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

EDMONDSON, Circuit Judge,

dissenting.

Federal courts must accord great deference to the decisions of state prison administrators regarding internal prison security. Because the hard facts of this case have enticed the majority to disregard this deference, I must respectfully dissent.

A. Introduction

The pivotal issue in Sheley’s case is the quality of review he has received during his tenure in close management. Before evaluating Sheley’s specific allegations, however, it is important to examine the well-established analytic framework we must use when evaluating such claims. 1 We begin with the tenet that, given a court’s lack of penological knowledge, decisions by prison officials — who do have expertise in the area — should be given great weight. It is axiomatic that federal courts “possess no expertise in the conduct and management of correctional institutions.” Finney v. Arkansas Bd. of Correction, 505 F.2d 194 , 200 (8th Cir.1974), on remand sub nom. Finney v. Hutto, 410 F.Supp. 251 (E.D.Ark.1976), aff'd, 548 F.2d 740 (8th Cir.1977), aff'd, 437 U.S. 678 , 98 S.Ct. 2565 , 57 L.Ed.2d 522 (1978); see Bell v. Wolfish, 441 U.S. 520, 548 , 99 S.Ct. 1861, 1879 , 60 L.Ed.2d 447 (1979). Aware of this shortcoming, courts often have noted that judgments made by prison authorities are entitled to great weight. See Pell v. Procunier, 417 U.S. 817, 827 , 94 S.Ct. 2800, 2806 , 41 L.Ed.2d 495 (1974); Gardner v. *1559 Joyce, 482 F.2d 283, 285 (5th Cir.), cert. denied, 414 U.S. 1096 , 94 S.Ct. 731 , 38 L.Ed.2d 555 (1973). 2 This necessary obeisance to the expertise of prison administrators was best described by the Supreme Court in words that bear repeating in full:

Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism.

Procunier v. Martinez, 416 U.S. 396, 404-05 , 94 S.Ct. 1800, 1807 , 40 L.Ed.2d 224 (1974). Additionally, “where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.” Id. at 405 , 94 S.Ct. at 1807. In sum, “wide ranging deference must be accorded the decisions of prison administrators. They, and not the courts, must be permitted to make difficult judgments concerning prison operations.” Newman v. Alabama, 559 F.2d 283, 286 (5th Cir.1977), rev’d in part on other grounds sub nom. Alabama v. Pugh, 438 U.S. 781 , 98 S.Ct. 3057 , 56 L.Ed.2d 1114 (1978) (per curiam).

This deference to prison authorities, which is heightened when state prisons are involved, is extended even further when the decision at issue involves a prison’s internal security — even if a particular prison restriction interferes with a specific constitutional right. See Bell v. Wolfish, 441 U.S. 520, 546-47 , 99 S.Ct. 1861, 1878 , 60 L.Ed.2d 447 (1979) (internal security is “central to all other corrections goals”; “prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry”; constitutional infringements “must be evaluated in the light of the central objective of prison administration, safeguarding institutional security”); see also Whitley v. Albers, 475 U.S. 312 , 106 S.Ct. 1078, 1085 , 89 L.Ed.2d 251 (1986) (“That deference [expressed in Bell ] extends ... to prophylactic or preventive measures intended to reduce the incidence of [actual confrontations] or any other breaches of prison discipline.”)

This increased deference is predicated on both the importance of prison safety, Hewitt v. Helms, 459 U.S. 460, 473 , 103 S.Ct. 864, 872 , 74 L.Ed.2d 675 (1983) (safety “is perhaps the most fundamental responsibility of the prison administration”), and the necessarily intuitive, subjective nature of security-risk decisions.

