                                                                          F IL E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                                         PUBLISH
                                                                         January 24, 2007
                     U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
                                    T E N T H C IR C U IT



 ESTA TE O F M IK I A N N D IM ARCO ,

                Plaintiff-Appellee , *
          v.                                          Nos. 04-8024 and 04-8067
 W Y O MIN G D EPA RTM EN T OF
 C ORREC TIO N S, D IV ISIO N O F
 PRISONS; W YOM ING W OM EN’S
 CENTER; JUD Y U PHOFF; NO LA
 B LA CK BU RN ; V IK I M cK IN N EY;
 K A REN REA ; and D O N N A LLOYD ,

                Defendants-Appellants .



           A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
                      FO R T H E D IST R IC T O F W Y O M IN G
                           (D .C . N O . 03-C V -1006-C A B )


David L. Delicath, Senior Assistant Attorney General (Patrick J. Crank, W yom ing
Attorney General, John W . Renneisen, Deputy Attorney General, and M isha
W estby, Senior Assistant Attorney General, with him on the briefs), Office of the
W yom ing Attorney G eneral, Cheyenne, W yom ing, for Appellants .

Kim berly A. Corey, Law Office of Tom Sedar, P.C., Casper W yom ing, for
Appellee .




      *
        Plaintiff-Appellee M iki Ann DiM arco died in 2005. Her executor was
substituted as a party on appeal.
Before T Y M K O V IC H and E B E L, Circuit Judges, and B R O W N IN G , District
Judge. * *




T Y M K O V IC H , Circuit Judge.




      M iki Ann DiM arco lived her life as a woman even though she was

anatomically male. In 2000, after she violated the terms of her probation, a

W yoming state court sentenced her to prison. Not realizing DiM arco’s medical

condition and believing her to be a woman, the court placed her in W yoming’s

women’s correctional facility in Laramie. It was only during a routine prison

intake examination that prison officials learned DiM arco was a hermaphrodite 1

      Because the officials believed that she presented a safety risk, DiM arco was

placed in administrative segregation apart from the rest of the prison population.

After an initial evaluation period, officials decided to continue her administrative

segregation because they concluded she should not be placed with the general

      **
         James O. Browning, United States District Court, District of New
M exico, sitting by designation.
      1
        According to the district court, DiM arco was a “hermaphrodite” or
“intersexual.” D ist. Ct. M em. Order & J., Aplts. App. at 143. A hermaphrodite
may have “both male and female characteristics, including in varying degrees
reproductive organs, secondary sexual characteristics, and sexual behavior. This
condition is the result of an abnormality of the sex chromosomes or a hormonal
imbalance during the development of the embryo.” Id. DiM arco had a penis but
apparently had her testicles removed as part of gender reassignment surgery; she
had no female reproductive organs.

                                         -2-
female prison population. Her confinement was reviewed every ninety days, but

she remained segregated until her release from prison 14 months later.

      DiM arco does not contest her segregation on appeal. Rather, the issue is

whether W yoming had a constitutional duty to provide her an opportunity to

challenge the placement and conditions of confinement under the Fourteenth

Amendment’s D ue Process Clause. DiM arco contends that she had a right to

contest her prior placement and living conditions through an administrative

hearing, and that W yoming violated her rights by failing to provide the hearing.

The district court agreed and held that the W yoming Department of Corrections

and the individual defendants violated her procedural due process rights. Since

she had been released from prison in 2002 and before the time of trial, the district

court awarded $1,000 in nominal damages as well as costs, attorney’s fees and

expert fees.

      Because we conclude DiM arco does not have a liberty interest in her

placement and the conditions of confinement, we reverse.

                                  I. Background

DiM arco’s arrest

      In 1998, DiM arco pleaded guilty to check fraud in W yoming and was

placed on probation. She violated the terms of her probation by testing positive

for drug use and failing to carry verifiable identification. Accordingly, a state



                                         -3-
judge revoked her probation in early 2000 and sentenced her to two to four years

imprisonment. She w as temporarily committed to a county jail in Laramie, where

she was housed with the general female population.

