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US Court of Appeals
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERMAN RESNICK,                                       No. 98-15704
Plaintiff-Appellant,
                                                     D.C. No.
v.                                                    CV-98-00904-SBA

WARDEN HAYES; LT. ERNST;                              ORDER AMENDING
OFFICER MYERS (DHO);                                  OPINION AND
COUNSELOR AUNE; OFFICER                               DENYING PETITION
WADE,                                                 FOR PANEL
Defendants-Appellees.                                 REHEARING AND
                                                     AMENDED OPINION

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted
October 7, 1999--San Francisco, California

Filed January 11, 2000
Amended May 22, 2000

Before: Alfred T. Goodwin, Mary M. Schroeder, and
Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

_________________________________________________________________



SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________

Criminal Law and Procedure/Prison

The court of appeals affirmed a judgment of the district
court. The court held that a federal prisoner's constitutional

                               5365


rights are not violated by continued confinement in adminis-
trative segregation pending a hearing on a disciplinary charge
that is not sustained.

When appellant Herman Resnick pled guilty to bank lar-
ceny, he was incarcerated in a federal prison. While awaiting
sentencing, Resnick was found guilty of using narcotics in the
prison. His discipline included confinement in the prison's
"Special Housing Unit" (SHU) for 30 days. Confinement in
the SHU is a form of administrative segregation.

After Resnick had been placed in the SHU, appellee Officer
Wade found a white powdery substance in his cell. Although
Wade concluded it was cocaine based on a field test, Resnick
claimed that it was "Sweet 'N Low," a sugar substitute. Res-
nick was informed that he faced a discipline charge. He later
admitted to a prison counselor that the white powdery sub-
stance had field-tested positive for cocaine, and that he owned
the box in which Wade had found it.

Resnick wrote to appellee Officer Myers, complaining that
he had not received a hearing to contest the drug charge. At
the ensuing hearing 70 days after the incident, Resnick
appeared with his staff representative, appellee Counselor
Aune. According to Myers' hearing report, Resnick did not
ask that any witness be called, although Resnick claimed that
he had tried to call Wade as a witness. Myers concluded that
no prohibited act had been committed.

Resnick filed a pro se complaint under 42 U.S.C.S 1983,
alleging his rights under the Fourth and Fifth Amendments
had been violated. He charged that Myers did not delay the
hearing because the prison had not received a laboratory
report on the white powder, and that no such report was ever
prepared. It was Resnick's claim that Myers postponed the
hearing so that appellee Warden Hayes could coerce Resnick
into divulging information about correctional officers who
were bringing drugs into the prison. He also claimed that

                               5366


Hayes told him that if he did not cooperate, he would not be
released from the SHU until Hayes retired. Resnick also
asserted that Hayes instructed Aune to tell Resnick that if he
told anyone about the matter Aune would "hang " Resnick and
make it "look like an accident."

Pursuant to 28 U.S.C. S 1915A, the district court conducted
a screening of Resnick's complaint. Acknowledging that pro
se pleadings must be liberally construed, the court neverthe-
less dismissed the complaint for failure to state a claim. The
court ruled that Resnick's placement in segregation pending
his hearing did not violate due process; that he had not been
denied due process with regard to his disciplinary hearing;
and that his allegations that the defendants had planted
cocaine in his cell and made death threats against him did not
constitute a cognizable claim. Resnick appealed.

[1] With regard to his due process claim, [2] Resnick had
to establish that he had a liberty interest in being free from
being placed in the SHU. [3] Resnick's substantive due pro-
cess and Fourth Amendment claims also hinged on whether
he had a liberty interest in being free from confinement in the
SHU.

[4] By virtue of being a convicted prisoner, Resnick had no
liberty interest in not being confined in the SHU. Accord-
ingly, he was not entitled to any hearing before being placed
in such confinement. Any delay in providing a hearing and
any defects in the hearing therefore did not deprive Resnick
of his due process or Fourth Amendment rights.

