                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


REX CHAPPELL,                          No. 09-16251
         Plaintiff-Appellee,
                                         D.C. No.
             v.                       2:03-cv-00653-
                                        GEB-KJM
R. MANDEVILLE; T. ROSARIO ,
     Defendants-Appellants,
                                           OPINION
            and

J. CASE; C. DAVIS;
C. RASMUSSEN ; RODRIGUEZ,
                 Defendants.


     Appeal from the United States District Court
         for the Eastern District of California
    Garland E. Burrell, Jr., District Judge, Presiding

                Argued and Submitted
      August 29, 2011—San Francisco, California

                  Filed January 31, 2013
2                   CHAPPELL V . MANDEVILLE

         Before: Marsha S. Berzon and Jay S. Bybee, Circuit
        Judges, and James L. Graham, Senior District Judge.*

                     Opinion by Judge Bybee;
                  Concurrence by Judge Graham;
                  Partial Dissent by Judge Berzon


                           SUMMARY**


                       Prisoner Civil Rights

    The panel reversed the district court’s denial of a motion
for summary judgment brought by two California state prison
officials in this 42 U.S.C. § 1983 action in which plaintiff
alleged Eighth Amendment and due process violations in
connection with his six-day placement on contraband watch.

    The panel concluded that, as of April-May 2002, the law
was not clearly established as to whether the conditions that
plaintiff experienced in connection with the contraband
watch, including twenty-four hour lighting and mattress
deprivation, violated the Eighth Amendment. The panel also
concluded that plaintiff could not claim a liberty interest
under the Due Process Clause of the Fourteenth Amendment,
and it was not clearly established that he had sustained a



    *
   The Honorable James L. Graham, Senior District Judge for the U.S.
District Court for the Southern District of Ohio, sitting by designation.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 CHAPPELL V . MANDEVILLE                    3

violation of a state-created liberty interest. Therefore, both
prison officials were entitled to qualified immunity.

   Concurring, District Judge Graham wrote separately
because he disagreed with the majority’s interpretation of the
Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472
(1995), in the context of their analysis of plaintiff’s due
process claim based on a state-created liberty interest.

    Dissenting in part, Judge Berzon agreed that prison
officials were entitled to qualified immunity on the due
process issues. Judge Berzon dissented because in her view,
a reasonable officer would have known that, in combination,
the twenty-four-hour bright light, the absence of a mattress,
and the extensive bodily restraints risked depriving plaintiff
of sleep, in violation of the Eighth Amendment.


                        COUNSEL

Megan R. O’Carroll, Deputy Attorney General, Sacramento,
California, for Defendants-Appellants.

Caleb E. Mason, Southwestern Law School, Los Angeles,
California, for Plaintiff-Appellee.


                         OPINION

BYBEE, Circuit Judge:

    Plaintiff Rex Chappell brought a § 1983 case against
various officials from California State Prison, Sacramento,
alleging constitutional violations relating to his six-day
4                CHAPPELL V . MANDEVILLE

placement on contraband watch. The defendants brought a
motion for summary judgment, and the district court granted
the motion on some of the claims, but denied summary
judgment with respect to Chappell’s Eighth Amendment and
due process claims against defendants R. Mandeville and
T. Rosario. Mandeville and Rosario appealed. We hold that
both Mandeville and Rosario are entitled to qualified
immunity because the law at the time Chappell was on
contraband watch did not clearly establish that their actions
were unconstitutional. We therefore reverse.

     I.   FACTS AND PROCEDURAL HISTORY

    Rex Chappell was a prisoner in California State Prison,
Sacramento when his fianceé, Philissa Richard, came to visit
him on April 28, 2002. When Richard entered the prison
facilities she was wearing a ponytail hairpiece; the next day
the hairpiece was discovered in a trash can near the visiting
room. Prison officials then searched the entire visiting area
and found spandex undergarments in the women’s bathroom.
Both the hairpiece and the undergarments tested positive for
cocaine residue. Richard admitted that the hairpiece was hers,
but an investigation did not conclude whether the
undergarments also belonged to Richard. A background
check revealed that Richard had a long history of felony
offenses, including numerous drug offenses.

    Prison staff conducted a search of Chappell and his prison
cell, during which they notified Chappell that they believed
that someone had introduced drugs through a hairpiece. The
officials discovered three unlabelled bottles of what appeared
to be eye drops in Chappell’s cell. The liquid in the bottles
tested positive for methamphetamine.
                 CHAPPELL V . MANDEVILLE                     5

    On April 30, 2002, Chappell was placed on contraband
watch. Under prison regulations, an official who is the rank
of captain or above can make the decision to place a prisoner
on contraband watch if the official has reasonable cause to
believe that an inmate has ingested or secreted contraband.
F. Schroder was the acting facility captain at the time, but he
did not remember any specific details as to how Chappell was
placed on contraband watch or who made the decision.
R. Mandeville, captain of the Investigative Services Unit, was
in charge of the investigation but denies that he was the
official who ordered contraband watch. T. Rosario was the
acting warden and also would have had authority to order the
watch.

      Contraband watch, also known as a “body cavity search,”
is a temporary confinement during which a prisoner is closely
monitored and his bowel movements searched to determine
whether he has ingested or secreted contraband in his
digestive tract. Under prison procedures, the prisoner is first
searched and then dressed so as to prevent him from excreting
any contraband and removing it from his clothing. The
prisoner is placed in two pairs of underwear, one worn
normally and the other backwards, with the underwear taped
at the waist and thighs. The prisoner is also placed in two
jumpsuits, one worn normally and the other backwards, with
the suits taped at the thighs, ankles, waist, and upper arms.
The tape on both the underwear and the jump suits is not
meant to touch the skin; it is used to close off any openings
in the clothing. The prisoner is then placed in waist chain
restraints, which are handcuffs that are separated and chained
to the side of the prisoner’s waist. This prevents the prisoner
from being able to reach his rectum. The waist chain
restraints are adjustable and can be lengthened if necessary.
The prisoner is then placed in a surveillance cell where prison
6                CHAPPELL V . MANDEVILLE

staff watch the prisoner at all times. The lights are kept on in
the cell to allow staff to see the prisoner. To prevent the
inmate from concealing contraband, the cell does not have
any furniture other than a bed without a mattress. The
prisoner is given a blanket, and receives three meals a day
and beverages. When the prisoner needs to defecate he must
notify the prison staff who will bring him a plastic, moveable
toilet chair. Once he uses the chair, the staff will search the
waste to determine if it contains contraband.

    Chappell generally confirmed that these policies were
applied to him while he was under contraband watch. In
addition to these procedures, Chappell claims that he was also
placed in ankle shackles, and chained to the bed. He
complains that the waist restraints were not loosened for
meals, forcing him to “eat [his] food like a dog; the
temperature in the cell was very high; the cell was
unventilated; and the lights were “very bright.” Chappell
alleged that the conditions “did in fact torture [him] mentally”
and he felt like he “deteriorat[ed] mentally” during
contraband watch.

   After having three bowel movements that did not reveal
contraband, Chappell was released from contraband watch on
May 6, 2002.

    Chappell brought an action under 42 U.S.C. § 1983
naming various prison officials as defendants, including
Mandeville and Rosario, and alleging numerous
constitutional claims. The defendants brought a motion for
summary judgment, and the district court, adopting the
findings and recommendations of the magistrate judge,
granted the motion on some of the claims, but denied
summary judgment with respect to two of Chappell’s claims
                   CHAPPELL V . MANDEVILLE                   7

against Mandeville and Rosario: (1) that the contraband
watch constituted cruel and unusual punishment in violation
of the Eighth Amendment, and (2) that Chappell’s due
process rights were violated since he was not given notice of
the charges against him or an opportunity to be heard prior to
being placed on contraband watch. Mandeville and Rosario
appealed.

