           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2       Austin et al. v. Wilkinson et al.        Nos. 02-3429/3816
        ELECTRONIC CITATION: 2004 FED App. 0176P (6th Cir.)
                    File Name: 04a0176p.06                                                        _________________
                                                                                                        COUNSEL
UNITED STATES COURT OF APPEALS
                                                                           ARGUED: Todd R. Marti, OFFICE OF THE ATTORNEY
                  FOR THE SIXTH CIRCUIT                                    GENERAL, Columbus, Ohio, for Appellants. Jules Lobel,
                    _________________                                      Pittsburgh, Pennsylvania, for Appellees. BRIEF: Todd R.
                                                                           Marti, OFFICE OF THE ATTORNEY GENERAL,
 CHARLES E. AUSTIN et al.,     X                                           Columbus, Ohio, for Appellants. Jules Lobel, Pittsburgh,
         Plaintiffs-Appellees, -                                           Pennsylvania, Raymond Vasvari, AMERICAN CIVIL
                                -                                          LIBERTIES UNION OF OHIO FOUNDATION, Cleveland,
                                -              Nos. 02-3429/3816           Ohio, Alice Lynd, Nile, Ohio, for Appellees.
          v.                    -
                                 >                                           MOORE, J., delivered the opinion of the court, in which
                                ,                                          FORESTER, D. J., joined. ROGERS, J. (pp. 24-31),
 REGINALD WILKINSON et al.,     -
      Defendants-Appellants. N                                             delivered a separate opinion concurring in part and dissenting
                                                                           in part.

          Appeal from the United States District Court                                            _________________
           for the Northern District of Ohio at Akron
          No. 01-00071—James Gwin, District Judge.                                                    OPINION
                                                                                                  _________________
                   Argued: October 30, 2003
                                                                              KAREN NELSON MOORE, Circuit Judge. Plaintiffs-
               Decided and Filed: June 10, 2004                            Appellees Charles E. Austin et al.,1 (“Inmates”) all inmates at
                                                                           the Ohio State Penitentiary (“OSP”) in Youngstown, Ohio,
        Before: MOORE and ROGERS, Circuit Judges;                          filed this § 1983 suit as a class action against Defendants-
              FORESTER, Chief District Judge.*




                                                                               1
                                                                                The a dditional named plaintiffs are Robert Baksi, Michael Benge,
                                                                           Alonzo L. Bonne r, August Cassano, David E. Clark, James DeJarnette,
                                                                           Roy D. Donald, David Easley, Brian K. Eskridge, Keith Gardner, Roger
                                                                           Lee Hall, Frederick O. Harris, Jr., Daryl Heard, Edward O . Hodge, Orsino
                                                                           Iacovone, Kunta Kenyatta, Stacy Lane, James D. Mitchell, Emanuel B.
    *
                                                                           Newell, John W. Perotti, Lamar Preston, Jason H. Robb, Kevin B. Roe,
      The Honorable Karl S. Forester, Chief United States District Judge   Richard Siggers, Eric Swofford, Lahray Thompson, Edward A. T illey,
for the Eastern District of Kentucky, sitting by designation.              and M ark Trawick.

                                   1
Nos. 02-3429/3816          Austin et al. v. Wilkinson et al.       3    4    Austin et al. v. Wilkinson et al.    Nos. 02-3429/3816

Appellants Reginald Wilkinson et al.,2 Ohio Department of               facility, thereby making the rest of the general prison
Rehabilitation and Correction officials (“ODRC Officials”),             population more safe and easier to control. Ohio’s supermax,
alleging Eighth Amendment violations as well as procedural              which is designated a high-maximum-security prison, was
due process claims relating to their placement at the OSP               built in response to an April 1993 riot at the Southern Ohio
facility, which is a supermaximum, or supermax, facility. A             Correctional Facility (“SOCF”). Prior to the construction of
class was certified pursuant to Federal Rule of Civil                   the 504-bed OSP, Ohio’s most secure prison was the SOCF,
Procedure 23(b)(2), and the Eighth Amendment claims,                    a maximum-security prison. Within the SOCF is an even
related primarily to medical care and the provision of outdoor          more secure cellblock, the J-1 cellblock, which houses twenty
recreation, were settled. The due process claims for                    cells. Before the OSP opened, Ohio did not fill the J-1 cells;
declaratory and injunctive relief were then tried to the district       instead, it did not have enough maximum-security cells to
court, which rendered a judgment for the Inmates and entered            house inmates at that security designation. From these facts,
the injunctive orders at issue.                                         the district court concluded that the surplus of high-
                                                                        maximum-security cells led to a “because we have built it,
   On appeal, the ODRC Officials raise two claims of error:             they will come” mentality, with the surplus of maximum-
that the district court applied the wrong legal standards in            security inmates leading to placement of inmates at OSP who
finding a constitutional violation, and that even if a violation        did not meet the high-maximum-security requirements,
was correctly found, the remedial orders entered violate                contrary to both corrections policy and constitutional norms.
18 U.S.C. § 3626, requiring particularized fact-finding by              See Austin v. Wilkinson (Austin I), 189 F. Supp. 2d 719, 724
federal district courts interfering with state prison practices.        (N.D. Ohio 2002).
Because we conclude that the district court did not err in
determining that a liberty interest existed in the prison                  When the OSP first received inmates in May 1998, it did so
placement at issue and in modifying the procedures that                 in a concededly problematic and confused manner.
govern that placement, we AFFIRM that portion of the                    Appellants’ Br. at 11. On August 31, 1998, the department
district court’s judgments; because the district court erred,           “attempted to establish some predictability to placement at the
however, in modifying substantive Ohio prison regulations,              OSP by issuing Department of Rehabilitation and Correction
we REVERSE AND REMAND that portion of the                               Policy 111-07”; the version of this policy in effect when the
judgments.                                                              Inmates filed their complaint (“old 111-07”) became effective
                                                                        January 28, 1999. Austin I, 189 F. Supp. 2d at 727.
                      I. BACKGROUND                                     Placement at the OSP was synonymous with inmate
                                                                        classification at a high-maximum-security level. Old 111-07
  In May 1998, the OSP, Ohio’s supermax prison facility,                provided for a classification committee (made up of a deputy
opened for business. Supermax facilities, in operation in               warden and a mental health professional from the inmate’s
most of the states and in the federal prison system, represent          current institution, and a third official designated by the
an attempt to concentrate the “worst of the worst” in one               warden), which would receive a written statement from the
                                                                        prisoner as well as information provided by staff, and make
    2
                                                                        a recommendation to the warden. The warden then approved
     Named additionally as defendants are Stephen J. Huffman, Bernard   or disapproved the recommendation, and sent the information
J. Ryznar, Todd E. Ishee, Bruce A. Martin, Deborah Nixon Hugh es,       along to the Bureau of Classification (“Bureau”). Even if
Cheryl Jorgensen-Martinez, Manish B . Joshi, Patrick F. Biggs, Audrey
Sandor N ietzel, and M atthew Meyer.                                    both the classification committee and the warden agreed that
Nos. 02-3429/3816        Austin et al. v. Wilkinson et al.    5    6       Austin et al. v. Wilkinson et al.          Nos. 02-3429/3816

