Opposition Brief — Neal v. District of Columbia

| FILED

No. 97-1816 JUL 50 1998

OFFICE OF THE CLER

‘ REM UL NK

. RY PREM COtHy —

Supreme Court of the Unitco-Gorave we vs

=. % 844 4 NO VULEL I ean ‘Seesaw — ae) | >

>

i S

»? ;

4

J?

; Pp, fv Ce) »? ;

i? ray 14

BRIEF IN OPPOSITION

Bl, Corporatio} (id

{ I)y\ \ig))

if YT

Vi : VA il SON

{ Corporation ¢

y 2 j

Cou OF NECOTd

Othce ot the Corporation Co

(one Giclary Square

44] 4th Street, N.W

Was ton. D.C. 20001-27

oo

TABLE OF CONTENTS

Page

Pee I ff 5 oe ee Se ee oc l

pete 8 gb Sk | ere a ec l

SaPbk eee Se Be GE bf vv kk KR hae 2

i eR or ose ee ee 2

a; Mo eed keane ee ee 3

Ge, RE RERRERS secre ane emote Sree onan 4

Ek: Pee Se Cs oe ee a he ek 6

REASONS FOR DENYING THE WRIT ......... 7

I. THE FACTS PRESENTED IN THIS CASE

Do NOT JUSTIFY REVIEW OF THE

UNDERLYING LEGAL ISSUE. ......... 8

II. BECAUSE OF THE UNIQUE CIRCUM-

STANCES OF DISTRICT OF COLUMBIA

PRISONERS, A DECISION BY THIS

COURT HERE WOULD NOT NECES-

SARILY RESOLVE THE LEGAL ISSUE IN

CFURUER FOCI. | kc cabs 13

TABLE OF AUTHORITIES

CASES

Abdullah v. Roach, 668 A.2d 801

ee SN a er ee SK eee ~~ 2

Bagguley v. Bush, 953 F.2d 660

(D.C.Cir. 1991), cert. denied

ee es PE SS nc Ne ee 14

Barden v. Keohane, 921 F.2d 476

mo

C56 CO See so ow etek ee 6, is

Brooks v. DiFasi, 112 F.3d 46

(5G. Wee 6 chee wes ee eee 10

Brown v. Plaut, 131 F.3d 163

(D.C.Cir. 1997), cert. denied,

66 U.S.L.W. 3799 (June 22, 1998) ..... passim

Carey v. Piphus, 435 U.S. 247 (1978) .......... 12

Clarke v. Stadler, 121 F.3d 222, 226

(Sth Cir. 1997), rehearing en banc

grumted, 155 F326 Dee GHePeD ob one owe 15

Crosby-Bey v. District of Columbia,

Fam Fae tie GACAR SOG kn ec eke nes 3

Curry-Bey v. Jackson, 422 F.Supp. 926

Gaines SOME a0 6s Brake beeen eeaS 6

Edwards v. Balisok, 520 U.S. 641 (1997) ........ 15

Griffin v. Vaughn, 112 F.3d 703

Ce Ge: eee sc 6 2 os ee ee ee 9

Heck v. Humphrey, 512 U.S. 477 (1994) .-..... 15

Hewitt v. Helms, 459 U.S. 460

COE 6-6 «es was wee eee 8, 10

Hudson v. Hardy, 424 F.2d 854

NG SE 6.5 ee a ke Oe ee 15

Keenan v. Hall, 83 F.3d 1083

ee Se Se cs oS oe ewe ee 9

Luken v. Scott, 71 F.3d 192

(Sth Cir. 1995), cert. denied,

Sa? Ca See Ce 8S tien ee ees 10

Mackey v. Dyke, 111 F.3d 460 (6th Cir.),

cert. denied, 66 U.S.L.W. 3257

FE oa 6 a oe ee oe we 10

Meachum v. Fano, 427 U.S. 215 (1976) ......... 10

Montanye v. Haymes, 427 U.S. 236 (1976) ....... 11

Olim v. Wakinekona, 461 U.S. 238 (1983) ........ 11

Preiser v. Rodriguez, 411 U.S. 475 (1973) ....... 15

Sandin v. Conner, 515 U.S. 472 (1995) ....... passim

Stone-Bey v. Barnes, 120 F.3d 718 (7th Cir. 1997) .. 15

- iii -

United States v. Taylor, 485 F.2d 1077

a Es Ea aaa eae ae ae ae 5

Vaughn v. United States, 579 A.2d 170

ok ak 4 ace wins o 6 8 eo EO 5

Verrett v. Stempson, 623 A.2d 120

vacated as moot, 643 A.2d 902 (D.C. 1993) ... 4

Wagner v. Hanks, 128 F.3d 1173

Ye 2) ee ae a 9, 10

Walton v. District of Columbia,

S70 A.28 1346 GAC. 1996)... 2 wee ees 3

White v. Hyman, 647 A.2d 1175 (D.C. 1994) ....... 4

Wright v. Coughlin, 132 F.3d 133

ee OG re ee 10

STATUTES AND REGULATIONS

D.C. Code § 24-402 (1996) ......--- eee ees io

D.C. Code § 24-425 (1996) ........---+5:-: 2

D.C. Code § 24-442 (1989) .......--- ee eee 3

Lorton Regulations Approval Act of 1982,

D.C. Law 4-153; 29 D.C.Reg. 3484-3485

(Amp. 13, 19GZ) .. eee eee 1, 3, 14, 17, 20

Balanced Budget Act of 1997, Pub.L. 105-33

(Aug. 5, 1997), Title XI, National Capital

Revitalization and Self-Government Act of

1997, Subtitle C, Criminal Justice, § 11201;

oe Sy ra 1, 14, 17, 20

28 DCMR Chapter 5 (1987) at

§§ 520.2-520.4, 521.2-521.4,

a 2s i aera a. 3

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

97-1816

JAMES H. NEAL,

Petitioner,

V.

DISTRICT OF COLUMBIA, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the District of Columbia Circuit is reported at 131 F.3d

172, and appears in the petitioner’s appendix ("App.") at

