United States Court of Appeals,

Fifth Circuit.

No. 93-3456.

Edward GIOVANNI, Plaintiff-Appellant,

v.

Bruce LYNN, Secretary, Department of Correction, State of Louisiana, et al., Defendants-Appellees.

April 3, 1995.

Appeal from the United States District Court for the Middle District of Louisiana.

Before POLITZ, Chief Judge, GARWOOD and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

In this case, we are called on to decide whether a state

prisoner placed in extended lockdown for disciplinary violation

after a constitutionally adequate hearing, has a protected liberty

interest in being released from lockdown when the violation is

administratively expunged from his record for failure of the

Secretary of the state Department of Corrections to act on his

appeal within the 120-day limit imposed by the prison disciplinary

rules. We hold that no protectible liberty interest is created by

this appeal procedure and therefore affirm the judgment of the

district court dismissing appellant's claims.

Facts and Proceedings Below

Plaintiff-appellant Edward Giovanni (Giovanni) is an inmate at

the Louisiana State Penitentiary at Angola (the Prison). On August

22, 1988, Prison officials issued an incident report charging

Giovanni with planning an escape and possessing materials necessary

1 to effectuate an escape.1 A full disciplinary hearing was held on

August 24, at which Giovanni was found guilty and sentenced to

extended lockdown. Under the Prison's disciplinary rules, extended

lockdown is an appropriate penalty for Giovanni's violation. See

State of Louisiana Department of Public Safety and Corrections,

Disciplinary Rules and Procedures for Adult Prisoners 4 (February

5, 1986) ("No prisoner can be placed in extended lockdown for any

reason unless he has been afforded a full hearing before the

Disciplinary Board and was found guilty of ... being a serious

escape risk ...").

Giovanni filed an appeal on August 27, 1988. Prison

regulations give the Secretary of the Louisiana Department of

Correction 120 days to grant or deny a prisoner's appeal; any

appeal not processed within the 120-day limit is automatically

granted. Solely because the Secretary failed to take any action on

Giovanni's appeal within the 120-day period, the appeal was

"granted" on February 22, 1989. According to the Prison's Chief

Legal Counsel, however, "such "granteds' are considered

technicalities. While the report is to be removed from the

inmate's disciplinary record for the purpose of future action, no

other remedy is necessary. He/she will not receive any return of

any privilege lost." (Emphasis in original). Giovanni was

1 Prison security had received reports from confidential informants inside the Prison that Giovanni and another prisoner were attempting to make a key and were planning an escape. Based on this information, Prison officials searched Giovanni's cell and locked hobby shop box. They found a pair of wire cutters and a round file inside the hobby shop kit and a homemade metal key in a "butt can" underneath Giovanni's bed.

2 notified that his appeal had been "granted" on April 27, 1989, and

the disciplinary report was expunged from his record on April 28,

1989.

At that time, inmate appeals were processed by a three-member

panel in a closed review procedure. Continued lockdown status was

reviewed about every ninety days thereafter by a lockdown review

board, again in a closed procedure. Giovanni's case was

periodically reviewed by the board pursuant to these procedures,

but it was determined that he posed a continuing threat to

security, and he remained in extended lockdown. The lockdown

review reports indicated that Giovanni was not released from

extended lockdown in part because of the nature of his original

offense.2 Although the disciplinary report had been expunged from

Giovanni's record, a summary of the charges was placed in his

file.3

On March 27, 1990, a state court held a hearing on a writ of

2 At the hearing before the magistrate judge, various Prison officials testified that the nature of the original offense would be an important consideration in their decision whether to keep an inmate in extended lockdown and that, if such information were not part of the record, they would seek it out. They also testified, however, that the decision to keep an inmate in extended lockdown was based on the inmate's entire disciplinary history, not merely any particular incident. The most recent record document shows that Giovanni's disciplinary record included some twenty-three separate citations, of varying degrees of seriousness, including an April 2, 1987, report for threat to security, for which Giovanni was placed in extended lockdown. 3 According to an exhibit Giovanni submitted at the February 9, 1993, hearing before the magistrate judge, the decision to place such a summary of the disciplinary action and the reasons for it in an inmate's file after the report has been expunged is made by the Disciplinary Board on a case-by-case basis and has long been the policy of the Prison.

3 habeas corpus by another Angola inmate. Fulford v. Smith, No.

11,602 (20th Judicial Dist., La. March 27, 1990). The court there

decided that, when an appeal was "granted" because of the

Secretary's failure to respond within 120 days, the inmate's

disciplinary report must be expunged and that, at each subsequent

periodic review, the inmate must be given notice and an opportunity

to be present. Pursuant to this new procedure, Prison officials

reviewed Giovanni's status on April 1, 1990, and released him from

extended lockdown on April 4, 1990.

