Waller v. Banks , 2013 Ark. 399 ( 2013 )

Cite as 2013 Ark. 399SUPREME COURT OF ARKANSAS
No. CV-11-403
Opinion Delivered October 10, 2013
ROMARIO VERMOND WALLER PRO SE APPEAL FROM THE
APPELLANT LINCOLN COUNTY CIRCUIT COURT,
40LCV-10-112, HON. JODI RAINES
v. DENNIS, JUDGE
JAMES BANKS, WARDEN; DARRYL
GOLDEN, ASSISTANT WARDEN;
CURTIS MEINZER, DEPUTY WARDEN;
D. COMPTON, VARNER REHAB
PROGRAMS MANAGER; WENDY
KELLEY, DEPUTY DIRECTOR; LARRY
MAY, DEPUTY DIRECTOR; ROSLYN
WILLIAMS, CORRECTIONAL OFFICER;
AND CARMICKLE, CORRECTIONAL
OFFICER
APPELLEES
AFFIRMED.
PER CURIAM
While an inmate at the Varner Supermax Unit (VSM) of the Arkansas Department of
Correction (ADC), appellant Romario Vermond Waller filed a pro se civil rights action against
various prison officials pursuant to the Arkansas Civil Rights Act, Arkansas Code Annotated
section 16-123-105 (Repl. 2006). Among other challenges to the VSM Incentive Level Program,
appellant alleged that his placement in the program constituted a violation of his rights to due
process and equal protection under the Arkansas Constitution. The trial court dismissed
appellant’s complaint with prejudice based on the failure to exhaust administrative remedies and
the failure to state a claim upon which relief could be granted, and appellant lodged this appeal
Cite as 2013 Ark. 399of the order.1 We affirm the dismissal of the complaint.
On October 12, 2009, while an inmate in the East Arkansas Regional Unit (EARU),
appellant stabbed a correctional officer in the chest with a piece of fence wire. As a
consequence of the assault, appellant was issued a Notice for Supermax Placement. Following
a hearing, the EARU Classification Committee recommended that appellant be placed at VSM,
and appellant was given notice of the committee’s decision. Upon transfer from EARU to VSM,
appellant was temporarily housed in administrative segregation. At his November 2, 2009
hearing before the VSM Classification Committee, appellant informed the committee that he had
assaulted the officer because he lost his temper. Subsequently, the committee assigned appellant
to the VSM Incentive Level Program. The Placement Review document in the record provides
that, at the review, appellant was given a copy of the VSM handbook and advised that he had
fifteen days to appeal his placement.2 While the record includes a number of grievances filed
by appellant stemming from his placement in the Program, it does not include an appeal of the
committee’s placement decision.3
1
In his complaint, appellant sought class certification for each of his claims. Because the
trial court dismissed his claims, it did not make a finding as to class certification. We do not
address the issue on appeal.
2
The Placement Review does not specifically indicate that appellant was assigned to the
VSM Incentive Level Program; however, the record includes a series of grievances filed by
appellant, beginning May 6, 2010, in which he referred to being placed in the Incentive Level
Program.
3
In his reply brief, appellant attaches documents in an attempt to support his argument
that he appealed his placement. This court does not consider matters outside the record. Clark
v. Pine Bluff Civil Serv. Comm’n, 353 Ark. 810, 120 S.W.3d 541 (2003); Boswell, Tucker & Brewster
v. Shirron, 324 Ark. 276, 279, 921 S.W.2d 580, 581 (1996) (declining to consider an affidavit
attached to an appellate brief).
2
Cite as 2013 Ark. 399On September 14, 2010, appellant filed a complaint pursuant to the Arkansas Civil Rights
Act, alleging that his placement in the VSM Incentive Level Program violated his rights
guaranteed by the Arkansas Constitution, including the rights to due process and equal
protection. He also asserted a number of other claims based on the content and procedures of
the Program.4 The trial court dismissed the complaint with prejudice and found that appellant
had failed to exhaust his administrative remedies and failed to state a claim upon which relief
could be granted.5 On appeal, appellant argues that the trial court erred in finding that he failed
to exhaust his administrative remedies because he filed a series of grievances in which he lodged
complaints regarding his placement. He also asserts that a violation of his right to due process
under the Arkansas Constitution occurred when he was assigned to the VSM Incentive Level
Program without notice or a hearing. He contends that his right to equal protection was violated
because, as a result of his assignment to the Program, he is being treated differently than other
inmates at VSM as well as female inmates incarcerated in other prison facilities in Arkansas.
