                         United States Court of Appeals

                             FOR THE EIGHTH CIRCUIT



                               Nos. 96-2460/2461


Richard John Freitas, Sr.,                 *
                                           *
     Appellee/Cross-Appellant,             *
                                           * Appeals from the United States
          v.       *                       District Court for the
                                           * Northern District of Iowa.
John Ault,         *
                                           *
     Appellant/Cross-Appellee,             *
                                           *
          and                              *
                                           *
Irene G. Howard,                           *
                                           *
     Defendant/Cross-Appellee.             *




                       Submitted:   February 12, 1997

                           Filed:   April 4, 1997


Before RICHARD S. ARNOLD, Chief Judge, and HANSEN and MORRIS SHEPPARD
     ARNOLD, Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     John Ault, one of the defendants in a suit brought under 42 U.S.C.
§ 1983, appeals the trial court’s ruling that a prisoner’s due process
rights were violated when he was transferred to a higher-security facility
without a hearing.      He also appeals the amount of the damage award.   The
prisoner, Richard John Freitas, Sr., cross-appeals the amount of damages
awarded to him, one of the trial court’s factual findings, and the trial
court’s
holding that he was not sexually harassed by Irene G. Howard, a prison
official.    We affirm in part and reverse in part.


                                            I.
        After Mr. Freitas, an inmate at Iowa’s minimum-security North Central
Correctional Facility (“NCCF”), was assigned to a job as a painter under
the supervision of Ms. Howard, a romantic relationship developed between
the two that lasted several months.         Mr. Freitas and Ms. Howard would meet
in secluded areas of NCCF, where they would kiss, hug, and talk.                        At
Ms. Howard’s request, Mr. Freitas would write her “hot sexy” letters
approximately every other day, and Ms. Howard occasionally dressed in tight
skirts and high heels for Mr. Freitas’s benefit.


        Although    the   two   discussed   living    together   upon     Mr.   Freitas’s
release, Ms. Howard was apparently less serious about the relationship than
Mr. Freitas, for she saw and slept with other men.                 After Mr. Freitas
learned from Ms. Howard that a male companion would be staying with her
over the weekend, he decided to inform Mr. Ault, the warden of NCCF, about
the relationship.      Mr. Freitas wrote Mr. Ault a letter informing him of the
affair between the two in which he used the word "relationship" to
characterize their interactions and stated that "I’ve been as much at
fault" as Ms. Howard and that "[t]his isn’t all my fault."


        Mr. Ault read the letter, called Mr. Freitas into his office, and
asked    him to describe in writing his interactions with Ms. Howard.
Mr.   Freitas      complied,    producing   a    three-page   statement    in   which   he
described the relationship and stated that he was "ending things" because
Ms. Howard had lied to him.            To avoid possible disruptions at NCCF,
Mr. Ault immediately transferred Mr. Freitas to the Iowa Men’s Reformatory
in Anamosa (“Anamosa”),




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a medium-security institution in which Mr. Freitas had been housed before
coming to NCCF.


     Contrary to state and prison policies, Mr. Freitas received no
written notice of his transfer to Anamosa and no oral or written notice
that he had violated any NCCF rules, and he neither met with the NCCF
classification committee (the group that ordinarily considers transfers and
assignments) nor received a hearing.          At the time of Mr. Freitas’s
transfer, it was anticipated that a disciplinary report would follow,
although none did.   Upon his arrival at Anamosa, therefore, Mr. Freitas was
placed   in   administrative   segregation.    When   no   disciplinary   report
followed, he was placed in “on-call” status for thirty days.       Mr. Freitas
slowly regained Level V status, which he had at NCCF, but even then, he
enjoyed fewer privileges than at NCCF.


     Unhappy with all of these events, Mr. Freitas brought an action under
42 U.S.C. § 1983 against Mr. Ault and Ms. Howard, asserting that his due
process rights had been violated when he was transferred to Anamosa without
a hearing and that Ms. Howard had sexually harassed him.         After a bench
trial, the district court found for Mr. Freitas on the due process claim
and for Ms. Howard on the sexual harassment claim.            (Mr. Freitas was
eventually paroled to his sister in Maine but was later convicted of a
different, unrelated offense in Iowa and is now back in the Iowa Department
of Corrections system.)
                                      II.
     On appeal, Mr. Ault argues that the trial court misapplied Sandin v.
Connor, 115 S. Ct. 2293 (1995), in holding that he     violated Mr. Freitas’s
due process rights by involuntarily transferring him to another prison
without a hearing.   We agree.   In Sandin, the Supreme Court redefined the
analysis for determining




