Opposition Brief — Harper v. Mujahid

No. 94-43

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

TERA HARPER, JEFFREY TOM, and ALLAN

ANDUHA, in their capacities as Chairperson and Members

of the Adjustment Committee, Halawa Correctional Facility,

Hawaii Department of Public Safety

Petitioners,

vs.

SABIL M. MUJAHID, a.k.a. Terry Smith,

Respondent.

On Petition For a Writ of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Paul L. Hoffman

Counsel of Record

100 Wilshire Blvd., Ste. 1000

Santa Monica, CA 90401

(310) 260-9585

Attorneys for Respondent

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QUESTION PRESENTED

1. Whether Hawaii’s prison reguiations created in Respondent

a “liberty interest" in being free from disciplinary segregation

and whether these rights were implicated in the prison disciplinary

proceedings over which petitioners presided?

2. Whether the Ninth Circuit was correct in remanding this

case for further consideration of Respondent’s equitable claims

arising out of the failure of the prison adjustment committee to

give him an adequate statement of reasons for the imposition of

disciplinary segregation against him?

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TABLE OF CONTENTS

Page(s)

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REASONS FOR DENYING TBE WRIT ...++-e+-c+«-ec © © © © © «© © « « 4

I. THIS CASE DOES NOT WARRANT REVIEW BECAUSE THE

NINTH CIRCUIT CORRECTLY APPLIED THIS COURT’S

PRECEDENTS IN FINDING THAT HAWAII’S PRISON

REGULATIONS CREATE A LIBERTY INTEREST IN

REMAINING FREE FROM DISCIPLINARY SEGREGATION ....... 4

II. THE NINTH CIRCUIT’S DECISION IS NOT IN CONFLICT

WITH THE DECISIONS OF OTHER COURTS OF APPEALS. ......7

III. THE NINTH CIRCUIT DECISION CORRECTLY FOUND THAT

DUE PROCESS REQUIRES A MORE COMPLETE STATEMENT

OF DECISION THAN WAS AFFORDED TO RESPONDENT IN

THIS CASE AND IS NOT IN CONFLICT WITH THE DECISIONS

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TABLE OF AUTHORITIES

CASES

’

807 F.2d 1407 (Sth Cir. 1986) .....-s«-e«e-.

: ix,

899 F. 2da 733 (8th Gir. 1990) . .* * o * . a . . o

wi

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459 U.S. 460 (1983) ” ° . . . > 7 . . . . - *

490 U.S. 454, 461 (1989) . . . «. «© « «© «© © «© «

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717 F.2d 1105 N.4 (7th Cir. 1983), cert. denied,

465 U.S. 1025 (1984) . 7. - . . o . . 7 o . . .

w v ;

418 U.S. 539 (1974) > . oe . . _ * . a ow — o . .

Woods v. Thieret ’

903 F.2d 1080 (7th Cir. 1990) oe ae aw Se

STATUTES AND RULES

42 a oe § 1983 “ = id . * ad aa . s e ° 2 7. ad * * o .

State of Hawaii, Dep’t of Social Servs. and Housing,

Title 17, Admin. R. of the Corrections Div.,

Rule 17-201-8 (a) (10) * eo . 7 * * * . * . * * . *

State of Hawaii, Dep’t of Social Servs. and Housing,

Title 17, Admin. R. of the Corrections Div.,

Rule 17-201-8 (a) (31) * 7 a * * —_ > 7 * J + * 7 .

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Page(s)

No. 94-43

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

TERA HARPER, JEFFREY TOM, and ALLAN

ANDUHA, in their capacities as Chairperson and Members

of the Adjustment Committee, Halawa Correctional Facility,

Hawaii Department of Public Safety

Petitioners,

vs.

SABIL M. MUJAHID, a.k.a. Terry Smith,

Respondent.

On Petition For a Writ of Certiorari

To The United States Court of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Respondent, Sabil M. Mujahid, submits this brief in opposition

to the Petition for Writ of Certiorari filed by Tera Harper,

Jeffrey Tom, and Allan Anduha, in their capacities as Chairperson

and Members of the Adjustment Committee, Halawa Correctional

Facility Hawaii Department of Public Safety. This Opposition is

related to Sandin v. Conner, No. 93-1911 (Pet. for Cert. filed May

26, 1994).

