Joseph Hosna v. Michael Groose

___________
No. 94-3578
___________
Joseph Frank Hosna, *
*
Appellee, *
*
v. *
*
Michael Groose; David Dormire; *
Jon W. Kirk; Daniel Kempker; *
Robert Acree, *
*
Appellants. *
___________
Appeals from the United States
No. 94-3579 District Court for the
___________ Western District of Missouri.
Kelly Neal, *
*
Appellee, *
*
v. *
*
Michael Groose; Gerald Bommell; *
Jack Kirk, *
*
Appellants. *
___________
No. 94-3580
___________
Max D. Miller, *
*
Appellee, *
*
v. *
*
Michael Groose; David Dormire; *
Dick Moore; Steve Long; Gerald *
Bommell; Jack Kirk, *
*
Appellants. *
___________
No. 94-3649
___________
Joseph Frank Hosna, *
*
Appellant, *
*
v. *
*
Michael Groose; David Dormire; *
Jon W. Kirk; Daniel Kempker; *
Robert Acree, *
*
Appellees. *
*
-------------------- *
*
Donald E. Miller, *
*
Appellant, *
*
v. *
*
Michael Groose; Jon W. Kirk; *
David Dormire; Gerald Bommell; *
Daniel Kempker; Betty Jaeger; *
John Doe; Robert Faith; James *
Eberle, *
*
Appellees. *
*
-------------------- *
*
Kelly Neal, *
*
Appellant, *
*
v. *
*
Mike Groose; Gerald Bommell; *
Jack Kirk, *
*
Appellees. *
*
-------------------- *
*
Max D. Miller, *
*
Appellant, *
-2-
*
v. *
*
Michael Groose; David Dormire; *
Dick Moore; Steve Long; Gerald *
Bommell; Jack Kirk, *
*
Appellees. *
___________
No. 94-3686
___________
Donald E. Miller, *
*
Appellee, *
*
v. *
*
Michael Groose; Jon W. Kirk; *
David Dormire; Gerald Bommell; *
Daniel Kempker; Betty Jaeger, *
*
Appellants, *
*
John Doe, *
*
Robert Faith, *
*
Appellant, *
*
James Eberle, *
*
Defendant. *
___________
No. 95-1328
___________
Robert Don Arnold, *
*
Appellee, *
*
v. *
*
Dick Moore; Gail Hughes; Steve *
Long; Michael Groose, *
*
-3-
Appellants. *
___________
No. 95-1329
___________
Robert Don Arnold, *
*
Appellant, *
*
v. *
*
Dick Moore; Gail Hughes; Steve *
Long; Michael Groose, *
*
Appellees. *
__________
Submitted: December 12, 1995
Filed: April 4, 1996
__________
Before MAGILL, GOODWIN,* and MURPHY, Circuit Judges.
___________
MAGILL, Circuit Judge.
Joseph Hosna, Donald Miller, Kelly Neal, Max D. Miller, and Robert
Arnold (the Inmates) are prisoners housed in Missouri's Jefferson City
Correctional Center's (JCCC) administrative segregation unit.1 They
brought separate 42 U.S.C. § 1983 actions
*THE HONORABLE ALFRED T. GOODWIN, United States Circuit
Judge for the Ninth Circuit, sitting by designation.
1
Plaintiff James M. Boudreau has dismissed his cross-appeal,
and his case has been remanded to the district court for a hearing
on a motion to vacate. In addition, plaintiff Richard Seefeldt
transferred to Pacific Correctional Center during the course of
litigation, and the district court dismissed his claims as moot;
plaintiff Michael Saunders' action was dismissed under Rule 41(a)
on December 17, 1993.
-4-
against JCCC officials, seeking damages and injunctive relief for alleged
equal protection violations because they enjoyed fewer privileges than
inmates housed in protective custody. The district court consolidated the
cases and denied damages, but granted partial injunctive relief. JCCC
officials appeal the district court's grant of partial injunctive relief,
and the Inmates cross-appeal the denial of full injunctive relief. Because
we hold that no equal protection violation occurred, we reverse the
district court's grant of partial injunctive relief.
I.
