Charles Selby v. Patricia Caruso

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0318p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

CHARLES J. SELBY,

-

Plaintiff-Appellant,

-

-

No. 13-1248

v.

,

>

-

-

PATRICIA L. CARUSO, former Director of the

-

Michigan Department of Corrections, JAMES

-

MACMEEKIN, former Regional Prison

-

-

Administrator, JERI-ANN SHERRY, Regional

-

Prison Administrator, and GERALD

-

HOFBAUER, former Warden, Marquette

-

Branch Prison, in their personal and official

capacities, -

Defendants-Appellees. N

Appeal from the United States District Court

for the Western District of Michigan at Marquette.

No. 2:09-cv-00152—R. Allan Edgar, District Judge.

Decided and Filed: October 31, 2013

Before: GILMAN, KETHLEDGE, and STRANCH, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Michael R. Dean, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, for Appellees. Charles Selby, Marquette, Michigan, pro

se.

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. Charles J. Selby, a Michigan prisoner

proceeding pro se, appeals the district court’s grant of summary judgment for the

defendants in this civil rights case filed under 42 U.S.C. § 1983. He sued Michigan

Department of Corrections officials for violating his due process rights, alleging that

1

No. 13-1248 Selby v. Caruso, et al. Page 2

they confined him in administrative segregation for approximately thirteen years without

meaningful review. He also alleged that the defendants violated his rights under the

First Amendment and the Religious Land Use and Institutionalized Persons Act

(RLUIPA), 42 U.S.C. § 2000cc-1, by denying him access to Christian worship services

while he was confined in administrative segregation. For the reasons explained below,

we AFFIRM in part and REVERSE in part the grant of summary judgment in favor of

the defendants and REMAND for trial on the due process claim.

I. FACTS AND PROCEDURAL HISTORY

Selby is serving a life sentence for murder, a two-year sentence for being a felon

in possession of a firearm, and a two-to-five-year sentence for attempted escape from

prison. Michigan prison authorities confined Selby in administrative segregation for

nearly thirteen years based on a determination that he posed a serious escape risk. Selby

served most of those years in the Marquette Branch Prison (MBP), a maximum security

facility. Correction officials released Selby into the general prison population at MBP

in January 2011, approximately eighteen months after Selby filed this § 1983 suit in July

2009.

For summary judgment purposes, we accept as true the allegations of Selby’s

verified complaint and his affidavit, including his description of the conditions of his

confinement in administrative segregation. Selby attests that he was locked in his cell

23 to 24 hours a day with no direct contact or interaction with other prisoners, although

he could speak to them through the barred door of his cell. He was not allowed a daily

shower. His food portions were smaller and he was not allowed to obtain food or

beverages from the commissary. He did not receive educational programming. He

could not possess a battery-operated radio, cassette-tape player, MP3 player, hobby

items, or many other personal items. He lacked direct access to health care, the library,

the chapel, and the gym. He received very limited yard time, and even during those

periods he was locked in a cage slightly larger than a cell. In winter he could not walk

out into the yard because he did not have a coat. Selby had no access to a telephone

except to speak with an attorney or receive a call concerning a death in his family.

No. 13-1248 Selby v. Caruso, et al. Page 3

Visiting hours were reduced and mail privileges restricted. The lights remained on in

his unit twenty-four hours a day, seven days a week. Selby was confined with mentally

ill prisoners who screamed and banged metal lids against metal footlockers and walls.

He was not allowed to purchase ear plugs from the commissary to dull the noise. Many

of the prisoners smeared food and feces on themselves and their cell walls and refused

to shower. Because there was little ventilation in the unit, Selby was forced to smell the

stench until extraction teams sprayed chemical agents to take control of the prisoners and

remove them from the unit so they could be showered and their cells could be cleaned.

Selby was forced to breathe the chemical fumes and smoke from cell fires set by other

prisoners. By his seventh year in administrative segregation, Selby developed

respiratory problems, frequent panic attacks, confusion, concentration and memory

problems, infections, insomnia, paranoia, and hallucinations. He experienced despair,

depression, and thoughts of suicide.

