                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-23-2002

Torres v. Fauver
Precedential or Non-Precedential: Precedential

Docket No. 99-5574




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PRECEDENTIAL

       Filed May 23, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5574

ANTONIO TORRES,

       Appellant

v.

WILLIAM FAUVER, New Jersey Commissioner of
Corrections; E. CALVIN NEUBERT, Administrator Bayside
State Prison; CONRAD DILKS, Assistant Administrator
Bayside State Prison; LANCE MEEHAN; PERCY GARNER;
SGT. ADAMS; LISA LITTLE; JOE DOE, fictitious name of
individual to be identified when the identity becomes
known; JANE DOE, fictitious name of individual to be
identified when the identity becomes known, all of them
in their official capacity and individually; DR. RICHARD
CEVASCO, Director of Psychological Services, individually
and in his official capacity

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 95-cv-03435)
District Judge: Honorable Mary Little Cooper

Argued: June 21, 2001

Before: ROTH, AMBRO, and FUENTES, Circuit Judg es

(Filed: May 23, 2002)




       PHILIP N. YANNELLA, ESQUIRE
        (Argued)
       Dechert, Price & Rhoads
       1717 Arch Street
       4000 Bell Atlantic Tower
       Philadelphia, Pennsylvania 19103

       Counsel for Appellant

       JOHN J. FARMER, JR., ESQUIRE
       Attorney General of New Jersey
       PATRICK DEALMEDIA, ESQUIRE
       Deputy Attorney General
       LISA A. PUGLISI, ESQUIRE (Argued)
       Deputy Attorney General
       Office of the Attorney General of
        New Jersey
       Division of Law
       Richard J. Hughes Justice Complex
       P.O. Box 112
       Trenton, New Jersey 08625

       Counsel for Appellees

OPINION OF THE COURT

AMBRO, Circuit Judge:

Antonio Torres, a former state prisoner who is no longer
"in custody" within the meaning of 28 U.S.C.S 2254 (the
federal habeas corpus statute),1 appeals the District Court’s
grant of summary judgment dismissing his 42 U.S.C.
S 1983 action, which alleged, inter alia , that his due process
rights were violated when he was sanctioned for violating
prison rules. The sanctions imposed on Torres did not
revoke any good-time credits or otherwise affect the fact or
length of his confinement; he was placed in disciplinary
detention for 15 days and administrative custody for 120
days. Yet the District Court ruled that his due process
_________________________________________________________________

1. For habeas purposes, "custody" includes not only incarceration, but
also other restraints on liberty, such as parole. See, e.g., Jones v.
Cunningham, 371 U.S. 236, 242-43 (1963).

                                2


claim was not cognizable under S 1983 because of the
"favorable termination rule" announced in Heck v.
Humphrey, 512 U.S. 477 (1994), and extended to prison
disciplinary sanctions that alter the duration of a prisoner’s
incarceration in Edwards v. Balisok, 520 U.S. 641 (1997).
Under that rule, a S 1983 plaintiff cannot seek damages for
harm caused by actions the unlawfulness of which would
necessarily render the fact or length of his confinement
invalid, unless he can prove that the conviction, sentence,
or prison disciplinary sanction that resulted from those
actions has been reversed, invalidated, or called into
question by a grant of federal habeas corpus relief (in other
words, terminated favorably to the plaintiff). Heck, 512 U.S.
at 486-87; Edwards, 520 U.S. at 646-48.

Torres’s appeal presents a question that neither the
Supreme Court nor our Court has decided: whether
someone no longer in custody (and thus unable to petition
for a writ of habeas corpus) can seek damages under
S 1983 for an allegedly unconstitutional prison disciplinary
sanction that did not affect the fact or length of his
confinement. We hold that the favorable termination rule
does not apply to claims that implicate only the conditions,
and not the fact or duration, of a prisoner’s incarceration.
We thus hold that the District Court erred in ruling that
Torres’s due process claim is not cognizable underS 1983.

Nonetheless, we affirm the District Court’s grant of
summary judgment on a different ground. The sanctions
imposed on Torres were within the scope of his sentence
and, under Sandin v. Conner, 515 U.S. 472 (1995), and our
recent decision in Fraise v. Terhune, 283 F.3d 506 (3d Cir.
2002), did not impinge a liberty interest protected by the
Constitution’s Due Process Clause.

