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[W] Weems v. Delo, 52 F.3d 175 (8th Cir. 04/07/1995)



[Editor's note: footnotes (if any) trail the opinion]

[1] No. 94-3302

[2] Michael Weems,

[3] Plaintiff/Appellee,

v.

[4] Paul K. Delo, William Govero,

[5] Defendants;

[6] Donna McCondichie,

[7] Defendant/Appellant;

[8] Robert O'Brien,

[9] Defendant.

[10] Appeal from the United States District Court for the Eastern District of Missouri.

[11] Submitted: February 13, 1995

[12] Filed: April 7, 1995

[13] Before MCMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

[14] MORRIS SHEPPARD ARNOLD, Circuit Judge.

[15] Donna McCondichie appeals a judgment in favor of Michael Weems, a former inmate at Potosi Correctional Center, in a civil rights action. The basis of the lawsuit was Weems's claim that McCondichie, whose title was functional unit manager of the administrative segregation unit at the prison, failed in her duty to assure his timely release from administrative segregation. The jury awarded Weems $2,600 in actual damages and $1,500 in punitive damages. On appeal, McCondichie argues that the district court*fn1 should have granted her motion for judgment as a matter of law or, alternatively, for a new trial because Weems had no liberty interest in the administrative segregation review procedures, because Weems presented inadequate evidence regarding McCondichie's conduct, and because McCondichie was entitled to qualified immunity. In addition, McCondichie claims that the district court offered incorrect instructions to the jury.

[16] We affirm.

I.

[17] At all times relevant to this appeal, Weems was incarcerated at the Potosi Correctional Center in Mineral Point, Missouri. On November 22, 1990, Weems requested and was given a small amount of household cleanser to clean the sink and toilet in his cell. Later that day, Correctional Officer Robert O'Brien confiscated the cleanser and reported the discovery of an unidentified white powder in Weems's cell. Five days later, Weems was placed in temporary administrative segregation pending identification of the white powder. On December 4, 1990, a committee headed by Donna McCondichie confirmed Weems's assignment to administrative segregation for the duration of the investigation. Although the Jefferson County Crime Lab had issued a report the same day stating that the powder contained nothing of "evidential value," such reports ordinarily arrived at the prison between a week and a month after their issuance. The administrative segregation committee failed to hold the requisite thirty-day hearing to review Weems's status as scheduled on January 4, 1991, and he remained in administrative segregation until January 26, 1991.

[18] During the period that Weems spent in administrative segregation, he received three conduct violations. In the last of these citations, issued the day before his release, O'Brien charged Weems with having possessed "contraband" two months earlier, despite having learned that the white powder was a bicarbonate chemical rather than an illegal drug. This conduct violation was later expunged from Weems's record.

[19] Weems originally brought this action pursuant to 42 U.S.C. Section(s) 1983, 1985, and 1988 against four employees at the prison, Superintendent Paul Delo, Lieutenant William Govero, O'Brien, and McCondichie. The district court granted summary judgment in favor of Delo and, at trial, judgment as a matter of law in favor of Govero. The district court ruled against O'Brien, who is no longer employed at the prison, and entered judgment in the amount of $1.00. McCondichie is the sole appellant.

II.

[20] We review de novo the district court's denial of McCondichie's motion for judgment as a matter of law or, alternatively, for a new trial. Mediatronic, Inc. v. ConvaCare, Inc., 17 F.3d 252, 255 (8th Cir. 1994). McCondichie initially claims that Weems had no liberty interest in a thirty-day review of his confinement in administrative segregation. While the Due Process Clause creates no protected liberty interest in remaining among the general prison population, a state statute may create such an interest by the use of mandatory language in connection with requiring specific substantive predicates. Hewitt v. Helms, 459 U.S. 460, 471-2 (1983). According to Mo. Rev. Stat. Section(s) 217.375.2 (1990), a "review hearing shall be held for each offender detained in administrative segregation thirty days after the initial period of confinement and every ninety days thereafter." The Missouri Supreme Court, applying the standard set forth in Hewitt, determined that by "using the mandatory language `shall' in Section(s) 217.375.2, the General Assembly has created a right, after a prisoner is transferred to administrative segregation, to a review procedure." State ex rel. Haley v. Groose, 873 S.W.2d 221, 224 (Mo. 1994) (en banc). We therefore conclude that Weems had a due process liberty interest in the thirty-day administrative segregation review hearing that was scheduled for January 4, 1991, but failed to occur.