JCCC is a maximum security prison housing approximately 2000 of
Missouri's most dangerous criminals. Prisoners are assigned to three
housing categories: general population, protective custody, and
administrative segregation. General population allows inmates the greatest
number of privileges. Inmates in general population may have food, changes
of clothing, televisions, and radios in their cells, and are allowed to
attend group religious services, work, visit the law library, attend
classes, eat in a cafeteria, have telephone access, have recreation with
others, and go to the canteen frequently. Inmates in protective custody
have much the same privileges as general population inmates, but for their
safety live in a communal setting completely segregated from the general
population inmates. Protective custody inmates have canteen privileges
twice per week.
Administrative segregation is the most restrictive confinement
setting. For their own and others' safety, inmates in administrative
segregation are housed in individual cells and kept separate from all other
inmates at all times. Administrative segregation inmates have very few
privileges. To reduce the likelihood of weapons being created or hidden,
the type and amount of personal property permitted to administrative
segregation inmates is severely limited. To reduce the possibility of
danger
-5-
by or to administrative segregation inmates, the inmates are allowed out
of their cells only three hours per week for recreation. When out of their
cells, inmates are handcuffed and escorted by guards. Inmates may not
attend classes, religious services, or group recreational activities, they
cannot work or visit the law library, they do not have telephone access for
personal calls, their visitation privileges are more restrictive than that
enjoyed by other inmates, and they have canteen privileges only twice per
month.
Inmates are assigned to administrative segregation for a variety of
reasons, including discipline, restraint of dangerous inmates and those
prone to escape, medical quarantine, and additional security for inmates
who would be unsafe in protective custody. The Inmates bringing this
action are housed in administrative segregation by their own request,
because they felt unsafe in both general population and protective
2
custody. They filed this lawsuit, arguing that they should be accorded
the same privileges as inmates in protective custody, because they are in
administrative segregation for their own safety rather than for
2
In a joint stipulation, the parties agreed that
Inmates who have requested assignment to administrative
segregation for protection at JCCC have done so because
they have incurred gambling debts and either cannot or
will not repay those debts, they have incurred debts for
drugs, they have become the subject of homosexual
advances or been assaulted, they have engaged in
prostitution and gotten into trouble, they have been
identified by other inmates as an alleged snitch, they
have received threats from other inmates for various
reasons including the nature of their crime or the victim
of their crime, and they have had a falling out with
their sexual partner.
Appellants' App. at 6.
-6-
disciplinary reasons.3 The Inmates sought a variety of injunctive relief,
including that they be allowed to have a greater array and quantity of
personal possessions in their cells.
The district court referred the case to a magistrate judge for an
evidentiary hearing. See 28 U.S.C. § 636(b)(1)(B). Following the hearing,
the magistrate judge determined that the JCCC officials had not violated
the Inmates' right to equal protection, and recommended that all relief be
denied. Assuming that the Inmates held in administrative segregation for
their own safety were similarly situated to inmates in protective custody,
the magistrate judge concluded that the limitations placed on the Inmates
in administrative segregation were rationally related to legitimate
penological interests. The magistrate judge found that
there is a direct correlation between the amount of property
possessed and danger. Through testimony, the parties revealed
that virtually any item possessed can be fashioned into a
weapon. Defendants showed ropes made out of paper bed sheets,
handcuff keys made from plastic silverware, and "stickers" made
from any type of metal or plastic, including disposable razors
and food cans, and other instruments, used to stab and cut
people. Typewriters, television sets and radios have been
disassembled and used as weapons and devices to jam door locks.
Inmates have been able to manufacture brass knuckles and zip-
guns. Knives are made from razor blades and wood. Cloth and
paper bags of any kind can be used as "Cadillacs," a means to
transport weapons or other items from one cell to another.
With a little ingenuity, any item can be dangerous and threaten
security. Even if an inmate did not use the item of property
to manufacture a weapon, another inmate could obtain the
property from that inmate and manufacture a weapon to use
against others. Furthermore, the more property contained in a
3
The Inmates essentially seek reinstatement of a fourth type
of custody, previously available at JCCC, known as "no-contact,
red-tag, protective custody." This combined the enhanced security
of administrative segregation with the greater privileges of
protective confinement. This fourth category was discontinued by
the JCCC because it was impracticable, ineffective, and created
additional risks to inmates.