la-8a. The D.C. Circuit’s unpublished orders denying

rehearing and rehearing en banc are set out at App. 30a-

33a.

STATUTORY PROVISIONS

Statutory provisions cited in this brief in opposition

that are not contained in the petitioner’s appendix are set

forth in the appendix bound with this brief. They are: D.C.

Code §§ 24-402, 425 (1996); the "Lorton Regulation Ap-

proval Act of 1982," D.C. Law 4-153, 29 D.C.Reg. 3484-

3485 (Aug. 13, 1982); Balanced Budget Act of 1997, Pub.-

L. 105-33 (Aug. 5, 1997), Title XI, National Capital Revi-

talization and Self-Government Act of 1997, Subtitle C,

Criminal Justice, § 11201, D.C.Code § 24-1201 (1996,

1998 Supp.).

:

ra.

STATEMENT OF THE CASE

A. Introduction The District of Columbia Circuit

properly concluded, in a decision written by Judge Wald,

that a prisoner’s placement in protective custody -- where he

was allowed out of his cell four to nine hours a day -- did

not infringe a sufficiently significant interest to warrant pro-

tection under the Constitution, regardless of the full reach

of the “atypical and significant hardship" standard of Sandin

v. Conner, 515 U.S. 472 (1995).

Under Sandin, a state-created liberty interest in the

prison context should be "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. The D.C. Circuit found in this case and

the companion case of Brown v. Plaut, 131 F.3d 163

(D.C.Cir. 1997), cert. denied, 66 U.S.L.W. 3799 (June 22,

1998), that “application of Sandin raised difficult

questions," App. 6a, because "it is not clear which prison

or part of a prison" should represent the ordinary incidents

of prison life as a standard for comparison. Brown, 131

F.3d at 169. Other Courts of Appeals have struggled with

the same issue with varying results. But this case is not the

vehicle for resolving the uncertainty as to the reach of the

Sandin standard because the conditions Neal experienced in

protective custody are plainly insufficient to warrant consti-

tutional concern under any plausible reading of Sandin.

Further, a case involving a District of Columbia

prisoner may not be the right vehicle in which to resolve the

reach of Sandin because of the unique circumstances of Dis-

trict of Columbia prisoners: 1) by statute, D.C. prisoners

are committed to the custody of the Attorney General who

can place them in any prison nationwide, so the "ordinary

incidents of prison life" for D.C. prisoners may not be the

same as for other state prisoners; and 2) the District of

Columbia’s Lorton Correctional Complex, where Neal was

incarcerated, will be closed by the year 2001 pursuant to

<s

federal legislation, so any determination of the “ordinary

incidents of prison life" there would have limited applicabil-

ity even locally.

B. Background. James Neal is a District of Co-

lumbia convict serving consecutive sentences totaling 49 to

147 years imposed by the D.C. Superior Court in 1987 for

multiple counts of robbery and robbery of a senior citizen,

and one count of unauthorized use of a motor vehicle. See

Exhibit 1 to the defendant’s motion to dismiss or for sum-

mary judgment in the district court ("defendant’s dispositive

motion"). In this action, Neal claims an entitlement to

money damages because the District of Columbia Depart-

ment of Corrections kept him in involuntary protective

custody (also known as administrative segregation) for about

six months at the Maximum Security Facility at the District

of Columbia’s Lorton Correctional Complex without making

a determination that he was an escape risk, a threat to oth-

ers, or that he faced a threat from others, as required under

local District of Columbia prison regulations applicable to

Lorton.”

Although the Lorton regulations are binding on the

Department of Corrections to the extent they can be en-

forced in local habeas corpus proceedings, Walton v. Dis-

trict of Columbia, 670 A.2d 1346 (D.C. 1996); Abdullah v.

