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 SHEPPAR D ARNOLD, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.

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

. § 198 3, appeals the trial court’s ruling that a prisoner’s due proces s 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

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holding that he was not sexually harassed by Irene G. Howard, a priso n official. We affirm in part and reverse in part.

I. After Mr. Freitas, an inmate at Iowa’s minimum-security North C entral 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 seclude d areas of NCCF, where they would kiss, hug, and talk. A t Ms. Howard’s request, Mr. Freitas would write her “hot sexy” letter s approximately every other day, and Ms. Howard occasionally dressed in tigh t 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 tha n Mr. Freit as, for she saw and slept with other men. After Mr. Freita s learned f rom Ms. Howard that a male companion would be staying with he r 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 th e aff air between the two in which he used the word "relationship" t o charact erize their interactions and stated that "I’ve been as much a t fault" as Ms. Howard and that "[t]his isn’t all my fault."

Mr. Ault read the letter, called Mr. Freitas into his office, an d asked hi m to describe in writing his interactions with Ms. Howard

. Mr. Fr eitas complied, producing a three-page statement in which h e described the relatio nship and stated that he was "ending things" because Ms. Howar d 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 ins titution in which Mr. Freitas had been housed before coming to NCCF.

Contrary to state and prison policies, Mr. Freitas received n o written n otice of his transfer to Anamosa and no oral or written notic e that he h ad violated any NCCF rules, and he neither met with the NCC F classification committee (the group that ordinarily considers transfers an d
ass ignments) nor received a hearing. At the time of Mr. Freitas’ s transf er, it was anticipated that a disciplinary report would follow , although none did. Upon his arrival at Anamosa, therefore, Mr. Freitas wa s placed in administrative segregation. When no disciplinary repor t followed, he was plac ed in “on-call” status for thirty days. Mr. Freitas slowly regained Level V status, which he had at NCCF, but even then, h e 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 withou t
a heari ng and that Ms. Howard had sexually harassed him. After a benc h trial, the district court found for Mr. Freitas on the due process claim and fo r Ms. Howard on the sexual harassment claim. (Mr. Freitas wa s 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 Departmen t 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 pr ocess rights by involuntarily transferring him to another priso n without a hearing. W e agree. In Sandin , the Supreme Court redefined the analysis for determining

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whether a state has created a liberty interest on the part of prisoner s that would implicate the Due Process Clause of the Fourteenth Amendment. The Court believed that its prior cases improperly emphasized the presenc e of mandatory language in state statutes and regu lations giving rise to the claimed liberty interests. Id. at 2299. The Court held that the focu s should properly be on whether the deprivation alleged by the prisone r imposed “atypical and significant hardship on the inmate in relation to th e 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 th e resul ting deprivation of a hearing was a denial of due process becaus e Mr. Freitas's transfer to a higher-security institution imposed a n “atypical and significant hardship,” id. , on him. The appro priate inquiry is whether the conditions of Mr. Freitas’s confinement after his transfer constituted a hardship that could reasonabl y 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 tha t Mr. Freitas’s transfer resulted in several changes in the conditions of hi s conf inement. Upon his arrival at Anamosa, Mr. Freitas was placed i n administrative segregation ("lock-up") for ten days while NCCF officials

con templated whether to take disciplinary action against him. While i n "lock-up," Mr. Freitas was allowed out of his cell for approximately one hour a da y. After no disciplinary action followed, Mr. Freitas wa s 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 cel l
a few hours each day and could have a limited number of visitors, but he could neither work nor enjoy phone privileges.

### 5 Mr. F reitas did not regain Level V status for approximately thre e months. Even then, h owever, Mr. Freitas enjoyed fewer privileges than he had at NCCF. He had fewer phone and visiting rights, his ability to keep persona l items in his cell was restricted, he was required to be in hi s cell more often, his movements within the prison were limited more, and he

was in a higher-security facility. The job that Mr. Freitas eventuall y gained at Anamosa paid significantly less than his job at NCCF, an d Mr. Freitas also lost the ability to earn a "good time" work bonus during the interim between h is 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 yea rs before his release date and no previously earned time was revoked.

Mr. Frei tas contends that the transfer deprived him of a favorabl e parole opportunity by causing his cousin to decide not to sponsor him afte r his release. The trial court found, however, th at 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 tha t that finding is not clearly erroneous and therefore find that th e transfer’s effects were limited to the undisputed facts described above.

