PRO SE
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH
DIVISION [NO. 60CV-18-738] HONORABLE MACKIE M. PIERCE, JUDGE
Leslie
Rutledge, Att'y Gen., by: Robert T. James, Ass't
Att'y Gen., for appellee.
SHAWN
A. WOMACK, ASSOCIATE JUSTICE
Malik
Muntaqim, an inmate of the Arkansas Department of Correction
(ADC), appeals the denial of his petition to proceed in forma
pauperis in a civil action requesting judicial review under
the Administrative Procedure Act (APA). He claims prison
officials initiated and conducted a disciplinary proceeding
against him in violation of his constitutional rights.
Because we conclude Muntaqim failed to sufficiently raise a
constitutional question, we affirm for reasons set forth
below.
I.
Factual Background
While
incarcerated at the Ouachita River Unit of ADC, Muntaqim
requested transfer to the Varner Unit. In that request, he
wrote that he "will not do a year class 4 at [Ouachita
River] before something crazy happens because staff here has
no respect for black people." When asked whether that
statement was a threat toward prison officials, Muntaqim
replied he was "just letting the major know . . .
something crazy will happen" if his transfer was not
granted. He was subsequently charged with a major
disciplinary violation for failure to obey staff orders,
insolence towards staff, and assault. After a hearing,
Muntaqim was found guilty of assault and insolence towards
staff. He received twenty days in punitive isolation and a
class reduction. He also lost commissary, phone, and
visitation privileges for sixty days.
Muntaqim
appealed his disciplinary conviction and alleged that prison
officials failed to comply with ADC disciplinary policy. His
administrative appeal was rejected as untimely. He also filed
multiple grievances stemming from the disciplinary process,
accusing prison officials of engaging in retaliatory conduct
motivated by racial animus and failing to comply with the
disciplinary policy. Those grievances were found to be
without merit.
Muntaqim
sought judicial review of his disciplinary charges under the
APA and petitioned to proceed in forma pauperis. He named
multiple ADC officials in their official and individual
capacities, claiming they failed to adhere to ADC
disciplinary policies. The circuit court denied that
petition, concluding that Muntaqim failed to state a
colorable cause of action and that ADC officials were
entitled to sovereign immunity. This appeal followed.
II.
Standard of Review
We
review a decision denying a petition to proceed in forma
pauperis for abuse of discretion. Muldrow v. Kelley,
2018 Ark. 126');">2018 Ark. 126, at 2, 542 S.W.3d 856, 858. The right to
proceed in forma pauperis in a civil action turns on the
petitioner's indigency and the circuit court's
satisfaction that the alleged facts indicate a colorable
cause of action. Ark. R. Civ. P. 72(c) (2017). The circuit
court must make a specific finding of indigency before
considering whether the underlying petition alleges a
colorable cause of action. Gardner v. Kelley, 2018
Ark. 212, at 2, 549 S.W.3d 349, 350. Because the court below
failed to make this finding, we must remand unless the record
shows the underlying cause of action cannot proceed as a
matter of law. Id. As to issues of law presented,
our review is de novo. Ashby v. State, 2017 Ark.
233, at 2-3.
Judicial
review of administrative complaints is generally unavailable
to ADC inmates. See Ark. Code Ann. §
25-15-212(a) (Repl. 2014). But this rule does not preclude
review of an asserted constitutional violation. Clinton
v. Bonds, 306 Ark. 554, 558, 816 S.W.2d 169, 172 (1991).
This exception is not triggered by conclusory allegations of
a constitutional violation. Smith v. Hobbs, 2014
Ark. 270, at 4 (per curiam). When an inmate challenges a
disciplinary proceeding and prison officials'
implementation of ADC policy, as Muntaqim does here, the
petition must allege a constitutional question sufficient to
raise a liberty interest. Id. Otherwise, the claim
cannot fall within the classification of claims subject to
judicial review. Id. Muntaqim contends that ADC
officials violated due process, equal protection, and the
First Amendment. Our de novo review of the record, however,
reveals that Muntaqim's petition clearly failed to
sufficiently raise a constitutional question.
III.
Due Process
Muntaqim
contends that ADC officials violated due process by failing
to adhere to ADC disciplinary and grievance policies. In
essence, Muntaqim claims a constitutional liberty interest in
having prison officials follow ADC policy. But those policies
do not create a liberty interest to which due process can
attach. See Munson v. Ark. Dep't of Corr., 375
Ark. 549, 552, 294 S.W.3d 409, 411 (2009) (per curiam)
(citing Kennedy v. Blankenship, 100 F.3d 640, 643
(8th Cir. 1996)). Rather, any alleged liberty interest must
be an interest in the nature of the prisoner's
confinement, "not an interest in the procedures by which
the state believes it can best determine how he should be
confined." Kennedy, 100 F.3d at 643.
A
liberty interest with respect to prison disciplinary actions
is not created by the "language of a particular [prison]
regulation" but is instead created by an evaluation of
the nature of the deprivation "in relation to the
ordinary incidents of prison life." Sandin v.
Conner, 515 U.S. 472, 481-84 (1995). Substantive due
process is triggered only when prison discipline imposes an
atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life. Id. at
484. Thus, in order for Muntaqim to assert a liberty
interest, he must show an atypical and substantive
deprivation that was a dramatic departure from the basic
conditions of his confinement. Id. at 484-85.
Muntaqim
does not contend the punishment imposed as a result of his
infractions was atypical. Nor can he. There is no liberty
interest protecting against a twenty-day assignment to
punitive isolation because it does not "present a
dramatic departure from the basic conditions of
[Muntaqim's] sentence." Id. at 485 (no
liberty interest protecting against thirty days in
segregation). Additionally, there is no liberty interest in
good time, class status, or the restricted privileges.
See Munson, ...