Williams v. Hobbs

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-2465/10-2712
___________

David Williams, *
*
Plaintiff - Appellee/ *
Cross-Appellant, *
*
v. *
*
Ray Hobbs, Chief Deputy Director, *
Arkansas Department of Correction, *
* Appeals from the United States
Defendant, * District Court for the
* Eastern District of Arkansas.
Greg Harmon, Warden, East Arkansas *
Regional Unit, ADC; Marvin Evans, *
Jr., Warden, Tucker Unit, ADC; *
Grant Harris, Warden, Varner Unit, *
ADC; Tommy James, Jr., Assistant *
Warden, Maximum Security Unit, *
ADC; Tim Moncrief, Assistant Warden, *
Varner Unit, ADC, *
*
Defendants - Appellants/ *
Cross-Appellees. *
___________

Submitted: March 29, 2011
Filed: December 2, 2011
___________

Before LOKEN, SMITH, and GRUENDER, Circuit Judges.
___________
SMITH, Circuit Judge.

David Williams, an inmate in the Arkansas Department of Correction (ADC),
filed the instant lawsuit pursuant to 42 U.S.C. § 1983, alleging, inter alia, that his
approximately 14-year detention in administrative segregation ("Ad. Seg.")1 violated
his procedural due-process rights under the Fourteenth Amendment to the U.S.
Constitution because the periodic reviews of his detention were not meaningful. We
previously reversed the district court's grant of summary judgment against Williams,
concluding that Williams had asserted a constitutionally protected liberty interest.
Williams v. Norris, 277 F. App'x 647, 648–50 (8th Cir. 2008) (unpublished per
curiam). We further concluded that ADC's written Ad. Seg. review policies accorded
Williams all the process that he was constitutionally due, but we remanded the case
for a fact determination of whether the defendants—five prison officials—conducted
Williams's review hearings in a meaningful manner. The district court held a bench
trial on the matter and found that four of the five defendants had in fact denied
Williams due process by conducting meaningless Ad. Seg. review hearings.
Consequently, the district court awarded Williams $4,846 in nominal damages—$1
for every day that Williams lived in Ad. Seg.—but denied Williams's prayer for
punitive damages. Presently, the defendants appeal the district court's findings that
they conducted meaningless Ad. Seg. review hearings and its nominal-damages
computation. Williams cross-appeals, urging that the district court erred in failing to
find the fifth defendant liable and in denying Williams compensatory and punitive

1
The record reflects that, while in Ad. Seg., an ADC inmate is confined in
isolation for 23 hours of the day and, depending on one's classification, in a cell with
a solid door that lacks any window through which the inmate can view passers by.
ADC allots an Ad. Seg. inmate one hour per day to exercise outside in a cage located
in the prison yard. Additionally, as the magistrate judge summarized in his findings
of fact, "[w]hile an inmate is housed in [Ad. Seg.], he/she is housed in a separate area
of the institution and receives mail/television/radio privileges. Meals are routinely
served in the cells and inmates are provided shower opportunities no less than three
times per week." Williams v. Norris, 721 F. Supp. 2d. 824, 828 (E.D. Ark. 2010).

-2-
damages. For the reasons that follow, we reverse and remand the district court's
nominal-damages award as improperly computed. We affirm the remainder of the
district court's disposition.

I. Background
A. Williams's Institutional History with ADC
In 1981, Williams began serving a life sentence without the possibility of
parole following his conviction for murder. In 1982, just one year after commencing
his prison sentence, Williams was convicted of murdering a fellow inmate and
thereafter served 30 days in punitive segregation and one and one-half years in Ad.
Seg. Subsequently, in July 1983, the ADC released Williams into the general
population at the Tucker Maximum Security Unit ("Tucker Max"), where he
continued serving his life sentence without major incident until 1995. In December
1995, a fellow inmate attacked and injured Williams while Williams was performing
his assigned duties in Tucker Max's kitchen. Prison officials believed that this attack
stemmed from Williams's suspected drug "trafficking and trading" activities at Tucker
Max, and that the altercation may even have resulted from a "drug deal gone bad."

In December 1995, immediately following this attack, ADC officials placed
Williams in Ad. Seg.—ostensibly for his own protection—where he ultimately
remained continuously, and without interruption, for nearly 14 years until March 13,
2009.2 In contrast, Williams's attacker served only 56 days in Ad Seg.

2
In the first appeal in this matter, this court recognized that Williams's three-
year sojourn in Utah—where he also resided in Ad. Seg.—is attributable to ADC for
Due Process purposes. See Williams, 277 F. App'x at 648 n.1 (noting, parenthetically,
that "separate segregation sentences should be aggregated for purposes of due process
inquiry when they constitute sustained period of confinement" (citing Giano v. Selsky,
238 F.3d 223, 226 (2d Cir. 2001))).

-3-
 B. Overview of ADC's Ad. Seg. Policy
Throughout Williams's time in Ad. Seg., ADC maintained essentially the same
written policy on the administration of Ad. Seg. and uniformly provided that

[t]he Institutional Classification Committee . . . may place an inmate in
administrative segregation if his/her continued presence in the general
population poses a serious threat to life, property, self, staff, or other
inmates. Also, inmates who threaten the security or orderly running of
the institution may be segregated.

ADC's Ad. Seg. policies mandated that Williams be afforded: (1) a hearing before the
Classification Committee; (2) notice of that hearing at least 24 hours prior thereto;
and (3) an opportunity to appear at the hearing and make any statement desired and
present documentary evidence, including witness statements. At the conclusion of
these proceedings, the Classification Committee recommends by majority vote
whether an inmate should be placed (or, if applicable, remain) in Ad. Seg. The inmate
must "be advised of the reasons of his/her administrative segregation in writing and
a copy of the reasons will be maintained in the inmate's institutional file. All
decisions may be subject to review and approval or disapproval by the Warden or
his/her designee." Additionally, the Classification Committee must review the status
of an inmate confined in Ad. Seg. every 30 days. The Classification Committee is
routinely composed of the warden, assistant warden, chief of security, a member of
mental health, and a "classification officer." The warden, however, possesses
complete authority to approve or deny the Classification Committee's
recommendation. Also, Mental Health staff must independently review the inmate's
status every 30 days. Finally, ADC's Ad. Seg. policies provide as follows:

No inmate shall remain in a segregation classification for more than one
year unless he has been personally interviewed by the Warden at the end
of one year and such action is approved by him. At the end of the second
and each additional year that an inmate remains in a segregation

-4-
 classification, he must be personally interviewed by both the Warden
and the Deputy/Assistant Director, who will then determine whether or
not continuation in that status is necessary and/or appropriate.

