Giovanni v. LynnGiovanni v. Lynn
Before POLITZ, Chief Judge, GARWOOD and BENAVIDES, Circuit Judges.
GARWOOD, Circuit Judge:
In this case, we are called on to decide whether a state prisoner placed in extended lockdown for disciplinary violation after a constitutionally adequate hearing, has a protected liberty interest in being released from lockdown when the violation is administratively expunged from his record for failure of the Secretary of the state Department of Corrections to act on his appeal within the 120-day limit imposed by the prison disciplinary rules. We hold that no protectible liberty interest is created by this appeal procedure and therefore affirm the judgment of the district court dismissing appellant‘s claims.
Facts and Proceedings Below
Plaintiff-appellant Edward Giovanni (Giovanni) is an inmate at the Louisiana State Penitentiary at Angola (the Prison). On August 22, 1988, Prison officials issued an incident report charging Giovanni with planning an escape and possessing materials necessary
Giovanni filed an appeal on August 27, 1988. Prison regulations give the Secretary of the Louisiana Department of Correction 120 days to grant or deny a prisoner‘s appeal; any appeal not processed within the 120-day limit is automatically granted. Solely because the Secretary failed to take any action on Giovanni‘s appeal within the 120-day period, the appeal was “granted” on February 22, 1989. According to the Prison‘s Chief Legal Counsel, however, “such ‘granteds’ are considered technicalities. While the report is to be removed from the inmate‘s disciplinary record for the purpose of future action, no other remedy is necessary. He/she will not receive any return of any privilege lost.” (Emphasis in original). Giovanni was
At that time, inmate appeals were processed by a three-member panel in a closed review procedure. Continued lockdown status was reviewed about every ninety days thereafter by a lockdown review board, again in a closed procedure. Giovanni‘s case was periodically reviewed by the board pursuant to these procedures, but it was determined that he posed a continuing threat to security, and he remained in extended lockdown. The lockdown review reports indicated that Giovanni was not released from extended lockdown in part because of the nature of his original offense.2 Although the disciplinary report had been expunged from Giovanni‘s record, a summary of the charges was placed in his file.3
On March 27, 1990, a state court held a hearing on a writ of
Giovanni filed the present suit on September 26, 1989, challenging the fairness of the August 24, 1988, disciplinary hearing and the timeliness and outcome of his subsequent appeal. Specifically, and most significant for present purposes, he complained that he was denied due process because, although his appeal had been “granted,” he had not been released from extended lockdown. He sought monetary and injunctive relief under
The magistrate judge held a hearing on February 9, 1993, to consider this remaining claim. He noted that Giovanni‘s arguments that a prisoner has a protected liberty interest in remaining free from extended lockdown, based on this Court‘s decision in McCrae v. Hankins, 720 F.2d 863 (5th Cir.1983), were wide of the mark because that interest was not implicated when, as in Giovanni‘s case, the inmate had been lawfully placed in extended lockdown. The magistrate judge found that neither the 120-day automatic grant of appeal rule nor the state court decision in Fulford created a protected liberty interest in being released from extended lockdown and recommended dismissing the suit with prejudice.5 The district court adopted the magistrate judge‘s recommendations and dismissed the suit with prejudice on June 2, 1993.
It is this order that Giovanni now appeals. In his pro se brief, Giovanni addresses only the asserted liberty interest created by the practice of expunging disciplinary reports when the 120-day period has passed without action by the Secretary on the appeal. We therefore do not reach the other findings of the
Discussion
In the context of prisoners placed in more restrictive confinement, a protected liberty interest can arise in one of two ways: when the restriction is imposed for a punitive (as opposed to an administrative) purpose, and when a state regulation creates a liberty interest. Mitchell v. Sheriff Department, Lubbock County, Texas, 995 F.2d 60, 62-63 (5th Cir.1993). Assuming, arguendo, that Giovanni‘s lockdown was for a punitive, as opposed to an administrative, purpose, under our holding in Mitchell the process due would be that prescribed in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). It is not contended in this appeal that the August 24, 1988, hearing did not fully satisfy all the requirements of Hewitt. Moreover, Hewitt does not require that there be any provision for appeal.7 Consequently, the failure to act on Giovanni‘s appeal could not deprive him of the process he was due by virtue of the assumed punitive nature of the lockdown.