In assessing the seriousness of a threat to institutional security, prison administrators necessarily draw on more than the specific facts surrounding a particular incident; instead, they must consider *1560 the character of the inmates confined in the institution, recent and longstanding relations between prisoners and guards, prisoners inter se, and the like. In the volatile atmosphere of a prison, an inmate easily may constitute an unacceptable threat to the safety of other prisoners and guards even if he himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice to spark potentially disastrous incidents. The judgment of prison officials in this context, like that of those making parole decisions, turns largely on “purely subjective evaluations and on predictions of future behavior,” Connecticut Board of Pardons v. Dumschat, 4 52 U.S. 458, 464 , 101 S.Ct. 2460, 2464 , 69 L.Ed.2d 158 (1981); indeed, the administrators must predict not just one ' inmate’s future actions, as in parole, but those of an entire institution. Owing to the central role of these types of intuitive judgments, a decision that an inmate or group of inmates represents a threat to the institution’s security would not be appreciably fostered by the trial-type procedural safeguards suggested by respondent.

Id. at 474, 103 S.Ct. at 872-73 ; see Bell v. Wolfish, 441 U.S. at 546-48 , 99 S.Ct. at 1877-79 (prison officials should be accorded “wide-ranging deference” in adopting policies related to security).

We also must be aware of the limited nature of an inmate's constitutional rights. Obviously, “a prisoner is hot wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555-56 , 94 S.Ct. 2963, 2974 , 41 L.Ed.2d 935 (1974); see Bell v. Wolfish, 441 U.S. at 545 , 99 S.Ct. at 1877 . Nevertheless, “lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Pell v. Procunier, 417 U.S. 817, 822 , 94 S.Ct. 2800, 2804 , 41 L.Ed.2d 495 (1974) (quoting Price v. Johnston, 334 U.S. 266, 285 , 68 S.Ct. 1049, 1060 , 92 L.Ed. 1356 (1948)); accord Bell, 441 U.S. at 545-46 , 99 S.Ct. at 1877 . In defining the parameters of constitutional rights in the prison context, “we cannot automatically apply the ... rules designed for free citizens in an open society.” Wolff, 418 U.S. at 560 , 94 S.Ct. at 2976 (referring to procedural rules); accord Hewitt, 459 U.S. at 472 , 103 S.Ct. at 872 (same). In simple terms, “Prisoners’ constitutional rights are subject to limitations and restrictions that would be intolerable if imposed against the general public.” Wilson v. Schillinger, 761 F.2d 921, 925 (3d Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1494 , 89 L.Ed.2d 895 (1986); see also Newman, 559 F.2d at 286 (“a prisoner does not retain constitutional rights that are inconsistent with his status as a prisoner or with the legitimate peno-logical objectives of the corrections systems.”); see Hewitt, 459 U.S. at 467 , 103 S.Ct. at 869 .

The final, overarching tenet is that “[t]he operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.” Bell v. Wolfish, 441 U.S. 520, 548 , 99 S.Ct. 1861, 1879 , 60 L.Ed.2d 447 (1979). Courts should refuse to enter the fray unless compelled to do so by obviously unconstitutional prison actions that bear no relationship whatsoever to acceptable penological objectives. See Procunier v. Martinez, 416 U.S. at 405 , 94 S.Ct. at 1807 ; Newman, 559 F.2d at 286 .

Proper application of these principles to this case requires that we affirm the district court’s order denying the writ; no one has violated Sheley’s constitutional rights. The conditions of Sheley’s incarceration certainly do not warrant subjecting a Florida prison to the overlordship of federal judges.

