Patrick v. Secretary, Department of Public Safety & Correctional Services

BARBERA, Judge. This appeal stems from the transfer of appellant, Joseph Patrick, from the Maryland House of Correction Annex (“MHC-X”), a maximum security prison, to the Maryland Correctional Adjustment Center (“MCAC”), a supermaximum security prison. The Commissioner of the Division of Correction (“DOC”) immediately ordered appellant’s emergency transfer to MCAC when he was charged with attempted escape. At a subsequent disciplinary hearing, appellant was adjudicated not guilty of attempted escape.

When appellant was not transferred back to MHC-X after this adjudication, he initiated grievance procedures, arguing that he was entitled to a transfer back to MHC-X. Appellant’s administrative and subsequent judicial review efforts have been unsuccessful, prompting the instant appeal. Appellant presents the following questions for our review: I. Is there a protected liberty interest in avoiding transfer to supermax?

II

Is the DOC bound by the fact-finding of its disciplinary hearing officer?

III

Is continued segregation of appellant without a factual basis arbitrary and capricious? For the reasons that follow, we affirm the judgment of the circuit court. FACTS AND PROCEEDINGS On April 26, 2000, appellant, an inmate housed at MHC-X, was charged with attempted escape from that facility. Later that day, appellant was transferred to MCAC.

Correctional ⁴²⁸ Officer Renee Cherry stated in the “Notice of Inmate Rule Violation and Disciplinary Hearing”: On April 26, 2000 I Ofc. Cherry was working D-building yard at approximately 9:15 a.m. [when] I observed an escape attempt. I noticed that inmate Joseph Patrick was standing in the back of the fence in the area where the escape took place. I radioed to control to report an escape in progress at which time inmate Patrick signaled to the inmates escaping in the grass.

I called control. I Ofc. Cherry believe that inmate Patrick was a look-out man due to the fact [that] he was the only inmate in the area at the time of the escape while all others were on the other side of the yard. Inmate Joseph Patrick # 213-986 [1] is in violation of Rule 106.

Appellant appeared before a hearing officer at a disciplinary hearing on May 4, 2000. Two inmate witnesses testified on appellant’s behalf. Both stated that appellant was not near the area of the attempted escape when it occurred. Officer Cherry did not testify.

The hearing officer credited the testimony of appellant, determined that Officer Cherry’s report was internally inconsistent, and found appellant not guilty of attempted escape. Appellant thereafter requested a transfer back to MHC-X. When the Assistant Commissioner did not act upon that request, appellant filed a complaint with the Inmate Grievance Office (“IGO”). After the IGO determined that appellant’s complaint met the preliminary criteria for a meritorious grievance, the IGO referred the matter to the Office of Administrative Hearings, entitling appellant to a hearing before an administrative law judge (“ALJ”). 2 Appellant represented himself at the grievance hearing on March 14, 2001. He argued that he was wrongly retained at MCAC because it had been determined by the disciplinary ⁴²⁹ hearing officer that he was not guilty of escape or attempted escape.

He specified that he was being punished for an act he had not committed, because he was now forced to remain at MCAC for at least two to three years as the result of the Assistant Commissioner’s placing him in Transfer Category Three (about which we say more, infra). Appellant called as a witness Patricia Briggs, the supervisor of his MCAC case management specialist. Ms. Briggs discussed the two Division of Correction Directives (“DCD”) that pertain to appellant in this instance. She explained that inmate transfers to MCAC are governed by DCD 100-161.

That directive provides that the Assistant Commissioner approve a request by another facility for transfer of an inmate into MCAC. In appellant’s case, that request for transfer was approved, and the Assistant Commissioner assigned appellant to Transfer Category Three. Ms. Briggs testified that, even though the disciplinary hearing officer had found appellant not guilty of a rule infraction, the Assistant Commissioner had the authority to make an independent decision that appellant should remain in Category Three. Appellant asked Ms. Briggs whether DCD 100-161 permitted him “to be subjected to punishment [for an act] that he is not guilty of,” to which she responded: Mr. Patrick, let me just say this to you.

