KeOndra Chestang v. Varner Super Max, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Morris S. Arnold and Lavenski R. Smith (UNPUBLISHED); Denying [3948216-2] motion to strike filed by Appellant Mr. KeOndra M. Chestang.; Denying [3948213-2] motion to compel filed by Appellant Mr. KeOndra M. Chestang. [3992297] [12-2189]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2189
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KeOndra M. Chestang
lllllllllllllllllllll Plaintiff - Appellant
v.
Varner Super Max, Classification Committee; Tucker Maximum Security Unit,
Arkansas Department of Correction, Classification Committee; Roy Agee,
Classification Administrator; Larry May, Assistant Director, Arkansas Department
of Correction; Ray Hobbs, Director, Arkansas Department of Correction; Minnie
L. Drayer, Disciplinary Judge; Grant Harris, Warden, Arkansas Department of
Correction; John Whaley, Assistant Warden of Security, Arkansas Department of
Correction; Revonna Walker, Classification Supervisor, Arkansas Department of
Correction; Bobby Washington, Security Captain, Arkansas Department of
Correction; J. Banks, Warden, Arkansas Department of Correction; C. Meinzer,
Assistant Warden, Varner Supermax Unit, Arkansas Department of Correction; M.
McConnell, Classification Supervisor; Stephens, Security, Arkansas Department
of Correction; Straughn, Warden, Tucker Max Security Unit, Arkansas
Department of Correction; S. Outlaw, Assistant Warden, Tucker Max Security
Unit, Arkansas Department of Correction; V. King, Classification Supervisor,
Tucker Max Unit, Arkansas Department of Correction; M. Williams, Building
Major, Tucker Max Security Unit, Arkansas Department of Correction; Darryl
Golden, Assistant Warden, Varner Supermax Unit, Arkansas Department of
Correction; Greg Harmon, Warden, Arkansas Department of Correction; Green,
Ms., Arkansas Department of Correction
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff

Appellate Case: 12-2189

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Date Filed: 01/09/2013 Entry ID: 3992297

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Submitted: January 4, 2013
Filed: January 9, 2013
[Unpublished]
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Before MURPHY, ARNOLD, and SMITH, Circuit Judges.
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PER CURIAM.
Arkansas Department of Correction inmate KeOndra Chestang appeals the
dismissal of his 42 U.S.C. § 1983 action claiming various constitutional violations
by prison officials. We find no basis for reversing the dismissal, except as to the
following claim. Chestang alleged that at the time he filed his complaint in August
2011, he had been confined in administrative segregation or in the prison’s behavior
modification program (the program) for almost four years, without meaningful
periodic reviews, and that this confinement was being continued in retaliation for a
2008 altercation with a prison officer.1
On de novo review, see Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir.
2011), we agree with the district court that Chestang’s initial placement in
administrative segregation and in the program did not implicate a liberty interest. See

1

We note that Chestang alleged he was subjected to similar restrictions in both
the program and administrative segregation, cf. Giano v. Selsky, 238 F.3d 223, 226
(2d Cir. 2001) (separate segregation sentences at two facilities should have been
aggregated for purpose of due process inquiry, where they constituted sustained
period of confinement and where conditions were, for all practical purposes, identical
at both facilities); and that he clarified his allegations in his objections to the
magistrate judge’s report, cf. Thornton v. Phillips Cnty., Ark., 240 F.3d 728, 729 (8th
Cir. 2001) (per curiam) (such objections should be treated as motion to amend).
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Date Filed: 01/09/2013 Entry ID: 3992297

Sandin v. Conner, 515 U.S. 472, 484 (1995) (protected liberty interest is generally
limited to freedom from restraint that imposes atypical and significant hardship on
inmate in relation to ordinary incidents of prison life); Orr v. Larkins, 610 F.3d 1032,
1034 (8th Cir. 2010) (per curiam) (this court has consistently held that demotion to
segregation, even without cause, is not atypical and significant hardship). Taking his
allegations as true, however, we conclude that his continued segregation for years
implicated a liberty interest and that Chestang stated a due process claim. See Kelly
v. Brewer, 525 F.2d 394, 399-400 (8th Cir. 1975) (where inmate is held in
administrative segregation for prolonged or indefinite period, due process requires
that his situation be reviewed periodically in meaningful way; administrative
segregation is not punitive, it looks to present and future rather than to past, and it
involves exercise of administrative judgment and prediction of what inmate will
probably do or have done to him if he is permitted to return to population after period
of segregation; reason for segregation must not only be valid at outset but must
continue to subsist during period of segregation).2
Accordingly, we deny Chestang’s pending motions, reverse the grant of
defendants’ motion to dismiss as to the due process claim, remand for further
proceedings on that claim, and otherwise affirm the judgment pursuant to Eighth
Circuit Rule 47B.
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2

Appellees argue that Kelly was overruled by Hewitt v. Helms, 459 U.S. 460
(1983). This court has rejected that argument. See Williams v. Hobbs, 662 F.3d 994,
1000 n.4 (8th Cir. 2011).
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Date Filed: 01/09/2013 Entry ID: 3992297