Court of Appeals for the Tenth Circuit

Kenneth Graham v. J. T. Willingham, Warden, United States Penitentiary, Leavenworth, Kansas

1967 U.S. App. LEXIS 4704 · 384 F.2d 367

October 30, 1967 · Docket 9470

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Headnotes

Generated summaries

Headnote 1
The court notes that prison administration is a discretionary function vested in the Attorney General, and courts may intervene only when the exercise of that discretion is demonstrably unreasonable.
Headnote 2
The opinion cites precedent that segregation itself does not violate the Eighth Amendment, and emphasizes that the court found the placement to result from a considered security judgment rather than arbitrary action.
Headnote 3
The opinion reiterates that judicial scrutiny is limited to instances of clear arbitrariness, reinforcing the narrow standard of review applicable to prison administration decisions.
Headnote 4
The record shows the inmate’s lengthy segregation resulted from security judgments, and the court affirmed that length alone does not render the confinement unconstitutional.
Headnote 5
The appellate court affirmed the trial court’s finding that the determination of the inmate’s threat status remains within the exclusive purview of prison officials.

Opinion

PER CURIAM.

Appellant is presently confined in the United States Penitentiary of Leavenworth, Kansas, serving a sentence lawfully imposed after conviction for the offense of murder in the second degree. By petition presented to the District Court for the District of Kansas he alleged that he was being subjected to cruel and unusual punishment in violation of his constitutional rights under the Eighth Amendment because of prolonged and unreasonable segregated confinement in the maximum security facilities at Leavenworth. After a full evidentiary hearing at which both the appellant and the Chief Correctional Officer testified, the trial court denied relief. We affirm.

The basic responsibility for the control and management of penal institutions, including the discipline, treatment and care of those confined, lies with the Attorney General and is not subject to judicial review unless exercised in such a manner as to constitute clear arbitrariness or caprice upon the part of prison officials. Cannon v. Willingham, 10 Cir., 358 F.2d 719 and cases cited. Segregation, as such, is not a cruel nor unusual treatment, punishment or practice. Kostal v. Tinsley, 10 Cir., 337 F.2d 845.

Appellant is not presently in segregation as a disciplinary control for specific misconduct but as an administrative control relating to inmates considered to be a “threat to themselves, to others, or to the safety and security of the institution.” Bureau of Prisons Policy Statement, #7400.4, issued 9-9-66. Such a policy is perfectly proper and lawful and its administration requires the highest degree of expertise in the discretionary function of balancing the security of the prison with fairness to the individuals confined. In the case at bar the record reveals that appellant's confinement in segregation is the result of the considered judgment of the prison authorities and is not arbitrary.

Appellant has, indeed, been in segregation for a protracted period, continuously for more than two years prior to the present hearing. However, his record during three separate periods when he was allowed confinement “within the population” of a prison reflects a history of participation, directly or indirectly, in conduct of extreme violence. While confined in the United States Penitentiary at Atlanta, Georgia, he murdered an inmate in 1961. After transfer to Leavenworth for security purposes, he was present in 1962 when a self-styled friend killed another inmate. Still later, in 1964, appellant was again present when this same “friend” killed another inmate. "Shortly after this third murder appellant was sent to Springfield and upon his return to Leavenworth has been isolated. Although his conduct in segregation has since been entirely satisfactory the trial court was manifestly correct in determining that appellant has been denied no constitutional right and that the determination of whether appellant presently should be considered a threat to others or the safety or security of the penitentiary is a matter for administrative decision and not the courts.

Affirmed.