Roach, 668 A.2d 801 (D.C. 1995), it is an open question

whether they create a liberty interest protected by due pro-

cess. See, Crosby-Bey v. District of Columbia, 786 F.2d

1182, 1183 n.2 (D.C.Cir. 1986) (assuming without deciding

that Lorton regulations create a constitutionally protected |

liberty interest in remaining in general prison population

28 DCMR Chapter 5 (1987) at §§ 520.2-520.4, 521.2-

521.4, 521.12 (1987); App. 50a-52a. Pursuant to D.C. Code

§ 24-442 (1989) (requiring the Council of the District of

Columbia to approve Department of Corrections regulations),

the Council approved the regulations in the "Lorton Regula-

tions Approval Act of 1982," D.C. Law 4-153, 29 D.C.Reg.

3484-3485 (Aug. 13, 1982) ("LRAA").

j

OO

eS

because it appeared that prisoner received all process due

when transferred to administrative segregation even if he

had such a liberty interest); Brown v, Plaut, 131 F.3d at

169 (same); Abdullah, 668 A.2d at 810 n. 14 (raising but

not resolving constitutional issue). Nor, in the District’s

view, do the regulations create a private cause of action for

damages based on their violation, although no court has

reached this issue.”

C. The Facts. The facts relevant to Neal’s claim

are succinctly set out in the D.C. Circuit’s decision. App.

2a-4a. In a nutshell, Neal was initially placed in protective

custody at the Maximum Security Facility at Lorton with his

consent. But, after he requested that he be moved to the

general population at Maximum, the District kept him in

segregated confinement for another six months, without

holding a hearing on his request in accordance with the

local prison regulations and without making an explicit

determination that he was a safety or security risk. During

this period:

[Neal] was allowed to leave his cell for nine

hours a day three days a week, for six and a

half hours (or longer if he had a visitor) for

two days a week, and for five and six hours

respectively on the remaining two days. He

was allowed a total of eight hours a week

Outdoors, in a small courtyard. He did not

have easy access to the gym, mailroom, law

library, or medical unit (although other ar-

rangements were made for provision of these

services), and he could not work at a prison

job.

“Verret v. Stempson, 623 A.2d 120 (D.C. 1993), cited by

petitioner at 9 n.6, was vacated as moot, VWrrett v. Stempson,

643 A.2d 902 (D.C. 1993) and has no precedential value.

White v. Hyman, 647 A.2d 1175, 1181 n.9 (D.C. 1994),

— e

App. 7a.

It is relevant to Sandin’s “atypical and significant

hardship" standard that Neal has been in several different

prison settings during his incarceration. The Lorton Cor-

rectional Complex contains many different prison facilities

with different levels of security. In 1987, Neal was placed

at the Modular Facility at Lorton. He was then transferred

to serve his sentences at the federal prison in Leavenworth,

Kansas. He was transferred back to Lorton in 1992, where

he was initially placed at the Occoquan Facility. Exhibits

2-3 to defendant’s dispositive motion; Declaration of James

Neal (attached as exhibit to plaintiff's motion for summary

judgment in the district court) at 1. Neal was then trans-

ferred to the Maximum Security Facility at Lorton, and

placed in administrative custody in cellblock #1 with his

consent. App. 7a. Eventually, he asked to be moved to the

open population at Maximum, which is where he was in

fact placed after he was ultimately removed from cellblock

#1. App. 4a.”

As the D.C. Circuit recognized in the companion

case of Brown v. Plaut, 131 F.3d at 169, a D.C. prisoner

like Neal is committed to the custody of the Attorney Gen-

eral of the United States, who has the authority to designate

where the prisoner shall serve his sentence, and can transfer

the prisoner to Lorton, or any federal, state, or contract

penal facility in the country. See, D.C. Code §§ 24-402

and 425 (1996); United States v. Taylor, 485 F.2d 1077 (D-

.C.Cir. 1973) (D.C. prisoner is in custody of Attorney

General even at private halfway house operated under con-

tract with the D.C. Department of Corrections); Vaughn v.

United States, 579 A.2d 170, 173 (D.C. 1990) (D.C. pris-

* While this case was pending in the lower courts, Neal was

transferred to a private prison in Youngstown, Ohio, where

the District of Columbia has contracted to house some of its

prisoners. This transfer does not render this case moot since

Neal is seeking money damages.

na

oner can be transferred to state as well as federal facili-

ty).

Neal contends in this case that his confinement in

administrative segregation implicated a protected liberty

interest because the conditions in segregation were "more

restrictive" than those in the general population at Maxi-

mum where he wished to be placed, and where he was in

fact eventually placed. Petition at 3. Neal never described

the conditions he experienced at the federal facility in Leav-

enworth, or those at the Occoquan or Modular Facilities at

Lorton, and never asserted that the conditions in protective

custody in the Maximum Facility at Lorton were more

restrictive than those at Leavenworth or in other prisons

elsewhere in the country where the Attorney General has

the discretion to transfer him.