             II.     LEGAL BACKGROUND

    Qualified immunity protects government officials from
civil damages “insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); see also Schwenk v.
Hartford, 204 F.3d 1187, 1195–96 (9th Cir. 2000) (applying
qualified immunity to prison officials). Whether qualified
immunity applies thus “turns on the objective legal
reasonableness of the action, assessed in light of the legal
rules that were clearly established at the time it was taken.”
Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012)
(internal quotation marks omitted). Officials must have “fair
warning” that their actions are unconstitutional. Hope v.
Pelzer, 536 U.S. 730, 741 (2002); Porter v. Bowen, 496 F.3d
1009, 1026–27 (9th Cir. 2007). If an official “reasonably
believes that his or her conduct complies with the law,”
qualified immunity applies. Pearson v. Callahan, 555 U.S.
223, 244 (2009); see also Motley v. Parks, 432 F.3d 1072,
1077 (9th Cir. 2005) (en banc) (noting that qualified
immunity will “shield[] an officer from trial when the officer
reasonably misapprehends the law governing the
circumstances she confronted, even if the officer’s conduct
was constitutionally deficient” (internal quotation marks
8                   CHAPPELL V . MANDEVILLE

omitted)), overruled on other grounds by United States v.
King, 687 F.3d 1189 (9th Cir. 2012) (en banc).

     To determine whether the law was clearly established, we
first look to our own binding precedent. See Osolinski v.
Kane, 92 F.3d 934, 936 (9th Cir. 1996). If none is on point,
we may consider other decisional law. Id.; Drummond ex rel.
Drummond v. City of Anaheim, 343 F.3d 1052, 1060–61 (9th
Cir. 2003). We need not find that the “very action in question
has previously been held unlawful,” Anderson v. Creighton,
483 U.S. 635, 640 (1987) (internal citation omitted), but,
rather, we consider whether “a reasonable officer would have
had fair notice that [the action] was unlawful, and that any
mistake to the contrary would have been unreasonable.”
Drummond, 343 F.3d at 1060; see also Hope, 536 U.S. at 741
(“[O]fficials can still be on notice that their conduct violates
established law even in novel factual circumstances.”).

   In determining whether a government official should be
granted qualified immunity, we view the facts in the light
most favorable to the injured party. Saucier v. Katz, 533 U.S.
194, 201 (2001), receded from on other grounds by Pearson,
355 U.S. at 817–21; see also Bryan v. MacPherson, 630 F.3d
805, 817 (9th Cir. 2010).

                       III.     DISCUSSION

    On appeal, Mandeville and Rosario argue that they are
entitled to qualified immunity on Chappell’s Eighth
Amendment and due process claims.1 We agree. Under


    1
   W e have jurisdiction to consider an interlocutory appeal of a denial of
qualified immunity. Behrens v. Pelletier, 516 U.S. 299, 307 (1996). W e
review a district court’s denial of summary judgment on grounds of
                  CHAPPELL V . MANDEVILLE                       9

Chappell’s version of the facts, and assuming that he has
stated a claim under the Eighth and Fourteenth Amendments,
the law was not clearly established on either of Chappell’s
claims at the time the contraband watch took place such that
Mandeville and Rosario would have had fair notice that their
actions were unconstitutional. Thus, Mandeville and Rosario
are entitled to qualified immunity.

A. Chappell’s Eighth Amendment Claim

    Chappell argues that the combination of conditions to
which he was subjected, including twenty-four-hour lighting
and mattress deprivation, violated his Eighth Amendment
rights. We hold that as of April-May 2002, when Chappell
was placed on contraband watch, the law was not clearly
established as to whether the conditions Chappell
experienced—either in isolation or combination—violated the
Eighth Amendment, made applicable to the states through the
Fourteenth Amendment.

    1. Continuous lighting

    With regards to continuous lighting, as of April-May
2002, we had explained generally that sufficient or
“[a]dequate lighting is one of the fundamental attributes of
‘adequate shelter’ required by the Eighth Amendment,”
Hoptowit v. Spellman, 753 F.2d 779, 783 (9th Cir. 1985)
(holding that inadequate lighting violated the Constitution),
but we had only addressed constant illumination once in
Keenan v. Hall, 83 F.3d 1083, 1088, 1090–91 (9th Cir. 1996).
In Keenan we held that there was a triable issue of fact on a


qualified immunity de novo. See Bryan, 630 F.3d at 823; Sorrels v.
McKee, 290 F.3d 965, 969 (9th Cir. 2002).
10                 CHAPPELL V . MANDEVILLE

continuous lighting claim where a prisoner was subjected to
two large fluorescent lights that were kept on 24 hours a day
for six months, and the prisoner claimed that the lighting
caused him “‘grave sleeping problems’ and other and
psychological problems.” Id. at 1088, 1091. We noted that the
prison officials in that case had “no legitimate penological
justification for requiring inmates to suffer physical and
psychological harm by living in constant illumination,” id. at
1090 (internal quotation marks and alterations omitted),
relying on a district court decision, LeMaire v. Maass, 745 F.
Supp. 623, 636 (D. Or. 1990), vacated, 12 F.3d 1444, 1459
(9th Cir. 1993) (vacating, in part, because the state agreed to
change the lighting).

    Keenan did not clearly establish that Mandeville’s and
Rosario’s actions were unconstitutional because the facts of
Keenan are distinguishable. In Keenan, the prisoner claimed
sleep deprivation over a period of six months; Chappell’s
claim is based on seven days of contraband watch, and he did
not claim that he was sleep deprived.2

    Moreover, Keenan did not clearly establish that constant
illumination violates the Eighth Amendment when done for
a legitimate penological purpose. Keenan noted that no
legitimate penological justification had been offered in that
case. Keenan, 83 F.3d at 1090. Furthermore, the district court
case on which Keenan relied, LeMaire, acknowledged that a
need to see into cells as a security measure could be a


  2
     As Judge Berzon acknowledges in her dissent, Chappell “did not
expressly allege” that the contraband watch caused him sleeping
problems. Dissent Op. at 35. The only statement relating to sleep in the
Amended Complaint is that Chappell was “deteriorating mentally” and
had to “attempt to sleep that way.”
                    CHAPPELL V . MANDEVILLE                           11

legitimate penological justification, but concluded that the
penological justification offered in that case was insufficient
because there was no evidence that the staff “need[ed] to see
into the quiet cells for 24 hours per day, or that they [were]
even near the quiet cells for 24 hours per day.” LeMaire, 745
F. Supp. at 636.3 In contrast, the record here reflects a clear
penological purpose. Prison officials suspected that Chappell
had secreted contraband in his body and kept the lights on so
that they could monitor Chappell 24 hours a day to prevent
him from disposing of the contraband. The officers would
have been unable to perform contraband watch if they could
not see into his cell. Thus, our case law did not clearly
establish that in April-May 2002 that the constant
illumination of Chappell’s cell was unconstitutional.