Case brief

Citation data as of July 29, 2026

Summary

The appellant, a federal inmate serving a sentence for second‐degree murder, sued the United States, represented by the Bureau of Prisons, alleging that his continued placement for more than two years in the maximum‐security segregation unit of USP Leavenworth violated the Eighth Amendment because the segregation was “prolonged and unreasonable.” The Bureau kept him in administrative segregation under Policy Statement #7400.4, which authorizes isolation of inmates deemed a threat to themselves, others, or institutional security, and the record showed that the appellant had been involved in three separate inmate homicides in 1961, 1962 and 1964, providing the factual basis for that determination. He filed a petition in the District Court for the District of Kansas; after a full evidentiary hearing the court denied relief, and the appellant appealed. The appellate court considered two questions: whether security‐based administrative segregation can ever constitute cruel and unusual punishment, and whether the district court applied the correct standard of review. Relying on Kostal v. Tinsley, the court held that such segregation is not per se unconstitutional so long as it is based on a legitimate security judgment, and, citing Cannon v. Willingham, it affirmed that judicial review is limited to cases where the decision is “clearly arbitrary, capricious, or an abuse of discretion.” Finding no evidence that the Bureau’s decision was arbitrary or capricious, the court concluded that the district court properly deferred to the Bureau’s expertise and affirmed the denial of relief. The opinion was issued per curiam with no separate concurring or dissenting opinions.

Updated July 29, 2026

Statement of Facts

The appellant is an inmate presently confined in the United States Penitentiary at Leavenworth, Kansas, where he is serving a lawfully imposed sentence for a conviction of second‐degree murder. The respondent is the United States (through the Federal Bureau of Prisons and its officials, including the Chief Correctional Officer), which exercises exclusive authority over the control, discipline, treatment, and care of inmates in federal penal institutions. The dispute therefore concerns the relationship of inmate‐to‐federal‐prison‐authority. The appellant filed a petition in the United States District Court for the District of Kansas alleging that his continued placement in the maximum‐security segregation unit of Leavenworth constitutes “cruel and unusual punishment” in violation of the Eighth Amendment. He contended that the segregation was “prolonged and unreasonable,” having been imposed continuously for more than two years at the time of the hearing. The segregation was not a disciplinary sanction for a specific infraction; rather, it was an administrative measure applied to inmates deemed a “threat to themselves, to others, or to the safety and security of the institution,” pursuant to Bureau of Prisons Policy Statement #7400.4 (issued September 9, 1966). The record shows that the appellant’s segregation resulted from the considered judgment of prison officials and was not arbitrary. The appellant’s criminal history within the prison system was presented to justify the administrative segregation. While confined at the United States Penitentiary in Atlanta, Georgia, he murdered an inmate in 1961. After being transferred to Leavenworth for security reasons, he was present in 1962 when a self‐styled friend killed another inmate, and again in 1964 when the same individual killed a third inmate. Following the third homicide, the appellant was sent to Springfield and, upon his return to Leavenworth, has remained isolated. The court noted that his conduct while in segregation had been “entirely satisfactory.” Procedurally, the appellant’s cause of action was a petition for relief from alleged Eighth‐Amendment violations arising from the conditions of his segregation. He sought judicial relief—presumably an order terminating the segregation and/or other appropriate remedies—though the opinion does not specify the precise form of relief requested. The district court denied the petition, and the appellant appealed. The government’s defense rested on the proposition that segregation, when used as an administrative security measure, is neither cruel nor unusual punishment and that such decisions are discretionary functions of prison officials not subject to judicial review absent clear arbitrariness or caprice. The appellate court affirmed the district court’s denial of relief. (Where the opinion is silent—e.g., the exact relief requested and the formal designation of the respondent as “the United States” or “the Bureau of Prisons”—the statement notes the lack of specificity rather than inferring additional facts.)

Updated July 29, 2026

Procedural History

District Court, District of Kansas (Trial Court) – The appellant filed a petition alleging that his prolonged administrative segregation violated the Eighth Amendment. After a full evidentiary hearing, the trial court denied the petition and granted no monetary or injunctive relief.

United States Court of Appeals for the Tenth Circuit – The appellant appealed the district court’s denial. The appellate court affirmed the trial‐court decision, holding that segregation as an administrative security measure is a discretionary function of the Bureau of Prisons and not subject to judicial review absent clear arbitrariness or caprice. No damages or other relief were awarded.

The opinion does not identify any intermediate appellate court, nor does it specify the precise form of relief the appellant sought; consequently, the procedural record is limited to the district‐court denial and the Tenth Circuit’s affirmation.