D. The Decisions Below. After this Court’s deci-

sion in Sandin v. Conner, the district court concluded that

the conditions Neal had experienced in protective custody

“represented a significant deprivation from the conditions in

the general population" at the Maximum Security Facility.

App. 20a. However, the district court recognized, and Neal

conceded, that, absent the local prison regulations, Neal

would have no basis for a § 1983 action. The district court

then decided as a matter of comity that the local District of

Columbia courts should decide in the first instance whether

the District’s prison regulations created a private right of

action, and dismissed Neal’s entire suit. App. 14a-16a,

20a. The district court noted its "fears" that, if it granted

Neal relief, "the Federal Courts [would] be flooded with

“ The Attorney General’s authority in this regard appears to

be totally discretionary. See, Barden v. Keohane, 921 F.2d

476 (3d Cir. 1990) (Attorney General has broad discretion to

choose place of federal prisoner’s incarceration, including

choosing a state prison); Curry-Bey v. Jackson, 422 F.Supp.

926, 932 (D.D.C. 1976) (Attorney General’s authority to

designate place of D.C. prisoner’s confinement is "clear and

apparently limitless").

=

untold numbers of prisoner damages cases alleging viola-

tions" of the D.C. prison regulations. App. 14a.

On appeal, the District of Columbia Circuit rejected

the district court’s reasoning, but nevertheless affirmed the

dismissal. App. 2a, 5a, 10a. The D.C. Circuit recognized

that a prisoner might establish a § 1983 claim for depriva-

tion of a protected liberty interest derived from local stat-

utes or regulations even if local law did not create a cause

of action. The Court of Appeals concluded, however, that

Neal had no viable claim because he had no liberty interest

in remaining free of the conditions imposed on him in ad-

ministrative segregation, “under any plausible reading of

Sandin." App. 6a. The Court ruled that, even if the stan-

dard for determining whether Neal suffered an “atypical and

significant" deprivation was to compare his circumstances in

administrative segregation with those in the general popula-

tion at the Maximum Security Facility, the deprivation was

“comparable to that at issue in Sandin" where the depriva-

tion was "considerably more severe” although it only lasted

30 days. App. 7a.

REASONS FOR DENYING THE WRIT

Although application of the Sandin "atypical and

significant hardship" standard has created uncertainty in the

lower federal courts, this case is not the proper vehicle to

resolve that uncertainty because, under any reading of

Sandin, there is a due process-triggering threshold that was

not crossed in this case. The conditions Neal endured are

simply insufficient to warrant constitutional concern under

Sandin.

Further, a case involving a District of Columbia

prisoner may not be the proper vehicle for establishing a

definition of "the ordinary incidents of prison life" under

Sandin that could be applied to state prison systems

because, by statute, D.C. prisoners are committed to the

custody of the Attorney General who can place them in the

District’s Lorton Correctional Complex or any prison na-

ee

tionwide. Indeed, any precedent defining the ordinary

incidents of prison life at Lorton would have limited appli-

cability even locally because, under federal legislation, the

Lorton Correctional Complex where Neal was incarcerated

is mandated to be closed by 2001.

This case does not warrant further review by the

Court.

I. THE FACTS PRESENTED IN THIS

CASE Do Not JUSTIFY REVIEW OF

THE UNDERLYING LEGAL ISSUE.

This case is not the vehicle for resolving the uncer-

tainty as to how to apply Sandin because the conditions

Neal experienced in protective custody are plainly insuffi-

cient to warrant constitutional concern under any plausible

reading of Sandin.

1. Sandin dramatically redefined the law with re-

spect to state-created liberty interests in the prison context.

Under the earlier standard used in Hewitt v. Helms, 459

U.S. 460 (1989), constitutionally protected liberty interests

were deemed created when state statutes restricted the dis-

cretion of prison administrators to place a prisoner in segre-

gation. Under the Hewitt methodology, the inquiry was

"whether the State had gone beyond issuing mere procedural

guidelines and had used ‘language of an unmistakably man-

datory character’ such that the incursion on liberty would

not occur ‘absent specified substantive predicates.’”

Sandin, 515 U.S. at 480, citing Hewitt, 459 U.S. at 471-

472.

The Court abandoned this approach in Sandin, how-

ever, because it had produced “at least two undesirable ef-

fects." 515 U.S. at 482 and n. 5 First, it created

disincentives for states to codify prison management proce-

dures in the interest of uniform treatment and in the interest

of instructing prison employees how to handle their duties.

Second, the Hewitt approach "led to the involvement of

a.

federal courts in the day-to-day management of prisons,

often squandering judicial resources with little offsetting

benefit to anyone." Jd. at 482. Accordingly, the Court

ruled that a state’s statutory system pertaining to an in-

mate’s discipline and segregation will create a liberty inter-

est worthy of due process protection only if it "imposes

atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life." Id. at 484.