I. Factual and Procedural History

On July 14, 1993, Torres, a former inmate at New
Jersey’s Bayside State Prison ("BSP"), appeared before the
BSP Classification Committee (the "Committee") while still
in prison. The Committee informed Torres that it had
granted him "Full Minimum Status," which in this instance
meant placement in a minimum security prison for a work

                                3


detail. That minimum security prison, known as the Farm
Unit, is located outside the walls surrounding the main
prison at BSP.

After leaving the Committee, Torres, a paranoid
schizophrenic, entered a delusional state and became
convinced that placement in the Farm Unit would harm
him. He asked defendant Percy Garner, the prison guard
escorting him from the Committee hearing, if he could
return to the Committee and ask for reconsideration of his
reassignment. After his request was denied, Torres
informed Garner that if he was reassigned to the Farm Unit
he would try to escape. Garner authored a disciplinary
report based on Torres’s statement, charging him with
violating New Jersey Administrative Code S 10A:4-
4.1(a)*.102 (attempting to plan an escape). As a result,
Torres was placed in pre-hearing detention. He
subsequently requested and received a consultation with
defendant Lisa Little, the staff psychologist, who
determined that he was mentally fit for the general prison
population.

On July 19, 1993, defendant Lance Meehan, a hearing
officer, conducted a disciplinary hearing with regard to the
escape charge against Torres. Meehan found Torres guilty
of attempting to plan an escape, sentenced him to 15 days
of disciplinary detention and 120 days of administrative
segregation, and referred him for a psychological
evaluation. Meehan did not revoke any of Torres’s good-
time credits.

Torres appealed Meehan’s decision to defendants E.
Calvin Neubert and Conrad Dilks, the Prison
Administrators, who affirmed it. Torres did not appeal to
the New Jersey Superior Court, Appellate Division, as
permitted under New Jersey Court Rule 2:2-3(a)(2). 2
_________________________________________________________________

2. Because of the strong state interest in internal prison administration,
see, e.g., Pernsley v. Harris, 474 U.S. 965, 966-67 (1985) (Burger,
Rehnquist, and O’Connor, JJ., dissenting from denial of certiorari);
Harris v. Pernsley, 758 F.2d 83 (3d Cir. 1985) (Adams, Hunter, Weis,
Garth & Becker, JJ., dissenting from denial of petition for rehearing en
banc), and because Torres failed to complete state appellate review
procedures before bringing his S 1983 action, Judge Roth would abstain

                                4


On December 12, 1993, Torres was released from
custody. A year and a half later, he filed a pro se S 1983
action in the United States District Court for the District of
New Jersey, alleging that the defendants acted unlawfully
in connection with the disciplinary decision.3 He
subsequently retained counsel and filed an amended
complaint on June 24, 1996. In that complaint, Torres
alleged that William Fauver (the Commissioner of the New
Jersey Department of Corrections), Meehan, Neubert, and
Dilks violated his right to due process because he was
found guilty of the disciplinary charge and sanctioned even
though the charge was not supported by substantial
evidence. He also alleged Eighth Amendment violations that
are not pertinent here.

On January 16, 1998, the defendants moved for
summary judgment. On September 29, 1998, the District
Court granted summary judgment in favor of Fauver,
Meehan, Neubert, and Dilks on Torres’s due process claim,
and denied Torres’s cross-motion for summary judgment
against Meehan. The Court relied on Edwards v. Balisok,
520 U.S. 641 (1997), to find that Torres’s claim was not
cognizable because its success necessarily would imply the
invalidity of the disciplinary decision to place him in
_________________________________________________________________

from providing a federal forum for Torres’s due process claim. See
Younger v. Harris, 401 U.S. 37 (1971); O’Neill v. City of Philadelphia, 32
F.3d 785 (3d Cir. 1994). She does not, however, disagree with the panel’s
analysis of the merits.

Judges Ambro and Fuentes believe that the comity concerns
underlying Younger abstention do not apply because the State willingly
submitted to federal-court jurisdiction at every stage of this litigation,
and never asked any federal court to abstain from adjudicating Torres’s
claims. See Morales v. Trans World Airlines, 504 U.S. 374, 381 n.1
(1992); Swisher v. Brady, 438 U.S. 204, 213 n.11 (1978); Winston v.
Children and Youth Services of Delaware County, 948 F.2d 1380, 1384-
85 (3d Cir. 1991); McLaughlin v. Pernsley, 876 F.2d 308, 314 n.5 (1989).

