Ford v. Bender

2014 | Cited 0 times | First Circuit | September 24, 2014

United States Court of Appeals For the First Circuit

Nos. 12-1622 12-2142


Plaintiff, Appellee,



Defendants, Appellants.



[Hon. Judith G. Dein, U.S. Magistrate Judge]


Lynch, Chief Judge, Selya and Howard, Circuit Judges.

Nancy Ankers White, Special Assistant Attorney General, with whom William D. Saltzman, Counsel, Department of Correction, was on brief, for appellants. Lisa J. Pirozzolo, with whom Emily R. Schulman, Timothy D. Syrett and Wilmer Cutler Pickering Hale and Dorr LLP were on brief, for appellee.

September 24, 2014

HOWARD, Circuit Judge. The Supreme Court has made clear

that a pretrial detainee enjoys a due process right to be free from

punishment. Bell v. Wolfish, 441 U.S. 520 , 535 (1979). At the

same time, a state has a valid interest in promoting the security

of detention facilities for the safety of detainees and staff. Id.

at 540. This case, concerned with an individual inmate,

illustrates one way in which these two interests might come into


Plaintiff-appellee Albert Ford was held in disciplinary

segregated confinement throughout a period of pretrial detention

and into a subsequent criminal sentence as punishment for conduct

that had occurred while he was imprisoned during a prior criminal

sentence. The district court1 ruled that Ford's punitive

disciplinary confinement violated due process, and the court also

largely denied two high-ranking prison officials' claims of

qualified immunity, awarding Ford partial money damages and

equitable relief as well as attorneys' fees and costs.

We reverse the denial of qualified immunity, and

therefore reverse the award of money damages against the prison

officials in their individual capacities, because we find that the

defendants did not violate Ford's clearly established rights. We

also vacate on mootness grounds the declaratory and injunctive

1 The parties agreed to proceed before a magistrate judge. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73(b). We refer throughout to the relevant rulings as those of the district court.


relief ordered by the district court. We remand for the district

court to determine appropriate attorneys' fees and costs as to any

equitable relief not moot when issued.


A summary of the facts and procedural background of the

case suffices. Greater detail is amply provided by the district

court's numerous opinions. See Ford v. Bender (Ford V), 903 F.

Supp. 2d 90 (D. Mass. 2012); Ford v. Bender (Ford IV), No. 07-

11457, 2012 WL 1378651 (D. Mass. Apr. 19, 2012); Ford v. Bender

(Ford III), No. 07-11457, 2012 WL 262532 (D. Mass. Jan. 27, 2012);

Ford v. Bender (Ford II) No. 07-11457, 2010 WL 4781757 (D. Mass.

Nov. 16, 2010); Ford v. Clarke (Ford I), 746 F. Supp. 2d 273 (D.

Mass. 2010).

Factual Background

In 1992, Ford was sentenced in state court to fifteen to

twenty-five years imprisonment in the custody of the Massachusetts

Department of Correction (DOC) at the Massachusetts Correctional

Institution at Cedar Junction (MCI-Cedar Junction), a state

penitentiary in Walpole, Massachusetts.2 While serving his

sentence, Ford was repeatedly housed in the Department Disciplinary

Unit (DDU), a segregated maximum security housing unit, for

offenses committed during confinement. These included being in

2 Based on his sentence, Ford's anticipated release date would have been between 2007 and 2017.


possession of a weapon, conspiring to introduce heroin, and

conspiring to assault other inmates.

In 2002, while housed in the DDU, Ford violently attacked

two officers and took a nurse hostage. The officers had escorted

Ford to a triage room and adjusted his handcuffs to allow him to

test his blood sugar and administer his insulin. While his right

hand was un-cuffed, Ford produced a four-and-a-half inch shank from

his clothing, stabbed both officers twice, and held the weapon to

the nurse's throat until other staff arrived. One officer required

immediate medical attention for the puncture wounds in his mid and

lower back. In January 2003, after a full disciplinary hearing,

Ford was given the administrative sanction of a ten-year term in

the DDU, the maximum DDU sanction possible. The hearing officer

explained that "Inmate Ford is a danger to staff and his continued

placement in the Department's most secure setting is warranted."

At that point, Ford had years left on his state sentence of fifteen

to twenty-five years imprisonment.

Ford's 2002 misconduct in prison had state law criminal

consequences as well. In 2002, he was charged with and indicted

for armed assault with intent to murder. See Mass. Gen. Laws ch.

265, §§ 15B, 18.

Ford completed his original criminal sentence on January

6, 2007, less than the twenty-five year maximum; the record is

unclear as to why. He remained, however, in the custody of the DOC


as a pretrial detainee for the new criminal assault with intent to

murder charge. See id. ch. 276, § 52A. The Deputy Commissioner of

Correction at the time, defendant-appellant James Bender, made the

decision to keep Ford in the DDU to continue serving his ten-year

sanction without a new hearing, despite the change in Ford's status

from sentenced inmate to pretrial detainee. Bender testified that,

"[b]ased on . . . his entire history, my serious concerns about

safety and security of staff and inmates, I felt that the most

appropriate placement for him at that time was at DDU."