You’re talking about two different DCD’s. When you talk about adjustments, you’re talking about DCD 105. When you talk about transfers to MCAC, we’re talking about 100-161 series which is two different DCD’s. You’re absolutely right in terms of, if you’re found not guilty, and say you were on work release and you lost your job and found not guilty, then the Case Management Department would bring you up for reclass back to your original status.

But in this particular incident, coming to the super max, it’s an entirely different DCD which is 100-161, that only the Assistant Commissioner makes the determination on whether [we] made a mistake.... [B]ased on the facts that were given to him, the documents that were sent to him by the Annex, he determined that you should remain here and ⁴³⁰ that you should remain in Category Three transfer category. Ms. Briggs went on to explain that “[t]his has nothing to do with guilt ... this has to do with transfer and it clearly states transfer.” On June 12, 2001, the ALJ issued a proposed decision. In the findings of fact section of the proposed decision, the ALJ found that appellant had been transferred to MCAC under Category Three of DCD 100-161. 3 The ALJ stated that Category Three applies to inmates transferred to MCAC for escape or attempted escape and requires a minimum two-to-three-year retention at MCAC; Category Three inmates receive an annual review and may be transferred when they have served fifty percent of their time at MCAC; and appellant’s status as a Category Three Transfer remained unchanged after his having been found not guilty of attempted escape by the disciplinary hearing officer. The ALJ noted that Category Ten of DCD 100-161 applies to inmates who are transferred for behavior or suspected behavior that is believed to be “detrimental to institutional security or public safety,” and that Category Eleven permits the transfer of an inmate by order of the Commissioner or pending an inmate’s investigation.

Categories Ten and Eleven require no minimum period of retention at MCAC before transfer. The ALJ also noted that only the Assistant Commissioner of the DOC (presumably as the Commissioner’s designee) has the authority to change an inmate’s transfer category. Because the Commissioner has complete discretion in authorizing the transfer of appellant into and out of MCAC, the ALJ denied and dismissed appellant’s grievance with respect to his request for a transfer to MHC-X. But, because the disciplinary hearing officer had found appellant not guilty of ⁴³¹ attempted escape, the ALJ recommended that “the Division of Correction reconsider and correct his transfer category, so as to change him from a Category Three Transfer (escape or attempted escape), to a Category Ten or Eleven transfer.” 4 By order dated June 19, 2001, the Secretary of the Department of Public Safety and Correctional Services (“Secretary”) ordered, without comment, that the ALJ’s proposed order be affirmed. Appellant, represented by counsel, sought judicial review in the Circuit Court for Baltimore City.

By order entered on December 10, 2001, the court affirmed the Secretary’s order. On January 10, 2002, appellant filed an application for leave to appeal to this Court, pursuant to Maryland Rule 8-204. 5 On October 22, 2002, we granted the application and transferred the case to this Court’s regular appeal docket. DISCUSSION I. Appellant argues that he has a liberty interest, protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution, 6 in avoiding continued incarcera ⁴³² tion at MCAC. In support of this claim, appellant directs us to the conditions and duration of his confinement at MCAC, which, he argues, encroach upon a protected liberty interest.

Appellant rests much of his argument on what he characterizes as the “draconian” conditions of confinement at MCAC, as reflected by various DCDs and the regulation that spells out the level of security that exists at supermax facilities. The Secretary points out as a preliminary matter that appellant failed to make a record before the ALJ that supports this contention, and we should therefore decline to address it. The Secretary, moreover, has filed a motion to strike portions of appellant’s appendix, arguing that the DCDs and institutional bulletin contained in it are not law. 7 The Secretary maintains that, “absent the ALJ accepting into evidence or taking notice of them, [these documents] are not part of the record on judicial review, and may not be considered by this court.” Relatedly, the Secretary asserts that appellant’s argument, which is that these documents illustrate how the conditions in MCAC impose an atypical and significant hardship on him in relation to the ordinary incidents of prison life at MHC-X, is being made for the first time on judicial review. We agree with the Secretary that appellant did not make any of the above-referenced materials part of the record below.

