Charles E. Austin v. Reginald Wilkinson

*The Honorable Karl S. Forester, Chief United States District Judge
for the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0176P (6th Cir.)
File Name: 04a0176p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CHARLES E. AUSTIN et al.,
Plaintiffs-Appellees,
v.
REGINALD WILKINSON et al.,
Defendants-Appellants.
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Nos. 02-3429/3816
Appeal from the United States District Court
for the Northern District of Ohio at Akron
No. 01-00071—James Gwin, District Judge.
Argued: October 30, 2003
Decided and Filed: June 10, 2004
Before: MOORE and ROGERS, Circuit Judges;
FORESTER, Chief District Judge.*
2 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
1The additional named plaintiffs are Robert Baksi, Michael Benge,
Alonzo L. Bonne r, August Cassano, David E. Clark, James DeJarnette,
Roy D. Donald, David Easley, Brian K. Eskridge, Keith Gardner, Roger
Lee Hall, Frederick O. Harris, Jr., Daryl Heard, Edward O . Hodge, Orsino
Iacovone, Kunta Kenyatta, Stacy Lane, James D. Mitchell, Emanuel B.
Newell, John W. Perotti, Lamar Preston, Jason H. Robb, Kevin B. Roe,
Richard Siggers, Eric Swofford, Lahray Thompson, Edward A. T illey,
and M ark Trawick.
_________________
COUNSEL
ARGUED: Todd R. Marti, OFFICE OF THE ATTORNEY
GENERAL, Columbus, Ohio, for Appellants. Jules Lobel,
Pittsburgh, Pennsylvania, for Appellees. BRIEF: Todd R.
Marti, OFFICE OF THE ATTORNEY GENERAL,
Columbus, Ohio, for Appellants. Jules Lobel, Pittsburgh,
Pennsylvania, Raymond Vasvari, AMERICAN CIVIL
LIBERTIES UNION OF OHIO FOUNDATION, Cleveland,
Ohio, Alice Lynd, Nile, Ohio, for Appellees.
MOORE, J., delivered the opinion of the court, in which
FORESTER, D. J., joined. ROGERS, J. (pp. 24-31),
delivered a separate opinion concurring in part and dissenting
in part.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiffs-
Appellees Charles E. Austin et al.,1 (“Inmates”) all inmates at
the Ohio State Penitentiary (“OSP”) in Youngstown, Ohio,
filed this § 1983 suit as a class action against Defendants-

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 3
2Named additionally as defendants are Stephen J. Huffman, Bernard
J. Ryznar, Todd E. Ishee, Bruce A. Martin, Deborah Nixon Hughes,
Cheryl Jorgensen-Martinez, Manish B . Joshi, Patrick F. Biggs, Audrey
Sandor N ietzel, and M atthew Meyer.
Appellants Reginald Wilkinson et al.,2 Ohio Department of
Rehabilitation and Correction officials (“ODRC Officials”),
alleging Eighth Amendment violations as well as procedural
due process claims relating to their placement at the OSP
facility, which is a supermaximum, or supermax, facility. A
class was certified pursuant to Federal Rule of Civil
Procedure 23(b)(2), and the Eighth Amendment claims,
related primarily to medical care and the provision of outdoor
recreation, were settled. The due process claims for
declaratory and injunctive relief were then tried to the district
court, which rendered a judgment for the Inmates and entered
the injunctive orders at issue.
On appeal, the ODRC Officials raise two claims of error:
that the district court applied the wrong legal standards in
finding a constitutional violation, and that even if a violation
was correctly found, the remedial orders entered violate
18 U.S.C. § 3626, requiring particularized fact-finding by
federal district courts interfering with state prison practices.
Because we conclude that the district court did not err in
determining that a liberty interest existed in the prison
placement at issue and in modifying the procedures that
govern that placement, we AFFIRM that portion of the
district court’s judgments; because the district court erred,
however, in modifying substantive Ohio prison regulations,
we REVERSE AND REMAND that portion of the
judgments.
I. BACKGROUND
In May 1998, the OSP, Ohio’s supermax prison facility,
opened for business. Supermax facilities, in operation in
most of the states and in the federal prison system, represent
an attempt to concentrate the “worst of the worst” in one
4 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
facility, thereby making the rest of the general prison
population more safe and easier to control. Ohio’s supermax,
which is designated a high-maximum-security prison, was
built in response to an April 1993 riot at the Southern Ohio
Correctional Facility (“SOCF”). Prior to the construction of
the 504-bed OSP, Ohio’s most secure prison was the SOCF,
a maximum-security prison. Within the SOCF is an even
more secure cellblock, the J-1 cellblock, which houses twenty
cells. Before the OSP opened, Ohio did not fill the J-1 cells;
instead, it did not have enough maximum-security cells to
house inmates at that security designation. From these facts,
the district court concluded that the surplus of high-
maximum-security cells led to a “because we have built it,
they will come” mentality, with the surplus of maximum-
security inmates leading to placement of inmates at OSP who
did not meet the high-maximum-security requirements,
contrary to both corrections policy and constitutional norms.
See Austin v. Wilkinson (Austin I), 189 F. Supp. 2d 719, 724
(N.D. Ohio 2002).
When the OSP first received inmates in May 1998, it did so
in a concededly problematic and confused manner.
Appellants’ Br. at 11. On August 31, 1998, the department
“attempted to establish some predictability to placement at the
OSP by issuing Department of Rehabilitation and Correction
Policy 111-07”; the version of this policy in effect when the
Inmates filed their complaint (“old 111-07”) became effective
January 28, 1999. Austin I, 189 F. Supp. 2d at 727.
Placement at the OSP was synonymous with inmate
classification at a high-maximum-security level. Old 111-07
provided for a classification committee (made up of a deputy
warden and a mental health professional from the inmate’s
current institution, and a third official designated by the
warden), which would receive a written statement from the
prisoner as well as information provided by staff, and make
a recommendation to the warden. The warden then approved
or disapproved the recommendation, and sent the information
along to the Bureau of Classification (“Bureau”). Even if
both the classification committee and the warden agreed that