high-maximum-security classification was inappropriate for         to telephones and counsel, outside recreation, and
an inmate, the Chief of the Bureau could still assign the          communication with other persons. Id.
inmate to OSP. Placement at OSP renders an inmate
ineligible for parole during his time there. Austin I, 189 F.         On January 1, 2001, the Inmates filed their complaint,
Supp. 2d at 728.                                                   stating both procedural due process claims regarding
                                                                   placement at OSP, the claims at issue on appeal, and Eighth
  Under this policy, though, problems continued. Some of           Amendment claims regarding inadequate medical and
the more troubling instances of this haphazard system              psychiatric care, inadequate outdoor recreation facilities, and
occurred when the Bureau would, without stating its reasons,       harsh restraints used at OSP. The Eighth Amendment claims
overrule the recommendation of both the classification             were settled below. See Austin v. Wilkinson, No. 4:01-CV-71
committee and the warden and either place or maintain the          (N.D. Ohio Apr. 5, 2002) (order approving settlement
placement of an inmate at OSP; when inmates who would              agreement). A Fed. R. Civ. P. 23(b)(2) class was certified,
otherwise be recommended for parole were ineligible because        and the case was scheduled for trial in January 2002. On the
of a suspect OSP placement; when multiple jumps in security        eve of trial, the ODRC released a new version of 111-07
levels happened as a result of a single incident; when             (“new 111-07”), and it is the district court’s ordered
decisions were made with little factual support; and when          modifications to new 111-07, made after a bench trial, that are
decisions were based solely on the use or smuggling in of          at issue on this appeal. In old 111-07, prisoners were
small amounts of drugs. Id. at 734-36.                             classified as high-maximum-security and maximum-security;
                                                                   in new 111-07, the security levels are instead level five and
   The goal of the OSP, to separate the most dangerous             level four. When the district court issued its decision, only
prisoners from the rest of the prison population, is achieved      level five prisoners were housed at OSP, but the appellees
primarily through solitary confinement, of a type noticeably       urge this court to take judicial notice of the decision by
different than segregation at other Ohio prisons. Inmates at       Defendant Wilkinson to house inmates classified at both
OSP spend twenty-three hours a day in their single cells,          levels four and five at OSP. Appellees’ Br. at 5 n.1. New
measuring approximately 89.7 square feet. Id. at 724. These        111-07 details both the substantive reasons for reclassification
cells are further isolated from the outside world by the           and the procedures followed to reclassify, as well as the
installation of metal strips on the bottom and sides of the cell   conditions imposed on inmates in those classification levels.3
doors that prevent inmates from communicating with one             Various prison officials are empowered to initiate placement
another. Id. During the one hour per day that inmates can          into classification level five,4 using the “Security Designation
leave their cells, they have access to two indoor recreation
rooms; most inmates have recreation alone, although a limited
number may have recreation with one other prisoner. Id.                3
                                                                        The procedural information and quoted language are taken from
Inmates having visitors are required to be strip-searched when     new 111-07.
they leave and reenter the cellblock, even though they are
isolated from their visitors by solid windows. Id. at 725.             4
                                                                         W hen the district court made its findings and d ecision , only
Additional factual findings by the district court differentiate    prisoners classified as level five were placed at OSP. As noted ab ove, this
life at OSP from segregation conditions at other Ohio prisons,     is no longer the case, as the ODR C is now placing level four prisoners at
including extra limitations on personal property rights, access    OSP. The proced ure for placement at level four is essentially the same as
                                                                   that set out in new 111-07 and found constitutionally inadequate by the
                                                                   district court. Therefore, inmates are being placed at OSP without the
Nos. 02-3429/3816            Austin et al. v. Wilkinson et al.           7    8    Austin et al. v. Wilkinson et al.   Nos. 02-3429/3816

Long Form,” which provides a score sheet for inmates based                    Bureau will then review the recommendation and any
on their age, the severity of the offense triggering the                      objection and make a final decision. Additionally, within
initiation of reclassification hearings, prior prison experience,             thirty days of placement at OSP, the OSP staff reviews a
prior violent behavior, pre-prison gang activity, and escape                  reclassified inmate’s placement, and if they recommend a
attempts; the prison official is also empowered to override the               security reduction with which the OSP warden agrees, that
numerical score for any of the reasons identified by 111-07 as                recommendation is sent to the Bureau. Review of OSP
grounds for level five classification. These include assaultive               inmates’ security levels is made at least annually and follows
and/or predatory behavior; the nature of the inmate’s                         essentially the same process as the initial classification
conviction; leadership roles in riots or disturbances; the                    hearing.
possession of contraband; the identification of the inmate as
a leader of a “security threat group” (prison gang); escape                     In its opinion, issued on February 25, 2002, the district
attempts; “an ability to compromise the integrity of [prison]                 court found the process specified in new 111-07 lacking. See
staff”; knowing exposure of others to HIV or hepatitis; or a                  Austin I, 189 F. Supp. 2d at 750-52. The district court
chronic inability to adjust to a lower security level. On                     identified the following deficiencies: that inmates are not
initiation of the reclassification, the warden establishes a                  given notice of all the evidence that may be relied upon in
classification committee to review the inmate’s behavior and                  their classification hearings; that inmates are not allowed to
determine whether in fact the inmate meets one of the level                   call witnesses; that the placement criteria give insufficient
five criteria. That committee is to hold a hearing to review                  notice of the amount of drugs in possession that would trigger
the form and any other relevant information; 111-07 entitles                  level five placement; that the placement criteria are
inmates to forty-eight hours’ prior notice of that hearing and                unnecessarily vague with regard to the gang activity that
the opportunity to appear and make both oral and written                      would trigger a placement; that the final decisionmaker, the
presentations. The classification committee is to “document                   Bureau of Classification, was not required to describe the
information” presented by staff and the inmate, and determine                 facts found and reasoning used in making its placement and
whether the inmate should be placed in level five. That                       reclassification decisions; that the inmate is not given
recommendation is then forwarded to the warden. If the                        adequate notice of the information to be considered at his
warden approves the recommendation, both the                                  reclassification hearing; and that adequate notice of the
recommendation and the approval are forwarded to the                          conduct necessary for the inmate to leave the OSP is not
Bureau of Classification for final decision. (If the warden                   given. The district court then ordered the parties to file
does not approve the recommendation, the process ends and                     proposed injunctive orders; the ODRC Officials’ proposed
the inmate is not classified as level five). The inmate shall be              injunctive order was one and a half pages in length. On
notified of the warden’s approval, and may file a formal                      March 26, 2002, the district court issued an injunction
objection with the Bureau within fifteen days of notice. The                  directing the ODRC Officials to correct each of the
                                                                              deficiencies it had found and issued an accompanying
                                                                              judgment terminating the action under Rule 58. See Austin v.
                                                                              Wilkinson (Austin II), 204 F. Supp. 2d 1024 (N.D. Ohio
procedural protections ordered by the d istrict court. Because the            2002). The ODRC Officials filed a timely notice of appeal on
complained-of deprivation of liberty is not reclassification by itself, but   April 17, which was docketed as Sixth Circuit Appeal
placement at OSP which results from a level five classification, this seems   Number 02-3429. On April 24, they filed with the district
a particularly disingenuous way to eva de the district co urt’s ord er in
advance of appellate review.                                                  court a revised version of 111-07 (“revised 111-07"). On
Nos. 02-3429/3816             Austin et al. v. Wilkinson et al.           9    10    Austin et al. v. Wilkinson et al.    Nos. 02-3429/3816

