Ninth Circuit: 27-Month Segregation Implicates Due Process Liberty Interest

by Mark Wilson

On May 4, 2014, in a corrected decision, the Ninth Circuit Court of Appeals held that lengthy segregation without periodic, meaningful reviews may give rise to a protected liberty interest.

In addition to general population housing, the Oregon Department of Corrections (ODOC) confines prisoners in an Administrative Segregation Unit (ASU), Disciplinary Segregation Unit (DSU) and Intensive Management Unit (IMU).

ASU confinement may result from a prisoner’s “notoriety, actions, or threats.” Such confinement may not exceed 30 days “without a hearing and status review,” and may not exceed 180 days “without ‘due process.’” ASU conditions are less restrictive than IMU, in that prisoners are “afforded access to telephones, televisions, computers, and personal shoes and other property.” They are also “permitted seven hours of recreation per week and are not required to participate in behavior-modification programs.”

Prisoners are placed in DSU for violating prison rules; DSU confinement may not exceed 180 days, and prisoners “are entitled to thirty-day ‘assessment’ reviews” to evaluate “whether to recommend their early release from segregation.” While DSU and IMU conditions are similar, DSU prisoners “are not required to participate in behavior-modification programs.”

All custody Level 5 prisoners are confined “in the IMU or an IMU-status cell, and that status remains until the inmate ‘is manually scored to a lower custody classification level....’” That typically occurs after the prisoner has served 180 days in DSU for a Level 1 disciplinary offense. Yet prisoners may receive a Level 5 classification – ODOC’s highest custody level – without committing any disciplinary violations.

IMU is ODOC’s most restrictive confinement, where prisoners are held in segregation for 23 hours, 20 minutes a day. They may spend 15 minutes exercising “within a fifteen by forty-foot room with high, concrete walls covered by a metal grate.” General population prisoners, in contrast, receive 2-5 hours of daily outdoor exercise and 25-30 hours of weekly recreation and social interaction.

IMU prisoners can receive only “two non-contact visits per month and a maximum of two visitors in a six-month period.” General population prisoners, in contrast, can have up to 22 contact visits from an unlimited number of approved visitors each month.

Prisoners in IMU are also denied “access to the prison and law libraries, group religious worship, education and vocational opportunities,” non-emergency telephone access and televisions. Their personal property and commissary privileges are significantly curtailed.

IMU prisoners are assigned a “‘Programming Level’ between 1 and 4.” Level 1 living conditions are the harshest while Level 4 conditions are the least restrictive. Prisoners are initially assigned to Level 2 and “given mandatory behavior-modification programs comprising individual program ‘packets.’”

To obtain release from IMU, prisoners must attain Level 4 and “successful completion” of all assigned program packets. They may complete only one packet in a two-week period, so the length of IMU confinement depends on the number of packets assigned by prison officials.

In 2008, the ODOC abolished its previous practice of semi-annual IMU classification reviews, replacing them with monthly “programming” reviews.

Within 30 days of a prisoner’s achievement of Level 4 status, prison officials must issue a recommendation for or against their release from IMU. The bases for such recommendations are not defined by rule and many prisoners are indefinitely segregated in IMU.

In 2008, ODOC prisoner Joshua R. Brown was found in possession of a weapon, assigned a Level 5 custody classification and placed in IMU – presumably after serving time in DSU for the weapon offense.

Prison officials assigned Brown 53 behavior-modification program packets, of which 30 had no relevance to his disciplinary violation, possession of a weapon, or to “IMU’s stated security objectives.” His release from IMU was contingent upon his successful completion of all 53 packets.

Given that Brown was allowed to complete just one packet every two weeks, he was required to serve at least 106 weeks (i.e., 26.5 months) in IMU, “regardless of the appropriateness of his continued segregation.”

Brown ultimately served 27 months in IMU, from June 18, 2009 until September 22, 2010. During that time he submitted eight classification review requests. Each request was denied, and his custody level was never reviewed until the IMU release decision.

Brown filed suit, alleging that ODOC officials had violated his due process rights by failing to provide periodic, meaningful reviews of his IMU confinement. The district court granted summary judgment to the defendants, concluding that prison officials had conducted monthly “programming reviews,” and Brown was not entitled to due process protections because IMU conditions were not atypical and significant in comparison to ASU or DSU conditions.

The Ninth Circuit disagreed. The Court of Appeals recognized “that the baseline for determining ‘atypical and significant hardship’” as required by Sandin v. Conner, 515 U.S. 472 (1995) [PLN, Aug. 1995, p.1] was “not entirely clear.” Nevertheless, the Court found that it “need not locate the appropriate baseline here because Brown’s twenty-seven month confinement in the IMU imposed an atypical and significant hardship under any plausible baseline,” which meant he had “a protected liberty interest” in his IMU placement.

“The record shows – and defendants’ counsel conceded at oral argument – that Brown received no meaningful review of his IMU confinement for twenty-seven months,” the appellate court observed. “Given that prison officials lack discretion to promote an inmate from one programming level to another or to release an inmate from IMU before he completes the assigned packets, Brown’s programming reviews were essentially meaningless.”

Since Brown had been released from IMU, however, the Ninth Circuit held that the district court had properly denied his requested declaratory judgment, and his damage claims against ODOC were barred by Eleventh Amendment immunity.

Finally, the Court of Appeals held that the individual defendants were entitled to qualified immunity. “Until now, this court has not addressed whether the absence of post-placement periodic, meaningful review of confinement in a disciplinary-segregation unit may give rise to a protected liberty interest,” the Court wrote. Therefore, it could not “hold defendants liable for the violation of a right that was not clearly established at the time the violation occurred.” The Ninth Circuit’s decision now makes that right clearly established, though it did not benefit Brown, as his claims were dismissed based on qualified immunity. See: Brown v. ODOC, 751 F.3d 983 (9th Cir. 2014).

Subscribe today

Already a subscriber? Login

Related legal case