Opposition Brief — Craig Eugene Smith, Petitioner v. James McKinney, Warden, et al.

No. 20-554

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CRAIG EUGENE SMITH,

v.

Petitioner,

JAMES MCKINNEY, WARDEN; KELLY HOLDER;

LESLIE WAGERS; NIKI WHITACRE;

JONATHAN JANSSEN,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

---------------------------------♦--------------------------------RESPONDENTS’ BRIEF IN OPPOSITION

---------------------------------♦--------------------------------THOMAS J. MILLER

Attorney General of Iowa

JEFFREY THOMPSON

Solicitor General

SAMUEL P. LANGHOLZ

Assistant Solicitor General

Counsel of Record

H. LORAINE WALLACE

Assistant Attorney General

WILLIAM A. HILL

Assistant Attorney General

1305 E. Walnut

Des Moines, Iowa 50319

(515) 281-5164

sam.langholz@ag.iowa.gov

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

The Fourteenth Amendment’s Due Process Clause

only protects a prisoner’s “state-created liberty interest in avoiding restrictive conditions of confinement”

when the condition “imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.” Wilkinson v. Austin, 545 U.S. 209,

223 (2005) (citing Sandin v. Conner, 515 U.S. 472, 484

(1995)).

The question presented is:

Whether a State “imposes atypical and significant

hardship” when it (1) transfers a prisoner serving a

life sentence back to a maximum-security prison after

the prisoner served 19 months in a medium-security

prison or (2) places the prisoner in administrative and

disciplinary segregation for 12 months.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF AUTHORITIES .................................

iii

INTRODUCTION ................................................

1

STATEMENT OF THE CASE..............................

4

REASONS FOR DENYING THE PETITION ...... 13

I.

Petitioner failed to develop the factual

record necessary to analyze whether the

State imposed “atypical and significant

hardship” ................................................... 13

II.

Under any standard for comparison,

Smith’s conditions of confinement were

not atypical and significant hardship ....... 16

CONCLUSION..................................................... 23

iii

TABLE OF AUTHORITIES

Page

CASES

Austin v. Wilkinson, 189 F. Supp. 2d 719

(N.D. Ohio 2002) ......................................................14

Beverati v. Smith, 120 F.3d 500 (4th Cir. 1997)..... 17, 21

Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997) .............17

Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997) ...... 19, 21

Hernandez v. Velasquez, 522 F.3d 556

(5th Cir. 2008)..........................................................21

Keenan v. Hall, 83 F.3d 1083 (9th Cir. 1996),

opinion amended on denial of rehearing,

135 F.3d 1318 (9th Cir. 1998) ..................................17

Marion v. Radtke, 641 F.3d 874

(7th Cir. 2011) ............................................. 18, 19, 21

Meachum v. Fano, 427 U.S. 215 (1976).......................18

Rezaq v. Nalley, 677 F.3d 1001 (10th Cir. 2012) ..... 19, 22

Sandin v. Conner, 515 U.S. 472 (1995) ............... passim

Skinner v. Cunningham, 430 F.3d 483

(1st Cir. 2005) .................................................... 19, 22

State v. Smith, 543 N.W. 2d 618 (Iowa App. 1995)..........4

Wilkinson v. Austin, 545 U.S. 209 (2005)............ passim

Wilson v. Harper, 949 F. Supp. 714 (S.D. Iowa 1996).......20

Wycoff v. Nichols, 94 F.3d 1187 (8th Cir. 1996) ..... 20, 22

STATUTES

Iowa Code § 904.503(1)(a) ..........................................18

1

INTRODUCTION

More than twenty-five years ago in Sandin v.

Conner, 515 U.S. 472 (1995), this Court refocused its

approach to determining when a State creates a liberty

interest in a prisoner’s conditions of confinement that

is protected by the Fourteenth Amendment’s Due

Process Clause. The Court acknowledged that it had

“strayed from the real concerns” of due process by

focusing on the mandatory or discretionary nature of a

given prison regulation. Id. at 483. And it instead returned to longstanding due process principles that

such protected liberty interests will generally be limited to a condition that “imposes atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.” Id. at 484.

