                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-CA-00670-SCT
KENNY JOHNSON
v.
ANN LEE, DIRECTOR OF CLASSIFICATION;
RAYMOND ROBERTS, SUPERINTENDENT; WILLIE
BROWN, SERGEANT AT THE STATE PRISON AND
TOMMY ROSS, MAJOR AT THE STATE PRISON
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                              05/28/96
TRIAL JUDGE:                                   HON. GRAY EVANS
COURT FROM WHICH APPEALED:                     SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEY FOR APPELLEES:                        OFFICE OF THE ATTORNEY GENERAL BY:
                                               JANE L. MAPP
NATURE OF THE CASE:                            CIVIL - OTHER
DISPOSITION:                                   AFFIRMED - 10/9/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                10/30/97




     BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.


     SMITH, JUSTICE, FOR THE COURT:




Appellant Kenny Johnson is a state-convicted felon, incarcerated at the Mississippi State Penitentiary
in Parchman, Mississippi ("Parchman"). On September 5, 1995, Mississippi Department of
Corrections ("MDOC") employee Captain Tommy Ross received an anonymous letter stating that
Johnson and several other inmates were planning a gang fight in Unit 29-L Building where they were
housed. Thereafter, Sergeant Willie Brown issued Johnson a detention notice stating that Johnson
was a known gang member and had received a total of eighteen (18) Rule Violations Reports (RVRs)
since being incarcerated, and due to the severity of the incident he should be placed in administrative
segregation pending reclassification to D-Custody(1). Subsequently, the MDOC Classification
Committee reclassified Johnson to D-Custody and he was transferred to Unit 32-D.
On October 19, 1995, Johnson filed a grievance and proceeded through the various stages of the
MDOC's Administrative Remedies Program (ARP). Johnson's grievance was denied at all levels of
the ARP; consequently, he sought judicial review in the Circuit Court of Sunflower County.
Honorable Gary Evans dismissed Johnson's appeal stating that "Mississippi will not review any
disciplinary decision unless the appellant shows the Superintendent's decision was arbitrary, he
abused his discretion, or the appellant alleges a constitutional violation" and "[t]his is not the case
here." Johnson then filed a Notice of Appeal in the Circuit Court of Sunflower County and Judge
Evans granted him in forma pauperis status and held "that his original complaint was a Post-
Conviction Relief Motion complaining of being reduced in classification."

Johnson now appeals pro se, the Circuit Court's decision and cites two (2) issues:

     I. WHETHER THE LOWER COURT ABUSED ITS DISCRETION WHEN IT
     DISMISSED APPELLANT'S MOTION TO SHOW CAUSE.

     II. WHETHER APPELLANT IS BEING HELD IN D-CUSTODY IN DIRECT
     VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS IN
     CONDITIONS MORE BURDENSOME AND PREJUDICIAL THAN PERMITTED BY
     LAW OR REQUIRED BY THE FACTS OF THIS CASE.

The State maintains that while the trial court's reason for dismissal may not have been totally
accurate, dismissal of Johnson's complaint was correct. The State also raises an issue regarding the
trial court allowing Johnson to appeal in forma pauperis.

                                         LEGAL ANALYSIS

     I. WHETHER THE LOWER COURT ABUSED ITS DISCRETION WHEN IT
     DISMISSED APPELLANT'S MOTION TO SHOW CAUSE.

The Circuit Court has statutory authority to review Johnson's appeal. "Any offender who is aggrieved
by an adverse decision rendered pursuant to any administrative review procedure . . . may, . . . seek
judicial review of the decision." Miss. Code Ann. § 47-5-807 (1993). However, an examination of
federal case law indicates that review of prison administrative matters is extremely limited.

     Security is a central concern of prison officials. Bell v. Wolfish, 441 U.S. 520, 546-47, 99 S.Ct.
     1861, 1878, 60 L.Ed. 2d 447, 473 (1979). Because prison administrators are best suited to
     determine the practices and procedures necessary to maintain security, their decisions will be
     upheld unless they have exaggerated their response to security and discipline considerations so
     that their actions are unreasonable and arbitrary. Bell v. Wolfish, 441 U.S. at 548; 99 S. Ct.
     At 1878 - 79, 60 L.Ed. 2d at 474, Sullivan v. Ford, 609 F.2d 197, 198 (5th Cir.), cert. denied,
     446 U.S. 969, 100 S. Ct. 2950, 64 L.Ed. 2d 829 (1980).

     ....

     Under Mississippi state law, the classification of inmates is the responsibility of the Department
     of Corrections, and an inmate has no right to a particular classification. Miss. Code Ann. §§ 47-
     5-99 through 47-5-103. . . . [P]rison officials have broad discretion in classifying prisoners in
     terms of their custodial status. Wilkerson v. Maggio, 703 F.2d 909, 911 (5th Cir. 1983);
     McGruder v. Phelps, 608 F.2d 1023, 1026 (5th Cir. 1979); Cruz v. Beto, 603 F.2d 1178, 1185
     (5th Cir. 1979).