May 15, the district court ordered that policy adopted with                    #58 v. Gary's Elec. Serv. Co., 340 F.3d 373, 378 (6th Cir.
slight changes. On June 6, 2002, the ODRC Officials filed a                    2003).
Rule 60(b) motion,5 which the district court denied on
July 12, ruling that the defendants were not surprised by its                  C. Due Process Rights
judgment, and that it had the authority to order the injunctive
relief at issue. On July 12, the ODRC Officials filed a notice                   1. Liberty Interest under Sandin v. Conner
of appeal from both the district court’s denial of their Rule
60(b) motion and its May 15 order adopting revised 111-07,6                       Inmates challenge the procedures for classification at level
docketed as Appeal No. 02-3816.                                                five under the Due Process Clause of the Fourteenth
                                                                               Amendment, claiming that classification at that level and
                           II. ANALYSIS                                        concomitant placement at OSP implicates a state-created
                                                                               liberty interest, and that the procedures in place before trial
A. Jurisdiction                                                                were inadequate to protect this interest. Therefore, our
                                                                               threshold inquiry is whether a state-created liberty interest
  The underlying civil rights action was brought under                         exists with regard to placement in Ohio’s supermax prison.
42 U.S.C. § 1983. The district court had original jurisdiction                 This inquiry is controlled by Sandin v. Conner, 515 U.S. 472
under 28 U.S.C. § 1331. This court has jurisdiction under                      (1995), which mandates that a state creates a liberty interest
28 U.S.C. § 1291.                                                              in avoiding certain prison conditions only where those
                                                                               conditions are an “atypical and significant hardship on the
B. Standard of Review                                                          inmate in relation to the ordinary incidents of prison life.” Id.
                                                                               at 484. Prior to Sandin, a state created a liberty interest
  The ODRC Officials appeal from the grant of a permanent                      through using “‘language of an unmistakably mandatory
injunction and the denial of a motion for relief from the                      character’ such that the incursion on liberty would not occur
judgment, both of which are reviewed for abuse of discretion.                  ‘absent specified substantive predicates.’” Id. at 480 (quoting
See Herman Miller, Inc. v. Palazzetti Imp. & Exp., Inc., 270                   Hewitt v. Helms, 459 U.S. 460, 471-72 (1983)). Sandin
F.3d 298, 317 (6th Cir. 2001); Mallory v. Eyrich, 922 F.2d                     shifted the focus from parsing the language of state statutes
1273, 1279 (6th Cir. 1991). In determining whether the                         and regulations to examining the severity of the conditions to
district court abused its discretion, we give great deference to               which an inmate would be subject.
the district court, reviewing its legal determinations de novo,
but only disturbing its factual findings if they are clearly                      The district court thus properly made factual findings as to
erroneous. Elec. Workers Pension Trust Fund of Local Union                     the conditions in OSP compared to the conditions in other
                                                                               Ohio prisons, specifically in the segregated units of
                                                                               maximum-security prisons, the most severe non-OSP
    5
     The OD RC O fficials asked for relief under Rule 60(b)(6), (b)(1),        conditions in the Ohio system. The court found that the
and (b)(4).                                                                    extreme isolation visited upon the inmates at OSP, the lack of
                                                                               any outdoor recreation, the limitations upon personal property
    6
      The OD RC Officials had m oved on June 6, 20 02, sim ultaneo us with     rights and access to telephones and counsel, and, finally, the
their Rule 60(b) motion, for additional time to file a notice of appeal from   ineligibility of OSP inmates for parole, all combined to create
the district court’s May 15 order. An extension was granted to July 15,        a significant and atypical hardship. The ODRC Officials’
2002, pursuant to Federal Rule of Appellate Procedure 4(a)(5).
Nos. 02-3429/3816             Austin et al. v. Wilkinson et al.           11     12    Austin et al. v. Wilkinson et al.    Nos. 02-3429/3816

sole challenge on appeal to these careful findings is that the                   have adopted the novel and restrictive control group urged by
district court erred by comparing conditions at OSP to                           the ODRC Officials, which would as a matter of law make it
conditions at other Ohio prisons. They argue instead that the                    impossible for any inmates but those in the most harsh prison
proper baseline in determining atypicality is the conditions at                  in the country to make out a case for protection under Sandin.
other supermax facilities around the country. Other circuits
that have decided the question have split over whether the                          The ODRC Officials point only to the Supreme Court’s
proper control group is the general prison population or                         decision in Olim v. Wakinekona, 461 U.S. 238 (1983), and
inmates in typical segregation conditions. Compare Beverati                      dicta in Wagner, 128 F.3d at 1173, to support their argument.
v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (finding “the                        Olim involved a challenge to an interstate prison transfer; the
conditions [at issue] were more burdensome than those                            Court held that no liberty interest was created by Hawaii state
imposed on the general prison population” although not                           prison regulations, and that the Due Process Clause of its own
sufficiently atypical), and Keenan v. Hall, 83 F.3d 1083, 1089                   force did not protect any liberty interest deprived by an
(9th Cir. 1996) (“a major difference between the conditions                      interstate prison transfer. Olim, 461 U.S. at 245-49. But
for the general prison population and the segregated                             Olim’s holding has limited applicability when dealing with a
population triggers a right to a hearing”), with Griffin v.                      state-created liberty interest; that the Due Process Clause does
Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (administrative                         not of its own force protect against interstate transfers has
custody is not “extraordinary” and “stays of many months are                     little to do with whether Ohio regulations create a liberty
not uncommon”), and Brooks v. DiFasi, 112 F.3d 46, 49 (2d                        interest in remaining outside of a supermax prison. Sandin
Cir. 1997) (explicit factual comparison between                                  requires a situationally-based factual analysis; if it is typical
administrative segregation and disciplinary segregation is                       that an Ohio prisoner experiences conditions similar to those
necessary). See also Hatch v. District of Columbia, 184 F.3d                     of OSP, then state lines might truly be irrelevant. That,
846, 847 (D.C. Cir. 1999) (appropriate comparison is “the                        however, is not the case; of 44,000 prisoners in the Ohio
most restrictive conditions . . . routinely impose[d] on inmates                 system, only twenty to thirty have been transferred out of
serving similar sentences”); Wagner v. Hanks, 128 F.3d 1173,                     state — a number that itself might give rise to atypicality, if
1177 (7th Cir. 1997) (appropriate comparison is to the                           not hardship, if substantive state law limiting officials’
conditions of nondisciplinary segregation in the state’s most                    discretion in transfer existed — and not a single one has been
restrictive prison).7 None of the courts of appeals, however,                    shown to have been transferred to a supermax. See Hatch,
                                                                                 184 F.3d at 857 (“What matters, therefore, is not simply the
                                                                                 possibility of transfer but also its likelihood.”). Olim, to the
                                                                                 contrary, relied heavily on the fact of interstate transfer as a
    7
      The Fifth Circuit has also remanded at least one case to a district        common occurrence, suggesting that no reasonable
court with instructions to determine the prope r base line if San din is         expectation existed that any particular inmate would serve his
triggered. See Wilkerson v. Stalder, 329 F.3d 43 1, 436 (5th Cir. 2003).         sentence within his state of conviction. Olim, 461 U.S. at
But see Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 19 95) (“it is difficult
to see that any other deprivations in the prison context, short of those that    245-47. Even if the proper comparison in this case were
clearly impinge on the duration of confinement, will henceforth qualify          nationwide rather than statewide, the appropriate question
for constitutional ‘liberty’ status”). Carson v. Johnson, 112 F.3d 818, 821      would be whether the OSP represented an atypical hardship
(5th Cir. 1997), cited by the district court, does not in fact analyze state-    as compared to, at most, the typical conditions in
created liberty interests under San din, but instead evaluates fundamental       administrative or disciplinary segregation to which transferred
liberty rights under the three-strikes provision of the Prison Litigation
Reform Act (“PLR A”).                                                            Ohio prisoners are subject, not those in supermaxes.
Nos. 02-3429/3816               Austin et al. v. Wilkinson et al.            13     14    Austin et al. v. Wilkinson et al.     Nos. 02-3429/3816

