     Case: 13-60715      Document: 00513495571         Page: 1    Date Filed: 05/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                      No. 13-60715
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                              May 6, 2016

VINCENT TITO BAILEY,                                                        Lyle W. Cayce
                                                                                 Clerk
              Plaintiff - Appellant

v.

MARSHALL L. FISHER. Commissioner, Mississippi Department of
Corrections; EMMITT L. SPARKMAN, Deputy Commissioner; BERTHA
SPIVEY, STG Coordinator; JAMES FILLYAW, Director O.S.; JOHNNIE
ELLIS, Classification Designer; EDDIE CATES, Assistant Director of O.S.;
MARGARET BINGHAM, Superintendent,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:11-CV-300


Before REAVLEY, PRADO, and COSTA, Circuit Judges.
PER CURIAM:*
       Mississippi inmate Vincent Tito Bailey seeks judicial review of the
Department of Corrections’s decision to isolate him on suspicion of gang
leadership. The magistrate judge dismissed Bailey’s due process claim at the



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 13-60715
pleading stage.       Because an intervening decision of this court provides
additional guidance on how to evaluate such claims and the record does not
make clear whether Bailey remains subject to the challenged conditions, we
remand for further consideration.
                                              I.
       The following facts are drawn from Bailey’s complaint, as supplemented
during the August 14, 2012 Spears 1 hearing conducted by the magistrate
judge.
       Bailey is serving a 25-year sentence with the Mississippi Department of
Corrections. He was designated a Security Threat Group (STG) Leader—a
gang leader—in December 2010. At the time, he was being housed in general
population at Louisville Correctional Facility. 2 His STG Leader classification
kicked off a series of housing transfers.
       Central Mississippi Correctional Facility (December 2010 to January
2011): On or around December 22, 2010, Bailey was removed from general
population at Louisville and transferred to the segregation unit at Central
Mississippi Correctional Facility in Rankin County.                       He received a
reclassification hearing on December 28, 2010, which upheld his STG Leader
classification.
       South Mississippi Correctional Institution (January 2011 to August
2011): Approximately one month after his reclassification hearing, Bailey was
transferred to South Mississippi Correctional Institution (SMCI) in Greene
County. Bailey remained at SMCI until August 2011, when he was transferred


       1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) (holding that an evidentiary hearing
can be used in pro se cases in place of a typical requirement for a more definite statement),
overruled on other grounds by Neitzke v. Williams, 490 U.S. 319, 324 (1989).
       2 We understand “Louisville Correctional Facility” to be the Winston/Choctaw County