B. There is no Procedural Due Process Violation.

The majority holds that Sheley’s procedural due process rights have been violat *1561 ed. I disagree. First, whatever protecta-ble liberty interest an inmate possesses in remaining in the general prison population is a creation of state law and not the Constitution. See Hewitt, 459 U.S. at 466-67, 468 , 103 S.Ct. at 869, 870 ; Wolff, 418 U.S. at 556-57 , 94 S.Ct. at 2975 (“the interest of prisoners in disciplinary procedures is not included in the ‘liberty’ protected by the Fourteenth Amendment.”) The critical issue in determining whether a liberty interest, protected by the Fourteenth Amendment, exists is whether the state “has used language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed, ... and that administrative segregation will not occur absent specified substantive predicates.” Hewitt, 459 U.S. at 471-72 , 103 S.Ct. at 871 . Thus, a prisoner does not “generally [have] a protected liberty interest in remaining in the general [prison] population,” Majority Opinion, supra at 1554; that interest exists only if created by the state. See Hewitt, 459 U.S. at 469-71 , 103 S.Ct. at 870-71 ; Montanye v. Haymes, 427 U.S. 236, 242 , 96 S.Ct. 2543, 2547 , 49 L.Ed.2d 466 (1976) (“as long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him ... the Due Process Clause does not in itself subject an inmate’s treatment by prison authorities to judicial oversight.”).

Although the majority has not engaged in such analysis, I am willing to assume that Florida’s guidelines and regulations regarding which prisoners are to be placed in administrative segregated status — and which are to be released — are sufficiently mandatory to warrant the conclusion that Florida has thereby created in its inmates a protected liberty interest in remaining in the general prison population. See Hewitt, 459 U.S. at 470 , 103 S.Ct. at 870-71 .

If the state creates such a protected liberty interest, certain minimal procedures— either pre- or postsegregation — are required for the initial administrative confinement. Id. at 476 , 103 S.Ct. at 874 . 3 More important for our purposes, the Hewitt Court also recognized that once an inmate is administratively segregated by way of proper procedures, due process requires “some sort of periodic review of the confinement of such inmates.” Id. at 477 n. 9, 103 S.Ct. at 874 n. 9. 4 The difficulty lies in determining the parameters of the process due.

Although the majority implies otherwise, see Majority Opinion, supra at 1554-55 & n. 6, the procedural protections required by the state are of no moment in deciding the extent of the inmate’s federally protected due process rights. 5 Instead, whether the process accorded passes constitutional muster is determined by applying a three-part balancing test in which the court weighs “the private interests at stake in a governmental decision, the governmental interests involved, and the value of procedural requirements.” Hewitt, 459 U.S. at 473 , 103 S.Ct. at 872 (citing Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893, 903 , 47 L.Ed.2d 18 (1976)). The majority, while correctly citing this standard, does not apply it. See Majority Opinion, supra at 1554-55.

Few courts have weighed these factors in determining the specific issue we face today: what process is due an inmate, ini *1562 tially segregated for administrative purposes for acceptable reasons and by way of proper procedure, who has remained in administrative segregation for an uninterrupted, lengthy term that indicates the segregation is indefinite. 6 Applying the first of the three Hewitt factors — the governmental interest at stake — the internal security of the prison and, more importantly, the safety and security of civilians outside the prison in the event of a dangerous felon’s escape, is extraordinarily high. Thus, the government’s interest here is as high or higher than in Hewitt. See Mims v. Shapp, 744 F.2d 946, 951 (8d Cir.1984).

Turning to the second factor, Sheley’s interest is greater than the prisoner’s interest in Hewitt . The relatively low individual liberty interest implicated in an initial, short-term transfer from one restricted environment to a slightly more restricted one, Hewitt, 459 U.S. at 473 , 103 S.Ct. at 872 , increases somewhat as time passes. Mims, 744 F.2d at 951-52 ; Clark v. Brewer, 776 F.2d 226, 233 (8th Cir.1985).

Although it is difficult to assign exact weight to either the governmental interest or the individual interest, I believe that the government’s interest actually is greater. I am willing to assume for purposes of this opinion, however, that the two interests balance out. See Mims, 744 F.2d at 952 . Thus, the final factor — the value of the additional procedural requirements demanded by the inmate — is determinative. Sheley essentially demands that the state formulate, distribute and apply objective criteria in deciding whether a prisoner may be released from administrative confinement and that the prisoner appear, in person, and argue his own case each time he is reviewed. Neither of these procedural requirements is warranted by common sense and neither is required by Supreme Court precedent.