In March 2007, Ford was granted bail in the pending

assault case, and he was released from the DOC's custody. On June

26, 2007, however, the state court revoked his bail based on a

charge that he had mailed heroin to an inmate. He was returned to

MCI-Cedar Junction. Bender once more consigned Ford, still a

pretrial detainee on the pending assault charge, to the DDU to

continue serving the previously imposed ten-year sanction, without

any new hearing on whether that sanction should be enforced.

In July 2007, Ford first protested his continued

confinement in the DDU. Defendant-appellant Peter St. Amand, the

Superintendent of MCI-Cedar Junction, advised Ford in a written

communique that he was "properly housed in the DDU serving the

remainder of a ten (10) year DDU sentence that [he] received [in

2003]." The communique further averred that Ford's status as a


pretrial detainee did not bar the DOC from requiring him to serve

out the previously imposed disciplinary sanction.

On April 30, 2008, Ford pled guilty to the pending

criminal charges of assault with intent to murder and mailing

heroin to an inmate. By pleading guilty to assault with intent to

murder, Ford admitted to the same conduct for which the ten-year

DDU sanction had been imposed. The court sentenced Ford to four to

five years in prison with credit for time served. Bender kept

Ford, now a convicted and sentenced inmate, in the DDU to serve out

the balance of the ten-year sanction. No additional hearing was

held after Ford's guilty plea.

Unsurprisingly, the record reflects that conditions in

the DDU are considerably more onerous than conditions of

confinement for the general population at MCI-Cedar Junction.

While confined in the DDU, an inmate is kept for twenty-three hours

a day in a cell measuring seven by twelve feet. Each cell has a

solid steel door with a small inset window; a narrow window to the

outdoors; a cement bed, desk, and stool; and a toilet visible

through the inset window. A DDU inmate typically leaves his cell

for only one hour a day to exercise (five days a week) and to

shower (three days a week). He is subject to strip searches

whenever he enters or leaves his cell. When a DDU inmate is out of

his cell for any reason, he is manacled and placed in leg chains.


DDU inmates are socially isolated. Each inmate receives

his meals through a slot in the steel door and is given only twenty

minutes to eat. The prison library is off-limits, although a DDU

inmate may receive law books from a "book cart," which requires a

formal request and typically results in a wait of eight days.

Communication with other inmates, guards, and the outside world is

severely restricted: at a maximum, four monthly noncontact visits

and four monthly telephone calls may be earned as a privilege for

good behavior.

While any prisoner would suffer under these severe

conditions, Ford was particularly unsuited to them due to his Type

I diabetes. Ford required regular insulin shots and, while in the

DDU, he received fewer shots than needed. This shortfall resulted

in blood sugar spikes causing headaches, dizziness, a racing heart,

shakes, and tremors. Diabetic neuropathy led to burning, tingling,

and numbness in his feet and ankles. The leg irons cut his ankles

and the numbness exacerbated these cuts, which often became


Procedural Background

On July 31, 2007, Ford filed a pro se complaint in the

U.S. District Court for the District of Massachusetts. The court

appointed pro bono counsel.

In Ford's second amended complaint, filed on July 11,

2008, he invoked 42 U.S.C. § 1983, charging DOC officials acting in


both their representative and personal capacities, including Bender

and St. Amand, with violating his substantive and procedural due

process rights. The parties later filed cross-motions for summary

judgment on the liability issues. The district court rendered a

mixed decision. It ruled that Bender and St. Amand had violated

the plaintiff's substantive due process rights by confining him in

the DDU as a pretrial detainee, and that Bender had violated the

plaintiff's procedural due process rights by continuing to confine

the plaintiff in the DDU, both as a pretrial detainee and as a

sentenced inmate in 2008, without a new hearing. Ford I, 746 F.

Supp. 2d at 288-96. In connection with these rulings, the court

largely denied the defendants' quest for qualified immunity,

although the court ruled that qualified immunity protected Bender

from individual liability for the period during which Ford was a

sentenced inmate. Id. at 296-98. Relying on its rulings in the

summary judgment memorandum, the court entered a formal declaration

that the defendants' actions were unconstitutional. See Ford II,

2010 WL 4781757 , at *1. The court rejected a number of other

claims against Bender, St. Amand, and other defendants.

A three-day bench trial on the issue of damages and

injunctive relief took place on July 25, 26, and 27, 2011. On

January 27, 2012, the district court awarded the plaintiff $47,500

in money damages against the defendants in their individual

capacities. Ford III, 2012 WL 262532 , at *17-18. It also issued


equitable relief, requiring the defendants in their official

capacities to ensure the plaintiff's access to transitional

programs during the remainder of his sentence and to deem the ten-

year disciplinary sanction satisfied. See id. at *17.

The plaintiff, as the prevailing party, see 42 U.S.C.

§ 1988(b), moved for attorneys' fees and costs. The defendants not

only opposed this motion but also sought to vacate the judgment.

The district court denied the motion to vacate, Ford IV, 2012 WL

1378651 , at *2, and awarded the plaintiff $258,000 in attorneys'

fees and $20,456.36 in costs, Ford V, 903 F. Supp. 2d at 104.


