___________ No. 96-1039

___________ 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. *

___________ Submitted: September 9, 1996 Filed: November 18, 1996

___________ Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.

___________ BOWMAN, Circuit Judge.

Defendant s John Blankenship, Willis Sargent, and Larry Fiedorowicz, employ ees of the Arkansas Department of Correction, appeal from th e judgment of the District Court in favor of plaintiff Jeremy Kennedy in thi s 42 U.S.C. § 1983 civi l rights action. Because we conclude that Kennedy's due process rights were not violated, we reverse.

On Februa ry 21, 1993, Kennedy, an inmate of the Cummins Unit of the Arkans as Department of Correction, hurt his ankle while engaged i n horseplayin 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 1 

### defense is illness, the unit health staff must be contacted t o determ ine whether the inmate was examined for a complaint o f illness and whether, in the opinion of the person or persons wh o examined the inmate, the inmate was feigning illness or no t sufficiently ill to justify th e rule violation." Appellants' App. at 63. If a statement from the health staff is not includedin the hearing officer's decision, "the disciplinary action will be deemed invalid and expunged from the inmate's records." Id. It i s undisputed that Blankenship did not contact the health staff , presumablybecause Kennedy stated at the hearing that he had no t sought medical attention on February 22.
-2- Ken nedydid not report for work later that morning, a guard cited hi m ("issu ed a major disciplinary against him," in prison parlance) fo r refusing to report to work and for failing to obey a direct order.
On February 24, defendant Blankenshi p chaired a disciplinary hearing to consider the charges against Kennedy. In response to a question from Blanke nship, Kennedy stated that he had not been to sick call on th e morning he refused to report to work. Blankensh ip found Kennedy guilty of viol ating prison rules and sentenced him to thirty days in "punitiv e isolation," a stricter form of custody than the "administrativ e segregation" status Kennedy had at the time. Kennedy appealed to defendan t Sarg ent, the warden of the prison, and to defendant Fiedorowicz, th e disciplinary hearing administrator of the Department, and each affirme d Blankenship's decision.
Kennedy filed this 42 U.S.C. § 1983 action in district court onApril 26, 1993, claiming that defendants had violated his constitutional right to due process. In particular, Kennedy claimed that an administrativ e regulation of the Department required Blankenshi p, the hearing officer, to contact medical personnel to determine whether Kennedy was too ill t o report to work. A magistrate judge initially recommended judgment i n 1 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 ordere d de fendants to expunge the disciplinary action from Kennedy's record

. Defendants appealed to this Court, and we reversed and remanded for furthe r consid eration in light of the Supreme Court's intervening decision i n Sandin v. Conner , 115 S. Ct. 2293 (1995). Kenne dy v. Blankenship , No. 94- 3413 (8th Cir. June 29, 1995) (unpublished per curiam). On remand, th e Distri ct Court reconsidered its decision and again entered judgment i n favor of Kennedy for $50 and ordered the disciplinary action expunged. Th e defendants appealed again. We have jurisdiction pursuant to 28 U.S.C

. § 1291 (1994).
On appeal, defendants challenge only the District Court's appli cation 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 retreat ed from a line of cases in which it had examined prison regulations in detail to determine whether th e regulations created constitutionally protected liberty interests by the us e of "'l anguage of an unmistakably mandatory character' such that th e incursion on liberty would not occur 'absent specified substantiv e predicate s.'" Sandin , 115 S. Ct. at 2298 (quoting Hewitt v. Helms , 45 9 U.S. 460, 471-72 (1983)). The Court reworked the relevant inquiry a s follows:

[W]e recognize that States may under certain circumstance s create liberty interests which are protected by the Due Process Cla use. But these interests will be generally limited t o 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 impose s atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

### According to the Magistrate Judge's findings, the primar y 2 

### difference between administrative segregation and punitiv e isolat ion in Arkansas is the privilege of working and th e 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 ter m "is olation," inmates in punitive isolation are housed in two- o r four-man cells, while all administrative segregation inmates live in two-man cells. (In contrast, the inmate in Sandin wa s apparently in solitary confinement.) Inmates in punitive is olation also face restrictions on mail and telephone privileges (pri vileged mail and emergency calls only), visitation privileges (the i nmate's attorney only, rather than biweekly general visitation), com missary privileges, and personal posse ssions (legal materials, a religious text , soap, toothbrush, toothpaste, washcloth, and toilet pape r onl y). Thus, although prisoners in Arkansas apparently refer t o punitive isolation as "the hol e," it is abundantly clear that that description is a significant exaggeration of actual conditions.
-4- Id. at 2300 (citation s 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 tha t Kennedy's demotion from administrative segregation to punitive isolation is not the sort of deprivation that qualifies as "atypical an d significa nt." We note first that the Hawaii inmate in Sandin was move d from administrative segregation to "disciplinary segregation" for 30 days, much like Kennedy was in this case. Id. at 2296 & n.2. In both Sandinan d this c ase, prisoners in administrative segregation and prisoners in th e stricter category spend significant amounts of time in "lockdown," confine d to their cells. Id. at 2301.

The D istrict Court distinguished Sandin because the only apparen t 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 l ost more privileges as a result of his punishment than did th e inmate in Sandin

. Nevertheless, 2

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Kennedy's punishment is comparable to other depr ivations we have upheld in post- Sand in cases. See Wycoff v. Nichols , 94 F.3d 1187, 1188 (8th Cir

. 1996) (10 days of dis ciplinary 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 fro m minimum- to medium-se curity prison, 15 days of highest-level disciplinary de tention, and 107 days of less-restrictive disciplinary detention)

. Considering all the circumstances, we conclude that Kennedy's transfer fro m ad ministrative segregation to punitive isolation was not "a dramati c departure from the ba sic conditions" of his confinement and thus does not constitute "the type of atypical, significant de privation in which a state might conceivably create a liberty interest." S andin , 115 S. Ct. at 2301.

Even if t he deprivation in this case were atypical and significant, however, we would agree with defendants that reversal is still required. In ess ence, Kennedy claims a federal constitutional liberty interest i n having state officers follow state law. But in making this claim, Kennedy misinterpr ets 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 bes t 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 i n depriving Kennedy of a substantive liberty interest. See Vitek v. Jones , 445 U.S. 480, 491 (1980); Brown v. Frey , 889 F.2 d 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 afforde d 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 d oes not argue that the Due Process Clause itself creates a liberty interest in t his 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)

. Ken nedy's only argument is that the state failed to follow its ow n pro cedural rules and thus failed to afford him the due process of la w mandat ed by the Constitution. But, as we have stated above, the Du e Process Clause does n ot 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 c laim); Swenson v. Trickey , 995 F.2 d 132, 135 (8th Cir.) (inmate may not base § 1983 procedural du e 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 w hether he had been to sick call o n 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 im pose discipline. Clearly, Kennedy received all the process he was due under Wolff v. McDonnell , 418 U.S. 5 39, 563-72 (1974) (outlining the procedural safeguards that du e process requires in p rison disciplinary proceedings), and indeed he makes no claim to the contrary.
Accordingly, the judgment of the Dis trict Court is reversed, and the
ca se is remanded with instructions to enter judgment in favor o f 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.