Robert P. Sheley v. Richard L. Dugger, Jim Smith

824 F.2d 1551, 1987 U.S. App. LEXIS 11216

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 21, 1987
• Docket: 85-3636
• Status: Published

Opinions

KEITH, Circuit Judge:

Petitioner-Appellant Robert Sheley appeals the denial of a petition for writ of habeas corpus under 28 U.S.C. § 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 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.

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.

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, 103 S.Ct. at 872.⁵

We believe that petitioner’s procedural due process rights were violated. First, the Florida Administrative Code Rule 33-3.083(4) creates an inmate’s right to a due process hearing.⁶ Second, there is no question that petitioner’s confinement effects a liberty interest under Wolff and Parker. Third, the reviews in the instant case were severely inadequate and therefore the process used to implement the confinement did not adhere to minimum due process standards. Specifically, at many of the reviews petitioner was not present, had no notice of them and had no opportunity to present any arguments.⁷ The state argues that there was some evidence presented that petitioner’s CM status was considered and reviewed by the Close Management Team on a periodic basis. However, when we balance the above procedural deficiencies in petitioner’s review process with the state’s argument, we find that the state abridged petitioner’s procedural due process rights.

2. Substantive Due Process

Petitioner also alleges that his rights to substantive due process have been violated.⁸ We agree. Substantive due process is violated when the government engages in actions which “offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.” Gilmere v. City of Atlanta, 774 F.2d 1495, 1500 (11th Cir.1985) cert. denied, — U.S. -, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986), (quoting Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952)).⁹ “These standards of justice are not authoritatively formulated anywhere as though they were specifics,” but it is clear that substantive due process is violated by state conduct that “shocks the conscience,” is “brutal” and “offend[s] even hardened sensibilities.” Id. These standards are applicable to the question of the propriety of petitioner’s long-term, indefinite confinement in CM. Parker v. Cook, 642 F.2d 865 (5th Cir.1981).¹⁰

In Parker, the former Fifth Circuit held that the Department of Corrections (DOC) regulations which were in effect at the time that petitioner was placed in administrative confinement in 1974 created due process liberty interests in the prisoner so confined and that arbitrary assignments of prisoners to administrative confinement are not authorized. Parker, at 873. The court affirmed the district court’s holding that the procedures used to place the prisoner in administrative confinement violated due process. Notably, although the prisoner in Parker was held in administrative segregation for only six weeks, the court found his due process rights had been violated. Here, petitioner has been in administrative confinement for over twelve years. Thus, the due process violation is apparent.

The state’s attempt to distinguish Parker as only applying to the Glades Correctional Institution is without merit. The court in Parker limited the relief in that case to the Glades Correctional Institution because that was the institution in which the plaintiff-prisoner was confined and because the prisoner “did not challenge the statewide practices.” Parker, at 877. Petitioner likewise is only challenging the constitutionality of his CM confinement; thus, the Parker court’s analysis of the due process rights of a Florida prisoner placed in administrative confinement is fully applicable here.¹¹

Finally, we believe that the subsequent reviews which petitioner received were severely inadequate. As pointed out in petitioner’s initial brief:

(1)There is no evidence that Sheley was present at the reviews or that he had prior notice of them.

(2) There is no evidence that Sheley had an opportunity to present arguments in his favor or to dispute the information upon which the reviewing teams were apparently relying.

(3) After 1977, the reviewing teams did not rely upon any new evidence to keep Sheley in close management.

(4) The classification team consistently recommended that because of Sheley’s good behavior since 1975, he should be considered for placement in the general prison population. However, this recommendation was always overruled by the assignment team, without hearing or notice, and often without explaining its reasons for overruling the recommendation.

Brief for the Petitioner at p. 8-12, 17, Sheley v. Wainwright, (11th Cir.1986) (No. 85-3636). We believe the state’s procedures have afforded petitioner only the most perfunctory review and also lack expressly articulated factors to guide the review. See McCray v. Bennett, 467 F.Supp. 187, 192-93 (M.D.Ala.1978). The state’s procedure offers no guide as to how petitioner could re-enter the general population. The practical effect of this procedure is that petitioner could never re-enter the general prison population and thus remain ir CM until his prison term runs out.¹²

In sum, we find that petitioner’s long-term indefinite confinement in CM shocks the conscience and that petitioner did not receive “meaningful” periodic review. We thus hold that his substantive due process rights have been violated.

C. Cruel and Unusual Punishment

Petitioner asserts that his continuous confinement in Close Management status in excess of eleven years constitutes cruel and unusual punishment. He asserts that CM is punitive in essence; that the length of his confinement in CM status is entirely disproportionate to any offense he may have committed; and that the conditions of confinement in CM inflict unnecessary pain and suffering. The state responds that petitioner must be kept in CM status because he is an escape risk; that such confinement cannot be made free of discomfort; and that he is provided with adequate food, medical treatment and sanitary facilities.