2. This standard has, concededly, created unantici-

pated problems. The lower federal courts are struggling to

define “the ordinary incidents of prison life." The D.C.

Circuit did not resolve the issue in this case or the compan-

ion Brown case but observed that "[a]t various points in

Sandin, the Court compared the prisoner’s conditions in

disciplinary segregation in Hawaii’s Halawa Correctional

Facility to ‘administrative segregation and protective custo-

dy’ in that prison, to the ‘general population’ of that prison,

and to an undefined ‘range of confinement to be normally

expected for one serving an indeterminate term of 30 years

to life."" Brown, 131 F.3d at 169, citing Sandin, 515 U.S.

at 486-87.

Other Courts of Appeals have differing views on

how to determine the ordinary incidents of prison life. See,

Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir. 1997)

(Posner, C.J.) (concluding that "atypical and significant"

turned on a comparison with conditions in the state’s most

rigorous prison, but noting that Sandin might require a

nationwide standard since state prisoners are frequently

transferred to other state prisons under interstate compacts,

and indicating that "clarification of the issue" from this

Court would be "welcome"); Griffin v. Vaughn, 112 F.3d

703, 706 and n. 2 (3d Cir. 1997) (the “ordinary incidents of

prison life" are ascertained by what a sentenced inmate may

reasonably expect to encounter as a result of his or her

conviction in accordance with due process of law); Keenan

v. Hall, 83 F.3d 1083, 1088 (9th Cir. 1996) (suggesting

that the baseline for determining “atypical and significant"

ie.

turns on the length of the deprivation and a comparison of

conditions in segregation and that prison’s general popula-

tion); Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d Cir. 1997)

(same); Luken v. Scott, 71 F.3d 192, 193 (Sth Cir. 1995),

cert. denied, 517 U.S. 1196 (1996) (concluding that term in

administrative segregation was not “atypical and significant"

without discussing conditions in segregation or length of

that term in segregation); Mackey v. Dyke, 111 F.3d 460,

463 (6th Cir.), cert. denied, 66 U.S.L.W. 3257 (1997)

(concluding that six month term in administrative segrega-

tion was not “atypical and significant" without discussing

conditions in segregation).

Some courts are conducting an exhaustive compari-

son of conditions in and out of segregation to ascertain if

the prisoner experienced an atypical and significant depriva-

tion, thus defeating Sandin’s purpose to reduce the "involve-

ment of federal courts in the day-to-day management of

prisons." See, e.g., Wagner, 128 F.3d at 1176-1177 (re-

manding for development of factual record as to whether

conditions in disciplinary segregation were more restrictive

than conditions elsewhere in state’s prison system); Wright

v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998)(emphasizing

need for district courts to conduct extensive fact finding

before determining

whether a prisoner has a liberty interest in remaining free

from segregated confinement).

3. Of course, atypicality, by itself, cannot establish

a liberty interest. That much is clear from Sandin, which

expressly reaffirmed the decision in Meachum v. Fano, 427

U.S. 215 (1976), which held that procedural due process

was not required when an inmate was transferred from a

medium security to a maximum security prison. 515 U.S.

at 478. Therefore, local statutes and regulations must still

form a part of the basis of any liberty interest concerning

segregated confinement. See also, Hewitt v. Helms, 459

U.S. 460, 466-467 (1983) (the Due Process Clause itself

does not implicitly create "an interest in being confined to a

oy as

general population cell, rather than the more austere and

restrictive administrative segregation quarters"); Montanye

v. Haymes, 427 U.S. 236, 242 (1976) (due process clause

not implicated by state prisoner’s transfer to another state

prison for breach of prison rules, even where transfer in-

volves "substantially burdensome consequences"); Olim v.

Wakinekona, 461 U.S. 238 (1983) (inmate’s transfer from

Hawaii prison to less advantageous prison on mainland did

not implicate liberty interest).

The District submits that, to prevail under Sandin,

an inmate must establish both that 1) the confinement or re-

straint imposed an atypical and significant hardship as com-

pared to the most restrictive prison nationwide, because that

is what a sentenced inmate can reasonably expect to en-

counter as a result of his or her conviction in accordance

with due process of law; and 2) the state has granted its

inmates, by statute, an expectation in remaining free from

that confinement or restraint absent certain defined substan-

tive predicates. Neal’s suggested approach, that “atypical

and significant" is based on a determination of whether

prison officials have discretion to place prisoners in similar

settings, petition at 9-10, is an untenable attempt to return

to the Hewitt methodology abandoned in Sandin.

4. But this case is not the case for resolving these

issues because, under any plausible reading of Sandin, Neal

was not deprived of a protected liberty interest here. As

Judge Wald recognized below, spending six months in a

cellblock where Neal was allowed out of his cell nine hours

a day three days a week, for six and a half hours (or longer

if he had a visitor) for two days a week, and for five and

six hours respectively on the remaining two days, and

where he was allowed a total of eight hours a week out-

doors, is simply not the type of deprivation entitled to due

process protections after Sandin. It is so whether the prop-

er basis of comparison is the less restrictive general popula-

tion at the Maximum Security Facility where Neal was

eventually placed, the federal prison at Leavenworth where

a.