We shall nonetheless deny the Secretary’s motion to strike because the record reflects that appellant did attempt to have certain DCDs made part of the record before the ALJ, and she expressly declined to admit them into evidence. The ALJ said: I’ve just ruled on the admissibility—first of all, a DCD doesn’t have to be admitted into evidence, you can refer to it. We have the DCD’s in our office, that’s law. ⁴³³ So you don’t admit law, you admit facts and documents. If there is any debate about which DCD applies, I’ll hear that argument, but I don’t need to get a copy of the DCD anyway, but that particular DCD is not relevant to this case.

That appellant has prevailed on the motion to strike, however, brings him no ultimate relief, because the matters contemplated by the appendix material relate to an argument that he neither presented at the grievance hearing nor asked the ALJ to consider. Consequently, the issue is not preserved for our review. Md. Rule 8-131(a). Under Maryland law, a party is bound by the theory the party pursues before the administrative body, and the failure to present an argument precludes it from being heard by the reviewing court.

State Comm’n on Human Relations v. Kaydon Ring & Seal, Inc., 149 Md.App. 666, 699-700 , 818 A.2d 259 (2003). “Moreover, a reviewing court is restricted to the record made before the administrative agency, and is confined to [deciding] whether, based upon the record, a reasoning mind reasonably could have reached the factual conclusion reached by the agency.” Maryland State Ret. and Pension Sys. v. Martin, 75 Md.App. 240, 246 , 540 A.2d 1188 (1988). Appellant argued at the administrative level that he was deprived of due process because his classification as a Category Three Transfer meant that he would not be considered for transfer to another facility for at least two years and as much as three years, and that this was punishment for an act of which he was found to be not guilty. Even if we were to construe appellant’s argument before the ALJ broadly enough to encompass the argument he now makes, namely that he has a protected liberty interest in avoiding continued incarceration at a supermax prison, the argument rests entirely on the conditions of confinement at MCAC as reflected by various DCDs and the regulation that spells out the level of security that exists at supermax facilities. Yet, appellant presented no evidence regarding those conditions; more important, he pre ⁴³⁴ sented no evidence to show how they differed markedly from the conditions he faced while incarcerated at MHC-X. In short, the way in which appellant chose to litigate his grievance—the evidence he presented and the arguments he made—set the scope of the ALJ’s findings of fact, conclusions of law, and proposed decision.

Our review of the Secretary’s order adopting the ALJ’s proposed decision is narrowly circumscribed by the record before the ALJ, precluding us from deciding the complaint appellant raises here. 8 Notwithstanding appellant’s failure to preserve the issue for our review, we shall take this opportunity to comment upon it. We do so because of the dearth of Maryland cases on the subject of what constitutes an inmate’s protected liberty interest since the United States Supreme Court modified the test for analyzing such questions in Sandin v. Conner, 515 U.S. 472 , 115 S.Ct. 2293 , 132 L.Ed.2d 418 (1995). In Sandin , the Supreme Court “reexamine[d] the circumstances under which state prison regulations afford inmates a liberty interest protected by the Due Process Clause.” Id. at 474 , 115 S.Ct. 2293 . The Court abandoned the methodology it had developed in its prior decision of Hewitt v. Helms, 459 U.S. 460 , 103 S.Ct. 864 , 74 L.Ed.2d 675 (1983), because that methodology has led the courts to “stray[ ] from the real concerns undergirding the liberty protected by the Due Process Clause.” 515 U.S. at 483 , 115 S.Ct. 2293 .

