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P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 99-3603

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. e du/thir dc ir c uit_2000/108Filed May 23, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3603

RUSSELL SHOATS,

Appellant

v.

MARTIN HORN, in his official capacity as the Commissioner of the Pennsylvania Department of Corrections; PHILIP JOHNSON, in his official capacity as Superintendent of the State Correctional

Institution at Greene

APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. No. 97-cv-01811) District Judge: The Honorable Gary L. Lancaster

ARGUED FEBRUARY 3, 2000

BEFORE: MANSMANN, NYGAARD and RENDELL, Circuit Judges.

(Filed: May 23, 2000)Daniel M. Kovalik, Esq. (Argued)

Room 807 5 Gateway Center Pittsburgh, PA 15222

Attorney for Appellant

John G. Knorr, III, Esq. (Argued) J. Bart DeLone, Esq. Office of Attorney General of Pennsylvania Department of Justice Strawberry Square, 15th Floor Harrisburg, PA 17120

Attorneys for Appellees

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant Russell Shoats is currently imprisoned in the State Correctional Institution at Greene, Pennsylva nia ("SCI-Greene"), and brings this civil rights action pursuant to 42 U.S.C. S 1983. He challenges his continued confinement in administrative custody, i.e., solita ry confinement. Shoats claims that Appellees, the Pennsylvania Department of Corrections and Philip Johnson, Superintendent of SCI-Greene, have kept hi m in administrative custody in violation of his Fourteen th Amendment right to procedural due process. He seeks immediate release into the general prison populatio n, damages, and other relief.

Although we hold that Shoats has a protected libert y interest in being released from administrative conf inement, we conclude that SCI-Greene's procedures for evalua ting

whether Shoats should remain in administrative cust ody comported with procedural due process requirements. Accordingly, we will affirm.

I. Factual Background

In 1970, Shoats was convicted of first degree murde r for his part in an attack on a Philadelphia police guar dhouse.

2Shoats participated in the attack as a member of a black

revolutionary group that sought to eradicate all au thority. One police officer was killed and another seriously wounded in the attack. Shoats was sentenced to life impriso nment. Seven years later, in September 1977, Shoats and se veral other inmates took over a cell block at the Hunting don State Correctional Institution as part of an attemp t to escape. Shoats injured several guards with a knife, and, along with three other prisoners, attempted to esca pe from the prison as planned. Two of the inmates were capt ured immediately and a third was killed during the escap e. Shoats remained at large until he was captured in O ctober

1977.

While Shoats was a fugitive, he entered the home of a prison guard and forced him, his wife, and theirfiv e year old son to drive him in their car to a location out side Cokesburg, Pennsylvania. Shoats then ordered the ho stages

to enter the woods where he left them tied to a tre e for almost four hours. Shoats was captured, and convict ed of escape, robbery, kidnaping and simple assault. He w as later transferred to Fairview State Hospital for th e criminally insane. In March 1979, Shoats had guns smuggled in to him and escaped from that maximum security institution, again taking a hostage. In ad dition to escape and taking hostages, Shoats also has a histo ry of threatening and assaulting his fellow inmates, and of causing disruptions at the institutions in which he is

incarcerated.

Pennsylvania correctional institutions have two bas ic types of housing, general population and restricted housing. An inmate in general population may be per mitted to be outside of his cell for lengthy periods throu ghout the day. General population inmates are permitted to ha ve contact visits at least one day per week, and may participate in educational and vocation programs, a pproved inmate organizations, and approved fund-raising pro jects.

