Toevs v. Reid, 2012 U.S. App. LEXIS 7994

Toevs, pro se, appeals district court summary judgment granting qualified immunity to officials managing a Colorado prison's QLLP.
QLLP is a six-level, behavior-modification program; Levels 1–3 are administrative segregation with Hewitt-like review requirements, Levels 4–6 are close custody with no explicit review process.
Toevs alleges he was confined from 2005–2009 in Levels 1–6 with inadequate, perfunctory reviews (or none at Levels 4–6), violating due process.
District court held reviews adequate and defendants entitled to qualified immunity; the panel grants rehearing and affirms on alternative grounds that the review process was not clearly established at the time.
Record shows seven-year confinement in QLLP for behavior modification; the court must balance deference to prison administrators with due-process guarantees for meaningful reviews.
Case addresses whether meaningful periodic reviews are required for a stratified incentive program with atypical, significant hardship.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Toevs had a protected liberty interest in meaningful periodic reviews	Toevs asserts levels 1–3 provided limited, non-meaningful reviews; Levels 4–6 had no reviews.	Reid/Jones contend Hewitt-like reviews not required for all levels; program's purpose is behavior modification within QLLP.	Yes, Toevs had a liberty interest and the reviews were insufficient.
Whether the reviews at Levels 1–3 were meaningful	Reviews were repetitive, lacked reasons, and failed to guide future progress.	Reviews reflected progress benchmarks and were part of an ongoing assessment.	No, the Level 1–3 reviews were not meaningful.
Whether Levels 4–6 violated due-process due to lack of reviews	No reviews at Levels 4–6 violated Hewitt and due process.	These levels are close custody; some arguments rely on custody status to avoid Hewitt requirements.	Yes, lack of reviews at Levels 4–6 violated due process.
Whether the defendants were entitled to qualified immunity given the law at the time	Given seven years of atypical confinement, the right to meaningful reviews was clearly established.	Not clearly established between 2005–2009; law unsettled about QLLP reviews.	Affirmed on qualified-immunity basis; law not clearly established.
Whether denial of counsel was an abuse of discretion	Appointing counsel would aid discovery and framing arguments.	Toevs adequately litigated pro se; counsel not required here.	Not an abuse of discretion.

Wilkinson v. Austin, 545 U.S. 209 (Supreme Court 2005) (due-process review for atypical and significant hardship in prison confinement)
Hewitt v. Helms, 459 U.S. 460 (Supreme Court 1983) (requirement of periodic review in administrative segregation)
Sandin v. Conner, 515 U.S. 472 (Supreme Court 1995) (liberty interest analysis in prison context; atypical and significant hardship)
Mathews v. Eldridge, 424 U.S. 319 (Supreme Court 1976) (balancing value of additional procedural safeguards against burden on government)
Hope v. Pelzer, 536 U.S. 730 (Supreme Court 2002) (clearly established law; fair warning standard for qualified immunity)
Camreta v. Greene, 131 S. Ct. 2020 (Supreme Court 2011) (avoidance of constitutional questions in qualified-immunity context; timing of rulings)
Pearson v. Callahan, 555 U.S. 223 (Supreme Court 2009) (two-step qualified-immunity framework clarified)