[5] Although convicted, Resnick had not been sentenced
before being placed in segregated housing. Unlike a convicted
prisoner, a pretrial detainee may have a liberty interest in not
being placed in disciplinary segregation. The question was
whether Resnick should have been treated as a pretrial
detainee or a sentenced inmate. [6] Precedent from other cir-
cuits supported treating Resnick as a sentenced inmate.

                               5367


[7] A prisoner possesses a liberty interest under the Consti-
tution when a change occurs in confinement that imposes an
atypical and significant hardship in relation to the ordinary
incidents of prison life. Resnick failed to establish a protected
liberty interest because he did not allege that his confinement
presented an atypical deprivation that might create a liberty
interest.

[8] There was no allegation that segregation in the SHU
was materially different from conditions imposed on inmates
in discretionary segregation. Nor was there an allegation that
the conditions in the SHU created a major disruption in his
environment. Finally, there was no allegation that the length
of Resnick's sentence was affected.

[9] Resnick's placement and retention in the SHU were
within the range of confinement to be expected by inmates.
He had no protected liberty interest in being free from con-
finement in the SHU pending his disciplinary hearing. That
being so, he had no cognizable due process or Fourth Amend-
ment claim.

[10] Prisoners may base retaliation claims on harms that
would not raise due process concerns. [11] Resnick's entire
claim for damages rested on the concept of a delay in schedul-
ing the hearing, and was measured per day for the time spent
in the SHU until the hearing that vindicated his position. The
First Amendment was not mentioned in his complaint.

[12] In a constitutional tort, a plaintiff must allege that the
defendant's actions caused him some injury. According to the
pleaded facts, Resnick did not snitch, and the defendants did
not identify him as a snitch and thereby place him at risk of
harm at the hands of other prisoners. Despite the threat of per-
manent placement in the SHU, Resnick was released from the
SHU on being cleared of the charge after a hearing. Merely
being in the SHU was not a violation of his due process
rights. Moreover, Resnick did not allege that he suffered emo-

                               5368


tional or physical harm as a result of the defendants' alleged
delaying actions. Finally, Resnick did not allege that his First
Amendment rights were chilled or infringed. Accordingly,
Resnick failed to state an actionable retaliation claim.

_________________________________________________________________

COUNSEL

Howard A. Slavitt, Coblentz, Patch, Duffy & Bass, San Fran-
cisco, California, for the plaintiff-appellant.

No appearance for the defendants-appellees.

Kathleen Moriarty Mueller and Edward R. Cohen, Attorneys,
Appellate Staff, Civil Division, Department of Justice, Wash-
ington, D.C., for the amicus curiae.

_________________________________________________________________

ORDER

The opinion filed January 11, 2000, is amended as follows:

Slip opinion page 333, last paragraph, through the first full
paragraph on page 335, substitute the following:

       Under Sandin, a prisoner possesses a liberty inter-
      est under the federal constitution when a change
      occurs in confinement that imposes an "atypical and
      significant hardship . . . in relation to the ordinary
      incidents of prison life." 515 U.S. at 484. In this
      case, Plaintiff has failed to establish a liberty interest
      protected by the Constitution. That is so because
      Plaintiff has not alleged that his confinement,
      whether administrative or disciplinary, presented
      "the type of atypical, significant deprivation[that]
      might conceivably create a liberty interest." Id. at
      486. The Court in Sandin relied on three factors in

                               5369


      determining that the plaintiff possessed no liberty
      interest in avoiding disciplinary segregation:
      (1) disciplinary segregation was essentially the
      same as discretionary forms of segregation; (2) a
      comparison between the plaintiff's confinement and
      conditions in the general population showed that the
      plaintiff suffered no "major disruption in his envi-
      ronment"; and (3) the length of the plaintiff's sen-
      tence was not affected. Id. at 486-87.

       Here, there is no allegation that Plaintiff's segre-
      gation in the SHU was materially different from
      those conditions imposed on inmates in purely dis-
      cretionary segregation. Nor is there an allegation that
      the conditions in the SHU, compared with conditions
      in the general population, created "a major disrup-
      tion" in Plaintiff's environment.3 Finally, there is no
      allegation that the length of Plaintiff's sentence was
      affected.

