Cite as 2019 Ark. 240 SUPREME COURT OF ARKANSAS No. CV-18-488
Opinion Delivered: September 12, 2019 MALIK MUNTAQIM APPELLANT PRO SE APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION WENDY KELLEY, DIRECTOR, [NO. 60CV-18-738] ARKANSAS DEPARTMENT OF CORRECTION; JADA LAWRENCE, HONORABLE MACKIE M. PIERCE, EXECUTIVE ASSISTANT TO THE JUDGE DIRECTOR OF ARKANSAS DEPARTMENT OF CORRECTION; AFFIRMED. RAYMOND NAYLOR, DISCIPLINARY HEARING ADMINISTRATOR; JUSTINE MINOR, DISCIPLINARY HEARING OFFICER; NURZUHAL FAUST, WARDEN, OUACHITA RIVER CORRECTIONAL UNIT; BARBARA HOLLIMAN, ADMINISTRATIVE REVIEW OFFICER; JACOB KING, EX- CAPTAIN, OUACHITA RIVER CORRECTIONAL REVIEW OFFICER; AND WINBURN MELUGIN, JR., LIEUTENANT, OUACHITA RIVER CORRECTIONAL UNIT APPELLEES
SHAWN A. WOMACK, Associate Justice
Malik Muntaqim, an inmate of the Arkansas Department of Correction (ADC), appeals
the denial of his petition to proceed in forma pauperis in a civil action requesting judicial
review under the Administrative Procedure Act (APA). He claims prison officials initiated
and conducted a disciplinary proceeding against him in violation of his constitutional rights. Because we conclude Muntaqim failed to sufficiently raise a constitutional
question, we affirm for reasons set forth below.
I. Factual Background
While incarcerated at the Ouachita River Unit of ADC, Muntaqim requested transfer to
the Varner Unit. In that request, he wrote that he “will not do a year class 4 at [Ouachita
River] before something crazy happens because staff here has no respect for black people.”
When asked whether that statement was a threat toward prison officials, Muntaqim replied
he was “just letting the major know . . . something crazy will happen” if his transfer was not
granted. He was subsequently charged with a major disciplinary violation for failure to
obey staff orders, insolence towards staff, and assault. After a hearing, Muntaqim was
found guilty of assault and insolence towards staff. He received twenty days in punitive
isolation and a class reduction. He also lost commissary, phone, and visitation privileges
for sixty days.
Muntaqim appealed his disciplinary conviction and alleged that prison officials
failed to comply with ADC disciplinary policy. His administrative appeal was rejected as
untimely. He also filed multiple grievances stemming from the disciplinary process,
accusing prison officials of engaging in retaliatory conduct motivated by racial animus and
failing to comply with the disciplinary policy. Those grievances were found to be without
merit.
Muntaqim sought judicial review of his disciplinary charges under the APA and
petitioned to proceed in forma pauperis. He named multiple ADC officials in their official
2 and individual capacities, claiming they failed to adhere to ADC disciplinary policies. The
circuit court denied that petition, concluding that Muntaqim failed to state a colorable
cause of action and that ADC officials were entitled to sovereign immunity. This appeal
followed.
II. Standard of Review
We review a decision denying a petition to proceed in forma pauperis for abuse of
discretion. Muldrow v. Kelley, 2018 Ark. 126, at 2, 542 S.W.3d 856, 858. The right to
proceed in forma pauperis in a civil action turns on the petitioner’s indigency and the
circuit court’s satisfaction that the alleged facts indicate a colorable cause of action. Ark.
R. Civ. P. 72(c) (2017). The circuit court must make a specific finding of indigency before
considering whether the underlying petition alleges a colorable cause of action. Gardner v.
Kelley, 2018 Ark. 212, at 2, 549 S.W.3d 349, 350. Because the court below failed to make
this finding, we must remand unless the record shows the underlying cause of action
cannot proceed as a matter of law. Id. As to issues of law presented, our review is de novo.
Ashby v. State, 2017 Ark. 233, at 2–3.
Judicial review of administrative complaints is generally unavailable to ADC
inmates. See Ark. Code Ann. § 25-15-212(a) (Repl. 2014). But this rule does not preclude
review of an asserted constitutional violation. Clinton v. Bonds, 306 Ark. 554, 558, 816
S.W.2d 169, 172 (1991). This exception is not triggered by conclusory allegations of a
constitutional violation. Smith v. Hobbs, 2014 Ark. 270, at 4 (per curiam). When an inmate
challenges a disciplinary proceeding and prison officials’ implementation of ADC policy, as 3 Muntaqim does here, the petition must allege a constitutional question sufficient to raise a
liberty interest. Id. Otherwise, the claim cannot fall within the classification of claims
subject to judicial review. Id. Muntaqim contends that ADC officials violated due process,
equal protection, and the First Amendment. Our de novo review of the record, however,
reveals that Muntaqim’s petition clearly failed to sufficiently raise a constitutional question.