“[A] State creates a protected liberty interest by placing substantive limitations on official discretion.” Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). To satisfy this standard, a regulation must fulfill two requirements: it must “establish[ ] ‘substantive predicates’ to govern official decisionmaking and, further, ... mandat[e] the outcome to be reached upon a finding that the relevant criteria have been met.” Kentucky Dep‘t of Corrections v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989) (citation omitted). The Supreme Court has also made clear that, to create a liberty interest, the law or regulation at issue must contain “explicitly mandatory language,” that is, that it must “requir[e] that a particular result is to be reached upon a finding that the substantive predicates are met.” Id. at 464, 109 S.Ct. at 1910 (footnote omitted).
This Court has previously held that the Louisiana Department of Corrections Regulations prescribing reasons for placement in extended lockdown were sufficient to create a liberty interest in not being confined to extended lockdown without due process. McCrae v. Hankins, 720 F.2d 863, 867 (5th Cir.1983). This is because “[t]he discretion of a Louisiana disciplinary board to place an inmate in extended lockdown is ... substantively limited by ‘particularized standards or criteria [that] guide the ... decisionmakers’ ” in classifying inmates to extended lockdown. Id.
The essence of Giovanni‘s position is that he was in substance denied the appeal provided for in the regulations, because the Secretary did not act on the appeal within the 120 days required by the regulation and, although as a result his disciplinary violation was expunged, he was nevertheless not returned to the general prison population nor afforded a new hearing. We reject this contention. The rule states simply, “The Secretary will issue all appeal decisions within 120 days of the date of the last hearing for each case.” It contains no other standards or criteria to substantively guide or limit the Secretary in rendering his appeal decisions, nor does it mandate a particular outcome or a particular form of relief should the Secretary fail to render a decision within the time period. In our unpublished decision in Bay v. Lynn, No. 92-3409, 990 F.2d 1252 (5th Cir. April 5, 1993) (per curiam), we held that
“[t]he rules, although providing for ‘appeal decisions within 120 days,’ contain no language that grants a separate right ‘not to be punished at all if a proper appeal is not conducted.’ ... [T]he disciplinary rules do not contain a ‘substantive predicate’ mandating the grant of an appeal or
any other outcome should the appeal decision not be rendered within 120 days....” Id. at 6.
Because the 120-day rule does not satisfy the criteria set forth in Kentucky Dep‘t of Corrections v. Thompson, it creates no protectible liberty interest in being released from extended lockdown. Thus, the general rule that prisoners have no protected interest in a particular custodial classification applies, and Giovanni can state no cause of action under section 1983. McGruder v. Phelps, 608 F.2d 1023, 1026 (5th Cir.1979) (citing Fulford v. Phelps, 365 So.2d 575 (La.App.1978)).
Moreover, where a liberty or property interest is infringed, the process which is due under the United States Constitution is that measured by the due process clause, not that called for by state regulations. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 539-41, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985). Mere failure to accord the procedural protections called for by state law or regulation does not of itself amount to a denial of due process. See, e.g., Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.1994); Brown v. Texas A & M University, 804 F.2d 327, 335 (5th Cir.1986); Levitt v. University of Texas at El Paso, 759 F.2d 1224, 1230-31 (5th Cir.), cert. denied, 474 U.S. 1034 (1985); Martin v. Blackburn, 581 F.2d 94, 94 (5th Cir.1978). Thus, in Jackson v. Cain, 864 F.2d 1235 (5th Cir.1989), a prisoner-plaintiff alleged “that a constitutional violation occurred because he was not accorded the level of process provided for in the DOC handbook.” Id. at 1251. We stated: “This argument must fail. A state‘s failure to follow its own procedural
Nor does the state trial court holding in Fulford v. Smith undercut our decision. Fulford places no substantive constraints on official decisionmaking but simply prescribes additional procedures to be followed in rendering what is otherwise still a wholly discretionary decision.9 As noted, a simple failure to comply with state procedural requirements may be a violation of state law, but it does not constitute a constitutional violation.
We thus hold that, once an inmate has been properly placed in extended lockdown and afforded the full process required by Hewitt, the failure to release him to the general prison population or to afford him a further hearing because of the Secretary‘s failure to act on his appeal within the 120 days specified in the regulation does not violate his due process rights.