Correctional Facility, but use the terminology found in Bailey’s filings.
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                                  No. 13-60715
to another facility.   He claims that his transfer was necessitated by the
conditions at SMCI, which had been successfully challenged in court.
      Wilkinson County Correctional Facility (August 2011 to June 2012;
September 2012 to unknown): Between August 2011 and June 2012, Bailey
was kept in the segregation unit at the Wilkinson County Correctional Facility
(WCCF) in Woodville, Mississippi.        He was transferred back to general
population in June 2012, but returned again to segregation in September 2012.
It is unknown whether Bailey is still in segregation.
                                        II.
      After his December 28, 2010 reclassification hearing, Bailey pursued a
two-step administrative appeal process within the prison system. After both
levels of appeal were denied, he brought this lawsuit.
      By consent, the case proceeded before the magistrate judge. At the
Spears hearing held August 14, 2012, Bailey informed the court that he had
been released from segregation two months prior. According to a motion for
injunctive relief filed two months later, however, Bailey was returned to
segregation following the hearing. As noted above, it is unknown whether
Bailey remains in segregation.
      More than a year after the Spears hearing, the magistrate judge
dismissed Bailey’s claims for “failure to rise to the level of a constitutional
violation.”   He noted that Bailey does not have a “protectable liberty or
property interest in his custodial classification” or a “constitutional right to be
housed in a particular prison facility.” He then ruled that the restrictive
conditions described “do not rise to the level of a constitutional violation.”
                                       III.
      Ordinarily an inmate has no recognized due process interest in his
custodial classification. Moody v. Baker, 857 F.2d 256, 257–58 (5th Cir. 1988).
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A state-created liberty interest may arise, however, when a custodial
classification results in conditions of confinement that “impose[] atypical and
significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
        Solitary confinement is typically viewed as an ordinary, expected, and
permissible incident of prison life. See, e.g., Pichardo v. Kinker, 73 F.3d 612,
612 (5th Cir. 1996); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). In fact,
Sandin itself was a disciplinary segregation case. 515 U.S. at 475–76. But
solitary confinement can be used in a way that “imposes atypical and
significant hardship.” Hernandez v. Velasquez, 522 F.3d 556, 562–63 (5th Cir.
2008) (quoting Sandin, 515 U.S. at 484). The Supreme Court in Wilkinson v.
Austin, 545 U.S. 209 (2005), recognized that the use of solitary confinement in
Ohio’s Supermax facility crossed the line. Id. at 223–24.
        Since the magistrate judge dismissed Bailey’s case, we have found that
two prisoners under decades-long closed-cell restriction (CCR)—a type of
confinement similar to the solitary confinement in Wilkinson—likewise had a
cognizable due process interest in Louisiana’s prisoner classification system.
See Wilkerson v. Goodwin, 774 F.3d 845, 855–57 (5th Cir. 2014).
        The conditions Bailey alleges he faced at SMCI are similar in many
respects to the conditions in Wilkinson and Wilkerson. He alleges that he was
in lockdown 23–24 hours a day in a one-person cell, the same as plaintiffs in
Wilkinson and Wilkerson. Wilkinson, 545 U.S. at 214; Wilkerson, 774 F.3d at
849, 855. His cell was outfitted with a solid steel door, with the only opening
controlled by prison guards for purposes of meals and prisoner count—a set-up
nearly identical to the Supermax facility at issue in Wilkinson. 545 U.S. at
214.     This set-up functionally prohibited cell-to-cell conversation, as in
Wilkinson, although the inmates at SMCI apparently improvised by passing
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written notes. 3 On the days that Bailey left his cell to exercise, he remained
isolated from other prisoners, as in Wilkerson. 774 F.3d at 855. Visitation was
either non-existent (in Phase 1) or rare (once every 90 days in Phase 2), and
strictly no contact, as in Wilkinson. 4 545 U.S. at 214; compare Wilkerson, 774
F.3d at 855 (inmate permitted “some” contact visits).
       According to Bailey, he had no access to any privileges or programming
at the prison—such as religious gatherings, educational and vocational
programs, entertainment, canteen, or packages.                   Similar restrictions were
noted in Wilkerson. See 774 F.3d at 849 (inmates on CCR faced restrictions on
“personal property, reading materials, access to legal resources, work, and
visitation rights,” and could not “attend religious ceremonies” or “take
advantage of educational opportunities [and] training” available to other
inmates) (quoting the district court opinion).
       Finally, while at SMCI, Bailey confronted restrictive conditions not
found in either Wilkinson or Wilkerson. Telephone use was either prohibited
(in Phase 1) or rare (once a month in Phase 2). Compare Wilkerson, 774 F.3d
at 855 (inmate allowed telephone privileges). He showered only three times
per week. Compare id. at 849, 855 (inmate allowed to shower every day). And
any time he left his cell, he was handcuffed through a “mailbox”-like




       3  The details of the inmates’ note-passing system are unclear. In his motion for
summary judgment brief, Bailey wrote: “Some guys just resulted [sic] to communicating by
fishing slidding [sic] strings attached to toothpaste under the door to pass messages.” His
affidavit in support of summary judgment described: “When it was noisy communication was
reduce [sic] to sliding cars or what they called caddilacs [sic] across the floor with little note
[sic] on them.”
        4 There are different phases within STG segregation. To graduate from Phase 1, the

inmate must renounce his gang affiliation, debrief with prison officials, and remain Rule
Violation Report (RVR) free for 6 months. The minimum amount of time in STG segregation
is one year; there is no upper limit.
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                                       No. 13-60715
structure—minimizing physical contact with prison guards—and strip
searched.
       Based on the allegations in Bailey’s pleadings, we see little difference
between the conditions at SMCI and the Supermax facility in Wilkinson, and
his SMCI confinement may have been more restrictive than the CCR in
Wilkerson.
       The conditions Bailey was subject to at WCCF diverge slightly from
SMCI. Most notably, Bailey was allowed to use the telephone at WCCF. He
does not allege that he was strip searched every time he left his cell. He also
had a couple of privileges restored to him, including the ability to watch
television and to purchase from canteen. In all other respects, however, his
confinement at WCCF allegedly involved the same limitations as his
confinement at SMCI. This moves the conditions Bailey allegedly faced at
WCCF closer to those at issue in Wilkerson.                       See 774 F.3d at 855
(acknowledging that CCR is less restrictive than the Supermax prison in
Wilkinson because, among other things, inmate was allowed “some contact
visits, telephone privileges, peer counseling, and correspondence courses”).
       Wilkerson had not been issued when the magistrate judge ruled in this
case, so he did not have benefit of the Fifth Circuit’s guidance. And to the
extent that the magistrate judge considered Wilkinson, he did not explain his
grounds for distinguishing it when he dismissed Bailey’s claims. 5
       All that being said about the ways in which the day-to-day conditions
Bailey alleges are similar to those in Wilkson and Wilkerson, there are two
significant differences. First, Bailey gives no indication that placement in STG


