PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIAN BEVERATI; EMIL VAN AELST,
Plaintiffs-Appellants,

v.

SEWALL SMITH, Warden; MARYLAND
PENITENTIARY ADMINISTRATION;
WILLIAM FILBERT, Assistant Warden;
                                                                     No. 96-7520
THEODORE PURNELL; JOHN
WOULDRIDGE, JR.; DONALD O.
JACKSON; DONNELL SESSIONS,
Correctional Officer II; PATRICK
FORD; RICHARD A. LANHAM, SR.,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-94-976-CCB, CA-94-978-CCB)

Argued: May 5, 1997

Decided: August 11, 1997

Before WILKINS, Circuit Judge, Joseph F. ANDERSON, Jr.,
United States District Judge for the
District of South Carolina, sitting by designation,
and TRAXLER, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Anderson and Judge Traxler joined.

_________________________________________________________________
COUNSEL

ARGUED: Joseph Bernard Tetrault, PRISONER RIGHTS INFOR-
MATION SYSTEM OF MARYLAND, INC., Chestertown, Mary-
land, for Appellants. David Phelps Kennedy, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARY-
LAND, Baltimore, Maryland, for Appellees. ON BRIEF: W. Michel
Pierson, PIERSON, PIERSON & NOLAN, Baltimore, Maryland, for
Appellants. J. Joseph Curran, Jr., Attorney General of Maryland,
Toni-Jean Lisa, Assistant Attorney General, Baltimore, Maryland, for
Appellees.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

State prisoners Brian Beverati and Emil Van Aelst (collectively,
"Inmates") appeal a decision of the district court granting summary
judgment in favor of the defendant prison officials 1 in this action
brought pursuant to 42 U.S.C.A. § 1983 (West 1994). The district
court rejected Inmates' claims that the prison officials violated their
rights under the Fourteenth and Eighth Amendments by confining
them to administrative segregation for a period of six months follow-
ing the confiscation of materials considered by the prison officials to
be escape paraphernalia from the cell Inmates shared. For the reasons
set forth below, we affirm.

I.

During the spring of 1993, the Maryland Penitentiary, a maximum
security facility housing state prisoners serving lengthy sentences,
_________________________________________________________________

1 Inmates named as defendants Sewall Smith, then Warden of the facil-
ity; Richard A. Lanham, Sr., Commissioner of the Division of Correc-
tions; William Filbert, Assistant Warden; Theodore Purnell, then Chief
of Security; and Correctional Officers John Wouldridge, Jr., Donald O.
Jackson, Donnell Sessions, and Patrick Ford. For ease of reference, we
refer to the defendants collectively as "the prison officials."

                    2
was undergoing major reconstruction that involved the removal of an
entire section of the building and its accompanying exterior security
perimeter. The security concerns incident to the removal of a portion
of the outside perimeter were compounded by the numerous comings
and goings necessitated by the construction activities and by the
receipt of anonymous information concerning a plan for a mass
escape.

Beverati and Van Aelst are prisoners committed to the Maryland
Penitentiary. Beverati is serving a life sentence with the possibility of
parole, and Van Aelst is serving a sentence of 30 years without
parole. In March 1993, Beverati and Van Aelst were cellmates in the
general prison population. On March 27, prison officials searched
their cell and discovered a large quantity of denim fabric--some of
which had been fashioned into vests and modified jeans--thread,
blankets, two packages of inmate movement passes, and other unau-
thorized items. This was the second occasion within a two-month
period that such materials, considered by the prison officials to be
escape paraphernalia, had been found in Inmates' cell.

As a result of this discovery, Inmates were placed in administrative
segregation and were charged with violations of several institutional
rules, including regulations prohibiting possession of implements that
reasonably could be used to escape and possession of contraband. On
March 30, a hearing on these charges was conducted before a hearing
officer. Van Aelst took "full responsibility" for possession of the
materials, pled guilty to possession of contraband, and was sentenced
to 30 days of restriction. In light of Van Aelst's confession, the hear-
ing officer found Beverati not guilty.

