100 F.3d 644 (8th Cir. 1996), 95-1289, Keevan v. Smith

Docket Nº:95-1289
Citation:100 F.3d 644
Party Name:Laura KEEVAN; Verna Mae Jones; Sheila Gordon; Melissa Ann Wagner; Laverna Goree; Tanya Goins; Carol Jean Klaus, and on behalf of the class, Appellants, v. Donald SMITH, Superintendent of Fulton Reception and Diagnostic Center; Ron Schmitz, Superintendent of Kansas City Community Release Center; Janet Schneider, Superintendent of St. Louis Community
Case Date:November 18, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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100 F.3d 644 (8th Cir. 1996)

Laura KEEVAN; Verna Mae Jones; Sheila Gordon; Melissa Ann Wagner; Laverna Goree; Tanya Goins; Carol Jean Klaus, and on behalf of the class, Appellants,


Donald SMITH, Superintendent of Fulton Reception and Diagnostic Center; Ron Schmitz, Superintendent of Kansas City Community Release Center; Janet Schneider, Superintendent of St. Louis Community Release Center; Thelma Grandison, Superintendent of Chillicothe Correctional Center; Donna Schriro, Director of the Department of Corrections, Appellees.

No. 95-1289

United States Court of Appeals, Eighth Circuit

November 18, 1996

Submitted: May 16, 1996

Appeal from the United States District Court for the Western District of Missouri.

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Mary Anne Sedey, St. Louis,MO, argued (William E. Moench, on the brief), for appellant.

Carolyn Gail Vasterling, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, John R. Munich, and Andrea K. Spillars, on the brief), for appellee.

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Appellants, a certified class of female inmates who are now or who may be in the future confined in Missouri penal institutions, appeal a portion of the judgment of the District Court,1 in favor of Missouri Department of Corrections and Human Resources (Department) officials. The women inmates originally brought this 42 U.S.C. Section(s) 1983 action against Department officials alleging discriminatory treatment and seeking injunctive relief. Only two issues have been raised in this appeal. The female prisoners contend that the District Court erred in rejecting their claims that prison officials discriminated against them on the basis of gender in violation of the Equal Protection Clause by failing to provide them with equal access (1) to post-secondary educational programs and (2) to prison industry employment. The District Court held that the availability of post-secondary educational courses hinged on fiscal decisions made by the academic providers and on a lack of demand by female inmates rather than on any discriminatory action taken

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by the Department. The Department has since filed a motion to dismiss as moot the female inmates' appeal regarding post-secondary educational opportunities. We agreed to take this motion into consideration with the merits of the case and hereby grant the Department's motion to dismiss this portion of the case as moot. To that extent, the order of the District Court is vacated. As to the prison industries claim, the District Court found insufficient evidence of discriminatory intent on the part of Department officials to support an equal protection challenge. Concluding that the District Court's finding of no discriminatory intent is not clearly erroneous, and further concluding that the female inmates are not similarly situated to male inmates for purposes of equal protection analysis, we affirm the District Court's order dismissing this claim.


The facts of the case are not in dispute. Male and female inmates incarcerated within Missouri Department of Corrections prisons are segregated into particular facilities by gender.2 The Department operates fifteen penal institutions, two of which, the Renz Correctional Center3 (Renz) and the Chillicothe Correctional Center (Chillicothe), house solely adult female inmates. Corrected Joint Stipulations, Appellant's App. at 27. The vast majority of the total inmate population in adult institutions in Missouri, approximately ninety-five percent, is male. Id. at 28. Both male and female inmates are assigned custody level classifications ranging from minimum security, C1, to maximum security, C5, and these designations affect inmate housing assignments within the gender-segregated facilities. Generally, the higher custody classifications, C4 and C5, are assigned to male and female inmates with longer sentences to serve and to shorter-term inmates of both genders who represent an increased security risk. Female inmate custody levels range from C1 through C3 at Chillicothe and from C3 through C5 at Renz.