C. The Instant Lawsuit
On February 16, 2005, Williams filed the instant lawsuit pro se in the United
States District Court for the Eastern District of Arkansas. Williams alleged that his
continued confinement in Ad. Seg. violated his constitutional rights under the
Fourteenth Amendment's Due Process and Equal Protection Clauses. Williams sued
pursuant to 42 U.S.C. § 1983 and sought equitable relief as well as monetary
damages. On August 22, 2006, the district court granted the defendants' motion for
summary judgment, but, on appeal, this court affirmed in part and reversed in part that
decision. Williams, 277 F. App'x at 650. Specifically, we affirmed the district court's
conclusion that Williams was not denied his rights under the Fourteenth
Amendment's Equal Protection Clause because "Williams made no showing that
parole-eligible inmates, death-row inmates, or other categories of inmates were
treated differently, despite being similarly situated, in a manner that bore no rational
relation to any legitimate penologicial interest." Id. at 650. Nevertheless, we
concluded that Williams's 13-year confinement in Ad. Seg. "constitutes an atypical
and significant hardship, . . . and thus he had a liberty interest protected by the Due
Process Clause." Id. at 648 (citing Sandin v. Conner, 515 U.S. 472, 483–87 (1995)).
Proceeding from this initial step in the two-step due-process inquiry, this court
explained that,

[o]nce a liberty interest is established, the next question is what process
is due. We conclude that, for an [A]d[.] [S]eg[.] inmate, the Constitution
requires no more than the process Williams received—reviews at 60-day
intervals at which Williams could make statements and present
evidence, and annual meetings with a warden—provided such reviews
were meaningful.

-5-
 We conclude, however, that there remains an unresolved
fact issue on this record as to whether Williams actually received
meaningful reviews, rather than sham reviews, as he contends.

Id. at 649 (emphases added) (internal citations omitted).

Accordingly, we remanded Williams's case for further proceedings consistent
with our opinion. Consequently, on April 6, 2009, the magistrate judge commenced
a bench trial, but after receiving only three witnesses, "held the case in abeyance for
the purposes of appointing counsel to represent [Williams], and to address the issue
of the absence of one of [Williams]'s requested witnesses." Williams, 721 F. Supp. 2d
at 828. Subsequently, on April 29, 2009, the district court appointed counsel to
represent Williams, and the magistrate judge conducted a three-day bench trial on
February 2–4, 2010.

Following the bench trial and court-ordered post-trial briefing, the magistrate
judge issued its "Proposed Findings and Recommendations," finding therein "that the
reviews conducted under the auspices of these defendants were not 'meaningful' and
therefore, that [Williams]'s due process rights were violated by his continued
incarceration in [Ad. Seg.] from 1999-2009."3 Id. at 841. Based on the magistrate
Judge's analysis, the only defendant immune from liability is Defendant Chief Deputy
Director Ray Hobbs ("Dir. Hobbs"). The magistrate judge "f[ound] that his
participation in five director's reviews over the course of plaintiff's stay in [Ad. Seg.]
was not sufficient to impose liability in this matter." Id. Finally, with respect to
damages, the magistrate judge found: (1) that Williams was not entitled to
compensatory monetary damages because he failed to show any physical injury that
resulted from his time in Ad. Seg., a showing that the Prison Litigation Reform Act

3
As already noted, Williams's 1996–1999 tenure in Utah—where he was also
confined in Ad. Seg.—is attributable to the defendants for due-process purposes. See
supra n.2.

-6-
(PLRA) sets as a prerequisite for the recovery of compensatory money damages, id.
at 841; (2) that, in the absence of actual damage, Williams was entitled to nominal
damages of $4,846.00, calculated at $1.00 for every day that, according to Williams's
trial testimony, he was confined in Ad. Seg., id. at 841–42; and (3) that Williams was
not entitled to punitive damages because the magistrate judge "d[id] not find that the
defendants' decisions to keep plaintiff in [Ad. Seg.] were motivated by evil intent, or
reckless or callous indifference to plaintiff's rights," id. at 842.

The district court adopted the magistrate judge's recommendations, limiting its
discussion to the magistrate judge's nominal-damages calculation. Specifically, the
district court stated as follows:

Citing this Court's determination of nominal damages in Fegans v.
Norris, 4:03CV00172 (August 25, 2006) and the Eighth Circuit's
opinion affirming the award, Judge Jones recommended that the Court
award Williams nominal damages in the form of $1 per day of his [Ad.
Seg.] status. While the law is not entirely clear as to whether nominal
damages of $1 per violation or $1 total is the correct calculation of
nominal damages in prisoner cases, the Court again adopts the view that
nominal damages may be based on a per violation basis. See Royal v.
Kautzky, 375 F.3d 720, 723 (8th Cir. 2004).

Id. at 826 (emphasis added).

II. Discussion
Defendants appeal the district court's liability finding as well as its nominal-
damages award. Williams cross-appeals the district court's finding of no liability as
to Hobbs and also its denial of compensatory and punitive damages.

-7-
 A. Williams's Due Process Claim
In their first point on appeal, Warden Gregory D. Harmon ("Warden Harmon"),
Assistant Warden James ("Ass't Warden James"), Warden Grant Harris ("Warden
Harris"), and Assistant Warden Tim Moncrief ("Ass't Warden Moncrief") urge that
the district court clearly erred in finding their administration of Williams's Ad. Seg.
review process was not meaningful such that it denied Williams due process. In
response, Williams counters that the district court did not err in assigning them
liability, and that, moreover, the district court should have found Dir. Hobbs liable
as well. We hold that the district court did not clearly err in its factual findings as to
the meaningfulness of Williams's Ad. Seg. reviews and, accordingly, we will affirm
that portion of the district court's decision.

1. Overview of Due Process's Requirements in the Ad. Seg. Context
In the Ad. Seg. context, the determination of whether prison officials have
denied an inmate due process involves a two-step inquiry. Specifically, "'[the
plaintiff] must first demonstrate that he was deprived of life, liberty, or property by
government action.'" Orr v. Larkins, 610 F.3d 1032, 1034 (8th Cir. 2010) (per
curiam) (alteration in original) (quoting Phillips v. Norris, 320 F.3d 844, 846 (8th Cir.
2003)). "To prevail on such a claim based on prison housing, an inmate must show
that the segregation created an 'atypical and significant hardship on him in relation
to the ordinary incidents of prison life' to demonstrate that his liberty interest was
curtailed." Rahman X v. Morgan, 300 F.3d 970, 973 (8th Cir. 2002) (alteration
omitted) (quoting Sandin, 515 U.S. at 484). "Having determined that a liberty interest
does in fact exist in this case, we must next determine what process is necessary to
protect that interest." Clark v. Brewer, 776 F.2d 226, 232 (8th Cir. 1985).

On remand, the district court addressed "an unresolved fact issue . . .whether
Williams actually received meaningful reviews, rather than sham reviews, as he
contends." Williams, 277 F. App'x at 649 (emphasis added). Accordingly, on remand,

-8-
the trial evidence focused on whether Williams's 60-day Ad. Seg. reviews before the
Classification Committee were meaningful.

Whether a given process is meaningful for the purposes of the Due Process
Clause is a question of fact that we only reverse if clearly erroneous. See Kelly v.
Brewer, 525 F.2d 394, 400 (8th Cir. 1975)4 ("The district court found ultimately that
the review procedures . . . had not been meaningful and did not satisfy the
requirements of due process of law. That finding has substantial evidentiary support
in the record, and we cannot say that it was clearly erroneous." (emphases added)).
On appeal from a bench trial, we may reverse the district court's findings as to
meaningfulness only if we conclude that the district court clearly erred. Franklin v.
Local 2 of the Sheet Metal Workers Int'l Ass'n, 565 F.3d 508, 516 (8th Cir. 2009). Of
course, we review de novo the district court's legal conclusions. Id.