The Supreme Court had instructed the courts in Hewitt to examine whether the particular state law or regulation at issue contained “language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed.” 459 U.S. at 471 , 103 S.Ct. 864 . If the statute or regulation used such mandatory language, then the state ⁴³⁵ had created a protected liberty interest. Id. at 472 , 103 S.Ct. 864 . The Supreme Court abandoned in Sandin this “mandatory language” approach because it prompted courts to scrutinize the language of the relevant statutes and regulations to ascertain whether they created a protected liberty interest.

The Court concluded that the Hewitt methodology “produced at least two undesirable effects.” 515 U.S. at 482 , 115 S.Ct. 2293 . “First, it creates disincentives for States to codify prison management procedures in the interest of uniform treatment.” Id. “Second, the Hewitt approach has led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone.” Id. The Supreme Court declared in Sandin that “[t]he time has come to return to the due process principles we believe were correctly established and applied in Wolff [v. McDonnell, 418 U.S. 539 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974) ] and Meachum [v. Fano, 427 U.S. 215 , 96 S.Ct. 2532 , 49 L.Ed.2d 451 (1976) ].” Id. The Court made clear that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Id. at 483-84, 115 S.Ct. 2293 (internal citations omitted) (emphasis supplied). Even under the Hewitt methodology that predated Sandin , however, “[a] transfer of a prisoner from one institution to another, of course, does not implicate a liberty interest in the absence of a state statute or regulation that creates such an interest.” Paoli v. Lally, 812 F.2d 1489, 1492 (4th Cir.), cert. denied, 484 U.S. 864 , 108 S.Ct. 184 , 98 L.Ed.2d 137 (1987). No Maryland statute or regulation existing at the ⁴³⁶ time of Paoli created such a protected interest. See id. at 1493 .

And, as far as we can discern, no statute or DOC regulation promulgated since Paoli would create a liberty interest in an inmate’s transfer from one institution to another, even if the Hewitt methodology remained viable in the post-Sandin era. 9 To the contrary, the relevant DCDs make clear that “the Commissioner or the Commissioner’s designees retain the discretion to modify the classification and/or assignment of any inmate at any time for any reason.” DCD 100-005.II.T; see also Watkins v. Secretary, Dep’t of Pub. Safety and Corr. Servs., 377 Md. 34, 36 , 831 A.2d 1079 (2003) (discussing same). Even if the reasoning and holding of Paoli were not enough to foreclose appellant’s argument, the test formulated in Sandin does.

As we have said, Sandin returns the protected liberty interest analysis to one that examines the nature of the conditions themselves, not the statute or regulation that creates them. And, the Supreme Court has made clear that transfer from one institution to another, even one that has more burdensome conditions, is “within the normal limits or range of custody which the conviction has authorized the State to impose.” Fano, 427 U.S. at 225 , 96 S.Ct. 2532 . A protected liberty interest is implicated only if the conditions existing at the facility where the inmate is housed are so “atypical” that exposure to them for a significant time “impose[s] a significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 483-84 , 115 S.Ct. ⁴³⁷ 2293 . Numerous cases stand for the proposition that unpleasant, even deplorable, prison conditions do not automatically trigger a protected liberty interest.

Illustrative is Beverati v. Smith, 320 F.3d 500, 504 (4th Cir.1997). In that case, the United States Court of Appeals for the Fourth Circuit, reviewing the grant of summary judgment in favor of the prison officials, declined to find a liberty interest despite the court’s accepting, as fact, inmate affidavits attesting that “their cells were infested with vermin; were smeared with human feces and urine; [ ] were flooded with water from a leak in the toilet on the floor above”; were so filthy that they had to use their clothing and shampoo to clean the cells; and were extremely hot. The inmates further alleged that their food was served cold and in smaller portions; they did not receive clean clothing, linen, or bedding in accordance with the regulations; they were not permitted to leave their cells the number of times per week allotted by the regulations; and they were