio orison regulations,
we REVERSE AND REMAND that portion of the
judgments.
I. BACKGROUND
In May 1998, the OSP, Ohio’s supermax prison facility,
opened for business. Supermax facilities, in operation in
most of the states and in the federal prison system, represent
an attempt to concentrate the “worst of the worst” in one
facility, thereby making the rest of the general prison
population more safe aiid easier to control. Ohio's supermax,
which is designated a high-maximum-security prison, was
built in response to an April 1993 riot at the Southern Ohio
Correctional Facility (*SOCF”). Prior to the construction of
3a
the 504-bed OSP, Ohio’s most secure prison was the SOCF,
a maximum-security prison. Within the SOCF is an even
more secure cellblock, the J-1 cellblock, which houses
twenty cells. Before the OSP opened, Ohio did not fill the J-
! cells; instead, it did not have enough maximum-security
cells to house inmates at that security designation. From
these facts, the district court concluded that the surplus of
high-maximum-security cells led to a “because we have built
it, they will come” mentality, with the surplus of maximum-
security inmates leading to placement of inmates at OSP who
did not meet the high-maximum-security requirements,
contrary to both corrections policy and constitutional norms.
See Austin v. Wilkinson (Austin 1), 189 F. Supp. 2d 719, 724
(N.D. Ohio 2002).
When the OSP first 1. ceived inmates in May 1998, it
did so in a concededly problematic and confused manner.
Appellants’ Br. at 11. On August 31, 1998, the department
“attempted to establish some predictability to placement at
the OSP by issuing Department of Rehabilitation and
Correction Policy | 11-07"; the version of this policy in effect
when the Inmates filed their complaint (“old 111-07")
became effective January 28, 1999. Austin J, 189 F. Supp. 2d
at 727. Placement at the OSP was synonymous with inmate
classification at a high-maximum-security level. Old 111-07
provided for a classification committee (made up of a deputy
warden and a mental health professional from the inmate’s
current institution, and a third official designated by the
warden), which would receive a written statement from the
prisoner as well as information provided by staff, and make a
recommendation to the warden. The warden then approved
or disapproved the recommendation, and sent the information
along to the Bureau of Classification (“Bureau”). Even if
both the classification committee and the warden agreed that
high-maximum-security classification was inappropriate for
da
an inmate the Chief of the Bureau could still assign the
inmate to OSP. Placement at OSP renders an inmate
ineligible for parole during his time there. Austin /, 189 F.
Supp. 2d at 728.
Under this policy, though, problems continued. Some
of the more troubling instances of this haphazard system
occurred when the Bureau would, without stating its reasons,
overrule the recommendation of both the classification
committee and the warden and c‘ther place or maintain the
placement of an inmate at OSP; when inmates who would
otherwise be recommended for parole were ineligible
because of a suspect OSP placement; when multiple jumps in
security levels happened as a result of a single incident; when
decisions were made with little factual support; and when
decisions were based solely on the use or smuggling in of
small amounts of drugs. /d. at 734-36.
The goal of the OSP, to separate the most dangerous
prisoners from the rest of the prison population, is achieved
primarily through solitary confinement, of a type noticeably
different than segregation at other Ohio prisons. Inmates at
OSP spend twenty-three hours a day in their single cells,
measuring approximately 89.7 square feet. /d. at 724. These
cells are further isolated from the outside world by the
installation of metal strips on the bottom and sides of the cell
doors that prevent inmates from communicating with one
another. /d. During the one hour per day that inmates can
leave their cells, they have access to two indoor recreation
rooms; most inmates have recreation alone, although a
limited number may have recreation with one other prisoner.
Id. \nmates having visitors are required to be strip-searched
when they leave and reenter the cellblock, even though they
are isolated from their visitors by solid windows. /d. at 725.
Additional factual findings by the district court differentiate
Sa
life at OSP from segregation conditions at other Ohio
prisons, including extra limitations on personal property
rights, access to telephones and counsel, outside recreation,
and communication with other persons. /d.
On January |, 2001, the Inmates filed their complaint,
stating both procedural due process claims regarding
placement at OSP, the claims at issue on appeal, and Eighth
Amendment claims regarding inadequate medical and
psychiatric care, inadequate outdoor recreation facilities, and
harsh restraints used at OSP. The Eighth Amendment claims
were settled below. See Austin v. Wilkinson, 2002 U.S. Dist.
LEXIS 27439, No. 4:01-CV-71 (N.D. Ohio Apr. 5, 2002)
(order approving settlement agreement). A Fed. R. Civ. P.
23(b)(2) class was certified, and the case was scheduled for
trial in January 2002. On the eve of trial, the ODRC released
a new version of 111-07 (“new 111-07"), and it is the district
court’s ordered modifications to new 111-07, made after a
bench trial, that are at issue on this appeal. In old 111-07,
prisoners were classified as high-maximum-security and
maximum-security; in new 111-07, the security levels are
instead level five and level four. When the district court
issued its decision, only level five prisoners were housed at
OSP, but the appellees urge this court to take judicial notice
of the decision by Defendant Wilkinson to house inmates
classified at both levels four and five at OSP. Appellees’ Br.
at 5 n.1. New 111-07 details both the substantive reasons for
reclassification and the procedures followed to reclassify, as
well as the conditions imposed on inmates in those
classification levels. n3 Various prison officials are
empowered to initiate placement into classification level five,
n4 using the “Security Designation Long Form,” which
provides a score sheet for inmates based on thir age, the
severity of the offense triggering the initiation __of —
reclassification hearings, prior prison experience, prior
6a
violent behavior, pre-prison gang activity, and escape
attempts; the prison official is also empowered to override
the numerical score for any of the reasons identified by 111-
07 as grounds for level five classification. These include
assaultive and/or predatory behavior; the nature of the
inmate’s conviction; leadership roles in riots or disturbances;
the possession of contraband; the identification of the inmate
as a leader of a “security threat group” (prison gang); escape
attempts; “an ability to compromise the integrity of [prison]
staff’; knowing exposure of others to HIV or hepatitis; or a
chronic inability to adjust to a lower security level. On
initiation of the reclassification, the warden establishes a
classification committee to review the inmate's behavior and
determine whether in fact the inmate meets one of the level
five criteria. That committee is to hold a hearing to review
the form and any other relevant information; 111-07 entitles
inmates to forty-eight hours’ prior notice of that hearing and
the opportunity to appear and make both oral and written
presentations. The classification committee is to “document
information” presented by staff and the inmate, and
determine whether the inmate should be placed in level five.
That recommendation is then forwarded to the warden. If the
warden approves the recommendation, both _ the
recommendation and the approval are forwarded to the
Bureau of Classification for final decision. (If the warden
does not approve the recommendation, the process ends and
the inmate is not classified as level five). The inmate shall be
notified of the warden’s approval, and may file a formal
objection with the Bureau within fifteen days of notice. The
Bureau will then review the recommendation and any
objection and make a final decision. Additionally, within
thirty days of placement at OSP, the OSP staff reviews a
reclassified inmate’s placement, and if they recommend a
security reduction with which the OSP warden agrees, that
recommendation is sent to the Bureau. Review of OSP
7a
inmates’ security levels is made at least annually and follows
essentially the same process as the initial classification
hearing.
n3 The procedural information and quoted
language are taken from new 111-07.
n4 When the district court made its findings and
decision, only prisoners classified as level five were
placed at OSP. As noted above, this is no longer the
case, as the ODRC is now placing level four prisoners
at OSP. The procedure for placement at level four is
essentially the same as that set out in new 111-07 and
found constitutionally inadequate by the district court.
Therefore, inmates are being placed at OSP without the
procedural protections ordered by the district court.
Because the complained-of deprivation of liberty is not
reclassification by itself, but placement at OSP which
results from a level five classification, this seems a
particularly disingenuous way to evade the district
court’s order in advance of appellate review.
In its opinion, issued on February 25, 2002, the district
court found the process specified in new 111-07 lacking. See
Austin I, 189 F. Supp. 2d at 750-52. The district court
identified the following deficiencies: that inmates are not
given notice of all the evidence that may be relied upon in
their classification hearings; that inmates are not allowed to
call witnesses; that the placement criteria give insufficient
notice of the amount of drugs in possession that would
trigger level five placement; that the placement criteria are
unnecessarily vague with regard to the gang activity that
would trigger a placement; that the final decisionmaker, the
Bureau of Classification, was not required to describe the
facts found and reasoning used in making its placement and
Sa
reclassification decisions; that the inmate is not given
adequate notice of the information to be considered at his
reclassification hearing; and that adequate notice of the
conduct necessary for the i::mate to leave the OSP is not
given. The district court then ordered the parties to file
proposed injunctive orders; the ODRC Officials’ proposed
injunctive order was one and a half pages in length. On
March 26, 2002, the district court issued an injunction
directing the ODRC Officials to correct each of the
deficiencies it had found and issued an accompanying
judgment terminating the action under Rule 58. See Austin v.
Wilkinson (Austin 11), 204 F. Supp. 2d 1024 (N.D. Ohio
2002). The ODRC Officials filed a timely notice of appeal
on April 17, which was decketed as Sixth Circuit Appeal
Number 02-3429. On April 24, they filed with the district
court a revised version of 111-07 (“revised 111-07"). On
May 15, the district court ordered that policy adopted with
slight changes. On June 6, 2002, the ODRC Officials filed a
Rule 60(b) motion, nS which the district court denied on July
12, ruling that the defendants were not surprised by its
judgment, and that it had the authority to order the injunctive
relief at issue. On July 12, the ODRC Officials filed a notice
of appeal from both the district court’s denial of their Rule
60(b) motion and its May 15 order adopting revised 111-07,
n6 docketed as Appeal No. 02-3816.
nS The ODRC Officials asked for relief under
Rule 60(b)(6), (b)(1), and (b)(4).
n6 The ODRC Officials had moved on June 6,
2002, simultaneous with their Rule 60(b) motion, for
additional time to file a notice of appeal from the
district court’s May |5 order. An extension was
granted to July 15, 2002, pursuant to Federal Rule of
Appellate Procedure 4(a)(5).
9a
Il. ANALYSIS
A. Jurisdiction
The underlying civil rights action was brought under 42
U.S.C. § 1983. The district court had original jurisdiction
under 28 U.S.C. § 1331. This court has jurisdiction under 28
U.S.C. § 1291.
B. Standard of Review
The ODRC Officials appeal from the grant of a
permanent injunction and the denial of a motion for relief
from the judgment, both of which are reviewed for abuse of
discretion. See Herman Miller, Inc. v. Palazzetti Imps. &
Exps., Inc., 270 F.3d 298, 317 (6th Cir. 2001); Mallory v.
Eyrich, 922 F.2d 1273, 1279 (6th Cir. 1991). In determining
whether the district court abused its discretion, we give great
deference to the district court, reviewing its legal
determinations de novo, but only disturbing its factual
findings if they are clearly erroneous. Elec. Workers Pension
Trust Fund of Local Union # 58 v. Gary's Elec. Serv. Co.,
340 F.3d 373, 378 (6th Cir. 2003).
C. Due Process Rights
I. Liberty Interest under Sandin v. Conner
Inmates challenge the procedures for classification at
level five under the Due Process Clause of the Fourteenth
Amendment, claiming that classification at that level and
concomitant placement at OSP implicates a state-created
liberty interest, and that the procedures in place before trial
were inadequate to protect this interest. Therefore, our
threshold inquiry is whether a state-created liberty interest
10a
exists with regard to placement in Ohio's supermax prison.
This inquiry is controlled by Sandin v. Conner, 515 U.S. 472,
132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), which mandates
that a state creates a liberty interest in avoiding certain prison
conditions only where those conditions are an “atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life.” /d. at 484. Prior to Sandin, a state
created a liberty interest through using “‘language of an
unmistakably mandatory character’ such that the incursion on
liberty would not occur ‘absent specified substantive
predicates."” /d. at 480 (quoting Hewitt v. Helms, 459 U.S.
460, 471-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983)).
Sandin shifted the focus from parsing the language of state
statutes and regulations to examining the severity of the
conditions to which an inmate would be subject.
The district court thus properly made factual findings as
to the conditions in OSP compared to the conditions in other
Ohio prisons, specifically in the segregated units of
maximum-security prisons, the most severe non-OSP
conditions in the Ohio system. The court found that the
extreme isolation visited upon the inmates at OSP, the lack of
any outdoor recreation, the limitations upon personal
property rights and access to telephones and counsel, and,
finally, the ineligibility of OSP inmates for parole, all
combined to create a significant and atypical hardship. The
ODRC Officials’ sole challenge on appeal to these careful
findings is that the district court erred by comparing
conditions at OSP to conditions at other Ohio prisons. They
argue instead that the proper baseline in determining
atypicality is the conditions at other supermax facilities
around the country. Other circuits that have decided the
question have split over whether the proper control group 1s
the general prison population or inmates in_ typical
segregation conditions. Compare Beverati v. Smith, 120 F.3d
500, 504 (4th Cir. 1997) (finding “the conditions [at issue]
were more burdensome than those imposed on the general
prison population” although not sufficiently atypical), and
Keenan vy. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (“a major
difference between the conditions for the general prison
population and the segregated population triggers a right to a
hearing”), with Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir.
1997) (administrative custody is not “extraordinary” and
“stays of many months are not uncommon”), and Brooks vy.
DiFasi, 112 F.3d 46, 49 (2d Cir. 1997) (explicit factual
comparison between administrative segregation and
disciplinary segregation is necessary). See also Hatch v.
District of Columbia, 337 U.S. App. D.C. 266, 184 F.3d 846,
847 (D.C. Cir. 1999) (appropriate comparison is “the most
restrictive conditions... routinely imposed on inmates
serving similar sentences”); Wagner v. Hanks, 128 F.3d
1173, 1177 (7th Cir. 1997) (appropriate comparison is to the
conditions of nondisciplinary segregation in the state’s most
restrictive prison). m7 None of the courts of appeals,
however, have adopted the novel and restrictive control
group urged by the ODRC Officials, which would as a matter
of law make it impossible for any inmates but those in the
most harsh prison in the country to make out a case for
protection under Sandin.
n7 The Fifth Circuit has also remanded at least
one case to a district court with instructions to
determine the proper baseline if Sandin is triggered.
See Wilkerson v. Stalder, 329 F.3d 431, 436 (Sth Cir.
2003). But see Orellana v. Kyle, 65 F.3d 29, 31-32 (Sth
Cir. 1995) (“it is difficult to see that any other
deprivations in the prison context, short of those that
clearly impinge on the duration of confinement, will
henceforth qualify for constitutional ‘liberty’ status”).