       In sum, so far as we know from his complaint,
      Plaintiff's placement and retention in the SHU were
      "within the range of confinement to be normally
      expected" by prison inmates "in relation to the ordi-
      nary incidents of prison life." Id. at 486-87. There-
      fore, we conclude that Plaintiff had no protected
      liberty interest in being free from confinement in the
      SHU pending his disciplinary hearing. That being so,
      Plaintiff has no cognizable due process claim. Like-
      wise, because Plaintiff had no protected liberty inter-
      est in not being confined in the SHU, he fails to state
      a Fourth Amendment claim.
_________________________________________________________________
3 Plaintiff alleged that, in the SHU, recreational opportunities and access
to showers are limited; the mattress is flat and dirty; no pillow is allowed;
a prisoner cannot have access to the library; and half the time the food is
cold. He did not allege that conditions were different in administrative
segregation, nor did he allege the extent to which conditions were better
in the general population.

                               5370


With this amendment, Appellant Herman Resnick's Peti-
tion for Panel Rehearing is DENIED.

_________________________________________________________________

OPINION

GRABER, Circuit Judge:

At all times relevant to this appeal, plaintiff Herman Res-
nick was a federal prisoner. Defendants are the warden
(Hayes) and four correctional officers (Ernst, Myers, Aune,
and Wade) who work at a prison in which Plaintiff was incar-
cerated. Plaintiff filed a complaint in federal district court,
claiming that Defendants had violated his constitutional rights
when they confined him in the prison's Special Housing Unit
(SHU) pending a disciplinary hearing. The district court dis-
missed Plaintiff's complaint, pursuant to 28 U.S.C.S 1915A,
for failure to state a claim upon which relief could be granted.
Plaintiff filed this timely appeal.

BACKGROUND

On December 2, 1996, Plaintiff was charged with, and
pleaded guilty to, bank larceny in violation of 18 U.S.C.
S 2113(b). After pleading guilty, and at all relevant times,
Plaintiff was incarcerated at the Federal Detention Center in
Dublin, California. On August 13, 1997, Plaintiff was sen-
tenced to 103 months' imprisonment.

On April 8, 1997, after Plaintiff had pleaded guilty to bank
larceny but before he was sentenced for committing that
crime, Plaintiff was found guilty of using narcotics in the
prison. See Resnick v. Adams, 37 F. Supp. 2d 1154, 1156
(C.D. Cal. 1999). Plaintiff was disciplined for his use of nar-
cotics by, among other things, being placed in the prison's
SHU for 30 days.

                               5371


On April 10, 1997, after Plaintiff had been placed in the
SHU, Wade searched Plaintiff's cell. Wade found a white
powdery substance at the bottom of a Sweet 'N Low box on
Plaintiff's desk. Ernst field-tested the white powder and deter-
mined that it was cocaine. Later that same day, Plaintiff was
given written notice of the charge against him. Plaintiff
denied that he had possessed any cocaine and asked that
another test be conducted on the contents of the Sweet 'N
Low box. Plaintiff alleges that the results of the second test
were negative for the presence of cocaine.

On April 12, 1997, Plaintiff appeared before a prison coun-
selor, Cadena, who considered the charge. Cadena advised
Plaintiff of the charge against him. Plaintiff admitted owning
the Sweet 'N Low box but denied that he had possessed
cocaine. Cadena referred the matter to Discipline Hearing
Officer Myers for further hearing, on the grounds that (1) a
white powdery substance was found in the Sweet 'N Low box
in Plaintiff's cell, (2) Plaintiff admitted that he owned the box,
and (3) the substance in the box field-tested positive for
cocaine.

On May 17, 1997, Plaintiff wrote to Myers, complaining
that he had not yet had a hearing to contest the drug charge.
Myers responded and advised Plaintiff that the hearing had
been "postponed pending the results of the lab. " A hearing
was held on June 19, 1997. According to Myers' hearing
report, Plaintiff appeared with his staff representative, Aune.
Although Plaintiff alleges that he attempted to call Wade as
a witness, Myers' hearing report states that Plaintiff did not
ask that any witnesses be called. Additionally, the report
states that Myers considered a "crime laboratory report."
Myers concluded that "no prohibited act [was ] committed"
and ordered that the incident report be expunged from Plain-
tiff's file.

