                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit
No. 16-2444

                             JWAINUS PERRY,

                        Plaintiff, Appellant,

                                     v.

      LUIS S. SPENCER, Commissioner; THOMAS DICKAUT, Former
        Superintendent; ANTHONY MENDOSA, Former Deputy of
   Classification; JAMES SABA, Superintendent; ABBE NELLIGAN,
 Deputy of Classification; PATRICK TOOLIN, Correctional Program
     Officer; KRISTIE LADOUCER; CAROL MICI; THOMAS NEVILLE,

                       Defendants, Appellees,

                  JENS SWANSON, Property Officer,

                                Defendant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. M. Page Kelley, Magistrate Judge]


                                  Before

                        Howard, Chief Judge,
                Lynch and Thompson, Circuit Judges.


     Jwainus Perry on brief pro se.
     Nancy Ankers White, Special Assistant Attorney General, with
whom, Sheryl F. Grant, Counsel, was on brief, for appellee.


                            August 29, 2018
       Per Curiam.        Jwainus Perry, a Massachusetts state prison

inmate, brought an action under 42 U.S.C. § 1983 against a number

of   Massachusetts        Department       of   Correction    ("DOC")       officials

claiming, inter alia, procedural due process violations based on

his confinement in non-disciplinary segregation for over 600 days.

Perry now seeks review of            the    district      court's     determination

that     defendants       were   entitled to qualified immunity on that

claim. He has also filed a motion to expand the record. To the

extent     the   motion    seeks     to    expand   the      record    to    include

documents     not   presented      to     the district court, it is denied,

as   the     material     is   outside     the purview of Fed. R. App. P.

10(e). See United States v. Rivera-Rosario, 300 F.3d 1, 9 (1st

Cir. 2002) (Rule 10(e) "is not a procedure for putting additional

evidence, no matter how relevant, before               the     court    of   appeals

that   was    not   before     the   district court") (internal quotation

marks omitted). As to the merits of the appeal, we affirm the

district court's September 30, 2016, Memorandum and Order for the

reasons that follow.

                                     BACKGROUND

       We assume familiarity with the relevant facts, which are set

out at length in the district court's decision and recounted only

briefly here.

       Since 2004, Perry has been in the custody of DOC, sentenced


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to life without parole for first-degree murder. In December 2010,

after    prison   authorities        received    information        indicating   that

Perry was threatening gang-related retaliation and assault, Perry

was placed in administrative segregation in a Special Management

Unit ("SMU") at Souza Baranowski Correctional Center ("SBCC") on

"awaiting action" status, pending investigation; Perry was also

awaiting       custody   level       classification,          having    just     been

transferred to SBCC from another institution. DOC officials had

earlier determined that Perry was a member of a "Security Threat

Group" ("STG") or gang, known as Academy Homes, and SBCC officials

had concerns about ongoing tensions between Academy Homes and a

rival     STG.    SBCC      officials      determined        that    administrative

segregation was necessary because Perry posed an immediate threat

to the safety and security of the institution. Perry denied any

gang affiliation and challenged the reliability and sufficiency of

the   information     supporting       both   his      STG   designation   and   the

determination that he posed a security threat.

        In February 2011, a classification decision was made to screen

Perry    for   out-of-state     placement        due   to    STG-related   security

concerns. Perry remained in the SMU on awaiting action status,

first     at   SBCC   and     then    at   the      Massachusetts      Correctional

Institution ("MCI") at Cedar Junction for a total of approximately

fifteen consecutive months, interrupted only by a ten-day stay in

the health services unit after going on a hunger strike to protest

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his prolonged confinement in the SMU. After fifteen months, Perry

was transferred to a prison in Connecticut for six months. Upon

return to Massachusetts, he was again placed in an SMU at MCI-

Cedar Junction for an additional period of five months. In February

2013, Perry was released into the general population at MCI-

Shirley. In    total,   Perry    spent    611     days   in   administrative

segregation.

     The conditions in the SMU were akin to solitary confinement.

Throughout    Perry's   SMU   confinement,      prison   officials   reviewed

Perry's SMU placement and awaiting action status approximately

three times per week. Perry was informed that the administrative

reviews had occurred and that a decision to continue his awaiting

action status had been made, but he was not involved in the review

process and there was no means of appealing the status review

determinations.