Carson v. Johnson, 112 F.3d 818, 821 (Sth Cir. 1997),
l2a
cited by the district court, does not in fact analyze state-
created liberty interests under Sandin, but instead
evaluates fundamental liberty rights under the three-
strikes provision of the Prison Litigation Reform Act
(“PLRA”). ~
The ODRC Officials point only to the Supreme Court's
decision in Olim v. Wakinekona, 461 U.S. 238, 75 L. Ed. 2d
813, 103 S. Ct. 1741 (1983), and dicta in Wagner, 128 F.3d
at 1173, to support their argument. Olim invoived a
challenge to an interstate prison transfer; the Court held that
no liberty interest was created by Hawaii state prison
regulations, and that the Due Process Clause of its own force
did not protect any liberty interest deprived by an interstate
prison transfer. Olim, 461 U.S. at 245-49. But Olim’s
holding has limited applicability when dealing with a state-
created liberty interest; that the Due Process Clause does not
of its own force protect against interstate transfers has little to
do with whether Ohio regulations create a liberty interest in
remaining outside of a supermax prison. Sandin requires a
situationally-based factual analysis; if it is typical that an
Ohio prisoner experiences conditions similar to those of
OSP, then state lines might truly be irrelevant. That,
however, is not the case; of 44,000 prisoners in the Ohio
system, only twenty to thirty have been transferred out of
state—a number that itself might give rise to atypicality, if
not hardship, if substantive state law limiting officials’
discretion in transfer existed—and not a single one has been
shown to have been transferred to a supermax. See Hatch,
184 F.3d at 857 (“What matters, therefore, is not simply the
possibility of transfer but also its /ikelihood.”). Olim, to the
contrary, relied heavily on the fact of interstate transfer as a
common occurrence, suggesting that no _ reasonable
expectation existed that any particular inmate would serve his
sentence within his state of conviction. Olim, 461 U.S. at
l3a
245-47. Even if the proper comparison in this case were
nationwide rather than statewide, the appropriate question
would be whether the OSP represented an atypical hardship
as compared to, at most, the typical conditions in
administrative or disciplinary segregation to which
transferred Ohio prisoners are subject, not those in
supermaxes. Finally, Wagner is not to the contrary. First, as
the Inmates point out, the language relied upon by the ODRC
Officials in support of their claim is dicta. See Wagner, 128
F .3d at 1176. Second, and more important, the Wagner court
itself in its analysis misses the important distinction between
cases narrowly defining the contours of the protection of the
Due Process Clause of its own force and those deciding when
state laws create a liberty interest. The Supreme Court has
repeatedly held that transfers. in and of themselves do not
implicate due process interests (although it has not to date
dealt with transfer to a supermax prison), see Olim, 461 U.S.
at 238; Meachum v. Fano, 427 U.S. 215, 229, 49 L. Ed. 2d
451, 96 S. Ct. 2532 (1976), but the Court has never held that
State laws cannot create a liberty interest in avoiding a
transfer to a particularly Larsh facility. This key distinction
goes wholly unaddressed by the ODRC Officials. n8
n8 This distinction also partially explains why
Moore v. Litscher, 52 Fed. Appx. 861, 2002 WL
31805012 (7th Cir. 2002), and Nash v. Litscher, 50 Fed.
Appx. 317, 2002 WL 31444476 (7th Cir. 2002), cited
by the concurrence for the proposition that avoidance of
placement at a supermax is not in and of itself a liberty
interest under Sandin, are inapposite. Moore cited to
Olim in holding, “Prisoners do not have a federally
protected liberty interest in being housed in a particular
facility.” 52 Fed. Appx. 861, [WL] at *1. With respect
to a state liberty interest, the court held that “a failure to
comply with state procedural rules does not violate the
l4a
federal constitution.” /d. The Moore court failed to
partake in any analysis under Sandin, and the case
cannot stand for the proposition that placement at a
supermax could not implicate a liberty interest created
by the state. Nash noted simply that “Nash does not
have a liberty interest in his prison placement,” and
cited to an earlier case, Whitford v. Boglino, 63 F.3d
§27, 532 (7th Cir. 1995). 50 Fed. Appx. 317, [WL] at
*2. Whitford held that no federal interest existed in
prison placement, and that Illinois state regulations, so
far as the court “understood,” did not create such a
liberty interest. Whitford also dealt with transfer to a
maximum security prison, rather than a supermax. All
three of these cases, Whitford, Moore, and Nash, were
argued pro se in the Seventh Circuit. We do not think
they can stand for the proposition that careful factual
findings in the district court demonstrating severe
hardship in prison conditions, atypical in a prison
system, can never rise to the level of a protected liberty
interest without a parole deprivation.
Ultimately, whether OSP is compared to the general
prison population of Ohio, or instead to inmates in typical
segregation conditions, which was the baseline used by the
district court, OSP constitutes an atypical and significant
hardship under Sandin, such that inmates enjoy a liberty
interest in not being placed at OSP absent the state-mandated
substantive predicates set out in new Policy 111-07. It is
therefore unnecessary to determine which is the proper
baseline for Sandin comparisons in order to decide this case,
but we reject emphatically the ODRC Officials’ argument
that the baseline should be out-of-state supermax prisons.
Whatever the “ordinary incidents of prison life” may
encompass, they must be decided with reference to the
particular prison system at issue, and can only be truly
1Sa
“ordinary” when experienced by a significant proportion of
the prison population.
2. The Process That Is Due
Once a liberty interest has been established under
Sandin, we must turn to the question of what process is due
to protect that interest. At issue on appeal is the propriety of
a set of modifications made by the district court to the
ODRC’s policy governing classification at level five. Most
of these modifications concern the procedures used to
classify inmates, but three modifications are substantive
predicates to OSP placement and retention. We will analyze
the procedural modifications in greater depth below under the
familiar due process analysis of Mathews v. Eldridge, 424
US. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), but the
substantive modifications can be dealt with more simply.
a. Modifications to Ohio’s Substantive
Prison Regulations
Prior to the district court's modifications, inmates could
be placed at OSP for any contraband activity, no matter how
minimal. As its first substantive modification, the district
court directed that the policy be rewritten to specify a
quantity of contraband activity, and for drug activity, the
district court stipulated that the threshold amount should
“reflect a level that would subject an inmate to incarceration
for at least a third degree felony,” or alternately the court
allowed “placement for multiple violations involving lesser
quantities of drugs.” Austin //, 204 F. Supp. 2d at 1028. The
district court's second substantive modification was to the
security group threat” predicate for classification, directing
the ODRC Officials to modify the criteria to require a greater
showing of involvement in such groups. Third, the district
l6a
court required that only behavior in the five years prior to a
retention decision should be considered, and that an inmate
with three years free of violent behavior and two years free
of major misconduct “should generally qualify for
reclassification” to a lower level and transfer out of OSP,
with an exception to both of these rules if an inmate's “prior
conduct during incarceration resulted in death or extreme
bodily harm.” /d.
The power of the federal courts to order modifications
in state prison policies extends only as far as is necessary to
protect federal rights. The Inmates do not argue and we do
not decide whether placement at OSP implicates either the
Eighth Amendment or the substantive portion of the Due
Process Clause. n9 The federal right at issue in this case,
then, is defined solely in relation to the substantive limits
placed on the discretion of the ODRC officials by state law
itself. Therefore, the district court only had the power to
order federally mandated process in a substantive inquiry
otherwise governed by the state. The district court was thus
without power to order the state officials to modify the
substantive predicates which governed placement and
retention at OSP. See Washington v. Harper, 494 U.S. 210,
219-222, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990)
(reviewing a state court's substantive as well as procedural
modifications to state correctional regulations). There fore,
regardless of their inherent soundness, these three
modifications must fail, as they order the ODRC to alter its
substantive rules governing OSP placement and retention.
n9 While the Inmates challenged certain
conditions at OSP under the Eighth Amendment, claims
that were settled below, they do not argue that either the
Eighth Amendment or the substantive protections of the
Due Process Clause create liberty interests in freedom
17a
from transfer to OSP that require due process
protection. We express no opinion as to the viability of
such a claim.
While the district court correctly identified adequate
notice as a requirement of due process when making these
changes, see Columbia Natural Res., Inc. v. Tatum, 58 F.3d
1101, 1104-05 (6th Cir. 1995), we conclude that each of the
modifications made by the district court are in fact
substantive modifications. For instance, new 111-07 states
that any amount of drugs can trigger a reclassification
hearing; altering the policy to require a specified amount
does not improve upon that notice but instead limits the
substantive discretion of the ODRC Officials. Similarly, the
security group modification alters the substantive grounds for
placement at OSP, rather than the process used in
determining that placement. And the modification to the
retention criteria also limits the substantive discretion of the
Officials. While the due process requirement of notice
applies in the prison context as well as outside of it, albeit
slightly differently, see United States v. Chatman, 538 F.2d
567, 569 (4th Cir. 1976), any deficiencies in the notice
provided by these provisions are properly corrected through
case by case “as applied” challenges to the regulations, rather
than striking the regulations down on their face. See Parker
v. Levy, 417 U.S. 733, 755-56, 41 L. Ed. 2d 439, 94 S. Ct.
2547 (1974); Adams v. Gunnell, 729 F.2d 362, 369-70 (Sth
Cir. 1984). We therefore reverse those portions of the district
court's judgments that altered the contents of these three
substantive regulations.
l8a
b. Procedural Modifications
That a liberty interest exists in avoiding classification at
level five and concurrent placement in OSP is in many ways
the easy half of the Sandin analysis. What is much less clear
after Sandin is how to determine what process is due to
protect that interest. Before Sandin, state-created liberty
interests of prisoners were either protected by an adversary
hearing on the record following Wolff v. McDonnell, 418
U.S. 539, 563-73, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), or
a more free-form hearing following Hewitt, 459 U.S. at 477.
Wolff dealt with the process due in finding a disciplinary
infraction punished by the rescission of good-time credits;
Hewitt involved a challenged placement in administrative
segregation, pending the outcome of an investigation into
misconduct. Cases following the Hewitt/Wolff split have
classified various factual situations depending upon the
category into which th. challenged process fell: disciplinary
or administrative, historical or prospective, objective or
subjective, Wolff or Hewitt. On appeal, the ODRC Officials
assert that this mechanical dichotomy still has force after
Sandin, that classification at level five and placement at OSP
is a forward-looking, Hewitt-type procedure, and that our
inquiry should end there, with a decision that only “Hewitt
process” is due. We are convinced, however, that Sandin
called into question not only the mechanistic way in which
the circuit courts previously found liberty interests in prison
regulations, but also the mechanistic fashion in which they
applied the Hewitt/Wolff dichotomy. nl0 After Sandin, both
steps of the analysis—the creation of a liberty interest and the
determination of the process due to protect that interest—
must carefully reference the severity of the deprivation at
stake. It is not enough to say that a particular decision is
“forward-looking”; instead, reference must be made to the
interests at stake, for the inmate and for the state. It is not the
19a
nature of the decision which strikes the due process balance;
it is the nature of the interests on both sides of that balance.
nil With that in mind, we approve of the district court's
grounding of its decision in the due process balancing test
outlined in Mathews v. Eldridge, 424 U.S. at 335, and
consider the procedural modifications in light of that test.
Mathews
requires consideration of three distinct
factors: First, the private interest that will be
affected by the official action; second, the risk of
an erroneous deprivation of such interest through
the procedures used, and the probable value, if
any, of additional or substitute procedural
safeguards; and finally, the Government's
interest, including the function involved and the
fiscal and administrative burdens that the
additional or substitute procedural requirement
would entail.
Id.
nl0 Like Judge Rogers, we are convinced that the
“Hewitt/Wolff dichotomy” is not a viable form of
analysis; we note later that the district court's
procedural modifications track Wolff only because the
ODRC officials had argued that the district court went
beyor. 1 Wolff in ordering certain modifications, most of
which were directed at the “appellate” process created
by the ODRC.
nll We do not think that we differ so much from
Judge Rogers in describing this balance; we agree that
the type of decision being made will affect the private
interest, the government interest, and the value of
certain procedural safeguards. We only emphasize that
20a
the type of decision is not, as the ODRC Officials
would have us hold, the only factor necessary to
determine what procedure is due. We believe, however,
that in the face of the substantial factual findings of the
district court as to haphazard ODRC placements, the
procedural requirement of notice is particularly
important, and give great weight to its value in
increasing accuracy.
The district court made fifteen specific modifications to
new 111-07, including the improper substantive
modifications dealt with above. A first set deals with the
classification hearing itself, and closely tracks Wolff. First,
when classification proceedings are initiated, the notice
already stipulated by new 111-07 shall include an exhaustive
list of the reasons to be considered for placement and a
summary of the evidence to be presented. Second, the
inmate shall be allowed to present witnesses and
documentary evidence at classification hearings, where
“permitting him to do so will not be unduly hazardous or
burdensome to institutional safety or correctional goals.”
J.A. at 530 (citing Wolff, 418 U.S. at 566). Finally, a record is
to be made of the proceeding itself, and if the ODRC wishes
to rely on confidential witnesses, it must indicate that
reliance and disclose as much of the confidential testimony
as possible.
A second group of modifications required by the
district court centers on the administrative appellate
procedure laid out in new 111-07. Because no comparable
appellate procedure was at issue in Wolff, see 418 U.S. at
565, these requirements do not track that case as closely.
The district court found that the previous system of
administrative review, in which each intervening appellate
decisionmaker had plenary power to reverse the prior
2la
decisionmaker without any statement of reasons for the
decision given to the inmate, had led to suspect inmate
classifications. The specific changes ordered by the district
court were: that the inmate is to receive the classification
committee's recommendation and notice of his right to and
method of appeal; that the warden is to engage in
“independent review” of the committee’s recommendation,
and if in doing so, relies upon a confidential witness
Statement not already made known to the prisoner, shall
follow the procedure outlined above, including allowing the
inmate to respond in writing; that the warden shall, if she
approves the recommendation, send a copy of that
recommendation to the inmate; and that the Bureau of
Classification shall follow the same procedure in relying on
new confidential witness statements, shall allow the inmate
to submit documentary evidence, and will, if the inmate is
recommended for level five placement, record a detailed and
specific justification for the decision. Finally, the district
court, in its May 15, 2002, order, required that none of the
members of the original classification committee shall take
part in the decision of the prisoner’s appeal to the warden or
to the Bureau.
; The first factor of the Mathews balancing test, the
private interest at stake, is significant; placement at OSP is
indefinite and reviewed only annually, unlike placement in
disciplinary segregation in the Ohio prison system, which
lasts only thirty days, or administrative segregation, which is
reviewed every thirty days. Prisoners placed at OSP are
deprived of all significant human contact and have other
restrictions placed upon their movement and their personal
privileges; they are also ineligible for parole during their stay
at OSP. In this first factor, Sandin affects the due process
balance: because only those conditions that constitute
‘atypical and significant hardships” give rise to liberty
22a
interests, those interests will necessarily be of a weight
requiring greater due process protection. nl2_ As to the
second factor, the risk of error, the district court made
specific findings concerning past erroneous and haphazard
placements at OSP, which go unchallenged on appeal. We
will consider the probative value of particular procedures in
the next paragraph. As to the third factor, the ODRC clearly
has an interest in guaranteeing the safety of its staff and
inmates through the swift isolation of dangerous inmates.
However, the ODRC has a mechanism to assure safety, one
which does not require extensive process, and which, unlike
OSP placement, is easily and swiftly reversible in the case of
error: administrative segregation.
nl2 We mean by this statement only to compare
those liberty interests found to exist post-Sandin with
those found to exist pre-Sandin. Because the Court has
made clear that many of the liberty interests found by
courts which would have in the past required certain
pre-deprivation processes are no longer viable liberty
interests, in looking over what courts have required of
prison officials in the past, it is important to remember
that many liberty interests which required less process
in the past would require no process now. Any liberty
interest which passes Sandin’s threshold comes with a
higher presumption of process due than those which
may have been found pre-Sandin.
Looking at each of the modifications ordered by the
district court individually, we remain unconvinced that the
district court abused its discretion in finding that each
procedural modification it made was mandated by the
weighty private interest at stake and the risk of error and was
unmitigated by the governmental interests at stake. We
examine first the requirement identified by the ODRC
23a
Officials both in their brief and at oral argument as the most
burdensome: requiring officials to limit their placement
decision to only those matters detailed in the notice given to
the inmate. They argue that this requirement will constrict
‘substantive discretion” by disallowing reliance on “rumor
reputation, and even more imponderable factors.”
Appellants’ Reply Br. at 8 (quoting Hewitt, 459 U.S. at 474).
This argument is unavailing. Placement at OSP implicates a
liberty interest because of the ODRC’s own regulations
limiting the substantive discretion of prison officials: they
can place inmates at OSP only in the presence of certain
factual predicates, all of which are historical in nature.
Having Set out a detailed and restricted list of reasons why
inmates can be put at OSP, the ODRC cannot turn around
and argue that the district court’s order decreases their ability
to rely on “rumor, reputation, and even more imponderable
factors,” for those factors are illegitimate under their own
placement scheme. n13 The district court required that the
“defendants will provide the inmate with written notice of all
the grounds believed to justify his placement at level five and
a summary of the evidence that the defendants will rely upon
for the placement.” Austin //, 204 F. Supp. 2d at 1026. We
do not find that this requirement’s burdens on the ODRC
outweigh its probative and protective value.