      W yoming then moved D iM arco to the state’s only women’s prison, the

W yoming W omen’s Center (W W C). There, she underwent a routine physical

examination pursuant to intake processing policy. As a result of this exam,

officials realized she was anatomically male, although she looked and presented

herself as female. A prison doctor examined her and concluded that she suffered

from gender identity disorder.

DiM arco’s confinement

      The W W C consists of two wings, the East and the W est. The general

prison population resides in the W est wing. The East wing, where higher risk

inmates are housed, consists of housing Pods 1, 2 and 3. New prisoners are

routinely housed separately from the general prison population for about one

month in Pod 2 while prison officials determine appropriate housing assignments.

At intake, DiM arco was housed in Pod 3, the most restrictive and isolated housing

pod used for inmates confined to administrative or protective custody.

      Pod 3 consists of four cells, which are accessed through a small “day

room.” Each cell consists of a bed, a steel sink and a steel toilet. The cells are

painted cement blocks with grey solid steel doors. The day room consists of a



                                         -4-
small steel table with a steel bench, both bolted to the floor, and a television,

which is mounted high on the wall and controlled by correctional officers. The

other cells in Pod 3 were occupied intermittently during DiM arco’s confinement.

      Conditions in the W est w ing, by contrast, are more pleasant. The halls

have brick facing, the floors are carpeted, and the cell doors are wooden. The

W est wing cells have cupboards for personal effects and space for hanging

clothing. The day rooms in the W est wing have furniture, tables, televisions,

pictures and other accessories.

      As part of their review of DiM arco’s initial placement, prison officials

determined that she w as a low security risk. Placement officials nonetheless

recommended that she be kept apart from the general population for three reasons:

(1) DiM arco’s safety and that of the general female inmate population, (2) her

physical condition, and (3) the need to tailor programs for her condition. W W C’s

warden testified at trial that a primary concern was that other inmates might try to

harm DiM arco if they discovered her physical condition. Furthermore, questions

surrounded DiM arco’s identity because of DiM arco’s use of multiple, unverifiable

aliases. The w arden felt that she did not know enough about DiM arco to risk

placing her in the general population.

      After DiM arco's initial placement, prison officials reviewed her status

every 90 days until her release. Each review yielded a decision to maintain



                                          -5-
DiM arco’s confinement in Pod 3, relying on the initial reasons for the placement.

Following each assessment, DiM arco signed a document indicating she had

reviewed the prison’s placement decision and understood the reasons for her

placement. The document explained, “Inmate DiM arco based on medical testing

has been determined to be a male and therefore requires housing from other

inmates.” Aple. App. at 197.

Prison conditions

      As detailed by the district court, DiM arco’s general confinement met the

basic necessities of life:

–     DiM arco had adequate clothing, which was washed daily. Yet, she was
      only given two sets of clothing while the general population received five.

–     DiM arco received three meals a day and ate the same food as the general
      population. Nevertheless, she had to eat in her cell and not with other
      inmates or in the Pod 3 day room. DiM arco was forced to sit on her bed or
      toilet to eat because her cell did not have a table or chair.

–     DiM arco had access to the prison chaplain.

–     DiM arco had access to reading materials from the library cart and could
      request books to be delivered to her.

–     DiM arco had access to the gymnasium, but only when a guard could
      transport her and the facility was not being used by other prisoners.

–     DiM arco received personal hygiene items at no cost to her, including soap,
      shampoo, toothpaste and a toothbrush.

      DiM arco was denied other prison amenities. For instance, she was not

allowed day-to-day contact with the other inmates. Nor did she have access to

                                        -6-
some of the educational programs that would have put her in contact with other

inmates. Even though DiM arco was not allowed routine contact with other

inmates, she did have access to prison staff and medical personnel. Along with

weekly contacts with her caseworker, DiM arco had frequent contact with the

nursing staff, physician staff, and specialists located off-site. Shortly after

beginning her sentence, DiM arco was included in two small treatment groups,

which met for one hour counseling sessions each week. These sessions included

other W W C inmates.

