                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-CA-00626-SCT
MICHAEL BROWN
v.
OTHIEAL CLARK, UNIT MANAGEMENT TEAM
CHAIRMAN, AND MRS. ANN LEE, DIRECTOR OF
CLASSIFICATION
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                              05/22/96
TRIAL JUDGE:                                   HON. GRAY EVANS
COURT FROM WHICH APPEALED:                     SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL BY:
                                               JANE LANIER MAPP
NATURE OF THE CASE:                            CIVIL - OTHER
DISPOSITION:                                   AFFIRMED - 10/02/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                10/23/97




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


     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:




Michael Brown appeals the denial of his Petition for a Writ of Habeas Corpus in the Fourth Circuit
Court of Sunflower County. In the petition, he asserted that his constitutional right to due process
was denied when he was reclassified and placed in administrative segregation from the general
population by the classification committee. Since we find that Brown's constitutional rights were not
violated, we affirm the trial court's denial of his petition.

Prior to September 22, 1995, Michael Brown was incarcerated and assigned to unit 25 at the MS
State Penitentiary. However, on that date Brown received a detention notice stating that he was
being moved to unit 32, administrative segregation, pending a classification review. In support of the
administrative segregation, the notice stated:
     This offender poses a serious threat to life, property, self, staff, other inmates, and the safety
     and security of this institution. A letter was intercepted by a staff member implicating this
     offender as being involved in a planned demonstration that would involve a massive disruption
     at several units of this institution. Due to the seriousness of this matter administrative
     segregation is warranted.

Part II of the detention notice informed Brown of his right to 1.) call witnesses, 2.) present written
statements, 3.) have these incidents investigated by an investigating employee, 4.) counsel, after
formal charges have been filed for a major violation, and 5.) a meeting with the Classification Team
within 72 hours. Brown refused to sign the notice which informed him of these rights, and this refusal
was noted by the approving authority.

Four days after the detention notice, on September 26, 1995, Brown met with a classification team
chaired by appellee, Othieal Clark, to determine the validity of the complaint and the committee's
recommendation regarding Brown's classification. This committee recommended that Brown remain
in Unit 32 and be placed on close confinement D custody due to Brown's leadership in gang activities
and his admitted membership in the black gangster disciples. The committee stated in the report that
Brown's classification status would be reviewed periodically.

After exhausting all internal review of his claim under the Administrative Remedy Program, Brown
filed a Writ of Habeas Corpus in the Circuit Court of Sunflower County against Othieal Clark, Unit
Management Team Chairman, and Ann Lee, Director of Classification. Brown's petition was
dismissed on May 22, 1996, in an order signed by Circuit Judge Gray Evans wherein he stated:

     Inmate Brown complains that he has been improperly classified by being reduced to D custody
     for being involved in a planned demonstration. MDOC Policy No. 08.18 provides that an
     inmate may be separated from the general inamat [sic] population for this type of behavior. The
     committee may review the status of inmates in D custody annually.

Aggrieved of the lower court's ruling, Brown assigns as error the following:

I. WHETHER THE LOWER COURT ABUSED ITS DISCRETION WHEN IT DISMISSED
APPELLANT'S HABEAS CORPUS.

II. WHETHER THE APPELLANT IS BEING HELD IN D-CUSTODY IN VIOLATION OF
APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND PROCEDURAL
DUE PROCESS OF THE LAW.

                                   STATEMENT OF THE LAW

It should be noted at the outset that Carson v. Hargett, 689 So. 2d 753 (Miss. 1996) is controlling in
this case. The facts in Carson v. Hargett are very similar to the present action in that the appellant in
Carson was also classified to close confinement by a classification committee based on a major rules
violation report for possession of altered money orders. Id. at 753-54. Carson, like Brown in the
present case, appealed the dismissal of his petition for a writ of habeas corpus alleging his
constitutional right to due process was violated when he was reclassified from Unit 29 to Unit 32. Id.
at 754. This Court held that "Classification is an administrative decision and no constitutional right of
Carson's was violated; therefore, the lower court correctly ruled that it had no jurisdiction." Id. at
755. In addition, Brown does not raise any issue that suggests he is treated differently from any other
inmate in Unit 32. Id. at 754. Notwithstanding the controlling authority cited, each of the two issues
raised on appeal by Brown will be addressed on the merits.