                                       3
whether a state has created a liberty interest on the part of prisoners
that would implicate the Due Process Clause of the Fourteenth Amendment.
The Court believed that its prior cases        improperly emphasized the presence
of mandatory language in state statutes and regulations giving rise to the
claimed liberty interests.         Id. at 2299. The Court held that the focus
should properly be on whether the deprivation alleged by the prisoner
imposed “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”        Id. at 2300.    In Mr. Freitas’s case,
the trial court erroneously relied on         mandatory language in certain state
and prison policies to determine that Mr. Freitas had a liberty interest
in not being transferred without a hearing, and then held that the
resulting deprivation of a hearing was a denial of due process because
Mr.   Freitas's    transfer   to   a   higher-security    institution   imposed   an
“atypical and significant hardship,” id., on him.
      The appropriate inquiry is whether the conditions of          Mr. Freitas’s
confinement after his transfer constituted a hardship that could reasonably
be characterized as "atypical and significant," id.          See, e.g., Wycoff v.
Nichols, 94 F.3d 1187, 1189-90 (8th Cir. 1996).             It is undisputed that
Mr. Freitas’s transfer resulted in several changes in the conditions of his
confinement.      Upon his arrival at Anamosa, Mr. Freitas was placed in
administrative segregation ("lock-up") for ten days while NCCF officials
contemplated whether to take disciplinary action against him.             While in
"lock-up," Mr. Freitas was allowed out of his cell for approximately one
hour a day.       After no disciplinary action followed, Mr. Freitas was
released into the general prison population and placed in "on-call" status
for thirty days.    During that time, Mr. Freitas was allowed out of his cell
a few hours each day and could have a limited number of visitors, but he
could neither work nor enjoy phone privileges.




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       Mr. Freitas did not regain Level V status for approximately three
months.     Even then, however, Mr. Freitas enjoyed fewer privileges than he
had at NCCF.     He had fewer phone and visiting rights, his ability to keep
personal items in his cell was restricted, he was required to be in his
cell more often, his movements within the prison were limited more, and he
was in a higher-security facility.         The job that Mr. Freitas eventually
gained at Anamosa paid significantly less than his job at NCCF, and
Mr. Freitas also lost the ability to earn a "good time" work bonus during
the interim between his arrival at Anamosa and his new job, although this
loss evidently had no practical effect on the duration of his sentence,
because he was paroled approximately sixteen years before his release date
and no previously earned time was revoked.


       Mr. Freitas contends that the transfer deprived him of a favorable
parole opportunity by causing his cousin to decide not to sponsor him after
his release.     The trial court found, however, that something that occurred
between him and his cousin during a visit after his transfer caused her to
change her mind.       After a careful review of the record, we believe that
that   finding    is   not   clearly   erroneous   and   therefore   find   that   the
transfer’s effects were limited to the undisputed facts described above.


       We     believe that as a matter of law these conditions do not
constitute an "atypical and significant" hardship, Sandin, 115 S. Ct. at
2300, when compared to the burdens of ordinary prison life.                 Although
Anamosa was a higher-security institution and presented a more restrictive
environment than NCCF, there is no liberty interest in assignment to any
particular prison.     See, e.g., Moorman v. Thalacker, 83 F.3d 970, 973 (8th
Cir. 1996) (transfer from minimum- to medium-security institution).                 We
fail to understand, moreover, why a return to an institution previously




                                          5
inhabited by an inmate whose custody rating matches that of the institution
can be a departure from the ordinary incidents of prison life.              See, e.g.,
Callender v. Sioux City Residential Treatment Facility, 88 F.3d 666, 669
(8th Cir. 1996) (return to prison previously inhabited by inmate upon
revocation of work release).


        Nor are the ten days of administrative segregation endured by
Mr. Freitas, and the thirty days of "on-call" status, the kind of "atypical
and significant" deprivations, Sandin, 115 S. Ct. at 2300, that create a
liberty interest.      See, e.g., Kennedy v. Blankenship, 100 F.3d 640, 642-43
(8th Cir. 1996) (thirty days of "punitive isolation" instead of less-
restrictive administrative segregation); Wycoff, 94 F.3d at 1190 (ten days
of disciplinary detention and 100 days in maximum-security cell); and
Moorman, 83 F.3d at 973 (fifteen days of highest-level disciplinary
detention      and   107   days   of    less-restrictive   disciplinary     detention).
Neither Mr. Freitas’s loss of a higher-paying job and other privileges,
see, e.g., Callender, 88 F.3d at 669, nor the lost ability to earn good
time (when no previously earned bonus time had been revoked and the loss
evidently had no other practical effect on Mr. Freitas’s sentence), see,
e.g., Moorman, 83 F.3d at 973, constitutes an atypical hardship.