                              II. Procedural H istory

      Follow ing her release from prison, DiM arco brought four federal claims:

(1) a 42 U.S.C. § 1983 claim of excessive punishment under the Eighth

Amendment; (2) a § 1983 procedural due process claim under the Fourteenth

Amendment; (3) a § 1983 substantive due process claim under the Ninth and

Fourteenth A mendments, and § 97-1-036 of the W yoming Constitution; and (4) a

§ 1983 equal protection claim under the Fourteenth Amendment.

      After a bench trial, the court denied DiM arco’s excessive punishment and

equal protection claims. The court determined DiM arco’s segregated confinement

did not amount to cruel and unusual punishment since the prison had legitimate

concerns over institutional safety and because DiM arco was provided the basic

necessities of food, shelter, clothing and medical treatment. In denying the claim,



                                          -7-
the court also found that institutional safety concerns created by “[p]lacing an

inmate of the opposite gender in a facility like the W W C . . . mandated separate

housing.” Aplts. App. at 167.

      In rejecting DiM arco’s equal protection claim, the court first determined

that “individuals born with ambiguous gender” are not members of a quasi-

suspect or constitutionally protected class, and that DiM arco was not denied a

fundamental right. Applying rational basis review, the court found no equal

protection violation “because Defendants’ actions in placing Plaintiff in

segregated confinement was rationally related to the legitimate purposes of

ensuring the safety of Plaintiff and other inmates and security of the facility.” Id.

at 177–78.

      The court, however, concluded that W yoming’s placement decision and

subsequent review s violated due process. It found that DiM arco’s placement in

solitary confinement for 438 days resulted in an atypical and significant departure

from ordinary incidents of prison life, giving rise to a state-created liberty interest

that required due process protection, and that DiM arco did not receive adequate

due process.

      Having found D efendants’ conduct violated due process, the court also

denied Defendants’ claims of qualified immunity. The court awarded $1,000 in

nominal damages, attorney’s fees, and costs, which included expert fees.



                                          -8-
W yoming appealed the due process violation. 2 DiM arco did not cross appeal the

Eighth A mendment and Equal Protection rulings.

                                  III. D iscussion

      The question presented in this appeal is whether W yoming violated

DiM arco’s due process rights in its decision to place her in administrative

segregation without an adversarial hearing or right to appeal and its failure to

provide better living conditions during her confinement. W e hold that it did not.

Neither the Due Process Clause itself nor the policies or regulations of the State

of W yoming allow DiM arco to challenge Wyoming’s placement decision and

conditions of confinement.

      A . L egal Framew ork

      The Fourteenth Amendment provides that no state shall “deprive any person

of life, liberty, or property, without due process of law.” “A liberty interest may

arise from the C onstitution itself, by reason of guarantees implicit in the word

‘liberty,’ or it may arise from an expectation or interest created by state laws or

policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). It is

well settled that due process protections extend to prisoners, though the extent of




      2
          Neither party made a substantive due process claim on appeal.

                                         -9-
that protection is significantly less than that guaranteed to free persons. See, e.g.,

Wolff v. M cDonnell, 418 U.S. 539, 555–57 (1974). 3

      For inmates in state prisons, however, “the Constitution itself does not give

rise to a liberty interest in avoiding transfer to more adverse conditions of

confinement,” although “a liberty interest in avoiding particular conditions of

confinement may arise from state policies or regulations.” Wilkinson, 545 U.S. at

221. State policies or regulations w ill not create the basis for a liberty interest in

the conditions of confinement so long as they do not “impose[] atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison

life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).

      DiM arco argues that her conditions of confinement violate the rule

established in Sandin. In particular, while conceding that segregation itself was

appropriate, DiM arco contends that prison officials confined her in the most

severe classification and did not give her the opportunity to obtain better

amenities and more humane treatment. M oreover, although DiM arco received a

review every 90 days, she argues that the prison gave her no meaningful right to

appeal her living conditions throughout her confinement.

                                           1.


      3
       “The identification of the liberty interests that are protected by the Due
Process Clause is a question of federal constitutional law that we review de
novo.” Harper v. Young, 64 F.3d 563, 566 (10th Cir. 1995).

