*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-60024

MARSHAUN STEWART,

Plaintiff-Appellee,

VERSUS

ROBERT ARMSTRONG, et al.,

Defendants.

ROBERT ARMSTRONG,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Mississippi

(4:96-CV-209-B-D)

February 19, 1999

Before JOLLY, WIENER and PARKER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Warden Robert Armstrong (“Armstrong”)

appeals a judgment for Plaintiff Marshaun Stewart (“Stewart”) in

this 42 U.S.C. § 1983 action. We affirm.

FACTS AND PROCEEDINGS

Marshaun Stewart, Mississippi Department of Corrections (MDOC)
 

2See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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state prisoner # 46883A, pro se and in forma pauperis, filed a

civil rights complaint against Warden Robert Armstrong, Captain

Johnny Moore, Lieutenants Horton and Horns and Dr. John Doe

pursuant to 42 U.S.C. § 1983, alleging that he was denied due

process prior to punishment following an incident in which another

inmate started a fire. The magistrate judge dismissed defendants

Moore, Horton, Horns and Doe. Following a Spears2 hearing, the

magistrate judge granted Armstrong thirty days to file a responsive

pleading. Armstrong answered the complaint and moved the court to

dismiss it.

The magistrate judge conducted an evidentiary hearing pursuant

to 28 U.S.C. § 636(b)(1)(B) at which several inmates, including

Stewart, as well as Dr. Dial, a physician with the MDOC, testified.

The evidence, viewed in the light most favorable to the judgment

challenged by Appellant Armstrong, showed the following. On April

2, 1996, Stewart was transferred from Unit 29-J of the MDOC to

protective custody. Stewart was housed in Unit 32-C until April

11, 1996, when he was transferred without a classification hearing

to Unit 32-A, a “fire reduction” unit which housed known “fire

starters.” On May 28, 1996, another inmate housed in Unit 32-A,

Tommy Dixon, started a fire. After the fire was extinguished and

Stewart and other inmates were examined for smoke inhalation,

prison staff ransacked Stewart's cell. The officers destroyed his

legal work and took legal work, underwear, shoes, soap, mattresses,

sheets, blankets, mail, toothbrush, toothpaste, and paper and

turned off the water in his cell. The water was turned back on

after seventy-two hours. Approximately ten days later, his

mattress, sheet, pillow, underwear and some personal hygiene items

were returned, then removed again on Armstrong's order. It was

twenty days before authorities returned all personal items.
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Stewart was issued a paper gown to wear until his property was

returned.

Defendant based his defense to this § 1983 action on the

contention that, after the May 28, 1996 fire, the unit had been put

on suicide watch by MDOC physicians for inmates' own protection,

not for punishment. He offered evidence that everything which

could be set on fire was removed from all the cells on Unit 32-A to

keep the inmates from hurting themselves. The magistrate judge

noted that no explanation was given for turning off the water in

the cells. 

Following the hearing, the magistrate judge recommended that

judgment be entered for Stewart in the amount of $50 for each of

ten days for a total of $500. Armstrong filed objections to the

magistrate judge's report. The district court adopted the

magistrate judge's report and recommendations and granted a $500

judgment for Stewart, specifically finding that “Armstrong was

responsible for the implementation of the suicide watch, including

the turning off of the water, for which no explanation was

offered.” Armstrong appealed the district court's determination of

liability. He does not challenge the amount of damages awarded.

DEFENDANT'S CHALLENGE TO MAGISTRATE JUDGE'S FINDINGS OF FACT

Armstrong challenges the district court's fact finding that

Stewart's cell was stripped as a form of punishment on Armstrong's

order. A magistrate judge's evidentiary hearing “amounts to a

bench trial replete with credibility determinations and findings of

fact.” See McAfee v. Martin, 63 F.3d 436, 437 (5th Cir. 1995). We

review factual findings under a clearly erroneous standard of

review and legal conclusions de novo. See Newton v. Black, 133

F.3d 301, 305 (5th Cir. 1998).

