Bailey v. Hobbs et al

Filing 57

ORDER re 51 Partial Report and Recommendations, defts' 40 MOTION for Summary Judgment is GRANTED IN PART AND DENIED IN PART. Signed by Judge J. Leon Holmes on 7/25/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
DARRELL BAILEY,
ADC #800039
v.

PLAINTIFF

No. 5:11CV00031 JLH

RAY HOBBS, Director, Arkansas Department
of Correction; LARRY D. MAY, Chief
Deputy Director, ADC;
JAMES BANKS, Warden, Varner Unit, ADC;
JAMES GIBSON, Assistant Warden, Varner Unit,
ADC; CURTIS MEINZER, Assistant Warden,
Varner Unit, ADC; REVONNA WALKER,
Classification Officer, Varner Unit, ADC

DEFENDANTS

OPINION AND ORDER
Darrell Bailey commenced this action against Ray Hobbs, the Director of the Arkansas
Department of Correction, Larry May, the Chief Deputy Director, and other officers of the
Department of Correction, alleging violations of his rights under the due process clause of the
Fourteenth Amendment. Specifically, Bailey contends that the defendants violated his procedural due
process rights by failing to conduct meaningful periodic reviews of the propriety of his continued
confinement in administrative segregation. The defendants moved for summary judgment, and the
magistrate judge recommended that the motion be granted in part and denied in part. The defendants
have entered timely objections to the magistrate judge’s recommended disposition. For the following
reasons, the defendants’ motion for summary judgment is granted in part and denied in part.
I.
Bailey is serving a life sentence as a result of a conviction in Kansas for first degree murder.
In 1991, he was transferred to the Arkansas Department of Correction pursuant to the Interstate
Corrections Compact. Two years later, he received a disciplinary conviction for rape or forced sexual

act. As punishment, he served thirty days in isolation and was assigned to administrative segregation
for one and one-half years. After serving his discipline, he was released back into the general
population.
In 2003, Congress passed the Prison Rape Elimination Act. In response, the Arkansas
Department of Correction adopted a zero-tolerance policy that provided, among other things, that
any inmate found guilty of rape prior to the adoption of the policy was to be “reviewed by the Unit
Classification Committee for possible assignment to single-cell housing, segregated from the general
population.” One June 22, 2005, Bailey was informed that his housing status would be reviewed
because of the 1993 disciplinary conviction. Shortly thereafter, Bailey was assigned to administrative
segregation.1
It does not appear the parties have provided the Court with the Department policy outlining
the procedures that are in place regarding review of an inmate’s continued confinement in
administrative segregation. In Williams v. Hobbs, the Eighth Circuit discussed the relevant Arkansas
Department of Correction policy vis-a-vis an inmate whose time in administrative segregation appears
to have overlapped with Bailey’s for a number of years. 662 F.3d 994, 998 (8th Cir. 2011).2
According to Williams, Department policy provided that

1

As the magistrate judge explained, although Bailey contends that his initial placement in
administrative segregation violated his due process rights, that claim was raised for the first time in
his response to the motion for summary judgment. Because that claim was not asserted in Bailey’s
complaint, it will not be considered.
2

To the extent Williams’ exposition of the relevant Department policy does not accurately
represent the policy in effect during Bailey’s detention in administrative segregation, and to the extent
any differences are material to the Court’s reasoning herein, the parties may move for reconsideration
and provide the Court with a copy of the relevant policy in effect during Bailey’s confinement in
administrative segregation.
2

