                              _____________________

                                  No. 95-2919
                              _____________________

James Donald Callender,                           *
                                                  *
                     Appellee,                    *    Appeal from the United
                                                  *    States District Court
          v.                                      *    for the Northern
                                                  *    District of Iowa.
Sioux City Residential Treatment                  *
Facility, Steve Sholl, and Kenna Norby, *
                                                  *
                     Appellants.                  *

                                 ___________________

                     Submitted: April 11, 1996

                         Filed: July 10, 1996
                               ___________________

Before BEAM, Circuit Judge, MURPHY, Circuit Judge, and NANGLE, Senior
District Judge.*
                         ___________________

NANGLE, Senior District Judge.

          The appellants-defendants appeal from the district court's grant of
summary judgment in favor of appellee James Callender on his procedural due
process claim, as well as the award of attorneys’ fees to appellee.          The
appellants challenge the district court's findings that the individual
defendants are liable to Mr. Callender, that Mr. Callender had a protected
liberty interest in remaining in the work release program, that Mr.
Callender was not given the procedural due process to which he was
entitled, that the case was not moot, that the defendants were not entitled
to       qualified immunity on the procedural due process claims, that Mr.




     *
      The HONORABLE JOHN F. NANGLE, Senior United States District
Judge for the Eastern District of Missouri, sitting by designation.
Callender was entitled to an award of emotional distress damages and that
Mr. Callender was entitled to an award of attorneys’ fees.            Because we find
that the revocation of Mr. Callender’s work release program does not
implicate a liberty interest protected by the Fourteenth Amendment, we
reverse the judgment of the district court without addressing the other
arguments raised on appeal.


                                        I.


        James Callender was convicted by a jury of assault with intent
to commit sexual abuse causing bodily injury in September, 1987.
Callender     proclaimed    his    innocence        throughout     the    trial      and
appealed his conviction.         He was sentenced to 5 years in prison and
was committed to the Iowa Department of Corrections on November 2,
1987.    On July 1, 1988, Callender was approved for work release by
the Iowa Board of Parole.         On July 18, 1988, he signed a temporary
work release agreement wherein he agreed to abide by the conditions
of   the   program   and    he    was   transferred        from   the    Iowa    Men’s
Reformatory to the Sioux City Residential Treatment Facility that
same day.


        Shortly   after    arriving     at    the     facility,     Callender        was
interviewed by appellants Steve Scholl, the residential manager,
and Kenna Norby, a residential counselor.                  During the interview
process, appellants explained to Callender that a condition of the
sex offender program, which was part of his work release program,
was that he admit his guilt and accept responsibility for his
actions.      Callender     refused     to    admit    his    crime      and    he   was
transferred out of the facility on July 20, 1988.                       He was first
transferred to the Woodbury County Jail and, after being housed at
several different institutions for approximately two or three
months,     was   ultimately      transferred       back     to   the    Iowa    Men’s
Reformatory.       On July 26, 1988, Callender was given a notice


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stating that the Department of Corrections had determined that he




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had not met work release expectations and that the Board of Parole
would    review   the   case    and   issue   a   written   decision.    On
September 21, 1988, the Parole Board ordered that Callender’s work
release be revoked and that he be committed to the custody of the
Iowa Department of Corrections.       On February 8, 1989, the Community
Placement Manager conducted an administrative review of Callender’s
case and concluded that he would still recommend that Callender’s
work    release   status   be   revoked.      Callender’s   conviction   was
affirmed on May 23, 1989, he was paroled on July 19, 1989, and his
sentence discharged on October 19, 1989.