                                                   I.

 WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION WHEN IT DISMISSED
                APPELLANT'S WRIT OF HABEAS CORPUS

This Court, in determining the proper standard of review from the dismissal of a writ of habeas
corpus, stated:

     We are also committed to the proposition that where the evidence is in conflict on this question
     of whether the proof is evident or presumption of guilt is great that the Judge at the habeas
     corpus hearing is the trier of fact, and, that it is presumed that he has properly applied the law
     to the facts as found, and his findings will not be set aside or overturned unless, from the
     evidence, it is manifest to us that he is clearly in error.

Blackwell v. Sessums, 284 So. 2d 38, 39 (Miss. 1973).

Brown contends that the lower court's dismissal of his petition was unreasonable, arbitrary and
fanciful due to the failure of the lower court to require an evidentiary hearing to ensure that the
classification process was not procedurally defective. Brown relies on several cases explaining that a
reviewing court should determine the lower court has abused its discretion when its decision is clearly
unreasonable, arbitrary or erroneous. When considering this standard, Brown's argument is without
merit since the circuit court, in rendering its decision, had before it exhibits that revealed
investigations of Brown's involvement in gang related activities conducted both during the seventy-
two-hour review as well as during the Administrative Remedies Program. The judge acted on
sufficient evidence and there is nothing in the record, or in Brown's brief, to support a proposition
that the lower court's decision was clearly in error. Blackwell, 284 So. 2d at 39. Consequently, this
issue is without merit.

The State argued that the lower court erred in allowing Brown to appeal the dismissal in forma
pauperis. In support of the argument, they stated that an inmate has no right to appeal in forma
pauperis other than in a criminal case or an action for post-conviction relief. Moreno v. State, 637
So. 2d 200 (Miss. 1994). This Court held in Moreno v. State, that Miss. Code Ann. § 47-5-76 only
allows an inmate plaintiff to proceed in forma pauperis to challenge his conditions of confinement at
the trial level and not at the appellate level. Moreno, 637 So. 2d at 201. However, this Court
addressed this issue in Carson v. Hargett and determined that a writ of habeas corpus was a proper
avenue to appeal an alleged constitutional violation pertaining to an inmate's reclassification. Carson,
689 So. 2d at 755. But, as we reiterate today,"there is no liberty interest in an inmate's classification
status, and any future challenges to such status should not come to this Court by way of the writ of
habeas corpus." Id. at 755.

                                                   II.
WHETHER THE APPELLANT IS BEING HELD IN D-CUSTODY IN VIOLATION OF
APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW

The Fourteenth Amendment provides that a state shall not "deprive any person of life, liberty, or
property, without due process of law." U.S. Const. amend. XIV, § 1; Miss. Const. art. III, § 14.
Although the U.S. Constitution protects prisoners placed in state institutions, because of the
prisoners conviction, these rights have been limited based on necessity. Wolff v. McDonnell, 418
U.S. 539, 556-57 (1974); McFadden v. State, 542 So. 2d 871, 875 (Miss. 1989). The beginning
analysis of any due process claim is to determine if in fact there is a recognized protected property or
liberty interest. There are two sources in which a liberty interest protected by the Fourteenth
Amendment may arise, the Due Process Clause itself and State laws. Meachum v. Fano, 427 U.S.
215, 223-227 (1976); Hewitt v. Helms, 459 U.S. 460, 468 (1983). An inmate does not have a
federally created liberty interest in remaining in a particular unit within a correctional institution.
Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 (1976); Wilson v.
Budney, 976 F.2d 957 (5th Cir. 1992). However, an inmate may have a protected liberty interest
created by state law. Hewitt v. Helms, 459 U.S. 460 (1983); Dzana v. Foti, 829 F.2d 558 (5th Cir.
1987). The Supreme Court in Hewitt explained that local statutes and regulations may create a liberty
interest if they carry mandatory force and significantly limit prison authorities' discretion. 459 U.S. at
471-72.

