Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 05-1046

JAMES SKINNER,

Plaintiff, Appellant,

v.

MICHAEL CUNNINGHAM, WARDEN,

NEW HAMPSHIRE STATE PRISON, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Dyk, Circuit Judges. *

Michael J. Sheehan for appellant.

Nancy J. Smith, Senior Assistant Attorney General, Civil

Bureau, with whom Kelly A. Ayotte, Attorney General, was on brief

for appellees Michael J. Cunningham, Arthur Locke, John Kovacs,

Timothy Kenney, Sean McLeod, Neil Smith, Scott Dodge and Raymond

Guimond. 

November 23, 2005
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BOUDIN, Chief Judge. James Skinner, currently serving a

life sentence, appeals from the district court's grant of summary

judgment against him on two constitutional claims in his civil suit

against prison authorities. We recite the facts in the light most

favorable to Skinner, the nonmovant here. Landrau-Romero v. Banco

Popular de Puerto Rico, 212 F.3d 607, 611 (1st Cir. 2000).

Skinner, a Massachusetts inmate serving a sentence for

murder, was transferred to the New Hampshire State Prison on May

27, 1998, after being involved in a series of violent incidents in

the Massachusetts penal system. Classified as a high-security

prisoner, Skinner was housed in the prison's Special Housing Unit.

On July 24, 1998, Skinner was involved in a fight started by

another inmate, Eric Balagot, which resulted in Balagot's death.

Skinner was immediately transferred to N-Tier, a restricted area of

the prison reserved for "special circumstances."

Skinner was held in N-Tier for forty days. In N-Tier, he

was isolated from the other inmates; his only human contact was

when the staff opened the door for hourly checks or to deliver

food. According to Skinner, the staff intentionally slammed his

metal cell door during such checks, depriving him of sleep. The

lights were on at all hours of the day. Skinner had nothing in his

cell besides clothes and bedding, and he was permitted to leave his

cell only to shower.
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On August 5, 1998, a disciplinary charge was filed

against Skinner for the incident leading to Balagot's death.

Although a disciplinary hearing was set for August 19, a prison

hearings officer (Ray Guimond) suspended the proceeding because the

state intended to charge Skinner with murder. In early September,

Skinner was returned to normal confinement. Because Skinner was

eventually acquitted of murdering Balagot after a jury trial, the

disciplinary proceeding never occurred, and Skinner was eventually

transferred back to Massachusetts in 2000.

On May 15, 2000, Skinner brought the present suit in the

federal district court in New Hampshire, charging a number of the

prison officials there with violating his civil rights. 42 U.S.C.

§ 1983 (2000). The charges fell into three categories:

(1) that the authorities had violated

Skinner's rights under the Eighth Amendment's

cruel and unusual punishment clause by

exposing him to an attack by Balagot, who was

a white supremacist (Skinner is black);

(2) that Skinner's right to due process had

been violated by confining him in N-Tier for

forty days without a hearing; and

(3) that he had been subject to cruel and

unusual punishment by abusive treatment during

three forcible "cell extractions" and by other

acts of harassment.

On the first claim, a trial was later conducted and the

jury held for the defendants. On the second and third claims, the

district judge granted summary judgment for the defendants, and it

is these latter rulings that Skinner now appeals. Our review of a
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district court's order of summary judgment is de novo, and we

"constru[e] the record in the light most favorable to the nonmovant

and resolv[e] all reasonable inferences in that party's favor."

Landrau-Romero, 212 F.3d at 611.

Skinner's due process claim, which we consider first,

raises a difficult issue, but one entirely legal in character.

That Skinner was moved immediately to N-Tier after Balagot's death,

with no hearing or other process whatsoever, gives rise to no claim

under the due process clause. Skinner had just killed another

inmate, and whoever might prove to be at fault, the authorities

were entitled to isolate Skinner on a summary basis--for his own

sake and for the protection of others--while investigating the

circumstances.

Due process, even where it is due, does not invariably

mean process before the fact. A warrantless arrest for a felony is

a classic example. Skinner was already in custody; the

circumstances were exigent; and his immediate transfer to N-Tier

was proper. Cf. Reardon v. United States, 947 F.2d 1509, 1522 (1st

Cir. 1991) (en banc) ("The absence of notice and a hearing may be

justified by exigent circumstances."). Skinner's main, and more

colorable, due process grievance is that he was kept in N-Tier for

forty days while his disciplinary hearing was indefinitely

deferred.
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Although Skinner's brief focuses on the deferral of the

disciplinary hearing, the fact that the Attorney General was

investigating with a view toward murder charges was a perfectly

good reason for avoiding a duplicative inquiry. The better version

of Skinner's claim is an argument that it was constitutionally

unfair to keep Skinner for forty days in N-Tier's standard

conditions without "some kind of hearing." See Wolff v. McDonnell,

418 U.S. 539, 557-58 (1974). More precisely, the question is

whether Skinner was deprived of "liberty" without "due process of

law."