       On February 23, 1989, Callender’s complaint against defendants
Sioux City Residential Treatment Facility, Steve Scholl and Kenna
Norby was filed alleging violations of his constitutional rights.
The Court dismissed the treatment facility as a defendant in its
initial review of the case.       Callender filed a motion for summary
judgment and appellants filed a cross-motion for summary judgment.
On April 19, 1993, the district court granted Callender’s motion
for summary judgment, and denied the appellants’ motion, holding
that Callender’s procedural due process rights had been violated
because he was deprived of the liberty interest of remaining in the
work release program without a preliminary hearing.              The Court
further held that, although requiring plaintiff to admit his guilt
violated his Fifth Amendment right against self-incrimination, the
appellants were entitled to qualified immunity on that claim.            On
June 26, 1995, the Court awarded Callender $2,240.00 in damages for
mental and emotional distress, $1.00 in nominal damages and refused
to award damages for lost wages and punitive damages.           On July 24,
1995, the Court awarded Callender $11,555.25 in attorneys’ fees and
$245.70 in expenses.




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                                    II.


     We review a district court’s grant of summary judgment de
novo, viewing the record in the light most favorable to the non-
moving party.     Marshall v. Unum Life Insurance Co., 13 F.3d 282,
283 (8th Cir. 1994).    The district court held that, while Callender
had no liberty interest in obtaining work release status, he had a
liberty interest in remaining in the work release program.                    We
disagree.


     Protected liberty interests under the Fourteenth Amendment may
arise from the Due Process Clause itself or from State laws.
Edwards v. Lockhart, 908 F.2d 299, 301 (8th Cir. 1990).             A liberty
interest inherent in the Due Process Clause arises when a person
has substantial, albeit conditional, freedom such as when he is on
probation or parole.    Edwards, 908 F.2d at 301.         In Edwards, this
Court held that a participant in an Arkansas work release program
had a protected liberty interest that arose from the Due Process
Clause itself     because   the   participant    no   longer     lived   in   an
institution but lived in the community.         Id. at 302.      As the Tenth
Circuit noted:    “Edwards . . . correctly identifies the dispositive
characteristic that marks the point at which the Due Process Clause
itself implies a liberty interest: it is the fact of release from
incarceration.”     Harper v. Young, 64 F.3d 563, 566 (10th Cir.
1995), cert. granted, 64 USLW 3787, 64 USLW 3793 (U.S. May 28,
1996) (No. 95-1598).


     Unlike the work release program at issue in Edwards, Mr.
Callender’s work release program, at least at the time of his
termination, was more analogous to institutional life than it was
to probation or parole. At the Sioux City Residential Treatment
Facility,   releasees   can   eventually   earn       furlough    privileges.


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Transcript of October 5, 1994, hearing at 70.     However, those
privileges have to be earned and Mr. Callender was not qualified




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for those privileges at the time of his transfer out of the
program.   Id.    Therefore, this Court finds that the Mr. Callender’s
work release program did not provide the sort of substantial
freedom that gives rise to a liberty interest inherent in the Due
Process Clause.


      We further hold that the laws of Iowa do not create a liberty
interest in remaining in the work release program.           In support of
its conclusion that appellee had such a state-created liberty
interest, the district court relied upon this Court’s decision in
Hake v. Gunter, 824 F.2d 610 (8th Cir. 1987).            In that case, the
court noted the two-part test then used to determine whether the
state had created a constitutionally protected liberty interest:
(1) whether      the   statutes   contained    particularized   substantive
standards that significantly guided decisions and (2) whether the
statutes used mandatory language.          Id. at 614.   The district court
found that the terms of Iowa Code § 906.41 were mandatory and that
a liberty interest in remaining in work release was created by the
state.


      Approximately two years after the district court’s order on
the cross motions for summary judgment in this case, the Supreme
Court issued its opinion in Sandin v. Conner, ___ U.S. ___, 115




  1
      The relevant portion of Iowa Code § 906.4 reads as follows:

           A parole or work release shall be ordered only for
           the best interest of society and the offender, not
           as an award of clemency. The board shall release
           on parole or work release any person whom it has
           the power to so release, when in its opinion there
           is reasonable probability that the person can be
           released without detriment to the community or to
           the person. . . .