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STATEMENT

Respondent Sabil M. Mujahid, aka Terry Smith, was until early

August 1994, an inmate housed at the Halawa High Security Facility

in Aeia, Hawaii. At the end of 1990, Respondent decided to

officially change his name from Smith to Mujahid. In an attempt to

assist Respondent, his brother Frank mailed a letter to the

Lieutenant Governor which contained forms and stamps which were

then forwarded to Respondent. Respondent determined that he did

not need the stamps and attempted to return them to his brother.

On December 28, 1990, Respondent attempted to send a letter

containing the unused postage stamps to his brother in Kansas City.

The outside of the letter stated in prominent language, "5 stamps

enclosed." [Pet. 7.]

Prison officials at the Halawa Correctional Facility

intercepted the letter and charged Respondent with violating two

prison rules. The first of these rules prohibits "[p]Jossession of

anything not authorized for retention or receipt by the inmate or

ward and not issued to the inmate...through regular institutional

channels." State of Hawaii, Dep’t of Social Servs. and Housing,

Title 17, Admin. R. of the Corrections Div., Rule 17-201-8(a) (10).

The second prohibits "[{g]jiving money or anything of value to or

accepting money or anything of value from an inmate or ward, a

member of the inmate’s or wards family, or friend." State of

Hawaii, Dep’t of Social Servs. and Housing, Title 17, Admin. R. of

the Corrections Div., Rule 17-201-8(a) (31).

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On March 1, 1991, an adjustment hearing was held under Hawaii

prison regulations. Petitioners Tera Harper, Jeffrey Tom and Alan

Anduha were members of the Adjustment Committee. At the hearing

Respondent appeared on his own behalf and presented a defense to

the charges. Petitioners nevertheless found Respondent guilty of

both charges and ordered him to spend fourteen days in disciplinary

segregation. The adjustment committee later issued a report. Even

though the administrative rules require the Committee to "set forth

evidence relied upon and the reasons for the actions taken," the

Committee simply stated that it had based its decision "on written

reports and testimonies presented at the hearing.” [Pet.App. A4]

Respondent brought a pro se action under 42 U.S.C. § 1983

claiming that the adjustment committee violated his due process

rights and seeking compensatory and punitive damages and equitable

relief. The District Court granted summary judgment on all of

Respondent’s claims.

The Ninth Circuit, in an unpublished opinion, decided that the

Hawaii regulations contained the kind of mandatory language that

was sufficient to create a liberty interest in freedom from

administrative segregation except where substantial evidence of

guilt of specific offenses was found by the adjustment committee.

The Ninth Circuit also emphasized that Hawaii regulations mandate

a statement of reasons for a decision to impose administrative

segregation. [Pet. A6] The Ninth Circuit found that the

Committee’s deficient statement of reasons violated Respondent’s

due process rights.

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The Ninth Circuit affirmed the District Court’s summary

judgment on Respondent’s damage claims on qualified immunity

grounds. [Pet. A8-9] The Ninth Circuit remanded the case to the

District Court for consideration of Respondent’s remaining

equitable claims.

Since the filing of the Petition in July 1994 Respondent has

been released on parole. The significance of Respondent’s release

on parole for his remaining equitable claims has not been

considered by the Ninth Circuit or the District Court making this

case an especially inappropriate venue tc determine any of the

issues akwardly raised in the Petition.

REASONS FOR DENYING THE WRIT

I.

THIS CASE DOE& EOT WARRANT REVIEW BECAUSE THE

WINTH CIRCUIT CORRECTLY APPLIED THIS COURT’S

PRECEDENTS IN FINDING THAT HAWAII’S PRISON

REGULATIONS CREATE A LIBERTY INTEREST IN

REMAINING FREE FROM DISCIPLINARY SEGREGATION.

This Court has consistently held that a "state law may create

enforceable liberty interests in the prison setting."' In Kentucky

a orrecti Vv , 490 U.S. 454, 461 (1989).

Whether state law creates such a liberty interest enforceable under

the Due Process Clause of the Fourteenth Amendment and 42 U.S.C.

’ This Court has held in a variety of settings that prison

regulations granted inmates a protected liberty interest in parole,

Board of Pardons v. Allen, 482 U.S. 369 (1987); Greenholtz v.

Nebraska Penal Inmates, 442 U.S. 1 (1979), in good-time credits,

Wolff v. McDonnell, 418 U.S. 539, 556-572 (1974).