The defendants filed two appeals, which we consider

together. The defendants challenge: (1) whether the DOC defendants

are entitled to qualified immunity on Ford's substantive and

procedural due process claims; (2) whether the Prison Litigation

Reform Act's (PLRA) physical injury requirement for recovering

damages is satisfied; (3) whether the equitable relief ordered by

the district court is rendered moot by Ford's conviction on the

assault charge or, alternatively, by his ultimate release from

prison; and (4) whether the award of attorneys' fees should be

reversed. Given our holdings on qualified immunity, we need not

address the defendants' contention under the PLRA. The other

issues we take up in turn.


A. Qualified Immunity

The district court decided the qualified immunity issue

on summary judgment, holding that the defendants are not entitled

to qualified immunity for their conduct during the period that Ford

was a pretrial detainee.3 See Ford I, 746 F. Supp. 2d at 280. We

review de novo a district court's entry of summary judgment,

considering whether the moving party is entitled to judgment as a

matter of law. See Morelli v. Webster, 552 F.3d 12 , 18 (1st Cir.

2009); see also Fed. R. Civ. P. 56(a). That standard is unaffected

where, as here, cross-motions for summary judgment are in play.

See Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30 , 34 (1st Cir.

2005). As with all determinations made at the summary judgment

stage, in determining whether qualified immunity is appropriate, we

view the facts in the light most favorable to the nonmovant. Tolan

v. Cotton, 134 S. Ct. 1861 , 1866 (2014).

Qualified immunity is a judge-made doctrine designed to

curtail the legal liability of public officials. See Pagán v.

Calderón, 448 F.3d 16 , 31 (1st Cir. 2006). All state actors except

"the plainly incompetent [and] those who knowingly violate the

3 While the district court found that Ford's continued confinement in the DDU without a new hearing after he was convicted of the assault was also a violation, the court found that the law was not clearly established at the time and therefore granted qualified immunity on this claim. Ford I, 746 F. Supp. 2d at 298. The defendants' appeal of the qualified immunity ruling therefore focuses exclusively on whether defendants' confinement of Ford in the DDU as a pretrial detainee was clearly unconstitutional at the time.


law," are shielded from individual liability for damages under this

doctrine. Malley v. Briggs, 475 U.S. 335 , 341 (1986).

A two-part framework governs whether a defendant is

entitled to qualified immunity. See Haley v. City of Boston, 657

F.3d 39 , 47 (1st Cir. 2011). First, we inquire whether the facts,

taken most favorably to the party opposing summary judgment, make

out a constitutional violation. See Pearson v. Callahan, 555 U.S.

223 , 232 (2009). Second, we inquire whether the violated right was

clearly established at the time that the offending conduct

occurred. See id. The second, "clearly established," step itself

encompasses two questions: whether the contours of the right, in

general, were sufficiently clear, and whether, under the specific

facts of the case, a reasonable defendant would have understood

that he was violating the right. Maldonado v. Fontanes, 568 F.3d

263 , 269 (1st Cir. 2009).

Federal courts have discretion to bypass the first step

of the qualified immunity framework and to focus instead on the

second step. Id. at 269-70. The defendants ask us to do so here.

They state that the issue before the court is whether reasonable

prison officials would have understood "that continuing a lawful

DDU sanction during a subsequent period of pretrial detention

constituted impermissible punishment proscribed by Bell" and that

the "2003 ten-year DDU sanction did not provide adequate process

for [Ford's] 2007-2008 pretrial DDU placement." We find that


reasonable officials in the defendants' shoes would not have

understood that their actions violated the plaintiff's

constitutional rights. Since the law was not clearly established,

the defendants are entitled to qualified immunity.

In reaching this conclusion, we consider the plaintiff's

substantive and procedural due process claims separately.4 The

right to substantive due process "implicates the essence of state

action rather than its modalities." Amsden v. Moran, 904 F.2d 748 ,

753 (1st Cir. 1990). This right protects individuals from state

actions that are "arbitrary and capricious," "run counter to the

concept of ordered liberty," or "appear shocking or violative of

universal standards of decency." Id. at 753-54 (internal quotation

marks omitted). The heartland of the right to procedural due

process, as the name implies, is a "guarantee of fair procedure."

Zinermon v. Burch, 494 U.S. 113 , 125 (1990). This right assures

individuals who are threatened with the deprivation of a

significant liberty or property interest by the state notice and an

opportunity to be heard "'at a meaningful time and in a meaningful

manner.'" Amsden, 904 F.2d at 753 (citing Armstrong v. Manzo, 380

U.S. 545 , 552 (1965)). The merits of the deprivation itself are

4 The plaintiff framed his due process claims in terms of both the Due Process Clause, U.S. Const. amend. XIV, and the parallel provisions of the Massachusetts Declaration of Rights. The parties have agreed that the same standards govern both the federal and state claims. For economy in exposition, we discuss only the federal constitutional claims.


immaterial to the procedural due process analysis. Carey v.

