The only question left regarding Mr. Jordan's administrative detention concerns his argument the regulations in 28 C.F.R. § 541.22 created a liberty interest triggering procedural due process protections officials denied him. Section 541.22 provides, in relevant part:

(c) Review of Inmates Housed in Administrative Detention.

(1) Except as otherwise provided in paragraphs (c)(2) and (c)(3) of this section, the Segregation Review Official will review the status of inmates housed in administrative detention. The SRO shall conduct a record review within three work days of the inmate's placement in administrative detention and shall hold a hearing and formally review the status of each inmate who spends seven continuous days in administrative detention, and thereafter shall review these cases on the record (in the inmate's absence) each week, and shall hold a hearing and review these cases formally at least every 30 days. The inmate appears before the SRO at the hearing unless the inmate waives the right to appear. A waiver may be in writing, signed by the inmate, or if the inmate refuses to sign a waiver, it shall be shown by a memorandum signed by staff and witnessed by a second staff member indicating the inmate's refusal to appear at the hearing. Staff shall conduct a psychiatric or psychological assessment including a personal interview, when administrative detention continues beyond 30 days. The assessment, submitted to the SRO in a written report, shall address the inmate's adjustment to surroundings and the threat the inmate poses to self, staff and other inmates. Staff shall conduct a similar psychiatric or psychological assessment and report at subsequent one-month intervals should detention continue for this extended period. Administrative detention is to be used only for short periods of time except where an inmate needs long-term protection (see § 541.23), or where there are exceptional circumstances, ordinarily tied to security or complex investigative concerns. An inmate may be kept in administrative detention for longer term protection only if the need for such protection is documented by the SRO. Provided institutional security is not compromised, the inmate shall receive at each formal review a written copy of the SRO's decision and the basis for this finding. The SRO shall release an inmate from administrative detention when reasons for placement cease to exist.

(2) The Warden shall designate appropriate staff to meet weekly with an inmate in administrative detention when this placement is a direct result of the inmates's holdover status. Staff shall also review this type of case on the record each week.

(Emphasis added.) Obviously, in viewing § 541.22(c) in its entirety, subsection (c)(1) requires a formal procedural process involving periodic hearings and reviews, while subsection (c)(2), which pertains to inmates in holdover status, requires only informal reviews. Keeping these distinctions in mind, we consider the applicable law on whether such provisions establish a liberty interest and what, if any, procedural due process must be afforded.

Our discussion begins with the law prior to Sandin. In the Supreme Court's earlier Hewitt decision, a deprivation analysis of an inmate's liberty interest focused on the language of the state or federal prison regulations and whether it was mandatory, as opposed to the subsequent Sandin requirement that courts look to the nature of the deprivation experienced by the inmate. See Beverati, 120 F.3d at 503 n.3. It is important to note that under Hewitt and prior to Sandin, "the analysis of whether a prisoner was deprived of a liberty interest focused not on the nature of the deprivation experienced by the prisoner, but on the language of the applicable prison regulations and whether such language was 'mandatory.'" Id. (relying on Sandin, 515 U.S. at 479-81). "The Supreme Court mandate since Sandin is that henceforth we are to review ... liberty interest claims arising from prison conditions by asking whether the prison condition complained of presents 'the type of atypical, significant deprivation in which a State might conceivably create a liberty ... interest.'" Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999) (quoting Sandin, 515 U.S. at 486). The Supreme Court in Sandin explained the problem in applying the regulation language method, stating "[b]y shifting the focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the nature of the deprivation, the Court encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges." 515 U.S. at 481. Nevertheless, since its decision in Sandin, the Supreme Court has acknowledged "a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations, subject to the important limitations set forth in Sandin ...," but explained, "[a]fter Sandin, it is clear that the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves." Wilkinson, 545 U.S. at ___, 125 S. Ct. at 2393-94.

Before further reviewing the regulation on which Mr. Jordan relies, it is also important to note that even before Sandin, the Hewitt Court made it clear administrative segregation of an inmate pending completion of an investigation of charges against him or for security reasons does not require elaborate procedural protections, but merely informal, nonadversary evidentiary review, such as notice of the charges against him and an opportunity to present his views, even if by written statement. See Hewitt, 459 U.S. at 475-77. Relying on Hewitt, we similarly determined "[a]dministrative segregation of an inmate, pending completion of an investigation of disciplinary charges against him, does not require elaborate procedural protections," but requires only the inmate be given notice of the charges against him, an opportunity to present his story, and the reasons for the administrative detention. Crispwell v. Gunter, 5 F.3d 545, 1993 WL 372689, at *2 (10th Cir. Sept. 24, 1993) (unpublished op.). Hewitt further instructed that whether a prisoner remains a security risk will depend on factors relating to the particular prisoner and the officials' general knowledge of prison conditions and tensions, and, similarly, the decision to continue confinement of an inmate pending an investigation may depend on the progress of the investigation. 459 U.S. at 477 n.9.