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 5
high-maximum-security classification was inappropriate for
an inmate, the Chief of the Bureau could still assign the
inmate to OSP. Placement at OSP renders an inmate
ineligible for parole during his time there. Austin I, 189 F.
Supp. 2d at 728.
Under this policy, though, problems continued. Some of
the more troubling instances of this haphazard system
occurred when the Bureau would, without stating its reasons,
overrule the recommendation of both the classification
committee and the warden and either place or maintain the
placement of an inmate at OSP; when inmates who would
otherwise be recommended for parole were ineligible because
of a suspect OSP placement; when multiple jumps in security
levels happened as a result of a single incident; when
decisions were made with little factual support; and when
decisions were based solely on the use or smuggling in of
small amounts of drugs. Id. at 734-36.
The goal of the OSP, to separate the most dangerous
prisoners from the rest of the prison population, is achieved
primarily through solitary confinement, of a type noticeably
different than segregation at other Ohio prisons. Inmates at
OSP spend twenty-three hours a day in their single cells,
measuring approximately 89.7 square feet. Id. at 724. These
cells are further isolated from the outside world by the
installation of metal strips on the bottom and sides of the cell
doors that prevent inmates from communicating with one
another. Id. During the one hour per day that inmates can
leave their cells, they have access to two indoor recreation
rooms; most inmates have recreation alone, although a limited
number may have recreation with one other prisoner. Id.
Inmates having visitors are required to be strip-searched when
they leave and reenter the cellblock, even though they are
isolated from their visitors by solid windows. Id. at 725.
Additional factual findings by the district court differentiate
life at OSP from segregation conditions at other Ohio prisons,
including extra limitations on personal property rights, access
6 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
3The procedural information and quoted language are taken from
new 111-07.
4W hen the district court made its findings and d ecision, only
prisoners classified as level five were placed at OSP. As noted ab ove, this
is no longer the case, as the ODR C is now placing level four prisoners at
OSP. The proced ure for placement at level four is essentially the same as
that set out in new 111-07 and found constitutionally inadequate by the
district court. Therefore, inmates are being placed at OSP without the
to telephones and counsel, outside recreation, and
communication with other persons. Id.
On January 1, 2001, the Inmates filed their complaint,
stating both procedural due process claims regarding
placement at OSP, the claims at issue on appeal, and Eighth
Amendment claims regarding inadequate medical and
psychiatric care, inadequate outdoor recreation facilities, and
harsh restraints used at OSP. The Eighth Amendment claims
were settled below. See Austin v. Wilkinson, No. 4:01-CV-71
(N.D. Ohio Apr. 5, 2002) (order approving settlement
agreement). A Fed. R. Civ. P. 23(b)(2) class was certified,
and the case was scheduled for trial in January 2002. On the
eve of trial, the ODRC released a new version of 111-07
(“new 111-07”), and it is the district court’s ordered
modifications to new 111-07, made after a bench trial, that are
at issue on this appeal. In old 111-07, prisoners were
classified as high-maximum-security and maximum-security;
in new 111-07, the security levels are instead level five and
level four. When the district court issued its decision, only
level five prisoners were housed at OSP, but the appellees
urge this court to take judicial notice of the decision by
Defendant Wilkinson to house inmates classified at both
levels four and five at OSP. Appellees’ Br. at 5 n.1. New
111-07 details both the substantive reasons for reclassification
and the procedures followed to reclassify, as well as the
conditions imposed on inmates in those classification levels.3
Various prison officials are empowered to initiate placement
into classification level five,4 using the “Security Designation

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 7
procedural protections ordered by the district court. Because the
complained-of deprivation of liberty is not reclassification by itself, but
placement at OSP which results from a level five classification, this seems
a particularly disingenuous way to evade the district co urt’s ord er in
advance of appellate review.
Long Form,” which provides a score sheet for inmates based
on their age, the severity of the offense triggering the
initiation of reclassification hearings, prior prison experience,
prior violent behavior, pre-prison gang activity, and escape
attempts; the prison official is also empowered to override the
numerical score for any of the reasons identified by 111-07 as
grounds for level five classification. These include assaultive
and/or predatory behavior; the nature of the inmate’s
conviction; leadership roles in riots or disturbances; the
possession of contraband; the identification of the inmate as
a leader of a “security threat group” (prison gang); escape
attempts; “an ability to compromise the integrity of [prison]
staff”; knowing exposure of others to HIV or hepatitis; or a
chronic inability to adjust to a lower security level. On
initiation of the reclassification, the warden establishes a
classification committee to review the inmate’s behavior and
determine whether in fact the inmate meets one of the level
five criteria. That committee is to hold a hearing to review
the form and any other relevant information; 111-07 entitles
inmates to forty-eight hours’ prior notice of that hearing and
the opportunity to appear and make both oral and written
presentations. The classification committee is to “document
information” presented by staff and the inmate, and determine
whether the inmate should be placed in level five. That
recommendation is then forwarded to the warden. If the
warden approves the recommendation, both the
recommendation and the approval are forwarded to the
Bureau of Classification for final decision. (If the warden
does not approve the recommendation, the process ends and
the inmate is not classified as level five). The inmate shall be
notified of the warden’s approval, and may file a formal
objection with the Bureau within fifteen days of notice. The
8 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
Bureau will then review the recommendation and any
objection and make a final decision. Additionally, within
thirty days of placement at OSP, the OSP staff reviews a
reclassified inmate’s placement, and if they recommend a
security reduction with which the OSP warden agrees, that
recommendation is sent to the Bureau. Review of OSP
inmates’ security levels is made at least annually and follows
essentially the same process as the initial classification
hearing.
In its opinion, issued on February 25, 2002, the district
court found the process specified in new 111-07 lacking. See
Austin I, 189 F. Supp. 2d at 750-52. The district court
identified the following deficiencies: that inmates are not
given notice of all the evidence that may be relied upon in
their classification hearings; that inmates are not allowed to
call witnesses; that the placement criteria give insufficient
notice of the amount of drugs in possession that would trigger
level five placement; that the placement criteria are
unnecessarily vague with regard to the gang activity that
would trigger a placement; that the final decisionmaker, the
Bureau of Classification, was not required to describe the
facts found and reasoning used in making its placement and
reclassification decisions; that the inmate is not given
adequate notice of the information to be considered at his
reclassification hearing; and that adequate notice of the
conduct necessary for the inmate to leave the OSP is not
given. The district court then ordered the parties to file
proposed injunctive orders; the ODRC Officials’ proposed
injunctive order was one and a half pages in length. On
March 26, 2002, the district court issued an injunction
directing the ODRC Officials to correct each of the
deficiencies it had found and issued an accompanying
judgment terminating the action under Rule 58. See Austin v.
Wilkinson (Austin II), 204 F. Supp. 2d 1024 (N.D. Ohio
2002). The ODRC Officials filed a timely notice of appeal on
April 17, which was docketed as Sixth Circuit Appeal
Number 02-3429. On April 24, they filed with the district
court a revised version of 111-07 (“revised 111-07"). On