Neal spent several years, or any other prison nationwide.

This is especially so considering that protective custody in

no way stigmatized Neal or diminished his parole prospects.

Cf., Sandin, 515 U.S. at 488-489 (Ginsburg, J. dissenting)

(noting that disciplinary confinement, but not protective

custody, can diminish parole prospects).

The D.C. Circuit was absolutely correct that, after

Sandin, there are certain restrictions and conditions of con-

finement that simply do not trigger the due process clause

regardless of any regulations or statutes restricting the

imposition of such conditions, and that the conditions im-

posed on Neal do not trigger the due process clause here.

In short, Neal’s administrative segregation was not so clear-

ly out of the realm of prison experiences as to warrant due

process protection. Further review is not warranted here.”

Even if Neal could show here that he was subjected to an

atypical and significant hardship within the meaning of

Sandin, he still could not establish a liberty interest derived

from the District’s Lorton regulations. These regulations do

not include any guidelines, standards, or rules restricting

prison officials’ determination as to when a prisoner should be

considered a safety or security risk who needs protective

custody. A prisoner may be placed in administrative segre-

gation as a security matter if the prisoner poses an escape

risk, is a danger to others, or the safety or health of the pris-

oner is threatened. 28 D.C.M.R.§§ 520.2-.4; App. 50a.

However, the regulations do not define safety and security

risks, and do not limit which factors prison officials can con-

sider in making such a determination. Such a discretionary

and open-ended determination cannot be construed to give rise

to a liberty interest.

Further, Neal is not entitled to anything more than

nominal damages, unless he can show he would have been

promptly removed from segregated confinement if he had

received appropriate due process. Carey v. Piphus, 435 U.S.

247 (1978).

we

Il. BECAUSE OF THE UNIQUE CIRCUM-

STANCES OF DISTRICT OF COLUMBIA

PRISONERS, A DECISION BY THIS

COURT HERE WOULD Not NECES-

SARILY RESOLVE THE LEGAL ISSUE

IN OTHER JURISDICTIONS.

Because District of Columbia prisoners are commit-

ted by statute to the custody of the Attorney General, who

can place them in any federal or state prison in the country,

this case is not necessarily the vehicle for determining a

definition of the "ordinary incidents" of prison life under

Sandin that would apply to state prisoners committed to

State prison systems.

The District submits that Sandin should be applied in

a fashion that creates a consistent nationwide standard for

determining when a prisoner has a protected liberty interest

to be free of segregated confinement. A definition of an

“atypical and significant hardship" that is based on a state-

by-state

-- or case-by-case, or prison-by-prison -- comparison of

conditions (or as Neal would have it, a cellblock-by-cell-

block comparison) would create different thresholds for a

liberty interest in different jurisdictions depending on the

conditions in that jurisdiction’s prisons. Ironically, a pris-

oner in a restrictive, high security prison system might have

fewer due process rights than a prisoner in a lower security

prison system because the ordinary incidents of prison life

would be more severe for the former prisoner. "Liberty that

may vary from Ossining, New York, to San Quentin, Cali-

fornia, does not resemble the ’Liberty’ enshrined among

“unalienable Rights’ with which all persons are ‘endowed by

their Creator.’" Sandin, 515 U.S. at 489 (Ginsburg, J.,

dissenting), quoting Declaration of Independence.

Further, a uniform nationwide standard makes sense

considering that both federal and state prisoners are routine-

ly transferred to other prisons. Barden v. Keohane, 921

F.2d 476 (3d Cir. 1990) (attorney general has broad discre-

tion to choose place of federal prisoner’s incarceration,

Bassin sn em ee

Se

including choosing a state prison); Wagner v. Hanks, 128

F.3d at 1176 (states frequently "swap" prisoners with other

states, and it "makes a good deal of sense to view the entire

federal and state jail and prison system as a single

system").

However, any resolution of the issues in this case

that is based on the statutory authority of a national official

-- the Attorney General -- to designate the place of confine-

ment of D.C. prisoners in state, federal, or contract facili-

ties, might have limited value as precedent for prisoners in

other jurisdictions. Accordingly, a case involving a District

of Columbia prisoner may not be the appropriate case to

resolve the reach of Sandin.

In addition, the District notes that, under federal

legislation, the Lorton Correctional Complex where Neal

was incarcerated is mandated to be closed by 2001, so the

“ordinary incidents of prison life" at Lorton itself will be

obsolete at that time. See, Balanced Budget Act of 1997,

Pub.L. 105-33 (Aug. 5, 1997), Title XI, National Capital

Revitalization and Self-Government Act of 1997, Subtitle te

Criminal Justice, § 11201, D.C. Code § 24-1201 (providing

for felons sentenced under D.C. law to be transferred to

federal prisons and for Lorton to close by December 31,

2001).