“Applying this refined inquiry, Sandin found no

liberty interest protecting against a 30-day assignment to segregated confinement because it did not ‘present a dramatic departure from the basic conditions

of the inmate’s sentence.’ ” Wilkinson v. Austin, 545 U.S.

209, 223 (2005) (quoting Sandin, 515 U.S. at 485). The

Court noted that the summary judgment record

showed “disciplinary segregation, with insignificant

exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective

custody” and that the general prison population was

also “confined to cells for anywhere between 12 and 16

hours a day.” Id. at 486 & n.8. The Court thus reasoned

that the conditions of confinement “did not exceed similar, but totally discretionary, confinement in either

duration or degree of restriction.” Id.

2

Ten years later, this Court again applied Sandin

to facts on the other end of the spectrum of prison conditions. In Wilkinson v. Austin, 545 U.S. 209 (2005), the

Court held that an indefinite transfer to a “Supermax”

prison—which disqualified a prisoner from parole and

had extremely “harsh” conditions—imposed atypical

and significant hardship that gives rise to a protected

liberty interest. Id. at 223-24. The Court noted that

like “most solitary confinement facilities,” in the Supermax, cells are lit 24 hours-per-day and exercise is permitted only one hour per day in a small indoor room.

Id. at 224. But unlike typical segregation, “almost all

human contact is prohibited”—including cell-to-cell

conversation. Id. at 223-24. The Court thus held that

“[w]hile any of these conditions standing alone might

not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship” “under any plausible baseline” of comparison to

the ordinary incidents of prison life. Ibid.

Since Sandin, courts have varied in how they determine whether a condition “imposes atypical and significant hardship” on a prisoner “in relation to the

ordinary incidents of prison life.” Sandin, 515 U.S. at

484; see Wilkinson v. Austin, 545 U.S. 209, 223 (2005)

(“Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to

measure what is atypical and significant in any particular prison system.”). And perhaps this Court should

resolve the “divergence” and answer the difficult question of “the appropriate baseline” against which to

3

compare a particular condition. Wilkinson, 545 U.S. at

223.

But this is not the case to do so. Smith contends

that the State imposed atypical and significant hardship by transferring him back to continue serving his

life sentence at a maximum-security prison after he

had served 19 months in a medium-security prison and

by placing him in administrative and disciplinary segregation for 12 months.

Yet Smith failed to develop the factual record necessary to conduct any robust analysis of whether the

State imposed atypical and significant hardship on

him. Summary judgment was granted because Smith

submitted no evidence of his conditions of confinement

or of any possible comparator baseline in Iowa prison.

This bare factual record makes this case a poor vehicle

to further refine the Sandin inquiry.

So too it is unnecessary to resolve the appropriate

baseline in this case because—in the converse of Wilkinson—the conditions imposed on Smith are not “an

atypical and significant hardship under any plausible

baseline.” Wilkinson, 545 U.S. at 223. Under any of the

varying standards for determining atypical and significant hardship, the result would be the same. Neither

the return transfer to a maximum-security prison nor

the placement in administrative and disciplinary segregation for 12 months meet the standard for a protected liberty interest.

Perhaps this is because, with certain outliers, the

debate over the proper baseline is largely academic.

4

And most courts have recognized the fundamental

teaching that Sandin sets a high bar to involve courts

in the day-to-day management of prison. See Sandin,

515 U.S. at 482-83.

Smith does not surpass that bar here. The petition

should be denied.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

1. Factual background. Petitioner Craig Smith

was committed to the custody of the Iowa Department

of Corrections in 1994 to serve a life sentence for his

conviction of first-degree murder. Pet. App. 2a. Smith

had killed another man who made an unwelcome sexual advance by beating the man with his fist and a

metal pipe. See State v. Smith, 543 N.W. 2d 618, 619

(Iowa App. 1995).

From 1995 to 2012, Smith was placed at the Iowa

State Penitentiary (“ISP”), a maximum-security prison.

He racked up a long disciplinary history in prison, including sexual misconduct toward a correctional officer, assault, fighting, and disruptive conduct. C.A.

