UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

___________________________

No. 96-50482 ___________________________

JEFFREY “ZEAL” STEFANOFF,

Plaintiff-Appellee,

VERSUS

HAYS COUNTY, TEXAS and PAUL HASTINGS, SHERIFF, in his individual and official capacity,

Defendants-Appellants.

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Appeal from the United States District Court For the Western District of Texas ___________________________________________________ September 24, 1998

Before DAVIS, WIENER and PARKER, Circuit Judges.

PER CURIAM:

Jeffrey “Zeal” Stefanoff was convicted of possession of

marijuana and sentenced by a jury to 180 days in the Hays County

Jail. Stefanoff was remanded to the custody of Hays County Sheriff

Paul Hastings in June 1993. In August 1993, Stefanoff requested

that Hastings grant him “good time” credit under a Texas statute

granting sheriffs the discretion to commute for good conduct the

sentences of inmates incarcerated in county jails. Hastings denied

his request. Stefanoff brought a § 1983 suit against Hastings and

Hays County, alleging that Hastings violated his right to equal protection by basing his refusal on Stefanoff’s election to have a

jury determine his punishment and that Hastings unlawfully

retaliated against him for exercising his First Amendment rights.

Hastings and Hays County moved for summary judgment on Stefanoff’s

equal protection and First Amendment claims on qualified immunity

grounds. The district court denied their motion, and they appeal.

A. Hays County’s Appeal

As an initial matter, we observe that municipalities are not

entitled to qualified immunity. See Leatherman v. Tarrant County

Narcotics Unit,

(1993). Accordingly, we do not

have jurisdiction over Hays County’s appeal.

B. Sheriff Hastings’s Claim

Determining whether an official is entitled to qualified

immunity is a two-step process. See Rochon v. City of Angola, La.,

(5th Cir. 1997). First, a court must determine

whether the plaintiff has alleged a violation of a clearly

established constitutional right.

Second, the court must

determine whether the official’s conduct was objectively reasonable

in light of clearly established law as it existed at the time of

the conduct in question.

An official is not entitled to qualified immunity if, at the

time the challenged action occurred, the federal law proscribing it

was clearly established not only as an abstract matter but also in

a more particularized sense such that the contours of the right are

2 sufficiently clear that a reasonable official would understand that

what he is doing violates that right. See Pierce v. Smith,

(5th Cir. 1997). Although to preclude qualified

immunity it is not necessary that the very action in question have

been previously held unlawful or that the plaintiff point to a

previous case that differs only trivially from his case, the facts

of a previous case must be “materially similar.”

. “For

qualified immunity to be surrendered, pre-existing law must

dictate, that is, truly compel (not just suggest or allow or raise

a question about), the conclusion for every like-situated,

reasonable government agent that what the defendant is doing

violates federal law in the circumstances.”

However, “the

egregiousness and outrageousness of certain conduct may suffice to

obviously locate it within the area proscribed by a more general

constitutional rule[.]” Id.

1. Stefanoff’s Equal Protection Claim

Stefanoff alleges that Hastings maintains a policy of denying

good time credit to inmates who have been sentenced by juries and

that Hastings violated his right to equal protection by refusing to

grant him good time credit because he elected to have his

punishment determined by a jury.

Because no suspect class or fundamental right is involved, we

employ the rational basis test in analyzing this question. See

Hilliard v. Ferguson,

(5th Cir. 1994). Rational

3 basis scrutiny requires only that the classification rationally

promote a legitimate governmental objective. See Williams v.

Lynaugh,

(5th Cir. 1987).

In order to overcome Hastings’s claim of qualified immunity,

Stefanoff must specifically allege the violation of a clearly

established constitutional right. See Seigert v. Gilley,

(1991). Stefanoff asserted that Hastings distinguished

between two groups of similarly situated inmates based on their

sentencing election. He contended that this distinction is not

rationally related to any legitimate state purpose and has a

chilling effect on the choice to be sentenced by a jury rather than

a judge. The trial court held that Stefanoff had alleged a

violation of a clearly established constitutional principal. We

agree.

The Equal Protection Clause of the Fourteenth Amendment

requires essentially that all persons similarly situated be treated

alike. See Rolf v. City of San Antonio,

(5th Cir.

1996). In order to establish an equal protection claim, Stefanoff

must prove (1) that Hastings created two or more classifications of

similarly situated prisoners that were treated differently, see

Johnson v. Rodriguez,

(5th Cir.), cert. denied,

(1997), and (2) that the classification had no

rational relation to any legitimate governmental objective. See

id. at 306. Hastings contends that Stefanoff did not adequately

4 allege either prong of an Equal Protection Clause violation.

Stefanoff’s complaint alleged that Hastings has a policy of

denying good time credit to persons who are sentenced by a jury,

while considering persons who are sentenced by a judge for such

credit. Hastings, while admitting that he has such a policy, takes

the position that because there is another category of prisoners

not considered for good time credit (those sentenced by a judge,

where the judge recommend “flat time”) and because even those who

are considered for such credit do not always receive it, there is

no relevant classification for Equal Protection purposes. Because

there was a discoverable classification antedating the challenged

state action -- that is, persons who elected to be sentenced by a

jury versus those who elected to be sentenced by a judge --

Stefanoff has met the requirement of identifying two similarly

situated groups treated differently. See Johnson v. Rodriguez,

.

