                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0176p.06

                      UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                         X
                                   Plaintiff-Appellant, -
 CARY HARDEN-BEY,
                                                          -
                                                          -
                                                          -
                                                              No. 06-1473
             v.
                                                          ,
                                                           >
 L. RUTTER, et al.,                                       -
                                Defendants-Appellees. N
                           Appeal from the United States District Court
                        for the Western District of Michigan at Marquette.
                          No. 06-00007—R. Allan Edgar, District Judge.
                                    Submitted: March 13, 2008
                                Decided and Filed: May 12, 2008
                   Before: MOORE, GILMAN, and SUTTON, Circuit Judges.
                                       _________________
                                            COUNSEL
ON BRIEF: Cary Jerome Harden-Bey, Munising, Michigan, pro se.
                                       _________________
                                           OPINION
                                       _________________
        SUTTON, Circuit Judge. Cary Harden-Bey, an incarcerated pro se litigant, challenges the
dismissal under § 1997e(c) of the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(c), of
his § 1983 claims against several employees of the Michigan Department of Corrections. Because
Harden-Bey has stated a cognizable due-process claim, we reverse that part of the district court’s
order. And because he has failed to state a cognizable cruel-and-unusual-punishment claim under
the Eighth (and Fourteenth) Amendment or a cognizable equal-protection claim under the
Fourteenth Amendment, we affirm the remaining parts of the district court’s order.
                                                  I.
        Harden-Bey is an inmate at the Alger Maximum Correctional Facility, which is located in
Munising, Michigan, and which contains six housing units—three for the general inmate population
and three for inmates committed to administrative segregation. On September 18, 2002, prison
officials placed Harden-Bey in administrative segregation because “[r]eports have been received
from prisoners and staff that . . . Harden-Bey is using his position as a ranking member of the
Moori[s]h Science Temple of America to direct and influence his follo[wers] to strong arm other
prisoners, col[l]ect debts, approve prisoner assaults and is involved in the approval and planning of
a major serious assault on staff and [a] takeover of the housing unit and/or facility here at [Alger].

                                                  1
No. 06-1473           Harden-Bey v. Rutter, et al.                                              Page 2


Based upon these reports, prisoner Harden-Bey is considered to be a threat to the safety and security
of this facility.” (emphasis omitted). Harden-Bey requested a hearing, an investigation and access
to all relevant witnesses and documents, claiming that prison officials premised their decision to
segregate him on false and religiously biased information.
        After conducting a hearing on the matter, a prison official upheld Harden-Bey’s placement
in administrative segregation. The Hearings Division denied his request for a rehearing, after which
he filed an internal grievance challenging his confinement in administrative segregation. In January
2003, prison officials denied the grievance because Harden-Bey had “clearly demonstrated that [he
was] a serious threat to the physical safety of prisoners/staff.” He filed additional internal
grievances in 2004 and 2005 related to his administrative segregation, alleging that several prison
officials used their authority and influence to subject him to continued and “indefinite” confinement
in administrative segregation and denied him periodic reviews for release from segregation. Prison
officials rejected each grievance.
         In December 2005, Harden-Bey filed this § 1983 action against several prison officials,
challenging his placement and continued confinement in administrative segregation on several
federal constitutional grounds. After granting Harden-Bey leave to proceed in forma pauperis, the
district court dismissed the complaint for failure to state a claim upon which relief may be granted.
See 28 U.S.C. § 1915(e)(2)(B)(ii); 42 U.S.C. § 1997e(c).
                                                  II.
                                                  A.
       In challenging the district court’s rejection of his due-process claim at the pleading stage,
Harden-Bey focuses on the “long term indefinite” nature of his placement in administrative
segregation and the absence of hearings during it. In one sense, he faces a steep climb. The Due
Process Clause does not protect every administrative slight that occurs behind prison walls. It
requires process only when a “life, liberty, or property” interest is at stake. U.S. Const. amend.
XIV, § 1. And when it comes to the principal objection to confinement in a prison cell, the
deprivation of “liberty,” the State already has given Harden-Bey the procedural protections to which
he is entitled: a trial in compliance with the due process and other constitutional guarantees
applicable to crime and punishment.
         But in another sense, Harden-Bey has a point. Even after a proper conviction and sentence,
an inmate still retains a “liberty” interest, guarded by due process, with respect to state-imposed
prison discipline that rises to the level of an “atypical and significant hardship on the inmate.”