Piphus, 435 U.S. 247 , 266 (1978). We discuss separately the

substantive and procedural due process claims before us to

determine whether Ford can make out a violation under either of a

right that was clearly established in 2007-2008.

Substantive Due Process

By definition, pretrial detainees have not been convicted

of the crime or crimes with which they are charged. Consequently,

they receive constitutional protections superior to those afforded

sentenced inmates. Bell, 441 U.S. at 535-36. Chief among these

distinctions is that a pretrial detainee has a substantive due

process right to be free from punishment. See id. at 534-35 &

n.16; Surprenant v. Rivas, 424 F.3d 5 , 13 (1st Cir. 2005).

Punishment in the present context, however, is a term of

art. What is prohibited is "punishment in the constitutional

sense," not mere "restrictions and conditions accompanying pretrial

detention." Bell, 441 U.S. at 538. In Bell, the plaintiffs

challenged their general conditions of confinement, such as the

practice of double bunking detainees and restrictive rules on

receiving packages from outside the facility. The Supreme Court

declared in Bell that the test of whether a condition is in fact

punishment is whether "the disability is imposed for the purpose of

punishment." Id. A punitive purpose may be demonstrated through

either expressed intent or through inference, for example if a rule


or regulation is disproportionate to, or not reasonably related to,

a legitimate, non-punitive goal. Id. at 538-39; see also

Surprenant, 424 F.3d at 13.

Here, the defendants have repeatedly admitted that Ford's

pretrial detention in the DDU had a punitive purpose. For example,

Bender acknowledged forthrightly in testimony before the district

court that his decision to confine Ford to the DDU in 2007 was

"[a]bsolutely" intended to punish. The purpose of the DDU

confinement, he declared, was to punish Ford for the assault for

which he was awaiting trial. Similarly, St. Amand's communique

noted that the purpose of Ford's segregated pretrial confinement

was to continue serving his punitive DDU sanction. The district

court relied on the defendants’ plain expressions of punitive

intent to find that the plaintiff's tenure in the DDU as a pretrial

detainee constituted impermissible punishment and, therefore,

abridged his right to substantive due process.

While Bell provides clear guidance about the

constitutional bounds of conditions of confinement for pretrial

detainees, Bell does not clearly address whether and when

punishment is permitted as an individualized disciplinary sanction

for a pretrial detainee's misconduct. In Collazo-Leon v. United

States Bureau of Prisons, 51 F.3d 315 (1st Cir. 1995), we upheld a

disciplinary sanction confining a pretrial detainee in the DDU for

ninety days because he tried to bribe his way out of jail. Id. at


318-19. We noted that Bell was not written to address a "situation

where discrete sanctions were imposed on individual pretrial

detainees as discipline for specific in-house violations." When it

comes to individualized discipline, we held that "[t]he inquiry .

. . does not end with the designation of a condition of confinement

as 'punishment.'" Id. at 317. Instead of relying on a distinction

between whether this discipline was punishment or not, which we

deemed "semantic," we stated that we did not find that there is any

meaningful distinction between the terms 'punishment' and

'discipline'" in the context of an individualized disciplinary

response, id., and upheld the punitive DDU sanction of the detainee

as a valid exercise of reasonable disciplinary power. Id. at 318-


Ford argues that Collazo-Leon concerned a very different

factual scenario, one in which the disciplinary infraction and the

disciplinary hearing occurred during the pretrial detention itself,

whereas Ford's DDU confinement in 2007-2008 was punishment for an

offense committed years earlier when he was serving a prior

criminal sentence. Ford might be right that the timing of a

disciplinary infraction--during the pretrial detention itself as

opposed to during a prior period of incarceration--affects the

question of whether pretrial disciplinary segregation violates


substantive due process.5 The critical inquiry in deciding this

appeal, however, is whether any reasonable official in these

circumstances would have understood that the continuing

disciplinary sanction, imposed when Ford was a pretrial detainee on

different charges, for conduct that occurred during a prior period

of incarceration, violated Ford's constitutional right to

substantive or procedural due process.

Collazo-Leon does not definitively answer whether Ford's

detention was constitutional or not. It does, however, plainly

hold that determining whether an act is punitive does not end the

constitutional inquiry in the case of an individualized

disciplinary process. Collazo-Leon thus illustrates why Bell alone

does not show that the right at issue here was clearly established.

5 There is no controlling case law that clearly addresses the question of whether the misconduct for which a detainee is being disciplined must necessarily be from the current period of pretrial detention. Nonetheless, courts have recognized only an exception to the prohibition on pretrial punishment for disciplinary infractions when narrowly focused on the facility's interest in "the effective management of the detention facility once the individual is confined." Bell, 441 U.S. at 540. See, e.g., Collazo-Leon, 51 F.3d at 317 (referring to "discrete sanctions [that] were imposed on individual pretrial detainees as discipline for specific in-house violations"(emphasis added)); Surprenant, 424 F.3d at 13 (noting that "a pretrial detainee may be disciplined for a specific institutional infraction committed during the period of his detention"(emphasis added)). See also, Rapier v. Harris, 172 F.3d 999 , 1003 (7th Cir. 1999)("Notably, the basis for this punishment is not the underlying crime of which he stands accused; rather, this punishment is based upon the detainee's actions while in pretrial confinement."(emphasis added)).