: nl3 It Is here we part ways with Judge Rogers—
in determining what process is due, we believe
reference to what the state substantively requires is the
first step. In order to be placed at OSP, an inmate must
fulfill one of those discrete, substantive historical
predicates; the district court correctly required that
ODRC Officials place an inmate on notice of what
historical events will be used to demonstrate his
fulfillment of one of those predicates. The state itself
has limited its ability to place inmates at OSP: the
24a
combing through files predicted by Judge Rogers is
unlikely in the face of the specific substantive
predicates identified in the state scheme.
Having found that the additional procedural
requirement identified by the ODRC Officials as the most
burdensome passes muster under Mathews v. Eldridge, we
conclude that those which pose a lesser burden on the ODRC
are also appropriate. The ODRC Officials, both in their brief
and at oral argument, did not in fact point to any other single
procedural requirement as being particularly burdensome.
We note, moreover, that many of the procedures ordered by
the district court are an attempt to reconcile an elaborate
administrative appeals scheme created by the ODRC
Officials with the requirement that the inmate know the
reason for any decision made about his fate; where a higher-
up decisionmaker reverses the decision of the original
factfinder, a brief description of the grounds for that reversal
is constitutionally necessary.
D. Prison Litigation Reform Act
The ODRC Officials make a final argument that the
district court failed to follow 18 U.S.C. § 3626, part of the
Prison Litigation Reform Act (“PLRA”), governing
prospective relief. Their complaints center around the
substantive modifications made to new 111-07, which
modifications are indeed invalid for the reasons discussed
above. They also make a third, more general argument that
the district court erred in failing to make findings that the
remedial orders are necessary to correct “‘current and
ongoing’ federal violations.” Appellants’ Br. at 60. But the
“current and ongoing” language comes from § 3626(b)(3),
governing the termination of relief, not from § 3626(a),
25a
governing requirements for initial relief. This argument
therefore has no merit.
iil. CONCLUSION
Because the Inmates have a liberty interest in avoiding
placement at OSP, and because the procedural modifications
ordered by the district court are necessary to protect that
interest, we affirm these portions of the district court's
judgments that address procedural requirements and
modifications. Because the district court was without power
to reach the substantive prison regulations which were also
modified, we reverse the district court’s judgments insofar as
they rely on the following: Part II of the district court's
March 26, 2002 order, excepting the final paragraph; n14 the
penultimate paragraph of the district court’s May 15, 2002
order; and the underlying portions of the district court’s
February 25, 2002 opinion. nl5 We therefore partially
AFFIRM and partially REVERSE the district court's
judgments, and we REMAND to the district court for further
proceedings consistent with this opinion.
nl4 That paragraph concerns the procedural
modification of departmental notice to the inmate of the
inmate’s progress towards reclassification, and is a
proper procedural modification.
nl5 The ODRC Officials appeal from the district
court’s July 12 denial of their Rule 60(b) motion; the
only claims of error in that denial which they make on
appeal concern the substantive modifications to | 1 1-07
that we reverse in any case. There is therefore no need
to evaluate the propriety of the district court’s denial of
the Rule 60(b) motion on its own merits.
26a
CONCURRING IN PART, DISSENTING IN PART
ROGERS, Circuit Judge, concurring and dissenting.
While | agree with much of the majority’s careful opinion,
there are two areas where my analysis differs sufficiently to
warrant a separate opinion, and one point upon which |
respectfully dissent.
A.
| agree that the Inmates have shown a protected liberty
interest under Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d
418. 115 S. Ct. 2293 (1995), and that in applying Sandin we
are not required to make an interstate, as opposed to
intrastate, comparison. The record shows that inmates
assigned to OSP not only are subjected to far more severe
conditions of confinement, but they are also disqualified for
parole while assigned to OSP. These two factors together
permit the conclusion that a liberty interest is implicated
under Sandin.
Because assignment to the OSP involves
disqualification from parole, it is unnecessary for us to decide
whether a prison classification that subjects an inmate to
more restrictive conditions of confinement, without more,
constitutes a deprivation of a liberty interest. Recent
unpublished opinions of the Seventh Circuit hold that it does
not, even where assignment to a supermax prison was
involved. See Moore v. Litscher, No. 02-1461, 52 Fed.
Appx. 861, 2002 U.S. App. LEXIS 25305 (7th Cir. Nov. 27,
2002) (prisoners do not have a federally protected liberty
interest in being housed in a particular facility, and therefore,
as a matter of federal constitutional law, prisoner was not
entitled to any due process protection before he was moved
to supermax facility); Nash v. Litscher, 50 Fed. Appx. 317
27a
(7th Cir. 2002) (same). If movement from one level of
restrictive confinement to a significantly higher one triggers
due process protections, then prison administration could be
unduly burdened by the necessity of due process hearings.
Courts would then have to struggle with just how much of a
change in the severity of confinement triggers due process
protection. Fortunately, we do not need to decide the issue.
In this case, the decision to assign an inmate to OSP not only
imposes extraordinarily strict conditions, but also suspends
parole eligibility. While Ohio law does not create a liberty
interest in parole, see Ohio Rev. Code § 2967.03; Wagner v.
Gilligan, 609 F.2d 866, 867 (6th Cir. 1979), a parole
eligibility determination can indirectly affect the length of a
prisoner's incarceration, and is patently based on factors
beyond the consideration of prisoner safety and prison
management. See Ohio Admin. Code § 5120:1-1-07 (2004);
Layne v. Ohio Adult Parole Auth., 97 Ohio St. 3d 456, 2002
Ohio 6719, 780 N.E.2d 548, 555 (Ohio 2002) (emphasizing
that parole board may “consider any circumstances relating
to the offense or offenses of conviction, including crimes that
did not result in conviction, as well as any other factors [i
deems relevant”). : a
7 Even though assignment to a very restrictive prison
might not by itself amount to a deprivation of a liberty
interest, and even though a suspension of parole eligibility by
itself may not amount to the deprivation of a property or
liberty interest in Ohio, the combination of the two
deprivations, in the context of the facts shown in the record
of this case, amounts to a deprivation of a protected interest
for procedural due process purposes. See Sandin, 515 U.S. at
487 (finding no protected liberty interest in remaining free
from disciplinary segregation, but noting that disciplinary
record did not preclude parole); Neal v. Shimoda, 131 F.3d
818, 830 (9h Cir. 1997) (finding that stigmatizing
28a
consequences of labeling inmate as “sex offender,” combined
with parole ineligibility for non-completion of mandatory
treatment program, triggered due process protections under
Sandin). By way of analogy, the Supreme Court found a
protected interest in Owen v. City of Independence, 445 US.
622, 633 n.13, 63 L. Ed. 2d 673, 100 S. Ct. 1398 (1980),
from the combination of a loss of at-will employment (alone
not a property interest under Board of Regents v. Roth, 408
U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)) and
defamatory statements (alone not a deprivation of a liberty
interest under Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405,
96 S. Ct. 1155 (1976)).
B.
| also agree that the proper framework for evaluating
whether the state procedures meet the requirements of
procedural due process is the balancing test set forth in
Mathews v. Eldridge, 424 U.S. 319, 334-45, 47 L. Ed. 2d 18,
96 S. Ct. 893 (1976). Such an analysis requires that each
procedural protection sought for each category of
administrative decisionmaking be evaluated independently
under the Eldridge factors. We are not required to adopt for
any prison-related decision the bundle of procedures required
by one or another Supreme Court case dealing with different
types of prison decisions. Thus discussion of the
Hewitt/Wolff “dichotomy” is problematic. Many
deprivations of liberty interests in prison, and certainly the
ones in this case, are different in important respects both
from the disciplinary rescission of good-time credits in Wolff
v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963
(1974), and from the administrative segregation in Hewitt v.
Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864
(1983). The sought procedures may also vary. In short, the
balance has to be context-specific. Thus whether or not a
29a
particular procedure imposed by the district court “tracks
Wolff” by itself does not tell us whether it is required by
Eldridge. On the other hand, of course, the Supreme Court's
analysis with respect to what procedures are required to
protect a particular liberty interest do provide guidance where
the procedures or the interests are in relevant respects
analogous. Thus to the extent, for instance, that Hewitt
instructs that additional procedures with respect to “forward-
looking” determinations are less likely to increase the
accuracy of such decisions (the second Eldridge factor), 459
U.S. at 473-74, that guidance may appropriately be applied--
not categorically but as part of the weighing--in other cases
involving different procedures and different liberty interests.
| would also qualify the majority's statement that “it is
not the nature of the decision which strikes the due process
balance; it is the nature of the interests on both sides of that
balance.” The Eldridge balance involves three factors, two
of which can be characterized as “the nature of the interests
on both sides.” The other, often dispositive factor, however,
is the degree to which the desired procedures will increase
the accuracy of agency decisionmaking. That determination
often does depend on “the nature of the decision” in the sense
that some types of decisions will be greatly benefited by
certain procedures, while others may not.
C.
Applying the Eldridge analysis, | would uphold all of
the procedural requirements imposed by the district court
except the requirement that officials limit their placement
Sorsten to Greco cations detulied in the notice to the inmate.
n
30a
nl | agree that the substantive requirements must
be reversed, for the reasons stated in Part I(C)(2)a) of
the majority opinion.
At the outset, | note that our scope of review ts de novo
for legal issues such as whether procedural due process
requires certain procedures, even though the issue is
presented on appeal from the entry of an injunction. See
Chao v. Hosp. Staffing Servs., Inc., 270 F.3d 374, 381 (6th
Cir. 2001) (“A court abuses its discretion when it relies on
clearly erroneous findings of fact, applies an inappropriate
legal standard, or improperly applies the law, with such legal
questions receiving de novo review in the Court of
Appeals.”), South Cent. Power Co. v. IBEW, Local Union
2359, 186 F.3d 733, 737 (6th Cir. 1999) (“A district court's
decision to grant or deny a permanent injunction is reviewed
under several distinct standards. Factual findings are
reviewed under the clearly erroneous standard, legal
conclusions are reviewed de novo, and the scope of
injunctive relief is reviewed for an abuse of discretion.”).
The scope of equitable relief may be discretionary in some
sense, such that review of injunctive orders may sometimes
be for abuse of discretion, but precisely speaking a district
court does not have discretion to determine whether due
process requires a hearing in a particular context. We
properly review such a legal issue de novo.
The comprehensive notice requirement imposed by the
district court essentially provides inmates with notice of all
of the evidence that may be relied on in determining his
placement. Significantly, this requirement provides inmates
appearing before classification committees with more notice
than that received by criminal defendants at trial, where the
liberty interests at stake are obviously more substantial. See
Fed. R. Crim. P. 16; Weatherford v. Bursey, 429 U.S. 545,
3la
559, 51 L. Ed. 2d 30, 97 S. Ct. 837 (1977) (“There is no
general constitutional right to discovery in a criminal case. .
[and] the Due Process Clause has little to say regarding the
amount of discovery which the parties must be afforded. . .”).
As the Supreme Court has recognized, “prison disciplinary
proceedings are not part of a criminal prosecution, and the
full panoply of rights due a defendant in such i
does not apply.” Wolff, 418 U.S. at 556. In my view, the
comprehensive notice requirement extends beyond what due
process requires.
. In upholding the district court's requirement, the
majority relies on Sandin to conclude that the liberty interest
in this case is particularly weighty. If anything, however, the
Opposite inference is warranted. That is, under Sandin, a
liberty interest arises from “atypical and significant
hardships” not implicit in the original sentence. Typical or
less significant hardships thus do not even rise to the level of
a protected liberty interest. It is only the atypicality or the
extraordinary significance of the hardship that is even enough
to raise due process concerns. It follows that a hardship that
is only marginally atypical and marginally significant should
only be given marginal weight in an Eldridge analysis. It is
illogical to say that any interest that meets the Sandin test
must be of a weight requiring greater due process protection.
On the contrary, a prisoner gains due process protection
under Sandin only when the hardship exceeds typical
hardship. Because in a sense it is the excess over typical
hardship that warrants due process protection, it is logical
that it be that excess that is weighed as the private interest in
the Eldridge analysis. Since that excess may be very small,
the fact that the interest was determined under Sandin may
instead imply that the private interest be given a lesser weight
than in the case of another type of protected property or
liberty interest. In any event, the fact that the liberty interest
32a
is determined under a Sandin analysis cannot, without more,
lead to the conclusion that the interests will be deemed to
weigh particularly heavily.
Secondly, we must evaluate the increase in accuracy
that will result from the procedural requirement that the
decisionmakers limit their placement decision to the grounds
and evidence detailed in the notice given to the inmate. A
general finding that erroneous and haphazard placements
have occurred in the past is insufficient. Instead, under the
second factor of Eldridge, we must evaluate the extent that
the particular procedural requirement increases the accuracy
of the decisionmaking.
Under the ORDC Officials’ new policy 111-07, inmates
received written notice explaining the reasons they were
referred for a classification hearing. See J.A. at 716, 731.
The district court ordered that, not only must ORDC officials
provide advance written notice of the reasons for the referral
to a hearing, but that they must also provide “written notice
of all the grounds believed to justify [placement] and a
summary of the evidence that the [officials] will rely upon
for the placement.” Austin v. Wilkinson, 204 F. Supp. 2d
1024, 1026 (N.D. Ohio 2002). The district court added a
footnote that appears to preclude consideration of evidence
not described in the notice: “If [ORDC Officials] elect to use
[a proposed form] to give an inmate notice, they must limit
the grounds stated on the form and the evidence generally
described on the form, to support placement at OSP.” /d.
The majority fails to explain, however, how requiring ORDC
officials to provide an inmate with such comprehensive
notice increases the accuracy of the placement decision for a
given inmate. The district court reasoned that
33a
requiring Department officials to give inmates
specific notice of all of the grounds for placing
and retaining them at OSP would cause minimal
hardship. The officials would only need to
expend the additional time to write out their
reasons for making a specific classification
decision. Furthermore, this minimal amount of
additional time would increase the Department's
efficiency. Accurately summarizing all the
grounds supporting an inmate’s placement at the
OSP would later assist reviewing entities and
4 unnecessary prisoner assignments to the
Austin v. Wilkinson, 189 F. Supp. 2d 719, 746 (N.D. Ohi
2002). The district court's analysis Neh cemabge
burden that a comprehensive notice requirement imposes on
the government. In making such decisions, ORDC Officials
rely on a wide range of information. The hardship in
expending additional time to write out reasons for making a
specific classification decision may indeed be minimal.
However, requiring that, prior to even conducting a hearing,
ORDC Officials cull through often voluminous records and
note every potentially relevant fact—on pain of barring them
from considering any information, no matter how relevant,
that was inadvertently omitted—is significantly more
pers Bi og wot cath Ramee a
outwei improvement in i
there is any—asserted to arise from the comprehensive notice notice
requirement.
_ Nor is the comprehensive notice requirement necessary
to vindicate the interests cited by the district court. Under the
classification committee is responsible only for making the
Ada
initial recommendation concerning whether an inmate should
be assigned to OSP; both the warden (or the warden’s
designee) and the Bureau of Classification must agree with
the committee’s recommendation before an inmate can be
placed at OSP. Austin v. Wilkinson, 204 F. Supp. 2d 1024,
1026-28 (N.D. Ohio 2002). At each stage in the process, an
inmate must be given a written statement explaining the
justification for the placement recommendation and the
evidence supporting it, as well as an opportunity to respond
to the recommendation in writing. This process provides
both a written record for review and ample opportunity for
inmates to challenge their placement. Accordingly, | would
find that the notice required under the new 111-07 is
sufficient to satisfy due process in this context.
As to the remaining procedures imposed by the district
court, the Government has failed to articulate in any
significant manner how they burden the government. On
their face the additional procedural requirements appear to
increase the accuracy and reliability of the decisionmaking
process, and they were arrived at by careful consideration by
the district court. The private interest is substantial. |
therefore agree that the procedural requirements imposed by
the district court, apart from the one discussed above, were
properly imposed by the district court.
