Unpublished Disposition, 875 F.2d 319 (9th Cir. 1985)

MEMORANDUM

Franklin Philip Noheart (Noheart) appeals from the judgment entered after summary judgment was granted in this 42 U.S.C. § 1983 action in favor of the Department of Corrections, Kit Bail, Chairperson, Marsha Meadows, Community Corrections Officer, and Kurt Peterson, Superintendent. Noheart contends that he was denied his state created right to confinement with the general prison population in the absence of (1) a determination that he presented management problems or required special protection (2) written notice, and (3) a hearing to review the basis for such segregation, in violation of his right to procedural due process. We affirm because we agree with the district court that the liberty interest created by the procedural rules concerning segregation of inmates in an intensive management unit is inapplicable to a person whose parole has been suspended and is being detained pending a revocation hearing.

* The facts are not in dispute. Noheart was sentenced on June 3, 1976, by the Superior Court for King County, after a plea of guilty to second degree murder, for a period not to exceed twenty years in the Washington State Penitentiary. He was paroled on May 29, 1985, after serving approximately nine years.

On June 14, 1985, Noheart's parole was suspended and a warrant for his arrest was issued. Noheart was arrested the next day. On June 18, 1985, Noheart was served with notice of the alleged violations of his conditions and terms of parole. On June 27, 1985, he was temporarily incarcerated at the Washington Corrections Center due to the overcrowded conditions at the King County Jail. On June 28, 1985, the Board of Prison Terms and Parole found that probable cause existed to schedule a revocation hearing.

While Noheart was confined at the Washington Corrections Center, he was housed in the Intensive Management Unit (IMU). Ordinarily, inmates who present management problems or need special protection requiring segregation from the general prison population are placed in the IMU.

Noheart remained in the IMU until July 30, 1985. On that date he was transferred to a jail facility in Pierce County, Washington.

In his section 1983 claim, Noheart alleged that he is entitled to damages because he was placed in the IMU without a predeprivation or postdeprivation hearing in violation of his right to procedural due process resulting in a denial of his substantive rights under the first, fifth, eighth, and fourteenth amendments. Noheart also sought a declaration that housing alleged parole violators in the IMU without a hearing violates the federal constitution. In this appeal Noheart has limited his contention to the claim that he was denied a state created liberty interest in violation of procedural due process.

II

We review independently and non-deferentially an order granting summary judgment. Bonner v. Lewis, 857 F.2d 559, 561 (9th Cir. 1988). Summary judgment is appropriate if, viewing the evidence in the light most favorable to the nonmoving party, the court finds that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Lundy v. Union Carbide Corp., 695 F.2d 394, 396 (9th Cir. 1982), cert. denied, 474 U.S. 848 (1985). There are no issues of material fact in dispute.

III

Noheart contends that the failure of the appellants to follow prison rules regarding the transfer of inmates to the IMU denied him a state created liberty interest in violation of procedural due process pursuant to the fourteenth amendment.

In a section 1983 action the plaintiff must present facts showing a deprivation by state action of rights, privileges or immunities protected by the federal constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981); Haygood v. Younger, 769 F.2d 1350, 1354 (1985) cert. denied, 478 U.S. 1020 (1986); 42 U.S.C. § 1983. The narrow question we must decide is whether Noheart was deprived of a federally protected property or liberty interest without procedural due process. Board of Regents v. Roth, 408 U.S. 564, 569-571 (1972); Knudson v. City of Ellensburg, 832 F.2d 1142, 1144-45 (9th Cir. 1987). The substantive due process provisions of the fourteenth amendment do not create a protected liberty interest in the transfer of prisoners from one facility to another. Meachum v. Fano, 427 U.S. 215, 225 (1976). A liberty interest protected by the procedural due process provisions of the fourteenth amendment may be created by state law. Id. at 226.

Noheart argues that Washington has enacted prison rules that accord prisoners a protected liberty interest concerning segregation in the IMU. The Washington Administrative Code (Code) regulates the transfer of inmates to the IMU. The pertinent provision provides as follows:

(1) The superintendent may segregate an inmate from the general inmate population and assign such inmate to a segregation or intensive management unit if, in the judgment of the superintendent, the presence of such inmate in the general inmate population would constitute a serious threat:

(a) To the safety of institution staff, visitors or other inmates;

(b) To such inmate's safety;

(c) Of an escape by such inmate; or

(d) To the orderly operation of the institution. (emphasis added).