With this in mind, we turn specifically to § 541.22. Prior to the Supreme Court's decision in Sandin, this court rendered an unpublished decision in Moore v. Ham, in which we determined § 541.22 did not grant inmates a liberty interest in remaining in the general prison population and, alternatively, that the government did not deny the inmate in question due process under § 541.22, given the inmate received the required three-day review and was returned to the general prison population within three days. 1993 WL 5874, at *1. Since entry of that decision and the Supreme Court's decision in Sandin, this court has not directly addressed the liberty and due process interests afforded by 28 C.F.R. § 541.22(c) in a published opinion. Instead, in an unpublished decision, we declined to consider an inmate's contentions § 541.22 created a liberty interest or afforded due process protections and held "a [prison official's] failure to adhere to administrative regulations does not equate to a constitutional violation." See Malik v. Kindt, 76 F.3d 393, 1996 WL 41828, at *2 (10th Cir. Feb. 2, 1996) (unpublished op.) (quoting Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993)). In another unpublished case, this court generally determined "[n]either the Due Process Clause of the Constitution, nor the federal regulations governing placement of inmates in administrative detention, provide an inmate with a liberty interest in remaining in the general prison population." Villarreal, 1999 WL 1063830, at *2. At least one circuit court has agreed with our assessment. In Crowder v. True, the Seventh Circuit applied the principles in Sandin to conclude periodic review of administrative detention placement under § 541.22(c) bears none of the pivotal characteristics of an atypical and significant hardship on prisoners in relation to the ordinary incidents of prison life and does not constitute a dramatic departure from the basic conditions or duration of prisoners' sentences, and therefore, it does not create a constitutionally protected liberty interest.⁽¹²⁾ 74 F.3d 812, 815 (7th Cir. 1996).

In this case, it is important to note Mr. Jordan became a holdover inmate, to which the formal procedural requirements in 28 C.F.R. § 541.22(c)(1) do not apply. Instead, the regulations applicable to Mr. Jordan as a holdover status inmate required only an informal weekly review. See 28 C.F.R. § 541.22(c)(2). Even if the formal review and hearing requirements of § 541.22(c)(1) applied, this court has consistently held, albeit by unpublished opinion, that § 541.22 creates no liberty interest under either pre- or post-Sandin principles; furthermore, under these decisions, officials would not have been on notice of clearly established law requiring formal procedural review under § 541.22.

Alternatively, even if we apply the minimal procedural requirements articulated in Hewitt for administrative detentions pending investigation, it is clear Mr. Jordan received the requisite informal, nonadversary evidentiary review during his criminal investigation. First, Mr. Jordan received notice of the charges against him as well as the reasons for his placement in administrative detention within the first twenty-four hours. While it is not clear whether Mr. Jordan received an immediate opportunity to provide an oral or written statement contesting his administrative detention, a grievance procedure was immediately available to him, which he utilized at least seventeen times prior to the murder on June 3, 1999, including on August 20, 1996, to contest his placement in administrative detention and on June 19, 1998, to contest his alleged denial of visitation privileges while in similar special housing unit holdover status. See 28 C.F.R. §§ 542.10, 542.13, 542.14, and 542.15. Nevertheless, he did not file a written statement contesting his placement in administrative detention until February 15, 2000, when he filed his initial grievance, after which he filed at least eight more grievances on the same grounds, which were subsequently denied. The record clearly shows the prison officials' decisions to deny his grievances and continue his confinement were based, in large part, on the pending investigation and his security risk to other inmates and staff. Thus, even assuming a liberty interest was created by placing Mr. Jordan in administrative segregation, he was extended minimum due process when he received notice of the charges supporting his segregation, had an opportunity to present his story, and was given reasons for the detention. Under these circumstances, Mr. Jordan has not met his burden of showing a constitutional or statutory right was established by means of statute, regulation, or under other due process considerations; nor has he shown prison officials should have been aware of any clearly established law requiring he receive a more formal means of procedural due process beyond the informal procedural due process described in Hewitt or any of the subsequent requirements articulated in Sandin or by this court.

