Toevs v. Reid

• Decision Date: 02 April 2012
• Docket Number: No. 10–1535.,10–1535.
• Citation: 685 F.3d 903
• Parties: Janos TOEVS, Plaintiff–Appellant, v. Larry REID; Susan Jones; Case Manager J. Glidewell; Case Manager Kristy Moore, Defendants–Appellees. United States of America, Amicus Curiae, American Civil Liberties Union; American Civil Liberties Union Foundation of Colorado, Movants.
• Court: U.S. Court of Appeals — Tenth Circuit

685 F.3d 903

Janos TOEVS, Plaintiff–Appellant,

v. Larry REID; Susan Jones; Case Manager J. Glidewell; Case Manager Kristy Moore, Defendants–Appellees.United States of America, Amicus Curiae,American Civil Liberties Union; American Civil Liberties Union Foundation of Colorado, Movants.

No. 10–1535.

United States Court of Appeals, Tenth Circuit.

April 2, 2012.

Submitted on the briefs: ^*

Janos Toevs, Plaintiff–Appellant, Pro se.

Andrew M. Katarikawe, Senior Assistant Attorney General, Civil Litigation and Employment Law Section, John W. Suthers, Attorney General, Denver, CO, for Defendants–Appellees.

Before MATHESON, McKAY, and EBEL, Circuit Judges.

ORDER

This matter is before the court on the Appellees' Amended Petition For Panel Rehearing Or Rehearing En Banc. We also have a brief in support of that petition from the United States, a response from appellant Janos Toevs, a supplement to Mr. Toevs' response, and a response from the American Civil Liberties Union. Finally, we also note receipt of the appellees' response to the ACLU brief and the ACLU's supplemental authority.

Upon consideration of all the materials on file, we grant panel rehearing and direct the clerk to issue the amended opinion attached to this order. The new decision will be filed as of today's date.

The suggestion for en banc review was circulated to all the judges of the court who are in regular active service. A poll was called, but later was withdrawn following panel rehearing. In light of that withdrawal, there was no final vote with regard to the en banc request. Accordingly, the en banc suggestion is denied. SeeFed. R. App. P. 35(a)(noting a majority of the active judges who are in regular service may order en banc rehearing); see also 10th Cir. R. 35.5 (regarding voting on en banc rehearing).

OPINION

EBEL, Circuit Judge.

Janos Toevs, proceeding pro se, appeals the district court's grant of summary judgment to defendants in his 42 U.S.C. § 1983 civil-rights suit. Mr. Toevs argues that the court erred in granting qualified immunity to defendants on his claim that they denied him meaningful periodic reviews during his lengthy confinement in administrative segregation. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm, although on different grounds than the district court.

The district court concluded that Mr. Toevs failed to demonstrate that defendants violated his constitutional rights. We disagree. Based on the record and the arguments before this court, Mr. Toevs was entitled to meaningful periodic reviews during his placement in administrative segregation in the Colorado prison system's Quality of Life Level Program (QLLP) because the exclusive justification for keeping Mr. Toevs in administrative segregation was to influence him to modify his future behavior. However, the record at this state of the proceeding does not establish that Mr. Toevs was given meaningful reviews and Mr. Toevs denies receiving any such reviews. If this were the end of the analysis we would have to conclude that summary judgment for defendants on the merits was improper and we would have to remand for further consideration by the district court of the reviews given to Mr. Toevs, including the penological interests of the prison in this process. On the merits, it was certainly error to grant summary judgment to defendants on this issue. Nevertheless, because at the time it was not clearly established that the review process should apply throughout each level of the QLLP and that the perfunctory reviews given to Mr. Toevs at Levels 1–3 and the failure to provide any reviews whatsoever at Levels 4–6 would not be considered meaningful given the rehabilitative justification for this segregation program, we conclude that defendants are entitled to qualified immunity. Accordingly, instead of remanding for further proceedings, we are able to affirm summary judgment for the defendants upon this alternative ground.

The administrative segregation placement in this case involves a prisoner in a Colorado stratified incentive program with the sole stated purpose of encouraging him to improve his future behavior. Therefore, this case addresses, exclusively, the standards for periodic reviews during placement in this program.