Sandin v. Conner, 515 U.S. 472, 484 (1995). But in relation to what? To implicate a cognizable
liberty interest in the prison setting, Sandin tells us, the discipline must be unusual and substantial
“in relation to the ordinary incidents of prison life.” Id.; see also Wilkinson v. Austin, 545 U.S. 209,
223 (2005) (discussing “the difficulty of locating the appropriate baseline” from which to measure
“what is atypical and significant in any particular prison system”).
       The question here is whether Harden-Bey’s allegedly indefinite confinement in
administrative segregation, three years and running as of the time of the complaint, amounts to an
“atypical and significant hardship on [him] in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484. Relying on Sixth Circuit precedent, the district court held that placement
in administrative segregation is never “atypical and significant” and that the “length of the
placement” does not affect the inquiry. D. Ct. Op. at 4. We disagree.
        Two Supreme Court cases cast considerable light on the answer to this question. Sandin
addressed whether an inmate’s placement in disciplinary segregation for 30 days presented the type
of atypical, significant deprivation that implicated a protected liberty interest. 515 U.S. at 486. It
No. 06-1473           Harden-Bey v. Rutter, et al.                                               Page 3


did not, the Court held, for three reasons: (1) the inmate’s “disciplinary segregation, with
insignificant exceptions, mirrored those conditions imposed upon inmates in administrative
segregation and protective custody”; (2) the inmate’s segregated “confinement did not exceed
similar, but totally discretionary, confinement in either duration or degree of restriction”; and
(3) the inmate’s segregation did not “inevitably affect the duration of his sentence.” Id. at 486–87
(emphasis added).
         Austin addressed whether inmates’ assignment to a maximum-security prison with “highly
restrictive conditions” implicates a liberty interest. 545 U.S. at 213. In holding that it did, the Court
noted the significant differences between the conditions of confinement at the maximum-security
prison and “most solitary confinement facilities,” then offered two other explanations for its
decision: “First is the duration. Unlike the 30-day placement in Sandin, placement at [the
maximum-security prison] is indefinite and, after an initial 30-day review, is reviewed just annually.
Second is that placement disqualifies an otherwise eligible inmate for parole consideration.” Id. at
224. “While any of these conditions standing alone might not be sufficient to create a liberty
interest,” the Court concluded, “taken together they impose an atypical and significant hardship
within the correctional context.” Id.
         In deciding whether changes to an inmate’s conditions of confinement implicate a cognizable
liberty interest, both Sandin and Austin considered the nature of the more-restrictive confinement
and its duration in relation to prison norms and to the terms of the individual’s sentence. In Sandin,
a 30-day placement in disciplinary segregation did not suffice to implicate a protected liberty
interest; in Austin, an “indefinite” placement in a maximum-security prison facility with “highly
restrictive conditions” (together with other features of the transfer) sufficed to implicate such an
interest, id. at 213, 224.
          Consistent with these decisions, most (if not all) of our sister circuits have considered the
nature of the more-restrictive confinement and its duration in determining whether it imposes an
“atypical and significant hardship.” See, e.g., Iqbal v. Hasty, 490 F.3d 143, 161 (2d Cir. 2007)
(noting that “[r]elevant factors” in determining whether a liberty interest is implicated “include both
the conditions of segregation and its duration” and holding that “[s]egregation of longer than 305
days . . . is sufficiently atypical to require procedural due process protection under Sandin”); Skinner
v. Cunningham, 430 F.3d 483, 487 (1st Cir. 2005) (holding that a liberty interest was not implicated
because, among other reasons, the duration of the plaintiff’s segregation “was not excessive”);
Stephens v. Cottey, 145 F. App’x 179, 181 (7th Cir. Aug. 17, 2005) (“In determining whether prison
conditions meet this [Sandin] standard, courts place a premium on the duration of the
deprivation . . . .”); Serrano v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (noting that a relevant
factor is “the duration of the condition”); Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000) (noting
that a relevant factor is “the amount of time the prisoner was placed into disciplinary segregation”
and stating that “we have no difficulty concluding that eight years in administrative custody . . . is
‘atypical’ [and significant] in relation to the ordinary incidents of prison life”); Hatch v. District of
Columbia, 184 F.3d 846, 858 (D.C. Cir. 1999) (remanding case and noting that, “even if the
conditions [the inmate] faced were no more restrictive than ordinary conditions of administrative
segregation, the district court should determine whether its duration—twenty-nine weeks . . . —was
‘atypical’ compared to the length of administrative segregation routinely imposed on similarly
situated prisoners”); Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 809 (10th Cir. 1999)
(remanding case for district court to consider “both the duration and degree of plaintiff’s restrictions
as compared with other inmates”).
