IMAM' SHAHID MUHAMMAD, PETITIONER V. NORM CARLSON, ET AL. No. 88-6008 In The Supreme Court Of The United States October Term, 1988 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The Respondents In Opposition OPINION AND ORDER BELOW The opinion of the court of appeals (Pet. App. 103-107) is reported at 845 F.2d 175. The order of the district court (Pet. App. 92-93) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 26, 1988. A petition for rehearing was denied on July 21, 1988. Pet. App. 101. The petition for a writ of certiorari was filed on October 1, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's temporary transfer to a special AIDS unit for federal inmates after he tested positive for the AIDS virus contravened the Due Process Clause of the Fifth Amendment. STATEMENT Petitioner, a federal prisoner, filed this civil action in the United States District Court for the Western District of Missouri, contending that his transfer to and six month confinement in the AIDS Unit at the United States Medical Center for Federal Prisoners (MCFP) violated his right to due process. Petitioner argued that mandatory Bureau of Prisons (BOP) policy, as reflected in BOP Operations Memorandum No. 4-86 (6000) (Pet. App. 46-55) and MCFP Institution Supplemnt SPG-6400 (Pet. App. 58-62), endowed him with a protected liberty interest in remaining in the general prison population. He asserted that BOP had violated that liberty interest by failing to provide a procedural mechanism for challenging his diagnosis and transfer. The district court determined that petitioner had failed to allege a constitutional violation, and dismissed his complaint under 28 U.S.C. 1915(d). Pet. App. 92-93. The court of appeals affirmed. Pet. App. 103-107. 1. In March 1986, petitioner was transferred to MCFP after he lost coordination in his legs and right hand. Pet. App. 56. Blood tests indicated that he had developed antibodies against the AIDS virus (Pet. App. 56-57, 104), and he was classified as "Pre-ARC" as defined in the Operations Memorandum (Pet. App. 47, 104). /1/ In accordance with the Institution Supplement, petitioner was placed in MCFP's Unit 10E (the AIDS Unit) in May 1986. Pet. App. 58-59. The AIDS Unit was established in response to the Operations Memorandum's directive that MCFP develop individual housing plans for AIDS, ARC and Pre-ARC inmates. See Pet. App. 52. The AIDS Unit was "restricted" in the sense that it was physically separate from other units in the MCFP and its inmates were not allowed to mingle with inmates from those units. But all inmates in the AIDS Unit were provided with a variety of programs and privileges, including educational services, religious, recreational and visiting opportunities, and access to law library materials. They were allowed to move about freely in the Unit from 6:00 a.m. until approximately 10:00 p.m. daily. Pet. App. 41-43, 65-67. In October 1986, after a successful effort to educate inmates and staff about AIDS, BOP changed its policy and petitioner, along with others in the AIDS Unit, was reintegrated into the general population at MCFP. Petitioner has functioned effectively in the open population since approximately October 1986. Gov't C.A. Br. 6. /2/ 2. In his appeal, petitioner argued that language of an "'unmistakably mandatory character'" in both the Operations Memorandum and the Institution Supplement created a liberty interest triggering constitutional protection under Hewitt v. Helms, 459 U.S. 460, 471-472 (1983), because it dictated that official action in testing for the AIDS virus, as well as in classifying and housing inmates based on the test results, could be taken only upon the occurrence of "'specified substantive predicates.'" Pet. App. 105. /3/ The court of appeals disagreed (Pet. App. 106), finding it "apparent * * * that the 'mandatory' language (petitioner) relies upon relates only to the actual medical procedures for the diagnosis, treatment and isolation of AIDS-infected inmates." The court found (ibid. (citation omitted)) "no language in these regulations from which a prisoner could reasonably expect that he would not be transferred to the AIDS Unit without a chance to challenge his classification * * *." The court also ruled (Pet. App. 106) that petitioner had demonstrated no cognizable injury here, where the disputed transfer was not punitive but instead served legitimate diagnostic, treatment and security purposes. Finally, the court rejected (Pet. App. 106-107) petitioner's claim that he also had a liberty interest in regulations governing placement of prisoners in administrative detention. See 28 C.F.R. 541.22-23. The court determined (Pet. App. 106) that the administrative detention regulations manifestly did not apply to petitioner's transfer, which was purely a "medical determination() regarding isolation and segregation of infected and exposed inmates." ARGUMENT Petitioner seeks review of his claim (Pet. 10-19) that his transfer to and confinement in the AIDS unit denied him due process. 