                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JOSHUA ROBERT BROWN,                     No. 11-35628
               Plaintiff-Appellant,
                                            D.C. No.
                 v.                      3:10-cv-00003-
                                               BR
OREGON DEPARTMENT OF
CORRECTIONS; MAX WILLIAMS;
STAN CZERNIAK; MICHAEL GOWER;              OPINION
BARBARA COONEY; JOAN BARTON;
GREG JONES; MARK NOOTH; JUDY
GILMORE; JACK BLANKENBAKER;
HEIDI MACKENZIE; THERESA HICKS,
in their individual and official
capacities,
                Defendants-Appellees.


      Appeal from the United States District Court
               for the District of Oregon
       Anna J. Brown, District Judge, Presiding

               Argued and Submitted
           March 4, 2014—Portland, Oregon

                  Filed April 29, 2014

     Before: Alfred T. Goodwin, Stephen S. Trott,
       and William A. Fletcher, Circuit Judges.

              Opinion by Judge Goodwin
2             BROWN V. OREGON DEP’T OF CORR.

                           SUMMARY*


                      Prisoner Civil Rights

    The panel affirmed the district court’s summary judgment
in favor of prison officials in a 42 U.S.C. § 1983 action in
which a prisoner alleged that officials violated his due
process rights by housing him in the Intensive Management
Unit without periodic, meaningful review of his status.

    The panel held that plaintiff’s twenty-seven month
confinement in the Intensive Management Unit, without a
meaningful review, imposed an atypical and significant
hardship that implicated a protected liberty interest which
gave rise to the procedural protections of the Due Process
Clause. The panel also held, however, that plaintiff’s claims
against the Oregon Department of Corrections and his
damages claims against the individual defendants in their
official capacities were barred by the Eleventh Amendment.
Plaintiff’s remaining damages claims were barred by
qualified immunity because, although a lengthy confinement
without meaningful review may constitute atypical and
significant hardship, the panel could not hold defendants
liable for the violation of a right that was not clearly
established at the time the violation occurred.

   The panel affirmed the district court’s summary judgment
on plaintiff’s claim for declaratory relief because the record
showed that he had been released from the Intensive


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            BROWN V. OREGON DEP’T OF CORR.                   3

Management Unit and there was no evidence that he was
likely to again be subject to the challenged conditions.



                         COUNSEL

Tobias W. Mock (argued), Keith Slenkovich, Wilmer Hale
LLP, Palo Alto, California, for Plaintiff-Appellant.

Tiffany Keast (argued), Assistant Attorney General, Ellen F.
Rosenblum, Attorney General, Anna M. Joyce, Solicitor
General, Oregon Department of Justice, Salem, Oregon, for
Defendants-Appellees.


                         OPINION

GOODWIN, Circuit Judge:

    Joshua Robert Brown, currently incarcerated at Oregon’s
Snake River Correctional Institution (“SRCI”), appeals the
district court’s summary judgment in his pro se 42 U.S.C.
§ 1983 action. Brown alleges that prison officials violated his
due process rights by housing him in the Intensive
Management Unit (“IMU”) without periodic, meaningful
review of his status.

    We hold that, under any plausible baseline, Brown’s
conditions of confinement implicate a protected liberty
interest giving rise to the procedural protections of the Due
Process Clause. We also hold, however, that defendants are
entitled to Eleventh Amendment and qualified immunity. We
therefore affirm.
4           BROWN V. OREGON DEP’T OF CORR.

    FACTUAL AND PROCEDURAL BACKGROUND

    Brown was assigned a Level 5 custody classification and
placed in the IMU at SRCI on June 18, 2008, after being
found in possession of a weapon. He remained confined in
the IMU at either SRCI or the Oregon State Penitentiary
(“OSP”) for twenty-seven consecutive months, until his
release to the OSP general population on September 22, 2010.

    Pursuant to the Oregon Administrative Rules, a Level 5
custody classification is the highest level of supervision and
is assigned to inmates demonstrating “behaviors that in the
judgment of the department present a threat sufficient to
require special security housing on intensive management
status.” Oregon Administrative Rule (“OAR”) 291-104-
0111(9)(a)(A). Level 5 classifications are assigned by the
Special Population Management Committee. OAR 291-104-
0125(3)(a). Once an inmate is assigned to Level 5, he is
placed in the IMU or an IMU-status cell, and that status
remains until the inmate “is manually scored to a lower
custody classification level by the assigned institutional
counselor.” OAR 291-104-0125(3)(b); see also OAR 291-
055-0005(3)(b), 0031.