                                          -10-
      The Supreme Court has held that a protected liberty interest may arise from

prison placement decisions and conditions of confinement. M ost recently, in

Wilkinson, the C ourt examined Ohio’s decision to place a prisoner in the state’s

“supermax” maximum security prison. In applying Sandin, the Court emphasized

that the touchstone of the due process inquiry is not the precise language of a

state’s regulations regarding “restrictive conditions of confinement” but “the

nature of those conditions themselves ‘in relation to the ordinary incidents of

prison life.’” 545 U.S. at 223 (quoting Sandin). The Court concluded that the

inquiry requires “identifying the baseline from which to measure what is atypical

and significant in any particular prison system.” Id.

      Avoiding a discussion of the contours of a baseline analysis, the C ourt

found that Ohio’s supermax placement would impose an “atypical and significant

hardship under any plausible baseline.” Id. In particular, the Court found that the

supermax placement implicated a prisoner’s liberty interests for two reasons: (1)

it was for an indefinite duration reviewed only annually; and (2) it disqualified an

otherw ise eligible inmate from parole consideration. According to the Court,

“[w]hile any of these conditions standing alone might not be sufficient to create a

liberty interest, taken together they impose an atypical and significant hardship

within the correctional context.” Id at 224 (emphasis added).




                                        -11-
      W e have yet to apply Wilkinson to an inmate’s placement in administrative

segregation in a published opinion. 4 Other courts, however, have examined

Wilkinson’s logic in review ing prison placement decisions. For example, in

Skinner v. Cunningham, 430 F.3d 483 (1st Cir. 2005), the First Circuit understood

Wilkinson to require courts to examine whether a prison’s imposition of

administrative “segregation was rational, that its duration was not excessive, and

that the central condition— isolation from other prisoners— was essential to its

purpose.” Id. at 487. Applying this analysis, the court found an inmate’s six-

week stay in isolation as a part of a murder investigation did not give rise to a

liberty interest. See also Harbin-Bey v. Rutter, 420 F.3d 571 (6th Cir. 2005)

(finding no right to remain in a particular prison or to a specific security

classification).

      W e have explored this question recently in several unreported cases. In

Jordan v. Fed. Bureau of Prisons, 191 F.App’x. 639, 2006 U.S. App. LEXIS

14673, 2006 W L 2135513 (10th Cir. 2006), for example, we reviewed a prison’s

five-year placement of an inmate in administrative segregation as a result of a

murder investigation. W e noted that our circuit, in analyzing whether segregation

is atypical and significant, has used inconsistent standards in applying a

comparative baseline. On one hand, we have looked to conditions in the same


      4
          Nor had Wilkinson been issued at the time of the district court’s order.

                                          -12-
type of segregation, whether it be administrative or protected custody. Gaines v.

Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002). On the other hand, we have

suggested an appropriate baseline is the condition of the general prison

population. Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996).

      W hile not answering the comparison baseline question, the Jordan court

concluded that a 1,825-day stay in administrative detention did not create a liberty

interest because (1) the detention was reasonably related to legitimate penological

interests, namely, investigating the inmate’s role in a murder; (2) the detention

was reasonable in light of the legitimate security concerns of the institution; and

(3) the conditions were not significantly different than generally confined inmates

(noting fewer social calls and less recreation time as not significant). Jordan,

supra. Similarly, in Hill v. Fleming, 173 F.App’x. 664 (10th Cir. April 4, 2006),

we held that a 399-day stay in administrative detention did not violate an

established liberty interest, even where the conditions w ere generally inferior to

those for the general population. 5


      5
        Other unpublished cases have reached similar results. See, e.g., Chappell
v. M cKune, 1999 U.S. App. LEXIS 30754, 1999 W L 1079618 at *1 (10th Cir.
Nov. 30, 1999) (1000 days in administrative segregation); Villarreal v. Harrison,
1999 U.S. App. LEXIS 30487, 1999 W L 1063830 at *2 & n.1 (10th Cir. Nov. 23,
1999) (2 year stay); Blum v. Fed. Bureau of Prisons, 1999 U.S. App. LEXIS
20051, 1999 W L 638232 at *3 (10th Cir. Aug 23, 1999) (90-day confinement);
Gutierrez v. Shanks, 1998 U.S. App. LEXIS 15201, 1998 W L 380958 at *2 (10th
Cir. July 9, 1998) (one year administrative segregation); Klein v. Coblentz, 1997
                                                                      (continued...)