Further, Hastings contends that, assuming he treated similarly

situated groups of prisoners differently, the classification is

rationally related to a legitimate state purpose. The statutory

basis of the sheriff’s discretion for awarding good time in county

jails, Texas Code of Criminal Procedure, art. 42.032, specifically

states its purpose as “encourag[ing] county jail discipline.”

Hastings makes no argument that his policy was rationally related

to the goal articulated by the Texas legislature in the statute

5 granting discretion in this arena. Rather, Hastings argues that he

had another rational basis for his policy: deferring to the jury as

the “conscience of the community.” Although Hastings may have

acted outside the discretion granted by the state, giving rise to

a state cause of action, equal protection rights are not violated

as long as the policy is rationally related to some legitimate

governmental goal. See Johnson v. Rodriguez,

(1997).

This court’s task is therefore to examine Hastings’s

articulated rationale to determine 1) whether there is a plausible

policy reason for the classification, 2) whether Hastings could

have rationally believed the facts on which the classification is

allegedly based, and 3) whether the relationship of the

classification to its goal is so attenuated as to render the

distinction arbitrary or irrational. See Nordlinger v. Hahn,

(1992). While Hastings’s policy of denying good time

credit on sentences which reflect the “conscience of the community”

may be plausibly aimed at a legitimate governmental goal, the

distinction fails under the last two prongs. We do not accept as

rational the proposition that a decision made by a jury of citizens

more closely reflects the “conscience of the community” than the

decision of an elected judge.1 Even if that were a rational

1 There is nothing in this record that allows a distinction based on the conjecture that Hays County state district judges took into account the potential for early release due to good conduct

6 proposition, the relationship between the classification Hastings

chose and the goal of honoring the “conscience of the community” is

so attenuated as to render the distinction arbitrary and

irrational. We conclude that Hastings violated Stefanoff’s rights

under the equal protection clause. Further we are not convinced by

Hastings’ argument that such a policy was objectively reasonable.

2. Stefanoff’s First Amendment Claim

Stefanoff claims that Hastings also refused to grant him good

time credit in retaliation for engaging in a hunger strike and

corresponding with the media -- activities which he alleges are

protected by the First Amendment. Hastings stated in an affidavit

attached to his motion for summary judgment that, “[t]aking into

account all factors relevant to the exercise of my discretion, Mr.

Stefanoff would have served the same jail term even if I did not

have a guideline denying good time credit to persons sentenced by

a jury.” Hastings specifically references Stefanoff’s expressed

desire to stay in jail and organize the prisoners, as well as a

request from the district attorney for denial of good time “since

he has begun a hunger strike and continues to make his crime a

media event.”

In order to establish a retaliation claim, Stefanoff must show

1) the invocation of a specific constitutional right; 2) that

Hastings intended to retaliate against him for his exercise of that

time, while jury members remained ignorant of this possibility.

7 right; 3) a retaliatory adverse act; and 4) that but for the

retaliatory motive the act would not have occurred. See Johnson v.

Rodriguez,

(5th Cir. 1997).

We must begin by determining whether Hastings’s actions were

objectively reasonable under settled law at the time they were

taken. See Hunter v. Bryant,

(1991). First, it is

clearly established that, under some circumstances, prisoners have

a First Amendment right to communicate with the press. Pell v.

Procunier,

(1974). Likewise, a hunger strike may

be protected by the First Amendment if it was intended to convey a

particularized message. See Texas v. Johnson,

(1989). However, so long as reasonable and effective means of

communication remain open and no discrimination in terms of content

is involved, prison officials are accorded latitude in fashioning

restrictions on time, place and manner of communications. See id.

at 826. Such restrictions must be reasonably related to a

legitimate penological interest. See Brewer v. Wilkinson,

(5th Cir. 1993). We conclude that Stefanoff’s activities

were sufficiently disruptive that Hastings had a legitimate

penological interest in curtailing them. Further, there is no

question that Stefanoff retained other reasonable and effective

methods of communicating his views. Consequently, we conclude that

it was objectively reasonable for Hastings to deny Stefanoff good

time on this basis. Because there is no dispute in the record that

8 Hastings would have denied Stefanoff good time credit regardless of

the policy relative to jury sentences, we hold that Hastings was

entitled to qualified immunity from suit and reverse the district

court’s denial of his summary judgment motion.

CONCLUSION

In summary, we dismiss Hays County's appeal, and reverse the

judgment of the district court denying Hastings' claim for

qualified immunity and render judgment in favor of Hastings based

on the First Amendment claim. Our holding on the First Amendment

claim obviates the need to remand for further proceedings on the

basis of Stefanoff’s Equal Protection claim.

DISMISSED in part, REVERSED in part.

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