We believe that as a matter of law these conditions do no t constitute an "atypical and significant" hardship, Sandin , 115 S. Ct. at 2300, when compared to the burdens of ordinary prison life. Althoug h Anamosa was a higher-security institution and pr esented a more restrictive environment than NCCF, there is no liberty interest in assignment to any particular prison. See , e.g. , Moorman v. Thalac ker , 83 F.3d 970, 973 (8th Cir. 1 996) (transfer from minimum- to medium-security institution). W e fail to understand, moreover, why a return to an institution previously

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inhabited by an inmate whose custody rating matches that of the institutio n can be a departure from the ordinary incidents o f prison life. See , e.g. , Callender v. Sioux City Residential Treatment Facility , 88 F.3d 666, 669 (8th Ci r. 1996) (return to prison previously inhabited by inmate upo n revocation of work release).

Nor are the ten days of administrative segregation endured b y Mr. Freitas, and the thirty days of "on-call" status, the kind of "atypica l and significant" deprivations, Sandin , 115 S. Ct. at 2300, that create a liberty interest. See , e.g. , Kennedy v. Blanken ship , 100 F.3d 640, 642-43 (8th Ci r. 1996) (thirty days of "punitive isolation" instead of less

restrictive administrative segregation); Wycoff , 94 F.3d at 1190 (ten days of dis ciplinary detention and 100 days in maximum-security cell); an d Moorma n , 83 F.3d at 973 (fifteen days of highest-level disciplinar y detention and 107 days of less-restrictive disciplinary detention)

. Nei ther 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 goo d 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.

Becau se we hold that the conditions of Mr. Freitas’s confinemen t after the transfer do not represent an "atypical and significant " depri vation, Sandin , 115 S. Ct. at 2300, when compared to the ordinar y incidents of prison life, we reverse the trial court’s judgment fo r 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 suc h cla ims. We believe that because the sexual harassment or abuse of a n inmate by a corrections officer can never serve a legitimate penological purpose and may well result in severe physical and psychological harm, suc h abuse c an, in certain circumstances, constitute the "'unnecessary an d 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 Eigh th 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 152 1, 1524-25 (9th Cir. 1993) ( en banc ). To prevail on
a cons titutional claim of sexual harassment, an inmate must therefor e prove, as an objective matter, that the alleged abuse or harassment caused "pain" and, as a subjective matter, that the officer in question acted wit h
a sufficiently culpable state of mind. See , e.g. , Hudson v. McMillian , 50 3 U.S. 1, 8 (1992). Mr. Frei tas argues that the trial court erred in its analysis b y holding that Ms. Howard’s actions did not cause him "pain." After a carefu l 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 wa s 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

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every other day, and discussed with her the poss ibility 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 fin d Ms. Howard’s attention unwelcome. Mr. Freitas himself used the ter m "relationship" to describe the interactions betw een him and Ms. Howard (an unlike ly characterization if their arrangement was not, in fact , volunt ary), tacitly admitted that he bore some responsibility for th e affair by writing that "[t]his isn’t all my faul t," and indicated that the
reason that he ended the relationship was because he felt hurt that she ha d lied to him.

The r ecord contains no evidence, other than Mr. Freitas' s unsubst antiated assertions, supporting his claim that he succumbed t o Ms. Howard’s advances because she was his boss and he feared the possible negative consequences of reporting her actions. In short, there is no t 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 wa s consensual in the freest
sense of the word. Without deciding at what point unwelcome sexua l advances become serio us enough to constitute "pain," we hold that, at the very l east, welcome and voluntary sexual interactions, no matter ho w inappropriate, cannot as matter of law constitute "pain" as contemplated by the Eighth Amendment. Because we hold that Mr. Freitas has no t established the exist ence of the objective component of a cause of action under the Eighth Amen dment, 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.

### 9 IV. For the foregoing reasons, we revers e the trial court’s holding that Mr. Ault violated Mr. Freitas’s due process rights by transferring him to Anam osa without a hearing. We affirm the trial court’s holding wit h respect to the sexual harassment claim against Ms. Howard. Finally, w e remand the case to the trial court for the entry of an appropriat e judgment.

A true copy.

Attest:

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