    IMU inmates are held in solitary confinement for more
than twenty-three hours per day. They are permitted outside
of their cells for a total of only forty minutes per day and may
spend thirty of those minutes engaged in recreation. Half of
that time–fifteen minutes–may be spent in an “outside”
facility reserved for IMU use, within a fifteen by forty-foot
room with high, concrete walls covered by a metal grate.
Inmates in the general population, in contrast, receive twenty-
five to thirty hours per week for recreation and social
interaction, including two to five hours of outside recreation
            BROWN V. OREGON DEP’T OF CORR.                  5

every day. IMU inmates are permitted two non-contact visits
per month and a maximum of two visitors in a six-month
period, while general-population inmates are permitted
between eleven and twenty-two contact visits per month and
an unlimited number of approved visitors. IMU inmates are
denied access to many other privileges afforded inmates in
the general population, including access to the prison and law
libraries, group religious worship, educational and vocational
opportunities, telephone use except in emergencies, access to
televisions, and access to personal property.

    IMU inmates are assigned a numerical “Programming
Level” between 1 and 4. OAR 291-055-0020. Upon their
placement in the IMU, inmates are assigned to Programming
Level 2 and are given mandatory behavior-modification
programs comprising individual program “packets.” OAR
291-055-0020(2)(b), (d). Inmates are not eligible for release
from the IMU until they have attained Programming Level 4
status, which requires “successful completion” of the
assigned packets. OAR 291-055-0020(2)(d)(C). Because
only one program packet may be completed in any two-week
period, the duration of an inmate’s confinement is dependent
on the number of packets that he is assigned.

    Although prior Oregon Department of Corrections
(“ODOC”) regulations required reviews of inmates’ custody
classifications every six months, see OAR 291-104-0125
(abrogated), ODOC discontinued this practice following
amendments to the administrative rules in May 2008. Current
review procedures consist only of “programming” reviews,
thirty-day reviews of each IMU inmate’s programming status.
OAR 291-055-0020(2), 0025(2). As part of this review
procedure, within thirty days of an inmate reaching
Programming Level 4, the Inmate Program Committee is
6           BROWN V. OREGON DEP’T OF CORR.

required to provide a written recommendation for or against
release from the IMU to the Classification Transfer Unit,
which is charged with making the final determination
regarding the inmate’s classification status. OAR 291-055-
0031(2)–(3).

    The Administrative Segregation Unit (“ASU”) and
Disciplinary Segregation Unit (“DSU”) constitute other forms
of segregated housing in the ODOC prison system. ASU is
“[a]dministrative housing for those inmates whose notoriety,
actions, or threats jeopardize the safety, security, and orderly
operation of the facility.” OAR 291-046-0010(3). DSU is
punitive housing reserved for inmates “in violation of rules of
prohibited conduct.” OAR 291-011-0005(2).

    Unlike the IMU, inmates may not be housed in the DSU
for longer than 180 days, and are entitled to thirty-day
“assessment” reviews evaluating whether to recommend their
early release from segregation. OAR 291-105-0066(10), 291-
011-0030(3). Other conditions of confinement in the DSU
generally are similar to conditions in the IMU, although DSU
inmates are not required to participate in behavior-
modification programs.

    Retention in the ASU is limited to no more than thirty
days without a hearing and status review and no more than
180 days without “due process.” OAR 291-046-0025(4),
0085(2), 0090(1). Conditions in the ASU are less restrictive
than in the IMU, with ASU inmates afforded access to
telephones, televisions, computers, and personal shoes and
other property. Inmates in the ASU are permitted seven
hours of recreation per week and are not required to
participate in behavior-modification programs.
            BROWN V. OREGON DEP’T OF CORR.                    7

    Brown was assigned to the IMU at SRCI on June 18,
2009 and given fifty-three behavior-modification packets.
The subject matter of at least thirty of Brown’s assigned
packets had no relationship to his underlying crime, the basis
for his confinement in the IMU, or the IMU’s stated security
objectives.

    The Inmate Program Committee conducted four
programming reviews of Brown’s status between July and
September 2008, advancing him from Programming Level 2
to 3 on October 21, 2008. The record does not include
evidence of any additional programming reviews until June
2009. Thereafter, the Inmate Program Committee reviewed
Brown’s programming status every month, keeping him at
Programming Level 3 pending the “successful completion”
of his assigned mandatory programming packets. The Inmate
Program Committee’s meeting minutes state only that Brown
“is programming–no change.” Brown completed his
behavior-modification programming and was promoted to
Programming Level 4 on August 24, 2010. He was released
from the IMU on September 22, 2010.

    While housed in the IMU, Brown submitted eight
petitions to prison officials requesting review of his
classification status. Those requests were denied, and Brown
was not afforded a review of his classification status until the
eve of his eventual release from the IMU.

    Brown filed a pro se 42 U.S.C. § 1983 action alleging,
among other things, that defendants had violated his due
process rights under the Fourteenth Amendment by failing to
provide periodic, meaningful reviews of his confinement.
Defendants moved for summary judgment; Brown did not
cross-move. The district court granted summary judgment on
8           BROWN V. OREGON DEP’T OF CORR.