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S.Ct. 2293 (1995).2    In this seminal decision, the Court held that
its prior emphasis on the mandatory language of statutes, rather
than the essence of the deprivation, “encouraged prisoners to comb
regulations in search of mandatory language on which to base
entitlements to various state-conferred privileges.”        Id. at 2299.
The Court held that the proper focus should be on whether the
deprivation “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life”.          Id.
at 2300.   The Court reached this conclusion because the earlier
approach   discouraged     state   officials   from    codifying     their
administrative procedures and has inappropriately involved federal
courts in the day-to-day management of prisons.        Id. at 2299-2300.
In Sandin, the Court found that 30 days of solitary confinement,
when compared with the inmate’s overall prison environment, was not
the “type of atypical, significant deprivation in which a state
might conceivably create a liberty interest.”         Id. at 2301.


      In Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996), the First
Circuit had occasion to address the question of whether revocation
of work release implicated a state-created liberty interest under
the standard of Sandin.     The inmate in Dominique had been on work
release for almost four years during which time he was allowed to
become a mechanic for an employer and also allowed to open his own
vehicle repair shop.     Id. at 1157.    When his participation in the
program was revoked, he was transferred to a medium security
institution without ever receiving a written statement concerning
his removal.   Id.    The inmate alleged that his revocation violated
the Due Process Clause of the Fourteenth Amendment and the Ex Post


  2
    Sandin applies retroactively to this case. See Dominique v.
Weld, 73 F.3d 1156, 1160 n.6 (1st Cir. 1996)(citing Rivers v.
Roadway Express, Inc., ___ U.S. ___, 114 S.Ct. 1510, 1519 (1994)
and Harper v. Virginia Department of Taxation, 509 U.S. 86, 113
S.Ct. 2510, 2517 (1993)).

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Facto Clause.   Id.   On appeal, the First Circuit applied Sandin v.
Conner and concluded that, because the conditions at the medium




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security facility were similar to those ordinarily experienced by
a large number of inmates on a daily basis, placement in such a
facility was not an atypical hardship.                     Id. at 1160.        The Court
noted that the change between the “quasi-freedom” of work release
and   a    medium    security     facility         may    have    been   a    significant
deprivation but, nonetheless, it was not an atypical deprivation.
Id.   The Court also found that the state’s action did not affect
the duration of the inmate’s sentence in any way.                        Id.


          In this case, revocation of Callender’s work release program
was not an atypical or signficant deprivation.                     Within two or three
months, Mr. Callender was returned to the same institution that he
had left upon being granted work release.                        Clearly, many inmates
endured the same conditions of confinement that Mr. Callender did
when he      was    transferred      back    to     the   Iowa     Men’s     Reformatory.
Moreover, unlike the inmate in Dominique, Mr. Callender never
actually      participated      in    the     work       release     program    at   all;
therefore, the deprivation in this case was not a significant one.
Plaintiff makes much of the fact that upon his return to the Iowa
Men’s Reformatory he lost all the privileges he had earned and had
to start over within the institutional system.                      Although the Court
is not unsympathetic to his plight, the appellee’s deprivation is
not atypical of what inmates have to endure in daily prison life.
Moreover, there is no indication in the record that the duration of
Mr. Callender’s sentence was in any way affected by the revocation
of his work release status. Accordingly, the Court finds no state-
created liberty interest in remaining in Iowa’s work release
program.


                                        III.


      In sum, this Court finds that Mr. Callender did not have a


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constitutionally protected liberty interest in remaining in the
work release program.   Mr. Callender’s work release program was not




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one that gave rise to a liberty interest inherent in the Due
Process Clause itself.   Moreover, revocation of his work release
status did not impose an atypical and significant hardship upon him
in relation to the ordinary incidents of prison life.   Accordingly,
the judgment is reversed.


     A true copy.
          Attest:
               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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