Nevertheless, Inmates were retained in administrative segregation
after disposition of the disciplinary charges based on the prison offi-
cials' belief that Inmates constituted an escape risk and a danger to
the security of the institution, staff, and other inmates. During the
period in which Inmates were confined to administrative segregation,
classification reviews were conducted approximately every 30 days.
On each occasion, the reviewing prison officials determined that
Inmates should remain in segregation, citing these same concerns and
an ongoing investigation into the escape attempt. Beverati and Van

                     3
Aelst were not released from administrative segregation until October
26 and September 26, 1993 respectively.2

Inmates subsequently filed separate complaints in the district court,
alleging that their constitutional rights had been violated by, inter
alia, the continuation of their confinement in administrative segrega-
tion. The prison officials moved to dismiss or alternatively for sum-
mary judgment, and Inmates submitted affidavits in opposition.
Treating the motion as one for summary judgment, the district court
ruled in favor of the prison officials. Inmates appeal from that deci-
sion, raising a procedural due process claim, a substantive due process
claim, and an Eighth Amendment claim relating to the continuation
of their confinement in administrative segregation. We address these
arguments in turn.

II.

The Due Process Clause of the Fourteenth Amendment provides
that no State shall "deprive any person of life, liberty, or property,
without due process of law." U.S. Const. amend. XIV, § 1. Inmates
maintain that their rights under this provision were violated in two
respects by the continuation of their confinement in administrative
segregation. First, they contend that the confinement deprived them
of a liberty interest in remaining in the general prison population and
that the process that they were afforded in connection with the depri-
vation of that interest was inadequate. Second, they assert that the
decision by the prison officials to continue their confinement in
administrative segregation was so arbitrary that it resulted in a denial
of substantive due process.

In order to prevail on either a procedural or substantive due process
claim, Inmates must first demonstrate that they were deprived of "life,
liberty, or property" by governmental action. See Plyler v. Moore, 100
F.3d 365, 374 (4th Cir. 1996), cert. denied, 117 S. Ct. 2460 (1997);
Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 826-27 (4th
_________________________________________________________________
2 Beverati was approved for release in September 1993 as well, but
chose to remain in administrative segregation because he found the hous-
ing assignment available to him in the general prison population to be
unacceptable.

                     4
Cir. 1995); Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995). It
is undisputed that Inmates were not deprived of life or property by
governmental action; they claim only that the prison officials' deci-
sion deprived them of a liberty interest in avoiding administrative seg-
regation.

          States may under certain circumstances create liberty inter-
          ests which are protected by the Due Process Clause. But
          these interests will be generally limited to freedom from
          restraint which, while not exceeding the sentence in such an
          unexpected manner as to give rise to protection by the Due
          Process Clause of its own force, nonetheless imposes atypi-
          cal and significant hardship on the inmate in relation to the
          ordinary incidents of prison life.

Sandin v. Conner, 115 S. Ct. 2293, 2300 (1995) (emphasis added)
(citations omitted). Since there is no contention here, nor logically
could there be, that the confinement to administrative segregation
exceeds the sentence imposed in such an extreme way as to give rise
to the protection of the Due Process Clause by its own force, the ques-
tion before us is whether Inmates' confinement in administrative seg-
regation imposed such an atypical hardship on them vis a vis ordinary
prison life that they possessed a liberty interest in avoiding it.3
_________________________________________________________________
3 Prior to the decision of the Supreme Court in Sandin, the analysis of
whether a prisoner was deprived of a liberty interest focused not on the
nature of the deprivation experienced by the prisoner, but on the lan-
guage of the applicable prison regulations and whether such language
was "mandatory." Sandin, 115 S. Ct. at 2298-99. In Sandin, Chief Justice
Rehnquist explained that "[b]y shifting the focus of the liberty interest
inquiry to one based on the language of a particular regulation, and not
the nature of the deprivation, the Court [had] encouraged prisoners to
comb regulations in search of mandatory language on which to base enti-
tlements to various state-conferred privileges." Id. at 2299. This encour-
agement had given rise to at least two serious and detrimental
consequences: (1) states were provided a disincentive to adopt written
direction to guide the discretion of prison officials; and (2) federal courts
were overly involved in the day-to-day management of prisons. See id.
These concerns led the Sandin Court to retreat from the mandatory lan-
guage approach of Hewitt v. Helms, 459 U.S. 460 (1983). See id. at 2300.