3. Because Torres filed the current lawsuit before Congress enacted the
Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat.
1321 (1996), the PLRA’s requirement that prisoners must exhaust
available administrative remedies before challenging prison conditions
under S 1983, see 42 U.S.C. S 1997e(a), did not bar his suit.

                                5


detention and administrative segregation. In addition, the
Court dismissed Torres’s Eighth Amendment claims against
all of the defendants except Neubert and Dilks. After
further discovery, on June 29, 1999, the Court granted
summary judgment in favor of Neubert and Dilks on the
remaining claims. Torres filed a timely notice of appeal, and
we subsequently appointed pro bono counsel for him.4

Torres’s sole claim on appeal is that the District Court
erred in concluding that the favorable termination rule bars
a former prisoner from using S 1983 to challenge a prison
disciplinary sanction that did not affect the length of his
confinement. We have jurisdiction under 28 U.S.C.S 1291.

II. Standard of Review

We must review the record to determine whether the
District Court properly concluded that there was no
genuine issue of material fact and that the defendants were
entitled to judgment as a matter of law. Bushman v. Halm,
798 F.2d 651, 656 (3d Cir. 1986). We exercise plenary
review over the District Court’s choice and interpretation of
legal precepts as well as its application of those precepts to
the historical facts. Orvosh v. Program of Group Ins. for
Salaried Employees of Volkswagen of Am., Inc., 222 F.3d
123, 129 (3d Cir. 2000).

III. Section 1983 and Prison Disciplinary Sanctions

Whether Torres’s due process claim is cognizable under
S 1983 raises two separate questions: whether the favorable
termination rule applies to prison disciplinary sanctions
that do not affect the fact or length of a prisoner’s
confinement, and, more generally, whether the rule applies
to persons who cannot seek habeas relief. Only if both
questions are answered affirmatively does the favorable
termination rule bar Torres’s claim; if the answer to either
question is no, his claim is cognizable.

With respect to the first question, the Supreme Court has
_________________________________________________________________

4. We acknowledge with appreciation the able and zealous pro bono
representation of Torres by Philip N. Yannella, Esquire.

                                6


consistently distinguished between claims that necessarily
implicate the fact or duration of confinement (which it has
repeatedly held are subject to the favorable termination
rule) and claims that relate only to the conditions of
incarceration (which it has not suggested are subject to the
favorable termination rule). Edwards v. Balisok , 520 U.S.
641, 646-48 (1997); Heck v. Humphrey, 512 U.S. 477, 486-
87 (1994); Preiser v. Rodriguez, 411 U.S. 475, 499 (1973).
This line of cases instructs, and all but one of the circuit
courts to consider the issue have held, that both current
and former prisoners can use S 1983 to raise claims
relating only to the conditions, and not the fact or duration,
of their confinement without satisfying the favorable
termination rule. Because Torres raises such a claim (and
thus the answer to the first question above is no), we need
not consider the second, broader question of whether the
favorable termination rule applies to persons unable to
petition for a writ of habeas corpus.5
_________________________________________________________________

5. In Spencer v. Kemna, 523 U.S. 1 (1998), five Justices announced in
dicta that they would hold that the favorable termination rule applies
only to prisoners who can assert their claims in a habeas proceeding.
The issue in Spencer was whether a prisoner’s habeas petition, which
sought to invalidate an order revoking his parole, still presented an
Article III case or controversy after his reincarceration ended. Eight
Justices held that it did not. 523 U.S. at 7, 14-18. In an attempt to
demonstrate an injury-in-fact, the prisoner argued that his habeas
petition could not be moot because, if it were, Heck’s favorable
termination rule would bar him from bringing a S 1983 action, and he
would be left without any federal forum in which he could seek redress
for the parole revocation. Id. at 17. The opinion of the Court dismissed
the prisoner’s contention as "a great non sequitur, unless one believes
(as we do not) that a S 1983 action for damages must always and
everywhere be available." Id.

