Jeremy Kennedy v. John T. Blankenship
100 F.3d 640
8th Cir.
1996
Check Treatment

*1 Weigert gun Behler called the Behler, protection.’”

‘his аt 1270- Jeremy KENNEDY, Appellee, Houston Weigert also testified that gun Behler carried the hidden in his either BLANKENSHIP, Major T. Disciplin- White, pocket, (holding coat 81 F.3d at see ary Hearing Officer; Willis H. firearm on or to bear a about one’s Warden; Larry Fiedorowicz, Disciplin- “carry” prong); or had it satisfies ary Hearing Administrator, Ap- Officer he his car when went to Colorado to Willis, purchase methamphetamine, see (transporting 89 F.3d at in a firearms No. 96-1039. passenger compartment of vehicle loaded United Appeals, States Court of with controlled substances satisfies “car- Eighth Circuit. ry” prong); Freisinger, States v. United (same). We are Sept. Submitted record satisfied that contains sufficient Decided Nov. properly evidence instructed jury could have convicted Behler under the 924(c).

“carry” § prong we 924(c)

reverse the conviction on the count

for instructional error and count II remand ‍‌​​​​​​‌​‌‌‌‌‌‌‌​​​​‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌‌​‌‌​‌‌‌​‍opinion. new trial consistent government

Should the decide to dismiss

count II to another or if avoid trial count, acquitted on this we

visionally drug vacate sentence on IV) (I so

counts that the district court

may consider whether Behler’s sentence on drug counts ‍‌​​​​​​‌​‌‌‌‌‌‌‌​​​​‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌‌​‌‌​‌‌‌​‍should be enhanced under 2D1.1(b)(1) (Oct.1987).

USSG See Cald-

well, 1070. If the defendant is II

convicted of count the sen-

tence on I and IV is counts affirmed.

IV. remaining

We have considered Behler’s

guments and find them to be without merit.

Accordingly, we reverse and remand on II,

count judg- otherwise affirm the court,

ment of except the district to the necessary

extent it for the district

court to resentence counts I and IV

provided above. *2 Early horseplay in his on cell.

