                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-1999

Asquith v. Dept of Corr
Precedential or Non-Precedential:

Docket 98-5211




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Recommended Citation
"Asquith v. Dept of Corr" (1999). 1999 Decisions. Paper 221.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/221


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Filed July 30, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-5211

WILLIAM EUGENE ASQUITH

v.

DEPARTMENT OF CORRECTIONS;
VOLUNTEERS OF AMERICA; WILLIAM H.
FAUVER, COMMISSIONER, DEPARTMENT
OF CORRECTIONS; DOROTHY KELLER,
ADMINISTRATOR, COMMUNITY RELEASE
COORDINATOR; KEN SAFCO, DIRECTOR,
VOLUNTEERS OF AMERICA; ROBERT GREGORY,
CASE MANAGER, VOLUNTEERS OF AMERICA;
CHRIS ARRAYO, CASE AIDE, VOLUNTEERS OF
AMERICA; EDWARD McNAIR, CASE AIDE,
VOLUNTEERS OF AMERICA,

       William Asquith,
         Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 95-cv-00300)
District Judge: Joseph E. Irenas

Argued June 2, 1999

Before: SCIRICA, McKEE, Circuit Judges, and
SCHWARZER,* District Judge

(Filed July 30, 1999)
_________________________________________________________________

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
       STEPHEN M. LATIMER, ESQUIRE
        (ARGUED)
       Loughlin & Latimer
       131 Main Street, Suite 235
       Hackensack, NJ 07601

       Attorneys for William Eugene
       Asquith, Appellant.

       RONALD L. BOLLHEIMER, ESQUIRE
        (ARGUED)
       Office of the Attorney General of
        New Jersey
       Department of Law & Public Safety
       CN112 Division of Criminal Justice
       Richard J. Hughes Justice Complex
       Trenton, NJ 08625

       Attorney for William H. Fauver,
       Commissioner, Department of
       Corrections; Dorothy Keller,
       Administrator, Community Release
       Coordinator, Appellees

       JOSEPH M. ASSAN, ESQUIRE
       Law Offices of Thomas Dempster, III
       161 Gaither Drive
       Centerpointe at East Gate
       Suite 201
       Mount Laurel, NJ 08054

       Attorneys for Volunteers of America;
       Ken Safco, Director, Volunteers of
       America, Appellees

OPINION OF THE COURT

SCHWARZER, District Judge.

In this appeal, we must decide whether William Asquith,
a former New Jersey State inmate, had a protected liberty
interest in remaining in New Jersey's Residential
Community Release Agreement Program. We find he did not
and, accordingly, affirm the district court.

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FACTS

William Asquith was serving a five-year sentence under
the custody of the New Jersey Department of Corrections
("DOC") when he entered New Jersey's Residential
Community Release Agreement Program. Under that
program, Asquith lived in a halfway house run by
Volunteers of America ("VOA") and worked nearby as a
maintenance mechanic. After several months without any
significant incident, a VOA case aide reported that Asquith
returned to the halfway house smelling of alcohol and that
he failed a Breathalyzer test. Under New Jersey's
regulations, "imbibing in alcoholic beverages" is a "major
violation" and results in the "immediate transfer of the
inmate to a correctional facility within the New Jersey
Department of Corrections." N.J.A.C. 10A:20-4.21. As a
result, Asquith was immediately removed from the halfway
house and returned to prison. At a subsequent hearing to
determine whether Asquith had committed the major
violation, he was found not guilty. Asquith was not,
however, returned to the halfway house, and the DOC
provided no hearing to determine whether he should be
returned.

PROCEDURAL HISTORY

Asquith filed a complaint under 42 U.S.C. S 1983 (1994)
alleging he was denied due process of law when the DOC
failed to return him to the halfway house withoutfirst
providing a hearing. The district court dismissed his
complaint as frivolous. On appeal, this court vacated the
order of dismissal and remanded the case for "development
of a record as to the existence of a liberty interest under the
due process clause itself," noting that the district court did
not have the benefit of the Supreme Court's recent decision
in Sandin v. Conner, 515 U.S. 472 (1995). On remand, the
district court granted defendants' motion for summary
judgment holding that Asquith had no liberty interest
under the Due Process Clause itself or under New Jersey
State law. See Asquith v. Volunteers of America, 1 F. Supp.
2d 405, 413, 417-18 (D.N.J. 1998). Asquith now appeals.