The eighth amendment, which applies to the states through the fourteenth amendment, prohibits the states from imposing punishments that shock the conscience, involve “unnecessary and wanton infliction of pain,” offend evolving notions of decency, or are grossly disproportionate to the severity of the offense for which they are imposed. Hamm v. DeKalb County, 774 F.2d 1567, 1571-72 (11th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1492, 89 L.Ed.2d 894 (1986) (and cases cited therein). Among “unnecessary and wanton” inflictions of pain are those that are “totally without penological justification.” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). Although they have been convicted of crimes, prisoners cannot constitutionally be deprived of the “minimal civilized measure of life’s necessities.” Id. at 347, 101 S.Ct. at 2399.

A federal court’s function, then, in an action challenging prison conditions under the eighth amendment, is to determine the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, at 347, 101 S.Ct. at 2399. The court’s function is not “how best to operate a detention facility,” especially in light of the fact that “a prison’s internal security is peculiarly a matter normally left to the discretion of prison administrators.” Id. at 349, n. 14, 101 S.Ct. at 2400 n. 14 (and cases cited therein). However, “it is [the court’s] duty, when jurisdiction is properly invoked, to protect prisoners’ rights.” Hamm, 774 F.2d at 1571, (quoting Jones v. Diamond, 636 F.2d 1364, 1368 (5th Cir.) (en banc), cert. granted, 452 U.S. 959, 101 S.Ct: 3106, 69 L.Ed.2d 970, cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981)).

In the Florida prison system, Close Management is long-term, single-cell confinement apart from the general prison population. Fla.Admin.Code Rule 33-3.-0083 (1985) (previously numbered 33-3.-083). Petitioner claims that he is confined in CM status indefinitely, without any idea about what he could do to be released from segregation, and that he is totally idle, which has resulted in mental and physical deterioration.¹³ Although petitioner has not shown that the particular conditions of confinement in CM (in and of themselves) deprive him of the minimal civilized measure of life’s necessities, he has been confined in Close Management for over eleven years. In Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978), the Supreme Court indicated that conditions of confinement tolerable over a short term may become “intolerably cruel” over the long-term. Although the Court rejected the idea that prolonged isolation was in itself cruel and unusual punishment, it recognized that the length of isolation was a factor in determining an eighth amendment violation. Id. Many courts, have noted that long-term or prolonged and indefinite segregated confinement is a factor to be considered in determining cruel and unusual punishment. See Jackson v. Meachum, 699 F.2d 578, 582-84 (1st Cir.1983). Although prolonged length or indefiniteness of segregated confinement does not violate the eighth amendment in and of itself, some meaningful periodic review should be provided and the prison authorities should explore feasible alternative custodial arrangements. See Id. at 584-85.

We cannot distinguish whether petitioner received meaningful periodic review in the present case. Furthermore, the record does not indicate how adequate attempts to find alternative custodial arrangements were made. Thus, there is a substantial question as to whether petitioner’s confinement violates the eighth amendment.¹⁴

III.

CONCLUSION

Since petitioner has remained in long-term indefinite CM status allegedly without receiving meaningful periodic review, we remand to the district court with instructions to conduct an evidentiary hearing to develop a complete record of whether petitioner remains an escape risk. We also order the district court to conduct a careful inquiry into the constitutionality of the entire review process in order to determine if the quality of the review is adequate and to determine if adequate procedures were followed.

For these reasons discussed, we VACATE the district court’s order and REMAND the case for further proceedings consistent with this opinion.

1 . The Assignment Team stated that petitioner was "a very severe security problem".

2 . Prison administrators are accorded substantial deference regarding matters of internal security. See Rhodes v. Chapman, 452 U.S. 337, 349, n. 14, 101 S.Ct. 2392, 2400, n. 14, 69 L.Ed.2d 59 (1981). However, without a full administrative hearing we cannot determine if an abuse of discretion has taken place. We express no view on whether petitioner has reformed or whether the fact that his past behavior conceivably provides adequate grounds to keep him confined in CM.

The dissent pontificates that the majority makes no mention of the substantial deference given to prison officials in the management of correctional institutions. Dissenting Opinion, infra at 1558-60. We disagree. The majority recognizes the deference given to prison administrators above and in II C of the Cruel and Unusual Punishment Section. Majority Opinion, infra at 1557.

3 . However, petitioner makes no specific allegations of how this liberty interest was deprived.

4 . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), the 11th Circuit adopted as precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981.

5 . The dissent states that the majority opinion, “while correctly citing (the above) standard, does not apply it." See Dissenting Opinion, infra, at 1561. Although the majority opinion does not belabor its analysis of the Hewitt standard, the majority opinion does apply Hewitt to find that petitioner’s confinement affects a liberty interest; the process used to implement the confinement does not adhere to minimum due process standards; and reach the conclusion that the balance of interests favors petitioner.