engaged February Kennedy personnel, by medical éxamined ankle a him medical provide not who did Kennedy duty. When did from work excuse morning, later a report for work (“issued major disciplinary a guard cited him him,” prison refusing for against parlance) failing obey for to a report to to work and order. direct Blankenship February consider the chaired response against Kennedy. to a charges Blankenship, Kennеdy question from stated call on the had not been sick that he report morning he refused Kennedy guilty violat- Blankenship found thirty him to rules and sentenced prison isolation,” form of “punitive a stricter segrega- custody than the “administrative' time. Ken- Kennedy had at the tion” status nedy appealed to defendant defendant Fie- of the warden dorowicz, hearing adminis- Rock, AK, Eberhard, B. Little David Department, and eaсh affirmed of the trator (Winston brief), Ap- Bryant, for gued Blankenship’s decision. Kennedy 1983 action filed this U.S.C. Haralson, Rock, AK, argued, Regina Little claiming April court district Appellee.. for his constitu- had violated that dеfendants particular, right to due tional LOKEN, BOWMAN, BRIGHT Before reg- that an administrative claimed Judges. Circuit Department required Blanken- ulation of the officer, contact ship, hearing medical BOWMAN, Judge. personnеl Blankenship, Willis Sar- Defendants magistrate report A ill to work.1 was too Fiedorowicz, employees of Larry gent, and judgment in fa- judge initially recommended Correction, ap- Department of the Arkansаs defendants, vor but judgment of the peal from the Magis- rejected recommendation. plaintiff Jeremy Kennedy in this in favor judgment in Judge then recommended trate rights Because 1983 civil action. U.S.C. an award of $50 аgreed and damages. The District Court violated, rights we reverse. were not expunge the dis- also defendants ordered Kennedy’s record. 21,1993, ciplinary Kennedy, action February an inmate Court, and we aрpealed to this Arkansas De- Defendants Cummins Unit of the of the for further consider- Correction, reversed and hurt his ankle while partment of is not included charged from the health staff a statement regulation stаtes that “whenever 1. The decision, illness, “the hearing officer’s staff the unit health inmate’s defense expunged from deemed invalid and will be the in- determine whether be contacted to must undisputed Id. It complaint the inmate’s records.” of illness was mate examined staff, pre- whether, the health did not contact opinion of the in the inmate, hearing sumably because persons who. examined sought medical attention sufficiently justi- had not that -he feigning ill illness or February App. Appellants' fy at 63. If rule violation.” (citations , light Court’s inter Id. at 115 S.Ct. at 2300 omit ation — — ted). Conner, recognized “[discipline in Sandin v. The Court vening ‍‌​​​​​​‌​‌‌‌‌‌‌‌​​​​‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌‌​‌‌​‌‌‌​‍decision -, 115 response officials wide (1995).Kennedy Blankenship, expected 66 F.3d 332 misconduct falls within the 1995) curiam). (unpublished per parameters imposed by of the sentence Cir. *3 at -, court of law.” Id. reconsidered again in its decision and entered subsequent our Sandin and cases Kennedy for and ordered the $50 Kennedy’s lead us to the conclusion that disciplinary expunged. The defen demotion from segregation administrative jurisdiction аppealed again. We have dants punitive depriva the sort of (1994). pursuant to 28 U.S.C. qualifies ‍‌​​​​​​‌​‌‌‌‌‌‌‌​​​​‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌‌​‌‌​‌‌‌​‍“atypical signifi tion that as and cant.” We note that the inmate first Hawaii challenge only appeal, defendants the in Sandin was moved from administrative application of the law the District Court’s segregation segregation” “disciplinary therefore, review, de facts. Our is novo. days, much like in this Nesbitt, (8th 966 F.2d See Falls Id. at - & 115 S.Ct. at 2296 & n. Cir.1992). сase, prisoners in both Sandin and this Sandin, the Court retreated segregation prisoners in administrative from a line of cases which it had examined category spend significant the stricter prison regulations in dеtail “lockdown,” time in amounts of confined to regulations the created constitution at -, their cells. Id. 115 S.Ct. at 2301. protected liberty by ally of interests use distinguished unmistakably “‘language mandatory of only apparеnt because the difference be that the character’ such incursion on custody tween the two levels Sandin was specified occur ‘absent phone visiting “one extra call and one extrа ” — Sandin, at -, predicates.’ - n. 2, 115 privilege.” Id. at S.Ct. at 2296 Helms, (quoting at 2298 Hewitt S.Ct. agree privi n. 2. We lost more 471-72, leges punishment as a result of his than did (1983)). The Court reworked Nevertheless, Sandin.2 inmate inquiry as follows: relevant nedy’s punishment comparable to other recognize that deprivations upheld post-Sandin States under cer- [W]e we have Nichols, create Wycoff v. tain circumstances interests cases. See 94 F.3d (8th Cir.1996) (10 рrotected by days disciplinary which are the Due Process of gener- security But these interests will days Clause. detention and 100 in maximum ally cell); limited to freedom from City restraint Callender v. Sioux Residential which, exceeding (8th Facility, while not sentence Treatment 88 F.3d Cir.1996) (revocation unexpected give such an manner as to rise of work and re release protection by Thalacker, of prison); Due Proсess Clause turn to Moorman force, Cir.1996) (transfer its own imposes atypical nonetheless from and significant hardship medium-security minimum- to ordinary days highest-level detention, relation incidents of days life. and 107 of less-restrictive According Magistrate confinement.) Judge’s findings, solitary punitive Inmates in iso- primaiy difference between administrative lation also face restrictions on mail and tele- segregation punitive phone privileges ‍‌​​​​​​‌​‌‌‌‌‌‌‌​​​​‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌‌​‌‌​‌‌‌​‍(privileged emergency isolation in Arkansas mail and privilege working (the accompanying only), privileges calls visitation at- inmate’s good segregation torney only, general biweekly time credits. Administrative rather than visita- tion), commissary personal privileges, pos- inmates who work are also entitled a shower materials, text, change clothing they (legal religious and a Dеspite soap, sessions toothbrush, "isolation,” washcloth, implication toothpaste, pa- term and toilet punitive Thus, per only). although prisoners inmates in isolation are housed in two- in Arkansas cells, while segre- apparently punitive four-man all administrative refer isolation "the hole,” (In gation abundantly description inmates live in two-man cells. con- clear that that trast, significant apparеntly exaggeration the inmate in Sandin was is a of actual conditions. detention). only argument is that Considering all the circum stances, transfer the state failed follow its own failed to afford him the due segregation rules and thus from administrative departure mandated not “a dramatic of law Constitution. isolation was above, But, Pro of his confinement as we have stated the Due the basic conditions” atypicаl, type pro constitute “the Clause does not federalize state-law thus does not cess result, might a state significant deprivation requirements. in which As a Kenne cedural liberty interest.” San conceivаbly dy’s Hughes create a must fail. See v. Lee — din, -, Court, County at 2301. Dist. U.S. at (assertion violated its deprivation this ease Even if the procedural guidelines does not state own however, significant, atypical and wеre claim); Trickey, Swenson *4 that reversal is agree with defendants Cir.) (inmate 132, may not base 135 essence, Kennedy required. claims a still process procedural § 1983 due viola liberty interest in hav constitutional denied, law), procedural 510 of state cert. tion But in ing follow state law. state officers 568, 999, 114 S.Ct. L.Ed.2d U.S. claim, Kennedy misinterprets making this (1993) If procedural nature note, opin- mentioned earlier in this We interest,- liberty аn inter has ion, at confinement, not est in nature asked whether he procedures which the state interest in the question. been to sick call determine how he should believes it can best answer, not, aрpeared he had Wakinekona, v. See Olim confined. any contacting eliminate need the unit 1741, 1748, 103 S.Ct. U.S. staff, (“Process support- and there was evidence (1983) health is not an end L.Ed.2d impose discipline. decision to Clear- purpose protect is to itself. constitutional Its process all ly, received he was the individual interest to which McDonnell, v. entitlement.”); due under U.S. legitimate has a claim of Wolff Grif 2963, 2978-82, Delо, 94 S.Ct. L.Ed.2d fin-El (1974) (outlining safe- Cir.1994) (inmate liberty does have process requires guards that due particular procedure). Due interest disciplinary proceedings), and indeed he Fourteenth Amend Process Clause cоntrary. makes no claim to the law, ment, governs procedures depriving state must follow of the District nedy of a substantive interest. See reversed, ease Court is Jones, Vitek judgment in favor with instructions enter (1980); 1254, 1262-63, Brown 63 L.Ed.2d оf defendants. (8th Cir.1989) Frey, (“[T]he inquiry is not whether the court’s BRIGHT, concurring Judge, therefore the [state] statute and Constitution separately. but whether afforded violated on the basis that separately I concur requirements plaintiff ‘satisfied the minimum Jeremy Kennedy, received due prisoner, ”) (quoting Hew of the Due Process Clause.’ cess. itt, 871-72), 472, 103 at cert. 459 U.S. denied, 1088, 110 S.Ct. issue in this 493 U.S. I would not reach argue that the Due Pro does not cess Clause itself creates interest case, is,

beyond limits or of custo “the normal

dy authorized the which the conviction has Fano, impose.”

State Meachum 215, 225, 2532, 2538,