       5 For example, the magistrate judge found that Bailey “still had access to privileges,
albeit in a limited fashion, and not to his liking.” He did not explain what privileges Bailey
had access to, and Bailey’s pleadings and the Spears hearing transcript provide no insight.
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segregation impacted his release date in any way. Courts are particularly
concerned when solitary confinement triggers such repercussions. See, e.g.,
Wilkinson, 545 U.S. at 224 (fact that placement in Ohio’s Supermax facility
“disqualifies an otherwise eligible inmate for parole consideration” is one of
two components distinguishing it from “most solitary confinement facilities”);
but see Luken, 71 F.3d at 193 (loss of opportunity to earn good-time credits in
administrative segregation is too “speculative” and “collateral” to create a
liberty interest in custodial classification). The absence of a negative impact
on Bailey’s possible release date is not fatal, however—the CCR in Wilkerson
also lacked parole ramifications. See 774 F.3d at 855.
      The other difference, and the more significant one, relates to the
duration of the confinement in the restrictive conditions. Id. at 854 (explaining
that both the “severity of the restrictive conditions and their duration [are] key
factors” in determining whether an inmate has a liberty interest in his
custodial classification). In essence, courts employ a sliding scale, taking into
account how bad the conditions are and how long they last. See id. (collecting
and comparing cases from other circuits).            On such a sliding scale, truly
onerous conditions for a brief period of time may not be atypical; less onerous
conditions for an extended period of time may be. As described in the Eighth
Amendment context:
       [T]he length of confinement cannot be ignored in deciding whether
       the confinement meets constitutional standards.          A filthy,
       overcrowded cell and a diet of “grue” might be tolerable for a few
       days and intolerably cruel for weeks or months.
Hutto v. Finney, 437 U.S. 678, 686–87 (1978). 6



      6  Although Hutto was an Eighth Amendment case, this passage has been cited by
courts grappling with the issue presented here: whether a term of segregated confinement is
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                                       No. 13-60715
       On this aspect of Bailey’s claim, although his confinement does not
approach the duration at issue in Wilkinson and Wilkerson, the record is
wanting about the actual duration of his confinement under the alleged
conditions and whether it is ongoing. The magistrate judge referred to Bailey’s
release from segregation in June 2012 when he dismissed Bailey’s due process
claims. But before this ruling, and only two months after the Spears hearing
in October 2012, Bailey moved for injunctive relief because he had been
returned to segregation. Four months after that, he sought to amend his
complaint to add a retaliation claim based on his continued segregation. Both
of these motions were denied at the same time that the magistrate judge
dismissed the underlying due process claims.
       If Bailey’s segregation ended in June 2012, he likely has failed to present
a claim of “constitutional proportions.” The Fifth Circuit recently suggested
that two and a half years of segregation is a threshold of sorts for atypicality,
Wilkerson, 774 F.3d at 855, such that 18–19 months of segregation under even
the most isolated of conditions may not implicate a liberty interest. 7 See also
Hernandez, 522 F.3d at 563 (lockdown in “a shared cell for twelve months with
permission to leave only for showers, medical appointments, and family visits”
not an atypical or significant hardship). Thus, although the magistrate judge
failed to address the similarity between the conditions alleged and the




sufficiently atypical to trigger a due process interest. See, e.g., Brown v. Or. Dept. of Corr.,
751 F.3d 983, 988 (9th Cir. 2014); Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003).
        7 Some other circuits have seemed to establish shorter thresholds.          The Seventh
Circuit recently rejected a “presumptive minimum” of six months for segregated confinement
due process claims. Kervin v. Barnes, 787 F.3d 833, 837 (7th Cir. 2015). Similarly, the Second
Circuit instructs lower courts to rule on the basis of a “detailed factual record” regarding the
conditions of confinement unless the time spend in segregation was “exceedingly short,” i.e.
“less than 30 days.” Davis v. Barrett, 576 F.3d 129, 135 (2d Cir. 2009) (internal quotation
marks and alteration omitted).
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Supermax facility in Wilkinson, the omission was likely harmless, assuming
that segregation had truly ended.
       But, as explained above, we cannot discern from this record whether the
segregation has ended. If Bailey remains in segregation today, he has been
isolated for over five years, with only a few months of relief in the interim. 8
                                          * * *
       The duration of Bailey’s confinement is a necessary component in the
Sandin analysis. We therefore vacate the JUDGMENT dismissing Bailey’s
complaint and REMAND the case where it can be determined whether Bailey
is still subject to the conditions he challenges. The court can then assess
whether, in light of conditions and duration of the segregated confinement,
Bailey has sufficiently alleged a state-created liberty interest in his custodial
classification. 9




       8 It may be the case that any resumption of segregation was not factually connected
to Bailey’s original claims. But the magistrate judge’s ruling does not make such a finding,
and Bailey’s motion for injunctive relief suggests that the two confinements are related. The
state’s opposition to injunctive relief did not disclose the basis of Bailey’s continued
segregation.
       9 Of course, it may also be the case that even if Bailey has established a liberty

interest, the state provided him with the process that was due.
                                                 9