App. 73-74.

Smith was then transferred to the Fort Dodge Correctional Facility (“FDCF”), a medium-security prison.

Pet. App. 2a. Aside from the security designation of

each prison, the record is silent on the difference in

conditions of confinement at these two prisons.

5

About 18 months into Smith’s time at FDCF, Respondent Kelly Holder, a captain at the facility, received a confidential complaint under the Prison Rape

Elimination Act alleging that Smith engaged in inappropriate sexual contact with other inmates. On May

28, 2014, Smith was placed in administrative segregation while Captain Holder investigated the complaint.

Pet. App. 2a-3a.

When Smith was informed of the investigation

and his placement in segregation, he acknowledged

that he may have bumped into another prisoner and

expressed his desire to transfer out of FDCF: “I don’t

want to sit here in your lockdown. I want to go back to

ISP.” C.A. App. 139.

A week later, Captain Holder issued Smith a disciplinary notice, which was also approved by Respondent Leslie Wagers. Pet. App. 3a. The Notice concluded—

based on confidential statements of fellow prisoners—

that Smith had violated prison disciplinary rules

against threats and intimidation, sexual misconduct,

sexual violence, obstructive or disruptive conduct, and

attempt or complicity. Pet. App. 22a.

Respondent Jonathan Janssen, another officer at

FDCF, served the disciplinary notice on Smith and

conducted further investigation. Pet. App. 3a. Smith

pleaded not guilty to the violations and asked to see

the confidential evidence. Smith remained in administrative segregation pending a hearing before an administrative law judge. C.A. App. 140.

6

While awaiting the hearing, Smith asked to speak

with his correctional counselor. During this meeting,

he became very upset and again denied the allegations,

saying that he would never make sexual advances toward anyone. Pet. App. 3a, 22a. He also told the counselor that if he was returned to ISP because of the

allegations he would do something “horrific” and “very

big” to get attention. C.A. App. 141. And he told her

that “he would be willing to hurt an innocent person.”

Pet. App. 3a.

Smith soon after participated in an administrative

hearing on the disciplinary notice before Respondent

Niki Whitacre. At the hearing, Smith again denied the

allegations. But this time he contended that the allegations arose because “some pedophile” made “gay”

comments to him and Smith “cussed him out.” C.A.

App. 142. He also asked again to see the confidential

witness statements. And when the administrative law

judge denied his request, he became angry and threatened, “I guarantee there will be a lot more of this . . .

there will be problems.” Ibid.; Pet. App. 3a, 23a.

On June 24, 2014, the ALJ issued a decision finding

Smith guilty of most of the alleged violations. Relying

on the disciplinary notice, confidential statements and

investigation, Smith’s statements, and unspecified evidence in the Department’s computer system, the ALJ

found that Smith intimidated smaller or special needs

prisoners to do sexual acts to or with him without their

consent. C.A. App. 142. She also found that Smith used

his size to threaten and intimidate victims and made

repeated sexually harassing comments and advances.

7

Ibid. She concluded that this conduct violated prison

disciplinary rules against threats and intimidation,

sexual misconduct, sexual violence, and obstructive or

disruptive conduct. Ibid.; Pet. App. 32a.

The ALJ thus imposed a sanction of 365 days loss

of earned time and 365 days of disciplinary detention.

Because Smith had already served 27 days in administrative segregation since the investigation began, the

ALJ credited him this time served. Pet. App. 4a.

The ALJ also recommended that the Department

of Corrections’ classification committee transfer him

back to ISP “for a more secured environment in order

to protect staff and offenders from victimization.”

Pet. App. 4a, 23a. She based this recommendation on

not just the disciplinary violations, but also Smith’s

threats to harm others made to his counselor. C.A. App.

142.

Smith appealed the ALJ’s decision to the FDCF

Warden, Respondent Jim McKinney. Pet. App. 4a.

While that appeal was pending—and about 19

months after Smith first arrived at FDCF—the Department transferred Smith back to ISP. Upon his return to ISP on July 11, 2014, Smith was placed in

disciplinary segregation to keep serving the rest of his

detention. With the transfer, Smith also lost his security classification, security points, inmate tier status,

and his job at FDCF and the corresponding opportunity to earn wages. Pet. App. 4a.