                    5
In order to determine whether the inmates possessed a liberty inter-
est, we must compare the conditions to which they were exposed in
administrative segregation with those they could expect to experience
as an ordinary incident of prison life. See id. at 2301. This analysis
necessarily is fact specific in that it requires a determination of the
conditions the prisoner maintains give rise to a liberty interest and
those incident to normal prison life. See, e.g. , Driscoll v. Youngman,
105 F.3d 393, 394 (8th Cir. 1997) (per curiam); Samuels v. Mockry,
77 F.3d 34, 38 (2d Cir. 1996) (per curiam); Whitford v. Boglino, 63
F.3d 527, 533 (7th Cir. 1995) (per curiam). But, the ultimate determi-
nation of whether the conditions impose such an atypical and signifi-
cant hardship that a liberty interest exists is a legal determination,
subject to de novo review. See Sandin, 115 S. Ct. at 2301-02.

Because this appeal is before us on review from the grant of sum-
mary judgment, we must view the evidence presented in the light
most favorable to Inmates and review de novo the appropriateness of
the grant of summary judgment, applying the same standard as the
district court. See Sylvia Dev. Corp., 48 F.3d at 817. The factual
nature of the analysis required by Sandin has led some courts of
appeals to remand to permit the district court to conduct an initial
examination of the factual record. See Driscoll , 105 F.3d at 394;
Samuels, 77 F.3d at 38. We agree that it is inappropriate for this court
to render a finding of fact on a disputed issue in the first instance, see
Yancey v. Varner (In re Pucci Shoes, Inc.), No. 96-2276, 1997 WL
409176 (4th Cir. July 23, 1997), and that a remand to the district court
for consideration of an issue in the first instance is sometimes appro-
priate, see Campbell v. Hewitt, Coleman & Assocs., 21 F.2d 52, 55-
56 (4th Cir. 1994). In general, though, when this court reviews the
grant of summary judgment, it considers the record before the district
court de novo and addresses the properly preserved arguments raised
by the appellant and, if necessary, all properly preserved alternative
bases for affirmance advanced by the appellee. See Hager v. Gibson,
109 F.3d 201, 208 (4th Cir. 1997). In doing so, our function is to
determine whether the evidence presents a genuine issue of material
fact requiring a trial. See Sylvia Dev. Corp. , 48 F.3d at 817-18. Here,
we determine that a remand to permit the district court to conduct a
comparison of the conditions in administrative segregation to those
incident to normal prison life is unnecessary because taking the evi-

                     6
dence in the light most favorable to Inmates, the prison officials are
entitled to judgment as a matter of law.

Inmates complain of a six-month administrative confinement,
claiming that the length of the confinement and the conditions to
which they were exposed made the assignment an atypical and signif-
icant hardship. The applicable prison regulations indicate that the con-
ditions in administrative segregation are similar in most respects to
those experienced by inmates in the general population and that even
those conditions that are more restrictive are not particularly onerous.
Indeed, the differences in conditions specified in the prison regula-
tions appear to be fairly common ones, leading the other courts of
appeals to conclude that confinement to administrative segregation
does not implicate a liberty interest. See Talley v. Hesse, 91 F.3d
1411, 1413 (10th Cir. 1996); Crowder v. True, 74 F.3d 812, 814-15
(7th Cir. 1996) (per curiam); Luken v. Scott, 71 F.3d 192, 193 (5th
Cir. 1995) (per curiam), cert. denied, 116 S. Ct. 1690 (1996);
Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995).