Inmates in disciplinary and administrative custody are confined in Restricted Housing Units (RHU). They ar e housed in disciplinary custody when, following a he aring, they have been found guilty of prison misconduct. T he maximum period that an inmate may be confined in

3disciplinary custody is ninety days. In contrast,

administrative custody is used to assure a safe and secure environment for all inmates and staff by separating those inmates whose presence in the general population constitutes a threat to themselves, others, or the safety and security of the institution, or who represent an es cape risk. Inmates in administrative custody are not allowed t o have radios, televisions, telephone calls (except emerge ncy or legal), personal property except writing materials, or books other than legal materials and a personal religious volume. Non-legal visits of one per week are allowed under appropriate security procedures designated by the P rogram Review Committee (PRC). Pennsylvania does not provi de inmates in administrative custody with educational programs, and all meals are eaten in the inmates' c ells.

Unlike disciplinary custody, there is no maximum pe riod of confinement in administrative custody. Rather, r elease depends upon an evaluation of many factors. While t ime spent and behavior are to be considered, so too are continued risk, safety of others, and recommendatio ns of prison personnel, including treatment staff.

Under Department of Corrections (DOC) policy, an in mate must receive written notice of the reason for his p lacement in administrative custody and he is entitled to rec eive a hearing before a PRC within six days of the initial transfer to administrative custody. Every thirty days therea fter, inmates assigned to administrative custody have the opportunity to be personally interviewed by the PRC , which

then determines whether the inmate should continue to be maintained in administrative custody, taking into a ccount a variety of factors including the safety of other inmates and staff, the continued public or institutional ri sk, and the

recommendation of treatment staff.

In addition to separation from the general prison population, the DOC may order that specific prisone rs be separated from each other and, if necessary, placed in different institutions. The DOC may enter such orde rs after reviewing specific instances of misconduct, and det ermining that specific separation is appropriate. As a resul t of such review, Shoats currently has fifteen individuals fr om whom he must be separated.

4As of 1989, Shoats was imprisoned at the State

Correctional Institution in Dallas, Pennsylvania (" SCIDallas"), where he was placed in administrative cus tody. In November of that year he was transferred to the fed eral penitentiary at Leavenworth, Kansas. When he return ed to Pennsylvania in June 1991, Shoats was again impriso ned at SCI-Dallas and again placed in administrative cu stody. In January 1995, he was transferred to SCI-Greene, where he continues to be held in administrative custody.

Shoats has spent an extraordinarily long period in administrative custody. Nonetheless, his status has been subject to PRC review every thirty days. No member of a PRC has ever recommended releasing Shoats from administrative custody; they have universally concl uded that Shoats remains a significant danger to institu tional safety and security. These conclusions are supporte d by DOC psychological evaluations of Shoats, which characterize him as a remorseless sociopath knowled geable in the workings of prisons and escape techniques, c apable of leading other inmates in such undertakings, and inclined

to do so. He has also been described as volatile an d manipulative.

In June 1998, the Secretary of the DOC asked Thomas James, a special assistant to the Secretary, to con duct an

extensive review to determine whether Shoats should remain in administrative custody. James recognized that such extended administrative custody was atypical f or the prison population. He noted that Shoats' volatile n ature and need to be separated from numerous other prison ers make his situation unique. However, his review also concluded that, as with other inmates who have a hi story of escape and violence against correctional officer s and other inmates, Shoats' continued placement in administrative custody is absolutely necessary.

Thereafter, Shoats brought this action pursuant to 42 U.S.C. S 1983, seeking to be immediately released i nto the general prison population. He also sought damages a nd other relief. He claims that the appellees, the Sec retary of the DOC and the Superintendent of SCI-Greene, have kept him in administrative custody in violation of his F ourteenth Amendment right to procedural due process.

5Following discovery, the parties filed cross-motion s for

summary judgment. The District Court agreed with Sh oats that he possesses a protected liberty interest in o btaining release into the general population. However, adopt ing the recommendation of the magistrate judge, the Distric t Court held that the defendants had provided Shoats with t he process he was due and granted the defendants' moti on for summary judgment. This appeal followed.

