                  United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 06-3595
                                ___________

David Williams,                        *
                                       *
            Appellant,                 *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the
Larry Norris, Director, Arkansas       * Eastern District of Arkansas.
Department of Correction; Ray Hobbs, *
Chief Deputy Director, Arkansas        * [UNPUBLISHED]
Department of Correction; George       *
Brewer, Classification Administrator, *
ADC; Greg Harmon, Warden, East         *
Arkansas Regional Unit, ADC;           *
Tommy James, Jr., Assistant            *
Warden, Maximum Security Unit,         *
ADC; Marvin Evans, Jr., Warden,        *
Tucker Unit, ADC; Grant Harris,        *
Warden, Varner Unit, ADC; Tim          *
Moncrief, Assistant Warden, Varner     *
Unit, ADC,                             *
                                       *
            Appellees.                 *
                                  ___________

                          Submitted: May 7, 2008
                             Filed: May 12, 2008
                              ___________

Before BYE, SMITH, and BENTON, Circuit Judges.
                            ___________

PER CURIAM.
       Arkansas Department of Correction (ADC) inmate David Williams appeals the
district court’s grant of summary judgment in this 42 U.S.C. § 1983 action stemming
from his long-term confinement in administrative segregation (ad seg). Williams
claimed that various prison officials denied him due process because their periodic
reviews of his ad seg status were meaningless, sham proceedings. He also claimed
defendants violated his right to equal protection based on differing or unfair treatment
among inmates with different classifications, in different institutions, or in different
types of confinement. The district court concluded that Williams’s lengthy ad seg
confinement was atypical, but that he received all the process he was due, and that
Williams failed to establish an equal protection violation. Following careful review,
see Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir. 2006) (summary judgment
standard of review), we affirm in part and reverse in part.

       Williams--who is serving a life sentence without the possibility of parole,
imposed in 1981--has continuously spent almost nine years in ad seg confinement in
Arkansas, plus more than three years in ad seg in Utah,1 and we agree with the district
court that this constitutes an atypical and significant hardship, considering the
particular restrictions imposed on Williams in relation to his ad seg status during this
time, and thus he had a liberty interest protected by the Due Process Clause. See
Sandin v. Conner, 515 U.S. 472, 483-87 (1995) (whether inmate has liberty interest
protected by due process depends on whether inmate suffered atypical and significant
deprivation in relation to ordinary incidents of prison life); Portley-El v. Brill, 288
F.3d 1063, 1065 (8th Cir. 2002) (atypical and significant hardship is question of fact);
Iqbal v. Hasty, 490 F.3d 143, 161 (2d Cir. 2007) (Second Circuit has generally found
that segregation of longer than 305 days in standard “special housing unit” conditions
is sufficiently atypical to require procedural due process protection under Sandin),
petition for cert. filed, 76 U.S.L.W. 3417 (U.S. Feb. 6, 2008) (No. 07-1015); Shoats

      1
       See Giano v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001) (separate segregation
sentences should be aggregated for purposes of due process inquiry when they
constitute sustained period of confinement).

                                          -2-
v. Horn, 213 F.3d 140, 144 (3d Cir. 2000) (prisoner’s almost eight years in
administrative custody was “atypical” and he had protected liberty interest); Herron
v. Schriro, 11 Fed. Appx. 659, 661-62 (8th Cir. 2001) (unpublished per curiam)
(affirming district court’s finding that inmate’s lengthy ad seg confinement, more than
thirteen years, resulted in atypical hardship in relation to ordinary incidents of prison
life, and defendants could not continue to deprive inmate of general population status
without affording him due process); cf. Wilkinson v. Austin, 545 U.S. 209, 217, 223-
25 (2005) (finding atypical and significant hardship at “supermax” prison where, in
addition to conditions similar to most in solitary confinement, placement is indefinite,
is reviewed only annually after initial 30-day review, and disqualifies otherwise
eligible inmate for parole consideration).

       Once a liberty interest is established, the next question is what process is due.
See Wilkinson, 545 U.S. at 224 (applying framework established in Mathews v.
Eldridge, 424 U.S. 319 (1976)). We conclude that, for an ad seg inmate, the
Constitution requires no more than the process Williams received--reviews at 60-day
intervals at which Williams could make statements and present evidence, and annual
meetings with a warden--provided such reviews were meaningful. See Rahman X v.
Morgan, 300 F.3d 970, 973-74 (8th Cir. 2002) (discussing sufficiency of process for
ADC inmate in segregation cell); Jones v. Mabry, 723 F.2d 590, 594 (8th Cir. 1983)
(due process requires procedure for periodic review of ad seg status); Kelly v. Brewer,
525 F.2d 394, 400 (8th Cir. 1975) (where inmate is held in ad seg for prolonged or
indefinite period, due process requires that his situation be reviewed periodically in
meaningful way).