The defendants rely on cases that address the nature of

disciplinary sanctions, pointing to authorities holding that prison

disciplinary sanctions are civil proceedings that are distinct from

criminal punishment, at least for purposes of the Double Jeopardy

Clause, see Commonwealth v. Forte, 671 N.E.2d 1218 (Mass. 1996),

and that disciplinary sanctions may be continued during non-

consecutive criminal sentences, see, e.g., Pletka v. Nix, 957 F.2d

1480 , 1485 (8th Cir. 1992) (en banc); In re Pridgett, No. 01-P-259,

2003 WL 1524678 (Mass. App. Ct. Mar. 25, 2003). While these cases

may be read as providing some support for the defendants' position,

they do not concern pretrial detainees specifically.

In addition to these cases, however, the defendants also

rely on a state court ruling that addressed a situation involving

pretrial detention under facts nearly identical to those in Ford's

case. Karnes v. Nolan, No. 2005-01854 (Mass. Super. Ct. Nov. 2,

2006) was a decision issued by the Massachusetts Superior Court in

favor of MCI-Cedar Junction, the same facility where Ford was

housed, just two months before Ford’s original sentence ended and

his pretrial detention began. In Karnes, a sentenced prisoner at

MCI-Cedar Junction committed an assault for which he received a

disciplinary report. Id., slip op. at 2. Before a disciplinary

hearing was held, Karnes completed his sentence and was released to

the custody of Middlesex County to await trial on pending unrelated

charges. Id. Karnes was then also criminally charged with the


assault that he had committed at MCI-Cedar Junction, and was

returned to MCI-Cedar Junction as a pretrial detainee to await

trial on both new charges. Id. Prison officials held the

previously scheduled disciplinary hearing, and Karnes received a

disciplinary sanction of five years in the DDU. Id. Karnes filed

a complaint in the Massachusetts Superior Court for a declaratory

judgment that the superintendent had violated his due process

rights and for injunctive relief.6

The Superior Court rejected Karnes's argument that "his

commitment to the DDU based on a disciplinary infraction committed

during an elapsed independent sentence was improper because of his

status as a pre-trial detainee." Id. at 6. The court did not cite

Bell, Collazo-Leon, or any other precedent concerning impermissible

punishment, stating instead only that "[c]ommitment to the DDU is

a civil proceeding that is separate and independent from the

criminal process according to which the plaintiff was detained."

Id. at 6-7 (citing Commonwealth v. Bloom, 760 N.E.2d 297 (Mass.

App. Ct. 2001)). The court concluded that confinement in the DDU

6 The district court distinguished a later decision by the Massachusetts Appeals Court in Commonwealth v. Karnes, 68 Mass. App. Ct. 1118, 2007 WL 1217695 (Apr. 25, 2007), which concerns the same detainee in a subsequent suit after he was convicted, as not directly addressing the question of due process but rather the question of double jeopardy. The initial Karnes case, discussed here, specifically sought a declaratory judgment concerning the constitutionality of pretrial disciplinary punishment for conduct that occurred during a prior incarceration, the exact factual scenario that the defendants faced with Ford.


did not violate the pretrial detainee's due process rights.

Although the reasoning of Karnes may not be robust, the

facts are nearly identical to this case. The Superior Court's

ruling in Karnes would have appeared to be relevant guidance to

officials at MCI-Cedar Junction in 2007-2008, and it would have

been reasonable for the defendants to have relied on it.7 Whether

or not we agree with the holding of Karnes, "[i]f judges thus

disagree on a constitutional question, it is unfair to subject

[officials] to money damages for picking the losing side of the

controversy." Wilson v. Layne, 526 U.S. 603 , 618 (1999).

The Supreme Court's statement in Bell that "[d]ue process

requires that a pretrial detainee not be punished," 441 U.S. at 535

n.16, must be scrupulously honored. But that statement does not

foreclose consideration of important institutional interests, as

set forth in Collazo-Leon, 51 F.3d 315 , concerning disciplinary

sanctions that may properly be imposed on a pretrial detainee. See

Brady v. Dill, 187 F.3d 104 , 115 (1st Cir. 1999) (for purposes of

qualified immunity, "courts must define the right . . . at an

7 In highlighting the defendants' reasonable reliance on an unpublished state trial court decision, we do not mean to indicate that such an opinion could be sufficient to show "clearly established law." To the contrary, here, our reliance on this unpublished opinion is to show the absence of clearly established law. There are a number of important factors that make it particularly appropriate for us to rely on this case here. The decision was directed to the same facility where Ford was held (MCI-Cedar Junction); it is the closest factual analog to Ford's situation; and there is no clear consensus in other case law concerning this specific issue.