-7-
cell, the more difficult it is to search for contraband which
might be used as a weapon, key or device to jam a lock. The
prison has a duty to protect not only the inmates, but also the
guards. The more property that is allowed, the harder it is to
provide security for everyone.
Report & Recommendation of Aug. 23, 1993, at 7.
The magistrate judge rejected the Inmates' contention that
restrictions on their property were irrational because they were victims,
rather than aggressors. The magistrate judge found that the Inmates "are
all dangerous individuals who have been convicted of serious offenses
involving violence." Id. at 8.4 The magistrate judge also found that
Plaintiffs demonstrated they had been able to work within the
system to obtain dangerous items such as shards of glass, soda
and tuna cans, bug spray, caustic cleaning supplies, razor
blades, marbles, a variety of metal objects and food stuffs.
Id. at 10.5
The magistrate judge concluded that "[i]f the court were to grant
plaintiffs' request that they be allowed additional property,
4
Inmate Arnold was convicted of first degree murder and escape
from confinement. Inmate Donald Miller was convicted as a
dangerous offender for forcible rape and first degree burglary.
Inmate Neal was convicted for rape, kidnapping and sodomy. Inmate
Hosna was convicted for forcible sodomy, forcible rape, armed
criminal action, and kidnapping. Inmate Max Miller was convicted
of first degree robbery and escape.
5
Despite the Inmates' demonstrated capacity for violence and
their continued threat to prison security, the limitations placed
on the Inmates are not punitive in nature. As found by the
magistrate judge, "[t]he harshness of the conditions in the no-
contact administrative segregation status are not a result of
defendants' desire to punish plaintiffs; rather, it is the
unfortunate result of plaintiffs' need for protection." Report &
Recommendation of Aug. 23, 1993, at 10.
-8-
it would merely increase the difficulty of providing security and would
likely increase the number and severity of assaults which could be
committed. Therefore, no violation of the equal protection clause has been
shown." Id.
Upon de novo review of the magistrate judge's Report and
Recommendation, the district court accepted the magistrate judge's findings
of fact, and held that the defendants were not liable for money damages
because they had not violated a well-established constitutional right. The
district court rejected, however, the magistrate judge's conclusion of law
that no equal protection violation had occurred due to the limitations on
the Inmates' in-cell property privileges. The district court held that
certain of the limitations imposed on the no-contact inmates
are not justified by safety or security concerns or are an
exaggerated response to such concerns. These no-contact
protective custody inmates are not being punished; therefore,
all reasonable efforts should be made to treat them on an equal
basis with other protective custody inmates, if such efforts
will not threaten the security or safety of the institution.
Order of Jan. 26, 1994, at 3-4. The district court remanded the case to
the magistrate judge to determine appropriate injunctive relief.
After a second hearing, the magistrate judge recommended the grant
of injunctive relief to meet some of the Inmates' requests. The magistrate
judge first recommended that the frequency of the Inmates' access to the
canteen be increased from once every two weeks to once every ten days. The
magistrate judge also recommended that the Inmates be allowed to have the
same quantity and type of food stuffs, stationary, and certain personal
hygiene products as prisoners in protective custody. This included, for
example, an increase in the number of Slim Jims from 0 to 6, bags of
cookies from 1 to 5, fried pies from 1 to 6, and tubes of
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toothpaste from 1 to 2. See Report & Recommendation of June 24, 1994, at
7; Appellants' App. at 61-62, 67 (Attachment Charts A and F).
The magistrate judge also determined that much of the injunctive
relief requested by the Inmates should be denied. The Inmates conceded
that there was no real discrepancy between the treatment afforded
protective custody inmates and themselves with regard to meals, bedding,
mail, hair care, laundry, and medical services. The magistrate judge found
that restrictions on the Inmates' visitation, religious services,
telephone, recreation, showers, access to the law library, and possession
of items other than food stuffs and underwear were rationally related to
legitimate security concerns.6
Both parties filed objections to the magistrate judge's Report and
Recommendation. Upon de novo review, the district court adopted the
magistrate judge's Report and Recommendation in full, and issued a
permanent injunction against the JCCC officials. The JCCC officials appeal
the district court's grant of injunctive relief, while the Inmates appeal
the district court's denial of full injunctive relief. In addition, Inmate
Arnold makes a pro se appeal of several issues.