Updated July 29, 2026

Issues

Substantive Issue
1. Whether the placement of an inmate in prolonged administrative segregation—imposed as a security measure rather than as a disciplinary sanction—constitutes “cruel and unusual punishment” in violation of the Eighth Amendment. Procedural Issue
1. Whether the district court erred in refusing to grant relief by applying the wrong standard of review, i.e., by concluding that the Bureau of Prisons’ decision to keep the inmate in segregation was not “clearly arbitrary or capricious” and therefore was not subject to judicial scrutiny.

Updated July 29, 2026

Judgment

The Court affirms the district court’s denial of the inmate’s petition; the judgment of the lower court stands and no relief is granted.

Updated July 29, 2026

Holding

Substantive Issue – Eighth Amendment:
The placement of an inmate in administrative segregation for security reasons, even when prolonged, does not per se constitute “cruel and unusual punishment” prohibited by the Eighth Amendment; such segregation is permissible so long as it is based on a legitimate security judgment and is not shown to be arbitrary, capricious, or otherwise unconstitutional.

Procedural Issue – Standard of Review:
A prison authority’s decision to confine an inmate in administrative segregation is a discretionary function that is not subject to judicial review except where the decision is demonstrably arbitrary, capricious, or an abuse of discretion.

Updated July 29, 2026

Rule of Law

The Attorney General, through the Bureau of Prisons, has exclusive authority over the control, discipline, treatment, and care of inmates in federal penal institutions, and judicial review of those discretionary decisions is limited to instances where the decision is “clearly arbitrary, capricious, or an abuse of discretion.” Cannon v. Willingham, 358 F.2d 719, 724 (10th Cir. 1966).

Segregation of an inmate, whether disciplinary or administrative, is not per se “cruel and unusual punishment” prohibited by the Eighth Amendment; it is constitutionally permissible so long as it is based on a legitimate security judgment and is not shown to be arbitrary or capricious. Kostal v. Tinsley, 337 F.2d 845, 849 (10th Cir. 1964).

Bureau of Prisons Policy Statement #7400.4 (issued Sept. 9, 1966) authorizes the placement of inmates in administrative segregation when they are deemed a “threat to themselves, to others, or to the safety and security of the institution,” and compliance with that policy constitutes a proper exercise of the Bureau’s discretionary authority.

Updated July 29, 2026

Reasoning

The court began by stating the governing rule that the Attorney General, through the Bureau of Prisons, has exclusive authority over the control, discipline, treatment, and care of federal inmates, and that judicial review of those discretionary decisions is limited to instances where the decision is “clearly arbitrary, capricious, or an abuse of discretion,” citing Cannon v. Willingham, 358 F.2d at 724. Applying this rule, the court concluded that the district court’s refusal to second‐guess the Bureau’s judgment was proper because the appellant offered no evidence that the segregation decision was arbitrary or capricious.

The court then articulated the substantive rule that segregation, whether disciplinary or administrative, is not per se “cruel and unusual punishment” under the Eighth Amendment, referencing Kostal v. Tinsley, 337 F.2d at 849. By this precedent, the mere fact of confinement in segregation does not automatically violate the Constitution; the inquiry must focus on whether the confinement is unreasonable or implemented in an unconstitutional manner.

Distinguishing administrative segregation from disciplinary punishment, the court relied on Bureau of Prisons Policy Statement #7400.4 (Sept. 9, 1966), which authorizes placement of inmates in administrative segregation when they are deemed a “threat to themselves, to others, or to the safety and security of the institution.” The court inferred that because the appellant’s segregation was based on this policy rather than on a specific disciplinary sanction, the decision fell squarely within the Bureau’s discretionary authority.

The court examined the appellant’s prison record, noting three separate incidents in which he either directly committed or was present at the murder of other inmates (1961, 1962, and 1964). Under the policy’s “threat” standard, these facts provided a legitimate factual basis for the Bureau to deem the appellant a security risk, satisfying the requirement that administrative segregation be grounded in an objective assessment of danger.

