                           United States Court of Appeals
                                 FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 96-2319
                                     ___________
William Lewis Herron,                      *
                                           *
              Appellant,                   *
                                           *
     v.                                    *
                                           *
Scott O. Wright; William A. Knox;          *
Robert F. Connor; Jackie Price;            *
Doro Schriro; George Lombardi;             *
Dale Riley; Bill M. Armontrout;            *
Steve Long; Michael Groose; David          *
Dormire; Donald Cline; Robert              *
Acree; Elmer Wankum; Tom Fisher;           *   Appeal from the United States
Jon Kirk; Daniel Kempker; Cecil            *   District Court for the
Pettis; Vernon Taylor; Earl                *   Western District of Missouri.
Halderman; Dick D. Moore; Claudia          *
J. York; Kelly Mescher; Richard            *              [UNPUBLISHED]
S. Arnold; Theodore                        *
McMillian; John R. Gibson; Pasco           *
M. Bowman; George Fagg; Roger              *
Wollman; Frank Magill; C. Arlen            *
Beam; James Loken; David Hansen;           *
Myron Bright; U.S. District                *
Court, Western Missouri; USA;              *
John Sydow; Lisa Jones,                    *
                                           *
              Appellees.                   *




                                     ___________

                                 Submitted:     February 19, 1997

                                          Filed:     June 3, 1997
                                     ___________

Before MORRIS SHEPPARD ARNOLD, LAY, and MURPHY, Circuit Judges.
                               ___________

PER CURIAM.

      William Herron appeals from the district court's order granting
defendants' motion to dismiss his 42 U.S.C. § 1983 action. We affirm in
part, and reverse and remand in part.
      Herron has been confined in Level I of the Special Management
Facility (SMF) at the Jefferson City Correctional Center (JCCC) since
December 1986, when he was reassigned from Level II because of his history
of escapes and attempted escapes. Herron has previously litigated the
constitutionality of his transfer to the most restrictive level of
administrative segregation. See, e.g., Sanders v. Woodruff, 908 F.2d 310
(8th Cir.), cert. denied, 498 U.S. 987 (1990). In December 1993, Herron
filed this action against prison officials and administrators of the
Department of Corrections seeking injunctive relief and damages. Herron
claimed that his continued confinement in SMF violated his due process and
Eighth Amendment rights. He also argued various defendants denied him due
process by filing false classification reports against him, by refusing to
assist him in filing grievances, by conspiring to refuse to advise
defendant Dora Schriro of his continued confinement, and by conditioning
his release from solitary confinement on his taking psychological tests,
without showing a need for them. Herron also raised pendent state law
claims.




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      In April 1996, the district court granted defendants' motions to
dismiss. The court concluded that Herron's claim he should be released
from Level I was foreclosed by Sanders.         Determining that Herron's
continued segregation was not arbitrary or purposeless, the district court
also concluded that Herron's confinement did not amount to an "atypical and
significant hardship" under Sandin v. Conner, 115 S. Ct. 2293 (1995), which
would entitle him to any more due process than he currently received by
periodic review of his classification status. The court further concluded
that it was "not unreasonable" to require Herron to undergo a psychological
test before approving a release from Level I; that Herron's confinement in
Level I did not constitute cruel and unusual punishment; and that he did
not state a conspiracy claim. The district court dismissed any pendent
state law claims.

      We review de novo the grant of dismissal under Federal Rule of Civil
Procedure 12(b)(6), viewing the complaint in the light most favorable to
Herron, and affirming only if it appears beyond doubt that he can prove no
set of facts that would entitle him to relief. See Dover Elevator Co. v.
Arkansas State Univ., 64 F.3d 442, 445 (8th Cir. 1995) (standard of
review).
      We agree with the district court that Herron's claims relating to his
transfer to Level I on December 10, 1986, are foreclosed by our decision
in Sanders v. Woodruff.1 We conclude, however, that the district court
erred in summarily dismissing Herron's claim that his continued confinement
in Level I for ten years was not atypical or a significant hardship.
Following the Supreme Court's decision in Sandin, in determining whether
Herron's ten years in Level I implicated for him a liberty interest, the
district




      1
        In May 1996, we enjoined Herron from filing "any further pleading concerning
his December 10, 1986 transfer." Herron v. Woodruff, No. 95-1861 (8th Cir. May 2,
1996) (unpublished per curiam). Appellees have moved to dismiss this appeal because
Herron has been prohibited from relitigating his assignment to Level I. Because Herron
filed his notice of appeal in this case six days after Herron v. Woodruff was decided,
we deny the motion to dismiss the appeal on this basis.

                                         -3-
court was required to consider whether the interest alleged to have been
violated was one of "real substance," e.g., freedom from state action that
will "inevitably affect the duration of [a] sentence," or freedom from
restraint that imposes "atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life." Sandin, 115 S. Ct. at
2298, 2300, 2302. The length of time of a prisoner's segregation is a
significant factor in the determination of whether the confinement is an
"atypical and significant hardship." See id. Herron's confinement for ten
years in the most restrictive unit of JCCC appears to be beyond typical and
insignificant. Because the district court did not cite any factual basis
for concluding that the segregation did not impose on Herron an "atypical
and significant hardship," Sandin, 115 S. Ct. at 2300, we remand for
further factual findings.

      The district court's summary statement that Herron's confinement was
not cruel and unusual punishment failed to treat Herron's allegations in
the light most favorable to him. So viewed, Herron's allegations may have
stated a claim. See Hutto v. Finney, 437 U.S. 678, 686-87 (1978) ("[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.").

      We conclude the district court correctly dismissed Herron's remaining
claims. Accordingly, we affirm in part, and reverse and remand for further
proceedings consistent with this opinion. We deny Herron's motion for
injunctive relief and for appointment of counsel.       We also amend the
district court's judgment to reflect that the dismissal of the pendent
state law claims is without prejudice.




                                    -4-
LAY, Circuit Judge, concurring.

        I fully concur in the per curiam opinion. I would suggest that there is an urgency to hold an evidentiary
hearing in this matter and, on that basis, I would suggest that the hearing be expedited. There is no doubt that
appointment of counsel is likewise warranted.

        A true copy.

                 Attest:

                         CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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