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April 21, 1994

CINDY L. GALVAN, Plaintiff,
DAN CAROTHERS, et al., Defendants.

The opinion of the court was delivered by: JOHN W. SEDWICK


 Defendants Dan Carothers and Norman Anderson (defendants) have moved for summary judgment to dismiss plaintiff Cindy L. Galvan's claims of violations of her constitutional rights to due process, equal protection, freedom of religion, and to be free from cruel and unusual punishment arising during her confinement at Lemon Creek Correctional Center. Plaintiff opposes the motion. Magistrate Judge Branson heard oral argument and has filed a report and recommendation recommending that the court deny defendants' motion. Defendants have objected to the magistrate's report and recommendation. This court reviews the motion de novo.


 Plaintiff was an inmate at Lemon Creek Correctional Center (LCCC) convicted of second degree murder. *fn1" Plaintiff has been the subject of several classification hearings and decisions at LCCC. Initially, defendant Dan Carothers, Superintendent of LCCC, classified plaintiff as a medium security/maximum custody prisoner. Plaintiff complains that she was excluded from the classification process and not informed of her right to challenge the classification. Plaintiff was classified as maximum security/maximum custody though she scored as a close custody prisoner after she had been placed in administrative segregation in February 1990. On January 31, 1991, plaintiff was released into the prison's general population. Plaintiff was transferred to a facility outside Alaska on September 25, 1991. On September 8, 1992, plaintiff returned to Alaska due to a disciplinary violation. On October 2, 1992, plaintiff was returned to LCCC where she was again classified as a maximum security/maximum custody prisoner. During her confinement as a maximum custody prisoner, and for the duration of her administrative segregation, plaintiff was placed in the last cell on Tier C. There were three other prisoners housed on the tier, all male.

 Plaintiff has alleged a number of instances of verbal sexual harassment from the male prisoners. Plaintiff also alleges that she must shower in front of male correctional officers who can see her breasts. Additionally, plaintiff complains that she has no privacy when using the toilet in her cell, that other male prisoners can view her cell, and that she has been denied feminine hygiene products.

 Plaintiff filed the present action to enjoin defendants from housing her on Tier C and to seek declaratory and monetary relief for alleged violations of her rights to due process, equal protection, and to be free from cruel and unusual punishment under the United States Constitution. This court granted plaintiff temporary injunctive relief requiring defendants to find plaintiff alternative prison housing. Defendants Carothers and Anderson now seek summary judgment on plaintiff's remaining claims.



 A. Violation of Due Process

 Plaintiff asserts a claim for violation of procedural due process arising from various classification decisions made during her incarceration at LCCC. Defendants believe that plaintiff has failed to demonstrate any due process interest in her classification. A prisoner has no due process right under the Due Process Clause of the Fourteenth Amendment in her classification. Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 279 n.9, 50 L. Ed. 2d 236 (1976). However, a liberty interest may also arise from state law. Meachum v. Fano, 427 U.S. 215, 223-227, 96 S. Ct. 2532 at 2537-2540, 49 L. Ed. 2d 451 (1976). Defendants concede as much. Nevertheless, defendants characterize plaintiff's due process claims as unfounded.

 It is clear that the state's failure to follow mandatory procedures may give rise to constitutional violations. Hewitt v. Helms, 459 U.S. 460, 472-73, 103 S. Ct. 864, 871-72, 74 L. Ed. 2d 675 (1983). However, the failure to follow mandatory procedures must result in some loss of a substantive right. Walker v. Sumner, 14 F.3d 1415, 1419 (9th Cir. 1994) ("In analyzing a procedural due process claim, a court must first determine whether the claimant has been deprived of a liberty or property interest protected by the Constitution. . . ."). The failure to follow mandatory procedures does not itself offend the constitution. Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993). The Ninth Circuit has made clear that "procedural requirements, even if mandatory, do not raise a constitutionally cognizable liberty interest." Toussaint v. McCarthy, 801 F.2d 1080, 1087 (9th Cir. 1986), cert. denied, 481 U.S. 1069, 95 L. Ed. 2d 871, 107 S. Ct. 2462 (1987).

 State regulations and prison policies may create a liberty interest invoking procedural due process. Walker, 14 F.3d at 1419. Regulations and policies create such an interest only if they place "substantive limitations on official discretion." Smith v. Sumner, 994 F.2d 1401, 1405 (9th Cir. 1993) (quoting Olim v. Wakinekona, 461 U.S. 238, 249, 103 S. Ct. 1741, 1747, 75 L. Ed. 2d 813 (1983)). Sufficient limitation exists where a regulation includes "specific directives to the decisionmaker that if the regulatory substantive predicates are present, a particular outcome must follow." Id.

 Plaintiff correctly notes that Alaska regulations and prison policies require that prisons use certain procedures to classify prisoners. An unsentenced prisoner has the procedural right to classification hearings after an initial classification, 22 AAC 05.226(c), as well as 48-hour notice of the hearing, 22 AAC 05.226(d), the right to be present at the hearing, present evidence, and cross-examine witnesses, State of Alaska, Department of Corrections, Policy and Procedure ("Policy and Procedure") § 735.03 VI.D.3.d.(2), incorporated by Policy and Procedure § 705.03 VI.B.2. The prisoner may also appeal a classification decision by the prison superintendent. Policy and Procedure § 705.03 VI.B.7. ...

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