WAC 137-32-005 (1986).

The Code also prescribes procedural rules to ensure that the transfer to segregation complies with WAC 137-32-005. For example, WAC 137-32-010 provides as follows:

(1) Immediately after an inmate's initial placement in segregation the hearing officer will inform the inmate in writing of the reason for the inmate's segregation and the date, time and place of the initial review meeting.

(2) The hearing officer will meet with such inmate within two working days after initial placement for the initial review of the basis for the assignment of such inmate to administrative segregation status. During this initial review the inmate will be provided an opportunity to respond to the reasons for such inmate's placement in a segregation or intensive management unit.

(3) The hearing officer will prepare a written report of the initial review meeting with the inmate and deliver such report to the superintendent. This report will include the information provided to the inmate, the reason for initial placement in a segregation or intensive manage unit, the inmate's response to the allegation resulting in the initial placement in a segregation or intensive management unit and the hearing officer's recommendation whether to continue the administrative segregation or to release the inmate to the general inmate population, together with the facts supporting such recommendation.

(4) The superintendent will review the hearing officer's report, and within three working days after the inmate's initial placement in segregation will prepare a written decision accepting or rejecting the hearing officer's recommendations. A copy of the superintendent's decision will be forwarded to the inmate and the hearing officer.

Id.

Other rules require periodic classification meetings for inmates assigned to administrative segregation status. WAC 137-32-015. Prior to the classification meetings, the inmate is entitled to written notice of the hearing date and the specific allegations supporting placement or retention in administrative segregation. Id.

These rules regarding the procedures to be followed in placing inmates in the IMU are mandatory. The Supreme Court has stated that the "use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest." Hewitt v. Helms, 459 U.S. 460, 472 (1983).

Noheart contends that he was an "inmate," as that term is used in WAC 137-32-005, at the time he was placed in the IMU as an alleged parole violator pending his revocation hearing. As such, he argues that he was entitled to the procedural protections prescribed in the Code for the placement of persons in the IMU. We disagree.

Noheart was not an inmate of the Washington Corrections Center when he was placed in the IMU. Under Washington law an "inmate" is a person "committed to the custody of the Department [of Corrections]." R.C.W. 72.04.080. "A person is committed when he is actually sentenced to confinement by a court as contrasted with a suspended sentence or probation." Black's Law Dictionary 248 (5th ed.1979). At the time Noheart was placed in the IMU, he was being detained as a parolee under the supervision of the Board of Prison Terms and Paroles pending a determination whether his parole should be revoked. His temporary placement at the Washington Corrections Center was due solely to the fact that the King County Jail was overcrowded. He had not been committed to the custody of the Department of Corrections to serve a prison sentence in the Washington Corrections Center. He was not committed to custody of the Department of Corrections until after his parole was revoked long after Noheart was transferred from the Washington Corrections Center. The order of commitment reads as follows:

WHEREAS, the Indeterminate Sentence Review Board, exercising the discretion vested in it by law, deems it to be in the public interest and for the best welfare of the parolee that said person's parole be revoked and said person be returned to state custody.

NOW, THEREFORE, the Indeterminate Sentence Review Board, by virtue of the authority vested in it by law, RCW 9.95.120, does hereby revoke the parole of Franklin Philip Noheart on the above referenced causes and authorizes and directs any peace or parole officer of the State of Washington, or any other state, to apprehend, take and hold said person in custody, and thereafter deliver the custody of said person to the agents of the Department of Corrections for transportation to a state correctional institution for convicted felons.

(emphasis added). Because Noheart was not an inmate in the custody of the Department of Corrections while he was detained at the IMU pending his parole revocation hearing, he was not entitled to the protection of the procedural rules set forth in the Code. Accordingly, the district court's order granting summary judgment to the appellants on the ground that Noheart failed to show that he was denied a substantive constitutional right in violation of procedural due process is AFFIRMED.

---------------