     In addition, even if Chappell and Mandeville had looked
to other decisional law for guidance they still would not have
had fair notice that their actions were unconstitutional.
Indeed, one district court case surveying the state of the law
explained that there have been “mixed results” on continuous
lighting claims because “such cases are fact-driven.”
Shepherd v. Ault, 982 F. Supp. 643, 645 (N.D. Iowa 1997). In
that case the court held that prisoners raised a genuine issue
of material fact on their Eighth Amendment claims where two
prisoners spent 283 days and 550 days, respectively, under


  3
    Judge Berzon points out that Keenan says that “‘there is no legitimate
penological justification for requiring inmates to suffer physical and
psychological harm by living in constant illumination.’” Keenan, 83 F.3d
at 1090 (quoting LeMaire, 745 F. Supp. at 636); see Dissent O p. at 36.
Although Judge Berzon reads Keenan as broadly stating that penological
reasons cannot justify constant illumination under any circumstances,
Keenan itself was quoting from LeMaire, in which that court left open the
possibility that a legitimate penological purpose could justify constant
illumination. 745 F. Supp. at 636.
12               CHAPPELL V . MANDEVILLE

bright lighting, and one of those two prisoners claimed that he
had difficulty sleeping. Id. at 647–49. Under different
circumstances, however, other courts had concluded that the
effects of continuous lighting were not severe enough to
constitute a violation of the Eighth Amendment. See, e.g.,
Zatko v. Rowland, 835 F. Supp. 1174, 1181 (N.D. Cal 1993)
(noting that continuous light depriving a prisoner of sleep
would be unconstitutional but dismissing the claim because
the officers did not use the light to try to keep the prisoner
awake); Williams v. Ward, 567 F. Supp. 10, 13, 15 (E.D.N.Y
1982) (holding that keeping hallway lights on all night did not
violate a constitutional right even where plaintiff claimed
inability to sleep); Cassidy v. Superintendent, 392 F. Supp.
330, 334 (W.D. Va. 1975) (holding that “flood[ing] a cell
with a bright light twenty-four hours a day” was
constitutional where the lights allowed guards to check the
cells, the lights were not bright enough to interfere with the
prisoners’ sleep, the prisoner chose to stay in that particular
cell, and the light was not used in a “vindictive manner”),
aff’d in part, rev’d in part and remanded, 529 F.2d 514 (4th
Cir. 1975) (grounds for reversal not provided); Bauer v.
Sielaff, 372 F. Supp. 1104, 1110 (E.D. Pa. 1974) (“[T]he
discomfort of lights at night do[es] not constitute a
constitutional deprivation.”).

    Moreover, in a different context—that of pre-trial
detainees bringing claims under the Due Process Clause of
the Fourteenth Amendment, which protects an even broader
class of interests than the Eighth Amendment, see Redman v.
Cnty. of San Diego, 942 F.2d 1435, 1440 n.7 (9th Cir. 1991)
(explaining that “while the eighth amendment proscribes
cruel and unusual punishment for convicted inmates, the due
process clause of the fourteenth amendment proscribes any
punishment of pretrial detainees”); see also Bell v. Wolfish,
                 CHAPPELL V . MANDEVILLE                      13

441 U.S. 520, 535 n.16 (1979),—other courts had held that
constant lighting can serve a legitimate penological purpose.
See, e.g., Ferguson v. Cape Girardeau County, 88 F.3d 647,
650 (8th Cir. 1996) (holding where bright lights were on
continuously and the plaintiff was observed sleeping that the
“totality of the circumstances—which include the relative
short duration of the confinement, the necessity to keep the
detainee under observation for both his medical condition as
well as general safety concerns, and the amount of time that
he spent out of the cell—supports the assertion of legitimate
governmental interest,” and thus no constitutional violation
occurred); O’Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir.
1987) (“[C]ontinuous lighting in [a] holding cell was not
unreasonable given the need for jail security and the need to
monitor [the prisoner].”); Fillmore v. Ordonez, 829 F. Supp.
1544, 1568 (D. Kan. 1993) (holding that a continuous low-
intensity light was “reasonably related to the maintenance of
internal security of the Osage County jail”), aff’d, 17 F.3d
1436 (10th Cir. 1994), abrogated in part on other grounds as
recognized by Williams v. Weber, 905 F. Supp. 1502, 1512
n.13 (D. Kan. 1995).

    Overall, as of April-May 2002, other jurisdictions had
made decisions on continuous lighting based on various
factors, including whether the lights caused sleep deprivation,
Shepherd, 982 F. Supp. at 647–49; Zatko, 835 F. Supp. at
1181; Cassidy, 392 F. Supp. at 334; the brightness and
intensity of the lights, id.; the duration of exposure, Shepherd,
982 F. Supp. at 648–49; Ferguson, 88 F.3d at 650; whether a
legitimate penological justification existed, Cassidy, 392 F.
Supp. at 334; Ferguson, 88 F.3d at 650; Fillmore, 829 F.
Supp. at 1568; and whether prison officials were trying to
keep the prisoner awake, Zatko, 835 F. Supp. at 1181. The
results of these cases were mixed. A large majority of the
14               CHAPPELL V . MANDEVILLE

courts, however, concluded that the there was no Eighth
Amendment violation.

    Since, at the time Chappell’s contraband watch took
place, no court had ruled on whether contraband watch
constitutes a legitimate penological purpose that would justify
continuous lighting, and Chappell was subjected to
continuous lighting for only seven days and did not claim that
he was deprived of sleep or intentionally kept awake,
Mandeville and Rosario did not have fair notice that their
actions were unconstitutional. Given our decision in Keenan
and the decisional law in other circuits, we have some doubt
that the conditions that Chappell experienced under
contraband watch even amounted to Eighth Amendment
violation, but we do not reach this question since, at a
minimum, the law was not clearly established that the
contraband watch was unconstitutional and thus Chappell’s
Eighth Amendment claim can be resolved on qualified
immunity grounds.

     2. Mattress deprivation

    The law was not clearly established as of April-May 2002
with regards to mattress deprivation either. We had held that
mattress deprivation “for only one night [was] insufficient to
state an eighth amendment violation,” Hernandez v. Denton,
861 F.2d 1421, 1424 (9th Cir. 1988), vacated on other
grounds, 493 U.S. 801, (1989), but had not made clear
whether mattress deprivation for longer could state an Eighth
Amendment claim. Although we had indicated in an
unpublished decision that a prisoner who was “forced to sleep
on the floor, without a mattress, next to broken toilets and
overflowing showers” for an unspecified period of time and
“had to wear the same clothes for 45 days” might have an
                 CHAPPELL V . MANDEVILLE                     15

Eighth Amendment claim, Seagrave v. Hennessey, No. 92-
17121, 1994 U.S. App. LEXIS 4321, at *4–6 (9th Cir. Mar.
2, 1994), we had also explained that the Supreme Court’s
observation that “a condition of confinement which does not
violate the Eighth Amendment when it exists for just a few
days may constitute a violation when it exists for ‘weeks or
months,’ . . . [did] not provide clear guidance to prison
officials as to how much time must pass before requiring a
prisoner to sleep on the floor of a cell without a mattress
[may] constitute an Eighth Amendment violation.” Schroeder
v. Kaplan, 60 F.3d 834, 1995 WL 398878, at *2 (9th Cir. July
7, 1995) (unpublished) (quoting Hutto v. Finley, 437 U.S.
678, 686–87 (1978)). We also held in Schroeder that, where
a prisoner was forced to sleep on a cold concrete floor for
most of a month, the law was not clearly established on
whether mattress deprivation was an Eighth Amendment
violation. Id. at *2–3. We concluded that there was no
binding precedent in our circuit, that decisional law in other
jurisdictions was inconsistent, and that those courts that found
a constitutional violation had additional egregious facts
supporting an Eighth Amendment claim. Id. at *2 (citing
cases that included additional factors such as “extreme cold,
lack of sanitary conditions, solitary confinement, inadequate
clothing, or improper diet”).

    If Mandeville and Rosario had looked to Schroeder they
would not have had notice on whether mattress deprivation
constituted an Eighth Amendment violation. This is
particularly true because the facts surrounding Chappell’s
confinement are much less severe than those in Schroeder.
Not only was Chappell forced to sleep without a mattress for
only seven days, which is significantly less time than the
prisoner in Schroeder who went a month without a mattress,
but Chappell had a bed and a blanket. Mandeville and
16               CHAPPELL V . MANDEVILLE

Rosario also submitted evidence that there was a legitimate
purpose for not allowing Chappell to have a mattress—no
mattress or furniture was allowed into the cell to prevent the
inmate from concealing contraband.