                                         -13-
      DiM arco also suggested at oral argument that the prison violated certain

procedural rights contained in prison regulations which could give rise to a

protected liberty interest. She argues that W yoming Department of Corrections

Policy No. 3.304 and 3.006 6 guaranteed certain amenities and required a hearing

for prisoners incarcerated in restrictive housing. W hile it appears the prison did

not strictly follow these policies in reviewing DiM arco’s request for more

amenities, it is clear the district court did not rely on them in finding a due

process violation. In any event, it is “not the language of regulations regarding

[prison] conditions but the nature of those conditions them selves ‘in relation to

the ordinary incidents of prison life’” that control due process claims. Wilkinson,

545 U.S. at 223 (emphasis added). The regulations themselves do not create an




      5
       (...continued)
U.S. App. LEXIS 32757, 1997 W L 767538 at *3 (10th Cir. Nov. 19, 1997) (584
days); Jones v. Fields, 1996 U.S. App. LEXIS 33261, 1996 W L 731240 at 1-2
(10th Cir. Dec. 20, 1996) (15 months).

       Other circuit court decisions have been consistent with these results. See,
e.g., Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (70 days in segregation
without a hearing); Hatch v. District of Columbia, 184 F.3d 846, 857–58 (D.C.
Cir. 1999) (seven months in segregation); Sealey v. Giltner, 197 F.3d 578, 589
(2d Cir. 1999) (101 days); Jones v. Baker, 155 F.3d 810, 813 (6th Cir. 1998) (two
and one half years in segregation).
      6
        Policy 3.304 lists the amenities available and procedures applicable to
prisoners in protective custody while Policy 3.006 provides a right to a hearing
and appeal for classified prisoners.

                                         -14-
enforceable procedural right. See also Cosco v. Uphoff, 195 F.3d 1221 (10th Cir.

1999) (finding no liberty interest arising from W yoming prison regulations).

                                          2.

      The question that must be answ ered in this appeal, then, is two-fold. First,

what is the appropriate baseline comparison? Second, how significant must the

conditions of confinement deviate from the baseline to create a liberty interest in

additional procedural protections?

      Here the baseline comparison question lends itself to several possible

solutions. One option is to compare administrative segregation with conditions in

the general population. A second option is to compare it with other, typical

protective custodies. And a third option is, to compare it with that experienced by

other uniquely placed or difficult to place prisoners— i.e., ill inmates, elderly

inmates, or inmates with disabilities or under supervision because of mental

illness or dependency.

      In our view , the answ er lies somewhere between these choices. It is

simplistic to understand the Sandin formulation as suggesting a rigid either/or

assessment. Rather, it makes sense to look at a few key factors, none dispositive,

as the Supreme Court did in Wilkinson. But any assessment must be mindful of

the primary management role of prison officials who should be free from second-

guessing or micro-management from the federal courts. See Sandin, 515 U.S. at



                                         -15-
482–84 (concluding Sandin test would reduce involvement of federal courts in

management of prison conditions).

      Relevant factors might include whether (1) the segregation relates to and

furthers a legitimate penological interest, such as safety or rehabilitation; (2) the

conditions of placement are extreme; (3) the placement increases the duration of

confinement, as it did in Wilkinson; and (4) the placement is indeterminate (in

Wilkinson the placement was reviewed only annually).

      In light of these considerations, we turn to see w hether DiM arco’s

confinement in administrative segregation violated a liberty interest.