appropriate level of generality"). The right at issue here is not

the right of a pretrial detainee to be free from punishment

generally, but rather the right of a pretrial detainee to be free

from punishment that was validly imposed while serving a prior

criminal sentence. Neither Bell nor Collazo-Leon clearly answers

this question. Viewed at the appropriate level of generality,

particularly in light of the decision that MCI-Cedar Junction had

just received in Karnes, we cannot say that all reasonable prison

officials would have known that holding Ford in the DDU during his

pretrial detention for an offense that occurred during a prior

criminal sentence was unconstitutional. Any violation of Ford's

right to substantive due process was not a violation of clearly

established law as of 2007-2008. We conclude, therefore, that the

defendants were entitled to qualified immunity with respect to the

alleged violation of the plaintiff's right to substantive due


Procedural Due Process

The district court also concluded that defendant Bender

violated the plaintiff's right to procedural due process by

confining him in the DDU as a pretrial detainee without a fresh

hearing and that Bender was not entitled to qualified immunity with

respect to that violation. See Ford I, 746 F. Supp. 2d at 292-95,

297-98. Bender disputes these conclusions, contending that the

2003 hearing constituted adequate process for the entire


disciplinary confinement that followed, regardless of Ford's change

in status.

Even when prison officials permissibly may punish a

pretrial detainee for discrete violations of facility rules, they

must provide him with adequate process. See Surprenant, 424 F.3d

at 17-18. Bender does not contest that Ford had a liberty interest

sufficient to trigger procedural safeguards.

It is, moreover, well established that the process that

a pretrial detainee must be afforded at a disciplinary hearing is

that set forth by the Supreme Court in Wolff v. McDonnell, 418 U.S.

539 , 564-71 (1974). See Surprenant, 424 F.3d at 18; Benjamin v.

Fraser, 264 F.3d 175 , 189-90 (2d Cir. 2001); Mitchell v. Dupnik, 75

F.3d 517 , 525 (9th Cir. 1996). This is the same process to which

Ford was entitled as a convicted inmate. See Smith v. Mass. Dep't

of Corr., 936 F.2d 1390 , 1398-99 (1st Cir. 1991). Withal, Ford was

given a disciplinary hearing prior to being placed in the DDU in

2003 and has not challenged that process as inadequate. Nor does

Ford identify any different or additional procedures to which he

may have been entitled as a result of his change in status. While

it was clear in 2007-2008 that Ford had to be given a hearing

before being punished for rules violations, the question we must

answer is whether it was clearly established that an otherwise

adequate hearing held when he was a convicted inmate would not



The purpose of a disciplinary hearing is to allow the

accused (be it a convict or a pretrial detainee) to contest whether

he in fact committed the infraction. See Wolff, 418 U.S. at 558,

564-65. Ford identifies no practical purpose that would be served

by holding a second, redundant hearing to establish his

culpability. At any rate, given the dearth of case law suggesting

that pretrial detainees are entitled to anything more than the

procedures set forth in Wolff, reasonable prison officials could

have concluded that the 2003 hearing constituted adequate process.

Accordingly, Bender is entitled to qualified immunity on Ford's

procedural due process claim.

B. Equitable Relief

In addition to money damages, now reversed, the district

court issued declaratory and injunctive relief. On September 30,

2010, the district court held that (1) Bender and St. Amand had

violated Ford's substantive due process rights by confining Ford in

the DDU as a pretrial detainee as punishment for his 2002 conduct,

(2) Bender had violated Ford's procedural due process rights in

2007 by confining him in the DDU without a new hearing as a

pretrial detainee on the state criminal assault charge, and (3)

Bender had violated Ford's procedural due process rights in 2008 by

confining him in the DDU without a new hearing as a convicted felon

serving a sentence. Ford I, 746 F. Supp. 2d at 279-80. The

district court entered declaratory judgment along the same lines in


an order dated November 16, 2010.8 Ford II, 2010 WL 4781757 , at

*1. On January 27, 2012, after a three-day bench trial, the

district court issued an injunction ordering the DOC to (1) "ensure

that Ford has, and continues to have for the remainder of his

sentence, opportunities to participate in any transitional programs

that are available to the general population inmates," and (2)

"deem satisfied Ford's 10-year DDU sanction that was issued in

200[3]." Ford III, 2012 WL 262532 , at *18.

On August 4, 2011, Ford was transferred from the DDU to

the general population at MCI-Cedar Junction. On April 17, 2012,

Ford was released from DOC custody altogether. The defendants

argue that the equitable relief was moot when entered, or rendered

moot by Ford's release.9 Ford responds that the injunctive and

8 Ford argues that the declaratory judgment is not properly before us because the defendants failed to designate the separate declaratory judgment order in their notice of appeal as required by Federal Rule of Appellate Procedure 3(c). Failure to designate a particular order for appeal is typically fatal. Shelby v. Superformance Int'l, Inc., 435 F.3d 42 , 45 (1st Cir. 2006). The purpose of Rule 3, however, is to give the court and opposition notice of the issues challenged on appeal. Markel Am. Ins. Co. v. Díaz-Santiago, 674 F.3d 21 , 26 (1st Cir. 2012). In their notice, the defendants designated the memorandum of decision, which contained the same rulings as the separately issued declaratory judgment order. Given the nearly identical language in the memorandum and the order in this case, we will examine the merits of the defendants' argument. 9 The defendants only briefly contest the district court's holding that they violated Ford's rights when they confined him in the DDU as a pretrial detainee, and do not discuss the district court's holding that they violated Ford's rights when they confined him in the DDU as a sentenced inmate. Even if the defendants had fully briefed the merits of the constitutional issues on appeal,


declaratory relief "was properly entered by the district court but

was subsequently rendered partially moot by Mr. Ford's release from

custody and the DOC's cancellation of Mr. Ford's DDU sanction." As

a result of Ford's release from DOC custody, we conclude that

Ford's claims for equitable relief no longer present a live case or

controversy. We therefore vacate the district court's judgment.

