UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50482
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JEFFREY “ZEAL” STEFANOFF,
Plaintiff-Appellee,
VERSUS
HAYS COUNTY, TEXAS and PAUL HASTINGS, SHERIFF, in his
individual and official capacity,
Defendants-Appellants.
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Appeal from the United States District Court
For the Western District of Texas
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September 24, 1998
Before DAVIS, WIENER and PARKER, Circuit Judges.
PER CURIAM:
Jeffrey “Zeal” Stefanoff was convicted of possession of
marijuana and sentenced by a jury to 180 days in the Hays County
Jail. Stefanoff was remanded to the custody of Hays County Sheriff
Paul Hastings in June 1993. In August 1993, Stefanoff requested
that Hastings grant him “good time” credit under a Texas statute
granting sheriffs the discretion to commute for good conduct the
sentences of inmates incarcerated in county jails. Hastings denied
his request. Stefanoff brought a § 1983 suit against Hastings and
Hays County, alleging that Hastings violated his right to equal
protection by basing his refusal on Stefanoff’s election to have a
jury determine his punishment and that Hastings unlawfully
retaliated against him for exercising his First Amendment rights.
Hastings and Hays County moved for summary judgment on Stefanoff’s
equal protection and First Amendment claims on qualified immunity
grounds. The district court denied their motion, and they appeal.
A. Hays County’s Appeal
As an initial matter, we observe that municipalities are not
entitled to qualified immunity. See Leatherman v. Tarrant County
Narcotics Unit, 507 U.S. 163, 166 (1993). Accordingly, we do not
have jurisdiction over Hays County’s appeal.
B. Sheriff Hastings’s Claim
Determining whether an official is entitled to qualified
immunity is a two-step process. See Rochon v. City of Angola, La.,
122 F.3d 319, 320 (5th Cir. 1997). First, a court must determine
whether the plaintiff has alleged a violation of a clearly
established constitutional right. Id. Second, the court must
determine whether the official’s conduct was objectively reasonable
in light of clearly established law as it existed at the time of
the conduct in question. Id.
An official is not entitled to qualified immunity if, at the
time the challenged action occurred, the federal law proscribing it
was clearly established not only as an abstract matter but also in
a more particularized sense such that the contours of the right are
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sufficiently clear that a reasonable official would understand that
what he is doing violates that right. See Pierce v. Smith, 117
F.3d 866, 871 (5th Cir. 1997). Although to preclude qualified
immunity it is not necessary that the very action in question have
been previously held unlawful or that the plaintiff point to a
previous case that differs only trivially from his case, the facts
of a previous case must be “materially similar.” Id. at 882. “For
qualified immunity to be surrendered, pre-existing law must
dictate, that is, truly compel (not just suggest or allow or raise
a question about), the conclusion for every like-situated,
reasonable government agent that what the defendant is doing
violates federal law in the circumstances.” Id. However, “the
egregiousness and outrageousness of certain conduct may suffice to
obviously locate it within the area proscribed by a more general
constitutional rule[.]” Id.
1. Stefanoff’s Equal Protection Claim
Stefanoff alleges that Hastings maintains a policy of denying
good time credit to inmates who have been sentenced by juries and
that Hastings violated his right to equal protection by refusing to
grant him good time credit because he elected to have his
punishment determined by a jury.
Because no suspect class or fundamental right is involved, we
employ the rational basis test in analyzing this question. See
Hilliard v. Ferguson, 30 F.3d 649, 652 (5th Cir. 1994). Rational
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basis scrutiny requires only that the classification rationally
promote a legitimate governmental objective. See Williams v.
Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987).
In order to overcome Hastings’s claim of qualified immunity,
Stefanoff must specifically allege the violation of a clearly
established constitutional right. See Seigert v. Gilley, 500 U.S.
226, 233 (1991). Stefanoff asserted that Hastings distinguished
between two groups of similarly situated inmates based on their
sentencing election. He contended that this distinction is not
rationally related to any legitimate state purpose and has a
chilling effect on the choice to be sentenced by a jury rather than
a judge. The trial court held that Stefanoff had alleged a
violation of a clearly established constitutional principal. We
agree.
The Equal Protection Clause of the Fourteenth Amendment
requires essentially that all persons similarly situated be treated
alike. See Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir.
1996). In order to establish an equal protection claim, Stefanoff
must prove (1) that Hastings created two or more classifications of
similarly situated prisoners that were treated differently, see
Johnson v. Rodriguez, 110 F.3d 299, 307 (5th Cir.), cert. denied,
118 S. Ct. 559 (1997), and (2) that the classification had no
rational relation to any legitimate governmental objective. See
id. at 306. Hastings contends that Stefanoff did not adequately
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allege either prong of an Equal Protection Clause violation.
Stefanoff’s complaint alleged that Hastings has a policy of
denying good time credit to persons who are sentenced by a jury,
while considering persons who are sentenced by a judge for such
credit. Hastings, while admitting that he has such a policy, takes
the position that because there is another category of prisoners
not considered for good time credit (those sentenced by a judge,
where the judge recommend “flat time”) and because even those who
are considered for such credit do not always receive it, there is
no relevant classification for Equal Protection purposes. Because
there was a discoverable classification antedating the challenged
state action -- that is, persons who elected to be sentenced by a
jury versus those who elected to be sentenced by a judge --
Stefanoff has met the requirement of identifying two similarly
situated groups treated differently. See Johnson v. Rodriguez, 110
F.3d at 306.