The Mississippi legislature, according to Miss. Code Ann. §§ 47-5-99 through 103 (1993), has given
discretion to the Department of Corrections in determining the classification of inmates and "an
inmate has no right to a particular classification." Tubwell v. Griffith, 742 F.2d 250, 253 (5th Cir.
1984). Miss. Code Ann. § 47-5-103 (1993) states, "The [classification] committees shall establish
substantive and procedural rules and regulations governing the assignment and alteration of inmate
classifications, and shall make such rules and regulations available to any offender upon request."
This statute, to further protect an inmate from wrongful reclassification, was amended in 1995 to
allow a classification board to change an inmate's classification if it finds the action of the committee
to be unsupported by sufficient factual information. Miss. Code Ann. § 47-5-103 (Supp. 1997). This
Court has interpreted the language of these statutes in Carson v. Hargett and found that "[n]one of
the statutes confers a right to a particular classification." Carson, 689 So. 2d at 755. The Fifth
Circuit explained, "[it] is well settled that 'prison officials must have broad discretion, free from
judicial intervention, in classifying prisoners in terms of their custodial status.'"McCord v. Maggio,
910 F.2d 1248, 1250 (5th Cir. 1990) (quoting Wilkerson v. Maggio, 703 F. 2d 909, 911 (5th Cir.
1983)). Considering the language of Parts I, II, and III of the Detention Notice given to Brown, and
the fact that no action was taken on Brown's behalf by a classification board, the Department of
Corrections has fulfilled its legal responsibility to Brown as directed by Miss. Code Ann. § 47-5-104
(1993).

Brown's appeal is very similar to the appeal in Sandin v. Conner, 515 U.S. 472 (1995). In Sandin v.
Conner, the inmate, incarcerated in a maximum security prison, was charged with "high misconduct"
because of his interference with a strip search, and "low moderate misconduct" for using profanity
during the search. As a result of the misconduct, the inmate was segregated from the general prison
population and placed in isolation. The Court held, "that Conner's discipline in segregated
confinement did not present the type of atypical, significant deprivation in which a state might
conceivably create a liberty interest." 515 U.S. at 486.
In the present appeal, Brown's segregation from the general population was based on a finding of his
leadership role in gang activities and admitted membership in the black gangster disciples that posed a
serious threat to life, property, self, staff, other inmates, and the safety and security of the prison. His
segregation in no way extends his sentence and does not impose an atypical and significant hardship
in relation to the ordinary incidents of prison life. Therefore, his constitutional claim of a violation of
due process of law is without merit since he has no protected liberty interest in his change of
classification and therefore, has not stated a claim which implicates the due process clause.

Brown also asserts he was denied 1.) a Miranda warning, which is inapplicable to the present
situation, 2.) notice of his alleged infraction, 3.) notice of his right to have the incident investigated,
and 4.) notice of his right to summon witnesses to a hearing. These assertions are without merit since
each of these rights, except for a Miranda warning, are clearly stated in Part II of the detention notice
which Brown refused to sign acknowledging these rights. In addition, Brown was given notice of his
detention and received a hearing ; therefore, these procedures satisfy the due process requirements.
Terrell v. State, 573 So. 2d 730, 732 (Miss. 1990). All of these arguments are without merit,
because in order to determine if the due process that was given was sufficient, Brown must first
establish that he has a constitutionally protected liberty interest, which he has failed to prove. As a
result, it is unnecessary to discuss what procedural requirements would otherwise be required.

                                            CONCLUSION

Brown has failed to establish that he has a protected liberty interest in his reclassification to another
unit within the state penitentiary. Therefore his procedural arguments must also fail since this Court
should not determine what process is due after determining there is no constitutionally protected
liberty interest violated. The lower court properly dismissed Brown's petition for a writ of habeas
corpus. Accordingly, the judgment below is affirmed.

AFFIRMED.

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