    We did not hear any cases on mattress deprivation
between July 1995, when Schroeder was decided, and April-
May 2002, when Chappell was placed on contraband watch.
The law of other jurisdictions between July 1995 and April-
May 2002 would not have provided Chappell and Rosario
with any further clarity either. Compare Jones v. Toombs, 77
F.3d 482, 1996 WL 67750 (6th Cir. Feb. 15, 1996)
(unpublished) (holding that two weeks without a mattress did
not violate the Eighth Amendment), O’Leary v. Iowa State
Men's Reformatory, 79 F.3d 82, 84 (8th Cir. 1996) (holding
that three days without a blanket and a mattress during a
disciplinary confinement did not violate the Eighth
Amendment), Castro v. Chesney, No. CIV. A. 97-4983, 1998
WL 767467, at *8 (E.D. Pa. Nov. 3, 1998) (holding that two
days without a mattress and a blanket would not rise to a
constitutional violation), and Johnson v. Zanon, 543 N.W. 2d
868, 1995 WL 576891, at *1–2 (Wis. Ct. App. Oct. 3, 1995)
(unpublished) (holding that three days without a mattress did
not support an Eighth Amendment claim), with DeSpain v.
Uphoff, 229 F.3d 1162, 2000 WL 1228003 (10th Cir. Aug.
30, 2000) (unpublished) (holding that three days without a
mattress, bedding, or clothes in an unheated cell was
sufficient to withstand summary judgment on prisoner’s
Eighth Amendment claim), Rhoden v. Godinez, No. 95 C
5085, 1996 WL 559954, at *4 (N.D. Ill. Sept. 30, 1996)
(unpublished) (holding that several months without bed linen
and a mattress could sustain an Eighth Amendment claim, but
noting that the deprivation could have been “justified by
legitimate security concerns”), and Gordon v. Sheahan, No.
                 CHAPPELL V . MANDEVILLE                      17

96 C 1784, 1997 WL 136699, at *7 (N.D. Ill. Mar. 24, 1997)
(noting that “[r]equiring even a convicted prisoner to sleep
without a mattress for more than a few days could” violate
the Eighth Amendment). Thus, our conclusion in Schroeder
that the law was not clearly established was still true in April-
May 2002. Mandeville and Rosario would not have had fair
notice that mattress deprivation alone would have constituted
a constitutional violation.

    3. Combination of conditions

    Viewing the facts in the light most favorable to Chappell,
in addition to the continuous lighting and the mattress
deprivation, Chappell alleged that he was taped into two pairs
of underwear and jumpsuits, placed in a hot cell with no
ventilation, chained to an iron bed, shackled at the ankles and
waist so that he could not move his arms, and was forced to
eat like a dog. The district court adopted the magistrate’s
finding that these conditions had the “mutually enforcing
effect of sleep deprivation that any reasonable officer would
know comprised unconstitutional conditions of confinement.”
We disagree.

    It is true that “[s]ome conditions of confinement may
establish an Eighth Amendment violation ‘in combination’
when each would not do so alone.” Wilson v. Seiter, 501 U.S.
294, 304 (1991). But this only applies when the conditions
“have a mutually enforcing effect that produces the
deprivation of a single, identifiable human need such as food,
warmth, or exercise—for example, a low cell temperature at
night combined with a failure to issue blankets.” Id. Chappell
has not alleged the deprivation of any such need here. He did
not specifically claim that he was sleep deprived during the
18               CHAPPELL V . MANDEVILLE

contraband watch, but only that he was “deteriorating
mentally” and had to “attempt to sleep that way.”

    Moreover, the focus of the inquiry under qualified
immunity is whether the defendants had fair notice that their
actions were unconstitutional. In April-May 2002, there were
no cases in this jurisdiction that involved a contraband watch
similar to the one that occurred here. The only factually
similar case was Mendoza v. Blodgett, which involved a
“feces watch” where the prisoner was placed in a “dry cell”
wearing only a pair of shorts and not given a blanket.
Mendoza v. Blodgett, 1990 WL 263527, at *4–5 (E.D. Wash.
Dec. 21, 1990), aff’d on other grounds, 960 F.2d 1425, 1427
n.3 (9th Cir. 1992) (noting that Mendoza did not renew his
Eighth Amendment Claim). In that case, the district court
held that these circumstances did not amount to an Eighth
Amendment violation, noting that the purpose of these
conditions was “to insure that [the prisoner was] unable to
conceal or destroy any contraband passed through a bowel
movement.” Id. at *5.

    Case law in other jurisdictions would not have provided
any further clarity. The Seventh Circuit held similarly that
placement of a prisoner into a dry cell for three days, during
which he was unable to wash his hands and denied personal
hygiene items, did not violate the Eighth Amendment,
particularly since the prisoner had been “confined to the dry
cell to serve a legitimate penological interest.” Jihad v.
Wright, 124 F.3d 204, 1997 WL 471345, at *2 (7th Cir. Aug.
14, 1997) (unpublished); see also Stewart v. Wright, 101 F.3d
704, 1996 WL 665978, at *1 (7th Cir. Nov. 14, 1996)
(unpublished) (holding that a three-day confinement to dry
cell without toilet paper, toothbrush, toothpaste, in a “filthy
roach-infested cell” did not violate the Eighth Amendment).
                     CHAPPELL V . MANDEVILLE                             19

    Although the conditions here were more severe than those
in the feces watch cases, as previously explained, Mandeville
and Rosario presented evidence that the contraband watch
conditions were engineered with an eye to accomplishing the
same penological purpose as the feces watch
cases—discovering secreted contraband. Given this important
penological purpose and the state of the law at the time, the
contraband watch was not “such a far cry from what any
reasonable prison official could have believed was legal that
the defendants knew or should have known they were
breaking the law.” Sorrels, 290 F.3d at 971; see also
Messerschmidt, 132 S. Ct. at 1244 (“Qualified immunity
gives government officials breathing room to make
reasonable but mistaken judgments, and protects all but the
plainly incompetent or those who knowingly violate the law.”
(internal quotation marks omitted)).

   Because no court had held that conditions similar to those
Chappell experienced were unconstitutional in the face of the
important penological purpose of discovering contraband, we
hold that Mandeville and Rosario are entitled to qualified
immunity on Chappell’s Eighth Amendment claim.4



  4
     Because Mandeville and Rosario are entitled to qualified immunity,
we do not consider whether these conditions amounted to an actual Eighth
Amendment violation. Our holding is limited to a finding that the law was
not clearly established as to whether the conditions that Chappell was
subjected to, both in isolation and combination, violated the Eighth
Amendment. See Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)
(explaining that a court “may grant qualified immunity on the ground that
a purported right was not ‘clearly established’ by prior case law, without
resolving the often more difficult question whether the purported right
exists at all” to avoid deciding constitutional questions unnecessarily); see
also Pearson, 555 U.S. at 236–37, 241.
20               CHAPPELL V . MANDEVILLE

B. Chappell’s Due Process Claim

    Chappell also claims that his right to due process was
violated because he was not provided with an opportunity to
be heard by the official who ordered the contraband watch.
For Chappell to be entitled to due process we first must find
that he has a liberty interest triggering procedural protections.
A liberty interest can arise from one of two sources—either
the Due Process Clause of the Fourteenth Amendment or
state law. Mendoza, 960 F.2d at 1428. Since Chappell does
not make clear whether he bases his claim on the Due Process
Clause of the Fourteenth Amendment or whether he claims a
state-created liberty interest, we analyze both theories.