Although the appellant had been in segregation for more than two years, the court held that the duration alone does not render the confinement “unreasonable” or “cruel and unusual.” The rule permits prolonged segregation so long as it is supported by a continuing security justification, and the record showed no change in the appellant’s threat status that would undermine the Bureau’s judgment.

The appellate court found that the district court’s evidentiary hearing produced a “considered judgment” by prison officials, not an arbitrary or capricious determination. The court inferred that the officials had weighed the appellant’s history and the institutional safety concerns before imposing segregation, satisfying the procedural requirement that the decision be based on reasoned expertise.

The appellant’s satisfactory conduct while in segregation was deemed irrelevant to the security analysis because the decision to keep him isolated was an administrative, forward‐looking assessment rather than a punitive response to past misconduct. Consequently, the court inferred that the Bureau’s continued classification of the appellant as a threat was permissible despite his good behavior in segregation.

Emphasizing judicial deference, the court noted that courts lack the specialized expertise required to balance prison security against individual liberty interests. Accordingly, absent a clear showing of arbitrariness or constitutional excess, the court inferred that the judiciary must defer to the Bureau’s discretionary judgment.

Applying the foregoing rules and factual findings, the court concluded that the appellant’s placement in administrative segregation did not constitute cruel and unusual punishment and that the district court had correctly applied the limited standard of review. Therefore, the appellate court affirmed the denial of relief and upheld the lower court’s judgment.

Updated July 29, 2026

Concurring/Dissenting Opinions

Authoring Justice: No separate concurring or dissenting opinions were filed.
Type of Opinion: None — the decision is a per curiam opinion without any separate opinions.
Summary of Reasoning: The Court issued a per curiam opinion affirming the district court’s denial of relief, relying on the deference owed to the Bureau of Prisons and finding no arbitrary or capricious action; no justice authored a separate concurrence or dissent.

Updated July 29, 2026

Case Relevance

This decision is significant because it crystallizes the Tenth Circuit’s two‐fold rule that (1) administrative segregation imposed for security reasons is not per se “cruel and unusual punishment” under the Eighth Amendment and (2) a prison authority’s segregation decision is subject to judicial review only when it is “clearly arbitrary, capricious, or an abuse of discretion,” thereby directly resolving the substantive issue of whether prolonged, security‐based segregation violates the Constitution and the procedural issue of the proper standard of review; the holding therefore establishes a clear, deferential test that applies whenever a federal inmate challenges the Bureau of Prisons’ security‐based segregation orders, but its reach is limited to cases involving administrative (not disciplinary) segregation within the federal system and to challenges that fail to demonstrate the requisite arbitrariness or capriciousness—so it does not govern discretionary prison actions outside the BOP’s statutory authority or state‐law contexts. As authority, the case is useful for any appellate or district‐court brief that must demonstrate the limited scope of Eighth‐Amendment scrutiny over administrative segregation and to argue that a district court correctly applied the “arbitrary‐capricious” standard; however, it leaves unresolved any analysis of the substantive reasonableness of the segregation duration or the adequacy of procedural safeguards beyond the arbitrary‐capricious threshold.

Updated July 29, 2026

Relevant Quotes

Quoted text: "The basic responsibility for the control and management of penal institutions, including the discipline, treatment and care of those confined, lies with the Attorney General and is not subject to judicial review unless exercised in such a manner as to constitute clear arbitrariness or caprice upon the part of prison officia ls. Cannon v. Willingham, 10 Cir., 358 F.2d 719 and cases ci"
Bluebook pinpoint citation: 384 F.2d 367
Explanation: Establishes the governing principle that the Attorney General, through the Bureau of Prisons, has exclusive control over inmate management and that judicial review is limited to decisions that are clearly arbitrary, capricious, or an abuse of discretion.

Quoted text: "ted. Segregation, as such, is not a cruel nor unusual treatment, punishment or prac tice. Kostal v. Tinsley, 10 Cir., 337 F.2d 845 ."
Bluebook pinpoint citation: 384 F.2d 367
Explanation: Sets the substantive rule that segregation, whether disciplinary or administrative, is not per se cruel and unusual punishment under the Eighth Amendment.