II. Discussion

Shoats claims that the duration of his placement in solitary confinement, and the attendant hardships o f such confinement, require that we affirm the District Co urt's conclusion that he possesses a protected liberty in terest in being released to the general prison population. He also

claims that Defendants did not afford him all of th e process he was due. The record evidence leads us to conclud e that although Shoats' confinement is sufficient to trigg er the procedural protections of the Due Process Clause, t he process provided him was sufficient to pass Constit utional

muster.

A. Shoats' Liberty Interest

In analyzing a procedural due process claim, thefir st step is to determine whether the nature of the inte rest is one within the contemplation of the `liberty or pro perty' language of the Fourteenth Amendment. See Fuentes v

. Shevin, 407 U.S. 67 (1972). Once we determine that the interest asserted is protected by the Due Process C lause, the question then becomes what process is due to pr otect it. See Morrissey v. Brewer, 408 U.S. 471, 481 (197 2).

Protected liberty or property interests generally a rise

either from the Due Process Clause or from state-cr eated statutory entitlement. See Board of Regents v. Roth , 408 U.S. 564, 575 (1972). In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court announced a new standard for determining whether prison conditions deprive a pri soner of a liberty interest that is protected by procedural due process guarantees. Although the Court acknowledged that liberty interests could arise from means other than the Due Process Clause itself, the Court concluded that sta te-

6created liberty interests could arise only when a p rison's

action imposed an "atypical and significant hardshi p on the inmate in relation to the ordinary incidents of pri son life."

515 U.S. at 483.

At issue in Sandin was whether the plaintiff's thir ty-day detention in disciplinary custody in a Hawaii priso n impacted any protected liberty interest under the

Fourteenth Amendment. The Court concluded that the prisoner in Sandin did not have a protected liberty interest in remaining free of disciplinary detention or segr egation because his thirty-day detention, although punitive ,"did not exceed similar, but totally discretionary confi nement in either duration or degree of restriction." Id. at 4 86. In finding that the prisoner's thirty-day confinement in disciplinary custody did not present the type of at ypical, significant deprivation in which a State might conc eivably create a liberty interest, the Court considered the following two factors: 1) the amount of time the prisoner was placed into disciplinary segregation; and 2) whether the c onditions of his confinement in disciplinary segregation were significantly more restrictive than those imposed u pon other inmates in solitary confinement. Id.

The parties in this case do not dispute the fact th at very few Pennsylvania prisoners have been confined in administrative custody for periods of eight years o r more. Ben Varner, the Superintendent who reviewed the PRC decisions on Shoats, testified that to the best of his recollection, approximately one percent of the inma te population at SCI-Greene has been confined in restr icted housing for such lengthy periods of time. (Varner D ep. at 54-61; A145-52). Moreover, Thomas James, Special Assistant to DOC Commissioner Martin Horn, concedes that the amount of time Shoats has already spent in administrative confinement is not only atypical, bu t is indeed "unique." A214-15.

In addition, the record suggests that Shoats' long- term confinement has imposed a significant hardship on h im in relation to the ordinary incidents of prison life. Shoats has been confined in virtual isolation for almost eight years. See A45 (Shoats Dep.). He is confined in his cell for 2 3 hours a day, five days a week, and 24 hours a day, two days a

7week. Id. He eats meals by himself. Id. His sole c ontact is

with DOC officials, and has been denied contact wit h his family for almost eight years. Id. He is prohibited from participating in any educational, vocational, or ot her organizational activities. Id. He is prohibited fro m visiting the library. Id. James concedes that he has never w itnessed one example of such permanent solitary confinement in his 22 years with the DOC. See A211. Moreover, James explained that he would be concerned about the psychological damage to an inmate after only 90 day s of such confinement and would generally recommend tran sfer to the general population after 90 days as a conseq uence. See A184-85, 188-90.

Based on this record, we have no difficulty conclud ing that eight years in administrative custody, with no prospect of immediate release in the near future, is "atypic al" in relation to the ordinary incidents of prison life, and that Shoats' eight-year confinement subjects him to cond itions that differ significantly from "routine" prison con ditions in Pennsylvania state institutions.