However, five Justices--four in a concurrence, one in a dissent--
expressly rejected the majority’s "great non sequitur" dictum and said
that the favorable termination rule applies "only[to] inmates seeking
S 1983 damages for unconstitutional conviction or confinement." Id. at
20-21 (Souter, J., concurring, joined by O’Connor, Ginsburg & Breyer,
JJ.) (emphases added); id. at 25 n.8 (Stevens, J., dissenting) (agreeing
with Justice Souter’s position). Current and former prisoners who cannot
seek habeas relief, they said, can bring a S 1983 claim without satisfying
the favorable termination rule even if they are challenging the legality of
their conviction or the fact or duration of their confinement. Id. at 21.

                                7


A.

In Preiser, the first case to address the overlap between
S 1983 and the federal habeas laws, state prisoners
deprived of good-time credits as a result of disciplinary
proceedings sought restoration of the credits, which would
have resulted in their immediate release, underS 1983. 411
U.S. at 476-77. The Supreme Court held that in light of the
specific federal remedy provided by 28 U.S.C. S 2254, the
prisoners’ request for injunctive relief was not cognizable
under the broad language of S 1983. Id. at 489-90, 500.
The Court explained that "state prisoners attacking the
validity of the fact or length of their confinement" must
proceed in federal court under the habeas laws, which
expressly require exhaustion of adequate state remedies,
and may not use S 1983 to circumvent this requirement.6
Id. at 489-90. However, the Court emphasized that "a
S 1983 action is a proper remedy for a state prisoner who
is making a constitutional challenge to the conditions of his
prison life, but not to the fact or length of his custody." Id.
at 499.
_________________________________________________________________

Since Spencer, the Second and Seventh Circuits have adopted this
position. DeWalt v. Carter, 224 F.3d 607, 617-18 (7th Cir. 2000) (relying
on Spencer to overrule Anderson v. County of Montgomery, 111 F.3d 494,
499 (7th Cir. 1997), which held that Heck barred a former prisoner from
challenging his conviction in a S 1983 suit even if he could not seek
habeas relief); Leather v. Eyck, 180 F.3d 420, 424 (2d Cir. 1999) (holding
that Heck did not bar a plaintiff who was convicted and fined--but not
imprisoned--from alleging selective prosecution under S 1983 because he
was never in custody and thus could not seek habeas relief). But see
Randell v. Johnson, 227 F.3d 300, 300-01 (5th Cir. 2000) (per curiam)
(holding that Heck barred a former prisoner from alleging under S 1983
that he was improperly made to serve two sentences for the same offense
because he was not given credit for his initial prison stay); Figueroa v.
Rivera, 147 F.3d 77, 80-81 (1st Cir. 1998) (holding that Heck barred the
heirs of a prisoner who died in custody from challenging his conviction
and imprisonment under S 1983).

As noted, this case does not require us to consider the broader
question of whether a S 1983 remedy must be available where habeas
relief is not.

6. Section 1983 plaintiffs need not exhaust state remedies. Patsy v. Bd.
of Regents of Fla., 457 U.S. 496, 501 (1982).

                                8


Damages are not available in habeas proceedings, so
Preiser left open whether a prisoner can use aS 1983
damages action to challenge the constitutionality of his
conviction. The Supreme Court addressed this issue in
Heck, where a state prisoner sought damages--but not
speedier release--under S 1983, alleging that his conviction
was obtained through unlawful investigatory practices and
the destruction of exculpatory evidence. 512 U.S. at 479. It
held that the prisoner had no cause of action underS 1983
because the success of his suit would effectively invalidate
his underlying conviction and sentence. Id. at 486-87, 490.
The Court reasoned that the prisoner’s action was
analogous to the common-law tort of malicious prosecution,
an essential element of which is that the prosecution
terminated in the accused’s favor. Id. at 484. This
requirement eliminates the potential for conflicting
resolutions arising from parallel civil and criminal
proceedings, and prevents a prisoner from mounting a
collateral attack on his conviction. Id. (citations omitted).