This in turn poses two different questions: (1) how to

define the "liberty" interest, which on a straightforward reading

of the due process clause is a condition of due process protection

("nor shall any State deprive any person of life, liberty, or

property, without due process of law," U.S. Const. amend. XIV, §

1); and (2) what kind of process is due, even where "liberty" is at

stake, in the peculiar context of prison administration, where

dangerous conditions exist and prisoner liberty is already limited.

The history of the Supreme Court's oscillations on both

issues is candidly traced in the governing opinion, Sandin v.

Conner, 515 U.S. 472 (1995), itself a 5-to-4 decision. There, the

Court held that no due process denial could be made out unless the

change in conditions imposed on the prisoner "atypical and

significant hardship" departing from the ordinary conditions of
Compare Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) 1

(adopting the former view); Keenan v. Hall, 83 F.3d 1083, 1089 (9th

Cir. 1996) (same), with Griffin v. Vaughn, 112 F.3d 703, 708 (3d

Cir. 1997) (adopting the latter view); Wagner v. Hanks, 128 F.3d

1173, 1175 (7th Cir. 1997) (looking to the conditions of

administrative segregation at the state's highest security prison).

See also Hatch v. District of Columbia, 184 F.3d 846, 856 (D.C.

Cir. 1999) (looking to the most restrictive conditions of

administrative confinement that prison officials "routinely impose

on inmates serving similar sentences").

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prison life. Id. at 484. Of course, such a hardship does not mean

a violation: it is merely the precondition for a due process

hearing. The Supreme Court's phrase has now (inevitably) become a

touchstone for the lower federal courts. In this case, the

district court ruled that Skinner's confinement did not meet this

test of "atypical and significant hardship."

The hardship test has itself become the source of major

disagreement. See Wilkinson v. Austin, 125 S. Ct. 2384, 2394

(2005). Some circuits compare the confinement conditions to those

of the general prison population, while others look to the

conditions of nondisciplinary administrative segregation. One 1

circuit holds that disciplinary segregation never implicates a

liberty interest unless it lengthens a sentence. Carson v.

Johnson, 112 F.3d 818, 821 (5th Cir. 1997). Whether Sandin should

be read as a cookbook recipe for all cases is unclear.

We think it is enough here that Skinner's segregation was

rational, that its duration was not excessive, and that the central

condition--isolation from other prisoners--was essential to its
Compare Sandin, 515 U.S. at 486 (finding no implicated 2

liberty interest in being placed in disciplinary segregation for

thirty days); Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir. 1999)

(same holding for 101 days of administrative segregation);

Beverati, 120 F.3d at 504 (same holding for six months of

administrative segregation).

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purpose. Skinner was a prisoner serving a sentence for murder who

had just killed another inmate. It made perfect sense to isolate

him pending further investigation. Indeed, had he been returned

immediately to the general population and had Skinner then attacked

some other prisoner, or been attacked himself, a different and far

more plausible suit against the authorities would likely have

followed. Farmer v. Brennan, 511 U.S. 825, 828 (1994). The prison

was waiting on the Attorney General, and six weeks is hardly an

excessive time to conduct a preliminary inquiry into a possible

murder.2

As for Skinner's conditions of confinement, isolation

from other prisoners was of the essence, and while it was perhaps

needless to have denied Skinner amenities such as television or

books, these deprivations are largely incidental to Skinner's main

complaint, and were in any case short-term. Taking all the

circumstances into account, including the prison's need to manage

its own administration, see Sandin, 515 U.S. at 482-83, Skinner's

temporary isolation without a formal hearing was not

unconstitutional either in its essential character or in its

duration.
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The contrast with Wilkinson, the Supreme Court's most

recent decision, is vivid. The Court there found that due process

was required for a prisoner's placement in a super-max prison. It

stressed that "[u]nlike the 30-day placement in Sandin, placement

[at the super-max prison] is indefinite," Wilkinson, 125 S. Ct. at

2394. The Court also noted "that placement [in the super-max

prison] disqualifies an otherwise eligible inmate for parole

consideration," id. at 2395, thus potentially extending the length

of incarceration. The differences between the present case and

Wilkinson could not be clearer.

The district court's dismissal of Skinner's final set of

claims would be a close call in the ordinary case. Skinner alleged

that the defendants had violated the Eighth Amendment, primarily by

excessive force used during the three cell extractions and

secondarily by other acts of harassment, like the slamming of his

cell door. The district court ruled that there was no case for a

jury, that is, that no rational jury could find excessive force.

Our review is again de novo. Landrau-Romero, 212 F.3d at 611.

The framework for analyzing such claims was set forth by

the Supreme Court in Whitley v. Albers, 475 U.S. 312 (1986), and

Hudson v. McMillian, 503 U.S. 1 (1992). Generally speaking,

"[a]fter incarceration, only the unnecessary and wanton infliction

of pain . . . constitutes cruel and unusual punishment forbidden by

the Eighth Amendment." Whitley, 475 U.S. at 319 (internal
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quotation marks omitted). The critical question in such a case is

whether the force was applied "maliciously and sadistically for the

very purpose of causing harm," id. at 320-21, rather than "in a

good-faith effort to maintain or restore discipline." Hudson, 503

U.S. at 7.