B. Shoats' Due Process Claim

Although we hold that Shoats has a protected libert y interest that has been adversely affected by his in definite segregation in administrative custody, we reject Sh oats' argument that he has been deprived of the process h e is

due under the Fourteenth Amendment.

In Hewitt v. Helms, 459 U.S. 460 (1983), the Suprem e Court considered whether prison inmates were entitl ed to due process before being placed in solitary confine ment for administrative -- rather than disciplinary -- reaso ns. The Court expressly rejected the idea that due process required a "detailed adversary proceeding," on the ground th at it would not "materially assist" the decision to be ma de. Id. at

473-74. The Court further held that in these situat ions, an "informal, nonadversary review" at which the prison er has the opportunity to state his views, satisfies the requirements of due process:

An inmate must merely receive some notice of the charges against him and an opportunity to pr esent his views to the prison official charged with de ciding

8whether to transfer him to administrative se gregation.

Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to pe rmit oral presentations in cases where they believe a written statement would be ineffective. So long as t his occurs, and the decisionmaker reviews the charges an d then- available evidence against the prisoner, the Due

Process Clause is satisfied.

Id. at 476.

The inmate in Hewitt received notice of the charges against him the day after his misconduct took place . Id. at 477. Only five days after his transfer to administr ative segregation, a Hearing Committee reviewed the exist ing evidence against him. Id. Moreover, the inmate acknowledged on his misconduct form that he "had th e opportunity to have [his] version reported as part of the record," and thus had an opportunity to present a statement to the Committee. Id. The Supreme Court h eld that this proceeding plainly satisfied the Due Proc ess requirements for confinement of the inmate in administrative custody. Id. Here, Shoats has been g iven exactly the same opportunities as those given to th e inmate in Hewitt; there is therefore no question that, on its face, the procedure provided to Shoats is constitutionall y adequate.

The process provided by the Pennsylvania DOC to an inmate confined in administrative custody is as fol lows. A hearing is conducted by the PRC, in which the ratio nale for the administrative custody placement is read and ex plained to the inmate. See A84. The inmate is permitted to respond to the rationale for administrative custody placeme nt either orally or in writing. Id. A Committee member then d rafts a summary of the inmate's statements. Id. A written summary of the entire hearing is then prepared, whi ch includes the reasons relied upon by the PRC to reac h its decision, and a copy of this summary is given to th e inmate. Id.

An inmate may appeal the PRC's decision to the Superintendent in writing within two days of the co mpletion

9of the hearing, and the decision of the Superintend ent must

be forwarded to the inmate within ten days of the r eceipt of the appeal. See A85. The inmate's right to appeal

terminates when he or she is released from administ rative custody. Id.

At least once every thirty days, those inmates assi gned to administrative custody have the right to be persona lly interviewed by the PRC. Id. For those inmates not r eleased from administrative custody following the thirty-da y review,

the reasons for the PRC's decision are forwarded to the Superintendent for his or her review. Id. If the Superintendent agrees that the rationale for holdin g an inmate in administrative custody is reasonable, he or she notifies the inmate accordingly. Id. If, however, t he Superintendent believes the inmate should be releas ed to the general population, he or she will so order it. Id.

After an inmate is confined for ninety days in administrative custody, the Superintendent must com plete a formal report to the Regional Deputy Commissioner , who

then reviews the recommendation of the institution to determine if any further action is necessary. Id. F urther action may include release to the general populatio n, transfer to another facility or program, or continu ation in administrative custody. Id. In light of the standar d set forth by the Supreme Court in Hewitt, we conclude that th e Pennsylvania procedures clearly comply with due pro cess requirements.