The Heck Court concluded that the principle that civil
tort actions cannot be used to undermine "outstanding
criminal judgments applies to S 1983 damages actions that
necessarily require the plaintiff to prove the unlawfulness of
his conviction or confinement, just as it has always applied
to actions for malicious prosecution." Id. at 486. Heck thus
adopted the favorable termination rule: if the success of a
S 1983 damages suit "would necessarily imply the invalidity
of his conviction or sentence," the plaintiff ’s claim is
cognizable only if he can prove that his conviction or
sentence was reversed, invalidated, or called into question
by a grant of federal habeas corpus relief. Id. at 486-87
(emphasis added).7 On the other hand, "if the district court
determines that the plaintiff ’s action, even if successful,
will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, the action should
_________________________________________________________________
7. Stated from a statute-of-limitations perspective, "a S 1983 cause of
action for damages attributable to an unconstitutional conviction or
sentence does not accrue until the conviction or sentence has been
invalidated." Id. at 489-90.

                                9


be allowed to proceed, in the absence of some other bar to
the suit." Id. at 487 (footnotes omitted) (emphasis in original).8

In Edwards, the Supreme Court applied Heck’s favorable
termination rule to prison disciplinary sanctions that affect
the duration of a prisoner’s incarceration. The case involved
a state prisoner who lost 30 days of good-time credits and
was placed in restrictive settings (isolation for 10 days,
segregation for 20) after a hearing officer found him guilty
of violating prison rules. 520 U.S. at 643. Alleging that the
officer was biased against him and dishonestly suppressed
exculpatory evidence, the prisoner sought declaratory relief
and damages9 under S 1983. Id. at 643, 647. In contrast to
Heck, where the prisoner directly attacked the
constitutionality of his conviction, the prisoner in Edwards
did not seek restoration of his good-time credits, and thus
did not request relief that would alter the term of his
confinement. Id. at 643-44. Nevertheless, the Court held
that his claims were not cognizable under S 1983 because
"[t]he principal procedural defect" he alleged (the bias of the
hearing oficer) "would, if established, necessarily imply the
invalidity of the deprivation of his good-time credits." Id. at
646-48. Importantly, nothing in Edwards indicates that the
favorable termination rule would have applied if the
prisoner’s sanction had not affected the duration of his
confinement. Indeed, the Court carefully framed the
question presented as "whether a claim for damages and
declaratory relief brought by a state prisoner challenging
the validity of the procedures used to deprive him of good-
time credits is cognizable under S 1983." Id. at 643.
_________________________________________________________________

8. Foreshadowing his Spencer opinion, see supra note 5, Justice Souter,
joined by three other Justices, concurred in the judgment to caution that
the Court’s broadly worded decision should not be read to impose a
favorable termination requirement on persons who cannot seek habeas
relief, lest those persons be rendered unable to redress a violation of
their federal constitutional rights in any federal forum. Id. at 500-03.

9. The prisoner also requested an injunction designed to bar prison
officials from suppressing evidence in the future, but the Supreme Court
did not consider this issue because it was neither raised before it nor
considered by the lower courts. Id. at 648-49.

                                10


B.

Other circuit courts’ decisions and a recent ruling by our
Court show that the favorable termination rule does not
apply to prison disciplinary sanctions that affect only the
conditions, and not the fact or duration, of a prisoner’s
confinement. In Brown v. Plaut, 131 F.3d 163 (D.C. Cir.
1997), the D.C. Circuit held that a prisoner could seek
damages under S 1983 for allegedly being placed in
administrative segregation without due process. 10 Id. at
167-68. The Court explained that "[t]he [Supreme] Court
has never deviated from Preiser’s clear line between
challenges to the fact or length of custody and challenges to
the conditions of confinement." Id. at 168. It noted that
Edwards "repeatedly characteriz[ed] the plaintiff ’s claim as
one that would necessarily imply the invalidity of the
deprivation of his good-time credits" and that Heck
"observed that the damages action in that case was in effect
an attack on the fact or length of confinement." Id. (internal
quotation marks and citations omitted); see also
Anyanwutaku v. Moore, 151 F.3d 1053, 1055-56 (D.C. Cir.
1998) (holding that a prisoner’s claim that prison officials
miscalculated his parole eligibility date was cognizable
under S 1983 because "D.C. parole decisions are entirely
discretionary" and the success of the claim thus would not
necessarily accelerate the prisoner’s release). 11
_________________________________________________________________

10. The plaintiff was a former prisoner, Brown, 131 F.3d at 165, but that
did not factor into the D.C. Circuit’s analysis.

