Debra Bayless et al. v. Bruce Beck et al.

ARKANSAS SUPREME COURT

No. 04-69

NOT DESIGNATED FOR PUBLICATION

DEBRA BAYLESS

Appellant

v.

BRUCE BECK, JOHN MAPLES, RITA MAXWELL, KEN OPPER, WACKENHUT CORRECTIONS CORPORATION, CAROLYN HALLER, LARRY NORRIS, ROBERT CLARK

Appellee

Opinion Delivered June 16, 2005

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, CIV 2001-735-2-3-5, HON. FRED D. DAVIS, III, JUDGE

AFFIRMED

PER CURIAM

The original complaint filed in this action alleged a class action on behalf of Debra Bayless and other plaintiffs. Bayless moved to sever her claims and the motion was granted by order entered November 14, 2003. The complaint asserted a cause of action under the Arkansas Civil Rights Act, Ark. Code Ann. § 16-123-105 (Supp. 2003), alleging, along with other claims, that the appeals process for disciplinary proceedings at the Ronald McPherson Correctional Facility in Newport from 1998 until July 1, 2001, violated the plaintiffs' due process rights because that process was not the same as the appeals process for other facilities under the Arkansas Department of Correction ("ADC") not operated by Wackenhut Corrections Corporation ("Wackenhut"). The individuals named in the complaint are employees of Wackenhut or the ADC.

The circuit court granted the defendant's motion for summary judgment in a separate order entered November 14, 2003, which dismissed the cause of action with prejudice as to all plaintiffs, and which found the claims were moot because Wackenhut no longer operated the Newport ADC facility. Appellant now brings her appeal of that order, raising one point for reversal asserting that her due process rights were violated by the inmate disciplinary proceedings and that summary judgment was granted in error.

We first note that the appellees assert appellant's abstract and addendum are deficient, although without specifying the relevant pleadings and exhibits that have been omitted. It is true that appellant has not included the complaint or any amendments to it. The appellees have not furnished any supplemental abstract or addendum for our use. We will, however, not require appellant to file a substituted abstract, brief and addendum to cure the deficiencies in conformance with Ark. Sup. Ct. R. 4-2(b), since it is clear on the record before us that appellant could not prevail. See Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam).

Without the complaint, we cannot properly address the issue of whether or not appellant's claims were moot, since we do not have those claims before us. However, we may affirm the circuit court's grant of summary judgment since it is clear from appellant's brief and her argument in support of reversal that she has made no showing of a constitutional violation of her right to due process as required to state a cause of action under the Arkansas Civil Rights Act. We accordingly affirm the grant of the motion for summary judgment, whether or not the circuit court announced the wrong reason. Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002).

Appellant's only argument on appeal is that she did state a cause of action with her claim that Wackenhut's disciplinary proceedings violated her constitutional rights. She asserts that because the ADC's regulations require three levels of appeal for inmate disciplinary proceedings, and the ADC allowed Wackenhut to operate the facility utilizing a two-level appeal process, her rights were violated. Summary judgment is granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002). We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. at 1004, 69 S.W.3d at 418. Here, viewing the evidence in the light most favorable to appellant, and accepting appellant's factual allegations, there was no constitutional violation.

As in Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998), this court may review the decisions interpreting the federal Civil Rights Act of 1871, 42 U.S.C. § 1983 for guidance. See Ark. Code Ann. §16-123-105(c) (Supp. 2003). We do so here to determine an appropriate standard for claims concerning allegations of due process violations based upon inmate disciplinary proceedings.

The Arkansas Civil Rights Act, Ark. Code Ann. §16-123-105 (Supp. 2003) provides a cause of action where there has been a "deprivation of any rights, privileges, or immunities secured by the Arkansas Constitution." Appellant alleges violation of her right to due process under the Arkansas Constitution, but her argument is premised upon the fact that the ADC did not provide her the process provided in its own regulations. Appellant argues that our constitution is violated by the ADC's violation of state statute, rather than arguing that the procedure applied to her failed to satisfy the minimum requirements of due process. She has essentially claimed a liberty interest in having state officers and those employed by the state follow state law. While appellant may have a liberty interest in the nature of her confinement, she does not have a liberty interest in the actual procedures to be administered. Kennedy v. Blankenship, 100 F.3d 640 (8th Cir. 1996). She has not provided any showing as to how the procedure, while different, was defective, other than some conclusory statements regarding other inmate's confusion. She does not assert that she was unaware of the procedure.

Nor does appellant present any showing of a substantive due process violation. Again, she makes only conclusory allegations of a violation of her substantive due process rights. In order to state a case for a substantive due process violation, appellant must show an atypical and substantive deprivation that was a dramatic departure from the basic conditions of her confinement. Id.; Sandin v. Conner, 515 U.S. 472 (1995). She has not asserted such a deprivation. Meritorious good time in Arkansas does not apply to reduce the length of a sentence. Ark. Code Ann. § 12-29-201(d) (Repl. 2003). Accordingly, Arkansas has not created a liberty interest in good time under the analysis in Wolff v. McDonnell, 418 U.S. 539 (1974). Because she has asserted no basis for a liberty interest in good time, administrative segregation or punitive isolation, appellant has not alleged facts to support a cause of action for a substantive due process violation.

Since appellant has failed to show that she could have stated facts in her complaint to support a cause of action under Ark. Code Ann. § 16-123-105 (Supp. 2003) for a due process violation, we must affirm the circuit court's grant of the motion for summary judgment.

Affirmed.