US Government guilty of Torturing inmates
Filed May 23, 2000


No. 99-3603




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

(D.C. No. 97-cv-01811)
District Judge: The Honorable Gary L. Lancaster


Circuit Judges.

(Filed: May 23, 2000)


       Daniel M. Kovalik, Esq. (Argued)
       Room 807
       5 Gateway Center
       Pittsburgh, PA 15222

        Attorney for Appellant

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

        Attorneys for Appellees


NYGAARD, Circuit Judge.

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

Although we hold that Shoats has a protected liberty
interest in being released from administrative confinement,
we conclude that SCI-Greene's procedures for evaluating
whether Shoats should remain in administrative custody
comported with procedural due process requirements.
Accordingly, we will affirm.

I. Factual Background

In 1970, Shoats was convicted of first degree murder for
his part in an attack on a Philadelphia police guardhouse.


Shoats participated in the attack as a member of a black
revolutionary group that sought to eradicate all authority.
One police officer was killed and another seriously wounded
in the attack. Shoats was sentenced to life imprisonment.
Seven years later, in September 1977, Shoats and several
other inmates took over a cell block at the Huntingdon
State Correctional Institution as part of an attempt to
escape. Shoats injured several guards with a knife, and,
along with three other prisoners, attempted to escape from
the prison as planned. Two of the inmates were captured
immediately and a third was killed during the escape.
Shoats remained at large until he was captured in October

While Shoats was a fugitive, he entered the home of a
prison guard and forced him, his wife, and theirfive year
old son to drive him in their car to a location outside
Cokesburg, Pennsylvania. Shoats then ordered the hostages
to enter the woods where he left them tied to a tree for
almost four hours. Shoats was captured, and convicted of
escape, robbery, kidnaping and simple assault. He was
later transferred to Fairview State Hospital for the
criminally insane. In March 1979, Shoats had guns
smuggled in to him and escaped from that maximum
security institution, again taking a hostage. In addition to
escape and taking hostages, Shoats also has a history of
threatening and assaulting his fellow inmates, and of
causing disruptions at the institutions in which he is

Pennsylvania correctional institutions have two basic
types of housing, general population and restricted
housing. An inmate in general population may be permitted
to be outside of his cell for lengthy periods throughout the
day. General population inmates are permitted to have
contact visits at least one day per week, and may
participate in educational and vocation programs, approved
inmate organizations, and approved fund-raising projects.

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


disciplinary custody is ninety days. In contrast,
administrative custody is used to assure a safe and secure
environment for all inmates and staff by separating those
inmates whose presence in the general population
constitutes a threat to themselves, others, or the safety and
security of the institution, or who represent an escape risk.
Inmates in administrative custody are not allowed to have
radios, televisions, telephone calls (except emergency or
legal), personal property except writing materials, or books
other than legal materials and a personal religious volume.
Non-legal visits of one per week are allowed under
appropriate security procedures designated by the Program
Review Committee (PRC). Pennsylvania does not provide
inmates in administrative custody with educational
programs, and all meals are eaten in the inmates' cells.

Unlike disciplinary custody, there is no maximum period
of confinement in administrative custody. Rather, release
depends upon an evaluation of many factors. While time
spent and behavior are to be considered, so too are
continued risk, safety of others, and recommendations of
prison personnel, including treatment staff.

Under Department of Corrections (DOC) policy, an inmate
must receive written notice of the reason for his placement
in administrative custody and he is entitled to receive a
hearing before a PRC within six days of the initial transfer
to administrative custody. Every thirty days thereafter,
inmates assigned to administrative custody have the
opportunity to be personally interviewed by the PRC, which
then determines whether the inmate should continue to be
maintained in administrative custody, taking into account
a variety of factors including the safety of other inmates
and staff, the continued public or institutional risk, and the
recommendation of treatment staff.

In addition to separation from the general prison
population, the DOC may order that specific prisoners be
separated from each other and, if necessary, placed in
different institutions. The DOC may enter such orders after
reviewing specific instances of misconduct, and determining
that specific separation is appropriate. As a result of such
review, Shoats currently has fifteen individuals from whom
he must be separated.


As of 1989, Shoats was imprisoned at the State
Correctional Institution in Dallas, Pennsylvania ("SCI-
Dallas"), where he was placed in administrative custody. In
November of that year he was transferred to the federal
penitentiary at Leavenworth, Kansas. When he returned to
Pennsylvania in June 1991, Shoats was again imprisoned
at SCI-Dallas and again placed in administrative custody.
In January 1995, he was transferred to SCI-Greene, where
he continues to be held in administrative custody.

