United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

Nos. 96-2460/2461

 

Richard John Freitas, Sr., *

*

 Appellee/Cross-Appellant, *

* Appeals from the United States

 v. * District Court for the

 * Northern District of Iowa.

John Ault, *

*

Appellant/Cross-Appellee, *

*

 and *

*

Irene G. Howard, *

*

Defendant/Cross-Appellee. *

 

 Submitted: February 12, 1997

 Filed: April 4, 1997 

 

Before RICHARD S. ARNOLD, Chief Judge, and HANSEN and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

 

MORRIS SHEPPARD ARNOLD, Circuit Judge.

John Ault, one of the defendants in a suit brought under 42 U.S.C.

§ 1983, appeals the trial court’s ruling that a prisoner’s due process

rights were violated when he was transferred to a higher-security facility

without a hearing. He also appeals the amount of the damage award. The

prisoner, Richard John Freitas, Sr., cross-appeals the amount of damages

awarded to him, one of the trial court’s factual findings, and the trial

court’s 
2

holding that he was not sexually harassed by Irene G. Howard, a prison

official. We affirm in part and reverse in part.

I.

After Mr. Freitas, an inmate at Iowa’s minimum-security North Central

Correctional Facility (“NCCF”), was assigned to a job as a painter under

the supervision of Ms. Howard, a romantic relationship developed between

the two that lasted several months. Mr. Freitas and Ms. Howard would meet

in secluded areas of NCCF, where they would kiss, hug, and talk. At

Ms. Howard’s request, Mr. Freitas would write her “hot sexy” letters

approximately every other day, and Ms. Howard occasionally dressed in tight

skirts and high heels for Mr. Freitas’s benefit. 

Although the two discussed living together upon Mr. Freitas’s

release, Ms. Howard was apparently less serious about the relationship than

Mr. Freitas, for she saw and slept with other men. After Mr. Freitas

learned from Ms. Howard that a male companion would be staying with her

over the weekend, he decided to inform Mr. Ault, the warden of NCCF, about

the relationship. Mr. Freitas wrote Mr. Ault a letter informing him of the

affair between the two in which he used the word "relationship" to

characterize their interactions and stated that "I’ve been as much at

fault" as Ms. Howard and that "[t]his isn’t all my fault." 

Mr. Ault read the letter, called Mr. Freitas into his office, and

asked him to describe in writing his interactions with Ms. Howard.

Mr. Freitas complied, producing a three-page statement in which he

described the relationship and stated that he was "ending things" because

Ms. Howard had lied to him. To avoid possible disruptions at NCCF,

Mr. Ault immediately transferred Mr. Freitas to the Iowa Men’s Reformatory

in Anamosa (“Anamosa”), 
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a medium-security institution in which Mr. Freitas had been housed before

coming to NCCF. 

Contrary to state and prison policies, Mr. Freitas received no

written notice of his transfer to Anamosa and no oral or written notice

that he had violated any NCCF rules, and he neither met with the NCCF

classification committee (the group that ordinarily considers transfers and

assignments) nor received a hearing. At the time of Mr. Freitas’s

transfer, it was anticipated that a disciplinary report would follow,

although none did. Upon his arrival at Anamosa, therefore, Mr. Freitas was

placed in administrative segregation. When no disciplinary report

followed, he was placed in “on-call” status for thirty days. Mr. Freitas

slowly regained Level V status, which he had at NCCF, but even then, he

enjoyed fewer privileges than at NCCF. 

Unhappy with all of these events, Mr. Freitas brought an action under

42 U.S.C. § 1983 against Mr. Ault and Ms. Howard, asserting that his due

process rights had been violated when he was transferred to Anamosa without

a hearing and that Ms. Howard had sexually harassed him. After a bench

trial, the district court found for Mr. Freitas on the due process claim

and for Ms. Howard on the sexual harassment claim. (Mr. Freitas was

eventually paroled to his sister in Maine but was later convicted of a

different, unrelated offense in Iowa and is now back in the Iowa Department

of Corrections system.) 

II.

On appeal, Mr. Ault argues that the trial court misapplied Sandin v.

Connor, 115 S. Ct. 2293 (1995), in holding that he violated Mr. Freitas’s

due process rights by involuntarily transferring him to another prison

without a hearing. We agree. In Sandin, the Supreme Court redefined the

analysis for determining 
4

whether a state has created a liberty interest on the part of prisoners

that would implicate the Due Process Clause of the Fourteenth Amendment.