        Because we hold that the conditions of             Mr. Freitas’s confinement
after    the    transfer    do    not   represent   an   "atypical   and   significant"
deprivation, Sandin, 115 S. Ct. at 2300, when compared to the ordinary
incidents of prison life, we reverse the trial court’s judgment for
Mr. Freitas.         We accordingly have no need to address Mr. Freitas’s
contention that the amount of the damages awarded to him was inadequate.




                                             6
                                   III.
     On cross-appeal, Mr. Freitas contends that the trial court erred in
finding in favor of Ms. Howard on his sexual harassment claim.      While we
have previously held that prisoners can state a cause of action for sexual
harassment under 42 U.S.C. § 1983,   Watson v. Jones, 980 F.2d 1165, 1166
(8th Cir. 1992), we have never specified the underlying basis for such
claims.   We believe that because the sexual harassment or abuse of an
inmate by a corrections officer can never serve a legitimate penological
purpose and may well result in severe physical and psychological harm, such
abuse can, in certain circumstances, constitute the "'unnecessary and
wanton infliction of pain,'" Whitley v. Albers, 475 U.S. 312, 319 (1986),
quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (opinion of Stewart,
Powell, and Stevens, JJ.), forbidden by the Eighth Amendment.    Accord, see
Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir. 1997); Harris v.
Ostrout, 65 F.3d 912, 915-16 (11th Cir. 1995) (per curiam); and Jordan v.
Gardner, 986 F.2d 1521, 1524-25 (9th Cir. 1993) (en banc).     To prevail on
a constitutional claim of sexual harassment, an inmate must therefore
prove, as an objective matter, that the alleged abuse or harassment caused
"pain" and, as a subjective matter, that the officer in question acted with
a sufficiently culpable state of mind.    See, e.g., Hudson v. McMillian, 503
U.S. 1, 8 (1992).
      Mr. Freitas argues that the trial court erred in its analysis by
holding that Ms. Howard’s actions did not cause him "pain." After a careful
review of the record, we are certain that the trial court did not clearly
err in finding that the relationship between Mr. Freitas and Ms. Howard was
consensual and that Mr. Freitas welcomed it.      The trial court found that
although Ms. Howard initiated the relationship, both she and Mr. Freitas
helped perpetuate it.   Mr. Freitas, for example, initiated the first kiss
between the two, wrote Ms. Howard "hot sexy" letters approximately




                                     7
every other day, and discussed with her the possibility of living together
after his release.    The manner in which Mr. Freitas described the nature
of the relationship, moreover, suggests that Mr. Freitas did not find
Ms. Howard’s attention unwelcome.            Mr. Freitas himself used the term
"relationship" to describe the interactions between him and Ms. Howard (an
unlikely   characterization     if    their   arrangement     was    not,   in   fact,
voluntary), tacitly admitted that he bore some responsibility for the
affair by writing that "[t]his isn’t all my fault," and indicated that the
reason that he ended the relationship was because he felt hurt that she had
lied to him.


     The   record    contains    no    evidence,    other     than   Mr.    Freitas's
unsubstantiated assertions, supporting his claim that he succumbed to
Ms. Howard’s advances because she was his boss and he feared the possible
negative consequences of reporting her actions.             In short, there is not
much evidence suggesting that Ms. Howard put Mr. Freitas in a "no-win"
situation, and, more to the point, there is ample evidence supporting the
trial court’s finding that their relationship was consensual in the freest
sense of the word.      Without deciding at what point unwelcome sexual
advances become serious enough to constitute "pain," we hold that, at the
very least, welcome and voluntary sexual interactions, no matter how
inappropriate, cannot as matter of law        constitute "pain" as contemplated
by the Eighth Amendment.        Because we hold that Mr. Freitas has not
established the existence of the objective component of a cause of action
under the Eighth Amendment, we need not discuss the subjective component.
We therefore reject Mr. Freitas’s argument that the trial court erred in
finding for Ms. Howard on his sexual harassment claim.




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                                   IV.
     For the foregoing reasons, we reverse the trial court’s holding that
Mr. Ault violated Mr. Freitas’s due process rights by transferring him to
Anamosa without a hearing.    We affirm the trial court’s holding with
respect to the sexual harassment claim against Ms. Howard.   Finally, we
remand the case to the trial court for the entry of an appropriate
judgment.


     A true copy.


            Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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