                                           No. 02-593

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 252N


SHERMAN P. HAWKINS,

              Petitioner and Appellant,

         v.

MIKE MAHONEY, CRAIG THOMAS,
TERRY WILKINSON, PAUL LUCIER
and BOB HUNT,

              Respondents and Respondents.



APPEAL FROM:         District Court of the Third Judicial District,
                     In and for the County of Powell, Cause No. DV 00-66,
                     The Honorable Ed McLean, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Sherman P. Hawkins (pro se), Deer Lodge, Montana

              For Respondents:

                     Hon. Mike McGrath, Attorney General; Diana L. Koch,
                     Assistant Attorney General, Helena, Montana



                                                        Submitted on Briefs: February 20, 2003

                                                                  Decided: September 19, 2003
Filed:


                     __________________________________________
                                       Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. The decision shall

be filed as a public document with the Clerk of the Supreme Court and shall be reported by

case title, Supreme Court cause number, and result to the State Reporter Publishing Company

and to West Group in the quarterly table of non-citable cases issued by this Court.

¶2     Sherman P. Hawkins (“Hawkins”) appeals an Order from the Third Judicial District

Court dismissing his action for failure to state a claim upon which relief can be granted,

pursuant to Rule 12(b)(6), M.R.Civ.P. We affirm.

                                      BACKGROUND

¶3     Hawkins is an inmate at the Montana State Prison serving a life sentence for the

homicide of his first wife. He received additional sentences for subsequent convictions of

felony drug possession, misdemeanor escape, and felony escape.

¶4     Hawkins was under a written order from prison officials prohibiting him from

contacting his ex-wife, Fran Kunz (“Kunz”). By Hawkins’ own admission, in February of

2000, he called Kunz’s business phone several times and hung up when she answered.

Hawkins claims that he was calling for his step-daughter, who could also be reached at that

telephone number. Kunz suspected the hang-up calls were from Hawkins and complained

to Craig Thomas (“Thomas”), Parole Board Executive Director. Thomas passed the

information to Hawkins’ unit manager, Paul Lucier (“Lucier”). On February 11, 2000,

Lucier issued Hawkins a disciplinary infraction report for violating the direct order to refrain

from contacting Kunz.



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¶5        On February 18, 2000, Disciplinary Hearings Officer Terry Wilkinson (“Wilkinson”)

conducted a hearing on the violation. At the hearing, Hawkins requested a staff investigator,

demanded to confront the witnesses against him, and demanded to see the evidence against

him. Wilkinson denied Hawkins’ requests. At the hearing, Hawkins admitted he placed the

calls to Kunz’s place of work. Wilkinson found Hawkins guilty and sanctioned him with a

loss of phone privileges for 60 days. Wilkinson denied Hawkins’ request to appeal the

ruling.

¶6        As a result of the violation, Hawkins’ classification was reduced to Level II in the

maximum security unit. In his Complaint, Hawkins averred that his reclassification at Level

II status required that he be confined to his cell 24 hours a day from February 18, 2000, until

June 17, 2000. Hawkins suffers from high cholesterol, which he claims was exacerbated

during the time he was at Level II status because he was not allowed out of his cell to

exercise. Hawkins states in his Complaint that he was at Level II status for approximately

120 days.

¶7        Hawkins filed this action against Thomas, Wilkinson, Lucier, Warden Mike

Mahoney, and Unit Counselor Bob Hust, alleging his rights to due process and equal

protection were violated during the disciplinary hearing, and that he was subjected to cruel

and unusual punishment when he could not exercise while he was at Level II status.

¶8        The District Court granted Defendants’ motion to dismiss for failure to state a claim

upon which relief can be granted, pursuant to Rule 12(b)(6), M.R.Civ.P. We affirm.

                                  STANDARD OF REVIEW

¶9        A complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of a claim which would

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entitle the plaintiff to relief. Dukes v. Sirius Const., Inc., 2003 MT 152, ¶ 11, 316 Mont.

226, ¶ 11, 73 P.3d 781, ¶ 11. A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the

effect of admitting all well-pleaded allegations in the complaint.          Dukes, ¶ 11.     In

considering the motion, the complaint is construed in the light most favorable to the plaintiff,

and all allegations of fact contained therein are taken as true. Dukes, ¶ 11.

¶10    The District Court's determination that Hawkins failed to state a claim for which relief

was available is a conclusion of law. Our standard of review of a district court's conclusion

of law is whether its interpretation of the law is correct. Dukes, ¶ 11.

                                        DISCUSSION

¶11    Hawkins first claims that his due process and equal protection rights were violated

in the disciplinary hearing. He complains that he was not permitted to confront witnesses

against him, introduce evidence, call witnesses in his defense, or appeal the decision.

¶12    Hawkins’ claims are based on 42 U.S.C. § 1983, which provides:

       Every person who, under color of any statute, ordinance, regulation, custom,
       or usage, of any State or Territory or the District of Columbia, subjects, or
       causes to be subjected, any citizen of the United States or other person within
       the jurisdiction thereof to the deprivation of any rights, privileges, or
       immunities secured by the Constitution and laws, shall be liable to the party
       injured in an action at law, suit in equity, or other proceeding for redress . . .
       .