35a
Conclusion
For the foregoing reasons, | concur in the judgmen
’ t
except to the extent that it upholds the peters a that
ORDC Officials provide comprehensive noti i
. notice to inmates
appearing before classification committees.
36a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHARLES E. AUSTIN, et al., ) CASE NO. 4:01-CV-71
Plaintiffs,
v. Judge James S. Gwin
{GINALD WILKINSON, et al.,
ws ORDER
il
Defendants.
On April 24, 2002, the defendants filed thes
proposed Policy 111-07 in accordance with the Court's
March 26, 2002, order [Doc. 272]. Having reviewed the
defendants’ proposed policy, the plaintiffs” response to the
policy, and the defendants’ reply, the Court adopts the
defendants’ April 24, 2002, proposed policy with the
following changes:
1. The adopted policy will reflect the three phrasing
changes described in the “Corrections” section of
the defendants reply memorandum filed on May
13, 2002 [Doc. 281].
2 Both section VICC\IIN(C\8) [page 7 of the
adopted policy] and section VI(J)(III)(H) [page 14
of the adopted policy] should be changed from
“within five (5) working days” to “within ten (10)
working days.” There are no other changes to
these sections.
37a
3. The newly adopted Policy 111-07 should include
the sentence: “No person who serves on a
prisoner's classification committee should decide,
or take part in deciding, the prisoner's appeal to
the Warden or the Bureau of Classification.” The
Court leaves the placement of this language to the
discretion of the Department of Rehabilitation and
Correction (the “Department”.
In addition, the Court orders that all forms used by the
defendants in conjunction with the newly adopted Policy
111-07 should conform to the language of the adopted policy.
The Court will not delay the implementation of the newly
adopted Policy 111-07 while the plaintiffs review the
Department's forms. However, the defendants have until
May 22, 2002, to provide the plaintiffs’ counsel copies of all
the forms they will use under the newly adopted Policy 111-
07. The plaintiffs have until May 30, 2002, to file any
objections to the forms.
Next, the Court clarifies its order with respect to the
language in section VI(I)(II1) [page 12 of the adopted policy].
A prisoner’s prior conduct that results in the death or extreme
bodily harm to another may only be considered for retaining
a prisoner in Level 5 classification if that conduct was used
as one of the justifications for the prisoner’s initial placement
to Level 5. In such a case, the prisoner’s prior conduct that
resulted in the death or extreme bodily harm of another may
be considered but the conduct must be considered in
conjunction with his conduct while at the OSP.
Finally, the Court notes that under its March 26, 2002,
order, all prisoners currently classified at Level 5 should
receive an additional classification review under the newly
38a
adopted Policy 111-07. Those reviews must be completed
within eight weeks of this order.
IT IS SO ORDERED.
Date: May 15, 2002 s/James S. Gwin
James S. Gwin
United States District Judge
39a
APPENDIX C
CHARLES E. AUSTIN, et al., Plaintiffs,
v.
REGINALD A. WILKINSON, et al., Defendants.
CASE NO. 4:01-CV-071
204 F. Supp.2d 1024
(N.D. Ohio 2002)
OPINION:
ORDER
On February 25, 2002, the Court found that the plaintiff
inmates have a liberty interest entitled to constitutional
protection because the length of their placement at the Ohio
State Penitentiary (“OSP”), and the severity of its restrictive
conditions, imposes an atypical and a significant hardship
upon the inmates. The Court held that the defendants
violated the plaintiff class’s right to due process by denying
the plaintiffs adequate notice, adequate hearings, and
sufficiently detailed decisions concerning their placement at
the OSP. Because the defendants have violated the plaintiffs’
constitutionally protected liberty interest, the Court orders the
least intrusive means to correct the violation. See 18 U.S.C.
§ 3626(a)(1 (A).
No person shall be placed or retained at a Level 5 security
classification under Policy 111-07 except in compliance with
the hearing procedures set forth herein.
I. - Notice and Hearing
Before placing an inmate at Level 5, the defendants will
provide the inmate written notice of the hearing at least forty-
40a
eight hours before the hearing. In addition to notice of the
hearing, the defendants will provide the inmate with written
notice of all the grounds believed to justify his placement at
Level 5 and a summary of the evidence that the defendants
will rely upon for the placement. nl The written notice
provided the inmate must be sufficient to “enable him to
marshal the facts and prepare a defense.” Wolff v.
McDonnell, 418 U.S. 539, 564, 41 L. Ed. 2d 935, 94S. Ct.
2963 (1974).
nl If the defendants elect to use Form 2598 to
give an inmate notice, they must limit the grounds
stated on the form and the evidence generally described
on the form, to support placement at the OSP.
The defendants must give the inmates an opportunity to
appear before a classification committee and make an oral or
written statement if the inmate so desires. At the hearing on
whether the inmate will be classified to Level 5, the
defendants must allow the inmate an opportunity to call
reasonable witnesses and present documentary evidence as
long as permitting him to do so will not be unduly hazardous
or burdensome to institutional safety or correctional goals.
Id. at 566. Upon request from an inmate being considered
for Level 5 classification, the defendants will make
reasonable efforts to secure the presence or participation by
phone of inmate-witnesses housed at other facilities.
However, the ability to present a defense does not extend to
the right to cross-examination or confrontation. See 7 id. at
567-68. Nor is the inmate entitled to the right to counsel.
See id. at 569-70.
if the Ohio Department of Rehabilitation and
Correction (the “Department”) wants to use the statement of
a witness whose identity it wishes to withhold, the
4la
Department shall “indicate this reliance and shall disclose to
the inmate as much of the substance of the information as
possible.” (Pls. Proposed Order Attach. | at 11). If the
warden or the Chief of the Bureau of Classification wishes to
rely on a statement that was not made known to the prisoner
at the classification committee hearing, they shall follow the
same procedure. Before using such information, the warden
or the Chief of the Bureau of Classification will provide the
inmate a reasonable opportunity to respond through a written
statement and/or the submission of documentary evidence.
The classification committee shall make a record of
hearings when an inmate is considered for placement to
Level 3 security classification at the OSP. An audio
recording is sufficient for this purpose. The defendants will
retain this record while the inmate is at L ie
at the OSP. s at Level 5 classification
At the conclusion of the hearing, the classification
committee shall inform the inmate of its recommendation
The classification committee will prepare a contemporaneous
written statement of its recommendation, the justification for
its recommendation, and a summary of the evidence
supporting its recommendation. The classification committee
will supply a copy of the recommendation to the inmate.
If the classification committee recommends placement
to Level 5 security classification, the Department shall give
the inmate notice of his right to appeal and the method for the
appeal. The Department will give the inmate reasonable time
n2 to prepare and submit a written response to the
classification committee’s recommendation.
n2 This “reasonable time” shall not be |
twenty-four hours. sedi
42a
After the warden or the warden’s designee
(“warden/designee”) receives the classification committee's
recommendation that he be reclassified to Level 5, the
warden/designee will —_ independently review the
recommendation for consistency with the standards described
in Policy 111-07. The warden/designee will recommend a
placement. If the warden/designee recommends placement to
Level 5. the warden/designee will provide a written
justification of all reasons believed to support such a
placement and will provide a copy of the recommendation to
the inmate. If the inmate disagrees, the Department will
allow the inmate to provide written argument and
documentary evidence to the Bureau of C lassification. The
Bureau of Classification will make the final decision.
Regarding consideration of placement to a Level 5
security classification, the Bureau of Classification will
consider the classification committee and __ the
warden/designee’s recommendations and, consistent with
section VI(C) of Policy 111-07, will determine whether the
inmate shouid be placed at Level 5. If the Bureau of
Classification determines that the inmate should be placed at
the Level 5 security classification, the responsible employee
of the Bureau of Classification shall record a detailed and
specific justification for the decision.
The justification shall set out all grounds justifying the
inmates’ placement at Level 5 classification and will not use
conclusory or boilerplate language. The justification
statement shall describe the facts relied upon and the
reasoning used. This written statement shall address an
inmate’s specific case and not contain merely vague
boilerplate language. The Department shall provide a copy
43a
of the Bureau of Classification’s wri decisi the
* . . e
inmate within five working days. “i sean
When the Department conducts its ann
| | ual hearing on
— an inmate earlier assigned to the OSP because of his
evel 5 security classification should be reclassified to a
lower classification level, the Department same
; =>nt must use the
procedure described for initial placement at the OSP.
Il. Grounds for Level 5 Classification
ia ng — to the grounds justifying placement at the
. fendants may rely upon the grounds set out in
section VI (C) of Policy 111-07 with the following changes:
First, defendants wil revise section VI(C\(4) to set :
as — descniption of the type and quantity of
yer , will make an inmate eligible for placement at
el 5 classification. As to the quantity of illegal drugs that
can subject an inmate to Level 5 classification, the quantity
chosen should reflect a level that would subject an inmate to
incarceration for at least a third degree felony. Alternatively
section VI(C\4) could allow Level § classification
= for multiple violations involving lesser quantity of
Upon revising section VI(C\4), defi
th . endants shall
ve hae proposed revisions to this Court for approval.
Court approves 4 revised section VI(C\(4), the
Yr p Soee Ret place inmates at the Level 5 security
: fication ae attempt to convey, introduce
Second, defendants will revise Policy 111-07 to clearly
Set out the type of security group threat or i
ut gang involvement
that justifies placement at Level 5 classification. Regarding
44a
this criteria for placement, Policy 111-07 would be
acceptable if it used the criteria formerly employed: “the
inmate functions as a leader or enforcer of a security threat
group.” (Pls.” Ex. 2 at 2). The revision to Policy 111-07
should also require that the inmate was a leader, enforcer, or
recruiter of a gang involved in violent or disruptive behavior.
The Court has found that Policy 111-07's criteria for
decisions on retention are vague. While Policy 111-07 sets
out appropriately considered factors at pages nine and ten, it
fails to give sufficiently definite standards for the use of the
factors.
To meet constitutional requirements of notice and
justification, the defendants shall revise Policy 111-07 to
clearly state the factors to be used for reclassification.
Unless an inmate’s prior conduct during incarceration
resulted in death, or extremely serious bodily harm, the
inmate should generally qualify for reclassification to a lower
security classification if he has not committed any violence
within the previous three years and has no major misconduct
within the past two years while placed at the OSP. More
generally, unless an inmate’s prior conduct during
incarceration resulted in death or extreme bodily harm, the
Department should only consider “behavior in the last five
years, including prior to Level 4 or § classification.” (Defs.”
Ex. C at 9).
At least twice a year, the Department will notify the
inmate in writing and orally of the inmate's progress toward
security level reduction. Such notice will advise the imate
what specific conduct is necessary for that prisoner to be
reduced from Level 5 and the amount of time it will take
before the defendants’ reduce the inmate's security level
classification.
| 45a
IIL Defendants’ Changes to Policy 111-07 and Review
The defendants will submit
111-07 within thirty days for x amiga yn ory
this Court, no additional prisoners shall be placed on Level §
unless approved by the Court. After the Court approves the
defendants changes to Policy 111-07, the defendants will
comply with all of the provisions of revised Policy 111-07.
, To afford inmates currently classified at Level 5 the
rights described in this Court's opinion, the defendants shall
conduct an additional review of inmate security
classifications in compliance with the revised Policy 111-07
pe by this Court. The defendants will complete this
fication review within eight weeks
revisions to Policy 111-07. " iy casting
IV. Monitoring and Document Production
The defendants shall provide to the plaintiffs’ counse
* *_*
copies of any additional policies, forms, and other directives
adopted by defendants in implementation of this injunction.
The defendants shall provide to the plaintiffs’ counsel
list of all members of the class showing the inmates first and
last names, incarceration number, date of arrival at the OSP,
current privilege and security level and the name of the
ee ne SOE Sp eels wate eeeieas to ie
The defendants shall provide to the plaintiffs’ counse
copies of all Level 5 placement and =
recommendations and final decisions for class members
a
doa
whenever a placement or retention decision about that
prisoner 1s made, including any and all forms utilized such as
security designation forms, supervision review forms, notice
of hearing forms, information presented by the inmate,
information presented by staff, classification committee
reports of Level 5 placement and privilege/security level
review forms.
The defendants’ counsel shall meet monthly with the
plaintiffs’ counsel to facilitate the delivery of documents, and
to discuss and, if possible, resolve problems related to the
implementation of this order.
V. Retention of Junsdiction
The Court will retain jurisdiction over this matter for
the purpose of enforcement. This injunction shall terminate
in two years upon the motion of either party unless the Court
finds that prospective relief 1s needed to correct an ongomg
violation of a federal right. See 18 U.S.C. § 626(b\ 1 (A)Q).
IT IS SO ORDERED.
Date: March 26, 2002
‘is
James S. Gwin
United States District Judge
47a
APPENDIX D
CHARLES E. AUSTIN, et al., Plaintiffs,
v
REGINALD WILKINSON, et al.. Defendants.
CASE NO. 4:01-CV-71
189 F. Supp. 2d 719 (N.D. Ohio 2002)
OPINION:
OPINION AND ORDER
In this case, a class of current and former prisoners at
the Ohio State Penitentiary (“OSP”) says the defendants, all
employees of the Ohio Department of Rehabilitation and
Correction (the “Department™), violated their constitutional
rights by denying them due process in their placement and
retention at the OSP. The plaintiffs say conditions at the
OSP give rise to a liberty interest because they impose an
atypical and significant hardship on the prisoners in relation
to the ordinary incidents of prison life. See Sandin v.
Conner, 515 U.S. 472, 484, 132 L. Ed. 2d 418, 115 S. Ct.
2293 (1995). Despite the existence of this liberty interest, the
plaintiff prisoners claim the procedures used by the
defendants in transferring them to the OSP and retaining
them at the institution deny them due process.
Responding, the defendants deny that conditions at the
OSP are atypical or impose a significant hardship. In major
part, the defendants argue that the Court should compare the
plaintiffs’ conditions to those of other inmates at the OSP or
to inmates in similar facilities in other states when
48a
defendants alternatively argue that, if a liberty interest ts
found, they afford sufficient process to the inmates.
From January 2, 2002 through January 10, 2002, the
Court conducted a bench trial on this matter at which it heard
from twenty witnesses and accepted over one thousand pages
of exhibits. After considering all of the evidence, and as
hereinafter described, the Court finds that the nature and
duration of restrictions at the OSP are conditions net
expected by those serving similar incarcerations. The Court
makes this determination despite finding that the current
operation of the OSP, under the progressive stewardship of
Warden Todd Ishee, has greatly improved inmates’
treatment. Instead, the Court finds that inmates at the OSP
face an atypical and significant hardship even under Warden
Ishee’s sensible leadership.
In laying out its decision, the Court first describes the
conditions at the OSP. Next, the Court discusses tts holding
that confinement at the OSP is an atypical and significant
hardship in relation to the ordinary incidents of prison life.
After discussing the nature of the confinement at OSP, the
Court considers the process afforded to inmates in
challenging their initial placement and subsequent retention
at the OSP. Finally, the Court discusses the appropriate
remedy for the constitutional violation that it finds.
|. Factual Background and Discussion
In this case, the plaintiffs represent a class of current
and former inmates at the OSP. They sue certain state
officials for violation of their constitutional rights under 42
U.S.C. § 1983. nl The plaintiffs sue the named defendants
in their official capacities only for purposes of injunctive
relief. Originally, the plaintiffs’ suit alleged that -the
49a
defendants operation of the OSP was a violation of a number
of the inmates’ Eighth and Fourteenth Amendment nghts.
The parties have settled most of the claims. The only claim
left at trial was the plaintiffs’ claim that the defendants
violated their right to due process in the selection and
retention of inmates for the OSP.
nl! Plaintiffs sue Reginald Wilkinson, the director
of the Ohio Department of Rehabilitation and
Correction, Stephen J. Huffman, the former warden of
the Southern Ohio Correctional Facility and the North
Regional director of the Department, Berard J.
Ryznar, chief of the Department's Bureau of
Classification, Todd E. Ishee, the warden at the OSP,
Cheryl Jorgensen-Martinez, the Department's chief
inspector, and Matthew Meyer, the Security Threat
Group investigation coordinator for the Department.