I. BACKGROUND

The QLLP is described in Operational Memorandum (OM) 650–100. The program, which is employed at Colorado State Penitentiary (CSP) and Centennial Correctional Facility (CCF), is “a stratified quality of life program based on increased levels of privileges for demonstrated appropriate offender behavior and program compliance.” OM 650–100 § I, R. at 610. The program consists of six levels.¹ Level 1 has the most restrictive conditions, and each successive level offers the inmate more privileges.

Levels 1 through 3 are classified as administrative segregation. Accordingly, they are subject to the provisions of Administrative Regulation (AR) 600–02, which governs placement in administrative segregation. AR 600–02 provides for periodic reviews of segregation status. Levels 4 through 6 are classified as close custody. AR 600–02 does not cover these levels, and defendants concede that there is no review process applicable to them. After completing QLLP Level 6, an inmate is eligible to be transferred to the general prison population. If an inmate spends the minimum amount of time at each level, he will be in the QLLP for thirteen months and seven days. There is no maximum amount of time for placement in the QLLP.

Mr. Toevs was placed in the QLLP on March 4, 2002, after attempting to escape. By September 2005, he had reached Level 6, but due to poor behavior he was regressed to Level 1. He again began to progress through the program, achieving Level 1 on October 7, 2005; Level 2 on October 13, 2005; Level 3 in either December 2005 or January 2006; and Level 4 on October 15, 2007. On January 31, 2009, Mr. Toevs completed Level 6 and graduated from the QLLP. In March 2009, he rejoined the general prison population.

In the relevant pleading, the Third Amended Complaint, Mr. Toevs complained that during his placement in the QLLP from 2005 to 2009 he was deprived of a liberty interest without due process.² Specifically, he alleged that Jean Glidewell (his case manager from September 2005 to February 2006) and Kristi Moore (his case manager from March to June 2006) denied him his right to a meaningful periodic review of his confinement in administrative segregation because the reviews they gave him were perfunctory, meaningless, and all said the same thing. With regard to Larry Reid (the warden at CSP/CCF from September 1, 2002, until October 1, 2007) and Susan Jones (Mr. Reid's successor as CSP/CCF warden), he alleged that OM 650–100 rendered any reviews meaningless because they could not result in his immediate release from the QLLP. And finally, he complained that OM 650–100 did not provide for reviews when he was in QLLP Levels 4 through 6 in February to September 2005 and October 2007 to January 2009. All of his claims were asserted against defendants in their individual capacities. He requested compensatory and punitive damages and declaratory relief.

The parties consented to have the case heard by a magistrate judge. See28 U.S.C. § 636(c). In evaluating the parties' cross-motions for summary judgment, the district court held defendants were entitled to qualified immunity. It held that the review process was constitutionally adequate, and thus Mr. Toevs had failed to establish that Ms. Glidewell and Ms. Moore deprived him of a constitutional right. It also held that there was no showing of Mr. Reid's and Ms. Jones's personal participation in the alleged constitutional violations; there was no evidence that they participated in any of the reviews or that they had any knowledge of his circumstances. Therefore, the court concluded that Mr. Toevs failed to establish that Mr. Reid and Ms. Jones deprived him of a constitutional right. The court further determined that the allegations that OM 650–100 mooted any protections provided by AR 600–02 were conclusory. And, the court concluded, its decision that the reviews were constitutionally adequate rebutted Mr. Toevs's argument that, because they could not have secured his immediate release from the QLLP, the reviews were meaningless.³ Mr. Toevs appeals.

II. ANALYSIS

Mr. Toevs argues that the district court failed to give his filings the liberal construction due a pro se litigant. He believes the court missed the focal points of his argument: (1) that his extended placement in the QLLP violated his right to due process because at Levels 1 through 3 he did not receive any meaningful reviews, which he expresses as reviews that could result in his immediate release to the general population; and (2) at Levels 4 through 6 he did not receive any reviews at all. In part, he attributes the court's errors to its denial of his requests for appointed counsel. Without counsel, he asserts, he was unable to frame his arguments or conduct discovery effectively.

A. Standard of Review and Qualified Immunity

We review the district court's grant of summary judgment de novo. See Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir.2006). Because judgment in this case was based on qualified immunity, however, “the summary judgment standards are subject to a somewhat different analysis from other summary judgment rulings.” Id. “The doctrine of qualified immunity shields government officials performing discretionary functions from liability for damages ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir.2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

Thus, to avoid judgment for the defendant based on qualified immunity, “the plaintiff must show that the defendant's actions violated a specific statutory or constitutional...