11. The D.C. Circuit also noted that the Supreme Court’s 1995 opinion
in Sandin (which we discuss below) did not question a prisoner’s use of
S 1983 to challenge disciplinary proceedings that affected only the
conditions of his confinement. Brown, 131 F.3d at 168. However, the
disciplinary sanction in Sandin was expunged, albeit before the prisoner
brought his S 1983 action. 515 U.S. at 476. In addition, the D.C. Circuit
reasoned that Heck was distinguishable because the former prisoner was
challenging a decision that "bears little resemblance to a judicial
proceeding." Brown, 131 F.3d at 168. Because decisions to place inmates
in administrative segregation are subject to greatly relaxed procedural
requirements, they "would almost certainly be accorded no collateral
estoppel effect," and thus "hardly need[ ] to be insulated from collateral
attack." Id. However, the same could be said of the disciplinary sanction
in Edwards, which the D.C. Circuit did not distinguish on this point.

                                11


Similarly, in Jenkins v. Haubert, 179 F.3d 19 (2d Cir.
1999), the Second Circuit held that a prisoner could seek
damages and injunctive relief under S 1983 for being
sentenced to "keeplock," a particularly strict form of
administrative segregation, allegedly in violation of due
process.12 Id. at 20-21. The Court agreed with the D.C.
Circuit that Heck and Edwards do not bar a prisoner from
using S 1983 to challenge a prison disciplinary sanction
that did not affect the fact or length of his confinement. Id.
at 27. The Second Circuit explained that Preiser "assumed"
that prisoners could challenge being placed in disciplinary
segregation under S 1983, and that neither Heck nor
Edwards suggested that the favorable termination rule
applies when the fact or duration of a prisoner’s
incarceration is not implicated.13 Id.
The Seventh Circuit joined the Second and D.C. Circuits
in DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000), holding
that a state prisoner could seek damages under S 1983 for
being subjected to a disciplinary sanction that cost him his
prison job, allegedly based on his race and in retaliation for
activities protected by the First Amendment. Id. at 611,
613. The Court explained that, unlike Preiser , Heck, and
Edwards, the prisoner’s claims did not relate to the fact or
duration of his confinement.14Id. at 616-17; accord Sheldon
v. Hundley, 83 F.3d 231, 234 (8th Cir. 1996) (stating in
dicta that "prisoners who challenge disciplinary rulings that
do not lengthen their sentence are probably outside the
habeas statute and able to seek damages under S 1983
without showing favorable termination").
_________________________________________________________________

12. As in Brown, the Jenkins plaintiff was a former prisoner, 179 F.3d at
20, but the Second Circuit held that the same analysis applies
regardless whether a S 1983 plaintiff remains in custody. Id. at 21.

13. While the Second Circuit also relied on the dicta in Spencer, it noted
that its holding was fully supported by the D.C. Circuit’s reasoning in
Brown. Jenkins, 179 F.2d at 27.

14. DeWalt, relying in part on the dicta in Spencer, overruled Stone-Bey
v. Barnes, 120 F.3d 718, 721 (7th Cir. 1997), which held that, under
Heck and Edwards, the favorable termination rule applies to prison
disciplinary sanctions even though they do not affect the fact or length
of a prisoner’s confinement. DeWalt, 224 F.3d at 617-18.

                                12


Most recently, we held in Leamer v. Fauver, No. 98-6007,
2002 WL 624068 (3d Cir. Apr. 19, 2002), that a sex
offender incarcerated indefinitely at a specialized treatment
center could bring a S 1983 suit alleging that state officials
violated his constitutional rights by placing him on
restrictive status and depriving him of therapy. 15 Id. at *7-9.
We explained that the favorable termination rule applies
only if a prisoner’s claim necessarily implicates the fact or
duration of his confinement. Id. at *7. Although the
disciplinary sanction prevented the offender from obtaining
treatment that might expedite his release, it did not
necessarily affect the length of his incarceration, and thus
Heck and Edwards did not apply. Id. at *7-8.16
_________________________________________________________________