   Finally, Wagner is not to the contrary. First, as the Inmates                      Ultimately, whether OSP is compared to the general prison
point out, the language relied upon by the ODRC Officials in                        population of Ohio, or instead to inmates in typical
support of their claim is dicta. See Wagner, 128 F.3d at 1176.                      segregation conditions, which was the baseline used by the
Second, and more important, the Wagner court itself in its                          district court, OSP constitutes an atypical and significant
analysis misses the important distinction between cases                             hardship under Sandin, such that inmates enjoy a liberty
narrowly defining the contours of the protection of the Due                         interest in not being placed at OSP absent the state-mandated
Process Clause of its own force and those deciding when state                       substantive predicates set out in new Policy 111-07. It is
laws create a liberty interest. The Supreme Court has                               therefore unnecessary to determine which is the proper
repeatedly held that transfers in and of themselves do not                          baseline for Sandin comparisons in order to decide this case,
implicate due process interests (although it has not to date                        but we reject emphatically the ODRC Officials’ argument that
dealt with transfer to a supermax prison), see Olim, 461 U.S.                       the baseline should be out-of-state supermax prisons.
at 238; Meachum v. Fano, 427 U.S. 215, 229 (1976), but the                          Whatever the “ordinary incidents of prison life” may
Court has never held that state laws cannot create a liberty                        encompass, they must be decided with reference to the
interest in avoiding a transfer to a particularly harsh facility.                   particular prison system at issue, and can only be truly
This key distinction goes wholly unaddressed by the ODRC                            “ordinary” when experienced by a significant proportion of
Officials.8                                                                         the prison population.
                                                                                      2. The Process That Is Due
     8                                                                                Once a liberty interest has been established under Sandin,
      This distinction also partially explains why Moore v. Litscher, No.
02-1461, 20 02 W L 31805012 (7th Cir. Nov. 27, 2002), and Nash v.                   we must turn to the question of what process is due to protect
Litscher, No. 02-1705, 2002 W L 31444476 (7th Cir. Oct. 23, 2002), cited            that interest. At issue on appeal is the propriety of a set of
by the concurrence for the proposition that avoidance of placement at a             modifications made by the district court to the ODRC’s
supermax is not in and of itself a liberty interest under San din, are
inapposite. Moore cited to Olim in holding, “Prisoners do not have a
                                                                                    policy governing classification at level five. Most of these
federally protected liberty interest in being house d in a p articular facility.”   modifications concern the procedures used to classify
2002 WL 31805012 at *1. With respect to a state liberty interest, the               inmates, but three modifications are substantive predicates to
court held tha t “a failure to comply with state procedural rules does not          OSP placement and retention. We will analyze the procedural
violate the federal constitution.” Id. The Moore court failed to partake            modifications in greater depth below under the familiar due
in any ana lysis under San din, and the case cannot stand for the
proposition that plac ement at a sup erma x could not implicate a liberty
                                                                                    process analysis of Mathews v. Eldridge, 424 U.S. 319
interest created by the state. Nash noted simply that “Nash does not have           (1976), but the substantive modifications can be dealt with
a liberty interest in his prison placement,” and cited to an earlier case,          more simply.
Whitford v. Boglino, 63 F .3d 5 27, 5 32 (7th Cir. 1995). 2002 WL
31444476 at *2. Whitford held that no federal interest existed in prison                 a.   Modifications to Ohio’s Substantive Prison
placem ent, and that Illinois state regulations, so far as the court                          Regulations
“understoo d,” did no t create such a liberty interest. Whitford also dealt
with transfer to a maximum security prison, rather than a supe rmax. All
three of these cases, Whitford, Mo ore, and Nash , were argued pro se in the          Prior to the district court’s modifications, inmates could be
Seve nth Circ uit. W e do not think they can stand for the proposition that         placed at OSP for any contraband activity, no matter how
careful factual findings in the district court dem onstrating severe hardship       minimal. As its first substantive modification, the district
in prison conditions, atypical in a prison system, can never rise to the            court directed that the policy be rewritten to specify a quantity
level of a protected liberty interest without a parole deprivation.
Nos. 02-3429/3816           Austin et al. v. Wilkinson et al.        15    16    Austin et al. v. Wilkinson et al.     Nos. 02-3429/3816