First, the use of objective criteria has been implicitly rejected by the Supreme Court. Hewitt makes obvious that prison authorities can, and must, use subjective evaluations. 7 Hewitt, 459 U.S. at 474 , 477 n. 9, 103 S.Ct. at 872-73 , 874 n. 9; Clark, 776 F.2d at 235 ; Mims, 744 F.2d at 953 . “Hewitt thus severely undermines the position taken by the [majority in this case] that due process required, as an absolute, the use of objective standards by prison authorities in the periodic reviews of the initial confinement decision.” Id.; see Clark, 776 F.2d at 236 (specifically rejecting district court’s holding that due process required formulation and use of binding, objective evaluative criteria). Objective standards are not only unrequired under Hewitt , they are impractical in a real-world sense. To determine whether Sheley remains a security risk requires an intuitive hunch built on years of experience. 8 Such intuitive, case-by-case decisions are not subject to objective criteria. 9

Turning to the second asserted procedural issue — an inmate’s right to appear at his reviews — the majority makes much of the fact that “at many of the reviews petitioner *1563 reviews — the majority makes much of the fact that “at many of the reviews petitioner was not present, had no notice of them and had no opportunity to present any arguments.” Majority Opinion, supra at 1555. This ignores two issues. First, the Hewitt Court noted that although some type of periodic review is necessary to avoid pre-textual retention, review of inmates placed in administrative confinement “will not necessarily require that prison officials permit the submission of any additional evidence or statements. Deciding whether a prisoner remains a security risk will be based on facts relating to a particular prisoner— which will have been ascertained when determining to confine the inmate to administrative segregation — and on the officials’ general knowledge of prison conditions and tensions, which are singularly unsuited for ‘proof’ in any highly structured manner.” Hewitt, 459 U.S. at 477 n. 9, 103 S.Ct. 874 n. 9. Given the highly subjective nature of the inquiry and that the relevant facts have been very largely established at the outset, the state is required neither to allow Sheley an interview with the Classification or Assignment Teams nor to allow him to present evidence. In other words, an ex parte review of the inmate’s status is sufficient.

As a second matter, the majority disregards significant record evidence that Sheley was, in fact, interviewed on virtually all review occasions. 10 Thus, while Hewitt indicates that due process in this setting *1564 does not necessarily entail the opportunity to state one’s case, Florida nevertheless has periodically allowed Sheley to do just that.

In short, although some form of periodic review is necessary, there is no constitutional infirmity in informal periodic review that places a significant emphasis on internal prison security and bases its conclusions on the purely subjective evaluation of prison authorities. See Mims, 744 F.2d at 954 . The review Sheley has received, given the nature of the decision, comports with the requirements of due process as established in the Fourteenth Amendment. 11

C. There is no Eighth Amendment Violation.

I believe the majority misconstrues cruel and unusual punishment by improperly juxtaposing procedural requirements on the eighth amendment. Inmates are entitled only to the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 , 101 S.Ct. 2392, 2399 , 69 L.Ed.2d 59 (1981). 12 An eighth amendment violation concerns only the physical nature of an inmate’s confinement, not whether proper procedures are employed. 13

The eighth amendment triggers no procedural safeguards: “If the state furnishes its prisoners with reasonably adequate food, clothing, sanitation, medical care, and personal safety ... that ends its obligations under Amendment Eight.” Newman v. Alabama, 559 F.2d 283, 291 (5th Cir.1977), rev’d in part on other grounds sub nom. Alabama v. Pugh, 438 U.S. 781 , 98 S.Ct. 3057 , 57 L.Ed.2d 1114 (1978) (per curiam). The prisoner’s protection against arbitrary punishment is found in the safeguards he must be accorded when he is transferred from the general population to a segregated confinement. Thereafter, if the physical conditions of his segregation— when considered in the context of a lengthy segregation, see Hutto v. Finney, 437 U.S. 678, 687 , 98 S.Ct. 2565, 2571 , 57 L.Ed.2d 522 (1978) 14 — are not cruel and unusual, no further eighth amendment analysis is required. See Newman, 559 F.2d at 291 . The deleterious effects of Sheley’s segregated status are said to be the mental, physical and emotional deterioration that result from the inactivity, lack of companionship and low level of intellectual stimulation he receives. These effects are not sufficient to be cruel and unusual punishment under the eighth amendment. New *1565 man, 559 F.2d at 291 (refusing to apply eighth amendment to the “uncharted bog” of mental, physical and emotional deterioration); Jackson, 699 F.2d at 583 (surveying case law and reaching same conclusion); Sostre v. McGinnis, 442 F.2d 178, 193 (2d Cir.1971), cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049 , 92 S.Ct. 719 , 30 L.Ed.2d 740 (1972).

