Sheley v. Dugger

• Decision Date: 21 August 1987
• Docket Number: No. 85-3636,85-3636
• Citation: 824 F.2d 1551
• Parties: Robert P. SHELEY, Petitioner-Appellant, v. Richard L. DUGGER, Jim Smith, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1551

824 F.2d 1551

Robert P. SHELEY, Petitioner-Appellant, v. Richard L. DUGGER, Jim Smith, Respondents-Appellees.

No. 85-3636.

United States Court of Appeals, Eleventh Circuit.

Aug. 21, 1987.

Timothy J. Corrigan, Jacksonville, Fla., for petitioner-appellant.

Ken McLaughlin, J. Craig Myrick, Asst. Attys. Gen., Tallahassee, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before CLARK, EDMONDSON and KEITH ^*, Circuit Judges.

KEITH, Circuit Judge:

Petitioner-Appellant Robert Sheley appeals the denial of a petition for writ of habeas corpus under 28 U.S.C. Sec. 2254. Petitioner, an inmate in the Florida State Prison, has been confined in "close management" solitary confinement for over twelve years. This case raises three issues: (1) whether petitioner's confinement under "close management" violates his constitutional rights to equal protection; (2) whether petitioner's confinement under close management status in excess of eleven years constitutes cruel and unusual punishment; and (3) whether petitioner's initial placement and continued confinement in close management status violates his constitutional rights to due process. Without expressing any opinion as to whether petitioner's constitutional rights have been violated, we find it necessary to remand the case to the district court so that petitioner may have an opportunity to present facts which he contends will substantiate his claims for constitutional relief.

I. FACTS

Petitioner is a Florida state prisoner serving a life sentence for robbery and possession of a firearm by a felon; a concurrent sentence of thirty-seven years for various other crimes, including assault with intent to commit murder, shooting into a motor vehicle and aggravated assault; and a consecutive ten-year sentence for escape. He filed a pro se petition for writ of habeas corpus, alleging that the prison procedures placing and retaining him in close management (CM) administrative confinement constitute cruel and unusual punishment and a denial of due process and equal protection. The state filed a response asserting that: (1) Petitioner was a security risk because of a prior escape, several attempted escapes, and his possession of a revolver inside the prison; (2) Petitioner was afforded sufficient due process protection to support his subsequent transfer to CM at his administrative hearing which occurred when he was initially placed in administrative confinement; (3) Petitioner was afforded the statutorily required periodic reviews of his CM status, including an opportunity to present his views to the reviewing committees; (4) Petitioner's equal protection and eighth amendment claims were meritless because the statutorily mandated CM procedures have been consistently applied to similarly situated inmates; and (5) the "Assignment Team's" disapproval of the "Classification Team's" recommendations that petitioner's status be changed did not violate state administrative rules and was supported by substantial evidence.

The record indicates that prior to his placement in the Florida State Prison, petitioner attempted to escape from a teaching hospital in Florida. Moreover, on February 28, 1974, petitioner had escaped from the Union Correctional Institution and remained at large until his capture on March 6, 1974. Finally, on May 7, 1974, petitioner attempted to escape from the Osceola County Jail. When he arrived at the Florida State Prison in June of 1974, petitioner was placed in administrative confinement pending the investigation of an attempted escape from the reception and medical center. On January 30, 1975, various escape items were found in petitioner's stomach and rectum. The Classification Team On June 27, 1977, a .22 caliber revolver and thirty rounds of ammunition were found in petitioner's cell. Petitioner received an additional disciplinary report on July 25, 1980 for the offense of possession of negotiables; he has received no disciplinary reports since that time.

                thereafter recommended that petitioner be placed in CM status because he constituted an extreme escape risk.  After this recommendation was approved by the Assignment Team in March of 1975, petitioner was assigned to CM status. 1   With the exception of certain time spent in disciplinary confinement, petitioner has been confined in CM status continually since March of 1975
                

Petitioner's CM status has been reviewed periodically in the years he has been confined in CM. On all but one occasion prior to 1980, the Classification Team recommended that petitioner remain in CM status because he was an extreme security and escape risk. On three occasions in 1980 and one in 1982, the Classification Team recommended the Assignment Team place petitioner into the general prison population. However, in each case, the Assignment Team determined that he should remain in CM because he remained a severe escape risk.