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5The OD RC O fficials asked for relief under Rule 60(b)(6), (b)(1),
and (b)(4).
6The OD RC Officials had moved on June 6, 20 02, sim ultaneo us with
their Rule 60(b) motion, for additional time to file a notice of appeal from
the district court’s May 15 order. An extension was granted to July 15,
2002, pursuant to Federal Rule of Appellate Procedure 4(a)(5).
May 15, the district court ordered that policy adopted with
slight changes. On June 6, 2002, the ODRC Officials filed a
Rule 60(b) motion,5 which the district court denied on
July 12, ruling that the defendants were not surprised by its
judgment, and that it had the authority to order the injunctive
relief at issue. On July 12, the ODRC Officials filed a notice
of appeal from both the district court’s denial of their Rule
60(b) motion and its May 15 order adopting revised 111-07,6
docketed as Appeal No. 02-3816.
II. ANALYSIS
A. Jurisdiction
The underlying civil rights action was brought under
42 U.S.C. § 1983. The district court had original jurisdiction
under 28 U.S.C. § 1331. This court has jurisdiction under
28 U.S.C. § 1291.
B. Standard of Review
The ODRC Officials appeal from the grant of a permanent
injunction and the denial of a motion for relief from the
judgment, both of which are reviewed for abuse of discretion.
See Herman Miller, Inc. v. Palazzetti Imp. & Exp., Inc., 270
F.3d 298, 317 (6th Cir. 2001); Mallory v. Eyrich, 922 F.2d
1273, 1279 (6th Cir. 1991). In determining whether the
district court abused its discretion, we give great deference to
the district court, reviewing its legal determinations de novo,
but only disturbing its factual findings if they are clearly
erroneous. Elec. Workers Pension Trust Fund of Local Union
10 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
#58 v. Gary's Elec. Serv. Co., 340 F.3d 373, 378 (6th Cir.
2003).
C. Due Process Rights
1. Liberty Interest under Sandin v. Conner
Inmates challenge the procedures for classification at level
five under the Due Process Clause of the Fourteenth
Amendment, claiming that classification at that level and
concomitant placement at OSP implicates a state-created
liberty interest, and that the procedures in place before trial
were inadequate to protect this interest. Therefore, our
threshold inquiry is whether a state-created liberty interest
exists with regard to placement in Ohio’s supermax prison.
This inquiry is controlled by Sandin v. Conner, 515 U.S. 472
(1995), which mandates that a state creates a liberty interest
in avoiding certain prison conditions only where those
conditions are an “atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id.
at 484. Prior to Sandin, a state created a liberty interest
through using “‘language of an unmistakably mandatory
character’ such that the incursion on liberty would not occur
‘absent specified substantive predicates.’” Id. at 480 (quoting
Hewitt v. Helms, 459 U.S. 460, 471-72 (1983)). Sandin
shifted the focus from parsing the language of state statutes
and regulations to examining the severity of the conditions to
which an inmate would be subject.
The district court thus properly made factual findings as to
the conditions in OSP compared to the conditions in other
Ohio prisons, specifically in the segregated units of
maximum-security prisons, the most severe non-OSP
conditions in the Ohio system. The court found that the
extreme isolation visited upon the inmates at OSP, the lack of
any outdoor recreation, the limitations upon personal property
rights and access to telephones and counsel, and, finally, the
ineligibility of OSP inmates for parole, all combined to create
a significant and atypical hardship. The ODRC Officials’

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 11
7The Fifth Circuit has also remanded at least one case to a district
court with instructions to determine the prope r baseline if San din is
triggered. See Wilkerson v. Stalder, 329 F.3d 43 1, 436 (5th Cir. 2003).
But see Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 19 95) (“it is difficult
to see that any other deprivations in the prison context, short of those that
clearly impinge on the duration of confinement, will henceforth qualify
for constitutional ‘liberty’ status”). Carson v. Johnson, 112 F.3d 818, 821
(5th Cir. 1997), cited by the district court, does not in fact analyze state-
created liberty interests under San din, but instead evaluates fundamental
liberty rights under the three-strikes provision of the Prison Litigation
Reform Act (“PLR A”).
sole challenge on appeal to these careful findings is that the
district court erred by comparing conditions at OSP to
conditions at other Ohio prisons. They argue instead that the
proper baseline in determining atypicality is the conditions at
other supermax facilities around the country. Other circuits
that have decided the question have split over whether the
proper control group is the general prison population or
inmates in typical segregation conditions. Compare Beverati
v. Smith, 120 F.3d 500, 504 (4th Cir. 1997) (finding “the
conditions [at issue] were more burdensome than those
imposed on the general prison population” although not
sufficiently atypical), and Keenan v. Hall, 83 F.3d 1083, 1089
(9th Cir. 1996) (“a major difference between the conditions
for the general prison population and the segregated
population triggers a right to a hearing”), with Griffin v.
Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (administrative
custody is not “extraordinary” and “stays of many months are
not uncommon”), and Brooks v. DiFasi, 112 F.3d 46, 49 (2d
Cir. 1997) (explicit factual comparison between
administrative segregation and disciplinary segregation is
necessary). See also Hatch v. District of Columbia, 184 F.3d
846, 847 (D.C. Cir. 1999) (appropriate comparison is “the
most restrictive conditions . . . routinely impose[d] on inmates
serving similar sentences”); Wagner v. Hanks, 128 F.3d 1173,
1177 (7th Cir. 1997) (appropriate comparison is to the
conditions of nondisciplinary segregation in the state’s most
restrictive prison).7 None of the courts of appeals, however,
12 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
have adopted the novel and restrictive control group urged by
the ODRC Officials, which would as a matter of law make it
impossible for any inmates but those in the most harsh prison
in the country to make out a case for protection under Sandin.
The ODRC Officials point only to the Supreme Court’s
decision in Olim v. Wakinekona, 461 U.S. 238 (1983), and
dicta in Wagner, 128 F.3d at 1173, to support their argument.
Olim involved a challenge to an interstate prison transfer; the
Court held that no liberty interest was created by Hawaii state
prison regulations, and that the Due Process Clause of its own
force did not protect any liberty interest deprived by an
interstate prison transfer. Olim, 461 U.S. at 245-49. But
Olim’s holding has limited applicability when dealing with a
state-created liberty interest; that the Due Process Clause does
not of its own force protect against interstate transfers has
little to do with whether Ohio regulations create a liberty
interest in remaining outside of a supermax prison. Sandin
requires a situationally-based factual analysis; if it is typical
that an Ohio prisoner experiences conditions similar to those
of OSP, then state lines might truly be irrelevant. That,
however, is not the case; of 44,000 prisoners in the Ohio
system, only twenty to thirty have been transferred out of
state — a number that itself might give rise to atypicality, if
not hardship, if substantive state law limiting officials’
discretion in transfer existed — and not a single one has been
shown to have been transferred to a supermax. See Hatch,
184 F.3d at 857 (“What matters, therefore, is not simply the
possibility of transfer but also its likelihood.”). Olim, to the
contrary, relied heavily on the fact of interstate transfer as a
common occurrence, suggesting that no reasonable
expectation existed that any particular inmate would serve his
sentence within his state of conviction. Olim, 461 U.S. at
245-47. Even if the proper comparison in this case were
nationwide rather than statewide, the appropriate question
would be whether the OSP represented an atypical hardship
as compared to, at most, the typical conditions in
administrative or disciplinary segregation to which transferred
Ohio prisoners are subject, not those in supermaxes.