Plaintiff alleges that Myers did not postpone Plaintiff's
hearing because the prison had yet to receive a laboratory

                               5372


report concerning the white powder found in the Sweet 'N
Low box. Rather, Plaintiff claims, no such report ever was
prepared. Plaintiff alleges that Myers postponed his hearing
so that Hayes could pressure Plaintiff into divulging informa-
tion about correctional officers who were bringing narcotics
into the prison. Plaintiff further alleges that Hayes told Plain-
tiff that, if he did not cooperate, he would not be released
from the SHU until after Hayes retired. Additionally, Plaintiff
alleges that Hayes instructed Aune to tell Plaintiff that, if
Plaintiff told anyone about the matter, Aune would "hang"
Plaintiff and make it "look like an accident."

Plaintiff filed a pro se complaint under 42 U.S.C.S 1983
against Hayes, Ernst, Myers, Aune, and Wade, claiming that
they had conspired to violate his constitutional rights under
the Fifth, Eighth, and Fourteenth Amendments. Pursuant to 28
U.S.C. S 1915A,1 the district court conducted a preliminary
screening of Plaintiff's complaint. Although the court noted
that "[p]ro se pleadings must . . . be liberally construed," it
dismissed the complaint for failure to state a claim. The court
_________________________________________________________________
1 Title 28 U.S.C. S 1915A provides:

       (a) The court shall review, before docketing, if feasible or, in
      any event, as soon as practicable after docketing, a complaint in
      a civil action in which a prisoner seeks redress from a govern-
      mental entity or officer or employee of a governmental entity.

       (b) On review, the court shall identify cognizable claims or
      dismiss the complaint, or any portion of the complaint, if the
      complaint--

      (1) is frivolous, malicious, or fails to state a claim upon
      which relief may be granted; or

      (2) seeks monetary relief from a defendant who is
      immune from such relief.

       (c) As used in this section, the term "prisoner" means any
      person incarcerated or detained in any facility who is accused of,
      convicted of, sentenced for, or adjudicated delinquent for, viola-
      tions of criminal law or the terms and conditions of parole, proba-
      tion, pretrial release, or diversionary program.

                               5373


held that Plaintiff's placement in segregation pending his
hearing did not violate his right to due process. The court also
held that Plaintiff was not denied due process with regard to
his disciplinary hearing. Finally, the court held that Plaintiff's
allegations that Defendants had planted cocaine in his cell and
made death threats against him did not constitute a cognizable
claim. Plaintiff timely appealed.

On appeal, this court appointed counsel for Plaintiff and
ordered the government to appear at oral argument and to file
either a supplemental brief or an amicus curiae brief.2 The
government filed an amicus curiae brief.

STANDARD OF REVIEW

This court reviews de novo a district court's dismissal of a
complaint under 28 U.S.C. S 1915A for failure to state a claim
upon which relief can be granted. See Cooper v. Pickett, 137
F.3d 616, 623 (9th Cir. 1998). Under S 1915A, when deter-
mining whether a complaint states a claim, a court must
accept as true all allegations of material fact and must con-
strue those facts in the light most favorable to the plaintiff.
See id. Additionally, in general, courts must construe pro se
pleadings liberally. See Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1990).

DISCUSSION

On appeal, Plaintiff claims that Defendants violated his due
process rights under the Fifth Amendment and his Fourth
Amendment right to be free from an unreasonable seizure.
Plaintiff also claims that his confinement in the SHU was
retaliatory. We consider each claim in turn.
_________________________________________________________________
2 Defendants are not parties to this appeal, because the district court dis-
missed Plaintiff's complaint sua sponte under 28 U.S.C. S 1915A before
Defendants were served.

                               5374


1. Fourth and Fifth Amendment Claims

[1] With regard to his due process claim, Plaintiff argues,
in essence, that his constitutional rights were violated because
(1) he was placed in disciplinary segregation without first
having been afforded a hearing, (2) his disciplinary hearing
did not take place until 70 days after the incident, and (3) the
hearing that he received was constitutionally defective,
because he was not allowed to call Wade as a witness.

