On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 87-2786)
Before: Becker, Scirica, Circuit Judges and VanARTSDALEN, District Judge*fn*
VanARTSDALEN, District Judge
The defendants, Howard Beyer and Anthony C. Turner, the Administrator (Superintendent) and Assistant Superintendent respectively, of the New Jersey State Prison at Trenton, New Jersey (Trenton State Prison), appeal from a judgment entered against them and in favor of the plaintiff-appellee, Salvatore Gerardi (Gerardi), a long-term inmate in the Trenton State Prison. Judgment was entered, after a bench trial, in the sum of $315 as compensatory damages for violation of 42 U.S.C. § 1983. The crux of Gerardi's claim is that the defendants, as the responsible state officials, acting in violation of state regulations, failed to provide Gerardi with a hearing within five working days from the date he was removed from the general prison population and placed in restrictive custody, designated under regulations of the New Jersey Department of Corrections as the Prehearing Management Control Unit (Prehearing M.C.U.).
In October, 1985, the Internal Affairs Unit of the New Jersey Department of Corrections*fn1 commenced an investigation into suspected wide-spread drug trafficking within the prison. On March 10, 1987, while the investigation was still in progress, an inmate informed the Internal Affairs Unit that approximately twenty inmates, including Gerardi, were not only involved in drug trafficking, but had placed a $4,800 bounty on the life of one of the inmates who the drug traffickers believed had informed on them.*fn2 Internal Affairs personnel advised the prison administrators of this information. Based on that information, the defendants, Turner and Beyer, ordered that approximately twenty inmates, including Gerardi, immediately be removed from the general prison population and placed in Prehearing M.C.U. Thus, on March 10, 1987, Gerardi, without any prior notice or hearing, was placed in Prehearing M.C.U. along with the other suspected inmates.
On March 17, 1987, which was five working days after Gerardi's placement in Prehearing M.C.U., the prison administrators received a typed investigation report from the Internal Affairs Unit. This report did not specifically establish Gerardi's involvement in the $4,800 bounty conspiracy. Prison officials requested the Internal Affairs Unit to provide more information as to Gerardi's participation in the conspiracy. A second report was prepared, but because the prison officials continued to find the report inadequate to sufficiently implicate Gerardi, they requested a third report which was received on March 30, 1987.
On March 25, 1987, Gerardi was provided with a "criteria sheet" by the prison officials. The "criteria sheet" was prepared in accordance with regulations promulgated and published by the New Jersey Department of Corrections in the New Jersey Administrative Code. N.J. Admin. Code tit. 10A, § 5-2.4. A "criteria sheet" contains extensive information concerning an inmate's past prison and criminal conduct. The "criteria sheet" is required to be utilized by the Management Control Unit Review Committee in deciding whether an inmate is to be placed in the Management Control Unit (M.C.U.). The "criteria sheet" delivered to Gerardi advised him that a hearing to determine whether he should be placed in M.C.U. was scheduled for March 30, 1987. Although offered an opportunity to attend the hearing, he refused to attend, asserting that he thought the hearing would not be fair to him. The hearing was thereafter continued, but finally held on April 16, 1987. Gerardi did not attend that hearing.*fn3 The hearing committee recommended that he be placed in M.C.U. and that recommendation was put into effect.
Gerardi's claim is founded upon the following contentions: (1) under the Department of Corrections regulations, an inmate who is placed in Prehearing M.C.U. is entitled to a hearing within five working days (N.J. Admin. Code tit. 10A, § 5-2.8(b));*fn4 (2) the regulations provide no exception; (3) the entitlement to a hearing creates a liberty interest that is protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution; (4) his confinement without a hearing within five working days violated his Fourteenth Amendment Due Process rights; and (5) 42 U.S.C. § 1983 provides him with a civil cause of action for damages for such violation. Defendants contend that the Department of Corrections regulations do not create a liberty interest that is protected by the Due Process Clause of the Fourteenth Amendment, and even if a constitutionally protected liberty interest is implicated, Gerardi was afforded due process of law despite the failure to hold a hearing within five working days from his confinement in Prehearing M.C.U.