Least convincing of all of Mr. Jordan's arguments is his retaliation claim. While we acknowledge that "prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights," an inmate must demonstrate the action was taken because of the exercise of his constitutional rights. Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (quotation marks and citation omitted). Consequently, to prevail on his retaliation claim, Mr. Jordan "must prove that 'but for' the retaliatory motive, the incidents to which he refers ... would not have taken place." Id. (quotation marks and citation omitted). In this case, the record clearly establishes his continued administrative detention was based on his pending criminal investigation and prosecution for the June 3, 1999 murder of another inmate, as well as justified security concerns. As the district court determined, Mr. Jordan has not shown that "but for" his refusal to confess to the crime or implicate another individual, he would not have remained in administrative detention.

Finally, this court previously held as moot Mr. Jordan's request for injunctive and declaratory relief from administrative detention because of his indictment and transfer to another prison pending his criminal prosecution for the murder of the other inmate. See Jordan v. Hood, 117 Fed. Appx. at 32. We decline to address this issue a second time on appeal. The fact Mr. Jordan is currently in administrative detention following his trial and conviction does not warrant our review, given it is not the same administrative detention pending his murder investigation which he contested in the Bivens complaint before us.

For the reasons articulated herein, we AFFIRM the district court's grant of summary judgment to the Appellees. While this panel previously granted Appellees' Motion to Further Supplement the Record, filed September 14, 2005, we now further GRANT the following motions:

1) Appellees' Motion to Supplement Record, filed July 20, 2004;

2) Appellees' Motion to Further Supplement Record, filed September 12, 2005; and

3) Appellant's Pro Se Motion to Further Supplement the Record on Appeal, filed October 14, 2005.

Entered by the Court:

WADE BRORBY

United States Circuit Judge

^*. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

^1. All claims against Defendants Kathleen Hawk, G. Hershberger, and the Federal Bureau of Prisons were dismissed in prior orders and are not part of this appeal.

^2. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

^3. As to his placement ten days later in the special housing unit, prison officials explained an investigation is not considered closed until the inmate is criminally charged and/or the Federal Bureau of Investigation releases its primary jurisdiction allowing the Bureau of Prisons to complete its investigation and administratively discipline an inmate for homicide, and they could not determine Mr. Jordan's classification for permanent placement in a facility commensurate with his security needs until the criminal matter was resolved, which resulted in his holdover status in administrative detention.

^4. Specifically, they explained inmates in disciplinary segregation do not have a television set or radio, cannot participate in hobby craft or possess certain personal property, do not have commissary privileges, and may only receive one social telephone call every ninety days; and that inmates in the control unit have even fewer privileges than those in disciplinary segregation.

^5. In his counseled brief, Mr. Jordan does not appeal the district court's dismissal of the Eighth Amendment claims but concentrates instead on his Fifth Amendment procedural due process claims dismissed in the instant summary judgment disposition.

^6. Prison officials also suggest all of Mr. Jordan's claims should be dismissed under the total exhaustion rule announced in Ross v. County of Bernalillo, 365 F.3d 1181, 1188-90 (10th Cir. 2004), because he failed to exhaust his Eighth Amendment dry cell claim. In his counseled reply brief, Mr. Jordan counters that the law at the time of his case did not require "total exhaustion"; the "total exhaustion" requirement was not imposed until five years after he filed his complaint; prison officials did not raise the "total exhaustion" issue during litigation; and the Ross decision permits dismissal without prejudice, which would merely lead to Mr. Jordan refiling the same lawsuit without the Eighth Amendment dry cell claim, resulting in resolution of the same due process issues before this court on appeal. We note Mr. Jordan incorrectly claims prison officials did not previously raise this issue during the district court litigation; instead, the record shows they clearly raised it early in litigation. Nevertheless, we find Mr. Jordan's other arguments persuasive, and for the purposes of judicial efficiency, we reject the prison officials' total exhaustion argument and proceed to the merits of the issues raised in this appeal.

^7. Another consideration in determining if a liberty interest is created is whether the detention increased the length or duration of the sentence imposed. See generally Wilson v. Jones, 430 F.3d 1113, 1120-21 (10th Cir. 2005), petition for cert. filed, (U.S. Jun. 16, 2006) (No. 05-1618); Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir. 2002) (relying on Sandin, 515 U.S. at 487); Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998). However, that issue is not presented here.