The cell extractions, which occurred on June 22, 1999,

July 6, 1999, and March 24, 2000, all involved officers entering

Skinner's cell, forcibly seizing him, and removing him from the

cell. The first occurred after Skinner had placed a sheet across

his cell door and refused to remove it; the second after he refused

to be handcuffed so his cell could be searched; the third after he

threw food at one of the staff. Extractions are apparently a

formalized process; each of the extractions was videotaped, which

makes this case unusual because we can see what occurred.

In each case, Skinner physically resisted removal and

guards struggled to subdue him and remove him from the cell.

Although Skinner offers extenuating explanations for his own

conduct, what matters here is whether a jury could reasonably find

that he was harmed through deliberate or wanton force unnecessary

to his removal. See Hudson, 503 U.S. at 7. The details of each

extraction are set forth in the district court's decision on

summary judgment. It is sufficient to describe the third

extraction, which represents Skinner's strongest case.
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In this incident, after Skinner threw food, officers

decided to move him to a different cell, but Skinner refused to

extend his hands through the slot in the door so that handcuffs

could be applied prior to the move. After warnings, the extraction

team sprayed a non-lethal chemical irritant (derived from cayenne

pepper) into the cell to make Skinner exit the cell without direct

physical force; but Skinner continued to resist, remaining in the

cell despite the spray. The move team then entered the cell,

pushed him to the ground, handcuffed him, and carried him out.

Skinner says that as he was being carried along outside

the cell, he was punched in the face and his eyes, ears, neck and

throat were gouged and raked. A medical report from Concord

Hospital prepared two days later said that Skinner suffered from a

sore shoulder, wrist abrasions and "blunt trauma" to his eyes, but

had "no evidence of injury to his head" and would be treated with

Tylenol. Skinner identified Officer Dodge as the one who bruised

his eye.

Dodge's affidavit states that Dodge opened the cell door,

but that other officers were the ones who wrestled Skinner to the

ground and carried him out and down the corridor in a prone

position; Dodge says that he helped in the carriage by supporting

Skinner's head to prevent it from striking the ground or a hard

surface, lost his grip on occasion in the crowded struggle, but
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never touched Skinner's eyes or deliberately sought to hurt him in

any way.

After describing Skinner's strength, repeated refusals to

"cuff up," and physical resistance to the officers, the district

judge addressed the third extraction thusly:

During the third extraction, Skinner claims

his throat was improperly held and his eyes

were poked. Even assuming that this occurred,

there is no evidence to demonstrate that

during the chaos he created, defendants

maliciously injured him. In addition, as the

video exhibit demonstrates, the officers were

very aware of how they were holding Skinner's

head and repeatedly instructed one another to

support his neck. . . . There is simply no

evidence that any defendant acted "maliciously

or sadistically for the very purpose of

causing harm." See Hudson, 503 U.S. at 6.

We have viewed the video ourselves. The chaos in the

third episode (as in the other two) is wholly of Skinner's making.

There are repeated warnings by the officer in charge to protect

Skinner's head from injury. At one point in the third episode,

Skinner yells that he has been poked in the eye; a voice promises

him immediate medical attention as soon as the move is completed.

There is no evidence in the video or elsewhere that Dodge

deliberately struck Skinner or that any of the other guards

deliberately injured Skinner. Skinner's own affidavit does not

provide such evidence. It concedes that "one may suffer bumps and

bruises during a cell extraction," and alleges only that "the

gouging of my face can only be the result of intentional gouging."
Although Skinner does not mention this in his argument, Dodge 3

had complained in earlier incidents that Skinner had thrown coffee

at him and sought to bite him, which might support a malicious

motive; but Skinner himself had denied both incidents, undercutting

their value to him now.

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Thus, his affidavit does no more than infer that no one could have

gouged his face by accident; but given the crowding and struggle,

it is hard to see this as proof. On this evidence, no reasonable

jury could find that Skinner's injury, such as it was, resulted

from cruelty or deliberate infliction of pain.3

Mentioned more tersely in Skinner's brief are many other

acts of alleged harassment following Balagot's death (although

curiously there is no explanation why Balagot's death should have

prompted reprisals by prison officers). These alleged acts include

the (earlier mentioned) slamming of Skinner's cell door, threats,

discourtesies, epithets, and false charges on petty matters. If

Skinner's account is credited even in part, this is a sorry story

of mis-administration by the prison.

But such a collection of grievances does not amount to an

Eighth Amendment violation, which in the conditions-of-confinement

context requires "[e]xtreme deprivations." Hudson, 503 U.S. at 9.

Whether there might have been judicial remedies in state court is

a different matter. Skinner's brief, otherwise quite effective,

mentions these grievances without making a serious effort to

develop them; his claim is therefore forfeit. Mass. Sch. of Law at

Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 43 (1st Cir. 1998).
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The judgment of the district court is affirmed. Each

side shall bear its own costs on this appeal.