     1. Liberty interest under the Fourteenth Amendment

     We conclude that the Due Process Clause of the
Fourteenth Amendment does not afford Chappell a liberty
interest. “[L]awfully incarcerated persons retain only a
narrow range of protected liberty interests.” Hewitt v. Helms,
459 U.S. 460, 467 (1983). Thus, “[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.” Montanye v. Haymes, 427 U.S. 236, 242
(1976). Transfer to less amenable quarters for non-punitive
reasons has been held to be “ordinarily contemplated by a
prison sentence.” Hewitt, 459 U.S. at 468; see also Wilkinson
v. Austin, 545 U.S. 209, 221 (2005) (explaining that “[t]he
Constitution itself does not give rise to a liberty interest in
avoiding transfer to more adverse conditions of
confinement”). Indeed, the Due Process Clause does not
protect against all changes in conditions of confinement even
                 CHAPPELL V . MANDEVILLE                    21

where they “hav[e] a substantial adverse impact on the
prisoner involved.” Meachum v. Fano, 427 U.S. 215, 224
(1976).

    An investigative contraband watch is the type of condition
of confinement that is ordinarily contemplated by the
sentence imposed. Only the most extreme changes in the
conditions of confinement have been found to directly invoke
the protections of the Due Process Clause, such as
involuntary commitment to a mental institution, see Vitek v.
Jones, 445 U.S. 480, 493–94 (1980), or the forced
administration of psychotropic drugs, Washington v. Harper,
494 U.S. 210, 221–22 (1990). Since a temporary contraband
watch does not rise to this level, Chappell cannot directly
claim a liberty interest under the Due Process Clause of the
Fourteenth Amendment.

   2. State-created liberty interest

    In addition, the claim that Mandeville and Rosario are
liable to Chappell for damages based on a state-created
liberty interest also fails. Since the law was not clearly
established on whether a state-created liberty interest existed
with regard to the contraband watch when it took place,
Mandeville and Rosario are also entitled to qualified
immunity on Chappell’s due process claim, and so cannot be
liable for damages.

       a. Sandin and the substantive predicates test

    A state may create a liberty interest through statutes,
prison regulations, and policies. Wilkinson, 545 U.S. at 222;
Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir. 1997). For
many years we analyzed whether a state had created a liberty
22               CHAPPELL V . MANDEVILLE

interest in its prison regulations under the “substantive
predicates approach,” based on the Supreme Court’s decision
in Hewitt v. Helms, 459 U.S. 460. This approach asked
whether the state has placed “substantive limitations on
official discretion,” through “adopting regulations which
establish ‘substantive predicates’ to govern official
decisionmaking,” by using “explicitly mandatory” rather
than discretionary language. Mendoza, 960 F.2d at 1428–29;
see also Hewitt, 459 U.S. at 471–72.

     Our approach to state-created liberty interests changed,
however, in response to the Court’s decision in Sandin v.
Conner, 515 U.S. 472 (1995). In Sandin, the Court criticized
its previous “substantive predicates” approach as applied to
changes in prison conditions, asserting that “the search for a
negative implication from mandatory language in prisoner
regulations has strayed from the real concerns undergirding
the liberty protected by the Due Process Clause.” Id. at
480–83. Sandin then refocused the inquiry on whether the
action “imposes [an] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id.
at 483–84. In applying Sandin, we have concluded that the
discretionary/mandatory substantive predicates approach was
“abandoned” or “overruled” in Sandin, and our decisions
have focused only on the “atypical and significant hardship”
test, even in the face of relevant prison regulations. See, e.g.,
Myron v. Terhune, 476 F.3d 716, 719 (9th Cir. 2007) (noting
that Sandin abandoned the mandatory/discretionary
methodology for convicted prisoners); McQuillion v. Duncan,
306 F.3d 895, 903 (9th Cir. 2002) (noting that Sandin
“abandon[ed] the ‘mandatory language’ framework”); Duffy
v. Riveland, 98 F.3d 447, 457 (9th Cir. 1996) (explaining that
the mandatory language “test for the existence of state-
created liberty interests . . . has been abandoned by the
                    CHAPPELL V . MANDEVILLE                             23

Supreme Court” in Sandin); Mitchell v. Dupnik, 75 F.3d 517,
522 (9th Cir. 1996) (noting that Sandin criticized the
“substantive predicates approach” and refocused the test);
Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir. 1995) (noting
that Sandin “overruled” Ninth Circuit cases that have taken
a substantive predicate/mandatory language approach); cf.
Neal, 131 F.3d at 828–29 (noting, before Wilkinson, that the
substantive predicates test had “likely . . . been disapproved”
of in Sandin but holding that a state program likely created a
liberty interest in any event).5

     Sandin and its progeny made this much clear: to find a
violation of a state-created liberty interest the hardship
imposed on the prisoner must be “atypical and significant . .
. in relation to the ordinary incidents of prison life.” Sandin,
515 U.S. at 483–84.

         b. Atypical and significant hardship test

   We conclude that the law did not clearly establish that the
conditions that Chappell experienced constituted an “atypical
and significant hardship.” At the time of Chappell’s


  5
      In contrast to the shift regarding prison conditions and discipline
cases, the “mandatory language” analysis of Greenholtz v. Inmates of
Neb. Penal & Corr. Complex, 442 U.S. 1 (1979), and Bd. of Pardons v.
Allen, 482 U.S. 369 (1987), retains continuing vitality in cases concerning
prisoners’ state-created liberty interest in parole. See Swarthout v. Cooke,
131 S. Ct. 859, 861–63 (2011) (per curiam) (characterizing our holding
that California law creates a liberty interest in parole as “a reasonable
application” of Allen and Greenholtz, but holding that prisoners have no
constitutionally protected liberty interest in factual support for parole
decisions); see also, e.g., Miller v. Or. Bd. of Parole & Post Prison
Supervision, 642 F.3d 711, 714–16 (9th Cir. 2011); Roberts v. Hartley,
640 F.3d 1042, 1045 (9th Cir. 2011).
24               CHAPPELL V . MANDEVILLE

contraband watch, we had explained that the “atypical and
significant hardship” is context-dependent and requires “fact
by fact consideration,” Keenan, 83 F.3d at 1089. We
confirmed this only a year after the contraband watch took
place, noting that “[t]here is no single standard for
determining whether a prison hardship is atypical and
significant” and that analysis under this standard requires
“case by case, fact by fact consideration.” Ramirez v. Galaza,
334 F.3d 850, 861 (9th Cir. 2003) (internal quotation marks
omitted). Indeed, we had noted prior to April-May 2002 that
at least three factors from Sandin should be considered in
each case: (1) whether the conditions of confinement
“mirrored those conditions imposed upon inmates in
analogous discretionary confinement settings, namely
administrative segregation and protective custody,” (2) the
duration and intensity of the conditions of confinement; and
(3) whether the change in confinement would “inevitably
affect the duration of [the prisoner’s] sentence.” Pifer v.
Marshall, 139 F.3d 907, 1998 WL 81335, at *1 n.3 (9th Cir.
Feb. 24, 1998) (unpublished) (internal quotation marks
omitted).

    We are not aware of any court that, as of April-May 2002,
had applied the Sandin test, or similar temporary,
investigatory confinement, to hold that a contraband watch
was an “atypical and significant hardship” apart from the
ordinary conditions of prison management. The only similar
case in which we had considered a due process claim was
Mendoza, where the prisoner had been placed on “feces
watch.” Mendoza, 960 F.2d at 1427–29. That case, however,
was pre-Sandin and thus did not apply the “atypical and
significant hardship” test. Id. Moreover, no other jurisdiction
had applied the “atypical and significant hardship” test to any
factually similar cases before April-May 2002 either.
                 CHAPPELL V . MANDEVILLE                     25

    Because there was no case law holding that contraband
watch, or any similar regime, is an “atypical and significant
hardship,” and the “atypical and significant hardship” test is
so fact-specific, Mandeville and Rosario did not have fair
notice on whether the conditions that Chappell experienced
violated a state-created liberty interest that would trigger due
process protections. Thus, Mandeville and Rosario are also
entitled to qualified immunity on Chappell’s due process
claim.