The Court believed that its prior cases improperly emphasized the presence

of mandatory language in state statutes and regulations giving rise to the

claimed liberty interests. Id. at 2299. The Court held that the focus

should properly be on whether the deprivation alleged by the prisoner

imposed “atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Id. at 2300. In Mr. Freitas’s case,

the trial court erroneously relied on mandatory language in certain state

and prison policies to determine that Mr. Freitas had a liberty interest

in not being transferred without a hearing, and then held that the

resulting deprivation of a hearing was a denial of due process because

Mr. Freitas's transfer to a higher-security institution imposed an

“atypical and significant hardship,” id., on him. 

The appropriate inquiry is whether the conditions of Mr. Freitas’s

confinement after his transfer constituted a hardship that could reasonably

be characterized as "atypical and significant," id. See, e.g., Wycoff v.

Nichols, 94 F.3d 1187, 1189-90 (8th Cir. 1996). It is undisputed that

Mr. Freitas’s transfer resulted in several changes in the conditions of his

confinement. Upon his arrival at Anamosa, Mr. Freitas was placed in

administrative segregation ("lock-up") for ten days while NCCF officials

contemplated whether to take disciplinary action against him. While in

"lock-up," Mr. Freitas was allowed out of his cell for approximately one

hour a day. After no disciplinary action followed, Mr. Freitas was

released into the general prison population and placed in "on-call" status

for thirty days. During that time, Mr. Freitas was allowed out of his cell

a few hours each day and could have a limited number of visitors, but he

could neither work nor enjoy phone privileges. 
5

Mr. Freitas did not regain Level V status for approximately three

months. Even then, however, Mr. Freitas enjoyed fewer privileges than he

had at NCCF. He had fewer phone and visiting rights, his ability to keep

personal items in his cell was restricted, he was required to be in his

cell more often, his movements within the prison were limited more, and he

was in a higher-security facility. The job that Mr. Freitas eventually

gained at Anamosa paid significantly less than his job at NCCF, and

Mr. Freitas also lost the ability to earn a "good time" work bonus during

the interim between his arrival at Anamosa and his new job, although this

loss evidently had no practical effect on the duration of his sentence,

because he was paroled approximately sixteen years before his release date

and no previously earned time was revoked. 

Mr. Freitas contends that the transfer deprived him of a favorable

parole opportunity by causing his cousin to decide not to sponsor him after

his release. The trial court found, however, that something that occurred

between him and his cousin during a visit after his transfer caused her to

change her mind. After a careful review of the record, we believe that

that finding is not clearly erroneous and therefore find that the

transfer’s effects were limited to the undisputed facts described above.

 

We believe that as a matter of law these conditions do not

constitute an "atypical and significant" hardship, Sandin, 115 S. Ct. at

2300, when compared to the burdens of ordinary prison life. Although

Anamosa was a higher-security institution and presented a more restrictive

environment than NCCF, there is no liberty interest in assignment to any

particular prison. See, e.g., Moorman v. Thalacker, 83 F.3d 970, 973 (8th

Cir. 1996) (transfer from minimum- to medium-security institution). We

fail to understand, moreover, why a return to an institution previously 
6

inhabited by an inmate whose custody rating matches that of the institution

can be a departure from the ordinary incidents of prison life. See, e.g.,

Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666, 669

(8th Cir. 1996) (return to prison previously inhabited by inmate upon

revocation of work release). 

Nor are the ten days of administrative segregation endured by

Mr. Freitas, and the thirty days of "on-call" status, the kind of "atypical

and significant" deprivations, Sandin, 115 S. Ct. at 2300, that create a

liberty interest. See, e.g., Kennedy v. Blankenship, 100 F.3d 640, 642-43

(8th Cir. 1996) (thirty days of "punitive isolation" instead of lessrestrictive administrative segregation); Wycoff, 94 F.3d at 1190 (ten days

of disciplinary detention and 100 days in maximum-security cell); and

Moorman, 83 F.3d at 973 (fifteen days of highest-level disciplinary

detention and 107 days of less-restrictive disciplinary detention).

Neither Mr. Freitas’s loss of a higher-paying job and other privileges,

see, e.g., Callender, 88 F.3d at 669, nor the lost ability to earn good

time (when no previously earned bonus time had been revoked and the loss

evidently had no other practical effect on Mr. Freitas’s sentence), see,

e.g., Moorman, 83 F.3d at 973, constitutes an atypical hardship. 