The baseline doctrinal principles of mootness are

familiar. The Constitution "confines the jurisdiction of the

federal courts to actual cases and controversies." Barr v. Galvin,

626 F.3d 99 , 104 (1st Cir. 2010) (internal quotation marks

omitted). See U.S. Const. Art. III, § 2. "A case generally

becomes moot when the controversy is no longer live or the parties

lack a legally cognizable interest in the outcome." Shelby v.

Superformance Int'l, Inc., 435 F.3d 42 , 45 (1st Cir. 2006)

(internal quotation marks and alterations omitted). Events

subsequent to a district court's entry of judgment may render a

case moot and preclude appellate review of the merits. See

Libertarian Party of N.H. v. Gardner, 638 F.3d 6 , 12 (1st Cir.

2011); Diffenderfer v. Gomez-Colon, 587 F.3d 445 , 451 (1st Cir.

2009). When this occurs, courts of appeals normally will vacate

the judgment below. See Diffenderfer, 587 F.3d at 451. The

incidence of mootness presents a purely legal question and,

which they did not, we need not reach the constitutionality of the defendants' actions since we find Ford's claims for equitable relief to be moot.


therefore, engenders de novo review. See Culhane v. Aurora Loan

Servs. of Neb., 708 F.3d 282 , 289 (1st Cir. 2013).

A prisoner's challenge to prison conditions or policies

is generally rendered moot by his transfer or release. See, e.g.,

Jordan v. Sosa, 654 F.3d 1012 , 1027 (10th Cir. 2011); Rendelman v.

Rouse, 569 F.3d 182 , 186 (4th Cir. 2009); Oliver v. Scott, 276 F.3d

736 , 741 (5th Cir. 2002); Scott v. District of Columbia, 139 F.3d

940 , 941 (D.C. Cir. 1998). In Incumaa v. Ozmint, the Fourth

Circuit persuasively reasoned that,

Once an inmate is removed from the environment in which he is subjected to the challenged policy or practice, absent a claim for damages, he no longer has a legally cognizable interest in a judicial decision on the merits of his claim. Any declaratory or injunctive relief ordered in the inmate's favor in such situations would have no practical impact on the inmate's rights and would not redress in any way the injury he originally asserted.

507 F.3d 281 , 287 (4th Cir. 2007). Following this reasoning, the

Fourth Circuit found that a prisoner's challenge to a publication

ban in the maximum security unit became moot when the prisoner was

released from the unit. Id.

In this case, Ford's release from DOC custody rendered

moot all of his claims for equitable relief. Once released from

custody, Ford lost any legally cognizable interest in a declaration

that the DOC's actions had been unconstitutional or an injunction

related to his prior confinement. There is no "live case or

controversy" to decide, nor any meaningful relief to provide, now


that Ford has been released. "With limited exceptions, not present

here, issuance of a declaratory judgment deeming past conduct

illegal is also not permissible as it would be merely advisory."

Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic

Bishops, 705 F.3d 44 , 53 (1st Cir. 2013).

Ford concedes that the first injunction, ordering the DOC

to provide him with access to transitional programs "for the

remainder of his sentence," expired, by its own terms, upon Ford's

release. Ford agrees that he no longer has a legally cognizable

interest in this relief and that vacatur is proper.

Ford likewise concedes that he no longer has an interest

in a declaration related to his detention in the DDU as a sentenced

inmate without a new hearing. Ford concedes that "the mootness

actually occurred when Defendants voluntarily transferred Mr. Ford

to the general population prior to the expiration of his 10-year

DDU sanction." But Ford argues against vacatur since "it was

Defendants' own acquiescence that caused the declaratory relief to

become moot." The argument fails. Vacatur is appropriate in this

case since the issue would have become moot when Ford was released

from custody even if the DOC had not voluntarily released him from

the DDU. See Diffenderfer, 587 F.3d at 451-52 (declining to

address the possibility that the case was rendered moot by

voluntary action before intervening, independent event and vacating

judgment below).


As to his remaining claims for equitable relief, Ford

invokes an exception to the mootness doctrine for conduct that is

"capable of repetition, yet evading review." He bears the burden

of establishing this exception. To do so, Ford must show "(1) the

challenged action is in its duration too short to be fully

litigated prior to cessation or expiration; and (2) there is a

reasonable expectation or a demonstrated probability that the same

complaining party will be subject to the same action again."

Libertarian Party of N.H., 638 F.3d at 12 (quoting FEC v. Wis.