                   IV.    CONCLUSION

    We conclude that, as of April-May 2002, the law was not
clearly established as to whether the conditions that Chappell
experienced in connection with the contraband watch violated
the Eighth Amendment. Moreover, we conclude that
Chappell cannot claim a liberty interest under the Due
Process Clause of the Fourteenth Amendment, and it was not
clearly established that Chappell had sustained a violation of
a state-created liberty interest. Therefore, both Mandeville
and Rosario are entitled to qualified immunity. In light of this
conclusion, we do not decide whether Chappell’s claims, if
proven, would violate the Eighth or Fourteenth Amendments.

   REVERSED.



GRAHAM, Senior District Judge, concurring:

    I join the panel’s opinion with the exception of Section
III.B.2. I write separately because I disagree with my
colleagues’ interpretation of the Supreme Court’s decision in
Sandin v. Conner, 515 U.S. 472 (1995), in the context of their
26               CHAPPELL V . MANDEVILLE

analysis of Chappell’s due process claim based on a state-
created liberty interest.

    I believe that subjecting Chappell to contraband watch did
not violate his rights under the Due Process Clause. The due
process analysis should end there because Chappell has
identified no state statute or regulation which limits the
discretion of prison officials to subject him to this kind of
temporary investigatory confinement. In the absence of such
a state statute or regulation, there can be no state-created
liberty interest.

    My colleagues apparently believe that Sandin changed
this requirement and that post-Sandin any change in
conditions of confinement which imposes an “atypical and
significant hardship” may give rise to a violation of a state-
created liberty interest. I fail to understand how it could be
said that a state has “created” a liberty interest by imposing
harsher conditions of confinement. In effect, my colleagues
have interpreted Sandin to conflate the state-created liberty
interest analysis so as to give a state prisoner direct access to
the protections of the Due Process Clause if he can show that
the conditions of his confinement impose an “atypical and
significant hardship.” This is a radical change in due process
jurisprudence and a significant departure from previous
limitations. See Meachum v. Fano, 427 U.S. 215, 224 (1976)
(rejecting the proposition that “[a]ny change in the conditions
of confinement having a substantial adverse impact on the
prisoner involved is sufficient to invoke the protections of the
Due Process Clause”). Cases in which the Supreme Court
has found that conditions of confinement amounted to a
violation of the Due Process Clause have been limited to such
extremes as involuntary commitment to a mental institution
and the forced administration of psychotropic drugs. See
                 CHAPPELL V . MANDEVILLE                     27

Vitek v. Jones, 445 U.S. 480 (1980) and Washington v.
Harper, 494 U.S. 210 (1990).

     A state may create a liberty interest through statutes and
prison regulations and may thereby trigger due process
protections. Wilkinson v. Austin, 545 U.S. 209, 222 (2005);
Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir. 1997). The
determination of whether a state-created liberty interest exists
is a two-part inquiry. First, there must be a regulation that
places “substantive limitations on official discretion.”
Mendoza v. Blodgett, 960 F.2d. 1425, 1428 (9th Cir. 1992)
(citing Kentucky Dep’t of Corrections v. Thompson, 490 U.S.
454, 462 (1989)). In Mendoza, the court explained:

       The most common way a state creates such an
       interest is by adopting regulations which
       establish “substantive predicates” to govern
       official decisionmaking and by mandating the
       outcome to be reached upon a finding that the
       relevant criteria have been met. There must be
       particularized standards or criteria to guide
       the state’s decisionmakers, and the criteria
       must serve to limit discretion. If a
       decisionmaker can make his decision for any
       constitutionally permissible reason or for no
       reason at all, the state has not created a liberty
       interest.

960 F.2d at 1428-1429 (citations omitted).

    The second part of the inquiry asks whether the regulation
in question concerns a restraint that imposes an “atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin, 515 U.S. at 484. Prior to
28                CHAPPELL V . MANDEVILLE

Sandin, prisoners had asserted federal due process claims
based on all sorts of prison regulations, such as those
pertaining to visitation, lunch trays, books, electrical outlets
in cells, prison jobs, etc. Id. at 482–83. In Sandin, the Court
clarified its earlier decisions on state-created liberty interests
by making it clear that those interests are protected by the
Due Process Clause only when state regulations, relating to
freedom from restraints, impose “atypical and significant
hardships on the inmate in relation to the ordinary incidents
of prison life.” Id. at 484.

    This two-part inquiry is based on my understanding of the
state of the law in the aftermath of Sandin and is the approach
adopted by the Second Circuit. In Tellier v. Fields, 280 F.3d
69 (2d Cir. 2001), the Second Circuit described the proper
analysis:

        As we have recognized previously, after the
        Supreme Court’s decision in Sandin, our
        determination of “whether the plaintiff had a
        protected liberty interest in not being
        confined” also requires a two-part analysis.
        [Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.
        1997)] (citing Frazier v. Coughlin, 81 F.3d
        313, 317 (2d Cir. 1996) (per curiam)). “As a
        result of Sandin, a prisoner has a liberty
        interest only if the deprivation . . . is atypical
        and significant and the state has created the
        liberty interest by statute or regulation.” Id. at
        52.

        First, we examine whether the alleged
        deprivation was atypical and significant. . . .
        Second, we must examine whether the state
                  CHAPPELL V . MANDEVILLE                 29

       has created a liberty interest by statute or
       regulation.

280 F.3d at 80.

       After conducting the Hewitt / Sandin analysis
       . . . we conclude that Section 541.22 creates a
       liberty interest. Under [Hewitt v. Helms, 459
       U.S. 460 (1983)], courts considering the
       existence of an alleged liberty interest must
       ascertain whether “statutes or regulations
       require, in ‘language of an unmistakably
       mandatory character,’ that a prisoner not
       suffer a particular deprivation absent specified
       predicates.” Welch v. Bartlett, 196 F.3d 389,
       392 (2d Cir. 1999) (quoting Hewitt, 459 U.S.
       at 471–72).

280 F.3d at 81.

       Read together, Sandin, Wolff, and Meachum,
       all support the proposition that a statute or
       regulation which involves “state-created
       right[s],” [Wolff v. McDonnell, 418 U.S. 539,
       557 (1974)], creates a protectable liberty
       interest when an official’s failure to adhere to
       the statute results in an “atypical, significant
       deprivation,” Sandin, 515 U.S. at 486, of “real
       substance,” Wolff, 418 U.S. at 557, and not
       simply “ephemeral and insubstantial”
       violations. Meachum, 427 U.S. at 228.

280 F.3d at 83.
30                  CHAPPELL V . MANDEVILLE

    Similarly, in Smith v. Cruse, the Northern District of
California held that Sandin’s “atypical and significant
hardship” due process analysis must be triggered by the
existence of a state regulation which significantly limits the
discretion of prison officials. No. C 10-3684 SBA (PR), 2012
WL 1155964, at *7 (N.D. Cal. Mar. 30, 2012); see also Lopez
v. Cate, No. C 11-2644, 2012 WL 4677221 YGA (PR), at *5
(N.D. Cal. Sept. 30, 2012) (“Deprivations that are authorized
by state law . . . may also amount to deprivations of a
procedurally protected liberty interest, provided that: (1) state
statutes or regulations narrowly restrict the power of prison
officials to impose the deprivation, i.e., give the inmate a kind
of right to avoid it, and (2) the liberty in question is one of
‘real substance.’”); Reed v. Knipp, No. CIV-S-11-2753 KJN
KJN P., 2012 WL 6570906, at *2 (E.D. Cal. Dec. 17, 2012)
(“Because this language gives the decisionmaker a certain
amount of discretion to deny credit restoration, the statutes
and regulations do not create a liberty interest in the
restoration of forfeited credits.”).