On May 7, 1985, the magistrate entered a report and recommendation which dismissed petitioner's habeas petition. He found that petitioner's CM status had been reviewed on a regular basis; that the hearing procedure set out by Florida Administrative Code Rule 33-3.083(4) (1984) was followed each time petitioner's status was evaluated; and that this procedure followed due process requirements. The magistrate also found that petitioner's equal protection and cruel and unusual punishment claims were meritless because petitioner failed to state sufficient facts. The district court adopted the magistrate's report and denied habeas relief.

II.

DISCUSSION

Petitioner claims three constitutional violations: equal protection, due process and cruel and unusual punishment. His constitution claims are based on the same facts. Petitioner contends that his twelve-year confinement in CM, the perfunctory reviews of his CM status, and the lack of any objective criteria by which he may be freed from CM make his stay in "temporary" solitary confinement permanent.

A. Equal Protection

Petitioner asserts that his continuous confinement in CM status violates his constitutional rights to equal protection. He claims that he is being subjected to invidious discrimination, and that there are inmates in the general population who have worse records than his and are greater escape risks. The state responds that there is a sufficient rational basis to support his continued confinement in CM. We disagree with the state's contention.

Suspect classification is not at issue here, and petitioner has made no allegations that any of the actions taken by prison officials were based on race or any other suspect category. Therefore, for equal protection purposes, the state need only show that its action in placing and retaining petitioner in CM confinement is supported by a rational basis bearing a substantial relation to public safety. See e.g., Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 134, 97 S.Ct. 2532, 2542, 53 L.Ed.2d 629 (1977); Green v. McKaskle, 788 F.2d 1116, 1125 (5th Cir.1986) (state's power to distinguish between prisoners is always subject to the constitutional requirement that substantial and purposeful difference in treatment have some rational basis rather than be arbitrary and capricious). Petitioner's prior escape, his history of attempted escapes, and possession of escape paraphernalia, guns and ammunition did provide a rational basis for initially placing him in CM status and for confining him there for some period of time. However, these violations are over ten years old, and petitioner has had only one minor

                disciplinary infraction since. 2   Consequently, we believe a substantial question exists on whether the Assignment Team's assessment that petitioner remains a severe escape risk provides a sufficient rational basis to support his continued confinement in CM in the absence of any reported objective evidence other than these ten-year old violations
                

B. Due Process

Petitioner next asserts that his confinement in Close Management violates his rights to due process. Specifically, he argues that he has a constitutionally protected liberty interest in returning to the general prison population. ³ The state responds that he was given a constitutionally adequate hearing when he was committed to administrative confinement prior to his transfer to CM; that his CM status has been reviewed on a periodic basis; and that he has been afforded the opportunity to express his views regarding his CM status. We believe petitioner's procedural due process rights and his substantive due process rights were violated.

1. Procedural Process

Generally, a prisoner has a protected liberty interest in remaining in the general population. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (holding that placing a prisoner in disciplinary confinement clearly effects liberty interest); See Parker v. Cook, 642 F.2d 865, 867-68 (5th Cir.1981) ⁴ (holding that the due process clause protects only those liberty interests created by the state.) In Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the United States Supreme Court held that there were no inmate rights to due process hearings when inmates were placed in non-disciplinary administrative confinement excepting those rights created by the state statute, using mandatory language. Id. at 471, 103 S.Ct. at 871. In the context of confining an inmate to administrative segregation the court should establish whether 1) the confinement affects a liberty interest and 2) if so, does the process used to implement such confinement adhere to minimum due process standards. Id. at 472, 103 S.Ct. at 871. Finally, the due process analysis requires a balancing of "the private interests at stake in a governmental decision, the governmental interests involved, and the value of procedural requirements in determining what process is due under the Fourteenth Amendment." Id. at 473...