A. Purpose of the Ohio State Penitentiary
The OSP is a high maximum security facility, also
known as a “supermax” facility, located in Hubbard, Ohio,
near the city of Youngstown. n2 Constructed in reaction to
the April 1993 riot at the Southern Ohio Correctional Facility
at Lucasville, the OSP supermax prison first received inmates
in May 1998. The OSP was designed to house 504 male
inmates in single-inmate cells. The OSP was designed as “a
more secure facility, to handle prisoners who were hell
on disrupting the orderly operation of our correctional
institutions.” (Wilkinson Dep. at 8). Ohio intended the OSP
be “a location in the state that we can separate the most
predatory and dangerous prisoners from the rest of the
Department of Rehabilitation and Correction’s general
population.” (Wilkinson Dep. at 24-25).
50a
n2 The National Institute of Corrections defines a
supermax prison as:
[a] freestanding facility, or a distinct unit
within a freestanding facility, that provides
for the management and secure control of
inmates who have been officially
designated as exhibiting violent or seriously
disruptive behavior while incarcerated.
Such inmates have been determined to be a
threat to safety and security in traditional
high-security facilities and their behavior
can be controlled only by separation,
restricted movement, and limited access to
staff and other inmates.
Chase Riveland, Supermax Prisons: Overview and
General Considerations 3 (1999).
The OSP carries out this goal primarily through solitary
confinement—extended periods of incarceration in which the
inmate is kept alone in his cell and has minimal contact with
the outside world. In other prisons, this type of confinement
is commonly referred to as “segregation.” The stark
conditions and psychological consequences of solitary
confinement at the OSP are noticeably different than at other
Ohio prisons.
Before describing the conditions at the OSP, the Court
notes that it was presented with evidence at trial suggesting
that Ohio does not need a high maximum security prison or
does not need one with the capacity of the OSP. Peter Davis,
a member of the Ohio Parole Board and former executive
director of the Correctional Institution Inspection Committee
of the Ohio General Assembly, testified about the
Sla
Department of Rehabilitation and Correction’s use of the J-1
cellblock at the Southern Ohio Correctional Facility. The
Southern Ohio Correctional Facility is Ohio’s only maximum
security prison, the security level immediately below the
OSP’s high maximum security level. n3 The J-1 area is a
self-contained cellblock of twenty cells that has tighter access
requirements and allows less movement of inmates than a
typical | maximum. security cell at the Southern Ohio
Correctional Facility. The J-1 cellblock is the most
restrictive cellblock within the Southern Ohio Correctional
Facility. Before the OSP opened, the J-1 cellblock was the
most restrictive and isolated cellblock in the Ohio prison
system. (Davis Test. at 117-19).
n3 At the time of trial, Ohio assigned prisoners to
one of five security levels: minimum, medium, close,
maximum, or high maximum.
Suggestive that Ohio never needed the 504-inmate
capacity of the OSP, before the OSP was built, Ohio did not
fill the J-1 cells at the Southern Ohio Correctional Facility
( Davis Test. at 119). Instead, Ohio faced a different problem.
It did not have a sufficient number of maximum security
cells, the level below the OSP’s high maximum security
cells. The deficit of maximum security cells and the surplus
of high maximum cells causes an imbalance in assigning
inmates to appropriate confinement.
: In December 1998, a Department of Rehabilitation and
orrection quality review team made up entirely of
correctional officials reviewed the operations at the OSP. n4
The quality review report supports the plaintiffs’ claim that
= yond standard describes which inmates would be placed at
52a
When asked about the inmate population for
which OSP is intended most all respondents cite
“the worst of the worst.” This concept has
proven difficult to operationalize, particularly
when we go beyond the 200 or so inmates who
are clearly OSP material. Identifying those
inmates who represent the “lighter” end of high
maximum has become clouded by the overlap
and similarity in characteristics among high
close, maximum, maximum A.C. and high
maximum inmates.
(Pls.” Ex. 10 at 2).
n4 The team included a former warden of the
Southern Ohio Correctional Facility and the
Department's chief counsel, among others.
The Department of Rehabilitation and Correction
assigns inmates to the OSP from a conflicted position. The
opening of the OSP has created too much capacity for the
highest level of security. At the same time, Ohio lacks
sufficient capacity at maximum security, the level of
confinement below the OSP’s high maximum security level.
After the huge investment in the OSP, Ohio risks having a
“because we have built it, they will come” mind set. As a
result, the defendants consider inmates for placement at the
OSP who do not need its level of restrictions.
B. Conditions at the Ohio State Penitentiary
Conditions at the OSP are significantly more restrictive
than at other correctional facilities of the Department of
Rehabilitation and Correction. First, inmates at the OSP are
kept in their single cells for twenty-three hours a day. An
S3a \
inmate’s cell measures a ximatel
sealed with a solid adc ce aeetce a
thick glass window. The door also has a “food slot” or “cuff
port” that an officer may unlock to insert food or mail. and
that is also used to put handcuffs on the prisoner before the
door is opened. Inmates eat all meals alone in their cells.
| The Department has made the cells more isolated by
installing metal strips to the bottom and sides of the cells
doors at the end of 2000. Before installation of the metal
strips, the doors had half-inch gaps along the sides and two-
to three-inch gaps along the bottom. The Department
installed the strips ostensibly to stop the throwing of urine or
feces, although the defendants did not give specific testimon
of the frequency of such incidents. The Department does rad
use these metal strips at any other institution.
The OSP cells have a narrow outside window that
mags be opened. These small windows do not comply with
the square footage standard established by the American
Correctional Association. An inmate has no control over the
heating and cooling of his cell or the amount and temperature
of air blowing through the cell. The cells are sparsely
finished, containing only a sink, a toilet, a small desk, and an
immovable stool. Inmates sleep on a narrow concrete slab
with a thin mattress, a pillow, a pillow case, a blanket. and a
oe of sheets. A light remains on at all times, although the
ight can be dimmed. The Department strictly limits the
_ personal property an inmate may have at the OSP.
An inmate at the OSP may only leave his cell f
hour a day. During that hour, inmates have ees tea
recreation area with two [rooms. In one of these rooms, the
inmates can use minimal exercise equipment. In the other
room, a slot with a grate that is approximately six inches
54a
wide by four feet high allows outside air to circulate through
the room. The room gives the sensory impression of a closed
room with a small screen opening to the outdoors. Both
recreation rooms are cells within the building. Until recently,
recreation for all inmates at the OSP was solitary. Now,
however, a limited number of inmates at the OSP may have
recreation with one other prisoner.
The ceiling height of the recreation rooms do not meet
the American Correctional Association’s established
standard. After auditing the conditions at the OSP, the
American Correctional Association also found that the OSP
did not comply with its standards for outdoor recreation.
The OSP is significantly more restrictive than other
Ohio correctional facilities, including those facilities housing
inmates under administrative control. nS The other Ohio
Department of Rehabilitation and C orrection facilities do not
lack outdoor recreation. n6 In contrast to inmates at the
OSP, inmates in administrative control on death row at the
Mansfield Correctional Institution have outdoor recreation,
more access to personal property, more access to telephone
usage, and more access to counsel. (Jason Robb Test. at 153-
54).
n5 Administrative control is highly restrictive
solitary confinement. See Ohio Admin. C ode § 5120-9-
13 (2001). Inmates at various Ohio institutions are
placed in administrative control for, among other
reasons, prison rule infractions. é
n6 The defendants presented evidence that the
Department will seek funds to construct outdoor
recreation spaces at the OSP. If approved by the Office
of Budget and Management, the request will be
submitted to the Ohio General Assembly. Whether the
5Sa
General Assembly approves funding for the outdoor
recreation area in its 2002 capital bud '
known until June 2002. ap udget will not be
Administrative control prisoners at the Lebanon
C orrectional Institution, Orient Correctional Institution, and
Lorain Correctional Institution live in open-faced cells The
Lebanon facility allows administrative contro! inmates access
to basketball courts and work-out areas. At the Southern
Ohio Correctional Facility, administrative control inmates
live in cells with bars, not solid doors, and have outside
recreation available every day. Similarly, the Trumbull
Correctional Facility has outdoor recreation. Most important
to the quality of conditions, Ohio's other facilities all afford
inmates a much greater ability to communicate with other
persons. The vonditions at the OSP do not allow any
amelioration of the prolonged i i
oa aad p ged isolation designed into the
The Department of Rehabilitation and
restricts inmates at the OSP more intensely eae ow
periods they are outside their cells. For example, until very
recently, the defendants required inmates receiving visitors to
be shackled into an uncomfortable “black box” that contorted
their wrists. In addition, inmates having visitors are still
required to be stripped searched when they leave their
cellblock and when they reenter the cellblock. The OSP
subjects inmates to these searches even though the visits are
made through solid windows that d
contact with the visitor. Te eo
The Department also limits con
tact between fellow
OSP inmates. As described above, inmates always eat alone.
They usually exercise alone, although now some inmates
may occasionally exercise with one other inmate. Inmates
S6a
are not permitted to share books, magazines, or other
personal property. With the exception of some recently
introduced group counseling sessions, inmates have almost
no verbal communication with any other individual. n7 The
defendants’ expert, James Austin, described this:
Q: When you were there, did you observe
inmates communicating with one another?
A: No. | observed there was some indications
where they have two inmates who are recreating
together, but I didn’t—I didn’t notice much
communication because the inmates were almost
always being brought out in isolation with no—I
didn’t see any contact with other inmates except
for those situations in the housing units where
they could recreate together. .
(Austin Test. at 1020).
n7 Group counseling sessions are conducted by
placing inmates in adjacent bar-fronted cells so that
each inmate can see the counselor and hear the other
inmates.
The OSP’s limitation upon communication contrasts
with conditions at other correctional facilities, including
administrative control units at Ohio’s other prisons. For
example, inmate James DeJarnette testified that inmates in
administrative control at the Orient Correctional Institution
can easily communicate through their bar doors. Such
communication is next to impossible in the OSP with metal
strips around the edges of the solid metal cell doors.
S7a
Once at the OSP, an inmate faces different levels of
= based on the classification level to which he is
igned. There are three classification levels, and the levels
= assigned to discipline and to reward. After orientation
OSP classifies most inmates at Level II. After
approximately one-or two years without problems, inmates
can progress to Level III with attendant additional privileges
Similarly, the OSP assigns inmates who violate prison rules
to Level 1. Level I is the most restricted confinement
possible and may last for an indefinite period of time. At
Level I, prisoners receive no visitors except for their
attorneys and receive no phone calls apart from calls with
their attorneys or for family emergencies.
At the OSP, inmates are normal!
; y allowed to mak
ten-minute phone call a week. Under the Siena. aoe
policy, effective March |, 2002, inmates will only be allowed
two ten-minute calls a month. Under the same policy
yoy oh the oe. will reduce recreation outside the
seven one-
“eet periods per week to five one-hour
Ai the OSP, inmates do not participate in any prison-
ae “y= One inmate per cellblock is faction re for
ey os me tidy. Except for the rare visitor and one
4 tol recreation, inmates remain in their cells. The
. educational programs beyond the GED level.
nstructional ! _ Programs come to inmates through closed-
circuit television d-- Sebage workbooks. Most mental
health programs ¢ inmates also come through
ae a te television sets inmates are allowed
In conclusion, inmates at the OSP li
oe P live under
significantly different conditions than prisoners at Ohio's
S8a
other correctional facilities, including those prisoners with
maximum security classifications and those prisoners with
maximum security classifications who are currently in
administrative control.
The Court now turns to a discussion of the defendants’
current procedures for selecting which inmates are placed at
the OSP.
C. Selection Procedures and Consequences of
Placement at the Ohio State Penitentiary
The plaintiffs challenge the procedures the Department
of Rehabilitation and Correction uses to select inmates for
placement and retention at the OSP. Regarding placement at
the OSP, the Department first transferred inmates to the OSP
in early May 1998. At the time of this initial transfer, the
Department had no policy in effect identifying which inmates
could suitably be placed at the OSP. Without any transfer
policy in place, the Department simply relied upon wardens
to choose inmates for transfer. Without any set criteria,
similarly situated inmates were often treated differently.
Peter Davis, an Ohio Parole Board member and former
director of the Ohio General Assembly's prison oversight
committee, testified:
The only thing that’s clear is, as I've said
here, for every inmate that was cited to me and
the reasons why that person was sent there, for
this particular act, this assaultive behavior, if
you will, we knew for a fact of plenty other
inmates that were at other institutions, even
close security institutions, that were not
transferred there.
59a
My frustration was tying to understand how
the criteria was being applied, whether or not it
was being applied consistently at all institutions
on referral, whether or not it was being applied
consistently at central office level ji
, eee Mn el in those
Just simply was no way to understand how
one assaultive inmate could get high max
placement and other assaultive inmates could not.
(Davis Test. at 126).
On August 31, 1998, the defendants attempted to
establish some predictability to placement at the OSP by
issuing Department of Rehabilitation and Correction Poli
111-07 (“Policy 111-07"). The defendants issued this policy
after a large number of inmates had already been transferred
to the OSP. The policy described behaviora | criteria that
referral committees at Ohio's prisons should consider before
recommending an inmate to the OSP. The policy was based
on a April 15, 1998, memorandum by Regional Directors
CE NS The current version of Policy
used to transfer inmates to became ,
on January 28, 1999. — ——
The Department's review of an inmate's placement
are placed into administrative control at other Ohio prisons
At other prisons, the administrative control committee can
release an administrative control prisoner without a
classification review. In contrast, release from the OSP
requires an inmate to be reclassified from high maximum
security to maximum security.
60a
An inmate at the OSP is considered for reclassification
only once a year. This reclassification process includes
several levels of review. Initially, an OSP inmate has a
hearing before a three person reclassification committee.
The reclassification committee is composed of an OSP
deputy warden, a designee of the Department's North
Regional Director, and a Department mental health
professional. Under the Department's reclassification
process, the OSP reclassification committee makes an initial
recommendation of whether an inmate should stay at the
OSP or be reclassified and transferred to a maximum security
prison.
After the committee makes its recommendation, the
OSP warden reviews the decision and reaches his own
conclusion. He makes this review without notice to the
inmate of any additional factors not considered by the
reclassification committee. After review and decision by the
OSP warden, the chief of the Bureau of Classification
reviews both the committee’s recommendation and warden’s
decision. Finally, after the chief of the Bureau of
Classification has approved or disapproved of the
committee’s recommendation, the Department’s North
Regional Director makes the final decision. n8
n& The Court discusses below the Department's
adoption of a new classification policy that goes into
effect on March 1, 2002. When the policy becomes
effective, the chief of the Bureau of Classification will
make the final decision about whether an inmate at the
OSP is reclassified.
After reviewing the evidence presented at trial on the
issue, the Court questions how much consideration is given
to the review of each inmate’s reclassification
6la
recommendation. Within the Bureau of Classification, Chief
eye Ryznar reviews all reclassifications involving the
P inmates. In addition to this task, he supervises a staff of
dye reviews each administrative control placement in
; 10's 44,000 inmate population. (Ryznar Test. at 638).
Ithough his co-workers assist him, Chief Ryznar is also
responsible for authorizing each of the thousands of transfers
within the Department of Rehabilitation and Correction each
year. (Ryznar Test. at 618, 638). He personally reviews each
maximum _ Security placement. He also reviews other
piscement issues that are brought to him, and he supervises
placement recommendations of his staff. Finally, he alone
makes at least 400 high maximum security classification
decisions each year. (Ryznar Test. at 638-39).
North Regional Director Stephen J. Huffman has even
more responsibilities than Chief Ryznar that distract him
from time needed to review high maximum security
classifications. The Department’s Regional Directors
essentially manage all aspects of the correctional facilities
within their geographic area. Classification decisions are a
very small part of their responsibilities in running a huge
organization.