The record reflects that the procedures called for did in fact occur. Specific program review committee progr ess reports are included in the record, which reflect S hoats' choice to appear at some, but not all, of his PRC r eviews. The reports reflect that Shoats raised and discusse d various issues at these committee sessions, includi ng his desire for library time, complaints about the commi ssary and medical treatment, visitation rights, and other general matters. In many instances, Shoats complained about the denial of his release into the general population, and he was advised of the prison's reasons for denying his release. There is no indication that Shoats presented any countervailing arguments or considerations to the r eview

committee.

10Shoats does not argue that he was denied the

opportunity to respond or be heard, nor does he arg ue that the prison authorities failed to consider favorable information or that they otherwise dealt with his c ase in a perfunctory fashion. Cf. Sourbeer v. Robinson , 791 F.2d 1094, 1101 (3d Cir. 1986). In fact, Shoats does not contend that he made any arguments, or offered any favorabl e factual data to counter the prison's rationale for holding him. Rather, Shoats argues that his continued confi nement in administrative custody is based solely on his pa st crimes of murder, escape, kidnaping and assault, and there fore has no contemporaneous justification. (Appellant's Br. at 42-48). We disagree. Shoats is not confined to administrative custody simply because he committed crimes in the past, but because he is, in the consi dered judgment of all the prison professionals who have e valuated him, a current threat to the security and good orde r of the institution, and to the safety of other people. See A238-44 (Mistrick Dep.). This assessment is based partly on Shoats' conduct, but also on the prison professionals' curr ent impressions of him based on their day-to-day dealin gs with Shoats over time. See, e.g., A243 (Mistrick Dep.)(" [H]e represents a danger to the secure running of the in stitution and the safety of others"); A115 (Varner Dep.)("[I] n my opinion, this man was still a danger"); A169 (White Dep.)("I felt he was still dangerous").

Even were we to conclude that Shoats' continued confinement in administrative custody is based sole ly on his past crimes, the process he received would none theless pass constitutional muster, because predictions of likely future behavior based on a generally volatile crimi nal character have been upheld by the Supreme Court:

In assessing the seriousness of a threat to institutional security, prison administrators necessarily draw on more than the specific facts surrounding a p articular incident; instead, they must consider the ch aracter of the inmates confined in the institution, rec ent and longstanding relations between prisoners and guards, prisoners inter se, and the like. In the vol atile atmosphere of a prison, an inmate easily may constitute an unacceptable threat to the saf ety of other

11prisoners and guards even if he himself has committed

no misconduct; rumor, reputation, and even m ore imponderable factors may suffice to spark po tentially disastrous incidents. The judgment of prison officials in this context, like that of those making paro le decisions, turns largely on purely subjective evaluatio ns and on predictions of future behavior.

See Hewitt, 459 U.S. at 474 (internal citations omi tted). Thus, Shoats could conceivably be held in administr ative custody merely because his prior crimes reasonably

foreshadow future misconduct.

Shoats also claims that his confinement is the resu lt of the "bias" of Superintendent Varner, who reviewed h is confinement at SCI-Greene, first as a member of the PRC and later as Superintendent. (Appellant's Br. at 38 -39). However, Shoats' administrative custody dates back to 1991, long before Shoats came to SCI-Greene, and it has continued to the present, long after Varner left SC I-Greene in April 1998. No member of the PRC, and no Superintendent, at SCI-Greene or elsewhere, has eve r recommended that Shoats be released to the general prison population. Thus, we hold that Shoats' "bias" argum ent is

without foundation.

Shoats' confinement in administrative custody has b een, in accordance with the DOC regulations, reviewed ev ery month by the PRC and the Superintendent. Furthermor e, Shoats has been given the opportunity to present hi s views personally at each review. See A85-86. In effect, t he record demonstrates that Shoats' continued placement in administrative custody is supported by evidence suf ficient to pass constitutional muster. Because Shoats has f ailed to provide any support for his assertions that his PRC reviews were constitutionally inadequate, we hold that the periodic reviews conducted by the PRC here comport with the minimum constitutional standards for due process.

III.

Accordingly, we affirm the district court's decisio n.

12A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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