of contraband activity, and for drug activity, the district court          See Washington v. Harper, 494 U.S. 210, 219-222 (1990)
stipulated that the threshold amount should “reflect a level               (reviewing a state court’s substantive as well as procedural
that would subject an inmate to incarceration for at least a               modifications to state correctional regulations). Therefore,
third degree felony,” or alternately the court allowed                     regardless of their inherent soundness, these three
“placement for multiple violations involving lesser                        modifications must fail, as they order the ODRC to alter its
quantit[ies] of drugs.” Austin II, 204 F. Supp. 2d at 1028.                substantive rules governing OSP placement and retention.
The district court’s second substantive modification was to
the “security group threat” predicate for classification,                    While the district court correctly identified adequate notice
directing the ODRC Officials to modify the criteria to require             as a requirement of due process when making these changes,
a greater showing of involvement in such groups. Third, the                see Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101,
district court required that only behavior in the five years               1104-05 (6th Cir. 1995), we conclude that each of the
prior to a retention decision should be considered, and that an            regulations provides sufficient notice and that the
inmate with three years free of violent behavior and two years             modifications made by the district court are in fact
free of major misconduct “should generally qualify for                     substantive modifications. For instance, new 111-07 states
reclassification” to a lower level and transfer out of OSP, with           that any amount of drugs can trigger a reclassification
an exception to both of these rules if an inmate’s “prior                  hearing; altering the policy to require a specified amount does
conduct during incarceration resulted in death or extreme                  not improve upon that notice but instead limits the substantive
bodily harm.” Id.                                                          discretion of the ODRC Officials. Similarly, the security
                                                                           group modification alters the substantive grounds for
   The power of the federal courts to order modifications in               placement at OSP, rather than the process used in determining
state prison policies extends only as far as is necessary to               that placement. And the modification to the retention criteria
protect federal rights. The Inmates do not argue and we do                 also limits the substantive discretion of the Officials. While
not decide whether placement at OSP implicates either the                  the due process requirement of notice applies in the prison
Eighth Amendment or the substantive portion of the Due                     context as well as outside of it, albeit slightly differently, see
Process Clause.9 The federal right at issue in this case, then,            United States v. Chatman, 538 F.2d 567, 569 (4th Cir. 1976),
is defined solely in relation to the substantive limits placed on          any deficiencies in the notice provided by these provisions are
the discretion of the ODRC officials by state law itself.                  properly corrected through case by case “as applied”
Therefore, the district court only had the power to order                  challenges to the regulations, rather than striking the
federally mandated process in a substantive inquiry otherwise              regulations down on their face. See Parker v. Levy, 417 U.S.
governed by the state. The district court was thus without                 733, 755-56 (1974); Adams v. Gunnell, 729 F.2d 362, 369-70
power to order the state officials to modify the substantive               (5th Cir. 1984). We therefore reverse those portions of the
predicates which governed placement and retention at OSP.                  district court’s judgments that altered the contents of these
                                                                           three substantive regulations.
    9
      W hile the Inmates challenged certain conditions at OSP under the
Eighth Amendment, claims that were settled below, they do not argue that
either the Eighth Amendment or the substantive protections of the Due
Proc ess Clause create liberty interests in freedom from transfer to OSP
that require due process protection. We express no opinion as to the
viability of such a claim.
Nos. 02-3429/3816             Austin et al. v. Wilkinson et al.           17     18     Austin et al. v. Wilkinson et al.             Nos. 02-3429/3816

     b. Procedural Modifications                                                 that a particular decision is “forward-looking”; instead,
                                                                                 reference must be made to the interests at stake, for the
   That a liberty interest exists in avoiding classification at                  inmate and for the state. It is not the nature of the decision
level five and concurrent placement in OSP is in many ways                       which strikes the due process balance; it is the nature of the
the easy half of the Sandin analysis. What is much less clear                    interests on both sides of that balance.11 With that in mind,
after Sandin is how to determine what process is due to                          we approve of the district court’s grounding of its decision in
protect that interest. Before Sandin, state-created liberty                      the due process balancing test outlined in Mathews v.
interests of prisoners were either protected by an adversary                     Eldridge, 424 U.S. at 335, and consider the procedural
hearing on the record following Wolff v. McDonnell, 418 U.S.                     modifications in light of that test. Mathews
539, 563-73 (1974), or a more free-form hearing following
Hewitt, 459 U.S. at 477. Wolff dealt with the process due in                       requires consideration of three distinct factors: First, the
finding a disciplinary infraction punished by the rescission of                    private interest that will be affected by the official action;
good-time credits; Hewitt involved a challenged placement in                       second, the risk of an erroneous deprivation of such
administrative segregation, pending the outcome of an                              interest through the procedures used, and the probable
investigation into misconduct.          Cases following the                        value, if any, of additional or substitute procedural
Hewitt/Wolff split have classified various factual situations                      safeguards; and finally, the Government’s interest,
depending upon the category into which the challenged                              including the function involved and the fiscal and
process fell: disciplinary or administrative, historical or                        administrative burdens that the additional or substitute
prospective, objective or subjective, Wolff or Hewitt. On                          procedural requirement would entail.
appeal, the ODRC Officials assert that this mechanical
dichotomy still has force after Sandin, that classification at                   Id.
level five and placement at OSP is a forward-looking, Hewitt-
type procedure, and that our inquiry should end there, with a                       The district court made fifteen specific modifications to
decision that only “Hewitt process” is due. We are                               new 111-07, including the improper substantive modifications
convinced, however, that Sandin called into question not only                    dealt with above. A first set deals with the classification
the mechanistic way in which the circuit courts previously                       hearing itself, and closely tracks Wolff. First, when
found liberty interests in prison regulations, but also the                      classification proceedings are initiated, the notice already
mechanistic fashion in which they applied the Hewitt/Wolff                       stipulated by new 111-07 shall include an exhaustive list of
dichotomy.10 After Sandin, both steps of the analysis — the                      the reasons to be considered for placement and a summary of
creation of a liberty interest and the determination of the
process due to protect that interest — must carefully reference
the severity of the deprivation at stake. It is not enough to say                      11
                                                                                         W e do not think that we d iffer so much from Judge Rogers in
                                                                                 describing this balance; we agree that the type of decision being mad e will
    10
                                                                                 affect the private interest, the government interest, and the value o f certain
       Like Judge Rogers, we are convinced that the “Hewitt/Wo lff               procedural safegua rds. W e only emph asize tha t the type of decisio n is
dicho tomy” is not a viable form o f analysis; we note later that the district   not, as the OD RC O fficials would have us hold, the only factor necessary
court’s procedural modifications track Wo lff only because the ODRC              to determine what procedure is due. We believe, however, that in the face
officials had argued that the district court went beyond Wo lff in ordering      of the substantial factual findings of the district court as to haphazard
certain modifications, most of whic h were directed at the “appellate”           ODRC place ments, the pro cedural req uirement of no tice is particularly
process created by the ODRC.                                                     impo rtant, and give gre at weight to its value in increasing acc uracy.
Nos. 02-3429/3816       Austin et al. v. Wilkinson et al.   19    20     Austin et al. v. Wilkinson et al.          Nos. 02-3429/3816

