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No. 96-1039

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Jeremy Kennedy, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the

John T. Blankenship, Major * Eastern District of Arkansas.

Disciplinary Hearing Officer; *

Willis H. Sargent, Warden; *

Larry Fiedorowicz, Disciplinary *

Hearing Officer Administrator, *

*

Appellants. *

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 Submitted: September 9, 1996

 Filed: November 18, 1996

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Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.

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BOWMAN, Circuit Judge.

Defendants John Blankenship, Willis Sargent, and Larry Fiedorowicz,

employees of the Arkansas Department of Correction, appeal from the

judgment of the District Court in favor of plaintiff Jeremy Kennedy in this

42 U.S.C. § 1983 civil rights action. Because we conclude that Kennedy's

due process rights were not violated, we reverse.

On February 21, 1993, Kennedy, an inmate of the Cummins Unit of the

Arkansas Department of Correction, hurt his ankle while engaged in

horseplay in his cell. Early on the morning of February 22, Kennedy had

his ankle examined by medical personnel, who did not provide him with a

medical excuse from work duty. When
 The regulation states that "whenever a charged inmate's

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defense is illness, the unit health staff must be contacted to

determine whether the inmate was examined for a complaint of

illness and whether, in the opinion of the person or persons who

examined the inmate, the inmate was feigning illness or not

sufficiently ill to justify the rule violation." Appellants' App.

at 63. If a statement from the health staff is not included in the

hearing officer's decision, "the disciplinary action will be deemed

invalid and expunged from the inmate's records." Id. It is

undisputed that Blankenship did not contact the health staff,

presumably because Kennedy stated at the hearing that he had not

sought medical attention on February 22.

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Kennedy did not report for work later that morning, a guard cited him

("issued a major disciplinary against him," in prison parlance) for

refusing to report to work and for failing to obey a direct order.

On February 24, defendant Blankenship chaired a disciplinary hearing

to consider the charges against Kennedy. In response to a question from

Blankenship, Kennedy stated that he had not been to sick call on the

morning he refused to report to work. Blankenship found Kennedy guilty of

violating prison rules and sentenced him to thirty days in "punitive

isolation," a stricter form of custody than the "administrative

segregation" status Kennedy had at the time. Kennedy appealed to defendant

Sargent, the warden of the prison, and to defendant Fiedorowicz, the

disciplinary hearing administrator of the Department, and each affirmed

Blankenship's decision.

Kennedy filed this 42 U.S.C. § 1983 action in district court on April

26, 1993, claiming that defendants had violated his constitutional right

to due process. In particular, Kennedy claimed that an administrative

regulation of the Department required Blankenship, the hearing officer, to

contact medical personnel to determine whether Kennedy was too ill to

report to work. A magistrate judge initially recommended judgment in

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favor of defendants, but the District Court rejected the recommendation.
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The Magistrate Judge then recommended judgment in favor of Kennedy and an

award of $50 in damages. The District Court agreed and also ordered

defendants to expunge the disciplinary action from Kennedy's record.

Defendants appealed to this Court, and we reversed and remanded for further

consideration in light of the Supreme Court's intervening decision in

Sandin v. Conner, 115 S. Ct. 2293 (1995). Kennedy v. Blankenship, No. 94-

3413 (8th Cir. June 29, 1995) (unpublished per curiam). On remand, the

District Court reconsidered its decision and again entered judgment in

favor of Kennedy for $50 and ordered the disciplinary action expunged. The

defendants appealed again. We have jurisdiction pursuant to 28 U.S.C.

§ 1291 (1994).

On appeal, defendants challenge only the District Court's application

of the law to the facts. Our review, therefore, is de novo. See Falls v.

Nesbitt, 966 F.2d 375, 377 (8th Cir. 1992).

In Sandin, the Supreme Court retreated from a line of cases in which

it had examined prison regulations in detail to determine whether the

regulations created constitutionally protected liberty interests by the use

of "'language of an unmistakably mandatory character' such that the

incursion on liberty would not occur 'absent specified substantive

predicates.'" Sandin, 115 S. Ct. at 2298 (quoting Hewitt v. Helms, 459

U.S. 460, 471-72 (1983)). The Court reworked the relevant inquiry as

follows:

[W]e recognize 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.
 According to the Magistrate Judge's findings, the primary

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difference between administrative segregation and punitive

isolation in Arkansas is the privilege of working and the

accompanying good time credits. Administrative segregation inmates

who work are also entitled to a shower and a change of clothing on

days that they work. Despite the implication of the term

"isolation," inmates in punitive isolation are housed in two- or

four-man cells, while all administrative segregation inmates live

in two-man cells. (In contrast, the inmate in Sandin was

apparently in solitary confinement.) Inmates in punitive isolation

also face restrictions on mail and telephone privileges (privileged

mail and emergency calls only), visitation privileges (the inmate's

attorney only, rather than biweekly general visitation), commissary

privileges, and personal possessions (legal materials, a religious

text, soap, toothbrush, toothpaste, washcloth, and toilet paper

only). Thus, although prisoners in Arkansas apparently refer to

punitive isolation as "the hole," it is abundantly clear that that

description is a significant exaggeration of actual conditions.