Moreover, the prison regulations at issue in this case

are applicable only to the Lorton Correctional Complex,

"Lorton Regulations Approval Act of 1982," D.C. Law 4-

153, 29 D.C.Reg. 3484-3485 (Aug. 13, 1982), and, the

District submits, will no longer have any significance when

Lorton is closed. Accordingly, a determination of whether

6 In addition, foreign prisoners can be transferred to their

home countries to serve their sentences, suggesting that there

could be an international standard of comparison. Bagguley

v. Bush, 953 F.2d 660 (D.C.Cir. 1991), cert. denied 503 U.S.

995 (1992).

<a.

those regulations create a liberty interest will not have

lasting impact even for the District of Columbia.”

” Any grant of certiorari in this case must necessarily in-

volve review of whether the D.C. Circuit properly concluded

that this case and the companion Brown case were cognizable

under § 1983, and did not have to be pursued in habeas cor-

pus under the dictates of Preiser v. Rodriguez, 411 U.S. 475

(1973); Heck v. Humphrey, 512 U.S. 477 (1994); and Ed-

wards v. Balisok, 520 U.S. 641 (1997). In this regard, there

is a conflict in the Circuits: Clarke v. Stadler, 121 F.3d 222,

226 (Sth Cir. 1997) (if a favorable determination of prisoner’s

claim would not automatically entitle the prisoner to accelerat-

ed release, as where sanction included loss of good time

credit, the proper vehicle for suit is § 1983), rehearing en

banc granted, 133 F.3d 940 (1997); Stone-Bey v. Barnes, 120

F.3d 718 (7th Cir. 1997) (Edwards applies to preclude § 1983

claim in a case in which the prisoner was subject only to

disciplinary segregation, and not to any loss of good time

credits or any other change in the length of confinement);

Brown v. Plaut, 131 F.3d at 168 and n.5 (finding Stone-Bey

- unpersuasive; endorsing approach of Clarke).

Here, the reasoning of Preiser and its progeny dictate

that Neal’s challenge to the administrative decisions to place

him, and keep him, in segregated confinement cannot be

brought under § 1983. A decision in Neal’s favor here would

necessarily imply the invalidity of the administrative decision

to place and keep him in segregated confinement, and, as in

Preiser, Neal’s allegedly illegal confinement in protective

custody could be challenged in a habeas corpus proceeding.

See, Hudson v. Hardy, 424 F.2d 854, 855 and n.3 (D.C.Cir.

1970) (prisoner’s claim that he was subject to cruel and unusu-

al treatment in prison, apparently by being placed in control

cell, could be brought as habeas corpus petition or as request

for injunctive relief under 42 U.S.C. § 1983); and Abdullah

v. Roach, 668 A.2d 801 (D.C. 1995) (habeas corpus challenge

to administrative segregation). Accordingly, since Neal had

a viable habeas corpus remedy to challenge the administrative

action keeping him in cellblock #1, his claim is simply not

cognizable under § 1983. The D.C. Circuit’s judgment that

Neal’s complaint did not state a viable claim could be affirmed

on the alternative ground that Neal had to pursue his claim in

habeas corpus.

§

CONCLUSION

The Court should deny the petition.

Respectfully submitted,

JOHN M. FERREN

Corporation Counsel, D.C.

CHARLES L. REISCHEL

Deputy Corporation Counsel

Appellate Division

MARY L. WILSON

Assistant Corporation Counsel

Counsel of Record

Office of the Corporation Counsel

One Judiciary Square

441 4th Street, N.W.

Washington, D.C. 20001-2700

July 1998 Tel: (202) 727-6252 ext. 3306

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

97-1816

JAMES H. NEAL,

Petitioner,

V.

DISTRICT OF COLUMBIA, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPENDIX TO BRIEF IN OPPOSITION

TABLE OF CONTENTS

A. D.C. Code § 24-402 (1996)

B. D.C. Code § 425 (1996)

fed The "Lorton Regulations Approval Act of

1982," D.C. Law 4-153, 29 D.C.Reg. 3484-

3485 (Aug. 13, 1982)

D. Balanced Budget Act of 1997, Pub.L. 105-33

(Aug. 5, 1997), Title XI, National Capital

Revitalization and Self-Government Act of

1997, Subtitle C, Criminal Justice, § 11201,

D.C. Code § § 24-1201 (1996, 1998 supp.)

D.C. Code § 24-402. Imprisonment for more than 1

year; jurisdiction over Reformatory pris-

oners; transfer from penitentiary to Refor-

matory.