II.
We review the district court's conclusions of law de novo, see More
v. Farrier, 984 F.2d 269, 271 (8th Cir.), cert. denied, 114 S. Ct. 74
(1993), and its grant of injunctive relief for abuse of discretion; see
F.T.C. v. Freeman Hosp., 69 F.3d 260, 267 (8th Cir.
6
The magistrate judge also found that the use of handcuffs
while escorting the Inmates out of their cells was justified by
security needs, and that requiring the Inmates to wear distinctive
jump suits to identify them as administrative segregation inmates
did not violate equal protection.
-10-
1995). "Abuse of discretion occurs if the district court rests its
conclusion on clearly erroneous factual findings or if its decision relies
on erroneous legal conclusions." International Ass'n of Machinists &
Aerospace Workers, Dist. Lodge 19 v. Soo Line R.R., 850 F.2d 368, 374 (8th
Cir. 1988) (en banc), cert. denied, 489 U.S. 1010 (1989).
III.
We begin our analysis by noting that it is not the role of federal
courts to micro-manage state prisons. See Klinger v. Department of
Corrections, 31 F.3d 727, 733 (8th Cir. 1994), cert. denied, 115 S. Ct.
1177 (1995). Instead, "federal courts ought to afford appropriate
deference and flexibility to state officials trying to manage a volatile
environment. . . . Such flexibility is especially warranted in the fine-
tuning of the ordinary incidents of prison life . . . ." Sandin v. Conner,
115 S. Ct. 2293, 2299 (1995) (citations omitted). In Procunier v.
Martinez, 416 U.S. 396, 404-05 (1974), overruled in part, Thornburgh v.
Abbott, 490 U.S. 401 (1989),7 the Supreme Court explained the basis for
this deference:
Traditionally, federal courts have adopted a broad hands-off
attitude toward problems of prison administration. In part
this policy is the product of various limitations on the scope
of federal review of conditions in state penal institutions.
More fundamentally, this attitude springs from complementary
perceptions about the nature of the problems and the efficacy
of judicial intervention. Prison administrators are
responsible for maintaining internal order and discipline, for
securing their institutions against unauthorized access or
escape, and for rehabilitating, to the extent that human nature
and inadequate resources allow, the inmates placed in their
custody. The Herculean obstacles to effective
7
In Thornburgh, the Supreme Court mandated greater deference
by courts to prison administrators' decisions regarding prisoners'
access to incoming correspondence than had been suggested by the
Martinez decision. See Thornburgh, 490 U.S. at 413-14.
-11-
discharge of these duties are too apparent to warrant
explication. Suffice it to say that the problems of prisons in
America are complex and intractable, and, more to the point,
they are not readily susceptible of resolution by decree. Most
require expertise, comprehensive planning, and the commitment
of resources, all of which are peculiarly within the province
of the legislative and executive branches of government. For
all of those reasons, courts are ill equipped to deal with the
increasingly urgent problems of prison administration and
reform. Judicial recognition of that fact reflects no more
than a healthy sense of realism. Moreover, where state penal
institutions are involved, federal courts have a further reason
for deference to the appropriate prison authorities.
(notations omitted). See also Turner v. Safley, 482 U.S. 78, 84-85 (1987);
Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 126 (1977).
Of course, "federal courts must take cognizance of the valid
constitutional claims of prison inmates." Turner, 482 U.S. at 84. The
Inmates bringing this action have a right to equal protection. See Lee v.
Washington, 390 U.S. 333, 334 (1968) (per curiam). Where, as here,
plaintiffs do not allege that they are members of a suspect class, we
review their claims under a rational basis standard. See Moreland v.
United States, 968 F.2d 655, 660 (8th Cir.) (en banc), cert. denied, 506
U.S. 1028 (1992). To prevail in their claims, the Inmates must prove that
"(1) persons who are similarly situated are treated differently by the
government, and (2) [that] the government [has failed] to provide a
rational basis for the dissimilar treatment." Id. (citing Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 439-41 (1985)).
