___________ No. 95-3357

___________ Roman Hemphill, * * Appellant, * * v. * * Paul K. Delo, Individually and * in his Official Capacity as the * Superintendent at Potosi * Correctional Center, * * Defendant, * Appeal from the United States * District Court for the Fred Johnson, Individually and in* Eastern District of Missouri his Official Capacity as a * Caseworker at PCC; Lonnie Salts, * [UNPUBLISHED] Individually and in his Official * Capacity as a Corrections Officer* at PCC; Ray Pogue, Individually * and in his Official Capacity as a* Function Unit Manager at FCC; * Greg Wilson, Individually and in * his Official Capacity as an * Investigator at PCC, * * Appellees. *

___________ Submitted: August 2, 1996 Filed: January 21, 1997

___________ Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.

___________

PER CURIAM.

RomanHemphill, an inmate at Potosi Correctional Center, appeal s from the final judgme nt of the District Court for the Eastern District of Missouri granting defendants summary judgment

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in this 4 2 U.S.C. § 1983 action. For the reasons discussed below, w e reverse and remand for further proceedings.

In an amended complaint, Hemphill alleged that he was denied du e proce ss in connection with a conduct violation he received on June 19 , 1992, charging him with violating Rule #3--Dange rous Contraband--for being "invol ved in the introduction and distribution of drugs into Potos i Correc tional Center." Hemphill alleged he was placed on disciplinar y segr egation--locked in his housing unit--prior to appearing before th e adjust ment board. At his disciplinary hearing, the adjustment boar d member s informed him they had received information from a confidentia l informant, but they did not disclose the informant's name or information received. Without revealing the evidence used a gainst him, the adjustment board found Hemphill guilty, sentenced him to thirty days in disciplinary segregation, referred him for criminal prosecution, and referred the matte r to the administrative segregation committee. Hemphill was assigned t o administrative segregation effective July 18, 1992, and was released to th e general population onMay 4, 1993. Hemphill claimed defendants conspired to deny h im due process and equal protection in connection with th e disciplinary action, and he sought damages.

De fendants moved for summary judgment, and submitted documentar y evidence in support. Hemphill opposed the motion. On January 30, 1995, the di strict court granted defendants summary judgment on all claims , exce pt the claim that there was insufficient evidence to support th e disciplinary action. Defendants appealed, and we remanded the case for a ruling on qualified i mmunity. Hemphill v. Johnson , No. 95-1451 (8th Cir. Mar. 15, 1995) (judgment).

On remand, defendants filed a Notice of Supplemental Authority , noting that the Supreme Court had issued its dec ision in Sandin v. Conner , 115 S. Ct. 2293, 2301 (1995) ( Sandin ), and

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arg uing that Hemphill was not entitled to the procedural protections o f Wolff v. McDonnell , 418 U.S. 539, 563-67 (1974). On August 8, 1995 , without conducting fu rther proceedings, the district court concluded that Hemphill was not entitled to due process protect ion because the punishment that he received did not present the type of "atypical, significan t deprivation" in which a state might conceivably create a liberty interest,
see Sand in , 115 S. Ct. at 2300, and that Hemphill's allegation o f insufficient evidence no longer supported a caus e of action in the wake of Sandin . The district court thus vacated its January 30 order and granted defendants summary judgment on all claims.

The Court in Sandinrecognized that
States may under certain circumstances create liber ty interests which are protected by the Due Process Clause. But thes e interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise t o protection by the Due Process Clause of its own force, noneth eless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Id. at 2300 (citations omitted).

The Co urt determined that a Hawaii inmate did not have a libert y in terest in remaining free from disciplinary segregation because th e inmate's thirty days in segregated disciplinary confinement did not presen t the type of "atypical, significant deprivation" in which a state migh t conceivablycreate a liberty interest. Id. at 2301. In reaching tha t
con clusion, the Court reviewed the record and made findings that, "wit h insignificant excepti on," the inmate's disciplinary segregation "mirrored those conditions imposed upon inmates in administrative segregation an d protective custody." Id. The Court supported its conclusion by discussin g the various custodial conditions at the particular prison in question and by demonstrating that the plaintiff's

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segregation "did not work a major disruption in his environment." Id.

In contrast to the detailed record in Sandin , the record here d id not contain and the district court did not cite any factual basis fo r concluding that the segregation at issue did not impose an "atypical and significant hardship" on Hemphill in relation to the "ordinary incidents of prison life." We agree with the circuit courts which have conclude d that this factual det ermination is required under Sandin

. See Samuels v. Mockry , 77 F.3d 34, 38 (2d Cir. 1996) (per curiam); Gotcher v. Wood , 6 6 F.3d 1097, 1101 (9th Cir. 1995) 

### , petition for cert. filed , 64 U.S.L.W. 3605 (U.S. Feb. 26, 1996) (No. 95-1385); Whitford v. Boglino , 6 3 F.3d 527, 533 (7th Cir. 1995) (per curiam). Thus, we remand this case for such a factual determination. See Samuels v. Mockry , 77 F.3d at 38 (factual determination should not be made by appeal s court in first instance).

Accord ingly, the judgment of the district court is reverse d and the case remanded for further proceedings.

A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.