Jones v. Mabry

• Decision Date: 03 October 1983
• Docket Number: No. 82-2439,82-2439
• Citation: 723 F.2d 590
• Parties: Larry Wayne JONES, Ronney David Briggs, Jerry Wayne McKee, Terry Gene Howell, and Dennis Earl Jordan, Appellants, v. James MABRY and Vernon Housewright, former Directors, Arkansas Department of Correction, A.L. Lockhart, Director, and Jerry Campbell, Ronald Dobbs, and Henry Cowan, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 590

723 F.2d 590

Larry Wayne JONES, Ronney David Briggs, Jerry Wayne McKee Terry Gene Howell, and Dennis Earl Jordan, Appellants, v. James MABRY and Vernon Housewright, former Directors Arkansas Department of Correction, A.L. Lockhart Director, and Jerry Campbell, Ronald Dobbs, and Henry Cowan, Appellees.

No. 82-2439.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 3, 1983. ^*

Decided Nov. 30, 1983.

Rehearing Denied Dec. 29, 1983.

H. Edward Skinner, Little Rock, Ark., for appellants.

Steve Clark, Atty. Gen. by C.R. McNair, III, Asst. Atty. Gen., Little Rock, Ark., for appellees.

Before BRIGHT, ARNOLD and FAGG, Circuit Judges.

ARNOLD, Circuit Judge.

Larry Wayne Jones, Ronney David Briggs, Jerry Wayne McKee, Terry Gene Howell, and Dennis Earl Jordan, inmates of the Arkansas Department of Correction, brought this action for damages and an injunction against the Director and certain employees of the Department. They allege that they were placed in a special High Security Risk (HSR) classification, with privileges substantially curtailed, without a hearing, and that they were thus deprived of their liberty without due process of law, in violation of 42 U.S.C. Sec. 1983 and the Fourteenth Amendment. The District Court ¹ held that the placement of plaintiffs in the HSR classification was a reasonable response to a situation legitimately believed by correctional officials to be an emergency, and that neither state law, administrative regulations, nor past practice had created any "liberty interest" entitling plaintiffs, as a matter of federal constitutional law, to a hearing. We affirm.

I.

Our summary of the facts is taken mainly from the recommended findings and conclusions of the Magistrate ² to whom this case was referred for an evidentiary hearing. The District Court adopted these findings, and they are not clearly erroneous. All five plaintiffs were confined in the maximum-security building, known as the East Building, at the Cummins Unit of the Arkansas State Penitentiary. Late in 1978 Jordan was one of a group of inmates who gathered in the dayroom of the East Building and refused to return to their cells. Guards with shotguns and tear gas had to be called in to restore order. On January 1, 1979, the other four plaintiffs were part of a group who attempted to escape. Hostages were taken, and ten prisoners, including Briggs, McKee, and Howell, managed to get out of the building before being recaptured. After the inmates had all been subdued, Jerry Campbell, then Warden of the Cummins Unit, alarmed at the apparent loss of control over the maximum-security building, created a new high-security-risk classification, applicable only within the East Building. This classification was not referred to in any of the then-extant handbooks or regulations of the Department. It was essentially an ad hoc reaction to what Campbell took to be a danger of spreading mutiny.

Campbell convened the Cummins Unit Classification Committee, consisting of five correctional officers, to review the files of all inmates in the East Building. Campbell's memorandum creating the new HSR classification mentioned only one criterion for placement in it--propensity for violence, but he orally advised the Committee that other criteria, arguably distinct, should also be considered, including participation in mutinous activities (here he no doubt had in mind the take-over of the dayroom) and potential for escapes. The Committee placed a number of inmates, including all five plaintiffs here, in the HSR category. As a result, they were forced to wear leg irons and shackles when out of their cells; they were strip-searched whenever entering or leaving their cells; they were required to eat in their cells; and their television, dayroom, work, movie, shower, and exercise privileges were restricted. The classification was to be reviewed by the Assistant Warden every 60 days. The inmates were not allowed to attend the meeting, to call witnesses, or to rebut the Committee's finding that each was an HSR. (Inmates were, however, allowed to be present at the 60-day reviews of their files.) The wearing of leg irons, the most serious of the disabilities imposed, continued until May 16, 1979, for any out-of-cell movement within the East Building, and until October 16, 1979, for movement in the prison yard. ³

II.