2. Williams's Ad. Seg. Reviews
We will review the evidence as it pertains to each defendant's individual
liability.

a. Warden Harmon
Warden Harmon supervised Williams's Ad. Seg. confinement at Tucker Max
from June 1999 until October 2002, when Warden Evans replaced him, and again,
from June 2006 to January 2008 at the East Arkansas Regional Unit (EARU). Warden
Harmon testified that, as part of his duties at both Units, he served on Williams

4
The dissent contends that "[t]he court errs in its uncritical reliance on Kelly
. . . a panel decision substantially undermined, if not overruled, by later Supreme
Court decisions." Nowhere in the defendants' briefs do they allege that the Supreme
Court overruled Kelly in its later decisions, nor do we find that this court or the
Supreme Court has done so. We also note this court's reliance on Kelly in its previous
reversal of the district court's grant of summary judgment against Williams. Williams,
277 F. App'x at 649, 650.

-9-
Classification Committee and retained final authority to approve or disapprove any
committee recommendation, a power that he routinely exercised. Warden Harmon
testified that he read ADC's Ad. Seg. Review policies and procedures and "tried to
apply it to the best of [his] ability," characterizing it as "self-explanatory."

In June 1999, upon Williams's arrival at Tucker Max from his three-year stint
in Utah, Williams was immediately placed in Ad. Seg. as a continuation of his Utah
housing status and pending the Classification Committee's formal determination.
Later that month, the Classification Committee voted that Williams remain in Ad.
Seg., checking a preprinted box on the Ad. Seg. Review Form which indicated that
Williams was a "threat to the security and good order of the institution." In the
portion of the Ad. Seg. Review Form reserved for a Committee-generated "Factual
Basis for Decision," the Classification Committee added in handwriting that an
assignment to Ad. Seg. was required "at this time for [illegible] own safety." In
September 1999, at Williams's next 60-day review, the Classification Committee once
again voted to retain Williams in Ad. Seg., this time stating no written reason for the
retention. Notably, at this review, the Classification Committee did not use the ADC-
promulgated Ad. Seg. Review Form, opting instead for a Form 33 or "cut slip,"5 a
yellow slip about the size of a half-sheet of looseleaf paper with limited space for any
Committee commentary and no space for any commentary Williams might have. Per
standard practice, the Classification Committee did not transmit a copy of this Form
33 to Williams.

5
The trial transcript reveals some initial confusion as to what function these
Form 33s, or "cut slips," served. Eventually, Warden Harmon and others clarified that
the Form 33s contain no specific details concerning the basis for the Committee's
decision to retain an inmate in Ad. Seg. and that they are not sent to inmates but
instead are inserted directly into inmates' institutional jackets, presumably leaving
inmates with no notice of their existence. Notably, a Form 33 does not even disclose
the Classification Committee's composition and, thus, how each member voted.

-10-
 On October 27, 1999, at Williams's next 60-day review, the Classification
Committee split down the middle, with two of its members voting for Williams to
remain in Ad. Seg., and two of its members, the Mental Health specialist and
Classification Officer, voting for Williams's release into general population. Warden
Harmon exercised his authority to cast the deciding vote that Williams remain in Ad.
Seg., once again citing that Williams posed "a threat to the security and good order
of the institution." At trial, Warden Harmon testified that he made this decision based
on the totality of the circumstances and Williams's entire institutional jacket and
history, specifically citing Williams's conviction for murdering a fellow inmate in
1982 and his past drug-dealing activities. Warden Harmon conceded that the only
evidence that he or the Classification Committee had about Williams's day-to-day
dealings up to that point had been positive but stressed nevertheless that he did not
restrict his examination of Williams to Williams's recent clean history. Instead,
Warden Harmon testified that he "looked at his whole history, his institutional file,"
and attached special significance to a letter from prison official George Brewer
labeling Williams as a known drug trafficker and trader, despite the fact that
Williams's only disciplinaries related to drugs did not involve drug trafficking, but
only possession.

Warden Harmon later admitted at trial that neither he nor any Classification
Committee member ever indicated in any Ad. Seg. Review form that Williams was
a suspected drug dealer. Indeed, Warden Harmon testified at trial that neither he nor
any Classification Committee member ever explained why Williams continued to
pose a threat to the security and good order of the institution. Moreover, Warden
Harmon contended that, as a correctional professional, he had to rely on any
intelligence he received concerning Williams's drug activities, verified or not. When
questioned about Williams seven years of clean ADC history before a particular
review by Warden Harmon, Harmon reiterated his prior deposition testimony that
attributed Williams's years of incident-free conduct to his isolation from the general

-11-
population. In Warden Harmon's words, "[s]even years of clean history is irrelevant
to your determination [of] whether somebody poses a threat to [the] security and good
order of the institution."

Finally, despite asserting throughout trial that he and the Classification
Committee relied heavily on Williams's entire institutional jacket when determining
whether to retain Williams in Ad. Seg., Warden Harmon conceded that "in [his] 32
years, [it has] never been the practice of anybody, to review a jacket before the
classification hearing," but only during. Notably, other witnesses testified that
Williams's institutional jacket was voluminous and that the Classification Committee
hearings typically lasted only "four or five" minutes. Moreover, Warden Harmon
admitted that, despite there being five members on a Classification Committee present
at Williams's Ad. Seg. hearings, only he possessed the institutional jacket during the
hearing, but he maintained that the institutional jacket was available for any
Committee member's review during that time should they request it. Still, Ruby
Evans, a former Classification Committee member and Classification Officer at
Varner Supermax, conceded at trial that she never looked at Williams's jacket at any
time, during a hearing or otherwise. Similarly, Warden Harmon admitted that he
never requested to review Williams's mental health file, which he conceded is kept
separate from Williams's institutional jacket.

b. Ass't Warden Moncrief
Ass't Warden Moncrief served as the assistant warden at Varner Supermax
from September 2003 until June 2006. Ass't Warden Moncrief's duties included
participating in the Classification Committee hearings and, in Warden Harris's
absence, serving as the warden's designee charged with approving or disapproving
the Classification Committee's recommendation. Most notably, on March 9, 2004,
Ass't Warden Moncrief fulfilled this role as Warden Harris's designee and vetoed the
Classification Committee's recommendation that Williams be released out of Ad. Seg.

-12-
into the general prison population. Ass't Warden Moncrief checked the box on the
Ad. Seg. Review Form indicating that Williams posed "a threat to the security and
good order of the institution." After this March 9, 2004 veto, the Classification
Committee voted consistently that Williams remain in Ad. Seg. through Moncrief's
departure from ADC in 2005.