    The court cites the opinions of five panels of this court for
the proposition that “we have concluded that the
discretionary/mandatory substantive predicates approach was
‘abandoned’ or ‘overruled’ in Sandin, and our decisions have
focused only on the ‘atypical and significant hardship’ test,
even in the face of relevant prison regulations.” It is true that,
in these five cases1 and a handful of others,2 panels of this

 1
    Myron v. Terhune, 476 F.3d 716, 719 (9th Cir. 2007) (finding prison
regulations governing an inmate’s classification did not create a liberty
interest because they did not amount to an atypical and significant
hardship and noting that Sandin rejected the mandatory/discretionary
methodology); McQuillion v. Duncan, 306 F.3d 895, 903 (9th Cir. 2002)
(holding that Sandin was not applicable to the parole system at issue, but
opining that Sandin “abandoned” the mandatory language framework);
                    CHAPPELL V . MANDEVILLE                             31

court have opined that Sandin ended the substantive predicate
approach. But none of these cases directly address the issue,
and their statements about the continuing validity of the
substantive predicate approach are dicta, not binding on this
panel or on district courts within the circuit. Instead, these
cases simply affirm the uncontroversial proposition that
Sandin created the requirement of an “atypical and significant
hardship” in order to establish a state-created liberty interest.

    Turning now to the facts of this case, the parties did not
identify any prison regulation that puts a limit on an official’s
discretion in order to place a prisoner on contraband watch.
The parties seem to have agreed, and certainly did not dispute
for purposes of summary judgment, that the contraband watch
regulations in effect at the relevant time were set forth in



Mitchell v. Dupnik, 75 F.3d 517, 522 (9th Cir. 1996) (holding a jail policy
did not create an “atypical and significant hardship” and so no liberty
interest was created, but noting the Supreme Court in Sandin criticized the
“substantive predicate approach”); Duffy v. Riveland, 98 F.3d 447, 457
(9th Cir. 1996) (remanding the case for consideration of whether the
deprivation constituted an atypical and significant hardship, but
commenting that the substantive predicate test had been “abandoned” by
Sandin); Mujahid v. Meyer, 59 F.3d 931, 932 (9th Cir. 1995) (holding
disciplinary segregation did not constitute “atypical and significant”
hardship under Sandin and thus, no liberty interest was created, but noting
that case law employing the “substantive predicate” and “mandatory
language” test had been overruled by Sandin).

  2
     See, e.g., Neal v. Shimoda, 131 F.3d 818, 829–30 (9th Cir. 1997)
(opining that the substantive predicate test had “likely . . . been
disapproved” by Sandin, but concluding that, in any event, the
classification of prisoners as sex offenders satisfies that test); Keenan v.
Hall, 83 F.3d 1083, 1088-89 (stating that Sandin “rejected its prior
[substantive predicate] test” and remanding because the district court had
not considered whether the deprivation was atypical and significant).
32                  CHAPPELL V . MANDEVILLE

plaintiff’s exhibit J.3 These regulations deal mainly with the
conditions of contraband watch, and do not describe any
limitations on an official’s discretion. The only provisions
relating to the decision to place an inmate on contraband
watch are found in the first paragraph of page 1 and the
second paragraph on page 5 of regulation 52050.25:

         The responsible Facility Captain during
         business hours, and the AOD during non-
         business hours, (evenings/Saturdays/
         Sundays/holidays), are delegated the authority
         to place inmates suspected of concealing
         contraband items within their body cavities on
         Body Cavity Surveillance Status. Notification
         will be made to the respective Associate
         Warden during business hours.

         ...

         The Watch Commander will only terminate
         Body Cavity Surveillance with Concurrence
         of the Facility Captain where the inmate was
         previously housed or the AOD during non-
         business hours. If extenuating circumstances
         exist, the Body Cavity Surveillance may be
         continued; however, review of each case will
         be conducted daily by the affected Facility
         Program Lieutenant to determine whether


  3
     This exhibit was not included in the record of this court and was
obtained from the district court docket. According to the district court
decision, plaintiff offered this excerpt of the CDC Operations Manual as
proof of the conditions and procedures in effect at the time when he was
on contraband watch, and the defendants have not objected to its accuracy.
                 CHAPPELL V . MANDEVILLE                   33

       termination or continuation of the Body
       Cavity Surveillance is necessary.

    An inmate may be placed on contraband watch based on
mere suspicion of concealing contraband within his body
cavities. Such suspicion does not even have to be reasonable.
Moreover, it appears from the regulation that it is entirely
within the discretion of the affected Facility Program
Lieutenant to determine whether termination or continuation
of the Body Cavity Search is necessary. This regulation is
not a substantive limitation on official discretion and
therefore the regulations do not qualify as a state-created
liberty interest.

    Because subjecting Chappell to contraband watch did not
violate the Due Process Clause, and because he failed to show
that he had a state-created liberty interest in avoiding
contraband watch, his due process claim fails as a matter of
law.



BERZON, Circuit Judge, dissenting in part:

    I join Part III.B of the majority opinion, as I agree that
Defendants Mandeville and Rosario are entitled to qualified
immunity on the due process issues. In my view, however,
the defendants are not entitled to qualified immunity on
Chappell’s Eighth Amendment claim. As I would affirm the
district court’s denial of summary judgment on qualified
immunity with respect to the Eighth Amendment issue, I
respectfully dissent from Part III.A of the majority opinion.
34                CHAPPELL V . MANDEVILLE

                                I

     Our jurisdiction over this collateral order appeal of the
district court’s denial of summary judgment on qualified
immunity grounds is limited to questions of law. See Ortiz v.
Jordan, 131 S. Ct. 884, 891 (2011); Behrens v. Pelletier, 516
U.S. 299, 312–13 (1996); Johnson v. Jones, 515 U.S. 304,
319–20 (1995); Alston v. Read, 663 F.3d 1094, 1098 (9th Cir.
2011). We do not concern ourselves with whether the “pre-
trial record sets forth a genuine issue of fact for trial,” but
instead examine the “purely legal issue whether the facts
alleged . . . support a claim of clearly established law.”
Alston, 663 F.3d at 1098 (alteration in original) (internal
quotation marks omitted).

    On this record, there are disputed issues of fact
concerning: (a) the impact of the lighting, in combination
with other conditions (e.g., lack of a mattress, waist restraints,
etc.), on Chappell’s sleep; and (b) the legitimate need for a
twenty-four hour bright light in Chappell’s cell (as opposed
to a dimmed light) for surveillance, given all the other
restrictions on his movement. We resolve all factual disputes
and draw all reasonable inferences in favor of Chappell, the
non-moving party, and “look at the purely legal question of
whether the defendant[s’] alleged conduct violated
[Chappell’s] clearly established constitutional rights.”
Cunningham v. City of Wenatchee, 345 F.3d 802, 807–08 (9th
Cir. 2003); accord Mattos v. Agarano, 661 F.3d 433, 439–40
(9th Cir. 2011), cert. denied, 132 S. Ct. 2681, 2682, 2684
(2012); Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001).

    For purposes of this appeal, the established facts
pertaining to Chappell’s Eighth Amendment claim are as
follows:
                 CHAPPELL V . MANDEVILLE                      35

    From April 30, 2002, until May 6, 2002, Chappell was
confined to a surveillance cell containing only a bedframe
without a mattress. After being stripped and subjected to a
“body cavity search,” Chappell was dressed in two pairs of
underwear and two jumpsuits, one of each worn facing
forward and the other worn backwards. The clothing was
taped closed at the thighs, ankles, upper arms, and waist. He
was then placed in waist chain restraints and ankle shackles,
and was chained to the bedframe. Chappell’s handcuffs were
attached to the waist chain, forcing him to keep his hands at
his sides at all times, even while eating. The lights in the cell
were “very bright” and were kept on constantly throughout
his nearly seven-day confinement on contraband watch.

