# Opposition Brief — Harper v. Mujahid

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0032%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 914

## Text

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

O0U240CPH.
AOA

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?

00240CPH.

AOA

TABLE OF CONTENTS

Page(s)
eo, as
a nner e8 @ se #@ ee ee eo ec ewe weet wl lw ew ee
EE ES ee ar Ser ae ae ee a a
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

i ee ee ee ee ee ee ee ee ee ee a ee
eo ee a a a a, a ee a ee a a ee a a a a ee ee

00240CPH.
AOA ii

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

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

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

j v. W "
rr nr re $e, BSG ok ka ks i ee
eddi Vv j >
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 .

00240CPH.
AOA iii

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).

00240CPH.
AOA 1

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).

00240CPH.
AOA

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.

00240CPH.
AOA

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).

00240CPH.
AOA

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

00240CPH.

AOA

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

00240CPH.
AOA

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

00240CPH.

AOA

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

00240CPH.

AOA

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).

00240CPH.

AOA

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

00240CPH.

AOA

10

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
00240CPH.

AOA

11

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0032%3A2. Public record. Not legal advice.