                                DISCUSSION
A. Legal Standards

     We review de novo the district court's determination that

defendants were, as a matter of law, entitled to qualified immunity

with respect to the procedural due process claim based on Perry's

extended placement in the SMU. Wilber v. Curtis, 872 F.3d 15, 20

(1st Cir. 2017). We "must 'affirm if the evidence, viewed in the

light most favorable to [the] plaintiff[], shows that there is no

genuine issue as to any material fact and that the [officers are]


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entitled to summary judgment as a matter of law.'" Id. (quoting

Abreu-Guzmán v. Ford, 241 F.3d 69, 73 (1st Cir. 2001)).

     "[Q]ualified immunity shields officials from civil liability

so long as their conduct 'does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.'" Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

(per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(internal quotation marks and citation omitted). Thus, to avoid

summary judgment for the defendant based on qualified immunity, a

plaintiff    must   show   that   the   defendant's   actions   violated    a

specific statutory or constitutional right, and that the right

allegedly violated was clearly established at the time of conduct

in issue. See Mitchell v. Miller, 790 F.3d 73, 77 (1st Cir. 2015)

("The plaintiff bears the burden of demonstrating that the law was

clearly established at the time of the alleged violation, and it

is a heavy burden indeed"); Lopera v. Town Of Coventry, 640 F.3d

388, 396 (1st Cir. 2011) ("A finding that a right was not clearly

established at the time of the alleged violation is sufficient to

warrant a finding of qualified immunity").

     The "clearly established" inquiry has two components. Alfano

v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017). First, a plaintiff must

"identify either 'controlling authority' or a 'consensus of cases

of persuasive authority' sufficient to send a clear signal to a

reasonable   official      that   certain   conduct   falls   short   of   the

                                    - 5 -
constitutional norm." Id. (quoting Wilson v. Layne, 526 U.S. 603,

617 (1999)). "[W]e examine 'not only Supreme Court precedent, but

all available case law, including both federal cases outside our

own circuit, and state court decisions of the state wherein the

officers operated[.]" Wilson v. City of Boston, 421 F.3d 45, 56-

57 (1st Cir. 2005) (quoting Suboh v. District Attorney's Office,

298 F.3d 81, 93 (1st Cir. 2002) (citations omitted)); see Starlight

Sugar, Inc. v. Soto, 253 F.3d 137, 143-44 (1st Cir. 2001). Second,

"the    court    must   evaluate    'whether      an   objectively         reasonable

official in the defendant's position would have known that his

conduct violated that rule of law.'" McKenney v. Mangino, 873 F.3d

75, 81 (1st Cir. 2017), cert. denied, 138 S.Ct. 1311 (2018) (quoting

Alfano, 847 F.3d at 76). "These inquiries are carried out with

the    understanding     that   qualified      immunity     is   meant     to shield

'all but the plainly incompetent or those who knowingly violate

the law.'" McKenney, 873 F.3d 75 at 81 (quoting White v. Pauly,

137 S.Ct. 548, 551 (2017) (per curiam)) (citation omitted).

B. Procedural Due Process

       Perry claims that defendants violated his right to procedural

due    process    by    confining   him     in   the      SMU    without    adequate

justification,      opportunity     to    be     heard,     meaningful      periodic

review, or avenue for appealing his placement. He contends that

the stated reasons for his placement in the SMU were used as a

pretext for indefinite confinement in restrictive segregation, and

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that the periodic reviews by defendants were                         perfunctory. To

prevail on this claim, Perry must demonstrate (1) that defendants

deprived    him    of    a     cognizable      liberty     interest,    (2)      without

constitutionally sufficient process. Swarthout v. Cooke, 562 U.S.

216, 219 (2011).

        Inmates do not have a protected liberty interest in avoiding

restrictive    conditions          of    confinement      unless    those   conditions

"'impose[] atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.'" Wilkinson v.

Austin, 545 U.S. 209, 223 (2005) (quoting Sandin v. Conner, 515

U.S. 472, 484 (1995)). As the Court recognized in Wilkinson,

however,    "the     Courts       of    Appeals    have   not   reached     consistent

conclusions for identifying the baseline from which to measure

what is atypical and significant in any particular prison system."