        As Sandin and Austin indicate and as the cases from our sister circuits suggest, the duration
of prison discipline bears on whether a cognizable liberty interest exists. Harden-Bey has been in
administrative segregation for three years. He alleges, not improbably, that his placement remains
“indefinite” and, what is more, that prison officials refuse to give him a hearing to explain his
No. 06-1473            Harden-Bey v. Rutter, et al.                                               Page 4


continued detention. While the prison may have ample reasons for segregating Harden-Bey from
the general prison population and may indeed have given him all of the procedural protections to
which he is entitled before and after this placement, we have no way of knowing whether that is so
based solely on his complaint. On this bare-bones record, we hold only that the district court erred
in dismissing the complaint on the ground that the duration of this prison discipline, three years and
counting, does not affect whether Harden-Bey has a protected liberty interest. On remand, the court
should consider whether the nature of this placement in administrative segregation together with its
duration creates a cognizable liberty interest and, if so, whether the State has given Harden-Bey the
protection to which he is due.
         That would end the matter but for one complication. The district court, it turns out, had a
reasonable basis for thinking that the duration of prison discipline has little or no bearing on whether
it is “atypical and significant.” In one published opinion and in some unpublished opinions and
orders, we have said that “administrative segregations [do] not . . . involve an ‘atypical and
significant’ hardship implicating a protected liberty interest without regard to duration.” Jones v.
Baker, 155 F.3d 810, 812 (6th Cir. 1998) (emphasis added); see also, e.g., Bradley v. Evans, No. 98-
5861, 2000 WL 1277229, at *7 (6th Cir. Aug. 23, 2000).
        Yet this language from Jones does not deserve the credence that the district court and some
of our unpublished decisions have given it. At issue in Jones was prison discipline imposed on an
inmate who participated in the 1993 prison riots at the Southern Ohio Correctional Facility and who
was implicated in the murder of a prison officer. The question at hand was whether the inmate’s
segregation during the two and one-half years between the riots and an administrative hearing
regarding his role in the murder violated due process. 155 F.3d at 812. In holding that it did not,
Jones indeed observed that administrative segregation does not involve an “atypical and significant”
hardship “without regard to duration.” Id.
        But two other features of Jones limit its application here. One: Jones itself confined the
reach of its decision, noting “that our holding here does not mean that every administrative
segregation regardless of length or the reason for the segregation will not implicate a liberty interest.
The facts of this case and the extraordinarily good reasons for holding plaintiff in segregation form
the basis for this decision.” Id. at 813. Two: Jones involved the review of a summary judgment
decision, not the review of a pleading-stage dismissal. The panel’s holding thus turned not just on
whether the placement implicated a protected liberty interest but also on whether the State’s
explanation—that it needed to segregate an inmate implicated in the murder of a prison guard during
the ensuing two-and-a-half-year investigation—sufficed to establish as a matter of law that no due
process violation occurred.
        Jones does not control this case. Harden-Bey has already been in administrative segregation
for three years, not two and a half, and his confinement is “indefinite,” not limited until a scheduled
hearing. And in view of the pleading-stage dismissal of this case, we do not know the particulars
of the State’s explanation for its confinement of Harden-Bey or the frequency with which hearings
are given to determine whether he should remain in administrative segregation. Most
fundamentally, however, Jones cannot stand for what amount to two irreconcilable propositions:
(1) that administrative segregation never implicates a protected liberty interest “without regard to
duration,” id. at 812, and (2) that this does not mean “every administrative segregation regardless
of length . . . will not implicate a liberty interest,” id. at 813. In the end, Jones, like all decisions,
stands for no more and no less than what was necessary to resolve the case—that the State’s
explanation for holding the inmate in administrative segregation for two and a half years sufficed
as a matter of law to establish that no due process violation occurred.
        Our other published decisions in this area do not require a different approach. They deal
with the distinct question whether an initial placement in administrative segregation is “atypical and
No. 06-1473           Harden-Bey v. Rutter, et al.                                               Page 5


significant” or whether a placement for a relatively brief period of time is “atypical and significant.”
See Harbin-Bey v. Rutter, 420 F.3d 571, 577 (6th Cir. 2005) (holding that “an increase in security
classification . . . does not constitute an atypical and significant hardship”) (internal quotation marks
omitted); Rimmer-Bey v. Brown, 62 F.3d 789, 789 (6th Cir. 1995) (rejecting a prisoner’s allegation
that prison officials “violated his procedural due process rights by placing him in administrative
segregation without a formal reclassification hearing”); Mackey v. Dyke, 111 F.3d 460, 461 (6th Cir.