III. Due Process
Muntaqim contends that ADC officials violated due process by failing to adhere to
ADC disciplinary and grievance policies. In essence, Muntaqim claims a constitutional
liberty interest in having prison officials follow ADC policy. But those policies do not
create a liberty interest to which due process can attach. See Munson v. Ark. Dep’t of Corr.,
375 Ark. 549, 552, 294 S.W.3d 409, 411 (2009) (per curiam) (citing Kennedy v. Blankenship,
100 F.3d 640, 643 (8th Cir. 1996)). Rather, any alleged liberty interest must be an interest
in the nature of the prisoner’s confinement, “not an interest in the procedures by which
the state believes it can best determine how he should be confined.” Kennedy, 100 F.3d at
643.
A liberty interest with respect to prison disciplinary actions is not created by the
“language of a particular [prison] regulation” but is instead created by an evaluation of the
nature of the deprivation “in relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 481–84 (1995). Substantive due process is triggered only when
prison discipline imposes an atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life. Id. at 484. Thus, in order for Muntaqim to assert a 4 liberty interest, he must show an atypical and substantive deprivation that was a dramatic
departure from the basic conditions of his confinement. Id. at 484–85.
Muntaqim does not contend the punishment imposed as a result of his infractions
was atypical. Nor can he. There is no liberty interest protecting against a twenty-day
assignment to punitive isolation because it does not “present a dramatic departure from
the basic conditions of [Muntaqim’s] sentence.” Id. at 485 (no liberty interest protecting
against thirty days in segregation). Additionally, there is no liberty interest in good time,
class status, or the restricted privileges. See Munson, 375 Ark. at 552, 294 S.W.3d at 411;
Kennedy, 100 F.3d at 642-43 and n.2. Muntaqim thus failed to allege any due process
violation.
IV. Retaliation and the First Amendment
A prison official may not file a disciplinary charge based upon false allegations in
retaliation for the inmate’s filed grievances against prison officials. Henderson v. Baird, 29
F.3d 464, 469 (8th Cir. 1994). But “claims of retaliation fail if the alleged retaliatory
conduct violations were issued for the actual violation of a prison rule.” Hartsfield v. Nichols,
511 F.3d 826, 829 (8th Cir. 2008). “While a prisoner can state a claim of retaliation by
alleging that disciplinary actions were based upon false allegations, no claim can be stated
when the alleged retaliation arose from discipline imparted for acts that a prisoner was not
entitled to perform.” Orebaugh v. Caspari, 910 F.2d 526, 528 (8th Cir. 1990).
If the disciplinary decision is supported by “some evidence,” the filing of the
disciplinary charge may not support a retaliation claim. Sanders v. Hobbs, 773 F.3d 186, 5 190 (8th Cir. 2014). A report from a prison official, even if disputed by the inmate and
supported by no other evidence, sufficiently provides “some evidence” to support a
disciplinary action if the violation is upheld by an impartial decisionmaker. Hartsfield, 511
F.3d at 831. Thus, when there is a disciplinary decision affirming the charge, the critical
inquiry is whether the disciplinary hearing officers ultimately found that, based upon some
evidence, the prisoner committed the charged violations. Henderson, 29 F.3d at 469.
Muntaqim claims the disciplinary charges were brought in retaliation for exercising
his right to seek redress of his grievances. He also contends his administrative appeal was
denied as untimely for similar reasons. But these charges were supported by “some
evidence” that Muntaqim had threatened and acted insolent toward prison officials.
Indeed, Muntaqim admitted in one of his grievances that he told ADC officials that his
transfer request should be granted “before something crazy happens.” Further, it is
undisputed that an ADC official filed a report detailing the assault and insolence towards
staff. It is also undisputed that Muntaqim was given a disciplinary hearing at which he was
found guilty of those charges. He has not alleged that the hearing officer was biased. His
only allegations against the hearing officer turned on alleged failures to follow ADC policy
during the disciplinary process. But as discussed above, there is no constitutional interest
attached to those policies. Muntaqim thus failed to allege sufficient facts showing that the
disciplinary actions were not supported by some evidence that he had committed the
charged violations.