8

Several weeks later, Warden McKinney denied

Smith’s appeal. He explained that he had read the confidential information and visited with some of the confidential informants and other prisoners who had lived

in the same unit as Smith. Pet. App. 4a. Many told the

Warden that they had asked Smith to “knock off ” the

behavior and that Smith ignored the requests and continued “to act in a predatory manner.” Warden McKinney found the informants “credible and reliable” and

thus declined to reverse the ALJ’s decision or reduce

the sanctions. C.A. App. 147.

Within a week, Smith filed a supplemental appeal

to the warden of ISP, where he had been returned.

Smith argued that the confidential informants were

not credible and reliable and again sought dismissal or

reduction of sanctions. C.A. App. 149. The warden denied this appeal as well. Pet. App. 5a.

2. Judicial Review of the Prison Discipline in

State Court. Less than a month after the denial of his

supplemental appeal, Smith filed a pro se application

for post-conviction relief in Iowa district court. Pet.

App. 5a. Smith again challenged his disciplinary detention and loss of earned time, arguing that he didn’t

commit the violations and that the proper procedures

for the use of confidential information had not been followed. Pet. App. 33a.

Nearly two years later—after Smith had already

completed the disciplinary detention—the court

granted his application for relief. The court concluded

that the ALJ had not complied with Department of

9

Corrections procedures for relying on confidential information in a disciplinary hearing. Those procedures

require the ALJ to prepare a summary of the confidential information for retention in the Department’s computer system. Because the court found that the ALJ

did not do so when she made her decision, the court

struck all the confidential information from the record.

And without the confidential information, the court

held that there was not “some evidence” to support the

disciplinary decision. Pet. App. 5a, 35a.

The court thus ordered the Department to update

Smith’s disciplinary records to reflect that he did not

commit the violations alleged in the disciplinary notice. But the court recognized that it could not remove

the disciplinary detention sanction because Smith had

already served it. Pet. App. 6a.

Smith filed a grievance at ISP after receiving the

district court order. He sought restoration of his lost

earned time, transfer back to FDCF, return of his job,

security points and tier status, back pay for lost wages,

and other compensatory and punitive damages. C.A.

App. 165. In responses issued by Department employees other than Respondents, the Department agreed

that it would remove the disciplinary violation from

his record and restore his lost earned time as required

by the court order. But it denied Smith’s remaining requests. C.A. App. 166, 168, 172.

Since Smith has been back at ISP, he has continued to add to his disciplinary history, including

10

multiple violations for engaging in threats and intimidation and even threats to kill. C.A. App. 71.

3. This § 1983 lawsuit. Dissatisfied with the limited practical effects of his successful challenge to his

prison discipline in state court, Smith brought this suit

against Respondents. He alleged that they violated his

due process rights under the Fourteenth Amendment

by imposing the 365-day disciplinary detention and

transferring him back to a maximum-security prison

indefinitely based on the now-expunged disciplinary

violation. Pet. App. 6a, 28a. He sought declaratory relief, damages, and expungement of all reports and

notes he received while in disciplinary detention. Pet.

App. 19a.

Respondents moved for summary judgment arguing, among other things, that Smith had not been deprived of a liberty interest because he suffered no

“atypical or significant hardship” under Sandin v. Conner, 515 U.S. 472 (1995). Smith resisted, represented

by court-appointed counsel, contending that his conditions were like those at the Ohio Supermax prison in

Wilkinson v. Austin, 545 U.S. 209 (2005). Pet. App. 26a.

Despite receiving three extensions of time to file his

resistance, Smith presented no evidence to the district

court beyond a privilege log and what Respondents

had offered in support of their motion. C.A. App. 3-4,

iii-v.

The district court granted summary judgment,

holding that Smith did not show “the sort of deprivation that, either alone or in aggregate, might be

11

considered an atypical and significant deprivation in

relation to the ordinary incidents or prison life.” The

court reasoned that to defeat summary judgment,

Smith “must do more than identify deprivations without putting them into factual context.” Yet Smith failed

to do so. Pet. App. 28a.