15. Our research reveals that only one circuit court continues to insist
that the favorable termination rule applies to claims that implicate only
the conditions of a prisoner’s confinement. In Huey v. Stine, 230 F.3d
226 (6th Cir. 2000), the Sixth Circuit held that Heck and Edwards
barred a prisoner from alleging under S 1983 that his Eighth Amendment
rights were violated when he was put in detention and stripped of
privileges for thirty days. Id. at 228, 230. Relying on its prior
unpublished opinions, the Court failed to consider whether it mattered
that the disciplinary measures at issue did not affect the duration of the
prisoner’s incarceration. Id. at 228-29. The Sixth Circuit did not explain
why it disagreed with every other court of appeals to address this issue.
We believe that Huey’s extension of Heck and Edwards to claims that
relate only to prison conditions is unwarranted. The Supreme Court has
never questioned Preiser’s statement, see 411 U.S. at 499, that prisoners
can challenge the conditions of their confinement under S 1983, and the
primary concern underlying Heck and Edwards (the possibility that
prisoners will use S 1983 to attack collaterally the fact or duration of
their confinement) does not apply when the underlying disciplinary
sanction relates only to the conditions of a prisoner’s incarceration.

16. Cf. Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997) (holding that
prisoners could use S 1983 to challenge being compelled to participate in
a sex offender treatment program as a prerequisite for parole eligibility);
Georgevich v. Strauss, 772 F.2d 1078, 1087 (3d Cir. 1985) (en banc)
(holding that prisoners can contest parole procedures under S 1983
where the success of their claims would not necessarily affect "the actual
duration of [their] confinement").

                                13


C.

In this context, we hold that Torres’s due process claim
is cognizable under S 1983. Preiser concluded that a
prisoner may use S 1983 to attack "the conditions of his
prison life," 411 U.S. at 499, and both Heck and Edwards
adhered to "Preiser’s clear line between challenges to the
fact or length of custody and challenges to the conditions of
confinement." Brown, 131 F.3d at 168. The favorable
termination rule does not apply when a prisoner’sS 1983
claims can implicate only the conditions, and not the fact
or duration, of his confinement. This is regardless whether
he remains in custody, as in Leamer, 2002 WL 624068, at
*7, and DeWalt, 224 F.3d at 616-17, or is no longer in
custody, as in Jenkins, 179 F.3d at 27, and Brown, 131
F.3d at 168. Torres’s claim challenges the procedures by
which he was sentenced to disciplinary detention and
administrative segregation. Because these punishments did
not alter the length of his incarceration, the success of his
claim would not "necessarily imply the invalidity of " the
fact or duration of his confinement. Edwards, 520 U.S. at
646; Heck, 512 U.S. at 486-87. Thus the District Court
erred in concluding that the favorable termination rule
barred Torres from proceeding under S 1983.

IV. No Violation of Protected Liberty Interest

Although Torres’s due process claim is cognizable under
S 1983, to survive summary judgment he had to present
evidence that he suffered a violation of a liberty interest
protected by the Constitution’s Due Process Clause.
Because he did not, we affirm.

A protected liberty interest in avoiding prison disciplinary
sanctions can arise either from the Due Process Clause
itself or from state law. Asquith v. Dep’t of Corrections, 186
F.3d 407, 409 (3d Cir. 1999) (citation omitted). No liberty
interest traced from the Due Process Clause is implicated if
"the conditions or degree of confinement to which a
prisoner is subjected [are] within the sentence imposed
upon him" and do not otherwise violate the Constitution.
Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir. 2002)
(internal quotation marks and citations omitted). In other

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words, where there is no state-created liberty interest, the
Due Process Clause applies only if the restraints at issue
exceed the prisoner’s sentence "in such an unexpected
manner as to give rise to protection by the Due Process
Clause of [their] own force" and do not violate any other
constitutional provision. Sandin v. Conner, 515 U.S. 472,
484 (1995). Because disciplinary detention and
"administrative segregation [are] the sort[s] of confinement
that inmates should reasonably anticipate receiving at
some point in their incarceration," Torres’s transfer to "less
amenable and more restrictive quarters" did not implicate a
liberty interest protected by the Due Process Clause. Hewitt
v. Helms, 459 U.S. 460, 468 (1983); Fraise , 283 F.3d at
522.