Wilkinson,     545      U.S.      at    223.    The Wilkinson       Court    found   it

unnecessary to define "atypical and significant hardship" because

it found that the conditions in that case met that standard "under

any plausible baseline." 545 U.S. at 223. There, inmates challenged

their     assignment         to    administrative         segregation       in   Ohio's

"supermax"    prison,        where      the    conditions    were    "sever[e]"      and

"synonymous with extreme isolation." Id. at 214. The Court did not

find that the conditions created a liberty interest by themselves,

however; it also relied on the fact that placement in the supermax

facility was indefinite and it disqualified otherwise eligible

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inmates from consideration for parole. Id.

     In 2012, the Massachusetts Supreme Judicial Court considered

whether ten months in the SMU at SBCC on awaiting action status

satisfied   the    "atypical     and   significant    hardship"    standard.

LaChance v. Commissioner of Correction, 463 Mass. 767, 776-77

(2012). Noting that the restrictive conditions in the SMU were

substantially similar to those described in Wilkinson, and far

more restrictive than the conditions in the general population

unit, the SJC concluded that the ten-month period of confinement

was sufficient to satisfy the standard and implicate a protected

liberty interest subject to due process protections, and further

held that the interest attaches after ninety days. See id. However,

the Court acknowledged that it was announcing a new rule, and that

up to that point, no federal or state court decision had clearly

articulated the point at which a liberty interest in avoiding

segregated confinement arose. See id. at 778.

     Noting that Perry was released from the SMU just after LaChance

was decided, the district court here reached the same conclusion

as the SJC, and found that defendants were entitled to qualified

immunity because it would not have been obvious to prison officials

in 2010 whether or at what point Perry's confinement in the SMU

on awaiting action status became "atypical and significant." We

agree.   While    the   restrictive      conditions    in    the   SMU   were

substantially     similar   to   those   described    in    Wilkinson, other

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circumstances were arguably distinguishable and, while a number

of courts    had, prior to 2010, held that periods of solitary

confinement shorter than Perry's were sufficient to give rise to

a liberty interest, see, e.g., Marion v. Columbia Corr. Inst., 559

F.3d 693, 697-99 & nn. 3-4 (7th Cir. 2009) (240 days in segregated

confinement potentially implicates liberty interest), other courts

had found comparable periods insufficient. See, e.g., Estate of

DiMarco v. Wyoming Dep't of Corr., 473 F.3d 1334 (10th Cir. 2007)

(14 months in administrative segregation insufficient). Given the

varying approaches to measuring atypicality and the absence of any

bright-line rule or consensus as to what combination of conditions

and duration of confinement in administrative segregation was

sufficient to implicate a liberty interest and trigger due process,

or at what point that interest arose, the contours of the liberty

interest     were   not   sufficiently   defined   as   to   place   the

constitutional question "beyond debate[.]" See Mullenix, 136 S.Ct.

at 308 ("[E]xisting precedent must have placed the statutory or

constitutional question beyond debate" (internal quotation marks

omitted)).

     Further, even assuming that defendants should have known that

due-process requirements attached to Perry's placement in the SMU

at some point during his extended period of confinement, the level

of process due in the circumstances was not clearly established.

In Wilkinson, the Supreme Court endorsed "informal, nonadversary

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procedures" consistent with those set forth in Greenholtz v. Inmates

of Nebraska Penal & Corr. Complex, 442 U.S. 1 (1979), and Hewitt

v. Helms, 459 U.S. 460 (1983), where the liberty interest in

avoiding indefinite placement in a supermax prison was at stake. 545

U.S. at 225-28. The essential elements of this informal level of

process include "some notice" to the inmate of the basis for

confinement, an opportunity for the inmate to present his views,

either in a written statement or otherwise, to the decisionmaker,

"within a reasonable time" after the transfer to administrative

segregation, and "some sort of periodic review of the confinement"

to ensure that         prison officials        are not using          administrative

segregation as "a pretext for indefinite confinement of an inmate."

Hewitt, 459 U.S. at 472, 476-77 & n.9; see Wilkinson, 545 U.S. at

225-28.

        Determining the sufficiency of process in a particular situation

requires application of the Mathews v. Eldridge                  balancing      test,

which    weighs   three      factors:    (1)   the     private interest affected

by    the   government       action;    (2)    "'the     risk    of   an   erroneous

deprivation     of    such   interest     through      the   procedures used, and

the probable value, if any, of additional or substitute procedural

safeguards'";        and   (3)   the    state's   interest,       "'including     the

function involved and the fiscal and administrative burdens that

the     additional     or     substitute       procedural       requirement     would

entail.'" Wilkinson, 545 U.S. at 224-25 (quoting Mathews, 424 U.S.