Inmates, however, have submitted affidavits attesting that the
actual conditions in administrative segregation are more onerous than
those specified in the prison regulations. They claim that when they
were initially placed in segregation, their cells were infested with ver-
min; were smeared with human feces and urine; and were flooded
with water from a leak in the toilet on the floor above. And, they
assert, they were forced to use their clothing and shampoo to clean the
cells. In addition, Inmates maintain that their cells were unbearably
hot and that the food they received was cold. Furthermore, Van Aelst
submitted an affidavit indicating that those assigned to administrative
segregation did not receive clean clothing, linen, or bedding as often
as required by the regulations governing administrative segregation;
that they were permitted to leave their cells three to four times per
week, rather than seven, and that no outside recreation was permitted;
that there were no educational or religious services available; and that
food was served in considerably smaller portions. Accepting Inmates'
version of the conditions in administrative segregation, as we must for
purposes of review of the grant of summary judgment, we conclude
that although the conditions were more burdensome than those
imposed on the general prison population, they were not so atypical

                    7
that exposure to them for six months imposed a significant hardship
in relation to the ordinary incidents of prison life.

In sum, we conclude that viewing the conditions of confinement in
administrative segregation that are alleged by Inmates in the light
most favorable to them, the conditions do not implicate a liberty inter-
est. And, because they possessed no liberty interest in avoiding con-
finement in administrative segregation, the district court properly
granted summary judgment in favor of prison officials on Inmates'
procedural and substantive due process claims.

III.

Inmates next contend that their confinement in administrative seg-
regation violated the Eighth Amendment prohibition against the
infliction of cruel and unusual punishment. See U.S. Const. amend.
VIII.4 Interestingly, they do not argue that the conditions to which
they were exposed during their confinement to administrative segre-
gation were violative of the Eighth Amendment.5 Rather, they main-
tain that their six-month confinement in administrative segregation
was a grossly excessive punishment. See Solem v. Helm, 463 U.S.
277, 288 (1983) (holding that the Eighth Amendment prohibits sen-
tences that are "grossly disproportionate and excessive punishment"
in relation to the offense). Although we question the propriety of
doing so, we assume for purposes of discussion that such an argument
might be cognizable in the context of administrative punishment for
a violation of a prison regulation. See Adams v. Carlson, 488 F.2d
619, 635-36 (7th Cir. 1973); cf. Rhodes v. Chapman, 452 U.S. 337,
347 (1981) (noting that prison conditions may not be"grossly dispro-
portionate to the severity of the crime warranting imprisonment").
Nevertheless, we conclude that Inmates' argument must fail on the
_________________________________________________________________
4 The Eighth Amendment applies to the States through the Fourteenth
Amendment. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991).
5 Inmates' failure to press an Eighth Amendment claim predicated on
the conditions of their confinement in administrative segregation no
doubt stems from their recognition that such a claim must fail, if for no
other reason than that they made no showing that the conditions resulted
in serious physical or emotional injuries or the grave risk of such harm.
See Shakka v. Smith, 71 F.3d 162, 166 (4th Cir. 1995).

                    8
basis of our repeated holdings that outside the context of a capital sen-
tence a proportionality review is necessary only with respect to sen-
tences of life imprisonment without the possibility of parole. See, e.g.,
United States v. Kratsas, 45 F.3d 63, 67 (4th Cir. 1995).

IV.

For the foregoing reasons, we conclude that Beverati and Van
Aelst's claims that they were denied procedural and substantive due
process and were subjected to cruel and unusual punishment in their
assignment to administrative segregation are without merit. Conse-
quently, we affirm the decision of the district court granting judgment
in favor of the prison officials.

AFFIRMED

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