the evidence to be presented. Second, the inmate shall be           The first factor of the Mathews balancing test, the private
allowed to present witnesses and documentary evidence at          interest at stake, is significant; placement at OSP is indefinite
classification hearings, where “permitting him to do so will      and reviewed only annually, unlike placement in disciplinary
not be unduly hazardous or burdensome to institutional safety     segregation in the Ohio prison system, which lasts only thirty
or correctional goals.” J.A. at 530 (citing Wolff, 418 U.S. at    days, or administrative segregation, which is reviewed every
566). Finally, a record is to be made of the proceeding itself,   thirty days. Prisoners placed at OSP are deprived of all
and if the ODRC wishes to rely on confidential witnesses, it      significant human contact and have other restrictions placed
must indicate that reliance and disclose as much of the           upon their movement and their personal privileges; they are
confidential testimony as possible.                               also ineligible for parole during their stay at OSP. In this first
                                                                  factor, Sandin affects the due process balance: because only
   A second group of modifications required by the district       those conditions that constitute “atypical and significant
court centers on the administrative appellate procedure laid      hardships” give rise to liberty interests, those interests will
out in new 111-07. Because no comparable appellate                necessarily be of a weight requiring greater due process
procedure was at issue in Wolff, see 418 U.S. at 565, these       protection.12 As to the second factor, the risk of error, the
requirements do not track that case as closely. The district      district court made specific findings concerning past
court found that the previous system of administrative review,    erroneous and haphazard placements at OSP, which go
in which each intervening appellate decisionmaker had             unchallenged on appeal. We will consider the probative value
plenary power to reverse the prior decisionmaker without any      of particular procedures in the next paragraph. As to the third
statement of reasons for the decision given to the inmate, had    factor, the ODRC clearly has an interest in guaranteeing the
led to suspect inmate classifications. The specific changes       safety of its staff and inmates through the swift isolation of
ordered by the district court were: that the inmate is to         dangerous inmates. However, the ODRC has a mechanism to
receive the classification committee’s recommendation and         assure safety, one which does not require extensive process,
notice of his right to and method of appeal; that the warden is   and which, unlike OSP placement, is easily and swiftly
to engage in “independent review” of the committee’s              reversible in the case of error: administrative segregation.
recommendation, and if in doing so, relies upon a confidential
witness statement not already made known to the prisoner,           Looking at each of the modifications ordered by the district
shall follow the procedure outlined above, including allowing     court individually, we remain unconvinced that the district
the inmate to respond in writing; that the warden shall, if she   court abused its discretion in finding that each procedural
approves the recommendation, send a copy of that
recommendation to the inmate; and that the Bureau of
Classification shall follow the same procedure in relying on           12
new confidential witness statements, shall allow the inmate to           W e mean by this statement only to com pare those liberty interests
submit documentary evidence, and will, if the inmate is           found to exist post-San din with those found to exist pre-San din. Because
                                                                  the Court has made clear that many of the liberty interests found by courts
recommended for level five placement, record a detailed and       which would have in the past required certain pre-deprivation processes
specific justification for the decision. Finally, the district    are no longer viab le liberty interests, in looking over what courts have
court, in its May 15, 2002, order, required that none of the      required of priso n officials in the past, it is important to remember that
members of the original classification committee shall take       many liberty interests which required less pro cess in the past wo uld
part in the decision of the prisoner’s appeal to the warden or    require no process now. Any liberty interest which passes San din’s
                                                                  thresho ld comes with a higher presum ption of pro cess due than those
to the Bureau.                                                    which may have been found pre-San din.
Nos. 02-3429/3816              Austin et al. v. Wilkinson et al.           21     22   Austin et al. v. Wilkinson et al.    Nos. 02-3429/3816

modification it made was mandated by the weighty private                            Having found that the additional procedural requirement
interest at stake and the risk of error and was unmitigated by                    identified by the ODRC Officials as the most burdensome
the governmental interests at stake. We examine first the                         passes muster under Mathews v. Eldridge, we conclude that
requirement identified by the ODRC Officials both in their                        those which pose a lesser burden on the ODRC are also
brief and at oral argument as the most burdensome: requiring                      appropriate. The ODRC Officials, both in their brief and at
officials to limit their placement decision to only those                         oral argument, did not in fact point to any other single
matters detailed in the notice given to the inmate. They argue                    procedural requirement as being particularly burdensome.
that this requirement will constrict “substantive discretion” by                  We note, moreover, that many of the procedures ordered by
disallowing reliance on “rumor, reputation, and even more                         the district court are an attempt to reconcile an elaborate
imponderable factors.” Appellants’ Reply Br. at 8 (quoting                        administrative appeals scheme created by the ODRC Officials
Hewitt, 459 U.S. at 474). This argument is unavailing.                            with the requirement that the inmate know the reason for any
Placement at OSP implicates a liberty interest because of the                     decision made about his fate; where a higher-up
ODRC’s own regulations limiting the substantive discretion                        decisionmaker reverses the decision of the original factfinder,
of prison officials; they can place inmates at OSP only in the                    a brief description of the grounds for that reversal is
presence of certain factual predicates, all of which are                          constitutionally necessary.
historical in nature. Having set out a detailed and restricted
list of reasons why inmates can be put at OSP, the ODRC                           D. Prison Litigation Reform Act
cannot turn around and argue that the district court’s order
decreases their ability to rely on “rumor, reputation, and even                     The ODRC Officials make a final argument that the district
more imponderable factors,” for those factors are illegitimate                    court failed to follow 18 U.S.C. § 3626, part of the Prison
under their own placement scheme.13 The district court                            Litigation Reform Act (“PLRA”), governing prospective
required that the “defendants will provide the inmate with                        relief. Their complaints center around the substantive
written notice of all the grounds believed to justify his                         modifications made to new 111-07, which modifications are
placement at level five and a summary of the evidence that                        indeed invalid for the reasons discussed above. They also
the defendants will rely upon for the placement.” Austin II,                      make a third, more general argument that the district court
204 F. Supp. 2d at 1026. We do not find that this                                 erred in failing to make findings that the remedial orders are
requirement’s burdens on the ODRC outweigh its probative                          necessary to correct “‘current and ongoing’ federal
and protective value.                                                             violations.” Appellants’ Br. at 60. But the “current and
                                                                                  ongoing” language comes from § 3626(b)(3), governing the
                                                                                  termination of relief, not from § 3626(a), governing
    13
                                                                                  requirements for initial relief. This argument therefore has no
        It is here we part ways with Judge Rogers — in determining what           merit.
process is due, we believe reference to what the state substantively
requires is the first step. In order to be placed at O SP, an inm ate must                            III. CONCLUSION
fulfill one of those discrete, substantive historical predicates; the district
court correctly required that ODRC Officials place an inmate on notice of
what historical events will be used to d emo nstrate his fulfillment of one         Because the Inmates have a liberty interest in avoiding
of those p redicates. The state itself has limited its ability to place inmates   placement at OSP, and because the procedural modifications
at OSP; the combing through files predicted by Judg e Ro gers is unlikely         ordered by the district court are necessary to protect that
in the face of the specific sub stantive predica tes identified in the state      interest, we affirm those portions of the district court’s
scheme.
Nos. 02-3429/3816             Austin et al. v. Wilkinson et al.         23     24    Austin et al. v. Wilkinson et al.    Nos. 02-3429/3816

