Waller v. Banks

• Decision Date: 10 October 2013
• Docket Number: No. CV-11-403,CV-11-403
• Citation: 2013 Ark. 399
• Parties: ROMARIO VERMOND WALLER APPELLANT v. JAMES BANKS, WARDEN; DARRYL GOLDEN, ASSISTANT WARDEN; CURTIS MEINZER, DEPUTY WARDEN; D. COMPTON, VARNER REHAB PROGRAMS MANAGER; WENDY KELLEY, DEPUTY DIRECTOR; LARRY MAY, DEPUTY DIRECTOR; ROSLYN WILLIAMS, CORRECTIONAL OFFICER; AND CARMICKLE, CORRECTIONAL OFFICER APPELLEES
• Court: Arkansas Supreme Court

2013 Ark. 399

ROMARIO VERMOND WALLER APPELLANT v. JAMES BANKS, WARDEN; DARRYL GOLDEN, ASSISTANT WARDEN;CURTIS MEINZER, DEPUTY WARDEN; D. COMPTON, VARNER REHAB PROGRAMS MANAGER;WENDY KELLEY, DEPUTY DIRECTOR; LARRY MAY, DEPUTY DIRECTOR; ROSLYN WILLIAMS,CORRECTIONAL OFFICER; AND CARMICKLE, CORRECTIONAL OFFICER APPELLEES

No. CV-11-403

SUPREME COURT OF ARKANSAS

Opinion Delivered October 10, 2013

PRO SE APPEAL FROM THE

LINCOLN COUNTY CIRCUIT COURT,

40LCV-10-112, HON. JODI RAINES

DENNIS, JUDGE

AFFIRMED.

PER CURIAM

While an inmate at the Varner Supermax Unit (VSM) of the Arkansas Department of Correction (ADC), appellant Romario Vermond Waller filed a pro se civil rights action against various prison officials pursuant to the Arkansas Civil Rights Act, Arkansas Code Annotated section 16-123-105 (Repl. 2006). Among other challenges to the VSM Incentive Level Program, appellant alleged that his placement in the program constituted a violation of his rights to due process and equal protection under the Arkansas Constitution. The trial court dismissed appellant's complaint with prejudice based on the failure to exhaust administrative remedies and the failure to state a claim upon which relief could be granted, and appellant lodged this appealof the order.¹ We affirm the dismissal of the complaint.

On October 12, 2009, while an inmate in the East Arkansas Regional Unit (EARU), appellant stabbed a correctional officer in the chest with a piece of fence wire. As a consequence of the assault, appellant was issued a Notice for Supermax Placement. Following a hearing, the EARU Classification Committee recommended that appellant be placed at VSM, and appellant was given notice of the committee's decision. Upon transfer from EARU to VSM, appellant was temporarily housed in administrative segregation. At his November 2, 2009 hearing before the VSM Classification Committee, appellant informed the committee that he had assaulted the officer because he lost his temper. Subsequently, the committee assigned appellant to the VSM Incentive Level Program. The Placement Review document in the record provides that, at the review, appellant was given a copy of the VSM handbook and advised that he had fifteen days to appeal his placement.² While the record includes a number of grievances filed by appellant stemming from his placement in the Program, it does not include an appeal of the committee's placement decision.³

On September 14, 2010, appellant filed a complaint pursuant to the Arkansas Civil Rights Act, alleging that his placement in the VSM Incentive Level Program violated his rights guaranteed by the Arkansas Constitution, including the rights to due process and equal protection. He also asserted a number of other claims based on the content and procedures of the Program.⁴ The trial court dismissed the complaint with prejudice and found that appellant had failed to exhaust his administrative remedies and failed to state a claim upon which relief could be granted.⁵ On appeal, appellant argues that the trial court erred in finding that he failed to exhaust his administrative remedies because he filed a series of grievances in which he lodged complaints regarding his placement. He also asserts that a violation of his right to due process under the Arkansas Constitution occurred when he was assigned to the VSM Incentive Level Program without notice or a hearing. He contends that his right to equal protection was violated because, as a result of his assignment to the Program, he is being treated differently than other inmates at VSM as well as female inmates incarcerated in other prison facilities in Arkansas. Finally, appellant argues that the VSM Incentive Level Program is an unauthorized mental-health program in violation of Arkansas Code Annotated section 12-29-405 (Repl. 2009), that the Program's disciplinary procedures constitute cruel and unusual punishment in violation of the Arkansas Constitution, and that its programming violates his right to freedom of expression andreligion.