^8. Relying on Thomas v. Gunja, 110 Fed. Appx. 74, 75-76 (10th Cir. Sept. 14, 2004) (unpublished op.) (ruling transfer to a restrictive unit of another prison did not create atypical circumstance for purpose of creating a liberty interest); Weatherall v. Scherbarth, 208 F.3d 228, 2000 WL 223576, at **1-2 (10th Cir. Feb. 28, 2000) (unpublished op.) (finding no liberty interest in reclassification into administrative segregation); Chappell v. McKune, 201 F.3d 447, 1999 WL 1079618, at *1 (10th Cir. Nov. 30, 1999) (unpublished op.), aff'g 1999 WL 381802, at *2 (D. Kan. May 26, 1999) (affirming district court decision on summary judgment which held inmate's lengthy stay of approximately 1000 days in administrative segregation was not atypical given inmate received all the privileges and incentives commensurate with his same security level); Villarreal v. Harrison, 201 F.3d 449, 1999 WL 1063830, at *2 & n.1 (10th Cir. Nov. 23, 1999) (unpublished op.) (upholding summary judgment decision explaining two-year duration of administrative detention, even with conditions involving restricted telephone privileges and eating alone in cell, did not establish conditions dramatically different from those in the general population); Blum v. Fed. Bureau of Prisons, 189 F.3d 477, 1999 WL 638232, at *3 (10th Cir. Aug. 23, 1999) (unpublished op.) (considering disciplinary detention and concluding ninety-day confinement without store privileges, radio, and phone calls as enjoyed by other inmates in segregation did not differ in significant degree and duration to create a protected liberty interest); Gutierrez v. Shanks, 153 F.3d 727, 1998 WL 380958, at *2 (10th Cir. July 9, 1998) (unpublished op.) (instructing in a motion to dismiss case that administrative segregation for over one year was not sufficient to distinguish confinement from that of other inmates for the purpose of creating a liberty interest); Klein v. Coblentz, 132 F.3d 42, 1997 WL 767538, at *3 (10th Cir. Nov. 19, 1997) (unpublished op.) (deciding 584-day administrative segregation failed to raise due process issue for summary judgment purposes); Jones v. Fields, 104 F.3d 367, 1996 WL 731240, at **1-2 (10th Cir. Dec. 20, 1996) (unpublished op.) (holding fifteen-month administrative segregation did not impose atypical and significant hardship on inmate for purpose of summary judgment disposition).

^9. See, e.g. Jones v. Baker, 155 F.3d at 812-13 (6th Cir.) (upholding administrative segregation over 900 days was not "atypical" under the Due Process Clause, given confinement was not much different than experienced by other inmates in segregation); Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (determining six-month placement in administrative segregation was not atypical compared with the general prison population even though officials kept inmates in their cells except for three to four times each week; denied them outside recreation, educational, and religious services; warm or large portions of food, and clean clothing and bedding; and inmates' cells were infested with vermin, smeared with human feces and urine, flooded with water, and unbearably hot); Griffin v. Vaughn, 112 F.3d 703, 706-09 (3d Cir. 1997) (concluding fifteen-month administrative segregation was within the "expected parameters of the sentence imposed on him," and that Pennsylvania regulations on such confinement did not deprive him of a liberty interest or entitlement to procedural due process); Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996) (concluding inmate's contention that Texas prison policies on administrative segregation created a protectable liberty interest lacked an arguable basis in law or fact and that "[i]n the wake of Sandin, ... administrative segregation, without more, simply does not constitute a deprivation of a constitutionally cognizable liberty interest").

^10. See, e.g., Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (stating, without analysis, it was "unaware of any data showing New York frequently removes prisoners from the general population for as long as ... 305 days); Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th Cir. 1996) (merely assuming that inmate suffered liberty interest deprivation based on disciplinary sanction of one year solitary confinement).

^11. See also Griffin, 112 F.3d at 705, 708 (determining stay of many months in administrative detention pending investigation into inmate's alleged rape of female prison guard fell within prison officials' security risk considerations and was not uncommon); Jones v. Fields, 1996 WL 731240, at *2 (stating "[a]dministrative segregation due to legitimate concerns about [the inmate's] escape history and prison security did not impose an atypical and significant hardship ... in relation to the ordinary incidents of prison life"); Duarte v. Henman, 986 F.2d 1427, 1992 WL 403128, at *1 (10th Cir. Dec. 29, 1992) (unpublished op.) (holding prisoners have very limited due process rights when prison officials address prison security issues in case where inmate was placed in administrative detention pending investigation of his planned escape attempt).

^12. We find unpersuasive the pre-Sandin reasoning by the Second Circuit in Tellier v. Fields, which focused almost exclusively on the mandatory language of § 541.22(c)(1), rather than the nature of the deprivation, to determine the inmate's liberty interest was violated. 280 F.3d 69, 80-83 (2d Cir. 2000). For the same reasons, we find the Eleventh Circuit's decision in Magluta v. Samples equally unpersuasive. 375 F.3d 1269, 1280-82 & n.8 (11th Cir. 2004).

| Keyword | Case | Docket | Date: Filed / Added |     (98005 bytes)     (81766 bytes)