the Classification Committee must review the status of an inmate confined in Ad. Seg.
every 30 days. The Classification Committee is routinely composed of the warden,
assistant warden, chief of security, a member of mental health, and a “classification
officer.” The warden, however, possesses complete authority to approve or deny the
Classification Committee’s recommendation. Also, Mental Health staff must
independently review the inmate's status every 30 days.
662 F.3d at 998. Furthermore,
No inmate shall remain in a segregation classification for more than one year unless
he has been personally interviewed by the Warden at the end of one year and such
action is approved by him. At the end of the second and each additional year that an
inmate remains in a segregation classification, he must be personally interviewed by
both the Warden and the Deputy/Assistant Director, who will then determine whether
or not continuation in that status is necessary and/or appropriate.
Id. Here, the parties agree that, with respect to Bailey, the relevant prison officials convened for all
reviews required under Department policy. See also Document #42-2 (Bailey’s testimony that he
received annual reviews as well as reviews every 30, 60, and 90 days). Bailey contends, however,
that the reviews were not “meaningful” and, consequently, failed to provide him with sufficient due
process.
Bailey provided copies of review forms memorializing various reviews of his assignment to
administrative segregation. As the magistrate judge found, a large number of these forms indicate
that Bailey was kept in administrative segregation because he was “a threat to the security and good
order of the institution.” Others indicated different reasons. On five forms, however, no explanation
was provided for Bailey’s continued assignment to administrative segregation.
On a director’s review form dated March 4, 2008, May indicated that Bailey was to be
released from “PREA status.” However, no action was taken as a result of this decision. On
December 17, 2008, the Classification Committee recommended that Bailey be released from
administrative segregation because he was “[no longer] a threat to the security and good order of the
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institution.” The Committee’s recommendation stated that Bailey had shown, “improvement in
conduct, attitude and behavior since being assigned to segregation,” and that he no longer
“indicate[d] a chronic inability to adjust in the general population.” Nevertheless, Bailey remained
confined to administrative segregation until October of 2011.
II.
A court should enter summary judgment if the evidence demonstrates that there is no genuine
dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct.
2505, 2511, 91 L. Ed. 2d 202 (1986). The moving party bears the initial responsibility of
demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party meets this burden,
the nonmoving party must respond by coming forward with specific facts establishing a genuine
dispute for trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).
In deciding a motion for summary judgment, a court views the evidence in the light most favorable
to the nonmoving party and draws all reasonable inferences in that party’s favor. PHL Variable Ins.
Co. v. Fulbright McNeill, Inc., 519 F.3d 825, 828 (8th Cir. 2008). A genuine dispute exists only if
the evidence is sufficient to allow a jury to return a verdict for the nonmoving party. Anderson, 477
U.S. at 249, 106 S. Ct. at 2511. When a nonmoving party cannot make an adequate showing
sufficient to establish a necessary element of the case on which that party bears the burden of proof,
the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23, 106
S. Ct. at 2552.

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III.
In their motion for summary judgment, the defendants argued that Bailey lacks a protected
liberty interest in not being confined to administrative segregation, received any process that was due,
and mooted his claims by voluntarily choosing to enter administrative segregation and refusing to be
released into general population. The defendants also argued that Bailey’s claims should be limited
to exclude those for which he failed to properly exhaust his administrative remedies, to exclude
reviews in which he voluntarily refused to participate, and to allow claims against each defendant only
for those reviews in which that defendant personally participated. Further, the defendants contended
that they are entitled to qualified immunity on Bailey’s due process claims, and to sovereign immunity
with respect to all official capacity claims for money damages. Finally, the defendants argued that
Bailey is barred from seeking compensatory damages for mental anguish because he did not suffer
a physical injury, and also from seeking injunctive relief.
The magistrate judge concluded that summary judgment was inappropriate on Bailey’s claim
that his six-year confinement in administrative segregation triggered the right to procedural due
process, and further that questions of material fact existed regarding whether the defendants reviewed
the propriety of Bailey’s confinement in any meaningful way. The magistrate judge concluded that
the defendants are entitled to qualified immunity for failing to record the reasons for keeping Bailey
in administrative segregation in writing, but not for failing to provide “meaningful” reviews. The
magistrate judge declined to find, as a matter of law, that Bailey waived or mooted his due process
rights by voluntarily remaining in administrative segregation, or by failing to participate in some of
the reviews. The magistrate judge also rejected the defendants’ argument that Bailey’s claims should
be limited to those for which he properly exhausted his administrative remedies. Similarly, the
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magistrate judge recommended denying summary judgment as to particular reviews in which
individual defendants were not personally involved because the defendants failed to proffer evidence
showing in which reviews each defendant personally participated. The magistrate judge also
recommended denying summary judgment on Bailey’s request for injunctive relief. Finally, the
magistrate judge recommended granting summary judgment on Bailey’s official capacity claims for
monetary damages as well as all his claims for compensatory damages.
The defendants filed objections to the magistrate judge’s recommendations. Specifically, the
defendants contend that the magistrate judge improperly applied the relevant legal standard when
finding that genuine issues of material fact remain regarding whether the defendants’ reviews of
Bailey’s continued confinement in administrative segregation were meaningful, and in denying
qualified immunity to the defendants on this issue. The defendants also contend that the magistrate
judge erred in rejecting the defendants’ exhaustion arguments as well as their arguments pertaining
to Bailey’s right to seek injunctive relief. Bailey has filed a response to the defendants’ objections,
but does not articulate any additional objections to the recommended partial disposition.
The defendants have not objected to the magistrate judge’s recommendation that summary
judgment be denied on the issues of whether Bailey had a liberty interest giving rise to procedural due
process rights and whether Bailey waived or mooted his due process rights by voluntarily entering
and remaining in administrative segregation as well as failing to attend certain reviews. Nor have the
defendants objected to the magistrate judge’s recommendation regarding each defendant’s personal
involvement in particular reviews. Furthermore, Bailey has not objected to the magistrate judge’s
recommendation that summary judgment be granted in part. Therefore, finding no plain error, the
Court adopts the magistrate judge’s recommendations regarding these issues. See United States v.
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Robinson, 253 F.3d 1065, 1068 (8th Cir. 2001) (“[W]hen a party fails to object to the findings set
forth in the magistrate judge’s report and recommendation . . . we subsequently review those findings
for plain error.”); Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (The petitioner’s “failure to
file any objections waived his right to de novo review by the district court of any portion of the report
and recommendation of the magistrate judge[.]”).
A.