As an initial matter, appellant contends that the trial court erred in dismissing his complaint based on the failure to exhaust administrative remedies. Specifically, he argues that the series of grievances that he filed stemming from his placement in the VSM Incentive Level Program satisfied the requirement that he exhaust his administrative remedies before he was entitled to judicial review.⁶ However, it is not necessary to consider whether appellant sufficiently exhausted his remedies, or even whether such exhaustion of remedies is necessary under the circumstances of this case. In cases in which an inmate challenges ADC procedures and rules, he must raise a constitutional question sufficient to raise a liberty interest merely to fall within the classification of claims subject to judicial review. Renfro v. Smith, 2013 Ark. 40 (per curiam); Munson v. Ark. Dept. Of Correction, 375 Ark. 549, 294 S.W.3d 409 (2009) (per curiam). We have consistently recognized that due to their specialization, experience, and greater flexibility of procedure, administrative agencies are better equipped than the courts to analyze legal issues dealing with their agencies. Smith v. May, 2013 Ark. 248 (per curiam); Crawford v. Cashion, 2010 Ark. 124, 361 S.W.3d 268 (per curiam). Specifically, the administration of prisons has generally been held to be beyond the province of the courts. Smith, 2013 Ark. 248; Crawford, 2010 Ark. 124. Thus, we have consistently declined to dictate the operation of the ADC except in circumstances where the appellant asserts an infringement on constitutional rights. Smith,2013 Ark. 248; Crawford, 2010 Ark. 124. Because appellant has failed to raise a legitimate constitutional question, dismissal of his claims with prejudice was proper.

In contending that the ADC infringed on his constitutional rights, appellant first argues that a violation of his right to due process occurred based on the ADC's alleged failure to provide him with notice or a hearing before assigning him to the VSM Incentive Level Program. In the eighteen-month Program, assigned inmates are expected to participate in programming as well as follow ADC rules and regulations to progress through the Program's five levels. According to the ADC, programming, which consists of viewing videos and answering questions about the material, is designed to rehabilitate inmates by building character, developing coping skills, and teaching socially acceptable ways of behaving.⁷ In his brief, appellant states that inmates assigned to the Program are subject to longer periods of privilege loss for disciplinary infractions than other VSM inmates,⁸ but he acknowledges that all VSM inmates, including those assigned to the Program, receive the same treatment in other areas, including access to mail,visitation escort, phones, library, recreation, and medication.⁹

To succeed on his due-process claim, appellant must first demonstrate that he was deprived of a liberty interest when he was assigned to the VSM Incentive Level Program. Because appellant was not deprived of a liberty interest when he was assigned to the Program, he cannot show that the process that he was provided was inadequate. In the prison context, the deprivation of a liberty interest is created by the imposition of an atypical and significant deprivation that was a dramatic departure from the basic conditions of confinement. Sandin v. Connor, 515 U.S. 472, 484 (1995); Crawford, 2010 Ark. 124, 361 S.W.3d 268 (no due-process violation based on ADC officials refusal to change appellant's housing or working assignments); Munson, 375 Ark. 549, 294 S.W.3d 409 (loss of class status and privileges do not comprise a liberty interest); see also Smith, 2013 Ark. 248 (no protected right or interest in a particular classification status or that status's privileges); Renfro, 2013 Ark. 40 (claim of loss of privileges is insufficient to assert deprivation of a liberty interest). Because the assignment to the VSM Incentive Level Program cannot be considered a dramatic departure from the ordinary incidents of prison life, appellant failed to state a deprivation of a liberty interest as necessary to claim a due-process violation based on lack of notice and a hearing.

In his brief, appellant describes the VSM Incentive Level Program as a behavior-modification program in an apparent attempt to bring his case within a class of cases that rely on the holding in Vitek v. Jones, 445 U.S. 480 (1980). In Vitek, the United States Supreme Court held that a liberty interest was triggered by the classification of an inmate as mentally ill followed by the involuntary commitment of the inmate to the state mental hospital for psychiatric treatment. The Supreme Court noted that the stigmatizing consequences of the commitment and treatment are not within the conditions of confinement to which a prison sentence subjects an individual. Vitek, 445 U.S. at 494. The fallacy in appellant's argument is that, while the Supreme Court used the term, "behavior modification," to describe the psychiatric treatment that the inmate would receive during his involuntary commitment to the mental hospital, "behavior modification" can be used to describe a vast variety of programs and treatments. The VSM Incentive Level Program, as described in the record, is not comparable to involuntary psychiatric treatment at a mental hospital.¹⁰

Appellant next alleges gender discrimination based on his argument that the VSM Incentive Level Program violates his right to equal protection because there is no similarprogram for female inmates imprisoned in Arkansas.¹¹ He also contends an equal-protection violation on the basis that he is not being treated similarly to VSM inmates who have not been assigned to the Program. Equal protection under the law is guaranteed by article 2, sections 2, 3, and 18 of the Arkansas Constitution. However, a viable equal-protection claim requires a showing that appellant is...