                                        - 10 -
319, 335 (1976)).

        In Wilkinson, the placement process involved three levels of

review and provided inmates two opportunities to file written

objections. The placement decision was reviewed after thirty days,

and then again on an annual basis, using the same three-tiered

system of review. The Court concluded that the procedures were

constitutionally sufficient, but did not find that they were the

minimum required, emphasizing that the standards are flexible,

particularly in the prison context, and the level of process due

will vary with the demands of a particular situation. Id. at 224.

The placement process followed in Perry's case provided fewer

safeguards. Unlike          the       classification      process,     which   allows

inmates an opportunity to be heard and multiple levels of review,

the decision to place Perry in an SMU on awaiting action status

provided only an informal review process. Perry's SMU confinement

on awaiting action status was first reviewed within 72 hours of

his initial placement, and his status was reviewed about three

times     a   week     thereafter.           Perry    received    periodic     written

notifications        that   he    was    on    awaiting    action     status   pending

investigation and, later, pending out-of-state placement, and that

administrative reviews of his placement had been conducted. He was

permitted to raise concerns about his status with officials on an

informal      basis,    but      he    was    not    provided    an   opportunity   to

participate in the administrative reviews or to test the purported

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basis for his continued confinement, was not informed of steps he

could take to mitigate the perceived need for continued segregated

confinement, was not given any conditional release date, and was

not provided any explicit opportunity to contest his placement.

Perry asserts that the periodic reviews were perfunctory, noting

that   he   received        the    same boilerplate notice at every review,

and    suggests      that    they        were   pretextual,    as    he    was    never

interviewed     in       connection      with   any investigation into his STG

status, was not advised of its progress or outcome, and was not

told when or why his status shifted from awaiting action pending

investigation to awaiting action pending out-of-state placement.

       In LaChance, the SJC concluded that these procedures were

insufficient        to    provide     meaningful      review   and   safeguard        the

inmate's interest in avoiding arbitrary confinement in severe

conditions,     and      held     that    segregated    confinement       on   awaiting

action status for longer than 90 days required notice of the basis

for the placement, a hearing at which the inmate could contest the

asserted rationale for the placement, and a post-hearing written

notice explaining the reviewing authority's decision. LaChance,

463    Mass.   at    776-77.       But    the   SJC   acknowledged    that       it   was

announcing these requirements for the first time, and Perry was

released into the general population shortly after that decision

issued.

       Perry suggests that, even if defendants could not have been

                                           - 12 -
expected    to    anticipate   the       precise      requirements          outlined     in

LaChance, it was clearly established after Wilkinson that the

"informal,       adversary   procedures"       required           where   an    inmate's

interest in avoiding atypical and significant hardship was at stake

had   to   include    some   sort   of    meaningful         periodic       review.    But

Wilkinson did not set any standards for such review in this

context. Moreover, in Hewitt, the Court emphasized the "broad

discretionary authority" prison administrators have in managing a

prison and maintaining security, and recognized that periodic

review was flexible and could              be based on a             "wide range of

administrative       considerations"       such      as     "facts    relating      to   a

particular prisoner," including misconduct charges and any ongoing

investigations, and "on the officials' general knowledge of prison

conditions    and    tensions[.]"        459   U.S     at    477     n.9.      Defendants

submitted    evidence    demonstrating         that       those    considerations        at

least ostensibly factored into their review. In the absence of any

authority more specifically defining the review requirements in

these circumstances, Perry cannot show that no official could

reasonably have believed the review was adequate. See Mlodzinski

v. Lewis, 648 F.3d 24, 33 (1st Cir. 2011) ("'Immunity exists even

where the abstract "right" invoked by the plaintiff is well-

established, so long as the official could reasonably have believed

"on the facts" that no violation existed'") (quoting Dirrane v.

Brookline Police Dep't, 315 F.3d 65, 69 (1st Cir. 2002)).

                                     - 13 -
                           CONCLUSION

     In sum, at the time Perry was confined in the SMU on awaiting

action status, it was not clearly established whether or at what

point a   protected liberty interest    arose,   and   the   procedural

protections required in that circumstance had been defined only at

a high level of generality. Defendants were therefore entitled to

qualified immunity. Perry's "Late Motion to Suspend the Rules" is

granted, and the judgment of the district court is affirmed.




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