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September 10, 1992



The opinion of the court was delivered by: H. LEE SAROKIN

Sarokin, District Judge

Before the court is the motion of defendants William Fauver, Patrick Arvonio, and Timothy Dill to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted.


 Plaintiff Daulton Banks is a prison inmate currently incarcerated at Northern State Prison. Banks alleges that on April 2, 1992, following a visit by his wife, he was involuntarily placed into protective custody. On April 16, 1992, Banks appeared before Hearing Officer Regina Larkins for a hearing regarding his placement in protective custody. In support of his confinement, the prison authorities produced a report prepared by the Internal Affairs department ("Internal Affairs"), stating that the authorities had received an anonymous telephone call reporting that plaintiff's life was in danger and that evidence had been compiled of Banks' involvement in drug trafficking. Complaint at P 11. Additionally, plaintiff was informed that he was being placed into protective custody based on a charge that his wife had attempted to smuggle money into the prison to him during her visit on April 2. Def. Mem. at 3.

 Plaintiff allegedly introduced evidence that his wife had no knowledge of the money she brought into the prison and that the report produced by Internal Affairs was "clear fabrication." *fn1" Plaintiff further explained that "he [had] no problems with anyone and [that] his life was not in any danger and that he was not 'attempting' to facilitate the sum of $ 790 into the institution." Complaint at P 10. Plaintiff sought release from protective custody.

 On April 20, Banks received notification that his application for release from protective custody had been denied. The notice of the hearing adjudication recited, as the "facts . . to support initial placement," that:

 [Inmate] was placed in [protective custody] following delivery of package by wife--intended for [Inmate] Banks--which on examination was found to contain $ 790 . . . concealed in sneaker. [Inmate] also suspected of involvement in drug trafficking. (Ex. A-1--Internal Affairs Report).

 Complaint Ex. 2. Under the heading, "Summary of facts on which decision is based," the report stated:

 [Inmate] was placed in [protective custody] 4-2-92 following discovery of $ 790 in sneaker in package delivered to [the prison] by [Inmate's] wife. Subsequent to confiscation, telephone call was received from unnamed female indicating [Inmate] Banks to be in danger as result of money confiscation and drugs. [Internal Affairs) investigation indicates [Inmate] Banks under suspicion re drug trafficking at [the prison]. [Inmate] denies involvement in drugs and [illegible] money incident as forgetfulness by mother. Considering sum of money involved and [Inmate] being suspected of drug involvement, the claim of "forgetfulness" not believed.

 Id. On April 28, 1992, Banks appealed the decision of the hearing officer to the Prison Superintendent.

 On June 2, 1992, Banks commenced this action, alleging that defendants' actions violated his federal due process rights. Specifically, Banks contends that defendants failed to follow the proper procedures in obtaining the information that formed the basis for his commitment, that the factors considered by them were insufficient as a matter of law, and that the procedures employed at the hearing failed to provide him due process. Banks seeks a declaratory judgment and punitive and compensatory damages. Defendants Fauver, Arvonio and Dill have now moved to dismiss this action against them for failure to state a claim.


 For the purposes of a motion to dismiss pursuant to Rule 12(b)(6), the court must take all facts alleged in the complaint as true, and must only dismiss if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).

 Defendants contend that plaintiff's complaint should be dismissed because he has no liberty interest in remaining free of protective custody, because the complaint lacks specificity and because defendants Fauver, Arvonio, and Dill are shielded from liability by the qualified immunity doctrine. Defendants further contend that the damage claims against them should be dismissed because these claims are barred by the Eleventh Amendment.

 Due Process Claim

 The requirements of the Due Process Clause of the Fourteenth Amendment of the United States Constitution are not triggered unless a protected interest is at stake. Meachum v. Fano, 427 U.S. 215, 223-24, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976). Liberty interests "protected by the Fourteenth Amendment may arise from two sources--the Due Process Clause itself and the laws of the states." Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). In Hewitt, the Supreme Court held that the Due Process Clause itself does not create a liberty interest in a prison inmate "being confined to a general population cell, rather than the more austere and restrictive administrative segregation quarters," and that "the transfer of an inmate to less amenable and more restrictive quarters for nonpunitive reasons is well within the terms of containment ordinarily contemplated by a prison sentence." 459 U.S. at 466-68. Accordingly, the court concludes that the Due Process Clause does not directly create a liberty interest in a prisoner remaining unconfined in protective custody.

 However, a state may also create a liberty interest protected by the Due Process clause through enactment of laws or regulations having the force of law. Board of Pardons v. Allen, 482 U.S. 369, 96 L. Ed. 2d 303, 107 S. Ct. 2415 (1987); Hewitt, 459 U.S. at 469. Thus, in Hewitt, the Court held that Pennsylvania, through statutes and regulations setting forth the procedures for confining an inmate to administrative segregation, had created a liberty interest in remaining in the general prison population. 459 U.S. at 472. Similarly, in Layton v. Beyer, 953 F.2d 839 (3d Cir. 1992), the Third Circuit held that the State of New Jersey, through regulations governing confinement in a Management Control Unit (MCU) of prisoners posing a threat to safety, property, or the operation of the prison had created a liberty interest in remaining in the general prison population, outside of the MCU.

 Hewitt makes clear that mere regulatory or statutory creation of procedural structures governing prison practices does not necessarily create a protected liberty interest. Rather, the Court cited two factors as the basis for concluding that a liberty interest had been created:

 the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.

 459 U.S. at 472. The regulation at issue in Hewitt stated that an inmate "may" be placed in administrative custody "not routinely but based upon [the prison administrator's] assessment of the situation and the need for control" or "where it has been determined that there is a threat of a serious disturbance, or a serious threat to the individual or others." Id. at 470, n.6. The regulations further state that "if no behavior violation has occurred, the inmate must be released as soon as the reason for the security concern has abated but in all cases within ten days." Id. Accordingly, the Court found that the Pennsylvania regulation both used language of a mandatory character and specified substantive predicates, thereby giving rise to a reasonable expectation that an inmate would not be placed in administrative segregation absent the circumstances identified in the regulations.

 In Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 463, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989), the Supreme Court added a further requirement: in addition to establishing substantive predicates to govern official decision-making, the regulation must contain "specific directives to the decision-maker that if the regulations' substantive predicates are present, a particular outcome must follow." As the Third circuit explained in Layton,

 the regulation must not only list substantive predicates such as "A, B, and C" to guide the administrator's decision. It must also eliminate any official discretion to use criteria outside of "A, B, and C" to make the decision to exclude the visitor. *fn2"

 953 F.2d at 848. Thus, in Thompson, the court held that no liberty interest had been created by a regulation governing prison visitation rights, since the regulation included the caveat that "administrative staff reserves the right to allow or disallow visits" and stated that it was merely the "policy" of the prison "to respect the rights of inmates to have visits." 490 U.S. at 464.

 Applying these principles, the Third circuit held in Layton that a New Jersey disciplinary confinement regulation, similar to the protective custody regulation at issue in the present case, created a liberty interest subject to due process ...

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