judgments that address procedural requirements and                               _____________________________________________
modifications. Because the district court was without power
to reach the substantive prison regulations which were also                      CONCURRING IN PART, DISSENTING IN PART
modified, we reverse the district court’s judgments insofar as                   _____________________________________________
they rely on the following: Part II of the district court’s
March 26, 2002 order, excepting the final paragraph;14 the                        ROGERS, Circuit Judge, concurring and dissenting. While
penultimate paragraph of the district court’s May 15, 2002                     I agree with much of the majority’s careful opinion, there are
order; and the underlying portions of the district court’s                     two areas where my analysis differs sufficiently to warrant a
February 25, 2002 opinion.15 We therefore partially                            separate opinion, and one point upon which I respectfully
AFFIRM and partially REVERSE the district court’s                              dissent.
judgments, and we REMAND to the district court for further
proceedings consistent with this opinion.                                                                     A.
                                                                                 I agree that the Inmates have shown a protected liberty
                                                                               interest under Sandin v. Conner, 515 U.S. 472 (1995), and
                                                                               that in applying Sandin we are not required to make an
                                                                               interstate, as opposed to intrastate, comparison. The record
                                                                               shows that inmates assigned to OSP not only are subjected to
                                                                               far more severe conditions of confinement, but they are also
                                                                               disqualified for parole while assigned to OSP. These two
                                                                               factors together permit the conclusion that a liberty interest is
                                                                               implicated under Sandin.
                                                                                 Because assignment to the OSP involves disqualification
                                                                               from parole, it is unnecessary for us to decide whether a
                                                                               prison classification that subjects an inmate to more
                                                                               restrictive conditions of confinement, without more,
                                                                               constitutes a deprivation of a liberty interest. Recent
                                                                               unpublished opinions of the Seventh Circuit hold that it does
                                                                               not, even where assignment to a supermax prison was
    14                                                                         involved. See Moore v. Litscher, No. 02-1461, 52 Fed. Appx.
       That paragraph concerns the procedural modification of                  861, 2002 U.S. App. LEXIS 25305 (7th Cir. Nov. 27, 2002)
departmental notice to th e inmate of the inmate’s progress towards
reclassification, and is a proper procedural mo dification.
                                                                               (prisoners do not have a federally protected liberty interest in
                                                                               being housed in a particular facility, and therefore, as a matter
    15
        The OD RC Officials appe al from the district court’s July 12 denial
                                                                               of federal constitutional law, prisoner was not entitled to any
of their Rule 60(b) motion; the only claims of error in that denial which      due process protection before he was moved to supermax
they make on appeal concern the substantive modifications to 111-07 that       facility); Nash v. Litscher, No. 02-1705, 50 Fed. Appx. 317,
we reverse in any case. T here is therefore no need to evaluate the            2002 U.S. App. LEXIS 22825 (7th Cir. Oct. 23, 2002)
propriety of the district court’s denial of the Rule 60(b) motion on its own   (same).      If movement from one level of restrictive
merits.
Nos. 02-3429/3816        Austin et al. v. Wilkinson et al.   25    26   Austin et al. v. Wilkinson et al.    Nos. 02-3429/3816

confinement to a significantly higher one triggers due process     (alone not a property interest under Board of Regents v. Roth,
protections, then prison administration could be unduly            408 U.S. 564 (1972)) and defamatory statements (alone not a
burdened by the necessity of due process hearings. Courts          deprivation of a liberty interest under Paul v. Davis, 424 U.S.
would then have to struggle with just how much of a change         693 (1976)).
in the severity of confinement triggers due process protection.
Fortunately, we do not need to decide the issue. In this case,                                   B.
the decision to assign an inmate to OSP not only imposes
extraordinarily strict conditions, but also suspends parole           I also agree that the proper framework for evaluating
eligibility. While Ohio law does not create a liberty interest     whether the state procedures meet the requirements of
in parole, see Ohio Rev. Code § 2967.03; Wagner v. Gilligan,       procedural due process is the balancing test set forth in
609 F.2d 866, 867 (6th Cir. 1979), a parole eligibility            Mathews v. Eldridge, 424 U.S. 319, 334-45 (1976). Such an
determination can indirectly affect the length of a prisoner’s     analysis requires that each procedural protection sought for
incarceration, and is patently based on factors beyond the         each category of administrative decisionmaking be evaluated
consideration of prisoner safety and prison management. See        independently under the Eldridge factors. We are not
OHIO ADMIN . CODE § 5120:1-1-07 (2004); Layne v. Ohio              required to adopt for any prison-related decision the bundle of
Adult Parole Auth., 780 N.E.2d 548, 555 (Ohio 2002)                procedures required by one or another Supreme Court case
(emphasizing that parole board may “consider any                   dealing with different types of prison decisions. Thus
circumstances relating to the offense or offenses of               discussion of the Hewitt/Wolff “dichotomy” is problematic.
conviction, including crimes that did not result in conviction,    Many deprivations of liberty interests in prison, and certainly
as well as any other factors [it] deems relevant”).                the ones in this case, are different in important respects both
                                                                   from the disciplinary rescission of good-time credits in Wolff
   Even though assignment to a very restrictive prison might       v. McDonnell, 418 U.S. 539 (1974), and from the
not by itself amount to a deprivation of a liberty interest, and   administrative segregation in Hewitt v. Helms, 459 U.S. 460
even though a suspension of parole eligibility by itself may       (1983). The sought procedures may also vary. In short, the
not amount to the deprivation of a property or liberty interest    balance has to be context-specific. Thus whether or not a
in Ohio, the combination of the two deprivations, in the           particular procedure imposed by the district court “tracks
context of the facts shown in the record of this case, amounts     Wolff” by itself does not tell us whether it is required by
to a deprivation of a protected interest for procedural due        Eldridge. On the other hand, of course, the Supreme Court’s
process purposes. See Sandin, 515 U.S. at 487 (finding no          analysis with respect to what procedures are required to
protected liberty interest in remaining free from disciplinary     protect a particular liberty interest do provide guidance where
segregation, but noting that disciplinary record did not           the procedures or the interests are in relevant respects
preclude parole); Neal v. Shimoda, 131 F.3d 818, 830 (9th          analogous. Thus to the extent, for instance, that Hewitt
Cir. 1997) (finding that stigmatizing consequences of labeling     instructs that additional procedures with respect to “forward-
inmate as “sex offender,” combined with parole ineligibility       looking” determinations are less likely to increase the
for non-completion of mandatory treatment program,                 accuracy of such decisions (the second Eldridge factor), 459
triggered due process protections under Sandin). By way of         U.S. at 473-74, that guidance may appropriately be
analogy, the Supreme Court found a protected interest in           applied—not categorically but as part of the weighing—in
Owen v. City of Independence, 445 U.S. 622, 633 n.13               other cases involving different procedures and different
(1980), from the combination of a loss of at-will employment       liberty interests.
Nos. 02-3429/3816            Austin et al. v. Wilkinson et al.        27    28    Austin et al. v. Wilkinson et al.     Nos. 02-3429/3816