Much like Warden Harmon, Ass't Warden Moncrief confirmed that, under his
supervision, the Classification Committee typically did not expound on its reasons
for keeping Williams in Ad. Seg., opting instead to simply check the box on the Ad.
Seg. Review Form labeled "threat to the security and good order of the institution."
Moreover, the Classification Committee declined to explain what evidence of
Williams demeanor or behavior supported this conclusion. Additionally, Ass't
Warden Moncrief conceded that, on March 9, 2004, when he vetoed the
Classification Committee's recommendation, he didn't review Williams's institutional
jacket and likely would not do so during a routine 60-day Classification Committee
meeting. Ass't Warden Moncrief believed that, "in most cases," "once a threat to
security is always a threat to security." However, Ass't Warden Moncrief admitted
that Williams had always been polite and neither volatile nor violent towards him but
declared that, even if Williams had "been the perfect model citizen" or "model
prisoner," he would still vote to keep Williams in Ad. Seg. Finally, in the presence
of the very Classification Committee that he supervised and over which he wielded
veto power, Ass't Warden Moncrief told Williams that as long as he was the assistant
warden, his vote—in most cases, the dispositive one—would be for Williams to
remain in Ad. Seg.

c. Ass't Warden James
Ass't Warden James was the assistant warden at Tucker Max from June 2001
until February 2007, and part of his duties included conducting Classification
Committee hearings. Specifically, Ass't Warden James participated in four

-13-
Classification Committee hearings throughout 2001 and 2002, voting to retain
Williams in Ad. Seg. each time. As the reason for not voting to release Williams,
Ass't Warden James testified at trial that, "[a]fter review of all the factors, it just—you
know, based on–in 2001, I would have had—what 16 years worth of experience.
Based on my correctional experience, it did not seem to be a prudent thing to do."
Additionally, Ass't Warden James testified that he suspected that Williams was the
"kingpin" behind a majority of the contraband that moved through Ad. Seg. as well
as general population, though he admitted that this was speculation. Finally, Ass't
Warden James asserted that he feared for Williams's safety because of the 1995 attack
he suffered at the hands of another inmate, but Ass't Warden James conceded that the
inmate's identity, location, or release condition was unknown.

d. Warden Evans
From October 2002 until September 2003, Warden Evans was the warden of
Tucker Max while Williams was housed there. Warden Evans testified that he did not
specifically recall presiding over Classification Committee hearings involving
Williams, but his signature appears on many hearing forms. These hearings occurred
on October 23, 2002, February 26, 2003, March 26, 2003, April, 24, 2003, May 21,
2003, June 25, 2003, and July 30, 2003. During those hearings, the committee
recommended that Williams remain in Ad. Seg., usually for the stated reason that
Williams continued to be a threat to the good order and security of the institution.
Still, on a couple of occasions, the Classification Committee checked the box on the
Ad. Seg. Review Form indicating that Williams demonstrated a "chronic inability"
to adjust to general population. At trial, Warden Evans admitted that these isolated
instances in which the Classification Committee checked the "chronic inability" box
constituted clerical errors because Williams had no occasion to exhibit a chronic
inability to adjust to general population given that he had never been released into
general population. As the district court observed in its Findings of Facts and
Conclusions of Law, Warden Evans "testified to no single incident or fact that came

-14-
into play in his decisions to continue Williams in Ad. Seg." and simply averred that
"the decisions were based on the totality of information available to him at the time."
Williams, 721 F. Supp. 2d at 832. Indeed, as Warden Evans testified,

I am not aware of a single incident or fact that I would be willing to
testify in this court today that I made to continue him on segregation. I
will say in this court today that the decisions that I made were based on
the information that was available to me at the time, the totality of the
information, not just that day or that particular time.

Warden Evans maintained at one point in his testimony that, "[a]t sometime in the
past, I am absolutely certain that I have looked at Inmate Williams'[s] record. I cannot
tell you today when that happened or under what circumstances. . . . Or how much of
it I looked at. I can't tell you that today." Still, at other points in his trial testimony,
Warden Evans conceded that he never reviewed Williams's institutional jacket.

e. Warden Harris
Warden Harris has been the warden at Varner Supermax since February 2004.
Williams was incarcerated there from February 2004 until June 2006 and from
January 2008 until the present. Warden Harris was absent from the Classification
Committee hearing in March 2004, when Ass't Warden Moncrief overruled the
committee's recommendation to release Williams into general population. Moreover,
at trial, Warden Harris stated he was not even aware of Ass't Warden Moncrief's veto
until after April 2006. Warden Harris attributed his ignorance to arriving at Varner
less than a month prior to the March 2004 hearing. Still, Warden Harris conceded that
he could have learned of the matter at any time had he reviewed the Classification
Committee's Ad. Seg. Review Form. Warden Harris participated in the committee
hearings on June 16, 2004, August 19, 2004, and October 21, 2004, when the
recommendations were to keep Williams in Ad. Seg. as a threat to the security and
good order of the institution. At trial, Warden Harris conceded that the only negative

-15-
information about Williams that he ever received was from Ass't Warden Moncrief,
who reminded him that Williams had been convicted for murdering a fellow inmate
at the Cummins Unit some 18 years prior. Nevertheless, Warden Harris asserted that
Williams's record of eight years' clean history likely was attributable to his extended
stay in Ad. Seg.

At the January 2005 Classification Committee hearing, which Warden Harris
attended, the Classification Committee (including Warden Harris) voted to deny
Williams's request for release to general population, offering no written reason.
Warden Harris was also present at the Classification Committee's hearings in March
2005 and April 2006, when Williams's request was again denied. On both occasions,
the Classification Committee checked the box on the Ad. Seg. Review Form, which
indicated that Williams remained a threat to the security and good order of the
institution. However, in June 2006, the Classification Committee recommended that
Williams be released upon transfer. Warden Harris testified at trial that this meant
that if ADC transferred Williams to another unit, that unit would have the option to
release him to the general population. Nevertheless, when ADC transferred Williams
to EARU soon thereafter, EARU placed Williams in its own Ad. Seg., where he
remained for the duration of his stay there.

Williams returned to Varner in January 2008, and, according to Warden Harris,
was assigned to Ad. Seg. due to his past history, although Warden Harris conceded
that, to his knowledge, Williams had maintained a clean disciplinary record while at
EARU. On February 20, 2008, Warden Harris signed off on a subordinate's proposal
to assign Williams to work in the laundry as part of a "step-down" program, whereby
he would work in the Unit during the day and be locked down at night. Williams
performed acceptably in this "step-down" program, but the Classification Committee
continued to recommend that he remain in Ad. Seg., in March 2008, April 2008, July
2008, and December2008. Warden Harris was absent from the July 2008 meeting,

-16-
where the Classification Committee noted that Williams had been on special
assignment for 120 days and recommended that Williams be referred to general
population. Warden Harris averred at trial that he rejected this recommendation but
conceded that there is no Ad. Seg. Review Form or other type of document reflecting
this decision. Moreover, Warden Harris admitted that he cannot recall communicating
it to Williams, though he was sure that he would have. In February 2009, the
committee voted for Williams to remain on Ad. Seg. but that he would be reviewed
for release from Ad. Seg. in March. Warden Harris was not present at that meeting.
He was present in March 2009, however, when the committee approved Williams's
release into general population. Warden Harris maintained at trial that he did not vote
for Williams's release from Ad. Seg. prior to that date because, after considering the
totality of Williams's behavior while incarcerated, he was not confident that Williams
was ready for general population. Furthermore, Warden Harris asserted that the
absence of documentation does not mean an absence of legitimate concerns or
legitimate investigations. Finally, Warden Harris continues to be concerned that
Williams is "walking a fine line."

f. Dir. Hobbs
Presently, Dir. Hobbs is the acting director of the ADC, effective January 1,
2010. Prior thereto, Dir. Hobbs was chief deputy director for over five years. Pursuant
to the ADC Ad. Seg. policy, Williams was entitled to an annual review by the deputy
director after two years of Ad. Seg. detention. In September 2002, Williams filed a
grievance complaining that he had not received a director's review despite having
been in Ad. Seg. since June 1999. Dir. Hobbs denied Williams's grievance, informing
Williams that he was in error and that he had received all the director reviews to
which he was entitled. However, at trial, Dir. Hobbs testified that his response was
incorrect because it was premised on his own misbelief that a deputy director had
reviewed Williams in October 2001. On November 18, 2005, after Dir. Hobbs learned
of the error, he emailed his staff, instructing them to "review all ad seg inmates at

-17-
your unit to ensure that no inmate is overlooked for his or her annual director's review
per policy."