V. Equal Protection
6 Equal protection is “essentially a direction that all persons similarly situated should
be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). The
first step in evaluating an equal protection claim is determining whether the plaintiff has
demonstrated differential treatment compared to others who were similarly situated.
Klinger v. Dep’t of Corr., 31 F.3d 727, 731 (8th Cir. 1994). Absent a threshold showing that
an inmate is similarly situated to those who allegedly receive more favorable treatment, the
plaintiff does not have a viable equal protection claim. Id. Muntaqim failed to satisfy this
threshold showing. He offered nothing more than conclusory allegations of racial bias. He
did not allege that he was subject to any differential treatment or was treated less favorably
than similarly situated inmates of a different race. Accordingly, his conclusory allegations
fail to state an equal protection claim as a matter of law.
Because Muntaqim did not state sufficient allegations entitling him to judicial
review of ADC’s administrative procedures, the circuit court’s decision is affirmed.
Affirmed.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. I dissent. Contrary to the majority’s
holding, Muntaqim has raised a perfectly cognizable constitutional question: whether the
disciplinary action against him by Arkansas Department of Correction (ADC) officials
constitutes an unconstitutional retaliation by government actors. Moreover, there is no
evidence in this record to support the underlying disciplinary action against Muntaqim.
7 Instead of affirming the circuit court’s erroneous holding that Muntaqim has no colorable
cause of action, we should reverse and remand for further proceedings.
I. Background
The majority’s characterization of the claims asserted by Muntaqim is inadequate,
and a more complete summary of the actual allegations in Muntaqim’s petition is required.
Muntaqim is a known lay advocate inside the ADC system, both for himself and other
inmates. According to Muntaqim’s petition, while incarcerated at the Ouachita River
Correctional Unit (ORCU), he observed “systemic bigotry and racist white suprem[acist]
treatment of black and Mexican inmates” by ORCU staff. He reported these observations
to the Civil Rights Division of the U.S. Justice Department, to Governor Asa Hutchinson,
to media outlets, and to others. Muntaqim asserts that when black or Mexican inmates
were subjected to unjust action by ORCU staff, those inmates would come to him for
assistance in writing their grievances, disciplinary appeals, and letters or affidavits to seek
redress.
The actual substance of Muntaqim’s petition is that the appellees have illegitimately
engineered the present disciplinary action against him in an effort to silence his advocacy,
in violation of the first amendment and other federal constitutional authorities.
Muntaqim asserts that he wrote what he titled a “Request for Interview” (request slip) to
Major Bolden at ORCU in which he sought a transfer to the Varner unit, specifically
because of alleged racism by ORCU staff. Muntaqim did this at the direction of Deputy
Director Dexter Payne, who advised Muntaqim that if he was having issues, he should
8 write to Major Bolden. Muntaqim asserts that after he sent his request slip to Major
Bolden, on August 18, 2017, he was brought to a control room by Lieutenant Melugin.
Lieutenant Melugin is one of the staff members Muntaqim had identified in his
aforementioned reports to the U.S. Justice Department and others. There, Lieutenant
Melugin confronted Muntaqim with part of the request slip he had written to Major
Bolden, which according to ADC-generated reports stated, “I will not do a year class 4 at
this unit before something crazy happens because staff here has no respect for black
people.”
Inexplicably, the original slip request written by Muntaqim to Major Bolden is not
contained anywhere in the record; the record contains only second-hand references to the
statements that were made in the actual slip request. The ADC-generated reports state
that, after Lieutenant Melugin had Muntaqim brought to the control room and asked what
he meant in that part of his statement, Muntaqim responded by stating, “I was just letting
the major know, that something would happen, if I was not transferred because I cannot
do a year as a Class 4 inmate at this unit.” On the other hand, Muntaqim argues that his
words have been mischaracterized to suggest that he said “I will not do (another) year (in
this facility)” when in fact he said “I will not make it another year (in this facility).” In his
grievance filed against Lieutenant Melugin, Muntaqim stated,
I did not threaten anyone, and I did not send the request to Capt King or Lt. Melugin. I was exercising my First Amendment right to “Seek redress for grievances from a government official.” Furthermore, I was also giving my opinion of a situation based off knowledge of myself and observation of what is considered to be racist practices by Ouachita’s staff. It was my opinion, I should be transferred
9 before something crazy happens because Ive seen a mob of white officers jumping black inmates and in my opinion I would not handle that well.