Gerardi does not contend that his initial placement in Prehearing M.C.U. violated any of his due process or other rights, nor does he contend that his later confinement in M.C.U., after the "hearing" on April 16, 1987 violated any due process rights. His claim is for the failure to hold a hearing within the time prescribed by the regulations, which he contends define the reasonable time within which a hearing must be held in order to comport with due process.
The first task is to determine whether Gerardi had a constitutionally cognizable liberty interest. Such an interest can arise either from the Due Process Clause itself, or from state laws or regulations which create an entitlement. Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983).
Gerardi claims that the New Jersey regulatory scheme creates a liberty interest in remaining part of the general prison population. The Supreme Court in Hewitt held that Due Process requires a hearing "within a reasonable time" when an inmate is deprived of such a cognizable liberty interest. Id. at 476 n.8. Gerardi claims that the restrictive conditions of confinement in Prehearing M.C.U. combined with the mandatory language of the regulations create this liberty interest.
A. The Regulatory Framework
The regulation providing for a hearing within five working days of assignment to Prehearing M.C.U. must be considered within the overall M.C.U. regulatory framework.
The Management Control Unit is utilized to segregate inmates from the general prison population primarily for purposes of maintaining internal prison security. The Department of Corrections regulations define "Management Control Unit (M.C.U.)" as "a close custody unit to which an inmate may be assigned if he or she poses a substantial threat to the safety of others; of damage to or destruction of property; or of interrupting the operation of a State correctional facility." N.J. Admin. Code tit. 10A, § 5-1.3. In the same subsection of the New Jersey Administrative Code, a "Close Custody Unit" is defined as "an area within a correctional facility designated for assigning inmates who are removed from the general population for disciplinary or administrative reasons."
The regulations provide for inmate placement in the Management Control Unit by the decision of the Management Control Unit Review Committee, to whom recommendations for placement are made by certain committees, such as the institutional classification committee, and certain designated officers and prison officials including the Superintendent. N.J. Admin. Code tit. 10A, § 5-2.1. The Management Control Unit Review Committee is composed of several designated prison officials. N.J. Admin. Code tit. 10A, § 5-2.2.
Assignment to M.C.U. is set forth in N.J. Admin. Code tit. 10A, § 5-2.5 as follows:
10A:5-2.5 Assignment to the Management Control Unit (M.C.U.)
(a) An inmate shall be assigned to the Management Control (M.C.U.) when the Management Control Unit Review Committee (M.C.U.R.C.), after considering the criteria in N.J.A.C. 10A:5-2.4, [*fn5] concludes that the inmate poses a substantial threat:
1. To the safety of others;
2. Of damage to or destruction of property; or,
3. Of interrupting the operation of a State correctional facility.
(b) Procedures for Management Control Classification Committee (M.C.U.R.C.) hearings described in N.J.A.C. 10A:5-2.6 shall be followed and completed prior to placement in M.C.U.
(c) If there is a need for immediate placement in the M.C.U., such placement shall be made in accordance with N.J.A.C. 10A:5-2.8.
Thus, in normal circumstances, if an inmate is to be assigned to M.C.U., the following process is followed. Evidence is gathered while the inmate remains in the general prison population. The criteria sheet is prepared. A copy of the criteria sheet is provided to the inmate, at least 24 hours before he is to appear before the M.C.U.R.C. N.J. Admin. Code tit. 10A, § 5-2.6. He then is brought before the M.C.U.R.C., and a hearing is held pursuant to certain prescribed procedures. Id. If it is found that the inmate poses a substantial threat (1) to the safety of others; (2) of damage to or destruction of property; or (3) of interrupting the operation of a State correctional facility; he is then assigned to the M.C.U. If it is not found that one of those ...