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Id. at 2300 (citations omitted). The Court recognized that "[d]iscipline

by prison officials in response to a wide range of misconduct falls within

the expected parameters of the sentence imposed by a court of law." Id.

at 2301. 

Sandin and our subsequent cases lead us to the conclusion that

Kennedy's demotion from administrative segregation to punitive isolation

is not the sort of deprivation that qualifies as "atypical and

significant." We note first that the Hawaii inmate in Sandin was moved

from administrative segregation to "disciplinary segregation" for 30 days,

much like Kennedy was in this case. Id. at 2296 & n.2. In both Sandin and

this case, prisoners in administrative segregation and prisoners in the

stricter category spend significant amounts of time in "lockdown," confined

to their cells. Id. at 2301.

The District Court distinguished Sandin because the only apparent

difference between the two custody levels in Sandin was "one extra phone

call and one extra visiting privilege." Id. at 2296 n.2. We agree that

Kennedy lost more privileges as a result of his punishment than did the

inmate in Sandin. Nevertheless, 2
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Kennedy's punishment is comparable to other deprivations we have upheld in

post-Sandin cases. See Wycoff v. Nichols, 94 F.3d 1187, 1188 (8th Cir.

1996) (10 days of disciplinary detention and 100 days in maximum security

cell); Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666,

669 (8th Cir. 1996) (revocation of work release and return to prison);

Moorman v. Thalacker, 83 F.3d 970, 971 (8th Cir. 1996) (transfer from

minimum- to medium-security prison, 15 days of highest-level disciplinary

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

Considering all the circumstances, we conclude that Kennedy's transfer from

administrative segregation to punitive isolation was not "a dramatic

departure from the basic conditions" of his confinement and thus does not

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

might conceivably create a liberty interest." Sandin, 115 S. Ct. at 2301.

Even if the deprivation in this case were atypical and significant,

however, we would agree with defendants that reversal is still required.

In essence, Kennedy claims a federal constitutional liberty interest in

having state officers follow state law. But in making this claim, Kennedy

misinterprets the nature of procedural due process. If Kennedy has a

liberty interest, it is an interest in the nature of his confinement, not

an interest in the procedures by which the state believes it can best

determine how he should be confined. See Olim v. Wakinekona, 461 U.S. 238,

250 (1983) ("Process is not an end in itself. Its constitutional purpose

is to protect a substantive interest to which the individual has a

legitimate claim of entitlement."); Griffin-El v. Delo, 34 F.3d 602, 604

n.3 (8th Cir. 1994) (inmate does not have a liberty interest in a

particular procedure). The Due Process Clause of the Fourteenth Amendment,

not state law, governs the procedures which the state must follow in

depriving Kennedy of a substantive liberty interest. See Vitek v. Jones,

445 U.S. 480, 491 (1980); Brown v. Frey, 889 F.2d 159, 166 (8th Cir. 1989)

("[T]he court's inquiry is not whether the [state] statute
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and therefore the Constitution is violated but whether the process afforded

plaintiff 'satisfied the minimum requirements of the Due Process Clause.'")

(quoting Hewitt, 459 U.S. at 472), cert. denied, 493 U.S. 1088 (1990).

Kennedy does not argue that the Due Process Clause itself creates a

liberty interest in this case, that is, that punitive isolation is beyond

"the normal limits or range of custody which the conviction has authorized

the State to impose." Meachum v. Fano, 427 U.S. 215, 225 (1976).

Kennedy's only argument is that the state failed to follow its own

procedural rules and thus failed to afford him the due process of law

mandated by the Constitution. But, as we have stated above, the Due

Process Clause does not federalize state-law procedural requirements. As

a result, Kennedy's claim must fail. See Hughes v. Lee County Dist. Court,

9 F.3d 1366, 1367 (8th Cir. 1993) (assertion that state violated its own

procedural guidelines does not state a federal claim); Swenson v. Trickey,

995 F.2d 132, 135 (8th Cir.) (inmate may not base § 1983 procedural due

process claim on violation of state procedural law), cert. denied, 510 U.S.

999 (1993).

We note, as mentioned earlier in this opinion, that at Kennedy's

disciplinary hearing Blankenship asked Kennedy whether he had been to sick

call on the morning in question. Kennedy's answer, that he had not,

appeared to eliminate any need for contacting the unit health staff, and

there was evidence supporting the decision to impose discipline. Clearly,

Kennedy received all the process he was due under Wolff v. McDonnell, 418

U.S. 539, 563-72 (1974) (outlining the procedural safeguards that due

process requires in prison disciplinary proceedings), and indeed he makes

no claim to the contrary.

Accordingly, the judgment of the District Court is reversed, and the

case is remanded with instructions to enter judgment in favor of

defendants.
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BRIGHT, Circuit Judge, concurring separately.

I concur separately on the basis that the prisoner, Jeremy Kennedy,

received due process.

I would not reach the Sandin issue in this case. 

A true copy.

Attest:

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