      B . A pplication to D iM arco

      In applying the above factors to DiM arco, it is helpful to keep a few

background facts in mind. DiM arco was an admittedly unique prisoner, with a

physiological and psychological condition never before encountered by W yoming

prison officials. No one suggests the initial segregation for evaluative purposes

was inappropriate or excessive. Prison officials consulted medical professionals

in evaluating DiM arco’s condition and relied, in part, on those opinions in their

placement decision. DiM arco had access to prison staff and doctors throughout

her confinement. Her placement was evaluated every ninety days, and she was

given an opportunity to be heard at each evaluation. W hile her confinement was

isolating, it provided the ordinary essentials of prison life. Finally, the prison had



                                         -16-
to consider the needs of the general prison population, including rehabilitative

goals and programs designed for them. Perhaps most importantly, DiM arco does

not contend that segregation itself was unreasonable. 7

      In this context, we examine the factors set forth above.

Purpose of Segregation

      W yoming established several reasons for its placement of DiM arco in

administrative segregation. First and foremost was safety. It determined that

DiM arco might be a risk if introduced to the general population of the prison.

M any of the women confined in the prison were victims of sexual assault. Some

might be fearful of DiM arco, even though she functioned as a woman; others

might threaten DiM arco for different reasons. W hile DiM arco was not deemed a

particularly high risk, we cannot discount the prison’s concerns about placing her

in what it perceived as a potential security problem. As the district court found,

prison officials had (1) a “legitimate reason to believe there was a potential,

substantial risk of serious harm to either W W C inmates or Plaintiff,” and (2) the

“housing assignment and separation of Plaintiff from the general population was

for a legitimate security reason.” Aplts. App. at 166.




      7
        At oral argument, counsel agreed that DiM arco was not insisting that she
be placed in the general population.

                                        -17-
      Second, W yoming concluded that it did not have adequate facilities for

inmates such as DiM arco. W yoming is a small state with a relatively small prison

population. Large states with larger urban populations have begun to establish

facilities for transsexual inmates, but most states have yet to develop specific

facilities or programs directed to this population. W hile states now have the

option of transferring prisoners to out-of-state facilities, the record in this case

does not suggest that option was available to W yoming, especially considering

DiM arco’s term of confinement and the cost of transfer. Prudence dictates that

sending her to W yoming’s men’s prison was not a plausible alternative.

Conditions of Confinement

      DiM arco’s conditions of confinement were admittedly spartan, but not

atypical of protective custody. She had access to the basic essentials of life,

although her access to certain amenities was more limited than the general

population. She had adequate clean clothing; ate the same meals as the general

population; had access to library, recreational, and religious facilities;

participated in out-of-cell time of at least five-and-one-half hours a day; and was

given personal hygiene items. She was denied interaction with other inmates, and

certain amenities such as nail clippers and mirrors in her cell that were not

allowed in her pod. The prison has no constitutional duty to equalize these type

of amenities in every detail. Nor does a prisoner have a right to access every type



                                          -18-
of program available to other inmates, ranging from work to recreation. The

district court found as much in rejecting DiM arco’s equal protection and cruel and

unusual punishment claims.

      DiM arco was also provided access to a number of prison programs. She

was part of small group counseling sessions w ith other inmates, she had weekly

individual psychiatric sessions, and monthly visits from a psychiatric specialist.

Her caseworker met regularly to discuss her concerns about her conditions and

placement.

      Having said this, given her unique condition it is hard to believe the prison

could not make better accommodations for her long-term placement. M any of her

complaints about living conditions were commonplace and the petty denial of

certain amenities borders on the absurd. For example, the prison did not allow

her to own playing cards or eat meals outside her cell. W hile D iM arco’s

circumstances were a challenge to the prison, W yoming could have been more

flexible in responding to her needs.

Duration of Confinement

      W yoming’s placement decision did not extend DiM arco’s confinement. In

fact, she was released after serving 14 months of a two- to four- year sentence.

Given the fact that DiM arco only attacks the conditions of her segregation and not

her placement in segregated housing, this factor does not weigh in her favor.