1. As a general matter, prison inmates have no constitutional interest in matters involving classification or housing. Olim v. Wakinekona, 461 U.S. 238, 244-248 (1983); Montanye v. Haymes, 427 U.S. 236 (1976); Meachum v. Fano, 427 U.S. 215 (1976). Even if a transfer made for nonpunitive reasons leaves an inmate in "less amenable and more restrictive quarters," the transfer without more merits no due process protections because it "is well within the terms of confinement ordinarily contemplated by a prison sentence." Hewitt, 459 U.S. at 468. Here, petitioner was transferred to the AIDS Unit for "diagnostic, treatment and security purposes" (Pet. App. 106), all of which are manifestly "nonpunitive." As the court of appeals correctly noted (Pet. App. 105), petitioner's transfer accordingly does not involve an interest so substantial as to warrant protection under the Due Process Clause independently. 2. Recognizing as much, petitioner instead argues (Pet. 10-19) only that certain language in BOP regulations (the Operations Memorandum 4-86 (6000) and the Institution Supplement SPG-6400) creates a liberty interest in remaining within the general prison population that must be afforded due process protections. He maintains (Pet. App. 10-16) that this case is like Hewitt v. Helms, supra, where this Court held that "the repeated use of explicitly mandatory language (in State statutes and regulations) * * * requiring specific substantive predicates" before an inmate could be transferred to administrative detention for security reasons "demand(ed) a conclusion that the State ha(d) created a protected liberty interest." 459 U.S. at 471, 472 (language had "unmistakably mandatory character, requiring that certain procedures 'shall,' 'will,' or 'must,' be employed"). See also Vitek v. Jones, 445 U.S. 480, 489-490 (1980) (state law and official penal practice created "objective expectation" of remaining within the general prison population). As the court of appeals correctly noted (Pet. App. 106), however, this case is unlike both Hewitt and Vitek. The "mandatory" language relied upon by the petitioner "relates only to the actual medical procedures for the diagnosis, treatment and isolation of AIDS-infected inmates." Pet. App. 106. Like countless other health and safety regulations, the regulations here employed "wills", "shalls", and "musts" in order to instruct officials about proper and safe procedures; they had no more profound purpose. As this Court has noted, "(a) State may choose to require procedures for reasons other than protection against deprivation of substantial rights, of course, * * * (and) in making that choice the State does not create an independent substantive right." Olim, 461 U.S. at 250-251 (footnote omitted). Here, the medical instructions contained in the regulations include "no language * * * from which a prisoner could reasonably expect" that he would gain a protected right to challenge the steps indicated. Pet. App. 106. The language is self-evidently unlike that which this Court has found does create a protected interest. Compare Pet. 4-6 (reciting language claimed to be "mandatory") with Hewitt, 459 U.S. at 470 n.6 (state statute and regulations requiring that inmate perceived as security threat "shall be notified in writing as soon as possible * * * (and) will receive a hearing" if disciplinary action considered); Wolff v. McDonnell, 418 U.S. 539, 548-549 (1974) (state statutory provision requiring that inmate be "'consulted regarding the charges of misconduct'" resulting in forfeiture, withholding or restoration of good time credits; extensive prison regulations dealing with procedures and policies for controlling inmate misconduct); Wright v. Enomoto, 462 F. Supp. 397, 403 (N.D. Cal. 1976) (regulation providing that "(i)nmates must be segregated * * * when it is reasonably believed that they are a menace to themselves and others. * * * The reason for ordering segregated housing must be clearly documented by the official ordering the action.") (emphasis omitted), aff'd 434 U.S. 1052 (1978); see also Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11 (1979) (statute establishing that parole "shall be ordered" except where security, rehabilitative, or attitudinal considerations indicate to contrary). /4/ This Court's holding in Vitek is not to the contrary. In that case, the Court held that a prisoner had to be provided due process before he could be involuntarily transferred to a state mental hospital because that "qualitatively different" type of confinement