Generally, Muntaqim maintains that the statement in question was simply an expression of
anxiety as to the precarious state of affairs at ORCU, made in support of his request to be
transferred to a different unit. He rejects any characterization of his statements as a
“threat” toward anyone at ORCU or elsewhere.
According to Muntaqim, ORCU staff has seized upon the language contained in his
slip request in an effort to mischaracterize and recast it as a threat against ORCU staff, i.e.,
that Muntaqim himself might initiate “something crazy” against prison officials if they did
not honor his transfer request, rather than that the ORCU staff might initiate “something
crazy” against him or other inmates. Muntaqim asserts that Melugin specifically was
motivated by the fact that Muntaqim’s aforementioned correspondence with outside
government officials reported that Lieutenant Melugin targeted another black inmate
named Jeremiah Smith. ADC took Muntaqim’s statement as an opportunity and used it as
the basis for a major disciplinary against him for “12-3 Failure to obey verbal and/or
written order(s) of staff[;] 11-1 Insolence to a staff member[;] 5-3 assault—any threat(s) to
inflict upon another, directly or indirectly, verbally or in writing.” Muntaqim was then
locked in isolation for thirty days and deprived of any commissary, visitation, or phone
usage for sixty days.
To support his alleged characterization of the circumstances, Lieutenant Melugin
also indicated in the disciplinary report that Muntaqim is a member of the “Highland Park
10 Bloods,” when according to Muntaqim, he is a practicing Muslim with no gang affiliation
whatsoever. Furthermore, Muntaqim points out that he was returned to general
population at ORCU after the threats allegedly occurred where he would continue to
interact with the same staff members who allegedly felt threatened.
Muntaqim appealed this disciplinary action through the applicable administrative
process, which he asserts ADC officials attempted to thwart his efforts by denying him
access to pertinent materials until after certain deadlines had passed, 1 before finally filing
his petition for judicial review in the Pulaski County Circuit Court. This delayed receipt
of materials was one of several alleged “procedural irregularities” that took place in this
administrative appeal process and that would operate to Muntaqim’s detriment. Another
allegation, important here, is that the hearing officer that handled Muntaqim’s
administrative appeal failed to follow applicable evidentiary rules for receiving and
considering evidence in a given proceeding. Specifically, Muntaqim was issued a major
disciplinary for statements allegedly contained in a “Request for Interview” (i.e., the slip
request) sent to Major Bolden, yet no documentary information regarding the original
request was received or discussed as part of the hearing officer’s decision whatsoever.
Instead, the hearing officer listed in the “Evidence Relied Upon” section of her report the
“F-1 statement from charging officer” Lieutenant Melugin. Muntaqim’s petition alleged
1 Muntaqim also alleges that the administrative appeal process for written grievances he filed against ORCU staff regarding these incidents was plagued by similar circumstances.
11 that all these circumstances amount to a violation of his due-process and first amendment
rights, engineered for the specific purpose of silencing his advocacy.
With the filing of his petition for judicial review, Muntaqim also requested in forma
pauperis status, but the circuit court denied his request. Regarding in forma pauperis
status, Rule 72(c) of the Arkansas Rules of Civil Procedure provides as follows:
The court shall make a finding regarding indigency based on the affidavit. In making its determination, the court may consider the current federal poverty guidelines which may be obtained from the Administrative Office of the Courts. If satisfied from the facts alleged that the petitioner has a colorable cause of action, the court may by order allow the petitioner to prosecute the suit in forma pauperis.
In assessing Muntaqim’s in forma pauperis petition, the circuit court failed to assess
Muntaqim’s indigency, but did find that Muntaqim’s petition failed to state a colorable
cause of action. The circuit court denied his in forma pauperis request, citing to this
court’s then-recent decision in Board of Trustees of University of Arkansas v. Andrews, 2018
Ark. 12, at 2, 535 S.W.3d 616, 618. The circuit court’s order read as follows:
Specifically, the recent Arkansas Supreme Court decision in The Board of Trustees of the University of Arkansas v. Andrews, 2018 Ark. 12 (January 18, 2018) holds that the State of Arkansas is immune from suit in state courts pursuant to article 5 of the Arkansas State Constitution. Defendants are essentially instrumentalities of the State of Arkansas and cannot be sued in state court in their official capacities in light of the Andrews decision. Therefore, the Court finds that Petitioner, Malik Muntaqim, has no colorable cause of action. [. . . ] The Petition for Leave to Proceed In Forma Pauperis is denied.
Muntaqim then appealed to this court.