Finally, appellant argues that the VSM Incentive Level Program is an unauthorized mental-health
program in violation of Arkansas Code Annotated section 12-29-405 (Repl. 2009), that the
Program’s disciplinary procedures constitute cruel and unusual punishment in violation of the
Arkansas Constitution, and that its programming violates his right to freedom of expression and
4
All arguments made below but not raised on appeal are abandoned. Abernathy v. State,
2012 Ark. 59, 386 S.W.3d 477 (per curiam); Shipman v. State, 2010 Ark. 499 (per curiam) (citing
State v. Grigsby, 370 Ark. 66, 257 S.W.3d 104 (2007)).
5
In their answer, appellees alleged that dismissal of the complaint is proper because they
are immune from suit. The trial court did not make a finding on the issue of immunity in its
order, and we do not address the issue on appeal.
3
Cite as 2013 Ark. 399religion.
As an initial matter, appellant contends that the trial court erred in dismissing his
complaint based on the failure to exhaust administrative remedies. Specifically, he argues that
the series of grievances that he filed stemming from his placement in the VSM Incentive Level
Program satisfied the requirement that he exhaust his administrative remedies before he was
entitled to judicial review.6 However, it is not necessary to consider whether appellant
sufficiently exhausted his remedies, or even whether such exhaustion of remedies is necessary
under the circumstances of this case. In cases in which an inmate challenges ADC procedures
and rules, he must raise a constitutional question sufficient to raise a liberty interest merely to
fall within the classification of claims subject to judicial review. Renfro v. Smith, 2013 Ark. 40 (per
curiam); Munson v. Ark. Dept. Of Correction, 375 Ark. 549, 294 S.W.3d 409 (2009) (per curiam).
We have consistently recognized that due to their specialization, experience, and greater
flexibility of procedure, administrative agencies are better equipped than the courts to analyze
legal issues dealing with their agencies. Smith v. May, 2013 Ark. 248 (per curiam); Crawford v.
Cashion, 2010 Ark. 124, 361 S.W.3d 268 (per curiam). Specifically, the administration of prisons
has generally been held to be beyond the province of the courts. Smith, 2013 Ark. 248; Crawford,
2010 Ark. 124. Thus, we have consistently declined to dictate the operation of the ADC except
in circumstances where the appellant asserts an infringement on constitutional rights. Smith,
6
Pursuant to Arkansas Code Annotated section 25-15-212 (Repl. 2002) of the Arkansas
Administrative Procedure Act, any person “except an inmate under sentence to the custody of
the Department of Correction” is entitled to seek review of an agency’s final decision within 30
days after the agency’s service of the decision. However, in Clinton v. Bonds, 306 Ark. 554, 816
S.W.2d 169 (1991), this court held that the Act was unconstitutional to the extent that it
deprived inmates of review of constitutional questions.
4
Cite as 2013 Ark. 3992013 Ark. 248; Crawford, 2010 Ark. 124. Because appellant has failed to raise a legitimate
constitutional question, dismissal of his claims with prejudice was proper.
In contending that the ADC infringed on his constitutional rights, appellant first argues
that a violation of his right to due process occurred based on the ADC’s alleged failure to
provide him with notice or a hearing before assigning him to the VSM Incentive Level Program.
In the eighteen-month Program, assigned inmates are expected to participate in programming
as well as follow ADC rules and regulations to progress through the Program’s five levels.