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 13
8This distinction also partially explains why Moore v. Litscher, No.
02-1461, 20 02 W L 31805012 (7th Cir. Nov. 27, 2002), and Nash v.
Litscher, No. 02-1705, 2002 W L 31444476 (7th Cir. Oct. 23, 2002), cited
by the concurrence for the proposition that avoidance of placement at a
supermax is not in and of itself a liberty interest under San din, are
inapposite. Moore cited to Olim in holding, “Prisoners do not have a
federally protected liberty interest in being house d in a particular facility.”
2002 WL 31805012 at *1. With respect to a state liberty interest, the
court held tha t “a failure to comply with state procedural rules does not
violate the federal constitution.” Id. The Moore court failed to partake
in any analysis under San din, and the case cannot stand for the
proposition that plac ement at a sup ermax could not implicate a liberty
interest created by the state. Nash noted simply that “Nash does not have
a liberty interest in his prison placement,” and cited to an earlier case,
Whitford v. Boglino, 63 F.3d 5 27, 5 32 (7th Cir. 1995). 2002 WL
31444476 at *2. Whitford held that no federal interest existed in prison
placem ent, and that Illinois state regulations, so far as the court
“understoo d,” did no t create such a liberty interest. Whitford also dealt
with transfer to a maximum security prison, rather than a supe rmax. All
three of these cases, Whitford, Mo ore, and Nash , were argued pro se in the
Seve nth Circ uit. W e do not think they can stand for the proposition that
careful factual findings in the district court demonstrating severe hardship
in prison conditions, atypical in a prison system, can never rise to the
level of a protected liberty interest without a parole deprivation.
Finally, Wagner is not to the contrary. First, as the Inmates
point out, the language relied upon by the ODRC Officials in
support of their claim is dicta. See Wagner, 128 F.3d at 1176.
Second, and more important, the Wagner court itself in its
analysis misses the important distinction between cases
narrowly defining the contours of the protection of the Due
Process Clause of its own force and those deciding when state
laws create a liberty interest. The Supreme Court has
repeatedly held that transfers in and of themselves do not
implicate due process interests (although it has not to date
dealt with transfer to a supermax prison), see Olim, 461 U.S.
at 238; Meachum v. Fano, 427 U.S. 215, 229 (1976), but the
Court has never held that state laws cannot create a liberty
interest in avoiding a transfer to a particularly harsh facility.
This key distinction goes wholly unaddressed by the ODRC
Officials.8
14 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
Ultimately, whether OSP is compared to the general prison
population of Ohio, or instead to inmates in typical
segregation conditions, which was the baseline used by the
district court, OSP constitutes an atypical and significant
hardship under Sandin, such that inmates enjoy a liberty
interest in not being placed at OSP absent the state-mandated
substantive predicates set out in new Policy 111-07. It is
therefore unnecessary to determine which is the proper
baseline for Sandin comparisons in order to decide this case,
but we reject emphatically the ODRC Officials’ argument that
the baseline should be out-of-state supermax prisons.
Whatever the “ordinary incidents of prison life” may
encompass, they must be decided with reference to the
particular prison system at issue, and can only be truly
“ordinary” when experienced by a significant proportion of
the prison population.
2. The Process That Is Due
Once a liberty interest has been established under Sandin,
we must turn to the question of what process is due to protect
that interest. At issue on appeal is the propriety of a set of
modifications made by the district court to the ODRC’s
policy governing classification at level five. Most of these
modifications concern the procedures used to classify
inmates, but three modifications are substantive predicates to
OSP placement and retention. We will analyze the procedural
modifications in greater depth below under the familiar due
process analysis of Mathews v. Eldridge, 424 U.S. 319
(1976), but the substantive modifications can be dealt with
more simply.
a. Modifications to Ohio’s Substantive Prison
Regulations
Prior to the district court’s modifications, inmates could be
placed at OSP for any contraband activity, no matter how
minimal. As its first substantive modification, the district
court directed that the policy be rewritten to specify a quantity