[21] McCondichie next argues that she was entitled to judgment as a matter of law because there was insufficient evidence to support a jury verdict against her. As the functional unit manager of the administrative segregation unit, however, McCondichie was responsible for regular review of inmates' administrative segregation status. Furthermore, there exists some disagreement as to when McCondichie knew or should have known of the results of the analysis of the white powder. The laboratory issued its report on December 4, 1990, and such reports ordinarily arrived at the prison between one week and one month after the date of issuance. Thus the report should have been available to McCondichie no later than January 4, 1991, the scheduled date of the thirty-day review hearing. Given these facts, Weems's claim that McCondichie had denied his due process liberty interest in a timely review of his administrative segregation status was adequate for submission to a jury.

[22] Finally, McCondichie claims that the district court should have granted her motion for judgment as a matter of law because she was entitled to qualified immunity. Although prison officials "may generally rely on the defense of qualified immunity to protect them from liability for civil damages," Hall v. Lombardi, 996 F.2d 954, 957 (8th Cir. 1993), that defense is valid only "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). At the time of Weems's retention in administrative segregation, the Supreme Court had already ruled that a Pennsylvania statute using mandatory language to prescribe review procedures for confinement of prisoners in administrative segregation created a liberty interest. Hewitt v. Helms, 459 U.S. at 471-72. The Missouri Court of Appeals, moreover, had determined that an earlier version of the statute implicated in the present case created a protected liberty interest under the standards set forth in Hewitt. Howard v. Armontrout, 729 S.W.2d 547, 549 (Mo. Ct. App. 1987). McCondichie was therefore on notice that Weems had an established statutory right to a timely hearing, and violation of that right was not shielded from a civil suit by her qualified immunity. Thus the district court correctly denied McCondichie's motion for judgment as a matter of law or, alternatively, for a new trial.

III.

[23] McCondichie further argues that even if the claims brought by Weems were submissible to a jury, the district court offered improper jury instructions. "When considering a challenge to jury instructions, the `general rule is that the instructions must be read as a whole and considered in light of the entire charge.'" Tribble v. Westinghouse Elec. Corp., 669 F.2d 1193, 1197 (8th Cir. 1982) (quoting King v. State Farm Life Ins. Co, 448 F.2d 597, 600 (8th Cir. 1971)).

[24] The first contested instruction, number five, sets forth the elements required to find McCondichie liable under the standards set forth by the Supreme Court in Hewitt v. Helms, 459 U.S. 460. This instruction was submitted originally by McCondichie, who objects only to the district court's elimination of a requirement of proof that she knew when the investigation of Weems was completed. Such knowledge, or lack thereof, is irrelevant to the determination of whether McCondichie failed in her statutory duty to review Weems's administrative segregation status after thirty days. Since the right to a thirty-day review was independent of the progress of the investigation, McCondichie's inaction violated a protected liberty interest. The district court thus properly instructed the jury regarding McCondichie's liability.

[25] The second contested instruction, number seven, describes the requirements for an award of punitive damages. McCondichie objects to the district court's elimination of a required finding that she acted with "evil motive or intent." The instruction submitted to the jury required only a finding that McCondichie was "reckless and callously indifferent" to Weems's due process rights. As the instruction's language regarding mental state was identical to that upheld by the Supreme Court in Smith v. Wade, 461 U.S. 30, 51 (1983), however, we conclude that the instruction provided the jury with the appropriate guidance regarding the prerequisites for and purpose of punitive damages. McCondichie's objections to the district court's jury instructions are therefore without merit.

IV.

[26] For the foregoing reasons, we affirm the jury verdict entered by the district court in favor of Weems.

[27] A true copy.

[28] Attest:

[29] CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

***** BEGIN FOOTNOTE(S) HERE *****

[30] *fn1 The Honorable Catherine D. Perry, United States Magistrate Judge for the Eastern District of Missouri.

***** END FOOTNOTE(S) HERE *****


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