Giovanni filed the present suit on September 26, 1989,

challenging the fairness of the August 24, 1988, disciplinary

hearing and the timeliness and outcome of his subsequent appeal.

Specifically, and most significant for present purposes, he

complained that he was denied due process because, although his

appeal had been "granted," he had not been released from extended

lockdown. He sought monetary and injunctive relief under

. The Prison moved to dismiss Giovanni's claims under Rule

12(b)(6). The magistrate judge recommended that most of Giovanni's

claims related to the procedures employed in his August 24

disciplinary hearing be dismissed, and the district court adopted

those recommendations and granted the Prison's motion to dismiss in

part on May 17, 1990.4 However, taking the allegations of

Giovanni's complaint as true and noting that the Prison had brought

4 The district court also adopted the magistrate judge's recommendation to consolidate Giovanni's original suit with a subsequent complaint he had brought against additional defendants.

4 forth no evidence to disprove them, the magistrate judge found that

Giovanni's claim that the granting of his appeal for lapse of the

120-day response period entitled him to be returned to his former

custody status, stated a claim for denial of a protected liberty

interest that could not be dismissed under Rule 12(b)(6).

The magistrate judge held a hearing on February 9, 1993, to

consider this remaining claim. He noted that Giovanni's arguments

that a prisoner has a protected liberty interest in remaining free

from extended lockdown, based on this Court's decision in McCrae v.

Hankins,

(5th Cir. 1983), were wide of the mark because

that interest was not implicated when, as in Giovanni's case, the

inmate had been lawfully placed in extended lockdown. The

magistrate judge found that neither the 120-day automatic grant of

appeal rule nor the state court decision in Fulford created a

protected liberty interest in being released from extended lockdown

and recommended dismissing the suit with prejudice.5 The district

court adopted the magistrate judge's recommendations and dismissed

the suit with prejudice on June 2, 1993.

It is this order that Giovanni now appeals. In his pro se

brief, Giovanni addresses only the asserted liberty interest

created by the practice of expunging disciplinary reports when the

120-day period has passed without action by the Secretary on the

appeal. We therefore do not reach the other findings of the

5 The magistrate judge also determined that Giovanni had no protectible liberty interest arising from either the Louisiana Administrative Procedure Act or a remedial consent decree entered into by the Prison in an earlier suit. See infra, note 6.

5 magistrate judge's report adopted by the district court. See

supra, note 5.6

Discussion

In the context of prisoners placed in more restrictive

confinement, a protected liberty interest can arise in one of two

ways: when the restriction is imposed for a punitive (as opposed

to an administrative) purpose, and when a state regulation creates

a liberty interest. Mitchell v. Sheriff Department, Lubbock

County, Texas,

(5th Cir. 1993). Assuming,

arguendo, that Giovanni's lockdown was for a punitive, as opposed

to an administrative, purpose, under our holding in Mitchell the

process due would be that prescribed in Hewitt v. Helms,

,

,

(1983). It is not contended in

this appeal that the August 24, 1988, hearing did not fully satisfy

all the requirements of Hewitt. Moreover, Hewitt does not require

that there be any provision for appeal.7 Consequently, the failure

to act on Giovanni's appeal could not deprive him of the process he

was due by virtue of the assumed punitive nature of the lockdown.

6 In any event, previous decisions of this Court support the magistrate judge's report in these respects. See Green v. McKaskle,

(5th Cir. 1986) (holding that remedial decrees do not create constitutional rights); Martin v. Blackburn,

(5th Cir. 1978) (per curiam) (holding that failure of prison officials to follow Louisiana Administrative Procedure Act did not state a claim under section 1983). 7 Nor, indeed, is provision for appeal, following an adequate hearing, required under the more stringent standards of Wolff v. McDonnell,

,

,

(1974), applicable to loss of good time credits (as to which the state law had created a liberty interest).

6 Giovanni's claim, however, is that he had a liberty interest

by virtue of the Prison disciplinary rules.

"[A] State creates a protected liberty interest by placing

substantive limitations on official discretion." Olim v.

Wakinekona,

,

,

(1983). To satisfy this standard, a regulation must fulfill two

requirements: it must "establish[ ] "substantive predicates' to

govern official decisionmaking and, further, ... mandat[e] the

outcome to be reached upon a finding that the relevant criteria

have been met." Kentucky Dep't of Corrections v. Thompson,

,

,

(1989)

(citation omitted). The Supreme Court has also made clear that, to

create a liberty interest, the law or regulation at issue must

contain "explicitly mandatory language," that is, that it must

"requir[e] that a particular result is to be reached upon a finding

that the substantive predicates are met."