Williams's first director's review was conducted on December 30, 2002, after
which Dir. Hobbs concurred in the committee's decision to retain Williams in Ad.
Seg. because he posed a threat to security. Williams's next director's review was not
conducted until April 2005. Following this review, Hobbs voted for Williams to
remain in Ad. Seg. In April 2006, Dir. Hobbs again met with Williams and the
Classification Committee, at which time he noted his desire to review Williams's
status in 60 days. Dir. Hobbs testified at trial that he could not recall why he wished
to visit with Williams again in 60 days. The subsequent meeting never occurred. The
next two director's reviews were held in December 2007 and February 2009, at which
the committee voted to retain Williams in Ad Seg. Dir. Hobbs was absent from the
March 2009 meeting, which resulted in Williams's release into general population,
but Warden Harris contacted him to solicit his approval of the release. Dir. Hobbs
testified that, at some point, he conversed with the unit psychiatrist, Dr. Kelly, who
told him plaintiff was calculating and could strike at any time. Still, Dir. Hobbs
testified that Williams's behavior improved during the "step-down" program. Finally,
Dir. Hobbs testified that when he reviewed Williams's status during the annual
reviews, he took into consideration Williams's institutional file, his adjustment, job
assignments, comments from supervisors, and everything in Williams's file.

3. Meaningfulness of Williams's Ad. Seg. Reviews
After review of this record, we conclude that the district court did not clearly
err in finding that Williams's Ad. Seg. reviews, as administered by Warden Harmon,
Ass't Warden Moncrief, Ass't Warden James, Warden Evans, and Warden Harris,
were not meaningful as the Due Process Clause requires.

-18-
 Our decision in Kelly is the most apposite circuit precedent discussing the Due
Process meaningfulness of Ad. Seg. reviews. In that case, we reviewed the Iowa State
Penitentiary's decision to administratively segregate two inmates—one who stabbed
(non-fatally) a prison guard and another who murdered a prison guard. 525 F.2d at
396. In Kelly, we were "concerned . . . ultimately with the constitutionality of the
continued confinement of the plaintiffs as individuals in indefinite administrative
segregation after their respective convictions in the state courts." Id. at 399. The Kelly
court "recognize[d] at the outset . . . that it is not the function of federal courts to
embroil themselves unduly in matters of prison administration or of the classification
of convicts or prison security." Id. Rather, "[i]n those areas much must be left to the
discretion of prison administrators, and in a given case a federal court should go no
further than constitutional necessities require." Id. This squarely comports with the
Supreme Court's subsequent admonitions that "'a prison's internal security is
peculiarly a matter normally left to the discretion of prison administrators.'" Hewitt
v. Helms, 459 U.S. 460, 474 (1983), abrogated on other grounds by Sandin, 515 U.S.
at 483 (quoting Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981)).

Notably, Kelly distinguished between "punitive" and "administrative"
segregation, noting that the latter "is not punitive" as it "looks to the present and the
future rather than to the past." Kelly, 525 F.2d at 399 (emphasis added). Accordingly,
Ad. Seg. "involves the exercise of administrative judgment in determining whether
an inmate should be segregated from the general population and predicting what he
will probably do or have done to him if he is permitted to remain in population or to
return to population after a period of segregation." Id. at 399–400. In making this
administrative judgment, "the ultimate decision in a given case must be left to the
informed judgment, including discretionary judgment, of prison administrators,
subject to review by their own superiors and ultimately by the courts in proper cases."
Id. at 400 (emphasis added).

-19-
 Speaking further, Kelly stressed that the constitutionality of administrative
segregation depends, "in individual cases[,] upon the existence of a valid and
subsisting reason or reasons for the segregation, such as protection of the segregated
inmates from other inmates, protection of other inmates and prison personnel from
segregated inmates, prevention of escapes and similar reasons." Id.

Moreover, it should be emphasized that the reason or reasons for the
segregation must not only be valid at the outset but must continue to
subsist during the period of the segregation. Conditions in prisons
change as they do everywhere else, and a reason for administrative
segregation of an inmate that is valid today may not necessarily be valid
six months or a year in the future.

. . . We think it should be said, however, that what would be
required for an intelligent and meaningful review of the case of one
inmate might not be required in the case of another.

Id. The Supreme Court concurs that "administrative segregation may not be used as
a pretext for indefinite confinement of an inmate" and that, accordingly, "[p]rison
officials must engage in some sort of periodic review of the confinement of such
inmates." Hewitt, 459 U.S. at 477 n.9.

Most pertinent for our purposes, the Kelly court, in affirming the district court's
enjoining the prison to revise its Ad. Seg. policy, stated the following:

As we read the record, including the stipulated testimony of the
Warden, he has never evaluated the case of either plaintiff outside the
framework of certain underlying penologicial views, which are as
follows [in pertinent part]: (1) That an inmate who is convicted of
killing or attempting to kill a member of the prison staff automatically
falls into a particular category which is separate and distinct from
categories occupied by other inmates, including inmates who have been

-20-
 convicted of killing or attempting to kill people in the outside world. (2)
That the conviction of the inmate in question ipso facto establishes,
prima facie, if not conclusively, that the inmate is a fit subject for
administrative segregation for a prolonged and indefinite period of time
and perhaps for the duration of his term of imprisonment. . . . Obviously,
those views working in combination make it virtually impossible for an
inmate like Kelly or Parras ever to persuade the Warden that he should
be returned to population. . . .

We recognize that an inmate who while in prison commits and is
convicted of what the counter-plan calls a "homicide offense" directed
at a guard or other member of a prison staff may present, at least for a
time and up to a point, a security problem that is not present in the case
of an inmate who has been sent to the Penitentiary for having committed
a similar offense in the free world. We do not think that that fact,
however, permits a prison warden constitutionally to apply the other
views that have been mentioned so as to keep the convicted inmate
confined indefinitely in administrative segregation.

***
. . . It does not follow . . . that the Warden can take the view that
the fact of the conviction in and of itself stands as a bar to the making
of a reasonable decision that at some future time the inmate poses no
threat to the security of the institution. This does not mean, of course,
that the Warden may not properly consider the underlying acts of the
plaintiffs and the fact of their convictions as historical facts of their
cases and as factors to be considered, among others, in determining
whether after a lapse of months or even of years it is safe to terminate
their segregated status. But, we do not think it permissible for the
Warden to give artificial weight to the convictions or to consider them
as determining or preponderant guidelines in deciding whether or not
plaintiffs can safely be returned to population.

Id. at 401–02 (emphases added).

-21-
 The district court did not clearly err in finding that Warden Harmon and Ass't
Warden Moncrief acted contrary to these admonitions in Kelly. Harmon consistently
testified at trial that seven-years' worth of clean history was irrelevant to him, and
Ass't Warden Moncrief confirmed that, even if Williams proved to be "the perfect
model citizen" or "model prisoner," his vote as Ass't Warden would always be that
Williams remain in Ad. Seg. in light of his past transgressions. This is precisely the
type of undue weight accorded to past facts that we explicitly forbade in Kelly, id. at
402, and in our first opinion in this matter, Williams, 277 F. App'x at 650 (citing
Kelly, 525 F.2d at 399–400).