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section 1983 must be determined by examining "closely the language

of the relevant statutes and reguiations" Id. The Ninth Circuit’s

opinion followed this approach in determining that the Hawaii

prison regulations at issue in this case created a liberty interest

in being free from disciplinary segregation unless a certain

showing of misconduct was shown by "substantial evidence."

In Hewitt v. Helms 459 U.S. 460, 472 (1983) this Court held

that a prisoner who was yject to administrative segregation had

a protected liberty interest created under Pennsylvania law. [In

Hewitt this Court found that the Pennsylvania procedures at issue

in that case created a liberty interest in being free from

administrative segregation because the state provision "used

language of an unmistakably mandatory character, requiring that

certain procedures "shall", "will" or "must" be employed...and

that administrative segregation will not occur absent specified

substantive predicates--viz., ‘the need for control’ or the threat

of a serious disturbance." Id.

This case is similar in that Hawaii’s prison regulations are

sufficiently mandatory to create a protected liberty interest ina

prisoner. The Hawaii regulations require a finding of guilt of

special offenses by "substantial evidence” before disciplinary

segregation may be imposed. {[Pet.App A7] No disciplinary

segregation may be imposed without meeting these "substantive

predicates."

In particular, the adjustment must find a prisoner guilty of

specific offenses befcre imposing disciplinary segregation. These

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state regulations thus fall squarely within Hewitt v. Helms and

there is no reason to revisit this issue by granting the Petition.

Petitioner’s primary contention is that this Court’s decision

in Kentucky Department of Corrections v..Thompson, 490 U.S. 454,

461 (1989) somehow forecloses the finding of a protected liberty

interest in these circumstance. However, this Court derived its

test in Kentucky Department of Corrections from its holding in

Hewitt and expressly reaffirmed Hewitt. The Court stated first

that a statute must contain "substantive predicates" or

"particularized standards to govern official decision making.

Next, the Court stated that the regulation must require in

"explicitly mandatory language" that if the substantive predicates

are met a particular outcome must follow. Id. at 461-462.

In Kentucky Department of Corrections, this Court found that

the regulation restricting prisoner visitor privileges at issue in

that case "lack[{ed] the requisite relevant mandatory language since

visitors "may", but need not, be excluded whether they fall within

one cf the catwa, "ies of excludable visitors." Id. at 454. Thus,

this Court found that the state regulations were not the kind that

created expectations of enforcement sufficient to create a liberty

interest in a certain form of visitation.

Petitioner contends that Hawaiian prison regulations at issue

in this case are more like the regulations in Kentucky Department

of Corrections than the regulations in Hewitt. In particular,

Petitioner argues that these regulations are not sufficiently

mandatory because they stop short of requiring that a particular

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result be reached upon a finding that the "substantive predicates"

are met because prisoners may not be assigned to segregation even

after a finding of guilt.

However, the Ninth Circuit was correct in finding that Hawaii

law creates a liberty interest in being free from the imposition of

administrative segregation unless the prisoner admits his guilt of

specific misconduct defined substantially in state regulations

[Pet.App A35-41] or has been found guilty based on "substantive

evidence." There is nothing discretionary about’ these

requirements. Administrative segregation may not be imposed unless

these substantive predicates are met. Thus, this case falls

squarely within Hewitt v. Helms and is not the kind of

Giscretionary visitation regulation at issue in Kentucky Department

II.

THE NINTH CIRCUIT’S DECISION IS NOT IN

CONFLICT WITH THE DECISIONS OF OTHER COURTS OF

APPEALS.

Petitioner’s argue that the Ninth Circuit’s holding conflicts

with the holdings of other Circuits in similar cases. In

particular, Petitioner claims that Burgin v. Nix, 899 F.2d 733 (8th

Cir. 1990) and Woods v. Thieret, 903 F.2d 1080 (7th Cir. 1990), are

in conflict with the Ninth Circuit’s holding in this case.