Prison staff and administrators completed monthly Administrative Segregation

Interview Reports about Selby’s confinement in administrative segregation between

1998 and 2011. Selby characterizes these reports as a “sham” because the outcome of

the review process was preordained by a “hold” placed on him by the Correctional

Facilities Administrator (CFA). Selby attests that he was never informed why he was

subject to a “CFA hold,” what prison rule or policy he violated to warrant the hold, or

how he could obtain removal of the hold. Although the defendants deny that a CFA hold

impacted their decision to continue Selby’s confinement in administrative segregation,

some of the monthly review reports state that Selby was subject to a CFA hold.

The corrections department policy on administration segregation that is included

in the record, PD 04.05.120, bears an effective date of June 29, 2009. Any previous

version of this policy that may have applied during most of Selby’s confinement in

administrative segregation is not available to us for review.

The 2009 segregation policy indicates that the Warden and the Regional Prison

Administrator (RPA) acting together had the authority to release Selby from

administrative segregation. But Selby avers that Warden Hofbauer and RFA McMeekin,

No. 13-1248 Selby v. Caruso, et al. Page 4

and later RFA Sherry, told him during periodic interviews that they lacked authority to

order his release into the general prison population and they would not release him even

if they had the authority to act. Selby further avers that Warden Hofbauer and the RPAs

told him during periodic interviews that they did not have to consider him for release;

they were required only to conduct the reviews. Warden Hofbauer denies that any such

statements were made to Selby. The record confirms that RFA Sherry sought direct

approval from the CFA before Selby was released from administrative segregation into

the general prison population in January 2011.

It is not clear what effect Selby’s conduct, other than his escape history prior to

2003, had on his continued confinement in administrative segregation. He received a

major misconduct report in July 2001 for possessing blood pressure pills that did not

belong to him, but this misconduct was not mentioned on the August 2, 2001

Administrative Segregation Interview Report. Instead, the form noted that Selby’s

“Behavior and Conformity to Rules” was “No Problem.”

Selby received another major misconduct report in late January 2002 for

possession of dangerous contraband—detailed instructions on how to start a car without

a key—for which he lost privileges for a period of thirty days, but the Administrative

Segregation Interview Report issued five days later on February 14, 2002, again reported

that his “Behavior and Conformity to Rules” was “No Problem.” The report commented

that Selby “must stop [receiving] misconducts and start to follow unit program.”

Selby did not receive another major misconduct report until May 2005 when he

was found in possession of two razor blades, half of a nail clipper, and a piece of thin

metal two inches long. The Administrative Segregation Interview Report completed on

June 3, 2005, specifically mentioned this major misconduct citation, but the report

nonetheless characterized Selby’s behavior as a “Marginal Problem.”

The last major misconduct violation occurred approximately five years later on

February 26, 2010, when Selby possessed a pen with a piece of metal attached to one

end. After a hearing on this violation held in mid-March, Selby lost his privileges for

a period of fourteen days. This incident was mentioned in the April 2010 “Segregation

No. 13-1248 Selby v. Caruso, et al. Page 5

Behavior Review,” but less than a year later, Selby was released into the general prison

population. The monthly segregation review reports repeatedly indicated that Selby’s

attitude and social adjustment were “good,” he maintained good hygiene and cell

cleanliness, he generally followed the rules, and he worked at a job painting segregation

cells.

In March 2010, Selby qualified for a lower security classification under the

corrections department’s “Security Classification Screen – Review” form. Nonetheless,

prison officials departed upward from the suggested security classification level and

continued to hold Selby in administrative segregation because his “[o]verall institutional

history warrants [a] security level increase.”

The record does not disclose any significant event in late 2010 or early 2011 that

convinced prison officials to release Selby from administrative segregation. The

monthly reports completed just before the release are virtually indistinguishable from

the reports filled out in previous years. The forms repeatedly documented prison

officials’ persistent “low” trust in Selby’s ability to conform to prison rules at a less

restrictive security classification level.