                               3
The district court had subject matter jurisdiction under
28 U.S.C. S 1343 (1994). We have appellate jurisdiction
pursuant to 28 U.S.C. S 1291 (1994).

DISCUSSION

A protected liberty interest may arise from only one of
two sources: the Due Process Clause or the laws of a state.
See Hewitt v. Helms, 459 U.S. 460, 466 (1983). The district
court determined that Asquith had no protected liberty
interest under the Due Process Clause because, while in
the halfway house, Asquith lived a life "of incarceration,
strict limitation and certain sharply conscribed privileges,"
and under the Due Process Clause "prisoners under
confinement do not have inherent liberty interests in
particular modes, places or features of confinement or
custody." Asquith, 1 F. Supp. 2d at 410, 412. The district
court also held that under Sandin v. Conner, the state had
not deprived Asquith of a liberty interest because returning
Asquith to prison was not an "atypical" or"significant"
hardship warranting due process protection. See Asquith, 1
F. Supp. 2d at 417-18. We review the district court's grant
of summary judgment de novo, see Pennsylvania Coal Ass'n
v. Babbit, 63 F.3d 231, 236 (3d Cir. 1995), and affirm.

I. LIBERTY INTEREST UNDER THE DUE PROCESS
CLAUSE

The Supreme Court has consistently held that "[a]s long
as the conditions or degree of confinement to which the
prisoner is subjected is within the sentence imposed upon
him and is not otherwise violative of the Constitution, the
Due Process Clause does not in itself subject an inmate's
treatment by prison authorities to judicial oversight."
Hewitt, 459 U.S. at 468 (alteration in original) (quoting
Montanye v. Haymes, 427 U.S. 236, 242 (1976)). Thus, a
prisoner does not have a liberty interest in remaining in a
preferred facility within a state's prison system.
See Montanye, 427 U.S. at 242; Meachum v. Fano, 427 U.S.
215, 224-25 (1976). In Meachum the Court explained that
"given a valid conviction, the criminal defendant has been
constitutionally deprived of his liberty to the extent that the
State may confine him and subject him to the rules of its

                               4
prison system . . . . The Constitution does not . . .
guarantee that the convicted prisoner will be placed in any
particular prison." Meachum, 427 U.S. at 224.

On the other hand, the Court has found protected liberty
interests after an inmate is released from institutional
confinement. In Morrissey v. Brewer, 408 U.S. 471 (1972),
the Court recognized a parolee's liberty interest in
remaining conditionally free on parole: "[H]e can be
gainfully employed and is free to be with family and friends
and to form the other enduring attachments of normal life.
. . . [H]is condition is very different from that of
confinement in a prison." Id. at 482. Relying on Morrissey,
the Court in Young v. Harper, 520 U.S. 143 (1997), held
that an inmate enrolled in Oklahoma's pre-parole program
also had a protected liberty interest entitling him to due
process before he could be removed from the program.
There the pre-parolee "was released from prison before the
expiration of his sentence. He kept his own residence; he
sought, obtained, and maintained a job; and he lived a life
generally free of the incidents of imprisonment." Id. at 148.
While the Supreme Court recognized that the pre-parolee's
freedoms were limited--"[h]e was not permitted to use
alcohol, to incur other than educational debt, or to travel
outside the county without permission"--the limitations
were equivalent to those of the parolee in Morrissey, and
thus, did not "render such liberty beyond procedural
protection." Id.

Asquith argues that New Jersey's community release
program affords a degree of liberty substantially similar to
the liberty protected in Young and that the district court
improperly "focused its attention on the restrictions
imposed on community release participants and ignored the
degree of liberty to which plaintiff was entitled while he was
in community release status." We recognize that Asquith's
liberty was significantly greater while he lived in the
halfway house than it was while in prison. In addition to
leaving the halfway house for work, Asquith could obtain
passes to visit family, shop, eat at restaurants, or go to the
local YMCA. Such liberties are similar to those of the pre-
parolee in Young.

                               5
Unlike the pre-parolee in Young, however, Asquith never
left institutional confinement. In Young the pre-parolee
lived in his own home. See id. Asquith lived in a strictly
monitored halfway house. While at the facility, he was
subject to a curfew and had to "stand count" several times
a day. He was also required to submit to urine monitoring
and his room could be searched. Asquith could leave the
house, but had to sign in and out, and his weekend passes
were limited to two nights every seven days. VOA would
monitor the time it took Asquith to travel to and from the
halfway house, and he was required to take public
transportation. While away, he was also required to check
in by phone several times each day. If he could not be
contacted within two hours, he would be deemed an
escapee.