    While Chappell did not expressly allege that the
conditions of contraband watch caused him “grave sleeping
problems,” as did the prisoner in Keenan v. Hall, 83 F.3d
1083, 1091 (9th Cir. 1996), the statements in Chappell’s
amended complaint permit an inference that his sleep was
disturbed. Specifically, he describes how he had to “attempt”
to sleep on a bare metal cot with bodily restraints, under
constant “very bright light,” alleging that the conditions “did
in fact torture [him] mentally” and that he was “deteriorating
mentally.”

                               II

    Whether constant illumination violates the Eighth
Amendment in a particular case is a fact-specific inquiry. But
contrary to the majority’s suggestion, Maj. Op. at 10, officials
do not enjoy qualified immunity simply because the precise
facts at issue in their particular case have not been addressed
previously. Officials can “still be on notice that their conduct
violates established law even in novel factual circumstances.”
36               CHAPPELL V . MANDEVILLE

Hope v. Pelzer, 536 U.S. 730, 741 (2002). If new facts alone
triggered qualified immunity, then officials would rarely if
ever be held accountable in cases involving “fact-driven”
claims, such as the Eighth Amendment claim at issue here.
Cf. Mattos, 661 F.3d at 442 (applying the “clearly
established” rule to a fact-specific Fourth Amendment case).
We therefore must begin with what was the clearly
established Eighth Amendment law regarding prison
conditions at the time of Chappell’s contraband watch, and
then proceed to determine whether a reasonable prison
official could have considered the conditions of Chappell’s
contraband watch constitutional in light of those precedents.

    In April–May 2002, it was clearly established that it is
unconstitutional to cause a prisoner harm by subjecting him
to constant lighting. Keenan pronounced in 1996 that “[t]here
is no legitimate penological justification for requiring
[inmates] to suffer physical and psychological harm by living
in constant illumination.” 83 F.3d at 1090 (alteration in
original) (emphasis added). Thus, contrary to the majority’s
representation, Keenan did not simply hold that the prison
officials in that particular case lacked a legitimate
penological justification for imposing constant illumination,
see Maj. Op. at 9–11 & n.3; it held that if constant
illumination causes a prisoner physical or psychological
harm, then no penological purpose can justify it; “[the]
practice is unconstitutional.” Keenan, 83 F.3d at 1090.

    Moreover, it was clearly established law that conditions
having the mutually reinforcing effect of depriving a prisoner
of a single basic need, such as sleep, may violate the Eighth
Amendment. See Wilson v. Seiter, 501 U.S. 294, 304–05
(1991); see also Keenan, 83 F.3d at 1090 (“Adequate lighting
is one of the fundamental attributes of adequate shelter
                 CHAPPELL V . MANDEVILLE                      37

required by the Eighth Amendment.”) (internal quotation
marks omitted); Harper v. Showers, 174 F.3d 716, 720 (5th
Cir. 1999) (“[S]leep undoubtedly counts as one of life’s basic
needs.”); Shepherd v. Ault, 982 F. Supp. 643, 648 (N. D. Iowa
1997) (“Constant illumination can undoubtedly cause sleep
deprivation . . . and sleep is certainly an ‘identifiable human
need.’”).

    The cases the majority cites in support of its qualified
immunity analysis are not to the contrary. See Maj. Op. at
12–13. Instead, those cases held only that constant
illumination from dim lights or lights distanced from a
prisoner’s cell (such as hallway lights) did not amount to
cruel and unusual punishment, see Fillmore v. Ordonez, 829
F. Supp. 1544, 1552, 1568 (D. Kan. 1993) (“low-intensity,”
“soft” lighting); Williams v. Ward, 567 F. Supp. 10, 13
(E.D.N.Y. 1982) (light in hallway); Cassidy v.
Superintendent, 392 F. Supp. 330, 334 (W.D. Va. 1975)
(“[T]he light is not so bright as to interfere with the inmates’
rest.”), and that “discomfort of lights at night [does] not
constitute a constitutional deprivation” when the prisoner was
provided with bedding, not subject to any other bodily
restraints in his cell, and not denied sleep, Bauer v. Sielaff,
372 F. Supp. 1104, 1110 (E.D. Pa. 1974). Those cases are
inapposite here, where the light was “very bright” and inside
Chappell’s cell, and where the fair inference from the facts on
summary judgment, viewed most favorably to the plaintiff, is
that the lighting, in combination with the other conditions on
contraband watch, interfered with Chappell’s sleep.

   Similarly, the majority’s reliance on Zatko v. Rowland,
835 F. Supp. 1174 (N. D. Cal. 1993), is misplaced. See Maj.
Op. at 12, 13. While the court’s observation in Zatko that
constant illumination of a jail cell with bright light, depriving
38                CHAPPELL V . MANDEVILLE

the inmate of normal sleep, “would violate his basic right to
shelter,” is relevant, id. at 1181, its ultimate ruling on Zatko’s
Eighth Amendment claim has little bearing on the law
applicable here. Zatko admitted that the officers “tr[ied] to
accommodate the inmates [and did not] unnecessarily use the
light to keep [him] awake.” Id. In contrast, Chappell never
conceded that the bright light (in combination with other
conditions) was not intended to interfere with his sleep, or
that the defendants did not exhibit deliberate indifference to
its impact on his sleep.

    Moreover, that some courts—unlike ours—have
recognized that there can be a legitimate penological
justification for constant lighting does not mean that any
asserted penological purpose will justify such illumination.
The Eighth Circuit cases cited by the majority, Ferguson v.
Cape Girardeau County, 88 F.3d 647 (8th Cir. 1996) and
O’Donnell v. Thomas, 826 F.2d 788 (8th Cir. 1987), see Maj.
Op. at 13, held that there was a legitimate governmental
interest in constant illumination of pretrial inmates’ cells in
view of the particular circumstances of those
cases—circumstances distinct enough from those at issue
here that a reasonable officer would not have thought that
either Ferguson or O’Donnell condones the actions taken
here.

    In Ferguson, the prisoner’s medical condition and safety
concerns, in combination with the amount of time he spent
outside of the cell, justified constant illumination to enable
continuous surveillance of the prisoner while he was in his
cell. See Ferguson, 88 F.3d at 650. Moreover, Ferguson was
observed sleeping “ninety-three hours of the fourteen days
spent in the vestibule [cell].” Id. Here, the totality of the
circumstances, including the conditions restricting Chappell’s
                 CHAPPELL V . MANDEVILLE                      39

movement and foreclosing his ability to conceal anything
while on contraband watch, detract from, rather than enhance,
the need for the constant, twenty-four-hour bright light:
Chappell was not allowed out of the cell; had no mattress,
water, or toilet; was dressed in highly restrictive clothing; and
was placed in waist restraints and shackles.

    Nor would O’Donnell lead a reasonable officer to believe
that the conditions of Chappell’s confinement on contraband
watch were constitutional. The constant illumination of
O’Donnell’s cell was held “not unreasonable” in view of the
inmate’s previous suicide attempt, escape concerns, and fear
that he would be a danger to himself or others. O’Donnell,
826 F.2d at 790. Comparable concerns were not present in
Chappell’s case. Moreover, there was no indication that, in
addition to the lighting, O’Donnell was simultaneously
subject to physical restraints in his holding cell, like those
imposed on Chappell, decreasing the need for illumination as
a safety precaution.

    A reasonable officer would have known that, in
combination, the twenty-four-hour bright light, the absence
of a mattress, and the extensive bodily restraints risked
depriving Chappell of sleep, in violation of the Eighth
Amendment. The district court correctly denied summary
judgment on this claim on qualified immunity grounds,
affording Chappell an opportunity to prove that Mandeville
and Rosario demonstrated deliberate indifference to the risk
of physical or psychological harm created by the conditions
of confinement on contraband watch. For these reasons, I
respectfully dissent from Part III.A of the majority opinion.
