Darrell Duane Kincaid v. Jack R. Duckworth, Warden, Indiana State Prison

EAST, Senior District Judge.

Darrell Duane Kincaid (Kincaid) appeals from a final judgment entered on December 15, 1980 by the District Court dismissing Kincaid’s pro se 42 U.S.C. § 1983 complaint for failure to state a claim upon which relief could be granted. We note jurisdiction under 28 U.S.C. § 1291 and affirm.

Authority of the Indiana Department of Correction (Department) Over Inmates’ Classifications of Security

On July 11, 1975, Kincaid was sentenced by an Indiana state court to life imprisonment under Indiana Code (I.C.) § 35-13-4-1(a) (repealed effective October 1, 1977), which provided in pertinent part: “Whoever kills a human being either purposely and with premeditated malice . . . shall be imprisoned in the state prison for life.”

The 1976 revision of the Indiana Criminal Code, Acts 1976, P.L. 148 § 8, effective October 1, 1977, repealed the life imprisonment statute and substituted for it I.C. § 35-50-2-3 (1979), which provides in part:

Murder. — -(a) A person who commits murder shall be imprisoned for a fixed term of forty (40) years, with not more than twenty (20) years added for aggravating circumstances or not more than ten (10) years subtracted for mitigating circumstances; . . .

(b) [Provision for death sentence].

I.C. § 35-4.1-5-3(a) vests wide discretion in the Department regarding prison inmates’ designations of degree of security (maximum, medium or minimum) while imprisoned. Subsection (c) of that statute curbs the Department’s discretion by providing:

Notwithstanding subsections (a) and (b) of this section, a person convicted of murder or a Class A felony shall be assigned to maximum security for the first two (2) years of his commitment. After those first two (2) years, the department may change the degree of security to which the person is assigned.

The Department duly promulgated Regulation IV(C)(1) which, as a matter of prison policy, further curbed its discretion in the classification of security by providing:

Inmates serving a life sentence will be eligible for consideration by the Institutional Classification Committee for a minimum security assignment six (6) years from the date of the admission to the Department of Correction.

On August 13, 1979 (two years and a month after imprisonment), Kincaid submitted a Trusty or Change of Status Request to authorities at the Indiana State Prison by which he requested a minimum security or trusty status. This request was denied by authorities at the prison for the reason that he had not served six years of his commitment as required by Regulation IV(C)(1).

Issue on Review ¹

Kincaid contends on appeal that the full force and effect of Regulation IV(C)(1) deprives him of constitutional equal protection and due process guarantees in that the regulation, both on its face and as applied, arbitrarily treats inmates convicted of murder and sentenced to life imprisonment (like himself) differently and more harshly than inmates convicted of murder and sentenced to a term of years under the 1976 revised statute.² We disagree.

Equal Protection

Kincaid specifically argues that Regulation IV(C)(1) treats similarly situated groups differently in that he, as a person convicted of murder under the “old code” and serving a life sentence, is being treated differently from a person convicted of the same offense under the “new code” and serving a term of years.

As Kincaid noted, with the 1977 recodification, the Indiana legislature moved from life sentences for murder to sentences for a term of years. Kincaid urges an inference that, in so doing, the legislature intended to eliminate the difference between life sentences and sentences for a term of years. The argument is without merit.

Kincaid’s life sentence under the “old code” was mandated by statute, while the imposition sentences for murder under the “new code” ranging from ten to sixty years are discretionary with the state court, depending upon that court’s consideration of various statutory factors and circumstances.

Even under the “new code,” however, in some circumstances a death sentence is provided for. Thus, the revised Criminal Code did not inferentially or expressly mitigate prior life sentences.

It follows therefore that sentencing responsibilities are the obligation of the courts and the preservation of prison security is the obligation of the prison authorities. The well known and universally recognized prison security risks attending life termers are ample rational reasons to justify the four year differential for eligibility of discretionary consideration of an inmate’s request for a change in security status. The experience of prison authorities in maintaining prison security is reason enough for the adoption of Regulation IV(C)(1).

As the District Court noted:

States have traditionally had wide discretion in classification of prisoners. “Classification of inmates is a matter of prison administration and management with which federal courts are reluctant to interfere except in extreme circumstances.” Jones v. United States, 534 F.2d 53 (5th Cir.), cert. den., 429 U.S. 978 [97 S.Ct. 487, 50 L.Ed.2d 586] (1976); Young v. Wainwright, 449 F.2d [338] 339 (5th Cir. 1971); [citations]. This case does not present any extreme circumstances.

We conclude that the District Court did not err in rejecting Kincaid’s contention of unequal treatment under the Fourteenth Amendment.

Due Process

Kincaid claims that Regulation IV(C)(1) and the actions of the Department in denying him a reclassification of security encroached upon his constitutional right of due process. The claim is without merit.

In order for the due process clause to be applicable, there must be a protected liberty interest created by state law or regulation. Meachum v. Fano, 427 U.S. 215, 223-24, 96 S.Ct. 2532, 2537-38, 49 L.Ed.2d 451 (1976). Thus, the inquiry in this cause must begin with an analysis of whether Kincaid had any liberty interest in the minimum custody status for which he applied within the meaning of the due process clause.

Not every state action carrying adverse consequences for prison inmates automatically activates a due process right. Moody v. Daggett, 429 U.S. 78, 86-88, 97 S.Ct. 274, 278-279, 50 L.Ed.2d 236 (1976); Meachum v. Fano, 427 U.S. at 224, 96 S.Ct. at 2538.

Under Indiana law, state prisoners have no right to be assigned any particular security classification. The state has placed the decision to change the security classification of prisoners who have served two years solely within the discretion of the Department. Thus, any expectation an inmate may have in being considered for a lower security clearance is too insubstantial to rise to the level of due process protection. Meachum v. Fano, 427 U.S. at 228, 96 S.Ct. at 2540; Montanye v. Haymes, 427 U.S. 236, 243, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976); Hluchan v. Fauver, 480 F.Supp. 103, 108 (D.N.J.1979).

Kincaid’s reliance upon the Department’s reproduction of various regulations in the inmate handbook for an attack upon Regulation IV(C)(1) is misplaced. The regulations dealt with in the handbook are all those governing the procedures to be utilized in requesting a reclassification of security status and the Department’s determination of the merits thereof.

Kincaid’s predicament is not because the Department had failed to follow or misapplied any pertinent regulation, but solely because Kincaid was not yet eligible under Regulation IV(C)(1) to seek reclassification of his security status.

The District Court did not err in concluding that “[t]here is no expectation [of a liberty interest] rooted in [Indiana] law or regulations which create an obligation to reclassify” Kincaid on the basis of the due process clause.

The final judgment of the District Court is affirmed. Affirmed.

1 . In the District Court, Kincaid asserted an additional claim based on the Eighth Amendment. He does not, however, appeal the court’s dismissal of his Eighth Amendment claims, and that issue is therefore not before us.

2 . Kincaid concedes that since he has now served more than six years of his sentence, his claim for injunctive relief is moot. O’Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). See also Mawhinney v. Henderson, 542 F.2d 1 (2d Cir. 1976); Gardner v. Luckey, 500 F.2d 712 (5th Cir. 1974), cert. denied, 423 U.S. 841, 96 S.Ct. 73, 46 L.Ed.2d 61 (1975). The damage claims are not moot.