According to the ADC, programming, which consists of viewing videos and answering questions
about the material, is designed to rehabilitate inmates by building character, developing coping
skills, and teaching socially acceptable ways of behaving.7 In his brief, appellant states that
inmates assigned to the Program are subject to longer periods of privilege loss for disciplinary
infractions than other VSM inmates,8 but he acknowledges that all VSM inmates, including those
assigned to the Program, receive the same treatment in other areas, including access to mail,
7
While appellant also contends that the Program requirement of viewing the videos and
answering the follow-up questions violates his right to freedom of expression and right to
freedom of worship, he fails to make any convincing argument. This court does not consider
an argument, even a constitutional one, if the appellant makes no convincing argument or cites
no authority to support it, and it is not apparent without further research that the appellant’s
argument is well taken. Nelson v. State, 2011 Ark. 429, 384 S.W.3d 534. In his brief, appellant
makes only a conclusory allegation that the Program requirement violates such rights; however,
he provides no convincing argument to support his claim.
8
Appellant also claims that this disparity in sanctions for inmates assigned to the Program
and other VSM inmates constitutes cruel and unusual punishment. As a general rule, a prison
official cannot be found liable for denying an inmate humane conditions of confinement unless
the official knows of and disregards an excessive risk to inmate health or safety. Smith, 2013 Ark.
248. Here, appellant does not demonstrate that any of the named appellees knew of and
disregarded an excessive risk to his health and safety; thus, he fails to state facts to support a
claim of constitutional infringement as a result of cruel and unusual punishment.
5
Cite as 2013 Ark. 399visitation escort, phones, library, recreation, and medication.9
To succeed on his due-process claim, appellant must first demonstrate that he was
deprived of a liberty interest when he was assigned to the VSM Incentive Level Program.
Because appellant was not deprived of a liberty interest when he was assigned to the Program,
he cannot show that the process that he was provided was inadequate. In the prison context,
the deprivation of a liberty interest is created by the imposition of an atypical and significant
deprivation that was a dramatic departure from the basic conditions of confinement. Sandin v.
Connor, 515 U.S. 472, 484 (1995); Crawford, 2010 Ark. 124, 361 S.W.3d 268 (no due-process
violation based on ADC officials refusal to change appellant’s housing or working assignments);
Munson, 375 Ark. 549, 294 S.W.3d 409 (loss of class status and privileges do not comprise a
liberty interest); see also Smith, 2013 Ark. 248 (no protected right or interest in a particular
classification status or that status’s privileges); Renfro, 2013 Ark. 40 (claim of loss of privileges
is insufficient to assert deprivation of a liberty interest). Because the assignment to the VSM
Incentive Level Program cannot be considered a dramatic departure from the ordinary incidents
of prison life, appellant failed to state a deprivation of a liberty interest as necessary to claim a
due-process violation based on lack of notice and a hearing.
In his brief, appellant describes the VSM Incentive Level Program as a behavior-
9
Claiming that the VSM Incentive Level Program was a treatment for mental illness,
appellant also argues that the administering of the Program violates Arkansas Code Annotated
section 12-29-405, which authorizes the ADC to develop in-house due-process procedures for
the treatment of inmates with mental illness at the facilities and programs of the Mental Health
Services Section of the Division of Health Treatment Services of the ADC. However, the
record does not support appellant’s claim that the Program is a treatment for mental illness, as
necessary to implicate section 12-29-405.
6
Cite as 2013 Ark. 399modification program in an apparent attempt to bring his case within a class of cases that rely
on the holding in Vitek v. Jones, 445 U.S. 480 (1980). In Vitek, the United States Supreme Court
held that a liberty interest was triggered by the classification of an inmate as mentally ill followed
by the involuntary commitment of the inmate to the state mental hospital for psychiatric
treatment. The Supreme Court noted that the stigmatizing consequences of the commitment
and treatment are not within the conditions of confinement to which a prison sentence subjects
an individual. Vitek, 445 U.S. at 494. The fallacy in appellant’s argument is that, while the
Supreme Court used the term, “behavior modification,” to describe the psychiatric treatment
that the inmate would receive during his involuntary commitment to the mental hospital,
“behavior modification” can be used to describe a vast variety of programs and treatments. The
VSM Incentive Level Program, as described in the record, is not comparable to involuntary
psychiatric treatment at a mental hospital.10
Appellant next alleges gender discrimination based on his argument that the VSM
Incentive Level Program violates his right to equal protection because there is no similar
10
Similarly, appellant cites Clonce v. Richardson, 379 F. Supp. 338 (W.D. Mo. 1974), in
which the Western District Court of Missouri considered whether the transfer of aggressive
inmates to the S.T.A.R.T. program at the Medical Center for Federal Prisoners at Springfield,
Missouri invoked due-process protections. Based on the specific restrictions and regulations
imposed on the S.T.A.R.T. inmates, as compared to the restrictions and regulations imposed on
other inmates in segregation, the district court found that the program involved major changes
in the conditions of confinement. As in Vitek, the term, “behavior modification,” is used to
describe the program at issue; however, appellant does not provide factual support for his claim
that the S.T.A.R.T. program and the VSM Incentive Level Program are sufficiently similar to
support his argument that the VSM program is a dramatic departure from prison life. To the
extent that the holding in Clonce is inconsistent with the holding herein, we note that Clonce is not
mandatory authority and that we are not persuaded by its reasoning.