Further, Hastings contends that, assuming he treated similarly
situated groups of prisoners differently, the classification is
rationally related to a legitimate state purpose. The statutory
basis of the sheriff’s discretion for awarding good time in county
jails, Texas Code of Criminal Procedure, art. 42.032, specifically
states its purpose as “encourag[ing] county jail discipline.”
Hastings makes no argument that his policy was rationally related
to the goal articulated by the Texas legislature in the statute
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granting discretion in this arena. Rather, Hastings argues that he
had another rational basis for his policy: deferring to the jury as
the “conscience of the community.” Although Hastings may have
acted outside the discretion granted by the state, giving rise to
a state cause of action, equal protection rights are not violated
as long as the policy is rationally related to some legitimate
governmental goal. See Johnson v. Rodriguez, 110 F.3d at 306
(1997).
This court’s task is therefore to examine Hastings’s
articulated rationale to determine 1) whether there is a plausible
policy reason for the classification, 2) whether Hastings could
have rationally believed the facts on which the classification is
allegedly based, and 3) whether the relationship of the
classification to its goal is so attenuated as to render the
distinction arbitrary or irrational. See Nordlinger v. Hahn, 505
U.S. 1, 11 (1992). While Hastings’s policy of denying good time
credit on sentences which reflect the “conscience of the community”
may be plausibly aimed at a legitimate governmental goal, the
distinction fails under the last two prongs. We do not accept as
rational the proposition that a decision made by a jury of citizens
more closely reflects the “conscience of the community” than the
decision of an elected judge.1 Even if that were a rational
1
There is nothing in this record that allows a distinction
based on the conjecture that Hays County state district judges took
into account the potential for early release due to good conduct
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proposition, the relationship between the classification Hastings
chose and the goal of honoring the “conscience of the community” is
so attenuated as to render the distinction arbitrary and
irrational. We conclude that Hastings violated Stefanoff’s rights
under the equal protection clause. Further we are not convinced by
Hastings’ argument that such a policy was objectively reasonable.
2. Stefanoff’s First Amendment Claim
Stefanoff claims that Hastings also refused to grant him good
time credit in retaliation for engaging in a hunger strike and
corresponding with the media -- activities which he alleges are
protected by the First Amendment. Hastings stated in an affidavit
attached to his motion for summary judgment that, “[t]aking into
account all factors relevant to the exercise of my discretion, Mr.
Stefanoff would have served the same jail term even if I did not
have a guideline denying good time credit to persons sentenced by
a jury.” Hastings specifically references Stefanoff’s expressed
desire to stay in jail and organize the prisoners, as well as a
request from the district attorney for denial of good time “since
he has begun a hunger strike and continues to make his crime a
media event.”
In order to establish a retaliation claim, Stefanoff must show
1) the invocation of a specific constitutional right; 2) that
Hastings intended to retaliate against him for his exercise of that
time, while jury members remained ignorant of this possibility.
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right; 3) a retaliatory adverse act; and 4) that but for the
retaliatory motive the act would not have occurred. See Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).
We must begin by determining whether Hastings’s actions were
objectively reasonable under settled law at the time they were
taken. See Hunter v. Bryant, 502 U.S. 224 (1991). First, it is
clearly established that, under some circumstances, prisoners have
a First Amendment right to communicate with the press. Pell v.
Procunier, 417 U.S. 817, 822 (1974). Likewise, a hunger strike may
be protected by the First Amendment if it was intended to convey a
particularized message. See Texas v. Johnson, 491 U.S. 397, 404
(1989). However, so long as reasonable and effective means of
communication remain open and no discrimination in terms of content
is involved, prison officials are accorded latitude in fashioning
restrictions on time, place and manner of communications. See id.
at 826. Such restrictions must be reasonably related to a
legitimate penological interest. See Brewer v. Wilkinson, 3 F.3d
816, 824 (5th Cir. 1993). We conclude that Stefanoff’s activities
were sufficiently disruptive that Hastings had a legitimate
penological interest in curtailing them. Further, there is no
question that Stefanoff retained other reasonable and effective
methods of communicating his views. Consequently, we conclude that
it was objectively reasonable for Hastings to deny Stefanoff good
time on this basis. Because there is no dispute in the record that
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Hastings would have denied Stefanoff good time credit regardless of
the policy relative to jury sentences, we hold that Hastings was
entitled to qualified immunity from suit and reverse the district
court’s denial of his summary judgment motion.
CONCLUSION
In summary, we dismiss Hays County's appeal, and reverse the
judgment of the district court denying Hastings' claim for
qualified immunity and render judgment in favor of Hastings based
on the First Amendment claim. Our holding on the First Amendment
claim obviates the need to remand for further proceedings on the
basis of Stefanoff’s Equal Protection claim.
DISMISSED in part, REVERSED in part.
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