Shoats has spent an extraordinarily long period in
administrative custody. Nonetheless, his status has been
subject to PRC review every thirty days. No member of a
PRC has ever recommended releasing Shoats from
administrative custody; they have universally concluded
that Shoats remains a significant danger to institutional
safety and security. These conclusions are supported by
DOC psychological evaluations of Shoats, which
characterize him as a remorseless sociopath knowledgeable
in the workings of prisons and escape techniques, capable
of leading other inmates in such undertakings, and inclined
to do so. He has also been described as volatile and

In June 1998, the Secretary of the DOC asked Thomas
James, a special assistant to the Secretary, to conduct an
extensive review to determine whether Shoats should
remain in administrative custody. James recognized that
such extended administrative custody was atypical for the
prison population. He noted that Shoats' volatile nature
and need to be separated from numerous other prisoners
make his situation unique. However, his review also
concluded that, as with other inmates who have a history
of escape and violence against correctional officers and
other inmates, Shoats' continued placement in
administrative custody is absolutely necessary.

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


Following discovery, the parties filed cross-motions for
summary judgment. The District Court agreed with Shoats
that he possesses a protected liberty interest in obtaining
release into the general population. However, adopting the
recommendation of the magistrate judge, the District Court
held that the defendants had provided Shoats with the
process he was due and granted the defendants' motion for
summary judgment. This appeal followed.

II. Discussion

Shoats claims that the duration of his placement in
solitary confinement, and the attendant hardships of such
confinement, require that we affirm the District Court's
conclusion that he possesses a protected liberty interest in
being released to the general prison population. He also
claims that Defendants did not afford him all of the process
he was due. The record evidence leads us to conclude that
although Shoats' confinement is sufficient to trigger the
procedural protections of the Due Process Clause, the
process provided him was sufficient to pass Constitutional

A. Shoats' Liberty Interest

In analyzing a procedural due process claim, thefirst
step is to determine whether the nature of the interest is
one within the contemplation of the `liberty or property'
language of the Fourteenth Amendment. See Fuentes v.
Shevin, 407 U.S. 67 (1972). Once we determine that the
interest asserted is protected by the Due Process Clause,
the question then becomes what process is due to protect
it. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

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


created liberty interests could arise only when a prison's
action imposed an "atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life."
515 U.S. at 483.

At issue in Sandin was whether the plaintiff's thirty-day
detention in disciplinary custody in a Hawaii prison
impacted any protected liberty interest under the
Fourteenth Amendment. The Court concluded that the
prisoner in Sandin did not have a protected liberty interest
in remaining free of disciplinary detention or segregation
because his thirty-day detention, although punitive,"did
not exceed similar, but totally discretionary confinement in
either duration or degree of restriction." Id. at 486. In
finding that the prisoner's thirty-day confinement in
disciplinary custody did not present the type of atypical,
significant deprivation in which a State might conceivably
create a liberty interest, the Court considered the following
two factors: 1) the amount of time the prisoner was placed
into disciplinary segregation; and 2) whether the conditions
of his confinement in disciplinary segregation were
significantly more restrictive than those imposed upon
other inmates in solitary confinement. Id.

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

In addition, the record suggests that Shoats' long-term
confinement has imposed a significant hardship on him in
relation to the ordinary incidents of prison life. Shoats has
been confined in virtual isolation for almost eight years. See
A45 (Shoats Dep.). He is confined in his cell for 23 hours a
day, five days a week, and 24 hours a day, two days a


week. Id. He eats meals by himself. Id.  His sole contact is
with DOC officials, and has been denied contact with his
family for almost eight years. Id. He is prohibited from
participating in any educational, vocational, or other
organizational activities. Id. He is prohibited from visiting
the library. Id. James concedes that he has never witnessed
one example of such permanent solitary confinement in his
22 years with the DOC. See A211. Moreover, James
explained that he would be concerned about the
psychological damage to an inmate after only 90 days of
such confinement and would generally recommend transfer
to the general population after 90 days as a consequence.
See A184-85, 188-90.

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

B. Shoats' Due Process Claim

Although we hold that Shoats has a protected liberty
interest that has been adversely affected by his indefinite
segregation in administrative custody, we reject Shoats'
argument that he has been deprived of the process he is
due under the Fourteenth Amendment.