These restrictions are dispositive because they amount to
institutional confinement. Cf. Brennan v. Cunningham, 813
F.2d 1, 5-6 (1st Cir. 1987) (holding that a prisoner in a
halfway house "remains under confinement in a
correctional institution"). The Supreme Court has
consistently held that while a prisoner remains in
institutional confinement, the Due Process Clause does not
protect his interest in remaining in a particular facility. See
Montanye, 427 U.S. at 242 ("[T]he Due Process Clause by
its own force [does not] require[ ] hearings whenever prison
authorities transfer a prisoner to another institution . . .
[a]s long as the conditions or degree of confinement to
which the prisoner is subjected are within the sentence
imposed upon him . . . ."); Meachum, 427 U.S. at 224-25
("Neither, in our view, does the Due Process Clause in and
of itself protect a duly convicted prisoner against transfer
from one institution to another . . . ."). Thus, Asquith's
removal from the halfway house did not trigger the
protections of the Due Process Clause.

While the fact that Asquith remained in institutional
confinement is dispositive, we note that New Jersey's
community release program is unlike parole in another
way. In Morrissey, the Supreme Court explained that one
incident of the parolee's liberty is the "the implicit promise
that parole will be revoked only if the he fails to live up to
the parole conditions." Morrissey, 408 U.S. at 482 & n.8;

                                6
see also Young, 520 U.S. at 150-51 (emphasizing the lack
of evidence on the record showing that the pre-parolee's
continued participation was contingent upon extrinsic
events). Here, there was no implicit promise that Asquith's
limited freedoms might not be arbitrarily revoked. The
program agreement which Asquith signed provided that
return to a correctional facility would terminate his
participation, and New Jersey's regulations required that if
a program member was merely charged with a major
violation, he would be returned to a correctional facility.
See N.J.A.C. 10A:20-4.21. Moreover, the Commissioner is
authorized "at any time [to] transfer an inmate from one
place of confinement to another." See N.J.A.C. 10A:20-4.2.
Thus, Asquith's continued participation was dependent
upon extrinsic events, and he could have no expectation
that he would remain in the program once charged with a
major violation.

II. STATE-CREATED LIBERTY INTEREST

The Due Process Clause also protects liberty interests
created by the laws or regulations of a state. See Sandin,
515 U.S. at 483. Asquith argues that under Sandin, the
"polestar for identifying state-created liberty interests is the
`nature of the deprivation' " and that the district court erred
by failing to recognize that his life while in the community
release program was "fundamentally different from
incarceration behind the walls" of prison.

In Sandin, the Supreme Court established a new
framework for determining whether a prisoner has been
deprived of a state- created liberty interest. It held that a
prisoner is deprived of a state-created liberty interest only
if the deprivation "imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life." Id. at 484.

Even if Asquith's life in prison was "fundamentally
different" from life at the halfway house, Sandin does not
permit us to compare the prisoner's own life before and
after the alleged deprivation. Rather, we must compare the
prisoner's liberties after the alleged deprivation with the
normal incidents of prison life. See Sandin, 515 U.S. at
485-86. "[T]he baseline for determining what is `atypical

                               7
and significant'--the `ordinary incidents of prison life'--is
ascertained by what a sentenced inmate may reasonably
expect to encounter as a result of his or her conviction in
accordance with due process of law." Griffin v. Vaughn, 112
F.3d 703, 706 & n.2 (3d Cir. 1997); see also Callender v.
Sioux City Residential Treatment Facility, 88 F.3d 666, 669
(8th Cir. 1996) (removing an inmate from a work release
program and returning him to prison did not deprive the
inmate of a liberty interest under Sandin because prison
was "not atypical of what inmates have to endure in daily
prison life"); Dominique v. Weld, 73 F.3d 1156, 1159-60 (1st
Cir. 1996) (same). Since an inmate is normally incarcerated
in prison, Asquith's return to prison did not impose atypical
and significant hardship on him in relation to the ordinary
incidents of prison life and, therefore, did not deprive him
of a protected liberty interest.

CONCLUSION

Because Asquith did not have a protected liberty interest
in remaining in the halfway house, either under the Due
Process Clause or under state law, the district court
properly granted summary judgment and dismissed
Asquith's claim for deprivation of due process.

AFFIRM.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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