Tubwell v. Griffith, 742 F.2d 250, 252-53 (5th Cir. 1984) (emphasis added). See also Smith v.
Rabalais, 659 F.2d 539, 545 (5th Cir. 1981) (holding that court must uphold prison administrator's
decision unless arbitrary and capricious).

The lower court's Order indicates that Johnson appealed the Superintendent's decision regarding a
Rule Violation Report and such an appeal is not permissible. Even though this is not an entirely
accurate statement of Johnson's appeal, the final result remains the same. Johnson's appeal is not in
regard to an RVR decision but is pertaining to his reclassification based on past RVRs (among other
factors). Nonetheless, Johnson's reclassification was done in accordance with MDOC policy and
procedure and was based on several factors: (1) anonymous letter indicating Johnson's involvement in
planning a gang fight; (2) known gang member; and (3) RVRs for having knives, refusing to work
and interfering with the orderly running of the institution. Based on these factors, Johnson's
reclassification was not arbitrary and unreasonable and his appeal was properly dismissed by the
lower court.

Johnson raises sub-issues in regards to the procedures utilized by the Reclassification Committee.
Specifically, Johnson alleges that the Reclassification Committee was improper in that "only four (4)
persons were present . . . ." However, there is no merit to this allegation in that Miss. Code Ann.
§ 47-5-101 (1993) specifically provides for four (4) members on the Classification Committee, and
the Staff Request for Inmate Re-Classification was signed by four members. Johnson also alleges that
the Committee's "reliance on . . . past disciplinary record for the purposer [sic] of Xlassification [sic]
was impermissible . . . ." Likewise, there is no merit to this allegation since prison policy specifically
states that the Classification Committee will review, among other things, the inmate's disciplinary
record, attitude toward authority, and institutional record on previous work assignments. MDOC
Policy and Procedure Number 08.17.1 (effective April 3, 1992) (emphasis added). The factors
provided by the Classification Committee for Johnson's reclassification were appropriate
considerations. Instead of undermining the Committee's decision, these arguments provide further
justification for the resulting D-Custody classification and illustrate that the committee's actions were
not arbitrary or unreasonable.

     II. WHETHER APPELLANT IS BEING HELD IN D-CUSTODY IN DIRECT
     VIOLATION OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS IN
     CONDITIONS MORE BURDENSOME AND PREJUDICIAL THAN PERMITTED BY
     LAW OR REQUIRED BY THE FACTS OF THIS CASE.

This issue is controlled by this Court's holding in Carson v. Hargett, 689 So. 2d 753 (Miss. 1996),
wherein an inmate appealed his reclassification to "close confinement" or C-Custody after receiving
an RVR for possession of altered money orders. Carson cited the United States Supreme Court
decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed. 2d 418 (1995) in support of
his contention that reclassification "imposes atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life." Carson, 689 So.2d at 754. In Sandin, inmate Conner
received 30 days Segregation for disciplinary infractions after interfering with correctional duties
when he directed foul and angry language at the correctional officer who performed a strip search
which included a rectal examination. Conner's request to present witnesses at the adjustment
committee(2) was refused; consequently Conner alleged that he had been deprived of "procedural due
process in connection with the disciplinary hearing." Carson, 515 U.S. at 476. The Supreme Court
held that an offender's liberty interest protected by the Due Process Clause is "generally limited to
freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to
give rise to protection by the Due Process Clause of its own force, . . . nonetheless imposes atypical
and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484.
The Court further noted that "[d]iscipline by prison officials in response to a wide range of
misconduct falls within the expected parameters of the sentence imposed by a court of law" and thus
Conner's case was not a "dramatic departure" from the basic conditions of a prison sentence. Id. at
485.

In accordance with Sandin, this Court held that Carson's argument regarding reclassification is
without merit because "Carson has no liberty interest in his classification to the general population" in
that no statute confers a right to a particular classification. Carson, 689 So. 2d at 755.

     His new classification, while less appealing than his prior classification, does not lengthen his
     sentence nor does it impose an atypical and significant hardship in relation to the ordinary
     incidents of prison life. . . . While he may have lost the privileges he had in Unit 29, his behavior
     clearly posed a security risk, and the committee was free to classify him where they saw fit. The
     loss of these privileges does not illustrate a significant hardship amounting to a liberty interest
     for the purposes of judicial intervention per Sandin. This challenge is merely one based on
     classification, which is an administrative decision beyond judicial reproach in this
     instance.

Id. (emphasis added).