Because we hold that the conditions of Mr. Freitas’s confinement

after the transfer do not represent an "atypical and significant"

deprivation, Sandin, 115 S. Ct. at 2300, when compared to the ordinary

incidents of prison life, we reverse the trial court’s judgment for

Mr. Freitas. We accordingly have no need to address Mr. Freitas’s

contention that the amount of the damages awarded to him was inadequate.
7

III.

On cross-appeal, Mr. Freitas contends that the trial court erred in

finding in favor of Ms. Howard on his sexual harassment claim. While we

have previously held that prisoners can state a cause of action for sexual

harassment under 42 U.S.C. § 1983, Watson v. Jones, 980 F.2d 1165, 1166

(8th Cir. 1992), we have never specified the underlying basis for such

claims. We believe that because the sexual harassment or abuse of an

inmate by a corrections officer can never serve a legitimate penological

purpose and may well result in severe physical and psychological harm, such

abuse can, in certain circumstances, constitute the "'unnecessary and

wanton infliction of pain,'" Whitley v. Albers, 475 U.S. 312, 319 (1986),

quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (opinion of Stewart,

Powell, and Stevens, JJ.), forbidden by the Eighth Amendment. Accord, see

Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir. 1997); Harris v.

Ostrout, 65 F.3d 912, 915-16 (11th Cir. 1995) (per curiam); and Jordan v.

Gardner, 986 F.2d 1521, 1524-25 (9th Cir. 1993) (en banc). To prevail on

a constitutional claim of sexual harassment, an inmate must therefore

prove, as an objective matter, that the alleged abuse or harassment caused

"pain" and, as a subjective matter, that the officer in question acted with

a sufficiently culpable state of mind. See, e.g., Hudson v. McMillian, 503

U.S. 1, 8 (1992).

 Mr. Freitas argues that the trial court erred in its analysis by

holding that Ms. Howard’s actions did not cause him "pain." After a careful

review of the record, we are certain that the trial court did not clearly

err in finding that the relationship between Mr. Freitas and Ms. Howard was

consensual and that Mr. Freitas welcomed it. The trial court found that

although Ms. Howard initiated the relationship, both she and Mr. Freitas

helped perpetuate it. Mr. Freitas, for example, initiated the first kiss

between the two, wrote Ms. Howard "hot sexy" letters approximately 
8

every other day, and discussed with her the possibility of living together

after his release. The manner in which Mr. Freitas described the nature

of the relationship, moreover, suggests that Mr. Freitas did not find

Ms. Howard’s attention unwelcome. Mr. Freitas himself used the term

"relationship" to describe the interactions between him and Ms. Howard (an

unlikely characterization if their arrangement was not, in fact,

voluntary), tacitly admitted that he bore some responsibility for the

affair by writing that "[t]his isn’t all my fault," and indicated that the

reason that he ended the relationship was because he felt hurt that she had

lied to him. 

The record contains no evidence, other than Mr. Freitas's

unsubstantiated assertions, supporting his claim that he succumbed to

Ms. Howard’s advances because she was his boss and he feared the possible

negative consequences of reporting her actions. In short, there is not

much evidence suggesting that Ms. Howard put Mr. Freitas in a "no-win"

situation, and, more to the point, there is ample evidence supporting the

trial court’s finding that their relationship was consensual in the freest

sense of the word. Without deciding at what point unwelcome sexual

advances become serious enough to constitute "pain," we hold that, at the

very least, welcome and voluntary sexual interactions, no matter how

inappropriate, cannot as matter of law constitute "pain" as contemplated

by the Eighth Amendment. Because we hold that Mr. Freitas has not

established the existence of the objective component of a cause of action

under the Eighth Amendment, we need not discuss the subjective component.

We therefore reject Mr. Freitas’s argument that the trial court erred in

finding for Ms. Howard on his sexual harassment claim. 
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IV.

For the foregoing reasons, we reverse the trial court’s holding that

Mr. Ault violated Mr. Freitas’s due process rights by transferring him to

Anamosa without a hearing. We affirm the trial court’s holding with

respect to the sexual harassment claim against Ms. Howard. Finally, we

remand the case to the trial court for the entry of an appropriate

judgment.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.