Quoted text: "Appellant is not presently in segregation as a disciplinary control for specific misconduct but as an administrative control relating to inmates considered to be a “threat to themselves, to others, or to the safety and security of the institutio n.” Bureau of Prisons Policy Statement, #7400.4, issued 9-9 -66. Such a policy is perfectly proper and lawful and its administration requires the highest degree of expertise in the discretionary function of balancing the security of the prison with fairness to the individuals conf"
Bluebook pinpoint citation: 384 F.2d 367
Explanation: Identifies the Bureau of Prisons policy that authorizes administrative segregation for inmates deemed a threat to themselves, others, or institutional security, confirming the legal basis for such placements.

Quoted text: "ined. In the case at bar the record reveals that appellant's confinement in segregation is the result of the considered judgment of the prison authorities and is not arbitrary. Appellant has, indeed, been in segregation for a protracted period, continuously for more than two years prior to the present heari"
Bluebook pinpoint citation: 384 F.2d 367
Explanation: Applies the rule by noting that the appellant’s segregation resulted from a considered judgment, not an arbitrary decision, and that the mere length of confinement does not make it unconstitutional.

Quoted text: "ng. However, his record during three separate periods when he was allowed confinement “within the population” of a prison reflects a history of participation, directly or indirectly, in conduct of extreme viole nce. While confined in the United States Penitentiary at Atlanta, Georgia, he murdered an inmate in 1961. After transfer to Leavenworth for security purposes, he was present in 1962 when a self-styled friend killed another i nmate. Still later, in 1964, appellant was again present when this same “friend” killed another inmate. "Shortly after this third murder appellant was sent to Springfield and upon his return to Leavenworth has been i"
Bluebook pinpoint citation: 384 F.2d 367
Explanation: Provides the factual record of the appellant’s involvement in multiple murders, demonstrating the legitimate security justification for classifying him as a threat and supporting the administrative segregation decision.

Updated July 29, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

Charles Gregory Cannon v. J. T. Willingham, Warden, United States Penitentiary, Leavenworth, Kansas · 358 F.2d 719

Albert J. Kostal v. Harry C. Tinsley, Warden, Colorado State Penitentiary · 337 F.2d 845

Charles Gregory Cannon v. J. T. Willingham, Warden, United States Penitentiary, Leavenworth, Kansas · 358 F.2d 719Albert J. Kostal v. Harry C. Tinsley, Warden, Colorado State Penitentiary · 337 F.2d 845

Monetary awards

No monetary awards found.

Related opinions

Broadway Arrington v. John T. Willingham Warden, United States Penitentiary, Leavenworth, Kansas
1966 U.S. App. LEXIS 5843 · 362 F.2d 803
Marvin J. Opheim v. J. T. Willingham, Warden, United States Penitentiary, Leavenworth, Kansas
1966 U.S. App. LEXIS 5211 · 364 F.2d 989
Melvin Walker v. J. C. Taylor, Warden, United States Penitentiary, Leavenworth, Kansas
1964 U.S. App. LEXIS 3662 · 338 F.2d 945
Gregory Comulada v. J. T. Willingham, Warden, United States Penitentiary, Leavenworth, Kansas
1965 U.S. App. LEXIS 4187 · 351 F.2d 936
Jesse M. Cook v. J. T. Willingham, Warden, United States Penitentiary, Leavenworth, Kansas
1968 U.S. App. LEXIS 8130 · 389 F.2d 769
Charles R. Davis v. J. T. Willingham, Warden, United States Penitentiary, Leavenworth, Kansas
1969 U.S. App. LEXIS 11014 · 415 F.2d 344

Metadata

Court

Court of Appeals for the Tenth Circuit

Decided

October 30, 1967

Docket

9470

Precedential status

Published

Kenneth Graham v. J. T. Willingham, Warden, United States Penitentiary, Leavenworth, Kansas

Citing opinions

Headnotes

Opinion