On January 18, 2011, the Security Classification Committee requested approval

to release Selby from administrative segregation. MBP’s Acting Warden, James

Alexander, sent a memorandum to RPA Sherry on January 25, 2011, recommending

Selby’s release. RPA Sherry obtained the concurrence of the CPA and Selby was

released to general prison population with the caveat that he remain at MBP at security

level V.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment. Peterson v.

Johnson, 714 F.3d 905, 910 (6th Cir. 2013). “Summary judgment is proper where there

is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law.” Id. We view the facts, and the reasonable inferences to be drawn from

those facts, in the light most favorable to the non-moving party, and we do not weigh the

No. 13-1248 Selby v. Caruso, et al. Page 6

evidence or make credibility determinations. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). As the moving parties, the defendants have the initial burden to show

that there is an absence of evidence to support Selby’s case. Peterson, 714 F.3d at 910.

If Selby can demonstrate the existence of a genuine issue of material fact for trial, then

summary judgment may not be granted in favor of the defendants. See id.

III. ANALYSIS

A. Due process claim

Selby possesses a cognizable liberty interest in freedom from restraint that

“impose[d] atypical and significant hardship on [him] in relation to the ordinary

incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). We recently

ruled that confinement in administrative segregation for eight years gave rise to a liberty

interest, Harris v. Caruso, 465 F. App’x 481, 484 (6th Cir. 2012), and we have no

difficulty holding that under the facts of this case thirteen years gives rise to a liberty

interest. Cf. Heard v. Caruso, 351 F. App’x 1, 8–9 (6th Cir. 2009) (reversing summary

judgment for defendants where genuine issue of material fact existed on whether

indefinite confinement to administrative segregation gave rise to a liberty interest).

The pivotal question is whether a jury must decide if Selby received the process

due to him. We know from longstanding Supreme Court jurisprudence that prison

officials must engage in some sort of periodic review while an inmate is confined in

administrative segregation, and that the officials’ decision to continue such confinement

must be supported by “some evidence.” See Harris, 465 F. App’x at 484 (citing Hewitt

v. Helms, 459 U.S. 460, 477 n.9 (1983), and Superintendent v. Hill, 472 U.S. 445, 454

(1985)). In Harris, due process was satisfied as a matter of law because the evidence

confirmed that the inmate “received meaningful, periodic reviews” and the decision to

continue indefinite confinement in administrative segregation was supported by “some

evidence.” Harris, 465 F. App’x at 485 (emphasis added). That is not the situation here.

Genuine issues of material fact exist on this record concerning whether Selby received

meaningful periodic reviews and whether the prison officials’ decision to continue

No. 13-1248 Selby v. Caruso, et al. Page 7

Selby’s confinement in administrative segregation for nearly thirteen years was

supported by “some evidence.”

Without question, Selby presented a very serious security risk when he was

placed in administrative segregation. Even Selby admits that. Our task, however, is to

determine whether the complete factual record is so one-sided that the defendants are

entitled to summary judgment on the due process claim. We conclude that it is not.

Both sides submitted conflicting affidavits about what was said and done during the

thirteen years of periodic reviews. Some of the documents support Selby’s assertion that

he was subject to a CFA hold, leading to a reasonable inference that the periodic reviews

conducted by lower-level prison staff were perfunctory and meaningless, as Selby

argues. Selby also argues that, once the CPA denies a prisoner release from segregation,

the prisoner must remain in segregation a minimum of an additional six months,

rendering the monthly reviews during that time a sham. On the other hand, the CFA

hold may have had nothing to do with Selby’s administrative segregation status, as the

defendants contend. There are other material disputes of fact, including whether Selby’s

four misconduct reports over a period of ten years supplied support for the decision to

retain him in administrative segregation, whether the decision to override his

qualification for a lower security classification in 2010 was warranted, and whether the

aging escape history justified continued restraint in administrative segregation for a

period of thirteen years.