Placement and retention at the OSP has immense
consequences for some inmates. As described above, the
OSP conditions are significantly more restrictive than the
pew —y tered eran In addition, initial placement at
OSP denies some inmates the chance to be considered for
parole because of a Department policy. The Department has
a policy, approved by Director Wilkinson, that prevents
inmates in maximum security facilities from being paroled.
Any inmate with a maximum j
classification or any other classification ttl
62a
utilized to denote the most serious security risk
inmates, at the time of release eligibility, shall not
be granted release... Release at any such
projected release date shall be conditioned upon
the inmate receiving a security classification less
than maximum, or any other security
classification title utuized to denote the most
serious security risk inmates.
(Pls.” Ex. 3 at 8). Therefore, no inmate in the OSP’s high
maximum security classification can be paroled.
|. James DeJarnette
Inmate James DeJarnette’s case exemplifies the effect
placement at the OSP has on parole eligibility. Convicted of
armed robbery with a firearm specification, DeJarnette began
serving an indeterminate sentence of three to fifteen years on
April 22, 1993. While housed at the Orient Correctional
Institution on a medium security classification, DeJarnette
assaulted a correctional officer while intoxicated. The Orient
Correctional Institution discipline committee unanimously
agreed DeJarnette should be punished by being placed in
administrative control at his current prison. The discipline
committee also unanimously agreed against increasing his
classification level and transferring him to the OSP. The
Orient Correctional Institution's warden agreed with the
discipline committee.
Despite these recommendations and the disriissal of the
criminal indictment against DeJarnette arising from the
assault, the chief of the Bureau of Classification increased
DeJarnette’s security classification three levels to high
maximum and transferred him to the OSP in October 1998.
DeJarnette was sent to the OSP without notice or explanation
63a
of why the Orient Correctional Institution’s discipli
nstitution’s discipline
committee and warden’s recommendations were Boor a
While at the OSP, DeJarnette ici i
programming and mainly complied with all heen oo The
only exceptions were attempting to share a newspaper with
another inmate and being found with an altered radio because
a screw had come out of the radio cover. After fourteen
months at the OSP, DeJarnette received a classification
a In December 1999, the reclassification committee,
rh of three Department employees pursuant to Policy
/, examined DeJarnette’s security classification. The
committee recommended that he remain at the OSP. Warden
Ishee and the chief of the Bureau ificati
with Gn ene ; of Classification concurred
As the result of DeJarnette’s three-level increase
high maximum security, he was ieeetiedie diana noah
when he appeared before the Ohio Parole Board in August
2000. n9 Parole board guidelines recommend that a first-time
offender like DeJamette receive parole after serving forty-
eight to sixty months. Because of DeJarnette’s high
maximum security classification, he could not be paroled
even though he had served over ninety months. The parole
board’s records explain its thinking:
Inmate serving Ist adult commitment. He is
currently high max security with next screening{,]
next security screening 12/2000. He has served
above the recommended range. However, his
security status _ Prevents a release
recommendation. Time assessed to get inmate to
earliest appointment for reduction to close
[Security] . . . Requiring 19 additional months to
serve until next [hearing] eligibility.” n10
(Pls.” Exp. DeJarnette-9 at 2)
n9 James DeJarnette was denied parole in June
1999 for the same reason.
n10 Under the Department rules, inmates can only
be paroled from a close, medium, or minimum security
level classification. Although DeJarnette met the parole
board’s guideline for release, he also needed to
complete successfully a period, usually twelve months,
at the maximum security classification before being
moved to a close security classification.
After receiving this indication from the parole board
that he would qualify for release if he could move to an
appropriate security level, DeJarnette again appeared before
the OSP reclassification committee in November 2000. This
time the reclassification committee recommended _ that
DeJarnette’s security classification be reduced and he be
removed from the OSP, saying DeJarnette had made a “good
adjustment” and was “not a behavioral problem.” (Pls." Ex.
DeJarnette-11). Despite this recommendation for a reduction
in security level classification, the OSP warden, Chief of the
Bureau of Classification, and the North Regional Director all
decided against reducing DeJarnette’s security classification.
Importantly, the North Regional Director never heard from
DeJarnette before deciding to keep him at the OSP, never
fully explained his reasons behind the decision, and never
told DeJarnette what issues prevented a reduction in his
security level.
DeJarnette’s case is especially troubling because
increases or decreases in an inmate’s security classification
level usually occur one level at a time. Jumping multiple
65a
security levels is the exception and not the rule. (Ryznar
Test. at 628). After the Department reviewed the OSP’s
operation in December 1998, the review team reported:
Some Wardens believe that an inmate must
progress through close security and maximum
security before being considered an appropriate
high maximum placement. Although _ this
requirement is not found in either the original
Memorandum _ regarding high maximum
(Appendix C) or the policy on maximum security
(111-07, Appendix D), there appears to be a
strong perception among institutional personnel
that this procedure must be followed.
(Pls.” Ex. 10 at 4-5).
2. Daryl Heard
Inmate Daryl Heard’s experiences also highlight the
consequences of placement at the OSP. His case further
demonstrates the defendants’ willingness to disregard a
reclassification committee’s recommendation concerning an
peer Bogear level. After conviction in 1982 for
ggravated robbery, aggravated burglary, and ki in
Heard worked his way down yy ~gp aM ec on
classification. In March 2000, the Orient Correctional
Institution Rules Infraction Board brought rule violation
charges against Heard for involvement with a scheme to
bring marijuana into the prison. He was convicted of those
charges and disciplined by being placed into local control for
fifteen days. Additionally, his security classification was
increased from minimal to medium. In June 2000, his case
was submitted for possible high maximum placement.
Because of his attempt to smuggle in marijuana seven
66a
months earlier, the chief of the Bureau of Classification
ultimately recommended his security level be increased three
levels to high maximum. nll In October 2000, Heard was
transferred to the OSP.
nll Under policies governing assignment to the
OSP in effect at the time, it is not clear how the
Department elevated Heard four levels to the high
maximum security classification at the OSP. The
Department's Policy 111-07 controlled placements to
the OSP at that time. That policy states, in part:
VI. Procedures:
A. Assignment Criteria. Inmates will be
recommended for and assigned to high
maximum security when all of the
following factors are present:
1. The inmate is or is about to be classified
as maximum security;
3. The inmate presents the highest level of
threat to the security and order of the
department and its institutions, in the
professional judgme..: of the classifying
official.
(Pls.’ Ex. 1) (emphasis added).
At the time the Department transferred Heard to
the OSP, he was not at a maximum security
classification. After his involvement with the drug
offense, his classification level was only increased one
67a
level to medium security while he was in local control
at the Orient Correctional Institution.
_ When deciding fo increase Heard’s security
classification four levels, the Department noted that
Heard had not been involved in violence in the last
sixty months. He served over three years at the
minimum security classification without any incident
prior to the marijuana involvement.
On December 18, 2001, Heard had a parole
hearing. At the time of the hearing, Heard had served
235 months of incarceration. The parole board
guidelines suggested Heard should be paroled after
serving between 156 and 192 months. (Heard Test. at
289). Heard was denied parole because of his high
maximum security classification. Recognizing the
impact of the Department’s rule against paroling
inmates classified as maximum or high maximum
security, the parole board asked Heard to contact it
prem mod if he obtained a close security
Classification so another hearin
(Heard Test. at 293). re ee
3. Keith Gardner
Inmate Keith Gardner's case gives a further
example of the effect placement at the OSP has on
parole eligibility. Now forty-four years old, Gardiner
has been in prison since age nineteen for a murder
conviction. Having served twenty-five years, he has
served more time than the parole board guidelines
suggest. The Department transferred Gardner to the
OSP in November 1998 after an incident in which
another prisoner was stabbed. The state prosecuted
68a
Gardner for the stabbing. At trial, Gardner argued self-
defense, an affirmative defense to which Gardner had
the burden of proving by a preponderance of the
evidence. See Ohio Rev. Code § 2901.05(C); see also
State v. Barnes, 94 Ohio St. 3d 21, 24, 759 N.E.2d
1240, 1244 (2002). nl2 The jury acquitted Gardner,
finding that he acted in self-defense.
nl2 The Barnes court stated:
To establish self-defense, a
defendant must prove the following
elements: (1) that the defendant was
not at fault in creating the situation
giving rise to the affray; (2) that the
defendant had a bona fide belief that
he was in imminent danger of death
or great bodily harm and that his
only means of escape from such
danger was in the use of such force;
and (3) that the defendant did not
violate any duty to retreat or avoid
the danger.
Barnes, 94 Ohio St. 3d at 24, 759 N.E.2d at 1244.
Despite the acquittal, the Department increased
Gardner’s security classification and transferred him to the
OSP in April 1999. While at the OSP, Gardner had no rule
violations and he participated in numerous programs. In both
2000 and 2001, the reclassification committee reviewed his
security classification and recommended that the Department
reduce Gardner’s security classification. In 2000, Mansfield
Correctional Institute Warden Baker, serving as a member of
the reclassification committee, told Gardner he “shouldn't
69a
even be here.” (Gardner Test. at 387). In addition
on Gardner's 2000 form filled out by the Sehaiiinedtien
committee is the comment: “Placement to OSP questionable.
No recent disciplinary action after A/C release 1/98.” (Pls.’
Ex. Gardner-3). On both occasions, the committee’s
recommendation was rejected, and Gardner was kept at a
high maximum security classification. n13 In rejecting the
committee's recommendation to decrease Gardner’s security
classification, the Department principally based its decision
= the stabbing incident of which he was acquitted years
earlier.
nl3 Interestingly, the warden of the
with the reclassification committee’s peasant 9
to reduce Kevin Gardner’s security c.assification in
2000 but did not agree with the recommendation in
2001. The warden disagreed with the committee’s
recommendation because of Gardner’s “extensive
history of [assaults] and predatory acts.” (Pls.’ Ex.
Gardner-5 at 2). However, this history must also have
existed in 2000 as Gardner had no rules violations
between his 2000 and 2001 reclassification hearings.
(Pls.” Ex. Gardner-5 at 2).
As with Heard and DeJarnette, the ;
decision to retain Gardner at the OSP rendered sen teats
for parole. Gardner has served more than twenty-five years
of his original sentence of life with a possibility of parole
after fifteen years. However, the Department’s rule
forbidding parole release from high maximum security
denied the parole board an opportunity to exercise its
discretion.
70a
D. Review of Inmates Once at the Ohio State
Penitentiary
As demonstrated by these accounts, the Department’s
procedures for reviewing an OSP inmate’s classification do
not provide the prisoner a hearing or even access to the
individual deciding the inmate’s security classification. The
Department’s procedures for initially moving someone to the
OSP also suffer from the same lack of notice and opportunity
for hearing.
For instance, the Department sent more than one
hundred inmates to the OSP before adopting its Policy 111-
07 concerning such transfers. While lacking a formal policy,
the Department transferred inmates under the guidance of the
April 15, 1998, memorandum from Regional Directors Hills
and Dahlberg. The memorandum informs wardens that
inmates will be assigned to high maximum security when:
The inmate is or is about to be classified as
maximum security;
The inmate has demonstrated behavior
which meets high maximum security criteria;
and/or
The inmate presents the highest level of
threat to the security and order of the department,
in the professional judgment of the classifying
official.
(Joint Ex. 19). nl4
ni4 The memorandum lists the following
behavior as criteria for classification to high maximum
security status:
Tila
_ The inmate's conduct or continued
presence at the sending institution poses
a serious threat to the physical safety of
any person, or to the security of the
prison,
The nature of the inmate's criminal
offense indicates that the inmate poses a
serious threat to the physical safety of
any person, or to the security of the
prison,
The need to contain, prevent or
quell a disturbance or riot;
A conspiracy to introduce
contraband which may pose a serious
threat to the security of the prison;
The inmate functions as a leader or
enforcer of a security threat group;
The imate poses a serious threat
or escape; or
_ The immate has demonstrated an
ay eeapnaies Go mgty of
(Joint Ex. 19).
The memorandum’s lack of specificity and guidance
made it almost worthless in describing which inmates should
be assigned to the OSP. In addition, the vast majority of
inmates initially transferred to the OSP in 1998 neither
72a
received advance notice that they were being considered for
transfer nor a hearing to contest their transfer. Only a few
inmates received posttransfer hearit.gs.
In support of their argument that some transfers and
reclassification decisions are so irrational as to violate due
process, the plaintiffs presented strong evidence showing that
many of the Department's decisions to transfer and retain
inmates at the OSP were made with little support. Perhaps
there are no transfers to the OSP with less support than those
of Kevin Roe and Lahray Thompson.
1. Kevin Roe
On January 26, 1989, the Cuyahoga County Court of
Common Pleas sentenced Roe on a rape conviction. During
his twelve years in prison, Roe had only minor rule
violations, principally involving the use of marijuana. He
was not charged with any rule violations in the two years
before his transfer to the OSP.
In January 1999, the Southern Ohio Correctional Facility
dealt with increased tensions caused by a series of assaults
among inmates identified as gang members of either the
Aryan Brotherhood or the Crips. No evidence suggested Roe
was directly involved in any of the incidents.
During this same time, Roe received his annual
classification review. After a hearing on January 20, 1999,
security classification from maximum to high maximum even
though the board’s behavior worksheet indicated he should
be considered for a security level decrease. nl5 The
committee’s justification for its recommendation was that
Roe was a longtime member of a gang and had participated
—
73a
in a racial disturbance over five years ago. (Pls.’ Ex. Roe-2
at 2). Roe was not given notice that these issues would be
used to increase his security classification. Furthermore, the
proof of Roe’s involvement in incidents at the prison, was
sufficient to increase Roe’s classification in January 1999
but that same evidence did not warrant an increase in his
security classification in May 1998, when the OSP first
began accepting prisoners.
niS The committee used a isi
form containing a formula that assists in
for “stability factors.” (Pls.’ Ex. Roe-2 .
; ). These
seen So eeb aah safied wo 0 tit The form
an inmate with an aggregate negative score
should be considered for a supervision decrease. Roe
scored a value of negative one is review
(Pls.” Ex. Roe-2 erie one
Four days after his classification review, another i
oaat : ’ inmate
assaulted Roe by hitting him over the head with a spatula
Roe was standing in a food line. The control unit
with a rule violation for having gotten hit in the head
behind. Furthermore, the Department’ from
Group Coordinator Matthew Meyer ; S Security Theos
Q: Did he [Roe] get in any fights before that?
- — in the head, was he involved
T4a
A: Not that we are aware of, sir.
(Meyer Test. at 1106).
Once Roe left the Southern Ohio Correctional Facility’s
medical area he was transferred to the OSP. He did not
receive notice of his impending transfer or an opportunity to
challenge his upgraded security status. In an attempt to quiet
sentiments at the Southern Ohio Correctional Facility, along
with Roe, the warden sent approximately twenty other
inmates to the OSP. Many of these inmates were transferred
even though they had no current misconduct and the
Department never made out or proved a rule violation
associated with gang membership or other security threat
group. nl6
nl6 Security Threat Group Coordinator Matthew
Meyer testified that his group has identified more than
900 different security threat groups in Ohio’s prisons.
(Meyer Test. at 1080). The groups range from very
small, disorganized neighborhood groups to
sophisticated and organized terrorist groups. (Meyer
Test. at 1080).
At a closed hearing, Security Threat Group Coordinator
Meyer testified regarding the evidence the Department relied
on in its decision to assign Roe to high maximum security.
Coordinator Meyer described violence and gang member
gatherings in 1999 that did not involve Roe. Also,
Coordinator Meyer never talked with Roe, and the evidence
surrounding the 1999 gang disputes. Even considering the
evidence generously, at best it shows that Roe may have had
some past connection to the Aryan Brotherhood. However,
75a
the Department's own rules require evidence of a leadership
position in a security threat group before sending an inmate
to the OSP. The defendants offered no credible evidence that
Roe held a leadership position.
Nonetheless, Roe’s high maximum _ security
classification has continued for more than two years after the
tension at the Southern Ohio Correction Facility has passed.
Roe received a reclassification committee hearing in April
2000. Under the Department's formula, he scored a negative
three on his supervision review form, the best score possible.