Brown’s due process claim because it concluded that ODOC
officials had conducted programming reviews of Brown’s
classification once per month in accordance with policy, and
Brown had no liberty interest in freedom from segregation in
the IMU.

    Now represented by pro bono counsel, Brown assigns
error only to the summary judgment on his due process claim.

                       DISCUSSION

    On de novo review, Morrison v. Hall, 261 F.3d 896, 900
(9th Cir. 2001), we hold that, under any plausible baseline,
Brown’s conditions of confinement implicate a protected
liberty interest giving rise to procedural due process
protections. We also hold, however, that defendants are
entitled to immunity.

    A. Due Process

    Prisoners are entitled to certain due process protections
when subject to disciplinary sanctions. See Wolff v.
McDonnell, 418 U.S. 539, 564–71 (1974). In Sandin v.
Conner, however, the Supreme Court held that these
procedural protections adhere only where the deprivation
implicates a protected liberty interest–that is, where the
conditions of confinement impose an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life.” 515 U.S. 472, 484 (1995). We may consider
“1) whether the challenged condition ‘mirrored those
conditions imposed upon inmates in administrative
segregation and protective custody,’ and thus comported with
the prison’s discretionary authority; 2) the duration of the
condition, and the degree of restraint imposed; and 3) whether
            BROWN V. OREGON DEP’T OF CORR.                   9

the state’s action will invariably affect the duration of the
prisoner’s sentence.” Ramirez v. Galaza, 334 F.3d 850, 861
(9th Cir. 2003) (citations omitted). If a protected liberty
interest is at stake, then the court must determine whether the
procedures used to deprive the prisoner of that liberty violate
due process. See id. at 860.

    The district court granted summary judgment on Brown’s
due process claim because it concluded, first, that defendants
had conducted periodic reviews of the classification status
that kept Brown confined in the IMU, and second, that the
challenged conditions in the IMU were not atypical in
comparison to conditions in the ASU and DSU. We hold that
defendants are not entitled to summary judgment on either
ground.

    First, the record shows–and defendants’ counsel conceded
at oral argument–that Brown received no meaningful review
of his IMU confinement for twenty-seven months. Brown’s
term of confinement in the IMU was dependent on his
completion of fifty-three assigned packets. Because an
inmate may complete only one program packet in any two-
week period, Brown’s confinement in the IMU could not
possibly have lasted less than 106 weeks, regardless of the
appropriateness of his continued segregation. Given that
prison officials lack discretion to promote an inmate from one
programming level to another or to release an inmate from
the IMU before he completes the assigned packets, Brown’s
programming reviews were essentially meaningless.

    Second, under any plausible baseline, Brown’s twenty-
seven month confinement in the IMU without meaningful
review “impose[d] atypical and significant hardship on [him]
in relation to the ordinary incidents of prison life.” Sandin,
10          BROWN V. OREGON DEP’T OF CORR.

515 U.S. at 484. As an initial matter, we recognize that the
baseline for determining “atypical and significant hardship”
is not entirely clear. We have noted that “[t]he Sandin Court
seems to suggest that a major difference between the
conditions for the general prison population and the
segregated population triggers a right to a hearing,” Keenan
v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996), but have not
clearly held that conditions in the general population, as
opposed to those in other forms of administrative segregation
or protective custody, form the appropriate baseline
comparator. Cf. Ramirez, 334 F.3d at 861 (identifying as a
guidepost for evaluating atypical and significant hardship
“whether the challenged condition ‘mirrored those conditions
imposed upon inmates in administrative segregation and
protective custody,’ and thus comported with the prison’s
discretionary authority” (quoting Sandin, 515 U.S. at 486)).
The Supreme Court acknowledged this uncertainty in
Wilkinson v. Austin, noting that “[i]n Sandin’s wake the
Courts of Appeals have not reached consistent conclusions
for identifying the baseline from which to measure what is
atypical and significant in any particular prison system.”
545 U.S. 209, 223 (2005). It chose not to resolve the issue,
however, concluding, “[W]e are satisfied that [the challenged
conditions] impose[] an atypical and significant hardship
under any plausible baseline.” Id.