In Burgin the issue was whether a prisoner had a liberty

interest in eating a "non-sacked" meal as opposed to a

nutritionally similar and adequate "sacked" meal. Burgin, 899 F.2d

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at 734. The Burgin Court never reached the analysis required in

Hewitt and Kentucky Department of Corrections but found that there

was essentially no difference between "sacked" and "non-sacked"

meals that triggered any kind of due process analysis. Id. at 734-

735. Indeed, the Burgin court emphasized that there were no Iowa

statutes or regulations guaranteeing that prisoners would receive

a specific type of meal. Id. at 735. Under Iowa regulations

prisoners who were placed on incorrigible inmate status may be

served "sacked" meals "in some cases" and thus the regulations,

unlike the regulations at issue in this case, did not have the

explicitly mandatory language required under this Court’s cases to

establish a liberty interest in freedom from "sacked" lunches based

on particular mandatory substantive prerequisites. Id.

Nor is the Seventh Circuit’s holding in Woods v. Thieret 903

F.2d 1080 (7th Cir. 1990) in conflict with the decision below. In

Woods, a prison inmate challenged three separate "lockdowns" in his

cell. The regulations at issue in Woods provided for a

disciplinary hearing and possible temporary confinement status

based on three criteria. The Seventh Circuit found that these

regulations were not sufficiently mandatory under the principles in

Kentucky Board of Corrections and Hewitt to create a "liberty

interest" of the kind asserted by the prisoner in that case. Zé.

at 1083. The regulations at issue were completely different from

the regulations at issue in this case. In Woods, the Seventh

Circuit held that "while the rules mandate who shall make the

determinations and what shall be considered (the three substantive

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predicates), they do not mandate any particular outcome." Id.

Thus, the Illinois regulations considered in Woods did not create

any mandatory substantive standards to be found before temporary

confinement could be ordered by prison officials. The key

difference in this case is that the Hawaii regulations at issue

create clear, mandatory substantive predicates before prison

officials may impose administrative segregation.

There is no conflict between the Ninth Circuit’s holding in

this case and the holdings in Burgin or Woods. In each case the

court applied this Court’s analysis in Hewitt and Kentucky

Department of Corrections and came to different conclusions because

of the different statutory schemes involved.

Itt.

THE NINTH CIRCUIT DECISION CORRECTLY FOUND

THAT DUE PROCESS REQUIRES A MORE COMPLETE

STATEMENT OF DECISION THAN WAS AFFORDED TO

RESPONDENT IN THIS CASE AND IS NOT IN CONFLICT

WITH THE DECISIONS IN OTHER CASES ‘

The Ninth Circuit decided that the reasons given to Respondent

for the imposition of disciplinary segregation were wholly

inadequate based on this Court’s decision in Wolff v. McDonnell,

418 U.S. 539 (1974). In Wolff this Court insisted that due process

requires, at a minimum, "a written statement of ... the evidence

relied upon and the reasons for the disciplinary action taken."

Wolff, 418 U.S. at 563. See also Redding v. Fairman, 717 F.2d

1105, 1115 N.4 (7th Cir. 1983), cert. denied, 465 U.S. 1025 (1984);

King v. Wells, 760 F.2d 89, 93 (6th Cir. 1983).

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Petitioners claim that the Ninth Circuit’s decision creates

"detailed factfinding requirements" {[Pet. 17) on prison

disciplinary committees and is in conflict with the Eighth

Circuit’s decision in Brown v. Frey, 807 F.2d 1407 (8th Cir. 1986).

[Pet. 19]

First, the Ninth Circuit has not created any new requirement

of detailed fact finding. In this case Petitioners gave no

indication of the reasons for their decision at all. A statement

of decision that says that Petitioners relied on the testimony and

evidence presented amounts to no statement of reasons. The Ninth

Circuit broke no new ground in deciding that Petitioner’s statement

violated due process.

Second, the decision in Brown v. Frey, supra, is not in

conflict with the Ninth Circuit’s holding in this case. In Brown

the court required the prison committee to commit itself to certain

evidence and specified reasons for the disciplinary decision at the

time the decision is made. 807 F.2d at 1414. The Brown Court

would have found Petitioners’ statement wholly inadequate under

these principles. Thus, there is no conflict between the Circuits

for this Court to resolve. This is certainly so in the context of

the wholly deficient statement issued by Petitioners in this case.

CONCLUSION

For all of these reasons the Petition should be denied. In

particular, Respondent’s release on parole after the filing of the

Petition makes this case an inappropriate case for review by this

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Court. The significance of Respondent’s release should be

determined by the District Court on remand in the first instance.

DATED: September 6, 1994

Respectfully submitted,

PAUL L. HOFFMAN

Counsel of Record for

Respondent Mujahid

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