Armstrong argues that the only evidence offered to support the

district court finding that Stewart's cell was stripped on

Armstrong's order was hearsay or mere conclusional allegations.
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Armstrong asserts that Dr. Dial offered substantiated testimony at

the hearing that Dr. Knutson, not Armstrong, ordered the cells

stripped to protect the inmates. Dr. Dial also testified that

Stewart's cell was stripped and he was issued a paper gown for his

protection and for the protection of other inmates, not for

punishment. 

As Armstrong suggests, much of the testimony supporting a

finding that the conditions were imposed as punishment rather than

as precautionary measures for the inmates' safety consisted of

statements by the inmate witnesses that they believed they were

being punished or on hearsay. Armstrong does not dispute the

evidence that he personally investigated the fire started by Dixon.

In addition to the inmates' statements that they were being

punished, inmate Rankin testified, without objection on grounds of

hearsay or otherwise, that the inmates were advised that they were

being punished. Stewart testified, without objection, that Captain

Moore and Lieutenant Monique told him that Armstrong was upset

because the inmates had received their property back in ten days

and that thereafter the property was removed for another twenty

days. The determination to credit the plaintiff's evidence, while

disbelieving the defendant's evidence was squarely within the

purview of magistrate judge in his role as fact finder.

The magistrate judge's factual finding, adopted by the

district court, that the stripping of Stewart's cell, the removal

of his personal property, including mattress, bedding and clothing,

and the loss of water was punishment, is not clearly erroneous.

Nor is the factual finding that Armstrong was responsible for the

implementation of that punishment clearly erroneous. 

ATYPICAL, SIGNIFICANT DEPRIVATION

Armstrong challenges the district court determination that the

conditions to which Stewart was subjected during the cell-strip

violated his procedural due process rights. 
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“States may under certain circumstances create liberty

interests which are protected by the Due Process Clause. But these

interests will be generally limited to freedom from restraint

which, while not exceeding the sentence in such an unexpected

manner as to give rise to protection by the Due Process Clause of

its own force, nonetheless imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life.” Sandin v. Conner, 515 U.S. 472, 483-84

(1995)(internal citations omitted). In Sandin, the Supreme Court

determined that a prisoner's confinement to disciplinary

segregation for a period of thirty days did not affect the duration

of his sentence or “work a major disruption in his environment.”

Id. at 475-76, 484-86. The Court held that disciplinary

segregation, “though concededly punitive, [did] not present a

dramatic departure from the basic conditions of [the prisoner's]

indeterminate sentence.” Id. at 485. 

This court has stated that in the wake of Sandin “it is

difficult to see that any other deprivations in the prison context,

short of those that clearly impinge on the duration of confinement,

will henceforth qualify for constitutional 'liberty' status.”

Orellana v. Kyle, 65 F.3d 29, 31-32 & n.2 (5th Cir. 1995).

However, Orellana challenged the constitutionality of parole review

procedures, presenting a question concerning a prisoner's liberty

interest in obtaining parole under Texas law. Id. To the extent

that the language in Orellana can be read to address the issue of

a prisoner's liberty interest in being free from certain conditions

of confinement imposed by the prison for purposes of punishment, it

is dicta.

In this case, the district court found that the stripping of

Stewart's cell, the removal of his personal property, including

mattress, bedding and clothing, and the loss of water, constituted

punishment. The district court further found that this “was a
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significant deprivation of the basic minimal civilized measure of

life's necessities atypical of those conditions generally imposed

upon inmates.” The district court therefore held Armstrong liable

under § 1983. 

We agree. Cutting off water to Stewart's cell and depriving

him of all clothing and bedding except for a paper gown is both

significant and atypical of the hardships incident to prison life

in the MDOC. If a deprivation is significant and atypical of

prison conditions at MDOC, a prisoner is entitled to a certain

minimum level of due process prior to its imposition. See Sandin,

515 U.S. at 483-84; see also Wolff v. McDonnell, 418 U.S. 539, 556

(1974). There is no evidence that Stewart was afforded any measure

of due process prior to the stripping of his cell. Therefore, we

conclude that, pursuant to the Supreme Court's reasoning in Sandin,

515 U.S. at 483-84, the district court's finding of liability in

this case must be affirmed.

CONCLUSION

Based on the foregoing, we affirm the district court's

judgment.

AFFIRMED.