Also, the district court did not clearly err in finding that all of the reviews that
Warden Harmon, Ass't Warden Moncrief, Ass't Warden James, Warden Harris, and
Warden Evans administered lacked the requisite meaningfulness because they failed
to explain to Williams, with any reasonable specificity, why he constituted a
continuing threat to the security and good order of the institution. As the Supreme
Court recognized in a case where it reviewed the Ohio State Penitentiary's (OSP)
assignment of inmates to Supermax facilities,

The New Policy [under review in that case] provides that an inmate must
receive notice of the factual basis leading to consideration for OSP
placement and a fair opportunity for rebuttal. Our procedural due
process cases have consistently observed that these are among the most
important procedural mechanisms for purposes of avoiding erroneous
deprivations. . . . Requiring officials to provide a brief summary of the
factual basis for the classification review and allowing the inmate a
rebuttal opportunity safeguards against the inmate's being mistaken for
another or singled out for insufficient reason. . . .

***
If the recommendation is OSP placement, Ohio requires that the
decisionmaker provide a short statement of reasons. This requirement

-22-
 guards against arbitrary decisionmaking while also providing the inmate
a basis for objection before the next decisionmaker or in a subsequent
classification review. The statement also serves as a guide for future
behavior.

Wilkinson v. Austin, 545 U.S. 209, 225–26 (2005).

Indeed, the same holds true here in Williams's case. And, although the
defendants stress that this court already reviewed ADC's written Ad. Seg. Review
Policy in our first opinion and stated that Williams received all the process he was
owed, they ignore our caveat that this process was sufficient provided that it was
meaningful. Williams, 277 F. App'x at 649. The ADC written Ad. Seg. Review policy
that this court approved explicitly provides that the inmate must "be advised of the
reasons of his/her administrative segregation in writing and a copy of the reasons will
be maintained in the inmate's institutional file." If, in fact, Defendants had
meaningfully adhered to this requirement, then this court could conclude that
Williams received adequate due process. However, as already recited, the record
shows that the defendants failed to apprise Williams of the reasons that he continued
to pose a threat to the security and good order of the prison. See Griggs v. Norris, 297
F. App'x 553, 555 (8th Cir. 2008) (unpublished per curiam) (upholding the
constitutionality of an Ad. Seg. policy, as applied to a particular prisoner, because,
among other procedural safeguards, "the classification committee stated in writing
its reasons for the placement" (emphasis added) (citing Wilkinson, 545 U.S. at
225–27)).

Finally, the defendants correctly assert that their suspicions about Williams's
drug activities were valid reasons to withhold release into general population. "In the
volatile atmosphere of a prison, an inmate easily may constitute an unacceptable
threat to the safety of other prisoners and guards even if he himself has committed no
misconduct; rumor, reputation, and even more imponderable factors may suffice to

-23-
spark potentially disastrous events." Clark, 776 F.2d at 233 (quoting Hewitt, 459 U.S.
at 474). Accordingly, "[t]he judgment of prison officials in this context . . . turns
largely on purely subjective evaluations and on predictions of future behavior." Id.
(internal quotations omitted) (quoting Hewitt, 459 U.S. at 474). Thus, defendant's
suspicions would have been material to their decision to retain Williams in Ad. Seg.,
id., if appropriate documentation were present and the same conveyed to Williams,
id. at 234 ("To the extent that new evidence, not previously relied upon by the state
in continuing an inmate's segregation, will be used as a basis for his continued
segregation, . . . a brief written description of this evidence should be provided to the
inmate.").

Accordingly, the district court did not clearly err in finding that defendants
failed to afford Williams a meaningful Ad. Seg. Review Process, and we affirm.
Similarly, regarding Williams's first point in his cross-appeal, we cannot conclude
that the district court clearly erred in finding Dir. Hobbs not liable for depriving
Williams of his liberty interests without due process of the law. Dir. Hobbs's
unrefuted trial testimony reflects that he inadvertently failed, on only two occasions,
to hold director reviews on an annual basis as ADC's Ad. Seg. policy required but
that, upon realizing the error, endeavored to impress upon his staff the importance of
scheduling such reviews. Moreover, Dir. Hobbs approved Williams's transition into
the "step-down" program and subsequently approved Williams's release from Ad.
Seg. Finally, Dir. Hobbs testified that when he reviewed Williams's status during the
annual reviews, he took into consideration Williams's institutional file, his
adjustment, job assignments, comments from supervisors, and anything in Williams's
file. On these facts, the district court did not clearly err in finding that Dir. Hobbs
conducted his annual director's reviews in a meaningful fashion.

B. Nominal Damages
The defendants also challenge the district court's award to Williams of $4,846
in "nominal damages" based on a $1-per-day calculation. The district court reasoned

-24-
that, in Feegans v. Norris, this court affirmed a $1,500 nominal damages award in a
prison litigation appeal as properly calculated on a "per violation" basis—in that case,
for each instance that prison officials denied Feegans, "a follower of the teaching of
the Assemblies of Yahweh," Kosher meals. 537 F.3d 897, 900 (8th Cir. 2008).

We construe Feegans differently. In that case, the prison officials did not
appeal the nominal-damages award as too high; rather, the inmate appealed the
nominal-damages award as too low. Id. at 908. In rejecting Feegans's argument, we
stated that, "[a]side from punitive damages, the [PLRA] limits recovery for mental or
emotional injury to nominal damages only." Id. (citing Royal v. Kautzky, 375 F.3d
720, 723 (8th Cir. 2004)). Accordingly, "[w]e conclude[d] that an award of $1.44 for
each constitutional violation is a sufficient nominal damage award, and that the
district court did not abuse its discretion in declining to award a greater amount." Id.
(citing Royal, 375 F.3d at 724). Thus, in Feegans, we had no occasion to consider
whether the $1.44-per-day award exceeded a nominal amount because the damage
award's "floor," rather than its "ceiling," was at issue.

Williams's reliance on our decision in Trobaugh v. Hall, 176 F.3d 1087 (8th
Cir. 1999) as an instance where we affirmed a per-day nominal-damages award for
time spent in administrative segregation is similarly misplaced. Our decision in Royal
squarely forecloses Williams's reliance on Trobaugh for the proposition that a dollar-
per-day award constitutes "nominal" damages irrespective of whether each day
constituted a constitutional violation. As we stated in Royal,

Faithfully following the PLRA, the district court appropriately awarded
Royal $1.00 in nominal damages for Royal's First Amendment violation.
Royal may not recover some indescribable and indefinite damage
allegedly arising from a violation of his constitutional rights.

***

-25-
 Trobaugh does not control Royal's case, because the Trobaugh court did
not confront the PLRA's limitation on recovery in prisoner suits.
. . . Finally, the Trobaugh court did not discuss whether the prisoner had
been released from prison, which would have taken this case outside of
[the PLRA], had it even applied. Because the Trobaugh court was not
limited by the PLRA, as we are in this case, we decline to extend the
holding from Trobaugh to cover a damage award subject to the PLRA's
limitations.

Royal, 375 F.3d at 724 & n.2 (internal citations omitted).