In order to prevail on a § 1983 claim, a plaintiff must establish: “(1) a violation of rights

protected by the [United States] Constitution or created by federal statute, (2) proximately

caused (3) by conduct of a ‘person’ (4) acting under color of state law.” Orozco v. Day

(1997), 281 Mont. 341, 347, 934 P.2d 1009, 1012.

¶13    “Due process is a flexible concept . . . and, therefore, the process due an individual

varies according to the factual circumstances and the nature of the right at stake.” Jellison

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v. Mahoney, 1999 MT 217, ¶ 8, 295 Mont. 540, ¶ 8, 986 P.2d 1089, ¶ 8. “[P]rison

disciplinary actions ‘take[] place in a closed, tightly controlled environment peopled by those

who have chosen to violate the criminal law and who have been lawfully incarcerated for

doing so.’” Jellison, ¶ 8 (quoting Wolff v. McDonnell (1974), 418 U.S. 539, 561, 94 S.Ct.

2963, 2977, 41 L.Ed.2d 935, 954). The liberty interest of an inmate is, therefore, minimal.

Jellison, ¶ 8. A prisoner’s liberty interest in a disciplinary hearing is generally limited to

freedom from restraint which imposes an atypical and significant hardship upon him in

relation to the ordinary incidents of prison life. Sandin v. Conner (1995), 515 U.S. 472, 484,

115 S.Ct. 2293, 2300, 132 L.Ed.2d 418.

¶14    We have recognized that a liberty interest exists in an inmate’s ability to earn good

time credits, triggering due process protections if the prison seeks to hamper that ability.

Orozco, 281 Mont. at 354, 934 P.2d at 1016. Here, however, Hawkins’ ability to earn good

time credits was not at stake. Furthermore, in Jellison, we stated that custody classification

and discipline in segregated confinement do not give rise to due process protections.

Jellison, ¶ 9. We conclude that Hawkins did not have a liberty interest at stake in the

hearing, and therefore the prison only owed him minimal due process.

¶15    In the hearing, Hawkins admitted he repeatedly called Kunz’s work number.

Although Hawkins’ actions were justified in his own mind, in that he claims he was trying

to contact his step-daughter and did not actually talk to Kunz, Wilkinson was reasonable in

concluding Hawkins violated the order not to contact Kunz. Even if Wilkinson had

permitted Hawkins to confront witnesses, introduce evidence and call witnesses, it would

have made no difference. Hawkins essentially admitted to the violation when he stated he

called Kunz’s work number. Furthermore, we find that the minimal due process owed to

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Hawkins in this situation does not require he be entitled to appeal the disciplinary decision.

¶16    As the District Court pointed out, Hawkins’ claim that his constitutional right to equal

protection fails because he is not a member of a protected class. See, e.g., State ex rel. Holt

v. District Court, 2000 MT 142, 300 Mont. 35, 3 P.3d 608.

¶17    Next, we address Hawkins’ claim he was subjected to cruel and unusual punishment

when he was not permitted to exercise while he was reduced to Level II. Hawkins alleges

the lack of exercise aggravated his high cholesterol, but offers no proof of this assertion.

¶18    “The Constitution ‘does not mandate comfortable prisons’. . . .” Farmer v. Brennan

(1994), 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (quoting Rhodes v.

Chapman (1981), 452 U.S. 337, 349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59). “[T]he

treatment a prisoner receives in prison and the conditions under which he is confined are

subject to scrutiny under the Eighth Amendment.” Helling v. McKinney (1993), 509 U.S. 25,

31, 113 S.Ct. 2475, 2480, 125 L.Ed.2d 22.

¶19    A prison official violates the Eighth Amendment only when two requirements are

met: first, the deprivation alleged must be, objectively, sufficiently serious; and second,

infliction of the punishment must be unnecessary and wanton. Farmer, 511 U.S. at 834, 114

S.Ct. at 1977, 128 L.Ed.2d 811. The prison official must act with “deliberate indifference”

to the inmate’s health or safety. Farmer, 511 U.S. at 834, 114 S.Ct. at 1977, 128 L.Ed.2d

811. Deliberate indifference requires a state of mind more blameworthy than negligence.

Farmer, 511 U.S. at 835, 114 S.Ct. at 1978, 128 L.Ed.2d 811. Prison officials are accorded

wide ranging deference in implementing policies to preserve order and discipline among

inmates. Jellison, ¶ 12.

¶20    We conclude that Hawkins’ deprivation of exercise for the period of time he was at

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Level II is not sufficiently serious to violate his Eighth Amendment right to be free from

cruel and unusual punishment. Furthermore, we find that prison officials did not act with

deliberate indifference toward his health and that the punishment was neither unnecessary

nor wanton. Hawkins did not set forth a cognizable claim under § 1983, and the District

Court properly dismissed his complaint under Rule 12(b)(6), M.R.Civ.P.

¶21   We affirm.


                                                /S/ JIM REGNIER

We Concur:


/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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