Furthermore, the Fifth Circuit Court of Appeals recently ruled that "absent extraordinary
circumstances, administrative segregation as such, being an incident to the ordinary life as a prisoner,
will never be ground for a constitutional claim, . . . " Pichardo v. Kinker, 73 F.3d 612 (5th Cir. 1996)
. In this case, inmate Pichardo was placed in administrative segregation due to his being classified as a
gang member. The magistrate judge conducted a hearing to determine if the inmate's due process had
been violated and determined that Pichardo could not show "abuse of the prison officials' discretion
in continuing to classify Pichardo as a gang member."(3) Id. at 613. The 5th Circuit upheld the district
court's dismissal of Pichardo's complaint as frivolous under 28 U.S.C. § 1915 since there was no
basis in law or fact to support Pichardo's claim that the prison "policies covering an inmate's
placement and continued confinement in administrative segregation create a protectable liberty
interest." Id.

As in Carson, Johnson relies on Sandin, and states "[i]n view of the Supreme Court's decision in
Sandin . . . Johnson, states a claim that inmates have a liberty interest in remaining free from
segregation which imposed 'atypical and significant' hardship in relation to the ordinary incidents of
prison life." Likewise, in accordance with this Court's holding in Carson and the Fifth Circuit's
holding in Pichardo, Johnson's argument must also fail.

     III. DID THE TRIAL COURT ERR IN ALLOWING JOHNSON TO APPEAL IN
     FORMA PAUPERIS?
Mississippi law contains provisions for the MDOC to pay court costs for inmates filing civil actions
pertaining to the conditions of confinement.

     [I]f an inmate plaintiff files a pauper's affidavit in a civil action and the defendant is an employee
     of the department and the civil action pertains to the inmate's condition of confinement, the
     department shall pay, out of any funds available for such purpose, all costs of court assessed
     against such inmate in such civil action.

Miss. Code Ann. § 47-5-76(1) (Supp. 1997). Furthermore, subsection (2) provides that the inmates
must use funds from their inmate account (if any are available) when filing civil actions such as in the
case sub judice.

This Court interpreted this statute to allow "an inmate plaintiff only to proceed in forma pauperis at
the trial level, . . . but not at the appellate level." Moreno v. State, 637 So. 2d 200, 202 (Miss. 1994).
Therefore, an inmate has no right to appeal in forma pauperis in any other than a criminal case or an
action for post-conviction relief pursuant to Miss. Code Ann. § 99-39-1 et seq. Id. Thus, Johnson
and other inmates filing complaints regarding custody classification should not be granted in forma
pauperis standing to appeal the dismissal of these suits. Additionally, if the court follows the Fifth
Circuit's example and determines that the lawsuit should be dismissed as being frivolous, the inmate is
required to pay all costs of court incurred. Miss. Code Ann. § 47-5-76(2) (Supp. 1997).

                                            CONCLUSION

"Under Mississippi state law, the classification of inmates is the responsibility of the Department of
Corrections, and an inmate has no right to a particular classification." Tubwell v. Griffith, 742 F.2d
250, 253 (5th Cir. 1984). Additionally, the trial court will not overturn prison administrator's
decisions regarding custody unless it is shown that these decisions are arbitrary and unreasonable.
Johnson's reclassification was conducted in accordance with MDOC policy and procedure and thus
was not arbitrary and unreasonable. Accordingly, the trial court 's dismissal of Johnson's Motion to
Show Cause is affirmed.

Additionally, in accordance with this Court's holding in Moreno v. State, 637 So. 2d 200, 202 (Miss.
1994) inmates filing complaints regarding custody classification should not be granted in forma
pauperis standing to appeal the dismissal of these suits. Instead, where there is no basis in law or fact
to support their claims, these suits should be dismissed as being frivolous and the inmate required to
pay all costs of court incurred. See Pichardo v. Kinker, 73 F.3d 612 (5th Cir. 1996); Miss. Code
Ann. § 47-5-76(2) (Supp. 1997).

JUDGMENT AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS AND
MILLS, JJ., CONCUR.




1. Except for Disciplinary Detention, D-Custody is the most restrictive custody level of the MDOC.
It is a form of separation from the general inmate population by a MDOC Classification Committee
where the inmate's behavior and conduct pose a long term, serious threat to life, property, self, staff,
other inmates, or the secure and orderly running of the institution/facility. MDOC Standard
Operating Procedures 08.18.1 (effective May 1, 1995).

2. Under Hawaii Administrative Rules and Procedures misconduct is punished through adjustment
committee procedures. Sandin, 515 U.S. 472, 475 n.1 (1995). This is comparable to the MDOC's
procedures which call for committee review of reclassifications.

3. At the hearing inmate Pichardo denied gang affiliation but testified that he received periodic review
concerning his gang classification. The prison warden explained that prison procedures for classifying
inmates as gang members includes placement in administrative segregation with ninety (90) day
reviews to determine continued affiliation. MDOC policy also provides for periodic review in that an
inmate may not be held in Administrative Detention pending Reclassification for more than 15 days.
MDOC Policy and Procedure Number 08.17.1 (effective April 3, 1992). Upon reclassification to D-
Custody, the classification committee is required to review this status annually, but may review it at
any time, when deemed necessary. MDOC Standard Operating Procedures Number 08.18.1
(effective May 1, 1995).