Here, Williams's argument for a per-day nominal-damages award is similarly
unavailing because he considers each day that he spent in Ad. Seg. to be a separate
constitutional violation. However, the constitutional violation that Williams asserts
is the denial of procedural due process because of meaningless review hearings.
Therefore, we consider the faulty 60-day Classification Committee hearings to be the
pertinent deprivation. Our precedents confirm that "nominal damages are the
appropriate means to vindicate constitutional rights whose deprivation has not caused
an actual, provable injury," and "one dollar is recognized as an appropriate value for
nominal damages." Corpus v. Bennett, 430 F.3d 912, 916 (8th Cir. 2005) (quotation
marks and citations omitted). Accordingly, Williams is entitled to no more than $1
for each procedurally defective Classification Committee hearing. Thus, based on this
"per-constitutional-violation" analysis, we will reverse the district court's $4,846
nominal-damages award and remand the case to the district court for the award's
recalculation.

C. Compensatory Damages
On cross-appeal, Williams maintains that the district court erred in declining
to award him compensatory damages. We review the district court's damages award
only for an abuse of discretion. Royal, 375 F.3d at 722. Williams acknowledges in his

-26-
brief that, "[g]enerally speaking, the PLRA requires an inmate to make a showing of
physical injury before being entitled to recover emotional distress damages," (citing
42 U.S.C. § 1997e(e)), but maintains that "the record is also clear that Williams
suffered physical injury directly as a result of his status in [Ad. Seg.]"

Contrary to Williams's contention, the district court did not abuse its discretion
in declining to award Williams compensatory damages. The PLRA provides, in
pertinent part, that "[n]o Federal civil action may be brought by a prisoner . . . for
mental or emotional injury . . . without a prior showing of physical injury." 42 U.S.C.
§ 1997e(e). In Royal, "[w]e join[ed] the majority [of circuits]" to conclude that
Congress intended this provision to "limit[] recovery for mental or emotional injury
in all federal actions brought by prisoners." 375 F.3d at 723. As the predicate for his
purported entitlement to compensatory damages, Williams relies exclusively on the
following two injuries that he claims to have suffered while in Ad. Seg.: (1) a
dislocated shoulder resulting from ADC officials handcuffing his hands behind his
back, a security procedure that ADC officials implement only with Ad. Seg. inmates,
and (2) assorted injuries resulting from a fall that he suffered as ADC authorities
transported him down a stairwell in the separately housed Ad. Seg. unit. According
to Williams, he would not have suffered either of these injuries but for his
incarceration in Ad. Seg. However, the district court adopted the magistrate judge's
finding that "such injuries were not the direct result of his continued [Ad. Seg.]
incarceration." Williams, 721 F. Supp. 2d at 841. Based on the record, we cannot
conclude that the district court abused its discretion in this regard. Therefore, we
affirm the district court's denial of compensatory damages.

D. Punitive Damages
Finally, contrary to Williams's remaining contention in his cross-appeal, the
district court did not err in refusing to award him punitive damages. We review, under

-27-
a deferential abuse-of-discretion standard, the district court's decision to award or
withhold punitive damages in a § 1983 case. Royal, 375 F.3d at 724.

In determining whether to award punitive damages in a § 1983 case, the
factfinder must, as a threshold matter, find that a "'defendant's conduct is shown to
be motivated by evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.'" Id. (quoting Smith v. Wade,
461 U.S. 30, 56 (1983)). If the factfinder makes this threshold finding, it then must
consider whether to award punitive damages in light of punitive damages' twin aims:
to "(1) punish willful or malicious conduct; and (2) deter future unlawful conduct."
Id.

In the instant case, the district court found that the defendants' continued
retention of Williams in Ad. Seg. was not motivated by evil motive or intent, or
reckless or callous indifference to Williams's due process rights. Rather, the district
court found that, "although defendants truly believed that [Williams] was a danger to
the security and good order of the institution, such belief was improper." Williams,
721 F. Supp. 2d at 842. Much like we did in Royal, "we find no reversible error" here
"[g]iven the highly deferential standard of review." 375 F.3d at 724. We so find
because "the district court accurately stated and applied the appropriate legal standard
on punitive damages" and, "[a]s the factfinder, the district court found no 'evil motive'
or 'reckless or callous indifference' in [Defendants'] actions." Id. at 725. Williams has
not demonstrated that the district court abused its discretion.

III. Conclusion
Based on the foregoing, we affirm in part and reverse and remand in part.
Specifically, we reverse the district court's nominal-damages award and remand for

-28-
recalculation of nominal damages in a manner consistent with this opinion. We affirm
the remainder of the district court's decision.

LOKEN, Circuit Judge, dissenting.

I respectfully dissent from Parts II.A and II.B of the court’s opinion. The court
errs in its uncritical reliance on Kelly v. Brewer, 525 F.2d 394 (8th Cir. 1975), a panel
decision substantially undermined, if not overruled, by later Supreme Court decisions.
I would reverse the grant of nominal damages and direct entry of judgment in favor
of the defendant prison officials.

I.

Sandin v. Conner, 515 U.S. 472, 485-86 (1995), established that David
Williams’s due-process-protected liberty interest arose only because of the duration
of his administrative segregation. The Supreme Court directly addressed this duration
issue in Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983):

Of course, administrative segregation may not be used as a pretext for
indefinite confinement of an inmate. Prison officials must engage in
some sort of periodic review of the confinement of such inmates. This
review will not necessarily require that prison officials permit the
submission of any additional evidence or statements. The decision
whether a prisoner remains a security risk will be based on facts relating
to a particular prisoner -- which will have been ascertained when
determining to confine the inmate to administrative segregation -- and
on the officials' general knowledge of prison conditions and tensions,
which are singularly unsuited for 'proof' in any highly structured
manner.

Paying little heed to this controlling law, the court errs in relying on Kelly for
the following standards. First, the court errs in faulting defendants for the “undue

-29-
weight accorded to past facts that we explicitly forbade in Kelly.” Op. at 21.
Imposing this requirement is contrary to the above-quoted footnote in Hewitt and to
the Court’s extended discussion of the subjective task of assessing an inmate’s threat
to prison security, 459 U.S. at 474. In this regard, the proper standard was applied
by the Third Circuit in Shoats v. Horn, 213 F.3d 140, 146 (3d Cir. 2000): recognizing
that the issue is whether an inmate poses a continuing threat to prison security, the
court held that continued administrative segregation may be based solely on past
crimes “because predictions of likely future behavior based on a generally volatile
criminal character have been upheld by the Supreme Court,” citing Hewitt.

Second, the court errs in holding that prison officials may rely on suspicions
and subjective evaluations only “if appropriate documentation were present and the
same conveyed to Williams.” Op. at 23. Again, this is contrary to Hewitt, 459 U.S.
at 476-77. It also conflicts with the Court’s discussions of the risks to security that
may arise if prison officials must hold adversary hearings on such issues. See
Wilkinson v. Austin, 545 U.S. 209, 227-29 (2005). The court instead relies on Clark
v. Brewer, 776 F.2d 226, 234 (8th Cir. 1985). But Clark referred only to “new
evidence,” not opinions based upon rumor and suspicion, and it cited only Wolff v.
McDonnell, 418 U.S. 539, 564 (1974), a prison discipline case. I know of no
decision prior to this that has required an evidentiary inquiry into the “rumor,
reputation, and even more imponderable factors” on which prison administrators may
constitutionally rely in segregating an inmate. Hewitt, 459 U.S. at 474.

