United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3857

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David Orr, *

*

Plaintiff - Appellant, *

* 

v. * 

* 

Steve Larkins, ERDCC Warden/ *

Superintendent; Terry Webb, *

Functional Unit Manager, ERDCC; *

Patricia Cornell, Deputy Director, *

Division of Adult Institutions; Tom * Appeal from the United States

Clements, Director, Division of Adult * District Court for the

Institutions; Kerry Kline, Functional * Eastern District of Missouri.

Unit Manager, ERDCC; Sherry Brewer, *

Correctional Caseworker, ERDCC; Jim *

McDaniels, Correctional Caseworker, *

ERDCC; Rodney Henson, Correctional *

Officer III, ERDCC; John Doe #1, *

Correctional Officer III, ERDCC; John *

Doe #2, Correctional Officer III, *

ERDCC, *

*

Defendants - Appellees. *

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Submitted: June 15, 2010

Filed: July 7, 2010

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Before MURPHY, BEAM, and BENTON, Circuit Judges.

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1

The Honorable Catherine D. Perry, Chief Judge, United States District Court

for the Eastern District of Missouri.

2

Orr contends that (mandatory) regulations and standard operating procedures

created a protected liberty interest, relying on Clark v. Brewer, 776 F.2d 226 (8th Cir.

1985). Clark was decided a decade before the Supreme Court, in Sandin, stated that

“the search for a negative implication from mandatory language in prisoner

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PER CURIAM.

Inmate David Orr claims that prison officials violated his rights under the Due

Process Clause of the Fourteenth Amendment, and under the Eighth Amendment, by

keeping him in administrative segregation for about nine months following his third

“dirty” urine test. See 42 U.S.C. § 1983. The district court1

 dismissed the complaint

without ordering a response or hearing. See 28 U.S.C. § 1915(e)(2)(B) (authorizing

dismissal where the action “is frivolous or malicious” or “fails to state a claim on

which relief may be granted.”). This court affirms.

“In order to prevail on a Fourteenth Amendment due process claim, [the

plaintiff] must first demonstrate that he was deprived of life, liberty, or property by

government action.” Phillips v. Norris, 320 F.3d 844, 846 (8th Cir. 2003). To show

he was deprived of a protected liberty interest, Orr must identify conditions that

impose “atypical or significant hardship . . . in relation to the ordinary incidents of

prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). “In order to determine

whether an inmate possesses a liberty interest, we compare the conditionsto which the

inmate was exposed in segregation with those he or she could expect to experience as

an ordinary incident of prison life. . . . We do not consider the procedures used to

confine the inmate in segregation.” Phillips, 320 F.3d at 847 (internal quotations

omitted). See also Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996) (“If

[the plaintiff] 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.”).2
regulations has strayed from the real concerns undergirding the liberty protected by

the Due Process Clause,” and held that liberty interests “will be generally limited to

freedom from restraint which . . . imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.” 515 U.S. at 483, 484.

Phillips and Kennedy represent this court’s approach following Sandin.

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“We have consistently held that a demotion to segregation, even without cause,

is not itself an atypical and significant hardship.” Phillips, 320 F.3d at 847. See also

Portley-El v. Brill, 288 F.3d 1063, 1065 (8th Cir. 2002) (“We have consistently held

that administrative and disciplinary segregation are not atypical and significant

hardships under Sandin.”). The district court cited a case, factually similar, where this

court found the inmate had no liberty interest. See Hemphill v. Delo, 124 F.3d 208

(table), 1997 WL 581079, at *2 (8th Cir. 1997) (unpublished) (per curiam) (holding

that “four days locked in a housing unit, thirty days in disciplinary segregation, and

approximately 290 days in administrative segregation” does “not constitute an

‘atypical and significant hardship’ when compared to the burdens of ordinary prison

life.”); cf. Williams v. Norris, 277 F. Appx. 647, 648-49 (8th Cir. 2008) (unpublished)

(per curiam) (holding that 12 years in administrative segregation was an atypical and

significant hardship, “considering the particular restrictions imposed on” the prisoner).

Like Hemphill, Orr was not deprived of a liberty interest during his months in

administrative segregation.

Orr also claims prison officials violated his Eighth Amendment rights by

keeping him in administrative segregation without sufficiently considering his

worsening mental illness. “[D]eliberate indifference to serious medical needs of

prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the

Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal citation

omitted). “This is true whether the indifference is manifested by prison doctors in

their response to the prisoner’s needs or by prison guards intentionally denying or

delaying access to medical care or intentionally interfering with the treatment once

prescribed.” Id. at 104-05. But here, Orr pleads that he received treatment – first anti-
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depressants, and later anti-psychotic medication. Orr does not claim that prison

officials delayed or denied medical care.

The district court’s dismissal of the complaint is affirmed.

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