With respect to his prison transfer, the court found

that “Smith states he was sent from a medium security

institution to a maximum security institution, but unlike the description in Wilkinson, Smith provides no

details about what life is like at either institution.” And

though Smith claimed that transfer also caused “lost

security points and tier status,” the court noted “the

record is quiet on the difference in living conditions for

inmates at those different security and tier statuses.”

Pet. App. 28a.

Similarly, the court recognized that while Smith

had served a year of segregation, he provided “no facts

describing how the detention he served differs from

other types of confinement.” The court accepted that

duration of confinement was one factor under Sandin,

but “[w]ithout a comparison between inmates inside

and outside of segregation or other totally discretionary confinement, it is not possible for the Court to

conclude Smith creates a genuine dispute that his

placement in segregation for even a year worked a major disruption in his environment.” Pet. App. 28a

(cleaned up).

Smith appealed—represented by new courtappointed counsel—arguing that summary judgment

12

was inappropriate because “a reasonable jury could

have found . . . that Smith’s disciplinary detention and

transfer to ISP imposed a deprivation that was an

atypical and significant hardship.” Pet. App. 7a.

The Eighth Circuit affirmed the district court’s

grant of summary judgment. The court first recognized

that “whether conditions of confinement constitute an

atypical and significant hardship is a question of law

for the court to determine when the facts are undisputed.” Pet. App. 10a. And considering the undisputed

fact record before the district court, the Eighth Circuit

held that neither the transfer back to a maximumsecurity prison and its incidental consequences nor the

placement in administrative and disciplinary segregation for 12 months constituted such a hardship.

The Eighth Circuit reasoned that the transfer

alone did not amount to an atypical and significant

hardship because “there is no liberty interest in assignment to any particular prison,” particularly when

it was a prison that the prisoner had “previously inhabited.” Pet. App. 16a. Nor did the loss of the job or

other incidental consequences of the transfer. Pet. App.

17a. And Smith’s claim based on the 12 months of segregation failed because Smith had not “set forth facts

describing his conditions of confinement.” Pet. App. 17a.

Smith filed a pro se petition for rehearing en banc,

which was denied by the Eighth Circuit. Pet. App. 30a.

And Smith then filed the pending petition for a writ of

certiorari.

---------------------------------♦---------------------------------

13

REASONS FOR DENYING THE PETITION

I.

Petitioner failed to develop the factual

record necessary to analyze whether the

State imposed “atypical and significant

hardship.”

In considering whether a State creates a liberty

interest in a prisoner’s conditions of confinement that

is protected by the Fourteenth Amendment’s Due Process Clause, this Court conducts a fact-specific inquiry

to determine whether a condition “imposes atypical

and significant hardship on the inmate in relation to

the ordinary incidents of prison life” Sandin, 515 U.S.

at 484.

Sandin and Wilkinson were both decided on robust factual records—Sandin on summary judgment

and Wilkinson after an eight-day trial with extensive

evidence. See Sandin, 515 U.S. at 476; Wilkinson, 545

U.S. at 218. These facts were the tools for comparing

the nature of the challenged conditions with ordinary

incidents of prison life. And they were the grist for debate between majority and dissenting opinions, sharpening and refining the result.

Take Sandin, where the record contained evidence

of the prisoner’s conditions in disciplinary segregation—as well as similar conditions in administrative

segregation and protective custody—down to the number of permitted phone calls and visitors and the restraints used when exercising or showering. Sandin,

515 U.S. at 476 & n.2; id. at 494 (Breyer, J., dissenting).

It also contained evidence of conditions for prisoners in

14

the general population, such as the hours per day they

are confined in their cells and activities they could otherwise engage in. Id. at 486 & n.8; id. at 494 (Breyer,

J., dissenting).

And in Wilkinson, the trial record detailed many

features of the Supermax prison: the lighting, the size

of the cells, the types of doors, meal practices, and

more. Wilkinson, 545 U.S. at 214, 223-24. The Court

had evidence of the hours per day prisoners were kept

in their cells and how recreation occurred when they

left. And the record detailed how the Supermax compared with other state prisons. Ibid.; see also Austin v.