We shall assume, without deciding, that the Inmates have met their
burden of proving that they are similarly situated to inmates in protective
custody. Cf. Divers v. Department of Corrections, 921 F.3d 191, 193 (8th
Cir. 1990) (per curiam) (equal protection
-12-
claims of protective custody inmates were not frivolous).8 We therefore
focus on the second step in the analysis, whether restrictions placed on
the Inmates are "reasonably related to legitimate penological interests."
Turner, 482 U.S. at 89.
The JCCC officials have attempted to prohibit administrative
segregation inmates' access to objects which could be used to either
create, conceal, or transport weapons or escape devices. The JCCC
officials' goal of maintaining security for inmates housed in
administrative segregation and for JCCC staff is clearly a legitimate
penological objective. See Bell v. Wolfish, 441 U.S. 520, 547 (1979)
("Prison administrators therefore should be accorded wide-ranging deference
in the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and to
maintain institutional security."). Our inquiry in this case is therefore
limited to whether the restrictions on the Inmates have a reasonable place
in the assurance of security at the JCCC, see More, 984 F.2d at 269, and
not whether defendants have shown a compelling reason for limiting the
Inmates to a specific number of fried pies and Slim Jims.
8
Because we conclude that the reasons given for dissimilar
treatment of the Inmates and protective custody inmates are
reasonably related to legitimate penological objectives, we need
not reach the issue of whether they are, in fact, similarly
situated. We are, however, concerned that the district court
presumed, because both the Inmates and protective custody inmates
were in specialized confinement settings for their own protection,
that they were necessarily similarly situated. While the reasons
that a prisoner is in a specific type of confinement may be
relevant to an equal protection analysis, cf. Moreland, 968 F.2d at
661 (persons in same halfway house for different reasons not
similarly situated), it is not determinative. Rather, courts must
focus "on whether the plaintiffs are similarly situated to another
group for purposes of the challenged government action." Klinger,
31 F.3d at 731; see also More, 984 F.2d at 271 (disabled inmates
similarly situated to nondisabled inmates for certain purposes, but
not for others).
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Inmates who reside in administrative segregation have been generally
identified as either being a particular danger to others, or being in
particular danger from others. Because of this, the security needs of this
unit are heightened, and every inmate must be construed as a potential
threat to every other inmate. See Report & Recommendation of Aug. 23,
9
1993, at 8-9. In addition, having variable rules for differing classes
of inmates within administrative segregation could lead to confusion and
dangerous errors by staff. Finally, allowing any inmate in administrative
segregation to have possession of prohibited objects increases the
likelihood that other, possibly more dangerous, inmates will acquire those
items.
JCCC officials had previously extended additional privileges to
inmates in the Inmates' circumstances, and concluded that "no-contact, red-
tag, protective custody" was not a workable alternative at the JCCC. When
creating policies "at an individual prison under the restrictions of a
limited budget, prison officials must make hard choices. They must balance
many considerations, ranging from the characteristics of the inmates at
that prison to the size of the institution" to create an optimal set of
privileges and restrictions. Klinger, 31 F.3d at 732. Second guessing
state prison administrators' decisions inhibits their willingness to
experiment and innovate, see id., and is not authorized by the Equal
Protection Clause. See New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per
curiam) (Fourteenth Amendment does not authorize the judiciary to "sit as
a superlegislature to judge the wisdom or desirability of legislative
policy determinations made in areas that neither affect fundamental rights
nor proceed along suspect lines").
9
While it is true that the Inmates are in administrative
segregation for their protection rather than as a direct result of
their own wrong-doing, this does not mean that they are harmless.
Rather, as the magistrate judge found, these Inmates have violent
pasts, and remain a possible risk to each other.
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We find nothing unreasonable nor exaggerated in limiting the type of
personal property in administrative segregation cells, because this
prevents the creation and transportation of weapons by administrative
segregation inmates. We find nothing unreasonable nor exaggerated in
limiting the amount of personal property in administrative segregation
cells, because this enables JCCC officials to more effectively search the
cells for contraband and weapons. In the aggregate, these regulations help
ensure the safety and security of both inmates and staff at the JCCC, and
are reasonable.10 Because these limitations on the Inmates are reasonable,
the Inmates' right to equal protection has not been violated. Because the
district court erred, as a matter of law, in holding that a constitutional
violation occurred, it abused its discretion in granting injunctive relief.