Nor was Torres deprived of any state-created liberty
interest. In Sandin, the Supreme Court sharply curtailed
the situations in which the negative implications of
mandatory language in state laws or regulations can create
a protected liberty interest in the prison context. The case
involved a prisoner’s claim that Hawaii prison officials
deprived him of due process when they charged him with
misconduct and, following a hearing, placed him in
disciplinary segregation in the "Special Holding Unit" for 30
days. Id. at 475-76. The Ninth Circuit Court of Appeals
concluded that because a prison regulation in Hawaii
required that substantial evidence must support a
misconduct charge, the prisoner was deprived of a
protected liberty interest if he was put in segregation
pursuant to a decision lacking such evidentiary support. Id.
at 476-77. The Supreme Court reversed, explaining that the
focus must be on the nature of the deprivation, not merely
on the language of state laws and regulations. Id. at 481-
84. The Court explained that mandatory language in a state
law or regulation can create a protected liberty interest only
if the alleged deprivation "imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents
of prison life." Id. at 484. The Court determined that
because the plaintiff ’s confinement "mirrored those
conditions imposed upon inmates in administrative
segregation and protective custody," and because inmates
in the general population at the plaintiff ’s prison
experienced "significant amounts of ‘lockdown time,’ " the

                                15


prisoner was not deprived of a protected liberty interest. Id.
at 486.

Sandin instructs that whether the restraint at issue
"imposes atypical and significant hardship" depends on the
particular state in which the plaintiff is incarcerated. Id. We
recently held in Fraise that New Jersey prisoners were not
deprived of a protected liberty interest when they were
placed in the "Security Threat Group Management Unit"
("STGMU"), an especially harsh form of administrative
detention "designed to isolate and rehabilitate gang
members."17 283 F.3d at 509, 522-23. Prisoners placed in
the STGMU were consigned to "maximum custody" until
they completed a "three-phase behavior modification and
education program," in which they learned, inter alia, non-
violent methods of conflict resolution. Id. at 511. If a
prisoner refused to renounce his affiliation with all
"security threat groups," he would remain in the STGMU
indefinitely. Id. at 511. Among other restrictions, inmates
transferred to the STGMU were allowed just five hours per
week outside their cells, were strip-searched every time
they exited or reentered their cells, could shower or shave
only every third day, were banned from regular prison
programs, and were prohibited from corresponding with
any other inmate. Id. at 523 n.1 (Rendell, J., dissenting).
We held that these "additional restrictions" did "not impose
an atypical and significant hardship in relation to the
ordinary incidents of prison life," and thus did not implicate
a protected liberty interest. Id. at 522-23 (citations omitted).18
_________________________________________________________________

17. Judge Rendell dissented on a different issue, but agreed with the
majority’s analysis of the due process issue. Id. at 530 n.13 (Rendell, J.,
dissenting).

18. Cf. Leamer, 2002 WL 624068, at *9-10 (holding that sex offender had
a protected liberty interest in obtaining treatment that was "mandated
and promised" by New Jersey’s "unique statutory scheme" for
incarcerating sex offenders, was "an inherent and integral element of the
scheme," and was "inextricably linked" to the duration of his
confinement); Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000) (holding
that a Pennsylvania prisoner who was kept in administrative custody for
eight years and denied contact with any humans aside from corrections
officers during that period--a form of "permanent solitary confinement"
that the State conceded was virtually "unique" within its prison system--
was deprived of a protected liberty interest).

                                16


Under Sandin and Fraise, we cannot say that Torres has
alleged "the type of atypical, significant deprivation in
which a State might conceivably create a liberty interest."
Sandin, 515 U.S. at 486. "Sandin instructs that placement
in administrative confinement will generally not create a
liberty interest." Allah v. Seiverling, 229 F.3d 220, 224 (3d
Cir. 2000) (citation omitted). Torres was placed in
disciplinary detention for 15 days and administrative
segregation for 120 days in a State where prisoners have no
protected liberty interest in being free of indefinite
confinement in the STGMU. See Fraise, 283 F.3d at 522-
23; cf. Griffin v. Vaughn, 112 F.3d 703, 706-08 (3d Cir.
1997) (holding that a Pennsylvania prisoner did not have a
protected liberty interest in avoiding being placed in
administrative custody for 15 months because such lengthy
stays were not atypical in Pennsylvania’s penal system).
Therefore, Torres was not deprived of a protected liberty
interest, and we affirm the District Court’s grant of
summary judgment for that reason.

Conclusion

Because Torres’s due process claim implicated only the
conditions, and not the fact or duration, of his confinement,
the District Court erred in ruling that the claim was not
cognizable under S 1983. However, summary judgment was
appropriate because Torres was not deprived of a protected
liberty interest. We therefore affirm.

A True Copy:
Teste:

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

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