7
Cite as 2013 Ark. 399program for female inmates imprisoned in Arkansas.11 He also contends an equal-protection
violation on the basis that he is not being treated similarly to VSM inmates who have not been
assigned to the Program. Equal protection under the law is guaranteed by article 2, sections 2,
3, and 18 of the Arkansas Constitution. However, a viable equal-protection claim requires a
showing that appellant is similarly situated to those he claims are receiving favorable treatment.
See McWilliams v. Pope Bd. of Equalization, 2012 Ark. 427, __ S.W.3d __. Moreover, equal
protection does not require that persons be dealt with identically; it requires only that
classification rest on real and not feigned differences, that the distinctions have some relevance
to the purpose for which the classification is made, and that their treatment be not so disparate
as to be arbitrary. Dukes v. Norris, 369 Ark. 511, 256 S.W.3d 483 (2007) (per curiam). As to
appellant’s claim that an equal-protection violation has occurred based on the absence of an
Incentive Level Program for female inmates, appellant fails to present any factual basis to
support a finding that male inmates and female inmates are similarly situated. See Keevan v. Smith,
100 F.3d 644 (8th Cir. 1996) (considering number of female and male inmates, average duration
of sentence served by males and females, number of inmates of each sex assigned highest
security classification, and crimes committed by male and female inmates to determine that male
and female inmates are not similarly situated for purposes of an equal-protection comparison
of prison educational programs and prison industry employment). Appellant also fails to state
facts to support a finding of an equal-protection violation based on the disparity in treatment
11
Appellant also cites Arkansas Code Annotated section 16-23-107 (Repl. 2006) of the
Arkansas Civil Rights Act of 1993 in support of a conclusory allegation of gender discrimination;
however, he states no facts to support a claim that he was treated differently because of his
gender such that section 16-123-107 is not implicated.
8
Cite as 2013 Ark. 399of VSM inmates, who have been assigned to the Incentive Level Program, and other VSM
inmates. The distinction in the treatment of the two groups is clearly justified. An inmate is
assigned to the Program as a result of demonstrating behavior problems while incarcerated, and
the Program is designed to assist him with rehabilitation based on the demonstrated behaviors.
Therefore, appellant did not state a constitutional infringement based on a violation of equal
protection, as necessary to fall within the exception to our general rule that we do not substitute
our judgment for that of the prison administration. See Dukes, 369 Ark. 511, 256 S.W.3d 483.12
Accordingly, because appellant failed to raise any legitimate constitutional issue in his
petition, we affirm the trial court’s dismissal of the complaint with prejudice based on his failure
to state a claim for relief.
Affirmed.
Romario Vermond Waller, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Christine A. Cryer, Ass’t Att’y Gen., for appellee.
12
As part of his equal-protection argument, appellant asserts a violation of a “fundamental
right.” We find no basis for this argument. Additionally, appellant cites Canterino v. Wilson, 546
F.Supp. 174 (W.D. Ky. 1982) in support of his equal-protection claim; however, the decision
was vacated and remanded by the Sixth Circuit Court of Appeals in Canternino v. Wilson, 869 F.2d
948 (6th Cir. 1989).
9