,

(footnote omitted).

This Court has previously held that the Louisiana Department

of Corrections Regulations prescribing reasons for placement in

extended lockdown were sufficient to create a liberty interest in

not being confined to extended lockdown without due process.

McCrae v. Hankins,

(5th Cir. 1983). This is

because "[t]he discretion of a Louisiana disciplinary board to

place an inmate in extended lockdown is ... substantively limited

by "particularized standards or criteria [that] guide the ...

decisionmakers' " in classifying inmates to extended lockdown.

7 at 868 (citation omitted).8 Thus, under the regulations, there is

a protected liberty interest in not being transferred to extended

lockdown from the general prison population. But Giovanni does not

challenge before us, and we think the record fully supports, the

district court's conclusion that Giovanni was afforded appropriate

due process protections at his initial disciplinary hearing.

The essence of Giovanni's position is that he was in

substance denied the appeal provided for in the regulations,

because the Secretary did not act on the appeal within the 120 days

required by the regulation and, although as a result his

disciplinary violation was expunged, he was nevertheless not

returned to the general prison population nor afforded a new

hearing. We reject this contention. The rule states simply, "The

Secretary will issue all appeal decisions within 120 days of the

date of the last hearing for each case." It contains no other

standards or criteria to substantively guide or limit the Secretary

in rendering his appeal decisions, nor does it mandate a particular

outcome or a particular form of relief should the Secretary fail to

render a decision within the time period. In our unpublished

decision in Bay v. Lynn, No. 92-3409,

(5th Cir. April

5, 1993) (per curiam), we held that

"[t]he rules, although providing for "appeal decisions within 120 days,' contain no language that grants a separate right "not to be punished at all if a proper appeal is not conducted.' ... [T]he disciplinary rules do not contain a "substantive predicate' mandating the grant of an appeal or

8 We also held in McCrae that the process which was due for placement in extended lockdown was that mandated by Hewitt v. Helms. McCrae,

.

8 any other outcome should the appeal decision not be rendered within 120 days...." Id. at 6.

Because the 120-day rule does not satisfy the criteria set forth in

Kentucky Dep't of Corrections v. Thompson, it creates no

protectible liberty interest in being released from extended

lockdown. Thus, the general rule that prisoners have no protected

interest in a particular custodial classification applies, and

Giovanni can state no cause of action under section 1983. McGruder

v. Phelps,

(5th Cir. 1979) (citing Fulford v.

Phelps,

(La.App. 1978)).

Moreover, where a liberty or property interest is infringed,

the process which is due under the United States Constitution is

that measured by the due process clause, not that called for by

state regulations. Cleveland Board of Education v. Loudermill,

,

,

(1985).

Mere failure to accord the procedural protections called for by

state law or regulation does not of itself amount to a denial of

due process. See, e.g., Murphy v. Collins,

(5th

Cir. 1994); Brown v. Texas A & M University,

(5th

Cir. 1986); Levitt v. University of Texas at El Paso,

(5th Cir.), cert. denied,

,

,

(1985); Martin v. Blackburn,

(5th Cir. 1978). Thus, in Jackson v. Cain,

(5th

Cir. 1989), a prisoner-plaintiff alleged "that a constitutional

violation occurred because he was not accorded the level of process

provided for in the DOC handbook."

. We stated: "This

argument must fail. A state's failure to follow its own procedural

9 regulations does not establish a violation of due process, because

"constitutional minima may nevertheless have been met.' "

(quoting Brown ). The August 24, 1988, hearing fulfilled all the

constitutional minima and afforded Giovanni all the process he was

due under the United States Constitution. The failure to accord

relief (beyond expungement of the disciplinary violation from the

record) when the Secretary did not act on his appeal within the 120

days provided by the regulation did not violate the United States

Constitution.

Nor does the state trial court holding in Fulford v. Smith

undercut our decision. Fulford places no substantive constraints

on official decisionmaking but simply prescribes additional

procedures to be followed in rendering what is otherwise still a

wholly discretionary decision.9 As noted, a simple failure to

comply with state procedural requirements may be a violation of

state law, but it does not constitute a constitutional violation.

We thus hold that, once an inmate has been properly placed in

extended lockdown and afforded the full process required by Hewitt,

the failure to release him to the general prison population or to

afford him a further hearing because of the Secretary's failure to

act on his appeal within the 120 days specified in the regulation

does not violate his due process rights.

Conclusion

9 Nor does Fulford place inmates who have been assigned to extended lockdown following an otherwise valid disciplinary hearing on the same footing with inmates who have never been found guilty of a violation in the first place.

.

10 The judgment of the district court is

AFFIRMED.

11