                                        -19-
Indefiniteness of Confinement

      DiM arco’s placement was reviewed every ninety days. And unlike the

inmate in Wilkinson, whose placement in supermax was subject only to an annual

review and disqualified the inmate from parole consideration, DiM arco had

regular reevaluations throughout her confinement. The prison used a management

team process to evaluate her behavior and mental health progress, and to provide

goals to attain prior to her next review. This team recommended continued

separated housing in Pod 3. Importantly, she was interviewed as a part of the

review, and allowed to present her views. W hile the management team concluded

administrative segregation was the proper assignment, DiM arco was not isolated

from prison staff nor was she denied the opportunity to object to the conditions of

her confinement. As noted above, DiM arco has conceded that segregation was a

reasonable placement decision.

      Taken together, these factors do not weigh in favor of finding that DiM arco

has an enforceable liberty interest. W hile w e are sympathetic w ith her complaints

about the petty deprivations resulting from her confinement, and are confident

prison officials could have done better, we cannot conclude that the prison

imposed such an atypical and significant hardship on her as to meet the Sandin

standard.

      C . Procedural Protections



                                        -20-
      Even if we did find a protected liberty interest, DiM arco’s claim would still

not succeed. W yoming provided adequate procedural protections to justify its

placement decisions.

      The question of “what process is due” was recently examined by the

Supreme Court in Wilkinson v. Austin, supra. Applying the traditional framew ork

governing procedural due process, M athews v. Eldridge, 424 U.S. 319 (1976), 8 the

Court found that a relaxed set of procedures satisfied an inmate’s challenge to a

placement decision or conditions of confinement. Due process was satisfied as

long as a state allowed (1) a sufficient initial level of process, i.e., a reasoned

examination of the assignment; (2) the opportunity for the inmate to receive

notice and respond to the decision; and (3) safety and security concerns to be

weighed as part of the placement decision. Wilkinson, 545 U.S. at 226–27.

M oreover, the Court emphasized that where a decision “draws more on the

experience of prison administrators, and where the State’s interest implicates the


      8
          M athews requires consideration of three distinct factors:

      First, the private interest that will be affected by the official action;
      second, 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 finally, the G overnment’s
      interest, including the function involved and the fiscal and
      administrative burdens that the additional or substitute procedural
      requirement would entail.

424 U.S. at 335.

                                          -21-
safety of other inmates and prison personnel, [] informal, nonadversary

procedures” that allow notice and the opportunity to be heard are sufficient. Id. at

228–29 (relying on Greenholtz v. Inmates of Neb. Penal and Correctional

Complex, 442 U.S. 1 (1979)).

      W yoming has met these factors. First, its initial placement decision was

appropriate given DiM arco’s unique background. Her confinement was the same

as other female prisoners assigned to W W C, and prisoners are not entitled to

notice and hearing upon intake. 9 She was aware of and agreed to her subsequent

assignment to administrative segregation. After that, the prison provided periodic

and meaningful review s of her status, including meetings that DiM arco could

attend. DiM arco’s objections were noted in subsequent reviews. She signed the

classification form generated by the prison indicating that she had reviewed the

form and the reasons for the custody level had been explained to her. 1 0 W hile she

was not allowed to present witness testimony, nor were there other trappings of

the adversarial process, these are not required to satisfy due process. Her

placement decision was reviewed by several decision makers, including the

warden. Each concluded her placement and conditions were appropriate.



      9
       Notice is less weighty in this case since DiM arco agrees that segregated
housing was appropriate.
      10
        The management team review form reports that “Inmate DiM arco states
she understands the reason for the override.” Aplts. App. at 240.

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M oreover, prison officials consulted and relied on psychiatric professionals in

making the placement and treatment decisions.

      In sum, the totality of the process DiM arco enjoyed satisfies due process.

                                  IV . C onclusion

      Because w e conclude that DiM arco did not have a protected liberty interest

that W yoming violated, we need not reach the question of whether prison officials

were entitled to qualified immunity.

      Accordingly, we REVERSE the decision of the district court. W e also

REVERSE the district court’s award of costs and attorneys fees in No. 04-8067

since D iM arco was not a prevailing party under 42 U .S.C. § 1988. Appellants’

m otion to file a supplemental appendix is granted.




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