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 15
9W hile the Inmates challenged certain conditions at OSP under the
Eighth Amendment, claims that were settled below, they do not argue that
either the Eighth Amendment or the substantive protections of the Due
Process Clause create liberty interests in freedom from transfer to OSP
that require due process protection. We express no opinion as to the
viability of such a claim.
of contraband activity, and for drug activity, the district court
stipulated that the threshold amount should “reflect a level
that would subject an inmate to incarceration for at least a
third degree felony,” or alternately the court allowed
“placement for multiple violations involving lesser
quantit[ies] of drugs.” Austin II, 204 F. Supp. 2d at 1028.
The district court’s second substantive modification was to
the “security group threat” predicate for classification,
directing the ODRC Officials to modify the criteria to require
a greater showing of involvement in such groups. Third, the
district court required that only behavior in the five years
prior to a retention decision should be considered, and that an
inmate with three years free of violent behavior and two years
free of major misconduct “should generally qualify for
reclassification” to a lower level and transfer out of OSP, with
an exception to both of these rules if an inmate’s “prior
conduct during incarceration resulted in death or extreme
bodily harm.” Id.
The power of the federal courts to order modifications in
state prison policies extends only as far as is necessary to
protect federal rights. The Inmates do not argue and we do
not decide whether placement at OSP implicates either the
Eighth Amendment or the substantive portion of the Due
Process Clause.9 The federal right at issue in this case, then,
is defined solely in relation to the substantive limits placed on
the discretion of the ODRC officials by state law itself.
Therefore, the district court only had the power to order
federally mandated process in a substantive inquiry otherwise
governed by the state. The district court was thus without
power to order the state officials to modify the substantive
predicates which governed placement and retention at OSP.
16 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
See Washington v. Harper, 494 U.S. 210, 219-222 (1990)
(reviewing a state court’s substantive as well as procedural
modifications to state correctional regulations). Therefore,
regardless of their inherent soundness, these three
modifications must fail, as they order the ODRC to alter its
substantive rules governing OSP placement and retention.
While the district court correctly identified adequate notice
as a requirement of due process when making these changes,
see Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101,
1104-05 (6th Cir. 1995), we conclude that each of the
regulations provides sufficient notice and that the
modifications made by the district court are in fact
substantive modifications. For instance, new 111-07 states
that any amount of drugs can trigger a reclassification
hearing; altering the policy to require a specified amount does
not improve upon that notice but instead limits the substantive
discretion of the ODRC Officials. Similarly, the security
group modification alters the substantive grounds for
placement at OSP, rather than the process used in determining
that placement. And the modification to the retention criteria
also limits the substantive discretion of the Officials. While
the due process requirement of notice applies in the prison
context as well as outside of it, albeit slightly differently, see
United States v. Chatman, 538 F.2d 567, 569 (4th Cir. 1976),
any deficiencies in the notice provided by these provisions are
properly corrected through case by case “as applied”
challenges to the regulations, rather than striking the
regulations down on their face. See Parker v. Levy, 417 U.S.
733, 755-56 (1974); Adams v. Gunnell, 729 F.2d 362, 369-70
(5th Cir. 1984). We therefore reverse those portions of the
district court’s judgments that altered the contents of these
three substantive regulations.

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 17
10Like Judge Rogers, we are convinced that the “Hewitt/Wolff
dicho tomy” is not a viable form o f analysis; we note later that the district
court’s procedural modifications track Wolff only because the ODRC
officials had argued that the district court went beyond Wolff in ordering
certain modifications, most of whic h were directed at the “appellate”
process created by the ODRC.
b. Procedural Modifications
That a liberty interest exists in avoiding classification at
level five and concurrent placement in OSP is in many ways
the easy half of the Sandin analysis. What is much less clear
after Sandin is how to determine what process is due to
protect that interest. Before Sandin, state-created liberty
interests of prisoners were either protected by an adversary
hearing on the record following Wolff v. McDonnell, 418 U.S.
539, 563-73 (1974), or a more free-form hearing following
Hewitt, 459 U.S. at 477. Wolff dealt with the process due in
finding a disciplinary infraction punished by the rescission of
good-time credits; Hewitt involved a challenged placement in
administrative segregation, pending the outcome of an
investigation into misconduct. Cases following the
Hewitt/Wolff split have classified various factual situations
depending upon the category into which the challenged
process fell: disciplinary or administrative, historical or
prospective, objective or subjective, Wolff or Hewitt. On
appeal, the ODRC Officials assert that this mechanical
dichotomy still has force after Sandin, that classification at
level five and placement at OSP is a forward-looking, Hewitt-
type procedure, and that our inquiry should end there, with a
decision that only “Hewitt process” is due. We are
convinced, however, that Sandin called into question not only
the mechanistic way in which the circuit courts previously
found liberty interests in prison regulations, but also the
mechanistic fashion in which they applied the Hewitt/Wolff
dichotomy.10 After Sandin, both steps of the analysis — the
creation of a liberty interest and the determination of the
process due to protect that interest — must carefully reference
the severity of the deprivation at stake. It is not enough to say
18 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
11W e do not think that we d iffer so much from Judge Rogers in
describing this balance; we agree that the type of decision being made will
affect the private interest, the government interest, and the value o f certain
procedural safegua rds. W e only emph asize tha t the type of decisio n is
not, as the OD RC O fficials would have us hold, the only factor necessary
to determine what procedure is due. We believe, however, that in the face
of the substantial factual findings of the district court as to haphazard
ODRC placements, the pro cedural req uirement of no tice is particularly
impo rtant, and give great weight to its value in increasing acc uracy.
that a particular decision is “forward-looking”; instead,
reference must be made to the interests at stake, for the
inmate and for the state. It is not the nature of the decision
which strikes the due process balance; it is the nature of the
interests on both sides of that balance.11 With that in mind,
we approve of the district court’s grounding of its decision in
the due process balancing test outlined in Mathews v.
Eldridge, 424 U.S. at 335, and consider the procedural
modifications in light of that test. Mathews
requires consideration of three distinct factors: First, the
private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable
value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.
Id.
The district court made fifteen specific modifications to
new 111-07, including the improper substantive modifications
dealt with above. A first set deals with the classification
hearing itself, and closely tracks Wolff. First, when
classification proceedings are initiated, the notice already
stipulated by new 111-07 shall include an exhaustive list of
the reasons to be considered for placement and a summary of