Plaintiffs first argue that they have been deprived of liberty without due process of law, that is, without a hearing at which they could tell their side of the matter. ⁴ 4] One might think that being required to wear leg irons is a deprivation of "liberty" in anyone's language, and that the only issue should be whether plaintiffs got the process that was due before being subjected to such a "grievous loss." But that has not been the course of recent adjudication by the Supreme Court. It has required that some "liberty interest," created by state law, regulation, or practice, be identified, before passing on to the question of what process is "due." See Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976): "We reject at the outset the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause .... Similarly, we cannot agree that any change in the conditions of confinement having a substantial adverse impact on the prisoner involved is sufficient to invoke the protections of the Due Process Clause."

To supply this requirement plaintiffs point to p. 74 of the Inmate Handbook in effect in January of 1979. The relevant part reads:

Any action which may adversely affect an inmate, such as an increase in security or loss in time-earning status (class), or which lessens an inmate's privileges will be accompanied by due process arrangements.

It is hard to disagree with plaintiffs' claim that this provision covered their situation. They did not, by reason of being classified HSR, lose "time-earning status," but they certainly suffered "an increase in security" and a lessening of "privileges." The Supreme Court's recent opinion in Olim v. Wakinekona, --- U.S. ----, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), however, is fatal to this argument. There, the Supreme Court held, in a case dealing with a similar provision in Hawaii's prison regulations, that "an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause." Id. 103 S.Ct. at 1748 n. 12. There must be, in addition, some state-created substantive limitation on the prison officials' discretion, a representation, for example, that the HSR classification would be imposed only on the occurrence of certain acts or events. The Inmate Handbook contained no such representation.

In their post-argument brief plaintiffs contend, citing Hewitt v. Helms, --- U.S. ----, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), that the needed substantive limitation on official discretion can be found in the terms of the Warden's memorandum creating the HSR classification. This directive indicated that the criterion for placing an inmate in HSR would be "propensity for violence." The State of Arkansas replies that this language is measurably less specific than the Pennsylvania prison regulation held to create a "liberty interest" in Hewitt. We need not pursue that line of argument, because we reject plaintiffs' reliance on the administrative directive for other reasons. The directive was issued on January 5, 1979, after all of the conduct that triggered official action had occurred. It was not, so far as these plaintiffs were concerned, a prospective statement setting forth the conditions under which inmates would or would not be classified as HSR in the future. It was simply an explanation, issued virtually simultaneously with the creation of the new classification and the placement in it of certain inmates, of what the new classification was all about. It could not have created any expectation on which plaintiffs relied. Moreover, the directive did not purport to be and in fact was not an exhaustive statement of the substantive criteria for inclusion in HSR. The Committee considered other factors, for example likelihood of escape, which may overlap with propensity for violence but are not identical to it. It is also important that the decision to place someone in HSR is more a prediction of likely future conduct than a simple finding of specific past conduct. It is thus a kind of decision less susceptible of justification or refutation under specific substantive criteria. On balance, we conclude that under the most recent guidance from the Supreme Court neither the Inmate Handbook nor the Warden's administrative directive created a "liberty interest" entitling plaintiffs to any particular process. It is not claimed that HSR decisions were discriminatory or based on some constitutionally prohibited reason.

III.

Plaintiffs next argue that even if the State of Arkansas's prison regulations and practices did not create a liberty interest in their case, they were entitled to due process because the imposition of the HSR classification was intended to punish them. The courts have distinguished between "punitive segregation, including punitive isolation which is imposed by way of punishment for past misconduct," and "administrative segregation[, which] is not punitive and ... looks to the present and the future rather than to the past." Kelly v. Brewer, 525 F.2d 394, 399 (8th Cir.1975). "It is safe to say that in all prisons, except perhaps some extremely minimum security institutions, it is found to be absolutely necessary for a number of non-punitive reasons to segregate individual inmates from the general prison population, and to hold them in segregated status for varying or indefinite periods of time." Ibid. As long as there is a procedure for reviewing periodically the situations of inmates who are in administrative segregation, see id. at 400, and...