Whenever any person has been convicted of crime in any

court in the District of Columbia and sentenced to imprison-

ment for more than 1 year by the court, the imprisonment

during the term for which he may have been sentenced or

during the residue of said term may be in some suitable jail,

or penitentiary, or in the Reformatory of the District of Co-

lumbia; and it shall be sufficient for the court to sentence

the defendant to imprisonment in the penitentiary without

specifying the particular prison or the Reformatory of the

District of Columbia; and the imprisonment shall be in such

penitentiary, jail, or the Reformatory of the District of

Columbia as the Attorney General shall from time to time

designate; provided, that the Mayor of the District of Co-

lumbia is vested with jurisdiction over such male and female

prisoners as may be designated by the Attorney General for

confinement in the Reformatory of the District of Columbia

from the time they are delivered into his custody or into the

custody of his 3

authorized Superintendent, deputy, or deputies, and until

such prisoners are released or discharged under due process

of law; and provided further, that the residue of the term of

imprisonment of any person who has prior to July 1, 1916,

been convicted of crime in any court if the District of Co-

lumbia and sentenced to imprisonment for more than | year

by the court may be in the Reformatory of the District of

Columbia instead of the penitentiary where such persons

may be confined on July 1, 1916, and the Attorney General,

when so requested by the Mayor of the District of Colum-

bia, is authorized to, and he shall, deliver into the custody

of the Superintendent of said Reformatory or his deputy or

deputies any such person confined in any penitentiary in

pursuance of any judgment of conviction in and sentence by

any court in the District of Columbia, and the Mayor of the

District of Columbia is vested with jurisdiction over such

ee ee wen

prisoners from the time they are delivered into the custody

of said Superintendent or his duly authorized deputy or

deputies, including the time when they are in transit be-

tween such penitentiary and the Reformatory of the District

of Columbia, and during the period they are in such Refor-

matory or until they are released or

discharged under due process of law. The Attorney General

shall pay the cost of the maintenance of said prisoners so

transferred, said payment to be from appropriations for sup-

port of convicts, District of Columbia, in like manner as

payments are made for the support of District convicts in

federal penitentiaries. Nothing herein contained shall be

construed as applying to the National Training School for

Boys or the National Training School For Girls.

D.C. Code § 24-425. Place of Imprisonment.

All prisoners convicted in the District of Columbia for any

offense, including violations of municipal regulations and

ordinances and acts of Congress in the nature of municipal

regulations and ordinances, shall be committed, for their

terms of imprisonment, and to such types of institutions as

the court may direct, to the custody of the Attorney General

of the United States or his authorized representative, who

shall designate the places of confinements where the sen-

tences of all such persons shall be served. The Attorney

General may designate any available, suitable, and appropri-

ate institutions, whether maintained by the District of Co-

lumbia government, the federal government, or otherwise,

or whether within or without the District of Columbia. The

Attorney General is also authorized to order the transfer of

any such person from one institution to another if, in his

judgment, it shall be for the well-being of the prisoner, or

relieve overcrowding or unhealthful conditions in the institu-

tion where such prisoner is confined, or for other reasons.

The "Lorton Regulation Approval Act of 1982," D.C.

Law 4-153, 29 D.C.Reg. 3484-3485 (Aug.

13, 1982)

BE IT ENACTED BY THE COUNCIL OF THE

DISTRICT OF COLUMBIA, That this act may be cited as

the "Lorton Regulations Approval Act of 1982."

Sec. 2. The Council of the District of Columbia ap-

proves the regulations setting forth the administrative proce-

dures for adjustment and housing actions and the code of

offenses governing residents of the Lorton Correctional

Complex as adopted by the Director of Corrections on

February 18, 1981, and published in the D.C, Register on

February 27, 1981 (25 DCR 865).

Balanced Budget Act of 1997, Pub.L. 105-33 (Aug. 5,

1997), Title XI, National Capital Revital-

ization and Self-Government Act of 1997,

Subtitle C, Criminal Justice, § 11201; D.C.

Code § 24-1201 (1996, 1998 supp.).

(a) Felons sentenced pursuant to the truth-in-sentencing re-

quirements. - Not later than October 1, 2001, any person

who has been sentenced to incarceration pursuant to the

District of Columbia Code or the truth-in-sentencing system

as described in § 24-1211 shall be designated by the Bureau

of Prisons to a penal or correctional facility operated or

contracted for by the Bureau of Prisons, for such term of

imprisonment as the court may direct. Such persons shall

be subject to any law or regulation applicable to persons

committed for violations of laws of the United States consis-

tent with the sentence imposed.

(b) Felons sentences pursuant to the D.C. Code. - Not-

withstanding any other provision of law, not later than

December 31, 2001, the Lorton Correctional Complex shall

be closed and the felony population sentenced pursuant to

the District of Columbia Code residing at the Lorton Cor-

rectional Complex shall be transferred to a penal or correc-

tional facility operated or contracted for by the Bureau of

Prisons. Such persons shall be subject to any law or regula-

tion applicable to persons committed for violations of laws

of the United States consistent with the sentence imposed,

and the Bureau of Prisons shall be responsible for the custo-

dy, care, subsistence, education, treatment and training of

such persons.

«OK