Wilkinson, 189 F. Supp. 2d 719, 722-26 (N.D. Ohio

2002) (making detailed findings of fact on the conditions at the Supermax after the eight-day bench trial

ultimately reviewed in Wilkinson).

Unlike these past cases, the record necessary to

conduct any robust or nuanced Sandin analysis is absent here. Summary judgment was granted against

Smith because he submitted no evidence of his conditions of confinement. Pet. App. 28a-29a, 17a. Not the

conditions in the medium-security prison or the maximum-security prison. Not in administrative segregation or disciplinary segregation. He provided no details

about the hours of confinement, activities permitted, or

any other aspect of the nature of any of these confinements. Nor did Smith offer any evidence of the ordinary incidents of prison life at either prison, at other

maximum-security prisons in Iowa, or in the Iowa

prison system as a whole.

15

Indeed, when resisting Respondents’ motion for

summary judgment, Smith did not present a single

piece of additional evidence on his conditions of confinement or the conditions in the Iowa prison system

beyond what Respondents had offered in support of

their motion. C.A. App. 3-4, iii-v.

The district court mainly relied on Smith’s failure

to present facts supporting his claim in granting summary judgment against him. See Pet. App. 28a (“At the

summary judgment stage, to create a jury question

Smith must do more than identify deprivations without putting them into factual context.”); ibid. (“Smith

states he was sent from a medium security institution

to a maximum security institution, but unlike the description in Wilkinson, Smith provides no details about

what life is like at either institution.”); ibid. (“Without

a comparison between inmates inside and outside of

segregation or other totally discretionary confinement,

it is not possible for the Court to conclude Smith creates a genuine dispute that his placement in segregation for even a year worked a major disruption in his

environment.” (cleaned up)). And the Eighth Circuit

agreed. Pet. App. 17a.

Whatever the merits of providing greater clarity

to the Sandin standard, the barren factual record in

this case does not provide a good vehicle to do so.

16

II.

Under any standard for comparison, Smith’s

conditions of confinement were not atypical

and significant hardship.

To be sure, courts of appeals have varied in how

they determine whether a condition “imposes atypical

and significant hardship” on a prisoner “in relation to

the ordinary incidents of prison life.” Sandin, 515 U.S.

at 484; see Wilkinson, 545 U.S. at 223 (“Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is

atypical and significant in any particular prison system.”).

But this case is a poor vehicle to resolve the “divergence” over “the appropriate baseline” against which to

compare a particular condition because the conditions

imposed on Smith are not “an atypical and significant

hardship under any plausible baseline.” Wilkinson,

545 U.S. at 223. And therefore, whether comparing

against conditions in the general prison population, in

high-security prisons, or in other types of segregation,

or just considering multi-factor tests, Smith’s conditions of confinement are not atypical and significant

hardship.

Smith challenges two actions imposed by the

State: (1) his transfer back to a maximum-security

prison from a medium-security prison and corresponding incidental consequences and (2) his placement in administrative and disciplinary segregation

for 12 months.

17

1. In considering the first condition—his transfer back to ISP, a maximum-security prison, after

serving 19 months at a medium-security prison—the

Eighth Circuit relied on its precedent that ordinarily

transfers to a higher security institution are not

atypical and significant hardship. Pet. App. 16a (citing

Freitas v. Ault, 109 F.3d 1335, 1337 (8th Cir. 1997)).

a. As Smith recognizes, this Eighth Circuit approach of comparing to the conditions of the general

prison population appears to be followed by the most

circuits. Pet. 13 (citing Beverati v. Smith, 120 F.3d 500

(4th Cir. 1997); Keenan v. Hall, 83 F.3d 1083 (9th Cir.

1996), opinion amended on denial of rehearing, 135

F.3d 1318 (9th Cir. 1998)).