As I stated earlier in this opinion, Sheley has a right not to be placed in segregation without penological purpose and without review. See generally Whitley v. Albers, 475 U.S. 312 , 106 S.Ct. 1078, 1085 , 89 L.Ed.2d 251 (1986) (deference to prison officials’ decisions does not extend to “actions taken in bad faith and for no legitimate purpose”); Hewitt, 459 U.S. at 477 n. 9, 103 S.Ct. at 874 n. 9 (“administrative confinement may not be used as a pretext for indefinite confinement”). Any procedural protections, however, are found in the due process clause, not the eighth amendment. 15

Once the prisoner forfeits his state-created right to remain in the prison population by proving himself to be a security risk, an eighth amendment claim is raised only if the physical conditions of the segregation, considered in the context of the length of the confinement, are below the minimal measures of civilized society. She-ley has adequate food, clothing, sanitation, medical care and personal safety; accordingly, the state has met its obligations under the eighth amendment.

D. There is no Substantive Due Process Violation.

The Supreme Court has established that, when considering decisions by prison administrators that concern internal prison security, “the Due Process Clause [i.e., substantive due process] affords [the prisoner] no greater protection than does the Cruel and Unusual Punishments Clause.” Whitley, 106 S.Ct. at 1088 . As I explained in Section C, I am convinced Sheley’s eighth amendment claim is insufficient to warrant a judicial hearing; therefore, under Whitley , it cannot suffice under the due process clause. 16

E. There is no Equal Protection Violation.

As I see it, the majority has applied the incorrect legal standard to Sheley’s equal protection claim. The majority articulates and applies the so-called “rational basis test”: they say Sheley’s claim must fail if the state demonstrates a rational relationship to a legitimate governmental purpose. Were Sheley assailing the pertinent prison regulation as creating, on its face, impermissible classifications, this would be the correct standard of review. 17 Allgood v. Morris, 724 F.2d 1098, 1100 (4th Cir.1984); *1566 see Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 , 96 S.Ct. 2562, 2567 , 49 L.Ed.2d 520 (1976); Brandwein v. California Bd. of Osteopathic Examiners, 708 F.2d 1466 , 4470 (9th Cir.1983).

Sheley contends, however, that the state has discriminatorily applied an otherwise valid regulation. That is, he alleges that prison officials have chosen to apply the regulations to him but not to other inmates with equally bad, or worse, “credentials.” The law is that equal protection challenges based on application of a facially valid statute or regulation are not subject to the rational basis test; instead, such attacks require proof of purposeful discrimination based on invidious purposes.

[t]he unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.