implicated both federal due process guarantees and the expectation, created by state law, that one would not be so confined unless one's condition necessarily dictated that result. Vitek, 445 U.S. at 493, 488-495. Not only did that case involve "mandatory language" creating a liberty interest, the case also contained circumstances that alleviated the Court's concern about interfering with a decision that was "essentially medical": the Court held that due process requirements were appropriate because "it is precisely '(t)he subtleties and nuances of psychiatric diagnoses' that justify the requirement of adversary hearings." Id. at 495 (quoting Addington v. Texas, 441 U.S. 418, 430 (1979)). No such considerations attach to this case. Nor does the language at issue here concern individualized security determinations, as did the language in Hewitt. There, a state statute provided that an "inmate shall be notified in writing" and "will receive a hearing" if officials were considering disciplinary action in order to deal with "a threat of a serious disturbance, or a serious threat to the individual or others." Hewitt, 459 U.S. at 470 n.6. Here, the Bureau of Prisons regulations required AIDS carriers to be segregated because of a generalized determination that "other inmates, due to mistaken information about how the AIDS virus could be transmitted, presented a danger to inmates (diagnosed to have AIDS, or to be ARC, or pre-ARC individuals)." Pet. App. 41; see also Pet. App. 61 (Institution Supplement SPG-6400 requiring escort to protect those identified as AIDS carriers). Thus, this case involves security considerations only insofar as they contributed to BOP's uniform classification policy of housing possible AIDS carriers in a "unit (restricted) in that all services were provided on the unit." /5/ Pet. App. 41. The establishment of that policy is clearly within the prerogative of prison officials. See Meachum, 427 U.S. at 225 (placement transfers are properly "made (without audit under the Due Process Clause) for a variety of reasons and often involve no more than informed predictions as to what would best serve institutional security or the safety and welfare of the inmate"). It does not depend on security considerations expressed in "mandatory" language that vary from case to case, and it is thus not "reasonable" to "expect" that the policy must be debated at individualized hearings. /6/ In any event, the court of appeals correctly noted that none of this Court's cases have held that a state-created right exists and merits due process protections absent a clearly defined "injury." Pet. App. 106; see, e.g., Hewitt, 459 U.S. at 467 n.4 (state-created interst exists where administrative segregation imposed "severe hardships" including lack of access to vocational, educational, recreational, and rehabilitative programs, and confinement to cell for lengthy periods); Vitek, 445 U.S. at 491 (same, where "adverse action" would result in "massive curtailment of liberty" greater than penal imprisonment); Wolff, 418 U.S. at 557 (same, where "State having created the right to good time and itself recognizing that its deprivation is a sanction authorized for major misconduct, the prisoner's interest has real substance"); Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (same, where parole being revoked contains "many of the core values of unqualified liberty"). Here, petitioner was transferred to a unit that was "restricted" only in the sense that it was physically separate from other units in the MCFP and inmates were not allowed to mingle with inmates from those units. All inmates in the AIDS Unit were provided with a variety of programs and privileges, including educational services, religious and visiting opportunities, access to law library materials and legal assistance, and were allowed to move about freely in the Unit throughout the day. Pet. App. 41-43, 65-67. As the court of appeals concluded, "(petitioner) asserts an interest too insubstantial to trigger due process protection." Pet. App. 104. Its decision does not conflict with that of any other court of appeals. As this Court has long recognized, "(r)unning a prison is an inordinately difficult undertaking * * *" and "'courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform'" (Turner v. Safley, No. 85-1384, slip op. 5 (June 1, 1987) (citation omitted)). Prison administrators are accordingly given "wide-ranging deference" in the way they run their prisons. Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 126 (1977). Most assuredly in this context, the court of appeals was correct that not every transfer between different quarters, taken for health or safety reasons that officials have seen fit to write down, triggers due process procedures. 