This approach is correct and consistent with the

guidance of Sandin and Wilkinson to compare the

hardship “in relation to the ordinary incidents of

prison life.” Sandin, 515 U.S. at 484. And without more

evidence in the record, there is no basis to conclude

that Smith’s placement at ISP was atypical and significant hardship. Besides, the record shows that the

transfer returned Smith to the same prison where he

had served 17 years of his life sentence after only being

in a medium-security prison for 19 months.

In fact, the record shows that at times, Smith expressed a preference to return to the maximum-security

prison. C.A. App. 139. And while “not dispositive of

the liberty interest analysis,” this subjective expectation “does provide some evidence that the conditions

18

suffered were expected within the contour of the actual

sentence imposed.” Sandin, 515 U.S. at 486 n.9.

Moreover, ISP is a maximum-security prison, not

a Supermax like the prison in Wilkinson. Smith submitted no evidence that all human contact and conversation are prohibited at ISP, that the lights are always

on, or any of the other harsh conditions present in

Wilkinson. See Wilkinson, 545 U.S. at 214, 223-24. He

hasn’t demonstrated—nor could he—that his transfer

back to ISP has any effect on the length of his life sentence. In short, this is not Wilkinson.

And the result reflects longstanding due process

precedent that there is generally no liberty interest in

avoiding a transfer to a maximum-security prison absent all the extreme circumstances of Wilkinson. See

Meachum v. Fano, 427 U.S. 215, 225 (1976) (“Confinement in any of the State’s institutions is within the

normal limits or range of custody which the conviction

has authorized the State to impose.”); see also Iowa

Code § 904.503(1)(a) (“The director [of the Department

of Corrections] may transfer at the expense of the department an inmate of one institution to another institution under the director’s control if the director is

satisfied that the transfer is in the best interests of the

institutions or inmates.”)

b. Circuits following other approaches to the

Sandin analysis would reach the same result on the

transfer. Comparing the conditions at ISP to a maximum-security prison—like the Seventh Circuit, Pet.

13-14 (citing Marion v. Radtke, 641 F.3d 874 (7th Cir.

19

2011))—would clearly not be “atypical and significant”

since the baseline is the very same. Even more so, comparing the general population conditions at ISP with

its segregation populations—like the Third Circuit,

Pet. 14 (citing Griffin v. Vaughn, 112 F.3d 703 (3d Cir.

1997))—would show no hardship at all. Such a baseline

would be more restrictive than the challenged conditions. That is not an atypical and significant hardship.

Smith contends that he would fare better under

the more “holistic” approach of the First and Tenth Circuits because his transfer back to ISP is indefinite and

without “penological justification.” Pet. 16. But the

Tenth Circuit concluded a transfer to a federal Supermax prison did not constitute atypical and significant

hardship after considering whether it supported a penological interest, had extreme conditions, extended

duration of confinement, and was indefinite in length.

See Rezaq v. Nalley, 677 F.3d 1001, 1011-17 (10th Cir.

2012); see also Skinner v. Cunningham, 430 F.3d 483,

486-87 (1st Cir. 2005) (considering rationality, duration, and necessity in evaluating typicality and significance of condition).

Admittedly, the record is not fully developed for

consideration of such an analysis since Smith did not

argue for the use of this standard in the district court

or Eighth Circuit. But even so, Smith’s transfer back to

ISP does not meet this standard for finding atypical

and significant hardship either. Contrary to Smith’s

assertion, the transfer was not based “solely” on the

reversed prison discipline. Pet. 16. The ALJ recommended the transfer because of his threats to harm

20

other as well. C.A. App. 142. So even assuming the actions that led to his discipline must be disregarded,

there was still rational justification and penological

interests in his placement at a maximum-security

prison. The conditions are not extreme and do not increase the duration of Smith’s sentence. And while

there is no definite end to his placement other than the

end of his sentence—this is just one factor in the analysis.