Snowden v. Hughes, 321 U.S. 1, 8 , 64 S.Ct. 397, 401 , 88 L.Ed. 497 (1944) (emphasis added). See McClesky v. Kemp, — U.S. -,-, 107 S.Ct. 1756, 1766 , 95 L.Ed.2d 262 (1987) (defendant alleging equal protection violation must demonstrate purposeful discrimination against defendant; relying on Wayte v. United States, 470 U.S. 598, 608 , 105 S.Ct. 1524, 1531 , 84 L.Ed.2d 547 (1985) and Whitus v. Georgia, 385 U.S. 545, 550 , 87 S.Ct. 643, 646 , 17 L.Ed.2d 599 (1967)); Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1887); Ciechon v. City of Chicago, 686 F.2d 511, 522-23 (7th Cir.1982); Kuzinich v. Santa Clara County, 689 F.2d 1345 , 1349 (9th Cir.1983); Smith v. Georgia, 684 F.2d 729, 736 (11th Cir.1982); Harrington v. United States, 673 F.2d 7, 11 (1st Cir.1982); Jurek v. Estelle, 593 F.2d 672 , 685 n. 26 (5th Cir.1979), issue vacated without being addressed, 623 F.2d 929, 931 (5th Cir.1980) (en banc), cert. denied, 450 U.S. 1014 , 101 S.Ct. 1724 , 68 L.Ed.2d 214 (1981); Cook v. City of Price, 566 F.2d 699, 701 (10th Cir.1977); Zentgraf v. Texas A & M Univ., 492 F.Supp. 265, 270 (S.D.Tex.1980). See generally, Annotation, What Constitutes Such Discriminatory Prosecution or Enforcement of Laws as to Provide a Valid Defense in a Federal Criminal Proceedings, 45 A.L.R.Fed. 732.

A habeas corpus petitioner has the burden of establishing that an evidentiary hearing is necessary. Williams v. Griswald, 743 F.2d 1533, 1537 (11th Cir.1984). Federal courts have the discretionary power to order such a hearing only if “the petitioner’s allegations, if proved, would establish the right to habeas corpus relief.” Id. (citing and applying standard first set out in Townsend v. Sain, 372 U.S. 293, 307 , 83 S.Ct. 745, 754 , 9 L.Ed.2d 770 (1963)); Smith v. Wainwright, 777 F.2d 609, 615 (11th Cir.1985); Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir.1984). In making this initial determination, a court must look to the petitioner’s allegations — construed liberally if he is pro se, as is Sheley — and the undisputed facts on the record.

The question, therefore, is whether She-ley has presented a prima facie case of “purposeful” discrimination. See Whitus v. Georgia, 385 U.S. 545, 550 , 87 S.Ct. 643, 646 , 17 L.Ed.2d 599 (1967); Smith, 684 F.2d at 736 . That is, he must point to evidence which indicates both that the prison officials singled him out (which he arguably has shown) and that he was singled out for constitutionally impermissible grounds. See Damiano v. Florida Parole & Probation Comm’n, 785 F.2d 929, 932-33 (11th Cir.1986); Snowden, supra; Ciechon, supra; United States v. Scott, 521 F.2d 1188, 1195 (9th Cir.1975); accord Kuzinich, 689 F.2d at 1349. Sheley has not met the second requirement; therefore, he is not entitled to an evidentiary hearing.

Cruz v. Skelton, 543 F.2d 86 (5th Cir.1976), ce rt. denied, 433 U.S. 911 , 97 S.Ct. *1567 2980 , 53 L.Ed.2d 1096 (1977), is on point and illustrates application of these concepts; its reasoning should control our decision. In Cruz , an inmate contended his equal protection rights were violated because prisoners assigned to his prison were granted parole by the state parole board less often than inmates in other prisons. Id. at 91 . The court rejected this argument, holding that the inmate-plaintiff’s claim had to fail because he “allege[d] no ‘invidious discrimination’ based on such considerations as race, religion, national origin, or poverty.” Id. at 92 . Mere statistical disparity, without invidious intent, is not enough to state a valid equal protection claim of selective application. See id.

Sheley has asserted nothing that even implies that the decision, in his case, was made with discriminatory intent. See Smith, 684 F.2d at 736 . Absent purposeful invidious discrimination, he is unentitled to a hearing on his equal protection claim.

F. Conclusion

To some, Sheley’s claims appear facially inviting. When closely scrutinized under Supreme Court precedent, however, the weaknesses are manifest. Requiring an evidentiary hearing on these allegations establishes bad precedent, especially in light of the significantly heightened deference we owe state prison officials’ decisions regarding internal security issues, and places yet another burden on a job — state prison administration — that is virtually impossible in the first instance.