[2] To prevail, Plaintiff must establish that he had a liberty
interest in being free from being placed in the SHU. See
Sandin v. Conner, 515 U.S. 472, 487 (1995) (holding that a
convicted inmate who had been placed in disciplinary segre-
gation in a prison's SHU for 30 days had no cognizable pro-
cedural due process claim, because he had no liberty interest
in being free from such confinement); see also May v. Bal-
dwin, 109 F.3d 557, 565 (9th Cir. 1997) (holding that con-
victed inmate was not "denied due process when he was
placed in [a Disciplinary Housing Unit] pending a disciplinary
hearing. [The inmate's] due process claim fails because he has
no liberty interest in freedom from state action taken within
the sentence imposed, and the Ninth Circuit explicitly has
found that administrative segregation falls within the terms of
confinement ordinarily contemplated by a sentence.") (cita-
tion and internal quotation marks omitted).

[3] Plaintiff's "substantive due process" and Fourth
Amendment claims also hinge on whether he had a liberty
interest in being free from confinement in the SHU. See
Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir.
1998) ("The concept of `substantive due process,' semanti-
cally awkward as it may be, forbids the government from
depriving a person of life, liberty, or property in such a way
that `shocks the conscience' or `interferes with rights implicit
in the concept of ordered liberty.' ") (quoting United States v.
Salerno, 481 U.S. 739, 746 (1987)); Leslie v. Doyle, 125 F.3d
1132, 1135 (7th Cir. 1997) ("Official action constitutes a sei-

                               5375


zure [under the Fourth Amendment] when it deprives a person
of some meaningful measure of liberty to which he is enti-
tled.").

[4] Relying on Sandin, the government argues that Plaintiff,
by virtue of being a convicted prisoner, has no liberty interest
in not being confined in the SHU. Accordingly, the govern-
ment contends, Plaintiff was not entitled to any hearing before
being placed in such confinement. Therefore, the argument
goes, any delay in providing Plaintiff a hearing and any
defects in that hearing did not deprive Plaintiff of his due pro-
cess or Fourth Amendment rights. In the circumstances of this
case, we agree.

[5] The only significant difference between Sandin and this
case is that Plaintiff, although convicted, had not been sen-
tenced before being placed in segregated housing. In Sandin,
the Court noted that, unlike a convicted prisoner, a pretrial
detainee may have a liberty interest in not being placed in
disciplinary segregation. See 515 U.S. at 484; see also Mitch-
ell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996) (holding that
"pretrial detainees may be subjected to disciplinary segrega-
tion only with a due process hearing to determine whether
they have in fact violated any rule"). The question here is
whether, for purposes of analyzing whether Plaintiff had a lib-
erty interest in being free from confinement in the SHU, he
should be treated as a pretrial detainee or as a sentenced
inmate.

[6] Precedent from other circuits supports treating Plaintiff
as a sentenced inmate. In Whitnack v. Douglas County, 16
F.3d 954, 957 (8th Cir. 1994), for example, the court held that
a claim by a convicted prisoner awaiting sentencing is gov-
erned by the Eighth Amendment and that a claim by a pretrial
detainee is governed by the Fourteenth Amendment. See also
Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir.
1990) (holding that, when determining whether the Eighth or
the Fourteenth Amendment governs an inmate's claim,"[t]he

                               5376


critical juncture is conviction, either after trial or . . . by plea,
at which point the state acquires the power to punish and the
Eighth Amendment is implicated"). We are persuaded by the
logic of those cases. Accordingly, we conclude that the
Sandin analysis applies to Plaintiff's due process claims.

[7] Under Sandin, a prisoner possesses a liberty interest
under the federal constitution when a change occurs in con-
finement that imposes an "atypical and significant hardship
. . . in relation to the ordinary incidents of prison life." 515
U.S. at 484. In this case, Plaintiff has failed to establish a lib-
erty interest protected by the Constitution. That is so because
Plaintiff has not alleged that his confinement, whether admin-
istrative or disciplinary, presented "the type of atypical, sig-
nificant deprivation [that] might conceivably create a liberty
interest." Id. at 486. The Court in Sandin relied on three fac-
tors in determining that the plaintiff possessed no liberty
interest in avoiding disciplinary segregation: (1)  disciplinary
segregation was essentially the same as discretionary forms of
segregation; (2) a comparison between the plaintiff's confine-
ment and conditions in the general population showed that the
plaintiff suffered no "major disruption in his environment";
and (3) the length of the plaintiff's sentence was not affected.
Id. at 486-87.