3. Finally, this case does not present an issue of continuing importance. As noted above (see note 5, supra), the Bureau of Prison no longer segregates all inmates who are possible AIDS carriers. When officials believe segregation is appropriate in an individual case, the individual is provided the type of protections claimed here. See 28 C.F.R. 541.62-541.67. Petitioner may be correct that similar issues will occur under state regulations and practices, but it is unclear how frequently they will arise or how the courts will resolve them. In any case, this Court has recognized that "whether any state statute (or regulation) provides a protectible entitlement must be decided on a case-by-case basis." Greenholtz, 442 U.S. at 12. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WILLIAM C. BRYSON Acting Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ANDREW LEVCHUK Attorney FEBRUARY 1989 /1/ AIDS is the accepted acronym for Acquired Immune Deficiency Syndrome, a disease characterized by infection with Human T-cell lymphotropic virus type three (HTLV-III virus). As did the court of appeals, we will refer to the HTLV-III virus as the AIDS virus. See Pet. App. 104 n.2. In the Operations Memorandum, AIDS is defined as infection with the HTLV-III virus plus the presence of opportunistic secondary infections like cancer or pneumonia, which take advantage of the immune system's reduced ability to battle infection; ARC (AIDS Related Complex) is defined as infection with the virus plus damage to the immune system, but no secondary infections; Pre-ARC is defined as a confirmed positive blood test for infection with the virus plus one or more symptoms of AIDS, but with no conclusive immune system damage. Pet. App. 47, 104 n.3. /2/ Under Bureau of Prisons' regulations adopted in October 1987, BOP may place AIDS carriers in "controlled housing" "when there is reliable evidence that the inmate may engage in conduct posing a health risk to another person." 28 C.F.R. 541.60 (1988). /3/ Petitioner relied on the following provisions, among others: (1) language in the Operations Memorandum providing that "(t)esting for the (AIDS) antibodies shall be performed only when determined by the Chief of Health Programs to be clinically indicated * * *" (Pet. App. 51); (2) the definition of "Pre-ARC" in the Operations Memorandum, which specifies that individuals must "have a confirmed positive blood test for infection with the AIDS virus and have at least one symptom/sign * * *" (Pet. App. 47 (emphasis in original)); (3) language in the operations Memorandum which states that "Pre-ARC cases must be discussed with the Medical Director" (Pet. App. 52); and (4) language in the Institution Supplement which provides that "Pre-ARCs * * * will ordinarily be transferred to (the restricted unit)" (Pet. App. 59). See generally Pet. 4-6. /4/ Petitioner repeatedly asserts (see, e.g., Pet. 14-16, 19) that the substantive content of the predicates -- here, the completion of certain medical procedures -- contained in the language at issue is irrelevant. Contrary to his contentions, however, the substantive content of the predicates will always need to be considered in order to determine whether a party's "expectation" arising from the language is "reasonable." /5/ By contrast, current BOP guidelines (see note 2, supra) direct that possible AIDS carriers remain in the general prison population; only those particular inmates reliably believed liable to "engage in conduct posing a health risk to another person" are segregated. See 28 C.F.R. 541.60. Because segregation is now an individualized security decision, the regulations provide notice, a hearing, assistance in representation, appeal rights and other procedural protections. See 28 C.F.R. 541.62-541.67. /6/ For similar reasons, the court of appeals correctly rejected petitioner's claim (Pet. 8 n.6, 12 n.10) that his transfer is covered by regulations and policies concerning administrative detention. See 28 C.F.R. 541.22-541.23. As relevant here, those regulations concern segregation imposed on particular inmates "when (an) inmate's continued presence in the general population poses a serious threat to life, property, self, staff, other inmates or to the security or orderly running of the institution * * *." 28 C.F.R. 541.22(a). The regulations are intended to guide individualized security determinations, are not triggered by medical considerations, and thus clearly "do not apply to medical determinations regarding isolation and treatment of infected and exposed inmates." Pet. App. 106. (Contrary to petitioner's suggestion (Pet. 8 n.6), the prison document to which he refers does not identify petitioner to be in "administrative detention" of the type described in Sections 541.22 and 541.23. See Pet. App. 18.)