6 . Florida Administrative Code Rule 33-3.083(4) provides in pertinent part:

(a) Any inmate placed in Close Management shall be given a hearing before the Close Management Review Team, which may be the Classification Team or another Group of three to five qualified staff members appointed by the Superintendent. The hearing shall be documented on a Report of Close Management, form DC 4-813(c). The inmate may present any facts or arguments relevant to his placement in Close Management. The Close Management Review Team may delay the hearing to allow the inmate additional time to prepare. If the inmate so requests, a state member may be assigned to assist the inmate.

(b) the Close Management Review Team shall inform the inmate of the basis of its decision.

(c) after the hearing or review has been completed, the recommendation of the Close Management Review Team shall be forwarded to the Superintendent for a final decision.

7 . It should be noted that the majority finds little reason to distinguish the use of objective or subjective criteria in evaluating petitioner’s long-term indefinite confinement in CM. See Dissenting Opinion, infra, at 1562-63. While it is true that the Supreme Court in Hewitt validated the use of subjective evaluations by prison authorities, Hewitt, 459 U.S. at 474, 477 n. 9, 103 S.Ct. at 872, 874 n. 9, the validity of the government’s interest in prison safety and security exists as a basis for restricting the liberty rights of an inmate subsists only as long as the inmate continues to pose a safety or security risk. Mims v. Sharp, 744 F.2d 946, 953 (3rd Cir.1984). Without adequate reviews, there is no basis to determine, either subjectively or objectively, if petitioners long-term indefinite confinement is due to the prison officials finding of petitioner’s continuing security or safety risk.

8 . Petitioner does not specifically so state, but we assume he means that the periodic reviews of his Close Management status were not sufficiently meaningful. Again it has already been established that he has a protected liberty interest in remaining in the general prison population. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

9 . Substantive due process claims allege that certain governmental conduct would remain unjustified even if accompanied by the most stringent procedural safeguards. Gilmere, at 1500.

10 . The dissent notes that "the majority predicates its substantive due process conclusions directly on Parker" which the dissent characterizes “only addressed the procedural due process rights of prisoners placed in administrative confinement for punitive reasons." See Dissenting Opinion, infra at 1565. We disagree. The majority opinion predicates its substantive analysis primarily on the conduct of the state which “shocks the conscience.” The Parker case was discussed to illuminate how substantive due process standards are applicable to the question of the propriety of petitioner’s long-term, indefinite confinement in CM. See Majority Opinion, supra at 1555.

11 . In Parker, the state conceded that its administrative confinement regulations violated due process. Parker, 642 F.2d at 867. Moreover, this Court and others have cited Parker without finding it limited to the Glades Correctional Institution. Whitehorn v. Harrelson, 758 F.2d 1416 (11th Cir.1985); e.g., Lucas v. Hodges, 730. F.2d 1493 (D.C.Cir. vacated as moot, 738 F.2d 1392 (D.C.Cir.1984)). Finally, the annotations to the DOC’s amended administrative confinement regulations disclose that in 1983, the regulations applicable to all Florida prisoners were changed in response to the Parker decision to require a due process hearing before a prisoner is placed in administrative confinement.

12 . It should be noted that the Supreme Court in Hewitt v. Helms, 459 U.S. at 477 n. 9, 103 S.Ct. at 874 n. 9, stated that administrative segregation may not be used as a pretext for indefinite confinement of an inmate. The regulations indicate that CM should be temporary and for the shortest time possible. We believe petitioner’s confinement here is indefinite.

13 . In the district court, petitioner asserted that CM inmates are confined to their cells twenty-four hours a day, seven days a week except for a five-minute shower three times a week, "limited out-side exercise, if any, and an occasional call out.” He claimed that it is difficult to get needed medical attention, that access to legal material is minimal, that visits are severely restricted, and that he cannot have a job or participate in vocational programs. He also claimed that his canteen and money-withdrawal privileges are restricted, that he is not permitted to have a radio or television, and that he is ineligible for parole. The state did not challenge these claims. In fact, the pertinent Florida administrative rules indicate that petitioner’s claims about the conditions of confinement in CM are fairly accurate, except that the rules provide for, inter alia, daily access to medical care, access to legal materials, and out-of-cell exercise for two hours per week. See Fla.Adm.Code Rule 33-3.-0083 (1985) (previously numbered 33-3.083).

14 . We do not make any determination whether petitioner’s long-term indefinite confinement here constituted cruel and unusual punishment. The conditions under which petitioner is confined do not constitute cruel and unusual punishment on their face. However, the district court should consider time length of petitioner's confinement as a factor in its cruel and unusual punishment analysis.

The dissent states that since petitioner has adequate food, clothing, sanitation, medical care and personal safety, the state has therefore met its obligations under the eighth amendment. See Dissenting Opinion, infra at 1564-65. As stated above, we believe indefinite segregated confinement is a factor which can be considered under the eighth amendment.