II. Discussion
12 The issue here is whether Muntaqim’s petition states a colorable cause of action.
The majority does not defend the circuit court’s conclusion that Muntaqim “had no
colorable cause of action” because of the defendants’ sovereign immunity or the Andrews
decision. Instead of addressing the circuit court’s sovereign-immunity rationale, the
majority affirms the circuit court’s denial simply by finding that Muntaqim has failed to
state a claim upon which relief can be granted, a la Rule of Civil Procedure 12(b)(6).
Assuming without conceding that the circuit court made such a decision, which it did not,
this would also be incorrect. It has long been the law that incarcerated individuals must be
able to petition for judicial review of constitutional questions. Clinton v. Bonds, 306 Ark.
554, 816 S.W.2d 169 (1991). It has also long been the law that prison officials cannot
subject prisoners to retaliatory disciplinary action based upon false allegations or for simply
exercising a constitutional right. See, e.g., Goff v. Burton, 7 F.3d 734, 738 (8th cir. 1993)
(“Just as prison officials cannot lawfully transfer a prisoner for retaliatory reasons alone, so
they cannot impose a disciplinary sanction against a prisoner in retaliation for the
prisoner's exercise of his constitutional right.”) (citing Sprouse v. Babcock, 870 F.2d 450, 452
(8th Cir.1989)). These are exactly the sorts of constitutional claims Muntaqim raises in his
petition, as set forth above.
Nonetheless, the majority affirms, offering that Muntaqim has “clearly failed to
sufficiently raise a constitutional question.” The majority reaches this curiously worded
holding by finding that the disciplinary action at issue here has at least support from “some
13 evidence” in the record, which essentially makes the propriety of that disciplinary action
unreviewable. I disagree.
It is true that “[w]hile a prisoner can state a claim of retaliation by alleging that
disciplinary actions were based upon false allegations, no claim can be stated when the
alleged retaliation arose from discipline imparted for acts that a prisoner was not entitled
to perform.” Orebaugh v. Caspari, 910 F.2d 526, 528 (8th Cir. 1990). It is also true that
when “the disciplinary decision is supported by ‘some evidence,’ the filing of the
disciplinary charge may not support a retaliation claim.” Sanders v. Hobbs, 773 F.3d 186,
190 (8th Cir. 2014). However, there is no such supporting evidence here. Again, the
original slip request that Muntaqim wrote to Major Bolden is not contained anywhere in
the record, and its absence is conspicuous and suggestive. Moreover, the only “evidence”
the majority cites to suggest there is “some evidence” sufficient to support the threat
allegation (the written grievance Muntaqim filed against Lieutenant Melugin) is entirely
favorable to Muntaqim. While the grievance did acknowledge Muntaqim’s prior request
to be transferred “before something crazy happens,” the grievance supplies no
acknowledgement whatsoever of actual wrongdoing on Muntaqim’s part. This grievance,
which Muntaqim wrote on the same day he had earlier been confronted and placed in
isolation by Lieutenant Melugin, recounts Muntaqim’s expressed anxiety that he “would
not make it” another year, and does not support an allegation of a threat in any respect.
III. Conclusion
14 I fear the majority’s decision here will effectively undermine any unconstitutional
retaliation arguments, even meritorious ones, raised by incarcerated individuals in the
future. The majority states that the allegation of a threat by Muntaqim is supported by
“some evidence,” which the law says is sufficient to preclude further inquiry, but the only
evidence the majority can come up with is the fact that Muntaqim was accused at all. That
cannot be sufficient to preclude further inquiry, or the legal authorities contemplating
judicial review in these cases might as well not even exist. The majority here endorses
violations of Muntaqim’s first amendment and due-process rights, all while claiming that
Muntaqim does not even have a constitutionally protected interest in how the prison
handles its business in the first place. This, of course, altogether misses the point that it is
the retaliatory nature of a given government action that gives rise to the protectable
interest. See, e.g., Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (“Sprouse’s claims
based on the falsity of the charges and the impropriety of Babcock’s involvement in the
grievance procedure, standing alone, do not state constitutional claims. Here, however,
these claims were linked to a retaliation claim.”) (internal citations omitted). Muntaqim’s
entire argument is that the government is engineering this disciplinary process to punish
and deter him from exercising his constitutional rights, which is exactly what the
constitutional principles discussed in cases like Sprouse are intended to guard against.
I dissent.
Leslie Rutledge, Att’y Gen., by: Robert T. James, Ass’t Att’y Gen., for appellee.