Right to Life, Inc., 551 U.S. 449 , 462 (2007)). Ford's assertions

fail to satisfy the exception's second requirement, since there is

no reasonable expectation that he will again be confined to the DDU

as a pretrial detainee, without a hearing, as an administrative

sanction for conduct that occurred while he was serving a prior


Ford argues that he faces, as a matter of law, a

reasonable probability of re-arrest "[b]ecause he has a criminal

record." Ford was convicted in 1992, and then again in 2008 for a

crime committed while imprisoned on the original 1992 charge. We

disagree that this criminal record provides a reasonable

expectation or demonstrated probability that he would again re-

offend once he was released from confinement for the 2008

conviction. The Supreme Court has advised that, "for purposes of

assessing the likelihood that state authorities will reinflict a


given injury, we generally have been unwilling to assume that the

party seeking relief will repeat the type of misconduct that would

once again place him or her at risk of that injury." Honig v. Doe,

484 U.S. 305 , 320 (1988). Ford's two prior convictions are thus

insufficient to establish a reasonable expectation that he will

re-offend,10 and his remaining claims for equitable relief are not

saved from mootness.

C. Attorneys' Fees

Finally, we turn to the defendants' separate appeal of

the district court's award of attorneys' fees and costs. Ford V,

903 F. Supp. 2d at 103-04. To reiterate, all claims for damages

have been dismissed and all claims for equitable relief are moot.

Ford may, nevertheless, remain a "prevailing party" for the purpose

of attorneys' fees and costs under § 1988 if he "clearly succeeded

in obtaining the relief sought before the district court and an

intervening event rendered the case moot on appeal."11

10 Although Ford stated in his response that he "was rearrested following his April 2012 release and [was] again in the custody of the DOC awaiting trial," he provided no further details concerning the nature or disposition of the charges. In any event, this assertion does not affect our analysis. 11 We must "apply this test by looking only to what relief the district court granted and not to whether the case was rightly decided." Diffenderfer, 587 F.3d at 453; see also Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794 , 805-06 (9th Cir. 2008) (noting "the wide agreement by appellate judges that they should not undertake to delve into the details of a district court's resolution of a controversy that has since become moot in order to decide the ancillary question of fees").


Diffenderfer, 587 F.3d at 454. We analyze the declaratory judgment

and the subsequent injunction separately.

On April 30, 2008, Ford pled guilty to the charges of

assault with intent to murder and mailing heroin to an inmate, and

remained in the DDU as a convicted inmate. On November 16, 2010,

the district court entered declaratory judgment relating to Ford's

rights as a pretrial detainee and as a convicted inmate.

The declaratory judgment related to Ford's rights as a

pretrial detainee was moot when issued. At this point in time,

Ford was no longer a pretrial detainee. The declaratory judgment

amounted to an advisory opinion concerned with past alleged wrongs.

The district court tried to escape this conclusion by finding

Ford's challenge "capable of repetition, yet evading review." Ford

I, 746 F. Supp. 2d at 285-87. The district court's analysis

clearly conflicts with our holding today, and we reverse for the

same reasons explained above. Ford cannot retain the status of a

"prevailing party" for relief that was moot when issued.

The declaratory judgment addressed to Ford's rights as a

convicted inmate, to the contrary, was not moot when entered. At

that time, Ford was a convicted inmate in the DDU without the

benefit of a new hearing. Ford successfully obtained the relief

sought before the district court even if we must vacate it now.

On August 4, 2011, the DOC transferred Ford from the DDU

to the general population at the correctional facility. On January


27, 2012, the district court issued two injunctions to ensure

Ford's access to transitional programs that were available to

general population inmates, and to deem satisfied Ford's 2003 DDU


The first injunction, ensuring Ford's access to

transitional programming for the remainder of his sentence, was not

moot when issued since Ford was still in DOC custody. Both experts

agreed that the programs were important to help Ford prepare for

his expected release. Even though subsequently mooted, Ford was a

"prevailing party" on this point before the district court.

Ford cannot, however, be deemed a "prevailing party" with

respect to the district court's second injunction, requiring the

defendants to deem the 2003 administrative sanction satisfied. The

district court's injunction was moot when issued, since it lifted

a sanction that was no longer in effect. Ford argues that the

injunction "served the important purpose of ensuring that the 2003

DDU sanction could no longer serve as the basis of Mr. Ford's

unlawful DDU confinement." There was no reasonable expectation,

however, that Ford would return to DOC custody as a pretrial

detainee. Moreover, the defendants would then be flouting the

declaratory judgment, now in effect, were they to return Ford to

the DDU without a new hearing on the basis of the 2003 sanction.

For these reasons, Ford can only be considered a

"prevailing party" for the district court's declaratory judgment


related to convicted inmates, and the district court's injunction

related to transitional programming. We remand to the district

court to determine the appropriate amount of attorneys' fees and

costs for these two forms of relief.


For the reasons above, we reverse the district court's

decision that the defendants are not entitled to qualified

immunity, reverse the award of money damages, vacate all equitable

relief, and remand for reconsideration of a more limited claim of

attorneys' fees and costs.

So ordered.


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