1997) (“The question in this case is whether Defendants violated [the plaintiff’s] due process rights
by failing to return him promptly to the general prison population after he was released from
administrative segregation.”). In holding that an initial placement decision is not “atypical and
significant,” Harbin-Bey and Rimmer-Bey do not speak to the question whether the placement may
last into perpetuity without becoming “atypical and significant.” And in holding that a 117-day
delay in returning an inmate to the general population is not “atypical and significant,” Mackey does
not purport to answer whether the duration of administrative segregation is never relevant.
        In the final analysis, the nature and duration of an inmate’s segregation may affect whether
the State has implicated a liberty interest that warrants due-process protection—as do the other
Sandin factors, such as whether the segregation will affect the overall duration of the inmate’s
sentence. Because the district court dismissed this case at the pleading stage based in part on the
conclusion that the duration of the segregation has little or no bearing on whether that segregation
was atypical and significant, we reverse that decision and remand the case so that the district court
can assess in the first instance whether the nature and allegedly “indefinite” duration of Harden-
Bey’s segregation makes these conditions “atypical and significant in relation to the ordinary
incidents of prison life.”
                                                   B.
        The district court correctly rejected Harden-Bey’s Eighth Amendment claim. To move
beyond the pleading stage in this setting, an inmate must allege that he has been deprived “of the
minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
Alleging that prison conditions “are restrictive and even harsh” does not suffice because such
conditions “are part of the penalty that criminal offenders pay for their offenses against society.”
Id.; see also Hudson v. McMillian, 503 U.S. 1, 9 (1992) (“[E]xtreme deprivations are required to
make out a conditions-of-confinement claim [under the Eighth Amendment]. Because routine
discomfort is part of the penalty that criminal offenders pay for their offenses against society, only
those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave
to form the basis of an Eighth Amendment violation.”) (internal quotation marks and citations
omitted).
        In his complaint, Harden-Bey makes no allegations that rise to the level of an Eighth
Amendment violation. “Because placement in segregation is a routine discomfort that is a part of
the penalty that criminal offenders pay for their offenses against society, it is insufficient to support
an Eighth Amendment Claim.” Murray v. Unknown Evert, 84 F. App’x 553, 556 (6th Cir. Dec. 8,
2003). Even if we read his complaint to allege emotional or mental injuries, Harden-Bey cannot
bring an Eighth Amendment claim for such injuries because he did not allege a physical injury. See
42 U.S.C. § 1997e(e) (“No Federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury.”); Merchant v. Hawk-Sawyer, 37 F. App’x 143, 145–46
(6th Cir. May 7, 2002) (per curiam) (denying an inmate’s Eighth Amendment claim because the
inmate did “not allege that he was subjected to any physical injury as a result of the actual conditions
in the segregated housing unit, and 42 U.S.C. § 1997e(e) precludes any claim by a prisoner for
mental or emotional injury suffered while in custody without a prior showing of physical injury”)
(internal quotation marks omitted).
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                                                  C.
        Harden-Bey’s equal-protection claim also fails as a matter of law. As the district court
correctly pointed out, this aspect of the complaint says only that his placement in administrative
segregation was “created on Religious Bias.” “[I]n the context of a civil rights claim, . . . conclusory
allegations of unconstitutional conduct without specific factual allegations fail to state a claim.”
Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996); see also id. (indicating that
“[s]ome factual basis for such claims must be set forth in the pleadings”) (internal quotation marks
omitted).
         Even if Harden-Bey means to rest his claim on the allegation that the prison placed him in
administrative segregation because he “is using his position as a ranking member of the Moori[s]h
Science Temple of America” to cause disturbances in the prison, that does not help him. His
complaint alleges no facts to contradict the disciplinary record, which shows that prison officials
placed him in administrative segregation because of past (and impending) efforts to cause
disturbances within the prison, not because of his religion. Cf. Harbin-Bey, 420 F.3d at 576
(“Although Harbin-Bey claims that his . . . designation [as a security threat] was based on his
religious beliefs, the record clearly shows that he was designated as a [threat] because of his gang
affiliation, not because of his religion.”).
                                                  III.
       For these reasons, we affirm in part, reverse in part and remand the case to the district court
to consider Harden-Bey’s due-process claim in the first instance.