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 19
the evidence to be presented. Second, the inmate shall be
allowed to present witnesses and documentary evidence at
classification hearings, where “permitting him to do so will
not be unduly hazardous or burdensome to institutional safety
or correctional goals.” J.A. at 530 (citing Wolff, 418 U.S. at
566). Finally, a record is to be made of the proceeding itself,
and if the ODRC wishes to rely on confidential witnesses, it
must indicate that reliance and disclose as much of the
confidential testimony as possible.
A second group of modifications required by the district
court centers on the administrative appellate procedure laid
out in new 111-07. Because no comparable appellate
procedure was at issue in Wolff, see 418 U.S. at 565, these
requirements do not track that case as closely. The district
court found that the previous system of administrative review,
in which each intervening appellate decisionmaker had
plenary power to reverse the prior decisionmaker without any
statement of reasons for the decision given to the inmate, had
led to suspect inmate classifications. The specific changes
ordered by the district court were: that the inmate is to
receive the classification committee’s recommendation and
notice of his right to and method of appeal; that the warden is
to engage in “independent review” of the committee’s
recommendation, and if in doing so, relies upon a confidential
witness statement not already made known to the prisoner,
shall follow the procedure outlined above, including allowing
the inmate to respond in writing; that the warden shall, if she
approves the recommendation, send a copy of that
recommendation to the inmate; and that the Bureau of
Classification shall follow the same procedure in relying on
new confidential witness statements, shall allow the inmate to
submit documentary evidence, and will, if the inmate is
recommended for level five placement, record a detailed and
specific justification for the decision. Finally, the district
court, in its May 15, 2002, order, required that none of the
members of the original classification committee shall take
part in the decision of the prisoner’s appeal to the warden or
to the Bureau.
20 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
12W e mean by this statement only to com pare those liberty interests
found to exist post-San din with those found to exist pre-San din. Because
the Court has made clear that many of the liberty interests found by courts
which would have in the past required certain pre-deprivation processes
are no longer viab le liberty interests, in looking over what courts have
required of priso n officials in the past, it is important to remember that
many liberty interests which required less pro cess in the past wo uld
require no process now. Any liberty interest which passes San din’s
thresho ld comes with a higher presum ption of pro cess due than those
which may have been found pre-San din.
The first factor of the Mathews balancing test, the private
interest at stake, is significant; placement at OSP is indefinite
and reviewed only annually, unlike placement in disciplinary
segregation in the Ohio prison system, which lasts only thirty
days, or administrative segregation, which is reviewed every
thirty days. Prisoners placed at OSP are deprived of all
significant human contact and have other restrictions placed
upon their movement and their personal privileges; they are
also ineligible for parole during their stay at OSP. In this first
factor, Sandin affects the due process balance: because only
those conditions that constitute “atypical and significant
hardships” give rise to liberty interests, those interests will
necessarily be of a weight requiring greater due process
protection.12 As to the second factor, the risk of error, the
district court made specific findings concerning past
erroneous and haphazard placements at OSP, which go
unchallenged on appeal. We will consider the probative value
of particular procedures in the next paragraph. As to the third
factor, the ODRC clearly has an interest in guaranteeing the
safety of its staff and inmates through the swift isolation of
dangerous inmates. However, the ODRC has a mechanism to
assure safety, one which does not require extensive process,
and which, unlike OSP placement, is easily and swiftly
reversible in the case of error: administrative segregation.
Looking at each of the modifications ordered by the district
court individually, we remain unconvinced that the district
court abused its discretion in finding that each procedural

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 21
13It is here we part ways with Judge Rogers — in determining what
process is due, we believe reference to what the state substantively
requires is the first step. In order to be placed at O SP, an inm ate must
fulfill one of those discrete, substantive historical predicates; the district
court correctly required that ODRC Officials place an inmate on notice of
what historical events will be used to demo nstrate his fulfillment of one
of those p redicates. The state itself has limited its ability to place inmates
at OSP; the combing through files predicted by Judge Ro gers is unlikely
in the face of the specific sub stantive predica tes identified in the state
scheme.
modification it made was mandated by the weighty private
interest at stake and the risk of error and was unmitigated by
the governmental interests at stake. We examine first the
requirement identified by the ODRC Officials both in their
brief and at oral argument as the most burdensome: requiring
officials to limit their placement decision to only those
matters detailed in the notice given to the inmate. They argue
that this requirement will constrict “substantive discretion” by
disallowing reliance on “rumor, reputation, and even more
imponderable factors.” Appellants’ Reply Br. at 8 (quoting
Hewitt, 459 U.S. at 474). This argument is unavailing.
Placement at OSP implicates a liberty interest because of the
ODRC’s own regulations limiting the substantive discretion
of prison officials; they can place inmates at OSP only in the
presence of certain factual predicates, all of which are
historical in nature. Having set out a detailed and restricted
list of reasons why inmates can be put at OSP, the ODRC
cannot turn around and argue that the district court’s order
decreases their ability to rely on “rumor, reputation, and even
more imponderable factors,” for those factors are illegitimate
under their own placement scheme.13 The district court
required that the “defendants will provide the inmate with
written notice of all the grounds believed to justify his
placement at level five and a summary of the evidence that
the defendants will rely upon for the placement.” Austin II,
204 F. Supp. 2d at 1026. We do not find that this
requirement’s burdens on the ODRC outweigh its probative
and protective value.
22 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
Having found that the additional procedural requirement
identified by the ODRC Officials as the most burdensome
passes muster under Mathews v. Eldridge, we conclude that
those which pose a lesser burden on the ODRC are also
appropriate. The ODRC Officials, both in their brief and at
oral argument, did not in fact point to any other single
procedural requirement as being particularly burdensome.
We note, moreover, that many of the procedures ordered by
the district court are an attempt to reconcile an elaborate
administrative appeals scheme created by the ODRC Officials
with the requirement that the inmate know the reason for any
decision made about his fate; where a higher-up
decisionmaker reverses the decision of the original factfinder,
a brief description of the grounds for that reversal is
constitutionally necessary.
D. Prison Litigation Reform Act
The ODRC Officials make a final argument that the district
court failed to follow 18 U.S.C. § 3626, part of the Prison
Litigation Reform Act (“PLRA”), governing prospective
relief. Their complaints center around the substantive
modifications made to new 111-07, which modifications are
indeed invalid for the reasons discussed above. They also
make a third, more general argument that the district court
erred in failing to make findings that the remedial orders are
necessary to correct “‘current and ongoing’ federal
violations.” Appellants’ Br. at 60. But the “current and
ongoing” language comes from § 3626(b)(3), governing the
termination of relief, not from § 3626(a), governing
requirements for initial relief. This argument therefore has no
merit.
III. CONCLUSION
Because the Inmates have a liberty interest in avoiding
placement at OSP, and because the procedural modifications
ordered by the district court are necessary to protect that
interest, we affirm those portions of the district court’s

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 23
14That paragraph concerns the procedural modification of
departmental notice to th e inmate of the inmate’s progress towards
reclassification, and is a proper procedural mo dification.
15The OD RC Officials appe al from the district court’s July 12 denial
of their Rule 60(b) motion; the only claims of error in that denial which
they make on appeal concern the substantive modifications to 111-07 that
we reverse in any case. T here is therefore no need to evaluate the
propriety of the district court’s denial of the Rule 60(b) motion on its own
merits.
judgments that address procedural requirements and
modifications. Because the district court was without power
to reach the substantive prison regulations which were also
modified, we reverse the district court’s judgments insofar as
they rely on the following: Part II of the district court’s
March 26, 2002 order, excepting the final paragraph;14 the
penultimate paragraph of the district court’s May 15, 2002
order; and the underlying portions of the district court’s
February 25, 2002 opinion.15 We therefore partially
AFFIRM and partially REVERSE the district court’s
judgments, and we REMAND to the district court for further
proceedings consistent with this opinion.
24 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
ROGERS, Circuit Judge, concurring and dissenting. While
I agree with much of the majority’s careful opinion, there are
two areas where my analysis differs sufficiently to warrant a
separate opinion, and one point upon which I respectfully
dissent.
A.
I agree that the Inmates have shown a protected liberty
interest under Sandin v. Conner, 515 U.S. 472 (1995), and
that in applying Sandin we are not required to make an
interstate, as opposed to intrastate, comparison. The record
shows that inmates assigned to OSP not only are subjected to
far more severe conditions of confinement, but they are also
disqualified for parole while assigned to OSP. These two
factors together permit the conclusion that a liberty interest is
implicated under Sandin.
Because assignment to the OSP involves disqualification
from parole, it is unnecessary for us to decide whether a
prison classification that subjects an inmate to more
restrictive conditions of confinement, without more,
constitutes a deprivation of a liberty interest. Recent
unpublished opinions of the Seventh Circuit hold that it does
not, even where assignment to a supermax prison was
involved. See Moore v. Litscher, No. 02-1461, 52 Fed. Appx.
861, 2002 U.S. App. LEXIS 25305 (7th Cir. Nov. 27, 2002)
(prisoners do not have a federally protected liberty interest in
being housed in a particular facility, and therefore, as a matter
of federal constitutional law, prisoner was not entitled to any
due process protection before he was moved to supermax
facility); Nash v. Litscher, No. 02-1705, 50 Fed. Appx. 317,
2002 U.S. App. LEXIS 22825 (7th Cir. Oct. 23, 2002)
(same). If movement from one level of restrictive