The reclassification committee recommended his release
from high maximum security, commenting:
Roe was sent to OSP from general population 2
ie incidents. Was not involved in
in library [word or words redacted] only
involvement. He was hit with a spatula in chow
hall. It appears he was assigned to OSP based on
[word redacted] history in 97. Only 4 tickets
during incarceration. No assaults or violence.
(Pis.” Ex. Roe-6).
The warden approved the committee's recommendation
but Chief Ryznar denied it, stating that the “{inmate’s
security threat group] activity directly led to assaults. fights
pi [Southern Ohio Correctional Facility].”
In February 2001, Roe received another reclassification
commuttee hearing. Once again, Roe scored a negative three
security classification. The warden agreed. However, once
76a
again, Chief Ryznar disagreed with the recommendation to
reduce Roe’s security classification, stating “recommend
continue high max. Involved in conduct that resulted in
disturbance at SOCF.” (Pls.’ Ex. Roe-10).
The Court is-perplexed by Chief Ryznar’s decision
keep Roe at the OSP. The Court is even more troubled by
Roe’s lack of notice and opportunity to contest the reasons
for which he was transferred. Although nothing presented in
the trial’s closed session appeared confidential, the Court
does not more fully describe the testimony out of an
abundance of caution. It is sufficient to say that the Cour’
has reviewed all of the Department’s records on Roe and
finds nothing to support Chief Ryznar’s assertion he was
involved in the 1999 incidents at the Southern Ohio
Correctional Facility. The evidence of Roe posing an
ongoing threat is exceedingly weak.
Roe’s behavior and threat do not even meet the
standards of the defendants’ own classification expert, James
Austin. At trial, Austin describes these standards with regard
to gang affiliation:
Q: Could you give us examples of the type of
thing [conduct that warrants long-term
placement at OSP] you are thinking of?
A: Inciting a riot, killing an officer, killing an
inmate; you know, a history, a history of assaults
on staff or inmates even though death may not
occur, but every time this inmate comes out, a
member of a Security Threat Group who is
clearly the organizer of this group, and whenever
this person is released a lot of bad things start
happening wherever he or she may be.
77a
Q: Not someone who is just identified as a
leader, but there’s got to be clearly some
concrete evidence that this person in a particular
prison leads to riots or leads to something bad
happening?
A: Yeah, that type of person.
(Austin Test. at 1045). Nonetheless, Chief Ryznar decided to
keep Roe at Ohio's most secure, and most expensive, n17
shag erties ted Gram nie
ring or informing him of the evidence leadi i
retention at the OSP. Ss ia
nl7 The annual cost inmate
$49,007.44, while the pan ng cost += hy dm bape
maximum security Southern Ohio Correctional Facility
is $34,167.24. See Ohio Dep't of Rehab. & Corr., Ohio
State : Penitentiary, at http://www.drc.state.oh.
us/public/osp.htm (last modified Feb. 5, 2002); Ohio
ne “g noo ~ Corr., Southern Ohio Correctional
(last modified Feb. 5, 2002). peer cca
violations against Thompson to the Rule Infraction Board
: f
a hearing. The Department's confidential security ere
78a
group file on Thompson makes no mention of what role, if
any, Thompson played in the fight.
Nonetheless, Thompson was transferred to the OSP. In
transferring Thompson to OSP, the Department never clearly
defined Thompson’s role in the incident but determined that
he was affiliated with a gang. (Pls.’ Ex. Thompson-2 at 3).
Thompson was not given notice that he might be classified to
high maximum or an opportunity to defend against the gang
affiliation charge before his transfer. n18
nl& Further demonstrating the uncertainty
regarding the evidence against Thompson, at a
reclassification hearing held at the OSP in February
2000, the committee commented:
Ticket does not specify who he
was fighting. Very generic. Inmate
does not have any gang related
tickets or any fighting or assault
tickets in his record. It appears he
has been mixed up with inmate
Capone 293-878 who is ID'd as
Crip leader.
(Pls.” Ex. Thompson-4).
Justifying the process used to send Thompson to the
OSP, the defendants first say that Thompson indicated
affiliation with the Crips while in his early teens living in
California. Second, the defendants presented evidence
Thompson once had a tattoo often associated with the Crips.
Third, the defendants offered evidence that Thompson once
wrote a letter using the letter “b” in a fashion sometimes used
by Crips members to disrespect rival gangs. Finally, the
79a
defendants produced a summ i
7 ary report that said Tho
was present at the time of the January 1999 fight. scans
did not further describe his role, if any, in the incident.
The defendants have not shown the C
Thompson was involved in gang related Re Magical ra
uncertain evidence that he may have been involved in the
January 1999 fight. Even if Thompson had participated in
the January 1999 fight, under the Department’s own
guidelines, his placement to the OSP appears unjustified
The edition of Policy 111-07 relevant to Thompson’s transfer
says that an inmate can be recommended for placement at the
OSP if his behavior shows he “functions as a leader or
enforcer of a security threat group.” (Pls.’ Ex. 1). Chase
Riveland, one of the defendants’ experts, supports this
saieueeee his opinion that mere gang membership does
Justify placement in an over icti i i
OSP. (Riveland Test. at 924-26). en
Despite the minimal evidence used
i to support
Thompson s placement to the OSP, the defendants am
continued to keep him at a high maximum security
classification. Thompson has not had a rule infraction
citation while at the OSP. In both 2000 and 2001, the OSP’s
reclassification committee recommended reducing
pe Mecong classification. However, on both
ions, was ultimat ificati
0 imately denied a classification
nl9 Interestingly enough, in 2000, the OSP’
; , P’s
warden agreed with the reclassification committee’s
recommendation to reduce Thompson’s security
classification, but in 2001, the OSP’s warden disagreed
with the same recommendation even though nothing
80a
about Thompson's situation had changed. (Pls.’ Exs. 3-
6).
The treatment of Thompson and Roe reflects a
troublesome trend where the defendants deny reclassification
based upon gang activity without giving the inmates notice
and an opportunity to respond. Equally troublesome,
reclassification is denied based on exceedingly weak
evidence and alleged activity years in the past. In
Thompson’s case, he has been held in near solitary
confinement for more than three years based on nothing more
than the way he writes the letter “b,” the fact that in 1999 he
was with a group involved in a dispute, and his association
with Crip members more than fifteen years ago while
growing up in southern California.
Warden Ishee better described what the rule should be:
Q: [These particular words] require the Security
Threat Group coordinator to determine that a
particular prisoner is an active member of a
Security Threat Group or a Security Threat
Group behavior.
And just as a matter of clarification, do you
understand the word “active” to mean current
member of a Security Threat Group or currently
engaging in Security Threat Group behavior?
A: | think currently within a reasonable time
frame. You know, if we, if we use the word
“Current” exactly, that would have had to have
been an action that just occurred or occurred
within the last few days.
8la
Q: Well, what would seem to you a reasonable
time frame?
A: Within the—the period of review that applies
to this instrument.
Q: That is, within the past year?
A: Generally, yes.
(Ishee Test. at 586-87).
Challenging the process afforded to inmates transferred
to the OSP, the plaintiffs say the absence of process results in
the OSP using a large amount of its expensive and restrictive
capacity to house inmates involved with using or bringing
drugs into a correctional facility. Currently, the OSP houses
more than fifty inmates whose only rule violations are their
involvement with drugs while in an Ohio prison.
In an unusually large percentage of cases, Chief |
overrules the OSP _ reclassification po
recommendations. Over a one-year period, the
reclassification committee held 369 hearings on inmates at
the OSP. Of those 369 hearings, the reclassification
committee recommended reducing 157 inmates’ (43%)
security classifications. (Defs.’ Ex. O at 9). But ultimately
the Regional Director only recommended seventy-one
inmates (19%) for a security reduction. (Defs.’ Ex. O at 9)
In contrast, Riveland, the defendants’ expert and former head
of the State of Washington’s prison system, testified that he
did not often overturn a committee recommendation
concerning a high maximum security classification. n20
82a
n20 Riveland testified:
Q: Can you comment on the frequency with
which you overturned the committee?
A: The frequency of overturning the
committee recommendation was not
common, but it did occur.
(Riveland Test. at 934).
In defending his reviews, North Regional Director
Huffman simply says that he is more conservative and might
have security threat group information not available to the
reclassification committee. (Huffman Test. at 1141). The
Court was not overly persuaded by this testimony as the
security threat group information involved in the cases of
Roe and Thompson hardly shows an ongoing threat even if
one were to stretch and find a gang association in the first
place. While the Court agrees that reviewing individuals
should be conservative, the issue here is not about releasing
these inmates from prison. The inmates would simply be
classified as maximum security, a level at which they remain
subject to severe restrictions.
Against this factual backdrop, the Court now turns to a
discussion of the law controlling its determination of the
plaintiffs’ procedural due process rights. In this discussion,
the Court considers new policies that the defendants plan for
the future. As discussed below, the Department's new rules
improve upon its current procedures but still do not provide
the plaintiffs with adequate due process.
83a
II. Discussion of Procedural Due Process
Criminal incarceration does not end all constituti
protections. See Wolff v. McDonnell, 418 U.S. $38, reign
L. Ed. 2d 935, 94 S. Ct. 2963 (1974): see also Estelle v.
Gamble, 429 U.S. 97, 103-04, 50 L. Ed. 2d 251.97. Ct
285 (1976) (right to be free from cruel ond meal
punishment); Cruz v. Beto, 405 U.S. 319, 321-23. 31 L. Ed
2d 263, 92 S. Ct. 1079 (1972) (right to freedom of religion):
Johnson v. Avery, 393 U.S. 483, 485, 21 L. Ed. 2d 718. 89
Ct. 747 (1969) (right of access to the courts). Baus
Although prisoners do not lose all constituti
they are subject to additional restrictions sag 0 aoe
See Turner v. Safley, 482 U.S. 78, 95-97, 96 L. Ed. 2d 64,
107 S. Ct. 2254 (1987) (holding that the fundamental right to
marriage 1s subject to limitations as a result of incarceration);
Pell v. Procunier, 417 U.S. 817, 827-28, 41 L. Ed. 2d 495, 94
S. Ct. 2800 (1974) (restricting inmates’ first amendment ri ht
to access to news media). Generally, prisoners retain a
rights compatible with the objectives of incarceration. See
Hudson v. Palmer, 468 U.S. 517, 523, 82 L. Ed. 2d 393, 104
~ Ct. 3194 (1984); Vitek v. Jones, 445 U.S. 480, 493, 63 L
Ed 2d 552, 100 S. Ct. 1254 (1980) (noting that incarceration
eprives inmate of right to freedom from confinement).
Despite prisoners’ retention of certain constituti
= federal courts have been hesitant to nacho ae the
yo inistration of prisons. See Sandin v. Conner, 515 U.S.
panto 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995) (noting
t federal courts ought to afford appropriate deference and
flexibility to state officials trying to manage a volatile
environment”); Turner, 482 U.S. at 85 (stating that the
ne ste of powers doctrine Should caution judicial
ervention in prison administration because it is an area
84a
traditionally governed by the state legislative and executive
branches); Rhodes v. Chapman, 452 U.S. 337, 352, 69 L. Ed.
2d 59, 101 S. Ct. 2392 (1981) (stating that courts should
exercise judicial discretion rather than assume prison
administrators are insensitive to- prisoners’ constitutional
rights).
In this case, the plaintiffs say that the defendants
violated their right to procedural due process. The Fourteenth
Amendment to the U.S. Constitution provides that no state
shall “deprive any person of life, liberty or property, without
due process of law.” U.S. Const. amend. XIV, § 1. As the
plaintiffs were not deprived of life or property, they are only
entitled to due process if they were deprived of “liberty”
within the meaning of the Fourteenth Amendment. ,
The consideration of a due process claim goes through
two steps. First, the Court asks whether a liberty or property
interest exists with which the state has interfered. See Ky.
Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 104 L. Ed.
2d 506, 109 S. Ct. 1904 (1989); Pusey v. City of Youngstown,
11 F.3d 652, 656 (6th Cir. 1993). Second, the Court
determines whether the procedures attendant upon that
deprivation were constitutionally sufficient. See Thompson,
490 U.S. at 460; Pusey, 11 F.3d at 656.
More specifically, the plaintiffs must plead and prove
that state remedies for redressing the alleged violation are
inadequate. See Hahn v. Star Bank, 190 F.3d 708, 716 (6th
Cir. 1999) (citing Vicory v. Walton, 721 F.2d 1062, 1066 (6th
Cir. 1983)). The Sixth Circuit has elaborated on this
requirement:
In other words, a party may maintain a
procedural due process § 1983 case in federal
85a
court if he alleges and proves that there was a
constitutional violation under color of law and:
(1) The state did not have a remedy; or (2) the
state had a remedy but it was deemed
inadequate, or (3) the state had an adequate
remedy in form, both procedurally and in
damages, but the state did not apply it or
misapplied its remedy.
Id. With these elements in mind, the Court no
plaintiffs’ due process claim. 1 patina
A. The Plaintiffs’ Protected Liberty Interest
To succeed on their procedural due i
process claim under
42 U.S.C § 1983, the plaintiffs must first demonstrate they
eee ee interest and were deprived of
terest without due process. See Thompson, 490 U.S. at
460; Pusey, 11 F.3d at 656. n21 P :
: n21 The defendants first that argue the plaintiffs’
claims are barred by Heck v. Humphrey, 512 US. 477
129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), and
Edwards v. Balisok, 520 U.S. 641, 137 L. Ed. 2d 906
117 S. Ct. 1584 (1997). In Heck, the Court ruled that a
damage claim implicating the validity of a conviction
or sentence is not valid under § 1983 until the
conviction or sentence has been overturned. See Heck
$12 U.S. at 486-47. In Edwards, in the context of a
prison disciplinary proceeding leading to segregated
confinement, the Court held that “the respondent's
claim for declaratory relief and money damages, based
on allegations . * that necessarily imply the invalidity
of the punishment imposed, is not cognizable under
§ 1983.” Edwards, 520 U.S. at 648. The defendants
86a
say that the plaintiffs’ substantive and procedural due
process claims call into question the validity of the
administrative determinations affecting their continued
confinement and should be barred.
The defendants’ argument does not persuade. The
plaintiffs are not seeking money damages or judicial
invalidation of their initial transfers to the OSP. The
plaintiffs seek prospective injunctive relief for adequate
due process in the Department’s transfer and retention
decisions concerning the OSP. In fact, Edwards
specifically states that seeking prospective injunctive
relief under § 1983 is proper. See id. The Court does
find that little or no evidence supports some of the
Department’s transfer and _ retention decisions.
However, those findings are only used to support the
plaintiffs’ claim they should receive adequate process
in the Department's future decisions, not to invalidate
the Department’s past decisions.
In Sandin, the Court revisited its earlier decision in
Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct.
864 (1983). In Hewitt, the Court found that an inmate
confined to administrative segregation did not have a liberty
interest “independently protected by the Due Process Clause”
because “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.” Hewitt, 459 U.S. at 468. Nevertheless, the Court
went on to hold that because Pennsylvania state law had
established “specific substantive predicates” that must exist
before restrictive confinement could be imposed, the inmate
had a protected liberty interest in avoiding such confinement.
Id. at 471-72.
87a
Sandin rejected much of Hewitt’s reasoning.
Specifically, the Court rejected Hewitt’s conclusion that a
court had to ask whether “the State had gone beyond issuing
mere procedural guidelines and had used ‘language of an
unmistakably mandatory character’ such that the incursion on
liberty would not occur ‘absent specified substantive
predicates. ““Sandin, 515 U.S. at 480 (quoting Hewitt, 459
U.S. at 471-72). The Court found Hewitt had created
disincentives for states to codify their prison management
procedures and led to the involvement of federal courts in the
day-to-day management of prisons. See 515 U.S. at 482.