The defendants argue they are entitled to summary judgment on this claim

because they are protected by qualified immunity. To overcome this defense, Selby

must show (1) the violation of a constitutional right and (2) that the right was clearly

established at the time of the violation. See Dominguez v. Corr. Med. Servs., 555 F.3d

543, 549 (6th Cir. 2009). “When no facts are in dispute, whether an official receives

qualified immunity is a question of law.” Id. But in this case, as in Dominguez, facts

are in dispute, precluding summary judgment for the defendants. Id. at 550–52.

“Whether a given process is meaningful for the purposes of the Due Process

Clause is a question of fact.” Williams v. Hobbs, 662 F.3d 994, 1000 (8th Cir. 2011). In

No. 13-1248 Selby v. Caruso, et al. Page 8

Williams, where an Arkansas inmate was held in administrative segregation for fourteen

years, the Eighth Circuit reversed a grant of summary judgment for the defendants on

the ground that “there remains an unresolved fact issue on this record as to whether

Williams actually received meaningful reviews, rather than sham reviews, as he

contends.” Williams v. Norris, 277 F. App’x 647, 649 (8th Cir. 2008). Similarly, this

record contains unresolved disputes of fact.

Furthermore, since Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983), prison

officials have been on notice that “administrative segregation may not be used as a

pretext for indefinite confinement of an inmate.” Thus, Selby may be able to show that

a reasonable prison official should have known that he could not be confined in

administrative segregation for pretextual reasons. See Colvin v. Caruso, 605 F.3d 282,

290 (6th Cir. 2010)(noting that the contours of a constitutional right must be sufficiently

clear that a reasonable governmental official would understand that what he is doing

violates that right).

Because Selby satisfies both requirements for overcoming the qualified immunity

defense, summary judgment is not appropriate. See Dominguez, 555 F.3d at 550–52

(holding that a prisoner’s right to adequate medical care was clearly established and

genuine issues of material fact regarding the violation of that right precluded summary

judgment). To prove liability under § 1983 at trial, Selby must demonstrate by a

preponderance of the evidence that each defendant, acting with intent, deliberate

indifference, or gross negligence, deprived him of meaningful periodic reviews during

his confinement in administrative segregation. See Howard v. Grinage, 82 F.3d 1343,

1350–52 (6th Cir. 1996).

B. First Amendment and RLUIPA claims

We turn next to Selby’s claims concerning his religious freedom. Selby alleges

in his complaint that he is a devout Christian who was deprived of the right to practice

his religious beliefs through participation in group worship services while he was

confined in administrative segregation. In the appellate briefs, he presented argument

No. 13-1248 Selby v. Caruso, et al. Page 9

only on his RLUIPA claim, so we deem the First Amendment claim abandoned. See

Griffin v. Hardrick, 604 F.3d 949, 956 (6th Cir. 2010).

Selby’s requests for declaratory and injunctive relief under RLUIPA became

moot when he was released into the general prison population at MBP. See Colvin, 605

F.3d at 289; Berryman v. Granholm, 343 F. App’x 1, 4–5 (6th Cir. 2009). In addition,

Selby cannot state a claim against the State of Michigan for damages under RLUIPA.

See Sossamon v. Texas, 131 S. Ct. 1651, 1658–59 (2011); Cardinal v. Metrish, 564 F.3d

794, 801 (6th Cir. 2009). Finally, our court has not ruled on whether RLUIPA

authorizes a prisoner to pursue damages against prison officials who are sued in their

individual capacities, see Heard v. Caruso, 351 F. App’x 1, 13 n.5 (6th Cir. 2009), but

we need not resolve that issue here. Having carefully reviewed the RLUIPA claim, we

agree with the district court’s reasons for granting summary judgment to the defendants

on that claim.

IV. CONCLUSION

For the reasons explained, we AFFIRM in part and REVERSE in part the grant

of summary judgment in favor of the defendants. We REMAND the case for trial on

Selby’s due process claim.