See International Ass'n of Machinists, 850 F.2d at 374.
IV.
Proceeding on appeal pro se, Inmate Arnold raises several additional
issues.11 First, Arnold argues that, because the district court did not
specify how it had conducted its de novo review, and because the district
court did not make specific reference to Arnold's pro se written
exceptions, the district court committed reversible error by failing to
conduct a de novo review of the magistrate judge's Reports and
Recommendations.
A district court must make a de novo review of a magistrate judge's
report and recommendation upon a party's written exceptions, see 28 U.S.C.
§ 636(b)(1). We presume that the
10
Similarly, restrictions on the Inmates' access to prison
resources and the requirement that they be handcuffed while out of
their cells are, as found by the district court, reasonable.
11
Arnold has also moved this Court to supplement the record in
these proceedings with affidavits from inmates incarcerated in
another Missouri prison. We deny the motion.
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district court has made a de novo review, however, unless affirmative
evidence demonstrates otherwise. Grinder v. Gammon, 73 F.3d 793, 795 (8th
Cir. 1996) (per curiam) (quoting United States v. Hamell, 931 F.2d 466, 468
(8th Cir.), cert. denied, 502 U.S. 928 (1991)). The district court
affirmatively stated that it had made such a review, see Order of Jan. 26,
1994, at 3; Order of Sept. 7, 1994, at 1, and Arnold has presented no
evidence that the district court failed to make a proper de novo review in
this case. Arnold's first claim of error is therefore denied.
Arnold also claims that the district court improperly granted the
JCCC officials qualified immunity for an alleged violation of his Eighth
Amendment right to be free from cruel and unusual punishment. Arnold
alleges that defendants violated the Eighth Amendment by offering him only
three hours of exercise per week in an enclosed area out-of-doors.12 A
"lack of exercise may be a constitutional violation if one's muscles are
allowed to atrophy or if an inmate's health is threatened." Whishon v.
Gammon, 978 F.2d 446, 449 (8th Cir. 1992). To prevail on his claim, Arnold
"had to show that the prison officials were deliberately indifferent to his
exercise needs." Id. at 448-49.
While not permitting inhumane conditions, "[t]he Constitution does
not mandate comfortable prisons . . . " Brown v. Nix, 33 F.3d 951, 955
(8th Cir. 1994). Requiring an inmate to exercise in an enclosed area is
not itself a per se violation of the Eighth Amendment, see, e.g., Peterkin
v. Jeffes, 855 F.2d 1021, 1031-32 (3d Cir. 1988), nor does a limitation of
three hours per week of out-of-cell exercise necessarily violate the
Constitution. See Whishon, 978 F.2d at 449 (forty-five minutes of exercise
per week not constitutionally infirm). Arnold stated in his complaint that
12
Arnold alleges that he is limited to a "dog-run" exercise
area that is 3 feet wide by 20 feet long by 7 feet high. Arnold
does not allege that he is physically unable to exercise in this
area.
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he refused to make use of the exercise opportunities that have been
provided to him, see Arnold Compl., Count II, ¶ 32, and any ill effects
arising from lack of exercise stem from his own, rather than defendants',
actions or inactions. Cf. Whishon, 978 F.2d at 449 (noting that plaintiff
had failed to use all the recreation time available to him). In light of
this, we cannot say that the district court erred in ruling in favor of the
JCCC officials on this issue.13
V.
We affirm the district court's grant of qualified immunity to
defendants and its denial of injunctive relief unrelated to in-cell
personal property. We reverse its grant of injunctive relief.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
13
Arnold also claims that JCCC officials were improperly
granted qualified immunity on the Inmates' claims for damages,
because the defendants had violated a clearly established
constitutional right. See Harlow v. Fitzgerald, 457 U.S. 800, 818-
19 (1982) (standard for qualified immunity). Because we hold that
the JCCC officials did not violate any of the Inmates'
constitutional rights, clearly established or otherwise, this issue
is without merit.
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