    Similarly, we need not locate the appropriate baseline
here because Brown’s twenty-seven month confinement in
the IMU imposed an atypical and significant hardship under
any plausible baseline. Confinement in the IMU subjected
Brown to solitary confinement for over twenty-three hours
each day with almost no interpersonal contact, and denied
him most privileges afforded inmates in the general
population. While these conditions alone might apply to most
            BROWN V. OREGON DEP’T OF CORR.                  11

solitary-confinement facilities, here there is a crucial factor
distinguishing confinement in the IMU: the duration of
Brown’s confinement. See Hutto v. Finney, 437 U.S. 678,
686 (1978) (“[T]he length of confinement cannot be ignored
in deciding whether the confinement meets constitutional
standards.”). Brown was given a fixed and irreducible period
of confinement in the IMU for twenty-seven months, in
contrast to the limited period of confinement with periodic
review afforded inmates in ODOC’s other segregated-housing
units. Retention in the ASU is limited to no more than thirty
days without a hearing or status review. Retention in the
DSU–where conditions of confinement generally are similar
to conditions in the IMU–is limited by thirty-day assessment
reviews, with the maximum period of confinement limited to
six months. Brown’s conditions of confinement in the IMU
thus implicate a protected liberty interest under any plausible
baseline.

   B. Immunity

    We nonetheless affirm the district court’s grant of
summary judgment because defendants are entitled to
Eleventh Amendment and qualified immunity. See Johnson
v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th
Cir. 2008) (explaining that we may affirm on any ground
supported by the record). First, Brown’s claims against the
Oregon Department of Corrections and his damages claims
against the individual defendants in their official capacities
are barred by the Eleventh Amendment. See Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“It is
clear . . . that in the absence of consent a suit in which the
State or one of its agencies or departments is named as the
defendant is proscribed by the Eleventh Amendment.”);
Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982)
12           BROWN V. OREGON DEP’T OF CORR.

(explaining that “Eleventh Amendment immunity extends to
actions against state officers sued in their official capacities
because such actions are, in essence, actions against the
governmental entity,” but “does not bar actions against state
officers in their official capacities if the plaintiffs seek only
a declaratory judgment or injunctive relief”).

    Second, Brown’s remaining damages claims are barred by
qualified immunity. Government officials who perform
discretionary functions generally are entitled to qualified
immunity from liability for 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).
The Supreme Court has set forth a two-part analysis for
resolving qualified immunity claims, which we may address
in any order. See Pearson v. Callahan, 555 U.S. 223, 236
(2009). First, we must consider whether the facts “[t]aken in
the light most favorable to the party asserting the injury . . .
show [that] the [defendant’s] conduct violated a constitutional
right[.]” Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled in part on other grounds by Pearson, 555 U.S. at
236. Second, we must determine whether the right was
clearly established at the time of the alleged violation.
Saucier, 522 U.S. at 201. Even if the right was clearly
established at the time of the violation, it may be “difficult for
[the defendant] to determine how the relevant legal doctrine
. . . will apply to the factual situation the [defendant]
confronts.” Id. at 205. Therefore, “[i]f the . . . mistake as to
what the law requires is reasonable . . . the [defendant] is
entitled to the immunity defense.” Id.

   We begin with the second prong of the qualified-
immunity analysis: whether the right was clearly established
            BROWN V. OREGON DEP’T OF CORR.                   13

at the time of the alleged violation. Until now, this court has
not addressed whether the absence of post-placement
periodic, meaningful review of confinement in a disciplinary-
segregation unit may give rise to a protected liberty interest.
We previously have found a state-created liberty interest in
review of prisoners’ confinement arising from language of
state prison regulations. See Toussaint v. McCarthy, 801 F.2d
1080, 1097–98 (9th Cir. 1986), abrogated in part on other
grounds by Sandin, 515 U.S. 472. However, the Supreme
Court has since “refocused the test for determining the
existence of a liberty interest away from the wording of
prison regulations and toward an examination of the hardship
caused by the prison’s challenged action relative to ‘the basic
conditions’ of life as a prisoner.” Mitchell v. Dupnik, 75 F.3d
517, 522 (9th Cir. 1996) (quoting Sandin, 515 U.S. at 485).
Thus, we must now evaluate whether the deprivation in
question “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484. Although we conclude that a
lengthy confinement without meaningful review may
constitute atypical and significant hardship, our case law has
not previously so held, and we cannot hold defendants liable
for the violation of a right that was not clearly established at
the time the violation occurred.

     Qualified immunity “is only an immunity from a suit for
money damages, and does not provide immunity from a suit
seeking declaratory or injunctive relief.” Hydrick v. Hunter,
669 F.3d 937, 939–40 (9th Cir. 2012). We affirm the district
court’s summary judgment on Brown’s claim for declaratory
relief, however, because the record shows that Brown has
been released from the IMU and there is no evidence that he
is likely to again be subject to the challenged conditions. See
City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)
14          BROWN V. OREGON DEP’T OF CORR.

(holding that past exposure to harm does not confer standing
to obtain equitable relief “[a]bsent a sufficient likelihood that
[the plaintiff] will again be wronged in a similar way”).
Accordingly, we affirm the district court’s summary
judgment.

     AFFIRMED.