Approximately 725 female inmates are incarcerated in the Department's female-only prisons, some 420 at Chillicothe and some 305 at Renz.4 Approximately 13,000 male inmates are incarcerated in the Department's male-only prisons, some 1200 at Algoa Correctional Center; 900 at Booneville; 1200 at Central Missouri Correctional Center; 1800 at Farmington Correctional Center; 2000 at Jefferson City Correctional Center; 1265 at Moberly Correctional Center; 1100 at Missouri Eastern Correctional Center; 500 at Potosi Correctional Center; 2000 at Western Missouri Correctional Center; and 600 at Ozark Correctional Center.

Female inmates incarcerated at the Renz and Chillicothe facilities have access to the same adult basic education and G.E.D. programs as male inmates. Both male and female prisoners can take advantage of college-level correspondence courses at their own expense. Post-secondary courses conducted within the confines of the prison facilities are offered by community colleges, state universities, and private colleges, and not by the Department itself. Educational institutions enter into agreements with the Department for access to physical space within both male and female prisons and for administrative support, such as security and assistance in enrolling the inmates. Decisions regarding the number and variety of post-secondary programs offered at a particular prison facility are made by the educational institutions

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involved and not by the Department. The Department requires that any courses that the schools choose to offer be of the same quality as those the schools offer to their on-campus students.

Prison enterprises are operated by Missouri Correctional Enterprises (MCE), a private, self-supporting, profit-making enterprise that does not receive funding from the Missouri General Assembly. Twenty-one such enterprises are located at male institutions and three at female institutions. Report and Recommendation at 10. Male inmates have a broader range of industry job opportunities, but industries are located at both women's facilities and only at some of the male facilities. Id. For fiscal year 1991, approximately thirteen percent of the total female inmate population was employed in prison industry programs. Corrected Joint Stipulations, Appellant's App. at 28, 36. During the same time period, only eight percent of the total male inmate population was so employed. Id.


We first consider the Department's motion to dismiss as moot the women prisoners' claim that Department officials purposely discriminated against them on the basis of gender in the management of post-secondary educational opportunities. During the pendency of this appeal, Department officials terminated their former practice of allowing outside educators access to male and female prison facilities for the purposes of providing college-level courses to inmates. Affidavit of John J. Bell in support of Appellee's Motion to Dismiss Point I of Appellants' Appeal as Moot. Neither male nor female prisoners are currently provided this opportunity, a fact appellants do not contest.

A claim is properly dismissed as moot if it "has lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract questions of law." Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (per curiam) (quotations and citations omitted) (holding that university's amendment of regulation made moot a challenge to regulations). Where, as here,

(1) it can be said with assurance that there is no reasonable expectation . . . that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation . . . it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quotations and citations omitted). Here, prison officials have abandoned the post-secondary educational programs about which the women prisoners complained.5 There is no indication that Department officials will reinstate these educational programs. In these circumstances, the requested relief--equal access to such programs by both male and female inmates--has become an abstraction, and this aspect of the case has "lost its character as a present, live controversy." Schmid, 455 U.S. at 103 (quotation omitted). As a result, we conclude that the women prisoners' equal protection claim concerning post-secondary educational programs is moot and we grant the Department's motion to dismiss this claim. Those portions of the District Court's order dealing with this claim are vacated. United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950); Cranford v. Nix, 43 F.3d 1210, 1211 (8th Cir. 1995).


We turn now to the women's contention that Department officials' policy for determining the placement of prison industries is exercised in a manner that violates the Equal Protection Clause. To establish a gender-based claim under the Equal Protection

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Clause, the appellants must, as a threshold matter, demonstrate that they have been treated differently by a state actor than others who are similarly situated simply because appellants belong to a particular protected class. See, e.g., Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994), cert. denied, _____ U.S. _____, 115 S.Ct. 1177 (1995). In general, the Equal Protection Clause requires that the government treat such similarly situated persons alike. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985);...

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