Third, the court errs by assuming that the “meaningful” periodic review
required by Kelly, 525 F.2d at 400, must be anything more than the review required
by Hewitt -- one that ensures the prison is not using administrative segregation “as
a pretext for indefinite confinement of an inmate.” 459 U.S. at 477 n.9.6 The error

6
The Eleventh Circuit did not make this improper assumption in Al-Amin v.
Donald, 165 F. App'x 733, 739 (11th Cir. 2006) (unpublished).

-30-
in requiring more was confirmed earlier this year, when a unanimous Court held that
procedural due process concerns “whether the constitutionally requisite procedures
[were] provided,” not whether they “produced the result that the evidence required.”
Swarthout v. Cooke,131 S. Ct. 859, 862-63 (2011). The presence of constitutionally
sufficient procedures is “the beginning and the end” of the due process inquiry, the
Court explained. Id. at 862. By focusing on whether defendants proved “a valid and
subsisting reason or reasons for the segregation,” op. at 19, quoting Kelly, 525 F.2d
at 400, the court crosses a line the Supreme Court has carefully drawn.

Fourth, the court loses sight of the proper, context-specific due process inquiry
mandated by Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). “It is axiomatic that
due process is flexible and calls for such procedural protections as the particular
situation demands.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S.
1, 12-13 (1979). Inmates are confined in administrative segregation for a variety of
reasons -- “to protect the prisoner’s safety, to protect other inmates from a particular
prisoner, to break up potentially disruptive groups of inmates, or simply to await later
classification or transfer.” Hewitt, 459 U.S. at 468. Relying on Kelly, the court
applies a one-size-fits-all approach to the question of periodic review procedures.
The duration of segregation determines the need for periodic review, and the nature
of that review may vary depending on the initial reason for segregation. When an
inmate is segregated for his own protection, as Williams was in 1995, no review is
likely needed until the danger subsides or the inmate requests review. For prolonged
segregation of inmates who “seek nothing less than to control prison life and to
extend their power outside prison walls,” the Court held that due process requires
informal, non-adversary procedures before the initial confinement but made no
mention of periodic review. Wilkinson, 545 U.S. at 227, 229. By contrast, when
administrative segregation is imposed to encourage good behavior, such as not trying
to escape, it may be reasonable to require that periodic reviews “give the prisoner
some idea of the requirements for, and his progress toward, more favorable
placement.” Toevs v. Reid, 646 F.3d 752, 758 (10th Cir. 2011).

-31-
 Fifth, the court errs in holding that whether a periodic review was “meaningful”
is a question of fact we review for clear error. Op. at 9, citing Kelly, 525 F.2d at 400.
“The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333 (quotation
omitted). Determining whether the process afforded an inmate “satisfied the
minimum requirements of the Due Process Clause,” Hewitt, 459 U.S. at 472, may
involve findings of underlying fact we review for clear error, such as whether a
disputed review session in fact occurred. Whether the procedures afforded were
constitutionally adequate, however, “is purely a question of law.” Peery v. Brakke,
826 F.2d 740, 743 (8th Cir. 1987); see Swarthout, 131 S. Ct. at 862. Here, we are
defining an adequate procedure as one that is meaningful. Therefore, whether a
particular review was meaningful is a question of constitutional law we review de
novo. Cf. United States v. Mendenhall, 446 U.S. 544, 551 n.5 (1980) (in determining
the issue of Fourth Amendment seizure, “the correctness of the legal characterization
of the facts appearing in the record is a matter for this Court to determine”).

II.

Applying the correct due process standards to the facts of this case, I conclude
that Williams was afforded constitutionally adequate periodic reviews prior to his
release from administrative segregation in March 2009. Of greatest significance is
Williams’s personal history:

• 1981: Convicted of murder; sentenced to life in prison without parole.
• 1982: Convicted of murder for death of another inmate.
• October 1982: Involved in violent altercation with guards.
• November 1982: Psychologist reports “he obviously enjoyed discussing
some of the murders he was involved in gruesome detail”; strongly
recommends he remain segregated due to “history of violence and
emotional instability.”

-32-
• February 1990: Major disciplinary violation involving drugs and
alcohol.
• January 1994: Major disciplinary violation involving drugs and alcohol.
Urine tested positive for cannabinoid.
• September 1994: Mental Health Services reports Williams “previously
diagnosed as psychotic.” Notes “some denial [but] history is strongly
positive for polydrug abuse.”
• December 1994: Major disciplinary violation; placed in administrative
segregation.
• January 1995: Major disciplinary violation involving drugs and alcohol.
• December 1995: Assaulted by other inmates; ADC officials suspect drug
trafficking; placed in administrative segregation for his own protection.
• January 1996: Transferred to Utah Department of Corrections for his
own protection.
• July 1996: Utah disciplinary conviction for theft of property, threats to
staff, and positive breath test.
• March 1999: Utah disciplinary conviction for alcohol abuse and
possessing shank.
• June 1999: Returned to ADC at his request.
• October 1999: ADC mental health evaluator advises Warden Outlaw,
“Williams is a known drug dealer and it is my professional belief that,
if released [from administrative segregation], he will return to drug
traffic and trading in drugs.”
• October 2000: Mental Health Services Segregation Review Form
describes Williams as “manipulative” and “malingering.”
• December 2000 - June 2002: four Mental Health Services Segregation
Review Forms describe Williams as “manipulative.” Two describe him
as “aggressive.”
• July 2001: Major disciplinary violation for possession of contraband
currency and marijuana.
• February 2002: Asks to enroll in anger management and substance abuse
treatment courses.
• October 2002: Major disciplinary violation for refusal to obey order to
be searched.
• November 2004: Major disciplinary violation for attempting to pass pills
and tobacco to another inmate.

-33-
 • January 2005: Major disciplinary violation for lying to staff (false claim
that his headphones were missing).

Given this long history of conduct posing a severe threat to prison security, and
Williams’s minimal liberty interest in being released from administrative segregation,
I conclude (i) he was constitutionally entitled to no more than annual periodic
reviews;7 (ii) it was reasonable to place the burden on Williams to persuade the
reviewing correctional officials that he was no longer a serious threat to prison
security if released into the general population; and (iii) due process required no more
than notice of such reviews, an opportunity to be heard informally, and a cryptic
response following the review advising if he had not met that burden. As the record
makes clear that defendants provided Williams frequent, non-pretextual reviews that
satisfied these procedural criteria, his right to procedural due process was not violated
by defendants’ failures to make the process more “meaningful.”

The Supreme Court has emphatically warned the courts of appeals that, if state
prison officials have afforded an inmate constitutionally adequate procedures in
making disciplinary and classification decisions, whether those procedures “are
properly applied . . . is no part of [our] business.” Swarthout, 131 S. Ct. at 863. In
my view, the court has failed to obey that command. I respectfully dissent.
______________________________

7
Cf. Wilkinson, 545 U.S. at 217, 230. Therefore, the court errs in awarding
nominal damages of more than $1 per year. The perceptive reader no doubt wonders
why we have not discussed the qualified immunity that so clearly protected
defendants from Williams’s damage claims. See, e.g., Toevs, 646 F.3d at 760-61;
Senty-Haugen v. Goodno, 462 F.3d 876, 888 (8th Cir. 2006). Defendants pleaded
and preserved this defense all the way to trial. The district court committed reversible
error in not addressing it, but counsel for defendants inexplicably forfeited the
defense by not raising it on appeal. That was an unfortunate blunder.

-34-