Meaningful Review
Prison officials reviewing an inmate’s confinement in administrative segregation must provide

the inmate with a review that is meaningful. See Williams v. Norris, 277 F. App’x 647, 649 (8th Cir.
2008); Rahman X v. Morgan, 300 F.3d 970, 973-74 (8th Cir. 2002); Jones v. Mabry, 723 F.2d 590,
594 (8th Cir. 1983); Kelly v. Brewer, 525 F.2d 394, 400 (8th Cir. 1975). The Eighth Circuit recently
held that one way prison officials fail to provide meaningful review of an inmate’s confinement in
administrative segregation is where the officials fail to inform the inmate of the specific reasons for
his continued confinement. See Williams, 662 F.3d at 1009. However, Williams post-dated the
reviews giving rise to Bailey’s claims here. Consequently, the defendants are entitled to qualified
immunity on Bailey’s claim that they failed to articulate specific facts explaining why he remained
ineligible for release from administrative segregation. See Ashcroft v. al-Kidd, --- U.S. ----, 131 S.
Ct. 2074, 2080, 179 L. Ed. 2d 1149 (2011) (state officials are entitled to qualified immunity unless
they violated a statutory or constitutional right which was “clearly established” at the time).
Nevertheless, a question of material fact remains as to whether the defendants otherwise were
reviewing the propriety of Bailey’s continued confinement in administrative segregation in a
meaningful way. Even though May had released Bailey from “PREA status” in March of 2008, some
of the defendants testified that they were unaware of this fact when conducting subsequent reviews.
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Indeed, the evidence indicates that the Classification Committee continued to cite Bailey’s “PREA
status” as a basis for keeping him in administrative segregation even after May released him from this
status. Additionally, the defendants used forms indicating their decision when performing a review.
These forms included pre-written reasons for the decision which could be selected by placing a checkmark in an adjacent box on the form. However, on at least five occasions, the defendants did not
check any box on the form memorializing their review.3 Finally, the Classification Committee
concluded that Bailey should be released from administrative segregation in December of 2008. That
decision was included in Bailey’s administrative file. Two of the defendants testified that they relied
upon Bailey’s file when reviewing his assignment to administrative segregation. Nevertheless, they
failed to discover the decision to release Bailey during subsequent reviews.
This evidence tends to establish that the defendants’ reviews were perfunctory rather than
meaningful. Therefore, as the magistrate judge correctly concluded, the Court cannot say as a matter
of law that the defendants’ reviews of Bailey’s confinement in administrative segregation were
meaningful.4
B.

Exhaustion
It is well-established that an inmate must exhaust all “administrative remedies as are available”

3

The defendants argue that the magistrate judge’s reliance on their failure to check a box
stating the reason for their decision is nothing other than to impose the Williams standard upon their
reviews. The defendants are mistaken. The defendants’ failure to perform the simple task of
checking a box on a prepared form tends to establish that the defendants’ review was cursory rather
than meaningful. It is irrelevant, in this case, that this evidence also may tend to establish that the
defendants failed to comply with the standard elucidated by Williams.
4

