___________

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Caseworker at PCC; Lonnie Salts, * [UNPUBLISHED]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.

Roman Hemphill, an inmate at Potosi Correctional Center, appeals

from the final judgment of the District Court for the Eastern District of

Missouri granting defendants summary judgment
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in this 42 U.S.C. § 1983 action. For the reasons discussed below, we

reverse and remand for further proceedings.

In an amended complaint, Hemphill alleged that he was denied due

process in connection with a conduct violation he received on June 19,

1992, charging him with violating Rule #3--Dangerous Contraband--for being

"involved in the introduction and distribution of drugs into Potosi

Correctional Center." Hemphill alleged he was placed on disciplinary

segregation--locked in his housing unit--prior to appearing before the

adjustment board. At his disciplinary hearing, the adjustment board

members informed him they had received information from a confidential

informant, but they did not disclose the informant's name or information

received. Without revealing the evidence used against him, the adjustment

board found Hemphill guilty, sentenced him to thirty days in disciplinary

segregation, referred him for criminal prosecution, and referred the matter

to the administrative segregation committee. Hemphill was assigned to

administrative segregation effective July 18, 1992, and was released to the

general population on May 4, 1993. Hemphill claimed defendants conspired

to deny him due process and equal protection in connection with the

disciplinary action, and he sought damages. 

Defendants moved for summary judgment, and submitted documentary

evidence in support. Hemphill opposed the motion. On January 30, 1995,

the district court granted defendants summary judgment on all claims,

except the claim that there was insufficient evidence to support the

disciplinary action. Defendants appealed, and we remanded the case for a

ruling on qualified immunity. 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 decision in Sandin v. Conner,

115 S. Ct. 2293, 2301 (1995) (Sandin), and
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arguing that Hemphill was not entitled to the procedural protections of

Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). On August 8, 1995,

without conducting further proceedings, the district court concluded that

Hemphill was not entitled to due process protection because the punishment

that he received did not present the type of "atypical, significant

deprivation" in which a state might conceivably create a liberty interest,

see Sandin, 115 S. Ct. at 2300, and that Hemphill's allegation of

insufficient evidence no longer supported a cause 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 Sandin recognized that 

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.

Id. at 2300 (citations omitted).

The Court determined that a Hawaii inmate did not have a liberty

interest in remaining free from disciplinary segregation because the

inmate's thirty days in segregated disciplinary confinement did not present

the type of "atypical, significant deprivation" in which a state might

conceivably create a liberty interest. Id. at 2301. In reaching that

conclusion, the Court reviewed the record and made findings that, "with

insignificant exception," the inmate's disciplinary segregation "mirrored

those conditions imposed upon inmates in administrative segregation and

protective custody." Id. The Court supported its conclusion by discussing

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 did not

contain and the district court did not cite any factual basis for

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 concluded

that this factual determination is required under Sandin. See Samuels v.

Mockry, 77 F.3d 34, 38 (2d Cir. 1996) (per curiam); Gotcher v. Wood, 66

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, 63

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 appeals

court in first instance). 

Accordingly, the judgment of the district court is reversed

and the case remanded for further proceedings.

A true copy.

Attest:

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