      We conclude, however, that there remains an unresolved fact issue on this
record as to whether Williams actually received meaningful reviews, rather than sham
reviews, as he contends. See Larson v. Kempker, 414 F.3d 936, 939 (8th Cir. 2005)
(non-moving party must show existence of facts on record which create genuine
material issue); cf. de Llano v. Berglund, 282 F.3d 1031, 1035-36 (8th Cir. 2002)

                                          -3-
(plaintiff’s unsupported belief that employment pre-termination hearing was sham did
not preclude summary judgment on due process claim; decision-makers presumed to
be honest and impartial); Ryan v. Ill. Dep’t of Children & Family Servs., 185 F.3d
751, 762 (7th Cir. 1999) (plaintiff who can introduce evidence that employment
termination decision had already been made and any hearing would be sham is entitled
to go forward with due process claim; due process requires that hearing not be sham
or pretense).

       Specifically, the record establishes that Williams was found guilty of murdering
another inmate in 1982, and he was kept in punitive segregation through mid-1983
before being placed in general population. For the next twelve years, from 1983 to
1995, it was undisputed that he spent most of his time in general population without
any violent incident, and with no evidence that he exhibited violent or disruptive
propensities. In December 1995, after Williams was attacked by another inmate, he
was placed in ad seg and was transferred for his own protection in 1996 to a prison in
Utah, where he remained in ad seg. He returned to Arkansas in 1999, and he has
remained in ad seg at various ADC institutions since then. Defendants indicated that
the 1995 attack on Williams was precipitated by his drug activity, but they did not
dispute Williams’s evidence or statements that he had not misbehaved during his ad
seg confinement, and Williams correctly argues that undue weight should not be given
to an inmate’s past conduct (in this case, distant past) in reviewing his ongoing ad seg
status. See Kelly, 525 F.2d at 399-400 (recognizing that ad seg is not punitive and it
looks to present and future rather than past; ad seg determination involves exercise of
administrative judgment and prediction of what inmate will probably do or have done
to him if he is permitted to return to population after period of segregation).
Defendants offered no evidence whatsoever as to why they concluded, after each
hearing before a committee tasked with reviewing Williams’s housing status, that he
remained a security threat. They offered no evidence, for example, about Williams’s
behavior or demeanor while in ad seg, his psychological status, or their day-to-day
dealings with him, nor any evidence from which it could be concluded that Williams

                                          -4-
had a generally volatile or disruptive character. Cf. Shoats, 213 F.3d at 141-43, 145-
46 (noting committee’s conclusion that inmate remained significant danger to
institutional safety and security if released from administrative custody was supported
by psychological evaluations characterizing inmate as remorseless sociopath
knowledgeable in workings of prisons and escape techniques, capable of leading other
inmates in such undertakings, and inclined to do so, and describing him as volatile and
manipulative; prisoner was advised of rationale for continued ad seg confinement,
including his past crimes of murder, escape, kidnaping and assault, as well as
assessment that he remained current threat to institutional security based on prison
professionals’ current impressions of him based on their day-to-day dealings with him
over time); Kelly, 525 F.2d at 400 (reason for segregation must not only be valid at
outset but must continue to subsist during period of segregation).

      We therefore conclude that summary judgment on Williams’s due process claim
was improper, and we reverse and remand for further proceedings. We find no
support, however, for Williams’s contention that defendants were constitutionally
required to provide criteria for his progression and reintegration into general
population through good behavior. Defendants need only have provided him with
meaningful review of his status and the reasons for his continued ad seg confinement.

      As to any equal protection claim, we conclude that summary judgment for
defendants was proper. Williams made no showing that parole-eligible inmates,
death-row inmates, or other categories of inmates were treated differently, despite
being similarly situated, in a manner that bore no rational relation to any legitimate
penological interest. See Phillips v. Norris, 320 F.3d 844, 848 (8th Cir. 2003).

      Accordingly, we affirm the grant of summary judgment on the equal protection
claim, and reverse the grant of summary judgment on the due process claim, and we
remand for further proceedings consistent with this opinion. We deny Williams’s
pending motions.
                       ______________________________

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