As discussed below, the Court finds that the defendants’ exhaustion argument is meritorious.
Consequently, the defendants’ contention that they are entitled to summary judgment at least as to
those reviews preceding March of 2008 is moot.
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before commencing an action under 42 U.S.C. § 1983. 42 U.S.C. § 1997e(a); Booth v. Churner, 532
U.S. 731, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001). The Court has no discretion to consider an
unexhausted claim. See Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003). Exhaustion means
proper exhaustion; that is, compliance with the prison’s procedural rules for filing a grievance.
Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S. Ct. 2378, 2387-88, 165 L. Ed. 2d 368 (2006).
Here, it is undisputed that the Department grievance policy requires that inmates file a
grievance form within fifteen days “after the occurrence of the incident.” Document #42-3 at 4,
#42-4 at 5. The policy also requires that inmates specify the “personnel involved” in the incident.
Id. Bailey testified that the grievances provided by the defendants, see document #42-5, contained
all of his grievances on these matters. Document #42-2 at 64. According to these exhibits, Bailey
submitted informal grievances, which were ultimately fully appealed, first complaining about: (1)
Banks’ conduct at review on June 16, 2010; (2) Hobbs’ at review on June 28, 2010; (3) May’s at
review on June 29, 2010; (4) Walker and Meinzer’s at review on July 6, 2010; (5) and Gibson’s at
review on July 26, 2010. Id. Consequently, pursuant to Department policy, Bailey did not properly
exhaust claims against Banks for reviews prior to June 1, Hobbs for reviews prior to June 13, May
for reviews prior to June 14, Walker and Meinzer for reviews prior to June 21, and Gibson for
reviews prior to July 11. Therefore, the Court has no discretion to consider Bailey’s claims regarding
reviews occurring prior to these dates as to each defendant, respectively.
Bailey contends that the defendants’ due process violations were serial in nature and,
consequently, justice demands that the Court treat his grievances as extending back to all prior
reviews. Baily cites no authority for this proposition. Nor has the Court found any decision or law
creating such an exception to section 1997e(a). The Court is not free to create, on equitable grounds,
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an exception that Congress did not place in section 1997e. See Chelette v. Harris, 229 F.3d 684, 688
(8th Cir. 2000); see also Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S. Ct. 1723,
1726, 80 L. Ed. 2d 196 (1984) (“Procedural requirements established by Congress for gaining access
to the federal courts are not to be disregarded by courts out of a vague sympathy for particular
litigants.”). Because Bailey’s due process claims are for alleged violations occurring at separate and
discrete reviews of his confinement, he cannot rely upon the timeliness of his grievances with respect
to later reviews to render timely his grievances as to earlier reviews. Cf. Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 112, 122 S. Ct. 2061, 2071, 153 L. Ed. 2d 106 (2002) (noting, in the
employment law context, “that discrete acts that fall within the statutory time period do not make
timely acts that fall outside the time period.”). Compare Donaldson v. O’Connor, 493 F.2d 507, 529
(5th Cir. 1974), vacated on other grounds, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975)
(claim for false imprisonment was continuing violation and thus not barred by statute of limitations).
Consequently, Banks is entitled to summary judgment on Bailey’s procedural due process
claims regarding reviews occurring before June 1, 2010. Similarly, Hobbs is entitled to summary
judgment regarding reviews occurring before June 13, May regarding reviews occurring before
June 14, Walker and Meinzer regarding reviews occurring before June 21, and Gibson regarding
reviews occurring before July 11.
C.

Injunctive Relief
Finally, the defendants contend that Bailey has never sought injunctive relief, and that the

magistrate judge’s refusal to find as a matter of law that Bailey is not entitled to injunctive relief
penalizes the defendants for “craft[ing] a thorough and comprehensive” motion. The defendants are
incorrect. In his complaint, Bailey requested “appropriate injunctive relief[.]” Document #2 at 18.
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Because this action will proceed to trial, the Court agrees with the magistrate judge that the better
course is to hold the issue of injunctive relief in abeyance.
CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment is GRANTED IN
PART and DENIED IN PART. Document #40. Summary judgment is granted on Bailey’s
procedural due process claims against Banks regarding reviews occurring before June 1, Hobbs
regarding reviews occurring before June 13, May regarding reviews occurring before June 14, Walker
and Meinzer regarding reviews occurring before June 21, and Gibson regarding reviews occurring
before July 11. Because the defendants are entitled to qualified immunity on Bailey’s claim that they
failed to articulate specific facts explaining why he remained ineligible for release from administrative
segregation, summary judgment is granted as to those claims. Summary judgment is also granted on
Bailey’s claims for monetary damages asserted against the defendants in their official capacities.
Finally, summary judgment is granted on Bailey’s claims for compensatory damages. These claims
are dismissed with prejudice. Summary judgment is denied in all other respects.
IT IS SO ORDERED this 25th day of July, 2012.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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