Requiring state officials to participate in time-consuming, expensive and annoying litigation is an injury to the state even if the state ultimately prevails on the merits; thus, requiring evidentiary hearings is no neutral act. The majority interferes with Florida’s affairs today in a way that the Constitution does not demand. I would affirm the district court; accordingly, I must respectfully dissent.

. The majority opinion makes only passing mention of this significant background of deference that should strongly influence all of the issues in this case.

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

. The Hewitt Court went to great lengths to differentiate between process due when a prisoner initially is placed in administrative, rather than disciplinary, confinement. Wolff represents the paradigmatic disciplinary analysis; Hewitt stands as the prototypical administrative confinement case.

. All of the circuits that have addressed the issue have concluded that some form of periodic review is required. See Toussaint v. McCarthy, 801 F.2d 1080, 1101 (9th Cir.1986); Clark v. Brewer, 776 F.2d 226, 234 (8th Cir.1985); Mims v. Shapp, 744 F.2d 946, 952 (3d Cir.1984); Jackson v. Meachum, 699 F.2d 578 , 584 & n. 5 (1st Cir.1983). See also, Gibson v. Lynch, 652 F.2d 348, 358 (3d Cir.1981); Bono v. Saxbe, 620 F.2d 609, 614 (7th Cir.1980); Calloway v. Fauver, 544 F.Supp. 584, 602 (D.N.J.1982).

.The extent of the state-mandated procedures are relevant only to any state law or state constitution claims the inmate might assert.

. The Third Circuit, however, addressed this exact point in Mims v. Shapp, 744 F.2d 946, 951 (3d Cir.1984) ("Our concern is ... what process is due during the periodic reviews that determine whether the confinement should be continued.") The inmate in Mims was imprisoned for murdering a police officer and, while in prison, participated in the killing of a deputy warden; as a result, the inmate was placed in segregation and remained there for five years. The court concluded that his segregation "was of potentially limitless duration.” Id. at 951 . The Mims Court applied the three-part test and concluded that periodic review based solely on subjective criteria was constitutionally sufficient.

. Hewitt , while not dispositive of this case, is highly instructive in this area. See Mims, 744 F.2d at 952 .

. I can understand how some prison administrators are unimpressed by Sheley’s "clean record” for the past several years. Putting aside the troublesome fact that Sheley somehow obtained a handgun and 34 rounds of ammunition even while in segregation, it hardly is surprising that an inmate in solitary confinement does not get into a lot of trouble.

. Besides Sheley’s extensive record of escapes, attempted escapes and possession of escape paraphernalia, the prison authorities have many other factors to weigh. For example, Sheley was serving a life sentence for robbery and possession of a firearm by a convicted felon, as well as a 37 year sentence for assault with intent to commit murder. Thus, Sheley was not a petty offender serving a short time for property crimes; he had an extensive past record of violent acts. Were he to escape, he would present *1563 an immediate, grave threat to the physical well-being of the surrounding community. Moreover, he was subject to two outstanding detain-ers, one state and one federal. The state prison authorities had to consider this factor as a possible incentive to escape, since Sheley easily could conclude that even if he eventually served his time and was released from the Florida prison system, it was highly likely he would immediately return to another penal institution.

. Sheley was placed in close management on June 27, 1974. The record before us reveals the following reviews, recommendations and interviews.

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Record on Appeal, Vol. 1 Tab 12 at A112-A146. "GPP” represents "general prison population”; "CM” represents "close management.”

It is unclear whether the record on appeal includes all the reviews Sheley has received, although there are indications that some review records are not before us. For example, the Classification Team report dated 1/23/84 states that “[Sheley’s] case has in fact been reviewed by the Classification Team on a monthly basis. [Sheley’s] case was most recently reviewed by the Full Assignment Team on 1/5/84, with the Classification Team recommending through [sic] review by the Assignment Team for status change consideration.” As the above chart makes clear, however, the records present in the record on appeal do not include monthly reviews or records reflecting a 1/5/84 review by the Assignment Team. Thus, it is possible other reviews occurred but were not included in this record.