In Hewitt v. Helms, 459 U.S. 460 (1983), the Supreme
Court considered whether prison inmates were entitled to
due process before being placed in solitary confinement for
administrative -- rather than disciplinary -- reasons. The
Court expressly rejected the idea that due process required
a "detailed adversary proceeding," on the ground that it
would not "materially assist" the decision to be made. Id. at
473-74. The Court further held that in these situations, an
"informal, nonadversary review" at which the prisoner has
the opportunity to state his views, satisfies the
requirements of due process:

       An inmate must merely receive some notice of the
       charges against him and an opportunity to present his
       views to the prison official charged with deciding


       whether to transfer him to administrative segregation.
       Ordinarily a written statement by the inmate will
       accomplish this purpose, although prison
       administrators may find it more useful to permit oral
       presentations in cases where they believe a written
       statement would be ineffective. So long as this occurs,
       and the decisionmaker reviews the charges and then-
       available evidence against the prisoner, the Due
       Process Clause is satisfied.

Id. at 476.

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

The process provided by the Pennsylvania DOC to an
inmate confined in administrative custody is as follows. A
hearing is conducted by the PRC, in which the rationale for
the administrative custody placement is read and explained
to the inmate. See A84. The inmate is permitted to respond
to the rationale for administrative custody placement either
orally or in writing. Id. A Committee member then drafts a
summary of the inmate's statements. Id. A written
summary of the entire hearing is then prepared, which
includes the reasons relied upon by the PRC to reach its
decision, and a copy of this summary is given to the
inmate. Id.

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


of the hearing, and the decision of the Superintendent must
be forwarded to the inmate within ten days of the receipt of
the appeal. See A85. The inmate's right to appeal
terminates when he or she is released from administrative
custody. Id.

At least once every thirty days, those inmates assigned to
administrative custody have the right to be personally
interviewed by the PRC. Id. For those inmates not released
from administrative custody following the thirty-day review,
the reasons for the PRC's decision are forwarded to the
Superintendent for his or her review. Id. If the
Superintendent agrees that the rationale for holding an
inmate in administrative custody is reasonable, he or she
notifies the inmate accordingly. Id. If, however, the
Superintendent believes the inmate should be released to
the general population, he or she will so order it. Id.

After an inmate is confined for ninety days in
administrative custody, the Superintendent must complete
a formal report to the Regional Deputy Commissioner, who
then reviews the recommendation of the institution to
determine if any further action is necessary. Id. Further
action may include release to the general population,
transfer to another facility or program, or continuation in
administrative custody. Id. In light of the standard set forth
by the Supreme Court in Hewitt, we conclude that the
Pennsylvania procedures clearly comply with due process

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


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

Even were we to conclude that Shoats' continued
confinement in administrative custody is based solely on
his past crimes, the process he received would nonetheless
pass constitutional muster, because predictions of likely
future behavior based on a generally volatile criminal
character have been upheld by the Supreme Court:

       In assessing the seriousness of a threat to institutional
       security, prison administrators necessarily draw on
       more than the specific facts surrounding a particular
       incident; instead, they must consider 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.

See Hewitt, 459 U.S. at 474 (internal citations omitted).
Thus, Shoats could conceivably be held in administrative
custody merely because his prior crimes reasonably
foreshadow future misconduct.

Shoats also claims that his confinement is the result of
the "bias" of Superintendent Varner, who reviewed his
confinement at SCI-Greene, first as a member of the PRC
and later as Superintendent. (Appellant's Br. at 38-39).
However, Shoats' administrative custody dates back to
1991, long before Shoats came to SCI-Greene, and it has
continued to the present, long after Varner left SCI-Greene
in April 1998. No member of the PRC, and no
Superintendent, at SCI-Greene or elsewhere, has ever
recommended that Shoats be released to the general prison
population. Thus, we hold that Shoats' "bias" argument is
without foundation.

Shoats' confinement in administrative custody has been,
in accordance with the DOC regulations, reviewed every
month by the PRC and the Superintendent. Furthermore,
Shoats has been given the opportunity to present his views
personally at each review. See A85-86. In effect, the record
demonstrates that Shoats' continued placement in
administrative custody is supported by evidence sufficient
to pass constitutional muster. Because Shoats has failed to
provide any support for his assertions that his PRC reviews
were constitutionally inadequate, we hold that the periodic
reviews conducted by the PRC here comport with the
minimum constitutional standards for due process.


Accordingly, we affirm the district court's decision.


A True Copy:

       Clerk of the United States Court of Appeals
       for the Third Circuit


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