[8] Here, there is no allegation that Plaintiff's segregation
in the SHU was materially different from those conditions
imposed on inmates in purely discretionary segregation. Nor
is there an allegation that the conditions in the SHU, com-
pared with conditions in the general population, created "a
major disruption" in Plaintiff's environment. 3 Finally, there is
_________________________________________________________________
3 Plaintiff alleged that, in the SHU, recreational opportunities and access
to showers are limited; the mattress is flat and dirty; no pillow is allowed;
a prisoner cannot have access to the library; and half the time the food is
cold. He did not allege that conditions were different in administrative
segregation, nor did he allege the extent to which conditions were better
in the general population.

                               5377


no allegation that the length of Plaintiff's sentence was
affected.

[9] In sum, so far as we know from his complaint, Plain-
tiff's placement and retention in the SHU were "within the
range of confinement to be normally expected" by prison
inmates "in relation to the ordinary incidents of prison life."
Id. at 486-87. Therefore, we conclude that Plaintiff had no
protected liberty interest in being free from confinement in
the SHU pending his disciplinary hearing. That being so,
Plaintiff has no cognizable due process claim. Likewise,
because Plaintiff had no protected liberty interest in not being
confined in the SHU, he fails to state a Fourth Amendment
claim.

2. Retaliation

[10] In essence, Plaintiff claims that Defendants delayed
his hearing and thereby kept him confined in the SHU in
retaliation for his refusal to provide them with information
regarding correctional officers who were bringing drugs into
the prison. "Since Sandin, this court has reaffirmed that pris-
oners may still base retaliation claims on harms that would
not raise due process concerns." Hines v. Gomez, 108 F.3d
265, 269 (9th Cir. 1997).

In Hines, the prisoner "alleged Pearson's false charge
infringed his First Amendment right to file prison grievances
. . . . [T]he injury asserted is the retaliatory accusation's chill-
ing effect on Hines' First Amendment rights." Id. In the pres-
ent case, the complaint contains no similar allegation.

[11] To be sure, Plaintiff claims that prison officials post-
poned a disciplinary hearing in retaliation for silence, but he
does not go on to allege an infringement of the "right to file
prison grievances," nor does he allege a "chilling effect." Id.
To the contrary, Plaintiff promptly contested the charge
against him, and he won. His sole allegation of harm is:

                               5378


"Warden Hayes order[ed] Mr. Myers to postpone Plaintiff['s]
hearing causeing [sic] a due process violation and other con-
stitutional rights and privilege[s] to be violated." (Emphasis
added.) His entire claim for damages rests on the concept of
a delay in scheduling the hearing and is measured per day for
the time spent in the SHU until the hearing that vindicated his
position. The First Amendment is not mentioned in the com-
plaint.

[12] In a constitutional tort, as in any other, a plaintiff must
allege that the defendant's actions caused him some injury.
See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 285-87 (1977). According to the pleaded facts,
Plaintiff did not snitch, and Defendants did not identify him
as a snitch and thereby place him at risk of physical harm at
the hands of other prisoners. Further, despite the alleged
threat of permanent placement in the SHU, Plaintiff also
alleges that he was released from the SHU upon being cleared
of the charge after a hearing. And, as discussed above, merely
being in the SHU was not a violation of Plaintiff's due pro-
cess rights. Moreover, Plaintiff has not alleged that he suf-
fered emotional or physical harm as a result of Defendants'
alleged delaying actions. Finally, Plaintiff has not alleged that
his First Amendment rights have been chilled or infringed.
Accordingly, we hold that Plaintiff has failed to state an
actionable retaliation claim.

CONCLUSION

For the foregoing reasons, the decision of the district court
is AFFIRMED.

                               5379




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