Tenth Circuit Notes Split Re Baseline for Comparing Challenged Inmate Conditions

Per Jordan v. Federal Bureau of Prisons, Slip Copy, 2006 WL 1587456 (10th Cir. June 12, 2006):

It is well established that lawfully incarcerated persons retain only a narrow range of protected liberty interests, Abbott v. McCotter, 13 F.3d 1439, 1442 (10th Cir.1994), and “[t]he Due Process Clause standing alone confers no liberty interest in freedom from state action taken within the sentence imposed.” Sandin v. Conner, 515 U.S. 472, 480 (1995). . . . However, under the Supreme Court's decision in Sandin, the government may create a liberty interest protected by the Due Process Clause which is generally limited to freedom from restraint that “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”515 U.S. at 484. In determining whether the government has imposed an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” as required by Sandin, we consider the conditions of confinement, including both its duration and degree of restrictions, as compared with other inmates. . . .

When considering whether the conditions, duration or restrictions of confinement are atypical as compared with other inmates, this court has inconsistently used comparisons either with inmates in the same segregation or those in the general prison population. See Hill v. Fleming, 2006 WL 856201, at *4 (10th Cir. Apr. 4, 2006) (unpublished op.) (citations omitted). The Supreme Court has recognized, without deciding the issue, that the circuit courts are split on which baseline comparison to use. See Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 2394 (2005). In this circuit, regardless of which baseline we have utilized, this court “has never held the conditions, duration or restrictions of the detentions presented on appeal created a liberty interest····” Hill, 2006 WL 856201, at *4. Similarly, the majority of other circuits have also held no liberty interest arose in administrative detentions presented on appeal, while a few others have rendered contrary decisions.