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 25
confinement to a significantly higher one triggers due process
protections, then prison administration could be unduly
burdened by the necessity of due process hearings. Courts
would then have to struggle with just how much of a change
in the severity of confinement triggers due process protection.
Fortunately, we do not need to decide the issue. In this case,
the decision to assign an inmate to OSP not only imposes
extraordinarily strict conditions, but also suspends parole
eligibility. While Ohio law does not create a liberty interest
in parole, see Ohio Rev. Code § 2967.03; Wagner v. Gilligan,
609 F.2d 866, 867 (6th Cir. 1979), a parole eligibility
determination can indirectly affect the length of a prisoner’s
incarceration, and is patently based on factors beyond the
consideration of prisoner safety and prison management. See
OHIO ADMIN. CODE § 5120:1-1-07 (2004); Layne v. Ohio
Adult Parole Auth., 780 N.E.2d 548, 555 (Ohio 2002)
(emphasizing that parole board may “consider any
circumstances relating to the offense or offenses of
conviction, including crimes that did not result in conviction,
as well as any other factors [it] deems relevant”).
Even though assignment to a very restrictive prison might
not by itself amount to a deprivation of a liberty interest, and
even though a suspension of parole eligibility by itself may
not amount to the deprivation of a property or liberty interest
in Ohio, the combination of the two deprivations, in the
context of the facts shown in the record of this case, amounts
to a deprivation of a protected interest for procedural due
process purposes. See Sandin, 515 U.S. at 487 (finding no
protected liberty interest in remaining free from disciplinary
segregation, but noting that disciplinary record did not
preclude parole); Neal v. Shimoda, 131 F.3d 818, 830 (9th
Cir. 1997) (finding that stigmatizing consequences of labeling
inmate as “sex offender,” combined with parole ineligibility
for non-completion of mandatory treatment program,
triggered due process protections under Sandin). By way of
analogy, the Supreme Court found a protected interest in
Owen v. City of Independence, 445 U.S. 622, 633 n.13
(1980), from the combination of a loss of at-will employment
26 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
(alone not a property interest under Board of Regents v. Roth,
408 U.S. 564 (1972)) and defamatory statements (alone not a
deprivation of a liberty interest under Paul v. Davis, 424 U.S.
693 (1976)).
B.
I also agree that the proper framework for evaluating
whether the state procedures meet the requirements of
procedural due process is the balancing test set forth in
Mathews v. Eldridge, 424 U.S. 319, 334-45 (1976). Such an
analysis requires that each procedural protection sought for
each category of administrative decisionmaking be evaluated
independently under the Eldridge factors. We are not
required to adopt for any prison-related decision the bundle of
procedures required by one or another Supreme Court case
dealing with different types of prison decisions. Thus
discussion of the Hewitt/Wolff “dichotomy” is problematic.
Many deprivations of liberty interests in prison, and certainly
the ones in this case, are different in important respects both
from the disciplinary rescission of good-time credits in Wolff
v. McDonnell, 418 U.S. 539 (1974), and from the
administrative segregation in Hewitt v. Helms, 459 U.S. 460
(1983). The sought procedures may also vary. In short, the
balance has to be context-specific. Thus whether or not a
particular procedure imposed by the district court “tracks
Wolff” by itself does not tell us whether it is required by
Eldridge. On the other hand, of course, the Supreme Court’s
analysis with respect to what procedures are required to
protect a particular liberty interest do provide guidance where
the procedures or the interests are in relevant respects
analogous. Thus to the extent, for instance, that Hewitt
instructs that additional procedures with respect to “forward-
looking” determinations are less likely to increase the
accuracy of such decisions (the second Eldridge factor), 459
U.S. at 473-74, that guidance may appropriately be
applied—not categorically but as part of the weighing—in
other cases involving different procedures and different
liberty interests.