It is also worth noting that for those dates on which the above chart indicates no interview occurred (e.g., 9/25/75, 10/19/79), the records do not state that no interview occurred; they simply contain no reports of an interview. Thus, it is possible, perhaps likely, that Sheley was interviewed on some of those occasions, even though the Classification Team’s reports do not so state. This is especially true for the 1984 reports, which adopted a severely truncated form devoid of the incidental information found in earlier reports.

. I believe it is important to note that we, as federal judges, must avoid imposing our own notions of decency and fair play on the states by way of the Constitution. It is irrelevant that I might require monthly reviews at which Sheley could appear and present all the evidence he wished. Federal courts do not, cannot and should not administer state prisons. We can intercede only when the state crosses the limits specifically established by the Constitution.

. The eighth amendment proscribes punishment that shocks the conscience, offends society’s evolving notions of decency or is grossly disproportionate to the offense. See Hutto v. Finney, 437 U.S. 678, 685 , 98 S.Ct. 2565, 2570-71 , 57 L.Ed.2d 522 (1978); 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).

. The majority contends that, on remand, the district court must explore whether the state has considered less restrictive alternatives to close management status. Both the Supreme Court and this circuit have rejected this type of analysis. See Block v. Rutherford, 468 U.S. 576, n. 11 , 104 S.Ct. 3227 , 3235 n. 11, 82 L.Ed.2d 438 (1984) ("we affirm that administrative officials are not obliged to adopt the least restrictive means to meet their legitimate objectives"), accord Jersawitz v. Hanberry, 783 F.2d 1532, 1535 (11th Cir.1986).

.It is important to remember the context in which the Hutto Court noted that conditions which are acceptable over a short term may be "intolerably cruel” over a lengthier period. The Court stated that “a filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few weeks and intolerably cruel for weeks or months.” Hutto, 437 U.S. at 686-87 , 98 S.Ct. at 2571 . That is, physical conditions that are marginally acceptable for a short time may become unacceptable with the passage of time. Obviously, the crucial question relates to the inmate’s physical surroundings. Sheley’s conditions of confinement are not physically unacceptable, whether viewed over a short or long term: he has a clean cell and receives the same food and necessary services as the other inmates.

.Only one circuit has indicated, in any way, that the eighth amendment might trigger procedural requirements. In Jackson v. Meachum, 699 F.2d 578, 584 (1st Cir.1983), the court indicated, in dictum, that systematic periodic review of a prisoner’s administrative segregation status would be required under either the fourteenth or eighth amendment. I feel that, if squarely faced with the issue, it is highly likely the First Circuit would find that whatever procedural protections exist are located in the fourteenth amendment. Alternatively, to the extent that Jackson's dictum can be read otherwise, I disagree with its analysis as contrary to the entire body of eighth amendment law.

Jackson does demonstrate the unlikelihood that length of segregation may render a confinement cruel and unusual. The court surveyed the case law on this issue and concluded that the cases "reveal ... a widely shared disinclination to declare even very lengthy periods of segregated confinement beyond the pale of minimally civilized conduct on the part of prison authorities.” Jackson, 699 F.2d at 583 . In fact, the Jackson court cited no cases in which lengthy confinement was held to be cruel and unusual punishment.

. I also note, for the record, that Parker v. Cook, 642 F.2d 865 (5th Cir.1981) only addressed the procedural due process rights of prisoners placed in administrative confinement for punitive reasons. Nevertheless, the majority predicates its substantive due process conclusions directly on Parker. See Majority Opinion, supra at 1555-56.

. I would contend that even were this the correct standard, Florida has posited a rational relationship to a legitimate governmental interest when it avers that it has made a subjective determination that Sheley — a former escapee, *1566 convicted of violent crimes — remains an escape risk and thus threatens the security of the prison and the surrounding community.