  I would also qualify the majority’s statement that “[i]t is               discretionary in some sense, such that review of injunctive
not the nature of the decision which strikes the due process                orders may sometimes be for abuse of discretion, but
balance; it is the nature of the interests on both sides of that            precisely speaking a district court does not have discretion to
balance.” The Eldridge balance involves three factors, two of               determine whether due process requires a hearing in a
which can be characterized as “the nature of the interests on               particular context. We properly review such a legal issue de
both sides.” The other, often dispositive factor, however, is               novo.
the degree to which the desired procedures will increase the
accuracy of agency decisionmaking. That determination                          The comprehensive notice requirement imposed by the
often does depend on “the nature of the decision” in the sense              district court essentially provides inmates with notice of all of
that some types of decisions will be greatly benefited by                   the evidence that may be relied on in determining his
certain procedures, while others may not.                                   placement. Significantly, this requirement provides inmates
                                                                            appearing before classification committees with more notice
                                   C.                                       than that received by criminal defendants at trial, where the
                                                                            liberty interests at stake are obviously more substantial. See
  Applying the Eldridge analysis, I would uphold all of the                 Fed. R. Crim. P. 16; Weatherford v. Bursey, 429 U.S. 545,
procedural requirements imposed by the district court except                559 (1977) (“There is no general constitutional right to
the requirement that officials limit their placement decision to            discovery in a criminal case. . .[and] the Due Process Clause
those matters detailed in the notice to the inmate.1                        has little to say regarding the amount of discovery which the
                                                                            parties must be afforded. . .”). As the Supreme Court has
   At the outset, I note that our scope of review is de novo for            recognized, “[p]rison disciplinary proceedings are not part of
legal issues such as whether procedural due process requires                a criminal prosecution, and the full panoply of rights due a
certain procedures, even though the issue is presented on                   defendant in such proceedings does not apply.” Wolff, 418
appeal from the entry of an injunction. See Chao v. Hosp.                   U.S. at 556. In my view, the comprehensive notice
Staffing Servs., Inc., 270 F.3d 374, 381 (6th Cir. 2001) (“A                requirement extends beyond what due process requires.
court abuses its discretion when it relies on clearly erroneous
findings of fact, applies an inappropriate legal standard, or                  In upholding the district court’s requirement, the majority
improperly applies the law, with such legal questions                       relies on Sandin to conclude that the liberty interest in this
receiving de novo review in the Court of Appeals.”), South                  case is particularly weighty. If anything, however, the
Cent. Power Co. v. Int’l Bhd. of Elec. Workers, 186 F.3d 733,               opposite inference is warranted. That is, under Sandin, a
737 (6th Cir. 1999) (“A district court’s decision to grant or               liberty interest arises from “atypical and significant
deny a permanent injunction is reviewed under several                       hardships” not implicit in the original sentence. Typical or
distinct standards. Factual findings are reviewed under the                 less significant hardships thus do not even rise to the level of
clearly erroneous standard, legal conclusions are reviewed de               a protected liberty interest. It is only the atypicality or the
novo, and the scope of injunctive relief is reviewed for an                 extraordinary significance of the hardship that is even enough
abuse of discretion.”). The scope of equitable relief may be                to raise due process concerns. It follows that a hardship that
                                                                            is only marginally atypical and marginally significant should
                                                                            only be given marginal weight in an Eldridge analysis. It is
    1                                                                       illogical to say that any interest that meets the Sandin test
     I agree that the substantive requ irements must be reversed, for the
reasons stated in Part II(C)(2)(a) of the majority opinion.
                                                                            must be of a weight requiring greater due process protection.
Nos. 02-3429/3816       Austin et al. v. Wilkinson et al.   29    30   Austin et al. v. Wilkinson et al.   Nos. 02-3429/3816

On the contrary, a prisoner gains due process protection under    The majority fails to explain, however, how requiring ORDC
Sandin only when the hardship exceeds typical hardship.           officials to provide an inmate with such comprehensive notice
Because in a sense it is the excess over typical hardship that    increases the accuracy of the placement decision for a given
warrants due process protection, it is logical that it be that    inmate. The district court reasoned that
excess that is weighed as the private interest in the Eldridge
analysis. Since that excess may be very small, the fact that        [r]equiring Department officials to give inmates specific
the interest was determined under Sandin may instead imply          notice of all of the grounds for placing and retaining
that the private interest be given a lesser weight than in the      them at OSP would cause minimal hardship. The
case of another type of protected property or liberty interest.     officials would only need to expend the additional time
In any event, the fact that the liberty interest is determined      to write out their reasons for making a specific
under a Sandin analysis cannot, without more, lead to the           classification decision. Furthermore, this minimal
conclusion that the interests will be deemed to weigh               amount of additional time would increase the
particularly heavily.                                               Department’s efficiency. Accurately summarizing all the
                                                                    grounds supporting an inmate’s placement at the OSP
  Secondly, we must evaluate the increase in accuracy that          would later assist reviewing entities and avoid
will result from the procedural requirement that the                unnecessary prisoner assignments to the OSP.
decisionmakers limit their placement decision to the grounds
and evidence detailed in the notice given to the inmate. A        Austin v. Wilkinson, 189 F. Supp. 2d 719, 746 (N.D. Ohio
general finding that erroneous and haphazard placements have      2002). The district court’s analysis misapprehends the burden
occurred in the past is insufficient. Instead, under the second   that a comprehensive notice requirement imposes on the
factor of Eldridge, we must evaluate the extent that the          government. In making such decisions, ORDC Officials rely
particular procedural requirement increases the accuracy of       on a wide range of information. The hardship in expending
the decisionmaking.                                               additional time to write out reasons for making a specific
                                                                  classification decision may indeed be minimal. However,
  Under the ORDC Officials’ new policy 111-07, inmates            requiring that, prior to even conducting a hearing, ORDC
received written notice explaining the reasons they were          Officials cull through often voluminous records and note
referred for a classification hearing. See J.A. at 716, 731.      every potentially relevant fact —on pain of barring them from
The district court ordered that, not only must ORDC officials     considering any information, no matter how relevant, that was
provide advance written notice of the reasons for the referral    inadvertently omitted —is significantly more onerous. Such
to a hearing, but that they must also provide “written notice     burdens have not been shown to be outweighed by the
of all the grounds believed to justify [placement] and a          improvement in accuracy—assuming there is any— asserted
summary of the evidence that the [officials] will rely upon for   to arise from the comprehensive notice requirement.
the placement.” Austin v. Wilkinson, 204 F. Supp. 2d 1024,
1026 (N.D. Ohio 2002). The district court added a footnote          Nor is the comprehensive notice requirement necessary to
that appears to preclude consideration of evidence not            vindicate the interests cited by the district court. Under the
described in the notice: “If [ORDC Officials] elect to use [a     procedural process required by the district court, the
proposed form] to give an inmate notice, they must limit the      classification committee is responsible only for making the
grounds stated on the form and the evidence generally             initial recommendation concerning whether an inmate should
described on the form, to support placement at OSP.” Id.          be assigned to OSP; both the warden (or the warden’s
Nos. 02-3429/3816       Austin et al. v. Wilkinson et al.   31

designee) and the Bureau of Classification must agree with
the committee’s recommendation before an inmate can be
placed at OSP. Austin v. Wilkinson, 204 F. Supp. 2d 1024,
1026-28 (N.D. Ohio 2002). At each stage in the process, an
inmate must be given a written statement explaining the
justification for the placement recommendation and the
evidence supporting it, as well as an opportunity to respond
to the recommendation in writing. This process provides both
a written record for review and ample opportunity for inmates
to challenge their placement. Accordingly, I would find that
the notice required under the new 111-07 is sufficient to
satisfy due process in this context.
  As to the remaining procedures imposed by the district
court, the Government has failed to articulate in any
significant manner how they burden the government. On
their face the additional procedural requirements appear to
increase the accuracy and reliability of the decisionmaking
process, and they were arrived at by careful consideration by
the district court. The private interest is substantial. I
therefore agree that the procedural requirements imposed by
the district court, apart from the one discussed above, were
properly imposed by the district court.
                        Conclusion
  For the foregoing reasons, I concur in the judgment except
to the extent that it upholds the requirement that ORDC
Officials provide comprehensive notice to inmates appearing
before classification committees.
