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finding that defendant railroad negligently failed to furnish its employees a reasonably safe place to work by failing to exercise due care in its inspection of the rail.
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Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Decided Sept. 19, 1988.
D.Ariz.
AFFIRMED.
On Appeal From the United States District Court for the District of Arizona (Phoenix); Robert C. Broomfield, District Judge, Presiding.
Before KOELSCH, CANBY and TROTT, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.
We affirm the district court's order granting the defendants' [hereafter the Arizona prison officials] motion for summary judgment in this 42 U.S.C.§ 1983 action. Having given Chambers' briefs and pleadings the liberal construction afforded a pro se litigant, our de novo review of the record manifests the conclusion that Chambers suffered no constitutional deprivation at the hands of the Arizona prison officials.
I
Chambers' first contention is that his detention in investigative lockup for a period exceeding thirty days and without a hearing violated his right to due process. He claims Rule I of the Inmate Reference Manual vested him with a liberty interest in being returned to the general prison population after thirty days of segregation if no formal charges have been brought. We disagree.
Rule I provides: "if, after having referred the matter to the local county attorney for criminal prosecution a criminal charge has not been filed by the local County Attorney within a period of thirty (30) days from the date of referral then the prison officials must at the end of said thirty-day period return said inmate to his original position in the prison population."
First, it is not entirely clear that Chambers was ever placed in investigative lockup and thus that he has standing to make such an argument. According to the affidavits of Major Barrows and Officer Turner, which affidavits accompanied the defendants' motion for summary judgment, Chambers was never placed in investigative lockup but was placed instead in the intensive custody unit, now known as administrative segregation. Major Barrows explained that Chambers was not put in investigative lockup because the investigation immediately following the alleged stabbing did not produce "ample evidence to pursue prosecution." Chambers did not by counter-affidavit refute the assertion that his placement was in administrative segregation. Indeed, in his affidavit supporting his motion opposing the defendants' motion for summary judgment, a motion filed after the district court had carefully instructed him how to respond to the motion for summary judgment, Chambers stated that "on 10-8-83 I was locked up in admin. segregation or I.C.U. or investigative lockup."
Arizona has not created in its state prisoners a liberty interest in freedom from administrative segregation. McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir.1986).
Second, even if Chambers has standing, a careful review of the pertinent Arizona regulations shows that Arizona has not created such a liberty interest. As we said in Toussaint v. McCarthy, 801 F.2d 108 (9th Cir.1986), "before we will recognize a constitutionally protected liberty interest, state law must direct that a given action will be taken or avoided only on the existence or nonexistence of specified substantive predicates." Id. at 1094.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4.
The Due Process Clause itself does not create such a liberty interest. See Hewitt v. Helms, 459 U.S. 460 (1983).
Arizona has not placed such substantive restrictions on the Director's discretion. The regulations in effect at the time Chambers was segregated (and the ones currently in effect) vest the Director with complete discretion to disregard other rules in Chapter One of the Administrative Code of Rules and Regulations (entitled "Department of Corrections") when he "or his designee determines, in his sole discretion, that adherence to the procedures ... may jeopardize the welfare or security of inmates, Department of Corrections staff or the public." See Former Ariz.Comp.Admin.R. & Regs. R5-1-201 (1980); see also Ariz.Comp.Admin.R. & Regs. R5-1-206 (1986). This regulation, comprehensive in nature, clearly takes precedence over any others; it does not employ the "shall/unless" or other language of an unmistakably mandatory nature that we found dispositive in Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 845 (9th Cir.1985) (Arizona has created no liberty interest in early release based on parole considerations) and in Toussaint, 801 F.2d at 1095 (California, through section 2931, has created a liberty interest in the "1 for 2" good-time credits). Thus, we conclude that Arizona has not created by statute, rule, regulation or otherwise a liberty interest for its prisoners to be free from retention in investigative lockup for a period in excess of thirty days even when formal charges have not been brought.
"Director" as we use it in the text refers to the Director of the Department of Corrections or his designees.
In this case, Chambers was kept in administrative segregation "to ensure inmate Chambers' own safety and the safe and orderly operation of the institution" and until the reclassification committee decided where to place him.
II
Chambers' second contention relates to his administrative transfer from a medium to a maximum security facility. This claim also fails because Former Ariz.Comp.Admin.R. & Regs. R5-1-206 applies with equal force in this context. Thus, Arizona has not created a liberty interest in freedom from administrative transfers to higher custody institutions.
The Due Process Clause does not create a liberty interest to be free from transfer to a maximum security prison absent a state law or practice conditioning such transfers on substantiated acts of wrongdoing or the occurrence of other events. Meachum v. Fano, 427 U.S. 215, 223-29 (1975).
Considering a similar argument in McFarland, we said, "we think it unlikely that state law created a liberty interest in remaining within the general prison population." Id. at 1428.
Moreover, the process afforded Chambers in reaching the determination to administratively transfer him was adequate. Cf. McFarland v. Cassady, 779 F.2d 1426, 1428 (9th Cir.1986) (administrative segregation). On November 1, 1983, well within the thirty day period following his removal from the general prison population, Chambers received written notice that he would be brought before the classification committee on or after November 8, 1983 for a status review as a "suspect in a serious assault" on another inmate. The notice informed Chambers that he had the right to appear at the hearing, have an employee of his choice represent and assist him, receive a written copy of the committee findings and appeal an adverse decision to the Director. Because no disciplinary proceedings were involved, this is all the process that was constitutionally required. Id.; see Hewitt v. Helms, 459 U.S. 460, 472 (1983) (inmate entitled to "an informal, non-adversary review of the information supporting (his) administrative confinement, including whatever statement he cared to submit").
III
This court's recent decision, Rickman v. Warden Avianti, No. 87-1975 (9th Cir. August 9, 1988), disposes of petitioner's final contention, that the strip search conducted when he was placed in investigative detention (or administrative segregation, as the case may very well be) violated his Fourth Amendment rights. In Rickman, we held the strip search procedure conducted by Arizona prison officials in the administrative segregation unit was constitutional. Citing Bell v. Wolfish, 441 U.S. 520, 547 (1979), we reasoned that such measures were well within the reasoned discretion of prison officials charged with the difficult task of maintaining prison discipline and security. Rickman, slip op. at 9679-81. The strip search in this case resulted from suspicion that petitioner had been involved in the murder of a fellow inmate; the searches in Rickman were routine. Hence, there is even more justification for the search in this case. Accordingly, the strip search also provides no foundation for Chamber's § 1983 claim.
We note in passing that Chambers failed to refute the Arizona prison officials' statements in their sworn affidavits that the search was reasonable.
IV
Because there is no material question of fact whether Chambers suffered any constitutional deprivation, summary judgment against his § 1983 claim against the Arizona prison officials was proper.
AFFIRMED.