2. Turning to the 12 months of administrative

and disciplinary segregation, again Smith presented

no evidence that his conditions in segregation varied

enough from any comparator that it was atypical and

significant hardship.

a. The Eighth Circuit relied on this lack of factual record and its prior precedent that ordinarily segregation is not atypical and significant hardship to

reject Smith’s claims. Pet. App. 17a. And other cases

comparing the conditions of segregation at ISP with

those in the general population show the result would

likely be the same, even if Smith had submitted the

necessary evidence. See Wycoff v. Nichols, 94 F.3d 1187

(8th Cir. 1996) (holding segregation at ISP was not

atypical and significant hardship); Wilson v. Harper,

949 F. Supp. 714, 716-19 (S.D. Iowa 1996) (detailing

conditions in the general population and segregation

at ISP).

Other circuits that, like the Eighth Circuit, compare the challenged conditions of segregation with

those in the general population have likewise held that

similar impositions of segregation are not atypical and

21

significant hardship. See Beverati v. Smith, 120 F.3d

500, 503 (4th Cir. 1997) (6 months of administrative

segregation); Hernandez v. Velasquez, 522 F.3d 556,

562-63 (5th Cir. 2008) (13 months of administrative

segregation).

b. If the 12 months of administrative and disciplinary segregation are not “atypical and significant”

when compared to the general prison population, then

it logically follows the condition is even less atypical

when compared to other types of discretionary segregation as in the Third Circuit’s approach. See Griffin,

112 F.3d at 706-07. Here, because 27 days of Smith’s

challenged segregation were administrative segregation, the conditions would be precisely identical to a

discretionary type of segregation. And without some

further evidence in the record, there is no basis to conclude otherwise.

The same holds true with a comparison to the general population of a maximum-security prison as in the

Seventh Circuit. See Marion, 641 F.3d at 876. Although

Smith did not present evidence of the precise differences, it is intuitively true that the conditions in the

general population of a maximum-security prison are

more restrictive than those in a lower security prison.

And thus the difference between those conditions and

segregation would be even less atypical and significant.

Again, Smith holds out his strongest case for the

“holistic” multi-factored approach, contending that he

could succeed because the segregation stemmed from

22

prison discipline that was ultimately reversed. Pet. 1617; see also Rezaq, 677 F.3d at 1011-17; Skinner, 430

F.3d at 486-87. Smith is right that his discipline was

ultimately reversed because the Iowa district court

concluded the ALJ had not prepared a required report

about her use of confidential information. That removed it from his record and returned his earned time.

Fair enough.

But that does not erase the fact that the Department received complaints that Smith was engaged in

serious sexual harassment and assault that they had

an obligation to investigate. And that investigation led

to a founded determination by the ALJ. Placing Smith

in segregation for the investigation and because of the

founded discipline was rational and supported by penological interests. To do otherwise—to ignore the complaints or release him back to the general population

despite the ALJ’s findings—would have been irrational. Smith took fair advantage of his opportunity

to challenge and test the propriety of his disciplinary

proceeding. But while such a challenge was pending,

segregation remained appropriate. Cf. Wycoff v. Nichols, 94 F.3d 1187 (8th Cir. 1996) (holding no due process

violation when a successful appeal of prison discipline

cures the error in the proceeding).

At bottom, Smith’s due process claim fails because

he presented no evidence that either his transfer back

to a maximum-security prison from a medium-security

prison or his placement in administrative and disciplinary segregation for twelve months was an atypical

and significant hardship from the ordinary incidents of

23

prison life. Neither condition amounted to a major departure from the conditions of Smith’s life sentence.

And this case does not present a good opportunity to

explore the contours of the Sandin analysis.

---------------------------------♦---------------------------------

CONCLUSION

For these reasons, the petition for a writ of certiorari should be denied.

Respectfully submitted,

THOMAS J. MILLER

Attorney General of Iowa

JEFFREY THOMPSON

Solicitor General

SAMUEL P. LANGHOLZ

Assistant Solicitor General

Counsel of Record

H. LORAINE WALLACE

Assistant Attorney General

WILLIAM HILL

Assistant Attorney General

1305 E. Walnut

Des Moines, Iowa 50319

(515) 281-5164

sam.langholz@ag.iowa.gov

Counsel for Respondents James McKinney,

Kelly Holder, Leslie Wagers, Niki Whitacre,

and Jonathan Janssen

March 8, 2021