In order to correct these unwanted side effects, the
Court held that [HN8] liberty interests in the prisoner context
“will be generally limited to freedom from restraint
which ... imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
515 U.S. at 484. Although Sandin rejected Hewitt's
methodology, the Court continued to “recognize that States
may under certain circumstances create liberty interests
which are protected by the Due Process Clause.” 515 U.S. at
483-84. In deciding whether the state had created a liberty
interest, the Sandin Court emphasized that “the real concerns
undergirding the liberty protected by the Due Process
Clause,” 515 U.S. at 483, were whether the state deprived the
prisoner of “an interest of ‘real substance,"” 515 U.S. at 480
(quoting Wolff, 418 U.S. at 557). Sandin “shifted the focus
of the liberty interest inquiry” a way from “the language of a
particular regulation” and back to “the nature of the
deprivation.” 515 U.S. at 481.
Therefore, the Court must determine whether the nature
of confinement at the OSP is an “atypical and significant
hardship” giving rise to a protected liberty interest. This
inquiry raises “many complex and fact-specific issues.”
88a
Brown v. Plaut, 327 U.S. App. DC. 313, 131 F.3d 163, 170
(D.C. Cir. 1997).
In deciding whether placement at the OSP is —
n22 the Court must first choose an = pry 2
The plaintiffs argue the conditions at the OS are ye
ak compared to prisoners in administrative control. | :
the other hand, the defendants argue that the oe =
comparison 1s with the conditions at the OSP yt =
often transfers “high security risk” inmates = a
conditions of which are more restrictive ‘than eh
isons. Subjecting inmates to those conditions, which ote
‘ifferent from those ordinarily experienced by other +“ ar J
situated inmates in OSP is not ‘atypical. Oe. ina
Argument Br. at 12).
“atypical
n22 Rather than repeat the phrasing an “
and a substantial hardship,” the Court uses the a.
“atypical” as shorthand for both considerations
specifically noted.
The Court rejects the defendants’ suggested
omparison. In Sandin, the Court said no claim could ne
re the conditions of confinement were within oe :
that could reasonably be expected as a normal inc cag
i eration. See Sandin, 515 U.S. at 484. However, t
rc did not suggest that the existence of a condition
perc a8 within a state’s prison system automatically
made such a condition normal.
The courts of appeals have used varied — —_
The Fourth and Ninth Circuit use the “ys = ;
lation as the comparative baseline. See — =
Smith, 120 F.3d 500, §04 (4th Cir. 1997); —_— = ‘<r i
F.3d 1083, 1089 (9th Cir. 1996). In contrast, t
89a
Third Circuits use the typical conditions of administrative
segregation when deciding whether conditions are atypical.
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
baseline as the conditions of nondisciplinary segregation in
the state’s most restrictive prison. See Wagner v. Hanks, 128
F.3d 1173, 1175 (7th Cir. 1997). 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 (Sth Cir. 1997). The remaining circuits
have applied Sandin’s “atypical and significant hardship” test
without characterizing the comparative baseline. See Bass v.
Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999); Perkins v.
Kan. Dep't of Corr., 165 F.3d 803, 809 (10th Cir. 1999);
Kennedy v. Blankenship, 100 F.3d 640, 642 (8th Cir. 1996);
Dominique v. Weld, 73 F.3d 1156, 1160 (1st Cir. 1996). The
Sixth Circuit has not clearly described the appropriate
comparison that the Court should use. See Mackey v. Dyke,
111 F.3d 460, 463 (6th Cir. 1997).
The Court finds that the better approach is to compare
the range of prison conditions experienced by the plaintiffs
against the complete range of conditions experienced by a
broad range of similarly situated inmates. Placement in
- administrative control for limited periods of time is not an
atypical change that imposes a significant hardship. But to
determine whether the plaintiffs’ placement at the OSP is
atypical in relation to ordinary prison life, the Court must
consider the duration and extent of the deprivation because
“especially harsh conditions endured for a brief interval and
somewhat harsh conditions endured for a prolonged interval
might both be atypical.” Sealey v. Giltner, 197 F.3d 578, 586
(2d Cir. 1999).
90a
When viewed against this standard, the Court finds that
the conditions at OSP are atypical and impose a significant
hardship. In reviewing this issue, the Court begins with the
time an inmate is held at the OSP. The vast majority of
inmates placed at the OSP will remain for a minimum of two
years, with only an annual review of their status. To date,
two hundred OSP prisoners have been there for more than
three years.
This lengthy stay is a function of the current OSP
procedures. Upon arrival at the OSP, inmates complete a
month long orientation program and are then assigned to
Level Il. At the inmate’s reclassification hearing, conducted
approximately a year after arrival, the inmate may progress
from Level II to Level Ill. Only once an inmate is at Level
lll may he be reclassified to the less severe maximum
security status. Because reclassification hearings are only
held annually, even inmates with exemplary behavior rarely
progress through OSP in less than two years.
In contrast, inmates in administrative control or
disciplinary control at other Ohio institutions, including the
maximum security Southern Ohio Correctional Facility, are
reviewed every thirty days. Terry Collins, the Department's
deputy director of institutions, testified that:
The most you can do in a disciplinary control
cell at one time is 30 days. Typically the
arrangements there are anywhere from one to 15
days. You could be placed there--if there's a
spree of offenses that you go before the Rules
Infraction Board on, you could be placed there
for 30 days. Typically that stay is one to 15
days.
9la
(Collins Test. at 1176-77).
He also testified that high maximum security
incarceration at the OSP is qualitatively different than any
other placement in the Department's prisons:
Q: And those categories of incarceration, Mr.
Collins, those will all be philosophically
institutionally distinct from high max status,
won't they?
A: There—yes, most definitely different than
high max facility.
Q: High max will be intended for a different sort
of inmate?
A: Yes.
Q: Will have a different sort of restrictive
environment?
A: Yes.
(Collins Test. 1175-76). n23
n23 Terry Collins testified that disciplinary
control inmates, unlike OSP inmates, do not even have
limited television privileges and programming.
(Collins Test. at 1176).
. Even with good behavior, inmates at the OSP serve
indefinite terms at the institution. With the exception of the
end of their sentences, there is no other indication of how
long an individual inmate will be kept at the OSP.
92a
In addition to inmates’ indefinite retention at the OSP,
the Department treats inmates at the OSP qualitatively
differently than it treats inmates at other Ohio prisons. With
regard to isolation, death row inmates have access to true
outdoor recreation and have direct access to attorneys. Most
significantly, death row prisoners can interact with other
inmates during recreation or by conversations in their cells.
In contrast, inmates at the OSP have extremely limited
contact with other individuals. The inmates remain alone in
their solid-door cells for twenty-three hours a day. Metal
strips along the cell doors do not allow conversation with
adjacent inmates. Only a small, inoperable window allows
the inmate to view the outside his cell. A correctional officer
only opens the small “cuff-port” in the cell door tu affix
handcuffs or to drop off food. An OSP prisoner only goes
outside the building in the rare case of a necessary medical
procedure or a court appearance.
Without contradiction, inmate Jason Robb testified that
he had not been outside the walls of the OSP for four years:
Q: I see. When is the last time you were outside
the building at OSP?
A: Today was the first time in about four years.
Q: Since the day that you came?
A: Yeah, since the day that | arrived in May of
‘98, I’ve never been outside of the institution
except for today.
(Robb Test. at 197).
93a
Inmates at the OSP also are never allowed outdoor
recreation. Their closest contact to the outdoors is exercise
in a completely enclosed room with a grated opening
approximately six inches wide and four feet long. The Court
finds it hard to believe anyone would seriously suggest such
a space constitutes “outdoor” recreation. The lack of outdoor
recreation is important to the Court as denial of outdoor
recreation can impair a liberty interest:
Furthermore, deprivation of yard time imposes
enough of a hardship to qualify as a
constitutionally protected liberty interest. As
noted previously, although the plaintiffs were
deprived of only two hours of yard time per
week, the marginal value of those two hours to a
person in Close Management is substantial.
Such a deprivation is therefore atypical and
significant even in solitary confinement.
Bass, 170 F.3d at 1318.
In those instances when the OSP inmates are allowed
out of their cells, they are escorted by two or three officers.
In contrast, inmates on death row walk without a hands-on
escort. At the OSP, when inmates leave their cellblock, they
are strip-searched, shackled, and placed in full restraints,
which include an uncomfortable rigid “black box” enclosing
their hands. Inmates at the OSP are strip-searched before and
after meeting visitors even though physical contact with
visitors, who are behind solid glass, is impossible. In all,
other correctional facilities have significantly less intrusive
conditions than the OSP.
In addition, confinement at the OSP affects the duration
of some inmates’ incarceration. The plaintiffs do not argue
94a
that this impact on parole eligibility creates a liberty interest.
Instead, they only argue that it is one factor, among many,
showing that placement and retention at the OSP imposes an
atypical and significant hardship. The Court agrees.
In Hewitt, the Court observed that “administrative
segregation may not be used as a pretext for indefinite
confinement of an inmate” and hence, the need to maintain
the inmate in restricted housing must be subject to
meaningful “periodic review” by prison officials. Hewitt,
459 US. at 477 n.9: see also U.S. v. Johnson, 223 F.3d 665,
673 (7th Cir. 2000).
Similarly, in Mackey v. Dyke, 29 F.3d 1086 (6th Cir.
1994), a pre-Sandin decision, the Sixth Circuit stated that
(“there is little difference between depriving a person of
liberty without due process of law, on the one hand, and
failing to restore someone’s liberty after any legal
justification for its deprivation has been eliminated, on the
other hand.” Mackey, 29 F.3d at 1090-91 (quoting Childs v.
Pellegrin, 822 F.2d 1382, 1388 (6th Cir. 1987); see also
Butts v. Dutton, 878 F.2d 1436, 1989 WL 73653, at *4 (6th
Cir. 1989) (stating that Hewitt “clearly established” that a
prisoner has a due process right not to be confined in
administrative segregation as a pretext for indefinite
confinement); Riley v. Johnson, 528 F. Supp. 333, 340 (E.D.
Mich. 1981).
The Department’s formal policy stops consideration of
parole for prisoners in the high maximum or maximum
security classifications. (Pls.” Ex. 3 at 8). To receive parole,
an OSP inmate must first be reclassified to maximum
security. Once he spends approximately a year at maximum
security he may be reclassified to close security and be
eligible for parole.
95a
| _The plaintiffs show convincing evidence of the
significant consequences of this rule. Inmates DeJarnette and
Heard were both at lower security classifications before
being found guilty of misconduct. In both cases, the roles
infraction board recommended that they not be sent to the
OSP. Their wardens agreed. However, without offering
DeJarnette any chance to appear or respond to the issues
considered in denying the rule infractio:, board’s
recommendation, Chief Ryznar increased DeJarnette’s
security classification three levels from medium to high
maximum.
. Similarly, Heard was classified at minimum security
facility before involving himself in a conspiracy to import
marijuana. After a hearing, the Orient Correctional
Institution Rules Infraction Committee recommended a one-
level increase to a medium security classification in
conjunction with local control punishment. Without a
hearing, the Chief Ryznar disregarded the committee’s
recommendation and increased Heard’s security
classification four levels to high maximum.
. Once in the OSP, DeJarnette and Heard were both
denied reductions in their security classification even though
they had no s gnificant rule violations. Both inmates were
denied reductions even though the OSP’s reclassification
committee recommended reductions after their
reclassification hearings. Chief Ryznar’s denial of
reclassification has meant years of additional incarceration
for DeJarnette and Heard. n24
n24 Discussed below, Chief Ryznar often denies
an inmate’s reclassification against the recommendation
of the committee with minimal explanation. Such
96a
cursory treatment does not give the inmate any
opportunity to challenge the basis for Chief Ryznar’s
decision or to know what he must do to win a reduction
in classification. The defendants’ expert on
classification, James Austin, testified this is not
appropriate: “I mean, you have to give reasonable
explanation as to why the person is being kept there.”
(Austin Test. at 1034).
After considering the total context of confinement at
the OSP, the Court finds conditions at the facility impose an
atypical and significant hardship. First, the combination of
conditions that the OSP inmates face, such as their isolation,
the way they are controlled, and their inability to go outside,
even for recreation, differs significantly from conditions in
other Ohio prisons. Second, the length of confinement under
these conditions makes confinement at the OSP atypical.
Many inmates have continued in this extremely restrictive
environment for four years without explanation.
Therefore, because the conditions at the OSP impose an
atypical and significant hardship, the Court holds the inmates
have a liberty interest.
B. Minimal Due Process Requirements
Having determined that the plaintiffs have a liberty
interest; the Court now turns to a discussion of what process
the plaintiffs were due before the defendants sent them to the
OSP.
The Supreme Court’s decisions in Wolff and Hewitt
describe the procedural safeguards afforded to prisoners who
have demonstrated protected liberty interests. In Wolff, a
prisoner alleged the procedures surrounding the disciplinary
97a
proceedings used to revoke his good time credits vi
due process rights. In fashioning the ea aia ata
protect the prisoner's due process rights, the Court
introduced a balancing test weighing “institutional needs and
objectives” against “the provisions of the Constitution that
are of general application.” Wolff, 418 U.S. at 556. The
Court found that certain procedures were necessary if the
“minimum requirements of procedural d
be satisfied.” /d. at 563. P ue process [were] to
| Under Wolff, a prisoner must receive “ i
notice of the claimed violation and a written re chem
factfinders as to the evidence relied upon and the reasons for
the disciplinary action taken.” /d. Regarding the timing of
the notice, Wolff held that “a brief period of time after the
notice, no less than 24 hours, should be allowed to the inmate
to Prepare for the appearance before the Adjustment
Committee.” /d. at 564. The inmate must be allowed to
appear at the hearing and be allowed adequate time to
prepare a defense. See id. The inmate should also be
allowed to call witnesses and present documentary evidence
as long as “permitting him to do so will not be unduly
hazardous to institutional safety or correctional goals.” /d. at
566. However, the ability to present a defense does not
extend to the right to cross-examination or confrontation.
See id. at 567-68. Nor is the inmate enti
. titled t
counsel. See id. at 569-70. ihe en aie
In Wolff, the Court also found that due process required
the disciplinary body give some ;
ultimately taken: g explanation for the action
We also hold that there ‘must be a “written
Statement by the factfinders as to the evidence
relied on and reasons” for the disciplinary action.
98a
Although Nebraska does not seem to provide
administrative review of the action taken by the
Adjustment Committee, the actions taken at such
proceedings may involve review by other bodies.
They might furnish the basis of a decision by the
Director of Corrections to transfer an inmate to
another institution because he is considered “to
be incorrigible by reason of frequent intentional
In contrast, Hewitt considered the amount of pr
due 4 prisoner when prison officials transferred ope
restrictive confinement for the “administrative,” rather than
the disciplinary, reason of investigating his role in a prison
riot. Reviewing whether he was afforded due process in this
administrative segregation, the Court gave prison authorities
breaches of discipline,” and they are certainly
likely to be considered by the state parole
authorities in making parole decisions. Written
records of proceedings will thus protect the
inmate against collateral consequences based on
a misunderstanding of the nature of the original
proceeding. Further, as to the disciplinary action
itself, the provision for a written record helps to
insure that administrators, faced with possible
scrutiny by state officials and the public, and
perhaps even the courts, where fundamental
constitutional rights may have been abridged,
will act fairly. Without written records, the
inmate will be at a severe disadvantage in
propounding his own cause to or defending
himself from others.
Id. at 564-65 (internal citations omitted).
Furthermore, Wolff held that such procedural
requirements were not limited to disciplinary proceedings
dealing with time credits, but extended to disciplinary
proceedings for segregation as well. See id. at 571 n.19. The
Court held that “although the complaint put at issue the
procedures employed with respect to the deprivation of good
time,... the same procedures are employed where
disciplinary confinement is imposed.” /d.
greater deference:
We think an informal, nonadversary evidentiary
review 1s sufficient both for the decision that an
inmate represents a security threat and the
decision to confine an inmate to administrative
segregation pending completion of an
investigation into misconduct charges against
him. An inmate must merely receive some
notice of the charges against him and an
opportunity to present his views to the priso
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