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 27
1I agree that the substantive requ irements must be reversed, for the
reasons stated in Part II(C)(2)(a) of the majority opinion.
I would also qualify the majority’s statement that “[i]t is
not the nature of the decision which strikes the due process
balance; it is the nature of the interests on both sides of that
balance.” The Eldridge balance involves three factors, two of
which can be characterized as “the nature of the interests on
both sides.” The other, often dispositive factor, however, is
the degree to which the desired procedures will increase the
accuracy of agency decisionmaking. That determination
often does depend on “the nature of the decision” in the sense
that some types of decisions will be greatly benefited by
certain procedures, while others may not.
C.
Applying the Eldridge analysis, I would uphold all of the
procedural requirements imposed by the district court except
the requirement that officials limit their placement decision to
those matters detailed in the notice to the inmate.1
At the outset, I note that our scope of review is de novo for
legal issues such as whether procedural due process requires
certain procedures, even though the issue is presented on
appeal from the entry of an injunction. See Chao v. Hosp.
Staffing Servs., Inc., 270 F.3d 374, 381 (6th Cir. 2001) (“A
court abuses its discretion when it relies on clearly erroneous
findings of fact, applies an inappropriate legal standard, or
improperly applies the law, with such legal questions
receiving de novo review in the Court of Appeals.”), South
Cent. Power Co. v. Int’l Bhd. of Elec. Workers, 186 F.3d 733,
737 (6th Cir. 1999) (“A district court’s decision to grant or
deny a permanent injunction is reviewed under several
distinct standards. Factual findings are reviewed under the
clearly erroneous standard, legal conclusions are reviewed de
novo, and the scope of injunctive relief is reviewed for an
abuse of discretion.”). The scope of equitable relief may be
28 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
discretionary in some sense, such that review of injunctive
orders may sometimes be for abuse of discretion, but
precisely speaking a district court does not have discretion to
determine whether due process requires a hearing in a
particular context. We properly review such a legal issue de
novo.
The comprehensive notice requirement imposed by the
district court essentially provides inmates with notice of all of
the evidence that may be relied on in determining his
placement. Significantly, this requirement provides inmates
appearing before classification committees with more notice
than that received by criminal defendants at trial, where the
liberty interests at stake are obviously more substantial. See
Fed. R. Crim. P. 16; Weatherford v. Bursey, 429 U.S. 545,
559 (1977) (“There is no general constitutional right to
discovery in a criminal case. . .[and] the Due Process Clause
has little to say regarding the amount of discovery which the
parties must be afforded. . .”). As the Supreme Court has
recognized, “[p]rison disciplinary proceedings are not part of
a criminal prosecution, and the full panoply of rights due a
defendant in such proceedings does not apply.” Wolff, 418
U.S. at 556. In my view, the comprehensive notice
requirement extends beyond what due process requires.
In upholding the district court’s requirement, the majority
relies on Sandin to conclude that the liberty interest in this
case is particularly weighty. If anything, however, the
opposite inference is warranted. That is, under Sandin, a
liberty interest arises from “atypical and significant
hardships” not implicit in the original sentence. Typical or
less significant hardships thus do not even rise to the level of
a protected liberty interest. It is only the atypicality or the
extraordinary significance of the hardship that is even enough
to raise due process concerns. It follows that a hardship that
is only marginally atypical and marginally significant should
only be given marginal weight in an Eldridge analysis. It is
illogical to say that any interest that meets the Sandin test
must be of a weight requiring greater due process protection.

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 29
On the contrary, a prisoner gains due process protection under
Sandin only when the hardship exceeds typical hardship.
Because in a sense it is the excess over typical hardship that
warrants due process protection, it is logical that it be that
excess that is weighed as the private interest in the Eldridge
analysis. Since that excess may be very small, the fact that
the interest was determined under Sandin may instead imply
that the private interest be given a lesser weight than in the
case of another type of protected property or liberty interest.
In any event, the fact that the liberty interest is determined
under a Sandin analysis cannot, without more, lead to the
conclusion that the interests will be deemed to weigh
particularly heavily.
Secondly, we must evaluate the increase in accuracy that
will result from the procedural requirement that the
decisionmakers limit their placement decision to the grounds
and evidence detailed in the notice given to the inmate. A
general finding that erroneous and haphazard placements have
occurred in the past is insufficient. Instead, under the second
factor of Eldridge, we must evaluate the extent that the
particular procedural requirement increases the accuracy of
the decisionmaking.
Under the ORDC Officials’ new policy 111-07, inmates
received written notice explaining the reasons they were
referred for a classification hearing. See J.A. at 716, 731.
The district court ordered that, not only must ORDC officials
provide advance written notice of the reasons for the referral
to a hearing, but that they must also provide “written notice
of all the grounds believed to justify [placement] and a
summary of the evidence that the [officials] will rely upon for
the placement.” Austin v. Wilkinson, 204 F. Supp. 2d 1024,
1026 (N.D. Ohio 2002). The district court added a footnote
that appears to preclude consideration of evidence not
described in the notice: “If [ORDC Officials] elect to use [a
proposed form] to give an inmate notice, they must limit the
grounds stated on the form and the evidence generally
described on the form, to support placement at OSP.” Id.
30 Austin et al. v. Wilkinson et al. Nos. 02-3429/3816
The majority fails to explain, however, how requiring ORDC
officials to provide an inmate with such comprehensive notice
increases the accuracy of the placement decision for a given
inmate. The district court reasoned that
[r]equiring Department officials to give inmates specific
notice of all of the grounds for placing and retaining
them at OSP would cause minimal hardship. The
officials would only need to expend the additional time
to write out their reasons for making a specific
classification decision. Furthermore, this minimal
amount of additional time would increase the
Department’s efficiency. Accurately summarizing all the
grounds supporting an inmate’s placement at the OSP
would later assist reviewing entities and avoid
unnecessary prisoner assignments to the OSP.
Austin v. Wilkinson, 189 F. Supp. 2d 719, 746 (N.D. Ohio
2002). The district court’s analysis misapprehends the burden
that a comprehensive notice requirement imposes on the
government. In making such decisions, ORDC Officials rely
on a wide range of information. The hardship in expending
additional time to write out reasons for making a specific
classification decision may indeed be minimal. However,
requiring that, prior to even conducting a hearing, ORDC
Officials cull through often voluminous records and note
every potentially relevant fact —on pain of barring them from
considering any information, no matter how relevant, that was
inadvertently omitted —is significantly more onerous. Such
burdens have not been shown to be outweighed by the
improvement in accuracy—assuming there is any— asserted
to arise from the comprehensive notice requirement.
Nor is the comprehensive notice requirement necessary to
vindicate the interests cited by the district court. Under the
procedural process required by the district court, the
classification committee is responsible only for making the
initial recommendation concerning whether an inmate should
be assigned to OSP; both the warden (or the warden’s

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Nos. 02-3429/3816 Austin et al. v. Wilkinson et al. 31
designee) and the Bureau of Classification must agree with
the committee’s recommendation before an inmate can be
placed at OSP. Austin v. Wilkinson, 204 F. Supp. 2d 1024,
1026-28 (N.D. Ohio 2002). At each stage in the process, an
inmate must be given a written statement explaining the
justification for the placement recommendation and the
evidence supporting it, as well as an opportunity to respond
to the recommendation in writing. This process provides both
a written record for review and ample opportunity for inmates
to challenge their placement. Accordingly, I would find that
the notice required under the new 111-07 is sufficient to
satisfy due process in this context.
As to the remaining procedures imposed by the district
court, the Government has failed to articulate in any
significant manner how they burden the government. On
their face the additional procedural requirements appear to
increase the accuracy and reliability of the decisionmaking
process, and they were arrived at by careful consideration by
the district court. The private interest is substantial. I
therefore agree that the procedural requirements imposed by
the district court, apart from the one discussed above, were
properly imposed by the district court.
Conclusion
For the foregoing reasons, I concur in the judgment except
to the extent that it upholds the requirement that ORDC
Officials provide comprehensive notice to inmates appearing
before classification committees.

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